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 June 14 through August 10, 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 1120 West Donegan Avenue, Kissimmee, Florida (the "facility"). Petitioner conducted an annual survey of the facility from May 7, through May 10, 2001 (the "May survey"). Petitioner conducted a follow-up survey of the facility on June 14, 2001 (the "June survey"). The May survey cites one Class III violation. The June survey cites a repeat deficiency of a Class III violation. Subsection 400.23(8)(b) and (c), Florida Statutes (2000), refers to deficiency classifications as Class I-III deficiencies. All statutory references are to Florida Statutes (2000) unless otherwise stated. Section 400.23(8)(c) defines Class III deficiencies as those deficiencies . . . 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 statutory definitions of Class I and II deficiencies are not relevant to this case because this case involves only a Class III deficiency. Florida Administrative Code Rule Rule 59A-4.1288 requires nursing home facilities licensed by the State of Florida to adhere to federal regulations in Section 483 of the Code of Federal Regulations ("CFR"). All references to rules are to rules promulgated in the Florida Administrative Code on the date of this Recommended Order. In relevant part, Rule 59A- 4.1288 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. Applicable federal regulations require Petitioner to assign a scope and severity rating to the deficiencies alleged by Petitioner. Petitioner assigned a "D" rating to the deficiencies alleged in the May and June surveys. A “D” rating means that there is no actual harm with potential for more than minimal harm that is not actual jeopardy. When Petitioner alleges that the Class III deficiency from the May survey was not corrected within the time established by the agency, the agency may change the rating of the facility license from standard to conditional. Petitioner determined in the June survey that the facility had not corrected the deficiency alleged in the May survey. Effective June 14, 2001, Petitioner changed the rating of the facility's license from standard to conditional. Petitioner noted the results of the May and June surveys 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". 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 "Tag"). Each tag on the 2567 includes a narrative description of the allegations against Respondent and cites a provision of relevant state rules violated by the alleged deficiency. There is only one tag at issue in the May and June surveys. It is Tag F282. In order to protect the privacy of nursing home residents, Tag F282, the 2567, and this Recommended Order refer to each resident by a number rather than by the name of the resident. Tag F282 alleges in the May and June survey that the facility failed to satisfy the requirements of 42 CFR Section 483.20(k)(ii). In relevant part, the federal regulation provides: 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." This standard is made applicable to nursing homes in Florida pursuant to Rule 59A-4.1288. Tag F282 does not allege that the facility provided care to residents by unqualified persons. Rather, Tag F282 alleges that Respondent failed to follow the plan of care for two residents. Tag F282 alleges in the May survey that the facility failed to provide care and services in accordance with the plan of care for Residents 3 and 1. Tag F282 alleges in the June survey that Respondent failed to follow the plan of care for Resident 1. The resident identified as Resident 1 is not the same resident in the May and June surveys. Before proceeding to the merits of the allegations in Tag F282, two policy issues must be resolved in order to make findings of fact in a manner that is consistent with Petitioner's officially stated agency policy. One issue is procedural and the other involves the definition of terms. Petitioner promulgates an officially stated policy in written guidelines entitled the State Operations Manual (the "Manual"). The Manual states agency policy regarding the interpretation and application of the regulatory standards surveyors must enforce. The Manual authorizes surveyors to determine whether a facility has complied with Tag F282 only after surveyors have identified violations of standards relating to: quality of care, defined in 42 CFR Section 483.25(a)–(m); quality of life, defined 42 CFR Section 483.15(a)–(h); or residents rights, defined 42 CFR Section 483.10(a)–(o). The state agency's written policy set forth in the Manual requires its surveyors to identify an issue of quality of care, quality of life, or residents’ rights before proceeding to a determination of whether the facility has violated Tag F282. The second issue involves the interpretation of the terms "inadequate", "incorrect", and "consistent." The Manual indicates that violations occur if surveyors can demonstrate inadequate or incorrect implementation of the care plan. The Manual does not define the term “inadequate.” The common meaning of the term suggests that something less than perfect implementation satisfies the requirements of the regulatory standard. That construction is consistent with other provisions in the Manual. The Manual further provides that violations of standards occur only if a facility fails to “consistently” implement the plan of care for a resident. Petitioner's surveyors acknowledged in their testimony that the goal for the quality of care regulations is to achieve positive resident outcomes and is identical to the goal of Tag F282. Petitioner offered no credible reason, within the meaning of Section 120.68(7)(e)3, why the standard for implementation of a resident’s care plan under Tag F282 should be stricter than that required by the quality of care regulations. Resident 3 had many compromising conditions and was near death at the time of the May survey. Resident 3 had 10 to 12 care plans to address his various medical problems and conditions. Each care plan contained an average of 15 separate interventions. One of the care plans for Resident 3 addressed the risk of developing pressure sores and contained 20 separate interventions for staff to implement. One intervention required staff to turn and reposition the resident every two hours. On May 7, 2001, a surveyor stationed herself outside of Resident 3’s room from 1:00 p.m. to 4:00 p.m. in the afternoon to observe who entered the resident’s room and what care was given to the resident. During that time, the surveyor observed that no staff member entered the room to turn and reposition the resident. The care plan required staff to turn the resident once during the three-hour period. The allegations in Tag F282 pertaining to the failure to reposition Resident 3 during a three-hour period on May 7, 2001, deviate from Petitioner's written agency policy in two respects. First, Petitioner did not cite the facility for any violation relating to quality of care, quality of life, or resident rights. Second, a single isolated failure to implement one intervention prescribed in one of 12 care plans for Resident 3, during a three-hour period, on one of four days of a survey, does not demonstrate inadequate care by failing to consistently implement a care plan. Petitioner failed to explain by a preponderance of the evidence why it deviated from its official written policy in its determination that Respondent violated the standard prescribed in Tag F282. The surveyor provided no credible explanation to justify a deviation from agency policy with respect to Resident 3. Nor did Petitioner present any evidence that Resident 3 developed any pressure sores or had any pressure sores worsen as a result of the failure to turn and reposition the resident on May 7, 2001. The evidence shows that the failure to turn and reposition Resident 3 presented nothing more than a minimal chance of negative impact. Tag F282 alleged in the May survey that the facility failed to provide care for Resident 1 in accordance with the care plan. Resident 1 suffered from a condition that caused his chin to droop toward his chest. The condition caused positioning problems for the resident while he was in his wheelchair. The physical therapist for the facility examined Resident 1 and recommended periodic placement of a Futuro cervical collar while the resident was in his wheelchair in order to elevate the resident's chin. The recommendation required staff to place the collar on the resident when he was in his