The Issue The issue to be resolved in this proceeding concerns whether the Petitioner was harassed because of her race during employment as a registered nurse at Shands at Lakeshore, Inc. (Shands), and whether the Respondent terminated her because of race or for retaliation concerning alleged complaints of harassment.
Findings Of Fact The Petitioner, Valeria Thompkins, was employed as an RN on the medical-surgical unit on the third floor of Shands Lakeshore Hospital in Lake City, Florida, at times pertinent hereto. Each of the Petitioner's shifts began at 7 p.m. and ended at 7 a.m. The Petitioner reported to a "Charge Nurse" who supervised each shift and reported to the Nurse Manager for the unit. The Nurse Manager reported to the hospital’s Director of Nursing. Julia Woods was the Nurse Manager for the Petitioner's unit and Mattie Jones was the Director of Nursing, when the Petitioner was hired in August 2004. Julia Woods was removed by the Nursing Director, Ms. Jones, in September 2005 for performance issues. Jodi Wood replaced her as Nurse Manager for the Petitioner's unit. Julia Woods was removed by Ms. Jones because Ms. Woods had focused too heavily on staffing the unit and failed to properly supervise quality of patient care. When Ms. Jones promoted Jodi Wood, she specifically instructed Ms. Wood to improve the quality of patient care. Ms. Wood verbally counseled the Petitioner for failing to follow doctor's orders concerning administering intravenous antibiotics to a newly-admitted patient, who was suffering from sepsis. This verbal reprimand occurred on September 26, 2005. The failure to administer antibiotics to that patient harmed the patient's care and could have allowed the sepsis, a systemic infection, to become more severe. When the sepsis worsened as a result of failure to administer antibiotics timely, the Respondent was required to transfer that patient to the Intensive Care Unit. The Petitioner admits that she did not administer the ordered antibiotics, but claims that she did not administer them because the Respondent did not provide training explaining when to administer medications ordered to be administered twice per day. This explanation, however, does not raise any issue concerning disparate treatment for racial or other reasons and does not question the imposition of the verbal reprimand. All the nurses hired in August 2004 received the same training from the Respondent, including the Petitioner. The immediate administration of antibiotics is a standard nursing protocol for a patient with sepsis and the Respondent could reasonably presume that it did not need to train a registered nurse in such basic nursing care. It was reasonable for the Respondent to presume that the Petitioner was aware of that standard nursing practice. The Respondent's failure to raise any issue about the Petitioner's training, or orientation training, does not indicate that the verbal discipline was motivated by any illicit purpose, but rather was based upon the inadequate care provided the patient. The Respondent could fairly expect the Petitioner, hired as an RN, to have had adequate training in such standard nursing care or procedure before she was ever employed. The Petitioner ignored a doctor's order to monitor a patient's heart rate with a telemetry unit on October 14, 2005. This was less than a month after the previous verbal warning referenced above. The Petitioner admitted the patient to her unit and signed the patient's chart, noting that all orders above her signature, including the order for telemetry monitoring, had been executed, that is, performed. The Petitioner, however, failed to ensure that a telemetry unit was connected to the patient and did not take any telemetry readings while treating that patient. Ms. Wood presented this incident to Nursing Director Jones, who made an independent review of the events, including a review of the patient's chart. Ms. Jones decided to issue a First Written Corrective Action to the Petitioner because of this incident. The Petitioner's failure to place a telemetry unit on the patient made it impossible for the medical staff to monitor the patient's heart, thereby negatively affecting patient care. The Petitioner admitted that she was to blame for failing to ensure that the telemetry monitoring unit was on the patient. The Petitioner, however, attempted to dispute the First Written Corrective Action by claiming that other nurses, specifically those who had treated the patient in the Intensive Care Unit, were also at fault for failing to place a telemetry monitor on the patient. The Petitioner conceded, however, that Ms. Wood did not supervise any of those unidentified comparator nursing staff and could not therefore recommend discipline of them. Therefore, no question was raised concerning comparative discipline between the Petitioner and the nurses who had treated the patient in the Intensive Care Unit. Further, Ms. Jones is African-American. There is no evidence indicating that she would discipline the Petitioner concerning this mistake because of her race, while allowing employees outside the Petitioner's protected class to escape without discipline, if indeed they had done anything blame- worthy. The Petitioner has thus not provided credible evidence that any similarly-situated employees received disparate treatment with regard to any issue about responsibility for the referenced mistake in the care of this patient. On October 19, 2005, Terry Wayne, a Patient Care Coordinator at Shands, discovered that the Petitioner had administered an intravenous antibiotic, Gentamicin, to a patient who did not have an order for that antibiotic. Ms. Wayne determined that the antibiotic had actually been ordered for the other patient in the same room, but was carelessly administered to the wrong patient by the Petitioner. The Petitioner's error exposed the patient to potentially severe side effects. The error compromised the care of both patients by risking side effects for the patient who received the antibiotic in error, and by allowing the patient who should have received it to thus go untreated. The Petitioner denies administering the Gentamicin to that patient. The Petitioner claims that Jay Nash, the evening charge nurse, had come into the room and administered the antibiotic in an effort to “frame” the Petitioner as a sub- standard nurse. The Petitioner's explanation is not plausible. There is no credible evidence that Mr. Nash would be motivated to engage in such conspiratorial behavior to try to falsely blame the Petitioner. That theory relies heavily on the Petitioner's erroneous belief that Mr. Nash, not Terry Wayne, discovered the medication error. The Petitioner's explanation is simply not credible. It is undisputed that the Patient Care Coordinators, such as Ms. Wayne, were responsible for auditing patient charts to confirm that patients were receiving proper patient care. The Petitioner concedes that she does not know Terry Wayne or what her capacity is with Shands. Thus, there is no way she could know of Terry Wayne's holding any improper motivation to fabricate a medical error and blame it on the Petitioner. Ms. Wayne completed a Medical Error Report when she discovered the improperly administered Gentamicin. This was in accordance with routine Shands protocol. A copy of that report was delivered to the Nurse Manager, by routine policy. When the Nurse Manager, Ms. Wood, received the report, she forwarded it to the Nursing Director, Ms. Jones, and she recommended additional disciplinary action for the Petitioner. Ms. Jones made an independent review of the incident that included a review of the patient's chart and the incident report. Based upon this, Ms. Jones issued a Second Written Corrective Action to the Petitioner. Ms. Wood and Ms. Jones subsequently met with the Petitioner to prepare a development plan to try to improve the Petitioner's repeated patient-care problems. The Respondent routinely prepares development plans for employees who have two Written Corrective Actions, because a third Written Corrective Action in a 12-month period would result in termination. Ms. Wood met with the Petitioner once each week for the first two weeks after the development plan was presented to the Petitioner. Ms. Wood did not meet with the Petitioner the following two weeks because she took a vacation during the holiday season. The Petitioner caused several patient-care problems during the period Ms. Wood was unavailable to meet with her. Between December 13, 2005, and December 27, 2005, the Petitioner provided sub-standard care on at least eleven occasions. Two of these incidents were more serious patient-care problems than the others, because they resulted in a direct injury to one patient and exposed another patient to the risk of very serious infection. The first of the two incidents came to light when the Shands administration received a complaint from a patient, in the third floor medical-surgical unit, that his nurse had roughly removed a dressing for his