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 from June 13, 2001, through July 11, 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 710 North Sun Drive, Lake Mary, Florida 32746 (the "facility"). Petitioner conducted a complaint investigation on June 13, 2001 (the "June survey"). Petitioner noted the results of the complaint investigation on the 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". 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 of 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. Tag F314 is the only allegation at issue in this proceeding. Tag F314 generally provides that a facility must ensure that a resident who enters the facility without pressure sores does not develop pressure sores unless they were unavoidable; and the resident having pressure sores receives necessary treatment and services to promote healing, prevent infection and prevent new sores from developing. Tag F314, in relevant part, alleges that the facility: . . . did not insure the prevention of pressure sore development or provide that necessary treatment for pressure sores which had developed in the case of one of four residents. Applicable federal and state laws require Petitioner to assign a rating to the deficiency alleged in the 2567. The rating required by federal law is for scope and severity. Petitioner assigned a G rating to Tag F314. A G rating means that the alleged deficiency was "isolated." State law requires Petitioner to assign a class rating. Petitioner assigned a Class II rating to the deficiency alleged in Tag 314. A Class II rating is authorized in Section 400.23(8)(b), Florida Statutes (2001), for any deficiency that has "compromised the resident's ability to maintain or reach his or her highest practicable physical, mental and psychosocial well-being, as defined by an accurate and comprehensive resident assessment, plan of care, and provision of services." The Class II rating is the only rating at issue in this proceeding. (All statutory references are to Florida Statutes (2001) unless otherwise stated.) When Petitioner alleges a Class II deficiency in the 2567, applicable rules require Petitioner to change the rating of the facility's license. Effective June 12, 2001, Petitioner changed to rating of the facility's license from standard to conditional. Petitioner conducted a follow-up survey on July 11, 2001 (the "July survey"). Petitioner determined that Respondent had corrected the deficiency alleged in Tag F 314 in June. Effective July 11, 2001, Petitioner changed the rating of the facility's license from conditional to standard. The Class II rating from Petitioner rests on the allegations in Tag 314. The first allegation is that Respondent did not prevent the development of a pressure sore on the right buttock of Resident 1. The second allegation is that the facility failed to provide the treatment necessary to treat the pressure sore. The facility admitted Resident 1 on October 19, 2000. Between the date of admission and June 4, 2001, Resident 1 did not develop any pressure sores. However, on June 4, 2001, a certified nursing assistant ("CNA") noticed an open area on the resident’s right buttock while showering the resident. The CNA notified the attending nurse. A threshold issue is whether the area of concern on Resident 1 was a pressure sore or a blister caused by incontinence and chafing from the resident's diaper. The nursing staff described the identified area on a document in the resident’s medical chart called a "pressure ulcer report." Petitioner contends that the use of a "pressure ulcer report" by Respondent is an admission by Respondent and that Respondent has the burden to prove that the area was not a pressure sore. However, the burden of proof is on Petitioner to show that the area of concern is a pressure sore. Petitioner promulgates a written definition of a pressure sore in the guidelines that Petitioner requires its surveyors to use in interpreting the regulatory standard of Tag F314. Petitioner defines a pressure sore as: . . . ischemic ulceration and/or necrosis of tissues overlying a bony prominence that has been subjected to pressure, friction or sheer. Section 120.68(7)(e)3 prohibits Petitioner from deviating from its officially stated policy unless Petitioner explains the deviation. Petitioner failed to provide any evidence for deviating from its written definition of a pressure sore. Ischemic ulceration or necrosis of tissue that has been subjected to pressure, friction, or sheer is not a pressure sore, as defined by Petitioner, if the area does not overlie a bony prominence. The parties disagree as to the location of the area of concern on Resident 1. Petitioner's surveyor is an expert in nursing practices and procedures. She observed the area of concern on Resident 1 during the June survey. The surveyor testified at the hearing that the area of concern was located over the resident’s ischial tuberosity; i.e., the bone on which the resident placed her weight when she sat. The facility's director of nurses is also an expert in nursing practices and procedures. The director observed the area immediately after the survey and testified that it was located in the fleshy part of the resident’s buttocks and was not over any bony prominence. The preponderance of evidence did not show that the area of concern on Resident 1 was located over a bony prominence. The area of concern was located in the same location as the elastic band of the diaper that the resident wore for her incontinence. The area of concern was likely caused by the combination of the resident’s incontinence and chafing from the diaper. The pressure ulcer report prepared by the nursing staff contains the outline of a human body on which the nursing staff marked the location of the area of concern on Resident 1 when staff first identified the area. The report shows that the area of concern is located in the fleshy part of the resident’s right buttock. The report did not indicate that the area of concern was located in the area on which the resident would have placed her weight when she was seated or prone. Even if the area of concern were located at the ischial tuberosity other factors belie a diagnosis of pressure sore. Pressure sores typically involve deep tissue damage, have drainage and odor, and require a long time to heal. The pressure ulcer report indicated that the area identified on the resident was small in size, had scant odor and no drainage, and healed by July 3, 2001. All of the surrounding facts and circumstances indicate that the area of concern on Resident 1 was not a pressure sore but was a blister caused by chafing from the diaper the resident wore for her incontinence. The "pressure ulcer report" for Resident 1 classified the area of concern as a stage II. A stage II involves a partial thickness loss of skin layers either dermis or epidermis that presents clinically as an abrasion, blister or shallow crater. The area was further described in the report as being 0.7 by 0.7 centimeters in size with scant serous drainage, no odor, and pink in appearance. The director of nurses testified that the area presented as a "dry blister." Assuming arguendo that the area of concern on Resident 1 was a pressure sore, there are two additional issues to be determined. One issue is whether development of the alleged pressure sore was unavoidable due to the resident’s clinical conditions. The other issue is whether the facility failed to provide the treatment and services necessary to promote healing after the alleged pressure sore developed. Petitioner promulgates guidelines for Tag F324 for use by surveyors in determining whether a pressure sore is unavoidable. The guidelines state in relevant part: . . . a determination that development of a pressure sore was unavoidable may be made only if routine preventative and daily care was provided [by the nursing home]. The guidelines define routine preventative care as: . . . turning and proper positioning, application of pressure reduction or relief devices, providing good skin care, providing clean and dry bed linens, and maintaining adequate nutrition and hydration as possible. The guidelines instruct surveyors to determine whether a facility complies with the foregoing standards "consistently" rather than one hundred per cent of the time. When the facility admitted Resident 1 in October, 2000, she was immobile and had several compromising diagnoses. They included atrial fibrillation; chronic