Findings Of Fact The Respondent, Betty Jean Dempsey Hatton, L. P. N., holds License No. 29095-1. She was employed as a licensed practical nurse at Riverside Convalescent Center in Jacksonville, Florida, during the month of January, 1979. An Administrative Complaint was issued against Respondent Hatton on April 20, 1979, alleging that she was guilty of unprofessional conduct. The Respondent requested an administrative hearing. On or about January 27, 1979, Respondent Hatton had become unhappy with her work at the convalescent center and had decided to resign. She was requested to work 11:00 o'clock p.m. to 7:00 o'clock a.m. shift beginning the night of January 27, 1979. The Respondent agreed to work that shift, although she informed Eleanor L. Hennessey, the evening supervisor, that she intended to resign. The Respondent had not submitted a written resignation at that time. Ms. Hennessey finished her work at 11:00 o'clock p.m. and expected the Respondent to begin work at that time pursuant to her work schedule and pursuant to her agreement. The Respondent did in fact report to work at the convalescent center as agreed on the night of January 27, 1979. Fiona M. Morris, R. N., the Director of Nursing at Riverside Convalescent Center, was notified by Ms. Hennessey that Respondent Hatton had quit work, but Ms. Morris did not receive either an oral or a written resignation from the Respondent. Introduced into evidence was a copy of an official time and signature sheet for the month of January, 1979, for the employee, Respondent Hatton. The Respondent signed in for work on the night of January 27, 1979, at 10:45 o'clock p.m. and signed out at 4:00 o'clock a.m. January 28, 1979. The Respondent had previously agreed by conversation with Ms. Hennessey that evening to work the 11:00 p.m. to 7:00 a.m. shift for which she had been employed and from which she had not resigned. Respondent Hatton in fact did not work all of said shift, leaving some three (3) hours early. She left without informing her supervisor, Ms. Hennessey, and left her floor unattended. In mitigation of leaving her night shift early, Respondent Hatton contended that she told someone on the floor she was leaving, and that she had injured herself the day before and was suffering pain from her back. The Respondent also said she had informed several people that she was resigning as of January 27, 1979. Neither party submitted proposed findings of fact, memoranda of law or proposed recommended orders.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Petitioner Board reprimand the Respondent, Betty Jean Dempsey Hatton. DONE and ORDERED this 16th day of October, 1979, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Julius Finegold, Esquire 1107 Blackstone Building 233 East Bay Street Jacksonville, Florida 32202 Betty Jean Dempsey Hatton 8201 Styers Court Jacksonville, Florida 32221 Geraldine B. Johnson, R. N. Board of Nursing Ill Coastline Drive East, Suite 504 Jacksonville, Florida 32202
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 Whether one or more of the following penalties should be imposed on the Respondent: revocation or suspension of the Respondent's license as a registered nurse, restriction of the Respondent's practice, imposition of an administrative fine, issuance of a reprimand, placement of the Respondent on probation, and/or any other relief that the Board of Nursing deems appropriate?
