The Issue Whether Respondent, Beverly Healthcare Rosemont, was in violation of 42 C.F.R. Section 483, Chapter 400, Florida Statutes, and Rule 59A-4, Florida Administrative Code, at the time of its annual survey from January 22 through 25, 2001, and, if so, whether those violations were uncorrected at the time of the follow-up survey on March 1, 2001, in order to justify the issuance of a Conditional License from March 1, 2001 until April 4, 2001.
Findings Of Fact Respondent is a licensed nursing home in Orlando, Florida. Pursuant to Chapter 400, Florida Statutes, Petitioner surveys Respondent to determine whether it is in compliance with applicable laws and regulations. If there are deficiencies, it determines the level of deficiency. When Petitioner conducts a survey of a nursing home, it issues a survey report, commonly referred to by its form number, a "2567." The particular regulation, and the allegedly deficient practices which constitute a violation of that regulation, are cited in a column on the left side of the paper. After receiving the 2567, the facility is required to develop a plan of correction of the alleged deficiency which is put in the right hand column of the 2567 corresponding to the alleged deficiency. The facility is required to develop this plan of correction regardless of whether it agrees that it is in violation of any regulations, and it is prohibited from being argumentative in the 2567. Petitioner conducted its annual survey of Respondent from January 22 through 25, 2001, and issued a 2567 survey report noting certain deficiencies. The deficiencies are designated as tag numbers. Among those noted were Tag F164, which is the shorthand reference to, and which incorporates C.F.R. Subsection 483.10(e); Tag F332, which refers to and incorporates 42 C.F.R. Subsection 483.25(m)(1); and Tag F465, which refers to and incorporates 42 C.F.R. Subsection 483.70(h). Petitioner rated these deficiencies as Class III deficiencies. By assigning the deficiencies that rating, Petitioner maintained that each deficiency presented "an indirect or potential relationship to health, safety and security of nursing home residents." Petitioner conducted a follow-up survey on March 1, 2001, and determined that the deficiencies under Tags F164, F332, and F465 were uncorrected, and, as a result, issued a conditional rating to the facility. The conditional rating continued until April 4, 2001, when Petitioner changed it to a standard rating. The 2567 constitutes the charging document for purposes of issuing a Conditional License. No other document was offered to describe the offenses, or deficiencies, which resulted in imposition of the Conditional License. In conducting its survey, Petitioner uses a document developed by the Health Care Financing Administration ("HCFA"), called the State Operations Manual. It provides guidance on how to interpret regulations. TAG F164 The 2567 from the January survey asserts, under Tag F164 which incorporates 42 C.F.R. Subsection 483.10(e), that the facility "failed to protect the right to privacy and confidentiality of residents' clinical records regarding meal intake and medications." The regulation states that residents have "the right to personal privacy and confidentiality of his or her clinical records." During the January survey, Petitioner's surveyor observed a nurse leave the residents' medications chart on the medication cart while the nurse was administering medications to residents. The medications chart was open and could be examined by anyone passing in the hallway. The surveyor believed that there was a potential that these confidential medications records could be seen by unauthorized third persons and therefore assigned the F164 deficiency. During the follow-up survey on March 1, 2001, the surveyor observed that the medication charts were no longer open and that particular "problem" had been corrected. However, during the March 1, 2001, follow-up survey, the surveyor noted a nurse performing an "Acu-check" test on Resident 16 in the hallway in the presence of three other residents. She also observed a nurse giving an insulin injection to Resident 17 in her abdomen in the hallway in the presence of residents. As a result of these observations, the surveyor believed that these residents' right to personal privacy in medical treatment was not being maintained and that the deficiencies identified as Tag F164 continued. The surveyor acknowledged that both residents could consent to the administration of treatment in the manner that was observed and, in the event they consented, their right to privacy in medical treatment would be preserved. She failed to inquire of the residents or the nurse as whether they had consented to the critical treatment. The Respondent's nurse/witness testified that Resident 17 is a retired nurse, is cognitive, and has previously requested that her insulin injection be given in the manner described by the surveyor. She further described giving the "Acu-check" test as described by the surveyor to Resident 16, who is cognitive, on other occasions, without Resident 16's