IV and tore his skin. This complaint was passed on to Ms. Jones and Ms. Wood. Ms. Jones reviewed the patient’s chart and determined that the Petitioner had discontinued the IV on the patient in question. The discontinuation of an IV is the only reason to remove the dressing, so Ms. Jones reasonably concluded that the Petitioner was the nurse who tore the patient's skin. The Petitioner admitted treating the patient but denied tearing his skin. She claimed that she removed the first IV and replaced it with a new IV, only to have some other nurse come and discontinue the IV and tear the patient's skin. At the final hearing, however, the Petitioner conceded that she had to discontinue the original IV in order to replace it and that the patient's chart then would show that the Petitioner had discontinued the patient's IV. Therefore, even if the Petitioner was not the nurse who tore the patient's skin, the Petitioner's admission that the patient chart showed that she had discontinued at least one of the patient's I.V.'s creates a non-discriminatory explanation for a good faith belief by Nursing Director Jones that the Petitioner was the nurse who injured the patient. The second serious incident was discovered on December 24, 2005. Dayshift nurse Darlene Hewitt, who had taken over care of patients treated by the Petitioner during the preceding evening, noticed that one of the patients had dark stool dried over the site of his “femoral central line.” Ms. Hewitt had received a report from the Petitioner, only ten minutes before discovering the feces, but the Petitioner had not informed her of the patient's condition. Ms. Hewitt reported the incident to Ms. Wood, who reviewed the patient’s chart and determined that the Petitioner returned to the chart, after the presence of the feces had been discovered, and added false entries, effective 6 a.m. that morning, claiming to have discovered and reported the stool to the succeeding nurse at the shift change. A femoral central line is an I.V. line inserted into the femoral artery in the groin of the patient. It is used to administer prescription medication directly to a patient's heart. A dressing is used to cover the central line insertion point, because any bacteria that contaminate the site could potentially go directly to a patient's heart. A contaminated femoral central line is a serious patient-care issue and exposes the patient to potentially serious health consequences. Ms. Wood reported the incident to Director Jones, along with the other ten incidents of sub-standard patient-care occurring between December 13, 2005, and December 27, 2005. Ms. Jones reviewed each incident independently, and made an examination of each patient chart at issue. She determined that the Petitioner's patient-care practices had not improved. She therefore decided to issue the Petitioner a Third Written Corrective Action. Ms. Woods and Ms. Jones met with the Petitioner on December 28, 2005, to discuss the issues underlying the Third Written Corrective Action. Ms. Jones explained to the Petitioner that the Third Written Corrective Action would result in automatic termination. Ms. Jones offered the Petitioner the opportunity to resign, in lieu of termination, before the Third Written Corrective Action was completed. The Petitioner left the meeting and never responded to Ms. Jones’ offer. The Petitioner maintains that she was terminated. Whether she was terminated or resigned in lieu of termination, or was constructively terminated, is not material to resolution of the issues at hand. In fact, the Petitioner was effectively terminated for providing sub-standard patient care. There is no evidence to suggest that Ms. Jones’ decision to discipline and terminate the Petitioner was based upon race, retaliation for any alleged complaints of harassment, or engaging in any statutorily protected conduct. The Petitioner did not identify any employees outside her protected class that were not disciplined for providing similar sub-standard patient care. The Respondent, however, identified several employees outside the Petitioner's protected class who were disciplined by Ms. Wood for providing poor patient care. When faced with that evidence at hearing, the Petitioner conceded that the Respondent did not terminate her for any improper purpose. The Petitioner also claims to have been harassed by several white co-workers. Co-workers Shannon Poppel, Kim Morris, and Darlene Hewitt were purported by the Petitioner to have harassed her. Those three persons, however, all work on the day shift. The Petitioner worked on the 7 p.m. to 7 a.m. shift. Jay Nash was the only night-shift employee who had been alleged to have mistreated the Petitioner. At hearing, however, the Petitioner conceded that Mr. Nash was not harassing her; rather, she contends he was assigning her more difficult patients than he was assigning other employees. The Petitioner maintains that Poppel, Morris, and Hewitt were very friendly with Nursing Director Wood. The Petitioner suspects they had a social relationship outside the hospital. The Petitioner contends that Poppel, Morris, and Hewitt ignored her and interrupted her when she was attempting to give her report at shift changes. Finally, the Petitioner claims that the three people would stop all conversation whenever she entered a room and, on one occasion, she overheard Director Wood and one of the alleged harassers laughing in Ms. Woods's office when discussing the Petitioner. The Petitioner concedes, however, that none of the alleged harassers ever used any racially derogatory language or made any reference to the Petitioner's race. In fact, she offered no evidence relating the behavior of the three alleged harassers to the Petitioner's race, aside from the fact that the alleged harassers are Caucasian and the Petitioner is African- American. The Petitioner's contention that this behavior was based on race is the Petitioner's own bare, unsupported opinion and is un-persuasive. The Petitioner even concedes that the harassers were friends away from the hospital. Their social relationship, which was not shared with the Petitioner, is a more plausible explanation for any behavior of the alleged harassers than is the race of the Petitioner. This is especially so, given the fact that Nursing Director Wood herself is African-American. The Petitioner has also exaggerated the severity of the alleged harassment, because there was an insufficient temporal opportunity for the alleged harassers to engage in that conduct. The day-shift nurses, including the three alleged harassers, must "punch in" between 6:45 a.m. and 6:52 a.m. for their 12-hour shift, which runs from 7 a.m. to 7 p.m. Generally, the night-shift nurses finish giving reports to the day-shift nurses and leave the hospital by 7:15 a.m. Therefore, at most, Ms. Poppel, Morris, or Hewitt could have interacted with the Petitioner only for a total of about 30 minutes per day. Thus any harassment, if it occurred, would have occurred for only a very short period of time. Moreover, there is no proof that any harassment, based upon race, occurred at all. The Petitioner contends that she complained to Nursing Director Jones about the harassment, but Ms. Jones denies this. Ms. Jones is well-trained in the anti-harassment policy followed by Shands. She had conducted several other investigations into harassment allegations during her tenure as Nursing Director. Her thorough response to those other allegations concerning harassment makes it very unlikely that Ms. Jones would have ignored the Petitioner's alleged complaint, had she made one. Ms. Jones is an African-American woman and, if she had a history, as she does, of actively investigating any allegations of harassment, it is unlikely that she would have disregarded an allegation that an employee felt that she was being harassed because of her race. Therefore, the Petitioner's self-serving opinion that she was being harassed, and her allegation that she had complained about the harassment, lacks credibility and persuasiveness.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Florida Commission on Human Relations denying the petition in its entirety. DONE AND ENTERED this 19th day of January, 2010, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of January, 2010. COPIES FURNISHED: Nancy Toman Baldwin, Esquire Law offices of Nancy Toman Baldwin 309 North East First Street Gainesville, Florida 32601 Marquis W. Heilig, Esquire Thompson, Sizemore, Gonzalez & Hearing, P.A. 201 North Franklin Street, Suite 1600 Tampa, Florida 33602 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Sandra Ann Lindstrom (“Ms. Lindstrom” or “Respondent”), a licensed physician assistant, prescribed Lorcet, a medication containing a controlled substance (hydrocodone), in violation of the Florida Statutes and the Florida Administrative Code as charged in the Amended Administrative Complaint filed at the Department of Health in DOH Case No. 2006-36542 on October 27, 2014. If so, what is the appropriate discipline?