ischemic heart disease and coronary atherosclerosis (diseases of the heart and arteries); abnormal loss of weight; angina pectoris; senile dementia; a kidney infection; and incontinence of both bowel and bladder. The clinical conditions placed Resident 1 at high risk for the development of pressure sores. The surveyor guidelines for Tag F314 state that a resident who is immobile, has continuous urinary incontinence, chronic bowel incontinence, and chronic heart disease is at high risk for the development of pressure sores. At the time of admission, the nursing staff at the facility assessed Resident 1 as being at risk for the development of pressure sores due to her incontinence and immobility. They designed a care plan to prevent the development of pressure sores. The care plan included frequent turning and repositioning of the resident, weekly skin assessments by a nurse, skin checks during care and bathing, and prompt incontinence care. The parties agree that the interventions in the care plan met the regulatory requirements for preventative care under Tag F314. With one exception, Petitioner does not allege that the facility failed to provide routine preventative care to the resident. Respondent does not dispute that the facility did not perform weekly skin checks for three weeks in May preceding the identification of the area of concern on Resident 1. However, the failure to perform those skin checks did not cause Resident 1 to develop a pressure sore. A weekly skin check is a head-to-toe assessment of a resident’s skin by a nurse. Since a nurse can only observe a pressure sore after it has appeared on a resident, this assessment is not preventative in nature. Instead, it is designed to assure that appropriate and immediate treatment can be provided to the area after a reddened area develops. Even if weekly examinations of a resident’s skin were an integral part of a plan intended to prevent the development of pressure sores on Resident 1, the facility necessarily exceeded this standard with regard to the resident’s right buttock where the area of concern actually occurred. Facility staff observed the resident’s buttock more than once a day when the resident received incontinence care, bath, or showers. Consistently through May and June, the resident’s chart shows that the resident was incontinent at least three times a day and that she received a partial bath or full shower at least once a day. On June 4, 2001, facility staff in fact observed a reddened area during the resident's shower. Petitioner submitted no evidence that the facility could or should have been observing the resident’s buttock more frequently than its staff actually did or that the area could have been identified any earlier. The preponderance of evidence shows that the facility consistently implemented the component of its care plan that required monitoring of the resident’s buttock. The care plan for Resident 1 included two other primary components to prevent pressure sores. One component was prompt incontinence care. The other was turning and repositioning of the resident every two hours to relieve pressure over areas susceptible to breakdown. Petitioner alleges that the facility failed to comply with these components during the June survey. Proving that a facility consistently turns and repositions a resident and provides prompt incontinence care is problematic for a facility. Those interventions are routine care. There is no regulation or standard that requires nurses to chart routine care. Because these interventions are not typically charted, a nursing home will not typically have documentary evidence to demonstrate that the interventions were provided to a resident. The facility provided sufficient evidence to show that the interventions of repositioning and prompt incontinence care were provided to Resident 1 during the June survey. The facility provided incontinence care to the resident at least three times a day. With regard to turning and repositioning the resident, the director of nursing testified that she saw staff turning and repositioning the resident prior to the survey. Resident 1 was at high risk of developing pressure sores. If staff had not consistently turned and repositioned the resident and provided prompt incontinence care, it is more likely than not that the resident would have developed serious pressure ulcers on most or all of her weight bearing surfaces. The appearance of one small area on the resident and the absence of any other areas over any bony prominence is persuasive evidence that the facility consistently turned and repositioned the resident and consistently provided her with prompt incontinence care. The final issue is whether the facility provided the treatment to Resident 1 that is necessary for healing of the alleged pressure sore. Petitioner agrees that the facility developed an appropriate care plan for the identified area immediately upon its discovery. An order in the care plan developed after discovery of the alleged pressure sore called for application of a duoderm patch to the wound. Petitioner alleges that the facility did not follow the order because the surveyor observed no patch on the resident during the survey. It is more likely than not that the duoderm patch came off of Resident 1 during an episode of incontinence prior to the time that the surveyor observed the resident. Duoderm patches commonly come off when a resident has an incontinent episode. Regardless of why the patch was not on Resident 1 during the survey, the absence of the patch one time during the survey does not demonstrate that staff consistently failed to comply with the order calling for the patch. The instance observed by Petitioner's surveyor was the only instance identified by the surveyor as a failure to follow the resident's care plan. The resident’s medication administration records demonstrate that facility staff applied the duoderm patch in all other instances in compliance with the doctor’s order. Furthermore, the facility continued to provide the routine preventative care called for by the care plan. Petitioner did not show that the facility consistently failed to follow the care plan for Resident 1 as alleged in Tag F314. The area of concern on Resident 1 healed quickly and progressively after it was discovered. Petitioner offered no evidence that the alleged pressure sore did not heal or that the resident was otherwise harmed as a result of the failure to place a duoderm patch on the resident on June 13, 2001. The pressure ulcer report and nurse’s notes indicate that the wound healed by July 3, 2001. The records noted with each successive entry after June 4, 2001, that the area was smaller in size. The area demonstrated characteristics of healing, including the absence of any odor or drainage, and pink granulating tissue. Resident 1 was at high risk for pressure sores, and pressure sores do not typically heal quickly. The progressive pattern of healing indicates that the facility provided the necessary and effective treatment for the area of concern on Resident 1.
Recommendation Based upon 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 there was no basis upon which the agency could have issued a Conditional rating to Respondent on June 13, 2001, deleting the deficiency described under Tag F314, and issuing a Standard rating to Respondent to replace the previously issued Conditional rating. DONE AND ENTERED this 5th day of March, 2002, in Tallahassee, Leon County, 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 5th day of March, 2002. COPIES FURNISHED: Eileen O'Hara Garcia Agency for Health Care Administration 525 Mirror Lake Drive North Sebring Building, Room 310J St. Petersburg, Florida 33701 R. Davis Thomas, Jr. Broad & Cassel 215 South Monroe Street, Suite 400 Post Office Box 11300 Tallahassee, Florida 32302-1300 William Roberts, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308 Diane Grubbs, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308
The Issue Whether the application of Elysium Rehabilitation Center Inc., (“Elysium”) for a certificate of need (CON) to construct and operate a 120-bed nursing home along with a CON application for an included 20-bed subacute unit in Palm Beach County, Florida, and the application of Good Samaritan Hospital (“Good Samaritan”) for a CON to convert 27 acute care beds to a 27-bed hospital-based skilled nursing unit (SNU), also known as a “subacute unit”, should be approved or denied.
