The Issue As stated in the Prehearing Stipulation filed by the parties, the "issue to be litigated is whether Petitioner is entitled to a Superior or Standard rating on its license for the period September 1, 1986 through August 31, 1987"?
Findings Of Fact The Petitioner, The Magnolias Nursing and Convalescent Center, is a 210-bed nursing home located in a four-story building in Pensacola, Florida. It is licensed as a nursing home by the State of Florida pursuant to Chapter 400, Florida Statutes. Howard Bennett and his wife have been the owners of the Petitioner since it was built in 1978. On April 28-30, 1986, and May 1-2, 1986, the Department conducted an annual Licensure and Certification survey (hereinafter referred to as the "Annual Survey") of the Petitioner's nursing home as required by Section 400.23, Florida Statutes. Based upon the Annual Survey conducted by the Department, the Department determined that the Petitioner's facility failed to meet nursing home licensure requirement numbers (NH) 100 and 102, as identified on the Department's Nursing Home Licensure Survey Report, DHRS exhibit 2. The deficiencies found by the Department and which in fact existed during the Annual Survey relating to NH 100 and 102 were as follows: The charge nurse for each shift on each of the four floors of the facility is responsible, under direction from Director of Nursing, for the total nursing activities in the facility during each tour of duty. The charge nurses are thus responsible for ensuring that nursing personnel carry out the direct nursing care needs of specific patients and assist in carrying out these nursing care needs. This responsibility is not always met in that: On the day of the survey, there were urine odors noted on the halls, rooms of fourth and third floors, indicating lack of attention by nursing. Other instances of lack of personal attention by nursing on the above mentioned floor in that: One patient required oral hygiene. Fourteen residents required fingernail care, one resident's fingernails were long, thick, and black indicating a need for attention. Two residents had redden buttocks, three residents were wet, three residents needed shaving, three residents needed hair cuts. One resident needed colostomy bag changed. One resident had a small amount of feces on backside, and was not properly cleaned around the rectum and scrotum. Several residents had on clothing that was too tight, zippers open, buttons not fasten, soil wrinkled and threads hanging around the bottom. It is also noted, that there are 116 total care, and 17 self care residents in the facility indicating a need for constant intensive nursing care to the residents. Ref. 10D-29.108(3)(d)(1) Based upon the totality of these deficiencies, it was concluded that the Petitioner failed to comply with the standard of care to be provided by the charge nurse. The deficiencies cited by the Department during the Annual Survey were classified as Class III deficiencies. The Annual Survey was conducted by Christine Denson. Ms. Denson had conducted nine to ten annual surveys of the Petitioner prior to the survey which is the subject of this proceeding. During Ms. Denson's inspection of the Petitioner's nursing home, Ms. Denson pointed out the deficiencies which are noted above to the director of nursing who accompanied Ms. Denson during her inspection. Ms. Denson normally records in some manner the identity of a resident to whom a deficiency relates; by noting the room number or bed number. Ms. Denson did not follow this procedure during the Annual Survey. Ms. Denson met with Howard Bennett, the owner of the Petitioner, at the conclusion of the Annual Survey. After Ms. Denson had explained the deficiencies she had found during her inspection, Judge Bennett stated to Ms. Denson: "I know the place is going down hill. We are letting it slide. Judge Bennett did not ask Ms. Denson for any information concerning the identity of the residents to which deficiencies related. The Petitioner had policies in effect at the time of the Annual Survey which addressed each of the deficiencies cited by the Department. Those policies were not, however, followed. Ms. Denson did not know when the residents to which the deficiencies she found related had been admitted to the Petitioner, their medical condition, how long the fingernail problems had existed or how long the residents had resided at the Petitioner. Ms. Denson did not speak to the residents about the problems she noted, review their medical or dental records or talk to any residents' physician. Finally, Ms. Denson did not remember whether any of the residents were continent or incontinent. On August 13, 1986, a letter was issued by the Department informing the Petitioner that its license rating was being converted from a superior rating to a standard rating. The August 13, 1986, letter from the Department also indicated that the deficiencies noted in the Annual Survey had been corrected based upon a July 31, 1986, follow-up inspection conducted by the Department. The Petitioner requested an administrative hearing challenging the proposed rating of its license by letter dated September 24, 1986.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued assigning a standard rating on the Petitioner's license for the period September 1, 1986, through August 31, 1987. DONE and ENTERED this 19th day of October, 1988, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of October, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4182 The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Accentance or Reason for Rejection 1-3, 6-7, 81 These are matters included in the Prehearing Stipulation. They are hereby accepted. 4-5 Statement of the issue in this case 8 Not supported by the weight of the evidence. Ms. Denson testified at pages 48-49 of the transcript that whether a nursing home was considered to be out of compliance depended on the totality of the deficiencies and that she considered all of the deficiencies she found at the Petitioner's facility. 9 12. 10-11 10. 12-13 7. 14 Irrelevant. 15-16, 19-20, 22-23, 25, 29-31 10. 17 Hearsay. 18, 28, 33-34, 36-37, 39, 41-43, 45 Hereby accepted. 21, 24, 26-27, 32, 48, 54-66, 71, 73-77 These proposed findings of fact are generally true. They all involve, however, possible explanations for the deficiencies found at the Petitioner's facility. In order for these proposed findings of fact to be relevant it would have to be concluded that the Department had the burden of dispelling any and all possible explanations for the deficiencies. Such a conclusion would not be reasonable in this case. The Department presented testimony that the deficiencies cited existed and that, taken as a whole, they supported a conclusion that the Petitioner was not providing minimum nursing care. This evidence was credible and sufficient to meet the Department's burden of proof and to shift the burden to the Petitioner to provide proof of any explanations for the deficiencies. 35 9. 38, 40, 49-51, 53, 82-83, 86-87 Irrelevant and/or argument. 43-44 1. 46-47, 51, 56, 66-67, 71-71 These proposed findings of fact are true. They are not relevant to this proceeding, however, because they involve situations at the Petitioner's facility which may explain the deficiencies. The Petitioner failed to prove that they actually were the cause of any of the deficiencies. 70, 78-80, 84-85 Conclusions of law. The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 2-3. 2 11-12. 3 4 and 6. 4 4. 5-7 Irrelevant, summary of testimony, conclusion of law. 8 9. 9 8. 10 Irrelevant. 11 8. 12 Summary of testimony and facts relating to the weight of Ms. Mayo's testimony. 13-14 Hereby accepted. 15 Argument. 16-17 Conclusions of law. 18 4. 19-20 Conclusions of law, argument and irrelevant. COPIES FURNISHED: Jonathan S. Grout, Esquire Dempsey & Goldsmith, P.A. Post Office Box 10651 Tallahassee, Florida 32302 Michael O. Mathis Staff Attorney Office of Licensure and Certification Department of Health and Rehabilitative Services 2727 Mahan Drive Tallahassee, Florida 32308 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Which of three competing applicants for a certificate of need to construct a nursing home in health planning District 4, Subdistrict 3, best meets the statutory and rule criteria for approval.
Findings Of Fact The Agency for Health Care Administration (AHCA) is the department of state government which administers the certificate of need (CON) program for health care facilities and services in Florida, pursuant to Section 408.034, Florida Statutes. For the planning horizon beginning July 2001, AHCA published a numeric need for an additional 121 community nursing beds in nursing home planning District 4, Subdistrict 3, for southeast Duval and St. Johns Counties. Sawgrass Care Centers, Inc. (Sawgrass), Woodlands Extended Care, Inc. (Woodlands), and National Healthcare Corporation (NHC) are competing, mutually exclusive applicants for a CON to construct a 120-bed nursing home in District 4, Subdistrict 3. After reviewing the applications, AHCA preliminarily approved the issuance of CON No. 9125 to NHC. In the Prehearing Stipulation, filed on November 2, 1999, the parties agreed that the following criteria are either not applicable or are not in dispute: Subsections 408.035(1)(d), (e), (f), (g), (j), and (k), and Subsections 408.035(2)(a), (b), (c), and (d), Florida Statutes; Rule 59C- 1.036, Florida Administrative Code; and allocation factors 1, 3, 4, and 9 of the local health plan. During the final hearing, the parties also stipulated that all letters of intent were legally sufficient. The issues requiring resolution in this proceeding, the parties agreed, are: Subsections 408.035(1)(a), (b), (c), (h), (i), (l), (m), (n), and (o); and Subsection 408.035(2)(e), Florida Statutes; allocation factors 2, 5, 6, 7, and 8 of the local health plan; and Section 408.037, Florida Statutes. Sawgrass is the applicant for CON No. 9126 to construct a 120-bed nursing home in northern St. Johns County for approximately $3,967,000 in construction costs for a 56,800 square-foot building. The total project will cost approximately $6.4 million. Mr. S. W. Creekmore, Jr., who is the sole shareholder and president of Sawgrass, has been in the nursing home business over 30 years. Currently, Mr. Creekmore owns and operates between 30 and 40 nursing homes in Arkansas, California, Missouri, New York, Tennessee, Texas, and Nevada. Sawgrass is currently constructing Sawgrass Care Center of North Duval, an 84-bed addition to a 60-bed facility in Duval County. If CON No. 9126 is issued to Sawgrass, it will be on condition that Sawgrass: locate the 120-bed nursing home in northern St. Johns County within zip codes 32082, 32092, 32095, and 32259, in District 4, Subdistrict 3; provide a minimum of 63.51 percent total annual patient days to Medicaid patients; establish a 20-bed Alzheimer's care unit, a 20-bed Medicare unit, hospice services and respite care; admit AIDS patients; and construct the facility according to the schematic drawings. Sawgrass contends that its application should be approved primarily because of its proposed location in northern St. Johns County. An increase of beds in St. Johns County will correct what Sawgrass' expert health planner described as a maldistribution of nursing home beds within the district. Sawgrass also presented evidence questioning the financial feasibility of NHC's proposal. Woodlands is the applicant for CON No. 9123 to construct a 120-bed nursing home in southeast Duval County for approximately $5.2 million in construction costs for 53,155 gross square feet, and $7.9 million in total project costs. Woodlands currently operates Woodlands Terrace Extended Care Center (Woodlands-Deland), a 120-bed nursing home located in Deland, Florida. Woodlands is owned by Mr. Morris Esformes, who also owns EMI Enterprises, Inc. (EMI), a nursing home management company, with its headquarters in Illinois. EMI manages almost 3,000 nursing home beds in Missouri, Illinois, and Florida, including Woodlands-Deland. EMI provides bookkeeping, payroll, purchasing, insurance and other contract negotiation services for the nursing homes it manages. If its CON application is approved, Woodlands is committed to constructing the facility in southeast Duval County, to serving 63.01 percent Medicaid, 1 percent AIDS, and .5 percent indigent care, and to establishing units of 24 beds for subacute care and 20 beds for Alzheimer's care. Woodlands contends that existing nursing home occupancy levels support its decision to