Findings Of Fact At all times material hereto, Plantation was a licensed nursing home facility and participated in the Medicaid program. A nursing home that receives a superior rating is entitled to incentives based on the Florida Medicaid Reimbursement Plan. Plantation has met all the requirements for a superior rating that are enumerated in Rule lOD-29.128, Florida _Administrative Code. The only reason Plantation was not granted a superior rating was based on the Medicaid Inspection of Care, Team report. (stipulated facts) From August 21 through August 31, 1984, Plantation underwent a routine inspection by the HRS Medicaid Inspection of Care (IOC) Team. The purpose of the inspection was to review the care and treatment of Medicaid recipient patients in accordance with state and federal standards in order for the facility to receive Medicaid payment for those individuals. During the course of the inspection, several deficiencies were found by IOC Team. The deficiencies were summarized in the Medicaid Inspection of Care Team report, entitled Facility Evaluation Summary, prepared by Ms. Tranger. The report listed the deficiencies as follows: Fifteen skilled and two intermediate out of 46 medical records reviewed failed to have medication revalidated by the attending physician within the proper time frame Four of forty-six records reviewed failed to have available documentation that laboratory tests were completed in accordance with doctors' orders and medication regimen, Fourteen skilled and thirteen intermediate out of 46 medical records reviewed failed to have the Plan of Care reviewed within the proper time frame: Ten medical records were not certified within the proper time frames and fifteen medical records were not current for recertification. As to the first deficiency noted, the problem was not that the physician failed to revalidate medication, but that Ms. Tranger did not think that the physician appropriately dated the revalidation. In almost all of the cases, the problem was that Ms. Tranger did not think that the physician had personally entered the date because the date was written with a different color of ink than the doctor's signature or the handwriting appeared to be different. Ms. Tranger did not know whether the dates were written by someone in the physician's office or someone at the nursing home. It is very difficult for a nursing home to get a physician to sign and date orders properly. Plantation had a procedure for securing the doctor's signature and having records dated. When a record was received that was not properly signed and dated, Plantation returned the record to the doctor with a letter or note telling the doctor what needed to be done. When returned by the doctor to Plantation, the record would bear the later date, which caused some records to be out of' compliance with the required time frames. The return to the doctor of records that were not properly dated may also explain why some of he dates were written in a different color ink than the doctor's signature. In those few cases where the dates on the report were not within the proper time frame, the dates were only a few days off. In one case a 34 day period, from July 7, 1984 to August 10, 1984, elapsed before the medication was revalidated. In another case, there were 33 days between the dates. In both cases the medication should have been revalidated every 30 days. The problem with the revalidation dates was strictly a paperwork problem and not one that affected the care of the patients. As stated before, in the majority of the cases the medication was revalidated within the proper time frame. The problem was simply that it appeared that someone other than the doctor had written down the date. The second deficiency was a finding by the surveyors that 4 of the 46 medical records reviewed failed to have available documentation regarding laboratory tests being completed in accordance with doctors' orders. However, Jean Bosang, Administrator of Plantation, reviewed all of the records cited by the IOC Team as the basis for these deficiencies and could only find two instances in which laboratory tests were not performed. HRS did not present any evidence to establish the two other alleged instances. Dr. Lopez reviewed the medical records of the two residents in question and determined that there was no possibility of harm to the patient as a result of failure to perform these tests. One of the two residents is Dr. Lopez' patient, and he normally sees her every day. He stated that the test, an electrolyte examination, was a routine test, that the patient had had no previous problems, and if any problem had developed, she would have had symptoms which would have been observable to the nurses. The tests performed before and after the test that was missed were normal, and the failure to perform the one test had absolutely no effect on the patient. Dr. Lopez was familiar with the other resident upon whom a test was not performed and had reviewed her records. This resident was to have a fasting blood sugar test performed every third month. Although this test was not performed in April of 1984, it was performed timely in every other instance. All tests were normal, and the failure to perform this test did not have any effect on the resident. Had she been suffering from blood sugar problems, there would have been physical signs observable to the nurses. The fourth deficiency listed in the report was a paperwork problem similar to the first deficiency. Patients in a nursing home are classified by level of care and must be recertified from time to time. Certification does not affect the care of the resident. The recertification must be signed and dated by the physician. Again, there was a problem on the recertification because some of the dates were in a different color ink than the physician's signature. Again, the problem was primarily caused by difficulty in getting proper physician documentation. The deficiency did not affect the care of the residents. Mr. Maryanski, who made the decision not to give Plantation a superior rating, testified that of the four deficiencies cited in the IOC report, he believed that only the third deficiency listed, in and of itself, would have precluded a superior rating. An analysis of that deficiency, however, shows that it also was mainly a paperwork deficiency and had no impact on patient care. The third deficiency listed involved a purported failure to have the plans of care reviewed within the proper time frames. Patient care plans are to be reviewed every 60 days for "skilled" patients, those that need the most supervision, and every 90 days for "intermediate" patients, those that need less supervision. A patient's plan of care is a written plan establishing the manner in which each patient will be treated and setting forth certain goals to be reached. A discharge plan is also established, which is basically what the nursing home personnel believe will be the best outcome for the patient if and when he or she leaves the hospital. The patient plan of care is established at a patient care plan meeting. Patient care plan meetings are held by the various disciplines in the nursing home, such as nursing, dietary, social work and activities, to review resident records and discuss any problems with specific residents. The manner in which the problem is to be corrected is determined and then written down on the patient's plan of care record. The evidence revealed that the basis of the deficiency was not a failure to timely establish or review a plan of care, but a failure to timely write down and properly date the plan of care. During the time in question, care plan meetings were held every Wednesday, and all of the disciplines attended the meetings. However, all disciplines did not write their comments on the patients' records at the meeting; some wrote them later. Usually, when they were added later, the comments were dated on the day they were written, rather than on the day the meetings were held. The evidence presented did not show any case in which all disciplines were late in making notes, but revealed only that specific disciplines were tardy. Since all the disciplines attended one meeting, it is apparent that when the date for any discipline was timely, the later dates of other disciplines merely reflected a documentation or paperwork problem. In late 1984 or early 1985, Plantation changed its system to avoid the problem in the future. There appeared to be problems with some of the discharge plans being untimely. The discharge plan is not utilized in the day-to-day care of the resident. Discharge plans at Plantation were kept in two places, and Ms. Tranger recognized that she may have overlooked some plans if they had been written only on the separate discharge sheet. The four deficiencies cited all involved time frames. There are innumerable time frames that must be met by a nursing home. The great majority of the deficiencies involved a failure to properly document. None of the deficiencies affected the care of the patients. Indeed, Ms. Tranger indicated that the patients were all receiving proper nursing care. The decision to give Plantation a standard rating was made by Mr. Maryanski based solely on the IOC report. He relied upon section 400.23,(3) Florida Statutes, which states: "The department shall base its evaluation on the most recent annual inspection report, taking into consideration findings from other official reports, surveys, interviews, investigations and inspections." There are no regulations or written or oral policies implementing this provision. Mr. Maryanski looked solely at the face of the IOC report and did not do any independent investigation. He never visited the nursing home, and he never talked to the on-site surveyors to determine whether the deficiencies cited by the IOC Team were significant. He never saw the underlying documentation which formed the basis of the report. Mr. Maryanski has no background either in nursing or medicine and had no knowledge of purpose the tests that were allegedly not performed. On October 4, 1984, the HRS Office of Licensure and Certification (OLC) conducted the annual survey of the facility. Mr. Maryanski did not determine whether the deficiencies found by the IOC Team had been corrected at the time of the annual survey. An IOC Team surveyor returned on November 21, 1984, and found that all of the deficiencies cited during the IOC inspection had been corrected. A resurvey of the facility was conducted on December 27, 1984, by OLC. All deficiencies noted in OLC's original inspection had been corrected. All nursing home facilities in Florida are rated by HRS as conditional, standard, or superior. In addition to its financial significance, the rating of a facility is important because it affects the facility's reputation in the community and in the industry. The rating for a facility goes into effect on· the day of the follow-up visit of OLC if all deficiencies have been corrected. Therefore, Plantation would have received a superior rating, effective December 27, 1984, had it not been for the IOC report Mr. Maryanski never tried to determine whether the deficiencies in the IOC report had been corrected subsequent to the report being issued. Under rule lOD-29.128, Florida Administrative Code, there are extensive regulatory and statutory requirements which must be met for a facility to be granted a superior rating. Plantation met all of the enumerated requirements, yet it received only a standard rating. Mr. Maryanski based his determination on the IOC report despite the fact that it was outdated and the deficiencies in that report were corrected by November, 1984, prior to the December, 1984, resurvey by the OLC. There was nothing in the annual survey report of the OLC to preclude a superior rating. This is the first time a facility has been denied a superior rating based upon a report other than the annual report.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Plantation Nursing Home be given a superior rating. DONE AND ENTERED this 3rd day of March, 1986, in Tallahassee, Leon County, Florida. DIANE A. GRUBBS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of March, 1986. COPIES FURNISHED: Jonathan S. Grout, Esquire Post Office Box 1980 Orlando, Florida 32802 Harold Braynon; Esquire District X Legal Counsel, 201 West Broward Boulevard Ft. Lauderdale, Florida 33301 William Page, Jr. Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings On Proposed Findings of Fact Submitted by the Petitioner Accepted in Finding of Fact 1. 2-3. Accepted in Finding of Fact 2. 4. Accepted as set forth in Finding of Fact 21. 5-6. Accepted in Findings of Fact 22-23. 7-9. Accepted in Finding of Fact 24. 10. Rejected as immaterial. 11-12. Accepted in Findings of Fact 24-25. Accepted in Finding of Fact 19. Accepted in Finding of Fact 26. 15-16. Accepted generally in Findings of Fact 20 and 24. 17-19. Accepted generally as set forth in Finding of Fact 26. In Background section. Cumulative. Accepted in Finding of Fact 18. Accepted in Finding of Fact 12. 25-31. Accepted in substance in Findings of Fact 4-7. 32-43. Accepted in substance in Findings of Fact 8-10. 44. Rejected as not supported by the evidence. 45-46. Accepted in Finding of Fact 11. 47. Accepted in Finding of Fact 3. 48-49. Accepted in Finding of Fact 3. 50-57. Accepted in general in Findings of Fact 13-16. 58. Accepted in Finding of Fact 17. Rulings On Proposed Findings of Fact Submitted by the Respondent Accepted in Finding of Fact 1. Accepted generally in Findings of Fact 1, 20, 24. Accepted in Finding of Fact 1. Accepted generally in Finding of Fact 19 and Background. 5-8. Accepted in Finding of Fact 3. Accepted in substance in Finding of Fact 2. Accepted in Finding of Fact 2. Accepted in Finding of Fact 3. Accepted in Finding of Fact 13 except as to time frame for intermediate patients which should be 90 days. Accepted that the documentation showed a gap, but proposed finding rejected in that the evidence did not show that, in fact, the patient was not reviewed with the proper time frame. Accepted, without naming the patients, and explained in Finding of Fact 6.
The Issue The issue presented for decision in this case is whether a civil penalty in the amount of $1,400.00 should be imposed on the Respondent for the repeated deficiencies cited in the Administrative Complaint dated September 14, 1998.
