The Issue The issue presented for decision in this case is whether a civil penalty in the amount of $1,400.00 should be imposed on the Respondent for the repeated deficiencies cited in the Administrative Complaint dated September 14, 1998.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: Respondent, Heartland of Zephyrhills ("Heartland"), is a nursing home licensed by and subject to regulation by AHCA, pursuant to Chapter 400, Florida Statutes. Section 400.23(8), Florida Statutes, requires AHCA to evaluate all nursing home facilities and make a determination as to their degree of compliance with the established rules at least every 15 months. The inspection and evaluation is to ensure compliance with applicable state and federal standards. The standards relevant to this case are 42 Code of Federal Regulations (C.F.R.) Section 483.25(c), Florida Statutes, and Rule 59A-4.128, Florida Administrative Code. On August 17-20, 1998, AHCA surveyed Heartland and allegedly found violations of 42 C.F.R. Section 483.25(c), Florida Statutes, which states that a facility must ensure that a resident who enters the facility without pressure sores does not develop pressure sores unless the resident’s clinical condition demonstrates that they were unavoidable, and that a resident having pressure sores receives necessary treatment to promote healing, prevent infection, and prevent new sores from developing. In the parlance of the Federal Health Care Financing Administration Form 2567 ("Form 2567") employed by AHCA to report its findings, this requirement is referenced as "F 314" or "Tag 314." Katherine Robbins is a Registered Nurse with over 20 years experience, including working as a director of nursing in an 86-bed nursing home. She is a federally certified surveyor, and now works for AHCA as a surveyor of long-term care facilities such as nursing homes. Ms. Robbins performed a portion of the survey of Heartland and wrote the deficiency notes under Tag 314 for Resident No. 1. Resident No. 1 was admitted to Heartland on January 29, 1998, with a diagnosis of dementia, osteoarthritis, anxiety, and depression. Ms. Robbins testified that diagnoses of dementia and osteoarthritis indicate a predisposition to the development of pressure sores. She testified that a diagnosis of anxiety could indicate a predisposition to pressure sores, if the patient is receiving psychoactive medications. The initial skin assessment on Resident No. 1 indicated there was no skin breakdown at the time she was admitted. Review of the patient records indicated that skin breakdown was evident on July 26, 1998, when a stage II pressure sore on the coccyx was reported. Pressure sores are graded on a scale from stage I for the least severe to stage IV for the most severe. On August 5, 1998, the facility developed a care plan to deal with the skin breakdown and prevent further breakdown caused by Resident No. 1’s decreased mobility, medications, and lack of awareness of her own needs. The resident was completely unable to care for herself, and was unable to get in and out of a chair or the bed on her own. The approaches set forth in the plan included changing the resident after each incontinent episode, increasing her intake of protein foods, and naps in the afternoon to relieve sitting pressure on the coccyx. Ms. Robbins testified that this plan was not adequate in all respects, but would have been workable had it been properly implemented. On August 17, 1998, the first day of the survey, Resident No. 1 was observed at 9:20 a.m. sitting in a wheelchair in her room. She was observed sitting in the activity room from 11:35 a.m. until 12:50 p.m., at which time she was taken to the dining room for lunch. Following lunch, she was observed sitting in her wheelchair without a change in position until 3:20 p.m., when she was taken to the shower room for a shower. Ms. Robbins testified that allowing the resident to sit in the same position would create pressure on the coccyx, where the resident already had a pressure sore. It is routine preventive care to reposition a resident who has a pressure sore or is at risk of developing pressure sores. On August 18, 1998, Resident No. 1 was observed in her room, sitting in a wheelchair and eating breakfast at 8:15 a.m. She was observed at 12:40 p.m. in the dining room, sitting in a chair without a pressure relieving air flotation jell cushion. Ms. Robbins testified that use of such a cushion would be good practice to help heal a pressure sore. Ms. Robbins testified that she asked the director of nursing about this situation, and that the director of nursing told her that Resident No. 1 was sitting in the wrong chair. The clinical record showed that wheelchair modifications had been included in Resident No. 1’s physical therapy plan, but the resident was not placed in the correct chair. Therapy notes indicated that the goal for the resident was to have a chair that would prevent posterior pelvic pressure and lower the seat so that the resident could maneuver the wheelchair safely. The resident would be able to tolerate sitting up in the wheelchair for three or four hours with repositioning being provided every two hours for bathroom needs and pressure relief. The care plan for Resident No. 1 also called for her to be assisted to bed for a nap in the afternoon. Ms. Robbins observed that the resident was not taken for a nap on either August 17 or August 18, 1998. The survey team made a collective decision to cite the Tag 314 deficiency as a class II deficiency, because the stated care plan for the resident was not followed and this was a repeat licensure deficiency. A class II deficiency is subject to a civil penalty of not less than $1,000. However, the Administrative Complaint erroneously cited this as a class III deficiency and recommended a civil penalty of only $700. The August 17-20, 1998, survey also found alleged violations of Life Safety Code ("LSC") standards set forth by the National Fire Protection Association ("NFPA"), in particular NFPA 90A LSC 12-5.2.1 and 13-5.2.1 air conditioning and ventilation standards. In the parlance of Form 2567, this requirement is referenced as "K 067." Peter Cranfield is a fire protection specialist employed by AHCA. He has over 35 years experience in the design, installation, and sales of fire protection systems, mostly in the private sector, including fire protection systems for nursing homes. Mr. Cranfield participated in the survey of Heartland and cited the facility for the K 067 deficiency. Mr. Cranfield found that the following areas of the facility did not have an operable exhaust ventilation system: the main dietary and dishwasher independent units; the No. 300 wing nurse station toilet room; and the No. 400 wing and No. 100 wing janitor closets. Mr. Cranfield brought these deficiencies to the attention of Heartland’s maintenance director, who agreed upon examination that the exhaust units did not appear to be operational. Mr. Cranfield testified that the maintenance director later told him an electrical malfunction was causing the problem. The K 067 deficiency was noted as a repeat class III citation.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Agency for Health Care Administration enter a final order requiring Heartland of Zephyrhills to pay a civil penalty in the amount of $1,400 for the two cited class III deficiencies. DONE AND ENTERED this 25th day of March, 1999, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of March, 1999. COPIES FURNISHED: Karel Baarslag, Esquire Agency for Health Care Administration 2295 Victoria Avenue Fort Myers, Florida 33906 Terrie Restivo-Mock, Esquire Heartland of Zephyrhills 38220 Henry Drive Zephyrhills, Florida 33540 Sam Power, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308 Paul J. Martin, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308
Findings Of Fact At all times here relevant Fountainhead Nursing and Convalescent Homes, Inc., Respondent, was licensed by the Department of HRS, Petitioner, as a nursing home. On a survey of the nursing home facilities conducted on April 8 and 9, 1980 five Class II deficiencies and twenty Class III deficiencies were reported on HRS Form 553D entitled Classification of Deficiencies for Nursing Home Licensure Requirements (Exhibit 1). These were designated HRS-1, 3, 14, 15 and 20 on Exhibit 1. Because of these Class II deficiencies Respondent was assigned a "C" rating. HRS-1 is a deficiency correctable within 72 hours. HRS-3, 14 and 20 are Class III deficiencies erroneously characterized as Class II deficiencies.
The Issue Whether, based upon a preponderance of the evidence, the Agency for Health Care Administration (AHCA) lawfully assigned conditional licensure status to Harbour Health Center for the period June 17, 2004, to June 29, 2004; whether, based upon clear and convincing evidence, Harbour Health Center violated 42 Code of Federal Regulations (C.F.R.) Section 483.25, as alleged by AHCA; and, if so, the amount of any fine based upon the determination of the scope and severity of the violation, as required by Subsection 400.23(8), Florida Statutes (2004).