Findings Of Fact The Parties The Department of Health is the state agency responsible for regulating the practice of physician assistants in the State of Florida. The regulation is pursuant to both chapter 456 (“Health Professions and Occupations, General Provisions”) and chapter 458 (“Medical Practice”), Florida Statutes. Respondent is licensed as a physician assistant by the Board of Medicine. Her license number is PA 9103823. The license was effective on August 3, 2006, with an expiration date of March 31, 2008. Her license has been continuously renewed since its effective date. See Pet’r’s Ex. A. Ms. Lindstrom is not licensed to practice medicine as a physician. Id. Physician Assistants Physician assistants are governed by section 458.347, a section within the chapter of the Florida Statutes that governs Medical Practice. Physician assistant licensure is provided for in section 458.347(7), and the Board of Medicine is authorized to “impose any of the penalties authorized under ss. 456.072 and 458.331(2) upon a physician assistant if the physician assistant or the supervising physician has been found guilty of or is being investigated for any act that constitutes a violation of this chapter [Ch. 458] or chapter 456.” § 456.347(7)(g), Fla. Stat. A physician assistant’s supervisory physician may delegate authority to conduct aspects of medical practice to a physician assistant under circumstances expressed in the statutes. The limited medical practice that may be delegated to a physician assistant includes certain practices at county health departments. Whether conducting the delegated practice of medicine at a county health department, or not, physician assistants may be delegated authority to prescribe medications provided they are not listed on a formulary created pursuant to section 458.347(7)(f). See § 458.347(7)(d) and (e), Fla. Stat. The formulary must include “controlled substances as defined in chapter 893.” § 458.347(7)(f)1., Fla. Stat. In sum, physicians may not delegate to physician assistants the prescription of medications which are controlled substances as defined in chapter 893, Florida Statutes. The Department’s Investigative Office The Department has an investigative office charged with looking into regulatory complaints. In a typical regulatory investigation, the investigator discloses his identity to any party interviewed, whether the party is the source of the complaint, a witness, or, if amenable to an interview, the licensee who is the subject of the complaint. Aside from interviews, the investigations include record reviews, the obtaining of evidence, and the preparation of an investigative report. In addition to investigating complaints of regulatory violations by licensed health care practitioners, the investigative office looks into cases of unauthorized practice by unlicensed individuals. Investigations of unlicensed activity are conducted by what is known as the “ULA” section of the office. Commonly, ULA investigations are done by investigators who are “undercover,” that is, the investigators hide their identity as investigators and use pseudonyms rather than their actual names. Typically, undercover ULA investigators present at the offices of the subjects of investigation. If the unlicensed subject of the investigation offers to perform services that require a license or engages in practice that requires a license, the Department pursues remedies, including an order that the subject cease and desist from the unlawful, unlicensed activity. Investigations of a licensee for practicing outside the scope of the licensed activity may be viewed as something of a hybrid of a typical regulatory investigation and a ULA investigation. It is regulatory since the subject is a licensee, but it is usually done undercover in the same manner in which a ULA investigation is conducted. One such investigation was conducted by Ryan Heal, an employee of the Department between August and December of 2006. Mr. Heal conducted the investigation undercover using a pseudonym referred to in Department documents as “RJ.” RJ and the 2006 Investigation of JHS Mr. Heal has been a medical malpractice investigator for the Department since November 2000. During the course of his more than 15 years as a Department investigator, Mr. Heal has investigated both regulatory violations and unauthorized practice violations. In 2006, allegations reached the Department that prescriptions were being written at Jacksonville Health Systems (“JHS”), a clinic located on Baymeadows Road in Jacksonville, Florida, by a physician assistant without the supervision of a physician. In response, the Department launched an investigation. The investigation was conducted undercover by Mr. Heal using his pseudonym RJ. Commenced in August of 2006, the investigation lasted until the following December. August 10, 2006 On August 10, 2006, Mr. Heal, using his fictitious name, presented at JHS. A woman behind the counter in the reception area accepted a cash payment for the visit. She took RJ’s blood pressure and requested the name of the pharmacy for any medicine prescribed. To the best of Mr. Heal’s recollection, the receptionist recorded some of the information. After the interaction with staff in the reception room, Mr. Heal took a seat and waited to be called back to the examination room. Shortly thereafter, Ms. Lindstrom emerged and asked for RJ. Mr. Heal “stood up and went over to her.” Hr’g Tr. 19. Ms. Lindstrom identified herself by her first name and said, “I’m the provider here.” Id. Ms. Lindstrom accompanied Mr. Heal to the examination room where only she and Mr. Heal were present. After Mr. Heal complained of back pain, Ms. Lindstrom asked where in his back the pain was located and what caused it, but she did not conduct a physical examination. As Mr. Heal testified at hearing, “[t]here was no examination. She never touched my back. Never took vitals or anything.” Hr’g Tr. 20. Ms. Lindstrom suggested that Mr. Heal use a chair with lumbar support, try stretching, lose weight, and have an MRI. Ms. Lindstrom then stated that she would prescribe medication to treat the pain: Lorcet, Flexeril, and Motrin. With the visit in the examination room concluded, Ms. Lindstrom took Mr. Heal back to the receptionist. The meeting in the examination room and his first visit to the JHS offices being over, Mr. Heal departed the JHS facility. He did not return until the following October. October 31, 2006 Mr. Heal returned to the JHS facility on October 31, 2006. The process during the second visit was similar to the one followed during the visit the previous August. He presented as “RJ.” A staff member took his blood pressure in the reception area and he paid her $90 in cash. Mr. Heal sat down and waited to be called. Again, Ms. Lindstrom appeared in the reception area and took him to the examination room in the back. The visit was shorter than it had been in August. Ms. Lindstrom asked if his pain had improved and if an MRI had been done. With the intention of calling in his prescriptions, Ms. Lindstrom showed Mr. Heal a list of five pharmacies from which to choose. Mr. Heal, however, took a tack that was different from Ms. Lindstrom’s intention and from his first visit: I explained to her that I did not have reliable transportation and asked [for] . . . handwritten prescriptions . . . so that I could take them to whatever pharmacy was convenient . . . . She agreed that she could write them that time, but that on the next visit, I would have to arrange for proper transportation to get to the pharmacy or wherever they needed to be called into. Hr’g Tr. 23. Ms. Lindstrom wrote out three prescriptions: Two of them were for “Flexeril 10mg (ten) #30 (thirty)” and “Ibprofen (sic) [Ibuprofen] 800mg #120 (one twenty).” Pet’r’s Ex. B. The third prescription was for “Lorcet 10/650 #90 (Ninety).” Id. Ms. Lindstrom explained to Mr. Heal that he should use one of the five pharmacies on her list because “several [of the Clinic’s patients] had been kicked out of pharmacies . . . [that] were refusing to fill the prescriptions.” Hr’g Tr. 25. Ms. Lindstrom also “mentioned that a couple of her patients had been arrested for forging prescriptions.” Hr’g Tr. 25-6. At no time during his visit to JHS on October 31, 2006, did Mr. Heal see a physician. No one entered the examination room where Ms. Lindstrom met with Mr. Heal that day. Nor did Ms. Lindstrom leave the examination room while Mr. Heal was present in the room. Like the first visit the previous August, Ms. Lindstrom recommended that Mr. Heal have an MRI. She explained that results from an MRI were needed “in case the DEA wanted to look at the file, to show that [she and JHS] were actually treating [Mr. Heal] for something.” Hr’g Tr. 28. December 1, 2006 Little more than a month later on December 1, Mr. Heal made a third visit to JHS. The reception process was the same. The receptionist took his blood pressure, he paid $90 in cash, and waited in the reception area for Ms. Lindstrom to call him back. While waiting, he was informed that the number of pharmacies that would accept JHS prescriptions had been drastically reduced. Only one pharmacy would now accept JHS prescriptions: a pharmacy called New Horizon. Subsequent to the third visit, Mr. Heal presented to the pharmacy identified as New Horizon. In the company of law enforcement and with its supervision, Mr. Heal had the prescriptions filled for three medications: Flexeril, Ibuprofen at a prescription-strength dosage, and Lorcet. Supervising Physician and Other Claims At hearing under oath, Ms. Lindstrom admitted that she treated Mr. Heal once at the JHS facility and admitted that she prescribed Flexeril and Ibuprofen for him. She claimed under oath that the supervising physician for the 2006 visit in which she prescribed the two medications was James Hendrick, M.D. The Department produced documentation in the Department’s official business records that shows that Dr. Hendrick cancelled his Professional Liability Insurance Policy effective October 1, 2005, the year before Ms. Lindstrom claims to have seen Mr. Heal at the JHS facility under Dr. Hendrick’s supervision. The reason for the cancellation of the policy is listed on the letter from the insurer to the Department as “Retired.” Pet’r’s Ex. F, letter dated October 17, 2005, from FPIC, First Professionals