objecting. She testified that the standard practice is to take the resident out of the resident population into the resident's room or some other private place to administer treatment. TAG F332 Petitioner charged in the 2567 for the January 2001 survey that Respondent exceeded the minimum prescribed level of error rate in medication administration. Tag F332, which incorporates 42 C.F.R. Subsection 483.25(m)(1), provides that "the facility must ensure that it is free of medication error rates of five percent or greater." During the January 2001 survey, the surveyors observed "the medication pass on the North and South wings with 6 nurses identified 5 errors out of 48 opportunities revealing a 10.4 percent medication error rate." Because it is impossible, as a practical matter, to observe the administration of all medication while conducting a survey, the protocol to determine the accuracy of medication administration is based on representative sampling. The surveyor will observe approximately 20 medication administrations (also called "opportunities for error"). If an error in administration is observed, 20 or so more administrations are observed. The surveyor will then project the facility's medication error rate based on the percentage determined by dividing the number of errors by the number of administrations. During the March 1, 2001, follow-up survey, the surveyor observed three errors in the first 20 or so medication administrations. She then observed 20 more administrations which were error free. There were a total of three errors in administrations; the result was an error rate of 6.9 percent which exceeded the minimum standard; had only two errors been observed the error rate would be an acceptable 4.6 percent. Failure to follow the physician's orders, failure to follow manufacturer's specifications, and not following accepted standards of practice are the most common medication administration errors. Both significant and insignificant errors are counted to determine error rate. During the March 1, 2001, follow-up survey, the three alleged medication administration errors were: (1) a nurse gave a resident Gentamicin, an antibiotic eye drop, in both eyes when the surveyor believed the Physician Orders called for administration in one eye; (2) a nurse was observed giving a resident 330 mg. of ferrous elixir when the Physician Orders called for 325 mg.; and (3) a nurse was observed giving a resident two Tylenol tablets when the surveyor believed that the Physician Orders called for only one Tylenol tablet. The surveyor believed the administration of Tylenol was a medication error because it did not follow the Physician Orders that read: "8/1/00, Meds, Q8Hr, Tylenol Tabs, 325 mg, (Acetaminophen/325 mg) Oral, Q8Hrs." Although the order reads "Tabs," it does not quantify the number of "Tabs" to be administered. The physician who prescribed the medication was not interviewed. The surveyor believed the indication "325 mg" limited the amount of dosage although it is acknowledged that this is a standard size Tylenol and that the therapeutic dosage is two tabs. The same Physician Orders has an entry that reads "10/12/99, Meds, Q4Hp, Tylenol caplets, 325 mg,(Acetaminophen/ 325 mg), For Temperature > 101 or C/O minor discomfort. 2 Oral as needed, q4H." The Physician Orders written on February 23, 2001, indicated "Gentamycin [sic] ophthalmic solution 1 gtt (drop) TID (three times a day) for 7 days." It is not possible to determine from the Physician Orders that a medication error had occurred. The surveyor's determination that the Gentamicin ophthalmic solution was improperly administered was based on the hearsay statement of a resident and additional documentary evidence not offered at the hearing and, therefore, is not accepted as credible. TAG F465 Petitioner charges in the 2567 from the January 2001 survey, that Respondent violated 42 C.F.R. Subsection 483.70(h) in that it failed to "provide a safe, functional, sanitary, and comfortable environment for residents, staff, and the public." The basis for this violation was: "[D]uring the initial tour of the facility on 1/22/01 on the South wing at approximately 10:00 a.m., several resident rooms had dirty linen on the floors in the rooms and bathrooms. Dirty towels, washcloths, and sheets were observed on the floor." Testimony revealed that these conditions were observed in four rooms on the first day and in one room on a later day. During the follow-up survey it was noted that this offending practice had been corrected. Testimony revealed that the procedure for the disposition of dirty linen, gowns, towels and washcloths was to place them in a hamper for transportation to the laundry. During the March 2001 follow-up survey, it was noted that "at 4:30 p.m., a caddie with toilet cleanser, a toilet brush, antibacterial hand cleaner and furniture polish was observed on a resident's overbed table in room #203." The surveyor observed this to be in violation of 42 C.F.R. Subsection 483.70(h), as it did not provide a safe environment for residents. The caddie was removed immediately after its discovery.