Findings Of Fact At all times relevant hereto, the Respondent was a registered nurse in the State of Florida. The Respondent holds State of Florida license number 16441472. From August, 1985, through July, 1986, the Respondent was employed as a registered nurse by Good Samaritan Home Health Services, Inc. (hereinafter referred to as "Good Samaritan"). The Respondent was fired for failure to make required patient visits. The Respondent was scheduled to visit Dot C. Laliberte, a patient of Good Samaritan, on July 12 and 14, 1986. The Respondent visited Ms. Laliberte on July 13, 1986, but did not visit her on July 12 and 14, 1986. The Respondent completed a lengthy report on July 12, 1986 and one on July 14, 1986, indicating that she had visited Ms. Laliberte on those dates. These reports were knowingly false and were submitted to Good Samaritan. The Respondent's conduct as described in findings of fact 3 and 4 constituted unprofessional conduct and was not within minimum standards of acceptable and prevailing nursing practice. The Respondent did visit Clara Brooker, another patient of Good Samaritan, but her visits did not exceed five minutes. It was not possible for the Respondent to provide the care she reported had been provided to Ms. Brooker during such a short visit. On at least one visit with Ms. Brooker, the Respondent failed to change dressings on the patient and left the patient soiled. Failure to change Ms. Brooker's dressing constituted unprofessional conduct and was not within minimum standards of acceptable and prevailing nursing practice. The Respondent failed to visit Elizabeth Hathaway, another patient of Good Samaritan, on July 14, 1986. Her failure constituted unprofessional conduct and was not within minimum standards of acceptable and prevailing nursing practice. The Respondent discharged Ms. Hathaway as a patient over the telephone. She knew that this was improper. Discharge of a patient by telephone was unprofessional conduct and not within the minimum standards of acceptable and prevailing nursing practice. The Respondent submitted a Home Health Supervisory Visit Report concerning Earl Hartfield, a Good Samaritan patient, on May 5, 1986, June 6, 1986, and June 20, 1986. Each of these reports were identical except for the alleged dates of the visits. The Respondent filled out one report, copied it and used it on the other occasions. The Respondent did not make all three of these visits. This conduct constituted unprofessional conduct and was not within minimal standards of acceptable and prevailing nursing practice. The Respondent admitted to the Petitioner's investigator that she did not make all required visits even though she knew it was against the rules and regulations of Good Samaritan. From August 5, 1985 until August 15, 1985, the Respondent was employed at Riverside Hospital in Jacksonville. The Respondent was fired from her employment at Riverside Hospital because it was believed that the Respondent had given inconsistent information on her employment application. The Respondent completed and signed an application for employment as a nurse with Good Samaritan on August 26, 1985. The Respondent declared that the information provided in the application was true and correct to the best of her knowledge. In the application the Respondent was requested to "give accurate, complete full-time and part-time employment record." The Respondent failed to include her employment at Riverside Hospital. The Respondent also indicated that she had been employed at Cardinal Nursing Home and that she had left because of "personal problems." The Respondent admitted to the Petitioner's investigator, however, that she had left Cardinal Nursing Home because she had made medication errors. The Respondent completed and signed an application for employment as a nurse with Medical Personnel Pool (in Jacksonville) on July 25, 1986. In the application the Respondent was requested to list "in order, last or present employer first" her work history. Only four spaces were provided for this information and she was not specifically requested to provide any more than her last four employers. In providing this information, the Respondent should have listed her employment at Good Samaritan, Riverside Hospital, Mayflower Nursing Home (or Kinsley Nursing Home) and Greensprings Manor, in that order, to be consistent with applications for employment filed at Good Samaritan and Riverside Hospital. Instead, the Respondent listed her employment at Good Samaritan, Kingsley Nursing Home, Greenspring Manor and Medical Personnel Pool (of Indiana). The Respondent also indicated that she left Good Samaritan for "personal" reasons and did not admit that she had been fired. The information concerning the Kinsley Nursing Home is similar to the information concerning the Mayflower Nursing Home, which was reported in her applications with Good Samaritan and Riverside Hospital. They appear to be the same entities. Dates of employment at these entities are inconsistent, however. The address of, and dates of employment at, Greenspring Manor are inconsistent with her application at Riverside Hospital. Finally, the dates of her employment with Medical Personnel Pool (in Indiana) are different from the dates she included on the applications at Riverside Hospital and Good Samaritan.