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 Was Petitioner properly cited for a Class III deficiency.
Findings Of Fact Horizon Healthcare & Specialty Center (Horizon), is an 84-bed nursing home located at 1350 South Nova Road, Daytona Beach, Florida. It is licensed under Chapter 400, Part II, Florida Statutes. The Agency for Health Care Administration (AHCA) is the state agency charged with licensing and regulating nursing homes in Florida. On August 14, 2000, AHCA conducted a survey of Horizon. This was accomplished in part by Rose Dalton, a nurse. At the hearing Ms. Dalton was determined to be an expert in nursing care. A report on a nursing home survey is made on a Form 2567-L which is approved by the U.S. Department of Health and Human Services, Health Care Financing Administration. A Form 2567-L was generated as a result of Ms. Dalton's survey. It was reported under the category Tag 327. Resident 7. Ms. Dalton, in conjunction with the survey team accompanying her, determined on August 17, 2000, that Resident 7 was dehydrated. This conclusion was reached because facility records indicated that Patient 7 had a blood urea nitrogen (BUN) of 57 on August 7, 2000, with normal being 6-26, and a high normal creatinine of 1.6. Another factor used in concluding that Resident 7 was dehydrated was a report dated August 8, 2000, which revealed a BUN of 34. On August 12, 2000, a report indicated a BUN of 43 and a creatinine of 1.9. The survey team was also aware that Resident 7 was ingesting Levaquin, a powerful antibiotic which requires that a patient remain well-hydrated. Ms. Dalton and the survey team cited the facility with a Class III deficiency, for state purposes, and a "G" on the federal scale. The federal scale goes from "A", which is a deficiency which causes no harm, to "J", which is harm which may cause death. The "G" level meant that it was the team's opinion that there was great potential for actual harm. Resident 7 was admitted on August 3, 2000. Among other ailments, Resident 7 was suffering from a femoral neck fracture and renal insufficiency when admitted. The resident contracted a urinary tract infection (UTI), and was being administered Levaquin, an antibiotic appropriate for UTI treatment. On August 8, 2000, a physician's order requested that the patient be encouraged to consume fluids. It is Ms. Dalton's opinion that Resident 7 was not provided proper fluid intake by the facility which could have caused serious health consequences for Resident 7. When Resident 7 was in the hospital, prior to being admitted to Horizon, his BUN was 41 and his creatinine was 2.3, which is consistent with Resident 7's chronic renal insufficiency. The BUN of 43 and creatinine of 1.9 observed in the facility on August 12, 2000, did not indicate Resident 7's condition was worsening, and in fact, it was improving marginally. The values for a normal BUN might vary from laboratory to laboratory but generally a normal BUN would be around 25 or less. Because of Resident 7's underlying renal disease and ischemic cardiomyopathy, it was unlikely that Resident 7 would ever manifest a BUN which would be considered normal. Dr. Elizabeth Ann Eads, D.O., an expert in the field of geriatric medicine, reviewed the laboratory values and the nursing notes in the case of Resident 7. It is her opinion, based on that review, that the facility provided appropriate care, that the patient improved during the stay at the facility, and that there was nothing in the record which suggested any actual harm to Resident 7. This opinion was accepted. Resident 8. Ms. Dalton opined that, based on her personal observation and a review of Resident 8's medical records, that the facility failed to respond to the hydration needs of Resident 8 and did not follow the care plan which was developed for Resident 8. Ms. Kala Fuhrmann was determined to be an expert in the field of long-term care nursing. She noted that Resident 8 was admitted to the facility on August 1, 2000. Resident 8's hospital records indicated that Resident 8 might be developing a UTI based on a urinalysis performed on July 31, 2000, which revealed blood and protein in the urine. On August 3, 2000, Resident 8's doctor started an antibiotic, Levaquin, and ordered another urinalysis. On August 4, 2000, a culture determined that Resident 8 was positive for a UTI, so the antibiotic treatment was continued. On August 15, 2000, it was determined the UTI had been cured. During the course of the UTI, Resident 8 was incontinent, which is often the case when elderly patients are afflicted with UTI. By August 18, 2000, Resident 8 was continent. It is Ms. Fuhrmann's opinion that the care provided to Resident 8 was appropriate and that there is nothing in the record which demonstrates that anything less than adequate hydration was provided to this resident. This opinion was accepted.
Recommendation Based upon the Findings of Fact and Conclusions of Law, RECOMMENDED: That the Agency for Health Care Administration enter a final order dismissing the allegations set forth in relation to the TAG 327. DONE AND ENTERED this 12th day of June, 2001, in Tallahassee, Leon County, Florida. HARRY L. HOOPER 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 12th day of June, 2001. COPIES FURNISHED: Karen L. Goldsmith, Esquire Goldsmith & Grout, P.A. 2180 North Park Avenue, Suite 100 Post Office Box 2011 Winter Park, Florida 32790-2011 Michael O. Mathis, Esquire Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building Three, Suite 3431 Tallahassee, Florida 32308-5403 Sam Power, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building Three, Suite 3431 Tallahassee, Florida 32308 Julie Gallagher, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building Three, Suite 3431 Tallahassee, Florida 32308
Findings Of Fact Petitioner, Angell Care of Hialeah, Inc., d/b/a Hialeah Convalescent Home (Hialeah), is a nursing home licensed under the authority of Chapter 400, Florida Statutes. On April 26, 1985, Hialeah submitted its license renewal application to the Department of Health and Rehabilitative Services (Department), to renew its nursing home license for license year August 1, 1985 to July 31, 1986. The Department issued Hialeah Standard License No. 2134; however, by letter of September 30, 1985, the Department cancelled Hialeah's standard license, and replaced it with Conditional Rating License No. C-985. The Department's action was premised on its assertion that the results of a survey concluded by its Office of Licensure and Certification on August 1, 1985, established a conditional rating. Hialeah filed a timely request for formal administrative review of the Department's action. Hialeah asserted that the Department's action downgrading its license from standard to conditional was unwarranted and that, as opposed to a standard rating, it was entitled to a superior rating. At hearing, the parties stipulated that if this de novo review of the Department's action, which was premised on the deficiencies found in the survey conducted by its Office of Licensure and Certification, resulted in a finding that Hialeah was qualified to receive a standard rating, as opposed to a conditional rating, then it should receive a superior rating. Accordingly, the issues in this case are resolved to the validity of the deficiencies noted by the Office of Licensure and Certification. Deficiencies noted by the Department: Pertinent to these proceedings, 1/ the survey conducted by the Department's Office of Licensure and Certification classified the deficiencies noted at Hialeah into ten major categories, and listed the deficient nursing home licensure requirement number (NH) and applicable statutory or code provision violated, 2/ as follows: Administration and Management (1) NH 3 10D-29.104(1)(b), F.A.C. (2) NH 21 10D-29.104(5)(d)1g, F.A.C. (3) NH 25 10D-29.104(5)(d)4, F.A.C. (4) NH 26 10D-29.104(5)(d)5, F.A.C. Patient Care Policies NH 57 10D-29.106(2), F.A.C. Physician Services (1) NH 60 10D-29.107(2)C, F.A.C. Nursing Services (1) NH 77 10D-29.108(3)(c)16, F.A.C. (2) NH 80 10D-29.108(5)(b)6, 13, 15a & b, 16b & i, F.A.C. Dietary Services (1) NH 125 10D-29.110(3)(g)2; 10D-13.24(1)(4), F.A.C. Maintenance (1) NH 352 10D-29.122(1)(a), F.A.C. (2) NH 357 10D-29.122(1)(f), F.A.C. Infection Control (1) NH 365 10D-29.123(3)(a), F.A.C. Disaster Preparedness (1) NH 404 10D-29.126(5), F.A.C. Statutory Requirements (1) NH 405 Section 400.165, Fla. Stat. Life-Safety (1) NH 241 10D-29.119, F.A.C. (2) NH 250 10D-29.119, F.A.C. (3) NH 251 10D-29.119, F.A.C. (4) NH 269 10D-29.119, F.A.C. (5) NH 273 10D-29.119, F.A.C. (6) NH 277 10D-29.119, F.A.C. (7) NH 295 10D-29.121(10)(e), F.A.C. With the exception of the deficiencies listed for NH 3 (administration and management), NH 60 (physician services), and NH 250, NH 251, NH 269, NH 277, and NH 295 (life safety), Hialeah concedes that the deficiencies noted by the Department were appropriate. 