The Issue The issue in this case is whether the alleged deficiency cited in the October 2001 survey report existed and, if so, whether the deficiency is sufficient to support the change in the Aristocrat's licensure status from standard to conditional.
Findings Of Fact The Agency is the state agency responsible for licensing and regulating nursing facilities in the State of Florida under Part II, Chapter 400, Florida Statutes. The Aristocrat (The Aristocrat or facility) is a nursing home located at 10949 Parnu Street, in Naples, Florida, licensed by and subject to regulation by the Agency pursuant to Part II, Chapter 400, Florida Statutes. The Agency conducted an annual survey of The Aristocrat from October 8 through 10, 2001. The results of the survey are summarized in a report known as the 2567 report. The 2567 report identifies each alleged deficiency by reference to a tag number (“Tag”). Each Tag of the 2567 report includes a narrative description of the alleged deficiency and cites the relevant rule or regulation violated thereby. The Tag at issue in this proceeding is Tag F 325. Tag F 325 relates to quality of care and references 42 C.F.R. 483.25(i)(l), which requires that, “[b]ased 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 standard in 42 C.F.R. 483.25(i)(1) is made applicable to nursing homes in Florida pursuant to Rule 59A- 4.1288, Florida Administrative Code. The Agency is required to rate the severity of any deficiency pursuant to the classification system outlined in Section 400.23(7), Florida Statutes. The Agency assigned a Class II rating to the deficiency as well as “scope and severity” of G pursuant to federal law. The state classification is at issue in this case. A Class II deficiency is one which “the agency determines 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." Section 400.23(8)(b), Florida Statutes. When the Agency alleges that there is a Class II deficiency, as it did in this case, the Agency may change the facility’s licensure rating from standard to conditional. In accordance with its authority and discretion, based on the alleged Tag F 325 deficiency, the Agency changed The Aristocrat’s nursing home licensure rating from standard to conditional, effective October 10, 2001. During the October survey, an Agency surveyor reviewed the clinical records of six residents at The Aristocrat. The Tag F 325 deficiency was based on the Agency’s findings related to the records of one of those six residents and on interviews with facility staff. In order to protect the privacy of the nursing home resident who is the subject of the alleged deficiency, the Administrative Complaint, the 2567 report, and this Recommended Order refer to the resident by number rather than by name. As a result of the surveyors’ review of the records, the Agency determined that one of the residents, Resident 1, had a weight loss of 7.2 pounds between July 30, 2001, and August 11, 2001. The surveyors’ review of Resident 1’s records further reflected that she had a total weight loss of 13.5 pounds between July 30, 2001, and August 25, 2001. According to the resident’s weight records and nutritional assessment, which listed the resident’s usual body weight as 136 pounds, the surveyors considered the weight loss during the aforementioned periods to be significant. Once the surveyors concluded that Resident 1 had a significant weight loss, the surveyors had to determine whether the resident’s weight loss was avoidable. In making this determination, the surveyors had to determine whether the facility assessed the resident adequately, developed a care plan, implemented the care plan, and reevaluated the care plan. Applying the Agency’s protocol set forth in the above paragraph, the surveyors determined that the significant weight loss experienced by Resident 1 was avoidable. The Agency surveyors found that the facility failed to do the following: adequately assess and develop a plan of care to prevent Resident 1 from significant weight loss; assess and develop an adequate care plan after the resident had a significant weight loss of 5.3 percent of her body weight in less than two weeks; and adequately assess, evaluate and revise the care plan to address the resident’s significant weight loss of 9.9 percent of her body weight in less than a month. According to the 2567 report and the Administrative Complaint, the nutritional parameter that the Agency alleges the facility did not maintain for Resident 1 was weight loss. The Agency was concerned that Resident 1’s weight dropped from 136 pounds on July 30, 2001, to 128.8 pounds on August 11, 2001, which was a 5.3 percent loss of her body weight, upon admission to the facility. Also, the Agency was concerned that the resident’s weight dropped from 136 pounds on July 30, 2001, to 122.5 pounds on August 25, 2001, a 9.9 percent loss of her body weight, upon her admission to the facility. The Agency alleges that the failure to assess and develop an adequate care plan to address weight loss caused the referenced weight loss. Resident 1, a 92-year-old female, was admitted to The Aristocrat on July 30, 2001, at about 3:00 p.m. Her diagnosis included a left hip fracture, left shoulder fracture, atrial fibrillation, esophageal reflux, depression, bipolar disorder, hypertension, and chronic insomnia. John Patrick Lewis, M.D., was Resident 1’s treating physician at the time of and throughout her three-month stay at The Aristocrat. Upon Resident 1’s admission to the facility, Dr. Lewis had “great concern” about the resident’s atrial fibrillation because of her history of T.I.A.s (strokes). As a result of this concern, Dr. Lewis consulted with and reviewed the medical records of Dr. Drew, Resident 1’s primary physician. Resident 1's weight dropped from 136 pounds on July 30, 2001, to 134.8 pounds on July 31, 2001, to 133 pounds on August 4, 2001, to 128.8 pounds on August 11, 2001. Resident 1’s weight began to level off on August 15 or 16, 2001, when edema was no longer noted on her records. Thereafter, beginning on August 19, 2001, the resident’s weight began to stabilize. Resident 1 weighed 124.2 pounds on August 19, 2001; 122.5 pounds on August 25, 2001; 122.7 pounds on September 7, 2001; 121.2 pounds on September 14, 2001; 122.2 pounds on September 21, 2001; 121.6 pounds on September 28, 2001; and was 120.3 pounds on October 6, 2001. Resident 1 came to The Aristocrat days following major surgery of her hip after she suffered a fracture of her hip and shoulder. Resident 1 was hydrated with fluids prior to and/or during the operation to ensure that she maintained a good blood pressure. As a result thereof, at the time Resident 1 was admitted to The Aristocrat, she had an increased amount of fluids in her body and was over-hydrated. The over-hydration caused Resident 1 to have swelling, known as edema. Dr. Lewis testified that Resident 1's edema was actually third space fluids, which are fluids that go extravascularly into the soft tissues or into the peritoneal cavity. It typically takes a period of 7-14 days for that fluid to return to the intravascular compartment and then be urinated away. At the time of her admission at The Aristocrat and throughout her stay there, Resident 1 was on a medication known as Lasix, which is a diuretic that causes the body to urinate excess fluids. Lasix was included in Resident 1’s discharge orders from the hospital where she had surgery for her hip fracture and was never discontinued. In Dr. Lewis’ opinion, there was no need to discontinue the Lasix because the resident was never dehydrated during her stay at The Aristocrat. Moreover, Dr. Lewis is aware that in addition to being a diuretic, Lasix is sometimes prescribed for high blood pressure and this may have been another reason Lasix was included in the resident's discharge orders. The presence of edema in Resident 1 was clearly noted in her chart by facility staff at or near the time she was admitted to the facility. The reference to Resident 1's edema is included in the nurse’s notes dated July 30, 2001, nurse’s notes dated July 31, 2001, a registered dietician's note dated August 1, 2001, and a physical therapy note dated July 31, 2001. The nurse’s notes dated July 30, 2001, the date Resident 1 was admitted to the facility, state that “2 plus edema noted on left upper extremity.” Another document in Resident 1's chart, dated July 31, 2001, states, “2 plus edema on left hip, incision site.” The nutritional assessment dated August 1, 2001, two days after Resident 1 was admitted to the facility, notes edema in lower and upper extremities and “some weight loss expected.” Finally, a dietary note dated August 1, 2001, mentions Resident 1’s edema, but does not mention the location of the edema. The Aristocrat staff did not note Resident 1’s edema on her initial Minimum Data Set form (MDS) as preferred by the Agency. However, the resident’s edema was charted in several places in her records. The Agency’s surveyor acknowledged that Dr. Lewis saw Resident 1 on August 11, 2001, when her weight had dropped from 136 pounds to 128.8 pounds and did not instruct The Aristocrat’s staff to alter their approach to providing adequate nutrition to Resident 1. The reason Dr. Lewis did not order that any changes be made for Resident 1 on August 11, 2001, was that he believed that none were required or necessary in that “the majority of this weight loss was to be expected.” According to Dr. Lewis, “this weight loss [was] not unexpected due to her excessive hydration and third space fluids.” The Agency’s initial concern was Resident 1’s weight loss, during the period of July 30, 2001, through August 11, 2001, when she lost 7.2 pounds, or 5.3 percent of her weight at the time of her admission to the facility. Surveyors are instructed to use a resident’s “usual body weight” to make weight loss calculations. When calculating weight loss, the usual body weight is determined by considering the person’s weight through adult life. According to the state’s guidelines, an analysis of weight loss or gain should be examined in light of the individual’s former life style, as well as current diagnosis. The medical records of Dr. Drew, Resident 1’s primary physician, indicate that Resident 1 weighed 127 pounds on January 31, 2001, and weighed 125 pounds on June 8, 2001. In light of the undisputed fact that Resident 1 was over-hydrated at the time she weighed 136 pounds, it is reasonable to assume that her weight in the months and weeks prior to surgery would be more appropriate figures to use as the resident's usual body weight. Based on her 5'0" height, Resident 1's ideal weight was 100 pounds, the midpoint between the ideal weight range of 90 to 110 pounds for someone five feet tall. In fact, were 136 pounds Resident 1's true weight, she would be considered clinically obese. The Agency surveyor based his calculations that Resident 1 had a significant weight loss on the assumption that the resident’s usual body weight was 136 pounds. The surveyor obtained the 136-pound weight as the resident’s usual body weight from the facility’s nutritional assessment. The Aristocrat incorrectly listed the resident’s weight upon admission, 136 pounds, as her usual body weight. Even if it is assumed that the Agency reasonably relied on the facility’s records that note Resident 1’s usual weight as 136 pounds, the calculations using this weight are flawed because that is not Resident 1’s usual body weight. Had the Agency based its calculations relative to the resident’s weight loss on her usual body weight of 125 pounds, a drop in weight from 125 pounds to any of Resident 1's charted weights would not be “significant” according to surveyor guidelines. One can lose 10 pounds of water weight in just a couple of days but one must burn calories to lose body weight. There