build and to condition its CON on a location in southeast Duval County. Woodlands presented evidence intended to demonstrate that the design of its Alzheimer's unit, and its proposed staffing levels are superior to those of NHC. Woodlands also maintained that its estimated construction cost is more reasonable and its design preferable to that of Sawgrass. Woodlands presented evidence to support the accuracy of Schedule 2 of its application and of its projected financing costs. NHC, the applicant for CON No. 9125, started in 1971, with fourteen nursing homes. Currently, NHC owns or manages approximately 100 facilities in nine states, 42 of those in Florida. Ten of the 42 Florida facilities are also owned by NHC. The new facility, NHC HealthCare, St. Augustine, will cost approximately $6.7 million to construct the building with 63,104 gross square feet, and $10.2 million in total project costs. NHC's CON would be issued on condition that NHC (1) provide 63.05 percent of total facility patient days to Medicaid at stabilized occupancy; (2) establish, as special programs, a 16-bed subacute unit and a 30-bed Alzheimer's/Dementia unit, provide adult day care through an existing provider, and offer respite and HIV/AIDS care. In addition, NHC commits to selecting a highly accessible site within one mile of a major artery or within three blocks of a bus stop. Although NHC presented evidence that St. Johns County is the preferable location for a new nursing home, it is not willing to have a condition on the county in which it will build as a condition for the CON. NHC, through the testimony of its assistant vice president for health planning, specifically reserved the right to locate anywhere within the subdistrict so long as the location complies with the local health plan description of a highly accessible site. NHC contends that approval of its CON will bring possibly the first and, among the competing applicants, the largest Alzheimer's unit to St. Johns County. NHC also challenged the financial feasibility of the Sawgrass and Woodlands proposals. 408.035(1)(a) - need for the facility and services proposed in relation to the district plan At issue in this proceeding, from the district health plan for District 4, are the following preferences or allocation factors: 2) For urban areas, applicants who will locate in an area highly accessible in terms of public and private transportation - within one mile from a major artery or within three blocks from a bus stop. Applicants who include in their CON application specific plans detailing how they intend to address the mental health needs of their clients, including having a provider skilled in the recognition and treatment of mental health problems. Applicants who document that their project addresses an unmet need for the nursing home placement of persons with a specific debilitating illness. Applicant must document that a need exists. (In November 1992, hospital discharge planners reported having difficulty placing ventilator and tracheotomy patients). Applicants who have JCAHO accreditation and superior ratings from AHCA in existing facilities. Applicants who propose to locate in a county or defined subcounty area within a subdistrict (such as north, southwest or southeast Duval; east or west Volusia) with a licensed bed occupancy rate of at least 91 percent for the most recent six-month period (January-June or July-December) prior to the start of the current CON review cycle and no additional beds are approved. Sawgrass described the area of St. Johns County in which it will locate as not urban and concluded, therefore, that allocation factor two is inapplicable to the Sawgrass application. Woodlands, which proposed locating in southeast Duval County, identified three alternative sites, all within a mile of major county, state, or interstate roads and highways, and within three blocks of public bus stops. Woodlands is not, however, committed to selecting any of those three sites. NHC's CON would include compliance with preference two as a condition for approval. If it chooses to locate in St. Johns County, NHC cannot comply with the alternative of locating within three blocks of a bus stop because there is no public transportation system in St. Johns County, but NHC can meet the preference by choosing a site in the County which is near a major artery. The three applicants included, in their CON applications, letters from mental health services providers who are willing to enter into agreements to care for residents of the facilities. While an expert witness raised an issue regarding the dates of the supporting letters, which are 1998 and early 1999 for Sawgrass, early in 1999 for Woodlands and, by contrast, late 1997 for NHC, there is no evidence that the services proposed are not still available. Overlapping to some extent with allocation factor five, for providing mental health services, is six, for meeting unmet needs of persons with specific debilitating illnesses, such as Alzheimer's/Dementia. The proposed 20-bed units dedicated to Alzheimer's/Dementia care at Sawgrass and Woodlands, and 30-bed unit at NHC comply with the that factor. Sawgrass and NHC, based on their evaluations of the subdistrict, particularly of St. Johns County, noted an absence of Alzheimer's care in a dedicated unit. There was credible evidence, however, that 40 residents have been placed in a locked 60-bed dedicated dementia unit, established at a facility called Bayview in St. Johns County, subsequent to the filing of these CON applications. There was also evidence that an estimated 50 percent of all nursing home residents suffer from some form of dementia. Ratings by AHCA and the Joint Commission on Accreditation of Health Organizations (JCAHO), are not yet available for the 84-bed Sawgrass facility in Duval County, because it is still under construction. Sawgrass relied on the experience of its principal, Mr. Creekmore, and of Mr. Donald Fike, the president and owner of RFMS, a corporation which manages nursing homes in Florida, Nevada and Illinois. RFMS has an agreement with Mr. Creekmore to manage Sawgrass. Mr. Creekmore, who resides in St. Johns County, owns facilities in Tennessee, California, New York, Nevada, Arkansas, Texas, and Missouri, none of which has had a license revoked or suspended or been in receivership within 36 months prior to the hearing. Currently, RFMS manages and Mr. Fike has a controlling interest in partnerships that own two nursing homes in Florida, 120-bed Surrey Place of Ocala (Surrey Place), which also has 36 assisted living units, and Hawthorne Care Center of Brandon (Brandon) with 90 existing beds, 30 approved beds, and 64 assisted living units which are under construction. An additional facility managed by RFMS and owned by Mr. Fike is under construction in Lakeland. RFMS' employees at its corporate headquarters in Galesburg, Illinois, provide management, budgetary, accounting, and recruiting services. RFMS has never managed a facility for Sawgrass or Mr. Creekmore, but its two Florida facilities, Surrey Place and Brandon, were rated superior until the state eliminated superior licenses on July 1, 1999. Woodlands operates one Florida facility, Woodlands- Deland, which had been rated superior as long as it was eligible for that designation. Woodlands-Deland is not JCAHO-accredited. Woodlands relied on the experience of its owner, Mr. Esformes, and his management company, EMI. Mr. Esformes has been in the nursing home business for approximately 30 years. No specific information on the ratings of the facilities owned by Mr. Esformes or managed by EMI was provided. Of the 42 Florida nursing homes operated by NHC, ten are also owned by NHC. Three of the ten were rated superior, one was not yet eligible, and one was also JCAHO-accredited at the time the CON application was submitted. By February 1999, five of the ten NHC owned and operated facilities in Florida were rated superior. Twenty-eight of the 32 NHC-operated Florida nursing homes were rated superior. From January through June 1998, the average occupancy was 90.84 percent in the subdistrict, 91.3 percent for southeast Duval County, and 89.36 percent for northern St. Johns County. Woodlands is committed to establishing its facility in southeast Duval County, Sawgrass is committed to the northern four zip codes in St. Johns County, and NHC is not committed to either but, in general, supported the need for a nursing home in St. Johns County. Subsequent data on occupancy shows consistency with past levels. In the second six months of 1998, the occupancy levels in nursing homes in St. Johns County was 88 percent, and in southeast Duval, 93 percent. From January through June 1999, St. Johns was 89 percent and southeast Duval was 92.8 percent occupied. Suggesting that occupancy percentages are not the sole indicators of the availability of beds, a health planning expert for Sawgrass noted that significantly more empty beds are available in southeast Duval County as compared to St. Johns County due to the larger total number of beds in the Duval area. Three CONs were issued in 1998 and 1999 to Vantage Health Care Corporation, which was identified as a Beverly Corporation, the first one for 60 beds in St. Johns County, a second one to add 56 beds to the first CON with Duval/St. Johns as the county on the face of the CON, and the third to add four skilled nursing beds to the first two CONs, or a total of 120 beds all together. Although, counties are indicated on each CON, none is specifically conditioned on a particular location within the subdistrict. AHCA lists the Vantage beds in its inventory for St. Johns County, which is supported by the testimony of the Executive Director of the Health Planning Council of Northeast Florida and by the most restrictive location on the face of the first 60-bed CON. Although of questionable value due to the arbitrariness of using zip codes for health planning purposes and due to the relatively minor, 2 percent difference in occupancy rates, preference eight favors a proposal to locate in southeast Duval County. More important in determining the preference for a southeast Duval location is the prior approval of 120 beds for St. Johns County, even though Vantage could build its facility in southern St. Johns County. 408.035(1)(b) - availability, quality of care, efficiency, appropriateness, accessibility, extent of utilization, and adequacy of existing facilities and services in the district In addition to the comparison of occupancy levels in St. Johns and Duval Counties, other factors affecting the availability and utilization of nursing beds have been considered. The total population 65 and over in Duval county was 79,986 as compared to 17,294 for St. Johns County in 1995. Population growth, however, has been and is projected to be greater in St. Johns than in Duval County. From 1998 to 2003, the population 65 years and older is expected to increase from 36,988 to 39,790, or 7.5 percent, in southeast Duval County, and from 8,506 to 9,922, or 17 percent, in the northern four zip codes in St. Johns County. Despite the fact that St. Johns is relatively sparsely populated currently, the data supports a conclusion that the trend from 1990 to 1995, when the over 65 population increased by 12 percent in Duval County and by 26.3 percent in St. Johns County, is continuing. The lower occupancy in St. Johns County was attributed, in part, to two facilities with occupancy rates consistently in the 87 to 88 range which occupy over 30 year-old concrete block buildings with survey problems. Although, in 1998, all of the facilities in St. Johns County were rated superior. Another explanation was the fact that one 57-bed facility, in northern St. Johns County, reserves five beds for residents of its retirement community. A second nursing home, near Ponte Vedra Beach in St. Johns County, is also a sheltered facility, which is limited to residents of the retirement community. Migration patterns, in a study done around 1996, showed significantly more St. Johns County residents placed in Duval County facilities than Duval County residents in St. Johns County facilities. Bed-to-population ratios in St. Johns and southeast Duval Counties are also factors which may indicate the relative availability and accessibility of nursing home services. The health planning experts for Sawgrass and NHC determined that a maldistribution of beds is indicated by the bed-to-population ratio, showing that St. Johns County is underserved as compared to the rest of the district. NHC's health planner