wheelchair for two hours and then to remove it for two hours. Staff was not to place the collar on the resident during meals or while the resident was in bed. The resident would sometimes remove the collar after it was placed on him. On May 8, 2001, Petitioner’s surveyor made five observations of the resident between 10:45 a.m. and 1:50 p.m. The surveyor did not see the resident wearing the collar during any of the observations. The observations of the surveyor were intermittent. The surveyor did not observe Resident 1 continuously from 10:45 a.m. until 1:50 p.m. The surveyor did not know if or when the collar should have been placed on the resident during the observations on May 8, 2001. It is uncontroverted that the resident would have eaten lunch for one hour during the time that the surveyor observed the resident and that the care plan did not require staff to place the collar on the resident during meals. Petitioner offered no evidence that the failure to put the collar on the resident during the observed instances presented potential for any harm to the resident. Petitioner failed to show by a preponderance of the evidence that the facility failed to implement Resident 1’s care plan. Even if it were determined that the facility failed to consistently implement the care plan or inadequately implemented the care plan, Tag F282 deviates from Petitioner's officially stated agency policy because the tag does not charge the facility with any violation of quality of care, quality of life, or resident rights. Petitioner failed to explain why it deviated from its policy. Finally, the observed circumstances presented no more than a minimal chance of minor negative impact to Resident 1. On May 9, 2001, Petitioner's surveyor observed Resident 1 on three different occasions between 10:00 a.m. and 11:05 a.m. without the collar. The surveyor did not know if or when the collar should have been placed on the resident during that time-period. The observations of the surveyor were intermittent. The surveyor did not observe Resident 1 continuously from 10:00 a.m. until 11:05 a.m. The preponderance of the evidence failed to sustain the charge that the facility did not implement Resident 1’s care plan on May 9, 2001. The observations are insufficient to demonstrate a consistent failure to implement the care plan. Petitioner provided no credible explanation for deviating from its officially stated agency policy. Finally, the circumstances presented no chance of any harm other than minimal negative impact to the resident. Tag F282 alleges in the June survey that the facility failed to follow doctor’s orders for Resident 1 that required multi-podus boots to be applied every shift. Resident 1 in the June survey is not the same resident identified as Resident 1 in the May survey. Resident 1 in the June survey had pressure sores on his feet, and one of the interventions prescribed in the care plan required Resident 1 to wear multi-podus boots. On June 13, 2001, at 2:45 p.m., Petitioner's surveyor observed Resident 1 lying in bed without the required multi- podus boots. Resident 1 was lying on a pressure-relieving mattress so that his heels were receiving pressure relief without the need for multi-podus boots. On June 14, 2001, Petitioner's surveyor observed Resident 1 in his wheelchair in the activities room with black, hard-soled shoes on his feet instead of the multi-podus boots. The resident had dressings on his heels that protected them and was sitting so that his heels bore no weight. The facility maintained medical records that described the size and appearance of the pressure sores on Resident 1's heels. The records indicated that the pressure sores healed progressively after Respondent admitted Resident 1 to the facility. The area on the right heel was completely healed by June, 2001, and the area on the left heel was closed by July 2001. Petitioner deviated from its officially stated policy in two respects. First, Petitioner did not charge the facility with any violation of a quality of care, quality of life, or residents rights. Second, the instances observed by the surveyor do not demonstrate a failure to consistently implement the plan of care or a failure to provide adequate care. Petitioner offered no credible explanation for deviating from its policy. The events observed by Petitioner's surveyor, at most, presented the potential for causing no more than a minor negative impact on the resident.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration should enter a final order revising the May 10 and June 13, 2001, survey reports to delete the deficiency described under Tag F282, and replace the previously issued Conditional rating with a Standard rating. DONE AND ENTERED this 5th day of March, 2002, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of March, 2002. COPIES FURNISHED: Dennis L. Godfrey, Esquire Agency for Health Care Administration 525 Mirror Lake Drive North, Room 310L St. Petersburg, Florida 33701 R. Davis Thomas, Jr. Broad & Cassel 215 South Monroe Street, Suite 400 Post Office Box 11300 Tallahassee, Florida 32302-1300 Diane Grubbs, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308 William Roberts, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308
The Issue The issue for determination is whether Respondent committed violations of Section 468.1755, Florida Statutes, as alleged in an Administrative Complaint dated October 7, 1988, and if so, what discipline should be taken against his nursing home administrator's license.
Findings Of Fact Respondent, Robert Allen Maurer, is a licensed nursing home administrator, holding State of Florida license number NH 0002026. He is currently employed by Central Park Lodges, Inc., as a corporate administrator out of the corporate offices in Sarasota, Florida. From July 19, 1985, until February 9, 1989, Robert Maurer was the administrator at Central Park Lodges' retirement center and nursing home facility, Central Park Village, in Orlando, Florida. On April 28, 29 and 30, 1986, Grace Merifield and other staff from the Department of Health and Rehabilitative Services (HRS) Office of Licensure and Certification conducted their first annual inspection of Central Park Village. Ms. Merifield is an RN Specialist and licensed registered nurse. Ms. Merifield found several licensing rule violations, including the following, and noted them on a deficiency report form: NURSING SERVICES NH127 3 of 3 bowel or bladder retraining program patients charts reviewed lacked documentation of a formal retraining program being provided. The documentation lacked progress or lack of progress towards the retraining goal, ie., in the care plan, nurses notes or the monthly summaries. 10D-29.l08(5)(b), FAC, Rehabilitative and Restorative Nursing Care. DIETARY SERVICES NH193 1) Stainless steel polish containing toxic material was observed in the dishwasher area. Bulk ice cream and cartons of frozen foods were stored directly on the floor in the walk-in freezer. 10D-29.110(3)(g)1, FAC, Sanitary Conditions INFECTION CONTROL NH448 Infection control committee had not insured acceptable performance in that the following was observed: After a dressing change the nurse failed to wash her hands; three nurses failed to cover the table they were working off, one nurse used the bedstand along with the syringe for a tube feeding resident and returned the supplies to medical cart or medical room, cross contaminating the supplies. Floors of utility rooms were observed with dead bugs unmopped for two days of the survey. Syringe unlabeled and undated. Urinals and graduates unlabeled. Clean linen placed in inappropriate areas and soiled linen on floors, laundry bucket overflowing being pushed down the hall. 10D-29.123(2), FAC, Infection Control Committee (Petitioner's Exhibit #3) During the survey, Robert Maurer, as Administrator, and other nursing home staff met with the inspection team, took partial tours with them and participated in exit interviews, wherein the deficiencies were cited and recommendations were made for corrections. The infection control deficiencies required immediate correction, the dietary services deficiencies required correction by May 5, 1986, and the other deficiencies were to be corrected by May 30, 1986. On July 14, 1986, Ms. Merifield returned to Central Park Village for reinspection and found that most of the violations had been corrected. These, however, still remained: Stainless steel polish containing toxic materials was found in the dishwashing area, a