3/ Accordingly, resolution of the question of which rating should be accorded Hialeah is dependent upon the propriety of seven disputed deficiencies. The Administration and Management Deficiency: The deficiency noted as NH 3 found: The provision for the resident's rights to privacy during treatment and care was not routinely adhered to. On the morning of July 24, 1985, staff members were observed attending to residents in rooms 7 and 8 of the Center Court while other residents were in the rooms and without the use of the portable privacy curtains. Chapter 400, Part 1, F.S. 10D-29.104(1)(6), F.A.C. Section 400.022(1)(h), Florida Statutes, accords a nursing home resident a right to privacy during treatment and care. Hialeah's failure to use available portable privacy curtains while patients were being bathed violated their right to privacy, and NH 3 was properly cited. The Physician Services Deficiency: The deficiency noted as NH 60 found: There was no documented evidence to verify that staff incident reports were reviewed by the Medical Director. 10D-29.107(2)C, F.A.C. Rule 10D-29.107(2), F.A.C., provides in pertinent part: Responsibilities of the Medical Director . . . shall include, at a minimum, the following: * * * (c) Reviewing reports of all accidents or unusual incidents occurring on the premises and identifying to the facility Administrator hazards to health and safety . . . . The proof in this case established that the Medical Director did review all incident reports; Rule 10D-29.107(2), F.A.C., does not require documentation. Accordingly, deficiency NH 60 was not substantiated. The Life-safety Deficiencies: The life-safety surveyor noted the following disputed deficiencies: NH 250: One required-stairway from the second floor discharges internally at the first floor and is not enclosed or separated to provide exiting directly to the exterior. This is a repeat deficiency. Architectural plans must be submitted to Jacksonville Plans and Construction Section for approval, indicating physical changes required to this deficiency, prior to corrective action . . . . * * * NH 251: The southwest exit door to 27th Street was locked and exit lights were removed. This created a dead end area with only one means of exiting for the south portion of the center court. This is part of a repeat deficiency form (sic) 1984 survey. * * * NH 269: a storage closet in the activities office is not protected by the automatic sprinkler system. * * * NH 277: The following air conditioning deficiencies were found: 1. The heat sensor for the air conditioner unit located on the first floor at the dining room did not activate properly when tested. NH 295: Rooms where soiled linen is stored and soiled utility rooms are not exhausted to the exterior in accordance with Table II. 4/ Hialeah asserts that the Department has waived or deleted deficiency NH 250, or is estopped from counting it as a deficiency for rating purposes. Hialeah's assertion is unpersuasive. The record reveals that during the October 24, 1984 life-safety survey, Hialeah was cited for the same deficiency, NH 250/K32, that is subject matter of these proceedings. 5/ In response to Hialeah's request for a waiver of this deficiency, the Health Care Finance Administration (HCFA) advised Hialeah by letter of January 28, 1985: We have reviewed your request for a waiver of items K-32 . . . cited as deficiencies to you. Based on this review we concur with the State Agency's recommendation to deny this request. We expect you to submit an accept- able Plan of Correction to these deficiencies to the State Agency within 15 days of the date you receive this letter. We are notifying the State of this action. Notwithstanding the unequivocal denial of Hialeah's request for waiver, a life- safety follow-up inspection on April 17, 1985, revealed that the deficiency had not been addressed or corrected. As of April 26, 1985, the date Hialeah submitted its renewal application which is the subject matter of these proceedings, a plan of correction had still not been submitted nor had the deficiency been corrected. 6/ At this juncture, faced with an uncorrected deficiency from its last survey, Hialeah submitted its second request for waiver of NH 243/K 32. 7/ Hialeah's request for waiver, dated May 23, 1985, was forwarded by the Department's Miami office to the Director of its Office of Licensure and Certification on July 23, 1985, with a recommendation of denial predicated on HCFA's previous action. Before the Department acted, however, the results of the July 29 - August 1, 1985 survey were published and the same deficiency cited. On October 30, 1985, the Department responded to Hialeah's May 23, 1985 request for waiver, as well as the results of the July 29 - August 1, 1985 survey. That letter provided: A thorough review has been made of the citations found in OPLCM report of life safety deficiencies found during the survey conducted July 29 - August 1, 1985. As a result of that survey NH 250; NH 277 item #2, NH 282, and NH 219 will be deleted from the report . . . . Your letter of July 23, 1985 (sic) addressed to Alvin Delaney requesting waivers of items K 32 . . . cannot be granted and corrections must be made . . . . However, by letter of December 12, 1985, the Department advised Hialeah that: the indication . . . (in my letter of October 30) . . . that NH 250 citation related to a second floor stairway would be deleted as a deficiency was an error . . . and that deficiency must be corrected. Hialeah's assertion that NH 250 was waived or deleted by the Department is contrary to the evidence. Hialeah's assertion that the Department is estopped from raising that deficiency because of its delay in passing on Hialeah's "second" request for waiver is equally unpersuasive. Hialeah knew of the deficiency because of the October 24, 1984 survey, knew by letter of January 28, 1985, that the deficiency would not be waived, and took no action to correct the deficiency. The fact that the Department erroneously advised Hialeah that NH 250 was deleted did not prejudice Hialeah since such announcement was made after the current survey. Further, that letter affirmatively advised Hialeah that K 32 (the federal equivalent) could not be waived. In sum, NH 250 was properly cited as a deficiency. Hialeah asserts that NH 251 was improperly cited because it had complied with an "alternative plan of correction," approved by the Department, which allowed the 27th Street exit to remain locked so long as staff carried keys to the exit. The proof supports Hialeah's assertion. Since staff do carry keys, NH 251 was improperly cited. Hialeah's assertion that NH 269 was improperly cited because the closet in question measured less than 100 square feet is unfounded. The closet was created by erecting a partition in an existing room, and was used for the storage of activity supplies, including combustibles, for nursing home residents. The life-safety code required that the subject closet be sprinkled, and the Department had no policy which deviated from the code. Accordingly, NH 269 was properly cited. Hialeah's assertion that NH 277(1) was improperly cited because the heat sensor was not correctly tested is unfounded. At the time of inspection the heat sensor was properly tested and failed to function. Therefore, NH 277(1) was properly cited. Hialeah's assertion that NH 295 was improperly cited, because cited on a consultative visit, is not supported by the record. NH 295 was cited as a result of the July 29 - August 1, 1985 life-safety inspection, not a consultative visit, and its citation was proper. Conditional vs. Superior Rating: The parties have stipulated that if Hialeah meets the requirements for a standard rating that it is likewise entitled to a superior rating. To qualify for a standard rating Hialeah must have no more than 20 Class III deficiencies and no more than 5 Class III deficiencies in the specific areas delineated by Hialeah's Exhibit 20, Item 3. While each of the cited deficiencies are Class III, and the number of deficiencies correctly cited do not exceed 20, Hialeah amassed more than 5 deficiencies in the area designated by Rules 10D-29.119, 10D-29.121, 10D-29.123, and 10D-29.125. Accordingly, Hialeah does not qualify for a standard or superior rating but, rather a conditional rating.
