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 the Petitioner, Bethesda Memorial Hospital, Inc., (Bethesda) is entitled to a certificate of need (CON) in order to convert three general acute care beds for use as Level III neonatal intensive care unit (NICU) beds.
Findings Of Fact The Agency for Health Care Administration is the state agency charged with the responsibility of reviewing applications such as the one at issue in this proceeding. The parties have stipulated that whether or not the subject application should be approved must be decided upon a weighing and balancing of all pertinent statutory and rule criteria. Bethesda’s letter of intent and application for CON were timely filed in an appropriate batching cycle. Bethesda is a 362-bed acute care hospital located in Boynton Beach, Palm Beach County, Florida. As such, it is located within the Agency’s District 9. The approval of the CON at issue would allow Bethesda to convert three of its existing acute care beds to Level III NICU beds. This approval would expand Bethesda’s existing NICU from 12 beds, which are designated Level II NICU beds, to a total of 15 beds for the combined NICU. Bethesda received a CON for its existing NICU in 1985. From its inception, the unit has been staffed and equipped for the highest level of NICU care and, in fact, performed Level III care until 1995 when the Agency ordered it to stop admitting babies of less than 1000 grams in weight. At the time of the original approval of the Bethesda NICU, the Agency did not distinguish between Level II and Level III NICU beds. Nevertheless, Bethesda staffed and equipped its unit based upon the highest level of care because of the population it has historically served. Later, as the Agency developed more distinct guidelines between Level II and Level III NICU beds (as well as a statewide bed-need methodology), Bethesda found it could not technically continue to do what it had historically done, i.e., serve a Level III newborn. Bethesda has historically served these Level III newborns because it is under contract with the Palm Beach County Public Health Unit (PHU) to care for indigent mothers and at-risk babies. This agreement to serve indigent mothers and at-risk babies has resulted in a significant number of babies being delivered at Bethesda requiring neonatal intensive care at all levels. Until 1989, Bethesda was the only hospital to provide obstetrical care in the southern portion of Palm Beach County, much less make exceptional provision for indigent birth mothers. As it developed, Bethesda provided quality obstetrical, pediatric, and neonatology services in an area of Palm Beach County where other providers were less than enthusiastic about the market. Except for St. Mary’s Hospital in the northern portion of the county, no other provider has extended services to the indigent as demonstrated by Bethesda. Moreover, Bethesda has offered to condition its CON approval on the provision that it render a minimum of 35 percent of the facility’s entire NICU patient days, including Level II and Level III, to Medicaid/charity patients. Thus, a major emphasis of this application is care for the indigent. Of all patients cared for in the south Palm Beach County neonatal programs, ninety-nine percent are indigent. While a provider may receive reimbursement for certain services (from Medicaid or local health district funds), the patients themselves (birth mothers and babies) are indigent. Additionally, one-third of the pregnancies processed through the PHU are high-risk due to diabetes, infectious diseases, or other complications. As a logical consequence of the complications with the birth mother, the babies born through the PHU program tend to be sicker than average. While Palm Beach County has demonstrated a remarkable improvement in providing pre-natal care to birth mothers and thereby improving at-risk results, Bethesda continues to play a critical role in extending care to this needy population. Bethesda is the exclusive hospital used by the PHU in south Palm Beach County. It is utilized because it is geographically located near the patient population. Further, Bethesda’s reputation in this community makes it attractive to those in need. Bethesda is engaged in a three-way partnership with St. Mary's Hospital and the PHU to lower infant mortality in the county. They have created an integrated care plan for south Palm Beach County maternity patients. Bethesda, physicians in the community (including obstetricians, gynecologists, neonatologists and pediatricians), and the PHU have worked together for 11 years to make sure that protocols are available so that pre-natal care is available to all who need it. These parties work closely with Healthy Mothers/Healthy Babies and other voluntary organizations to bring patients to the PHU or to Bethesda. The PHU physicians and midwives deliver between 800 and 1,000 babies a year. About 25 percent of these babies from the southern portion of the county will require some kind of Level II or Level III NICU care during their stay in the hospital. Thus, 200 to 250 babies needing NICU care come through the PHU each year. It would also be expected that non-indigent mothers from the southern portion of the county would deliver babies requiring NICU care. Bethesda plans to open outlying health clinics to enhance services offered to local communities within the Bethesda zip codes. These programs or clinics are expected to result in an estimated 20 percent increase in the volume of indigent pregnant women served by Bethesda. The availability of services to the local communities may also assist patients to keep their scheduled appointments. There is a difference between the number of patients scheduled to see PHU physicians and those who actually show up, due to the inconvenience and financial burden of getting to the health unit. Having the clinic locations readily available may alleviate the inconveniences to the indigent mother. Under the present circumstances, when a Level III baby is delivered at Bethesda it must be transferred to another facility. These transfers create a major burden for the birth mother. Remembering that the mother would not typically be transferred with the child (and would not require the extended stay some neonates demand), the issue of transportation for the parent may be insurmountable. For example, in order to leave a convenient location to visit once or twice a day, an indigent mother must arrange transportation to and from the Level III facility where the baby has been sent. This may entail additional expenses for the parent such as lost wages or extending times for babysitters watching other children in the home. These additional expenses may be more than the indigent family can bear. The nearest Level III NICU provider to whom Bethesda now transfers patients is St. Mary’s Hospital. This facility is, by automobile, approximately 30-40 minutes from Bethesda depending on traffic conditions. Bus transportation directly connecting one site to the other, if it were available (which it is not), would presumably take longer. Currently, even when it is determined that a maternity patient should be sent to St. Mary's Hospital for pre-natal care, the mothers are presenting for delivery at Bethesda. This occurs because Bethesda is geographically located in the area where they live. The baby is born at Bethesda and a decision must be made how best to deal with the health issues of the child. Of the patients referred from Bethesda to St. Mary's Hospital for pre-natal care, only 5 percent deliver at St. Mary's. Ninety-five percent return to Bethesda for delivery even though they were told to go to St. Mary's. The main reason for this failure of patients to follow up at St. Mary's Hospital is the lack of affordable transportation. Many indigent women do not have cars or access to them. The existing facilities in Palm Beach County for Level III care are not reasonably available, appropriate, or accessible alternatives for these patients. AHCA District 9 has only three Level III NICU providers. They are all in Palm Beach County, with St. Mary's Hospital and Good Samaritan Hospital (now owned by the same company) in the northern part of the county (West Palm Beach) and West Boca in the southern part (Boca Raton). West Boca is not a reasonable alternative for the NICU patient population served by Bethesda. West Boca does not serve the lower income patients. In fact, West Boca transfers patients without financial resources to Bethesda. West Boca transfers indigent women in labor early enough so that COBRA regulations are met. Pertinent to this case, historically, West Boca transferred indigent Level III NICU patients to Bethesda until 1994. During the last three years, Level III NICU utilization at Good Samaritan and St. Mary's Hospital has averaged better than 90 percent. To average 90 percent means that the beds are often full or there are more patients than there are beds. Accordingly, these providers are operating at what is essentially capacity. It is, therefore, not surprising that St. Mary's Hospital supports Bethesda's CON application in this proceeding. No existing provider within District 9, including West Boca, formally opposed the instant application. A primary service area is the area from which a hospital draws the overwhelming majority of its patients for a given service and is defined by zip code level information. The primary service area of Bethesda for providing newborn and neonatal services is wholly within what has been described in this record as the southern portion of Palm Beach County. The primary service areas of West Boca and Bethesda for newborn and neonatal services do not significantly overlap. In fact, 40 percent to 45 percent of these services provided by West Boca have been to residents of Broward County. In this regard, West Boca's neonatal services compete more directly with those of Broward General Hospital than Bethesda. Bethesda's NICU is currently staffed and equipped for Level III services. From a medical standpoint, the CON proposal will result in a quality 15-bed dual unit, which is very efficient from the neonatologist's standpoint. The neonatologists staffing the Bethesda NICU are associated with the same group serving St. Mary's Hospital and Broward General Hospital, both Regional Perinatal Intensive Care Centers (RPICC). This helps assure proficiency with large volumes at more than one