Findings Of Fact Based upon stipulations, deposition, oral and documentary evidence presented at the final hearing, and the entire record of the proceeding, the following relevant findings of fact are made: At all times material hereto, AHCA was the state agency charged with licensing of nursing homes in Florida under Subsection 400.021(2), Florida Statutes (2004), and the assignment of a licensure status pursuant to Subsection 400.23(7), Florida Statutes (2004). AHCA is charged with the responsibility of evaluating nursing home facilities to determine their degree of compliance with established rules as a basis for making the required licensure assignment. Additionally, AHCA is responsible for conducting federally mandated surveys of those long-term care facilities receiving Medicare and Medicaid funds for compliance with federal statutory and rule requirements. These federal requirements are made applicable to Florida nursing home facilities pursuant to Florida Administrative Code Rule 59A-4.1288, which states that "[n]ursing homes that participate in Title XVIII or XIX must follow certification rules and regulations found in 42 C.F.R. §483, Requirements for Long Term Care Facilities, September 26, 1991, which is incorporated by reference." The facility is a licensed nursing facility located in Port Charlotte, Charlotte County, Florida. Pursuant to Subsection 400.23(8), Florida Statutes (2004), AHCA must classify deficiencies according to the nature and scope of the deficiency when the criteria established under Subsection 400.23(2), Florida Statutes (2004), are not met. The classification of any deficiencies discovered is, also, determinative of whether the licensure status of a nursing home is "standard" or "conditional" and the amount of administrative fine that may be imposed, if any. Surveyors note their findings on a standard prescribed Center for Medicare and Medicaid Services (CMS) Form 2567, titled "Statement Deficiencies and Plan of Correction" and which is commonly referred to as a "2567" form. During the survey of a facility, if violations of regulations are found, the violations are noted and referred to as "Tags." A "Tag" identifies the applicable regulatory standard that the surveyors believe has been violated, provides a summary of the violation, sets forth specific factual allegations that they believe support the violation, and indicates the federal scope and severity of the noncompliance. To assist in identifying and interpreting deficient practices, surveyors use Guides for Information Analysis Deficiency Determination/Categorization Maps and Matrices. On, or about, June 14 through 17, 2004, AHCA conducted an annual recertification survey of the facility. As to federal compliance requirements, AHCA alleged, as a result of this survey, that the facility was not in compliance with 42 C.F.R. Section 483.25 (Tag F309) for failing to provide necessary care and services for three of 21 sampled residents to attain or maintain their respective highest practicable physical, mental, and psychosocial well-being. As to the state requirements of Subsections 400.23(7) and (8), Florida Statutes (2004), and by operation of Florida Administrative Code Rule 59A-4.1288, AHCA determined that the facility had failed to comply with state requirements and, under the Florida classification system, classified the Federal Tag F309 non-compliance as a state Class II deficiency. Should the facility be found to have committed any of the alleged deficient practices, the period of the conditional licensure status would extend from June 17, 2004, to June 29, 2004. Resident 8 Resident 8's attending physician ordered a protective device to protect the uninjured left ankle and lower leg from injury caused by abrasive contact with the casted right ankle and leg. Resident 8 repeatedly kicked off the protective device, leaving her uninjured ankle and leg exposed. A 2.5 cm abrasion was noted on the unprotected ankle. The surveyors noted finding the protective device in Resident 8's bed but removed from her ankle and leg. Resident 8 was an active patient and had unsupervised visits with her husband who resided in the same facility but who did not suffer from dementia. No direct evidence was received on the cause of the abrasion noted on Resident 8's ankle. Given Resident 8's demonstrated propensity to kick off the protective device, the facility should have utilized a method of affixing the protective device, which would have defeated Resident 8's inclination to remove it. The facility's failure to ensure that Resident 8 could not remove a protective device hardly rises to the level of a failure to maintain a standard of care which compromises the resident's ability to maintain or reach her highest practicable physical, mental or psychosocial well-being. The failure to ensure that the protective device could not be removed would result in no more than minimal discomfort. Resident 10 Resident 10 has terminal diagnoses which include end- stage coronary artery disease and progressive dementia and receives hospice services from a local Hospice and its staff. In the Hospice nurse's notes for Resident 10, on her weekly visit, on May 17, 2004, was the observation that the right eye has drainage consistent with a cold. On May 26, 2004, the same Hospice nurse saw Resident 10 and noted that the cold was gone. No eye drainage was noted. No eye drainage was noted between that date and June 2, 2004. On June 3, 2004, eye drainage was noted and, on June 4, 2004, a culture of the drainage was ordered. On June 7, 2004, the lab report was received and showed that Resident 10 had a bacterial eye infection with Methicillin Resistant Staphylococcus Aureus (MRSA) bacteria. On June 8, 2004, the attending physician, Dr. Brinson, referred the matter to a physician specializing in infectious disease, and Resident 10 was placed in contact isolation. The infectious disease specialist to whom Resident 10 was initially referred was not available, and, as a result, no treatment was undertaken until a second specialist prescribed Bactrim on June 14, 2004. From June 8, 2004, until June 14, 2004, Resident 10 did not demonstrate any outward manifestations of the diagnosed eye infection. A June 9, 2004, quarterly pain assessment failed to note any discomfort, eye drainage or discoloration. In addition to noting that neither infectious control specialist had seen Resident 10, the nurses notes for this period note an absence of symptoms of eye infection. Colonized MRSA is not uncommon in nursing homes. A significant percentage of nursing home employees test positive for MRSA. The lab results for Resident 10 noted "NO WBC'S SEEN," indicating that the infection was colonized or inactive. By placing Resident 10 in contact isolation on June 8, 2004, risk of the spread of the infection was reduced, in fact, no other reports of eye infection were noted during the relevant period. According to Dr. Brinson, Resident 10's attending physician, not treating Resident 10 for MRSA would have been appropriate. The infectious disease specialist, however, treated her with a bacterial static antibiotic. That is, an antibiotic which inhibits further growth, not a bactericide, which actively destroys bacteria. Had this been an active infectious process, a more aggressive treatment regimen would have been appropriate. Ann Sarantos, who testified as an expert witness in nursing, opined that there was a lack of communication and treatment coordination between the facility and Hospice and that the delay in treatment of Resident 10's MRSA presented an unacceptable risk to Resident 10 and the entire resident population. Hospice's Lynn Ann Lima, a registered nurse, testified with specificity as to the level of communication and treatment coordination between the facility and Hospice. She indicated a high level of communication and treatment coordination. Dr. Brinson, who, in addition to being Resident 10's attending physician, was the facility's medical director, opined that Resident 10 was treated appropriately. He pointed out that Resident 10 was a terminally-ill patient, not in acute pain or distress, and that no harm was done to her. The testimony of Hospice Nurse Lima and Dr. Brinson is more credible. Resident 16 Resident 16 was readmitted from the hospital to the facility on May 24, 2004, with a terminal diagnosis of chronic obstructive pulmonary disease and was receiving Hospice care. Roxanol, a morphine pain medication, had been prescribed for Resident 16 for pain on a pro re nata (p.r.n.), or as necessary, basis, based on the judgment of the registered nurse or attending physician. Roxanol was given to Resident 16 in May and on June 1 and 2, 2004. The observations of the surveyor took place on June 17, 2004. On June 17, 2004, at 9:30 a.m., Resident 16 underwent wound care treatment which required the removal of her sweater, transfer from sitting upright in a chair to the bed, and being placed on the left side for treatment. During the transfer and sweater removal, Resident 16 made noises which were variously described as "oohs and aahs" or "ows," depending on the particular witness. The noises were described as typical noises for Resident 16 or evidences of pain, depending on the observer. Nursing staff familiar with Resident 16 described that she would demonstrate pain by fidgeting with a blanket or stuffed animal, or that a tear would come to her eye, and that she would not necessarily have cried out. According to facility employees, Resident 16 did not demonstrate any of her typical behaviors indicating pain on this occasion, and she had never required pain medication for the wound cleansing procedure before. An order for pain medication available "p.r.n.," requires a formalized pain assessment by a registered nurse prior to administration. While pain assessments had been done on previous occasions, no formal pain assessment was done during the wound cleansing procedure. A pain assessment was to be performed in the late afternoon of the same day; however, Resident 16 was sleeping comfortably. The testimony on whether or not inquiry was made during the wound cleansing treatment as to whether Resident 16 was "in pain," "okay," or "comfortable," differs. Resident 16 did not receive any pain medication of any sort during the period of time she was observed by the surveyor. AHCA determined that Resident 16 had not received the requisite pain management, and, as a result, Resident 16’s pain went untreated, resulting in harm characterized as a State Class II deficiency. AHCA's determination is not supported by a preponderance of the evidence. In the context that the surveyor considered what she interpreted as Resident 16's apparent pain, deference should have been given to the caregivers who regularly administered to Resident 16 and were familiar with her observable indications of pain. Their interpretation of Resident 16's conduct and their explanation for not undertaking a formal pain assessment are logical and are credible.