violation of Rule 10D-29.110(3)(g)(1), Florida Administrative Code; Bulk ice cream and frozen food was stored directly on the floor in the walk-in freezer, and one of the five gallon ice cream container lids was completely off, exposing the ice cream, a violation of Rule 10D-29.110(3)(g)(1), Florida Administrative Code; Three out of three bowel or bladder retraining program program charts of residents reviewed lacked documentation, from all shifts of nurses, of a formal retraining program where progress or a lack of progress should be documented, a violation of Rule 10D-29.108(5)(b), Florida Administrative Code; The infection control committee had not insured acceptable performance, a violation of Rule 10D-29.123(2), Florida Administrative Code, in that: two nurses failed to properly cover the bedside table they were working from and cross contaminated dressing supplies; urinals and graduates were unlabeled; clean linen was placed in inappropriate areas, soiled linen was in the bathroom basin, and laundry buckets were overflowing with soiled linens in two utility rooms. After the survey in April, the facility was given a conditional license. That was changed to a standard license in October, 1986, when another inspection was conducted and no deficiencies were found. The following April, in 1987, the facility was given, and still maintains, a superior license. All of the deficiencies noted in April and July 1986 were class III, the least serious class of deficiencies, denoting an indirect or potential threat to health and safety. Deficiencies in Classes I and II are considered life-threatening or probably threatening. The number of deficiencies found at Central Park Village was not unusual. After the April inspection and before the July inspection, Robert Maurer took steps to remedy the deficiencies. Although the staff already had in-service training, additional training was given. Mr. Maurer met with the food service director and was told that a delivery had been made the morning of inspection, but that items had not been placed on the shelves by the stockman. Some of the food items had been left out to be discarded. Prior to the case at issue here, no discipline has been imposed against Robert Maurer's nursing home administrator's license.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED That a final order be entered finding Respondent guilty of a violation of Section 468.1755(1)(m), F.S., with a letter of guidance from the Probable Cause Panel of the Board. DONE AND RECOMMENDED this 11th day of October, 1989, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of October, 1989. APPENDIX The following constitute specific rulings on the findings of fact proposed by the parties: PETITIONER'S PROPOSED FINDINGS 1. and 2. Adopted in paragraph 1. Adopted in paragraph 2. Adopted in paragraph 3. Adopted in part in paragraph 5. Some of the deficiencies had to be corrected before the 30-day deadline. and 7. Adopted in paragraph 6. RESPONDENT'S PROPOSED FINDINGS Adopted in paragraph 1. Adopted in part in paragraph 1. Petitioner's exhibits #1 and #2 and Respondent's testimony at transcript, pages 54 and 55, establish that he was administrator from 1985-1989. Adopted in paragraph 2. Adopted in paragraph 6. Rejected as inconsistent with the evidence, including Respondent's testimony. Adopted in paragraph 6. Rejected as contrary to the evidence. Adopted in paragraph 9. through 11. Rejected as contrary to the weight of evidence. 12. and 13. Adopted or addressed in paragraph 8. 14. and 15. Adopted in paragraph 7. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Victoria Raughley, Esquire Dept. of Professional Regulation 1940 N. Monroe St., Suite 60 Tallahassee, FL 32399-0792 R. Bruce McKibben, Jr., Esquire P.O. Box 10651 Tallahassee, FL 32302 Mildred Gardner Executive Director Dept. of Professional Regulation Board of Nursing Home Administrators 1940 N. Monroe St., Suite 60 Tallahassee, FL 32399-0792 Kenneth E. Easley, General Counsel Dept. of Professional Regulation 1940 N. Monroe St., Suite 60 Tallahassee, FL 32399-0792
The Issue Whether, based upon a preponderance of the evidence, the Agency for Health Care Administration (AHCA) lawfully assigned conditional licensure status to Harbour Health Center for the period June 17, 2004, to June 29, 2004; whether, based upon clear and convincing evidence, Harbour Health Center violated 42 Code of Federal Regulations (C.F.R.) Section 483.25, as alleged by AHCA; and, if so, the amount of any fine based upon the determination of the scope and severity of the violation, as required by Subsection 400.23(8), Florida Statutes (2004).
Findings Of Fact Based upon stipulations, deposition, oral and documentary evidence presented at the final hearing, and the entire record of the proceeding, the following relevant findings of fact are made: At all times material hereto, AHCA was the state agency charged with licensing of nursing homes in Florida under Subsection 400.021(2), Florida Statutes (2004), and the assignment of a licensure status pursuant to Subsection 400.23(7), Florida Statutes (2004). AHCA is charged with the responsibility of evaluating nursing home facilities to determine their degree of compliance with established rules as a basis for making the required licensure assignment. Additionally, AHCA is responsible for conducting federally mandated surveys of those long-term care facilities receiving Medicare and Medicaid funds for compliance with federal statutory and rule requirements. These federal requirements are made applicable to Florida nursing home facilities pursuant to Florida Administrative Code Rule 59A-4.1288, which states that "[n]ursing homes that participate in Title XVIII or XIX must follow certification rules and regulations found in 42 C.F.R. §483, Requirements for Long Term Care Facilities, September 26, 1991, which is incorporated by reference." The facility is a licensed nursing facility located in Port Charlotte, Charlotte County, Florida. Pursuant to Subsection 400.23(8), Florida Statutes (2004), AHCA must classify deficiencies according to the nature and scope of the deficiency when the criteria established under Subsection 400.23(2), Florida Statutes (2004), are not met. The classification of any deficiencies discovered is, also, determinative of whether the licensure status of a nursing home is "standard" or "conditional" and the amount of administrative fine that may be imposed, if any. Surveyors note their findings on a standard prescribed Center for Medicare and Medicaid Services (CMS) Form 2567, titled "Statement Deficiencies and Plan of Correction" and which is commonly referred to as a "2567" form. During the survey of a facility, if violations of regulations are found, the violations are noted and referred to as "Tags." A "Tag" identifies the applicable regulatory standard that the surveyors believe has been violated, provides a summary of the violation, sets forth specific factual allegations that they believe support the violation, and indicates the federal scope and severity of the noncompliance. To assist in identifying and interpreting deficient practices, surveyors use Guides for Information Analysis Deficiency Determination/Categorization Maps and Matrices. On, or about, June 14 through 17, 2004, AHCA conducted an annual recertification survey of the facility. As to federal compliance requirements, AHCA alleged, as a result of this survey, that the facility was not in compliance with 42 C.F.R. Section 483.25 (Tag F309) for failing to provide necessary care and services for three of 21 sampled residents to attain or maintain their respective highest practicable physical, mental, and psychosocial well-being. As to the state requirements of Subsections 400.23(7) and (8), Florida Statutes (2004), and by operation of Florida Administrative Code Rule 59A-4.1288, AHCA determined that the facility had failed to comply with state requirements and, under the Florida classification system, classified the Federal Tag F309 non-compliance as a state Class II deficiency. Should the facility be found to have committed any of the alleged deficient practices, the period of the conditional licensure status would extend from June 17, 2004, to June 29, 2004. Resident 8 Resident 8's attending physician ordered a protective device to protect the uninjured left ankle and lower leg from injury caused by abrasive contact with the casted right ankle and leg. Resident 8 repeatedly kicked off the protective device, leaving her uninjured ankle and leg