program. The nursing staff at Bethesda all have at least two years of Level III experience, and no nurse is currently hired for the NICU without that level of experience. From a neonatal nursing care standpoint, the addition of the three Level III beds would result in quality, cost- efficient care. The proposed combined unit would allow for flexibility of making daily staff assignments and would enhance care for the babies. The combined 15-bed NICU is large enough to provide quality, cost-effective Level II and III care. Bethesda has the physician staffing, nurse and therapist staffing, equipment, facilities, and hospital services to provide proper quality tertiary care for these newborns. Since 1993, Mease Hospital in Dunedin, Florida, has operated a five-bed Level III NICU combined with a five-bed Level II NICU in one room. It has proven to be a quality program with a low mortality rate. The five-bed Level III NICU provides cost- efficient care. There is no reason Bethesda cannot duplicate the record Mease has demonstrated. High quality, neonatal intensive care may be easier to achieve with Level II and III beds in the same room than with any other configuration of beds. Bethesda will not be able to treat every sick baby. It cannot care for babies requiring open heart surgery (Bethesda does not have an open heart surgery program), for those needing extra-corporeal membrane oxygenation (ECMO), nor those seeking pediatric cardiac catheterization. None of the three existing Level III facilities in District 9, however, has open heart surgery or ECMO available. Like Bethesda they, too, must transfer out for these services. Fortunately, the Agency rule allows a provider to make written arrangements with other Level III providers to provide those services in the same or nearest service area. AHCA has stipulated that Bethesda has the appropriate written transfer agreements pursuant to Rule 59C-1.042(12), Florida Administrative Code. For the number of babies to be served by Bethesda, the ability to serve Level III babies will improve the quality of care. There are medical risks in transferring babies from one facility to another. When adequate staffing and facilities are available at the hospital of birth, transferring the infant to another provider may pose an unnecessary risk. The risks inherent in transfers do not always outweigh the benefit. For example, transferring the child may delay certain treatments such as use of "surfactants" which protect a baby's lungs. Other risks such as those associated with maintaining the infant's blood pressure or body temperature make transfers difficult and, in some instances, medically questionable. Bethesda’s application for the instant CON meets the applicable local and state health plans. Bethesda has an established record of providing quality care and will be well able to provide quality of care for the services allowed by the proposed addition of three Level III NICU beds. It is unrealistic for Bethesda to refuse admission to patients requiring Level III NICU services given the historical and current patterns of births for this District. Bethesda’s proposed addition of three Level III beds to its NICU is financially feasible both in the short- and long- term. Bethesda’s Level III NICU beds will be programmatically accessible to its patient population. Although 90 percent of the District 9 population is within two hours ground travel time of an existing Level III NICU bed, such accessibility does not consider the unique characteristics of the indigent population the proposed beds at Bethesda will serve. Moreover, the provider who would otherwise serve the Level III patient under such scenario supports this application. The existing facilities providing care to the indigent population operate at capacity and are fully utilized. The only facility not fully utilized (West Boca) has no significant history of providing care to the Medicaid/indigent population. The proposed construction or renovation of the Bethesda unit to accommodate fifteen NICU stations is reasonable. While Bethesda will have to meet certain minimum licensing standards in the configuration of the NICU, it is anticipated that such standards will be met with little difficulty or significant expense to Bethesda. The unchallenged fixed-need pool for the batching cycle applicable to this case was one Level III bed. Bethesda has met all Agency requirements regarding “Emergency Transportation,” “Transfer Agreements,” and “Data Reporting Requirements.” The Agency’s rule regarding minimum unit size for a Level III NICU has not been met. However, this requirement has not been adhered to by the Agency in several instances. In AHCA District 9, there are three hospitals with NICU Level III programs. Not one of these programs has 15 beds. St. Mary's Hospital (a RPICC) has ten beds, Good Samaritan has eight beds, and West Boca has five beds. The quality of care at these providers is presumably adequate despite the fact that they were approved and licensed by the Agency with less than fifteen beds. Moreover, the Agency has never considered the 15-bed minimum an absolute bar to the application for, or the review of, lesser-numbered beds. In fact, the Agency approved new Level III NICU beds at Mease Hospital (a five-bed unit), West Boca Hospital (a five-bed unit), and Miami Baptist Hospital (a seven-bed unit) after the rule was promulgated. Additionally, the total number of all NICU beds at Mease and West Boca is less than fifteen. Thus, as stipulated in South Miami Hospital, Inc. v. Agency for Health Care Administration, Case No. 97-04875, currently pending before the First District Court of Appeal, the Agency has “consistently interpreted those unit size rule provisions as permissive.” Bethesda has presented not normal circumstances supporting this CON application which are hereby accepted. Such circumstances include: accessibility issues for indigent or Medicaid mothers and babies; the lack of Level III beds in the southern portion of the county where 60 percent of all resident live births are delivered; the fact that approximately one-third of the low birth weight mothers reside in the service area for Bethesda yet the majority of the Level III beds are in the northern portion of the county; and the fact that 30 percent of Bethesda’s patients are clients from the PHU. The average occupancy rate for Level III NICU beds for the year applicable to this application was 80.9 percent. As a result, the rule mandated minimum average occupancy rate has been met.
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 approving CON application Number 8235 with the condition that Bethesda provide indigent/Medicaid care as proposed in the application. DONE AND ENTERED this 24th day of February, 1998, in Tallahassee, Leon County, Florida. J. D. PARRISH 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 Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 1998. COPIES FURNISHED: Sam Power, Agency Clerk Agency for Health Care Administration Fort Knox Building 3 2727 Mahan Drive, Suite 3431 Tallahassee, Florida 32308-5403 Paul J. Martin, General Counsel Agency for Health Care Administration Fort Knox Building 3 2727 Mahan Drive, Suite 3431 Tallahassee, Florida 32308-5403 Richard A. Patterson, Esquire Agency for Health Care Administration Fort Knox Building 3 2727 Mahan Drive, Suite 3407B Tallahassee, Florida 32308-5403 Kenneth F. Hoffman, Esquire M. Christopher Bryant, Esquire Oertel, Hoffman, Fernandez & Cole, P.A. Post Office Box 6507 Tallahassee, Florida 32314-6507
The Issue Whether Certificate of Need Application Number 6785 should be approved for the conversion of 10 acute care medical/surgical beds to a 10 bed Level II neonatal intensive care unit at University Community Hospital.
Findings Of Fact On August 9, 1991, HRS published a fixed need pool for Level II and III Neonatal Intensive Care Services in the Florida Administrative Weekly, Volume 17, Number 32. For District 6, HRS published a "Preliminary Estimate of Bed Need" for an additional 10 Level II Neonatal Intensive Care Unit (NICU) beds, with an explanatory footnote which was as follows: "Due to pending litigation regarding the inventory of neonatal intensive care unit beds, no fixed need projection is made." The pending litigation was a challenge to the inclusion of 11 beds at Winter Haven Hospital ("Winter Haven") on the inventory of existing Level II NICUs. Following an amendment of the "grandfathering" rules, Winter Haven's dispute with AHCA was settled. Winter Haven's 11 bed NICU is included on the Level II inventory and its petition in this proceeding, which a Winter Haven witness described as their "fall back position", has been voluntarily dismissed. Humana of Florida, Inc., d/b/a Humana Women's Hospital Tampa ("Humana") intervened in these proceedings. Subsequent to the hearing and filing of proposed recommended orders, Humana entered its notice of voluntary withdrawal of its petition on March 17, 1993. AHCA is the state agency which administers CON laws, following transfer of that responsibility from HRS. See, Chapter 92-33, Laws of Florida. University Community Hospital ("UCH") is a 424 bed hospital in Tampa, Hillsborough County, Florida, AHCA District 6, with services which include open heart surgery, pediatric intensive care, and obstetrics. UCH began obstetrics services on September 2, 1991. In its first full year of operation, there were 1299 deliveries in its 31 bed obstetrics unit. UCH projected that there would be 1500 to 1800 deliveries in its second year of obstetrics services. Numeric Need and Occupancy Levels UCH filed its application to convert 10 acute care beds to establish a 10 bed Level II NICU on September 26, 1991, in response to HRS' August 9, 1991 publication of need. Total project cost was estimated at $765,000. Although HRS described the District 6 publication as a "preliminary estimate," there is no statutory or rule authority for the publication of any numeric need number other than the fixed need. By letter dated December 16, 1991, Tampa General Hospital ("Tampa General") notified HRS that the utilization data for Tampa General, which was used to calculate numeric need was incorrect. Tampa General reported 11,112 Level II NICU patient days for 1987, 11,387 for 1988, and, initially, 10,770 for 1990. Tampa General also reported a 20 percent increase in births from 1988 to 1990, and a 117 percent utilization increase in Level III NICU