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: Respondent, Heartland of Zephyrhills ("Heartland"), is a nursing home licensed by and subject to regulation by AHCA, pursuant to Chapter 400, Florida Statutes. Section 400.23(8), Florida Statutes, requires AHCA to evaluate all nursing home facilities and make a determination as to their degree of compliance with the established rules at least every 15 months. The inspection and evaluation is to ensure compliance with applicable state and federal standards. The standards relevant to this case are 42 Code of Federal Regulations (C.F.R.) Section 483.25(c), Florida Statutes, and Rule 59A-4.128, Florida Administrative Code. On August 17-20, 1998, AHCA surveyed Heartland and allegedly found violations of 42 C.F.R. Section 483.25(c), Florida Statutes, which states that a facility must ensure that a resident who enters the facility without pressure sores does not develop pressure sores unless the resident’s clinical condition demonstrates that they were unavoidable, and that a resident having pressure sores receives necessary treatment to promote healing, prevent infection, and prevent new sores from developing. In the parlance of the Federal Health Care Financing Administration Form 2567 ("Form 2567") employed by AHCA to report its findings, this requirement is referenced as "F 314" or "Tag 314." Katherine Robbins is a Registered Nurse with over 20 years experience, including working as a director of nursing in an 86-bed nursing home. She is a federally certified surveyor, and now works for AHCA as a surveyor of long-term care facilities such as nursing homes. Ms. Robbins performed a portion of the survey of Heartland and wrote the deficiency notes under Tag 314 for Resident No. 1. Resident No. 1 was admitted to Heartland on January 29, 1998, with a diagnosis of dementia, osteoarthritis, anxiety, and depression. Ms. Robbins testified that diagnoses of dementia and osteoarthritis indicate a predisposition to the development of pressure sores. She testified that a diagnosis of anxiety could indicate a predisposition to pressure sores, if the patient is receiving psychoactive medications. The initial skin assessment on Resident No. 1 indicated there was no skin breakdown at the time she was admitted. Review of the patient records indicated that skin breakdown was evident on July 26, 1998, when a stage II pressure sore on the coccyx was reported. Pressure sores are graded on a scale from stage I for the least severe to stage IV for the most severe. On August 5, 1998, the facility developed a care plan to deal with the skin breakdown and prevent further breakdown caused by Resident No. 1’s decreased mobility, medications, and lack of awareness of her own needs. The resident was completely unable to care for herself, and was unable to get in and out of a chair or the bed on her own. The approaches set forth in the plan included changing the resident after each incontinent episode, increasing her intake of protein foods, and naps in the afternoon to relieve sitting pressure on the coccyx. Ms. Robbins testified that this plan was not adequate in all respects, but would have been workable had it been properly implemented. On August 17, 1998, the first day of the survey, Resident No. 1 was observed at 9:20 a.m. sitting in a wheelchair in her room. She was observed sitting in the activity room from 11:35 a.m. until 12:50 p.m., at which time she was taken to the dining room for lunch. Following lunch, she was observed sitting in her wheelchair without a change in position until 3:20 p.m., when she was taken to the shower room for a shower. Ms. Robbins testified that allowing the resident to sit in the same position would create pressure on the coccyx, where the resident already had a pressure sore. It is routine preventive care to reposition a resident who has a pressure sore or is at risk of developing pressure sores. On August 18, 1998, Resident No. 1 was observed in her room, sitting in a wheelchair and eating breakfast at 8:15 a.m. She was observed at 12:40 p.m. in the dining room, sitting in a chair without a pressure relieving air flotation jell cushion. Ms. Robbins testified that use of such a cushion would be good practice to help heal a pressure sore. Ms. Robbins testified that she asked the director of nursing about this situation, and that the director of nursing told her that Resident No. 1 was sitting in the wrong chair. The clinical record showed that wheelchair modifications had been included in Resident No. 1’s physical therapy plan, but the resident was not placed in the correct chair. Therapy notes indicated that the goal for the resident was to have a chair that would prevent posterior pelvic pressure and lower the seat so that the resident could maneuver the wheelchair safely. The resident would be able to tolerate sitting up in the wheelchair for three or four hours with repositioning being provided every two hours for bathroom needs and pressure relief. The care plan for Resident No. 1 also called for her to be assisted to bed for a nap in the afternoon. Ms. Robbins observed that the resident was not taken for a nap on either August 17 or August 18, 1998. The survey team made a collective decision to cite the Tag 314 deficiency as a class II deficiency, because the stated care plan for the resident was not followed and this was a repeat licensure deficiency. A class II deficiency is subject to a civil penalty of not less than $1,000. However, the Administrative Complaint erroneously cited this as a class III deficiency and recommended a civil penalty of only $700. The August 17-20, 1998, survey also found alleged violations of Life Safety Code ("LSC") standards set forth by the National Fire Protection Association ("NFPA"), in particular NFPA 90A LSC 12-5.2.1 and 13-5.2.1 air conditioning and ventilation standards. In the parlance of Form 2567, this requirement is referenced as "K 067." Peter Cranfield is a fire protection specialist employed by AHCA. He has over 35 years experience in the design, installation, and sales of fire protection systems, mostly in the private sector, including fire protection systems for nursing homes. Mr. Cranfield participated in the survey of Heartland and cited the facility for the K 067 deficiency. Mr. Cranfield found that the following areas of the facility did not have an operable exhaust ventilation system: the main dietary and dishwasher independent units; the No. 300 wing nurse station toilet room; and the No. 400 wing and No. 100 wing janitor closets. Mr. Cranfield brought these deficiencies to the attention of Heartland’s maintenance director, who agreed upon examination that the exhaust units did not appear to be operational. Mr. Cranfield testified that the maintenance director later told him an electrical malfunction was causing the problem. The K 067 deficiency was noted as a repeat class III citation.
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 requiring Heartland of Zephyrhills to pay a civil penalty in the amount of $1,400 for the two cited class III deficiencies. DONE AND ENTERED this 25th day of March, 1999, 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 25th day of March, 1999. COPIES FURNISHED: Karel Baarslag, Esquire Agency for Health Care Administration 2295 Victoria Avenue Fort Myers, Florida 33906 Terrie Restivo-Mock, Esquire Heartland of Zephyrhills 38220 Henry Drive Zephyrhills, Florida 33540 Sam Power, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308 Paul J. Martin, 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 Respondent committed the allegations in the notice of intent to assign a conditional license and, if so, whether Petitioner should have changed the rating of Respondent's license from standard to conditional for the period March 8 through May 30, 2001.
Findings Of Fact Petitioner is the state agency responsible for licensing and regulating nursing homes inside the state. Respondent operates a licensed nursing home at 5405 Babcock Street, Northeast, in Palm Bay, Florida (the "facility"). Petitioner conducted an annual survey of the facility that Petitioner completed on March 8, 2001 (the "March survey"). Petitioner noted the results of the survey on a Health Care Federal Administration form entitled "Statement of Deficiencies and Plan of Correction." The parties refer to the form as the HCFA 2567-L or the "2567". Petitioner conducted a follow-up survey of the facility that Petitioner completed on April 17, 2001 (the "April survey"). The 2567 is the document used to charge nursing homes with deficiencies that violate applicable law. The 2567 identifies each alleged deficiency by reference to a tag number (the "tags"). Each tag on the 2567 includes a narrative description of the allegations against Respondent and cites a provision of the relevant rule or rules in the Florida Administrative Code violated by the alleged deficiency. In order to protect the privacy of nursing home residents, the 2567 and this Recommended Order refer to each resident by a number rather than by the name of the resident. There are five tags at issue in this proceeding. The March survey cites two Class II deficiencies and three Class III deficiencies. The April survey cites repeat violations of three Class III violations. In this case, Section 400.23(8)(b) and (c), Florida Statutes (2000) establishes the deficiency classifications referred to as Classes II and III. All statutory references in this Recommended Order are to Florida Statutes (2000) unless otherwise stated. Section 400.23(8)(b) defines Class II deficiencies as those: . . . which the agency determines have a direct or immediate relationship to the health, safety, or security of the nursing home facility resident. . . . Section 400.23(8)(c) defines Class III deficiencies as those: . . . which the agency determines to have an indirect or potential relationship to the health, safety, or security of the nursing home facility residents, other than class I or class II deficiencies. The March survey sets forth allegations against Respondent in Tags F224, F282, F314, F325, and F363. Petitioner classifies Tags F224 and F314 as class II deficiencies and Tags F282, F325, and F363 as class III deficiencies. Tag F224 in the March survey generally alleges that Respondent failed to implement policies and procedures to prevent abuse to a resident by another resident. Tag F314 generally alleges that Respondent failed to provide necessary assessment, treatment, and documentation for pressure sores for one resident. Tag F282 generally alleges that the facility failed to provide care and services in accordance with the plan of care for two residents. Tag F325 generally alleges that the facility failed to ensure that one resident maintained acceptable parameters of nutritional status, including body weight. Tag F363 generally alleges that the facility failed to provide menus that meet the nutritional needs of the residents by not following menus for pureed and dysphagia diets. The April survey sets forth allegations against Respondent in Tags F282, F325, and F363. Petitioner classifies each alleged violation as a Class III deficiency. Tag F282 in the April survey generally alleges that Respondent failed to follow a resident’s plan of care by failing to provide a weighted spoon and plate guard. Tag F325 generally alleges that the facility failed to ensure that a resident maintained acceptable parameters of nutritional status, including body weight. Tag F363 generally alleges that the facility failed to ensure that menus designed to meet the nutritional needs of the residents were prepared in advance and followed. Florida Administrative Code Rule 59A-4.1288 establishes the requirement for nursing home facilities licensed by the State of Florida to adhere to federal rules and regulations as found in Section 483 of the Code of Federal Regulations (CFR). In relevant part, the state rule provides: Nursing homes that participate in Title XVIII or XIX must follow certification rules and regulations found in 42 CFR 483, Requirements for Long Term Care Facilities, September 26, 1991, which is incorporated by reference. (All references to rules are to rules promulgated in the Florida Administrative Code in effect on the date of this Recommended Order). Applicable federal and state laws require Petitioner to assign to the deficiencies alleged in the 2567 a scope and severity rating required by federal regulations. In the March survey, Petitioner assigned a "G" rating to Tags F224 and F314, both of which are Class II deficiencies. A "G" rating means that the alleged deficiency was isolated, caused actual harm to one or more residents, but did not involve substandard quality of care. Petitioner assigned a "D" rating to the three Class III deficiencies alleged in Tags F282, F325, and F363 in the March survey. A "D" rating means that there is no actual harm but there is potential for more than minimal harm without actual jeopardy. Petitioner relies on two grounds for changing Respondent's license rating from standard to conditional. When Petitioner alleges two Class II deficiencies in the 2567, as Petitioner did in the March survey, applicable rules require Petitioner to change the rating of a facility's license. Applicable rules also authorize Petitioner to change a facility's license rating when the facility does not correct Class III deficiencies within the time prescribed by Petitioner. Petitioner alleges that Respondent failed to correct