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
Findings Of Fact Respondent is a skilled nursing home facility located in Blountstown, Florida, and is licensed by HRS. During a routine survey (inspection) of Apalachicola Valley Nursing Center on January 7-8, 1980, a staffing analysis revealed that for the three weeks prior to the survey, Respondent was short one licensed nurse on the night shift (11:00 p.m. to 7:00 a.m.) for this 21-day period. During the entire period here involved, the adjusted average census of the Respondent was over 60 patients. At the time of this survey, Petitioner's policy was not to cite staff shortages as deficiencies on HRS Form 553D unless they affected patient care or there was a deficiency in patient care to which a staff shortage could relate. At all times here relevant, Mrs. Margaret Z. Brock was Administrator and part-owner of the Respondent. Following the January 7-8, 1980 survey, the results were discussed with Mrs. Brock. The head of the survey team advised Mrs. Brock of HRS' policy on staff shortages which did not affect patient care. As a result of unfavorable publicity regarding HRS' laxness in enforcing regulations involving medical facilities, by memorandum dated January 10, 1980 (Exhibit 2), HRS changed the policy on staff shortages which did not affect patient care. This change directed all staff shortages to be noted on the inspection report (Form 553D), which would thereby require action by the facility to correct. It further provided that all such shortages be corrected within 72 hours and if not corrected within the time specified, administrative action against the facility would be taken. By letter dated January 15, 1980, Mrs. Brock was forwarded the survey report containing the deficiency relating to the shortage of one LPN on the night shift during the three-week period prior to the survey. A follow-up visit was made to the Respondent on February 21, 1980, at which time it was noted that the LPN shortage on the night shift remained uncorrected. By letter dated February 27, 1980 (Exhibit 3), Mrs. Brock was advised of this finding and the accompanying Form 553D stated that the deficiency was referred for administrative action. This resulted in the Administrative Complaint in Docket No. 80-1443. A second follow-up visit was made on March 25, 1980, at which time it was noted that the LPN shortage on the 11:00 p.m. to 7:00 a.m. shift was still uncorrected. By letter dated April 1, 1980 (Exhibit 4), Mrs. Brock was advised of this finding and the accompanying Form 553D indicates that the deficiency is again being referred for administrative action. This resulted in the Administrative Complaint in Docket No. 80-1444. There is a shortage of nurses, both registered and licensed practical, nationwide, as well as in the panhandle of Florida. This shortage is worse in smaller towns and rural areas than in more metropolitan areas. Respondent is located in a rural area. Respondent has encouraged and assisted potential employees to attend the LPN courses given in nearby technical schools. One of these enrollees is currently working for Respondent. Respondent has advertised in newspapers for additional nursing personnel and has offered bonuses to present employees if they can recruit a nurse to work for Respondent. Other hospitals and nursing homes in the panhandle experience difficulties in hiring the number of nurses they would like to have on their staff. All of those medical facilities, whose representatives testified in these proceedings, have difficulty employing as many nurses as they feel they need. The LPN shortage is worse than the RN shortage. None of these medical facilities, whose representatives testified to the nurse shortage, except Respondent, was unable to meet the minimum staffing requirements of HRS although they sometimes had to shift schedules to meet the prescribed staffing. Respondent has found it more difficult to keep nurses on the 11:00 p.m. to 7:00 a.m. shift than other shifts, particularly if these employees are married or have families. Because of this staffing shortage, on July 18, 1980, a moratorium was placed on Respondent's admitting additional patients. This moratorium was lifted presumably after Respondent met the prescribed staffing requirements by employing a second nurse for the 11:00 p.m. to 7:00 a.m. shift. Failure to meet minimum staffing requirements is considered by Petitioner to constitute a Class III deficiency.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Administrative Complaint in Docket No. 80-1443 be dismissed. It is further recommended that for failure to comply with the minimum staffing requirements after February 21, 1980, Respondent be fined $500.00. DONE and ENTERED this 7th day of November, 1980, at Tallahassee, Florida. K. N. AYERS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of November, 1980. COPIES FURNISHED: John L. Pearce, Esquire HRS District 2 Legal Office Suite 200-A 2639 North Monroe Street Tallahassee, FL 32303 Stephen D. Milbrath, Esquire Dempsey & Slaughter Suite 610, Eola Office Center 605 E. Robinson Street Orlando, FL 32801
Findings Of Fact At all times here relevant Fountainhead Nursing and Convalescent Homes, Inc., Respondent, was licensed by the Department of HRS, Petitioner, as a nursing home. On a survey of the nursing home facilities conducted on April 8 and 9, 1980 five Class II deficiencies and twenty Class III deficiencies were reported on HRS Form 553D entitled Classification of Deficiencies for Nursing Home Licensure Requirements (Exhibit 1). These were designated HRS-1, 3, 14, 15 and 20 on Exhibit 1. Because of these Class II deficiencies Respondent was assigned a "C" rating. HRS-1 is a deficiency correctable within 72 hours. HRS-3, 14 and 20 are Class III deficiencies erroneously characterized as Class II deficiencies.