Recommendation Based of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order revising the March 1, 2001, survey report by deleting the deficiencies described under Tags F164 and F332, but confirming the existence of an uncorrected deficiency, Tag F465, and assigning a Conditional License to Respondent for the period March 1, 2001 to April 4, 2001. DONE AND ENTERED this 30th day of November, 2001, in Tallahassee, Leon County, Florida. 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 30th day of November, 2001. COPIES FURNISHED: Patricia J. Hakes, Esquire Paul Lauve, Esquire Agency for Health Care Administration 525 Mirror Lake Drive, North Room 310J St. Petersburg, Florida 33701 R. Davis Thomas, Jr., Esquire Broad and Cassel 215 South Monroe Street, Suite 400 Post Office Drawer 11300 Tallahassee, Florida 32302 Diane Grubbs, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building Three Suite 3431 Tallahassee, Florida 32308 William Roberts, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building Three Suite 3431 Tallahassee, Florida 32308
The Issue Whether Respondent committed the violations alleged in the Amended Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact AHCA is the agency responsible for the licensing and regulation of assisted living facilities in Florida pursuant to Chapter 400, Florida Statutes. At all times material hereto, Northpointe was licensed as an assisted living facility with a capacity of 100 beds. Northpointe is located in Pensacola, Florida. Count I As the result of a complaint received by AHCA, Norma Endress, a registered nurse and agency surveyor employed by AHCA, conducted a survey inspection of Northpointe on March 1 and 2, 2002. According to Nurse Endress, the nature of the complaint was an allegation regarding failure to prevent falls. Upon arriving at Northpointe, Ms. Endress spoke with Rochelle Pitt, a Licensed Practical Nurse who is Director of Nursing at Northpointe, made a quick tour of the facility and then asked for the records of five residents. These records included those of Resident 1 and four others chosen randomly. Included within Resident 1's records was an Outcome Planning Discharge Sheet (discharge sheet) from Sacred Heart Hospital dated January 31, 2002. The discharge sheet noted that Resident 1 had a wound on his left heel. The discharge sheet included a section entitled "Post Discharge Medical Appointments" which included the following hand written notation: "Dr Matthew Ethridge (Podiatrist) (illegible telephone number). Date + time to be arranged within the week by daughter." The discharge sheet also included a section entitled "Medications Dose Frequency" which contained the following hand written notation: "Resume pre-hospital meds. Clean and dress left heel (illegible) everyday with antibiotic ointment and dress with gauze." Also included within Resident 1's records was another document from Sacred Heart Hospital which indicates that Resident 1 subsequently was treated in the Emergency Room on February 2, 2002. This document includes a section entitled "Triage," which indicates that Resident 1 was seen in the Emergency Room because of a fall and that Resident 1's chest hurt. The section of the February 2, 2002, Emergency Room document entitled "Physical Exam" indicates that Resident 1 was awake and alert and was accompanied by his daughter. This section also includes the following: "EXTREMITIES: no clubbing, cyanosis, WITH2+ edema, perpipheral pulses intact, motor and sensation intact. BANDAGE ON FOOT NOT CHANGED AS HOME HEALTH NURSING CHANGING REGULARLY." (emphasis in original) During the survey inspection, Nurse Endress also reviewed Resident 1's medication record. According to Nurse Endress, the medication record did not reference the discharge instructions of the physician from the January 31, 2002, discharge from the hospital.1/ Also included in Resident 1's records was a fax cover sheet dated February 1, 2002, from Rochelle Pitt of Northpointe to Dr. Retzloff. The fax cover sheet contained the following hand written notation: "Returned from hospital 1-31-02, needs new health assessment (with) orders for home health to open area L heel. (see discharge instructions) Thanks, Rochelle Pitt." According to Nurse Endress, there was nothing in Resident 1's medication administration record or medical chart to reflect the physician's discharge instructions of January 31, 2002 nor to indicate that Resident 1 received any treatment to his left foot after his discharge from the hospital on January 31, 2002. Mr. M. H. Mikhchi is the administrator of Northpointe. According to Mr. Mikhchi, the type of license held by Respondent does