Findings Of Fact AHCA published a “Notice of Community Nursing Home Fixed Need Pool” on April 19, 1996, in the Florida Administrative Weekly, Volume 22, No. 16. In District 9, Subdistrict 4, the published numerical need, as acknowledged by the parties, was zero for the January 1999 planning horizon. The published need resulted from calculation of projected need for additional community nursing beds in accordance with need methodology contained in Rule 59C-1.036(2), Florida Administrative Code. On May 24, 1996, AHCA published a “Notice To Potential Applicants” for CONs. The notice stated the following: In the review of applicants seeking beds from the January, 1999 Nursing Home Fixed Need Pool, as published in the April 19, 1996 F.A.W., which includes the same need for long and short term beds, the agency will consider the need for short and long term beds separately. Those applicants seeking both short and long term [beds] must file applications for each type of bed. As acknowledged by the parties, the notice specifically set out a “Need For Short Term Beds” in AHCA’s Subdistrict 9-4 of zero. Neither the April 19 published fixed need pool or the May 24 notice was challenged by any of the parties. Although the term “subacute” is not defined in federal or Florida law, the weight of expert testimony in this case establishes that for health planning purposes in the current environment, measurement of Medicare certified skilled nursing days or services (“Short Term Beds”) is a fair and reasonable surrogate for “subacute” care. Good Samaritan’s Application By letter of intent and application for CON filed in the batching cycle applicable to the January, 1999 planning horizon, Good Samaritan seeks to convert 27 acute beds at its Palm Beach County facility in AHCA District 9, Subdistrict 4, to a 27-bed subacute unit or SNU. Good Samaritan has attempted to demonstrate a need for the proposed beds through the presentation of an “internal survey,” in addition to calculations under three different methodologies. The internal survey results relied upon by Good Samaritan to show the existence of need is a product of the social work staff of Good Samaritan and its affiliate, St. Mary’s Hospital. The purpose of the survey was to identify patients who could, on the day of the survey, have received subacute as opposed to acute care. The survey results were compiled from 36 patients who, at that time, were in acute care beds and, according to Rehabilitation Services Expert Joan Horvath, needed to be in a subacute program. Survey documentation includes descriptive columns documenting “Reason for SNU Potential” and “Reason for Occupying Acute Bed.” Short, non-specific statements of the “reasons” for a patient’s occupation of an acute bed are listed for most of those surveyed. Reasons are varied with some having little to do with availability of an appropriate subacute bed. Of all survey results, only one patient case arguably reports unavailability of subacute care. There is no contention that attempts were made to provide placement to the patients in the survey. Karen Rivera, AHCA’s CON review consultant testified that the survey “raised more questions than it answered.” Good Samaritan’s application confirms that most patients included in the survey were subsequently placed in free standing SNU facilities without any substantiation by Good Samaritan of unnecessary delays. Good Samaritan has failed to demonstrate or document any lack of patient access to needed services. Dr. Jeffrey Farber, slated to be the medical director of Good Samaritan’s proposed subacute unit, testified “from an anecdotal level” that certain physicians may retain patients longer than necessary in acute care because of a lack of physician comfort with available facilities. Farber is unaware of any quantification of patient need related to systematic or chronic lack of availability of subacute care services. Evidence related to physician convenience or patient preference is not responsive to the rule-based criteria which requires a finding of a lack of reasonable access to appropriate medical care. Reasons advanced by Dr. Farber to support a finding of need for additional access to subacute services are, as he conceded, “those same issues [that] would exist as to any acute care patient at any acute care facility which did not have a subacute care unit.” Several methodologies presented in Good Samaritan’s application seek to support the conclusion that the proposed project is needed. Reliance is primarily on a health planning product called the Subacute Care Market Analysis Model, developed and marketed by Dr. Harold Ting as a means to estimate demand for subacute care in a given market. A “normative” demand model, the Ting methodology attempts to project potential demand for subacute services based on a subjective ideal, the number of patients that should or could have been provided subacute care—as opposed to actual experience with patients. Without regard to any specific infirmities in the Ting theory, the Ting methodology cannot be credited as a means of determining need in this case. It is a proprietary collection of calculations which, as a result, cannot be expressly described or tested. It can be discerned, however, that the theory may be flawed in its application inasmuch as it uses an inflated average length of stay for patients in subacute facilities of 36 days for purpose of need calculation, as opposed to the median length of stay for patients in subacute units in hospitals in Florida of approximately 24 days. An adjustment to calculations for this inflation factor which were then run at the final hearing by Jay Cushman, Good Samaritan’s expert in the field of health planning, did not demonstrate any need for additional hospital-based subacute capacity. Neither of the other two numeric methodologies presented by Good Samaritan at the final hearing demonstrated need for the proposed project sufficient to warrant its approval. Hospital-based SNUs or subacute units, beyond convenience and preference issues, in relation to free standing skilled nursing facilities, offer more immediate availability of emergency and acute services and the possibility that laboratory tests are completed in a shorter time. Good Samaritan maintains that the need pool for community nursing homes published by AHCA on April 19, 1996, is inapplicable to its application, although Good Samaritan filed no challenge to that bed need pool. Since affirmation by the First District Court of Appeal in Health Care and Retirement Corp. v. Tarpon Springs, 671 So.2d 217 (Fla. App. 1st DCA 1996)of Administrative Law Judge James York’s decision invalidating Rule 59C-1.036(1), Florida Administrative Code, no comparative review of SNU beds in hospitals in relation to all community nursing home beds has been conducted and AHCA no longer conducts such reviews. Subsequent to publication of the court’s opinion in Tarpon Springs, AHCA published the fixed need pool for the planning horizon at issue in this case based upon a calculation of need using the same numeric methodology contained in Rule 59C- 1.036(2), Florida Administrative Code. The calculation includes consideration of the entire Subdistrict population, and the need for all of the various categories of services included under the heading of skilled nursing care, including subacute and Alzheimer’s care. AHCA’s calculation also accounts fully for the number and occupancy rates of skilled nursing beds within the Subdistrict’s hospitals and free standing nursing homes. The published fixed need of zero represents “overall” need for skilled nursing beds, including Medicare certified and non-Medicare certified (also referred to as “short term” and “long term”). AHCA’s expert health planner, responsible for CON rule development, testified at final hearing that the need number calculated under the methodology contained in Rule 59C-1.036(2), Florida Administrative Code, represents the “overall” need for all nursing beds except for private contract “sheltered beds” requiring entry fees which are a specific category regulated by another government agency and not available to the public at large. This need number also includes all skilled nursing facility beds, whether located in freestanding nursing homes or hospitals. After determination of overall need, AHCA determined the need for Medicare certified beds in each