are 3,500 calories in a pound. Therefore, in order lose one pound of body mass, a person would need to burn 3,500 calories. Resident 1 lost one pound each day for the first three days she was at The Aristocrat. In order to lose three pounds of body mass, Resident 1 would need to burn 10,500 calories. At the time of her admission to The Aristocrat, Resident 1 was 92 years old and, for the first two weeks she was at the facility, was bed-bound, with a fractured hip and shoulder. Given Resident 1’s condition, it is reasonable to assume that she burned minimal calories. It was physiologically impossible for Resident 1 to lose true body weights in the amounts quoted in the 2567 report. Resident 1 dropped from 136 pounds down to 134.8 pounds the next day and then down to 133 pounds the following day. Because it is impossible to lose a pound of actual body weight in one day, the recorded weight loss for Resident 1 was too rapid to be true weight loss. Rather, the resident's initial weight loss was the result of a decrease in her edema. In determining that Resident 1 had a significant weight loss during the period of July 30 and August 11, 2001, the Agency surveyors based their calculations on an inaccurate usual body weight for the resident. Moreover, the Agency did not consider that the resident had edema and was taking Lasix, a diuretic, and that part of the weight loss could have been water weight. In fact, the 2567 report does not mention that the resident’s chart or records indicate that Resident 1 had edema and that a weight loss could be expected as the edema decreases. The Agency’s explanation for not doing so was that the facility’s records did not indicate or assess the amount of edema Resident 1 had upon her admission. Even though Resident 1 was edematous, the facility staff appropriately addressed her weight issues and immediately began implementing nutritional interventions. There are a number of complex factors at play in the selection and timing of appropriate interventions for a given resident. For example, there is a "warm-up time" to see how a new resident will adjust to the facility. It is not unusual for new residents to experience problems as a result of being in a new environment. However, after a couple of weeks, many of the new residents resolve their relocation issues and adjust to their new environment. During the period of July 30 through August 11, 2001, The Aristocrat’s staff engaged in numerous activities, which assessed Resident 1 from a nutritional standpoint, and immediately implemented interventions to enable her to maintain as much weight as possible. On July 31, 2001, the day after Resident 1 was admitted to the facility, the occupationa1 therapy staff evaluated Resident 1 to determine the level of supervision and set up assistance she needed while eating. On August 1, 2001, two days after Resident 1 was admitted to The Aristocrat, the facility’s registered dietician assessed Resident 1 and, as noted in paragraph 23, above, indicated that some weight loss would be expected as her edema decreased. That same day, the facility’s registered dietician reviewed some of the resident’s lab values that had been taken at the hospital from which Resident 1 had been released and also ordered a multi-vitamin for the resident. On August 2, 2001, the day after the registered dietician completed a nutritional assessment of Resident 1, the facility’s dietary manager met with Resident 1 to assess her food preferences and find out her likes and dislikes. During this meeting, the dietary manager learned that Resident 1 wanted coffee, with four packs of sugar, with all of her meals and a danish at breakfast. The danish is considered a specialty food and is not one usually provided on a daily basis to residents in nursing home facilities such as The Aristocrat. However, upon learning of Resident 1’s food preferences, the facility immediately began providing her with a danish with her breakfast each morning and coffee with four sugars with each meal. The facility’s providing Resident 1 with the foods she requested was an appropriate intervention that honored her preferences. The assessment described in paragraph 42 is consistent with the acceptable industry standard concerning nutritional issues of new residents. That standard requires facilities to analyze the resident for a number of days, determine their food preferences, and see if their nutritional and/or caloric needs can be met through food first. As such, using specialty foods such as a danish and coffee with sugar are appropriate interventions, which honored the resident's preferences. Two additional assessments were performed within a week of Resident 1’s admission to the facility. First, on August 5, 2001, a restorative assessment was completed which addressed Resident 1's ability to use utensils and open her food. The next day, the speech therapy unit of the facility completed a swallowing screening that assessed Resident 1's dysphagia and ability to swallow. Throughout the month of August, including August 11, 2001, and prior thereto, nurse’s notes regularly included information concerning Resident 1’s appetite, food intake, necessary and/or recommended interventions, and other nutritional issues. For example, prior to August 12, 2001, at least two nurse’s notes indicated that Resident 1’s appetite was fair and another nurse’s note indicated that her appetite was poor. Two of the nurse’s notes for this time period indicated that that the resident needed encouragement with oral intake. In addition to the aforementioned interventions implemented by The Aristocrat’s staff during August 2001, Dr. Lewis intervened numerous times with Resident 1. Because Resident 1's room was near the front of the facility, every time Dr. Lewis went into the facility he walked by her room and encouraged her to eat. Dr. Lewis also had numerous conversations with Resident 1's family to have them bring home cooked food that she would enjoy eating. To the extent that Resident 1 did not maintain “acceptable” parameters of nutritional status, the weight loss was attributable to Resident 1's clinical condition and not any failure on the part of The Aristocrat’s staff. In addition to Resident 1's having edema, she had other clinical issues that may have contributed to her weight loss. These clinical conditions involve the resident's behavioral and emotional problems and certain medication that the resident was taking to relieve the pain she was experiencing following her surgery. A person's behavior and emotional problems can have a considerable impact on the resident’s appetite and eating patterns. For example, a person, such as Resident 1, who suffered from depression and a bipolar disorder, may have a low appetite. In this case, Resident 1 suffered from depression and a bipolar disorder. These conditions may likely have been exacerbated by the resident's having to leave the assisted living facility in which she had lived prior to her surgery, going to a hospital for surgery, and, after being released from the hospital, having to be admitted to yet another nursing facility, The Aristocrat. Resident 1 exhibited behavior problems from the beginning of her stay at The Aristocrat, as documented in her records. During the first two weeks that Resident 1 was at the facility, staff of The Aristocrat documented some of the behaviors that the resident was exhibiting. The resident's MDS dated August 8, 2001, and the MDS dated August 13, 2001, indicate that Resident 1 was experiencing mood and behavior problems, on a daily basis, as reflected in her verbal expressions. Resident 1's August 5, 2001, Social Work Assessment Report indicated that Resident 1 made negative statements almost daily and wanted to return to the assisted living facility. The Social Work Assessment Report described the resident's medical conditions that interfered with her relationship skills as "sad mood, melancholy, anxieties, fear, [and] relocation issues." With regard to the resident's relationship involvement patterns, the report indicates that Resident 1 prefers solitude. The Social Work Assessment Report of August 27, 2001, confirmed that Resident 1 made negative statements almost daily and was anxious and angry. The assessment report also noted that Resident 1 was in an unpleasant mood in the morning almost daily, that Resident 1 withdrew from activities almost daily and exhibited reduced social interaction almost daily. The same document indicated that Resident 1 preferred solitude, and demonstrated a sad mood, melancholy, anxieties, fear, and relocation issues. The Behavior/Intervention Monthly Flow Chart Record for August 15 through August 31, 2001, indicates that Resident 1 yelled at staff and was uncooperative. Finally, the care plan priority document for Resident 1 dated August 30, 2001, indicated that her anxiety may be secondary to anger, that her anger was persistent, and that she was verbally abusive to staff. Undoubtedly, Resident 1's behavior and mood could have likely affected and inhibited her appetite, and, thus, contributed to some of the resident's weight loss. Yet, despite the facility’s documentation concerning the resident's behavioral issues, the Agency apparently did not consider either the documentation or the statements by facility staff during the survey that Resident 1's behaviors interfered with some of the attempted nutritional interventions. Another factor that may have contributed to the amount of food Resident 1 ate while at the facility was the medication she was taking. Resident 1 was on a regimen of Darvocet, a narcotic and pain medication, prescribed to help manage the pain she was experiencing as a result of the surgery and/or the hip and left shoulder fracture. Darvocet is a medication that inhibits a person's appetite. In this case, Resident 1 took approximately 30 doses of the narcotic pain reliever Darvocet during the first 10 or 12 days she was at The Aristocrat. Therefore, it is very likely that as a result of Resident 1's taking Darvocet, her appetite was inhibited and she ate less food than she may otherwise have eaten. The Aristocrat’s staff provided numerous interventions for Resident 1 during her first 21 days in the nursing home. They analyzed her weight and food intake through the dietary and nursing units. They offered to assist her with intake and encouraged her to eat. For example, CNA flow sheets for the month of August indicate that food and fluid were offered to Resident 1 approximately 10 times per day, usually five times during the 7-3 shift and five times during the 3-11 shift, every day. This was in addition to her regular meals, specialty foods such as coffee and danish and nutritional supplements. The snacks offered to Resident 1 were foods such as crackers and juice. Staff continually assessed Resident 1's needs and added interventions throughout her stay. A "significant change" MDS was completed on August 13, 2001, which related to Resident 1's percentage of meals eaten and weight loss. On August 14, 2001, The Aristocrat’s staff completed a behavior flow record that addressed Resident 1's uncooperativeness. On or about August 15, 2001, the facility developed a care plan for Resident 1 that included concerns about her weight loss after the initial weight loss due to resident’s loss of "water weight." The nutritional care plan included numerous approaches such as providing increased calories and encouraging intake of diet supplements and fluid. A nursing note of August 16, 2001, indicated that Resident 1's appetite was fair but improved to quite good while a note dated August 20, 2001, indicated that Resident 1 felt she was not getting good food. Staff discussed Resident 1's many dietary dislikes at a weight meeting on August 22, 2001. In order to increase the