The Issue Whether the Agency for Health Care Administration found deficiencies at Cypress Manor sufficient to support issuance of a conditional license.
Findings Of Fact Petitioner, Cypress Manor, is a nursing home in Fort Myers, Florida, licensed by and subject to regulation by AHCA pursuant to Part II, Chapter 400, Florida Statutes. AHCA is the state agency charged with conducting licensure surveys of nursing home facilities in Florida to ensure that nursing homes are in compliance with state regulations. AHCA also surveys nursing homes to ensure that they are in compliance with federal Medicare and Medicaid requirements. The surveys are usually conducted by a team consisting of nurses, dieticians, and social workers from the AHCA. Each survey lasts approximately three days, during which time the AHCA team tours the facility; reviews records; interviews staff, families and residents; and observes care of residents and medication administration. After surveying the facility, AHCA prepares a survey report which lists the deficiencies found at the facility. The survey report is then sent to the nursing home. Each alleged deficiency found by AHCA during a survey is identified by a “tag” number, which corresponds to the regulation AHCA claims to have violated. A federal scope and severity rating is assigned to each deficiency. AHCA conducted a relicensure survey of Cypress Manor in September 1996, and a follow-up survey in November 1996. At both surveys, AHCA tagged the deficiency denominated as Tag F241, and gave this tag a “Class III” designation. The regulation described under Tag F241 states that: The facility must promote care for residents in a manner and in an environment that maintains or enhances each resident’s dignity and respect in full recognition of his or her individuality. AHCA contends that this regulation was violated by the actions of the facility as described in the survey reports. Because these alleged deficiencies were found in both surveys, AHCA contends that the facility should be given a conditional license. A conditional license has a significant adverse effect on a nursing home. It must be posted in a public place and AHCA publicizes this information, in part through issuance of press releases. A conditional rating affects the ability of the facility to attract residents, and causes morale problems among staff and existing residents. The rating makes staff recruiting difficult. The September 1996 survey report has two numbered findings. However, no evidence was presented as to the first finding. Therefore, the only pertinent and remaining allegations with respect to this survey are those listed under the second finding. The September 1996 survey cited the following findings under the Tag 241: (1)three residents at Cypress Manor, Residents 11, 12, and 13, were observed wearing slipper socks with the names of deceased residents written on them; Resident 11’s shoes were too small; and (3) the slipper socks of Resident 12, were twisted so that the bottom of each slipper was on the top of her foot. The policy at Cypress Manor was, and had been for many years, to label clothing of residents upon admission, and to write residents' names on slipper socks in approximately 1/4 inch letters. However, when residents died their family members would often donate the clothing of those individuals to Cypress Manor to be used for other residents who had insufficient clothing of their own. For example, Cypress Manor used these donated clothes for incontinent residents who would needed changes of clothing, including slipper socks, several times a day. This practice had been in place during surveys conducted by the AHCA in prior years, but had never been cited by AHCA surveyors as a deficient practice. There is no indication that either the subject residents or their families objected to this practice. Moreover, with regard to the slipper socks with names written on them, the writing on the socks had faded to the point that they could not easily be read. Nothing in the regulation specifically addresses the standards for footwear and no evidence was provided by the AHCA with respect to generally accepted standards for footwear. Moreover, no evidence or testimony was presented that the practice of allowing residents to wear donated clothing or slippers constituted a failure to treat such residents with dignity and respect. With regard to the finding that Resident 11’s shoes were too small, there was no evidence to support this claim. Rather, Resident 11 had shoes brought in by her husband, but she regularly took them off and left them in various places throughout the facility. The third alleged violation involved Resident 12, the resident whose slipper socks were turned around. According to Cypress Manor staff who know this resident, she was capable of and did, in fact, propel herself in a wheelchair. As a result of Resident 12’s propelling herself in the wheelchair, the slipper socks often turned. The November 1996 survey report contains eight numbered findings, none of which relate to the footwear issues described in the September survey. No evidence was presented by the agency at hearing with respect to findings 1, 2, 3, 4, or 7. In finding number five, AHCA noted that a resident was seen on two consecutive days wearing the same pink flowered gown and pink sweater. Although this was cited as violating the resident's dignity and respect, the AHCA surveyor acknowledged that the resident's clothing was clean and appropriate. Furthermore, the AHCA surveyor never asked the resident if she liked the clothes that she was wearing. Nor did the surveyor attempt to determine the resident's clothing preference. Cypress Manor staff members familiar with this resident were aware that she had favorite clothes and often insisted on wearing the same items of clothing. The pink sweater worn by the resident on the two days she was observed by the surveyor was one of the resident's favorite garments. In finding number six, AHCA indicated that during a tour of the facility with the facility administrator, the surveyor and administrator entered the room of a resident. The finding further noted that while in the resident’s room, the administrator asked the resident to describe her medical condition to the surveyor. In the surveyor's opinion, the resident seemed "surprised” when asked by the administrator to describe her condition to the surveyor. The issue of requesting that residents describe or discuss their conditions with surveyors is not covered in the regulations. However, it is standard practice as part of surveys to ask residents to describe their condition to surveyors, and it is becoming more common for residents to speak directly to surveyors. The resident referred to in finding number six was a relatively young and assertive resident who had lived at Cypress Manor for several years and served as president of the facility's Residents' Council. Also, as a former employee of the Department of Health and Rehabilitative Services, this resident was very familiar with the survey process. In fact, she would often comment to staff to "let those surveyors at me [sic]; I want to talk to them." This resident often spoke openly about her physical condition and, in the opinion of those who knew her well, would not have been offended by a request to describe her medical condition with AHCA surveyors. It was acknowledged by AHCA that dignity can vary depending on the individual, and that what might be considered undignified to one resident might not be undignified to another. While there are some areas that might be considered to violate the standard regarding the dignity of the patient, no general standards as to what constitutes such a violation was presented by AHCA. In finding number eight of the November 1996 survey report, AHCA stated that a resident in the dining room was given his meal, but did not receive eating utensils until approximately ten minutes later. The surveyor acknowledged that the resident did not attempt to eat the meal with his hands, but waited until the utensils were brought to him. At the time this occurred, there was a large number of residents in the dining room, all of whom were being served their meals. This incident appears to be an isolated and inadvertent oversight, and one that was immediately corrected. At the time of the relicensure survey of Cypress Manor, the facility had no Class I or Class II deficiencies; no Class III deficiencies not corrected within the time established by the agency; and was in substantial compliance with established criteria. It is the policy of the AHCA to classify all deficiencies as at least a Class III deficiency, even when, according to the federal evaluation, the facility would be in substantial compliance with the regulation at issue.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Agency for Health Care Administration enter a final order issuing a standard rating to Cypress Manor, and rescinding the conditional rating and imposition of the $500 penalty. DONE AND ENTERED this 6th day of January, 1998, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 6th day of January, 1998. COPIES FURNISHED: Donna H. Stinson, Esquire R. Davis Thomas, Jr., Qualified Representative Broad and Cassel 215 South Monroe Street Suite 400 Tallahassee, Florida 32302 Karel Baarslag Agency for Health Care Administration Regional Service Center 2295 Victoria Avenue Room 309 Fort Myers, Florida 33901 Jerome Hoffman General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308
The Issue The issue in this case is whether the Board of Nursing should discipline the Respondent, Joyce Knowlton, on charges contained in the Amended Administrative Complaint, DPR Case No. 0111292.