patient days. Tampa General's revised figures distinguished between services provided in its special care nursery and those provided in Level II NICU beds. The revised report divided the total 10,770 into 4,600 patient days in special care nursery beds and 6,170 in Level II NICU beds, but does not specifically take into account the intensity of nursing care or the severity of infants' conditions. Using 6,170 patient days, rather than 10,770, AHCA recalculated numeric need, determined that the numeric need was zero, and used zero need in reviewing the District 6, Level II NICU applications filed in this batch. AHCA did not publish the revised calculation of zero need. AHCA's policy is to not recalculate a fixed need pool, unless there is time to republish before applications are due. Nevertheless, AHCA takes the position that the need publication in this case may be revised because it was preliminary. Using the August bed need projection published by HRS, Level II NICU beds were reporting 86.5 percent occupancy in the twelve month period ending six months prior to the publication. If Tampa General's utilization rates are decreased from 114.28 percent to 70.43 percent, revised district utilization rates would decrease from 86.5 percent to 72.83 percent. Staffing ratios and costs indicate that some neonates in the Tampa General special care nursery received care consistent with Level II NICU services. There is more credible evidence to support the data used by the agency in its publication of need than there is to support its revised determination of zero need. Minimum 1,000 Births Rule 10-5.042(6), Florida Administrative Code, is, in relevant part, as follows: Hospitals applying for Level II neonatal intensive care services shall not normally be approved unless the hospital had a minimum service volume of 1,000 live births for the most recent 12-month period ending 6 months prior to the beginning date of the quarter of the publication of the fixed need pool. There is no dispute that UCH initiated obstetrics services in September 1991, the same month in which it filed the CON application at issue in this case. Because the August 9, 1991 publication was the time for determination of need, then UCH does not meet the requirements of the rule. Standards For Review The publication of numeric need, minimum district occupancy levels, and minimum birth volumes are factors which determine the standard for review of CON applications. Due to the lack of any statutory or rule authority for the publication of preliminary estimates of numeric need, the nature and only possible effect of the pending litigation, AHCA's untimely revision of the numeric need number, and its failure to publish the revised number to allow a point-of-entry for challenges to the revised numeric need number and occupancy level, UCH is not required to demonstrate not normal circumstances. The failure to meet the minimum birth volume rule does, however, necessitate a showing of not normal circumstances for the approval of the UCH application. UCH assesses that its birth volume, and the number of neonates at UCH in need of Level II NICU care, the absence of available, accessible alternative hospitals, and the standard of care in the district are not normal circumstances which outweigh the minimum birth volume requirement. Available Alternatives Subsection 408.035(1)(b), Florida Statutes, also requires consideration of the availability, quality of care, efficiency, appropriateness, accessibility, extent of utilization, and adequacy of other Level II NICUs in the district. AHCA asserts that its corrected data showing zero need is a major indicator of available alternatives. As noted, however, UCH demonstrated the unreliability of the corrected data. In addition, geographic, economic, and other practical concerns may also affect accessibility. The total District 6 inventory of Level II NICU beds with 1990 occupancy and patient days as published on August 9, 1991, is as follows: Hospital Occupancy Patient Days Humana - Brandon 108.82 1,986 Humana Woman's 72.35 3,961 Tampa General 114.28 10,011 Manatee Memorial 90.23 1,976 Lakeland Regional 75.50 4,409 Winter Haven 49.02 1,968 The inventory is accepted as valid for the same reasons that the original publication of need is accepted as more reliable than the revised estimates. See, Finding of Fact 13. Tampa General's Level II and III nurseries are not available alternatives, because they exceed 90 percent occupancy. See, Findings of Fact 10 and 13. Humana Brandon is not an alternative with its Level II and III NICU beds exceeding capacity. Expert testimony on traffic practice and referral patterns support UCH's assertion that facilities in Winter Haven or Lakeland are not viable alternatives, although within the two hour travel time established by the rule on geographic access. Normal referral patterns are from more rural to more urban areas. Humana Women's, which is seven miles from UCH and has a transfer agreement with UCH, is the most geographically accessible, available alternative. The parties disagree over whether Humana Women's is economically accessible and has the capacity to serve most of the Level II neonates born at UCH. Humana Women's increased its service to 10-11 percent Medicaid obstetrics patients in 1991-1992, in contrast to UCH's level of 7 percent Medicaid obstetrics patients, and therefore, is no longer economically inaccessible to Medicaid patients. Humana Women's has 15 Level II NICU beds, which reported 72 percent occupancy in 1990. The demographic characteristics of the UCH service area include 7.1 percent Medicaid eligible population, and overlaps with the service area of Humana Women's. In addition, UCH and Humana Women's have overlapping medical staffs. For these reasons, Humana Women's experiences provide the most reliable indication of the accuracy of UCH's projections. At Humana Women's 7 percent of neonates require Level II and III care. By contrast, Lakeland Regional Medical Center experiences 12.7 percent neonates requiring NICU care, close to that projected by UCH, however, 30 percent of Lakeland Regional's patients are in the Medicaid payor category. The link between Medicaid and the greater need for NICU care was established by expert testimony. On this basis, the expert projections that 7 percent, not 10-15 percent, of UCH newborns will need Level II NICU care is accepted as reasonable. Average lengths of stay in Humana Women's Level II NICU beds were 6 to 7 days, not 10 days as projected by UCH. That data also supports AHCA's expert's conclusion that the average length of stay in UCH's stabilization unit, 2.3 days, is not indicative of UCH's having provided Level II care to 160 to 170 neonates. According to AHCA's expert planner, total capacity at Humana Brandon, Humana Women's and Tampa General is 14,000 patient days. Using the inventory published by the agency, those hospitals reported a total of 15,958 patient days in 1990. Even assuming that UCH overestimated the number of neonates needing NICU care, the capacity at accessible facilities within the district cannot accommodate the additional patients, and constitutes a not normal circumstance outweighing the minimum birth volume requirement. The fact that UCH is the only obstetrics facility in Hillsborough County without Level II and III NICU beds indicates that, if otherwise in compliance with review criteria, UCH's application should be approved to meet the need for additional Level II NICU beds. UCH's expert also testified that the number of Level II NICU beds in the Tampa area were disproportionately low compared to the population. Tampa has 3.2 Level II beds per thousand births in contrast to 7.6 in Lakeland, and 7.7 in Winter Haven. Given the demographic differences among the hospitals' service areas, the bed to population ratio was not shown to be meaningful as an indication of Level II NICU need. State and Local Health Plans Subsection 408.035(1)(a), Florida Statutes requires an evaluation of need in relation to applicable state and district health plans. The 1989 Florida State Health Plan lists the following general categories of preferences, most of which are applicable to any proposal to transfer or convert acute care beds regardless of the proposed new service: for conversion of acute care beds, for providing indigent care, for providing emergency services, for teaching, research and referral hospitals, and for providing specialized services. The District 6 plan issued in June 1990 by the Health Council of West Central Florida includes only one applicable CON allocation factor, which is related to the state health plan indigent care preferences and is as follows: Preference shall be given to an applicant who provides the department with documentation that they provide, or propose to provide, a disproportionate share of Medicaid and charity care patient days in relation to other hospitals in the subdistrict. The charity care definition shall be consistent with the definition used by the Health Care Cost Containment Board as defined in Chapter 89-275, Laws of Florida. The first group of preferences in the State Health Plan includes the following: Preference shall be given to a bed transfer and conversion application in which the applicant proposes a sizable reduction of excess beds in the existing facility. AHCA argues that the preference is not met. Because UCH has 404 licensed beds with an average occupancy of about 50 percent, or 200 empty beds, AHCA states that the conversion of only 10 medical-surgical beds to 10 Level II NICU beds is not a sizable reduction of excess acute care beds. However, AHCA only projected a need for an additional 10 NICU beds, which is the minimum size allowed by AHCA rules. AHCA's position that no additional Level II beds are needed is inconsistent with penalizing UCH for not proposing to convert more beds in this application. Therefore, this preference must be deemed inapplicable to this case. Similarly, given the size of the published need, the objective of reaching 75 percent occupancy in five years is also inapplicable to this application. The second relevant group of preferences relates to whether the conversion of beds will adversely impact disproportionate share providers. That same issue is also addressed in the group of preferences related to indigent care. AHCA argues that this preference is not met, because Tampa General, the only disproportionate share provider in