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent be found guilty of having violated Sections 464.018(1)(d), (f) and (j), Florida Statutes (1986 Supp.). It is further RECOMMENDED that the Respondent's license as a registered nurse be revoked. DONE and ENTERED this 10th day of November, 1987, 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 10th day of November, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1612 The Petitioner has 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. Proposed Finding Paragraph Number in Recommended Order of Fact of Acceptance or Reason for Rejection A 1. B 2. C 3-4 and 8. The weight of the evidence did not prove that the Respondent failed to visit and treat a patient by the name of McInnis or a patient by the name of Guerin. The evidence concerning these patients was hearsay. 2. The second sentence is unnecessary. 8 and 11. F 3. 5 and 10. 6-7 and 9. The evidence did not prove that the Respondent "never" changed dressings of Ms. Brooker. I 13. J 14. The last sentence is irrelevant. COPIES FURNISHED: Judie Ritter, Executive Director - Nursing Room 504, 111 East Coastline Drive Jacksonville, Florida 32201 Tom Gallagher, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee Florida 32399-0750 William O'Neil General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee Florida 32399-0750 Albert H. Mickler, Esquire 5452 Arlington Expressway Jacksonville, Florida 32204 Lillian Poul, pro se 7114 Silver Lake Terrace Jacksonville Florida 32216
Findings Of Fact Petitioner is a nursing home facility located at 1900 Mercy Drive, Orlando, Florida. It is licensed by Respondent and certified to participate in the Medicaid Program. Prior to the rating at issue in this case, Petitioner was rated a "superior" nursing home by Respondent. The "standard" rating at issue in this case was for the period November 30, 1984 to February 28, 1986. The most recent rating for Petitioner, for the period after February 28, 1986, is "superior." Petitioner was deprived of increased Medicaid reimbursement due to its "standard" rating during the period in question. Additionally, Petitioner was deprived of the ability to hold itself out to the public as a "superior" nursing home for the period in question. The parties stipulated that Petitioner was qualified for a "superior" rating for the period in question, except for the factors considered by Robert Maryanski, former Director of the Office of Licensure and Certification, when he made the decision to give Petitioner a "standard" rating, effective November 30, 1984 until February 28, 1986. The factors considered by Maryanski which formed the basis of his decision were: a rating sheet and results of a survey conducted of Petitioner's facility on November 5 through 7, 1984, as well as follow-up visits on January 15 and February 1, 1985: a report of a complaint or surveillance visit conducted on February 1, 1985; a memo dated March 14, 1985 from Robert W. Smith, Area Supervisor of the Office of Licensure and Certification: concerns of the Long-Term Care Ombudsman Council as expressed by letter dated November 15, 1984 and concerns of Paul Snead, Jr., Respondent's District Administrator as expressed by memo dated November 26, 1984. In conducting its annual survey of Petitioner's facility, Respondent's surveyors, George Farrar and June Monaghan, identified seven Class III deficiencies which were corrected by the time follow-up visits were conducted on January 15 and February l, 1985. However, in conjunction with the February 1, 1985 follow-up visit, Respondent's surveyors also conducted an unannounced complaint or surveillance visit which identified eight additional deficiencies. No exit interview was conducted following this complaint or surveillance visit, and Petitioner was not informed of these additional deficiencies, or the fact they could affect their annual rating, until approximately a week later. Neither Farrar nor Monaghan, the surveyors who conducted the February 1 complaint or surveillance visit and who are still employed by Respondent, testified at the hearing. The only witnesses testifying at the hearing who were present during all or a portion of the February 1 visit were Charlotte Uhrig, Administrator of Petitioner's facility, Kathleen Wingard, Director of Operations for Petitioner's management company, and Linda Anderson, a licensed practical nurse employed by Petitioner. Uhrig and Anderson offered credible testimony to explain the deficiencies found during the complaint or surveillance visit, and their unrebutted testimony precludes any finding that the deficiencies reported by Farrar and Monaghan actually existed. To the contrary, based on the evidence presented, it is specifically found that during this visit on February 1, 1985: Petitioner did not violate a patient's right to privacy in treatment since only the patient's heel and back of the leg were exposed at the request of the surveyor; Petitioner took prompt action in terminating a Director of Nursing who violated its policies by allowing aides to do and chart dressings and treatments; Anderson's actions in attempting to give a patient two pills were reasonable and in accordance with proper nursing practice. The fact that the patient did not swallow the pills and the surveyor found them in a glass of water does not indicate any failure on the