subdistrict, based upon existing utilization of such beds. In response to the decision in Tarpon Springs, AHCA explored options and proceeded to determine, as reflected in the April 19 and May 24, 1996 notices published in this case, the need for Medicare certified nursing home beds separately from non-Medicare certified or “long term” beds, without regard to the location of those beds in hospitals or nursing homes. AHCA segregated nursing home beds into two groups, Medicare certified and non-medicare certified, for need determinations and comparative review purposes. Under this approach, comparison of applicants is made on the character of the services being provided. Good Samaritan’s position is that AHCA’s need determination is inconsistent with the court’s holding in Tarpon Springs. As established by proof at the final hearing, there has been no showing that subdividing the applications into short-term and long-term services is flawed or irrational. Additionally, Good Samaritan has not shown any rational alternative means of creating subgroups of skilled nursing applications or determining need for short-term beds on anything broader than an institution- specific basis. AHCA’s position is that the actual need methodology in Rule 59C-1.036(2), Florida Administrative Code was not invalidated by Tarpon Springs. The court’s decision in that case is limited to a prohibition of comparative review between hospital-based SNUs or subacute care beds and all community nursing home beds. Elysium’s Application Elysium, like Good Samaritan, did not challenge the April 19, 1996, published notice of the fixed need pool for the January 1999 planning horizon. As noted above, the notice, published in the Florida Administrative Weekly, established a projected bed need of zero (0) for community nursing homes in AHCA’s planning district 9, Subdistrict 4, Palm Beach County. Elysium’s timely filed application for a CON to construct a 120 bed skilled nursing facility containing a 20 bed subacute care unit (medicare certified) and a 16 bed Alzheimer’s Disease and Related Dementia Unit, however, seeks approval pursuant to provisions of Rule 59C-1.036(2)(h) and Rule 59C- 1.030(2), Florida Administrate Code for CON issuance to meet “special circumstances” despite the lack of numeric need. It is Elysium’s contention that elderly Jews who keep kosher are an identifiable ethnic minority in Palm Beach County with unique ethnic, religious, cultural and dietary needs who will be effectively denied access to long term care absent CON issuance. However, the applicant, Elysium Rehabilitation Center, Inc., owns no nursing homes and operates no nursing homes. The applicant has virtually no operating assets and no businesses. Sole shareholder of Elysium is John Fiorella, Jr. He is not a licensed nursing home administrator. He has never worked full time in a nursing home. He has not operated or opened a nursing home. The board of directors of Elysium include Fiorella and his mother and father. Both of the parents are experienced in the nursing home industry, but stopped working in 1986. A related corporation is Elysium of Boca Raton, Inc., which owns an assisted living facility (ALF) in Boca Raton, Florida, but no nursing homes. The ALF has a kosher kitchen. Elysium proposes to locate its nursing home facility on the ALF campus. The proposed facility is a freestanding building to be connected by an enclosed walkway to the ALF operated by Elysium of Boca Raton, Inc. The proposed facility’s connection to the existing ALF is intended to allow residents of the facility to be visited by spouses who are residing in the adjacent ALF, to allow use of common staff elements, and to allow for sharing of the common space of the existing facility. The projected cost of the proposed facility approximates 7.9 million dollars and includes proposals for a 20 bed subacute care unit and a 16 bed Alizheimer’s disease/related dementia unit. Elysium projects 65 percent occupancy in year one and 90 percent occupancy in year two. The proposed payor mix is: 7.1 percent private, 16.6 percent semiprivate, 55.5 percent Medicaid, 16.7 percent Medicare, 0 percent HMO or insurance and 4.2 percent “other”. The facility will admit Jewish and non-Jewish residents. While proposing to “provide a predominantly Jewish environment and meet the dietary laws of glatt kosher for the large number of elderly Jewish citizens residing in the area”, Elysium’s application also documents that the proposed facility will have a “predominately non-Jewish staff.” The proposed nursing home will not have an in-house kosher kitchen since the kosher kitchen at the adjoining ALF has been designated as glatt kosher by the Va’ad Hakashrut section of the Rabbinical Association. Elysium also proposes to offer its residents Hebrew classes, Yiddish discussion groups, religious studies, programs at the local Jewish Community Center and holiday celebrations. Need Per Section 408.035(1)(b) and (2), Florida Statutes And Rule 59C-1036(2), Florida Administrative Code Section 408.035(1)(b) and (2) requires that consideration be given to the availability, need, accessibility, extent of utilization, and adequacy of like and existing health care services in a District. By Rule 59C-1.036(2), Florida Administrative Code, AHCA projects bed need on a county-wide basis. The need formula considers elderly population in a county, projected growth in the elderly population, the occupancy of existing nursing homes, number of licensed and CON-approved beds in a county, and other health variables. The formula projects need for all nursing home services, inclusive of custodial care, Alzheimer/related dementia disease, and subacute care. AHCA has published a zero need for additional nursing home beds in Palm Beach County. Elysium does not dispute AHCA’s finding. Additionally, there are 630 CON-approved, but not yet opened, nursing home beds in Palm Beach County. As established by the testimony at the final hearing of Dan Sullivan, an expert in health care planning and health care finance, the zero fixed need for Palm Beach County is attributable to these already approved beds. Many of the CON-approved beds will serve the same geographic area as that proposed by Elysium. Further, all nursing homes in Palm Beach County provide custodial care, Alzheimer’s care, subacute care, and Medicaid services. As conceded at final hearing by Elysium’s expert in health planning, Sharon Gordon-Girvin, custodial care, Alzheimer’s care, subacute care, and Medicaid services are provided at all nursing homes in Palm Beach County and are not unique or “not normal” services. Jewish residents in Palm Beach County currently receive Alzheimer’s services and subacute services with no problem in regard to clinical outcomes or quality of care issues. Subacute bed need is subsumed within AHCA’s need methodology. The specific subacute disorders proposed to be dealt with by Elysium are commonly provided in any subacute unit and, clinically, subacute care is the same regardless of religion. Per Rule 59C-1.036(2)(h), Florida Administrative Code, proof of need in the absence of fixed need requires proof of an access problem. Documented need means persons must be denied access or demonstrate that actual need exceeds the number of available beds. The testimony of Dan Sullivan at hearing establishes that Elysium’s allegation of unique need is not proven in that there has not been identification of “a single patient who had been denied services or refused services in nursing home” due to a lack of glatt kosher services. The lack of documentation of an “access” problem for glatt kosher food is illustrated by the lack of demand for same. Diane Karolkowski was the admissions director at Menorah House, a Jewish facility, in 1996. An in-house survey conducted by her documented that of 115 patients, only 2 preferred kosher foods. Jewish residents are adequately served at existing nursing homes in Palm Beach County. As established by testimony of Dr. Ira Sheskin, Elysium’s expert in Jewish demography, the majority of Jewish residents in south Palm Beach County nursing homes are in nursing homes other than Jewish nursing homes. About 60 percent of patients at Intervenor Manor Care’s facility are Jewish, including orthodox and conservative Jews. Kosher foods are made available to residents requesting same, but such foods are rarely requested by