resident’s caloric intake, the dietary manager added ice cream to Resident 1’s diet at lunch and dinner. On or about August 23, 2001, Dr. Lewis ordered Medpass, a nutritional supplement, for Resident 1. Pursuant to the order, the resident had two 120cc of the supplement daily. Each 120cc of Medpass has 240 calories. Five days later, on August 28, 2001, Dr. Lewis increased the amount of Medpass Resident 1 was to receive from two 120cc of Medpass to four 120cc of Medpass each day. This order was immediately implemented. The goal of the nursing home is to provide 2,000 calories per day to a resident through food. After the first two weeks Resident 1 was at the facility, she consumed an average of 50 percent of her meals, which equaled approximately 1,000 calories per day. In addition, Resident 1 received 300 calories from her daily danish, 240 calories from her coffee with sugar, 300 calories from her daily ice cream, and 480 from Medpass, a nutritional supplement. This equaled an additional 1,020 calories from the “non-diet” portion of her food consumption and exceeded the 1,600 to 1,800 calories per day that Agency believed Resident 1 needed. The number of calories was increased an additional 480 calories, on or about August 28, 2001, after Resident 1 began receiving four 120cc of Medpass. The Agency alleged at hearing that the facility failed to ensure that Resident 1's estimated protein needs were being met. In determining a person's estimated protein needs, it is clinically appropriate to base such needs on the person's ideal weight. In light of that approach, Resident 1 would have needed approximately 59 grams of protein per day. The meal consumption estimates do not reflect whether the resident ate only one food item or a portion of each item. However, given that the resident's diet had approximately 100 grams of protein and that she consumed approximately 50 percent of her diet, it is reasonable to conclude that her protein needs were met. Most of the time Resident 1 was at the facility, she was eating “fair” which is generally considered that she was eating about 50-75 percent of her meals. Given Resident 1's consumption of her 2,000-calorie diet plus supplements, it is reasonable to conclude that she maintained adequate parameters of nutritional status. The Aristocrat’s staff began interventions for Resident 1 from the day she was admitted to the facility. The staff analyzed her needs and provided her with a supplementation of calories by August 1, 2001. Staff continually assessed Resident 1's needs and added additional interventions throughout her stay at the facility. Two of the more aggressive interventions included obtaining a psychological consultation for Resident 1 and ordering an appetite stimulant for her. The Agency indicated that The Aristocrat should have implemented these more aggressive interventions much earlier than it did in order prevent Resident 1 from losing weight. Contrary to this position, it is not likely that these interventions would have prevented the resident’s initial weight loss that occurred between July 30 and August 11, 2001, because the weight loss was water weight. Dr. Lewis waited until September 13, 2001, to order Megace for Resident 1 because he wanted to give other interventions a chance to work. Also, Megace is an appetite stimulant that can cause liver toxicity. Because of the known side effects of Megace, Dr. Lewis used this approach only as a “last-ditch alternative.” With regard to the psychological consultation, the facility delayed this intervention although the staff was aware of and had noted the resident’s behavior problems soon after she was admitted. The consultation was appropriately delayed to give the resident a chance to adjust to her new environment and to first attempt more conservative measures. Moreover, in this case, Dr. Lewis testified that he recalled that, initially, there may have been some opposition from Resident 1's family regarding a psychological consultation. Resident 1 maintained “adequate” nutritional parameters while at The Aristocrat. To the extent that she may not have maintained "adequate" nutritional parameters during the first almost two weeks at the facility, Resident 1's clinical condition made her initial weight loss unavoidable. Signs or symptoms that a person has been nutritionally compromised include the development of pressure sores and malnourishment, dehydration, dull eyes, and/or swollen lips. In this case, Resident 1 did not exhibit any clinical signs of malnourishment, dehydration, or pressure sores. Moreover, Resident 1 suffered no harm as a result of the initial or subsequent weight loss noted in the 2567 report. The Agency’s reason for changing the facility's licensure rating from standard to conditional is based on its conclusion that the weight loss experienced by Resident 1 was avoidable. The Agency's policy is that if there is an avoidable weight loss, there is harm, with or without a determination that there is actual harm to the resident. The credible testimony of Dr. Lewis was that Resident 1 recovered “very successfully from two major fractures, even in the setting of depression and advanced age.” At the end of Resident 1's stay at the facility she was ambulating on her own with a walker and performing some of her own activities of daily living; and after approximately three months in the facility, the resident returned to the assisted living facility where she previously lived.
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 issuing a standard license rating to The Aristocrat and rescinding the conditional license rating. DONE AND ENTERED this 14th day of August, 2002, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 14th day of August, 2002. COPIES FURNISHED: Virginia A. Daire, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308 William Roberts, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308 Dennis L. Godfrey, Esquire Agency for Health Care Administration 525 Mirror Lake Drive, North Room 310L St. Petersburg, Florida 33701 Michael S. Howard, Esquire Gallagher & Howard, P.A. Post Office Box 2722 Tampa, Florida 33602-4935
The Issue DOAH Case No. 02-0949: Whether Respondent's licensure status should be reduced from standard to conditional. DOAH Case No. 02-1299: Whether Respondent committed the violation alleged in the Administrative Complaint dated February 19, 2002, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: AHCA is the state Agency responsible for licensure and regulation of nursing homes operating in the State of Florida. Chapter 400, Part II, Florida Statutes. Harbour Health operates a licensed nursing home at 23013 Westchester Boulevard, Port Charlotte, Florida. The standard form used by AHCA to document survey findings, titled "Statement of Deficiencies and Plan of Correction," is commonly referred to as a "2567" form. The individual deficiencies are noted on the form by way of identifying numbers commonly called "Tags." A Tag identifies the applicable regulatory standard that the surveyors believe has been violated and provides a summary of the violation, specific factual allegations that the surveyors believe support the violation, and two ratings which indicate the severity of the deficiency. One of the ratings identified in a Tag is a "scope and severity" rating, which is a letter rating from A to L with A representing the least severe deficiency and L representing the most severe. The second rating is a "class" rating, which is a numerical rating of I, II, or III, with I representing the most severe deficiency and III representing the least severe deficiency. On October 22 through 25, 2001, AHCA conducted an annual licensure and certification survey of Harbour Health, to evaluate the facility's compliance with state and federal regulations governing the operation of nursing homes. The survey team alleged several deficiencies during the survey, only one of which is at issue in these proceedings. At issue is a deficiency identified as Tag F325 (violation of 42 C.F.R. Section 483.25(i)(1), relating to maintenance of acceptable parameters of nutritional status). The deficiency alleged in the survey was classified as Class II under the Florida classification system for nursing homes. A Class II deficiency is "a deficiency that the agency determines 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." Section 400.23(8)(b), Florida Statutes. The deficiency alleged in the survey was cited at a federal scope and severity rating of G, meaning that the deficiency was isolated and caused actual harm that is not immediate jeopardy. Based on the alleged Class II deficiency in Tag F325, AHCA imposed a conditional license on Harbour Health, effective October 25, 2001. The license expiration date was August 31, 2002. The survey allegedly found a violation of 42 C.F.R. Section 483.25(i)(1), which states: 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. . . . This requirement is referenced on Form 2567 as "Tag F325." The survey found one instance in which Harbour Health allegedly failed to ensure that a resident maintained acceptable parameters of nutritional status. The surveyor's observation on Form 2567 concerned Resident 5, or "R-5": Based on observations, record review and staff interviews, the facility failed to maintain acceptable parameters of nutritional status and did not use all possible interventions, to prevent an unplanned, severe weight loss (7.8 percent in a two month period) for 1 (Resident 5) of 20 active sampled residents. The findings include: During her lunch on 10/22/01 at approximately 12:20 P.M., Resident 5 was observed clinching her teeth together making it difficult to get food into her mouth. Resident 5 was observed on 10/23/01 at 12:30 P.M., taking a limited amount of thickened liquids from her nosey cup, and clinching her teeth together making feeding her more difficult. Resident 5 was observed 5:25 P.M. until 5:55 P.M. on 10/23/01, taking small sips from the nosey cup and clinching her teeth together making it very difficult for the Certified Nursing Assistant (CNA) to feed her 25 percent of her meal. These observations were made in the assisted dining room on A-Wing. Record review of Resident 5's chart, documents 5/1/01 she weighed 127 pounds. On 7/2/01 and again on 7/16/01, her weight was documented 117 pounds. This is a severe weight loss of 7.8 percent in a two month period. Review of the resident's care plan dated 7/18/01, revealed the resident's nutrition problem was "Res. is on a puree diet with thickened liquids-- is continuing to lose weight-- is terminal-- weight is down 6 pounds for the month-- on weekly weight-- consumes 25-50 percent of her meals-- small portions at lunch-- super cereal on breakfast tray and Carnation Instant Breakfast on other trays. Resident can be combative during meals-- resists any attempt to assist her with eating-- is very difficult to feed." Approaches to address the problem included consult with Registered Dietician as needed and to monitor labs. Further review of the care plan included the problem: "Resident is on psychotropic meds for dementia with psychosis as evidenced by . . . increased agitation and resisting care." Review of the resident's physician orders reveal the resident began receiving Risperdal in July 2001 for the diagnosis of psychosis. The record also revealed that the resident was given a terminal status in January 2001. During an interview at 5:20 P.M. on 10/23/01, regarding Resident 5's evening meal being delivered after the other 3 residents at her table, the Certified Nursing Assistant stated, "She don't eat nothing anyway." Interview with CDM (Certified Dietary Manager) and Consulting Dietician on 10/23/01 at approximately 4:45 P.M., regarding resident's severe weight loss and limited nutritional intake, revealed