Findings Of Fact The Respondent is a licensed practical nurse who was working as a nurse at Seminole Nursing Pavilion in Seminole, Florida, in January, 1989. She holds Florida license number PN13417. The evidence proved that the Respondent dispensed Mellaril to the patient, L. W., on the evenings of January 5, 6, 8, 9, 11-14, 18, 19, 22, 25 and 26, 1989. On the evenings of January 3, 4 and 28, 1989, another nurse dispensed Mellaril to the patient. On the other 15 evenings in January, 1989, the Respondent was not on duty, and Mellaril was not dispensed to the patient. The doctor's orders for the patient, L. W., were: "Mellaril concentrate 25 mg. give two (2) times daily as needed for agitation." The evidence proved that the Respondent dispensed Mellaril to the patient, L. W., on at least one occasion--on January 5, 1989--when the patient was not agitated and showed no sign of becoming agitated. The patient was "calm to the point of being almost placid." The Respondent went in and roused the patient to give her the medication. The Respondent explained to other witnesses that she dispensed Mellaril to the patient, L. W., without symptoms of agitation because the patient ate better and with less agitation at meal time after administration of Mellaril, and also because the patient's family favored this course. The evidence proved that it was below minimum standards of acceptable and prevailing practice of nursing for the Respondent to administer Mellaril to this particular patient, L. W., for the stated purpose. It is possible for a patient regularly to become agitated at about meal time. This is not uncommon with some nursing home patients; it is commonly referred to as "sundowner syndrome." In the case of "sundowner syndrome," administration of the medication just before meal time to prevent agitation, so that the patient would eat better and with less agitation, could be in compliance with the doctor's orders, as written, and not below minimum standards of acceptable and prevailing practice of nursing. But, in this case, the evidence proved that the patient did not have "sundowner syndrome." On only three of the 16 evenings in January, 1989, when the Respondent was not on duty did the on-duty nurse administer Mellaril for agitation. The Respondent has a history of recurring episodes of major depression. She was fired from her job at the Seminole Nursing Pavilion on or about January 27, 1989. She became angry and then deeply depressed. On or about February 28, 1989, the depression became so severe that the Respondent attempted to end her life, or at least made a suicidal gesture, by an overdose of valium and wine. Fortunately, she recovered and received treatment in various clinical settings through approximately April 24, 1989. She continued to receive therapy, particularly to deal with the stress of this proceeding. But by the time of the hearing, she was fairly stable, and her recurrent depression was in remission. She now is able to work and, in fact, has been working as a nurse without any apparent incapacity. The opinion testimony of the Department expert witness that the Respondent is now incapable, by reason of mental illness, to practice nursing with reasonable skill and safety to patients was not persuasive. The testimony was based solely on a review of the records in evidence as part of the Department's case in chief. The witness did not examine the Respondent and had no knowledge of the Respondent's employment history before about 1982 or after her employment at Seminole Pavilion ended.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Nursing enter a final order placing the Respondent, Joyce Knowlton, on probation for one year, during which time the Respondent's current mental condition can be evaluated and her practice closely monitored to insure that she is rehabilated enough to be able to continue to practice nursing safely. RECOMMENDED this 26th day of November, 1990, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of November, 1990. APPENDIX TO RECOMMENDED ORDER To comply with the requirements of Section 120.59(2), Florida Statutes (1989), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1.-3. Accepted and incorporated to the extent not subordinate or unnecessary. 4. Rejected as not proven that agitation necessarily results in harm to the patient or others. Agitation could result only in what is called resistance to care. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. 5.-13. Accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not proven. The Respondent believed that the patient ate better and with less agitation after being given Mellaril, not that the Mellaril "made the patient eat better" in the sense that it increased her appetite. Accepted but subordinate and unnecessary. Rejected as not proven. The evidence suggested that the family approved of the use of Mellaril to counteract anticipated agitation; it did not prove that the family asked the Respondent to keep the patient sedated, as implied by this proposed finding. 17.-20. Accepted and incorporated to the extent not subordinate or unnecessary. 21. Accepted and incorporated. 22.-25. Without testimony to explain the records on which these proposed findings are based, it is difficult to decipher what they say, and no findings are based solely on them except as may be found in the Findings of Fact. Accepted and incorporated. Accepted but subordinate and unnecessary. Rejected. See 22-25, above. 29.-33. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted but subordinate and unnecessary. Rejected as not proven. See 22-25, above. Accepted and incorporated. First clause, accepted. However, the same records indicate that the Respondent's major depression is in remission. The Respondent's history is that her major depression alternately recurs and goes into remission depending on what is happening in her life and what kind of treatment she gets. Therefore, to the extent that it is inconsistent with the Findings, the rest is rejected as not proven. 38.-41. Generally accepted but unnecessary. These are vague generalities; no specifics were proven. The only relevance of these facts in this case would be to prove the Respondent's mental condition and the effects on her ability to practice nursing. But the evidence did not relate any of these facts to the Respondent's mental condition or to its effect on her ability to practice nursing. 42.-43. Rejected as not proven. 44.-46. The Respondent was not charged with untruthfulness. The only relevance of these facts in this case would be to prove the Respondent's mental condition and the effects on her ability to practice nursing. But the evidence did not relate any of these facts to the Respondent's mental condition or to its effect on her ability to practice nursing. 47.-50. The Respondent was not charged with breach of a contractual agreement. The only relevance of these facts in this case would be to prove the Respondent's mental condition and the effects on her ability to practice nursing. But the evidence did not relate any of these facts to the Respondent's mental condition or to its effect on her ability to practice nursing. Proposed finding 50 is based strictly on inadmissible hearsay. 51.-52. Rejected as based strictly on inadmissible hearsay. 53.-57. Subordinate to facts found and unnecessary. 58.-60. The Respondent was charged with only one med pass error--dispensing Mellaril to the patient, L.W. The only relevance of these facts in this case would be to prove the Respondent's mental condition and the effects on her ability to practice nursing. But the evidence did not relate any of these facts to the Respondent's mental condition or to its effect on her ability to practice nursing. 61. Rejected as not proven. 62.-72. Rejected as not proven. Without testimony to explain the records on which these proposed findings are based, it is difficult to decipher what they say, and no findings are based solely on them except as may be found in the Findings of Fact. Accepted and incorporated. Rejected as not proven. Nursing has some unique stresses. It has more stress than some jobs and less stress than other. Accepted but subordinate to facts found. Respondent's Proposed Findings of Fact. 1.-12. Accepted and incorporated to the extent not subordinate or unnecessary. Rejected contrary to facts found and to the greater weight of the evidence. As found, the evidence did not prove that the Respondent is now unable, by reason of her mental condition, to practice nursing safely. However, the Respondent's evidence on this point consisted only of medical records and progress notes created by the Respondent's therapist. Without any testimony to explain these records, the evidence did not prove that the Respondent was more than "fairly stable" at the time of the hearing. On the other hand, the evidence did prove that the Respondent has a history of recurrent major depression, a legitimate concern to the Board of Nursing after the February 28, 1989, suicide attempt. Rejected as contrary to facts found and to the greater weight of the evidence. COPIES FURNISHED: Lois B. Lepp, Esquire Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Christina M. Ippolito, Esquire Gulfcoast Legal Services, Inc. 6 South Ft. Harrison Avenue Clearwater, Florida 34616 Judie Ritter, Executive Director Board of Nursing 504 Daniel Building 111 East Coastline Drive Jacksonville, Florida 32202 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issues for determination are: (1) whether the noncompliance as alleged during the August 30, 2001, survey and identified as Tags F324 and F242, were Class II deficiencies; (2) whether the "Conditional" licensure status, effective August 30, 2001, to September 30, 2001, based upon noncompliance is appropriate; and (3) whether a fine in the amount of $5,000 is appropriate for the cited noncompliance