testified that, for every one thousand people over the age of 65, there are 32 beds in St. Johns County as compared to 42 beds in Duval County. Sawgrass' health planner noted that 72 percent of the beds but only 66 percent of the district population is located in southeast Duval County, while four percent of the beds and 15 percent of the population are in northern St. Johns County. The discrepancy in bed-to-population ratio is more significant, according to the experts for Sawgrass and NHC, than the two percent difference in occupancy levels between the two areas of the subdistricts. Bed-to-population ratio analyses, however, assume uniform need which is not necessarily valid due to demographic variances in the population. The bed-to-population analysis also assumed that what was, at the time, 116 approved beds for Vantage would be constructed in southern St. Johns County. Considering the Vantage CONs together, the more reasonable conclusion is that Vantage could build the new nursing home anywhere in the County. Woodlands' proposed location was criticized by the health planner for NHC as contributing to a clustering of facilities in Duval County. As a part of that cluster, Woodlands might not greatly enhance accessibility although it does meet the local health plan preferences related to accessibility and occupancy. In addition, NHC argued, that the area is growing in young families not older people due in part to its proximity to Mayport Naval Station, and as indicated by the construction of three new elementary schools in the last six years. Accessibility and availability to specialty programs was another consideration evaluated by the health care planners. There is a need for more complex subacute care in nursing homes. The evidence indicated that Alzheimer's care in a dedicated unit was available in St. Johns County at the time of hearing although it had not been at the time the applications were filed. See also Finding of Fact 18. 408.035(1)(c) - history of providing and ability to provide quality of care As a legal entity, the applicant Sawgrass has no history of providing nursing home care in Florida. Sawgrass, however, through the experiences of Mr. Creekmore and Mr. Fike, has established that the owner and operator have histories of providing high quality of care. Based on the descriptions of operational styles and the policies of RFMS, Mr. Fike's management company, Sawgrass demonstrated the ability to provide a high quality of care if its CON application is approved. See Findings of Fact 20. Woodlands, as to a legal entity operating in Florida, has a limited but excellent history, with a superior rating at Woodlands-Deland beginning in 1997. Woodlands asserted, but without specific information on their other facilities, that its principal, Mr. Esformes, and his management company, EMI, have the ability to provide a high quality of care if CON 9123 is approved. See Findings of Fact 21. NHC has a more inconsistent but improving history, based on licensure, of providing quality of care in its Florida facilities. It is the only applicant with JCAHO accreditation but in only one of its ten Florida nursing homes. NHC has significantly more experience operating nursing homes than either of the other two applicants. See Findings of Fact 22. To determine quality of care, an additional factor urged for consideration is staffing, which overlaps with the following critera: 408.035(1)(h) - availability of resources, including health personnel, management personnel On Schedule 6, the table in the CON application which shows staffing patterns, NHC showed a total of 11.2 full-time equivalent (FTE) registered nurses (RNs). On Schedule 8, which listed the projected income and expenses for the proposal, NHC allocated RN salaries for 7.0 FTEs. NHC's 7.0 FTEs for RNs providing direct patient care is comparable to 5.6 for Sawgrass, and 8.4 for Woodlands. The comparison is valid because NHC included administrative as well as direct care positions in the total of 11.2 FTEs for RNs, including unit directors or managers and an assistant director of nursing. An NHC witness conceded that the RNs in these positions do not, as a routine responsibility, provide direct care. NHC also included a central supply clerk and nursing secretary in the FTEs for nurses aides or CNAs. NHC's regional administrator for Florida, Tennessee and Kentucky testified that staff in these positions also do not, as a routine, provide direct care to patients. NHC included one FTE for a medical director on Schedule 6, but indicated, at hearing, that the position is not full time. When the administrative positions are excluded, NHC's total direct hours of care per patient day (ppd) is approximately 3.18 hours, not 3.29 as described in the CON, as compared to 3.39 for Woodlands, and 3.29 for Sawgrass. When broken down based on the type of nurse providing the care, NHC's 3.18 total hours combines 2.38 hours by certified nurse assistants (CNAs) and 0.8 by licensed nurses (RNs and LPNs). Woodland's total of 3.39, combines 2.32 hours by CNAs and 1.07 hours by licensed nurses. For the Alzheimer's unit, NHC, in the CON application, erroneously described its proposal as providing 5.0 hours of care per resident day, but that was corrected at hearing by NHC's expert in health care financial feasibility and reduced to 2.58 hours. Woodlands provided at its current facility and proposed to provide at a new one approximately 3.9 hours ppd in the Alzheimer's unit. The staffing levels proposed by Sawgrass, NHC, and Woodlands all exceed the minimum state requirements of .06 ppd for licensed staff and 1.7 ppd for CNA, or 2.3 hours ppd total. Direct care staff at NHC perform some functions which would be performed by different personnel in the other two proposals. These duties include evening housekeeping, setting up and cleaning dining tables in the Alzheimer's unit, and answering evening telephone calls. Another indication of the demands on staff time is reflected in NHC's proposal to employ 7 FTEs in housekeeping for a 63,000 square foot building, as contrasted to Woodlands' use of 8 FTEs in its housekeeping department for 53,000 square feet. The staff at Woodlands will provide more direct resident care by higher level staff and reasonably, therefore, presumptively a higher quality of care than Sawgrass or NHC. NHC asserted that it can attract and retain quality staff by paying higher salaries. Using NHC's salary levels, NHC's expert determined that Sawgrass and Woodlands underestimated salary expenses by $573,000 and $522,000 respectively. NHC's total for projected salaries is $2,864,000, as compared to $2,386,653 for Woodlands and $2,318,119 for Sawgrass, although NHC will have seven fewer FTEs than Woodlands and six more than Sawgrass. NHC's comparison used 1998 average salaries, inflated forward, from Palm Gardens of Jacksonville (Palm Gardens), a facility managed by NHC for the owner, Florida Convalescent Centers (FCC). The average salary, for example for nurses, including administrators, such as the assistant director of nursing and Alzheimer's director, was applied to each nurse's position proposed by Woodlands and Sawgrass. NHC's methodology, particularly without any comparison of patient mix and acuity at Palm Gardens to that projected by the applicants, and the use of five percent annual inflation as compared to an actual annual inflation rate of three percent, when two statistical outliers are excluded, renders the analysis unreliable. The testimony of NHC's witness that the opening of new centers forces salaries to go up also indicates that the salary comparison includes some factor over and above actual inflation. 408.035(1)(h) - funds for capital and operating expenses, for project accomplishment and operation; 408.037(1)(a)1. - listing of all capital projects; and 408.035(1)(i) - immediate and long term financial feasibility The ability of Sawgrass to fund and finance the project was, in part, established by the deposition testimony of Jackie Garrett, Vice President, for Commercial Lending, First National Bank, Fort Smith, Arkansas, who is accepted as an expert in banking and finance as well as a fact witness. Having been involved for 30 years in financing projects for the Sawgrass owner, Mr. Creekmore, Ms. Garrett, in her letter of December 28, 1998, and in her testimony expressed the interest of the Bank in financing the Sawgrass project. Ms. Garrett also confirmed the possibility of financing up to 100 percent of the cost at better than an 8 percent fixed rate, as well as providing working capital as long as the loan is guaranteed by Mr. Creekmore. Ms. Garrett's letter to Mr. Creekmore offering to work out any contingencies with him and the inclusion of his personal financial statement in the application, lead to a reasonable conclusion that he can and will guarantee the financing for Sawgrass. Although a specific letter of commitment or the testimony of Mr. Creekmore could have provided a clearer commitment on his part, the documents in the application are sufficient to establish the short-term financial feasibility of Sawgrass. The accuracy of Schedule 2 of the Sawgrass CON application was questioned because it does not include an assisted living facility (ALF) for Duval County, which was proposed for construction on the campus with the nursing home. A financial expert for Sawgrass testified that the ALF is no longer planned, although AHCA was led to believe, in the prior nursing home CON, that an ALF would be built in conjunction with the nursing home. Comparing the historical payer mix and occupancy rates from similar facilities in the service area to staffing, salaries, and other fixed and variable expenses, the financial expert for Sawgrass demonstrated that the project is also financially feasible in the long term. To develop Woodlands-Deland, the general partner, Mr. Esformes, obtained financing primarily from AmSouth Bank in Orlando. The AmSouth loan was guaranteed by Mr. Esformes, who proposes similarly to finance the new Woodlands facility. In a letter dated December 30, 1998, and in her deposition testimony of October 26, 1999, an AmSouth assistant vice president indicates the availability of a loan to cover 75 to 85 percent of the total project cost. On behalf of EMI Enterprises, Inc., Mr. Esformes committed to funding the equity and working capital required from funds which are on deposit. AmSouth's lending limit for a borrower with Mr. Esformes' assigned risk rating is $15 million. NHC argued that Woodlands is not financially feasible in the short term because Mr. Esformes cannot borrow $8 million given his outstanding debt of $12,669,382. That position erroneously ignores the testimony of the bank officer when she stated that such projects, with liquidation of the property as a secondary source of repayment, can be treated separately, not grouped together and not aggregated to come to the $15 million total. She specifically considered Woodlands-Deland, saying, "And his other loan with the Deland property would be isolated for the same reason." See Deposition of Melissa Ann Ledbetter, October 26, 1999, page 11. In addition to the letter from AmSouth Bank, Woodlands presented a letter from and the testimony of Mr. Esformes on his commitment to the project. The evidence showed that Mr. Esformes has sufficient funds available to honor that commitment. Woodlands' proposal is, therefore, financially feasible in the short term. Woodland's long-term financial position was criticized based on Woodlands-Deland's not having achieved the utilization projected as quickly as projected. Utilization goals were adversely affected by the opening or expansion of other nursing homes at approximately the same time in the Deland area, an undesirable consequence which the District 4 health plan seeks to avoid. At the time of the hearing, Woodlands had a 1999 year-to-date profit of $106,000. Considering projected revenues and expenses, based on actual reimbursement rates at Woodlands- Deland, which are extremely high for Medicare, Woodlands' proposal is expected to be profitable in the long term. An expert for Sawgrass questioned NHC's short-term financial feasibility based on the sufficiency, commitment dates and changing investment policies of its funding sources. Schedule 2 of the NHC application lists total capital projects exceeding $436.6 million with approximately $397 million in "funds assured but not in hand and funds currently being sought." The application also includes letters of commitment establishing lines of credit from related