Insurance Company. Department records also include an “Address Change” form that contains a section entitled “Financial Responsibility” dated November 21, 2005, the year before the incidents in this case. No boxes are checked in the section that shows “Financial Responsibility Coverage.” Under a section on the form entitled, “Category II: Financial Responsibility Exemptions,” Dr. Hendrick checked a box that indicated he was “retired or maintain[ed] part-time practice,” id., at least as of late November 2005, 11 months or more before the October 31, 2006, visit by Mr. Heal. Ms. Lindstrom made other claims with regard to RJ’s visit that she asserted occurred on October 3, 2006, rather than October 31, 2006, as charged. Among them was that she left the examination room after completing the prescriptions for Flexeril and Ibuprofen and partially completing a third prescription by inserting all the information, including her signature, except for the medicine to be prescribed and how often it should be taken. Ms. Lindstrom claimed that she intended to write a prescription for Lodine, but failed to write down “Lodine” on the third prescription form because she was distracted by a discussion with Mr. Heal about the need for RJ to have an MRI. She says she left the room to make arrangements for an MRI and when she returned, RJ was gone, together with the two filled out prescriptions, the third incomplete prescription, and her prescription pad. Ms. Lindstrom’s testimony about the theft of the pad and other details about the event, including when it occurred, is not credible. In contrast, Mr. Heal’s testimony about the visits he made to the JHS facility, seeing Ms. Lindstrom, and her prescription of Lorcet, is credited as truthful. Lorcet Lorcet contains hydrocodone, which is a controlled substance.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a final order: Finding that Respondent Sandra A. Lindstrom, P.A., violated section 458.331(1)(nn), Florida Statutes (2006), by violating Florida Administrative Code Rule 64B8-30.008 (2006), as charged in the Amended Administrative Complaint; Imposing a $2,500 fine; and Revoking Respondent’s license as a physician assistant. DONE AND ENTERED this 30th day of March, 2016, in Tallahassee, Leon County, Florida. S DAVID M. MALONEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 2016. COPIES FURNISHED: Sandra Ann Lindstrom 6726 Pomeroy Circle Orlando, Florida 32810 Yolonda Y. Green, Esquire Maciej Lewandowski, Esquire Department of Health 4052 Bald Cypress Way, Bin C65 Tallahassee, Florida 32399-3265 (eServed) Andre Ourso, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way, Bin C03 Tallahassee, Florida 32399-3253 (eServed) Nichole C. Geary, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 (eServed)
Conclusions Having reviewed the Administrative Complaint, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency has jurisdiction over the above-named Respondent pursuant to Chapter 408, Part II, and Chapter 400, Part X, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Administrative Complaint and Election of Rights form to the Respondent. (Ex. 1) The parties have since entered into the attached Settlement Agreement, (Ex. 2). Based upon the foregoing, it is ORDERED: 1. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 2. The facility’s Certificate of Exemption is deemed surrendered and is cancelled and of no further effect. 3. Each party shall bear its own costs and attorney’s fees. Any requests for administrative hearings are dismissed and the above-styled case is hereby closed. 4. In accordance with Florida law, the Respondent is responsible for retaining and appropriately distributing all client records within the timeframes prescribed in the authorizing statutes and applicable administrative code provisions. The Respondent is advised of Section 408.810, Florida Statutes. 5. In accordance with Florida law, the Respondent is responsible for any refunds that may have to be made to the clients. Filed December 24, 2014 3:10 PM Division of Aadniinistrative Hearings 6. The Respondent is given notice of Florida law regarding unlicensed activity. The Respondent is advised of Section 408.804 and Section 408.812, Florida Statutes. The Respondent should also consult the applicable authorizing statutes and administrative code provisions. The Respondent is notified that the cancellation of an Agency license may have ramifications potentially affecting accrediting, third party billing including but not limited to the Florida Medicaid program, and private contracts. ORDERED at Tallahassee, Florida, on this 7D day of Le cop ple-en 2014. MOS where Elizabeth Dudek, Secretary Agency for Health Care Administration
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I CERTIFY that a true and core oes Final es was served on the below-named persons by the method designated on this LE lay of Z 2 Ly , 2014. Richard J. Sax Agency Cler Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Thomas Jones, Unit Manager Facilities Intake Unit Licensure Unit Agency for Health Care Administration Agency for Health Care Administration (Electronic Mail) (Electronic Mail) Katrina Derico-Harris Arlene Mayo—Davis, Field Office Manager Medicaid Accounts Receivable Local Field Office Agency for Health Care Administration Agency for Health Care Administration (Electronic Mail) (Electronic Mail) Shawn McCauley Daniel A. Johnson, Senior Attorney Medicaid Contract Management Office of the General Counsel Agency for Health Care Administration Agency for Health Care Administration (Electronic Mail) (Electronic Mail) Division of Administrative Hearings Dagmar Llaudy, Esquire (Electronic Mail) Law Office of Dagmar Llaudy, P.A. 814 Ponce De Leon Blvd, Suite 513 Coral Gables, Florida 33134 (U.S. Mail) NOTICE OF FLORIDA LAW 408.804 License required; display.-- (1) It is unlawful to provide services that require licensure, or operate or maintain a provider that offers or provides services that require licensure, without first obtaining from the agency a license authorizing the provision of such services or the operation or maintenance of such provider. (2) A license must be displayed in a conspicuous place readily visible to clients who enter at the address that appears on the license and is valid only in the hands of the licensee to whom it is issued and may not be sold, assigned, or otherwise transferred, voluntarily or involuntarily. The license is valid only for the licensee, provider, and location for which the license is issued. 408.812 Unlicensed activity. -- (1) A person or entity may not offer or advertise services that require licensure as defined by this part, authorizing statutes, or applicable rules to the public without obtaining a valid license from the agency. A licenseholder may not advertise or hold out to the public that he or she holds a license for other than that for which he or she actually holds the license. (2) The operation or maintenance of an unlicensed provider or the performance of any services that require licensure without proper licensure is a violation of this part and authorizing statutes. Unlicensed activity constitutes harm that materially affects the health, safety, and welfare of clients. The agency or any state attorney may, in addition to other remedies provided in this part, bring an action for an injunction to restrain such violation, or to enjoin the future operation or maintenance of the unlicensed provider or the performance of any services in violation of this part and authorizing statutes, until compliance with this part, authorizing statutes, and agency rules has been demonstrated to the satisfaction of the agency. (3) It is unlawful for any person or entity to own, operate, or maintain an unlicensed provider. If after receiving notification from the agency, such person or entity fails to cease operation and apply for a license under this part and authorizing statutes, the person or entity shall be subject to penalties as prescribed by authorizing statutes and applicable rules. Each day of continued operation is a separate offense. (4) Any person or entity that fails to cease operation after agency notification may be fined $1,000 for each day of noncompliance. (5) When a controlling interest or licensee has an interest in more than one provider and fails to license a provider rendering services that require licensure, the agency may revoke all licenses and impose actions under s. 408.814 and a fine of $1,000 per day, unless otherwise specified by authorizing statutes, against each licensee until such time as the appropriate license is obtained for the unlicensed operation. (6) In addition to granting injunctive relief pursuant to subsection (2), if the agency determines that a person or entity is operating or maintaining a provider without obtaining a license and determines that a condition exists that poses a threat to the health, safety, or welfare of a client of the provider, the person or entity is subject to the same actions and fines imposed against a licensee as specified in this part, authorizing statutes, and agency rules. (7) Any person aware of the operation of an unlicensed provider must report that provider to the agency. STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, vs. AHCA No.: 2014008789 Exemption No.: HCC10956 MAGIC HANDS REHABILITATION CENTER, INC., Respondent. / ADMINISTRATIVE COMPLAINT COMES NOW, the Petitioner, State of Florida, Agency for Health Care Administration (“the Agency”), by and through its undersigned counsel, and files this Administrative Complaint ‘ against the Respondent, Magic Hands Rehabilitation Center, Inc. (“the Respondent”), pursuant to Section 120.569 and 120.57, Florida Statutes (2014), and alleges: NATURE OF THE ACTION This is an action to revoke the Respondent’s health care clinic Certificate of Exemption. PARTIES 1. The Agency is the state agency that oversees the licensure and regulation of _ health care clinics in Florida pursuant to Chapters 408, Part Il, and 400, Part X, Florida Statutes (2014); and Chapter 59A-33, Florida Administrative Code. “The Legislature finds that the regulation of health care clinics must be strengthened to prevent significant cost and harm to consumers. The purpose of this part is to provide for the licensure, establishment, and enforcement of basic standards for health care clinics and to provide administrative oversight by the Agency for Health Care Administration.” § 400.990(2), Fla. Stat. (2014). 