that the Consulting Dietician stated she was unaware of this resident. The CDM stated the resident clinches her teeth, refuses food, and they have tried everything else. She stated that the resident was terminal and that the family did not want a tube feeding placed. The resident was put on thickened liquids by a speech therapist in 1998 for dysphagia, but there had been no speech therapy follow-up. They confirmed that no psychiatric consult was ordered since the care plan was developed, despite continued behaviors during feeding. An interview was conducted with the CDM joined by the DON regarding Resident 5's weight loss and possible interventions on 10/24/01 at 3:05 P.M. It was identified that no routine snacks were ordered, no psychiatric follow-up nor speech therapy follow-up, nor medication adjustments had been done during May 2001 through July 2001. The CDM stated that the facility only acknowledges a 5 percent weight loss at an interval of 1 month, and 10 percent at a 6 month interval as significant, but would not look at a 7.5 percent because it would not trigger on the Minimum Data Set. On 10/24/01 at 3:55 P.M., during an interview with the Unit Manager regarding Resident 5, she stated there was no psychiatric or mental health evaluation ordered, it was only on her care plan. Diane Ashworth was the survey team member who recorded the observation of R-5. Ms. Ashworth based her findings on her observations of R-5, a review of the resident's medical records, and interviews with Harbour Health staff. R-5 was a 92-year-old female who had resided at Harbour Health since 1998. She suffered from dementia with psychosis, in particular end-stage Alzheimer's disease. Her worsening condition caused her physician to request a neurological consultation in January 2001. The consulting neurologist diagnosed her condition as terminal. R-5 was severely impaired cognitively, and was completely dependent on Harbor Health staff for all of her care. R-5 was unable to feed herself. For over three years, Harbour Health has implemented a "restorative dining" program for residents with eating problems. In the restorative dining program, the resident is taken to a quiet area and given one-to-one attention by a CNA during meals. R-5 has been in the restorative dining program since its introduction. During her entire stay at Harbour Health, R-5 was very difficult to feed. She would clench her teeth, cover her mouth and push away. At times she would take the food into her mouth, then spit it back into the face of the caregiver. R-5's medical condition made it impossible to reason with her about the importance of maintaining nutrition. The CNA assigned to R-5 as her restorative aide would spend up to two hours feeding one meal to her. The CNA would attempt to feed R-5 until her agitation and resistance made it impossible. The CNA would refrigerate the food, then wait for R-5 to calm down. Then the CNA would reheat the food and begin the process again. Because of her Alzheimer's and her difficult behavior during meals, R-5 was identified as at risk for weight loss and dehydration. Harbour Health's care plan for R-5 identified several strategies for maximizing R-5's caloric intake, and called for consultation with the facility's registered dietician when needed. R-5 was on a no-sodium-added puree diet, taking thickened liquids in place of solid food. Because she tended to consume only 25 to 50 percent of the food offered at meals, the facility offered her 3,252 calories per day at meals, well in excess of the 1,677 to 1,960 calories required to maintain her usual body weight of 120 to 123 pounds. Staff noted that R-5 appeared overwhelmed by large portions of food and began offering her smaller amounts at one time. R-5 was offered fortified cereals and potatoes, and supplements such as Health Shake and Carnation Instant Breakfast. If R-5 showed signs of accepting certain foods, such as eggs, staff would order extra portions of those foods. Snacks were offered between meals, and R-5 was given vitamin C, zinc, and multivitamins with iron to supplement her nutrition. Staff employed items such as a "Nosey Cup," a cup designed to permit its being held near the resident's face without bumping the nose, to ease the feeding process. Harbour Health's standard practice was to weigh residents once per month. If the monthly weights indicated a problem, then Harbour Health would commence weighing the resident on a weekly basis until the problem was resolved. As noted by Ms. Ashworth, R-5 weighed 127 pounds at her monthly weighing on May 1, 2001. At her next monthly weighing on June 1, 2001, R-5 weighed 123 pounds. At the following monthly weighing on July 2, 2001, R-5 weighed 117 pounds. Ms. Ashworth calculated the weight loss from May 1 to July 2, 2001 as 7.8 percent of R-5's body weight. Noting the weight loss, Harbour Health placed R-5 on weekly weights in July 2001. On July 16, 2001, her weight remained at 117 pounds. On July 23, 2001, her weight had increased to 123 pounds. On August 1, 2001, R-5's weight was 125 pounds. Thus, by early August R-5 had regained nearly all of the weight she had lost between May and July 2001. On July 6, 2001, R-5's attending physician prescribed Risperdal, an antipsychotic medication, to calm her severe agitation and constant movement. Risperdal can act as an appetite stimulant. The administration of Risperdal to R-5 coincided with her weight gain in July 2001. When the facility became aware of R-5's weight loss in July 2001, staff began offering R-5 food more often, including more snacks between meals. The attending physician removed the sodium restriction from R-5's puree diet. Aside from those steps, Harbour Health maintained the same nutritional procedures for R-5. The agency alleged that Harbour Health was deficient in not involving the consulting dietician when it became aware of R-5's weight loss. The agency further alleged that Harbour Health should have ordered a psychiatric consultation and a speech therapy consultation. Regular snacks should have been ordered, and R-5's medications should have been adjusted. Harbour Health contended that it was already doing everything possible to ensure R-5's nutritional status. The only alternative to the puree diet would be tube feeding. R-5's son, who acted as her guardian, made it clear to the facility that he would not consent to tube feeding. In May 2001, R-5 suffered from an upper respiratory infection diagnosed as bronchitis by her attending physician. On May 14, 2001, the physician ordered the antibiotic Levaquin; nebulizer treatments with Albuterol and Atrovent, both bronchodilators; and oral administration of Robitussin. All of these medications were ordered and administered for a period of one week. Harbour Health contended that R-5's respiratory infection completely explained her weight loss. The evidence does not entirely support that contention. The medical records indicate that R-5's condition was largely resolved by the latter part of May 2001. R-5 lost four pounds during the month of May 2001. The majority of R-5's weight loss occurred during the month of June 2001, after her bronchitis was treated and apparently resolved. At most, R-5's weight loss was only partially explained by her upper respiratory infection. Dr. Michael Brinson, R-5's attending physician, testified that it is expected that an end-stage Alzheimer's patient will lose weight, because at some point the resident loses the will to live. In Dr. Brinson's opinion, R-5 had reached this point, which explained her refusal to eat. He was aware of R-5's weight loss. Given R-5's clinical condition, the weight loss did not concern Dr. Brinson, who deemed it irrelevant to her care and treatment. Even Ms. Ashworth, the agency RN who performed the survey observation of R-5, agreed that weight loss can be a symptom of end-stage Alzheimer's. R-5 had been provided with a speech consultation and speech therapy in 1998. She was discharged from speech therapy in March 1998 because it was determined that nothing more could be done for her. Dr. Brinson testified that a speech therapy consultation would have been useless in July 2001. Speech therapy is called for if the resident's refusal to eat is related to a swallowing problem. R-5 had no swallowing problem. Catherine Rolin, the restorative nurse who supervised R-5's feedings, confirmed that there were no indications R-5 had difficulty swallowing, or had choked or aspirated during the time she was losing weight. Dr. Brinson opined that R-5's terminal diagnosis with end-stage Alzheimer's disease made a psychiatric consultation of no value. R-5's cognitive impairment would have rendered her unable to participate in any psychiatric examination. Dr. Brinson came to the facility at least once a week. His Advanced Registered Nurse Practitioner ("ARNP"), Vickie Swank, came to the facility several times a week. Dr. Brinson would have had to order any psychiatric or speech therapy consultation, or any laboratory work. Dr. Brinson believed that none of these was appropriate for R-5. The interdisciplinary team overseeing R-5's care included the facility's certified dietary manager. The team was aware of R-5's weight loss as of July 2, 2001, and decided that R-5's status did not trigger a need to consult the registered dietician. Deborah Blackburn, a dietician and expert in nutrition, reviewed R-5's records and concluded that there was no need to consult a registered dietician. Ms. Blackburn opined that the facility was taking all reasonable steps to maintain R- 5's caloric intake and nutritional status. She could not think of a workable approach that Harbour Health had failed to employ. Aside from the weight loss itself, R-5 suffered no skin breakdown or other negative effects. Viewing the evidence in its entirety, it is found that AHCA failed to prove the elements of Tag F325 by a preponderance of the evidence. R-5 lost the weight then quickly gained most of it back with no dramatic changes in Harbour Health's approaches to her feeding and overall nutrition. This fact demonstrates that R-5's weight loss was caused not by Harbour Health's failure to provide adequate nutrition, but by a combination of R-5's terminal Alzheimer's disease and her upper respiratory infection. Once Harbour Health became aware of the weight loss, it reacted appropriately and successfully. The steps that the agency faulted Harbour Health for failing to take--psychiatric consultation, speech therapy consultation, dietician consultation, and medication adjustments--were demonstrated to be unnecessary in light of R-5's condition.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Agency for Health Care Administration enter a final order dismissing the Administrative Complaint in DOAH Case No. 02-1299, and rescinding the notice of intent to assign conditional licensure status to Harbour Health Center in DOAH Case No. 02-0949 and reinstating the facility's standard licensure status. DONE AND ENTERED this 23rd day of September, 2002, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of September, 2002. COPIES FURNISHED: Ursula Eikman, Esquire Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308 Dennis L. Godfrey, Esquire Agency for Health Care Administration 525 Mirror Lake Drive, North Room 310L St. Petersburg, Florida 33701 Karen L. Goldsmith, Esquire Goldsmith, Grout & Lewis, P.A. 2180 North Park Avenue, Suite 100 Post Office Box 2011 Winter Park, Florida 32790-2011 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Valinda Clark Christian, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308
The Issue The issue in this case is whether the medical license issued to the Respondent, Manuel Escobar, should be revoked or otherwise penalized based upon the acts alleged in the Administrative Complaint.