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 The issue is whether Petitioner may change Respondents' license to operate an assisted living facility from superior to conditional.
Findings Of Fact Respondents own and operate an assisted living facility in Fort Myers known as Cypress Manor. On October 1, 1998, Petitioner's surveyors conducted an inspection of Cypress Manor. The Administrative Law Judge admitted the October survey strictly for the purpose of establishing that an earlier survey had occurred prior to the follow-up survey described in the next paragraph. In the absence of a stipulation or witnesses to establish the truth of the relevant contents of the October survey, the evidentiary ruling precludes the use of the October survey to prove the truth of the relevant contents. On November 24, 1998, Petitioner's surveyors conducted a follow-up survey of Cypress Manor. During the November follow-up survey, the surveyors identified two violations (Tags) that are the subject of this case. Tag F 326 alleges that Respondents did not provide a therapeutic diet for two of the residents. Tag F 371 alleges that Respondents did not store and serve food under sanitary conditions. As for Tag F 326, one surveyor determined that Resident 11, who had diagnoses of nutritional deficiency, renal failure, dehydration, hypertension, and hypovolemia, was receiving hemodialysis three times a week. The evidence established that Resident 11 was receiving a therapeutic diet at Cypress Manor. Any possible deficiencies in paperwork did not prevent the delivery of such a diet to Resident 11. Also under Tag F 326, one surveyor determined that Resident 1, who had diagnoses of cardiopulmonary disease and congestive heart failure, was receiving the dietary supplement, Ensure, on the orders of Respondents' registered dietician. The evidence did not establish that Resident 1 received an excessive amount of carbohydrates from her diet, including the Ensure. As for Tag F 371, one surveyor determined that cold turkey to be served to residents had reached the temperature of 52 degrees while still in the kitchen and peaches had reached 64 degrees. The surveyor saw whipped cream left on a resident's table for 45 minutes before it was returned to the refrigerator, presumably for reuse. For proof that these temperatures constitute deficiencies, Petitioner relies on the testimony of a witness to establish the contents of the u. S. Food and Drug Administration 1997 Food Code. However, the witness did not cite to a specific provision of either version of the Food Code, nor does Petitioner's proposed recommended order cite to such a provision. The alleged deficiencies do not rise above Class III deficiencies because the alleged deficiencies have no more than an indirect or potential relationship to the health, safety, or security of the nursing home facility residents.
Recommendation It is RECOMMENDED that the Agency for Health Care Administration enter a final order changing Respondents' license to superior for the relevant period. DONE AND ENTERED this 27th day of July, 1999, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of July, 1999. COPIES FURNISHED: Karel L. Baarslag Agency for Health Care Administration Post Office Box 60127 Fort Myers, Florida 33906-0127 R. Davis Thomas, Jr. Qualified Representative Broad and Cassel Post Office Drawer 11300 Tallahassee, Florida 32301 Sam Power, Agency Clerk Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308 Julie Gallagher, General Counsel Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308
The Issue Whether the Agency for Health Care Administration found deficiencies at Cypress Manor sufficient to support issuance of a conditional license.