three Class III deficiencies alleged in Tags F282, F325, and F363 in the March survey by the time Petitioner conducted the April survey. Effective March 8, 2001, Petitioner changed the rating of the facility's license from standard to conditional. Effective May 31, 2001, Petitioner changed the rating of the facility's license from conditional to standard. The allegations in Tag F224 in the March survey pertain to two residents in the dementia unit of the facility who are identified individually as Resident 1 and Resident 13. Tag F224 in the March survey alleges that the facility failed to meet the requirements of 42 CFR Section 483.13(c). The federal regulation provides in relevant part: The facility must develop and implement written policies and procedures that prohibit mistreatment, neglect and abuse of residents and misappropriation of resident property. The facility must not use verbal, mental, sexual, or physical abuse, corporal punishment, or involuntary seclusion. The federal regulation is applicable to nursing homes in Florida pursuant to Rule 59A-4.1288. Tag F224 does not allege that the facility failed to develop the written policies required by 42 CFR Section 483.13(c) and Rule 59A-4.1288. Rather, Tag F224 alleges that Respondent failed to implement its policy. Tag F224 alleges that the facility failed to provide care and services to Resident 13 to prevent the resident from sexually intimidating a female resident identified as Resident 1. Tag F224 further alleges that Resident 13 had a past history of abusive and aggressive behavior to other residents but was not reassessed, "care planned," and monitored. The allegations in Tag F224 are based on observations of one of Petitioner's surveyors who participated in the March survey. On March 5, 2001, the surveyor observed Resident 13 in the dementia unit standing over Resident 1. The surveyor did not observe any overt sexual misconduct by Resident 13. Rather, the surveyor concluded that sexual misconduct occurred because she determined that Resident 13 was "invading [the female resident's] space," Resident 1 appeared "very anxious," "nervous," and "uncomfortable", and screamed for 15 minutes for Resident 13 to leave. The surveyor also relied on the history of Resident 13 to conclude that Resident 13 engaged in sexual misconduct on March 5, 2001. Resident 13 had, on two occasions, previously expressed a desire to have sex with female residents in the dementia unit and on other occasions had wandered into the rooms of female residents. Based on the inappropriate sexual statements by Resident 13 prior to March 5, 2001, the surveyor alleged in Tag F224 that Resident 13 engaged in sexual misconduct with Resident 1 on March 5, 2001. The preponderance of evidence does not show that Resident 13 engaged in sexual misconduct on March 5, 2001, by standing in front of Resident 1. Resident 13 did not engage in any overt sexual act or gesture. Resident 13 did not utter any inappropriate sexual comments. Resident 13 suffered from dementia and was elderly. He was mentally incapable of forming the requisite intent to sexually intimidate Resident 1 and was physically incapable of carrying out any such intent. In the absence of any overt sexual misconduct on March 5, 2001, the only evidence to support the allegation of sexual misconduct in F224 is the inference of the surveyor based on the gender difference between Residents 13 and 1 and the past history of inappropriate sexual statements by Resident 13. The inference of the observer does not satisfy the requirement for a preponderance of the evidence. The resident’s physician was qualified as an expert witness without objection. The physician testified that he was aware of Resident 13’s aggressive behavior, including the two occasions on which the resident expressed a desire to have sex with female residents. However, such incidents are typical of demented residents, do not reflect that Resident 13 was going to attack other residents in the dementia unit, and do not require any alteration to the care plan that was already in place. The only evidence that Petitioner provided to the contrary was the non-expert opinion of its surveyor. The non- expert opinion of the surveyor was insufficient to refute the physician’s expert opinion. Resident 13 suffered from severe cognitive impairment and was not physically or mentally capable of premeditating a plan to sexually intimidate Resident 1 and then carry out that plan. Resident 1 was paranoid of men. Her response to the encounter with Resident 13 was precipitated by her paranoia rather than by Resident 13's intent to sexually intimidate Resident 1. Although Resident 13 voiced a desire to have sex with other residents on two occasions during his stay at the facility, he never acted on those statements and was physically and mentally incapable of acting on them. On those two occasions, Respondent monitored Resident 13 closely but the resident did nothing to indicate that he would act on his stated desires or that he even remembered voicing them. Petitioner did not allege that Resident 13 engaged in any behavior on March 5, 2001, other than sexual misconduct. Even if Tag F224 were to have alleged that Resident 13 engaged in abuse other than sexual abuse, the preponderance of the evidence failed to show that Resident 13 engaged in non-sexual abuse. As a threshold matter, the evidence that the incident lasted for 15 minutes is not credible. It is implausible that a surveyor would allow apparent sexual intimidation to continue after she perceived the incident to be sexual intimidation, much less allow Resident 1 to endure such intimidation for 15 minutes. The surveyor testified that she could not locate a certified nursing assistant ("CNA") on the dementia unit when the incident occurred on March 5, 2001. The dementia unit is a locked unit comprised of resident rooms that open at regular intervals along a 60-foot hallway, and an activities room. There were two CNAs on duty at the time. One of those CNAs was in the hallway at the time of the alleged incident. The surveyor did not inform any member of the staff or administration at the facility that the incident had occurred before Petitioner provided Respondent with the allegations in the 2567 at the conclusion of the March survey. Resident 13’s primary behavior problem did not involve physical aggression toward other residents. Rather, the primary behavior problem was Resident 13's tendency to become aggressive with staff when they attempted to provide personal care, especially that care required for the resident's incontinence. Petitioner incorrectly concluded that the inappropriate behavior by Resident 13 indicated that he was a risk to assault or intimidate other residents. Resident 13’s historical experience at the facility did not involve aggression toward other residents. Instead, Resident 13 directed his aggressive behavior to situations with staff who were attempting to provide personal care for him. Irrespective of the proper characterization of Resident 13's behavior on March 5, 2001, the behavior did not occur because of any failure by the facility to assess Resident 13 or to develop and implement appropriate care plans to address the Resident 13's inappropriate behavior. Respondent acknowledged that Resident 13 wandered the hall, wandered into residents’ rooms, occasionally urinated in inappropriate places, and occasionally made inappropriate sexual remarks. However, those behaviors are typical of residents who suffer from dementia, and the inappropriate behavior cannot be eliminated through a care plan. Facility staff knew to monitor Resident 13 and to re- direct him if he engaged in inappropriate behavior that affected other residents. The chart for Resident 13 is replete with instances of staff consistently implementing those interventions. The care plan for Resident 13 directed staff to approach him calmly, let the resident choose the timing of his care, assess him for pain as a potential cause of agitation, and leave the resident alone and approach him later if the resident became upset during care. All of these interventions were appropriate for the identified behavior problem, and the record is replete with instances of the successful implementation of appropriate interventions. A physician saw Resident 13 and evaluated the resident almost weekly. The physician was aware of and assisted in the evaluation of the resident’s behavior. The physician considered several alternative interventions including the use of anti- anxiety medications to address the resident’s aggressiveness. The physician called in a psychiatric nurse practitioner to evaluate the resident and to recommend medications that might be effective in controlling aggressive episodes. At various times during the course of Resident 13’s stay at the facility, the physician prescribed Seraquil, Risperdal, BuSpar and Ativan for the resident. When aggressive incidents occurred, staff administered these medications with positive effects. Petitioner offered no specific evidence that any intervention used by the facility was not appropriate or that there was another intervention that the facility failed to identify and implement that would have changed any of the inappropriate behavior. Rather, the surveyor concluded that whatever the facility did was inappropriate because Resident 13’s behavioral problems did not subside or disappear while he was at the facility. The surveyor's conclusion fails to adequately understand dementia. The inappropriate behavior displayed by Resident 13 is typical of residents in a dementia unit and cannot be eliminated. Petitioner did not prove that Respondent failed to adequately reassess Resident 13. The resident’s medical record is replete with examples of efforts by the staff to continually re-evaluate the resident and to modify care plan approaches. The facility conducted quarterly re-assessments of the resident. The facility required staff to chart all incidents of inappropriate behavior in the resident’s medical record in an effort to identify any triggering events. The facility provided staff with in-service training for Resident 13 by the resident’s physician. The scope of the training encompassed the care of residents with dementia but focused in particular on the care that was required for Resident 13. The physician wanted to assure that Resident 13 would not become over-medicated and implemented frequent assessments and readjustments of the dosages of the resident's medications. Petitioner offered no evidence that Respondent failed to assess the resident in a timely manner or that any assessment performed by the facility was inappropriate. Petitioner did not allege in the March survey that the incident between Residents 13 and 1 was a result of Respondent's failure to consistently implement Respondent's policy regarding investigations of abuse. Therefore, any evidence relevant to such an allegation at the hearing is irrelevant to the allegations for which Petitioner provided adequate notice in the March survey. A contrary ruling would violate fundamental due process requirements for notice of the charges that substantially affect Respondent's license to operate the facility. Assuming arguendo that Petitioner can prove charges at the hearing that were not included in the allegations in the March survey, Petitioner's surveyor testified at the hearing that the incident she observed on March 5, 2001, occurred because the facility did not implement its policy and procedure regarding investigations of abuse of residents. As evidence of Respondent's failure to implement its policy, the surveyor contended that the facility did not properly investigate another incident described in nursing notes on January 31, 2001, before the March survey. In the January incident, the nursing notes indicated that Resident 13 made sexual advances to other residents. The implication is that the facility would have done something different with the resident had it properly investigated the January incident and would have, in turn, been able to prevent the occurrence of the incident the surveyor observed on March 5, 2001. Respondent maintains an adequate anti-abuse policy. Respondent’s anti-abuse policy requires its designated staff members to investigate and report to abuse agencies, if necessary, any suspected incidence of abuse of its residents. However, the facility did not fail to implement this policy with regard to Resident 13. Abuse is defined in Respondent's policy as the "willful infraction [sic] of injury . . . resulting in physical harm, pain or mental anguish." Due to Resident 13's dementia, he was not capable of willfully inflicting harm on anyone. No facility investigator could reasonably conclude that an incident involving Resident 13 constituted abuse within the meaning of the written policy of the facility. Even if the incident described in the January 31, 2001, nursing notes were relevant to the allegations in the March survey, Petitioner failed to show that the incident which the surveyor observed on March 5, 2001, was the product of any failure by Respondent to implement its policy on January 31, 2001. The facility’s director of nursing adequately investigated the incident described in the nursing notes on January 31, 2001, and determined that Resident 13 made no sexual advances to anyone and did not direct any inappropriate sexual comments to other residents. Rather, the investigation found that Resident 13 made