Findings Of Fact Based upon my observation of the witnesses, their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I make the following findings of fact: Respondent is and has been at all times material hereto, a licensed physician having been issued license number ME002062A, by the State of Florida. Sometime in the fall of 1984, the patient, L.T., went to a clinic where the Respondent had an office to discuss having a lipectomy. The clinic is owned by Julio Ceaser. While there is hearsay testimony that Julio Ceaser is not a licensed physician, there is no competent substantial evidence indicating whether or not Julio Ceaser is a licensed medical professional. The Respondent had an office at the clinic and frequently performed facelifts there. However, lipectomies were not performed at this clinic. During the patient's first visit to the clinic, Julio Ceaser explained to her that a lipectomy would have to be done outside the clinic by another doctor and discussed the possibility of the patient having a full face lift at the clinic. During this first visit to the clinic, the patient decided to have the facial surgery. The patient did not meet with the Respondent during this visit. Prior to having facial surgery, the patient paid $3,000.00 to Julio Ceaser. The Respondent was not involved in the financial negotiations with the patient and there is no evidence establishing how much money the Respondent was paid for his services. While the patient claims that she understood the $3,000.00 she paid to Julio Ceaser would cover both the facial surgery and a lipectomy, there is no evidence that the Respondent ever agreed to perform a lipectomy for this patient nor that he was aware of the financial arrangements that had been made between the patient and Julio Ceaser. Moreover, it is not clear that the patient's belief regarding the services she was to receive for the $3,000.00 was justified or that she was in any way misled in this regard. Prior to having facial surgery, pre-operative photos were taken of the patient. However, these photos cannot be located and are not included in the patient's medical records. On the day of the surgery, the patient signed an informed consent form. However, while the patient had some discuss ions with Julio Ceaser prior to the surgery, the exact nature of those discussions was not established. It is not clear whether Julio Ceaser ever discussed with the patient the potential complications and risks of the surgery. In any event, the Respondent did not explain to the patient the surgical procedures that he was going to employ nor did he discuss with her the potential complications and risks of the surgery. Respondent's failure to speak directly with the patient regarding the potential complications and risks of the surgery falls below the standard of care expected of plastic surgeons in this community. On November 2, 1984, the Respondent performed a face lift operation on the patient, L.T. Julio Ceaser assisted with the surgery and gave the patient an intravenous injection and an IV. In performing the facial surgery, the Respondent used straight-line pre-auricular incisions which were approximately three quarters of an inch in front of the patient's ears. While the location of these incisions would be acceptable for a male patient because they can be hidden along the facial hair of the patient, such incisions on a female patient fall below the standard of care to be expected of a plastic surgeon in this community. As a result of the Respondent's placement of the incisions, the patient's pre-auricular scars are more visible than they would have been if the incisions had been properly placed. Respondent's expert witness testified that there are some surgeons in this community who utilize a straight pre-auricular line of incision for a full facelift. However, Petitioner's expert, whose opinion is credited, testified that such an incision has been obsolete since at least the mid-1970's and does not comport with the level of care, skill and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. After the first surgery was completed on November 2, 1984, the patient was left with very noticeable scars below her ears and on her neck. The evidence did not clearly establish the cause of these scars which were an unacceptable complication of the surgery. While all facelifts result in some scarring, the location, size and visibility of the scars below the ear were a bad result and needed to be corrected. Respondent performed a second operation on the patient on May 10, 1985 in an effort to excise these scars. In this second procedure, Respondent did not properly address the problem of excess scarring and caused substitute scarring instead. As a result of the second operation, the patient has folds of skin underneath her ear which are very noticeable and unsightly. By virtue of Respondent's actions, the patient has suffered permanent scarring. To what extent this condition can be hidden or corrected by further surgery or other efforts has not been established of record. Prior to the second surgery the patient attended some therapy sessions that were intended to reduce the scarring. However, she was not satisfied with the results and refused to attend any more sessions. There is no evidence establishing the impact of the failure to attend any further sessions. The patient has suffered permanent nerve damage in her face which is most likely the result of the accidental cutting of a nerve during one of the facial surgeries performed by the Respondent. The cutting of a facial nerve reflects an incision that was much too deep for this type of surgery and falls below the standard of care expected of a plastic surgeon in this community. After the first surgery, the Respondent did not see the patient during the 10 day period immediately following the surgery. However, Julio Ceaser did visit the patient and change her bandages in the days following the surgery. As set forth above, Julio Ceaser's medical training or lack thereof was not established by competent substantial evidence. The patient has scars behind her ears which could have been the result of the sutures not being timely removed. However, the sutures were removed approximately one and one half weeks after the surgery. The removal of the sutures within this time frame was not below the standard of care. Therefore, the evidence fails to demonstrate that the scars behind the ears were the result of substandard care by Respondent. There was very poor recording of the patient's vital signs during the surgical procedure. The patient's blood pressure and heart rate were noted in 15 minute intervals. While such intervals may be acceptable under normal circumstances, there is evidence that the patient's blood pressure dropped very significantly during the surgery. In view of this occurrence, more frequent notations of the patient's vital signs should have been included in the medical records. Pre-operative photographs of the patient were taken prior to the first surgery. Pre-operative photos are an essential part of the documentation that is expected to be included in the medical records of a patient seeking plastic surgery. However, the pre-operative photographs of patient L.T. are not included in her medical records, and no competent proof was offered to explain why these photographs were not included. Although the patient signed a form referred to as an "informed consent", that form cannot be located and is not contained in the patient's medical records.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law it is: RECOMMENDED that the Department of Professional Regulation, Board of Medicine, enter a Final Order which finds Respondent guilty of the violations alleged in Counts One and Four of the Administrative Complaint, dismisses Counts Two and Three, imposes an administrative fine in the amount of $2,500, and suspends Respondent's license for a period of one year followed by a three (3) year term of probation. DONE AND ORDERED this 3rd day of August, 1989 in Tallahassee, Leon County, Florida. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of August, 1989.
Findings Of Fact The Respondent's name is Maurice L. Kaye. The Respondent's current address is 735-49th Street North, St. Petersburg, Florida 33710. The Respondent is now a licensed osteopathic physician in the State of Florida. The Respondent holds osteopathic license No. OS 0000949. The Respondent was a licensed osteopathic physician in the State of Florida at all times alleged in the Administrative Complaint filed in this cause on August 9, 1983. The Respondent served as the "doctor" at the Florida Medical Weight Loss Clinic from approximately January 15, 1983 until February 10, 1983. The Respondent was employed by Lydia Stein of Florida Medical Weight Loss Clinic. The Florida Medical Weight Loss Clinic placed or caused to be placed an advertisement in the Tampa Tribune dated January 24, 1983. This advertisement failed to conspicuously identify the Respondent by name and failed to conspicuously identify the Respondent as the physician providing medical supervision at the Florida Medical Weight Loss Clinics. The Respondent was vicariously responsible for the dissemination of the advertisement described in the paragraph above. The Respondent caused an advertisement to be placed in the St. Petersburg Times which offered a nonsurgical treatment for cataracts. This advertisement was published on January 10, 1983. This advertisement read as follows: CATARACT TREATMENT NON-SURGICAL FREE CONSULTATION By Dr. Alex Dewart MEDICAL HEALTH CENTER 735-49th Street North 321-3341 The advertisement described above in the St. Petersburg Times failed to conspicuously identify the Respondent by name, failed to identify the Respondent as the responsible physician, and failed to identify the Respondent as an osteopathic physician. The Respondent had no professional or contractual relationship with Dr. Alex Dewart or Alex Duarte, neither of whom were ever employees of Medical Health Center or Respondent at 735-49th Street North, St. Petersburg, Florida. Dr. Alex Duarte is a recognized specialist in non- surgical treatment of cataracts. Evidence was presented concerning the efficacy of non- surgical treatment for cataracts. It is concluded that such treatment may be beneficial and that the extent to which such non-surgical treatment is beneficial is a matter about which reasonable men differ. No believable evidence was presented that the Respondent was unable to assess patients.