the District, would be adversely affected. The evidence presented at hearing supports a conclusion to the contrary, that Tampa General will not be affected adversely. UCH and Tampa General have an agreement to cooperate in providing NICU services. UCH proposes to assist Tampa General in the delivery of Level III NICU services, by transfers of Level II neonates back to UCH as soon as possible. The fact that Tampa General's Level III utilization has increased substantially, more than 100 percent since 1988, was not disputted. Tampa General's medical director's testimony on the benefits to Tampa General of the agreement with UCH is persuasive. The next group of relevant preferences is entitled "Indigent care." The only local health plan factor also favors applicants which will provide a disproportionate share of Medicaid and charity care. UCH will not provide a disproportionate share of its services to Medicaid and charity care patients. The Level II NICU providers in District 6 average 40 percent Medicaid participation, and UCH proposes 6 percent. UCH does not meet the disproportionate share preferences in the state or local health plans. The "emergency services" group of preferences apply to applicants who (1)accept indigents for emergency care, (2)have a trauma center, (3) provide a full range of emergency services, and (4) have not been fined for violating emergency service statutes. UCH has an active emergency room, accommodating 45,000 visits in fiscal year 1991, and under expansion to increase its capacity to 60,000 visits a year. UCH, in general, meets the preference for providers of emergency room services. UCH is not a teaching, research, or referral center, nor is its proposed service unavailable within its service area. In response to this group of preferences, UCH has also not demonstrated that patients are leaving the state for this service, that any new physician specialities would be attracted to the area, or that its proposal will expand medical research in Florida. For the group of preferences for specialized services, UCH meets two of three applicable preferences. One for proposing a conversion of medical/surgical beds to NICU beds, another for proposing a commitment to serve 6 percent Medicaid and 5 percent charity care. In 1990, 41 percent of District 6 Level II NICU discharges were Medicaid patients. In 1990, Medicaid services ranged from a high of 61.6 percent of total Medicaid provided by Tampa General to a low of 2 percent by Humana Women's. UCH has shown its 6 percent Medicaid commitment to be reasonable and attainable by demonstrating that 7.1 percent of the population in its service area is Medicaid eligible. The actual Medicaid percentage in the first year for obstetrics services was 7 percent, which coincides with the percentage of Medicaid eligible persons living within the UCH service area. UCH has not emphasized specialized services to substance abusers, other than to have a referral network to community service agencies. The review of UCH's application in relation to state and local health plans results in the conclusion that the proposal is generally supported by preferences for the conversion of excess acute care beds, for not adversely impacting and potentially assisting Tampa General, for having emergency room services, and for providing specialized services with an attainable relatively low, Medicaid commitment. On the negative side are the preferences for applicants serving a disproportionate share Medicaid and charity patients, for teaching, research or referral centers, for services unique to the area, or for specialized service to substance abusing pregnant or postpartum women. On balance, the application of the state and local health plans does not suggest strongly that the UCH application either should or should not be approved, particularly in this case, where comparative review is impossible because UCH is the sole remaining applicant. Other Statutory Criteria Subsection 408.035(1)(c), Florida Statutes, criteria are met by UCH. UCH can provide good quality care in Level II NICU services. It is accredited by the Joint Commission on Accreditation of Health Organizations and has the ability to comply with rule requirements for equipment, staff and physical facilities. UCH already has a board-certified neonatologist on staff. Subsection 408.035(1)(e), favoring joint, cooperative or shared operation of health care services is not a criterion met by the UCH proposal. Although UCH suggests that its transfer agreement with Tampa General complies with the statute and the evidence showed that the two hospitals will cooperate in providing the separate services they each provide, but the transfer agreement does not constitute cooperative operation of the service. Subsection 408.035(1)(f), arguably is a basis for approval of the UCH application, because Level II NICU equipment and services do not exist in the adjoining area of east Pasco County. For District 5, which includes Pasco County, zero need was published for the same batching cycle. Subsection 408.035(1)(g) criterion, related to research and training programs, is not met by the UCH application. UCH meets the criteria in Subsection 408.035(1)(h), by having shown that it has the manpower, personnel and funds to establish and operate a 10-bed Level II NICU. UCH is able to renovate existing space and to acquire the equipment required for the 10-bed NICU for approximately $765,000. AHCA does not dispute UCH's assertion that it has adequate funds to finance this project and that project costs are reasonable. Having already hired a neonatologist, and 6 to 7 of the 11 1/2 to 12 1/2 full time equivalent or FTE's required, UCH has, or can recruit and hire, the necessary staff. Financial Feasibility Under Subsection 408.035(1)(i), the financial feasibility of a project must be considered. UCH estimated that a Level II NICU will generate $290,000 in year one, and $336,000 in year two revenues. The projections were based on providing Level II NICU services to 11 to 12 percent of newborns, or 2290 patient and 2670 patient days in years one and two, respectively. This underlying assumption is rejected. See, Finding of Fact 26. UCH's projection of a 10 day average length of stay in Level II NICU beds is not supported by Humana Women's experience of 6 to 7 days. See, finding of Fact 27. From the testimony and assumptions, attached to UCH's projected revenues and expenses, it is possible to determine that reduced total patient revenues will result from lower than projected numbers of patients and days. It is also apparent that deductions from revenue and some operating expenses will also decrease. There is, however, no testimony from which the relative proportions of adjustments to each item and the effect on charges for NICU services be calculated. Nor is there testimony regarding any minimum utilization necessary for the project to be financially feasible. Therefore, UCH has failed to meet the burden of showing that the proposed Level II NICU at UCH will be financially feasible. On balance, but not excluding all the applicable criteria, the most positive factors of the UCH proposal, the published need and potential benefits to Tampa General, do not outweigh the most negative ones, the failure to demonstrate financial feasibility and to make a more significant commitment compared to the district demand for Medicaid in Level II NICU beds.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the application of University Community Hospital for Certificate of Need 6785 to convert 10 acute care beds to 10 Level II neonatal intensive care beds be DENIED. DONE AND ENTERED this 8th day of October, 1993, in Tallahassee, Leon County, Florida. ELEANOR M. HUNTER 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 October, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-1490 To comply with the requirements of Section 120.59(2), Fla. Stat. (1991), the following rulings are made on the parties' proposed findings of fact: UNIVERSITY COMMUNITY HOSPITAL Accepted in Findings of Fact 5 and 36. Accepted in Finding of Fact 6. Accepted in Finding of Fact 7. Accepted in Finding of Fact 2. Accepted in Finding of Fact 2. Accepted in Finding of Fact 3. Accepted in Findings of Fact 1 and 2. Accepted in Finding of Fact 2. Accepted in Finding of Fact 8. Accepted in Findings of Fact 9 and 10. Accepted in Finding of Fact 11. Accepted in Finding of Fact 11. Issue not reached. Issue not reached. Issue not reached. Accepted in Findings of Fact 10 and 11. Accepted in Finding of Fact 13. Subordinate to Finding of Fact 13. Accepted in Finding of Fact 10. Subordinate to Finding of Fact 13. Accepted in Findings of Facts 5 to 13. Subordinate to Finding of Fact 13. Subordinate to Finding of Fact 13. Accepted in Finding of Fact 13. Accepted in Findings of Fact 10 and 13. Accepted in Finding of Fact 47. First two sentences, Subordinate to Finding of Fact 6, Last two sentences, Rejected in Finding of Fact 26. Accepted in Finding of Fact 28. Rejected in Findings of Fact 50 and 51. Accepted in Finding of Fact 27. Rejected. Accepted in Finding of Fact 29. Accepted in Finding of Fact 36. Accepted in relevant part in Finding of Fact 34. Subordinate to Finding of Fact 26. Subordinate to Finding of Fact 26. Conclusion rejected in Finding of Fact 30. Rejected in Finding of Fact 41. Rejected in Findings of Fact 50 and 51. Accepted in relevant part in Finding of Fact 41. Accepted in Finding of Fact 34. Accepted in relevant part in Finding of Fact 38. Accepted in Findings of Fact 20, 22, and 28. Accepted in Finding of Fact 23. Accepted in Finding of Fact 25. Subordinate to Finding of Fact 25. Accepted in Finding of Fact 24. Accepted in Finding of Fact 29. Accepted in Finding of Fact 34. Accepted in Finding of Fact 47. Accepted in Finding of Fact 47. Accepted in Finding of Fact 47. Rejected in Finding of Fact 48. Rejected in Findings of Fact 50. Rejected in Findings of Fact 48. Subordinate to Finding of Fact 50. Subordinate to Finding of Fact 50. Unable to determine. Unable to determine. Accepted. Unable to determine. Rejected in Finding of Fact 45. Accepted in Finding of Fact 47. Accepted in Finding of Fact 47. Accepted in Finding of Fact 47. Accepted in Finding of Fact 47. Accepted in Finding of Fact 47. Accepted in Finding of Fact 47. Accepted in Finding of Fact 28. Issues not reached due to Humana's Voluntary Dismissal. Issues not reached due to Humana's Voluntary Dismissal.