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding: The facility's failure to secure the protective device to Resident 8's lower leg is not a Class II deficiency, but a Class III deficiency. The facility's care and treatment of Residents 10 and 16 did not fall below the requisite standard. The imposition of a conditional license for the period of June 17 to June 29, 2004, is unwarranted. The facility should have its standard licensure status restored for this period. No administrative fine should be levied. DONE AND ENTERED this 3rd day of June, 2005, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of June, 2005. COPIES FURNISHED: Karen L. Goldsmith, Esquire Goldsmith, Grout & Lewis, P.A. 2180 North Park Avenue, Suite 100 Post Office Box 2011 Winter Park, Florida 32790-2011 Eric Bredemeyer, Esquire Agency for Health Care Administration 2295 Victoria Avenue, Room 346C Fort Myers, Florida 33901 Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308 William Roberts, Acting General Counsel Agency for Health Care Administration Fort Knox Building, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308
The Issue DOAH Case No. 02-4161: Whether Respondent's licensure status should be reduced from standard to conditional. DOAH Case No. 02-4160: Whether Respondent committed the violations alleged in the Administrative Complaint dated August 29, 2002, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: AHCA is the state agency responsible for licensure and regulation of nursing homes operating in the State of Florida. Chapter 400, Part II, Florida Statutes. Shell Point operates a licensed nursing home at 15701 Shell Point Boulevard, Fort Myers, Florida. The standard form used by AHCA to document survey findings, titled "Statement of Deficiencies and Plan of Correction," is commonly referred to as a "2567" form. The individual deficiencies are noted on the form by way of identifying numbers commonly called "Tags." A Tag identifies the applicable regulatory standard that the surveyors believe has been violated and provides a summary of the violation, specific factual allegations that the surveyors believe support the violation, and two ratings which indicate the severity of the deficiency. One of the ratings identified in a Tag is a "scope and severity" rating, which is a letter rating from A to L with A representing the least severe deficiency and L representing the most severe. The second rating is a "class" rating, which is a numerical rating of I, II, or III, with I representing the most severe deficiency and III representing the least severe deficiency. On June 3 through 6, 2002, AHCA conducted an annual licensure and certification survey of Shell Point to evaluate the facility's compliance with state and federal regulations governing the operation of nursing homes. The survey team alleged several deficiencies during the survey, only one of which is at issue in these proceedings. At issue is a deficiency identified as Tag N201 (violation of Section 400.022(1)(l), Florida Statutes, relating to a resident's right to adequate and appropriate health care and protective and support services, if available; planned recreational activities; and rehabilitative services consistent with the resident's care plan, with established and recognized practice standards within the community, and with rules as adopted by the agency). The deficiency alleged in the survey was classified as Class II under the Florida classification system for nursing homes. A Class II deficiency is "a deficiency that the agency determines has compromised the resident's ability to maintain or reach his or her highest practicable physical, mental, and psychosocial well-being, as defined by an accurate and comprehensive resident assessment, plan of care, and provision of services." Section 400.23(8)(b), Florida Statutes. The deficiency was noted as "isolated" in scope. Based on the alleged Class II deficiency in Tag N201, AHCA imposed a conditional license on IHS, effective June 6, 2002. A follow-up survey was conducted by AHCA on July 9, 2002. AHCA found that Shell Point had corrected all deficiencies noted in the Form 2567, and the agency restored Shell Point's license rating to "standard" on July 9, 2002. The survey found one instance in which Shell Point allegedly failed to provide appropriate health care and protective services. The surveyor's observation on Form 2567 concerned Resident 14: N201 – 400.022(1)(l), F.S. Right to Adequate and Appropriate Health Care 400.022(1)(l) The right to receive adequate and appropriate health care and protective and support services, if available; planned recreational activities; and therapeutic and rehabilitative services consistent with the resident care plan, with established and recognized practice standards within the community, and with rules adopted by the agency. This Rule is not met as evidenced by: Based on observations, record review and staff interviews, the facility failed to provide care and protective services for 2 of 3 sampled residents (#14 and #15) on the second floor dementia unit. This is evidenced by the continued resident-to- resident altercations without facility staff providing on-going interventions, implementation of facility abuse policy, or development of a therapeutic plan of care. The findings include: During the initial tour of the second floor on 6/03/02 at approximately 9:30 AM, Resident #14 was identified by nursing staff as having "injured" another resident (#15) the night before (6/02/02). According to the nurses notes for Resident #15 on 6/02/02 at 1745 (5:45 PM) " (resident's name) was knocked to the ground by another resident. She hit her head and tore open the L (left) forearm. Her L. knee has a quarter-sized abrasion -– instantly swollen . . . had a small abrasion L. side of head –- ice applied." L. knee abrasion with obvious pain and swelling -– ice applied to knee also. Lg. (large) hematoma (bruise) from L. wrist to mid forearm with lg. deep skin tear. Skin reapproximated and steri-stripped –- dressed with telfa and Kling per Dr. ." The physician was called and noted the presence of a "contusion" of the L. parietal area (the head). Review of Resident #15's record showed a nurse's note dated 5/19/02 at 2100, "Hit in back of head by another resident for no apparent reason." Interview with nursing staff on 6/04/02 at approximately 11:00 AM revealed the resident had been struck by Resident #14 during this incident as well. However, no injuries were noted during this altercation. Review of facility Policy Related to "Abuse, Neglect, or Misappropriation of Property" dated 12/12/00 revealed "5. Should abuse be expected (suspected?) to be resident-to-resident initiated, the residents will be separated, the environment will be reviewed as to the stimuli that may have triggered a catastrophic response. . . . Corrections to the environment will be implemented, the residents will be evaluated for injury, the residents will be interviewed (where practicable)." Review of the clinical record for Resident #14 showed documentation in the nurse's notes for 6/02/02 of escalating behavior throughout the day i.e. "She has had one confrontation after another today with residents –- not staff." There is no documentation to indicate any interventions until resident #14 injured resident #15. Review of the plan of care (both current and past) showed no interventions for aggressive, assaultive behavior by this resident or environmental review for stimuli. Interview with the Social Worker on 6/04/02 at approximately 1:30 PM revealed no interventions had been planned or written by him for the aggressive behavior, although the psychiatric nurse had been called regarding reinstating the use of an antipsychotic medication. Interview with the R.N. in charge of the unit as well as the DON (Director of Nursing) revealed no changes in the plan of care had been implemented since the altercation. Further review of the clinical record for Resident #14 disclosed at least 12 other incidents since March 9th of 2002 in which the resident struck, slapped or pushed other residents (3/09, 4/07, 4/18, 4/21, 4/30, 5/03, 5/04, 5/13, 5/18, 5/19, 5/24, and 5/25). The resident's record revealed her to have "expressive aphasia due to CVA (Cerebrovascular Accident)" and to be moderately impaired for cognition. The resident was observed pacing around the 2nd floor dining unit and in the dining room for lunch on 6/04/02. She was minimally able to communicate with gestures. Review of the "Behavior/Intervention monthly Flow Record" showed the behaviors being monitored as the following: "Mood changes, Delusions, Depressed, and Compulsive." Interview with the DON on 6/04/02 at approximately 3:30 PM verified these "behaviors" were inappropriate for this resident, unable to be observed, and emotions unable to be verbalized by the resident. The clinical record and interviews with administrative nursing staff on 6/05/02 at approximately 3:30 PM revealed interventions at the time of an incident included 1:1 monitoring and removal to her room. Medication had been utilized but discontinued. There was no documented plan of care outlining interventions to