The Issue The issue presented is whether Section V. B. 7. of the Florida Title XIX Long-Term Care Reimbursement Plan which is incorporated in Florida Administrative Code Rule 59G-6.010 is an invalid exercise of delegated legislative authority.
Findings Of Fact Petitioner, Manor Pines Convalescent Center, LLC, operates a skilled nursing home located in Ft. Lauderdale, Broward County, Florida, known as Manor Pines Convalescent Center. Manor Pines currently participates in the Medicaid program and has been issued provider number 25417700. Respondent, Agency for Health Care Administration, administers the Florida Title XIX Long-Term Care Reimbursement Plan (hereinafter "the Plan") which is incorporated by reference into Florida Administrative Code Rule 59G-6.010 and which establishes the methodology for determining reimbursement to nursing homes for the care provided to Medicaid beneficiaries. In accordance with the Plan, nursing homes participating in the Medicaid program are reimbursed by Medicaid on a per diem basis. The Medicaid per diem rate consists of four cost components: the operating costs component, the indirect patient care component, the direct patient care component, and a property component. Rates are calculated by following the provisions of the Plan and are cost-based in nature. Medicaid rates are normally set twice per year, once in January and again in July. The Plan contains numerous cost-saving mechanisms that are employed to limit a provider's actual costs. Examples of the cost-saving measures are class ceilings, cost ceilings, and targets. Each of those cost-saving measures uses a "lesser of" mechanism to ensure that a provider's Medicaid rate does not exceed the various mechanisms regardless of the actual costs to the provider. The class ceiling limits the amount that any facility in a particular class of providers can be reimbursed in an affected cost component. The class ceilings are based upon the size of the facility and the facility's geographic location. The cost ceiling caps the amount of costs that Medicaid will reimburse in any given component. The target limits check the amount of growth that Medicaid will reimburse a provider in any one component between rate semesters. Additionally, the Plan also contains a provision that is commonly referred to as the "low occupancy adjustment." According to Section V. B. 7. of the Plan, nursing homes are penalized in their reimbursement rates if they do not meet occupancy thresholds. In the version of the Plan in effect on January 1, 2006 (Version XXIX), the low occupancy adjustment provision reduced the reimbursement rate established for nursing homes for each of the reimbursement components (except the property component under the fair rental value system) that make up the nursing homes' Medicaid reimbursement rate. The Agency amended the low occupancy adjustment on July 1, 2006 (Version XXX). The effect of the amendment was that the adjustment no longer affected the direct patient care component and only affected the operating and indirect patient care components of the Medicaid per diem. The low occupancy adjustment is calculated by determining a low occupancy threshold and then reducing the established Medicaid per diem of any provider that does not meet that threshold. The low occupancy adjustment is a statement of general applicability that applies to all nursing homes in Florida that participate in the Medicaid program. In the January 1, 2006, rate-setting semester, Manor Pines' Medicaid per diem was limited by the low occupancy adjustment. Manor Pines was penalized $11.30 per patient day in the operating component, $25.40 per patient day in the direct patient care component, and $15.90 per patient day in the indirect patient care component. In the July 1, 2006, rate-setting semester, Manor Pines' Medicaid per diem was also limited by the low occupancy adjustment. At that time, Manor Pines was penalized $7.61 per patient day in the operating component and $10.23 per patient day in the indirect patient care component. It is illogical to adjust any component of the Medicaid nursing home per diem due to occupancy because the Medicaid per diem is determined based upon an allocation of costs that already factors Medicaid utilization in the methodology. Simply put, Medicaid's share of costs is limited in the per diem rate by a facility's Medicaid utilization. Further limiting those costs based upon occupancy creates a penalty that has no basis in law or fact. At the time of the final hearing in this cause, Manor Pines had been participating in the Medicaid program for four or five years after 35 years as a private-pay facility. Nearly two-thirds of all residents in nursing homes in Florida and in Broward County are Medicaid recipients. However, the low occupancy adjustment creates a disincentive to accept Medicaid residents because a nursing home affected by the adjustment loses reimbursement on each Medicaid resident in its facility. The low occupancy adjustment is illogical because it creates this disincentive to admit Medicaid residents. The adjustment is illogical because a facility attempting to increase its occupancy to escape the adjustment must admit two Medicaid-eligible individuals for every individual that is not Medicaid-eligible. Yet, each Medicaid-eligible patient causes the facility affected by this adjustment to lose more money. The effect, therefore, of this adjustment is that it actually and illogically hampers the facility's ability to increase its occupancy and ultimately escape the penalty. The Legislature has created five different diversion programs that are designed to divert people eligible for nursing home care from nursing homes to home- and community-based services. One of the major diversion projects has helped to reduce nursing home occupancies in Broward County. It has created a reduction in the overall need for nursing home beds in Broward County despite increasing population and, therefore, has created increased competition for nursing home residents among the nursing home community. The low occupancy adjustment forces nursing homes to recruit and retain residents in their facilities, contrary to the legislative intent enumerated in the various diversion statutes. The low occupancy adjustment illogically imposes a penalty based upon occupancy when the Legislature is actively creating programs designed to reduce nursing home occupancies. Nursing homes are required to provide minimum staffing hours to their residents. During the January 1 and the July 1, 2006, rate semesters, Manor Pines complied with those minimum staffing requirements. The costs, as stated in the direct care component of the January 1, 2006, rate sheets, accurately reflect the costs associated with complying with the minimum staffing requirements. The low occupancy adjustment has created a situation at Manor Pines where in order to meet the minimum staffing requirements, Manor Pines has had to reduce staff in other areas, has had to forego completing certain repairs brought on by recent hurricanes, and has cancelled numerous projects at the facility that were intended to improve and enhance the facility in the eyes of prospective nursing home residents, such as replacing crank beds with electric beds. The addition of new nursing home beds in Florida has been under a moratorium for years and will be for, minimally, four more years unless modified by law. Despite increasing population, there has been no corollary increase in nursing home residents. The statistics demonstrate the success of the legislative programs to divert residents from nursing homes, and they render the Agency's low occupancy adjustment a penalty, unsupported by reason.