Recommendation For failing to identify himself as the responsible osteopathic physician in the Tampa Tribune advertisement contrary to Rule 21R-14.01(2) , Florida Administrative Code and Section 459.015(1)(d), Florida Statutes, it is recommended that the Respondent be fined by the Board the amount of Two Thousand Dollars ($2,000). For having placed the advertisement in the St. Petersburg Times falsely representing that Dr. Alex Dewart was associated with the Medical Health Center contrary to Section 459.015(1)(d) , Florida Statutes, it is recommended that Dr. Kaye's license be suspended for one (1) year and be reinstated upon payment for the fine levied above, and that thereafter Dr. Kaye be placed upon a two (2) year probation period pursuant to Section 459.015(2) , Florida Statutes. DONE and ORDERED this 15th day of January, 1985 in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Oakland Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 15th day of January, 1985. COPIES FURNISHED: James H. Gillis, Esq. Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Maurice L. Kaye, D.O. 735-49th Street, North St. Petersburg, Florida 33710 Ms. Dorothy Faircloth Executive Director Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 =================================================================
Findings Of Fact Based upon the evidence presented at final hearing, the following facts are determined: Nature of Complainant's Handicap At all times material hereto, Petitioner, Charles Fenesy ("COMPLAINANT"), suffered from severe coronary heart disease (arteriosclerosis), diabetes, and excess weight. The arteriosclerosis consists of lipid deposits which obstruct and interfere with the flow of blood in all three major arteries to his heart; the diffuseness of the deposits make bypass surgery inadvisable. As a result of this disease, the COMPLAINANT began, in 1972, to experience occasional angina pectoris, which is sharp chest pain associated with activity. (Testimony of Fenesy, Hampton; P.E. 11.) The angina pectoris, however, occurred only when he was engaging in tasks involving physical activity and exertion, such as working in the yard, mowing the lawn, pulling weeds, and walking too fast; he has never experienced angina pectoris because of mental or emotional stress. During his 17 years as a computer analyst and programmer, he never experienced angina attacks in connection with his work environment; neither did his angina attacks ever interfere with his job attendance or performance or require that his work schedule be altered. Because of his heart disease, COMPLAINANT is unable to perform normal physical activity and exertion; his working activities are limited to those found in the office environment. The ability of a person inflicted with severe heart disease to capably function in a working environment is related to his temperament. The COMPLAINANT is a well-controlled, even- tempered person who has demonstrated ability to capably perform computer analyst and programmer duties and effectively cope with the stresses of an office environment. He has never experienced a heart attack. (Testimony of Fenesy; P.E. 11.) In order to control and treat his heart disease (which is incurable, without surgical bypass), and relieve angina pectoris symptoms, COMPLAINANT takes various vasodilators, including nitroglycerin and inderal; he is on a diet and takes diabinese to control his diabetes. If he suffers angina pectoris when mowing the lawn, he quickly takes the prescribed medication, the pain subsides, and he continues mowing. (Testimony of Fenesy; P.E. 11) Complainant's Application for Employment as a Program-Analyst On September 18, 1978, COMPLAINANT filed an application for employment as a program-analyst with the Respondent, GTE Data Services, Inc. ("COMPANY"). Betty Graef, Supervision of the COMPANY's CRB Source Group, had an available program-analyst position in the Customer Master File Unit; after review the COMPLAINANT's application, she concluded that he appeared to be qualified for the position and asked Nancy Fitzpatrick, the COMPANY's Personnel Representative, to arrange an employment interview. (Testimony of Fenesy, Graef, Fitzpatrick; R.E. 4.) Qualifications and Duties of the Available Program-Analyst Position. The program-analyst position which Ms. Graef had available entailed coding computer programs based on specifications prepared by a senior analyst. These programs maintained billing and address information on telephone company customers. There were approximately 22 other program-analysts in that department. The work required knowledge of assembly, also known as BAL or computer language, and typically required meeting deadlines and coping with emergency demands. Occasionally analysts were required to work long and irregular hours, due to emergencies, or in order to correct errors. The frequency of such a requirement would vary: employees who were capable and careful in their work were less likely to experience such demands. Substantial overtime work was not ordinarily required. (Testimony of Fenesy, Gradef.) During the subsequent employment interview conducted by Ms. Graef, COMPLAINANT specifically asked if the position required overtime work: she answered that, except under exceptional conditions, there would be no overtime required unless he fell behind in his work. To the extent Ms. Graef's testimony at hearing tended to describe the position as on regularly requiring excessive or extraordinary hours, it is rejected as at variance with her prior description of the position during the employment interview with COMPLAINANT, and is considered unpersuasive. (Testimony of Fenesy, Graef.) Qualification of Complainant At the time of his application, COMPLAINANT was employed by Pinellas County as an automatic mapping supervisor, at $12,000 per annum. He supervised 23 employees, and was responsible for their hiring, performance, and firing. Generally, he worked a 40-hour work week, although he occasionally worked irregular or overtime hours. During the summer of 1977, he worked 50 hours a week. (Testimony of Fenesy.) COMPLAINANT was knowledgeable and had extensive experience in the area of data processing. He had worked in that field for 17 years, and attended various technical training seminars; moreover, he had previous programming experience using BAL, the particular computer language required for the position. He also held a Bachelor of Science degree in Business Administration. By virtue of his technical knowledge and experience, COMPLAINANT was qualified to carry out the duties of the available program-analyst position in Ms. Graef's department. The only objection raised to his employment was based on his physical condition. (Testimony of Fenesy; R.E. 4.) The Company's Conditional Offers of Employment and Rejection of Complainant. On September 21, 1978, after the COMPLAINANT's employment interview with Ms. Graef and Ms. Fitzpatrick, the COMPANY offered to employ him as a program-analyst, at $16,000 per annum, conditioned upon his passing the standard pre-employment physical. After his rejection of the offer, the COMPANY made a second offer on October 6, 1978, with a salary of $18,000 per annum; this offer was also condition upon passage of the pre-employment physical. COMPLAINANT accepted this offer, and promptly gave notice to his present employer, Pinellas County, effective October 13, 1978. He was scheduled to begin work with the COMPANY on October 16, 1978. (Testimony of Fenesy, Graef, Fitzpatrick; P.E. 1,2,3) On October 10, 1978, the medical doctor ordinarily used by the COMPANY for this purpose, Edward F. Carter, M.D., gave the COMPLAINANT the standard pre- employment physical examination. On the medical questionnaire form, COMPLAINANT disclosed that he had angina pectoris, and was taking inderal for its control; and he also explained the "over exertion may cause angina pain" (R.E. 4), and gave the name of his cardiologist, John Dormois, M.D. Despite this disclosure, no diagnostic tests were administered by Dr. Carter to determine the severity of his heart disease, or the extent to which it might interfere with his performance as a program-analyst. The stated purpose of the examination, as indicated on the COMPANY form is "to determine if . . .[the applicant] meet(s) the physical standards of the position for which . . .[he is] applying." (R.E. 4.) Several days later, COMPLAINANT was notified by Ms. Fitzpatrick that he had "flunked" the physical. Dr. Carter's brief written "Physician's Report" indicated the COMPLAINANT had "angina, on medication", and "diabetes regulated and diet"; the box labeled "unemployable at this time", was checked. (Testimony of Fenesy; R.E. 4.) COMPLAINANT protested to Ms. Fitzpatrick and tried to contact the COMPANY's affirmative action officer. He also asked Dr. Dormois (his cardiologist who was familiar with the nature of his heart disease) to call Dr. Carter to discuss his condition. On October 16, 1978, Ms. Fitzpatrick told him they would try to arrange a second physical with another doctor. Due to his resignation (extended one week), the COMPLAINANT faced unemployment as of October 20, 1978, and was anxious to quickly resolve the matter. A second physical examination was thereafter scheduled for October 20, 1978, with Phillip Hampton, M.D., a practitioner of internal medicine with specialties in both diabetes and cardiology. The COMPANY's representative involved had, at that time, resolved to go along with whatever decision was made by Dr. Hampton. (Testimony of Fenesy, Fitzpatrick, Hampton). On October 20, 1978, Dr. Hampton took the COMPLAINANT's medical history, and conducted a 15-minute physical consisting of x-rays, an electrocardiogram, blood, and urine tests. COMPLAINANT explained that he had experienced angina pectoris for approximately three years, in situations of physical exertion and stress.3 Dr. Hampton was aware that COMPLAINANT was taking vasodilatory medication to alleviate angina pain, as well as diabinese to control his diabetes. The medically recognized diagnostic test to coronary diabetes. The medically recognized diagnostic test for coronary heart disease is a coronary arteriography; however, Dr. Hampton did not administer this test to COMPLAINANT. There is one objective diagnostic test to determine whether an individual suffers from angina pectoris--the stress test. It consists of placing the patient on a treadmill requiring physical exertion; the effects of exertion on blood pressure and production of pain (angina pectoris) are detected, as are changes in the patient's electrocardiogram. However, Dr. Hampton did not perform a stress test upon COMPLAINANT. (Testimony of Fenesy, Hampton.) On October 27, 1978, Dr. Hampton notified the COMPANY of the results of his examination of COMPLAINANT: "Dear Mrs. Fitzpatrick: As a result of my examination of Mr. Charles A. Fenesy on Oct. 1978, I find that he has obesity, diabetes and angina pectoris. He would be largely relieved of diabetes and angina if he would reduce his weight to