Findings Of Fact Petitioner, Cypress Manor, is a nursing home in Fort Myers, Florida, licensed by and subject to regulation by AHCA pursuant to Part II, Chapter 400, Florida Statutes. AHCA is the state agency charged with conducting licensure surveys of nursing home facilities in Florida to ensure that nursing homes are in compliance with state regulations. AHCA also surveys nursing homes to ensure that they are in compliance with federal Medicare and Medicaid requirements. The surveys are usually conducted by a team consisting of nurses, dieticians, and social workers from the AHCA. Each survey lasts approximately three days, during which time the AHCA team tours the facility; reviews records; interviews staff, families and residents; and observes care of residents and medication administration. After surveying the facility, AHCA prepares a survey report which lists the deficiencies found at the facility. The survey report is then sent to the nursing home. Each alleged deficiency found by AHCA during a survey is identified by a “tag” number, which corresponds to the regulation AHCA claims to have violated. A federal scope and severity rating is assigned to each deficiency. AHCA conducted a relicensure survey of Cypress Manor in September 1996, and a follow-up survey in November 1996. At both surveys, AHCA tagged the deficiency denominated as Tag F241, and gave this tag a “Class III” designation. The regulation described under Tag F241 states that: The facility must promote care for residents in a manner and in an environment that maintains or enhances each resident’s dignity and respect in full recognition of his or her individuality. AHCA contends that this regulation was violated by the actions of the facility as described in the survey reports. Because these alleged deficiencies were found in both surveys, AHCA contends that the facility should be given a conditional license. A conditional license has a significant adverse effect on a nursing home. It must be posted in a public place and AHCA publicizes this information, in part through issuance of press releases. A conditional rating affects the ability of the facility to attract residents, and causes morale problems among staff and existing residents. The rating makes staff recruiting difficult. The September 1996 survey report has two numbered findings. However, no evidence was presented as to the first finding. Therefore, the only pertinent and remaining allegations with respect to this survey are those listed under the second finding. The September 1996 survey cited the following findings under the Tag 241: (1)three residents at Cypress Manor, Residents 11, 12, and 13, were observed wearing slipper socks with the names of deceased residents written on them; Resident 11’s shoes were too small; and (3) the slipper socks of Resident 12, were twisted so that the bottom of each slipper was on the top of her foot. The policy at Cypress Manor was, and had been for many years, to label clothing of residents upon admission, and to write residents' names on slipper socks in approximately 1/4 inch letters. However, when residents died their family members would often donate the clothing of those individuals to Cypress Manor to be used for other residents who had insufficient clothing of their own. For example, Cypress Manor used these donated clothes for incontinent residents who would needed changes of clothing, including slipper socks, several times a day. This practice had been in place during surveys conducted by the AHCA in prior years, but had never been cited by AHCA surveyors as a deficient practice. There is no indication that either the subject residents or their families objected to this practice. Moreover, with regard to the slipper socks with names written on them, the writing on the socks had faded to the point that they could not easily be read. Nothing in the regulation specifically addresses the standards for footwear and no evidence was provided by the AHCA with respect to generally accepted standards for footwear. Moreover, no evidence or testimony was presented that the practice of allowing residents to wear donated clothing or slippers constituted a failure to treat such residents with dignity and respect. With regard to the finding that Resident 11’s shoes were too small, there was no evidence to support this claim. Rather, Resident 11 had shoes brought in by her husband, but she regularly took them off and left them in various places throughout the facility. The third alleged violation involved Resident 12, the resident whose slipper socks were turned around. According to Cypress Manor staff who know this resident, she was capable of and did, in fact, propel herself