2. The Respondent applied for and was issued a Certificate of Exemption to operate a health care clinic located at 7392 NW 35" Terrace, Unit 310, Miami, Florida 33122. FYHIRIT 1 Certificate of Exemption from Licensure for Health Care Clinics 3. Under Florida law, “clinic” means an entity where health care services are provided to individuals and which tenders charges for reimbursement for such services, including a mobile clinic and a portable equipment provider. Fla. Stat. § 400.9905(4) (2014). 4. Under Florida law, the term “clinic” does not apply to a sole proprietorship, group practice, partnership, or corporation that provides health care services by licensed health care practitioners under chapter 457, chapter 458, chapter 459, chapter 460, chapter 461, chapter 462, chapter 463, chapter 466, chapter 467, chapter 480, chapter 484, chapter 486, chapter 490, chapter 491, or part I, part III, part X, part XIII, or part XIV of chapter 468, or s. 464.012, and that is wholly owned by one or more licensed health care practitioners, or the licensed health care practitioners set forth in this paragraph and the spouse, parent, child, or sibling of a licensed health care practitioner if one of the owners who is a licensed health care practitioner is supervising the business activities and is legally responsible for the entity's compliance with all federal and state laws. However, a health care practitioner may not supervise services beyond the scope of the practitioner's license, except that, for the purposes of this part, a clinic owned bya licensee in s. 456.053(3)(b) which provides only services authorized pursuant to s. 456.053(3)(b) may be supervised by a licensee specified in s. 456.053(3)(b). Fla. Stat. § 400.9905(4)(g) (2014). Such an entity may claim to be exempt from licensure and may be eligible for a Certificate of Exemption from the Agency. 5. Under Florida law, a facility becomes a “clinic” when it does not qualify for an exemption, provides health care services to individuals and bills third party payers for those services. F.A.C. 59A-33.006(4). Facts 6. On December 19, 2013, Respondent was issued a Certificate of Exemption from licensure, number HCC10956, based upon Respondent identifying itself as solely owned by 2 Peter J. Maffetone, a licensed health care practitioner. 7. On August 22, 2014, Peter J. Maffetone gave testimony during a recorded sworn statement. 8. On that date, under oath, Peter J. Maffetone testified that he does not now, nor has he ever owned or had a financial interest in Respondent, Magic Hands Rehabilitation Center, Inc. 9. Respondent does not qualify for a Certificate of Exemption due to the fact that Peter J. Maffetone does not possess ownership. Sanction 10. Under Florida Law, any person or entity providing health care services which is not a clinic, as defined under Section 400.9905, may voluntarily apply for a certificate of exemption from licensure under its exempt status with the agency on a form that sets forth its name or names and addresses, a statement of the reasons why it cannot be defined as a clinic, and other information deemed necessary by the agency. § 400.9935(6), Fla. Stat. (2014). 11, Under Florida Law, the applicant for a certificate of exemption must affirm, without reservation, the exemption sought pursuant to Section 400.9905(4), F.S., and the qualifying requirements for obtaining and maintaining an exempt status; the current existence of applicable exemption-qualifying health care practitioner licenses; qualified ownership, qualified certifications or registration of the facility or owners; federal employer identification number; services provided; proof of legal existence and fictitious name, when the entity and name are required to be filed with the Division of Corporations, Department of State; plus other satisfactory proof required by form adopted by this rule. F.A.C. 59A-33.006(6). 12. Under Florida Law, facilities that claim an exemption, either by filing an application for a certificate of exemption with the Agency and receiving a certificate of exemption, or self-determining, must maintain an exempt status at all times the facility is in operation. F.A.C. 59A-33.006(2). 13. Under Florida Law, when a change to the exempt status occurs to an exempt facility or entity that causes it to no longer qualify for an exemption, any exempt status claimed or reflected in a certificate of exemption ceases on the date the facility or entity no longer qualifies for a certificate of exemption. In such case, the health care clinic must file with the Agency a license application under the Act within 5 days of becoming a health care clinic and shall be subject to all provisions of the Act applicable to unlicensed health care clinics. Failure to timely file an application for licensure within 5 days of becoming a health care clinic will render the health care clinic unlicensed and subject the owners, medical or clinic directors and the health care clinic to sanctions under the Act. F.A.C. 59A-33.006(3). 14. As demonstrated by the facts outlined herein, Respondent no longer qualifies for a Certificate of Exemption pursuant to § 400.9905(4)(g), Fla. Stat. (2014). 15. Therefore, Respondent is now required to be licensed as a clinic pursuant to F.A.C. 59A-33.006 and Chapters 408, Part II, and 400, Part X, Fla. Stat, 16. Under Section 400.995, Florida Statutes, in addition to the requirements of Part II of Chapter 408, the Agency may deny the application for a license renewal, revoke and suspend the license, and impose administrative fines of up to $5,000 per violation for violations of the requirements of this part or rules of the agency. § 400.995(1), Fla. Stat. (2014). Each day of continuing violation after the date fixed for termination of the violation, as ordered by the agency, constitutes an additional, separate, and distinct violation. § 400.995(2), Fla. Stat. (2014). 17. Under Section 400.9915(2), Florida Statutes, in addition to any administrative fines imposed pursuant to this part or Part IT of Chapter 408, the Agency may assess a fee equal to the cost of conducting a complaint investigation. § 400.9915(2), Fla. Stat. (2014). WHEREFORE, the Agency seeks to revoke the Respondent's health care clinic Certificate of Exemption. CLAIM FOR RELIEF The Petitioner, State of Florida, Agency for Health Care Administration, respectfully seeks a final order that: A. Makes findings of fact and conclusions of law in favor of the Agency as set forth above. B. Imposing the sanctions and relief as set forth above. Gj RESPECTFULLY SUBMITTED on this / / day of September, 2014. Florida Bar No. 0091175 Office pt the General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308 Telephone: (850) 412-3658 Facsimile: (850) 922-6484 Daniel. Johnson@ahca.myflorida.com
The Issue The issue is whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Petition for Relief filed by Petitioner.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this case, Petitioner, Ausbon Brown, Jr. (Petitioner), an African-American male born on April 25, 1943, contends that Respondent, Agency for Health Care Administration (AHCA), unlawfully refused to hire him for any one of nine positions he applied for on account of his race, gender, and age. The Department denies the allegation and contends that Petitioner did not meet all of the qualifications for the positions, and that it hired the most qualified employee in each instance. After a preliminary investigation was conducted by the Florida Commission on Human Relations (Commission), which took almost two years to complete, the Commission issued a Determination: No Cause on August 18, 1999. Although not specifically established at hearing, it can be reasonably inferred from the evidence that Respondent employed at least fifteen employees for each working day in each of twenty or more calendar weeks in the current or preceding year and thus is an employer within the meaning of the law. Petitioner received a Bachelor of Science degree in biology in 1965 from Florida A&M University, a Master of Science degree in wildlife and fisheries science in 1978 from Texas A&M University, and a doctorate in wildlife and fisheries science in 1991 from Texas A&M University. According to Petitioner's job applications, from June 1965 until April 1994, he worked in various positions for the U. S. Department of Commerce, National Marine Fisheries Service, including as a "survey statistician," "operations research analyst," "chief turtle headstart," "fishery biologist," "fishery technician," and "equal opportunity employment counselor." Presumably, Petitioner then retired from federal service. Beginning on July 28, 1995, and continuing for several years, he was employed as a child support enforcement case analyst with the Florida Department of Revenue. Petitioner did not disclose his current employment. The exact number of positions for which Petitioner applied with AHCA are not known; however, within the twelve months preceding the date of the last alleged discriminatory act, Petitioner says he filed applications for at least nine positions. Of these, two (63632 and 63636) were transferred by the Legislature to the Department of Management Services (DMS) effective July 1, 1997, and AHCA was not involved with the recruitment and filling of those positions. Thus, they have not been considered by the undersigned. The remaining seven positions in dispute include a Medical Malpractice Investigator (80655); Senior Management Analyst II (64251 and 63640); Medical Health Care Program Analyst (00159 and 21778); Operations and Management Consultant II (64274); and a Biological Scientist III (80996). Petitioner was not selected for any of these jobs. As to position 80655, a Medical Malpractice Investigator, AHCA was seeking a person with experience conducting investigations for possible violations by health care professionals subject to AHCA's regulatory jurisdiction. Because AHCA regulates such professionals, including doctors, investigations are a key function of the agency. Forty-three persons filed applications for the position, while only six were interviewed. The successful applicant was a white male approximately nine years older than