under 200 lbs. which means a loss of about 70 lbs. If he does not he is not a good risk physically and in danger of a myocardial infarction." (R.E. 3.) Based on Dr. Hampton's letter, Ms. Fitzpatrick notified COMPLAINANT on October 30, 1978, that Dr. Hampton had concurred with Dr. Carter, and that he would not be hired. COMPLAINANT asked for a letter to that effect which the COMPANY never furnished. (Testimony of Fitzpatrick, Fenesy; R.E. 3.) Neither Dr. Carter nor Dr. Hampton recommended to the COMPANY that COMPLAINANT was "employable" if he took medication to control his condition. They both were aware that he was already taking such medication. (Testimony of Hampton, Fenesy; R.E. 4.) However, after COMPLAINANT warned that he would file a grievance because of his rejection, Tannia Yarborough, the COMPANY's Equal Employment Opportunity Administrator, told him that he would be considered for employment if he submitted a letter from his doctor stating that his medical problems were under control and if he would participate in a COMPANY weight reduction program; the weight reduction program requisite was later withdrawn. [The COMPANY did not have a policy to monitor the weight of its employees.] Ms. Yarborough, who was involved in the COMPANY's decisions concerning COMPLAINANT, thought angina pectoris was a cardiac disease, and not a symptom of the disease. (Tr. 213.) She also was not aware at the time of hearing that COMPLAINANT's cardiac disease was progressive--that is could be controlled but not cured. In response to Ms. Yarborough's suggestion, COMPLAINANT's cardiologist, Dr. Dormois, wrote a letter on January 18, 1979, stating that COMPLAINANT's symptoms (angina pectoris) were under control by medication, that COMPLAINANT had shown "absolutely no tendency over the last several years to have any difficulty performing his usual assigned task," and that he had "no reason to think that in the foreseeable future that this will be greatly altered." (P.E. 4.) (Testimony of Fenesy, Yarborough; P.E. 4.) Effect of Complainant's Coronary Heart Disease on His Performance as a Program-Analyst There is insufficient evidence to establish that COMPLAINANT's coronary heart disease would adversely impact or interfere with his performance as a program-analyst with the COMPANY. The two COMPANY doctors who examined him had no awareness of the particular demands of the position for which he applied; they did not even discuss with him his extensive experience in the data processing field (18 years), and whether his disease had interfered with his work in an office environment. (Testimony of Fenesy, Hampton.) The actions of the two doctors supports an inference that the COMPANY had not enunciated, in advance, the purpose of pre-employment physicals, and the standards which apply to determining the medical "employability" of a job applicant. The COMPANY accepted the simple checking of an "unemployable" box on a form by Dr. Carter, and Dr. Hampton's reinforcing conclusion that COMPLAINANT "is not a good risk physically" (R.E.3) if he does not reduce his weight; these documents form the basis of the COMPANY's rejection. Dr. Hampton's conclusions concerning COMPLAINANT's disease were admittedly based on statistical probability, not on an individual assessment of COMPLAINANT's temperament, his defense mechanisms, and his ability to perform data processing work in an office environment. In essence, they concluded that COMPLAINANT's longevity or life expectancy is not good because of the progressive nature of his disease. (Testimony of Fenesy, Hampton; P.E. 11, R.E. 3,4.) Complainant's Lost Wages and Attorney's Fees COMPLAINANT made reasonable and diligent efforts to obtain employment after his rejection by the COMPANY. For 19 weeks he was unemployed; if the COMPANY had fulfilled its offer to employ him on October 39, 1978, he would have earned $6,576.93 during that period. He eventually secured various employment positions in the data processing field, and now works again for Pinellas County. As of the date of hearing, the difference between what he earned in those positions and what he would have earned with the COMPANY (had he been hired at $18,000 per annum) is $3,379.88. (Testimony of Fenesy; P.E. 6.) COMPLAINANT claims lost of fringe benefits which he would have received if he had remained in his job with Pinellas County in 1978; alternatively, he claims loss of fringe benefits which he would have received from the COMPANY if he had been employed since October, 1978. However, the benefits accorded by the two employers, including pensions, vacation, sick leave, and insurance coverage, are markedly dissimilar. Based on the quality of the evidence submitted on this question, any conclusion concerning COMPLAINANT's actual monetary loss in fringe benefits due to the COMPANY's action would be conjecture and unreliable. (Testimony of Fenesy; P.E. 6,9.) Because of the COMPANY's rejection of his employment application, COMPLAINANT applied for and received Social Security Disability Payments from October, 1978 through March, 1979. However, since he subsequently found gainful employment in March, 1979, (i.e., he did not remain disabled for the requisite period) the Social Security Administration retroactively denied his eligibility. He may now be required to reimburse the government for the disability payment which he received. (Testimony of Fenesy; P.E. 5.) The COMPLAINANT testified that he is obligated to pay attorney's fees of $600 in connection with this proceeding. In the absence of the COMPANY contesting this amount, it is concluded that such attorney's fees are reasonable. (Testimony of Fenesy; P.E. 6.)
Conclusions Conclusions: That Respondent engaged in an unlawful employment practice by failing or refusing to hire Petitioner because of his handicap. The Respondent failed to substantiate its asserted defense--that the absence of Petitioner's particular handicap was a bona fide occupational qualification reasonably necessary for the performance of the position for which he applied. Recommendation: That the Commission prohibit the Respondent from engaging in such practice in the future, require it to pay Petitioner lost wages and attorney's fees, and offer him employment in the next available program-analyst position. Background On November 21, 1978, Petitioner, Charles Fenesy ("COMPLAINANT"), filed a complaint of discrimination with the Intervenor, Florida Commission on Human Relations ("COMMISSION"), alleging Respondent, GTE Data Services Inc. ("COMPANY"), denied him employment because of his physical handicap--heart disease. After investigation, the COMMISSION's Executive Director issued a "Determination: Cause" on October 22, 1979, concluding that there was reasonable cause to believe that the COMPANY had committed an unlawful employment practice prohibited by Section 23.167(1), Florida Statutes (1979) [formerly Section 13.261(1), Florida Statutes (1977)]. After the parties failed to conciliate, or informally resolve the dispute, COMPLAINANT filed his Petition for Relief with the COMMISSION on February 29, 1980. Thereafter, the Petition was forwarded to the Division of Administrative Hearings for assignment of a hearing officer to conduct a Section 120.57 hearing. Final hearing was then set for May 20, 1980. Subsequently, upon the COMPANY's motion, and without objection, hearing was continued and reset for July 9, 1980. Thereafter, upon COMPLAINANT's motion, and without objection, the hearing was again continued and reset for September 10, 1980. Several pleadings were filed and disposed of prior to final hearing. On April 29, 1980, the COMMISSION's Executive Director moved to intervene as a party in this proceeding, which motion was granted. By way of affirmative defense to COMPLAINANT's Petition for Relief, the COMPANY asserted, among other things, that the Petition was untimely in that the COMMISSION had failed to comply with its own rules, Section 9D-9.05(3), Florida Administrative Code. Specifically, the COMPANY asserted that the above rule requires the service of a "Notice of Failure of Conciliation" 30 days after service of the "Determination: Cause". Records show that the COMMISSION denied the COMPANY's petition for reconsideration of the "Determination: Cause" on December 5, 1979; but the Notice of Failure of Conciliation was not issued until February 21, 180. On May 12, 1980, the COMMISSION moved to dismiss the COMPANY's affirmative defense. The COMPANY responded to the COMMISSION's motions, and moved for summary judgment. By order dated June 30, 1980, the COMMISSION's motion to dismiss the COMPANY's affirmative defense was granted on the grounds that (1) Rule 9D-9.05 does not specify the time period which a Notice of Failure of Conciliation must be issued, (2) COMPLAINANT's Petition for Relief was filed within the requisite time period from the issuance of the Notice, and (3) the COMPANY's actions contributed to the delay in issuance of the Notice. Also, the COMPANY's motion for summary judgment was denied on the ground that the conduct of the parties during settlement negotiations was not germane to the issues to be decided at final hearing. On June 18, 1980, the COMPANY moved to compel COMPLAINANT to answer interrogatories, which motion was granted on July 1, 1980. At final hearing, COMPLAINANT testified in his own behalf and offered Petitioner's Exhibit1 Nos. 3 through 7, each of which was received.2 The COMMISSION presented no witnesses or documentary evidence. At the close of hearing, the parties requested and were granted the opportunity to file proposed findings of fact and conclusions of law by October 21, 1980. Proposed findings were subsequently filed; those filed by the COMMISSION and COMPLAINANT are the subject of a pending motion to strike filed by the COMPANY.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order: Finding the COMPANY engaged in an unlawful employment practice in violation of Section 23.167(1), Florida Statutes (1979), and prohibiting such practice in the future; and Providing COMPLAINANT affirmative relief from the unlawful practice by requiring the COMPANY to (a) pay him lost wages in the amount of $9, 956.81; (b) offer him the next available program-analyst position at a salary and under conditions similar to that which he would have received in October, 1978, but for the COMPANY's unlawful practice; and (c) pay him $600 for attorney's fees incurred in this case. DONE AND ENTERED this 31st day of December, 1980, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 Telephone: (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 31st day of December, 1980.
The Issue The issue is whether Respondent failed to maintain the nutritional status of two residents, as required by 42 Code of Federal Regulations Section 482.25(i), so as to justify the imposition of a conditional license rating upon Respondent's skilled nursing facility, pursuant to Section 400.23(7)(b), Florida Statutes, and an administrative fine of $2500, pursuant to Section 400.23(1)(b), Florida Statutes.