prevent this resident from continuing to injure herself or others. Resident 14 was a 85-year-old female admitted to Shell Point on June 29, 2001. Her primary diagnoses on admission were anorexia, weight loss, and multiinfarct dementia, a form of organic brain disease that is indistinguishable from Alzheimer's disease in terms of treatment. Resident 14 had secondary diagnoses of hypertension and depression. Alzheimer's disease is a progressive disease. Its initial signs are usually confusion and short-term memory loss. As the disease progresses, the patient suffers greater overall loss of memory and reduced cognition. In the middle stages of the disease, the patient loses the ability to follow directions, to perform her activities of daily living and to take care of her own needs. Another common symptom of Alzheimer's disease is the loss of inhibition and social awareness. The loss of social awareness can cause the patient to invade the space of others, unaware of her effect on those around her. Another common effect of the progression of Alzheimer's disease is increased aggression, again the result of an inability to understand how one's actions affect others. Joan Cagley-Knight, AHCA's expert on Alzheimer's disease, estimated that at any given time, 20 percent to 40 percent of the residents in the Alzheimer's unit of a nursing home will demonstrate aggressive or violent behavior. Aggressive behavior in Alzheimer's residents cannot be eliminated, as it is simply a part of the progression of the disease. One way in which Alzheimer's patients are treated is to place them in secured, locked Alzheimer's units. Such units allow the residents greater freedom within the unit while allowing the nursing home to provide greater supervision. Secure Alzheimer's units also provide reduced stimulation for the residents, lessening the potential for extraneous sights and sounds to cause agitation. At the time of the survey, Shell Point's secure Alzheimer's unit, where all of the relevant incidents took place, consisted of 58 beds. Ms. Cagley-Knight testified that most special care units for dementia have a maximum of twenty beds. She opined that the larger size of Shell Point's unit made it more difficult to manage, because residents with Alzheimer's require more supervision and less stimulation in their environment than do healthy residents. Evidence at the hearing established that ambulatory residents were allowed to interact in the common areas of the Shell Point Alzheimer's unit, though always within sight of facility staff. Shell Point employed staff persons to work exclusively in the Alzheimer's unit, and assigned those staff persons to care for the same residents on each shift. These assignments allowed the staff to become familiar with each resident's needs, abilities, and behaviors. A nursing home's ability to deal with aggression in an Alzheimer's unit is limited. The facility cannot simply lock a resident in her room. Physical restraints tend to worsen the situation, and in any event violate the Resident's Bill of Rights, Section 400.022(1)(o), Florida Statutes, unless authorized by a physician or necessitated by an emergency. Among the permissible initial responses to aggressive behavior are redirection and increased supervision. If these responses fail to control the resident's aggressive behavior, the resident can be medicated, though the facility is required to maintain the use and dosage of psychotropic drugs at the lowest level practicable. Finally, if all else fails, an overly aggressive nursing home resident who presents an immediate threat to herself or others may be involuntarily committed to a mental health facility through the "Baker Act", Section 394.467, Florida Statutes. Ms. Cagley-Knight testified that a facility should do anything it can to avoid "Baker Acting" its residents, short of allowing one resident to hurt another. She stated that the decision as to "Baker Acting" a resident is a judgment call based on an evaluation of all the circumstances. At the time of her admission, Resident 14 was independent regarding her activities of daily living and required minimal care. Pamela Garcia, an LPN on the Alzheimer's unit, described Resident 14 as part of the "out and about" group, able to participate in outings and group activities. Over time, however, Resident 14 suffered cognitive decline and the symptoms of her dementia worsened. At one point, Resident 14 became overly protective and "motherly" toward her roommate, so much so that the facility had to separate the two women. Resident 14 then transferred her affections to a newly admitted male resident. She behaved very protectively toward him and became jealous when other female residents approached him. Eventually, Resident 14 adopted two more male residents for this jealous, protective behavior. Resident 15 was another female resident on the Alzheimer's unit. Due to her loss of inhibitions and lack of social awareness, Resident 15 would get physically close to other residents, much closer than is normally considered acceptable. When she would get too close to one of Resident 14's gentlemen friends, Resident 14 would become angry and would slap at Resident 15. As quoted above, the Form 2567 states that Resident 14 was involved in 12 incidents in which she "struck, slapped, or pushed other residents." Ms. Cagley-Knight, the surveyor who made the observations and findings as to Resident 14, conceded that most of the 12 incidents did not involve physical contact with another resident. Ms. Cagley-Knight maintained that the non-physical incidents, which involved taunting, arguing, and slapping at other residents without making contact, were nonetheless significant resident-to-resident altercations that should have triggered some response by the facility. The nurses' notes for March 9, 2002, contained a care plan note indicating that the facility was aware of, and concerned about, Resident 14's tendency toward aggressive behavior. The note stated "Resident [14] rarely displays sexual behavior now. Her meds seem well-adjusted. She does have episodes of anger directed at certain female residents for no apparent reason. She will redirect during these episodes but will glare at the residents or taunt the other residents verbally." The first incident involving Resident 14 was recorded in the nurses' notes of April 7, 2002. The note stated, "Resident [14] acting out in dining room. Picked a fight with another female resident. [Resident 14] was returned to 2nd floor. Stood staring at everyone. Trying to 'get in someone's face' -– very obvious foul mood and attitude." The nurses' note gave no indication that "picking a fight" involved anything more than a verbal confrontation. The nurses' notes of April 18, 2002, provide documentation of a second incident: "Caregiver reports that [Resident 14] is slapping out at others in peer group. Will monitor behavior and report findings to [physician]." The referenced caregiver was not a Shell Point employee, but a private duty person who came in regularly to tend to Resident 14. The nurses' notes of April 21, 2002, labeled "weekend summary," reflect that "Resident [14] was in a very foul mood all weekend. She verbally taunted several female residents Saturday and Sunday. She took 2 male residents to her room dozens of times and was angry with staff when redirected. She sat on a male resident's lap and when the CNA removed her -- she shook her breasts at him. Sunday a female resident was knocked down by [Resident 14] and she bragged to staff that she did it. She continued to taunt the injured resident after the incident." In response to Resident 14's increased aggression and sexually inappropriate behavior, the facility had her reevaluated by a neuropsychiatrist on April 25, 2002, four days after the weekend incidents were recorded in the nurses' notes. The neuropsychiatrist noted that Resident 14 "does well in activities and tends to act out during non-structured events," and that she was "at risk to harm others." The neuropsychiatrist increased Resident 14's dose of Depacote (divalproex sodium), a psychotropic drug. The nurses' notes of April 30, 2002, record that Resident 14 "became aggressive with another resident in hallway –- as other female resident walked by, [Resident 14] reached out to grab –- other resident pushed hand away and [Resident 14] began to swing at other resident. Did not make contact and did state 'Well did you see her.' When informed of inappropriateness stated 'I'm sorry.' No further episode." The nurses' notes of May 3, 2002, record that "Resident [14] was confrontational with nurse and with another resident, closed door on nurse, attempted to slap other resident, but was redirected in time." The nurses' notes of May 4, 2002, record that "Resident had behavioral problems all day. She verbally attacked many residents. She slapped 2 female residents. Tried to get a male resident to her room repeatedly. She stood staring at Mr. [resident name] for hours trying to get him to go with her. She paced the entire day with her arms crossed just looking at residents and staff. Not easily redirected." In response to this episode, Shell Point again had Resident 14 evaluated by her neuropsychiatrist, this time on May 9, 2002, five days after the incident. After reviewing Resident 14's drug regimen, the neuropsychiatrist decided not to change her prescriptions at that time because he had just increased the dosage on April 26. At this time Resident 14 was taking 750 mg of Depakote, and 7.5 mg of Remeron daily. Remeron (mirtazapine) is an antidepressant. The nurses' notes of May 13, 2002, reflect that Resident 14 "took male resident to her room repeatedly and into the bathroom once. She verbally attacked 2 female residents –- paced most of the evening." The nurses' notes of May 18, 2002, record that Resident 14 was "very aggressive with other residents who approached her room or a particular male resident. Paced the entire day -- took 2 male residents to her room repeatedly." The nurses' notes for the afternoon of May 19, 2002, record that Resident 14 "keeps dragging a particular male resident out of his chair and taking him down the hall to her room. Very taunting to multiple other residents. Very boisterous toward 2 females at one point. Paces continually -- will not be redirected by staff." The nurses' notes for the evening of May 19, 2002, record that Resident 14 was "aggressive this evening. Hit another resident in back of head -– not causing any injury. Verbally abusive to other residents." The nurses' notes of May 24, 2002, record that Resident No. 14 had "multiple confrontations with other residents early part of this shift. CNA's and nurses had to redirect her from stalking another resident. She struck out at several other residents –- paced a good portion of the evening - – staff removed her from the lobby to her room where she remained for the night." The nurses' notes of May 25, 2002, record that "Resident [14] touched lower extremity of another resident. He reached up and slapped left side of face as witness[ed] by CNA." The nurses' notes for the morning of June 2, 2002, record that "Resident has paced all day with arms crossed. She has had one confrontation after another today with residents-- not staff. She has been redirected repeatedly with no effect. Very defiant. She has been very physical with a male resident. She will not leave him alone. Families were complaintive [sic] during lunch about her behavior with male residents." The nurses notes for the same afternoon record that "[Resident 14] knocked another resident down. Other resident injured. [Resident 14] taken to room 214 per Dr. Hicks and supervisor. Will be monitored by CNA." Resident 15, the victim of this incident, suffered cuts, skin tears, and bruises caused by her fall after being slapped by Resident 14. The chief allegation under Tag N201 is that Shell Point allowed resident-to-resident altercations to continue without effective interventions, implementation of an abuse policy, or development of a therapeutic care plan for Resident 14 to address her ongoing problems of aggression and sexual acting out. The most recent care plan on file for Resident 14 was dated March 27, 2002, and did not address her aggressive behavior. Resident 14's inappropriate sexual behavior had been addressed in a prior care plan, but as of March 27, 2002, Shell Point considered this issue "resolved" because "resident no longer exhibits this behavior." The nurses' notes indicated that Resident 14 resumed this behavior no later than April 21, 2002, when she was first recorded taking male residents to her room, but no update to the care plan was made to address this resumption of inappropriate sexual behavior. AHCA faulted Shell Point for failing to prepare a care plan for Resident 14 so that all staff members would know when her needs were greater and what interventions were working with her, and for failing to identify and remove those stimuli that caused Resident 14 to become aggressive. However, the evidence established that Shell Point knew that the aggravating stimulus was female residents coming too close to the male residents whom Resident 14 had adopted for her special attention. Shell Point contended that the preparation of a care plan for Resident 14 would not have resulted in a different approach by the staff. Shell Point maintained flow sheets and cards on each resident in the Alzheimer's unit, and used these flow sheets rather than the care plan to track the residents' progress. At the conclusion of each shift, staff would prepare a report for the next shift detailing anything of note that occurred on their shift. Shell Point's contention that preparation of a care plan would not have changed its approach is credited, though it begs the question of whether that approach was deficient as to the care and protection of the residents involved in these altercations. Ms. Cagley-Knight testified that the appropriate response to resident-on-resident aggression in a secure Alzheimer's unit must be evaluated on a case-by-case basis. The response depends on the number and seriousness of the incidents. Shell Point attempted to minimize the seriousness of Resident 14's actions, pointing out that only four of the 12 documented incidents resulted in actual physical contact and that only the incident of June 2 resulted in physical harm to a resident. Shell Point also pointed out that in each instance of Resident 14 hitting or attempting to hit another resident, she did so suddenly and was quickly redirected by facility staff. Thus, Shell Point contends that the level of danger presented by Resident 14 was relatively low and that Shell Point's response was sufficient. This contention is not credited. Even those incidents that did not involve actual physical contact did involve slapping out at and abusive language toward other residents, who had a right not to be exposed to such a fearful, oppressive situation. The evidence established that Shell Point routinely identified when Resident 14 was becoming agitated or aggressive. Staff would attempt to redirect her when she displayed aggressive behavior, but were not always successful in doing so. When redirection was ineffective, the staff at Shell Point would increase their supervision of Resident 14. Staff was generally aware of the need to monitor Resident No. 14 and her location was monitored at all times. When she was acting out, they would increase her supervision to one-on-one. However, even with this close supervision, Resident 14's behavior could not always be stopped. Shell Point correctly noted that AHCA did not identify any other specific interventions that Shell Point should have tried. However, Shell Point failed to demonstrate that the AHCA surveyors are required or even qualified to identify specific interventions for Shell Point residents, based upon a record review and a day or two of observation. The AHCA survey is a critique of the facility's practices in light of state and federal requirements. It is the task of the facility, not the AHCA surveyors, to devise a plan of correction in response to that critique. Ms. Cagley-Knight acknowledged that a resident's first incident of aggression cannot be predicted, and that planned interventions may not always be effective. However, Ms. Cagley- Knight also concluded that the interventions in place for Resident 14 plainly were not working to curb her aggressiveness or at least prevent her from harming other residents. Ms. Cagley-Knight's conclusion was reasonable, based on the dozen instances of aggressive behavior by Resident 14 over a two-month period, four of which involved physical contact. Given her limited exposure to Resident 14, Ms. Cagley-Knight was in no position to prescribe specific interventions, and her inability to do so does not excuse the facility's failure to explore different approaches in curbing Resident 14's aggressiveness. Shell Point correctly noted that staff was always observant of Resident 14 and always acted quickly to minimize the harm she caused to other residents. However, swift reaction to Resident 14's outbursts does not excuse the facility's failure to try different approaches that might have prevented the outbursts in the first place. Shell Point argued that the only way to eliminate the stimulus causing the aggressive behavior would have been to remove the other residents, which would be impractical, or to isolate Resident 14, which would violate her resident rights. Shell Point contended that, given the limited responses available to a nursing home to respond to aggressive behavior by a resident with Alzheimer's, the only other option available was to "Baker Act" Resident 14. Shell Point contended that "Baker Acting" was not necessary for Resident 14, based on the judgment of the professionals charged with her care, and that second- guessing their judgment should not form the basis for a finding of deficiency and issuance of a conditional license. The fact that staff at Shell Point understood the stimuli that triggered Resident 14's outbursts should have led to some form of intervention designed to prevent her exposure to those stimuli. If the facility lacked a means, short of complete isolation, to keep Resident 14 apart from the residents who triggered her violent outbursts, then it should have conceded its inability to provide adequate care to Resident 14 and taken steps to have her moved to a facility better suited to cope with her needs. This is not a matter of second-guessing the professional judgment of Shell Point's staff, but a finding based on the manifest evidence that Shell Point was unable or unwilling to devise intervention strategies that would respect both the dignity of Resident 14 and the safety of the residents around her. In summary, based upon all the evidence adduced at the final hearing, AHCA's finding of a deficiency under Tag N201 was demonstrated by clear and convincing evidence.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order upholding its notice of intent to assign conditional licensure status to The Christian and Missionary Alliance Foundation, d/b/a Shell Point Nursing Pavilion, for the period of June 6, 2002, through July 9, 2002, and imposing an administrative fine in the amount of $2,500. DONE AND ENTERED this 1st day of July, 2003, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of July, 2003. COPIES FURNISHED: Jay Adams, Esquire Broad and Cassel 215 South Monroe Street, Suite 400 Post Office Box 11300 Tallahassee, Florida 32302 Eileen O'Hara Garcia, Esquire Agency for Health Care Administration Sebring Building, Room 310J 525 Mirror Lake Drive, North St. Petersburg, Florida 33701 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Mail Stop 3 Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308 Rhonda M. Medows, M.D., Secretary Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3116 Tallahassee, Florida 32308
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
The Issue Whether Respondent’s nursing home license should be disciplined, and whether Respondent’s nursing home license should be changed from a Standard license to a Conditional license.