in a wheelchair. As a result of Resident 12’s propelling herself in the wheelchair, the slipper socks often turned. The November 1996 survey report contains eight numbered findings, none of which relate to the footwear issues described in the September survey. No evidence was presented by the agency at hearing with respect to findings 1, 2, 3, 4, or 7. In finding number five, AHCA noted that a resident was seen on two consecutive days wearing the same pink flowered gown and pink sweater. Although this was cited as violating the resident's dignity and respect, the AHCA surveyor acknowledged that the resident's clothing was clean and appropriate. Furthermore, the AHCA surveyor never asked the resident if she liked the clothes that she was wearing. Nor did the surveyor attempt to determine the resident's clothing preference. Cypress Manor staff members familiar with this resident were aware that she had favorite clothes and often insisted on wearing the same items of clothing. The pink sweater worn by the resident on the two days she was observed by the surveyor was one of the resident's favorite garments. In finding number six, AHCA indicated that during a tour of the facility with the facility administrator, the surveyor and administrator entered the room of a resident. The finding further noted that while in the resident’s room, the administrator asked the resident to describe her medical condition to the surveyor. In the surveyor's opinion, the resident seemed "surprised” when asked by the administrator to describe her condition to the surveyor. The issue of requesting that residents describe or discuss their conditions with surveyors is not covered in the regulations. However, it is standard practice as part of surveys to ask residents to describe their condition to surveyors, and it is becoming more common for residents to speak directly to surveyors. The resident referred to in finding number six was a relatively young and assertive resident who had lived at Cypress Manor for several years and served as president of the facility's Residents' Council. Also, as a former employee of the Department of Health and Rehabilitative Services, this resident was very familiar with the survey process. In fact, she would often comment to staff to "let those surveyors at me [sic]; I want to talk to them." This resident often spoke openly about her physical condition and, in the opinion of those who knew her well, would not have been offended by a request to describe her medical condition with AHCA surveyors. It was acknowledged by AHCA that dignity can vary depending on the individual, and that what might be considered undignified to one resident might not be undignified to another. While there are some areas that might be considered to violate the standard regarding the dignity of the patient, no general standards as to what constitutes such a violation was presented by AHCA. In finding number eight of the November 1996 survey report, AHCA stated that a resident in the dining room was given his meal, but did not receive eating utensils until approximately ten minutes later. The surveyor acknowledged that the resident did not attempt to eat the meal with his hands, but waited until the utensils were brought to him. At the time this occurred, there was a large number of residents in the dining room, all of whom were being served their meals. This incident appears to be an isolated and inadvertent oversight, and one that was immediately corrected. At the time of the relicensure survey of Cypress Manor, the facility had no Class I or Class II deficiencies; no Class III deficiencies not corrected within the time established by the agency; and was in substantial compliance with established criteria. It is the policy of the AHCA to classify all deficiencies as at least a Class III deficiency, even when, according to the federal evaluation, the facility would be in substantial compliance with the regulation at issue.
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 Cypress Manor, and rescinding the conditional rating and imposition of the $500 penalty. DONE AND ENTERED this 6th day of January, 1998, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 6th day of January, 1998. COPIES FURNISHED: Donna H. Stinson, Esquire R. Davis Thomas, Jr., Qualified Representative Broad and Cassel 215 South Monroe Street Suite 400 Tallahassee, Florida 32302 Karel Baarslag Agency for Health Care Administration Regional Service Center 2295 Victoria Avenue Room 309 Fort Myers, Florida 33901 Jerome Hoffman General Counsel Agency for Health Care Administration 2727 Mahan Drive 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 from June 13, 2001, through July 11, 2001.