even the orthodox Jewish residents. Manor Care’s Boynton, Florida facility has conducted studies of residents’ food preferences with the result that residents simply do not prefer the kosher foods. The ALF owned by Elysium of Boca Raton, Inc. has a kosher kitchen. With 144 beds, the ALF averages only 55 residents—a very low occupancy demonstrative of the little demand for kosher kitchen services. Elysium’s submittal that 20 percent of elderly Jews in south Palm Beach County keep kosher does not establish a demand or need for kosher kitchen services in a nursing home. Occupancy rates are expressly incorporated in the calculation of fixed need. The occupancy rates of the two Jewish nursing homes in the area accordingly do not justify deviation from the zero fixed need. Waiting lists at nursing homes do not demonstrate need. As indicators of bed need, such list are not meaningful. Nursing homes with empty beds have waiting lists. Waiting lists can reflect patient preference for a particular accommodation such as a private room or need for a Medicaid bed, a subacute bed, an Alzheimer’s bed, or simply a desire to be with a friend. Additionally, such lists become outdated when people change their minds or develop other placement options without removing themselves from other waiting lists. Waiting for a Medicaid bed, not kosher foods, is the primary reason given by those on waiting lists. Elysium And Quality Of Care Section 408.035(1)(c), Florida Statutes. Elysium is without any record of providing quality of care. Neither owner nor operator of any nursing home, this applicant has no experience or record of nursing home operations. A premium is placed on nursing home provider experience and competence since people are discharged earlier from hospitals than in the past and are consequently sicker than in previous years. Elysium’s ability to provide quality of care is not demonstrated. Schedule 6 in Elysium’s application presents projected staffing patterns. The projected staffing is not proposed by specific unit. Staffing will vary between the proposed facility’s 20-bed subacute unit, the 16-bed Alzheimer’s unit, and the custodial care units but this variance is not indicated in the application. Also, Elysium’s sole shareholder could not testify concerning the different staffing ratios for different units. There is no indication in Elysium’s application regarding whether a dedicated staff is contemplated for the subacute or Alzheimer’s units. Lack of a dedicated staff for these units is not reasonable. A minimum of 2.7 nursing hours per day for the subacute patient is reflected by on page 1b-5 of Elysium’s application, an unreasonable number since subacute units usually require at least 4.7 nursing hours per day to properly service the complexity and acuity of subacute disorders. Special Alzheimer’s units require 2.8 nursing hours per patient day. Elysium’s application fails to state what the ratio will be for such units in its facility. Assuming a standard of 4.7 nursing hours per day for subacute, 2.8 nursing hours per day for an Alzheimer’s unit and 1.9 nursing hours per day for custodial patients, measures established at final hearing by testimony of Marta Meers, Manor Care’s expert on Nursing, Nursing Administration and Clinical Services, the nursing full time equivalency (FTEs)required per Elysium’s utilization projections in year two for Registered Nurses (RNs), Licensed Practical Nurses (LPNs), and Certified Nursing Assistants (CNAs) is as follows: UNIT RN/LPN CNA TOTAL Alzheimer’s 4.2 10 14.2 Subacute 8.2 8.2 16.4 Long-Term 6.3 24 30.3 (Custodial) TOTAL FTEs 60.9 The 30.3 FTEs for custodial beds presumes that all 72 custodial, non-specialty beds are in one contiguous unit. Under Elysium’s proposal these units are to be located on separate floors of the proposed facility and would require more FTEs. Elysium’s projections in year two show requirements for 5.6 RNs, 8.5 LPNs, and 34.1 CNAs for a total of 48.2 positions. This is at least 12.7 FTEs low, as established by testimony of expert Meers. Elysium’s professed intent, as documented on Schedule 6, to contract for therapists (physical, speech, occupational, and audiological) instead of hiring these professionals as employees does not promote quality of care or quality assurance since contract staff provides less continuity. Many companies send different therapists to nursing homes at different times. Elysium’s application fails to state the volume of therapy that will be provided to subacute patients. Normal practice is to provide three hours of physical, occupational and speech therapy to patients requiring same. While stating that subacute programmatic policies and procedures will be developed, Elysium’s application is absent any such formulated policies—evidence of an inexperienced provider. The Elysium application also projects zero HMO or insurance days for its subacute program. In Palm Beach County, 30 to 40 percent of subacute patients are managed care with the likelihood that this percentage will increase in the future. Deficiencies of the proposed facility include mixing custodial and subacute patients; location of the physical therapy room on the second floor while subacute patients are located on the first floor; and a nurses’ station layout that complicates the possibility of a dedicated staff by locating the one station to service the subacute unit, the Alzheimer’s Unit, and custodial beds. Successful subacute programs require a dedicated, trained staff who normally exhibit a higher level of skill and professionalism than the custodial bed staff. Elysium’s application lacks established protocols of care and has not identified any employee who will serve in the capacity of therapist, unit director, or nurses for the subacute program. Elysium’s proposed 16-bed Alzheimer’s unit provides no nursing station within the unit, no separate dining room, no activity space, therapy space, family visitation area or quiet time room. These spaces are necessary for a quality, operational unit. Elysium’s proposal to mainstream Alzheimer’s residents for various services and activities is at variance with the fundamental reason for a special unit, particularly in view of the special needs of latter stage Alzheimer patients which make separate services appropriate. Mainstreaming these patients does not promote quality of care or quality assurance, and the application fails to indicate what mainstreaming for what stage of disease is contemplated. Elysium’s application promotes a less than ideal bracelet security system for the Alzheimer’s unit. Patients will be fitted with bracelets that will trigger and lock doors as the patients approach them. Safer measures would include the locked ward concept where doors are locked and alarms sound when the door is opened. Adequate And Available Alternatives Section 408.035(1)(d), Florida Statutes. Consideration of adequate alternatives to the proposed project is required by Section 408.035(1)(d), Florida Statutes. The many available and accessible nursing homes already existent in the area illustrate such alternatives to Elysium’s proposal. Most of the existing nursing homes provide the same services proposed by Elysium. Additionally, many of the CON-approved beds that are still to come on line will provide further alternatives. Most of the nursing homes in the southern part of Palm Beach County admit Jewish residents, observe Jewish holidays, and allow other cultural practices and customs for the Jewish population, inclusive of religious services. Kosher foods can and are provided without kosher kitchens in many of the area nursing homes, but, as noted earlier, demand for such foods is rare. Catering kosher food, if necessary, from the under-utilized ALF which would supply Elysium’s proposed facility is a cheaper, better alternative to meeting the occasional need for kosher food than building an unneeded nursing home. Improvements In Services Through Joint Resources Section 408.035(1)(e), Florida Statutes. Section 408.035(1)(e), Florida Statutes, addresses whether improvements in services may be derived from operation of joint, cooperative, or shared health care resources. With exception of limited discussion regarding joint use of the ALF’s kosher kitchen, the Elysium application does not meet this criterion. Additionally, financial projections in the application fail to indicate any