The Issue The issue in this case is whether Respondent committed the allegations in the notice of intent to assign a conditional license and, if so, whether Petitioner should have changed the rating of Respondent's license from standard to conditional for the period March 8 through May 30, 2001.
Findings Of Fact Petitioner is the state agency responsible for licensing and regulating nursing homes inside the state. Respondent operates a licensed nursing home at 5405 Babcock Street, Northeast, in Palm Bay, Florida (the "facility"). Petitioner conducted an annual survey of the facility that Petitioner completed on March 8, 2001 (the "March survey"). Petitioner noted the results of the survey on a Health Care Federal Administration form entitled "Statement of Deficiencies and Plan of Correction." The parties refer to the form as the HCFA 2567-L or the "2567". Petitioner conducted a follow-up survey of the facility that Petitioner completed on April 17, 2001 (the "April survey"). The 2567 is the document used to charge nursing homes with deficiencies that violate applicable law. The 2567 identifies each alleged deficiency by reference to a tag number (the "tags"). Each tag on the 2567 includes a narrative description of the allegations against Respondent and cites a provision of the relevant rule or rules in the Florida Administrative Code violated by the alleged deficiency. In order to protect the privacy of nursing home residents, the 2567 and this Recommended Order refer to each resident by a number rather than by the name of the resident. There are five tags at issue in this proceeding. The March survey cites two Class II deficiencies and three Class III deficiencies. The April survey cites repeat violations of three Class III violations. In this case, Section 400.23(8)(b) and (c), Florida Statutes (2000) establishes the deficiency classifications referred to as Classes II and III. All statutory references in this Recommended Order are to Florida Statutes (2000) unless otherwise stated. Section 400.23(8)(b) defines Class II deficiencies as those: . . . which the agency determines have a direct or immediate relationship to the health, safety, or security of the nursing home facility resident. . . . Section 400.23(8)(c) defines Class III deficiencies as those: . . . which the agency determines to have an indirect or potential relationship to the health, safety, or security of the nursing home facility residents, other than class I or class II deficiencies. The March survey sets forth allegations against Respondent in Tags F224, F282, F314, F325, and F363. Petitioner classifies Tags F224 and F314 as class II deficiencies and Tags F282, F325, and F363 as class III deficiencies. Tag F224 in the March survey generally alleges that Respondent failed to implement policies and procedures to prevent abuse to a resident by another resident. Tag F314 generally alleges that Respondent failed to provide necessary assessment, treatment, and documentation for pressure sores for one resident. Tag F282 generally alleges that the facility failed to provide care and services in accordance with the plan of care for two residents. Tag F325 generally alleges that the facility failed to ensure that one resident maintained acceptable parameters of nutritional status, including body weight. Tag F363 generally alleges that the facility failed to provide menus that meet the nutritional needs of the residents by not following menus for pureed and dysphagia diets. The April survey sets forth allegations against Respondent in Tags F282, F325, and F363. Petitioner classifies each alleged violation as a Class III deficiency. Tag F282 in the April survey generally alleges that Respondent failed to follow a resident’s plan of care by failing to provide a weighted spoon and plate guard. Tag F325 generally alleges that the facility failed to ensure that a resident maintained acceptable parameters of nutritional status, including body weight. Tag F363 generally alleges that the facility failed to ensure that menus designed to meet the nutritional needs of the residents were prepared in advance and followed. Florida Administrative Code Rule 59A-4.1288 establishes the requirement for nursing home facilities licensed by the State of Florida to adhere to federal rules and regulations as found in Section 483 of the Code of Federal Regulations (CFR). In relevant part, the state rule provides: Nursing homes that participate in Title XVIII or XIX must follow certification rules and regulations found in 42 CFR 483, Requirements for Long Term Care Facilities, September 26, 1991, which is incorporated by reference. (All references to rules are to rules promulgated in the Florida Administrative Code in effect on the date of this Recommended Order). Applicable federal and state laws require Petitioner to assign to the deficiencies alleged in the 2567 a scope and severity rating required by federal regulations. In the March survey, Petitioner assigned a "G" rating to Tags F224 and F314, both of which are Class II deficiencies. A "G" rating means that the alleged deficiency was isolated, caused actual harm to one or more residents, but did not involve substandard quality of care. Petitioner assigned a "D" rating to the three Class III deficiencies alleged in Tags F282, F325, and F363 in the March survey. A "D" rating means that there is no actual harm but there is potential for more than minimal harm without actual jeopardy. Petitioner relies on two grounds for changing Respondent's license rating from standard to conditional. When Petitioner alleges two Class II deficiencies in the 2567, as Petitioner did in the March survey, applicable rules require Petitioner to change the rating of a facility's license. Applicable rules also authorize Petitioner to change a facility's license rating when the facility does not correct Class III deficiencies within the time prescribed by Petitioner. Petitioner alleges that Respondent failed to correct three Class III deficiencies alleged in Tags F282, F325, and F363 in the March survey by the time Petitioner conducted the April survey. Effective March 8, 2001, Petitioner changed the rating of the facility's license from standard to conditional. Effective May 31, 2001, Petitioner changed the rating of the facility's license from conditional to standard. The allegations in Tag F224 in the March survey pertain to two residents in the dementia unit of the facility who are identified individually as Resident 1 and Resident 13. Tag F224 in the March survey alleges that the facility failed to meet the requirements of 42 CFR Section 483.13(c). The federal regulation provides in relevant part: The facility must develop and implement written policies and procedures that prohibit mistreatment, neglect and abuse of residents and misappropriation of resident property. The facility must not use verbal, mental, sexual, or physical abuse, corporal punishment, or involuntary seclusion. The federal regulation is applicable to nursing homes in Florida pursuant to Rule 59A-4.1288. Tag F224 does not allege that the facility failed to develop the written policies required by 42 CFR Section 483.13(c) and Rule 59A-4.1288. Rather, Tag F224 alleges that Respondent failed to implement its policy. Tag F224 alleges that the facility failed to provide care and services to Resident 13 to prevent the resident from sexually intimidating a female resident identified as Resident 1. Tag F224 further alleges that Resident 13 had a past history of abusive and aggressive behavior to other residents but was not reassessed, "care planned," and monitored. The allegations in Tag F224 are based on observations of one of Petitioner's surveyors who participated in the March survey. On March 5, 2001, the surveyor observed Resident 13 in the dementia unit standing over Resident 1. The surveyor did not observe any overt sexual misconduct by Resident 13. Rather, the surveyor concluded that sexual misconduct occurred because she determined that Resident 13 was "invading [the female resident's] space," Resident 1 appeared "very anxious," "nervous," and "uncomfortable", and screamed for 15 minutes for Resident 13 to leave. The surveyor also relied on the history of Resident 13 to conclude that Resident 13 engaged in sexual misconduct on March 5, 2001. Resident 13 had, on two occasions, previously expressed a desire to have sex with female residents in the dementia unit and on other occasions had wandered into the rooms of female residents. Based on the inappropriate sexual statements by Resident 13 prior to March 5, 2001, the surveyor alleged in Tag F224 that Resident 13 engaged in sexual misconduct with Resident 1 on March 5, 2001. The preponderance of evidence does not show that Resident 13 engaged in sexual misconduct on March 5, 2001, by standing in front of Resident 1. Resident 13 did not engage in any overt sexual act or gesture. Resident 13 did not utter any inappropriate sexual comments. Resident 13 suffered from dementia and was elderly. He was mentally incapable of forming the requisite intent to sexually intimidate Resident 1 and was physically incapable of carrying out any such intent. In the absence of any overt sexual misconduct on March 5, 2001, the only evidence to support the allegation of sexual misconduct in F224 is the inference of the surveyor based on the gender difference between Residents 13 and 1 and the past history of inappropriate sexual statements by Resident 13. The inference of the observer does not satisfy the requirement for a preponderance of the evidence. The resident’s physician was qualified as an expert witness without objection. The physician testified that he was aware of Resident 13’s aggressive behavior, including the two occasions on which the resident expressed a desire to have sex with female residents. However, such incidents are typical of demented residents, do not reflect that Resident 13 was going to attack other residents in the dementia unit, and do not require any alteration to the care plan that was already in place. The only evidence that Petitioner provided to the contrary was the non-expert opinion of its surveyor. The non- expert opinion of the surveyor was insufficient to refute the physician’s expert opinion. Resident 13 suffered from severe cognitive impairment and was not physically or mentally capable of premeditating a plan to sexually intimidate Resident 1 and then carry out that plan. Resident 1 was paranoid of men. Her response to the encounter with Resident 13 was precipitated by her paranoia rather than by Resident 13's intent to sexually intimidate Resident 1. Although Resident 13 voiced a desire to have sex with other residents on two occasions during his stay at the facility, he never acted on those statements and was physically and mentally incapable of acting on them. On those two occasions, Respondent