inappropriate sexual comments to a CNA. Staff appropriately monitored Resident 13 after he made that statement to the CNA, and Resident 13 did nothing to act on the statement. The director of nursing notified Resident 13’s physician, and the physician determined there was no need to alter the resident’s care plan. Petitioner failed to show that the deficiency alleged in F224 was a Class II deficiency. Petitioner presented no evidence that the incident the surveyor observed on March 5, 2001, was anything other than an isolated incident or presented a threat of harm to other residents. Tag F314 alleges that Respondent violated 42 CFR Section 483.25(c). The federal regulation requires, in relevant part: Pressure Sores. Based on the comprehensive assessment of a resident, the facility must ensure that— A resident who enters the facility without pressure sores does not develop pressure sores unless the individual’s clinical condition demonstrates that they were unavoidable; and A resident having pressure sores receives necessary treatment and services to promote healing, prevent infection and prevent new sores from developing. The federal regulation is applicable to nursing homes in Florida pursuant to Rule 59A-4.1288. The March survey alleges in Tag F314 that the facility failed to provide required treatment and services to Resident 2. The surveyor determined the facility was out of compliance after she determined that Resident 2 had pressure sores. The surveyor based her findings on her observation of Resident 2 and a review of the records. In the nursing notes of February 22, 2001, the facility noted small open areas to the left thigh, back of scrotum, and buttocks. On March 5, 2001, the resident’s medical record indicated that the resident had two reddened areas on his buttocks. On March 6, 2001, the surveyor observed that the resident had two open areas on his right buttock and two on his scrotum. Petitioner charged in F314 in the March survey that these areas were pressure sores, and that the areas identified on March 6th were those which had been initially identified on February 22, 2001. Petitioner further charged that the facility failed to provide necessary treatment and services because staff failed to notify the resident’s physician and obtain a treatment order to the areas in accordance with the facility's policy relating to pressure sore care. A threshold issue is whether the reddened areas on Resident 2 were pressure sores or were reddened areas that did not satisfy Petitioner's definition of a pressure sore. If the areas were not pressure sores, Petitioner acknowledges that there would be no deficiency and no violation of the facility's pressure sore policy. The guidelines promulgated by Petitioner to guide its surveyors in the interpretation of the standard applicable under Tag F314 define a pressure sore as: . . . ischemic ulceration and/or necrosis of tissues overlying a bony prominence that has been subjected to pressure, friction or sheer. The areas identified on February 22, 2001, were located on Resident 2’s buttocks, scrotum, and thigh. None of those areas were located over any bony prominence within the meaning of Petitioner's promulgated definition of a pressure sore. Additionally, the areas identified on February 22nd were healed the next day. Pressure sores do not typically heal overnight. A nurse practitioner examined the areas identified on March 5th and 6th during the survey. The nurse practitioner diagnosed those reddened areas as a rash. Petitioner relies on records that identify the reddened areas on forms that the facility uses for both pressure sores and reddened areas that are not located over a bony prominence. For convenience, the facility uses a single form to identify both reddened areas and pressure sores. Petitioner seeks to rely on the facility forms, including elements of the plan of care on such forms, as though they were admissions by the facility that define pressure sores and then attempt to require the facility to prove the areas are not pressure sores. Petitioner is bound by its own definition of a pressure sore, cannot deviate from that definition, and cannot rely on a different definition as a basis for disciplinary action against the licensee. Petitioner limits the definition of a pressure sore to those ischemic ulcerations and/or necrosis of tissues that overlie a bony prominence. Those ischemic ulcerations and/or necrosis of tissues that do not overlie a bony prominence are not pressure sores within the meaning of the definition adopted by the state agency. The use by the facility of pressure sore treatment forms and the use of the term pressure sore in the medical records does not create a bony prominence where none exists. The preponderance of evidence shows that the reddened areas at issue were not located over a bony prominence. Clearly, there is no bony prominence in the scrotum, thigh, or buttocks where the reddened areas were located on Resident 2. Assuming arguendo that the areas were pressure sores, Respondent provided all treatment and services to the areas necessary to promote their healing. The facility treated the areas identified on February 22, 2001, by cleansing and application of Lantiseptic, a skin protector. The effectiveness of the treatment is reflected by the complete healing of the areas on the next day. Facility staff properly notified the treating physician and treated the areas identified on March 5th with Lantiseptic. A physician’s assistant examined the areas identified in the March survey and confirmed the use of Lantiseptic on the areas. The surveyor found no record of any plan of care for the pressure sores alleged in the March survey. The facility subsequently produced a note by a nurse practitioner dated March 6, 2001, stating that Lantiseptic was applied to a rash on the buttocks and scrotum, a doctor’s order for treatment, and a care plan for pressure sores after the physician’s note of February 23, 2001. The surveyor testified that the additional documents did not alter her testimony that the areas were pressure sores and that the facility failed to provide an adequate plan of care. The testimony of the surveyor does not refute the preponderance of evidence at the hearing. The areas at issue did not overlay a bony prominence. In any event, Petitioner failed to show that the deficiency alleged in F314 in the March survey was a Class II deficiency. Even if the areas were pressure sores and it were determined that the facility failed to provide necessary treatment and services, the evidence does not demonstrate that the problem suffered by Resident 2 was systemic or likely to occur with other residents in the facility. At most, the evidence demonstrates a limited failure to provide care to one resident. Accordingly, Petitioner failed to prove that the identified deficiency presented an immediate threat to other residents in the facility. At the conclusion of Petitioner's case in chief, Respondent moved to dismiss the allegations in Tag F282 on the grounds that Tag F282 in the March and April surveys alleged different deficiencies and therefore were not relevant or material to a change in license that is based on uncorrected deficiencies. After hearing arguments from both parties, the ALJ granted the motion to dismiss with leave for Petitioner to revisit the issue in its PRO if Petitioner could provide legal authority to support its position. Petitioner argues in its PRO that the ALJ erred in granting the motion to dismiss. However, Petitioner does not cite any legal authority to support its argument. Tag F282 in the March and April surveys alleges that the facility failed to provide care and services in accordance with the plan of care for two residents in violation of 42 CFR Section 483.20(k)(ii). The federal regulation provides in relevant part: Comprehensive Care Plans. (3). The services provided or arranged by the facility must— (ii) Be provided by qualified persons in accordance with each resident’s written plan of care. The federal standard is applicable to nursing homes in Florida pursuant to Rule 59A-4.1288. In the March survey, Tag F282 did not allege that Respondent provided services to residents by unqualified staff. Instead, Tag F282 charged that Respondent's staff incorrectly fastened a clip belt in the back of Resident 21 while she was in her wheel chair and failed to toilet her once in accordance with a physician’s order. In addition, Tag F282 alleged that staff did not weigh Resident 3 weekly as required by his care plan. However, a preponderance of the evidence showed that the facility did not miss any required weights after January 13, 2001. In the April survey, Tag F282 did not allege that Respondent failed to correct the deficiencies alleged in the March survey regarding Residents 21 and 3. Nor did Tag F282 allege that Respondent failed to comply with the plan of corrections submitted by Respondent after the March survey. Rather, Tag F282 in the April survey alleged that Respondent failed to provide a plate guard and weighted spoon for Resident 7 in violation of a physician's order. Petitioner argues that the alleged deficiencies in Tag F282 in the March and April surveys, pertaining to Residents 21 and 7, respectively, involved the failure to comply with a physician's order and, therefore, represent uncorrected deficiencies. Even if Petitioner's definition of an "uncorrected deficiency" were accepted, it would not be dispositive of the issue. The evidence showed that the physician who ordered the weighted spoon and plate guard for Resident 7 terminated the order at the conclusion of the April survey. Even if Respondent failed to follow a physician's order for Residents 21 and 3 in the March survey, Respondent did not fail to follow a physician's order for Resident 7 during the April survey. Moreover, the termination of the physician's order evidences a medical determination that the failure to comply with the order did not cause any harm to Resident 7. In any event, the definition of an "uncorrected deficiency" asserted by Petitioner is not persuasive. Notwithstanding the request of the ALJ, Petitioner did not submit any legal authority to support its asserted definition of the phrase "uncorrected deficiency." In the absence of a technical definition established by statute, rule, or judicial precedent, the phrase "uncorrected deficiency" is properly construed in accordance with the plain and ordinary meaning of its terms. The allegations in Tag F282 in the March survey are rooted in a physician’s order that called for a clip belt to be placed around Resident 21 while she was in her wheelchair. The purpose of the order was to guard the safety of Resident 21. The order further directed staff to check the belt every thirty minutes and release it every two hours to toilet the resident. During the March survey, a surveyor observed that staff had placed the clip belt on Resident 21 improperly on one day, and further determined that the resident had not been taken to the toilet. Based upon that information, the surveyor charged that the facility failed to follow the doctor’s order for checking and releasing the belt. The surveyor’s observations established, at most, a single isolated instance of failure to follow the care plan for Resident 21. The surveyor's observations failed to establish a consistent failure to implement the care plan. The alleged deficiency presented no potential for harm to Resident 21. Resident 21 was cognitively alert and could notify staff if she needed to be toileted or needed her belt removed. At the time that the surveyor observed Resident 21, the resident was in a supervised setting with staff readily available to her in the event she needed attention. She was not shown to have experienced any incontinent episode or to have even requested that she be toileted or otherwise released from the belt. Petitioner acknowledges that any failure by staff to remove the resident’s belt during this time presented nothing more than a minimal risk of harm to the resident. Resident 3 was admitted to the facility on January 13, 2001, and had a care plan that called for the resident to be weighed weekly. Between the resident’s admission to the facility and the March survey, the facility weighed the resident in accordance with the care plan except for one omission in late February. This one instance of failing to do a weekly weight did not demonstrate a consistent failure to implement the care plan. Petitioner provided no evidence that this single instance of failing to weigh the resident caused the resident harm or presented even the potential for harm to the resident. After the March survey, Respondent submitted a plan of correction to address the alleged deficiencies relating to Tag F282. Applicable law precludes Respondent from arguing the validity of the alleged deficiencies in its plan of correction. In the plan of correction, Respondent indicated that it would focus on restraints and weekly weights to insure that the alleged deficiencies would not re-occur. Petitioner accepted the plan of correction and, in April, did not find that staff at the facility failed to properly apply restraints to residents, failed to do weekly weights for residents, or otherwise failed to implement the plan of correction. Petitioner charged that Respondent violated Tag F282 in April because the facility failed to provide a weighted spoon and plate guard to Resident 7 as required by a physician’s