exposed. A 2.5 cm abrasion was noted on the unprotected ankle. The surveyors noted finding the protective device in Resident 8's bed but removed from her ankle and leg. Resident 8 was an active patient and had unsupervised visits with her husband who resided in the same facility but who did not suffer from dementia. No direct evidence was received on the cause of the abrasion noted on Resident 8's ankle. Given Resident 8's demonstrated propensity to kick off the protective device, the facility should have utilized a method of affixing the protective device, which would have defeated Resident 8's inclination to remove it. The facility's failure to ensure that Resident 8 could not remove a protective device hardly rises to the level of a failure to maintain a standard of care which compromises the resident's ability to maintain or reach her highest practicable physical, mental or psychosocial well-being. The failure to ensure that the protective device could not be removed would result in no more than minimal discomfort. Resident 10 Resident 10 has terminal diagnoses which include end- stage coronary artery disease and progressive dementia and receives hospice services from a local Hospice and its staff. In the Hospice nurse's notes for Resident 10, on her weekly visit, on May 17, 2004, was the observation that the right eye has drainage consistent with a cold. On May 26, 2004, the same Hospice nurse saw Resident 10 and noted that the cold was gone. No eye drainage was noted. No eye drainage was noted between that date and June 2, 2004. On June 3, 2004, eye drainage was noted and, on June 4, 2004, a culture of the drainage was ordered. On June 7, 2004, the lab report was received and showed that Resident 10 had a bacterial eye infection with Methicillin Resistant Staphylococcus Aureus (MRSA) bacteria. On June 8, 2004, the attending physician, Dr. Brinson, referred the matter to a physician specializing in infectious disease, and Resident 10 was placed in contact isolation. The infectious disease specialist to whom Resident 10 was initially referred was not available, and, as a result, no treatment was undertaken until a second specialist prescribed Bactrim on June 14, 2004. From June 8, 2004, until June 14, 2004, Resident 10 did not demonstrate any outward manifestations of the diagnosed eye infection. A June 9, 2004, quarterly pain assessment failed to note any discomfort, eye drainage or discoloration. In addition to noting that neither infectious control specialist had seen Resident 10, the nurses notes for this period note an absence of symptoms of eye infection. Colonized MRSA is not uncommon in nursing homes. A significant percentage of nursing home employees test positive for MRSA. The lab results for Resident 10 noted "NO WBC'S SEEN," indicating that the infection was colonized or inactive. By placing Resident 10 in contact isolation on June 8, 2004, risk of the spread of the infection was reduced, in fact, no other reports of eye infection were noted during the relevant period. According to Dr. Brinson, Resident 10's attending physician, not treating Resident 10 for MRSA would have been appropriate. The infectious disease specialist, however, treated her with a bacterial static antibiotic. That is, an antibiotic which inhibits further growth, not a bactericide, which actively destroys bacteria. Had this been an active infectious process, a more aggressive treatment regimen would have been appropriate. Ann Sarantos, who testified as an expert witness in nursing, opined that there was a lack of communication and treatment coordination between the facility and Hospice and that the delay in treatment of Resident 10's MRSA presented an unacceptable risk to Resident 10 and the entire resident population. Hospice's Lynn Ann Lima, a registered nurse, testified with specificity as to the level of communication and treatment coordination between the facility and Hospice. She indicated a high level of communication and treatment coordination. Dr. Brinson, who, in addition to being Resident 10's attending physician, was the facility's medical director, opined that Resident 10 was treated appropriately. He pointed out that Resident 10 was a terminally-ill patient, not in acute pain or distress, and that no harm was done to her. The testimony of Hospice Nurse Lima and Dr. Brinson is more credible. Resident 16 Resident 16 was readmitted from the hospital to the facility on May 24, 2004, with a terminal diagnosis of chronic obstructive pulmonary disease and was receiving Hospice care. Roxanol, a morphine pain medication, had been prescribed for Resident 16 for pain on a pro re nata (p.r.n.), or as necessary, basis, based on the judgment of the registered nurse or attending physician. Roxanol was given to Resident 16 in May and on June 1 and 2, 2004. The observations of the surveyor took place on June 17, 2004. On June 17, 2004, at 9:30 a.m., Resident 16 underwent wound care treatment which required the removal of her sweater, transfer from sitting upright in a chair to the bed, and being placed on the left side for treatment. During the transfer and sweater removal, Resident 16 made noises which were variously described as "oohs and aahs" or "ows," depending on the particular witness. The noises were described as typical noises for Resident 16 or evidences of pain, depending on the observer. Nursing staff familiar with Resident 16 described that she would demonstrate pain by fidgeting with a blanket or stuffed animal, or that a tear would come to her eye, and that she would not necessarily have cried out. According to facility employees, Resident 16 did not demonstrate any of her typical behaviors indicating pain on this occasion, and she had never required pain medication for the wound cleansing procedure before. An order for pain medication available "p.r.n.," requires a formalized pain assessment by a registered nurse prior to administration. While pain assessments had been done on previous occasions, no formal pain assessment was done during the wound cleansing procedure. A pain assessment was to be performed in the late afternoon of the same day; however, Resident 16 was sleeping comfortably. The testimony on whether or not inquiry was made during the wound cleansing treatment as to whether Resident 16 was "in pain," "okay," or "comfortable," differs. Resident 16 did not receive any pain medication of any sort during the period of time she was observed by the surveyor. AHCA determined that Resident 16 had not received the requisite pain management, and, as a result, Resident 16’s pain went untreated, resulting in harm characterized as a State Class II deficiency. AHCA's determination is not supported by a preponderance of the evidence. In the context that the surveyor considered what she interpreted as Resident 16's apparent pain, deference should have been given to the caregivers who regularly administered to Resident 16 and were familiar with her observable indications of pain. Their interpretation of Resident 16's conduct and their explanation for not undertaking a formal pain assessment are logical and are credible.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding: The facility's failure to secure the protective device to Resident 8's lower leg is not a Class II deficiency, but a Class III deficiency. The facility's care and treatment of Residents 10 and 16 did not fall below the requisite standard. The imposition of a conditional license for the period of June 17 to June 29, 2004, is unwarranted. The facility should have its standard licensure status restored for this period. No administrative fine should be levied. DONE AND ENTERED this 3rd day of June, 2005, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of June, 2005. COPIES FURNISHED: Karen L. Goldsmith, Esquire Goldsmith, Grout & Lewis, P.A. 2180 North Park Avenue, Suite 100 Post Office Box 2011 Winter Park, Florida 32790-2011 Eric Bredemeyer, Esquire Agency for Health Care Administration 2295 Victoria Avenue, Room 346C Fort Myers, Florida 33901 Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308 William Roberts, Acting General Counsel Agency for Health Care Administration Fort Knox Building, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308
The Issue The issues for determination are whether Petitioner is entitled to recover attorney's fees and costs (fees and costs) pursuant to Section 57.105, Florida Statutes (2003), and Section 120.595, Florida Statutes (2002), and, if so, what amount of fees and costs should be awarded.