The Issue Whether the Agency for Health Care Administration found deficiences at Petitioner's nursing home sufficient to support issuance of a conditional license.
Findings Of Fact Petitioner, Tampa Health Care Center, is a nursing home in Tampa, Florida, licensed by and subject to regulation by the AHCA pursuant to Chapter 400, Florida Statutes. The AHCA conducted a relicensure survey of the Tampa Health Care Center on March 25-28, 1996. During the survey, the agency reviewed twenty-four randomly selected care plans maintained at the Tampa Health Care Center. A care plan is an individualized document which describes how the facility will provide for the needs of a resident. The care plan is the result of a cooperative effort of various health care professionals who may work with the resident. Those providing input for the care plan include the following: nurse, dietician, physical therapist, and mental health and social service professionals. A care plan, along with doctor's orders and treatment sheets, serve as a workable tool in delivering services to a resident. As a result of the March 1996 survey, the AHCA determined that nine of the twenty-four care plans reviewed were deficient. Despite the problems cited in the March 1996 survey, the AHCA made no finding that the well-being of any of the residents was in jeoparady because of the cited deficiencies. Consistent with its practice and policy, the AHCA gave Tampa Health Care Center until April 28, 1996, to correct the care plan deficiencies found in March 1996. The AHCA returned to the facility on May 29, 1996, and conducted a follow-up survey to determine whether previously cited care plan deficiencies had been corrected. During the follow-up survey, the AHCA reviewed fourteen randomly selected care plans. Of the fourteen care plans reviewed, one was found to be deficient. The care plans reviewed during the follow-up survey on May 29, 1996, were not the same care plans reviewed during the March 1996 survey. Based on the May 29, 1996 follow-up survey, the AHCA concluded that the care plan of Resident 5-A had not been reviewed, revised, and updated to address current problems. Furthermore, the AHCA had determined that the care plan included an "unrealistic goal." As a result of its perceived deficiencies with the care plan, the AHCA concluded that Resident 5-A, the resident for whom the care was prepared, did not receive the necessary care and services to attain or maintain her highest practical level of physical functioning. The AHCA initially designated the care plan deficiency as a Class II deficiency. However, pursuant to an informal dispute process, the AHCA changed its classification of the care plan deficiency to a Class III deficiency. The care plan deficiency found by the AHCA involved four areas of concerns relative to Resident 5-A: (1) pressure ulcers, (2) weight, (3) mobility, and (4) perceived eating and swallowing difficulties. Resident 5-A developed a pressure ulcer on or about April 15, 1996. By May 2, 1996, the resident had developed three more pressure ulcers. An evaluation of the pressure ulcers, conducted on May 2, 1996, determined that the ulcers were "unavoidable" due to the medical condition and medical history of the resident. Treatment of the pressure ulcers was addressed and carried out pursuant to doctor's orders, nurse's notes, treatment sheets, and the complete pressure ulcer records of Resident 5-A. Moreover, the care plan of the resident, revised on May 16, 1996, adequately addressed treatment of the resident's pressure ulcers. The AHCA requires that care plans be revised every three months, unless there is a significant change in the resident's condition in the interim. The care plan for Resident 5-A was revised within the three month interval as required by the AHCA. In light of this resident's medical condition and medical history, the occurrence of the pressure ulcers did not represent a significant change requiring a revision of the care plan prior to the scheduled revision date. The AHCA also found that there was a deficiency in the rendering of treatment and care for the resident's pressure ulcers by failing to use a pressure relieving mattress. The undisputed evidence is that the Tampa Health Care Center provided the resident with this device. However, the special mattress was absent during part of the follow-up survey because the resident's bed was being repaired. Apparently the AHCA surveyor was unaware, and facility staff did not notify her, that the bed with the pressure relieving mattress had been replaced the afternoon of May 29, 1996, and prior to the conclusion of the survey. A second concern of the AHCA involved the surveyor's assumption that because the resident was receiving her food in the form of thickened liquids, the resident had difficulty swallowing. Based on this assumption, the AHCA determined that the care plan approach, to have plain water at the resident's bedside, because of her risk for urinary tract infections, was inappropriate and put the resident at risk of choking. Notwithstanding the AHCA's assumption to the contrary, it was undisputed that a speech evaluation of the resident performed on April 23, 1996, concluded that the resident had no difficulty in swallowing. Moreover, the undisputed evidence was that the resident received thickened liquids at her own request. A third area of concern regarding the care plan involved Resident 5-A's mobility and the goals and approach related thereto. From observing Resident 5-A sleeping, the AHCA surveyor concluded that the resident had contractures of the upper extremities which would prevent the resident from moving herself any distance in a wheelchair. Thus, the AHCA determined the care plan had an unrealistic goal in that it stated that the resident would be able to move herself in wheelchair to dayroom for socialization by next review date. The AHCA misread and improperly characterized the statement. First, the statement was not a goal, but an approach to be utilized to assist the Resident 5-A in achieving established goals. The two goals were that: (1) the resident would be able to tolerate being out of bed and in the wheel chair by the next review and (2) the resident would be able to move herself a short distance in the wheelchair. The approach was that staff, not the resident, would wheel the resident to the day room for socialization. Second, contrary to the AHCA conclusion regarding the resident's mobility, unrebutted evidence established that the resident did not have contractures of the hands. Thus, the established goal was realistic in that it was possible for Resident 5-A to manipulate the wheelchair a short distance, although not the distance required to get to the dayroom. Finally, the AHCA noted as a deficiency that the care plan for Resident 5-A failed to include the dietitian's recommendation of May 10, 1996, that the resident be weighed weekly. Tampa Health Care Center's policy in this regard is to weigh residents once a month unless more frequent weights are ordered by the resident's doctor. Weekly weights had not been ordered by Resident 5-A's physician. Also, there appeared to be no need to perform weekly weights since the resident's weight was stable according to federal guidelines recognized by the AHCA and applicable to nursing homes. Furthermore, the AHCA was concerned that the goal on the care plan, that the resident will have no significant weight loss by next review, was not measurable. This concern is unfounded because federal guidelines, applicable to nursing homes, including Tampa Health Care Center, define what constitutes a significant weight loss by a specified percentage. By applying this percentage to Resident 5-A's consecutive monthly weights, a determination can be made as to whether the resident has experienced any significant weight loss. Therefore, the goal, that there will be no significant weight loss, is measurable. The AHCA failed to establish that Resident 5-A did not have a care plan which was reviewed, revised, and updated as appropriate to describe the necessary care and services to attain or maintain her highest practicable level of physical function. No evidence was presented by the AHCA of any alleged violation related to staffing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Agency for Health Care Administration enter a final order issuing a standard rating to the Tampa Health Care Center and rescinding the conditional rating. DONE and ENTERED this 13th day of February, 1997, in Tallahassee, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 13th day of February, 1997. COPIES FURNISHED: Donna H. Stinson, Esquire Broad and Cassel Suite 400 215 South Monroe Street Post Office Drawer 11300 Tallahassee, Florida 32302 Thomas W. Caufman, Esquire Agency for Health Care Administration 7827 North Dale Mabry Highway Tampa, Florida 33614 Sam Power, Agency Clerk Agency for Health Care Administration Suite 3431 Fort Knox, Building Three 2727 Mahan Drive Tallahassee, Florida 32308 Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308 Douglas M. Cook, Director Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308
The Issue Whether there were deficiencies at Naples sufficient to support Agency for Health Care Administration’s (AHCA) decisions to issue Heritage Health Care & Rehab Center - Naples (Naples) a Conditional license on March 11, 1999, and continue that rating until June 7, 1999.