Findings Of Fact Charlotte is a nursing home located at 5405 Babcock Street, Northeast, Fort Myers, Florida, with 180 residents and is duly licensed under Chapter 400, Part II, Florida Statutes. AHCA is the state agency responsible for evaluating nursing homes in Florida pursuant to Section 400.23(7), Florida Statutes. As such, in the instant case it is required to evaluate nursing homes in Florida in accordance with Section 400.23(8), Florida Statutes (2000). AHCA evaluates all Florida nursing homes at least every 15 months and assigns a rating of standard or conditional to each licensee. In addition to its regulatory duties under Florida law, AHCA is the state "survey agency," which, on behalf of the federal government, monitors nursing homes that receive Medicaid or Medicare funds. On August 27 through 30, 2001, AHCA conducted an annual survey of Charlotte's facility and alleged that there were deficiencies. These deficiencies were organized and described in a survey report by "Tags," numbered Tag F242 and Tag F324. The results of the survey were noted on an AHCA form entitled "Statement of Deficiencies and Plan of Correction." The parties refer to this 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 identified each alleged deficiency by reference to a Tag number. Each Tag on the 2567 includes a narrative description of the allegations against Charlotte and cites a provision of the relevant rule or rules in the Florida Administrative Code violated by the alleged deficiency. To protect the privacy of nursing home residents, the 2567 and this Recommended Order refer to each resident by a number (i.e., Resident 24) rather than by the name of the resident. AHCA must assign a class rating of I, II or III to any deficiency that it identifies during a survey. The ratings reflect the severity of the identified deficiency, with Class I being the most severe and Class III being the least severe deficiency. There are two Tags, F242 and F324 at issue in the instant case, and, as a result of the August 2001 survey, AHCA assigned each Tag a Class II deficiency rating and issued Charlotte a "Conditional" license effective August 30, 2001. Tag F242 Tag F242 generally alleged that Charlotte failed to meet certain quality of life requirements for the residents, based on record review, group interviews, and staff interviews, and that Charlotte failed to adequately ensure that the residents have a right to choose activities that allow them to interact with members of the community outside the facility. On or about August 24, 2001, AHCA's surveyors conducted group interviews. During these interviews, 10 of 16 residents in attendance disclosed that they had previously been permitted to participate in various activities and interact with members of the community outside the facility. They were permitted to go shopping at malls, go to the movies, and go to restaurants. Amtrans transportation vans were used to transport the residents to and from their destinations. The cost of transportation was paid by Charlotte. An average of 17 to 20 residents participated in those weekly trips to dine out with other community members at the Olive Garden and other restaurants. During those trips, Charlotte would send one activity staff member for every four to six residents. The record contains no evidence that staff nurses accompanied those select few residents on their weekly outings. The outings were enjoyed by those participants; however, not every resident desired or was able to participate in this particular activity. Since 1985, outside-the-facility activities had been the facility's written policy. However, in August 2000, one year prior to the survey, Matthew Logue became Administrator of the facility and directed his newly appointed Activities Director, Debbie Francis, to discontinue facility sponsored activities outside the facility and in its stead to institute alternative activities which are all on-site functions. Those residents who requested continuation of the opportunity to go shopping at the mall or dine out with members of the community were denied their request and given the option to have food from a restaurant brought to the facility and served in-house. The alternative provided by the facility to those residents desiring to "interact with members of the community outside the facility" was for each resident to contact the social worker, activity staff member, friends or family who would agree to take them off the facility's premises. Otherwise, the facility would assist each resident to contact Dial-A-Ride, a transportation service, for their transportation. The facility's alternative resulted in a discontinuation of all its involvement in "scheduling group activities" beyond facility premises and a discontinuation of any "facility staff members" accompanying residents on any outing beyond the facility's premises. As described by its Activities Director, Charlotte's current activities policy is designed to provide for residents' "interaction with the community members outside the facility," by having facility chosen and facility scheduled activities such as: Hospice, yard sales, barbershop groups for men and beautician's day for women, musical entertainment, antique car shows, and Brownie and Girl Guides visits. These, and other similar activities, are conducted by "community residents" who are brought onto the facility premises. According to the Activities Director, Charlotte's outside activities with transportation provided by Amtrans buses were discontinued in October of 2000 because "two to three residents had been hurt while on the out trip, or on out-trips."1 Mr. Logue's stated reason for discontinuing outside activities was, "I no longer wanted to take every member of the activities department and send them with the resident group on an outing, thereby leaving the facility understaffed with activities department employees." The evidence of record does not support Mr. Logue's assumption that "every member of the facility's activities department accompanied the residents on any weekly group outings," as argued by Charlotte in its Proposed Recommended Order. Charlotte's Administrator further disclosed that financial savings for the facility was among the factors he considered when he instructed discontinuation of trips outside the facility. "The facility does not sponsor field trips and use facility money to take people outside and too many staff members were required to facilitate the outings." During a group meeting conducted by the Survey team, residents voiced their feelings and opinions about Charlotte's no longer sponsoring the field trips on a regular basis in terms of: "feels like you're in jail," "you look forward to going out," and being "hemmed in." AHCA's survey team determined, based upon the harm noted in the Federal noncompliance, that the noncompliance should be a State deficiency because the collective harm compromised resident's ability to reach or maintain their highest level of psychosocial well being, i.e. how the residents feel about themselves and their social relationships with members of the community. Charlotte's change in its activities policy in October of 2000 failed to afford each resident "self- determination and participation" and does not afford the residents the "right to choose activities and schedules" nor to "interact with members of the community outside the facility." AHCA has proved the allegations contained in Tag F242, that Charlotte failed to meet certain quality of life requirements for the residents' self-determination and participation. By the testimonies of witnesses for AHCA and Charlotte and the documentary evidence admitted, AHCA has proven by clear and convincing evidence that Charlotte denied residents the right to choose activities and schedules consistent with their interests and has failed to permit residents to interact with members of the community outside the facility. Tag F324 As to the Federal compliance requirements, AHCA alleged that Charlotte was not in compliance with certain of those requirements regarding Tag F324, for failing to ensure that each resident receives adequate supervision and assistance devices to prevent accidents. As to State licensure requirements of Sections 400.23(7) and (8), Florida Statutes (2000), and by operation of Florida Administrative Code, Rule 59A-4.1288, AHCA determined that Charlotte had failed to comply with State established rules, and under the Florida classification system, classified Tag F324 noncompliance as a Class II deficiency. Based upon Charlotte's patient record reviews and staff interviews, AHCA concluded that Charlotte had failed to adequately assess, develop and implement a plan of care to prevent Resident 24 from repeated falls and injuries. Resident 24 was admitted to Charlotte on April 10, 2001, at age 93, and died August 6, 2001, before AHCA's survey. He had a history of falls while living with his son before his admission. Resident 24's initial diagnoses upon admission included, among other findings, Coronary Artery Disease and generalized weakness, senile dementia, and contusion of the right hip. On April 11, 2001, Charlotte staff had Resident 24 evaluated by its occupational therapist. The evaluation included a basic standing assessment and a lower body assessment. Resident 24, at that time, was in a wheelchair due to his pre-admission right hip contusion injury. On April 12, 