Findings Of Fact Petitioner is the state agency responsible for licensing and regulating nursing homes inside the state. Respondent operates a licensed nursing home at 710 North Sun Drive, Lake Mary, Florida 32746 (the "facility"). Petitioner conducted a complaint investigation on June 13, 2001 (the "June survey"). Petitioner noted the results of the complaint investigation on the Health Care Federal Administration form entitled "Statement of Deficiencies and Plan of Correction." The parties refer to the form as the HCFA 2567-L or the "2567". The 2567 is the document used to charge nursing homes with deficiencies that violate applicable law. The 2567 identifies each alleged deficiency by reference to a tag number (the "tags"). Each tag of the 2567 includes a narrative description of the allegations against Respondent and cites a provision of the relevant rule or rules in the Florida Administrative Code violated by the alleged deficiency. In order to protect the privacy of nursing home residents, the 2567 and this Recommended Order refer to each resident by a number rather than by the name of the resident. Tag F314 is the only allegation at issue in this proceeding. Tag F314 generally provides that a facility must ensure that a resident who enters the facility without pressure sores does not develop pressure sores unless they were unavoidable; and the resident having pressure sores receives necessary treatment and services to promote healing, prevent infection and prevent new sores from developing. Tag F314, in relevant part, alleges that the facility: . . . did not insure the prevention of pressure sore development or provide that necessary treatment for pressure sores which had developed in the case of one of four residents. Applicable federal and state laws require Petitioner to assign a rating to the deficiency alleged in the 2567. The rating required by federal law is for scope and severity. Petitioner assigned a G rating to Tag F314. A G rating means that the alleged deficiency was "isolated." State law requires Petitioner to assign a class rating. Petitioner assigned a Class II rating to the deficiency alleged in Tag 314. A Class II rating is authorized in Section 400.23(8)(b), Florida Statutes (2001), for any deficiency that has "compromised the resident's ability to maintain or reach his or her highest practicable physical, mental and psychosocial well-being, as defined by an accurate and comprehensive resident assessment, plan of care, and provision of services." The Class II rating is the only rating at issue in this proceeding. (All statutory references are to Florida Statutes (2001) unless otherwise stated.) When Petitioner alleges a Class II deficiency in the 2567, applicable rules require Petitioner to change the rating of the facility's license. Effective June 12, 2001, Petitioner changed to rating of the facility's license from standard to conditional. Petitioner conducted a follow-up survey on July 11, 2001 (the "July survey"). Petitioner determined that Respondent had corrected the deficiency alleged in Tag F 314 in June. Effective July 11, 2001, Petitioner changed the rating of the facility's license from conditional to standard. The Class II rating from Petitioner rests on the allegations in Tag 314. The first allegation is that Respondent did not prevent the development of a pressure sore on the right buttock of Resident 1. The second allegation is that the facility failed to provide the treatment necessary to treat the pressure sore. The facility admitted Resident 1 on October 19, 2000. Between the date of admission and June 4, 2001, Resident 1 did not develop any pressure sores. However, on June 4, 2001, a certified nursing assistant ("CNA") noticed an open area on the resident’s right buttock while showering the resident. The CNA notified the attending nurse. A threshold issue is whether the area of concern on Resident 1 was a pressure sore or a blister caused by incontinence and chafing from the resident's diaper. The nursing staff described the identified area on a document in the resident’s medical chart called a "pressure ulcer report." Petitioner contends that the use of a "pressure ulcer report" by Respondent is an admission by Respondent and that Respondent has the burden to prove that the area was not a pressure sore. However, the burden of proof is on Petitioner to show that the area of concern is a pressure sore. Petitioner promulgates a written definition of a pressure sore in the guidelines that Petitioner requires its surveyors to use in interpreting the regulatory standard of Tag F314. Petitioner defines a pressure sore as: . . . ischemic ulceration and/or necrosis of tissues overlying a bony prominence that has been subjected to pressure, friction or sheer. Section 120.68(7)(e)3 prohibits Petitioner from deviating from its officially stated policy unless Petitioner explains the deviation. Petitioner failed to provide any evidence for deviating from its written definition of a pressure sore. Ischemic ulceration or necrosis of tissue that has been subjected to pressure, friction, or sheer is not a pressure sore, as defined by Petitioner, if the area does not