companies National Health Investors, Inc. (NHI) for $260 million, and National Health Realty, Inc. (NHR) for $200 million. The letters are expressly valid through December 31, 1999, although what Sawgrass' expert estimated as the 12-month construction period for this project would begin approximately May 1, 2000, to end when operations commence on May 1, 2001. In addition, an examination of documents filed with the Securities and Exchange Commission (SEC) by NHI and NHR, according to the expert for Sawgrass, shows declining available funds and changing company objectives. As real estate investment trust (REIT) companies, NHI and NHR identify their typical financing arrangements mortgages and lease-back agreements, but do not specifically mention the extending of lines of credit. The SEC documents also indicate that NHI had approximately $136.9 million, available to fund health care real estate projects as of December 1998, not $260 million as committed for the line of credit to NHC. By June 1999, the SEC disclosures report a decrease to approximately $15.3 million available to fund health care real estate projects, of which approximately $12 million was available for the next 12 months. NHR's disclosures also indicate that the company will maintain its existing portfolio, not expand further. NHC's net income after taxes decreased from $23.7 million in 1997, to $8.2 million in 1998, adversely affected by declining Medicare reimbursements and increased taxes. The decline in profit from $37 million in 1997 to the projected $14 million for 1999 resulted largely from the expiration, on December 31, 1997, of special tax benefits for corporations. SEC disclosures indicate possible additional declines due to lawsuits over management contracts and a former employee, "whistle-blower" action, neither of which had been finalized at the time of the hearing. NHC's plan to reduce its taxes included the transfer of assets to NHI and NHR. NHC has also off-set losses by providing some therapies in-house and by group purchasing of pharmacy entical and medical supplies. In response to the loss of management agreements with FCC, NHC has successfully secured other management contracts and has eliminated certain regional positions. Reserves of approximately $31 million have been set aside for potential liability resulting from pending litigation, with FCC and in the former employee's qui tam action related to Medicare costs. Despite the efforts of NHC to adjust to changes in its financial position, the termination dates in the NHR and NHI letters of credit are troubling. The position of NHC, as investment advisor to NHI and NHR, and the ability of their Boards of Directors to change investment policies, without stockholder approval, suggests the likelihood of their funding the NHC project, if approved. Stronger support for a determination that at least NHR continues to be a source of funds for NHC comes from the deposition testimony of NHR's Senior Vice President, who signed the NHR line of credit letter. He noted that any projects submitted by NHC in the past have been approved by NHR and thinks it unquestionable that NHC would obtain financing for this project. That testimony rises to the level of the letters of interest by lending institutions submitted on behalf of the other applicants and establishes the short-term financial feasibility of the NHC proposal. NHC projected a net operating profit of $57,000 in year two which, with depreciation of about $350,000, results in a cash flow in excess of $400,000. NHC's proposal is financially feasible in the long term. 408.035(1)(l) - impact on costs; and 408.035(1)(m) - costs and methods of construction The estimated construction cost for Sawgrass is $70 a square foot for a 56,800 square foot building. By comparison NHC's estimated construction cost is $106 a square foot for the nursing home and a separate storage/maintenance building, totaling 63,104 square feet. Woodlands' 53,000 square foot facility will cost an estimated $98 a square foot. Sawgrass' construction costs were considered unreasonably low by some expert. The construction costs were developed by an expert in construction supervision and costs, who works for Medical Holdings Limited, another company which is owned by the Sawgrass President, Mr. Creekmore. The architects for the project work for another related wholly owned subsidiary of Medical Holdings Limited, Healthcare Builders, Incorporated (Healthcare Builders). Healthcare Builders is also owned by and only builds facilities for Mr. Creekmore. The estimated cost, $70 per square foot, is based on the use of local materials and subcontractors and excludes any profit, which alone would add from 8 to 10 percent to the cost. All of the salaries for the supervisors of the project, the general construction superintendent, the regular superintendent, and bookkeeper are paid by Healthcare Builders and excluded from constructions costs. Only one Sawgrass project, over the past 15 years, has required an application for a cost overrun. On this basis, Sawgrass established the reasonableness of the costs for its company. NHC's building is the largest and most expensive, with 71 resident rooms and 9-foot wide corridors, as compared to 66 rooms and 8-foot wide corridors for Woodlands and Sawgrass. NHC has 22 private rooms, but Woodlands and Sawgrass have 12 private rooms in each of their designs. NHC's private rooms range in size from 196.8 to 277 net square feet, as compared to 220 net square feet for Sawgrass, and 194 net square feet for Woodlands. Semiprivate rooms range in size from 196 to 246.7 net square feet for NHC, 198 to 218 for Woodlands, and 220 for Sawgrass. All three exceed the state minimums of 100 square feet for private rooms, and 160 square feet for semiprivate rooms. The schematics for NHC and Woodlands demonstrate more concern for safe outside spaces, with two separate enclosed courtyards, one designated for wandering which is typical of Alzheimer's residents. Woodlands' design also provides for two separate entrances, one for the main facility and one for the subacute unit. The subacute entrance is particularly desirable because the busier pattern of visitors is more akin to that in a hospital setting. NHC has 57 rooms with showers in the bathrooms, as compared to 53 for Woodlands and 18 for Sawgrass. The experts debated the benefits of privacy and the enhanced dignity and the reality that safety necessitates, for many, assistance in bathing. On the one extreme, NHC has unnecessarily included showers on the Alzheimer's unit for residents who are least likely to use them safely and most likely to need assistance, but Sawgrass has so few that the use of central bathing facilities will be necessary for most of its residents and will not enhance their privacy and dignity. Woodlands' design for the purposes intended, is the most reasonable, and its type of construction is the highest rated of the three. Despite the differences in size and construction costs, all three applicants propose relatively similar charges in a very narrow range of lows for Sawgrass and highs for NHC, from $105 to $115 a day for semiprivate rooms to $120 to $130 for private rooms. Reimbursement rates, primarily from Medicare, differ based on differences in acuity levels. 408.035 (1)(n) - past and proposed Medicaid and indigent care Sawgrass has received one CON in Florida with a Medicaid commitment of 87.4 percent of total resident days. Other CON applications prepared for Mr. Creekmore have offered to meet or exceed the prevailing community Medicaid occupancy levels. Woodlands committed to providing a minimum of 63.01 percent Medicaid and 0.5 percent indigent resident days. Woodlands has reached 63 percent but not its committed level of 66 percent Medicaid in its Deland facility, although it expected to do so when final data at full occupancy becomes available for 1999. NHC's proposal includes the provision of 63.05 percent of total resident days to Medicare. AHCA has determined that NHC is not in compliance with its Medicaid commitment in two of its facilities, located in Daytona and on Merritt Island, but due to its extensive operations in Florida, NHC provides substantial Medicaid care. 408.035(1)(o) - continuum of care in multilevel system All three of the applicants plan to offer Alzheimer's hospice, respite and subacute care. Sawgrass included a 60-unit ALF on its schematic design and on its Schedule 2 for a cost of $4 million. The ALF will be connected to the nursing home by a covered entrance. Sawgrass also planned but is not constructing an ALF with its Duval County project. See Finding of Fact 45. Woodlands stated its intention to build an ALF on the same campus with the proposed nursing home in a misleading narrative on page 114 of the application, but did not include it as part of the project in either the schematics or on Schedule 2 of the CON application. At the hearing, Woodlands' witness conceded that an ALF would not be built, if at all, for several years until the nursing home proves to be financially viable and then, by a separate corporation. In addition to the services provided by the other applicants, NHC plans to offer adult day care through existing providers. Only Sawgrass meets the criterion for proposing a multilevel system of care, based on the assumption that it will build the ALF as planned. 408.035(2)(e) - consisting with plans of other state agencies responsible for providing or financing long term care All three proposals are consistent with the policies of other responsible state agencies, including the Department of Elder Affairs. Summary Comparison of Applications This case is difficult, in part, because there is not a great difference among the applicants based on any one of the criteria. In terms of location, southeast Duval has a slight advantage due to its larger population, occupancy levels, and the approved CON for St. Johns County. Woodlands promises to provide a higher quality of care than NHC and Sawgrass based on proposed staffing, but has only operated one other Florida facility, albeit a superior one. Woodlands provided less detailed information on its owner's and manager's operations of out-of-state facilities. All three applicants have what appear to be at this relatively early stage of the process, reliable funding sources and plans to operate profitably. Woodlands' construction cost and design are the most reasonable for the purposes intended, although no appreciable differences in patient room charges were demonstrated. Based on past history and current proposals, all of the applicants will provide adequate and appropriate levels of Medicaid care. Only Woodlands will also provide a small percentage of indigent care. Sawgrass, by offering to construct an ALF in conjunction with nursing home and by designating a funding source to do so, offers the greatest continuum of care in a multilevel setting. On balance, the application submitted by Woodlands is superior.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order of the Agency for Health Care Administration issue CON No. 9123 to Woodlands Extended Care, Inc. to construct a 120-bed nursing home in southeast Duval County on the conditions set forth in the application and in Findings of Fact 10 of this Recommended Order; and deny CON No. 9125 to National Healthcare Corporation, and CON No. 9126 to Sawgrass Care Center, Inc. DONE AND ENTERED this 14th day of August, 2000, in Tallahassee, Leon County, Florida. ELEANOR M. HUNTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of August, 2000. COPIES FURNISHED: Sam Power, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3431 Tallahassee, Florida 32308-5403 Julie Gallagher, General Counsel Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3431 Tallahassee, Florida 32308-5403 Richard Patterson, Esquire Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3431 Tallahassee, Florida 32308-5403 Robert D. Newell, Jr., Esquire Newell & Terry, P.A. 817 North Gadsden Street Tallahassee, Florida 32303-6313 Gerald B. Sternstein, Esquire Frank P. Rainer, Esquire Sternstein, Rainer & Clarke, P.A. 314 North Calhoun Street Tallahassee, Florida 32301-7606 Theodore E. Mack, Esquire Powell & Mack 803 North Calhoun Street Tallahassee, Florida 32303
The Issue The issue in this case is whether Respondent committed the allegations in the notice of intent to assign a conditional license and, if so, whether Petitioner should have changed the rating of Respondent's license from standard to conditional for the period June 14 through August 10, 2001.