Findings Of Fact At all material times, Respondent has owned and operated a skilled nursing facility located at 7300 Del Prado South in Boca Raton. On August 2, 2001, Petitioner completed a survey of the facility. The surveyors cited Respondent for Tag 325, which they classified as a class II (state) or Level G (federal) deficiency. Tag 325 concerns two residents: Resident #9 and Resident #18. The following four paragraphs restate the stipulation into which the parties entered at the hearing. Resident #9 was admitted to the facility on May 22, 2000, with the following diagnoses: stroke, pneumonia, stage III pressure sore at the coccyx, hypothyroidism, urosepsis diabetes, tracheotomy, respiratory dependency on a ventilator, and nutritional dependency on a percutaneous endoscopic gastronomy (PEG) feeding tube. At all times, Resident #9 was wholly dependent on internal feeding for 100 percent of his nutritional needs. At the time of the survey, Resident #9 required Glucerna at one-half strength at the rate of 60 cc hourly plus a supplemental protein powder. At the time of the survey, the coccyx of Resident #9 had a stage III wound, measuring 0.16 inches by 0.08 inches by 0.08 inches. A dietary note states that the amount of feeding for Resident #9 was below his estimated needs. However, the management of Resident #9's feeding was problematic due to his gastrointestinal problems. Resident #18 was admitted to the facility with the following diagnoses: pneumonia, dehydration, fever, atrial fibrillation, and nutritional dependence on PEG tube feeding. A dietary assessment dated July 17, 2001, did not address Resident #18's alleged seven-pound weight loss. Nothing in the clinical records for Resident #18 indicates that the alleged seven-pound weight loss was planned. Resident #18 was admitted to the facility on January 19, 2001 at 78 years of age. At that time, Respondent's staff completed a Nutrition Risk Assessment. The Nutrition Risk Assessment determined that Resident #18's desirable weight range was 128-156 pounds. At admission, Resident #18 weighed 121.5 pounds. According to Respondent's weight log for Resident #18, he weighed the following on the indicated dates in 2001: January 24--121 pounds; January 30--122.2 pounds; February 7--121 pounds; February 14--123 pounds; February 21--119 pounds; February 28--119.4 pounds; March 4--119 pounds; April 4--120 pounds; April 11--122 pounds; May 4--128 pounds; June 6--129 pounds; and July 4--122 pounds. Resident #18's weight decreased by 5.4 percent from June 6, 2001, to July 4, 2001. However, the record does not suggest that this weight loss evidenced any nutritional problems. To the contrary, for 2001, Resident #18's normal weight approximated 122 pounds. As noted in the guidelines to 42 Code of Federal Regulation Section 483.25(i), the desirable weight range stated for Resident #18 is approximate because "ideal body weight charts have not been validated for the institutionalized elderly." Thus, the guidelines warn that "weight loss (or gain) is a guide in determining nutritional status. An analysis of weight loss or gain should be examined in light of the individual's former life style as well as current diagnosis." The guidelines offer "[s]uggested parameters for evaluating significance of unplanned and undesired weight loss": five percent over one month is "significant loss" and over five percent over one month is "severe loss." Over a five-month period, Resident #18 gained one pound. Petitioner implicitly places considerable emphasis upon the 128-pound minimum desirable weight range for Resident #18, even though the guidelines suggest caution in establishing ideal weights for the institutionalized elderly. Reliance upon this minimum desirable weight allows Petitioner to ascribe significance to the loss between June 6 and July 4 of the weight gained between April 11 and May 4. However, the record fails to suggest that Resident #18 suffered any nutritional problems for the first two and one-half months of his residency at the facility, when he consistently weighed 119-122 pounds. The record likewise fails to suggest that Resident #18's gain and loss of seven pounds over a three- month period was indicative of any nutritional problems. This short-term change in Resident #18's weight appears either to have been a harmless anomaly or, as Respondent suggests, a measurement error. Evidence supportive of a measurement error is found by comparison of the weight log entry for May 4, which marked the first time Resident #18 weighed as much as 128 pounds, with the Dietary Enteral Assessment for May 2, which showed that Resident #18 weighed only 123.6 pounds two days earlier. Although the latter source documented a weight of 129 pounds on June 6, which corresponds exactly with the data from the weight log, the unlikelihood that Resident #18 gained 4.4 pounds over two days suggests measurement error, such as by using different scales. Resident #9 presents a more complicated case. She was 69 years of age at the time of admission, but suffered from complex medical problems, including serious gastrointestinal difficulties that interfered with her nutrition. At admission, Resident #9, a quadriplegic, was five feet, four inches, tall and weighed 185.4 pounds, according to her Nutrition Risk Assessment, or 191.5 pounds, according to her weight log. According to her Nutrition Risk Assessment, Resident #9's desirable weight range was from 108-132 pounds. Notwithstanding any uncertainty concerning the ideal body weights for the institutionalized elderly, Resident #9 was obese and remained so during the period at issue. Resident #9's Nutrition Risk Assessment deletes the portion of the printed form stating that Resident #9 would suffer "moderate risk" to her nutritional status if she were to lose less than 5 percent of total body weight within one month, less than 7.5 percent of total body weight within 90 days, or less than 10 percent of total body weight within six months. An updated Nutrition Risk Assessment dated June 1, 2000, notes that Resident #9 had gained six pounds, but does not delete the "moderate risk" parameters concerning rates of weight loss. Resident #9 experienced several significant weight losses while a resident at the facility. According to her weight logs, Resident #9 weighed 206-208 pounds from June 7 through August 9, 2000. On August 20, 2000, she weighed 217 pounds, and she gained two more pounds through September 13, 2000. Between September 13 and 27, Resident #9 lost 13 pounds. From September 27 to October 5, Resident #9 regained four pounds to 210 pounds. She weighed within four pounds of 210 through October 25, at which time she weighed 207.4 pounds. Petitioner contends that the first significant weight loss was from 214 pounds on October 18, 2000, to 191.0 pounds on November 14 and 15, 2000, which is a loss of ten percent of body weight within one month. It is also a loss of ten percent of body weight within three months, and the loss of merely one-half pound within six months. Although no one would opine that Resident #9 were healthier at 200+ pounds than at 191 pounds and her weight, over six months, did not change, Respondent must maintain Resident #9's nutrition at all times within the six months in question. However, the improved health at a lower weight and absence of change from admission weight are factors that must inform the determination whether Respondent maintained Resident #9's nutritional status. Petitioner contends that the next two significant weight losses occurred in December 2000 and January 2001. According to the weight log, Resident #9 weighed 184 pounds on December 6, 187 pounds on December 15, 185.4 pounds on December 20, and 186 pounds on December 28. Resident #9 thus lost seven percent of her body weight between November 8 and December 6. Resident #9 continued to lose weight in January 2001. She weighed 181.8 pounds on January 3, 175 pounds on January 10, 178 pounds on January 17, 177.6 pounds on January 24, and 176 pounds on January 30. Between the end of December and end of January, Resident #9 lost 5.4 percent of her body weight. Between December 15 and January 10, she lost 6.4 percent of her body weight. For the three months ending at the end of January, Resident #9 lost 15.1 percent of her body weight, and for the six months ending at the end of January, Resident #9 lost 15.4 percent of her body weight. On February 14, Resident #9 weighed 171.8 pounds, and on March 28 she weighed 172.4 pounds; in between, she weighed more, but never over 179 pounds. On April 4, Resident #9 weighed 167 pounds, but on April 18 and 25, she weighed, respectively, 173 and 174 pounds. Petitioner contends that the next significant weight loss was in April 2000 when she lost 6.2 percent of her body weight between March 7 and April 4. From May 2 through June 13, Resident #9 weighed from 174-178 pounds. On July 3 and July 18, she weighed 167.4 pounds and 165 pounds, respectively, but, on July 11, she weighed only 137.6 pounds. The sudden loss of 30 pounds over eight days followed by the gain of 28 pounds over the next seven days-- given a significant history of much more modest weight changes-- suggests again measurement error. This time, Petitioner seems to concede the point as in its proposed recommended order it contends only that Resident #9 suffered a six percent weight loss in July, which is the weight loss from June 6 to July 3. Despite her obesity, none of Resident #9's weight loss was planned. Among her many gastrointestinal conditions was gastroparesis, which is the impaired ability of the stomach to transport food as part of the normal digestive process, and paralytic ileus, which is the impaired ability of the intestinal tract to transport food as part of the normal digestive process. These serious digestive disorders, as exacerbated by the effect of Resident #9's diabetes on her digestive capabilities, contributed to vomiting, constipation, diarrhea, and, on at least one occasion, the aspiration of feces, which necessitated the suctioning of feces from Resident #9's mouth. At all times, Respondent's staff also had to manage the abdominal distention caused by these digestive disorders so that Resident #9's ventilator-dependent respiration was not compromised; sometimes, maintaining respiratory function required the reduction of nutrition. At other times, Resident #9's veins, already weakened by various diseases, precluded intravenous feeding. In December 2000, Resident #9 suffered a cardiac event; Resident #9's husband, who held a health-care power of attorney for his incapacitated wife, declined the suggestion of outside health care providers that Resident #9 be admitted to a hospital. Respondent's staff tried dozens of interventions, including different nutritional formulas and feeding regimes, to deal with the ever-changing digestive problems that Resident #9 presented. Unable to tolerate bolus feedings, Resident #9 received small frequent feedings, which were easier for her to digest. Unable to tolerate the prescribed caloric intake, staff reduced nutritional levels to the maximum that Resident #9 could tolerate. When Resident #9 became unable to tolerate an intravenous port, staff decided to resort to a PIC line, which penetrates less deeply into the vasculature. However, Resident #9's poor vascular condition and her husband's ongoing preference to avoid more invasive treatment options limited the utility of this option. A registered nurse practitioner working under the supervision of Resident #9's treating physician saw Resident #9 at least as often as every one to two weeks from September 2000 through the August 2001 survey. At times, under the nurse's supervision, the only relief available for Resident #9's intractable gastrointestinal problems was to allow the gut to rest by reducing foods and fluids. The nurse and physician also addressed Resident #9's hypothyroidism, which contributed to a sluggishness. Thus, while managing direct gastrointestinal problems, they were also trying to convert Resident #9 to a new, more active thyroid state--a process that explains some of the weight loss. Overall, Resident #9's weight loss, though unplanned, was not unexpected. Her health care providers properly accepted the weight loss as a secondary, unavoidable issue, as they struggled to reestablish crucial cardiopulmonary, gastrointestinal, and endocrinal functions. Respondent's staff and outside health care providers always monitored all reductions in nutritional levels, as they pursued other, more crucial treatments. Her new weight range ultimately contributed to her health. Petitioner has failed to prove by a preponderance of the evidence that Respondent at anytime failed to maintain acceptable levels of nutritional status for Resident #9 or Resident #18.
Recommendation It is RECOMMENDED that the Agency for Health Care Administration enter a final order dismissing the Administrative Complaint in DOAH Case No. 01-4331 and the Administrative Complaint in DOAH Case No. 02-0674. DONE AND ENTERED this 3rd day of July, 2002, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of July, 2002. COPIES FURNISHED: William Roberts, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308 Virginia A. Daire, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308 Nelson E. Rodney Assistant General Counsel Agency for Health Care Administration 8355 Northwest 53rd Street, First Floor Miami, Florida 33166 Karen L. Goldsmith Alex Finch Goldsmith, Grout & Lewis, P.A. Post Office Box 2011 Winter Park, Florida 32790