part of Petitioner to adhere to required nursing home procedures; The lock on a treatment cart was only broken for a couple of hours and was repaired as soon as possible. During the time the lock was broken, the cart was in the nurse's station and observable by nurses on duty; Stains on the walls were fully explained as the result of roof leaks which had recently been repaired and Petitioner was simply waiting for a good rain to insure the leak was fixed before repainting; There was no dust or soap residue on chair lifts, but rather a small amount of powder used on patients was identified by the surveyors; In-service training was promptly given to all aides about washing their hands after treating each patient; An unidentified cart noticed in the new linen room was simply the cart used to carry new linen to the laundry for washing before use; An unidentified, undated bottle of liquid on the medication cart was apple juice given to patients to assist them in taking their medication; The door to the janitor's closet was not left open, but rather the door had been closed but the lock had not engaged; In service training was promptly given to aides concerning leaving unattended bottles of germicide and cups of liquid soap in patients' bathrooms. In his memo dated March 14, 1985, Robert W. Smith recommended that Petitioner be given a "superior" rating for the time in question. Smith supervised nursing home surveyors including Farrar and Monaghan. Robert Maryanski was Smith's superior and had the final authority on rating decisions. Yvonne Opfell, Vice Chairperson of the Long-Term Care Ombudsman Council, testified that one-fourth of all complaints in the Orlando area the Council received in 1984 involved Petitioner's facility. The Council investigates every complaint received and found most complaints against Petitioner to be "not substantiated." However, several were found to be "substantiated" including one which was substantiated by Adult Protective Services involving an incident in August, 1984 in which a patient was allegedly dropped and suffered a broken arm. Henry McLaulin investigated this incident for Adult Protective Services and testified that Petitioner was less than cooperative with him in this investigation. However, based on the evidence received, including the testimony of Uhrig and Karen Skadering, a physical therapist who worked with this patient in August, 1984, it has not been proven that aides dropped the patient causing a broken arm. The patient was very weak and dependent, with brittle bones, and according to David Parsons, M.D., a patient in this condition could break a bone simply by turning over in bed through no fault of Petitioner's staff. As District Administrator of Respondent, Paul Snead, Jr. expressed his concerns about Petitioner's rating in a memo dated November 26, 1984. Snead testified at the hearing about these concerns and his feeling that Petitioner-should not be given a "superior" rating. He also admitted he has never visited Petitioner's facility. In addition to the incident in August, 1984 involving a patient's broken bone discussed above in Finding of Fact 9, Snead reported complaints about scabies at Petitioner's facility during 1984. Based upon the testimony of Charlotte Uhrig, Petitioner's Administrator, Bob Duncan, a pharmacist, Ruth E. Laughlin, senior community health nurse, and David Parsons, M.D., it is found that scabies did exist on several occasions during 1984 at Petitioner's facility. However, scabies is frequently found in nursing homes, even those rated "superior". It is a highly communicable parasitic condition which can be introduced into a nursing home by patients, family and staff. When the condition was diagnosed, Petitioner took action to eradicate the problem, but due to the lengthy three to six week incubation period and highly contagious nature of this condition, it did take repeated efforts to remove it from the nursing home. Petitioner's efforts were successful, and there is no evidence that the condition continued to exist after November, 1984.
Recommendation Based upon the foregoing it is recommended that Respondent enter a Final Order granting Petitioner a "superior" rating for the period November 30, 1984 to February 28, 1986. DONE and ENTERED this 14th day of April, 1986, at Tallahassee, Florida. DONALD D. CONN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of April, 1986. COPIES FURNISHED: Karen Goldsmith, Esquire Jonathan S. Grout, Esquire Suite 500, Day Building 605 East Robinson Street Orlando, Florida 32802 Douglas Whitney, Esquire 400 West Robinson Street Suite 912 Orlando, Florida 32801 William Page, Jr., Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 APPENDIX Rulings on Petitioner's Proposed Findings of Fact: Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Adopted in Finding of Fact 5. Adopted in Finding of Fact 6. Adopted in Finding of Fact 6. Adopted in part in Findings of Fact 4, 5. Adopted in part in Findings of Fact 5, 7. Rejected as irrelevant and unnecessary. Adopted in Findings of Fact 5, 9, 10, 11. Adopted in part in Findings of Fact 5, 9, but otherwise rejected as irrelevant and unnecessary. Rejected as cumulative and also as a conclusion of law rather than a finding of fact. Adopted in Finding of Fact 8. Rejected as a conclusion of law rather than a finding of fact.