Findings Of Fact The case of Agency for Health Care Administration v. Guardian Care, Inc. d/b/a Guardian Care Nursing, Case No. 02-4269 (DOAH June 5, 2003)(the underlying case) arose from allegations in an Administrative Complaint issued by the Agency for Health Care Administration (Agency) on September 27, 2002. The complaint alleged that Guardian Care, Inc. (Guardian), maintained insufficient staffing for a 120-bed nursing home that Guardian operates in Orlando, Florida (the facility). After an administrative hearing in the underlying case, the ALJ found that the Agency failed to prove any of the allegations against Guardian and, on June 5, 2003, recommended that the agency dismiss the Administrative Complaint. The agency issued a Final Order adopting the ALJ's Recommended Order on October 21, 2003. Petitioner filed the Motion for Fees and Costs with DOAH on August 11, 2003. On June 5, 2003, however, the ALJ had relinquished jurisdiction to the agency when the ALJ issued the Recommended Order. Contrary to the requirement of Subsection 120.595(1), Florida Statutes (2002), no challenge to agency action "PURSUANT TO SECTION 120.57(1)" existed at DOAH on August 11, 2003. (emphasis not supplied) The Motion for Fees and Costs was not at issue in the Recommended Order issued on June 5, 2003. The agency issued the Final Order in the underlying case on October 21, 2003. Subsection 120.57(1)(l), Florida Statutes (2002), limited the scope of the Final Order to findings of fact and conclusions of law in the Recommended Order. The Motion for Fees and Costs was not at issue in either the Recommended Order or the Final Order.
The Issue As stated in the Prehearing Stipulation filed by the parties, the "issue to be litigated is whether Petitioner is entitled to a Superior or Standard rating on its license for the period September 1, 1986 through August 31, 1987"?
Findings Of Fact The Petitioner, The Magnolias Nursing and Convalescent Center, is a 210-bed nursing home located in a four-story building in Pensacola, Florida. It is licensed as a nursing home by the State of Florida pursuant to Chapter 400, Florida Statutes. Howard Bennett and his wife have been the owners of the Petitioner since it was built in 1978. On April 28-30, 1986, and May 1-2, 1986, the Department conducted an annual Licensure and Certification survey (hereinafter referred to as the "Annual Survey") of the Petitioner's nursing home as required by Section 400.23, Florida Statutes. Based upon the Annual Survey conducted by the Department, the Department determined that the Petitioner's facility failed to meet nursing home licensure requirement numbers (NH) 100 and 102, as identified on the Department's Nursing Home Licensure Survey Report, DHRS exhibit 2. The deficiencies found by the Department and which in fact existed during the Annual Survey relating to NH 100 and 102 were as follows: The charge nurse for each shift on each of the four floors of the facility is responsible, under direction from Director of Nursing, for the total nursing activities in the facility during each tour of duty. The charge nurses are thus responsible for ensuring that nursing personnel carry out the direct nursing care needs of specific patients and assist in carrying out these nursing care needs. This responsibility is not always met in that: On the day of the survey, there were urine odors noted on the halls, rooms of fourth and third floors, indicating lack of attention by nursing. Other instances of lack of personal attention by nursing on the above mentioned floor in that: One patient required oral hygiene. Fourteen residents required fingernail care, one resident's fingernails were long, thick, and black indicating a need for attention. Two residents had redden buttocks, three residents were wet, three residents needed shaving, three residents needed hair cuts. One resident needed colostomy bag changed. One resident had a small amount of feces on backside, and was not properly cleaned around the rectum and scrotum. Several residents had on clothing that was too tight, zippers open, buttons not fasten, soil wrinkled and threads hanging around the bottom. It is also noted, that there are 116 total care, and 17 self care residents in the facility indicating a need for constant intensive nursing care to the residents. Ref. 10D-29.108(3)(d)(1) Based upon the totality of these deficiencies, it was concluded that the Petitioner failed to comply with the standard of care to be provided by the charge nurse. The deficiencies cited by the Department during the Annual Survey were classified as Class III deficiencies. The Annual Survey was conducted by Christine Denson. Ms. Denson had conducted nine to ten annual surveys of the Petitioner prior to the survey which is the subject of this proceeding. During Ms. Denson's inspection of the Petitioner's nursing home, Ms. Denson pointed out the deficiencies which are noted above to the director of nursing who accompanied Ms. Denson during her inspection. Ms. Denson normally records in some manner the identity of a resident to whom a deficiency relates; by noting the room number or bed number. Ms. Denson did not follow this procedure during the Annual Survey. Ms. Denson met with Howard Bennett, the owner of the Petitioner, at the conclusion of the Annual Survey. After Ms. Denson had explained the deficiencies she had found during her inspection, Judge Bennett stated to Ms. Denson: "I know the place is going down hill. We are letting it slide. Judge Bennett did not ask Ms. Denson for any information concerning the identity of the residents to which deficiencies related. The Petitioner had policies in effect at the time of the Annual Survey which addressed each of the deficiencies cited by the Department. Those policies were not, however, followed. Ms. Denson did not know when the residents to which the deficiencies she found related had been admitted to the Petitioner, their medical condition, how long the fingernail problems had existed or how long the residents had resided at the Petitioner. Ms. Denson did not speak to the residents about the problems she noted, review their medical or dental records or talk to any residents' physician. Finally, Ms. Denson did not remember whether any of the residents were continent or incontinent. On August 13, 1986, a letter was issued by the Department informing the Petitioner that its license rating was being converted from a superior rating to a standard rating. The August 13, 1986, letter from the Department also indicated that the deficiencies noted in the Annual Survey had been corrected based upon a July 31, 1986, follow-up inspection conducted by the Department. The Petitioner requested an administrative hearing challenging the proposed rating of its license by letter dated September 24, 1986.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued assigning a standard rating on the Petitioner's license for the period September 1, 1986, through August 31, 1987. DONE and ENTERED this 19th day of October, 1988, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of October, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4182 The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Accentance or Reason for Rejection 1-3, 6-7, 81 These are matters included in the Prehearing Stipulation. They are hereby accepted. 4-5 Statement of the issue in this case 8 Not supported by the weight of the evidence. Ms. Denson testified at pages 48-49 of the transcript that whether a nursing home was considered to be out of compliance depended on the totality of the deficiencies and that she considered all of the deficiencies she found at the Petitioner's facility. 9 12. 10-11 10. 12-13 7. 14 Irrelevant. 15-16, 19-20, 22-23, 25, 29-31 10. 17 Hearsay. 18, 28, 33-34, 36-37, 39, 41-43, 45 Hereby accepted. 21, 24, 26-27, 32, 48, 54-66, 71, 73-77 These proposed findings of fact are generally true. They all involve, however, possible explanations for the deficiencies found at the Petitioner's facility. In order for these proposed findings of fact to be relevant it would have to be concluded that the Department had the burden of dispelling any and all possible explanations for the deficiencies. Such a conclusion would not be reasonable in this case. The Department presented testimony that the deficiencies cited existed and that, taken as a whole, they supported a conclusion that the Petitioner was not providing minimum nursing care. This evidence was credible and sufficient to meet the Department's burden of proof and to shift the burden to the Petitioner to provide proof of any explanations for the deficiencies. 35 9. 38, 40, 49-51, 53, 82-83, 86-87 Irrelevant and/or argument. 43-44 1. 46-47, 51, 56, 66-67, 71-71 These proposed findings of fact are true. They are not relevant to this proceeding, however, because they involve situations at the Petitioner's facility which may explain the deficiencies. The Petitioner failed to prove that they actually were the cause of any of the deficiencies. 70, 78-80, 84-85 Conclusions of law. The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 2-3. 2 11-12. 3 4 and 6. 4 4. 5-7 Irrelevant, summary of testimony, conclusion of law. 8 9. 9 8. 10 Irrelevant. 11 8. 12 Summary of testimony and facts relating to the weight of Ms. Mayo's testimony. 13-14 Hereby accepted. 15 Argument. 16-17 Conclusions of law. 18 4. 19-20 Conclusions of law, argument and irrelevant. COPIES FURNISHED: Jonathan S. Grout, Esquire Dempsey & Goldsmith, P.A. Post Office Box 10651 Tallahassee, Florida 32302 Michael O. Mathis Staff Attorney Office of Licensure and Certification Department of Health and Rehabilitative Services 2727 Mahan Drive Tallahassee, Florida 32308 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether the Agency for Health Care Administration found deficiences at Petitioner's nursing home sufficient to support issuance of a conditional license.