Findings Of Fact Background Naples is a nursing home located in Naples, Florida, licensed by and subject to regulation by the Agency for Health Care Administration. Each year, Naples is surveyed by AHCA to determine whether the facility should receive a Superior, Standard, or Conditional licensure rating. On March 11, 1999, AHCA conducted an annual survey of Naples. After that survey was completed, AHCA alleged that there were several deficiencies at Naples which violated various regulatory standards that are applicable to nursing homes. However, AHCA agreed that the only deficiency relevant to the DOAH hearing was its allegation that Naples violated the requirement, contained in 42 CFR Section 483.13(c), that a nursing home develop and implement policies that prohibit abuse and neglect of residents. AHCA issued a survey report in which this deficiency was identified and described under a "Tag" numbered F224. AHCA is required to assign a federal "scope and severity" rating to each deficiency identified in the survey report. AHCA assigned the Tag F224 deficiency identified in the March survey report a federal scope and severity rating of "G," which is a determination that the deficient practice was isolated. AHCA is also required to assign a state classification rating to each deficiency identified in the survey report. After the March 11th survey, AHCA assigned the Tag F224 deficiency a state classification rating of Class II which, under AHCA’s own rule, is a determination that the deficiency presented "an immediate threat to the health, safety or security of the residents." Because AHCA determined that there was a Class II deficiency at Naples after the March 11th survey, it changed Naples’s Standard licensure rating to Conditional, effective March 11, 1999. By law, Naples was required to post the Conditional license in a conspicuous place in the facility. Naples was also required to submit a Plan of Correction (the "Plan") to AHCA. Although the plan did not admit the allegations, it did provide steps that the facility would implement to address the deficiencies cited in the survey report. The Plan also represented that all corrective action relating to the Tag F224 deficiency would be completed by April 10, 1999. AHCA returned to Naples on March 29, 1999, March 30, 1999, and April 22, 1999, and re-surveyed the facility. After each survey, AHCA determined that there were deficiencies at Naples, but stipulated prior to hearing that none of these deficiencies were justification for the issuance or the continuation of the Conditional license at issue in this case. After the April 22, 1999, survey, AHCA determined that Naples completed all corrective action with regard to the March 11, 1999, Tag F224 deficiency and complied with the requirements of 42 CFR Section 483.13(c). After the June 7, 1999, survey, AHCA determined that Naples was in substantial compliance with all applicable regulations and issued Naples a Standard license effective that date. Naples filed a Petition for Formal Administrative Hearing with AHCA to challenge the findings of all of the above- cited surveys, as well as AHCA’s decision to issue Naples a Conditional license. That Petition was referred to the Division of Administrative Hearings and a hearing was conducted. At hearing, the parties were ordered to file their proposed recommended orders on or before September 15, 1999. Finding 1; Tag F224; March 11, 1999, Survey Report: An unnamed resident at Naples who had fragile skin and a history of skin tears sustained a skin tear to her arm on March 8, 1999. Naples’ staff obtained a doctor’s order for a dressing to be applied to the area and changed daily. The dressing was applied as ordered except for an isolated instance when it was not applied on March 9, 1999. On March 10th, AHCA’s surveyor observed that the dressing had not been changed on the previous day. She interviewed the nurse who had obtained the order for the dressing, and was told that the dressing had not been changed on March 9, 1999, because the nurse forgot to print out the order from the computer and place it in the Resident’s medical record. The nurse immediately changed the Resident’s dressing. The surveyor did not observe the nurse changing the dressing. Instead, she went back into the Resident’s room after the dressing was changed and observed that the area covered by the dressing was bleeding. The surveyor inferred from that observation that the old dressing had stuck to the Resident’s skin because of the failure to change the dressing on March 9th. She also inferred that the nurse who changed the old dressing had not moistened it prior to removing it so as to cause it to bleed. The surveyor did not interview the nurse to verify her suspicion that the nurse changed the dressing incorrectly. Instead, she alleged that Naples neglected the Resident because the nurse failed to change the dressing pursuant to the doctor’s order, and because she changed the dressing so as to cause the Resident to bleed. Naples does not dispute that the Resident’s dressing was not changed on the March 9th. However, the evidence was undisputed that the failure to change a dressing for one day presented no risk that the Resident’s skin tear would worsen or become infected. In fact, the skin tear did not worsen as a result of the facility’s failure to change the dressing on March 9th. AHCA’s surveyor conceded that she had no evidence that the skin tear worsened and thus failed to provide any evidence that the failure to change the dressing presented any risk of harm to the Resident. Moreover, AHCA’s surveyor erroneously concluded that the nurse who changed the dressing caused it to bleed. The nurse moistened the old dressing prior to removing it and placed a new dressing on the area; the skin tear did not bleed during that process. The evidence was clear that the old dressing would not have stuck to the skin tear even if the dressing had not been changed on March 9th because, on March 8th, she applied a triple antibiotic ointment that acted as a barrier between the gauze dressing and the Resident’s skin. Finally, the Resident’s skin was extremely fragile and, in the past, the Resident had caused her own arm to bleed by slighting bumping it. Finding 2; Tag F224; March 11, 1999, Survey Report: Resident 14 was issued a doctor’s order for a dressing to a lesion on her back. It stated that the dressing was to be changed daily. AHCA’s surveyor observed on March 10, 1999, that Resident 14 had a dressing that had not been changed since March 8, 1999, covering the lesion. The surveyor further observed that the dressing had become displaced so that the tape used to secure the wound was partially covering the wound. Despite this isolated failure to change the dressing, the surveyor cited Naples for neglecting Resident 14. Naples conceded that the Resident 14's dressing had not been changed on March 9th as ordered. However, as it did with the unnamed Resident in Finding 1, Naples demonstrated that the failure to change Resident 14’s dressing was isolated and did not present any risk that the Resident’s lesion might worsen or become infected. Naples also showed that the lesion did not, in fact, worsen. AHCA’s surveyor conceded that she had no evidence that the failure to change the dressing was repeated conduct, or that the lesion