Findings Of Fact Petitioner, Janice Lynn Heller, mailed an application for licensure as a midwife to respondent, Department of Health and Rehabilitative Services (HRS), on June 12, 1982. The application was received by HRS on June 22 and forwarded to its Public Health Nursing Office on June 23. Heller resides at 1042 Tyler Street in Hollywood, Florida. She has resided in that city for 24 years. She is 32, years old, married, and holds an Associates Degree from Miami-Dade Community College; Her background includes working in her father's medical office, a suicide prevention hotline, and in the Department of Pharmacology at the University of Miami. She has acquired skills in cardiopulmonary resuscitation, has attended seminars and clinics in prenatal care, instructing couples in prepared home births, infancy and bonding, has read extensively on the subject of child births, and has attended several hundred births as an assistant to other midwives. She has also trained as a birth coach to the Association of Child Birth at Home International. In addition, she has attended and been primarily responsible for the delivery of twenty-seven newborns at home under the supervision of a physician. At the time the application was filed, Rule 10D-36.22, Florida Administrative Code, prescribed the requirements for licensure as a midwife. As is pertinent here, they included a requirement that the application be accompanied by evidence of the applicant having "attended within a one year period under the supervision of a duly licensed and registered physician not less than fifteen cases of labor including the care of not less than fifteen mothers and newborn infants during the lying-in period." Heller submitted proof of having attended sixteen births under the supervision of a duly licensed and registered physician. Fifteen such births were supervised by Dr. Marcus, a Sunrise, Florida pediatrician, and one by Dr. A. E. Gillig, all during a one year period. Therefore, Heller met this requirement. Although respondent contended Dr. Marcus did not verify the actions of Heller, this contention is rejected in view of Marcus having testified that Heller is reasonably competent and skilled to practice midwifery based upon his observations of Heller at fifteen births, and his having discussed with her the principle of sterilization, her knowledge of sterile technique, her knowledge of what complications to look out for in child birth, and other matters relating to prenatal care. Rule 10D-36.22 also required that the applicant obtain "(a) written recommendation for licensure by the county medical director attesting to the applicant's ability to complete standard birth certificate forms and that the applicant's behavior and habits are consistent with safe hygiene practices, and the equipment and settings to be used in practice are safe and sanitary." In June, 1982 Heller resided in Broward County. The assistant county medical director at that time was Dr. George Trodella. Because Trodella had publicly stated he would never recommend licensure of a lay midwife in Broward County under any circumstances, and because Heller believed the requirement for Trodella's recommendation to be illegal, she suggested in her transmittal letter that HRS find an alternative method for carrying out this requirement. Accordingly, this portion of the application was incomplete. After reviewing the application, the Department's Public Health Nursing Office did not contact Heller about the incomplete item in her application, but instead sent the application to Dr. Trodella on June 26 for his review and recommendation as to Heller's qualifications. Trodella responded by letter dated July 22, 1982, and attached certain correspondence he had received about Heller from the City of Hollywood Fire Department while responding to an emergency call involving Heller and a client named Farese. The letter reflected adversely upon Heller, and Trodella concluded Heller was "not qualified at this time for licensure." On September 24, 1982, HRS wrote Heller and advised her that it intended to deny her application on the following grounds: You have not provided a record of having attended 15 births within one year as required by FAC 10D-36.22. In the case of Susan Farese, you failed to summon a physician immediately when a serious complication developed as required by FAC 10D-36.26(3), or failed to competently diagnose her condition. In the case of Susan Farese, there is evidence that you attempted to remove an adherent placenta, in violation of Florida Statutes 485.081. In the case of Susan Farese, there is evidence that you incompetently administered oxygen to a patient (one-half to one-third the recommended flow rate) Administration of any substance for therapeutic purposes, except 1 percent fresh solution of silver nitrate, is specifically prohibited by 10D-36.27 FAC. In the case of your patient Mrs. Pinkdon, you failed to refer her to a physician and attempted to attend her delivery, despite the fact she could not be expected to have a normal uncomplicated labor and delivery as required by Florida Statutes 485.081 and FAC 10D-36.25. You have not received a written recommendation for licensure by the county