Findings Of Fact Bayside Manor is a licensed nursing home located in Pensacola, Florida. On June 14, 2003, Resident No. 4 climbed out of her bed without assistance to go to the bathroom. She fell to the floor and sustained a bruise to her forehead and lacerations to her cheek and chin. Her Foley catheter was pulled out with the bulb still inflated. The fall occurred shortly after Resident No. 4 had finished eating. No staff was in her room when she climbed out of her bed. She was found on her side on the floor by staff. According to the June 14 Bayside’s Nurses' notes, Resident No. 4 stated, "Oh, I was going to the bathroom." In the hour prior to her fall, Resident No. 4 was seen at least three times by nursing assistants, which was more than appropriate monitoring for Resident No. 4. On June 20, 2002, AHCA conducted a survey of Bayside Manor’s facility. In its survey, AHCA found one alleged deficiency relating to Resident No. 4. The surveyor believed that Resident No. 4 should have been reassessed for falls by the facility and, based upon that reassessment, offered additional assistive devices and/or increased supervision. The surveyor also believed that the certified nursing assistant had left Resident No. 4 alone with the side rails to her bed down. The deficiency was cited under Tag F-324. Tag F-324 requires a facility to ensure that “[e]ach resident receives adequate supervision and assistance devices to prevent accidents.” The deficiency was classified as a Class II deficiency. On October 9, 2001, and January 14, 2002, Bayside Manor assessed Resident No. 4 as having a high risk for falls, scoring 9 on a scale where scores of 10 or higher constitute a high risk. In addition to the June 14, 2002, fall noted above, Resident No. 4 had recent falls on November 30, 2001, April 19, 2002, and May 12, 2002. Resident No. 4's diagnoses included end-stage congestive heart failure and cognitive impairment. She had periods of confusion, refused to call for assistance, and had poor safety awareness. Resident No. 4 had been referred to hospice for palliative care. Because hospice care is given when a resident is close to death, care focuses on comfort of the resident rather than aggressive care. Additionally, the resident frequently asked to be toileted even though she had a catheter inserted. She frequently attempted to toilet herself without staff assistance, which in the past had led to her falls. Often her desire to urinate did not coincide with her actual need to urinate. She was capable of feeding herself and did not require assistance with feeding. Bayside Manor addressed Resident No. 4’s high risk of falls by providing medication which eliminated bladder spasms that might increase her desire to urinate and medication to alleviate her anxiety over her desire to urinate. She was placed on the facility’s falling stars program which alerts staff to her high risk for falls and requires that staff check on her every hour. The usual standard for supervision in a nursing home is to check on residents every two hours. The facility also provided Resident No. 4 with a variety of devices to reduce her risk of falling or any injuries sustained from a fall. These devices included a lap buddy, a criss-cross belt, a roll belt while in bed, a low bed, and a body alarm. Some of the devices were discontinued because they were inappropriate for Resident No. 4. In December 2001, the roll belt was discontinued after Resident No. 4, while attempting to get out of bed, became entangled in the roll belt and strangled herself with it. On May 6, 2002, the low bed and fall mat were discontinued for Resident No. 4. The doctor ordered Resident No. 4 be placed in a bed with full side rails. The doctor discontinued the low bed because it could not be raised to a position that would help alleviate fluid build-up in Resident No. 4’s lungs caused by Resident No. 4’s congestive heart failure. Discontinuance of the low bed was also requested by hospice staff and the resident’s daughter to afford the resident more comfort in a raised bed. The fact that placement in a regular raised bed potentially could result in an increase in the seriousness of injury from a fall from that bed was obvious to any reasonable person. The May 5, 2002, nurses’ notes indicate that there was a discussion with Resident No. 4’s daughter about returning the resident to a high bed for comfort. On balance, the placement of Resident No. 4 in a regular raised bed was medically warranted, as well as reasonable. The placement in a regular bed with side rails was not noted directly in the care plan but was contained in the doctor’s orders and was well known by all the facility’s staff. There was no evidence that directly mentioned the regular bed in the formal care plan was required or that the failure to do so had any consequence to Resident No. 4’s care. Even a lack of documentation clearly would not constitute a Class II deficiency. Moreover, the bed with side rails was not ordered to protect or prevent falls by Resident No. 4. The facility does not consider a bed with side rails of any sort to be a device which assists in the prevention of falls. Indeed rails often cause falls or increase the injury from a fall. In this case, the rails were ordered so that the resident could more easily position herself in the bed to maintain a comfortable position. Again, the decision to place Resident No. 4 in a regular raised bed with side rails was reasonable. The focus is on comfort as opposed to aggressive care for hospice residents. The evidence did not demonstrate that Bayside Manor failed to adequately supervise or provide assistive devices to Resident No. 4. There was no evidence that reassessment would have shown Resident No. 4 to be at any higher risk for falls, since she was already rated as a high risk for falls. Nor did the evidence show that reassessment would have changed any of the care given to Resident No. 4 or changed the type bed in which she was most comfortable.
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 restoring the Respondent’s licensure status to Standard and dismissing the Administrative Complaint. DONE AND ENTERED this 3rd day of June, 2003, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of June, 2003. COPIES FURNISHED: Joanna Daniels, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Donna H. Stinson, Esquire R. Davis Thomas, Jr., Esquire Broad & Cassel 215 South Monroe Street, Suite 400 Post Office Box 11300 Tallahassee, Florida 32302 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308
The Issue The issue in the case is whether the allegations of the Administrative Complaint filed by the Petitioner against the Respondent are correct and if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency responsible for licensure and regulation of nursing homes operating in the State of Florida. The Respondent operates a licensed nursing home at 1001 9th Street North in St. Petersburg, Florida. At approximately 7:00 p.m. on May 31, 2000, a certified nursing assistant (CNA) was feeding a resident of the nursing home an appropriate soft food meal. During the feeding, the resident began to gasp. At the time of the incident, the CNA who was feeding the resident had received training related to feeding this resident. The CNA had fed the resident previously without incident. At the time of the event, another CNA was also present in the room. An off-duty nurse walking by the resident's room saw the situation, and because the resident was seated with a food tray before her, assumed that the resident was choking. The nurse responded to the situation by performing a finger sweep of the mouth to locate food, and then performing a "Heimlich" maneuver. Because no food was located during the finger sweep or expelled after the "Heimlich" the nurse concluded that the resident was not choking. She also became aware that the resident was not breathing. The off-duty nurse lowered the resident's bed and began to perform emergency CPR. She also directed one of the CNA's present to call for the on-duty nurse. The on-duty nurse arrived shortly thereafter and began assisting with the CPR, using an "ambu-bag." Both nurses have substantial experience in nursing and as caregivers in nursing homes. There is no credible evidence that the nurses were unqualified or lacked appropriate training for their responsibilities. While performing the CPR, the off-duty nurse asked the on-duty nurse to determine whether the resident had "advance directive" information in her file. The on-duty nurse stopped using the "ambu-bag" and went to the nurse's station approximately 30 feet from the resident's room, determined that the resident had a "living will" on file, and returned to the resident's room to inform the off-duty nurse. Although there was a "living will" in the patient's file, there was no order prohibiting efforts to resuscitate the resident (commonly called a "DNR") and therefore such emergency procedures were appropriate; however, at the time the off-duty nurse initiated the CPR effort, the resident's status had not been determined. Upon the return of the on-duty nurse, the off-duty nurse stopped performing CPR and went to the nurse's station to review the paperwork in the resident's file after which she called the facility's director of nursing to report the situation. When the nurse halted her CPR effort, she had been administering "chest massage" for approximately three minutes and had gotten no response from the patient. The director of nursing told the nurse to immediately call 911 for emergency assistance. As directed, the off-duty nurse called 911, reported the information, and returned to the resident's room to resume her CPR effort. An EMT team arrived at the facility quickly after the nurse's telephone call. The EMT personnel unsuccessfully attempted to intubate the resident, and ultimately were unable to revive her. Approximately 25 minutes elapsed from initiation of efforts by the off-duty nurse to the EMT personnel determination