Petitioner with a degree in pharmacy. The successful applicant had extensive experience with the New York Department of Health investigating health care professionals, including doctors, an area in which Petitioner had no experience. The evidence supports a finding that AHCA hired the most qualified person for the job. Even though AHCA had at least three Senior Management Analyst II vacancies at approximately the same time, according to a DMS rule, it was necessary that an applicant file a separate application for each position. In Petitioner's case, he filed only two applications for the three positions. Although Petitioner contended that he faxed a separate application for all three positions, the fax number he used for position 63640 was incorrect. Accordingly, because Petitioner did not have an application filed for that position, his claim of discrimination for that job will not be considered. Position 21778, a Medical Health Care Program Analyst in AHCA's Tallahassee office, required that the applicant have "familiarity with other analytic tools such as statistical software programming languages [and] geographic info[rmation] systems," as well as a background in "managed health care, health insurance, public policy research, statistical research or finance." Although the exact number of applicants for this position is not of record, only seven were selected for an interview. Petitioner was not in this group. The successful applicant, an Asian female younger than Petitioner, had direct experience in geographic software and more closely met the needs of the position than did Petitioner and the other candidates. More than one hundred persons, including Petitioner, applied for position 00159, also a Medical Health Care Program Analyst in AHCA's Medicaid office. This position required that the applicant have knowledge of Medicaid and procurement procedures as well as related federal regulations since the individual would be working in the Medicaid third-party liability program. Petitioner had no such experience. The successful applicant, a female younger than Petitioner but whose race is unknown, had almost six years experience with Medicaid, including third-party liability. The more persuasive evidence supports a finding that the most qualified person was selected. Position 64274, an Operations and Management Consultant II in the Medicaid program, required that the successful applicant have, among other things, a "[l]ong-term care background, thorough knowledge of Medicaid, Medicare, and other health care programs, and an understanding of the implication of Florida's demographics and health care reform initiatives." More than eighty persons applied for the position, including Petitioner. The successful applicant (race unknown) was a female three years younger than Petitioner. She had eight years experience in social and health care services, including Medicaid, and a Master's degree in Medical Sociology. The evidence supports a finding that the most qualified person was selected for the position. Position 80996, a Biological Scientist III, was located with the Board of Clinical Laboratory Personnel and required that the person filling the slot have knowledge of the licensure program and the federal and state laws pertaining to clinical laboratories. The successful applicant, a female whose age and race are unknown, had a long career as a medical technologist and five years of professional experience in the laboratory field. Again, the evidence supports a finding that the most qualified person was selected. The final position was 64251, a Senior Management Analyst II in the Medicaid program. Like the others in that program, this position required that the candidate have experience in the Medicaid area, including working with federal and state regulations pertaining to third-party liability. Out of more than one hundred and eighty applicants, only three were selected for an interview, and a white male younger than Petitioner was ultimately selected. That person had a degree in finance and prior experience in quality control review for issues related to Medicaid third-party liability. Petitioner had no such experience, and the better qualified person was selected. Even so, Petitioner contended that, pursuant to a DMS rule, AHCA should have notified him within forty-five days after he filed his applications for positions 63632 and 63636 that they were being transferred by the Legislature to another agency and that they would not be filled by AHCA. Even if such notification was required, however, this error in procedure does not equate to a discriminatory act within the meaning of the law. Petitioner also contended that four "open competitive" positions were actually filled by "internal promotion," in contravention of a DMS rule. The evidence shows, however, that AHCA gave no special consideration or preference to existing AHCA employees who filed applications for these jobs, and that each position was filled based on the merits of the candidates' respective applications. Obviously, applicants having direct experience in areas such as medical investigations, Medicaid third-party liability, and geographic software were more than likely better qualified for the positions than were the other candidates who had no such experience. Petitioner next suggests that when he sought position 80655, his investigative qualifications were misconstrued, and that his fifteen years' experience investigating "biological phenomena" for the federal government, one and one-half years' experience in "physiology investigations," and five years' experience as a medical laboratory technologist in the United States Army Reserve were not given proper weight. While Petitioner may have possessed the foregoing qualifications, AHCA desired someone with direct experience in medical malpractice investigation, and the successful applicant better met this requirement. At hearing, Petitioner further contended that the investigation conducted by the Florida Commission on Human Relations (Commission) was flawed, and that the reason stated in the investigative report for Petitioner's rejection was not accurate. Since Petitioner was given a de novo hearing to challenge the Commission's preliminary determination of no cause, the investigator's conclusions are irrelevant. Petitioner finally pointed out that the form rejection letters that he received gave no reason why he was not selected. Because AHCA could determine his age, race, and gender from information on his applications, Petitioner "deduced" that absent any other explanation, discrimination must have played a role in the agency's employment decisions. As to this contention, the more persuasive evidence shows that AHCA did not "chang[e] classifications and var[y] conditions of employment" in an effort to deny Petitioner employment, use the proffered reasons for rejection as a pretext for discrimination, or base its employment decisions on discriminatory animus. Indeed, the most qualified persons were selected in each instance.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing, with prejudice, the Petition for Relief. DONE AND ENTERED this 7th day of April, 2000, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (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 7th day of April, 2000. COPIES FURNISHED: Ausbon Brown, Jr. Post Office Box 10946 Daytona Beach, Florida 32120-0946 Thomas W. Caufman, Esquire Agency for Health Care Administration 6800 North Dale Mabry Highway Suite 220 Tampa, Florida 33614-3979 Sharon Moultry, Clerk Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue DOAH Case No. 01-3148: Whether the Respondent's licensure status should be reduced from standard to conditional. DOAH Case No. 01-4649: Whether the Respondent committed the violations alleged in the Administrative Complaint dated October 15, 2001, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: AHCA is the state agency responsible for licensing and regulating the operation of nursing home facilities, including ensuring that nursing homes are in compliance with criteria established by Florida statute. Chapter 400, Part II, Florida Statutes (2001). AHCA is authorized in Section 400.23(8), Florida Statutes, to impose administrative fines on nursing home facilities that fail to meet the applicable criteria. Florence Treakle conducted surveys of Life Care on May 9, 2001, and June 12, 2001, as a result of complaints received by AHCA. Because the surveys were conducted as a result of complaints received by AHCA, Ms. Treakle was the only AHCA surveyor conducting the surveys. The results of the surveys were reported on a form identified as "HCFA-2567," which is generated by the federal Department of Health and Human Services, Health Care Financing Administration, and is commonly referred to as a "Form 2567." Several deficiencies were identified in the Form 2567s completed for the May 9, 2001, and June 12, 2001, surveys, which were each cited to a federal "tag number" designated as "F" tags,1 to the applicable provision of the Code of Federal Regulations, and to the applicable Florida administrative rule. Each deficiency was also classified under Florida law as either a Class II or a Class III deficiency, and a factual narrative was included to support each deficiency cited. May 9, 2001, survey.2 The Form 2567 for the May 9, 2001, survey included a citation for a Class III deficiency under F-279, "Resident Assessment," and Section 483.13(c), Code of Federal Regulations. This citation involved the care provided to residents L.D. and A.M. and was supported by the assertion that, "[b]ased on observation and record review[,] . . . the facility did not have comprehensive care plans in place for healing of the residents [sic] pressure sores." A care plan is a tool used by the nursing staff to ensure that the resident is getting consistent care and is compiled from data included in a resident's Comprehensive Assessment. An entry in a care plan includes the identification of a problem, a goal for resolving or improving the problem, and the approaches, or means, to be used to reach the goal. Resident L.D. L.D. came into Life Care with pressure ulcers, including a Stage IV pressure ulcer3 on his coccyx, which is located at the bottom of the backbone. L.D. was receiving wound care both at Life Care and at a wound care