monitored Resident 13 closely but the resident did nothing to indicate that he would act on his stated desires or that he even remembered voicing them. Petitioner did not allege that Resident 13 engaged in any behavior on March 5, 2001, other than sexual misconduct. Even if Tag F224 were to have alleged that Resident 13 engaged in abuse other than sexual abuse, the preponderance of the evidence failed to show that Resident 13 engaged in non-sexual abuse. As a threshold matter, the evidence that the incident lasted for 15 minutes is not credible. It is implausible that a surveyor would allow apparent sexual intimidation to continue after she perceived the incident to be sexual intimidation, much less allow Resident 1 to endure such intimidation for 15 minutes. The surveyor testified that she could not locate a certified nursing assistant ("CNA") on the dementia unit when the incident occurred on March 5, 2001. The dementia unit is a locked unit comprised of resident rooms that open at regular intervals along a 60-foot hallway, and an activities room. There were two CNAs on duty at the time. One of those CNAs was in the hallway at the time of the alleged incident. The surveyor did not inform any member of the staff or administration at the facility that the incident had occurred before Petitioner provided Respondent with the allegations in the 2567 at the conclusion of the March survey. Resident 13’s primary behavior problem did not involve physical aggression toward other residents. Rather, the primary behavior problem was Resident 13's tendency to become aggressive with staff when they attempted to provide personal care, especially that care required for the resident's incontinence. Petitioner incorrectly concluded that the inappropriate behavior by Resident 13 indicated that he was a risk to assault or intimidate other residents. Resident 13’s historical experience at the facility did not involve aggression toward other residents. Instead, Resident 13 directed his aggressive behavior to situations with staff who were attempting to provide personal care for him. Irrespective of the proper characterization of Resident 13's behavior on March 5, 2001, the behavior did not occur because of any failure by the facility to assess Resident 13 or to develop and implement appropriate care plans to address the Resident 13's inappropriate behavior. Respondent acknowledged that Resident 13 wandered the hall, wandered into residents’ rooms, occasionally urinated in inappropriate places, and occasionally made inappropriate sexual remarks. However, those behaviors are typical of residents who suffer from dementia, and the inappropriate behavior cannot be eliminated through a care plan. Facility staff knew to monitor Resident 13 and to re- direct him if he engaged in inappropriate behavior that affected other residents. The chart for Resident 13 is replete with instances of staff consistently implementing those interventions. The care plan for Resident 13 directed staff to approach him calmly, let the resident choose the timing of his care, assess him for pain as a potential cause of agitation, and leave the resident alone and approach him later if the resident became upset during care. All of these interventions were appropriate for the identified behavior problem, and the record is replete with instances of the successful implementation of appropriate interventions. A physician saw Resident 13 and evaluated the resident almost weekly. The physician was aware of and assisted in the evaluation of the resident’s behavior. The physician considered several alternative interventions including the use of anti- anxiety medications to address the resident’s aggressiveness. The physician called in a psychiatric nurse practitioner to evaluate the resident and to recommend medications that might be effective in controlling aggressive episodes. At various times during the course of Resident 13’s stay at the facility, the physician prescribed Seraquil, Risperdal, BuSpar and Ativan for the resident. When aggressive incidents occurred, staff administered these medications with positive effects. Petitioner offered no specific evidence that any intervention used by the facility was not appropriate or that there was another intervention that the facility failed to identify and implement that would have changed any of the inappropriate behavior. Rather, the surveyor concluded that whatever the facility did was inappropriate because Resident 13’s behavioral problems did not subside or disappear while he was at the facility. The surveyor's conclusion fails to adequately understand dementia. The inappropriate behavior displayed by Resident 13 is typical of residents in a dementia unit and cannot be eliminated. Petitioner did not prove that Respondent failed to adequately reassess Resident 13. The resident’s medical record is replete with examples of efforts by the staff to continually re-evaluate the resident and to modify care plan approaches. The facility conducted quarterly re-assessments of the resident. The facility required staff to chart all incidents of inappropriate behavior in the resident’s medical record in an effort to identify any triggering events. The facility provided staff with in-service training for Resident 13 by the resident’s physician. The scope of the training encompassed the care of residents with dementia but focused in particular on the care that was required for Resident 13. The physician wanted to assure that Resident 13 would not become over-medicated and implemented frequent assessments and readjustments of the dosages of the resident's medications. Petitioner offered no evidence that Respondent failed to assess the resident in a timely manner or that any assessment performed by the facility was inappropriate. Petitioner did not allege in the March survey that the incident between Residents 13 and 1 was a result of Respondent's failure to consistently implement Respondent's policy regarding investigations of abuse. Therefore, any evidence relevant to such an allegation at the hearing is irrelevant to the allegations for which Petitioner provided adequate notice in the March survey. A contrary ruling would violate fundamental due process requirements for notice of the charges that substantially affect Respondent's license to operate the facility. Assuming arguendo that Petitioner can prove charges at the hearing that were not included in the allegations in the March survey, Petitioner's surveyor testified at the hearing that the incident she observed on March 5, 2001, occurred because the facility did not implement its policy and procedure regarding investigations of abuse of residents. As evidence of Respondent's failure to implement its policy, the surveyor contended that the facility did not properly investigate another incident described in nursing notes on January 31, 2001, before the March survey. In the January incident, the nursing notes indicated that Resident 13 made sexual advances to other residents. The implication is that the facility would have done something different with the resident had it properly investigated the January incident and would have, in turn, been able to prevent the occurrence of the incident the surveyor observed on March 5, 2001. Respondent maintains an adequate anti-abuse policy. Respondent’s anti-abuse policy requires its designated staff members to investigate and report to abuse agencies, if necessary, any suspected incidence of abuse of its residents. However, the facility did not fail to implement this policy with regard to Resident 13. Abuse is defined in Respondent's policy as the "willful infraction [sic] of injury . . . resulting in physical harm, pain or mental anguish." Due to Resident 13's dementia, he was not capable of willfully inflicting harm on anyone. No facility investigator could reasonably conclude that an incident involving Resident 13 constituted abuse within the meaning of the written policy of the facility. Even if the incident described in the January 31, 2001, nursing notes were relevant to the allegations in the March survey, Petitioner failed to show that the incident which the surveyor observed on March 5, 2001, was the product of any failure by Respondent to implement its policy on January 31, 2001. The facility’s director of nursing adequately investigated the incident described in the nursing notes on January 31, 2001, and determined that Resident 13 made no sexual advances to anyone and did not direct any inappropriate sexual comments to other residents. Rather, the investigation found that Resident 13 made inappropriate sexual comments to a CNA. Staff appropriately monitored Resident 13 after he made that statement to the CNA, and Resident 13 did nothing to act on the statement. The director of nursing notified Resident 13’s physician, and the physician determined there was no need to alter the resident’s care plan. Petitioner failed to show that the deficiency alleged in F224 was a Class II deficiency. Petitioner presented no evidence that the incident the surveyor observed on March 5, 2001, was anything other than an isolated incident or presented a threat of harm to other residents. Tag F314 alleges that Respondent violated 42 CFR Section 483.25(c). The federal regulation requires, in relevant part: Pressure Sores. Based on the comprehensive assessment of a resident, the facility must ensure that— A resident who enters the facility without pressure sores does not develop pressure sores unless the individual’s clinical condition demonstrates that they were unavoidable; and A resident having pressure sores receives necessary treatment and services to promote healing, prevent infection and prevent new sores from developing. The federal regulation is applicable to nursing homes in Florida pursuant to Rule 59A-4.1288. The March survey alleges in Tag F314 that the facility failed to provide required treatment and services to Resident 2. The surveyor determined the facility was out of compliance after she determined that Resident 2 had pressure sores. The surveyor based her findings on her observation of Resident 2 and a review of the records. In the nursing notes of February 22, 2001, the facility noted small open areas to the left thigh, back of scrotum, and buttocks. On March 5, 2001, the resident’s medical record indicated that the resident had two reddened areas on his buttocks. On March 6, 2001, the surveyor observed that the resident had two open areas on his right buttock and two on his scrotum. Petitioner charged in F314 in the March survey that these areas were pressure sores, and that the areas identified on March 6th were those which had been initially identified on February 22, 2001. Petitioner further charged that the facility failed to provide necessary treatment and services because staff failed to notify the resident’s