to halt resuscitation attempts. The resident suffered from end-stage Parkinson's disease. According to the Certificate of Death, the immediate cause of death is listed as "debility of age." There is no evidence that the employees of the nursing home were the cause of or contributed to the resident's death. There is no evidence that the resident choked on food. There is no evidence that resident’s "gasping" sounds were caused by any foreign obstruction within her airway. The facility properly notified the Petitioner of the incident. The Petitioner conducted an investigation on June 2, 2000. The results of the inquiry were set forth on a form identified as a "HCFA 2567" which identifies alleged deficiencies in the Respondent's procedures and activities related to the resident's death. Deficiencies are identified on a "2567" form as "tags." Such alleged deficiencies also include a narrative description of the Petitioner's review and citation to a provision of the Florida Administrative Code rule. Insofar as relevant to this proceeding, the "2567" form identifies tags F156 and F280. TAG F156 Tag F156 alleges that the Respondent failed to "employ a system which ensured the prompt identification of residents who had formulated advance directives for purposes of implementation. The Petitioner charges that the Respondent failed to have policies and procedures for prompt identification of residents who had formulated advance directives for purposes of implementation, especially during an emergency. The Respondent maintained records of each resident's advance directive information in a red folder contained within the resident's medical file. The files were maintained at the nurse's station to facilitate immediate location and provide for a proper response by facility staff. Such record maintenance provided access to information for medical staff while maintaining each resident's rights to privacy. The evidence fails to establish that the facility's system did not provide for "prompt identification of residents who had formulated advance directives for purposes of implementation." TAG F280 Tag F280 alleges that the Respondent failed to review and revise the comprehensive interdisciplinary care plan for the resident to indicate chewing and swallowing problems. The tag also states that "the staff did not implement use of compensatory safe swallow techniques as recommended by the speech language pathologist, resulting in an emergency choking situation which compromised the life of a resident." The Petitioner charges that the Respondent failed to develop a comprehensive care plan for the resident "who was identified with chewing and swallowing problem." The evidence establishes that the interdisciplinary care plan prepared for the resident appropriately addresses the resident's potential for chewing and swallowing difficulty. The care plan identifies the specific steps to be taken in providing nutrition to the resident, including the type of diet, the positioning of the resident's body for feeding, the actual timing of food provision, and indicates that observation is required to ascertain whether the resident was aspirating or choking. The care plan set forth goals for nutrition consumption and established a deadline for achieving the goal with the resident. Tag 281 At the hearing, the Petitioner initially indicated that Tag F281 was not at issue in this proceeding. The Administrative Complaint alleges that the Respondent failed to follow the policies and procedures for obstructed airway management and did not have a system-wide policy and protocol for how nursing services respond during medical emergencies. Evidence was presented at the hearing related to this issue, which appears to be included within Tag F281. Accordingly, the following findings of fact are set forth. There is no evidence that the facility failed to maintain policies and procedures in the area of nursing services. The facility policy related to obstructed airway management is set forth in the "Nursing Policy & Procedure Manual." The types of maneuvers identified as appropriate are "abdominal thrusts" and "finger sweeps." An "abdominal thrust" is commonly referred to as a "Heimlich" maneuver. There is further no evidence that the off-duty nurse failed to follow the facility policy on obstructed airway management. The greater weight of the evidence establishes that the off-duty nurse appropriately performed both procedures on the resident prior to initiation of CPR activities. As to the provision of CPR, the off-duty nurse's CPR certification had expired at the time of the incident, but there is no evidence that she administered the CPR incorrectly during the time her efforts were made.
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 dismissing the Administrative Complaint filed in this case. DONE AND ENTERED this 1st day of August, 2000, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM 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 1st day of August, 2001. COPIES FURNISHED: Michael P. Sasso, Esquire Agency for Health Care Administration 525 Mirror Lake Drive, Room 310G St. Petersburg, Florida 33701 Alfred W. Clark, Esquire 117 South Gadsden Street, Suite 201 Tallahassee, Florida 32301 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
The Issue The issue in this case is whether the Petitioner's license rating for all or some of the time between February 26 and June 1, 1998, should be conditional or standard.
Findings Of Fact When surveyed by AHCA on February 24 through 26, 1998, Spanish Gardens had a license which would expire and have to be renewed on May 31, 1998. The facility had a license rating of superior. For the preceding year (from June 1, 1996, through May 31, 1997), the facility had a license rating of standard. During the survey, a disabled resident told a surveyor that the resident recently had complained to a nurse at the facility that a certified nurse assistant (CNA) had roughly handled the resident while transferring her into her bed, causing redness on the resident's arm, but that the facility did nothing about it. The surveyor viewed the resident's arm to verify the alleged incident. The surveyor also found a nurse's note for February 18, 1998, which mentioned the resident's complaint. On inquiring, the surveyor found that neither the administrator of the facility nor the director of nursing knew about the complaint and that the facility had not telephoned the Central Abuse Registry Hotline (the abuse hotline.) The "Guidance to Surveyors - Long Term Care Facilities" defined "abuse," in pertinent part, as "the willful infliction of injury . . . with resulting physical harm or pain." The surveyor decided to report the alleged incident to the facility's administration and to telephone the abuse hotline herself. The nurse's note stated that the resident first alleged that incident occurred on February 16, 1998; when the CNA, who also was present at the time the complaint was made, stated that he was not working on that day, the resident alleged that the incident had occurred the following day or, directing her comment to the CNA, "whenever you were here." The nurse noted a small red area on the inside of the resident's arm. The resident denied having any complaint of pain. The resident then told the nurse, "I just wanted to tell on him (the CNA)," and laughed. The survey team did not interview the nurse although she was on-duty during part of the time the survey team was at the facility. In fact, the nurse had made a professional judgment that the evidence before her did not give her reason to believe that any abuse had occurred. The survey team also interviewed a group of residents, several of whom complained that the staff at Spanish Gardens was slow to answer the call button located in residents' rooms. It was difficult if not impossible for Spanish Gardens to defend itself against the specific allegations that it had ignored residents' calls for assistance. AHCA never identified the residents who had made the complaints. However, AHCA presented no evidence that any resident was harmed or suffered medically in any way from staff's response time when called for assistance. Slow response to calls for assistance is a common complaint in nursing homes and does not in itself prove neglect. There are a number of reasons why the speed of staff's response may not satisfy a resident. Often, unbeknownst to the resident, staff is attending to the call of another resident whose needs are judged to be a higher priority. Other times, again unbeknownst to the resident, the resident's call for non- emergency assistance may require the attention of a particular staff member who may not be available at the time. The evidence was that Spanish Gardens responds reasonably quickly to residents' calls for assistance. Subject to higher priorities, the nearest staff member responds and assists when able; sometimes, another staff member with special expertise, knowledge, or skills must be summoned. Spanish Gardens does not ignore residents' complaints regarding staff response time. The evidence was that meetings have been held to allow residents to raise complaints of various kinds. Predictably, these included complaints regarding staff response time. Spanish Gardens has attempted to address these as well as the other complaints raised in these meetings. The survey team could not find the abuse hotline telephone number posted anywhere in the facility. When the survey team asked to see the facility's written policies on prevention of abuse and neglect, they were shown a document entitled "Suspected Abuse/Neglect of Residents." The document stated the facility's policy: "Any or suspected abuse/neglect of residents shall be referred immediately to the Administrator for investigation." It also stated the facility's procedures: Any staff, family member, friend, who suspects possible abuse/neglect of a resident shall report to the Administrator and Director of Nursing Services immediately. An incident report