worsened, and thus failed to present any evidence that the failure to change the dressing presented any risk of harm to Resident 14. Finding 3; Tag F224; March 11, 1999, Survey Report: Resident 21 was a demented woman with a history of anxiety, aggressive behavior toward others, and attention- seeking behaviors. At approximately 1:00 a.m. on March 10th, Resident 21 was found striking her forehead with a small picture frame stating, "I’m going to kill myself, I’m tired of all this." She was not hitting herself hard enough to inflict any injury to herself, and did not damage the picture frame. Nonetheless, a nurse stopped the Resident and counseled the Resident, who then stated, "I’ll stop and go to sleep." After the nurse left the room, the Resident repeated her action. The nurse immediately returned, removed the frame, and called the Resident’s physician. The physician determined that Resident 21 was not suicidal, and ordered Ativan (a medicine given for anxiety) and a psychiatric consultation for the Resident. Twenty minutes after she was given the Ativan, Resident 21 got up and sought additional attention by pushing her wheelchair in the hallway. She was redirected to her bed by a certified nursing assistant ("CNA") and, while being put to bed, grabbed packets of air freshener and threatened to eat them. The packets were immediately removed from the Resident and taken from her room by the CNA. Twenty minutes after being put to bed by the CNA, Resident 21 arose and returned to the hallway and attempted to enter other residents’ rooms. She was redirected by staff to her room and bed, whereupon she stated to the staff that "The nurse gave me water. I’m going to kill myself." Twenty minutes after this incident, Resident 21 sought attention by playing her radio loudly, and stated, "I’m going to kill myself." Another dose of Ativan was given to her and shortly thereafter, she went to sleep. Although staff routinely checked on Resident 21, there were no further incidents. The following morning, Resident 21 was seen by her psychiatrist who determined that she was not suicidal. Instead, he concluded that Resident 21’s isolated actions during the previous night were attention-seeking behavior which did not indicate that she intended to kill herself. He ordered additional medications for her and, as a precaution, wrote an order in her record to "remove all dangerous objects from her room and monitor resident closely." When AHCA’s surveyors entered the facility on March 10, 1999, picture frames and mirrors were present in Resident 21's room. The surveyor asked the staff about the level of monitoring for the Resident, and whether the facility had a policy that defined and implemented precautions for suicidal residents. The surveyor was not satisfied and cited the facility for neglecting the Resident because it failed to remove "dangerous objects" from her room, failed to adequately monitor her, and failed to have a suicide precaution policy. The surveyor’s conclusion that Naples neglected Resident 21 was predicated on her belief that Resident 21 was suicidal. However, the Resident's psychiatrist testified unequivocally that the Resident was not suicidal. The Resident did not strike herself hard, nor with the intent to hurt herself, but was engaged in attention-seeking actions. She demonstrated no intent to commit suicide. The psychiatrist's diagnosis, and his (and her regular physician’s) decision to treat her condition with medications were effective. She exhibited no further similar behavior. AHCA’s surveyor did not interview Resident 21’s psychiatrist prior to making her allegations of neglect, and thus did not know that the psychiatrist had determined that the Resident was not suicidal. At hearing, she acknowledged that the psychiatrist’s conclusion would have presented "a whole different story." AHCA’s surveyor also erroneously concluded that the Resident was not adequately monitored. The nursing notes concerning Resident 21 contained over thirty entries between March 10th and March 12th describing observations of the Resident. These notations exceeded any applicable nursing standard, and more than met the requirements contemplated by the psychiatrist when he ordered the staff to monitor the Resident closely. The surveyor determined that the nurses’ notes reflected inadequate observation of the Resident because the notes did not reflect that the Resident was being observed every fifteen minutes, and then hourly for twenty four hours. However, the surveyor failed to offer any regulation or other source to support her contention that monitoring the Resident every fifteen minutes was the appropriate standard. To the extent that the standard was based upon the surveyor’s assumptions that Resident 21 was suicidal or because the psychiatrist ordered that level of monitoring, Naples demonstrated that those assumptions were incorrect. AHCA’s surveyor also erroneously concluded that the failure to remove picture frames and mirrors from Resident 21’s room was a violation of any doctor’s order or applicable standard of care. The requirement that dangerous objects be removed from the Resident’s room came from the order of the Resident’s psychiatrist, and he testified that he did not intend for the facility to remove all picture frames or mirrors from the Resident’s room. Instead, he only intended his order to cover objects such as knives or letter openers. He clarified this interpretation of his order to Naples’ staff during the survey. Naples is not required by any federal or state regulation to have a suicide prevention policy. Indeed, such a policy would never have an opportunity to be implemented even if it existed. If a resident at Naples is determined to be suicidal, the resident would be immediately transferred to a psychiatric hospital for observation, evaluation and treatment. Naples Policy Regarding Abuse and Neglect: Naples has a written policy that prohibits abuse and neglect of its residents. It also sets forth a process for investigating incidents of suspected abuse and neglect that includes suspending staff who might have been involved in any incident while the investigation is pending. Additionally, Naples implements policies required by federal regulations that help to assure that its residents are not neglected. It conducts background checks of employees, and only those who have no history of abuse or neglect are hired to work at Naples. Furthermore, employees are instructed and encouraged to inform the administration about any incident which might be considered abuse or neglect of a resident, and are provided with seminars which address issues of abuse and neglect of residents. Naples conducts random audits of its residents’ medical records to insure that residents are receiving their required care. These policies have been successful. Additionally, Naples demonstrated that it followed its written policy with regard to the incidents cited under Tag F224 of the March survey report. Pursuant to that policy, the facility’s Director of Nursing investigated all of the cited incidents in a timely manner and suspended one nurse pending that investigation. The Director of Nursing appropriately concluded that neglect of the residents cited in the report had not occurred and did not call any investigative agency regarding the incidents.