Findings Of Fact Petitioner is the state agency responsible for licensing and regulating nursing homes inside the state. Respondent operates a licensed nursing home at 1120 West Donegan Avenue, Kissimmee, Florida (the "facility"). Petitioner conducted an annual survey of the facility from May 7, through May 10, 2001 (the "May survey"). Petitioner conducted a follow-up survey of the facility on June 14, 2001 (the "June survey"). The May survey cites one Class III violation. The June survey cites a repeat deficiency of a Class III violation. Subsection 400.23(8)(b) and (c), Florida Statutes (2000), refers to deficiency classifications as Class I-III deficiencies. All statutory references are to Florida Statutes (2000) unless otherwise stated. Section 400.23(8)(c) defines Class III deficiencies as those deficiencies . . . which the agency determines to have an indirect or potential relationship to the health, safety, or security of the nursing home facility residents, other than class I or class II deficiencies. The statutory definitions of Class I and II deficiencies are not relevant to this case because this case involves only a Class III deficiency. Florida Administrative Code Rule Rule 59A-4.1288 requires nursing home facilities licensed by the State of Florida to adhere to federal regulations in Section 483 of the Code of Federal Regulations ("CFR"). All references to rules are to rules promulgated in the Florida Administrative Code on the date of this Recommended Order. In relevant part, Rule 59A- 4.1288 provides: Nursing homes that participate in Title XVIII or XIX must follow certification rules and regulations found in 42 CFR 483, Requirements for Long Term Care Facilities, September 26, 1991, which is incorporated by reference. Applicable federal regulations require Petitioner to assign a scope and severity rating to the deficiencies alleged by Petitioner. Petitioner assigned a "D" rating to the deficiencies alleged in the May and June surveys. A “D” rating means that there is no actual harm with potential for more than minimal harm that is not actual jeopardy. When Petitioner alleges that the Class III deficiency from the May survey was not corrected within the time established by the agency, the agency may change the rating of the facility license from standard to conditional. Petitioner determined in the June survey that the facility had not corrected the deficiency alleged in the May survey. Effective June 14, 2001, Petitioner changed the rating of the facility's license from standard to conditional. Petitioner noted the results of the May and June surveys on a Health Care Federal Administration form entitled "Statement of Deficiencies and Plan of Correction." The parties refer to the form as the HCFA 2567-L or the "2567". The 2567 is the document used to charge nursing homes with deficiencies that violate applicable law. The 2567 identifies each alleged deficiency by reference to a tag number (the "Tag"). Each tag on the 2567 includes a narrative description of the allegations against Respondent and cites a provision of relevant state rules violated by the alleged deficiency. There is only one tag at issue in the May and June surveys. It is Tag F282. In order to protect the privacy of nursing home residents, Tag F282, the 2567, and this Recommended Order refer to each resident by a number rather than by the name of the resident. Tag F282 alleges in the May and June survey that the facility failed to satisfy the requirements of 42 CFR Section 483.20(k)(ii). In relevant part, the federal regulation provides: Comprehensive Care Plans. (3). The services provided or arranged by the facility must— (ii) Be provided by qualified persons in accordance with each resident’s written "plan of care." This standard is made applicable to nursing homes in Florida pursuant to Rule 59A-4.1288. Tag F282 does not allege that the facility provided care to residents by unqualified persons. Rather, Tag F282 alleges that Respondent failed to follow the plan of care for two residents. Tag F282 alleges in the May survey that the facility failed to provide care and services in accordance with the plan of care for Residents 3 and 1. Tag F282 alleges in the June survey that Respondent failed to follow the plan of care for Resident 1. The resident identified as Resident 1 is not the same resident in the May and June surveys. Before proceeding to the merits of the allegations in Tag F282, two policy issues must be resolved in order to make findings of fact in a manner that is consistent with Petitioner's officially stated agency policy. One issue is procedural and the other involves the definition of terms. Petitioner promulgates an officially stated policy in written guidelines entitled the State Operations Manual (the "Manual"). The Manual states agency policy regarding the interpretation and application of the regulatory standards surveyors must enforce. The Manual authorizes surveyors to determine whether a facility has complied with Tag F282 only after surveyors have identified violations of standards relating to: quality of care, defined in 42 CFR Section 483.25(a)–(m); quality of life, defined 42 CFR Section 483.15(a)–(h); or residents rights, defined 42 CFR Section 483.10(a)–(o). The state agency's written policy set forth in the Manual requires its surveyors to identify an issue of quality of care, quality of life, or residents’ rights before proceeding to a determination of whether the facility has violated Tag F282. The second issue involves the interpretation of the terms "inadequate", "incorrect", and "consistent." The Manual indicates that violations occur if surveyors can demonstrate inadequate or incorrect implementation of the care plan. The Manual does not define the term “inadequate.” The common meaning of the term suggests that something less than perfect implementation satisfies the requirements of the regulatory standard. That construction is consistent with other provisions in the Manual. The Manual further provides that violations of standards occur only if a facility fails to “consistently” implement the plan of care for a resident. Petitioner's surveyors acknowledged in their testimony that the goal for the quality of care regulations is to achieve positive resident outcomes and is identical to the goal of Tag F282. Petitioner offered no credible reason, within the meaning of Section 120.68(7)(e)3, why the standard for implementation of a resident’s care plan under Tag F282 should be stricter than that required by the quality of care regulations. Resident 3 had many compromising conditions and was near death at the time of the May survey. Resident 3 had 10 to 12 care plans to address his various medical problems and conditions. Each care plan contained an average of 15 separate interventions. One of the care plans for Resident 3 addressed the risk of developing pressure sores and contained 20 separate interventions for staff to implement. One intervention required staff to turn and reposition the resident every two hours. On May 7, 2001, a surveyor stationed herself outside of Resident 3’s room from 1:00 p.m. to 4:00 p.m. in the afternoon to observe who entered the resident’s room and what care was given to the resident. During that time, the surveyor observed that no staff member entered the room to turn and reposition the resident. The care plan required staff to turn the resident once during the three-hour period. The allegations in Tag F282 pertaining to the failure to reposition Resident 3 during a three-hour period on May 7, 2001, deviate from Petitioner's written agency policy in two respects. First, Petitioner did not cite the facility for any violation relating to quality of care, quality of life, or resident rights. Second, a single isolated failure to implement one intervention prescribed in one of 12 care plans for Resident 3, during a three-hour period, on one of four days of a survey, does not demonstrate inadequate care by failing to consistently implement a care plan. Petitioner failed to explain by a preponderance of the evidence why it deviated from its official written policy in its determination that Respondent violated the standard prescribed in Tag F282. The surveyor provided no credible explanation to justify a deviation from agency policy with respect to Resident 3. Nor did Petitioner present any evidence that Resident 3 developed any pressure sores or had any pressure sores worsen as a result of the failure to turn and reposition the resident on May 7, 2001. The evidence shows that the failure to turn and reposition Resident 3 presented nothing more than a minimal chance of negative impact. Tag F282 alleged in the May survey that the facility failed to provide care for Resident 1 in accordance with the care plan. Resident 1 suffered from a condition that caused his chin to droop toward his chest. The condition caused positioning problems for the resident while he was in his wheelchair. The physical therapist for the facility examined Resident 1 and recommended periodic placement of a Futuro cervical collar while the resident was in his wheelchair in order to elevate the resident's chin. The recommendation required staff to place the collar on the resident when he was in his wheelchair for two hours and then to remove it for two hours. Staff was not to place the collar on the resident during meals or while the resident was in bed. The resident would sometimes remove the collar after it was placed on him. On May 8, 2001, Petitioner’s surveyor made five observations of the resident between 10:45 a.m. and 1:50 p.m. The surveyor did not see the resident wearing the collar during any of the observations. The observations of the surveyor were intermittent. The surveyor did not observe Resident 1 continuously from 10:45 a.m. until 1:50 p.m. The surveyor did not know if or when the collar should have been placed on the resident during the observations on May 8, 2001. It is uncontroverted that the resident would have eaten lunch for one hour during the time that the surveyor observed the resident and that the care plan did not require staff to place the collar on the resident during meals. Petitioner offered no evidence that the failure to put the collar on the resident during the observed instances presented potential for any harm to the resident. Petitioner failed to show by a preponderance of the evidence that the facility failed to implement Resident 1’s care plan. Even if it were determined that the facility failed to consistently implement the care plan or inadequately implemented the care plan, Tag F282 deviates from Petitioner's officially stated agency policy because the tag does not charge the facility with any violation of quality of care, quality of life, or resident rights. Petitioner failed to explain why it deviated from its policy. Finally, the observed circumstances presented no more than a minimal chance of minor negative impact to Resident 1. On May 9, 2001, Petitioner's surveyor observed Resident 1 on three different occasions between 10:00 a.m. and 11:05 a.m. without the collar. The surveyor did not know if or when the collar should have been placed on the resident during that time-period. The observations of the surveyor were intermittent. The surveyor did not observe Resident 1 continuously from 10:00 a.m. until 11:05 a.m. The preponderance of the evidence failed to sustain the charge that the facility did not implement Resident 1’s care