2001, two days after his admission, Resident 24 was found by staff on the floor, the result of an unobserved fall, and thus, no details of the fall are available. On April 23, 2001, Resident 24 was transferred to the "secured unit" of the facility. The Survey Team's review of Resident 24's Minimum Data Set, completed April 23, 2001, revealed that Resident 24 required limited assistance to transfer and to ambulate and its review of Resident 24's Resident Assessment Protocols (RAPs), completed on April 23, 2001, revealed that Resident 24 was "triggered" for falls. Charlotte's RAP stated that his risk for falls was primarily due to: (1) a history of falls within the past 30 days prior to his admission; (2) his unsteady gait; (3) his highly impaired vision; and (4) his senile dementia. On April 26, 2001, Charlotte developed a care plan for Resident 24 with the stated goal that the "[r]esident will have no falls with significant injury thru [sic] July 25, 2001," and identified those approaches Charlotte would take to ensure that Resident 24 would not continue falling. Resident 24's care plan included: (1) place a call light within his reach; (2) do a falls risk assessment; (3) monitor for hazards such as clutter and furniture in his path; (4) use of a "Merry Walker" for independent ambulation; (5) placing personal items within easy reach; (6) assistance with all transfers; and (7) give Resident 24 short and simple instructions. Charlotte's approach to achieving its goal was to use tab monitors at all times, to monitor him for unsafe behavior, to obtain physical and occupational therapy for strengthening, and to keep his room free from clutter. All factors considered, Charlotte's care plan was reasonable and comprehensive and contained those standard fall prevention measures normally employed for residents who have a history of falling. However, Resident 24's medical history and his repeated episodes of falling imposed upon Charlotte a requirement to document his records and to offer other assistance or assistive devices in an attempt to prevent future falls by this 93-year-old, senile resident who was known to be "triggered" for falls. Charlotte's care plan for Resident 24, considering the knowledge and experience they had with Resident 24's several falling episodes, failed to meet its stated goal. Charlotte's documentation revealed that Resident 24 did not use the call light provided to him, and he frequently refused to use the "Merry Walker" in his attempts of unaided ambulation. On June 28, 2001, his physician, Dr. Janick, ordered discontinuation of the "Merry Walker" due to his refusal to use it and the cost involved. A mobility monitor was ordered by his physician to assist in monitoring his movements. Charlotte's documentation did not indicate whether the monitor was actually placed on Resident 24 at any time or whether it had been discontinued. Notwithstanding Resident 24's refusal to cooperatively participate in his care plan activities, Charlotte conducted separate fall risk assessments after each of the three falls, which occurred on April 12, May 12, and June 17, 2001. In each of the three risk assessments conducted by Charlotte, Resident 24 scored above 17, which placed him in a Level II, high risk for falls category. After AHCA's surveyors reviewed the risk assessment form instruction requiring Charlotte to "[d]etermine risk category and initiate the appropriate care plan immediately," and considered that Resident 24's clinical record contained no notations that his initial care plan of April 23, 2001, had been revised, AHCA concluded that Charlotte was deficient. On May 13, 2001, Dr. Janick visited with Resident 24 and determined that "there was no reason for staff to change their approach to the care of Resident 24." Notwithstanding the motion monitors, on June 17, 2001, Resident 24 fell while walking unaided down a corridor. A staff member observed this incident and reported that while Resident 24 was walking (unaided by staff) he simply tripped over his own feet, fell and broke his hip. Charlotte should have provided "other assistance devices," or "one-on-one supervision," or "other (nonspecific) aids to prevent further falls," for a 93-year-old resident who had a residential history of falls and suffered with senile dementia. Charlotte did not document other assistive alternatives that could have been utilized for a person in the condition of Resident 24. AHCA has carried its burden of proof by clear and convincing evidence regarding the allegations contained in Tag F324.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Agency enter a final order upholding the assignment of the Conditional licensure status for the period of August 30, 2001 through September 30, 2001, and impose an administrative fine in the amount of $2,500 for each of the two Class II deficiencies for a total administrative fine in the amount of $5,000. DONE AND ENTERED this 13th day of February, 2003, in Tallahassee, Leon County, Florida. FRED L. BUCKINE 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 13th day of February, 2003.
The Issue (1) Whether Respondent, Rockledge NH, L.L.C., d/b/a Rockledge Health and Rehabilitation Center, should be given a "Conditional" or "Standard" license effective February 12, 2002, or March 7, 2002; (2) Whether Respondent is subject to an administrative fine in the amount of $2,500.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made: Respondent operates a skilled nursing home located at 587 Barton Boulevard, Rockledge, Brevard County, Florida. Petitioner is the State of Florida agency responsible for licensure and regulation of nursing home facilities in Florida. Respondent was, at all times material to this matter, licensed by Petitioner and required to comply with applicable rules, regulations, and statutes, including Sections 415.1034 and 400.022, Florida Statutes. On or about March 7, 2002, Petitioner conducted a complaint survey of Respondent. Petitioner's surveys and pleadings assign numbers to residents in order to maintain the residents' privacy and confidentiality. The resident who was the subject of the Class II deficiency from the March 7, 2002, complaint survey has been identified as Resident number 1, with the initials "H.C." Resident number 1 is 82 years old and was admitted to Respondent's facility on January 19, 2002, with diagnoses of dementia, back pain from multiple falls, hypertension, osteoarthritis, recurrent bronchitis, and chronic obstructive pulmonary disease. At all times material to this matter, Resident number 1 was a "vulnerable adult" as defined in Subsection 415.102(26), Florida Statutes. On February 5, 2002, at approximately 9:50 p.m., a certified nursing assistant employed by Respondent went into Resident number 1's room to see why Resident number 1 was yelling. Upon entering the room, the certified nursing assistant found Resident number 1's bed positioned in such a way that his head was down and his feet were up. A blanket had been tied across the "up" end of the bed securing Resident number 1's feet allowing him to be held in a "head down" position. The certified nursing assistant who investigated the yelling "pulled on the blanket to verify that it was tied down." There were no prescriptions or written orders justifying the restraint of Resident number 1. The certified nursing assistant who found Resident number 1 in the above-described position identified a different certified nursing assistant, one provided to Respondent by a staffing agency, as the caregiver for the shift in question. The alleged abusive act was perpetrated by the certified nursing assistant provided by the staffing agency. The certified nursing assistant provided by the staffing agency placed Resident number 1 in a position that was contraindicated for a person with a diagnosis of chronic obstructive pulmonary disease. Respondent's certified nursing assistant waited approximately two days before reporting the alleged abusive act to the abuse hotline, Respondent's abuse coordinator or the Director of Nursing. A medical record review indicated that Resident number 1 was sent to the hospital on February 22, 2002, for shortness of breath and again on February 26, 2002, for difficulty in breathing and lung congestion. The History and Physical from the hospital, dated February 23, 2002, revealed that Resident number 1 was sent to the hospital because of progressive shortness of breath. Resident number 1's lower extremities were documented to have been severely edematous with "skin changes subsequent to chronic stasis and edema with excoriation, loss of circulation, blisters, etc." The certified nursing assistant provided by the staffing agency had a full resident assignment and cared for several residents the day of the alleged abusive act. After the discovery of the alleged abuse, the certified nursing assistant provided by the staffing agency continued to care for Resident number 1 and other residents assigned to her for approximately one hour or until the end of her shift. Documentation, dated March 8, 2002, from the staffing agency, confirmed that the certified nursing assistant provided by the staffing agency did have education in the current rules and regulations related to the abuse and neglect of the elderly. Petitioner's surveyor believed that the failure to immediately report the alleged abuse constituted a Class II deficiency because the certified nursing assistant provided by the staffing agency was allowed to continue to care for Resident number 1 and other residents until the shift ended and could have further abused Resident number 1 or other residents in her care.