order. It is uncontroverted that the plan of correction adopted to address the March F282 deficiency pertaining to Residents 21 and 3 did not address the deficiency alleged in Tag F282 in the April survey with respect to Resident 7; and would not have prevented the deficiency alleged in the April survey pertaining to Resident 7. Accordingly, the deficiency alleged in Tag F282 in the April survey pertaining to Resident 7, even if true, did not represent an "uncorrected" deficiency. Instead, the deficiency alleged in Tag F282 in the April survey represented a new deficiency. In any event, Petitioner failed to demonstrate that the alleged failure of the facility to comply with any of the orders at issue denied residents any necessary care and treatment, or presented even the possibility that the residents would be harmed. The physician ordered the weighted spoon and plate guard for Resident 7 due to the loss of dexterity in the resident's hand needed to assist him in the consumption of his meals. Even though the plate guard and spoon were not provided to the resident after they were ordered for him, the resident had no trouble with meal consumption. His medical records reflected that he consistently consumed his meals and that he gained almost 20 pounds during the time period that the spoon and plate guard were ordered. The weight gain and food consumption are significant because the facility initially admitted the resident as a hospice resident. The absence of any medical necessity for the physician's order requiring the spoon and plate was confirmed when the facility contacted the doctor during the survey, and the doctor issued an order discontinuing the use of the plate guard and spoon. Tag F325 in the March and April surveys alleges that the facility failed to comply with the requirements of 42 CFR Section 483.25(i)(1). The federal regulation provides, in pertinent part: Nutrition. Based on a resident’s comprehensive assessment, the facility must ensure that a resident-- Maintains acceptable parameters of nutritional status, such as body weight and protein levels, unless the resident’s clinical condition demonstrates that this is not possible. . . . The federal regulation applies to nursing homes in Florida pursuant to Rule 59A-4.1288. Tag F325 alleges in the March survey that Respondent did not maintain acceptable parameters of body weight for Resident 4. Respondent does not dispute this charge. Tag F325 alleges in the April survey that Respondent did not maintain acceptable parameters of body weight for Resident 9. Resident 9 lost approximately 20 pounds between August of 2000 and April 8, 2001. However, Petitioner provided no evidence that the weight the resident lost was "unacceptable" or caused by inadequate nutritional care. Petitioner neither contended nor demonstrated that a 20-pound weight loss over seven or eight months violates any accepted dietary or health standard. Even if such a rate of weight loss were an "unacceptable nutritional parameter," Petitioner provided no evidence that Respondent failed to properly monitor Resident 9's weight, assess his dietary needs, provide the resident with an appropriate diet, or otherwise caused the weight loss. Rather, the resident’s medical records demonstrate on-going assessments of the resident by the dietary staff and numerous interventions to address the resident's weight. Petitioner alleges that Respondent failed to comply with several directives for supporting care for Resident 9. Facility staff had been directed to cue Resident 9 to use a "chin tuck" to address his risk of aspiration due to swallowing difficulties. Staff were directed to cue the resident to cough and tuck his chin anytime the staff determined that the resident's voice sounded wet. During the survey, the surveyor observed three meals in which the staff provided no cues to Resident 9. However, no cues were required of staff if the resident did not have a wet sounding voice, and the surveyor acknowledged that she did not hear the resident cough during any of her meal observations. Even if cues were required to be given to Resident 9 during the meals observed by the surveyor, the surveyor did not demonstrate that the failure to cue the resident had any negative impact either on the resident's ability to eat or on the resident's weight. Rather, the evidence shows that Resident 9 weighed 151.6 pounds on April 8, 2001, and weighed 160.2 pounds on April 20, 2001, the day after Petitioner completed the April survey. Thus, the failure of the staff to cue the resident during the observed meals did not violate a nutritional parameter. The surveyor testified that the facility failed to provide fortified foods to Resident 9 during the April survey in violation of the resident's dietary care plan. The allegations in Tag F325 in the April survey do not include the allegation of inadequate care to which the surveyor testified during the hearing. In the absence of adequate notice in the written allegations, the testimony of the surveyor cannot be used as a basis for any finding of deficiency. Even if the testimony were considered as a basis for a finding of fact, the failure to provide fortified foods did not violate any nutritional requirements. Resident 9's wife provided the resident with "home-cooked" meals to satisfy his food preferences. Petitioner acknowledges that the meals the wife supplied effectively precluded the resident from eating fortified foods provided by the facility. Moreover, Resident 9 gained weight between April 8 and 17, 2001. Tag F363 alleges in the March and April surveys that the facility failed to meet the requirements of 42 CFR Section 483.35(c)(1)-(3). The federal regulation provides in relevant part: (C) menus and nutritional adequacy. Menus must-- Meet the nutritional needs of residents in accordance with the recommended dietary allowances of the Food and Nutrition Board of the national Research Council, National Academy of Sciences; Be prepared in advance; and Be followed. The federal regulation applies to nursing homes in Florida pursuant to Rule 59A-4.1288. Tag F363 alleges that the facility’s menu for March 8, 2001, included cranberry sauce and that the facility did not serve cranberry sauce to 11 residents in the rehabilitation dining room. The surveyor who made this charge did not evaluate the meal actually provided to the residents for its nutritional adequacy. Rather, the surveyor cited the facility because the facility failed to comply with the literal terms of the printed menu. Respondent does not dispute that the facility did not serve cranberry sauce to 11 residents in its rehabilitation dining room on the day in question. The facility’s menu for March 8, 2001, consisted of roast turkey, poultry gravy, cornbread dressing, peas and carrots, mandarin oranges, bread, and cranberry sauce. The menu called for one-half tablespoon of cranberry sauce. The omission was not significant. The dietician did not include the cranberry sauce in calculating the nutritional content of the meal. The cranberry sauce was only a garnish to the plate. The remainder of the food items offered in the meal met all of the requirements for residents’ nutritional needs. Any failure by Respondent to provide the cranberry garnish presented no risk of harm to any resident. Tag F363 alleges in the April survey that Respondent provided a saltine cracker during one meal to a resident who required a pureed diet. Tag F363 also alleges that Respondent gave a bologna sandwich to a resident whose food preferences did not include bologna sandwiches. Petitioner provided no evidence that either of these residents received nutritionally inadequate meals. Petitioner’s apparent concern with the resident who was served the cracker was that she might attempt to eat it and choke on it because she required pureed foods and the cracker was not pureed. The surveyor who observed the resident acknowledged that the resident did not eat the cracker. She also acknowledged that there is a regulatory standard which requires a facility to provide a therapeutic diet to residents who require such a diet, and that a pureed diet is a therapeutic diet. Accordingly, this observation is, at most, a violation of that standard, not Tag F363, and presented nothing more than a minimal chance of harm to the resident. Petitioner failed to show that the resident who did not get the bologna sandwich was deprived of any required nutrition, or that placing a bologna sandwich in front of the resident created any risk of harm to the resident. The surveyor acknowledged that the sandwich did not remain in front of the resident for long and that the facility immediately corrected the situation by providing the resident with an acceptable substitute. Tag F363 also alleges that the facility posted for resident observation the same menu on Monday, April 17, 2001, that the facility posted on Sunday, April 16, 2001. The regulation at issue does not address how or even if menus must be posted in a nursing home. Petitioner failed to explain why posting the same menu on consecutive days would violate any regulation, rule, or statute. Respondent acknowledged that the Sunday menu was not removed on Monday, but demonstrated that different, nutritionally adequate meals were planned and served to residents on each of those days.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Agency for Health Care Administration enter a final order finding that Petitioner failed to show by a preponderance of the evidence that a factual basis existed upon which Petitioner should have issued a Conditional rating to Respondent on March 8, 2001, and revising the March 8 and April 16, 2001, 2567 reports by deleting the deficiencies described under Tags F224, F314, F282, F363 and F325 (April only); and issuing a Standard rating to Respondent to replace the previously issued Conditional rating that was in effect from March 8, 2001, until May 31, 2001. DONE AND ENTERED this 4th day of March, 2002, in Tallahassee, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of March, 2002. COPIES FURNISHED: Dennis L. Godfrey, Esquire Agency for Health Care Administration 525 Mirror Lake Drive, North, Room 310L St. Petersburg, Florida 33701 R. Davis Thomas, Qualified Representative Broad & Cassel 215 South Monroe Street, Suite 400 Tallahassee, Florida 32302 Diane Grubbs, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Suite 3431 Tallahassee, Florida 32308 William Roberts, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive Suite 3431 Tallahassee, Florida 32308
The Issue Whether Respondent violated the duly promulgated rules of the Department of Health and Rehabilitative Services by designating and continuing to designate the same person as the Assistant Administrator and the Director of Nursing of the Bonifay Nursing Home, Inc., after having been cited for such deficiency and allowed sufficient time to correct the deficiency.
Findings Of Fact An Administrative Complaint was filed by Petitioner Department of Health and Rehabilitative Services on October 27, 1980 notifying Respondent Bonifay Nursing Home, Inc., a skilled nursing care home, that Petitioner intended to impose a civil penalty of $100 for violating duly promulgated rules by designating the same person to act as Assistant Administrator and Director of Nursing of the nursing home. At the formal administrative hearing the Administrator admitted that he served more than one health facility, that at all times pertinent to the hearing the acting Assistant Nursing Home Administrator was also designated as the Director of Nursing, and that she was the only registered nurse on duty. It was admitted that no change had been made after the inspector for the Petitioner Department had called attention to this alleged violation until after the time period allowed for correcting this situation had expired and after the Petitioner had informed Respondent it intended to impose a $100 civil penalty. In mitigation Respondent presented testimony and adduced evidence showing that as the owner and operator of the nursing home he had made an effort to employ registered nurses at the home and that on the date of hearing the nursing home was in compliance with the statutes, rules and regulations. It was evident to the Hearing Officer that the nursing home serves a need in the community and that the residents appreciate the service. Petitioner Department submitted proposed findings of fact, memorandum of law and a proposed recommended order, which were considered in the writing of this order. Respondent submitted a memorandum. To the extent the proposed findings of fact have not been adopted in or are inconsistent with factual findings in this order, they have been specifically rejected as being irrelevant or not having been supported by the evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that a final order be entered by the Petitioner assessing an administrative fine not to exceed $50. DONE and ORDERED this 10th day of February, 1982, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of February, 1982. COPIES FURNISHED: John L. Pearce, Esquire Department of Health and Rehabilitative Services 2639 North Monroe Street, Suite 200-A Tallahassee, Florida 32301 Mr. J. E. Speed, Administrator Bonifay Nursing Home 108 Wagner Road Bonifay, Florida 32425 David H. Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue The issue is whether Respondent properly changed Petitioner's licensure status to conditional on June 23, 1997.