physician and obtain a treatment order to the areas in accordance with the facility's policy relating to pressure sore care. A threshold issue is whether the reddened areas on Resident 2 were pressure sores or were reddened areas that did not satisfy Petitioner's definition of a pressure sore. If the areas were not pressure sores, Petitioner acknowledges that there would be no deficiency and no violation of the facility's pressure sore policy. The guidelines promulgated by Petitioner to guide its surveyors in the interpretation of the standard applicable under Tag F314 define a pressure sore as: . . . ischemic ulceration and/or necrosis of tissues overlying a bony prominence that has been subjected to pressure, friction or sheer. The areas identified on February 22, 2001, were located on Resident 2’s buttocks, scrotum, and thigh. None of those areas were located over any bony prominence within the meaning of Petitioner's promulgated definition of a pressure sore. Additionally, the areas identified on February 22nd were healed the next day. Pressure sores do not typically heal overnight. A nurse practitioner examined the areas identified on March 5th and 6th during the survey. The nurse practitioner diagnosed those reddened areas as a rash. Petitioner relies on records that identify the reddened areas on forms that the facility uses for both pressure sores and reddened areas that are not located over a bony prominence. For convenience, the facility uses a single form to identify both reddened areas and pressure sores. Petitioner seeks to rely on the facility forms, including elements of the plan of care on such forms, as though they were admissions by the facility that define pressure sores and then attempt to require the facility to prove the areas are not pressure sores. Petitioner is bound by its own definition of a pressure sore, cannot deviate from that definition, and cannot rely on a different definition as a basis for disciplinary action against the licensee. Petitioner limits the definition of a pressure sore to those ischemic ulcerations and/or necrosis of tissues that overlie a bony prominence. Those ischemic ulcerations and/or necrosis of tissues that do not overlie a bony prominence are not pressure sores within the meaning of the definition adopted by the state agency. The use by the facility of pressure sore treatment forms and the use of the term pressure sore in the medical records does not create a bony prominence where none exists. The preponderance of evidence shows that the reddened areas at issue were not located over a bony prominence. Clearly, there is no bony prominence in the scrotum, thigh, or buttocks where the reddened areas were located on Resident 2. Assuming arguendo that the areas were pressure sores, Respondent provided all treatment and services to the areas necessary to promote their healing. The facility treated the areas identified on February 22, 2001, by cleansing and application of Lantiseptic, a skin protector. The effectiveness of the treatment is reflected by the complete healing of the areas on the next day. Facility staff properly notified the treating physician and treated the areas identified on March 5th with Lantiseptic. A physician’s assistant examined the areas identified in the March survey and confirmed the use of Lantiseptic on the areas. The surveyor found no record of any plan of care for the pressure sores alleged in the March survey. The facility subsequently produced a note by a nurse practitioner dated March 6, 2001, stating that Lantiseptic was applied to a rash on the buttocks and scrotum, a doctor’s order for treatment, and a care plan for pressure sores after the physician’s note of February 23, 2001. The surveyor testified that the additional documents did not alter her testimony that the areas were pressure sores and that the facility failed to provide an adequate plan of care. The testimony of the surveyor does not refute the preponderance of evidence at the hearing. The areas at issue did not overlay a bony prominence. In any event, Petitioner failed to show that the deficiency alleged in F314 in the March survey was a Class II deficiency. Even if the areas were pressure sores and it were determined that the facility failed to provide necessary treatment and services, the evidence does not demonstrate that the problem suffered by Resident 2 was systemic or likely to occur with other residents in the facility. At most, the evidence demonstrates a limited failure to provide care to one resident. Accordingly, Petitioner failed to prove that the identified deficiency presented an immediate threat to other residents in the facility. At the conclusion of Petitioner's case in chief, Respondent moved to dismiss the allegations in Tag F282 on the grounds that Tag F282 in the March and April surveys alleged different deficiencies and therefore were not relevant or material to a change in license that is based on uncorrected deficiencies. After hearing arguments from both parties, the ALJ granted the motion to dismiss with leave for Petitioner to revisit the issue in its PRO if Petitioner could provide legal authority to support its position. Petitioner argues in its PRO that the ALJ erred in granting the motion to dismiss. However, Petitioner does not cite any legal authority to support its argument. Tag F282 in the March and April surveys alleges that the facility failed to provide care and services in accordance with the plan of care for two residents in violation of 42 CFR Section 483.20(k)(ii). The federal regulation provides in relevant part: Comprehensive Care Plans. (3). The services provided or arranged by the facility must— (ii) Be provided by qualified persons in accordance with each resident’s written plan of care. The federal standard is applicable to nursing homes in Florida pursuant to Rule 59A-4.1288. In the March survey, Tag F282 did not allege that Respondent provided services to residents by unqualified staff. Instead, Tag F282 charged that Respondent's staff incorrectly fastened a clip belt in the back of Resident 21 while she was in her wheel chair and failed to toilet her once in accordance with a physician’s order. In addition, Tag F282 alleged that staff did not weigh Resident 3 weekly as required by his care plan. However, a preponderance of the evidence showed that the facility did not miss any required weights after January 13, 2001. In the April survey, Tag F282 did not allege that Respondent failed to correct the deficiencies alleged in the March survey regarding Residents 21 and 3. Nor did Tag F282 allege that Respondent failed to comply with the plan of corrections submitted by Respondent after the March survey. Rather, Tag F282 in the April survey alleged that Respondent failed to provide a plate guard and weighted spoon for Resident 7 in violation of a physician's order. Petitioner argues that the alleged deficiencies in Tag F282 in the March and April surveys, pertaining to Residents 21 and 7, respectively, involved the failure to comply with a physician's order and, therefore, represent uncorrected deficiencies. Even if Petitioner's definition of an "uncorrected deficiency" were accepted, it would not be dispositive of the issue. The evidence showed that the physician who ordered the weighted spoon and plate guard for Resident 7 terminated the order at the conclusion of the April survey. Even if Respondent failed to follow a physician's order for Residents 21 and 3 in the March survey, Respondent did not fail to follow a physician's order for Resident 7 during the April survey. Moreover, the termination of the physician's order evidences a medical determination that the failure to comply with the order did not cause any harm to Resident 7. In any event, the definition of an "uncorrected deficiency" asserted by Petitioner is not persuasive. Notwithstanding the request of the ALJ, Petitioner did not submit any legal authority to support its asserted definition of the phrase "uncorrected deficiency." In the absence of a technical definition established by statute, rule, or judicial precedent, the phrase "uncorrected deficiency" is properly construed in accordance with the plain and ordinary meaning of its terms. The allegations in Tag F282 in the March survey are rooted in a physician’s order that called for a clip belt to be placed around Resident 21 while she was in her wheelchair. The purpose of the order was to guard the safety of Resident 21. The order further directed staff to check the belt every thirty minutes and release it every two hours to toilet the resident. During the March survey, a surveyor observed that staff had placed the clip belt on Resident 21 improperly on one day, and further determined that the resident had not been taken to the toilet. Based upon that information, the surveyor charged that the facility failed to follow the doctor’s order for checking and releasing the belt. The surveyor’s observations established, at most, a single isolated instance of failure to follow the care plan for Resident 21. The surveyor's observations failed to establish a consistent failure to implement the care plan. The alleged deficiency presented no potential for harm to Resident 21. Resident 21 was cognitively alert and could notify staff if she needed to be toileted or needed her belt removed. At the time that the surveyor observed Resident 21, the resident was in a supervised setting with staff readily available to her in the event she needed attention. She was not shown to have experienced any incontinent episode or to have even requested that she be toileted or otherwise released from the belt. Petitioner acknowledges that any failure by staff to remove the resident’s belt during this time presented nothing more than a minimal risk of harm to the resident. Resident 3 was admitted to the facility on January 13, 2001, and had a care plan that called for the resident to be weighed weekly. Between the resident’s admission to the facility and the March survey, the facility weighed the resident in accordance with the care plan except for one omission in late February. This one instance of failing to do a weekly weight did not demonstrate a consistent failure to implement the care plan. Petitioner provided no evidence that this single instance of failing to weigh the resident caused the resident harm or presented even the potential for harm to the resident. After the March survey, Respondent submitted a plan of correction to address the alleged deficiencies relating to Tag F282. Applicable law precludes Respondent from arguing the validity of the alleged deficiencies in its plan of correction. In the plan of correction, Respondent indicated that it would focus on restraints and weekly weights to insure that the alleged deficiencies would not re-occur. Petitioner accepted the plan of correction and, in