Recommendation Based on the Foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administrative Complaints in this matter be dismissed and Respondent's licensure status be returned to Standard for the period it was Conditional and that no administrative fine be levied. DONE AND ENTERED this 18th day of February, 2003, in Tallahassee, Leon County, Florida. JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of February, 2003. COPIES FURNISHED: Joanna Daniels, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Alex Finch, Esquire Goldsmith, Grout & Lewis, P.A. 2180 North Park Avenue, Suite 100 Post Office Box 2011 Winter Park, Florida 32790-2011 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
Findings Of Fact In April, 1984, the Petitioner, Health Care and Retirement Corporation of America d/b/a Heartland of Palm Beach, applied for a certificate of need for 120 community nursing home beds in Palm Beach County, Florida. In July, 1984, the Respondent, the Department of Health and Rehabilitative Services (HRS) gave notice of initial intention to deny the application. HRS Exhibit 5. The instant proceedings are the result of the request of the Petitioner for a formal administrative hearing from that denial. On January 22, 1986, the parties jointly moved for a continuance of the final hearing in this case then scheduled to commence on February 3, 1986, and in paragraphs 3 through 6, represented that the purpose of the requested continuance was to allow the Petitioner to gather data as to two alleged underserved groups: patients suffering from Alzheimer's disease and sub-acute care patients. The Petitioner asserted that such data would support an amended, updated application for certificate of need to be filed by the Petitioner for the purpose of showing need pursuant to the special exception allowed in the rules. In paragraph 8 of the motion, HRS agreed to give serious consideration to the updated application and supporting documents. The motion was granted by order dated February 3, 1986, and at the request of both parties, the final hearing was reset for April 3, 1986. The parties have agreed that all statutory and rule criteria have been satisfied by the Petitioner in this case except for the issue of need as determined by rule 10-5.11(21), Florida Administrative Code, and that question is the sole issue in this case. T. 5; Hearing Officer Exhibit 1. Petitioner's initial application did not mention the intention to provide special services for victims of Alzheimer's disease, and the Petitioner did not amend or update its application with HRS in that respect, except to the extent that it presented such testimony in the formal administrative hearing. T. 104. The application is not in evidence. The initial review of Petitioner's application by HRS did not consider special services to Alzheimer's patients. T. 117; HRS Exhibit 5. HRS has adopted rule 10-5.11(21), Florida Administrative Code, to determine need for additional community nursing home beds. Using a planning horizon of 1987, which is 3 years after the date of application, the rule calculates a net surplus of 511 community nursing home beds for Palm Beach County. Even using the 1989 planning horizon, there is still a net zero bed need using the rule formula for Palm Beach County. T. 100; HRS Exhibit 2; T. 97 and 102. Alzheimer's disease is a degenerative process of the brain characterized primarily by loss of memory and impairment of a variety of routine functions. T. 160-161. Diagnosis of the disease is difficult since there are related degenerative mental disorders. Moreover, positive diagnosis typically requires examination of brain tissue, and the process of obtaining brain tissue is intrusive. T. 162-163. For these reasons, the diagnosis is typically of "senile dementia of the Alzheimer-type," or Alzheimer's disease or related disorders. T. 163. The cause of the condition is not known, although research into possible surgical techniques to ameliorate the effects is being conducted in the Jupiter, Florida, area. T. 73. Alzheimer's disease primarily afflicts elderly persons, although some younger persons may also be victims. T. 163. Person suffering from Alzheimer's disease typically have memory loss, communicative problems, aphasia, trouble understanding, confusion, disorientation, inability to recognize care givers, waking at night, interrupting the care giver's sleep, wandering, mealtime problems, inappropriate sexual activity, incontinence, and social disfunctions. T. 184. Such persons exhibit negative behavior such as resistence to care, demanding, aggression, anger, emotional outbursts due to inability to perform routine tasks, and delusions. Id. Four stages of progressive degeneration are expected with Alzheimer's disease. The first is forgetfulness and loss of ability to perform complex tasks which formerly could be performed. In the second stage, communication problems occur and also loss of memory as to the names of common objects. Wandering and becoming lost also may occur. Stage three is characterized by physical deterioration such as loss of weight, incontinence, and loss of control of other bodily functions. In the fourth stage, a patient will become unable to communicate at all, and may become comatose and bedridden. The course of the disease is from 12 to 16 years or longer and can involve many of the problems described above. T. 217-218. A family member is usually the person first required to provide care for an Alzheimer's victim. T. 165. The responsibilities caused by such care, and the manner in which the symptoms of Alzheimer's disease are exhibited, cause the family care-giver to feel trapped, fatigued, depressed, angry, resentful, and frustrated. T. 167. At times, the family care-giver is elderly and can suffer health problems from the responsibility. T. 82-83. The burden upon the family member can be alleviated by day care, which involves care only during the day, and respite care, which can involve overnight care for several days. T. 167, 147-148. Day care and respite care can also serve the function of establishing a relationship with staff and collection of data and records, both of which become useful for the time when the patient's disease progresses to the point that continuous inpatient care is required. T. 83, 220-223. Alzheimer's patients in a nursing home need special care directed toward their particular disability described above. Of primary concern is that the nursing home be structured to provide an environment that minimizes confusion and compensates for the disabilities of the Alzheimer's disease victim. Separation from other elderly residents, who are not cognitively impaired, is important to prevent confusion of the Alzheimer's patient and to protect the other residents from disruptive intrusions. The physical facility should be constructed and furnished so as to minimize confusion and stimulation. Colors should be subdued, flooring should not mute the sound of footsteps, patterns should not be used, and common appliances should have distinguishing shapes and be clearly identified or labeled. Spaces for quiet and for wandering should be provided. Features to compensate for forgetfulness, such as lights which automatically turn on when a door is opened, should be provided. T. 219- 227, 57-58, 63-64, 81. Staffing must be trained to recognize and help alleviate problems that arise from behavior caused by Alzheimer's disease. T. 74-75, 234- 235, 80, 83-84. Finally, since Alzheimer's disease patients become upset with change due to recognition and memory impairment, continuity of care (staffing and physical surroundings) becomes important. T. 221, 223, 78, 82-83. Alzheimer's disease victims who need inpatient care also need all of the normal forms of skilled nursing care that other elderly persons need. This may occur over a course of years, or may be the results of a sudden injury, such as a broken hip. T. 220-223, 147-148, 79. As discussed above, it is important to be able to provide such care in the same facility since continuity