plan on May 9, 2001. The observations are insufficient to demonstrate a consistent failure to implement the care plan. Petitioner provided no credible explanation for deviating from its officially stated agency policy. Finally, the circumstances presented no chance of any harm other than minimal negative impact to the resident. Tag F282 alleges in the June survey that the facility failed to follow doctor’s orders for Resident 1 that required multi-podus boots to be applied every shift. Resident 1 in the June survey is not the same resident identified as Resident 1 in the May survey. Resident 1 in the June survey had pressure sores on his feet, and one of the interventions prescribed in the care plan required Resident 1 to wear multi-podus boots. On June 13, 2001, at 2:45 p.m., Petitioner's surveyor observed Resident 1 lying in bed without the required multi- podus boots. Resident 1 was lying on a pressure-relieving mattress so that his heels were receiving pressure relief without the need for multi-podus boots. On June 14, 2001, Petitioner's surveyor observed Resident 1 in his wheelchair in the activities room with black, hard-soled shoes on his feet instead of the multi-podus boots. The resident had dressings on his heels that protected them and was sitting so that his heels bore no weight. The facility maintained medical records that described the size and appearance of the pressure sores on Resident 1's heels. The records indicated that the pressure sores healed progressively after Respondent admitted Resident 1 to the facility. The area on the right heel was completely healed by June, 2001, and the area on the left heel was closed by July 2001. Petitioner deviated from its officially stated policy in two respects. First, Petitioner did not charge the facility with any violation of a quality of care, quality of life, or residents rights. Second, the instances observed by the surveyor do not demonstrate a failure to consistently implement the plan of care or a failure to provide adequate care. Petitioner offered no credible explanation for deviating from its policy. The events observed by Petitioner's surveyor, at most, presented the potential for causing no more than a minor negative impact on the resident.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration should enter a final order revising the May 10 and June 13, 2001, survey reports to delete the deficiency described under Tag F282, and replace the previously issued Conditional rating with a Standard rating. DONE AND ENTERED this 5th day of March, 2002, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of March, 2002. COPIES FURNISHED: Dennis L. Godfrey, Esquire Agency for Health Care Administration 525 Mirror Lake Drive North, Room 310L St. Petersburg, Florida 33701 R. Davis Thomas, Jr. Broad & Cassel 215 South Monroe Street, Suite 400 Post Office Box 11300 Tallahassee, Florida 32302-1300 Diane Grubbs, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308 William Roberts, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308
The Issue The issue presented for decision in this case is whether a civil penalty in the amount of $1,400.00 should be imposed on the Respondent for the repeated deficiencies cited in the Administrative Complaint dated September 14, 1998.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: Respondent, Heartland of Zephyrhills ("Heartland"), is a nursing home licensed by and subject to regulation by AHCA, pursuant to Chapter 400, Florida Statutes. Section 400.23(8), Florida Statutes, requires AHCA to evaluate all nursing home facilities and make a determination as to their degree of compliance with the established rules at least every 15 months. The inspection and evaluation is to ensure compliance with applicable state and federal standards. The standards relevant to this case are 42 Code of Federal Regulations (C.F.R.) Section 483.25(c), Florida Statutes, and Rule 59A-4.128, Florida Administrative Code. On August 17-20, 1998, AHCA surveyed Heartland and allegedly found violations of 42 C.F.R. Section 483.25(c), Florida Statutes, which states that a facility must ensure that a resident who enters the facility without pressure sores does not develop pressure sores unless the resident’s clinical condition demonstrates that they were unavoidable, and that a resident having pressure sores receives necessary treatment to promote healing, prevent infection, and prevent new sores from developing. In the parlance of the Federal Health Care Financing Administration Form 2567 ("Form 2567") employed by AHCA to report its findings, this requirement is referenced as "F 314" or "Tag 314." Katherine Robbins is a Registered Nurse with over 20 years experience, including working as a director of nursing in an 86-bed nursing home. She is a federally certified surveyor, and now works for AHCA as a surveyor of long-term care facilities such as nursing homes. Ms. Robbins performed a portion of the survey of Heartland and wrote the deficiency notes under Tag 314 for Resident No. 1. Resident No. 1 was admitted to Heartland on January 29, 1998, with a diagnosis of dementia, osteoarthritis, anxiety, and depression. Ms. Robbins testified that diagnoses of dementia and osteoarthritis indicate a predisposition to the development of pressure sores. She testified that a diagnosis of anxiety could indicate a predisposition to pressure sores, if the patient is receiving psychoactive medications. The initial skin assessment on Resident No. 1 indicated there was no skin breakdown at the time she was admitted. Review of the patient records indicated that skin breakdown was evident on July 26, 1998, when a stage II pressure sore on the coccyx was reported. Pressure sores are graded on a scale from stage I for the least severe to stage IV for the most severe. On August 5, 1998, the facility developed a care plan to deal with the skin breakdown and prevent further breakdown caused by Resident No. 1’s decreased mobility, medications, and lack of awareness of her own needs. The resident was completely unable to care for herself, and was unable to get in and out of a chair or the bed on her own. The approaches set forth in the plan included changing the resident after each incontinent episode, increasing her intake of protein foods, and naps in the afternoon to relieve sitting pressure on the coccyx. Ms. Robbins testified that this plan was not adequate in all respects, but would have been workable had it been properly implemented. On August 17, 1998, the first day of the survey, Resident No. 1 was observed at 9:20 a.m. sitting in a wheelchair in her room. She was observed sitting in the activity room from 11:35 a.m. until 12:50 p.m., at which time she was taken to the dining room for lunch. Following lunch, she was observed sitting in her wheelchair without a change in position until 3:20 p.m., when she was taken to the shower room for a shower. Ms. Robbins testified that allowing the resident to sit in the same position would create pressure on the coccyx, where the resident already had a pressure sore. It is routine preventive care to reposition a resident who has a pressure sore or is at risk of developing pressure sores. On August 18, 1998, Resident No. 1 was observed in her room, sitting in a wheelchair and eating breakfast at 8:15 a.m. She was observed at 12:40 p.m. in the dining room, sitting in a chair without a pressure relieving air flotation jell cushion. Ms. Robbins testified that use of such a cushion would be good practice to help heal a pressure sore. Ms. Robbins testified that she asked the director of nursing about this situation, and that the director of nursing told her that Resident No. 1 was sitting in the wrong chair. The clinical record showed that wheelchair modifications had been included in Resident No. 1’s physical therapy plan, but the resident was not placed in the correct chair. Therapy notes indicated that the goal for the resident was to have a chair that would prevent posterior pelvic pressure and lower the seat so that the resident could maneuver the wheelchair safely. The resident would be able to tolerate sitting up in the wheelchair for three or four hours with repositioning being provided every two hours for bathroom needs and pressure relief. The care plan for Resident No. 1 also called for her to be assisted to bed for a nap in the afternoon. Ms. Robbins observed that the resident was not taken for a nap on either August 17 or August 18, 1998. The survey team made a collective decision to cite the Tag 314 deficiency as a class II deficiency, because the stated care plan for the resident was not followed and this was a repeat licensure deficiency. A class II deficiency is subject to a civil penalty of not less than $1,000. However, the Administrative Complaint erroneously cited this as a class III deficiency and recommended a civil penalty of only $700. The August 17-20, 1998, survey also found alleged violations of Life Safety Code ("LSC") standards set forth by the National Fire Protection Association ("NFPA"), in particular NFPA 90A LSC 12-5.2.1 and 13-5.2.1 air conditioning and ventilation standards. In the parlance of Form 2567, this requirement is referenced as "K 067." Peter Cranfield is a fire protection specialist employed by AHCA. He has over 35 years experience in the design, installation, and sales of fire protection systems, mostly in the private sector, including fire protection systems for nursing homes. Mr. Cranfield participated in the survey of Heartland and cited the facility for the K 067 deficiency. Mr. Cranfield found that the following areas of the facility did not have an operable exhaust ventilation system: the main dietary and dishwasher independent units; the No. 300 wing nurse station toilet room; and the No. 400 wing and No. 100 wing janitor closets. Mr. Cranfield brought these deficiencies to the attention of Heartland’s maintenance director, who agreed upon examination that the exhaust units did not appear to be operational. Mr. Cranfield testified that the maintenance director later told him an electrical malfunction was causing the problem. The K 067 deficiency was noted as a repeat class III citation.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Agency for Health Care Administration enter a final order requiring Heartland of Zephyrhills to pay a civil penalty in the amount of $1,400 for the two cited class III deficiencies. DONE AND ENTERED this 25th day of March, 1999, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of March, 1999. COPIES FURNISHED: Karel Baarslag, Esquire Agency for Health Care Administration 2295 Victoria Avenue Fort Myers, Florida 33906 Terrie Restivo-Mock, Esquire Heartland of Zephyrhills 38220 Henry Drive Zephyrhills, Florida 33540 Sam Power, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308 Paul J. Martin, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308
The Issue Whether, based upon a preponderance of the evidence, the Agency for Health Care Administration (AHCA) lawfully assigned conditional licensure status to Harbour Health Center for the period June 17, 2004, to June 29, 2004; whether, based upon clear and convincing evidence, Harbour Health Center violated 42 Code of Federal Regulations (C.F.R.) Section 483.25, as alleged by AHCA; and, if so, the amount of any fine based upon the determination of the scope and severity of the violation, as required by Subsection 400.23(8), Florida Statutes (2004).