April, did not find that staff at the facility failed to properly apply restraints to residents, failed to do weekly weights for residents, or otherwise failed to implement the plan of correction. Petitioner charged that Respondent violated Tag F282 in April because the facility failed to provide a weighted spoon and plate guard to Resident 7 as required by a physician’s order. It is uncontroverted that the plan of correction adopted to address the March F282 deficiency pertaining to Residents 21 and 3 did not address the deficiency alleged in Tag F282 in the April survey with respect to Resident 7; and would not have prevented the deficiency alleged in the April survey pertaining to Resident 7. Accordingly, the deficiency alleged in Tag F282 in the April survey pertaining to Resident 7, even if true, did not represent an "uncorrected" deficiency. Instead, the deficiency alleged in Tag F282 in the April survey represented a new deficiency. In any event, Petitioner failed to demonstrate that the alleged failure of the facility to comply with any of the orders at issue denied residents any necessary care and treatment, or presented even the possibility that the residents would be harmed. The physician ordered the weighted spoon and plate guard for Resident 7 due to the loss of dexterity in the resident's hand needed to assist him in the consumption of his meals. Even though the plate guard and spoon were not provided to the resident after they were ordered for him, the resident had no trouble with meal consumption. His medical records reflected that he consistently consumed his meals and that he gained almost 20 pounds during the time period that the spoon and plate guard were ordered. The weight gain and food consumption are significant because the facility initially admitted the resident as a hospice resident. The absence of any medical necessity for the physician's order requiring the spoon and plate was confirmed when the facility contacted the doctor during the survey, and the doctor issued an order discontinuing the use of the plate guard and spoon. Tag F325 in the March and April surveys alleges that the facility failed to comply with the requirements of 42 CFR Section 483.25(i)(1). The federal regulation provides, in pertinent part: Nutrition. Based on a resident’s comprehensive assessment, the facility must ensure that a resident-- Maintains acceptable parameters of nutritional status, such as body weight and protein levels, unless the resident’s clinical condition demonstrates that this is not possible. . . . The federal regulation applies to nursing homes in Florida pursuant to Rule 59A-4.1288. Tag F325 alleges in the March survey that Respondent did not maintain acceptable parameters of body weight for Resident 4. Respondent does not dispute this charge. Tag F325 alleges in the April survey that Respondent did not maintain acceptable parameters of body weight for Resident 9. Resident 9 lost approximately 20 pounds between August of 2000 and April 8, 2001. However, Petitioner provided no evidence that the weight the resident lost was "unacceptable" or caused by inadequate nutritional care. Petitioner neither contended nor demonstrated that a 20-pound weight loss over seven or eight months violates any accepted dietary or health standard. Even if such a rate of weight loss were an "unacceptable nutritional parameter," Petitioner provided no evidence that Respondent failed to properly monitor Resident 9's weight, assess his dietary needs, provide the resident with an appropriate diet, or otherwise caused the weight loss. Rather, the resident’s medical records demonstrate on-going assessments of the resident by the dietary staff and numerous interventions to address the resident's weight. Petitioner alleges that Respondent failed to comply with several directives for supporting care for Resident 9. Facility staff had been directed to cue Resident 9 to use a "chin tuck" to address his risk of aspiration due to swallowing difficulties. Staff were directed to cue the resident to cough and tuck his chin anytime the staff determined that the resident's voice sounded wet. During the survey, the surveyor observed three meals in which the staff provided no cues to Resident 9. However, no cues were required of staff if the resident did not have a wet sounding voice, and the surveyor acknowledged that she did not hear the resident cough during any of her meal observations. Even if cues were required to be given to Resident 9 during the meals observed by the surveyor, the surveyor did not demonstrate that the failure to cue the resident had any negative impact either on the resident's ability to eat or on the resident's weight. Rather, the evidence shows that Resident 9 weighed 151.6 pounds on April 8, 2001, and weighed 160.2 pounds on April 20, 2001, the day after Petitioner completed the April survey. Thus, the failure of the staff to cue the resident during the observed meals did not violate a nutritional parameter. The surveyor testified that the facility failed to provide fortified foods to Resident 9 during the April survey in violation of the resident's dietary care plan. The allegations in Tag F325 in the April survey do not include the allegation of inadequate care to which the surveyor testified during the hearing. In the absence of adequate notice in the written allegations, the testimony of the surveyor cannot be used as a basis for any finding of deficiency. Even if the testimony were considered as a basis for a finding of fact, the failure to provide fortified foods did not violate any nutritional requirements. Resident 9's wife provided the resident with "home-cooked" meals to satisfy his food preferences. Petitioner acknowledges that the meals the wife supplied effectively precluded the resident from eating fortified foods provided by the facility. Moreover, Resident 9 gained weight between April 8 and 17, 2001. Tag F363 alleges in the March and April surveys that the facility failed to meet the requirements of 42 CFR Section 483.35(c)(1)-(3). The federal regulation provides in relevant part: (C) menus and nutritional adequacy. Menus must-- Meet the nutritional needs of residents in accordance with the recommended dietary allowances of the Food and Nutrition Board of the national Research Council, National Academy of Sciences; Be prepared in advance; and Be followed. The federal regulation applies to nursing homes in Florida pursuant to Rule 59A-4.1288. Tag F363 alleges that the facility’s menu for March 8, 2001, included cranberry sauce and that the facility did not serve cranberry sauce to 11 residents in the rehabilitation dining room. The surveyor who made this charge did not evaluate the meal actually provided to the residents for its nutritional adequacy. Rather, the surveyor cited the facility because the facility failed to comply with the literal terms of the printed menu. Respondent does not dispute that the facility did not serve cranberry sauce to 11 residents in its rehabilitation dining room on the day in question. The facility’s menu for March 8, 2001, consisted of roast turkey, poultry gravy, cornbread dressing, peas and carrots, mandarin oranges, bread, and cranberry sauce. The menu called for one-half tablespoon of cranberry sauce. The omission was not significant. The dietician did not include the cranberry sauce in calculating the nutritional content of the meal. The cranberry sauce was only a garnish to the plate. The remainder of the food items offered in the meal met all of the requirements for residents’ nutritional needs. Any failure by Respondent to provide the cranberry garnish presented no risk of harm to any resident. Tag F363 alleges in the April survey that Respondent provided a saltine cracker during one meal to a resident who required a pureed diet. Tag F363 also alleges that Respondent gave a bologna sandwich to a resident whose food preferences did not include bologna sandwiches. Petitioner provided no evidence that either of these residents received nutritionally inadequate meals. Petitioner’s apparent concern with the resident who was served the cracker was that she might attempt to eat it and choke on it because she required pureed foods and the cracker was not pureed. The surveyor who observed the resident acknowledged that the resident did not eat the cracker. She also acknowledged that there is a regulatory standard which requires a facility to provide a therapeutic diet to residents who require such a diet, and that a pureed diet is a therapeutic diet. Accordingly, this observation is, at most, a violation of that standard, not Tag F363, and presented nothing more than a minimal chance of harm to the resident. Petitioner failed to show that the resident who did not get the bologna sandwich was deprived of any required nutrition, or that placing a bologna sandwich in front of the resident created any risk of harm to the resident. The surveyor acknowledged that the sandwich did not remain in front of the resident for long and that the facility immediately corrected the situation by providing the resident with an acceptable substitute. Tag F363 also alleges that the facility posted for resident observation the same menu on Monday, April 17, 2001, that the facility posted on Sunday, April 16, 2001. The regulation at issue does not address how or even if menus must be posted in a nursing home. Petitioner failed to explain why posting the same menu on consecutive days would violate any regulation, rule, or statute. Respondent acknowledged that the Sunday menu was not removed on Monday, but demonstrated that different, nutritionally adequate meals were planned and served to residents on each of those days.
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 finding that Petitioner failed to show by a preponderance of the evidence that a factual basis existed upon which Petitioner should have issued a Conditional rating to Respondent on March 8, 2001, and revising the March 8 and April 16, 2001, 2567 reports by deleting the deficiencies described under Tags F224, F314, F282, F363 and F325 (April only); and issuing a Standard rating to Respondent to replace the previously issued Conditional rating that was in effect from March 8, 2001, until May 31, 2001. DONE AND ENTERED this 4th day of March, 2002, in Tallahassee, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of March, 2002. COPIES FURNISHED: Dennis L. Godfrey, Esquire Agency for Health Care Administration 525 Mirror Lake Drive, North, Room 310L St. Petersburg, Florida 33701 R. Davis Thomas, Qualified Representative Broad & Cassel 215 South Monroe Street, Suite 400 Tallahassee, Florida 32302 Diane Grubbs, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Suite 3431 Tallahassee, Florida 32308 William Roberts, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive Suite 3431 Tallahassee, Florida 32308