of care is so important, and transfers to new surroundings are disruptive. Any current holder of a certificate of need for community nursing home beds in Palm Beach County may, if it wishes, provide special services to persons suffering from Alzheimer's disease. T. 122. Existing nursing homes in Palm Beach County accept Alzheimer's disease victims, but none provide special services for these patients except perhaps Darcy Hall, which provides adult day care. T. 143, 76, 82, 168-169, 171, 200-201, 210-211. Existing adult congregate living centers and adult day care centers in Palm Beach County similarly do not have special services or programs for victims of Alzheimer's disease. T. 145. Existing nursing homes could provide such services to Alzheimer's patients, though approval of HRS by expedited review to change substructure might be required, but none has done so. T. 154. Alzheimer's patients are often inappropriately restrained, or mixed with non-Alzheimer's disease patients. T. 77. Dr. Eugene Loeser is a physician, board certified in neurology, and is in private practice in Jupiter, Florida. T. 157-158. Dr. Loeser created a list of questions to ask physicians in Palm Beach County to explore the need for special nursing home programs for Alzheimer's disease patients, and that list of questions is HRS Exhibit 8. T. 169, 186-189. Using these questions Dr. Loeser conducted a survey of 36 physicians in Palm Beach County, which included 8 family practitioners, 10 internists, 14 neurologists, 2 neurosurgeons, and 2 psychiatrists. T. 170. There are approximately 1,000 physicians in Palm Beach County, T. 31, and Dr. Loeser admitted that his survey was only of a small percentage. T. 170. Dr. Loeser did not attempt to make the survey statistically valid. T. 178. The physicians contacted were selected from the telephone book from Jupiter in the north to Lake Worth in the south. T. 171, 183. Dr. Loeser attempted to contact representatives of several specialities. T. 181. The specialities were selected as those likely to see Alzheimer's patients. T. 170. Of the 36 physicians contacted, 35 had seen patients having Alzheimer's disease. Petitioner's Exhibit 5. Of these, 27 physicians had "difficulty in finding appropriate placement" for these patients in terms of supervision, care and treatment. Petitioner's Exhibit 5; HRS Exhibit 8. The same number of physicians felt that facilities with appropriate programs for placement of Alzheimer's disease or similar disorder patients were not presently available in Palm Beach County. Id. From the responses, Dr. Loeser estimated that these physicians had seen somewhat more than 600 patients suffering from Alzheimer's disease or related disorders in the last year. T. 171. Dr. Loeser personally estimated that he typically had difficulty finding a treatment and care facility for about 10 Alzheimer's disease patients annually. T. 185. He then estimated from responses received that the physicians surveyed were unable to find an appropriate program for about 135 patients annually. Petitioner's Exhibit 5. Dr. Loeser further estimated that among his own patients, about one or two per week needed some form of day care, T. 185, and from the responses of the physicians in the survey, estimated that such physicians annually had 150 patients needing day care. T. 175. Determination of placement problems for Alzheimer's disease patients from actual patient records or placement orders from physicians would be difficult because these records are confidential. Consent from the patient would be needed, and consent from an Alzheimer patient would be difficult due to the nature of the mental impairment caused by the disease. T. 173. The survey conducted by Dr. Loeser was not unreasonable for failure to contact more physicians. The survey accurately reflects a group of Alzheimer's disease patients treated by the physicians contacted, and does not purport to account for Alzheimer's disease patients treated by other physicians. Thus, the need identified by Dr. Loeser's survey, while underinclusive of total need, is reasonably accurate for the need identified. Palm Beach County currently has at least an estimated 16,597 persons suffering from Alzheimer's disease, and this number is expected to be 18,172 by 1988. T. 24. HRS itself estimates that the number of Alzheimer's victims in Palm Beach County in 1986 to be 27,200. Petitioner's Exhibit 6. It is further estimated that approximately 80 percent of such patients will require some sort of custodial care in the future. T. 76. Based upon the foregoing statistics, as well as the fact that existing Palm Beach County nursing homes do not provide special services or care for Alzheimer's disease patients, there is a need for the Alzheimer facility proposed by the Petitioner. The Petitioner proposes to establish a 120 bed nursing home in Palm Beach County designed and staffed to provide care and treatment to meet the special needs of persons suffering from Alzheimer's disease and related disorders. T. 45. The Petitioner, Health Care and Retirement Corporation of America, d/b/a Heartland of Palm Beach, is willing to have any certificate of need issued in this case to be conditioned upon it building, developing, and operating the proposed nursing home limited as it has proposed in this formal administrative hearing. T. 48-49. Thus, findings of fact 18 through 21 which follow relate to the manner in which the Petitioner proposes that a certificate of need may be conditioned and limited. The proposed physical design of the nursing facility is set forth in Petitioner's Exhibit 1. T. 49. The cost is estimated to be $3.7 million. T. The design includes a courtyard to allow patients to wander safely. T. 41. It also includes a shaded porch, an outdoor patio, and a lounge off the patio. Id. Security from wandering is proposed to be provided by a "Wanderguard" system of wristbands and sensing devices that sound an alarm as a patient passes an exit point. Id. Additionally, the proposed facility would have a therapeutic residential kitchen for patients still able to use a residential kitchen. Id. One room would be set aside as a quiet room. T. 42. It is contemplated that such a room will minimize the need for calming drugs. T. 224. Also to be provided are separate dining areas, areas for therapy, and separate nursing wings and sub-acute care wings. T. 42-43. Alzheimer patients would be separated from non-Alzheimer patients, fixtures would have shapes, colors, and labels to facilitate identification; wall and floor coverings would not use patterns, and the flooring would be vinyl or tile instead of carpet. T. 42, 225-228. The proposed plan of the facility contemplates that there be space for all stages of care for Alzheimer's patients: day care, respite care, nursing care, and sub-acute care. Petitioner's Exhibit 1; T. 221-222, 39-40, 56. The Petitioner also proposes to provide individual treatment plans, to include physical therapy, occupational therapy, social work, and recreational therapy. T. 230-231. Support groups for family members of the patient will be provided. T. 233. The Petitioner states that the staff for the proposed facility must be appropriately trained to know Alzheimer's disease and the special needs of these patients. T. 234. Ongoing education for staff is viewed as being imperative. Id. The Petitioner recognizes the need to provide greater staffing for peak periods. T. 235. Monthly in-service training will be provided by the parent corporation. T. 236. Moreover, the parent corporation, Health Care and Retirement Corporation of America, will develop and implement a program of staff training specifically for Alzheimer's disease. T. 237. Staff for the proposed facility will be adequately trained to properly deal with the problems of Alzheimer's patients. For a 24 hour period, a staff to patient ratio of 1 to 2.5 will be provided. T. 238. This ratio includes only nursing staff, aides, and activities and occupational rehabilitation staff. Id. The Petitioner proposes to designate and commit