Findings Of Fact Petitioner, Tampa Health Care Center, is a nursing home in Tampa, Florida, licensed by and subject to regulation by the AHCA pursuant to Chapter 400, Florida Statutes. The AHCA conducted a relicensure survey of the Tampa Health Care Center on March 25-28, 1996. During the survey, the agency reviewed twenty-four randomly selected care plans maintained at the Tampa Health Care Center. A care plan is an individualized document which describes how the facility will provide for the needs of a resident. The care plan is the result of a cooperative effort of various health care professionals who may work with the resident. Those providing input for the care plan include the following: nurse, dietician, physical therapist, and mental health and social service professionals. A care plan, along with doctor's orders and treatment sheets, serve as a workable tool in delivering services to a resident. As a result of the March 1996 survey, the AHCA determined that nine of the twenty-four care plans reviewed were deficient. Despite the problems cited in the March 1996 survey, the AHCA made no finding that the well-being of any of the residents was in jeoparady because of the cited deficiencies. Consistent with its practice and policy, the AHCA gave Tampa Health Care Center until April 28, 1996, to correct the care plan deficiencies found in March 1996. The AHCA returned to the facility on May 29, 1996, and conducted a follow-up survey to determine whether previously cited care plan deficiencies had been corrected. During the follow-up survey, the AHCA reviewed fourteen randomly selected care plans. Of the fourteen care plans reviewed, one was found to be deficient. The care plans reviewed during the follow-up survey on May 29, 1996, were not the same care plans reviewed during the March 1996 survey. Based on the May 29, 1996 follow-up survey, the AHCA concluded that the care plan of Resident 5-A had not been reviewed, revised, and updated to address current problems. Furthermore, the AHCA had determined that the care plan included an "unrealistic goal." As a result of its perceived deficiencies with the care plan, the AHCA concluded that Resident 5-A, the resident for whom the care was prepared, did not receive the necessary care and services to attain or maintain her highest practical level of physical functioning. The AHCA initially designated the care plan deficiency as a Class II deficiency. However, pursuant to an informal dispute process, the AHCA changed its classification of the care plan deficiency to a Class III deficiency. The care plan deficiency found by the AHCA involved four areas of concerns relative to Resident 5-A: (1) pressure ulcers, (2) weight, (3) mobility, and (4) perceived eating and swallowing difficulties. Resident 5-A developed a pressure ulcer on or about April 15, 1996. By May 2, 1996, the resident had developed three more pressure ulcers. An evaluation of the pressure ulcers, conducted on May 2, 1996, determined that the ulcers were "unavoidable" due to the medical condition and medical history of the resident. Treatment of the pressure ulcers was addressed and carried out pursuant to doctor's orders, nurse's notes, treatment sheets, and the complete pressure ulcer records of Resident 5-A. Moreover, the care plan of the resident, revised on May 16, 1996, adequately addressed treatment of the resident's pressure ulcers. The AHCA requires that care plans be revised every three months, unless there is a significant change in the resident's condition in the interim. The care plan for Resident 5-A was revised within the three month interval as required by the AHCA. In light of this resident's medical condition and medical history, the occurrence of the pressure ulcers did not represent a significant change requiring a revision of the care plan prior to the scheduled revision date. The AHCA also found that there was a deficiency in the rendering of treatment and care for the resident's pressure ulcers by failing to use a pressure relieving mattress. The undisputed evidence is that the Tampa Health Care Center provided the resident with this device. However, the special mattress was absent during part of the follow-up survey because the resident's bed was being repaired. Apparently the AHCA surveyor was unaware, and facility staff did not notify her, that the bed with the pressure relieving mattress had been replaced the afternoon of May 29, 1996, and prior to the conclusion of the survey. A second concern of the AHCA involved the surveyor's assumption that because the resident was receiving her food in the form of thickened liquids, the resident had difficulty swallowing. Based on this assumption, the AHCA determined that the care plan approach, to have plain water at the resident's bedside, because of her risk for urinary tract infections, was inappropriate and put the resident at risk of choking. Notwithstanding the AHCA's assumption to the contrary, it was undisputed that a speech evaluation of the resident performed on April 23, 1996, concluded that the resident had no difficulty in swallowing. Moreover, the undisputed evidence was that the resident received thickened liquids at her own request. A third area of concern regarding the care plan involved Resident 5-A's mobility and the goals and approach related thereto. From observing Resident 5-A sleeping, the AHCA surveyor concluded that the resident had contractures of the upper extremities which would prevent the resident from moving herself any distance in a wheelchair. Thus, the AHCA determined the care plan had an unrealistic goal in that it stated that the resident would be able to move herself in wheelchair to dayroom for socialization by next review date. The AHCA misread and improperly characterized the statement. First, the statement was not a goal, but an approach to be utilized to assist the Resident 5-A in achieving established goals. The two goals were that: (1) the resident would be able to tolerate being out of bed and in the wheel chair by the next review and (2) the resident would be able to move herself a short distance in the wheelchair. The approach was that staff, not the resident, would wheel the resident to the day room for socialization. Second, contrary to the AHCA conclusion regarding the resident's mobility, unrebutted evidence established that the resident did not have contractures of the hands. Thus, the established goal was realistic in that it was possible for Resident 5-A to manipulate the wheelchair a short distance, although not the distance required to get to the dayroom. Finally, the AHCA noted as a deficiency that the care plan for Resident 5-A failed to include the dietitian's recommendation of May 10, 1996, that the resident be weighed weekly. Tampa Health Care Center's policy in this regard is to weigh residents once a month unless more frequent weights are ordered by the resident's doctor. Weekly weights had not been ordered by Resident 5-A's physician. Also, there appeared to be no need to perform weekly weights since the resident's weight was stable according to federal guidelines recognized by the AHCA and applicable to nursing homes. Furthermore, the AHCA was concerned that the goal on the care plan, that the resident will have no significant weight loss by next review, was not measurable. This concern is unfounded because federal guidelines, applicable to nursing homes, including Tampa Health Care Center, define what constitutes a significant weight loss by a specified percentage. By applying this percentage to Resident 5-A's consecutive monthly weights, a determination can be made as to whether the resident has experienced any significant weight loss. Therefore, the goal, that there will be no significant weight loss, is measurable. The AHCA failed to establish that Resident 5-A did not have a care plan which was reviewed, revised, and updated as appropriate to describe the necessary care and services to attain or maintain her highest practicable level of physical function. No evidence was presented by the AHCA of any alleged violation related to staffing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Agency for Health Care Administration enter a final order issuing a standard rating to the Tampa Health Care Center and rescinding the conditional rating. DONE and ENTERED this 13th day of February, 1997, in Tallahassee, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 13th day of February, 1997. COPIES FURNISHED: Donna H. Stinson, Esquire Broad and Cassel Suite 400 215 South Monroe Street Post Office Drawer 11300 Tallahassee, Florida 32302 Thomas W. Caufman, Esquire Agency for Health Care Administration 7827 North Dale Mabry Highway Tampa, Florida 33614 Sam Power, Agency Clerk Agency for Health Care Administration Suite 3431 Fort Knox, Building Three 2727 Mahan Drive Tallahassee, Florida 32308 Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308 Douglas M. Cook, Director Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308