overlie a bony prominence. The parties disagree as to the location of the area of concern on Resident 1. Petitioner's surveyor is an expert in nursing practices and procedures. She observed the area of concern on Resident 1 during the June survey. The surveyor testified at the hearing that the area of concern was located over the resident’s ischial tuberosity; i.e., the bone on which the resident placed her weight when she sat. The facility's director of nurses is also an expert in nursing practices and procedures. The director observed the area immediately after the survey and testified that it was located in the fleshy part of the resident’s buttocks and was not over any bony prominence. The preponderance of evidence did not show that the area of concern on Resident 1 was located over a bony prominence. The area of concern was located in the same location as the elastic band of the diaper that the resident wore for her incontinence. The area of concern was likely caused by the combination of the resident’s incontinence and chafing from the diaper. The pressure ulcer report prepared by the nursing staff contains the outline of a human body on which the nursing staff marked the location of the area of concern on Resident 1 when staff first identified the area. The report shows that the area of concern is located in the fleshy part of the resident’s right buttock. The report did not indicate that the area of concern was located in the area on which the resident would have placed her weight when she was seated or prone. Even if the area of concern were located at the ischial tuberosity other factors belie a diagnosis of pressure sore. Pressure sores typically involve deep tissue damage, have drainage and odor, and require a long time to heal. The pressure ulcer report indicated that the area identified on the resident was small in size, had scant odor and no drainage, and healed by July 3, 2001. All of the surrounding facts and circumstances indicate that the area of concern on Resident 1 was not a pressure sore but was a blister caused by chafing from the diaper the resident wore for her incontinence. The "pressure ulcer report" for Resident 1 classified the area of concern as a stage II. A stage II involves a partial thickness loss of skin layers either dermis or epidermis that presents clinically as an abrasion, blister or shallow crater. The area was further described in the report as being 0.7 by 0.7 centimeters in size with scant serous drainage, no odor, and pink in appearance. The director of nurses testified that the area presented as a "dry blister." Assuming arguendo that the area of concern on Resident 1 was a pressure sore, there are two additional issues to be determined. One issue is whether development of the alleged pressure sore was unavoidable due to the resident’s clinical conditions. The other issue is whether the facility failed to provide the treatment and services necessary to promote healing after the alleged pressure sore developed. Petitioner promulgates guidelines for Tag F324 for use by surveyors in determining whether a pressure sore is unavoidable. The guidelines state in relevant part: . . . a determination that development of a pressure sore was unavoidable may be made only if routine preventative and daily care was provided [by the nursing home]. The guidelines define routine preventative care as: . . . turning and proper positioning, application of pressure reduction or relief devices, providing good skin care, providing clean and dry bed linens, and maintaining adequate nutrition and hydration as possible. The guidelines instruct surveyors to determine whether a facility complies with the foregoing standards "consistently" rather than one hundred per cent of the time. When the facility admitted Resident 1 in October, 2000, she was immobile and had several compromising diagnoses. They included atrial fibrillation; chronic ischemic heart disease and coronary atherosclerosis (diseases of the heart and arteries); abnormal loss of weight; angina pectoris; senile dementia; a kidney infection; and incontinence of both bowel and bladder. The clinical conditions placed Resident 1 at high risk for the development of pressure sores. The surveyor guidelines for Tag F314 state that a resident who is immobile, has continuous urinary incontinence, chronic bowel incontinence, and chronic heart disease is at high risk for the development of pressure sores. At the time of admission, the nursing staff at the facility assessed Resident 1 as being at risk for the development of pressure sores due to her incontinence and immobility. They designed a care plan to prevent the development of pressure sores. The care plan included frequent turning and repositioning of the resident, weekly skin assessments by a nurse, skin checks during care and bathing, and prompt incontinence care. The parties agree that the interventions in the care plan met the regulatory requirements for preventative care under Tag F314. With one exception, Petitioner does not allege that the facility failed to provide routine preventative care to the resident. Respondent does not dispute that the facility did not