its entire facility to Alzheimer's patients. T. 60. But from a fiscal point of view, the Petitioner proposes to not deny admission to persons not having Alzheimer's disease. T. 66-68. At least 60 beds will be dedicated to patients with Alzheimer's disease, and these are expected to fill with persons in stages two and three of the disease. T. 67-68. When these patients reach more advanced stages of their disease, it is expected that they will be treated in the other 60 bed section, which is skilled nursing and sub-acute care. T. 68; Petitioner's Exhibit 1. Thus, the Petitioner expects ultimately to fill its entire facility with Alzheimer's disease patients consistent with its dedication and purpose. The facility proposed by the Petitioner would meet the unique needs of Alzheimer's disease patients and their families, and would be the only facility in Palm Beach County to provide a wide spectrum of care for Alzheimer's disease patients. Petitioner's proposal is consistent with priorities IV, V 3 and 4, and VI, Long Term Care section, District IX Health Plan (1985). T. 150-152. On March 6, 1986, the General Counsel of the Department of Health and Rehabilitative Services sent a memorandum to "all attorneys" construing and implementing the decision in the Gulf Court case, Gulf Court Nursing Center v. DHRS, 10 F.L.W. 1983 (Fla. 1st DCA 1985). On the next day, Robert E. Maryanski, Administrator, Community Medical Facilities, Officer of Health Planning and Development, sent the memorandum to his staff and told them to use the opinion as a guideline for the initial review of a CON application settlement and preparation for hearings. HRS Exhibit 6. HRS recognizes that there are three ways that an applicant for a certificate of need for nursing home beds can show need even though the rule shows a zero bed need. The third way is for "equivalent assessments" to be submitted by "attending physician." T. 113; HRS Exhibit 4, rule 10- 5.11(21)(b)10, F.A.C. HRS staff construes rule 10-5.11(21)(b)10, F.A.C., as requiring that each attending physician of each Alzheimer's patient document that his or her patient is in need of specialized services and that the patient is without access to those special services. T. 124. The issuance of certificate of need 4194 to the Joseph L. Morse Geriatric Center was issued pursuant to the special circumstances exception of rule 10-5.11(21)(b)10, F.A.C., since the rule did not show bed need. T. 127. There was nothing in the application in that case to show that elderly Jewish persons were denied access to existing nursing home facilities in Palm Beach County. Id. See also T. 130. There was, however, evidence that a large group of elderly Jewish persons were not being provided kosher dietary services at existing nursing homes. T. 129, 134. This evidence was not presented by attending physicians, however. T. 136. The certificate of need 4194 to the Joseph L. Morse Geriatric Center was also approved using priority VI, long term care section, District 9 local health plan, which provides in the second sentence for consideration of "ethnic- type services including special dietary requirements . . . ." HRS Exhibit 7; T. 134. Due to changes in federal funding, patients needing sub-acute care (less than hospital care, but more than an ordinary nursing home) do not qualify for cost reimbursement. T. 85-88. It appears that about one-half of all nursing home admissions in Palm Beach County are for three months or less. This may be a pool of persons needing sub-acute care. Petitioner's Exhibit 3, Long Term Care Section, page 4; T. 27-28. There was other general testimony that there was a "need for sub-acute care in Palm Beach County, T. 88, 146, and the local health plan, priority V 4, page 31, supports the grant of a certificate of need to an applicant that will provide such care. Petitioner Exhibit 3. There is also a need for sub-acute care in the final stages of Alzheimer's disease to provide continuity of care. T. 221. See also finding of fact 10. No one has petitioned to intervene in this case.
Recommendation Based upon the foregoing, it is recommended that the Department of Health and Rehabilitative Services, pursuant to Rule 10-5.11(21)(b)10, Florida Administrative Code, and Section 381.494(8)(c), Florida Statutes, issue a certificate of need to Health Care and Retirement Corporation of American, d/b/a Heartland of Palm Beach, for 120 community nursing home beds limited and conditioned upon all such beds being dedicated only to the provision of such services and facilities for victims of Alzheimer's disease as described by the Petitioner in this case and set forth in findings of fact 18 through 21 of this order, with 30 of such beds established for sub-acute care needs of Alzheimer's disease patients. It is further recommended that the certificate of need not contain approval for general community nursing home beds, but be limited to Alzheimer's disease patients. DONE and ORDERED this 8th day of July, 1986, in Tallahassee, Florida. WILLIAM C. SHERRILL, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of July, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 84-3337 Pursuant to section 120.59(2), Fla. Stat., the following are specific rulings upon all proposed findings of fact submitted by the parties which have been rejected in this Recommended Order. Findings of Fact Proposed by the PETITIONER: 7. Sentences 3 and 4 have been rejected because the evidence was not sufficiently complete to describe nursing homes in Florida in general, and because the issue in this case is the need in Palm Beach County, thus making these proposed facts not relevant. 10. Sentence 3 is rejected since the testimony did not clearly show that therapeutic kitchens "should be available." 13. Sentences 9 and 10 are rejected because the evidence did not categorically show that it "would not be possible" to use actual physician orders, or that "physicians do not typically arrange their records so that orders of that kind could be extracted from their records." Similarly sentence 12 is rejected for lack of categorical evidence to prove impossibility. 17. Evidence that the entire facility is "completely fenced and enclosed" cannot be located in the record, and thus sentence 7 is rejected. The bulk of the discussion in proposed finding of fact 20 has been rejected because it is argument or conclusions of law. Those portions of this proposed finding which propose a finding that the Respondent's interpretation of rule 10-5.11(21)(b)10, Florida Administrative Code, is wrong or unreasonable are rejected as argument or conclusions of law. Most of the factual statements were adopted. Findings of Fact Proposed by the RESPONDENT: All proposed findings of fact by the Respondent have been adopted in substance. COPIES FURNISHED: Harden King, Esquire Assistant General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Suite 407 Tallahassee, Florida 32301 Kenneth A. Hoffman, Esquire G. Steven Pfeiffer, Esquire Laramore & Clark, P.A. 325 North Calhoun Street Tallahassee, Florida 32301 William Page, Jr. Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 =================================================================
The Issue Should Respondent, Agency for Health Care Administration, rate Petitioner's, Beverly Healthcare Evans, nursing home facility license "Conditional" for the 60-day period of January 8 through March 5, 2001, pursuant to Section 400.23(7), Florida Statutes? In particular, did Petitioner commit the acts or omissions alleged in Tags F281, F326, and F426 as determined in Respondent's periodic survey concluded on November 15, 2000? Are Tags F281, F326, and F426 "Class III" deficiencies as defined in Section 400.23(8)(b), Florida Statutes (2000)? Did the results of Respondent's survey concluded on January 8, 2001, reveal "Class III" deficiencies that were uncorrected on or before February 8, 2001, the time specified by Respondent? If so, was Petitioner's "Conditional" rating for the 60-day period of January 8 through March 5, 2001, appropriate?