economies, reduction in staff, reduction in non-salary expense, or other expense relief resulting from locating the nursing home next to the ALF. There is no discussion in the application of shared services with other health care providers. The ALF administrator, Claire Bojanoski, even professes no knowledge of the application or involvement in discussions about coordination between the existing ALF and the proposed facility. Applicant Resources For Project Accomplishment Section 408.035(1)(h), Florida Statutes. Section 408.035(1)(h), Florida Statutes, considers whether the applicant has available resources in personnel, management, and funds for project accomplishment and operation. Elysium’s application does not meet this criterion. As noted above, Elysium neither owns or operates nursing homes. The sole shareholder has no ownership or operational experience in the field. The applicant has no employees or specific individuals employed in any key operational or management positions. With regard to funding, the applicant proposes to borrow 5.8 million in long-term debt for project development. The only evidence in the application with regard to availability of such funding are two “letters of interest” from banks. The letters are casual, in no way binding, and cannot be viewed as firm commitments to provide debt funding. The applicant does have 250,000 dollars in capital for the nearly 8 million dollar project. Such a small percentage of the initial requirement for funding, plus the need for working capital when the facility opens, necessitates a finding that Elysium has not demonstrated in its application that it can firmly secure funds for project accomplishment and operation. Project Financial Feasibility Section 408.035(1)(i), Florida Statutes. Immediate financial feasibility is the ability to finance construction and initial operations. It is similar to the criterion of funds availability for capital and operating expenditures and, based on findings set forth above in that regard, it is found that the project lacks immediate financial feasibility. Long term feasibility addresses whether a project is financially viable after two years of operation. Elysium’s position that the large and growing Jewish population in the southern part of Palm Beach County will be adequate to assure long term feasibility is not sufficient to meet this criterion, particularly in view of the present usage of the ALF (less than 40 percent occupancy) and the lack of documented need for a facility that will target primarily a Jewish population. Utilization projections advanced by Elysium in Schedule 5 of its application are not reasonable. There is inadequate demand for glatt kosher in Palm Beach County to justify the high occupancy and rapid fill up of occupancy projected by Elysium. Physical needs of patients primarily direct nursing home placement as opposed to cultural or dietary preferences, and the zero fixed need also illustrates the lack of need on that basis for the Alzheimer’s services, subacute care, Medicaid services, and custodial services associated with the typical nursing home. Elysium projects, in Schedule 10 of the application, that it will capture 6,588 Medicare days. Equated to subacute days, such a figure amounts to 337 subacute admissions for which no specific referral sources are identified. Subacute services are increasingly funded by managed care, yet Elysium projects zero days from managed care for the entire facility. With regard to projected Medicare revenues, a significant portion of total revenues, Elysium did not calculate Medicare costs on the basis of actual cost of delivering subacute services, but chose instead to assume that Medicare reimbursement would equal the average Medicare reimbursement for all Palm Beach County nursing homes. Such an assumption for an alleged unique facility is not reasonable. Additionally, projected Medicare revenues do not indicate staffing patterns or amount of therapy to be provided subacute patients. With respect to projected expenses, Elysium projected these expenses merely as a percentage of projected revenues. No consideration was given to the purported unique aspects of the proposed facility. Salary expenses, the largest expense item for a nursing home, are very understated in view of the dramatic understated number of nursing home employees required to operate the specialized units and the total facility. As established at the final hearing by testimony of the expert on health care planning and health care finance, Dan Sullivan, Elysium’s projection on Schedule 11 of $61.58 patient care costs per day in year 2000, the second year of operation, is unrealistic. Palm Beach County nursing homes averaged $61.27 in 1994. If the 1994 figure is inflated 4 percent per year, that would increase Elysium’s patient care costs by $15 per day. Multiplication of $15 per day times 39,528 patient days (utilization projections in year two) generates an additional expense of almost $600,000. Elysium projected a profit of $300,000, which, as Sullivan opined, becomes a $300,000 loss with the additional $600,000 cost. Promotion Of Competition, Quality Assurance, Or Cost-Effectiveness Section 408.035(1)(l), Florida Statutes. There are no competitive benefits associated with Elysium’s application in view of the lack of Fixed Need and the existence of many nursing homes that presently provide the same services proposed by this applicant. Additionally, Jewish residents now receive adequate, available, and accessible cultural and religious services at existing facilities. For the same facts set forth earlier, finding that Elysium’s application fails to meet the “quality of care” criterion, the criterion of quality assurance is not met. With regard to cost effectiveness, there is no specific cost savings or cost effectiveness for health care delivery systems identified by Elysium’s application. Elysium has substantially understated its expenses and has expended no effort to share costs with the ALF or to provide any meaningful economic linkage with the ALF. Reasonableness Of Project Cost And Design Section 408.035(1)(m), Florida Statutes. The layout of Elysium’s Alzheimer’s unit and subacute unit, as previously noted, are not reasonable. Additionally, Elysium’s projected “start-up” costs of $25,000 shown on Schedule 1 manifests a misapprehension of what is involved in developing and operating a nursing home. Testimony of Marta Meers establishes that start-up involves hiring an administrator and other key staff six to eight months before opening; hiring and training other staff prior to opening; marketing and promotion. A projection of $25,000 for these costs is unrealistic and fails to meet this criterion. Elysium is inconsistent with regard to whether there will be a separate kosher kitchen for the proposed facility. Page 3-16 of the application states there will not be a separate kitchen, contrary to the project architect’s testimony that the proposed facility could accommodate preparation of kosher and non-kosher foods. The architect’s testimony is not credited on this point. Applicant’s Past And Proposed Provision Of Medicaid And Indigent Services Section 408.035(1)(n), Florida Statutes. Elysium has no history and therefore has no history of providing service to Medicaid or indigent persons. Elysium projects 55 percent Medicaid which is the Palm Beach County nursing home average. Elysium makes no attempt to quantify Medicaid need for nursing home residents demanding glatt kosher foods and puts further in question whether the applicant seeks to offer a unique service. Elysium does not satisfy this criterion. Continuum Of Care In A Multi-Level Health Care System Section 408.035(1)(o), Florida Statutes. This proposed facility is not linked to any other element in the health care system of Palm Beach County with the exception of the ALF which is not particularly viable. There are no letters of support from hospitals or other nursing homes. The applicant has failed to establish that the proposed facility is an integrated part of a continuum of services. Local And State Health Plan Satisfaction Section 408.035(1)(a), Florida Statutes. Local Health Plan The District 9 Local Health Plan includes preferences for consideration in the review of applications for nursing home beds. The first preference gives priority to applicants for new nursing homes who agree to provide