perform weekly skin checks for three weeks in May preceding the identification of the area of concern on Resident 1. However, the failure to perform those skin checks did not cause Resident 1 to develop a pressure sore. A weekly skin check is a head-to-toe assessment of a resident’s skin by a nurse. Since a nurse can only observe a pressure sore after it has appeared on a resident, this assessment is not preventative in nature. Instead, it is designed to assure that appropriate and immediate treatment can be provided to the area after a reddened area develops. Even if weekly examinations of a resident’s skin were an integral part of a plan intended to prevent the development of pressure sores on Resident 1, the facility necessarily exceeded this standard with regard to the resident’s right buttock where the area of concern actually occurred. Facility staff observed the resident’s buttock more than once a day when the resident received incontinence care, bath, or showers. Consistently through May and June, the resident’s chart shows that the resident was incontinent at least three times a day and that she received a partial bath or full shower at least once a day. On June 4, 2001, facility staff in fact observed a reddened area during the resident's shower. Petitioner submitted no evidence that the facility could or should have been observing the resident’s buttock more frequently than its staff actually did or that the area could have been identified any earlier. The preponderance of evidence shows that the facility consistently implemented the component of its care plan that required monitoring of the resident’s buttock. The care plan for Resident 1 included two other primary components to prevent pressure sores. One component was prompt incontinence care. The other was turning and repositioning of the resident every two hours to relieve pressure over areas susceptible to breakdown. Petitioner alleges that the facility failed to comply with these components during the June survey. Proving that a facility consistently turns and repositions a resident and provides prompt incontinence care is problematic for a facility. Those interventions are routine care. There is no regulation or standard that requires nurses to chart routine care. Because these interventions are not typically charted, a nursing home will not typically have documentary evidence to demonstrate that the interventions were provided to a resident. The facility provided sufficient evidence to show that the interventions of repositioning and prompt incontinence care were provided to Resident 1 during the June survey. The facility provided incontinence care to the resident at least three times a day. With regard to turning and repositioning the resident, the director of nursing testified that she saw staff turning and repositioning the resident prior to the survey. Resident 1 was at high risk of developing pressure sores. If staff had not consistently turned and repositioned the resident and provided prompt incontinence care, it is more likely than not that the resident would have developed serious pressure ulcers on most or all of her weight bearing surfaces. The appearance of one small area on the resident and the absence of any other areas over any bony prominence is persuasive evidence that the facility consistently turned and repositioned the resident and consistently provided her with prompt incontinence care. The final issue is whether the facility provided the treatment to Resident 1 that is necessary for healing of the alleged pressure sore. Petitioner agrees that the facility developed an appropriate care plan for the identified area immediately upon its discovery. An order in the care plan developed after discovery of the alleged pressure sore called for application of a duoderm patch to the wound. Petitioner alleges that the facility did not follow the order because the surveyor observed no patch on the resident during the survey. It is more likely than not that the duoderm patch came off of Resident 1 during an episode of incontinence prior to the time that the surveyor observed the resident. Duoderm patches commonly come off when a resident has an incontinent episode. Regardless of why the patch was not on Resident 1 during the survey, the absence of the patch one time during the survey does not demonstrate that staff consistently failed to comply with the order calling for the patch. The instance observed by Petitioner's surveyor was the only instance identified by the surveyor as a failure to follow the resident's care plan. The resident’s medication administration records demonstrate that facility staff applied the duoderm patch in all other instances in compliance with the doctor’s order. Furthermore, the facility continued to provide the routine preventative care called for by the care plan. Petitioner did not show that the facility consistently failed to follow the care plan for Resident 1 as alleged in Tag F314. The area of concern on Resident 1 healed quickly and progressively after it was discovered. Petitioner offered no evidence that the alleged pressure sore did not heal or that the resident was otherwise harmed as a result of the failure to place a duoderm patch on the resident on June 13, 2001. The pressure ulcer report and nurse’s notes indicate that the wound healed by July 3, 2001. The records noted with each successive entry after June 4, 2001, that the area was smaller in size. The area demonstrated characteristics of healing, including the absence of any odor or drainage, and pink granulating tissue. Resident 1 was at high risk for pressure sores, and pressure sores do not typically heal quickly. The progressive pattern of healing indicates that the facility provided the necessary and effective treatment for the area of concern on Resident 1.