not permit it to do the dressing changes on Resident 1's foot referenced in the doctor's hospital discharge instructions. That is, Respondent asserts that it holds a standard license, not a mental health license or a limited nursing license. According to Mr. Mikhchi, Respondent received a call from the hospital prior to Resident 1's discharge on Thursday, January 31, 2002, informing them that Resident 1 was being discharged. The following day, Friday, February 1, 2002, Nurse Pitt sent a fax to Dr. Retzloff, requesting a new health assessment with orders for home health care to treat Resident 1's heel. The time of day that this request was faxed is not reflected on the fax cover sheet, although Mr. Mikhchi indicated that it was Friday afternoon. The request was necessary because Resident 1's insurance required a physician's order for home health services. According to Mr. Mikhchi, Respondent did not hear back from Dr. Retzloff's office on Friday, February 1, 2002. As a result, the weekend passed without Resident 1 receiving home health care for his heel wound. Mr. Mikhchi acknowledges that Nurse Pitt viewed the heel wound over the weekend although the record is unclear as to whether or not she changed the dressing or applied ointment. Nurse Pitt's actions in this regard were not recorded in Resident 1's record because of the limitation of Respondent's license. Upon Resident 1's return to the facility, Nurse Pitt noted that Resident 1's discharge order stated that Resident 1's daughter would set up an appointment with Dr. Ethridge. As far as Nurse Pitt or Respondent knew, Resident 1's daughter had not set up an appointment with the doctor as of Monday, February 4, 2002. Accordingly, Nurse Pitt called the office of Dr. Ethridge, a podiatrist, on Monday, February 4, 2002, to set up an appointment which was then scheduled for the following day. Count II Shawn Bolander is a registered nurse and a surveyor for AHCA. According to Nurse Bolander, she went to Respondent's facility on April 5, 2002, to conduct a survey visit as a follow-up to a complaint investigation. However, the record contains no evidence as to the nature or subject matter of the complaint investigation to which this was a follow-up survey visit. There is nothing in Nurse Bolander's testimony to indicate that her visit of April 5, 2002, was related in any way to the events discussed above regarding Count 1 or Resident 1. Upon arriving, Nurse Bolander took a tour of the facility and requested a list of residents to select a sample of records for chart review. She reviewed the records of Resident 22/ and found that there was a missing page to Resident 2's medication administration record. She determined that there was a missing page by comparing the physician's orders to the medication administration record for the month of April. That is, Resident 2's resident health assessment mentioned two medications that were not found on Resident 2's medication administration record. Upon discovering that some medications were not listed on the medication administration record, Nurse Bolander spoke to Nurse Pitt. Nurse Bolander requested that Nurse Pitt recopy the second page of Resident 2's medication administration record and provide her with a copy of it prior to Nurse Bolander's departure from Respondent's facility. Nurse Pitt did provide Nurse Bolander with a second page to Resident 2's medication administration record prior to Nurse Bolander's departure from the facility on April 5, 2002. At the top of the second page of the medication administration record appears the following hand written notations: "Re-written 4-5-02 2:15pm RP." This was followed by a notation made by Nurse Bolander which read, "Received 4/5/02 SB @2:35." Page two of Resident 2's medication administration record listed six medications, three of which were designated "PRN." Based upon her review of the medication administration record, Nurse Bolander determined that there was no evidence that Resident 2 actually received any of the medications listed on page two from April 1, 2002 to April 5, 2002. There is nothing in the record to support the allegation in Count II that Respondent's alleged failure to maintain an up to date medication observation record is a repeat violation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Agency for Health Care Administration enter a final order dismissing the Amended Administrative Complaint issued against Respondent, Northpointe Retirement Community. DONE AND ENTERED this 8th day of November, 2002, in Tallahassee, Leon County, Florida. BARBARA J. STAROS 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 8th day of November, 2002.