medical director as required by 10D-36.22 FAC. You have generally failed to show qualifications and fitness to practice lay midwifery as required by FAC 10D-3.22(3) and failed to comply with the public health laws of the State of Florida as required by F.S. 485.071. The letter of denial promoted the instant proceeding. Heller requested an administrative hearing to contest the denial of her application on October 26, 1982. Thereafter, on January 21, 1983 Heller filed a petition to determine invalidity of rules wherein she challenged the validity of Rules 10D-36.22(1)(a), 10D-36.22(1)(d) and 10D-36.27, Florida Administrative Code. These rules were ultimately declared to be invalid, Petty-Eiffert and Heller v. DHRS, DOAH Case No. 83-204R, Final Order entered May 5, 1983, and the final order was affirmed by the First District Court of Appeal in DHRS v. Petty- Eiffert and Heller, 445 So. 2d 266 (Fla. 1st DCA 1983). The result of that proceeding was to eliminate grounds 1, 5 and 6 In HRS's letter of September 24 as a basis for denying Heller's application. HRS accordingly now relies upon grounds 2, 3, 4 and 7 for denying her application. The gravamen of the Department's letter of September 24 centers around a client of Heller named Susan Farese. Heller and Sarah Pinkman, a licensed midwife, attended and assisted in the labor and delivery, of Farese's child on March 22, 1982 at Farese's home in Broward County. Prior to the birth, the midwives ascertained that there was a hospital some five to ten minutes away, should complications arise. The child was delivered at 3:45 a.m. on the morning of March 22 without complications and received a perfect Apgar score of ten. However, during the third stage of labor, which involves the delivery of the placenta, a problem arose. Normally, the placenta separates within a few minutes after birth and is accompanied by a gush of blood. In Farese's case, the first gush of blood occurred around 4:15 a.m., or thirty minutes after delivery of the child, but the placenta did not separate and deliver. When the placenta did not separate within the next few minutes and a steady trickle of blood continued, they immediately assessed the problem as a partial separation and, contrary to the allegations in the letter of September 24, Pinkman, not Heller, began administering oxygen to Farese at a rate of between four and six liters per minute. At the same time, Pinkman called both Dr. Marcus and a fire rescue unit at the Broward County Fire Department. It is unclear as to the specific time the fire rescue call was made, but the call was eventually relayed to a fire rescue unit at 4:28 a.m. It arrived at Farese's house at 4:34 a.m. The mother and child were later transported to a local hospital where the placenta was removed by a doctor. Mother and baby are now doing fine. Both Heller and Pinkman were well aware that it was dangerous and improper to attempt to manually remove Farese's placenta. Based upon the testimony and evidence, it is found that Heller did not "attempt to remove an adherent placenta" as charged in the letter of denial. 1/ Although the total amount of fluids passed by Farese was between 500 and 1000 cubic centimeters, not all of this amount was blood. It was also customary for midwives to wait 30 minutes after delivery for the placenta to detach. Indeed, although the Department had no rule governing this time period, it has since adopted a rule which allows a midwife to wait 30 minutes for delivery of the placenta before consulting a physician. Therefore, it was not inappropriate to wait for thirty minutes in Farese's case, to thereafter assess the situation, and to call a physician and a fire rescue unit within the next two to three minutes. Heller is aware of the basic clinical techniques involved in being a lay midwife, including taking pulse and blood pressure, listening to fetal heart tones, external palpitations, checking for dilation, checking urine, insuring that the birth setting is appropriate, sterilizing instruments, and recognizing how labor is progressing. She is also aware of the importance of sterile techniques, and in this vein, has never had infection arise in either mother or baby in any births she has been involved with. Heller is skilled in recognizing complications that could arise during labor, and is able to legibly fill out birth certificates. Two other licensed midwives, Carol Nelson and Sara Pinkman, both considered Heller to be well qualified to be licensed as a midwife. This opinion is based upon their knowledge, familiarity and personal observations of Heller while she assisted and otherwise aided expectant mothers in labor and delivery. The Department has licensed at least four other applicants as midwives prior to Heller who did not obtain the recommendation of the county medical director in the county in which they resided. They include Cheryl McGhan, Doreen Virginiak, Heather Blanchard and Sara Pinkman. HRS did not explain this deviation from its rules.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of Janice Heller for licensure as a lay midwife be GRANTED. DONE and ENTERED this 4th day of June, 1984, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 4th day of June, 1984.