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 Naples and rescinding the Conditional rating. DONE AND ENTERED this 12th day of November, 1999, in Tallahassee, Leon County, Florida. ___________________________________ WILLIAM R. PFEIFFER Administrative Law Judge Division of Administrative Hearings 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 this 12th day of November, 1999. COPIES FURNISHED: R. Davis Thomas, Jr., Esquire Donna Stinson, Esquire Broad and Cassel 215 South Monroe, Suite 400 Post Office Drawer 11300 Tallahassee, Florida 32302 Karel L. Baarslag, Esquire Agency for Health Care Administration 2295 Victoria Avenue, Room 309 Post Office Box 60127 Ft. Myers, Florida 33901-6177 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
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 Whether Respondent committed the violation alleged in the Administrative Complaint, and, if so, what sanction(s), if any, should be imposed.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Respondent operates a 120-bed Skilled Nursing Facility located at 1990 S. Canal Drive, Homestead, Florida 33035 (Facility) pursuant to a license issued by the Agency. At all times material to the instant case, Edwin Coelho was the administrator of the Facility; Linda Howell was the LPN clinical coordinator at the Facility; Diane Doyle was the Facility's staff educator and infection control nurse; and Isela Palacios and Rosa Romero were Certified Nursing Assistants (CNAs) on the Facility's staff. At all times material to the instant case, E. H. was a resident of the Facility. On July 8, 2004, prior to her admission to the Facility, E. H. suffered a spiral/oblique fracture of her right distal tibia and fibula. Such a fracture is "usually caused by some sort of torque on the bone." At the time of her injury, E. H. was an 89-year-old woman with osteoporosis2 who had been "nonambulatory for nine years." Her bones were "very fragile" and "brittle" and "subject to easily be[ing] fractured" as a result of mere "movement." E. H. was treated by Felix Stanziola, M. D., an orthopedic specialist. Because of E. H.’s age and condition, Dr. Stanziola treated E. H.'s fracture conservatively by "align[ing] the bones and then put[ting on] a [long leg] cast." No surgery was performed. In August of 2004, E. H. became a resident of the Facility. Her right leg was still in a "long leg cast" at the time of her admission. On September 1, 2004, E. H. was transported from the Facility to Dr. Stanziola's office, where Dr. Stanziola removed her "long leg" cast and put her in a "short leg cast." On September 29, 2004, E. H. was again transported from the Facility to Dr. Stanziola's office. During this visit, Dr. Stanziola determined that the "fracture was healed" and, based on this determination, removed the cast he had put on E. H.'s leg the previous visit. Because E. H. was experiencing "knee pain" as a result of "severe arthritis," Dr. Stanziola "ordered physical therapy" for her. Throughout her stay at the Facility, both before and after the cast was removed, E. H. was nonambulatory and bedridden, requiring "total care" except for feeding.3 Facility staff had to reposition her in bed every two hours "because she could not reposition herself." When she needed to be moved either out of, or back onto, her bed (and the need arose "virtually every day"), Facility staff used a Marisa "sling lift" (Marisa) to make the transfer. This was "the safest way to move her." Other non- weight bearing residents in the Facility were also moved using a Marisa. A Marisa is a mobile, electric lift consisting of a U- shaped base and an upright post, on which is mounted a curved arm with a "tilting spreader bar." A head and body support sling, which "cradles" and supports the resident above the knees, is attached to the "tilting spreader bar." The operating controls are located on the back of the upright post. There is also a "remote" device that can be used to operate the lift. In making a transfer using the Marisa, the curved arm is first positioned over the resident. Then, two Facility staff members, situated in front of the resident, with the aid of a "Maxislide," slide the sling "right up under [the resident's] buttocks so it supports [the resident] from the knees back." To do this, the resident's "legs have to be lifted manually," but "only a very small amount." During the lift, the resident's lower legs (beneath the knee), which are unsupported, can swing freely. At all times material to the instant case, the Facility had policies and procedures in place that its staff were to follow in making a "patient lift/transfer." These policies and procedures included the following, among others: Every precaution is used to safeguard the patient when making a mechanical or manual lift, transfer or move. Plan any lift, transfer or move ahead of time. Have the proper equipment or personnel on hand. Ensure everyone involved in the task understands his or her role in the transfer, lift or move. Arrange the environment as necessary. Make sure there is appropriate space to maneuver and work in to ensure a safe lift, transfer or move. * * * Prior to using a mechanical lifting device the nurse will ensure proper planning for the transfer/lift has been accomplished and will request assistance [when] required for any difficult lift/transfer. CNAs Palacios and Romero received training in these policies and procedures prior to December 8, 2004. E. H. received a shower every other day in the shower room, which was two rooms down the hallway from the room E. H. occupied at all times material to the instant case. In the shower room, she was bathed while seated in a shower chair (which had wheels) by "shower CNAs." The shower chair that was used did not have a footrest, nor any other device or feature to prevent E. H.'s lower legs from swinging freely when being wheeled in the chair. The "shower CNAs" had to lift E. H.'s legs to bathe them properly. On December 8, 2004, CNA Palacios, with the assistance of another CNA, used the Marisa to transfer E. H. from her bed to a shower chair. The transfer was safely accomplished, without incident, like every prior transfer of E. H., since her arrival at the Facility, had been. CNA Palacios then wheeled E. H. in the shower chair to the shower room, where the "shower CNAs" bathed E. H. After bathing E. H., the "shower CNAs" placed a "covering" on her and wheeled her into the hallway, where CNA Palacios was waiting. CNA Palacios then wheeled E. H. back to E. H.'s room. E. H. had remained in the shower chair the entire time she had been out of her room. E. H.'s room (which she shared with another resident) was a "standard" 12-foot by 24-foot semi-private room with a small bathroom (having just a sink and toilet). When E. H. returned from her shower on December 8, 2004, in her room (taking up floor space) outside the bathroom, were: two beds (eight feet by three feet); two night stands (18 inches by 30 inches); two wardrobe closets (23 inches by 22 inches); two "over the bed" tables; a reclining chair (30 inches by 30 inches); a television stand (24 inches by 14 inches); an oxygen concentrator; a high back chair (22 inches by 26 inches); E. H.'s wheelchair; and the shower chair in which E. H. was seated. These were the same items that had been present in the room earlier that day when E. H. had been moved (safely, with the Marisa) from her bed to the shower chair. On Respondent's side of the room (the "A" side, which was closest to the door) were one of the beds, one of the nightstands, one of the "over the bed" tables, both of the wardrobe closets, the high back chair, the wheelchair, and the shower chair (with E. H. in it). The remaining items were on the other resident's side of the room (the "B" side). The high back chair was located against the wall next to the wardrobe closets (which were to the left as one entered the room). The high back chair was in the room, not for E. H. or her roommate to sit on, but for visitors to use. After wheeling E. H. back into the room in the shower chair, CNA Palacios went to get the Marisa, which was "right outside the door" to the room. There, she met CNA Romero, who volunteered to help CNA Palacios transfer E. H., with the Marisa, from the shower chair to E. H.'s