center pursuant to a physician's order dated April 4, 2001, which contained the following requirement: "[O]ffload[] all boni [sic] prominences as much as possible." In accordance with this order, L.D. was turned and repositioned in bed every two hours, and he was provided with a special, pressure-relieving mattress. L.D. was a very quiet person, but he had no cognitive impairment and was able to communicate his needs to staff. L.D.'s wife visited him every day; she usually arrived in mid-morning and left in mid-afternoon, and she returned for a few hours in the evening. Both L.D. and his wife made it clear to the Life Care staff that L.D. wanted to sit in a wheelchair as much as possible so that he could move around the facility, take walks outdoors with his wife, and have his meals sitting up. L.D. used a special, high-backed wheelchair that he provided for his use while he was a resident of Life Care. The chair reclined so that pressure on his coccyx could be relieved somewhat, and Life Care furnished him a gel cushion for his wheelchair, also to help relieve pressure on his coccyx. On May 9, 2001, Ms. Treakle observed L.D. sitting in his wheelchair for over two hours, from 10:20 a.m. until 1:00 p.m. She found nothing in L.D.'s Care Plan regarding the amount of time L.D. would be permitted to sit in a wheelchair. Resident A.M. A.M. entered Life Care with a Stage III pressure ulcer on his left buttock. A.M. was receiving wound care at Life Care in accordance with the approaches included in his Care Plan. A.M. was not cognitively impaired, and he could communicate his needs to staff. His granddaughter and one year-old great-grandson visited him every day, and he enjoyed sitting outside in a wheelchair with his great-grandson on his lap. A.M. also liked to spend most of his time outside his room, moving himself around the facility in a wheelchair. Life Care provided a gel cushion for his wheelchair to help relieve pressure on A.M.'s buttock. On May 9, 2001, Ms. Treakle observed A.M. sitting in a wheelchair from 2:00 p.m. until 3:30 p.m. A.M.'s Care Plan did not contain an entry establishing the amount of time A.M. would be permitted to sit in a wheelchair. Summary. AHCA has failed to establish by even the greater weight of the evidence that the Care Plans developed for L.D. and A.M. were deficient. AHCA failed to present credible evidence of the contents of L.D.'s Care Plan,4 but the evidence is uncontroverted that L.D.'s wound care orders contained approaches for healing his pressure sores. A.M.'s Care Plan included several approaches for healing his pressure sores, and AHCA has not alleged that the required wound care was not provided to either L.D. or A.M. Rather, AHCA's specific complaint regarding the Care Plans of L.D. and A.M. is that there was no approach specifying the amount of time L.D. and A.M. would be permitted to sit in their wheelchairs. This complaint is based exclusively on the expectations of Ms. Treakle. Ms. Treakle expected to find this approach in the Care Plans because, in her opinion, pressure on the coccyx and buttocks can never be completely relieved when a resident is sitting,5 and any pressure on a pressure ulcer impedes healing because it decreases blood flow to an area. Accordingly, Ms. Treakle "would expect good practice would [sic] be for the Care Plan to indicate how long the resident was going to sit on this pressure sore."6 AHCA did not, however, submit any evidence of a standard of care requiring that the duration of time a resident can sit in a wheelchair be included as an approach in the care plan of a resident with a pressure ulcer, especially when the resident is alert, mobile, and able to communicate with staff. June 12, 2001, survey. The Form 2567 for the June 12, 2001, survey cited Life Care for three deficiencies: A Class II deficiency was cited under F-224, "Staff Treatment of Residents," and Section 483.13(c)(1)(i), Code of Federal Regulations, involving the care provided to residents E.G. and N.D. and supported by the assertion that "[b]ased on observation, record review and interview[,] the facility did not monitor and supervise the delivery of care and services." A Class III deficiency was cited under F-279, "Resident Assessment," and Section 483.20(k), Code of Federal Regulations, supported by the assertion that, "[b]ased on review of the care plan for resident #1 [N.D.], . . . the facility did not complete a comprehensive care plan that was revised to reflect all fall risks." A Class II deficiency was cited under F-281, "Resident Assessment," and Section 483.20(k)(3)(i), Code of Federal Regulations, supported by the assertion that, "[b]ased on citations at F 224[,] F 279 and F 324[,] the facility nursing staff did not provide care that met professional standards for residents #1 [N.D.] and #2 [E.G.]." Resident E.G. Diabetes management. Pertinent to these proceedings, E.G. was diagnosed with insulin-dependent diabetes; his blood sugar generally ranged from 150 to 270, which is in the mid-range, although it once reached 348. E.G. was alert, oriented, self-ambulatory, and somewhat grouchy. E.G.'s brother visited him about three times each week, and E.G. often left the facility with his brother for a meal. He did not adhere strictly to his diet, but often ate fried foods when he went out with his brother, and he kept a supply of orange juice in the small refrigerator in his room. Both fried foods and orange juice are contraindicated for diabetics. Pursuant to physician's orders, E.G.'s blood sugar was to be monitored four times a day, before each meal and at bedtime,7 and insulin was to be administered on a sliding scale, in an amount to be determined based on his blood sugar level. This order was transcribed on E.G.'s Medication Record, which, for each day of the month, included spaces for the time, the blood sugar level, the insulin coverage (the dosage expressed in number of units administered), and the site of injection, together with the initials of the staff member providing the care. Life Care staff also maintained glucose monitoring sheets, which included spaces for the date, the time, the blood sugar level, the dosage of insulin administered, and the initials of the staff member providing the care. There is no documentation in E.G.'s Medication Records, his glucose monitoring sheets, or the Nurses Notes that his blood sugar was checked at 11:30 a.m. on June 7, 2001. When his blood sugar was checked at 4:30 p.m. on June 7, it was 317, which is substantially higher than usual. For the 6:30 a.m. checks on June 2, 3, and 8, 2001, E.G.'s blood sugar level was documented and there are notations that insulin was given, but the dosages and sites of injection were not noted; E.G.'s blood sugar at the 11:30 a.m. checks on these days was either virtually the same as, or less than, the levels noted at the 6:30 a.m. checks. For the 6:30 a.m. check on June 4, 2001, E.G.'s blood sugar level was documented, but there is no notation that insulin was given; E.G.'s blood sugar at the 11:30 a.m. check on June 4 was less than the level noted at the 6:30 a.m. check. Wound Care. On June 5, 2001, a dermatologist removed a lesion from the top of E.G.'s left hand. The dermatologist prescribed Bactroban ointment, which was to be applied to the wound twice a day. Wound care instructions were included with the prescription, which provided as follows: Leave bandage on for 24 hours only without getting wet. Remove bandage after 24 hours and then do not apply another bandage. Leave the area open and clean the wound twice daily with warm water. Pat the wound dry and then apply Bactroban Ointment. Bactroban Ointment is a topical antibiotic that can be purchased without a prescription. Continue to do this until the wound has healed. Normal bathing can be resumed after the bandage is removed. Some redness and swelling are normal in the immediate area of the wound. If the wound develops significant redness, tenderness or a yellow drainage, please contact this office immediately . . . . A physician's order dated June 5, 2001, was written for E.G. for "Bactroban oint to wound on L hand, 45gm." The order did not state how often the ointment was to be applied or include the other instructions accompanying the prescription. The order was transcribed on E.G.'s Treatment Record on June 5, 2001, but the entry provided only that Bactroban ointment was to be applied to the wound once a day. There is nothing in E.G.'s Care Plan, Treatment Record, or Medication Record to document that his wound was treated between June 5 and June 12, 2001, nor was there any indication in E.G.'s chart that anyone signed for the Bactroban ointment. Marion Neuhaus, the Director of Nursing at Life Care at the times pertinent to these proceedings, observed E.G.'s wound every day because E.G. came to her office to show her the wound and other bumps and scrapes he accumulated as he walked around the facility. Ms. Neuhaus noted that the wound was scabbed, that there was a pink area around the wound, and that there was no swelling or drainage. Treatment was begun on the wound on June 12, 2001, and it healed without any complications. Summary. AHCA has established clearly and convincingly that Life Care did not provide E.G. with the wound care that was ordered by his physician. AHCA has, however, failed to establish by even the greater weight of the evidence that the healing process of E.G.'s wound was compromised by this lack of treatment. Ms. Treakle observed E.G.'s wound on June 12, 2001, and noted that it was scabbed and red around the edges. Ms. Treakle concluded that this redness alone indicated that the wound was infected. This conclusion is undermined by the notation in the wound care instructions included with E.G.'s prescription from the Dermatology Center that "[s]ome redness and swelling are normal in the immediate area of the wound." Furthermore, Ms. Treakle did not follow E.G.'s wound after June 12, 2001, and the evidence presented by Life Care that E.G.'s wound healed in a timely manner is uncontroverted. AHCA has established clearly and convincingly that there are several omissions in the documentation of Life Care's monitoring of E.G.'s blood, but these omissions do not reasonably support the inference that Life Care failed to monitor E.G.'s blood sugar and administer insulin on these dates as required by