Findings Of Fact Petitioner owns and operates a nursing home in Venice, Florida. Respondent conducted a relicensure survey of Petitioner's nursing home on June 12, 1997. On June 23, 1997, Respondent issued Petitioner a new license, effective June 12, 1997, through October 31, 1997, for a skilled nursing facility. However, as a result of the deficiencies found in this survey, Respondent rated the renewal license as conditional. A resurvey on August 6, 1997, revealed that Petitioner had corrected all of the cited deficiencies, so Respondent issued a standard license, effective August 6. There are three ratings for a license: superior, standard, and conditional. Prior to the June 12 renewal, Petitioner's license was rated superior. The issuance of a conditional license adversely affects a licensee in one and possibly two ways. First, the conditional license hinders marketing and employee recruiting and retention. Second, the conditional license may affect Medicaid reimbursement levels. Even though Respondent rerated the nursing home as standard, the earlier conditional rating remains meaningful because it means that Petitioner cannot gain a superior rating for the next licensing period. Another factor militating against a determination that the present proceeding is moot is Respondent's procedure by which it does not provide licensees with an opportunity for a hearing prior to changing the rating of their nursing home licenses. As an incidental complaint to the issuance of a conditional license, Petitioner also complains of the procedure by which this Respondent issues this conditional license. Without having given Petitioner an opportunity for a hearing based on a proposed or tentative decision to change Petitioner's rating, Respondent simply issued the conditional license and gave Petitioner an opportunity to challenge this action, after the fact, in a formal administrative hearing. A mootness determination on these facts would insulate Respondent's initial action from effective challenge, despite the obvious economic impacts of the initial action. The June 12 survey reports cites three sets of Class II deficiencies, which were identified as Tags F 225, F 309, and F 314. These three tags were the sole bases for the issuance of a Conditional license. Tag F 225 concerns the investigation and documentation of an alleged incident of abuse of a resident by one of Petitioner's employees. The survey report asserts that Petitioner did not satisfy applicable legal requirements by failing, in violation of its own policies, to document in the resident's file the results of an abuse investigation report. Tag F 225 and the testimony of Respondent's witnesses at the hearing are vague as to whether the issue under Tag F 225 is that Petitioner failed to conduct an appropriate investigation or failed to document adequately that it had conducted an investigation. When pressed, Respondent's witnesses chose failure to document, perhaps in deference to the fact that Petitioner's employees clearly conducted an investigation. The alleged incident underlying this issue did not constitute abuse. A staffperson grabbed a resident's arm for an appropriate purpose and did not injure or harm the resident. Petitioner's investigation properly concluded that there was no abuse. As discussed under the conclusions of law, the subsubsubparagraph of the federal regulation allegedly violated under this tag requires only that Petitioner report to appropriate authorities any knowledge of actions by a "court of law" against an employee suggestive of unfitness to serve as facility staff. There is no proof of action by a court of law; this missing fact alone ends the inquiry under this tag. Additionally, Petitioner nonetheless reported the unfounded allegations to the state agency charged with investigating allegations of abuse, and the state agency concluded that the charge was unfounded. Tag F 309 concerns the quality of care received by six residents. As to Resident Number 6, who was in the final stages of a terminal illness, the survey report asserts that Petitioner kept him in isolation and did not offer him opportunities for socialization. Testimony at the hearing revealed that the resident was dying and did not want to socialize, but Respondent's witness opined that this was not an appropriate option. No evidence suggested that the dying resident suffered any diminution of ability to eat or use language. Respondent's witness labored under the misconception that the cited federal regulation addresses socialization (as opposed perhaps to the role of socialization in facilitating the more specific activities actually mentioned by the regulation, which is discussed in the conclusions of law). Even if the federal regulation were so broad, which it is not, the evidence certainly suggests that any diminution in socialization was unavoidable due to the resident's terminal clinical condition. The evidence reveals that Resident Number 6, who had had a gangrenous foot, suffered a staph infection of his gangrenous right foot. He was depressed, fatigued, and in pain; however, he was freely visited by staff and family. As to Resident Number 8, who had had a stroke, the survey report asserts that Petitioner failed to provide him his restorative therapy of walking and failed to document this therapy. At the time of the survey, Petitioner was short of restorative staff due to a scheduled vacation and an unscheduled bereavement absence due to the suicide of an employee's brother. When a restorative aide, who was on vacation, appeared at the nursing home and attempted to provide Respondent's surveyor with documentation concerning the therapy administered to Resident Number 8, the surveyor rejected the documentation on the grounds that it did not sufficiently identify the resident or therapist. Resident Number 8 suffered some loss of functioning--i.e., the ability to walk 400 feet--but the record does not link this loss of functioning to any brief interruption in his restorative therapy. As to Resident Number 9, the survey report states that, during the two days that surveyors were at the facility, she did not ambulate, even though her restorative nursing plan called for daily ambulation. However, she suffered no harm during this insignificant interruption in her program, from which she was successfully discharged a couple of weeks after the survey. As to Resident Number 13, who was 102 years old, the survey report notes that he was supposed to ambulate in a wheelchair. One of Respondent's surveyors noticed that a staffperson was pushing this resident's wheelchair. However, staff had assumed the responsibility of pushing this resident's wheelchair for him after he had developed pressure sores on his heels. The evidence fails to show that Petitioner's care for the treatment of Resident Number 13 had anything to do with his loss of function. As to Resident Number 26, the survey report asserts that his physician had ordered an increase in dosage of Prilosec, which aids digestion by treating the acidity associated with peptic ulcers. Three weeks passed before Petitioner's staff noticed that the change, which was on the resident's chart, had not yet been implemented. They implemented the change prior to the survey, and notified the resident's physician of the error in medication administration a couple of days later. The survey report states that Petitioner's staff documented, on May 30, 1997, that Resident Number 26 had lost 4.8 pounds, or 5.7 percent of his body weight, in one week. This weight loss occurred during the latter part of the period during which Resident Number 26 was receiving less than his prescribed amount of medication. Two of Petitioner's witnesses testified, without elaboration, that the medication error did not cause the weight loss. The survey report implies otherwise, although Respondent's witnesses were not as pronounced as Petitioner's witnesses in dealing with any link between the medication error and the weight loss. Absent the weight loss, the medication error-- consisting of a failure to raise a digestive medication--would have been insignificant and insufficient grounds for a Class II deficiency on the cited basis. However, there was a serious weight loss while the resident was undermedicated. The lack of evidence in the record proving that there was or was not a causal link between the weight loss and undermedication means that the party bearing the risk of nonpersuasion loses on this issue. As discussed in the conclusions of law, Respondent has the burden of proof; thus, for this reason alone, Petitioner prevails on this issue. As to the last resident under Tag F 309, who was not identified, the survey asserts that a restorative aide commented that he used to walk 440 feet, but does not anymore because he thinks that he does not have to. This scanty allegation provides no basis for citing Petitioner with a deficiency, even if it applies to Resident Number 8, as appears probable. Tag F 314 also concerns a quality-of-care issue-- specifically, the development and treatment of pressure sores in three residents. As to Resident Number 1, who had been in the nursing home for three years, the survey report states that, on May 12, 1997, he had developed a Stage II pressure sore on his right outer ankle. The survey report asserts that Petitioner failed to provide sufficient care to prevent the development of this pressure sore, that Resident Number 1 had suffered pressure sores in 1995, and that Petitioner should have known and treated Resident Number 1 on the basis of his being at risk for developing pressure sores. Despite a failure to document, Petitioner's staff adequately treated Resident Number 1 once the pressure sore developed. Nursing assistants required that he wear silicone pressure booties and that lotion be rubbed on the irritated skin. In addition, Petitioner has shown that the clinical condition of Resident Number 1 made pressure sores unavoidable. One of Petitioner's Assistant Directors of Nursing testified that Resident Number 1 had poor pedal pulses, indicative of poor circulation, and a history of peripheral neuropathy. The resulting decreased sensation in his feet would prevent him from feeling increased pressure and thus the need to move his feet. Despite preventative measures, Resident Number 1 developed pressure sores due to these clinical conditions. As to Resident Number 7, who had been in the nursing home for six years, the survey report asserts that she had a Stage II pressure sore--meaning that the skin was broken--but was allowed to remained seated in the same position for two hours in a position in which the pressure on the sore on her buttock was not relieved. The survey report does not allege that this pressure sore developed while Resident Number 7 resided in the nursing home. Resident Number 7 had severe dementia and was a total-care patient. She could not move independently. In fact, she sat, unmoved, in a chair for at least 4 and 3/4 hours on one of the days of the survey. The failure to move Resident Number 7 raises serious questions about the adequacy of Petitioner's treatment. However, Petitioner's Assistant Director of Nursing answered these questions when she testified that the one- centimeter pressure sore healed five days after the survey. Thus, Petitioner provided Resident Number 7 with the necessary treatment and services to promote healing. As to Resident Number 13, who had been in the nursing home for less than three months, the survey report alleges that he had developed pressure sores while in the nursing home. Resident Number 13 was the 102-year-old resident who is also discussed in Tag F 309. The survey report alleges that, on April 24, 1997, Resident Number 13 had a red left heel, red right foot, and pink right heel; on May 1, 1997, he had soft and red heels; on May 7 and 14, 1997, his pressure sores could not be staged due to dead tissue surrounding the sores; on May 20, 1997, his left heel was documented as a Stage II pressure sore, but the right heel could not be staged due to dead tissue; and Petitioner's staff did not implement any treatment until May 12, 1997. Respondent proved the allegations cited in the preceding paragraph except for the last concerning a failure to implement any treatment until May 12. Petitioner's Assistant Director of Nursing testified that Patient Number 13 was frail and debilitated. If this is a clinical condition, it is the only statement of Patient Number 13's clinical condition contained in the record. The Assistant Director of Nursing testified that the pressure sore on the left heel healed by June 3 after the usual treatment measures of turning and repositioning and heel protectors. She testified that the pressure sore on the right heel improved somewhat, but had not healed by the time of his death in January 1998 of presumably unrelated causes. The testimony of the Assistant Director of Nursing rebuts any evidence concerning inadequate treatment of Resident Number 13, but does not establish that the development of his pressure sores was clinically unavoidable. Her testimony as to Resident Number 1 identified clinical conditions that, when coupled with the early implementation of preventative measures, established that Resident Number 1's pressure sore was unavoidable. As to Resident Number 13, the Assistant Director of Nursing also testified of early implementation of preventative measures, but, in contrast to her testimony concerning Resident Number 1, she described little, if anything, of any clinical condition making the pressure sores unavoidable. If the intent of the Assistant Director of Nursing was to imply that old age coupled with frailty and debilitation provide the necessary clinical justification, she failed to establish the necessary causal relationships among pressure sores, advanced age, and frailty and debilitation-- even if the frailty and debilitation were relative to other 102-year-olds, which the record does not reveal, as opposed to the frailty and debilitation, relative to the general population, that one might expect in a 102-year-old. Without more detailed evidence concerning Resident Number 13's clinical condition, Petitioner effectively invites the creation of a safe harbor from liability for the development of pressure sores in 102-year-olds or even 102-year-olds who are frail and debilitated for their age, and the administrative law judge declines either invitation.
Recommendation It is RECOMMENDED that the Agency for Health Care Administration enter a final order dismissing the petition filed by Petitioner and rating Petitioner's license as conditional for the relevant period. DONE AND ENTERED this 7th day of July, 1998, 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 Filed with the Clerk of the Division of Administrative Hearings this 7th day of July, 1998. COPIES FURNISHED: Donna H. Stinson Broad and Cassell Post Office Drawer 11300 Tallahassee, Florida 32302-1300 Karel Baarslag Agency for Health Care Administration State Regional Service Center 2295 Victoria Avenue Fort Myers, Florida 33901 Paul J. Martin, General Counsel Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Sam Power, Agency Clerk Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Douglas M. Cook, Director Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229
The Issue The issue in this case is whether Petitioner's license should be classified as conditional, pursuant to Section 400.23(8)(b), Florida Statutes (1999), and Florida Administrative Code Rule 59A-4.1288. (All chapter and section references are to Florida Statutes (1999) unless otherwise stated. Unless otherwise stated, all references to rules are to the Florida Administrative Code in effect on the date of this Recommended Order).