Findings Of Fact Based upon stipulations, deposition, oral and documentary evidence presented at the final hearing, and the entire record of the proceeding, the following relevant findings of fact are made: At all times material hereto, AHCA was the state agency charged with licensing of nursing homes in Florida under Subsection 400.021(2), Florida Statutes (2004), and the assignment of a licensure status pursuant to Subsection 400.23(7), Florida Statutes (2004). AHCA is charged with the responsibility of evaluating nursing home facilities to determine their degree of compliance with established rules as a basis for making the required licensure assignment. Additionally, AHCA is responsible for conducting federally mandated surveys of those long-term care facilities receiving Medicare and Medicaid funds for compliance with federal statutory and rule requirements. These federal requirements are made applicable to Florida nursing home facilities pursuant to Florida Administrative Code Rule 59A-4.1288, which states that "[n]ursing homes that participate in Title XVIII or XIX must follow certification rules and regulations found in 42 C.F.R. §483, Requirements for Long Term Care Facilities, September 26, 1991, which is incorporated by reference." The facility is a licensed nursing facility located in Port Charlotte, Charlotte County, Florida. Pursuant to Subsection 400.23(8), Florida Statutes (2004), AHCA must classify deficiencies according to the nature and scope of the deficiency when the criteria established under Subsection 400.23(2), Florida Statutes (2004), are not met. The classification of any deficiencies discovered is, also, determinative of whether the licensure status of a nursing home is "standard" or "conditional" and the amount of administrative fine that may be imposed, if any. Surveyors note their findings on a standard prescribed Center for Medicare and Medicaid Services (CMS) Form 2567, titled "Statement Deficiencies and Plan of Correction" and which is commonly referred to as a "2567" form. During the survey of a facility, if violations of regulations are found, the violations are noted and referred to as "Tags." A "Tag" identifies the applicable regulatory standard that the surveyors believe has been violated, provides a summary of the violation, sets forth specific factual allegations that they believe support the violation, and indicates the federal scope and severity of the noncompliance. To assist in identifying and interpreting deficient practices, surveyors use Guides for Information Analysis Deficiency Determination/Categorization Maps and Matrices. On, or about, June 14 through 17, 2004, AHCA conducted an annual recertification survey of the facility. As to federal compliance requirements, AHCA alleged, as a result of this survey, that the facility was not in compliance with 42 C.F.R. Section 483.25 (Tag F309) for failing to provide necessary care and services for three of 21 sampled residents to attain or maintain their respective highest practicable physical, mental, and psychosocial well-being. As to the state requirements of Subsections 400.23(7) and (8), Florida Statutes (2004), and by operation of Florida Administrative Code Rule 59A-4.1288, AHCA determined that the facility had failed to comply with state requirements and, under the Florida classification system, classified the Federal Tag F309 non-compliance as a state Class II deficiency. Should the facility be found to have committed any of the alleged deficient practices, the period of the conditional licensure status would extend from June 17, 2004, to June 29, 2004. Resident 8 Resident 8's attending physician ordered a protective device to protect the uninjured left ankle and lower leg from injury caused by abrasive contact with the casted right ankle and leg. Resident 8 repeatedly kicked off the protective device, leaving her uninjured ankle and leg exposed. A 2.5 cm abrasion was noted on the unprotected ankle. The surveyors noted finding the protective device in Resident 8's bed but removed from her ankle and leg. Resident 8 was an active patient and had unsupervised visits with her husband who resided in the same facility but who did not suffer from dementia. No direct evidence was received on the cause of the abrasion noted on Resident 8's ankle. Given Resident 8's demonstrated propensity to kick off the protective device, the facility should have utilized a method of affixing the protective device, which would have defeated Resident 8's inclination to remove it. The facility's failure to ensure that Resident 8 could not remove a protective device hardly rises to the level of a failure to maintain a standard of care which compromises the resident's ability to maintain or reach her highest practicable physical, mental or psychosocial well-being. The failure to ensure that the protective device could not be removed would result in no more than minimal discomfort. Resident 10 Resident 10 has terminal diagnoses which include end- stage coronary artery disease and progressive dementia and receives hospice services from a local Hospice and its staff. In the Hospice nurse's notes for Resident 10, on her weekly visit, on May 17, 2004, was the observation that the right eye has drainage consistent with a cold. On May 26, 2004, the same Hospice nurse saw Resident 10 and noted that the cold was gone. No eye drainage was noted. No eye drainage was noted between that date and June 2, 2004. On June 3, 2004, eye drainage was noted and, on June 4, 2004, a culture of the drainage was ordered. On June 7, 2004, the lab report was received and showed that Resident 10 had a bacterial eye infection with Methicillin Resistant Staphylococcus Aureus (MRSA) bacteria. On June 8, 2004, the attending physician, Dr. Brinson, referred the matter to a physician specializing in infectious disease, and Resident 10 was placed in contact isolation. The infectious disease specialist to whom Resident 10 was initially referred was not available, and, as a result, no treatment was undertaken until a second specialist prescribed Bactrim on June 14, 2004. From June 8, 2004, until June 14, 2004, Resident 10 did not demonstrate any outward manifestations of the diagnosed eye infection. A June 9, 2004, quarterly pain assessment failed to note any discomfort, eye drainage or discoloration. In addition to noting that neither infectious control specialist had seen Resident 10, the nurses notes for this period note an absence of symptoms of eye infection. Colonized MRSA is not uncommon in nursing homes. A significant percentage of nursing home employees test positive for MRSA. The lab results for Resident 10 noted "NO WBC'S SEEN," indicating that the infection was colonized or inactive. By placing Resident 10 in contact isolation on June 8, 2004, risk of the spread of the infection was reduced, in fact, no other reports of eye infection were noted during the relevant period. According to Dr. Brinson, Resident 10's attending physician, not treating Resident 10 for MRSA would have been appropriate. The infectious disease specialist, however, treated her with a bacterial static antibiotic. That is, an antibiotic which inhibits further growth, not a bactericide, which actively destroys bacteria. Had this been an active infectious process, a more aggressive treatment regimen would have been appropriate. Ann Sarantos, who testified as an expert witness in nursing, opined that there was a lack of communication and treatment coordination between the facility and Hospice and that the delay in treatment of Resident 10's MRSA presented an unacceptable risk to Resident 10 and the entire resident population. Hospice's Lynn Ann Lima, a registered nurse, testified with specificity as to the level of communication and treatment coordination between the facility and Hospice. She indicated a high level of communication and treatment coordination. Dr. Brinson, who, in addition to being Resident 10's attending physician, was the facility's medical director, opined that Resident 10 was treated appropriately. He pointed out that Resident 10 was a terminally-ill patient, not in acute pain or distress, and that no harm was done to her. The testimony of Hospice Nurse Lima and Dr. Brinson is more credible. Resident 16 Resident 16 was readmitted from the hospital to the facility on May 24, 2004, with a terminal diagnosis of chronic obstructive pulmonary disease and was receiving Hospice care. Roxanol, a morphine pain medication, had been prescribed for Resident 16 for pain on a pro re nata (p.r.n.), or as necessary, basis, based on the judgment of the registered nurse or attending physician. Roxanol was given to Resident 16 in May and on June 1 and 2, 2004. The observations of the surveyor took place on June 17, 2004. On June 17, 2004, at 9:30 a.m., Resident 16 underwent wound care treatment which required the removal of her sweater, transfer from sitting upright in a chair to the bed, and being placed on the left side for treatment. During the transfer and sweater removal, Resident 16 made noises which were variously described as "oohs and aahs" or "ows," depending on the particular witness. The noises were described as typical noises for Resident 16 or evidences of pain, depending on the observer. Nursing staff familiar with Resident 16 described that she would demonstrate pain by fidgeting with a blanket or stuffed animal, or that a tear would come to her eye, and that she would not necessarily have cried out. According to facility employees, Resident 16 did not demonstrate any of her typical behaviors indicating pain on this occasion, and she had never required pain medication for the wound cleansing procedure before. An order for pain medication available "p.r.n.," requires a formalized pain assessment by a registered nurse prior to administration. While pain assessments had been done on previous occasions, no formal pain assessment was done during the wound cleansing procedure. A pain assessment was to be performed in the late afternoon of the same day; however, Resident 16 was sleeping comfortably. The testimony on whether or not inquiry was made during the wound cleansing treatment as to whether Resident 16 was "in pain," "okay," or "comfortable," differs. Resident 16 did not receive any pain medication of any sort during the period of time she was observed by the surveyor. AHCA determined that Resident 16 had not received the requisite pain management, and, as a result, Resident 16’s pain went untreated, resulting in harm characterized as a State Class II deficiency. AHCA's determination is not supported by a preponderance of the evidence. In the context that the surveyor considered what she interpreted as Resident 16's apparent pain, deference should have been given to the caregivers who regularly administered to Resident 16 and were familiar with her observable indications of pain. Their interpretation of Resident 16's conduct and their explanation for not undertaking a formal pain assessment are logical and are credible.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding: The facility's failure to secure the protective device to Resident 8's lower leg is not a Class II deficiency, but a Class III deficiency. The facility's care and treatment of Residents 10 and 16 did not fall below the requisite standard. The imposition of a conditional license for the period of June 17 to June 29, 2004, is unwarranted. The facility should have its standard licensure status restored for this period. No administrative fine should be levied. DONE AND ENTERED this 3rd day of June, 2005, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of June, 2005. COPIES FURNISHED: Karen L. Goldsmith, Esquire Goldsmith, Grout & Lewis, P.A. 2180 North Park Avenue, Suite 100 Post Office Box 2011 Winter Park, Florida 32790-2011 Eric Bredemeyer, Esquire Agency for Health Care Administration 2295 Victoria Avenue, Room 346C Fort Myers, Florida 33901 Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308 William Roberts, Acting General Counsel Agency for Health Care Administration Fort Knox Building, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308
The Issue The issue for determination is whether the Agency for Health Care Administration found deficiencies at Wellington Specialty Care and Rehab Center sufficient to support the change in its licensure status to a conditional rating.
Findings Of Fact Wellington is a nursing home located in Tampa, Florida, licensed by and subject to regulation by the Agency pursuant to Chapter 400, Florida Statutes. The Agency is the licensing agency in the State of Florida responsible for regulating nursing facilities under Part II of Chapter 400, Florida Statutes. On September 10, 1998, the Agency conducted a complaint investigation at Wellington in a matter unrelated to the issues that are the subject of this proceeding. On that same date, the Agency also conducted an appraisal survey that focused on six areas of care for which Wellington had been cited as deficient in past surveys. After the investigation and survey were completed, the Agency determined that there was no basis for the complaint, and further determined that Wellington was not deficient in any of the six areas of care which were the subject of the appraisal survey. Notwithstanding its findings that the complaint against Wellington was unfounded and that there were no deficiencies in the targeted areas of care being reviewed, the Agency determined that Wellington was deficient in an area not initially the subject of the September 1998 survey. Specifically, the Agency found that Wellington had failed to provide adequate supervision and assistance devices to two residents at the facility in violation of the regulatory standard contained in 42 C.F.R. s. 483.25(h)(2). Based on its findings and conclusions, the Agency issued a survey report in which this deficiency was identified and described under a "Tag F324." The basis for the Agency’s findings were related to observations and investigations of two residents at the facility, Resident 6 and Resident 8. During the September 1998 survey and complaint investigation, the surveyors observed that Resident 6 had a bruise on her forehead and that Resident 8 had bruises on the backs of both of her hands. Resident 6 suffered a stroke in May 1998 and had left-side neglect, a condition that caused her to be unaware of her left side and placed her at risk for falls. Moreover, Resident 6's ability to recall events was impaired. The Agency's investigation revealed that Resident 6 sustained the bruise on her forehead when she fell from the toilet on August 31, 1998. The Agency determined that Resident 6 fell because she was left alone by the staff of the facility and further concluded that Wellington was responsible for causing this fall. The Agency believed that given Resident 6's left-side neglect, the facility staff should have known not to leave the resident unattended during her