The Issue Whether Respondent committed the violation alleged in the Administrative Complaint, and, if so, what sanction(s), if any, should be imposed.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Respondent operates a 120-bed Skilled Nursing Facility located at 1990 S. Canal Drive, Homestead, Florida 33035 (Facility) pursuant to a license issued by the Agency. At all times material to the instant case, Edwin Coelho was the administrator of the Facility; Linda Howell was the LPN clinical coordinator at the Facility; Diane Doyle was the Facility's staff educator and infection control nurse; and Isela Palacios and Rosa Romero were Certified Nursing Assistants (CNAs) on the Facility's staff. At all times material to the instant case, E. H. was a resident of the Facility. On July 8, 2004, prior to her admission to the Facility, E. H. suffered a spiral/oblique fracture of her right distal tibia and fibula. Such a fracture is "usually caused by some sort of torque on the bone." At the time of her injury, E. H. was an 89-year-old woman with osteoporosis2 who had been "nonambulatory for nine years." Her bones were "very fragile" and "brittle" and "subject to easily be[ing] fractured" as a result of mere "movement." E. H. was treated by Felix Stanziola, M. D., an orthopedic specialist. Because of E. H.’s age and condition, Dr. Stanziola treated E. H.'s fracture conservatively by "align[ing] the bones and then put[ting on] a [long leg] cast." No surgery was performed. In August of 2004, E. H. became a resident of the Facility. Her right leg was still in a "long leg cast" at the time of her admission. On September 1, 2004, E. H. was transported from the Facility to Dr. Stanziola's office, where Dr. Stanziola removed her "long leg" cast and put her in a "short leg cast." On September 29, 2004, E. H. was again transported from the Facility to Dr. Stanziola's office. During this visit, Dr. Stanziola determined that the "fracture was healed" and, based on this determination, removed the cast he had put on E. H.'s leg the previous visit. Because E. H. was experiencing "knee pain" as a result of "severe arthritis," Dr. Stanziola "ordered physical therapy" for her. Throughout her stay at the Facility, both before and after the cast was removed, E. H. was nonambulatory and bedridden, requiring "total care" except for feeding.3 Facility staff had to reposition her in bed every two hours "because she could not reposition herself." When she needed to be moved either out of, or back onto, her bed (and the need arose "virtually every day"), Facility staff used a Marisa "sling lift" (Marisa) to make the transfer. This was "the safest way to move her." Other non- weight bearing residents in the Facility were also moved using a Marisa. A Marisa is a mobile, electric lift consisting of a U- shaped base and an upright post, on which is mounted a curved arm with a "tilting spreader bar." A head and body support sling, which "cradles" and supports the resident above the knees, is attached to the "tilting spreader bar." The operating controls are located on the back of the upright post. There is also a "remote" device that can be used to operate the lift. In making a transfer using the Marisa, the curved arm is first positioned over the resident. Then, two Facility staff members, situated in front of the resident, with the aid of a "Maxislide," slide the sling "right up under [the resident's] buttocks so it supports [the resident] from the knees back." To do this, the resident's "legs have to be lifted manually," but "only a very small amount." During the lift, the resident's lower legs (beneath the knee), which are unsupported, can swing freely. At all times material to the instant case, the Facility had policies and procedures in place that its staff were to follow in making a "patient lift/transfer." These policies and procedures included the following, among others: Every precaution is used to safeguard the patient when making a mechanical or manual lift, transfer or move. Plan any lift, transfer or move ahead of time. Have the proper equipment or personnel on hand. Ensure everyone involved in the task understands his or her role in the transfer, lift or move. Arrange the environment as necessary. Make sure there is appropriate space to maneuver and work in to ensure a safe lift, transfer or move. * * * Prior to using a mechanical lifting device the nurse will ensure proper planning for the transfer/lift has been accomplished and will request assistance [when] required for any difficult lift/transfer. CNAs Palacios and Romero received training in these policies and procedures prior to December 8, 2004. E. H. received a shower every other day in the shower room, which was two rooms down the hallway from the room E. H. occupied at all times material to the instant case. In the shower room, she was bathed while seated in a shower chair (which had wheels) by "shower CNAs." The shower chair that was used did not have a footrest, nor any other device or feature to prevent E. H.'s lower legs from swinging freely when being wheeled in the chair. The "shower CNAs" had to lift E. H.'s legs to bathe them properly. On December 8, 2004, CNA Palacios, with the assistance of another CNA, used the Marisa to transfer E. H. from her bed to a shower chair. The transfer was safely accomplished, without incident, like every prior transfer of E. H., since her arrival at the Facility, had been. CNA Palacios then wheeled E. H. in the shower chair to the shower room, where the "shower CNAs" bathed E. H. After bathing E. H., the "shower CNAs" placed a "covering" on her and wheeled her into the hallway, where CNA Palacios was waiting. CNA Palacios then wheeled E. H. back to E. H.'s room. E. H. had remained in the shower chair the entire time she had been out of her room. E. H.'s room (which she shared with another resident) was a "standard" 12-foot by 24-foot semi-private room with a small bathroom (having just a sink and toilet). When E. H. returned from her shower on December 8, 2004, in her room (taking up floor space) outside the bathroom, were: two beds (eight feet by three feet); two night stands (18 inches by 30 inches); two wardrobe closets (23 inches by 22 inches); two "over the bed" tables; a reclining chair (30 inches by 30 inches); a television stand (24 inches by 14 inches); an oxygen concentrator; a high back chair (22 inches by 26 inches); E. H.'s wheelchair; and the shower chair in which E. H. was seated. These were the same items that had been present in the room earlier that day when E. H. had been moved (safely, with the Marisa) from her bed to the shower chair. On Respondent's side of the room (the "A" side, which was closest to the door) were one of the beds, one of the nightstands, one of the "over the bed" tables, both of the wardrobe closets, the high back chair, the wheelchair, and the shower chair (with E. H. in it). The remaining items were on the other resident's side of the room (the "B" side). The high back chair was located against the wall next to the wardrobe closets (which were to the left as one entered the room). The high back chair was in the room, not for E. H. or her roommate to sit on, but for visitors to use. After wheeling E. H. back into the room in the shower chair, CNA Palacios went to get the Marisa, which was "right outside the door" to the room. There, she met CNA Romero, who volunteered to help CNA Palacios transfer E. H., with the Marisa, from the shower chair to E. H.'s wheelchair. CNA Palacios then