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a Final Order finding that there was no basis upon which the agency could have issued a Conditional rating to Respondent on June 13, 2001, deleting the deficiency described under Tag F314, and issuing a Standard rating to Respondent to replace the previously issued Conditional rating. DONE AND ENTERED this 5th day of March, 2002, in Tallahassee, Leon County, Florida. ___________________________________ DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of March, 2002. COPIES FURNISHED: Eileen O'Hara Garcia Agency for Health Care Administration 525 Mirror Lake Drive North Sebring Building, Room 310J St. Petersburg, Florida 33701 R. Davis Thomas, Jr. Broad & Cassel 215 South Monroe Street, Suite 400 Post Office Box 11300 Tallahassee, Florida 32302-1300 William Roberts, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308 Diane Grubbs, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308
Findings Of Fact The Respondent, Colonial Palms, Inc., is licensed to operate Colonial Palms Nursing Home in Pompano Beach, Florida, as a nursing home facility, pursuant to Chapter 400, Part I, Florida Statutes, and Chapter 10D-29, Florida Administrative Code. On December 15, 1981, two representatives from the Petitioner visited the Respondent's facility in connection with its annual license survey. On this occasion the following conditions were found which were in violation of the applicable provisions of the Florida Administrative Code. Supervision of all details of nursing care to patients was not being fulfilled by the Nursing Supervisor in that: The charge nurses were not monitoring the functions of the clean and soiled utility rooms, as evidenced by mixed clean and soiled functions in the rooms. Personal luggage of patients was stored in a soiled utility room, clean foam padding was stored on a shelf in a soiled utility room. Three weeks staffing was reviewed. There was no RN on duty during the AM shift on 4 out of 21 days, 11/22, 11/28, 11/29, 12/12/81, when the average census was 74 patients. Patients' rights were violated in 4 charts reviewed in that the patients were not advised of their full rights as promulgated by the 1980 Legislature. Written consultation reports from a consulting dietitian to the Administrator were not available for review for the months of April, May, June, July, 1981. The dietary department lacked the required test kit that measures the parts per million concentration of the sanitizing solution used to sanitize the patient trays, as well as the multi use pots and pans. The hood above the cook's range, the sprinkler system, and the electric lights were soiled with a grease encrustation. Medications being administered by the nursing staff consisted of controlled and prescription drugs which were not stored in locked cabinets, but were stored on side carts exposed and accessible to all patients. The soiled utility room in the south wing was not equipped with a flushing rim clinical service sink having a wide area service trap with bedpan flushing equipment. The Respondent nursing home was given until January 15, 1982, to correct all of the conditions described above. On February 8, 1982, a follow-up visit was made to the Respondent nursing home. On this occasion the conditions described above at subparagraphs (a), (c), (d) and (f) had been corrected. The conditions described at subparagraphs (b), (e), (g) and (h) above had not been corrected. The flushing sink mentioned in subparagraph (h) above had been ordered from the nursing home's supplier on December 20, 1981. However, due to a delay in shipment, it was not received until July or August, 1982. It is now in place, as required. The remainder of the conditions which existed on February 8, 1982, are now corrected.
Recommendation From the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Colonial Palms, Inc., d/b/a Colonial Palms Nursing Home, be found guilty of four separate violations on one occasion after the specified date for correction, and that Colonial Palms, Inc., be assessed an administrative fine in the amount of $400.00. THIS RECOMMENDED ORDER entered on this 30 day of November, 1982, in Tallahassee, Florida. WILLIAM B. THOMAS 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 30th day of November, 1982. COPIES FURNISHED: Harold Braynon, Esquire 201 West Broward Boulevard Fort Lauderdale, Florida 33301 William L. Pace Administrator of Colonial Palms Nursing Home 51 West Sample Road Pompano Beach, Florida 33064