trips to the toilet. The Agency suggested that Wellington should have provided constant supervision to Resident 6, although it acknowledged that such supervision may have created privacy violations. In making its determination and reaching its conclusions, the Agency relied exclusively on an interview with Resident 6, notwithstanding the fact that her ability to recall events was impaired. Since Resident 6 was admitted to the facility in May 1998, Wellington appropriately and adequately addressed her susceptibility to falls, including falls from her toilet. After Resident 6 was initially admitted to the facility in May 1998, she received occupational therapy to improve her balance. In late June 1998, following several weeks of occupational therapy, Wellington’s occupational therapist evaluated Resident 6’s ability to sit and to control the balance in the trunk of her body and determined that the resident was capable of sitting upright without support for up to 40 minutes. Based upon that assessment, Resident 6 was discharged from occupational therapy on June 25, 1998, and her caregivers were provided with instructions on how to maintain her balance. At the time Resident 6 was discharged from occupational therapy, a care plan was devised for her which provided that the facility staff would give her assistance in all of her activities of daily living, but would only provide stand-by assistance to Resident 6 while she was on the toilet, if such assistance was requested. In light of the occupational therapist's June 1998 assessment of Resident 6, this care plan was adequate to address her risk for falls, including her risk for falls while on the toilet. Wellington also provided Resident 6 with appropriate assistance devices. In Resident 6's bathroom, Wellington provided her with a right-side handrail and an armrest by her toilet to use for support and balance, and also gave her a call light to alert staff if she felt unsteady. These measures were effective as demonstrated by the absence of any falls from the toilet by Resident 6 over the course of June, July, and August 1998. The Agency's surveyor who reviewed Resident 6’s medical records was not aware of and did not consider the June 1998 Occupational Therapy Assessment of Resident 6 before citing the facility for the deficiency. Resident 8 was admitted to Wellington in February 1998 with a history of bruising and existing bruises on her body. At all times relevant to this proceeding, Resident 8 was taking Ticlid, a medication which could cause bruising and also had osteopenia, a degenerative bone condition that could increase Resident 8's risk for bruising, making it possible for her to bruise herself with only a slight bump. After observing the bruising on the backs of both of Resident 8's hands during the September 1998 survey, the Agency asked facility staff about the bruising and also reviewed the resident’s medical records. Based on her interviews and record review, the Agency surveyor found that these bruises had not been ignored by Wellington. Rather, the Agency found that when facility staff initially observed these bruises on Resident 8's hands, (1) staff had immediately notified Resident 8's physician of the bruises; and (2) the physician then ordered an X-ray of Resident 8 to determine whether there was a fracture. The X-ray determined that there was not a fracture but that there was evidence of a bone loss or osteopenia, which indicated that Resident 8 had an underlying structural problem which could increase the resident's risk for bruising. The Agency surveyor found nothing in Resident 8's medical record to indicate that the facility had investigated the bruising on the resident’s hands, identified the cause of the bruising, or identified any means to prevent the bruising from reoccurring. Based on the absence of this information in Resident 8's records, the Agency cited the facility for a deficiency under "Tag F324." The Agency's surveyor made no determination and reached no conclusion as to the cause of the bruising. However, she considered that the bruising on Resident 8 may have been caused by the underlying structural damage, medication, or external forces. With regard to external forces, the surveyor speculated that the bruising may have occurred when Resident 8 bumped her hands against objects such as her chair or bed siderails. During the September 1998 survey, when the Agency surveyor expressed her concerns about the cause of the bruising on Resident 8's hands, Wellington’s Director of Nursing suggested to the surveyor that the bruising could have been the result of the use of improper transfer techniques by either Resident 8’s family or the facility staff, or Resident 8’s medications. Despite the surveyor's speculation and suggestions by the facility's Director of Nursing, the Agency surveyor saw nothing that would indicate how the bruising occurred. In fact, the Agency surveyor's observation of a staff member transferring Resident 8 indicated that the staff member was using a proper transfer technique that would not cause bruising to the resident’s hands. The Agency surveyor made no other observations and conducted no investigation of the potential causes of the bruising on Resident 8's hands. During the September 1998 survey, after the Agency surveyor inquired as to the cause of the bruises on Resident 8's hands, the facility conducted an investigation to try to identify the potential causes for the bruising. The investigation was conducted by the facility’s Care Plan Coordinator, a licensed practical nurse who was also the Unit Manager for the unit on which Resident 8 was located. Included in the Care Plan Coordinator's investigation was a thorough examination of the potential causes suggested by the Agency's surveyor. The Agency surveyor’s speculation that the bruising was caused when Resident 8 hit her hands against her chair or bed siderails was ruled out as a cause for the bruises because Resident 8 was unable to move around in her bed or chair. More importantly, there were no bedrails on Resident 8's bed and her chair was a heavily padded recliner. Also, as a part of her investigation, the Care Plan Coordinator observed the transfer techniques employed by both Resident 8's family members and facility staff. During these observations, she did not see any indication that the techniques used were improper or would otherwise cause Resident 8 to bruise her hands. Based upon her thorough investigation, the Case Plan Coordinator determined that there were no identifiable causes of the bruising and, thus, there were no care plan interventions that the facility could have implemented then or in September 1998 to prevent the bruising suffered by Resident 8. Instead, the Care Plan Coordinator reasonably concluded that the bruising was most likely an unavoidable result of Resident 8's medications and her osteopenia. The Agency is required to rate the severity of any deficiency identified during a survey with two types of ratings. One of these is "scope and severity" rating which is defined by federal law, and the other rating is a state classification rating which is defined by state law and rules promulgated thereunder. As a result of the September 1998 survey, the Agency assigned the Tag F324 deficiency a scope and severity rating of "G" which, under federal regulations, is a determination that the deficient practice was isolated. The Tag F324 deficiency was also given a state classification rating of "II" which, under the Agency’s rule, is a determination that the deficiency presented "an immediate threat to the health, safety or security of the residents." Because the Agency determined that there was a Class II deficiency at Wellington after the September 1998 survey, it changed Wellington’s Standard licensure rating to Conditional, effective September 10, 1998. At the completion of the September 1998 survey, the Agency assigned the Class II rating to the deficiency although the surveyors failed to determine and did not believe that there was an immediate threat of accidents to other residents at Wellington. In fact, at the time of the September 1998 survey, the number of falls at Wellington had declined since the last survey. The Agency returned to Wellington on November 6, 1998, to determine if the facility had corrected the Tag F324 deficiency cited in the September 1998 survey report. After completing that survey, the Agency determined that the deficiency had been corrected and issued Wellington a Standard License effective November 6, 1998.
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 Wellington and rescinding the Conditional rating. DONE AND ENTERED this 17th day of May, 1999, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of May, 1999. COPIES FURNISHED: R. Davis Thomas, Jr., Esquire Qualified Representative Broad and Cassel 215 South Monroe, Suite 400 Post Office Drawer 11300 Tallahassee, Florida 32302 Thomas Caufman, Esquire Agency for Health Care Administration 6800 North Dale Mabry Highway Suite 200 Tampa, Florida 33614 Sam Power, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308 Paul J. Martin, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308
The Issue The issue is whether Petitioner lawfully reduced Respondent's certificate to operate a nursing home from Superior to Conditional.
Findings Of Fact Respondent is licensed to operate a nursing home known as Sunshine Manor in Sarasota. Petitioner conducted an annual relicensure survey of Sunshine Manor on March 1-3, 1999. Two tags arising out of that survey are the subject of this case. Tag F 224 states that Respondent's staff neglected Resident 2 by failing to document a condition in which he suddenly developed five small blisters on his right hand. Tag F 224 states that the staff left Resident 2 unattended with the catheter tubing wrapped around his right ring finger while his right hand was under his right leg and that this caused the blisters. Tag F 224 alleges that the staff first documented this injury on December 17, 1998. Tag F 224 concludes by stating that the staff left Resident 2 lying for 12 hours without assessing his catheter or turning him. Resident 2, who weighed over 200 pounds, was admitted to Sunshine Manor in October 1998 with diagnoses of coronary artery disease, hypertension, and diabetes. He was fed by a gastrostomy tube and required a urinary foley catheter. He needed assistance to get into and out of bed and had limited ability to move even while in bed. On the morning of December 7, 1998, a nurse discovered that Resident 2 had developed five blisters on the top of his right hand sometime during the night. The nurse reported this discovery to her supervisor, who joined her in treating and dressing the hand. The nurse supervisor then prepared an incident report and an unusual circumstances report and notified Resident 2's physician. The nurse supervisor also arranged for the wound care center to treat the wound at Resident 2's regularly scheduled appointment the following day. The wound care center treated the hand wound the following day, and it healed unremarkably. It is unclear how the blisters developed on Resident 2's hand. Respondent's staff cared for him throughout the night and early morning hours of December 6 and 7. Petitioner has failed to prove that Respondent's staff neglected Resident 2, or that any neglect caused the injury. Tag F 325 states that Resident's staff failed to maintain acceptable nutrition for Resident 12. Tag F 325 states that Resident 12 was admitted to Sunshine Manor on January 8, 1999, with the primary diagnoses of chronic obstructive pulmonary disease (COPD), Congestive Heart Failure (CHF), and weight loss. Tag F 325 states that Resident 12 weighed at admission 115.8 pounds, which was at least 18 pounds below ideal body weight. Tag F 325 states that he weighed 119 pounds on February 1, 1999, but only weighed 102 pounds on March 2, 1999. Tag F 325 then asserts the details of allegations that generally state that Respondent failed to design and implement an adequate nutrition plan for Resident 12, failed to monitor his weight adequately, and erroneously described a physician's order to the frequency of supplemental milkshakes. In fact, on admission, Resident 12's diagnoses were end-stage COPD, end-stage cardiomyopathy with CHF, weight loss secondary to the COPD and CHF, and gastroesophageal reflux disease. In combination, these conditions make it likely that Respondent would lose weight as he died from one or more of these diseases. The failure to reweigh Resident 12 was intentional and compassionate, as the weighing process itself was physically painful for the easily exerted resident. It was obvious to Respondent's staff, including an independent nutritional consultant, that Resident 12 was losing weight rapidly. Likewise, the short-lived (one day) mistranscription of the physician's orders concerning number of shakes was also immaterial under the circumstances, including Resident 12's inability to consume all of the milkshakes offered to him. Resident 12 died on March 16, 1999. His death was not attributable to any nutritional deficiencies caused by Respondent. At the time of the March 1999 survey, Respondent's license was rated Superior. Respondent's license had been rated Superior for the preceding ten years. Respondent reduced the rating from Superior due to the two tags, which have already been discussed, and the failure of Respondent to meet the minimum score. The record is relatively undeveloped to address whether Petitioner should have given Respondent the minimum score necessary to achieve a Superior rating. Petitioner objected to evidence on this point on the ground that Respondent had not raised the issue, but Respondent's petition clearly requests the restoration of its Superior rating. Thus, the Administrative Law Judge overruled the objection. Respondent's strategy was to introduce evidence showing that the conditions that earned the points necessary for a Superior rating in the 1998 survey were the same in March 1999, even though Petitioner's surveyors did not award the points in 1999. However, nothing in the record indicates whether Petitioner had legitimately chosen to make more rigorous the scoring and its surveys.
Recommendation It is RECOMMENDED that the Agency for Health Care Administration enter a final order restoring Respondent's license to Superior from the date of the March 1999 survey. DONE AND ENTERED this 7th day of September, 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 7th day of September, 1999. COPIES FURNISHED: Julie Gallagher, General Counsel Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308 Sam Power, Agency Clerk Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308 Karel L. Baarslag Senior Attorney Agency for Health Care Administration Post Office Box 60127 Fort Myers, Florida 33906-0127 Alfred W. Clark Attorney Post Office Box 623 Tallahassee, Florida 32302-0623