shall be completed to include all pertinent information of the alleged abuse/neglect. The Director of Nurses or the Administrator will notify the Abuse Hotline (1-800-96-ABUSE). An in house investigation with concerned parties and action to be taken will be conducted. Since the facility is charged with the responsibility of protecting the resident it will be necessary to terminate employee(s) that may be involved if allegations are found to be substantiated. If it is found that it is a family member, or friend who is responsible for the abuse/neglect, such finding shall be turned over to area adult protection agency. It may be necessary to report any substantiated abuse/neglect to appropriate regulatory agencies in accordance with their established policy regarding abuse/neglect. The survey team was not satisfied with the written policy and procedure presented because it did not require staff to report and call in all allegations or complaints of abuse or neglect but rather only known abuse, "suspected" abuse, or "suspected possible" abuse. In an attempt to satisfy the survey team, the facility produced a document entitled, "Adult Abuse Public Law No. 299 Policy," which related to a law prohibiting: battery; placing a dependent in danger to life or health; abandoning or cruelly confining a dependent; and exploiting a dependent by misuse of the dependent's resources. The facility also produced a document entitled, "Grievance Procedure," which informed residents and their family and friends to express concerns to the Charge Nurse, the Director of Nursing, the Department Supervisor, and the Executive Director. It also included two telephone numbers for the Ombudsman, neither of which was the abuse hotline telephone number. The survey team did not review any employee or resident files for additional documentation; nor did the facility produce any for the survey team's review. In accordance with normal procedure, the survey team reported the results of the survey on a federal Health Care Financing Administration (HCFA) form 2567 (the 2567). Under the Statement of Deficiencies "Tag" F224, the 2567 alleged violations of 42 C.F.R. Section 483.13(c)(1)(i) for failure to "develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse of residents and misappropriation of resident property" and for "use [of] verbal, mental, sexual, or physical abuse, corporal punishment, or involuntary seclusion." For purposes of the 2567, the survey team gave the alleged deficiency a federal scope and severity rating of "G." The federal scope and severity ratings range from "A" (for the least serious) to "L" (for the most serious). A deficiency with a rating of "G" is not considered "substandard quality of care" under the federal scope and severity rating system. For purposes of the 2567, the survey team also gave the alleged deficiency a state classification of Class II. The state classifications are from Class I (for the most serious) to Class III (for the least serious). See Conclusion of Law 28, infra. Based on the 2567, AHCA replaced the facility's superior license with a license having a conditional rating from February 26 through May 31, 1998, when the license would expire and have to be renewed. In response to the 2567 and conditional rating, Spanish Gardens requested a formal administrative hearing, as well as an informal dispute resolution (IDR) conference. At the IDR, the facility's new administrator informed the IDR panel that, since at least 1994, all employees (including himself when he began his employment, coincidentally, during the survey conducted February 24 through 26, 1998,) were required to sign an "Abuse, Neglect, and Exploitation Policy." It states: It is the policy of this facility to protect it's [sic] residents from abuse, neglect, and exploitation by providing a safe and protected environment. Any person who knows or has reasonable cause to suspect that a resident is an abused, neglected or exploited person shall immediately report such knowledge or suspicion to the Control Abuse Registry (Toll Free Telephone Number 1-800-342-9152) and to the Facility Administrator. The statewide toll-free telephone number for the Control Abuse Registry shall be posted on the Facility Bulletin Board and in each Employee Lounge. Employees who commit acts of abuse, neglect, and/or exploitation are subject to criminal prosecution and/or fines. Employees who witness acts of abuse, neglect, and/or exploitation are required to report them immediately. Failure to report can also result in criminal prosecution and/or fines. * * * No employee of this facility will be subjected to reprisal for reporting abuse, neglect or exploitation. . . . Any employee who has been reported for abuse, will be suspended from work until any and all investigations have been completed. If the investigation confirms the employee committed an act of abuse, neglect, or exploitation, that employee shall be terminated immediately. . . . All employees of this facility will be inserviced on this policy and the consequences of abuse, neglect and exploitation during their initial orientation and alt least once annually. A complete copy of the Florida law on Abuse, Neglect, and exploitation [sic](Section 415, Florida Statutes) [sic] is on file in the Administrator's office and available for inspection upon request. Spanish Gardens also produced at the IDR conference a copy of a Resource Contact List that included a telephone number for the abuse hotline. The facility's administrator testified at final hearing that the list was given to all residents at the time of admission. However, he was not employed at the facility prior to the survey, and it is not clear from his testimony that the list was in use as described at the time of the survey. Notwithstanding the additional information presented to it, the IDR panel declined to rescind the Petitioner's conditional rating. The panel did not believe that the "Abuse, Neglect, and Exploitation Policy" was in effect at the time of the survey; in fact, it was. The IDR panel also decided that, even if the policy had been in effect, it did not require employees to report and call in all allegations or complaints of abuse or neglect but rather only known abuse, reasonably suspected, or suspected abuse. Finally, the panel decided that, if construed to require employees to report and call in all allegations or complaints of abuse or neglect, the "Abuse, Neglect, and Exploitation Policy" was not being followed since the resident's complaint was not either reported to the facility's administration or telephoned to the abuse hotline. The "Guidance to Surveyors - Long Term Care Facilities" states in part: The intent of this regulation [42 C.F.R. § 483.13(1)(c)] is to assure that the facility has in place an effective system that regardless of the source (staff, other residents, visitors, etc), prevents mistreatment, neglect and abuse of residents, and misappropriation of resident's property. Over the years, Spanish Gardens has reported eighteen incidents of suspected abuse or neglect to the abuse hotline. No abuse or neglect has been substantiated in any of these incidents. Never before has Spanish Gardens been cited in a survey for any deficiency relating to abuse or neglect of residents. As required, regardless whether a facility agrees with the Statement of Deficiencies in a 2567, Spanish Gardens submitted a Plan of Correction. The facility's Plan of Correction stated that it does not constitute an admission or agreement with the alleged deficiencies. The Plan of Correction reported that Adult Protective Services had investigated the alleged abuse called in by the surveyor on February 26, 1998, and had concluded that the allegation was unfounded. Otherwise, the Plan of Correction essentially stated that written policies for prevention of abuse, neglect, and exploitation were in place and that the facility's administration would conduct inservices with staff and conferences with residents and the Resident Council to ensure that the policies were understood and followed. The Plan of Correction also stated that it had again posted the abuse hotline telephone number in four different places, one behind the locked glass bulletin board. The Plan of Correction stated that it would be completed by March 26, 1998, and the evidence was that the Plan of Correction was completed by the time promised. On May 1, 1998, a team from AHCA re-surveyed Spanish Gardens and satisfied itself that the Plan of Correction had been completed and that the alleged deficiency had been corrected. On May 13, 1998, AHCA notified Spanish Gardens of the results of the re-survey. However, AHCA took no action with respect to the facility's license until June 1, 1998, when AHCA renewed the license with a standard rating for the period from June 1, 1998, through May 31, 1999. Although the Petitioner's license rating had been superior, it only requests that its license rating for the period from February 26 through May 31, 1998, be made standard. See Petition for Formal Administrative Hearing and Proposed Recommended Order of Spanish Gardens.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order finding a Class III deficiency and assigning a standard rating to the Petitioner's license for the time period from February 26 through May 31, 1998. DONE AND ENTERED this 18th day of September, 1998, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON 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 Filed with the Clerk of the Division of Administrative this 18th day of September, 1998. COPIES FURNISHED: Donna Stinson, Esquire R. Davis Thomas, Jr. Broad & Cassel 215 South Monroe Street Suite 400 Tallahassee, Florida 32302 Karel Baarslag, Esquire Agency for Health Care Administration Regional Services Center 2295 Victoria Avenue, Room 309 Fort Myers, Florida 33901 Sam Power, Agency Clerk Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308 Jerome W. Hoffman, General Counsel Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308