a minimum of 30 percent Medicaid patient days. Elysium has proposed a minimum of 55 percent Medicaid patient days and, therefore, meets this preference. The second preference contains four subparts that establish priorities for applicants: documented history of providing good residential care; staffing ratios, particularly for registered nurses and aids, that exceed staffing requirements; provision for the treatment of residents with mental health problems; and the inclusion of intensive rehabilitation services for those short stay patients requiring rehabilitation below the level of an acute care hospital. Elysium has not operated a skilled nursing facility to date and therefore does not have a rating history to report. With regard to staffing ratios, provision of treatment of residents with mental health problems, the inclusion of intensive rehabilitation services for those short stay patients requiring rehabilitation such as a subacute unit, these preferences are not met by Elysium in view of the facts found above documenting the applicant’s failure to demonstrate an ability to provide high quality of care and quality assurance for its specialized services. The third priority under the local/district health plan establishes a priority for applicants who propose to serve a distinct population that is not currently being served within the Subdistrict. As noted above, the distinct population in this instance is already well served by other nursing homes in Palm Beach County which meet the ethnic, religious, cultural and dietary needs of the elderly Jewish population who keep kosher. Florida State Health Plan The Florida State Health Plan contains twelve allocation factors for reviewing CON applications for community nursing home beds. Factor 1 provides a preference for applicants proposing to locate in subdistricts with occupancy rates exceeding 90 percent. Elysium conforms to this preference since occupancy rates in Palm Beach County have exceeded 90 percent throughout 1995. Factor 2 provides a preference to those proposing to serve Medicaid residents in proportion to the subdistrict average. At risk to its claim that it proposes a truly unique facility, Elysium conforms to this preference. Factor 3 provides a preference to applicants proposing specialized services to special care residents, including AIDS, Alzheimer’s and mentally ill residents. As previously noted above, the applicant’s failure to demonstrate an ability to provide high quality of care and quality assurance for its specialized services prevents conformance with this preference. Factor 4 provides a preference to applicants proposing a continuum of services, including but not limited to, respite care and adult day care. As previously noted, Elysium’s failure to demonstrate an ability to provide quality of care or quality assurance precludes consideration of this preference. Factor 5 of the State Health Plan is for applicants proposing reasonable facility design. As found above, Elysium’s proposal is unreasonable in design, particularly with regard to the specialized units for Alzheimer’s and subacute patients. Factor 6 provides a preference to applicants providing innovative and therapeutic programs that enhance residents’ physical and mental functional level and emphasize restorative care. Elysium’s proposed subacute program does not offer services not provided at other nursing homes in the area. Additionally, Elysium does not demonstrate an ability to provide quality of care in its programs. Factor 7 provides a preference to applicants proposing charges that do not exceed the highest Medicaid per diem rate in the Subdistrict. Elysium conforms with this preference. Factor 8 provides a preference to applicants with a history of providing superior residential care in existing facilities in Florida and other states. Elysium has not operated a skilled nursing facility to date and therefore does not have a rating history to report. Factor 9 provides a preference to applicants proposing staffing levels that exceed the minimum staffing standards contained in licensure administrative rules. The staffing ratios proposed by Elysium’s application do not meet minimum staffing ratios under the licensure rules due to understatement by the applicant of the number of nursing employees needed to operate its proposed facility. Factor 10 provides preference to applicants who will use professionals from a variety of disciplines to meet the residents’ needs for social services, specialized therapies, nutrition, recreation and spiritual guidance. Elysium minimally complies, with proposed contractual services, with requirements for this preference. Factor 11 provides a preference to applicants who document how they will ensure residents’ rights and privacy, if they use residents’ councils, and if they plan to implement a well-designed quality assurance and discharge planning program. Absent quality assurance concerns, Elysium qualifies for priority under this factor. Factor 12 provides preference to applicants proposing lower administrative costs and higher resident care costs compared to the average nursing home in the district. Elysium does not meet this preference in that proposed patient care costs are lower than average. Adverse Impact To Other Facilities Manor Care is a 180 bed nursing home. Superior-rated, it has a 32-bed Alzheimer’s unit and provides subacute services. Service is provided to the Medicaid population and 60 percent of its residents are Jewish. It is located 1.5 miles from Elysium’s proposed site. Presuming that Elysium reached projected utilization, 20 percent of that business would come at the expense of Manor Care in an amount equal to the loss of 8,000 patient days. Currently generating a contribution margin of $60 per resident day, the loss to Manor Care would approximate $480,000 should Elysium’s application be approved. This is a substantial and adverse financial loss.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That a final order be entered denying the applications of Elysium and Good Samaritan which are at issue in this proceeding. DONE AND ENTERED this 2nd day of June, 1997, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of June, 1997. COPIES FURNISHED: Thomas A. Sheehan, III, Esquire Moyle, Flanigan, Katz, et al. 625 North Flagler Drive West Palm Beach, FL 33402 David K. Friedman, Esquire Weiss and Handler, P.A. 2255 Glades Road, Suite 218A Boca Raton, FL 33431 James C. Hauser, Esquire Skelding, Labasky, Corry et al. 318 North Monroe Street Tallahassee, FL 32301 John Gilroy, Esquire Agency for Health Care Administration 2727 Mahan Drive, Suite 3426 Tallahassee, FL 32308 R. Sam Power, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Suite 3431 Tallahassee, FL 32308-5403 Jerome W. Hoffman, Esquire Agency for Health Care Administration 2727 Mahan Drive Tallahassee, FL 32308-5403 Douglas M. Cook, Director Agency for Health Care Administration 2727 Mahan Drive Tallahassee, FL 32308-5403
The Issue The issue is whether Ms. Battaglia is guilty of violations of the Nursing Practice Act by being unable to account for controlled substances at the close of her shift at a nursing home and by being under the influence of controlled substances during her shift.
Findings Of Fact All findings have been adopted except proposed findings 27 through 33, which are generally rejected as unnecessary. COPIES FURNISHED: Judith V. Battaglia 7819 Blairwood Circle North Lake Worth, Florida 38087 Lisa M. Bassett, Senior Attorney Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Judie Ritter, Executive Director Department of Professional Regulation Board of Nursing 504 Daniel Building 111 East Coastline Drive Jacksonville, FL 32202
Recommendation It is RECOMMENDED that: Ms. Battaglia be found guilty of the charges of unprofessional conduct in the delivery of nursing services, unlawful possession of controlled substances and impairment; She be fined $250, that she be required to participate in the treatment program for impaired nurses, that her licensure be suspended until she successfully completes that program, and demonstrates the ability to practice nursing with safety, and that she be placed on probation for a period of five years. DONE and ENTERED this 11 day of October, 1989, at Tallahassee, Florida. WILLIAM R. DORSEY, JR. 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 11 day of October, 1989.