Findings Of Fact Respondent is the state agency responsible for evaluating nursing homes in Florida pursuant to Section 400.23(8). Petitioner is a licensed nursing home located in Titusville, Florida (the "facility"). Chapter 400 originally required Respondent to conduct a survey of each nursing home in Florida every 12 months. Each survey was commonly referred to as an annual survey. The legislature subsequently changed the survey interval to every 15 months, but each survey is still referred to as an annual survey. Respondent conducted an annual survey of the facility on November 17 through 19, 1999. The survey report is identified in the record as the "2567 Report." The parties agree that the 2567 Report is the charging document. The 2567 Report expressly determined that Petitioner failed to ensure that resident number four (the "resident") did not develop pressure sores on September 16, 1999, and that Petitioner failed to ensure that the resident received the necessary treatment and services to prevent pressure sores from developing. The parties stipulated that no other deficiency is at issue in this proceeding. The resident had developed pressure sores on June 18, 1999, but those sores had healed before September 16, 1999, and are not at issue in this proceeding. The 2567 Report determined that the alleged deficiency violates 42 Code of Federal Regulations ("CFR") Section 483.25(c). Rule 59A-4.1288 applies relevant federal regulations to Florida nursing homes. The 2567 Report identifies the standard of care at issue as Tag F314. Based on the Tag 314, Respondent issued Petitioner a nursing home operating license rated as "Conditional" for the period November 19, 1999, through December 23, 1999. The conditional license decreased the license rating for Petitioner from "Standard" to "Conditional" within the meaning of Section 400.23(8). On December 23, 1999, Respondent conducted a follow-up survey. Respondent determined that Petitioner had corrected the deficiencies in Tag F314 and issued a "Standard" license pursuant to Section 400.23(8)(a). Respondent rated the severity of alleged deficiency between November 19 and December 23, 1999, with a rating of "II". A severity rating of "II" means the deficiency presented an immediate threat to the health, safety, or security of residents in the facility. Respondent is also required to rate the deficiency under a federal classification system. Respondent assigned a scope and severity rating of "G" to the alleged deficiency between November 19 and December 23, 1999. A "G" rating means an isolated incident creates actual harm to a resident, but the resident is not in immediate jeopardy. Applicable law requires that Petitioner post the conditional license in a conspicuous place near the entrance of the facility. Petitioner did so and filed a Petition for Formal Administrative Hearing with Respondent. The Petition challenged the finding of the November survey that Petitioner committed a Class II deficiency and also challenged Respondent's decision to issue a conditional license to Petitioner. Respondent referred the Petition to DOAH and this proceeding ensued. Open Areas A threshold issue is whether the resident developed pressure sores or whether the open areas were reddened areas or friction blisters that did not satisfy the definition of pressure sores. A pressure sore is defined in 42 CFR Section 483.25(c) as: . . . ischemic ulceration and/or necrosis of tissues overlying a bony prominence that has been subjected to pressure, friction or shear. Neither of the open areas over the resident's left and right hips satisfied the definition of a pressure sore. Neither open area was located over a bony area. Both wounds were located over a fatty area of the resident's hips. The medical records describe the area over the right hip as having peeled-back skin, being small in size, and having yellow slough. That description is consistent with chafing and is not descriptive of a pressure sore. Unlike the two open areas over the resident's hips, the open area over the resident's coccyx was located over a bony area of the tailbone. However, the small size and rapid healing time of two weeks are consistent with contact dermatitis caused by diarrhea rather than a pressure sore. The open area did not have the deep tissue damage associated with a pressure sore. Pressure sores start deep in the muscle and work their way to the surface. They are caused by prolonged pressure to skin over a bony area and typically require a prolonged healing time. The open area over the resident's right hip had healed by December 23, 1999, when Respondent conducted the follow-up survey. However, the open area over the resident's left hip had not healed as of the date of administrative hearing on May 12, 2000. The long healing time for the open area over the resident's left hip is consistent with a pressure sore even though the area is not located over a bony area. Petitioner performed an MRI bone scan to determine why the open area over the resident's left hip was not healing. The scan revealed that the resident had a prosthetic hip and that the prosthesis had loosened. The MRI scan noted that the "skin wound shows no associated bone activity." The failure of the wound to heal, more likely than not, was caused by stress on the resident's skin from the interaction between the loose prosthesis and the contraction and relaxation of the resident's muscles. The resident's clinical condition demonstrates that the occurrence of the open area over the resident's left hip and its failure to heal were unavoidable. Petitioner did not fail to provide the treatment and services necessary to prevent the open area over the left hip from developing. The treatment measures used by Petitioner for the open area over the resident's left hip included debridement, or surgical cleaning. Surgical cleaning of the open area is appropriate for a friction blister as well as a pressure sore. Unlike Respondent's witness, both of the witnesses for Petitioner actually observed the resident. The Director of Nursing and the nurse that testified for Petitioner both concluded that the three open areas on the resident were not pressure sores. Their testimony was credible and persuasive. Petitioner listed the three open areas at issue on the Pressure Ulcer Report in the medical records because that is the only form available to document open wound and treatment areas. The medical records contain six references that describe the three open areas on the resident as ulcers or decubitis wounds. Hundreds of other references in the medical records describe each of the three open areas as a wound, blistered area, or red area. Notice Assuming arguendo that the three open areas on one resident were pressure sores, a second threshold issue is whether the 2567 Report provides adequate notice of the charges against Petitioner. The parties agree that the 2567 Report charged Petitioner with allowing a pressure sore to develop and with failing to ensure that the resident received the care and services needed to prevent pressure sores from developing. However, the parties dispute whether the 2567 Report charged that Petitioner failed to provide the services necessary to promote healing. Tag F314 in the charging document provides notice to Petitioner in the following manner. Tag F314 first states the "Requirement" for the quality of care of each resident, then states the basis for the conclusion that the "Requirement" was not met for the resident, and finally states the "Findings" that allegedly support the conclusion. In relevant part, Tag F314 states: F314 483(25(c) Requirement SS=G Quality of Care (emphasis supplied) Based on the comprehensive assessment of a resident, the facility must ensure that a resident who enters the facility without pressure sores does not develop pressure sores unless the individual's clinical condition demonstrates that they were unavoidable; and a resident having pressure sores receives necessary treatment and services to promote healing, prevent infection and prevent new sores from developing. (emphasis supplied) This requirement is not met as evidenced by: The facility did not ensure that [the resident] received the care and services to prevent pressure sores from developing. (emphasis supplied) Findings: Resident #4 was admitted 1/27/98 with diagnoses of dementia, bronchitis, thrombosis and embolism. Her MDS (Minimum Data Set) dated 6/18/99 indicated she had three (3) stage II pressure sores. These apparently healed because documentation in the nurses notes dated 9/10/99, noted "no open areas". Her care plan dated 9/20/99 noted open areas to the left hip, stage II, measuring 4 x 1.5 cm and right hip, unstageable, measuring 3 cm, and sacral area, stage II, measuring 2 cm. Documentation on 10/5/99 noted the coccyx was healed and on 10/12/99, left and right hips reddened stage I. On 9/16/99 at 10:55PM, documentation in the nurses notes indicated "3 x 3 red area left hip with 2 intact blisters below". The next note on 9/17/99 at 10:30 PM indicated "preventative skin care". The pressure ulcer reports noted that the pressure sore on left and right hips was first observed on 9/16/99 as stage I. On 9/20/99, four (4) days later, both pressure sores were noted as stage II, measuring 1 cm round with the left hip having serous drainage and the right hip having scant drainage. However, nurses notes documented on 9/20/99 that the pressure sore on right hip measured cm red with brown center, left hip measured cm red with 1.5 cm soft, open white/brown center, and sacral area 2 cm red open. By 9/24/99 documentation in the pressure ulcer report noted the left hip increased in size to 2.2 x 4 cm. Documentation noted right hip increased to 1.6 x 1.4 cm 10/21/99. Nurses notes dated 9/22/99 at 7:00 PM noted, "treatment orders received from doctor", six (6) days after the pressure sore was first observed and two days after the order was faxed to the physician. Interview with charge nurses on both units on 11/16/99, at 3:30 PM and 11/17/99 at 2:00 PM revealed they did not know why the resident had developed pressure sores. Observation of the pressure sore on 11/17/99 at 1:00 PM revealed the left hip measuring 1.5 x 2.5 cm with yellow slough and the right hip measuring 1.1 x 0.7 cm with a necrotic area on top. There was no way to determine what stage the pressure sore on the left hip was at this time since it was covered with slough. The charge nurse indicated that the pressure sores had become worse over the weekend. The resident was observed on 11/18/99 from 9:35 AM in bed, lying on her back and head of bed elevated 45 degrees, 10:20 AM, lying flat on her back in bed, 11:48 AM and 12:20 PM lying on her back flat in bed. The resident's position was changed at 1:30 PM when she was turned to her left side. During the course of the survey, the resident was never observed out of bed. Additionally, the resident had a 36 pound weight loss for one year and a 13 pound weight loss for six months. There was no documentation that the facility provided services necessary to ensure that this resident did not develop pressure sores and no documentation that the physician was notified promptly after the pressure sores were first observed. Documentation revealed that the facility notified the physician when the pressure sores on both hips were stage II and six days after they were first observed. (emphasis supplied) The express terms of Tag F314 do not charge that Petitioner failed to provide the resident with the necessary treatment and services to promote healing and prevent infection. Evidence of any alleged deficiency not contained in the express terms of the charging document are not relevant and material to the allegations in the charging document. Open Areas Were Unavoidable Assuming arguendo that one or more of the three open areas on the resident were pressure sores and that the 2567 support provided adequate notice of the charge that Petitioner's services failed to promote healing and prevent infection, two issues must be determined. One issue is whether the resident's clinical condition made the occurrence of the pressure sores unavoidable. The other issue is whether Petitioner failed to provide the treatment and services necessary to prevent the pressure sores. Respondent's witness did not evaluate whether the resident's open areas were avoidable. The witness did not offer an opinion on this issue. The resident was originally admitted to the facility in 1991. She has resided there since that time except for a number of brief trips to the hospital. She is a long-term resident of the facility whose needs are well known to facility staff. By 1999, the resident was a very sick woman. Her diagnoses included: Alzheimer's disease/dementia; low thyroid; psychosis; colostomy; artrial fibrillation; mitral valve prolapse; embolism; deep vein thrombosis; dysphagia; anorexia; bronchitis; urinary track infection; electrolyte and fluid imbalance; contractures; depression; intermittent edema; periodic diarrhea; chronic incontinence of bowel and bladder; and decreased tissue tolerance. The resident was routinely evaluated by Petitioner using a Minimum Data Set ("MDS") evaluation tool. The MDS assessment of April 14, 1999, identified the resident as being at risk for, among other things, the development of pressure sores and for weight loss. Petitioner developed a care plan to address these risks. The care plan for pressure sores included prompt cleaning and drying after each incidence of incontinence; regular monitoring of skin condition; a weekly skin assessment; encouraging the resident to maintain her nutrition and hydration; turning and repositioning the resident at least every two hours; and encouraging the resident to participate in movement oriented activities to relieve pressure points. When the resident's skin became compromised and reduced the turning surfaces, Petitioner brought in an air bed. In an effort to provide the resident with the best care possible, Petitioner upgraded the air bed several times without reimbursement. The parties agree that the resident's medical condition was highly compromised and that her condition deteriorated during 1999. She had numerous clinical comorbidities and became bedfast due to the development of contractures. The major problems that required constant monitoring and adjustment to the resident care plan included chronic incontinence of the bladder that resulted in excoriation and breakdown of the resident skin. Petitioner routinely used a Foley catheter for the resident to allow her skin to heal. Once the skin healed, the catheter was removed. Once the catheter was removed, the resident would suffer from renewed excoriation and breakdown of her skin. This cycle repeated itself throughout 1999. The resident also suffered from edema throughout 1999. This resulted in her being hospitalized on June 9, 1999. Whenever the resident experienced worsening of her edema, she would be put on Lasix. When her edema abated, Petitioner discontinued its Lasix. The resident experienced weight loss as her medical condition deteriorated. She weighed 162 pounds on January 15, 1999, and 121 pounds by August 15, 1999. Her weight stabilized in August, however, and never dropped below her ideal body weight. Petitioner tried numerous interventions to stabilize and increase the resident's weight. One intervention included dietary supplements. However, dietary supplements had to be discontinued because they caused diarrhea. The resident suffered from dysphagia that created difficulty in eating and swallowing. In an attempt to overcome this condition, Petitioner gave the resident speech therapy and put her on a pureed diet. Throughout 1999, Petitioner continued to evaluate the resident's condition and to provide her with the best possible