wheelchair. CNA Palacios then went back into E. H.'s room with the Marisa, followed by CNA Romero. The Marisa was positioned so that its curved arm was over the shower chair in which E. H. was seated. CNAs Palacios and Romero then secured E. H. in the sling and the lift began, with CNA Palacios at the controls and CNA Romero next to E. H. (who was facing in the general direction of the door). The wheelchair (into which E. H. was to be placed) was between the shower chair and the high back chair. During the lift, E. H.'s roommate (who was behind a privacy curtain) asked for CNA Palacios' assistance. CNA Palacios responded that she would "be there in a minute," after which she continued to focus her attention on operating the Marisa and completing the lift. Before the lift was completed, CNA Romero advised CNA Palacios that there was blood on the floor directly below E. H.'s right leg. Up until that point in time, nothing unusual had occurred during the lift, such as E. H. bumping into or hitting something or expressing discomfort. Upon being told about the blood, CNA Palacios turned off the Marisa. CNA Romero then removed the covering that the "shower CNAs" had placed on E. H.'s legs. It was apparent that E. H. had suffered a compound fracture (that is, a fracture where "the bone was protruding through the [skin]") of her right lower leg. There was considerable bleeding. The blood was dripping onto the floor in the area beneath the injured leg. There was no blood anywhere else inside or outside the room (other than on E. H. and CNA Romero's pants). Once E. H.'s injury was discovered, nurses were summoned to the room. After the nurses had stabilized E. H.'s leg, the Marisa was turned on again and E. H. was moved back onto her bed. It was not until she was on the bed that E. H. first gave "any indication of discomfort." Emergency rescue workers were called. After they arrived on the scene, E. H. was transported to the hospital by helicopter. X-rays revealed that that E. H. had a "new" spiral/oblique fracture "just above" where she had fractured her leg on July 8, 2004. Shortly after E. H. was taken to the hospital, the Facility began an investigation to determine what had happened to cause her injury. LPN Howell was the staff member put in charge of the investigation. Among the individuals LPN Howell interviewed as part of her investigation were CNAs Palacios and Romero. CNA Palacios was interviewed within an hour of the incident. CNA Romero was interviewed within two and half hours of the incident.4 Both CNAs told LPN Howell that they did not know how E. H. had been injured. CNAs Palacios and Romero were subsequently asked to give written statements about the incident. The written statement CNA Palacios provided read as follows: She came back from the shower on the chair. I put the sling on her back. Rosa help[ed] me. We put the machine Maris[]a [to] get her up. The Mari[]sa pick[ed] her up in the air. Then we put her in the wheelchair. Then we notice[d] blood on the floor. I went out to get nurse [G]eorge. Everybody went to help. I did not hear her foot bump or hit anything. The written statement CNA Romero gave read as follows: I, Rosa Romero was assisting Isela Palacios transferring a resident in . . . Room 304 A from the shower chair to the wheelchair with the hoyer l[i]fter and her leg got caught in it. We didn't notice she was hurt until she was s[it]ting in the wheelchair when we saw lot[s] [of] blood on the floor. Isela and I w[ere] helping each o[ther] and we did everything the right way, the way [it] is supposed to be [done]. Notwithstanding the assertion CNA Romero made in her written statement that E. H.'s "leg got caught in it," there is "nothing [in the Marisa] to get caught in."5 After completing her interviews on December 8, 2004, LPN Howell spoke to her supervisor, Facility Administrator Coelho, who also serves as the Facility's risk manager. Facility Administrator Coelho told LPN Howell that he "was going to check things out himself." To this end, he participated in several "reenactments" of what had transpired in E. H.'s room after she had come back from her shower on December 8, 2004, in an effort to ascertain how E. H. may have injured herself. The "reenactments" took place in E. H.'s room. "[I]tems [in the room] were placed" where, according to CNAs Palacios and Romero, they had been at the time of the incident. Facility Administrator Coelho played the role of E. H. "[O]ne of the CNAs" operated the controls of the Marisa and, using the machine, lifted Facility Administrator Coelho out of the shower chair and into E. H.'s wheelchair. This was done "about three times." At no time did Facility Administrator Coelho come close to "hit[ting] anything inside" the room. The Facility administration submitted required reports concerning E. H.'s injury. LPN Howell prepared the "Federal 5-day Report," which Facility Administrator Coelho reviewed and discussed with her before its submission. This report contained the following "findings of facility investigation": After completion of interviews, the area and equipment involved were checked. It is determined that the area was crowded due to the size of the resident, the size of the shower chair, the size of the w/c, the size of the Marisa lift and the furniture along with the constant request of the other resident in the room distracted the staff when the resident was moved to position the Marisa sling over the w/c. The procedures in place at the time for safety of both residents and staff were being followed but a lack in focus or concentration led to the injury.[6] There is no evidence of intent to do harm on the part of the staff members involved. The staff members were suspended without pay for 5 days and have returned to work effective 12-13-04.[7] Facility Administrator Coelho authored an "Administrative Incident Report," in which he stated that the Facility administrations's investigation revealed "no definitive reason for the accident," but that it "was assumed that in turning the resident while she was on the sling her leg got caught on the high back chair" in the room. He added that the Facility administration was taking action to remove high back chairs from rooms of residents who "ha[d] to be lifted." The high back chairs were removed from E. H.'s room and the rooms of other residents who "ha[d] to be lifted" on or about December 10, 2006. The Facility administration did so only out of an abundance of caution, not because it had determined with any certitude that the presence of the high back chair in E. H.'s room on December 8, 2004, constituted a hazardous condition that resulted in E. H.'s injury. Prior to the incident on December 8, 2004, there had never been a problem at the Facility in lifting E. H. or any other resident in a room with a high back chair. The lifting of residents in rooms set up like E. H.'s had "happened all the time in [the] building" without any resident getting injured. At no time during this period had the Facility been cited by the Agency, during any life safety inspection, for failing to comply with requirements concerning the design and equipping of residents' rooms.8 Having the high back chair in E. H.'s room on December 8, 2004, did not unreasonably expose E. H. to the risk of accidental injury while being lifted with the Marisa. Even with the high back chair in E. H.'s room on December 8, 2004, there was adequate space for trained Facility staff, acting in a reasonably prudent manner in accordance with Facility policy and procedure, to lift E. H. with the Marisa (as had been done in the past) without E. H.'s bumping into something and injuring herself. It is unclear exactly what caused E. H. to suffer a compound fracture of her right lower leg on December 8, 2004.9 What is clear is that this injury was not the result of her having gotten her leg "caught" in the Marisa or on the high back chair while being lifted from the shower chair. During the lift, her leg did not hit against any object in the room.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Agency issue a final order dismissing the instant Administrative Complaint in its entirety. DONE AND ENTERED this 19th day of June, 2006, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 19th day of June, 2006.