The Issue This case involved the treatment of and records maintained on Veronica Tuthill while she was a patient at Padgett's Nursing Home from May of 1979, until February, 1980. There were certain factual matters in dispute, to include: Did Veronica Tuthill receive preventive treatment for decubitus ulcers? Did Mrs. Tuthill have a physical-therapy assessment, and was it recorded? Were records on Mrs. Tuthill properly maintained by the nursing staff? Was the transfer document completely prepared when Mrs. Tuthill was transferred from Padgett's Nursing Home to Bay to Bay Nursing Home? Did Mrs. Tuthill receive proper treatment for decubitus ulcers? The primary legal issue is whether the Respondent, Rubin Padgett, is legally responsible for any of the deficiencies alleged. Because of the voluminous quantity of evidence produced and the many proposed findings, the findings herein are limited to those which were at issue. Significantly conflicting testimony regarding issues of fact have been indicated, together with the specific finding. The Board showed that there were certain specific instances when the nursing staff failed to chart or to chart completely the nursing care and treatment rendered Mrs. Tuthill, that a nursing staff member failed to properly complete the transfer document, and that Mrs. Tuthill developed decubitus ulcers while a patient at Padgett's Nursing Home. The parties submitted proposed findings of fact, memoranda of law and proposed recommended orders. To the extent the proposed findings of fact have not been included in the factual findings in this order, they are specifically rejected as being irrelevant, not being based upon the most credible evidence or not being a finding of fact. Only those materials received into evidence at hearing were considered as part of the record and formed the basis for these findings. FINDINGS OR FACT The Respondent, Rubin Padgett, is a licensed nursing home administrator and has extensive experience in this field, to include service on the state regulatory board. Respondent is not a registered nurse, medical doctor or related health care professional. Veronica Tuthill was brought to Florida by her daughter, Barbara Magee, who discovered her mother in a nursing home in Virginia. Mrs. Tuthill had been placed in the Virginia home by an unidentified daughter. Ms. Magee was vague about her mother's past medical history, and Mrs. Tuthill was apparently unable to provide her treating physicians with an adequate medical history. However, Mrs. Tuthill was in poor medical condition with contractures, a poorly healed and misaligned fractured hip, malnutrition, anemia, chronic pulmonary disease, arteriosclerotic heart disease and one decubitus ulcer (bedsore) when Ms. Magee brought her to Florida. On April 18, 1979, Mrs. Tuthill was admitted to Centro Espanol Hospital. She was given treatment for her various problems, to include transfusions and treatment for her decubitus ulcer. She was discharged from the hospital on May 10, 1979, with her condition improved; however, she still had the chronic problems described above and a decubitus ulcer the size of a quarter on her left hip. On May 10, 1979, Mrs. Tuthill was admitted to Padgett's Nursing Home (PNH). During her stay at PNH, Mrs. Tuthill's original decubitus ulcer broke down again. She also developed additional ulcers on her left and right buttocks and on her right foot. In many instances the nursing records for Mrs. Tuthill were not adequate because they did not fully and in every instance reflect the treatment and nursing care given the patient. These deficiencies included failure to chart the size, condition, etc., and treatment given Mrs. Tuthill's decubitus ulcers. However, it is specifically found that Mrs. Tuthill received the ordered treatment and preventive measures regularly taken to prevent the formation of decubitus ulcers. The development of decubitus ulcers on opposite sides of Mrs. Tuthill's body and buttocks while she was at PNH supports the testimony of the nursing staff treating her that she was turned properly as ordered, although said care was not always recorded in the nursing records. The records of treatments rendered also support the staff's testimony. A physical therapy assessment was performed and an appropriate entry charted in the nursing notes. The report of the therapist was not found in Mrs. Tuthill's file when it was reviewed by inspectors from the Department of Health and Rehabilitative Services (HRS). When this was reported to the director of nurses, she requested and received a copy of the report from the physical therapist which was placed in Mrs. Tuthill's file. This report reflects that Mrs. Tuthill was assessed for physical therapy and was determined not to be capable of receiving any benefit from physical therapy. Moreover, at the time of her assessment the results were reported to Mrs. Tuthill's physician, who discontinued his orders for physical therapy. This was annotated in the nursing notes at the time. Mrs. Tuthill was transferred from PNH to Bay to Bay Nursing Home on February 25, 1980. The transfer form on Mrs. Tuthill was not properly completed by the nursing staff at PNH at the time she was transferred to Bay to Bay Nursing Home. On March 5, 1980, Mrs. Tuthill was admitted to Centro Asturiano Hospital for surgery on her decubitus ulcers. She was discharged on March 19, 1980, after the ulcers were debrided. On March 24, 1980, Mrs. Tuthill was again admitted for surgical closure of the ulcers as had originally been planned. She was discharged on April 7, 1980, with all her ulcers closed and healed. On August 10, 1980, Mrs. Tuthill was admitted to Centro Asturiano Hospital for surgery to close two decubitus ulcers which had developed during her stay at Bay to Bay Nursing Home. During her hospitalizations, Mrs. Tuthill received blood transfusions to increase her hemoglobin in order that she could receive anesthesia. This also improved her overall health, positively affecting her anemia, nutrition, pulmonary disease and arteriosclerotic circulatory problems, thereby assisting in the treatment of her ulcers. Expert medical testimony was conflicting on whether proper nursing care can prevent the formation of decubitus ulcers. It is specifically found that bedridden patients can develop decubitus ulcers while receiving the best of nursing care and treatment. This finding is supported by the fact that Mrs. Tuthill developed ulcers in both nursing homes and under two different treatment regimes. Expert medical testimony was conflicting on the appropriate medical treatment for decubitus ulcers. Mrs. Tuthill's medical treatment at PNH was within the limits of the conservative approach to treatment of decubitus ulcers. Her treating physician altered his treatment, increasing the strength of the medications and efforts to reduce and heal the patient's ulcers. Surgery is also an acceptable treatment for moderate-to-severe ulcers; however, Mrs. Tuthill's ulcers at the time of her discharge from PNH were at the moderate stage of development. Respondent had appointed a qualified medical director and a qualified nursing director, and had developed written procedures as required prior to Mrs. Tuthill's admission. These directors were directly responsible for the supervision of their particular services. Respondent was responsible for the overall administration of the nursing home; however, he was dependent upon the specific professional judgment and knowledge of his subordinate staff directors. Although PNH was inspected annually, and some failings regarding charting of medications were discovered and reported, these failings were not sufficient for HRS to deny licensure. Respondent took remedial action to improve the performance of his staff after these inspections. No evidence was introduced that there were significant departures from the standards of care established by the applicable rules and regulations or prevailing professional standards in the care of other patients. At the time the HRS personnel investigated Mrs. Tuthill's case, they did not investigate other patient files.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law that the Respondent, Rubin Padgett, is found not guilty of violating Rule 10D-29.38(1), (4), (8), (14) or (16), Florida Administrative Code, or Section 468.1755(1)(k) or (m), Florida Statutes, it is recommended that the Administrative Complaint against him be dismissed. DONE and ORDERED this 13th day of July, 1982, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of July, 1982. COPIES FURNISHED: Diane K. Kiesling, Esquire 517 East College Avenue Tallahassee, Florida 32301 Edward P. de la Parte, Jr., Esquire 705 East Kennedy Boulevard Tampa, Florida 33602 Mildred Gardner, Executive Director Board of Nursing Home Administrators 130 North Monroe Street Tallahassee, Florida 32301 Samuel Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