care. Petitioner gave the resident MDS evaluations seven times between March and September, 1999. All of the resident's body functions, including skin integrity, were constantly on the verge of becoming dysfunctional. On September 12 and 13, 1999, the East Coast of Florida was threatened by Hurricane Floyd. Hurricane Floyd appeared to be heading straight for Titusville. The facility administrator monitored the national disaster center, the hurricane center, and the local weather information. The facility administrator decided that Petitioner should evacuate the facility to provide for the safety of the residents. The evacuation of a nursing home is a demanding task. All residents must be fed and have liquids during the transfer. The facility has to make sure that the residents' medications and medical devices and clothes will travel with the residents. Although Petitioner doesn't usually use adult diapers on its residents, it was necessary during transport from and back to the facility because there is no ability to change resident clothing during the trip. These tasks were made all the harder because Petitioner did not have its full complement of staff due to the hurricane. All in all, it took over five hours to load the residents onto the busses for evacuation. Petitioner evacuated the residents to three central Florida nursing homes that were also short-handed due to the hurricane. Petitioner sent the resident to Plantation Bay in Kissimmee, Florida. While she was there, it was impossible to implement every element of her care plan. Care focused primarily on feeding residents, seeing that they received their medications, and keeping them clean and dry. Petitioner transported the resident's air mattress to Plantation Bay. By September 15, 1999, Hurricane Floyd had passed, and the residents returned to the facility. This again necessitated packing the residents up, placing them in adult diapers, and transporting them back to the facility. When the staff and residents returned to the facility, they found that the electric power was out temporarily. The residents' clothes could not be washed immediately and the residents had to wear adult diapers until the power was restored. On September 16, 1999, the resident underwent a complete evaluation. At that time, it was noted that she had a 3 cm. X 3 cm. red area on her left hip with two small intact blisters below the reddened area. She did not have any open areas at that time. This area was examined again the next day. At that time, the facility was providing preventive skin care and was putting barrier cream on the left hip area. On September 19, 1999, the treating physician examined the resident, and did not note anything concerning her skin integrity. On September 20, 1999, the resident had open areas on her skin for the first time. The nurse's notes on that day describe three open areas as follows: On the right hip there is a 3 cm. open area with peeled skin and a 2 cm. brown center; on the left hip there is a 4 cm. red area with a 1.5 cm. open area with a white/brown center; and on the sacral area there is a 2 cm. open area. Facility staff notified the treating physician of this development and recommended that Allevyn bandages be prescribed for all three open areas. On September 22, 1999, the treating physician notified staff that he concurred with their recommendation. Within two weeks, the area of the coccyx/sacral area had healed completely. The right hip area was completely healed within two months. The left area still had not completely healed at the time of the Final Hearing and continues to be an area of concern and a focus of treatment. On November 15, 1999, before the state survey inspection started, Petitioner had a culture done on the resident's left hip to determine if that area was infected. The results of that laboratory test showed that the area was not infected. On November 23, 1999, Petitioner debrided, or surgically cleaned, the open area on the resident's left hip in an effort to promote healing. On December 23, 1999, Petitioner had a bone scan done to the area of the resident's left hip. The scan noted that there was a possible loosening of the resident's prosthesis and that the "skin wound shows no associated bone activity". Petitioner did everything reasonably possible to prevent the resident from developing pressure sores and to treat the open areas. Petitioner performed seven MDS assessments between March and September, 1999, four Braden assessments during that period, and a weekly head-to-toe skin assessment. Petitioner inspected for skin integrity during the resident's twice-weekly showers. Petitioner turned the resident and repositioned her at least every two hours. In addition, Petitioner turned and repositioned the resident every time she was treated for incontinence and after each meal. Petitioner made every effort to keep the resident dry and clean, even though she had chronic incontinence. Petitioner routinely placed the resident on a catheter to allow her skin to heal. Once her skin was intact, the catheter was removed. However, incontinence led to further skin breakdown that, in turn, led to the catheter being put back in place. Petitioner used a barrier cream in an effort to keep the resident skin dry and clean. When indicated, Petitioner put heel-protecting booties on the resident. When the resident turning surfaces became weakened, Petitioner obtained a pressure- relieving air mattress without reimbursement and upgraded the mattress several times. Proper Care Respondent contends that Petitioner failed to provide the resident with the necessary treatment and services to promote the healing of her pressure sores and that the result of this failure was the development of infections. The particular treatment and services that Respondent alleges Petitioner did not provide are turning and repositioning the resident; notifying the resident doctor in a timely manner after the development of the open areas; and failure to address weight loss. Turning and repositioning a resident who is at risk for the development of pressure sores, or who has developed pressure sores, is a standard intervention. It keeps a resident from having prolonged pressure over any one bony prominence. The standard protocol in the industry calls for a resident to be turned and repositioned at least every two hours. Respondent asserts two grounds for finding that the resident was not turned and repositioned every two hours. First, the nurse's notes do not always state that the resident was turned and repositioned. Of 720 possible opportunities to note turning and repositioning between March 24 and November 19, 1999, the nurses' notes contain 105 entries that refer to turning and repositioning. According to Respondent's expert witness, if turning and repositioning isn't in the chart, it didn't occur. The resident was extremely compromised and was at great risk for the development of pressure sores. If the resident had been turned and repositioned only 105 times of 720 opportunities, she would have developed serious pressure ulcers on all of her weight-bearing surfaces including her heels, knees, and ankles. She would have developed Stage IV ulcers on her heels and sacrum had she not been regularly turned and repositioned. The absence of pressure sores on the resident is persuasive evidence that Petitioner regularly turned and repositioned the resident. There is no requirement or nursing standard that routine care such as turning and repositioning must be charted. Routine care is sometimes charted by nurses out of habit, but charting turnings and repositionings is not mandatory. The resident's records show that charting of certain routine items was irregular. For example, the air mattress for the resident remained in place once it was put in place. The resident's chart notes the presence of an air mattress on June 6, 8, 11, and 17. There is no mention of the air mattress in the nurses' notes of June 9, 10, 13, 14, 15, 18, 19, or 20. There are multiple nurses' notes on June 12, 21, 24, 26 and 30, wherein one of the notes mentions the air bed and others do not. Similarly, the charts note that the resident had open areas to her skin for September 16, 20, 30, and October 4 and 5, 1999. The nurses' notes for September 17, 22, 24, 29, and October 7 and 8, 1999, do not mention the resident's skin condition. The surveyor noted in relevant part: The resident was observed on 11/18/99, from 9:30 AM in bed, lying on her back and the head of bed elevated 45 degrees, 10:20 AM, lying on her back flat in bed, 11:48 AM and 12:20 PM lying on her back flat in bed. The resident's position was changed at 1:30 PM when she was turned to her left side. From this recitation, Respondent infers that the resident was not turned and repositioned for a four-hour period on November 18, 1999, and was not, therefore, regularly turned and repositioned. The resident had severe contractures that resulted in her left leg being pulled way up and across her body. Due to this condition, the resident could appear to be lying flat on her back when she was either on her back or when she was actually on her right side. The surveyor did not enter the resident's room when the surveyor made the observations contained in the survey report. The surveyor merely observed the resident briefly from the hallway. The surveyor mistakenly believed the resident was on her back when she was actually on her right side. The Director of Nursing was aware that the resident was a focus of the survey. The Director directed her CNA's, her wing managers, and her Assistant Director of Nursing to be sure that the resident was regularly turned and repositioned. The Director personally checked to confirm that the resident was regularly repositioned. She knew of her own knowledge that the resident was turned and repositioned at least every two hours and identified the person who physically did the turning. Respondent asserts that Petitioner was deficient because it did not notify the resident's doctor of her skin condition for a period of six days. Respondent bases this allegation on the fact that the first red area on the resident was observed on September 16, 1999, and the doctor's concurrence of staff's recommended treatment was not received until September 22, 1999. The resident's treating physician visited her at the facility on September 19, 1999. He did not determine that additional treatment orders were needed at that time. Facility staff first noted open areas on the resident on September 20, 1999, and notified the treating physician on that day. In the notification, staff requested that the physician approve a treatment plan that called for "cleanse w/ N/S then apply Requesting Allevyn Islands for all three. Change every three days & prn." The physician was out of town, but approved the recommendation when he returned on September 22, 1999. The resident's physician visited her after the red area was observed on her left hip, but before it became open. Petitioner notified the physician immediately upon noting the open areas. The two-day delay in getting confirmation of the recommended treatment was caused by the physician's absence and not by Petitioner. Respondent's witness testified that the resident's weight loss "was a factor that influenced the clinical outcome of the pressure ulcer," that it "was a tangible manifestation of some type of physiological symptom failure," and that the weight loss indicated that the resident was at risk for developing pressure sores. However, Petitioner knew that the resident was at risk for developing pressure sores. Petitioner prepared and implemented numerous care plans to deal with this risk. Respondent did not allege that the nutritional services provided to the resident were inadequate. The resident never dropped below her ideal body weight. The resident stabilized in August 1999, approximately 123 pounds. Petitioner provided the resident with speech therapy for dysphagia and difficulty with swallowing and digestion. Petitioner provided the resident with dietary supplements to increase her caloric intake. The supplements were discontinued because they caused diarrhea. Petitioner placed the resident on a pureed diet in an effort to make her food easier to eat. A dietitian evaluated the resident 23 times between May 27 and December 8, 1999. Respondent did not identify any dietary or nutritional intervention that Petitioner should have taken, or any ill- advised nutritional treatment that Petitioner did provide. Petitioner was aware of the resident's weight loss, constantly evaluated and reevaluated her nutritional needs and strategies for meeting them, and successfully halted her weight loss while she was still within her ideal body weight and before she suffered any breakdown of her skin. No nutritional deficiency was shown. Respondent infers that the resident's wound to her left hip became infected because it was noted at one time in the nurse's notes to have a foul odor and pus. As a part of the treatment of the resident's left hip, Petitioner applied Hydrogel directly on the wound and Polyskin over that. The dressing remained in place for three days. The dressing created a foul odor as it disintegrated over the three days it was in place. As the serous drainage of the wound mixes with the medication, it creates the appearance of pus. Petitioner had a culture done to test for infection. The culture test was ordered before the survey inspection. The test demonstrated that the resident did not have an infection. In addition, the resident's physician never prescribed an antibiotic for infection. At the time of the inspection, the resident census at the facility was 113. Of those, at least 50 percent were identified as being at risk for the development of pressure sores. Based on the national average of a 7-9 percent incidence of pressure sores on nursing home residents, one would expect that the facility would have 8 to 10 residents at any one time with pressure sores. The resident was the only resident Respondent alleged to have pressure sores. Class II Rating Assuming arguendo that the resident did actually develop three pressure sores, the greater weight of the evidence suggests that she was turned and repositioned on a regular basis at least every two hours; that her physician was properly kept abreast of changes in her condition; that her nutritional status was regularly evaluated and every effort was made to maintain her weight; and that her wounds did not become infected and were superficial and relatively mild. As such, it was not proven that the alleged deficiencies had more than an indirect or potential relationship to the health, safety, or security of the resident. The alleged deficiencies should have therefore been classified as no more than Class III deficiencies, and Petitioner should not have been issued a Conditional license.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order finding Respondent not guilty of the alleged deficiency and reinstating Respondent's license rating to standard for the period between November 19 and December 23, 2000. DONE AND ENTERED this 27th day of September, 2000, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of September, 2000. COPIES FURNISHED: Mark S. Thomas, Esquire Michael Hope, Esquire Agency for Health Care Administration Fort Knox Building 3 2727 Mahan Drive Tallahassee, Florida 32308-0543 R. Davis Thomas, Jr., Qualified Representative Jay Adams, Esquire Broad and Cassel 215 South Monroe Street, Suite 400 Tallahassee, Florida 32301 Sam Power, Agency Clerk Agency for Health Care Administration Fort Knox Building 3 2727 Mahan Drive, Suite 3431 Tallahassee, Florida 32308 Paul J. Martin, General Counsel Agency for Health Care Administration Fort Knox Building 3 2727 Mahan Drive, Suite 3431 Tallahassee, Florida 32308-5403