went back into E. H.'s room with the Marisa, followed by CNA Romero. The Marisa was positioned so that its curved arm was over the shower chair in which E. H. was seated. CNAs Palacios and Romero then secured E. H. in the sling and the lift began, with CNA Palacios at the controls and CNA Romero next to E. H. (who was facing in the general direction of the door). The wheelchair (into which E. H. was to be placed) was between the shower chair and the high back chair. During the lift, E. H.'s roommate (who was behind a privacy curtain) asked for CNA Palacios' assistance. CNA Palacios responded that she would "be there in a minute," after which she continued to focus her attention on operating the Marisa and completing the lift. Before the lift was completed, CNA Romero advised CNA Palacios that there was blood on the floor directly below E. H.'s right leg. Up until that point in time, nothing unusual had occurred during the lift, such as E. H. bumping into or hitting something or expressing discomfort. Upon being told about the blood, CNA Palacios turned off the Marisa. CNA Romero then removed the covering that the "shower CNAs" had placed on E. H.'s legs. It was apparent that E. H. had suffered a compound fracture (that is, a fracture where "the bone was protruding through the [skin]") of her right lower leg. There was considerable bleeding. The blood was dripping onto the floor in the area beneath the injured leg. There was no blood anywhere else inside or outside the room (other than on E. H. and CNA Romero's pants). Once E. H.'s injury was discovered, nurses were summoned to the room. After the nurses had stabilized E. H.'s leg, the Marisa was turned on again and E. H. was moved back onto her bed. It was not until she was on the bed that E. H. first gave "any indication of discomfort." Emergency rescue workers were called. After they arrived on the scene, E. H. was transported to the hospital by helicopter. X-rays revealed that that E. H. had a "new" spiral/oblique fracture "just above" where she had fractured her leg on July 8, 2004. Shortly after E. H. was taken to the hospital, the Facility began an investigation to determine what had happened to cause her injury. LPN Howell was the staff member put in charge of the investigation. Among the individuals LPN Howell interviewed as part of her investigation were CNAs Palacios and Romero. CNA Palacios was interviewed within an hour of the incident. CNA Romero was interviewed within two and half hours of the incident.4 Both CNAs told LPN Howell that they did not know how E. H. had been injured. CNAs Palacios and Romero were subsequently asked to give written statements about the incident. The written statement CNA Palacios provided read as follows: She came back from the shower on the chair. I put the sling on her back. Rosa help[ed] me. We put the machine Maris[]a [to] get her up. The Mari[]sa pick[ed] her up in the air. Then we put her in the wheelchair. Then we notice[d] blood on the floor. I went out to get nurse [G]eorge. Everybody went to help. I did not hear her foot bump or hit anything. The written statement CNA Romero gave read as follows: I, Rosa Romero was assisting Isela Palacios transferring a resident in . . . Room 304 A from the shower chair to the wheelchair with the hoyer l[i]fter and her leg got caught in it. We didn't notice she was hurt until she was s[it]ting in the wheelchair when we saw lot[s] [of] blood on the floor. Isela and I w[ere] helping each o[ther] and we did everything the right way, the way [it] is supposed to be [done]. Notwithstanding the assertion CNA Romero made in her written statement that E. H.'s "leg got caught in it," there is "nothing [in the Marisa] to get caught in."5 After completing her interviews on December 8, 2004, LPN Howell spoke to her supervisor, Facility Administrator Coelho, who also serves as the Facility's risk manager. Facility Administrator Coelho told LPN Howell that he "was going to check things out himself." To this end, he participated in several "reenactments" of what had transpired in E. H.'s room after she had come back from her shower on December 8, 2004, in an effort to ascertain how E. H. may have injured herself. The "reenactments" took place in E. H.'s room. "[I]tems [in the room] were placed" where, according to CNAs Palacios and Romero, they had been at the time of the incident. Facility Administrator Coelho played the role of E. H. "[O]ne of the CNAs" operated the controls of the Marisa and, using the machine, lifted Facility Administrator Coelho out of the shower chair and into E. H.'s wheelchair. This was done "about three times." At no time did Facility Administrator Coelho come close to "hit[ting] anything inside" the room. The Facility administration submitted required reports concerning E. H.'s injury. LPN Howell prepared the "Federal 5-day Report," which Facility Administrator Coelho reviewed and discussed with her before its submission. This report contained the following "findings of facility investigation": After completion of interviews, the area and equipment involved were checked. It is determined that the area was crowded due to the size of the resident, the size of the shower chair, the size of the w/c, the size of the Marisa lift and the furniture along with the constant request of the other resident in the room distracted the staff when the resident was moved to position the Marisa sling over the w/c. The procedures in place at the time for safety of both residents and staff were being followed but a lack in focus or concentration led to the injury.[6] There is no evidence of intent to do harm on the part of the staff members involved. The staff members were suspended without pay for 5 days and have returned to work effective 12-13-04.[7] Facility Administrator Coelho authored an "Administrative Incident Report," in which he stated that the Facility administrations's investigation revealed "no definitive reason for the accident," but that it "was assumed that in turning the resident while she was on the sling her leg got caught on the high back chair" in the room. He added that the Facility administration was taking action to remove high back chairs from rooms of residents who "ha[d] to be lifted." The high back chairs were removed from E. H.'s room and the rooms of other residents who "ha[d] to be lifted" on or about December 10, 2006. The Facility administration did so only out of an abundance of caution, not because it had determined with any certitude that the presence of the high back chair in E. H.'s room on December 8, 2004, constituted a hazardous condition that resulted in E. H.'s injury. Prior to the incident on December 8, 2004, there had never been a problem at the Facility in lifting E. H. or any other resident in a room with a high back chair. The lifting of residents in rooms set up like E. H.'s had "happened all the time in [the] building" without any resident getting injured. At no time during this period had the Facility been cited by the Agency, during any life safety inspection, for failing to comply with requirements concerning the design and equipping of residents' rooms.8 Having the high back chair in E. H.'s room on December 8, 2004, did not unreasonably expose E. H. to the risk of accidental injury while being lifted with the Marisa. Even with the high back chair in E. H.'s room on December 8, 2004, there was adequate space for trained Facility staff, acting in a reasonably prudent manner in accordance with Facility policy and procedure, to lift E. H. with the Marisa (as had been done in the past) without E. H.'s bumping into something and injuring herself. It is unclear exactly what caused E. H. to suffer a compound fracture of her right lower leg on December 8, 2004.9 What is clear is that this injury was not the result of her having gotten her leg "caught" in the Marisa or on the high back chair while being lifted from the shower chair. During the lift, her leg did not hit against any object in the room.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Agency issue a final order dismissing the instant Administrative Complaint in its entirety. DONE AND ENTERED this 19th day of June, 2006, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 19th day of June, 2006.