the physician's orders; rather, Life Care's failure on these occasions was inadequate documentation, not inadequate care. AHCA has, however, established clearly and convincingly that Life Care did not monitor E.G.'s blood sugar as required by his physician's order at 11:30 a.m. on June 7, 2001; this inference may reasonably be drawn based on the lack of documentation and E.G.'s elevated blood sugar at the next check at 4:30 p.m. Ms. Treakle assumed that E.G. suffered actual harm as a result of this omission because, in her view, hyperglycemia, or elevated blood sugar, always causes damage to the body; Ms. Treakle could not, however, identify any specific harm to E.G. caused by this one omission. AHCA has failed to establish by even the greater weight of the evidence that E.G.'s physical well-being was compromised by Life Care's failure to monitor his blood sugar on this one occasion. Resident N.D. Fall from Shower Chair.8 At the times pertinent to these proceedings, N.D. was a 79 year-old woman who had been a resident of Life Care since October 26, 1999. According to the assessment of N.D. included in the Minimum Data Set completed on May 3, 2001, N.D. suffered from Alzheimer's disease, had long- and short-term memory problems, and was severely impaired and unable to make decisions; as of June 12, 2001, N.D. was almost entirely dependent on staff for all of the activities of daily living. N.D.'s Care Plan for November 6, 2000, which was updated with handwritten notes, reflects that she had poor safety awareness. The Interdisciplinary Notes maintained by Life Care reflect that, on June 5, 2001, a nurse observed N.D. leaning forward in her wheelchair at breakfast; this was the first mention of this behavior in N.D.'s chart. Dr. Gil, N.D.'s physician, included a notation in the Physician's Progress Notes for June 8, 2001, that he observed N.D. leaning forward but was unable to assess her abdomen because of her anxiety. The Interdisciplinary Notes reflect that Dr. Gil visited N.D. on Saturday, June 9, 2001, and that she was again leaning forward in her wheelchair, "almost falling out of [her] chair." Dr. Gil ordered an ultra-sound of N.D.'s abdomen and a "lap buddy while in w/c [wheelchair] to prevent falls." Dr. Gil's order was noted in the Interdisciplinary Notes for June 9, 2001, as well as on a physician's order form signed by Dr. Gil on June 10, 2001. According to Life Care's written policy, physician orders are to be transcribed into a patient's care plan, treatment plan, or medication administration record, depending on the nature of the order. Dr. Gil's order for a lap buddy had not been transcribed into N.D.'s November 6, 2000, Care Plan at the time Ms. Treakle conducted her survey on June 12, 2001.9 A lap buddy was used on N.D.'s wheelchair beginning on the morning of June 11, 2001. On the evening of June 11, 2001, CNA Nova Coleman was caring for N.D. Ms. Coleman had been working for Life Care for only a short time, and N.D. was one of the first patients Ms. Coleman cared for after finishing her initial training. Ms. Coleman was, however, not an inexperienced CNA, having previously worked at another nursing home. At approximately 8:30 p.m., Ms. Coleman and another CNA had just finished showering N.D., and N.D. was sitting in a shower chair; her hair had been toweled dry, and she was dressed in her night clothes. The second CNA left the room, and Ms. Coleman, who had been standing in front of N.D., moved to the back of the shower chair so she could push N.D. out of the shower area. As she moved around the chair, N.D. pitched forward and fell face-first onto the floor. Ms. Coleman tried to grab N.D. to stop her from falling, but N.D. toppled over so quickly that Ms. Coleman could not reach her. N.D. suffered severe bruises to her face and a laceration on her lip as a result of the fall, but she did not break any bones. Ms. Coleman had not been advised prior to the fall of N.D.'s tendency to lean forward in her chair. N.D.'s tendency to lean forward in her wheelchair should have been entered in her Care Plan, together with the requirement that a lap buddy was to be used whenever she was in a wheelchair. In addition, Ms. Coleman should have been briefed on N.D.'s condition, including her tendency to lean forward, before Ms. Coleman was allowed to care for N.D. Although a lap buddy was not ordered for the shower chair and, in fact, could not appropriately have been used on a shower chair, the former Nursing Director of Life Care conceded that there were other means by which N.D.'s fall could have been prevented.10 The former Nursing Director also conceded that the failure to brief Ms. Coleman on N.D.'s condition probably contributed to the fall from the shower chair. Summary. AHCA has established clearly and convincingly that Life Care failed to provide N.D. with the services necessary to prevent her from falling from the shower chair and injuring herself, that Life Care failed to provide services that met professional standards, and that Life Care failed to revise N.D.'s Care Plan to include the risk of her falling forward while seated and the approaches Life Care would take to prevent her from injuring herself. Life Care conceded that the Care Plan should have included N.D.'s tendency to lean forward while seated and Dr. Gil's order of June 9, 2001, that N.D. be provided with a lap buddy when she was in the wheelchair. Life Care also conceded that the CNA should have been briefed on N.D.'s condition before she was assigned to care for N.D. Life Care further conceded that, even though Dr. Gil did not specifically prescribe a restraint to be used in the shower chair, measures could have been taken to ensure that N.D. did not fall out of the shower chair. AHCA has also established clearly and convincingly that Life Care's failure to provide proper care to N.D. resulted in her suffering significant injuries to her face. Although the injuries were to soft tissue and ultimately healed, N.D.'s physical well-being was adversely affected. In addition, AHCA has established clearly and convincingly that, even had N.D. not fallen and suffered injuries, the failure to include in N.D.'s Care Plan her tendency to lean forward and its failure to transcribe the physician's orders regarding the lap buddy into the Care Plan could have caused a lapse in the care provided to N.D. that could have possibly resulted in injury.
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 Sustaining the reduction in the licensure status of Life Care Center of Port Saint Lucie to conditional for the period extending from June 12, 2001, to August 17, 2001; and Imposing an administrative fine in the amount of $5,000.00. DONE AND ENTERED this 15th day of May, 2002, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 15th day of May, 2002.
Conclusions Having reviewed the Administrative Complaint dated October 5, 2009, attached hereto and incorporated herein (Ex. 1), and all other matters of record, the Agency for Health Care Administration ("Agency") has entered into a Settlement Agreement (Ex. 2) with the parties to these proceedings, and being otherwise well advised in the premises, finds and concludes as follows: ORDERED: The attached Settlement Agreement is approved and adopted as part of this Final Order, and the parties are directed to comply with the terms of the Settlement Agreement. The Respondent shall pay, within thirty (30) days of the date of rendition of this Order, an administrative fine in the amount of $500.00 and a survey fee of $500.00. Filed January 8, 2010 3:33 PM Division of Admini1strative Hearings. Checks should be made payable to the "Agency for Health Care Administration." The check, along with a reference to this case number, should be sent directly to: Agency for Health Care Administration Office of Finance and Accounting Revenue Management Unit 2727 Mahan Drive, MS #14 Tallahassee, Florida 32308 Unpaid amounts pursuant to this Order will be subject to statutory interest and may be collected by all methods legally available. The Respondent's Petition for Formal Administrative proceedings is hereby withdrawn. Each party shall bear its own costs and attorney's fees. The above-styled case is hereby closed. DONE and ORDERED this b day of d-JlU..d..1.-Lt , 2010, in Tallahassee, Leon County, Florida. rnold, Secretary ealth Care Administrati A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY, ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW OF PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. 2 Copies furnished to: Jon M. Pellett, Esq. Barr, Murman & Tonelli, P.A. 201 East Kennedy, Suite 1700 Tampa, Florida 33602-5865 (U.S. Mail) Thomas F. Asbury, Senior Attorney Agency for Health Care Admin. 525 Mirror Lake Drive N. #330H St. Petersburg, Florida 33701 (Interoffice Mail) Jan Mills Agency for Health Care Admin. 2727 Mahan Drive, Bldg #3, MS #3 Tallahassee, Florida 32308 (Interoffice Mail) Yanet Armas, Administrator Alborada ALF, Inc. 6006 North Coolidge Ave. Tampa, Florida 33614 (U.S. Mail) Administrative Law Judge Div. of Administrative Hearings 1230 Apalachee Parkway Tallahassee, Florida 32399 (Interoffice Mail) Agency for Health Care Admin. Office of Finance and Accounting Revenue Management Unit 2727 Mahan Drive, MS #14 Tallahassee, Florida 32308 (Interoffice Mail) CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of this Final Order was served on the above-named person(s) and entities by U.S. Mail, or the method designated, on this t e f l""':7" ,2010. / <_ =; Richard Shoo:.:ellCY Agency for Health Care Administration 2727 Mahan Drive, Building #3 Tallahassee, Florida 32308-5403 (850) 922-5873 3
Findings Of Fact The PROVIDER received the FAR that gave notice of PROVIDER'S right to an administrative hearing regarding the fine. The PROVIDER filed a petition requesting an administrative hearing, and then caused that petition to be WITHDRAWN and the administrative hearing case to be CLOSED. PROVIDER chose not to dispute the facts set forth in the Final Agency Audit Report dated October 2, 2009. The facts alleged in the FAR are hereby deemed admitted. The Agency hereby adopts the facts as set forth in the FAR, including the fine amount of $1,000.00 and the requirement to complete a corrective action plan in the form of provider education, which is now due and owing, from PROVIDER to the Agency.