Findings Of Fact Evans is a nursing home located at 5405 Babcock Street, Northeast, Fort Myers, Florida, which is duly-licensed under Chapter 400, Part II, Florida Statutes. AHCA is the state agency responsible for evaluating nursing homes in Florida pursuant to Section 400.23(7), Florida Statutes. As such, it is required to evaluate nursing homes in Florida in accordance with Section 400.23(8), Florida Statutes. AHCA evaluates all Florida nursing homes at least every 15 months and assigns a rating of standard or conditional to each licensee. In addition to its regulatory duties under Florida law, AHCA is the state "survey agency," which, on behalf of the federal government, monitors nursing homes that receive Medicaid or Medicare funds. This standard is made applicable to nursing homes in Florida pursuant to Rule 59A-4.1288, Florida Administrative Code, which provides: Nursing 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. Non-certified facilities must follow the contents of this rule and the standards contained in the Conditions of Participation found in 42 C.F.R. 483, Requirements for Long Term Care Facilities, September 26, 1991, which is incorporated by reference with respect to social services, dental services, infection control, dietary and the therapies. AHCA conducted an annual survey of Evans on November 15, 2000, and alleged that there were three deficiencies. These deficiencies were organized and described in a survey report by "Tags," numbered F281, F326, and F426. The results of the survey were noted on an AHCA form entitled "Statement of Deficiencies and Plan of Correction." The parties refer to this form as the HCFA 2567-L or the "2567." AHCA conducted a follow-up survey of Evans, which was completed on January 8, 2001. The 2567 is the document used to charge nursing homes with deficiencies that violate applicable law. The 2567 identified each alleged deficiency by reference to a Tag number. Each Tag on the 2567 includes a narrative description of the allegations against Evans and cites a provision of the relevant rule or rules in the Florida Administrative Code violated by the alleged deficiency. To protect the privacy of nursing home residents, the 2567 and this Recommended Order refer to each resident by a number (Resident 1, etc.) rather than by the name of the resident. AHCA must assign a class rating of I, II or III to any deficiency that it identifies during a survey. The ratings reflect the severity of the identified deficiency, with Class I being the most severe and Class III being the least severe deficiency. There are three Tags (F281, F326, and F426) at issue in the case at bar, and, as a result of the November 15, 2000, survey, AHCA assigned each Tag a Class III deficiency rating. Tag F281 generally alleged that Evans failed to meet professional standards of quality, evidenced by examples of three residents, in violation of 42 C.F.R. Section 483.20(k)(3)(i), which provides: Comprehensive Care Plans The services provided or arranged by the facility must--- Meet professional standards of quality. Tag F326 generally alleged that Evans failed to ensure that a resident received a therapeutic diet, when there was a nutritional problem, in violation of 42 C.F.R. Section 483.25(i)(2), which provides, in pertinent part: (i) Nutrition. Based on a resident's comprehensive assessment, the facility must ensure that a resident--. (2) Receives a therapeutic diet when there is a nutritional problem. Tag F426 generally alleged that Evans failed to provide pharmaceutical services to meet the needs of the residents, evidenced by examples of three residents, in violation of 42 C.F.R. Section 483.60(a), which provides: Procedures. A facility must provide pharmaceutical services (including procedures that assure the accurate acquiring, receiving, dispensing, and administering of all drugs and biologicals) to meet the needs of each resident. The November 15, 2000, survey cites three Class III deficiencies. AHCA's January 8, 2001, survey cites repeated (or failure to correct the three) Class III tag violations cited in the November 15, 2000, survey. Effective January 8, 2001, AHCA changed the rating of Evans' license from Standard to Conditional. Tag F281 - NOVEMBER 15, 2000 - SURVEY Tag F281, a Class III deficiency, generally alleged that Evans failed to meet professional standards of quality of care regarding three residents in violation of 42 C.F.R. Section 483.20(k)(3)(i). Glenn T. Boyles, a surveyor/pharmacist for AHCA and qualified as an expert pharmacist, testified that a nurse for Evans, on November 15, 2000, was observed not to have followed the professional standards and quality in preparing and administering medications for three residents. Boyles observed the nurse preparing the drug Colace for administration by removing the medications from the manufacturer's bottle and placing the medications into her hand before placing these medications into a soufflé cup. Boyles also observed the same nurse pre-pour two doses of Colace liquid for administration to two other residents. Medications are not to be pre-poured or touched with the fingers except when opening a capsule to empty the medication into a cup, which is not the case here. The correct number of tablets or capsules are to be poured directly into the medication cup. In a discussion with the Director of Nurses for Evans about the above observations, the Director of Nurses substantially acknowledged that the nurse's actions were an inappropriate standard of practice. Boyles opined that there was an increased risk of contamination; there was a potential for subsequent infectious conditions that would affect the resident; pre-pouring the medication increased the opportunity for the dosages to be contaminated by organisms of an infectious nature which could, in turn, be transferred to the resident; and there was an increased risk of administering the medications to the wrong residents. Evans' contention that hand washing by the nurse prior to administering medications and the length of time the Colace capsule was in contact with the nurse's hands resulted in minimizing the chance of actual contamination misses the mark of no hands on the actual medication to be administered and no pre- pouring as was the case here. Based upon Findings of Fact 11 through 16 hereinabove, AHCA has proved that Evans failed to follow policy and to meet the professional standards of quality in preparing and administering medications regarding the three residents who were subjects of Tag F281 as to the November 15, 2000, survey. TAG F281 - JANUARY 8, 2001 - SURVEY Tag F281, a Class III deficiency, generally alleges that Evans failed to meet professional standards of quality of care regarding Resident 2 and Resident 7. Resident 2 Lori Riddle, AHCA's surveyor, during the January 8, 2001, follow-up survey of the November 15, 2000, survey, conducted a survey involving Resident 2. A review of Resident 2's medical records revealed multiple diagnoses, one of which was convulsions, for which the anti-convulsant medication Dilantin was prescribed to be taken four times a day. The importance of taking the anti-convulsant medication Dilantin as prescribed is to maintain a therapeutic level of the drug in the body to prevent convulsions. Resident 2's medical administration record (MAR) reflected that the resident refused medication, by spitting out the Dilantin, on seven different occasions in December 2000 and on five different occasions in January 2001. Resident 2 was not taking the medication as prescribed, and there was no documentation by Evans' staff that the physician had been alerted to the fact that Resident 2 was not taking the prescribed medication. It was the responsibility of Evans' nursing staff to inform the physician that Resident 2 was not taking the prescribed medication, for whatever reason. Evans had no documentation or facility staff testimony evidencing the fact that a nurse contacted the physician concerning Resident 2 spitting out the prescribed medication, Dilantin. Dr. Dosani, resident physician, after completion of the January 8, 2001, survey, informed the surveyor that the doctor had been notified that Resident 2 was spitting out the prescribed medication, Dalantin. Jim Marrione, expert in nursing practices and procedures, opined that Evans failed to provide services that met professional standards of quality as to Resident 2 under the facts and circumstances presented at the time. Evans does not contest and, in fact, agreed that its staff did not document Resident 2's repeated spitting out of the Dalantin and, thus, was not in compliance of assuring the accurate dosage of prescribed medication. Failure to document Resident 2 spitting out the medication at the time it occurred, when coupled with the failure to document advising the resident's physician of the situation, resulted in Resident 2 not receiving medication four times a day. AHCA has proved the allegations regarding Resident 2, Tag F281 of the January 8, 2001, survey, regarding the failure to properly medicate the resident with anti-convulsant medication, Dilantin, four times a day. Resident 7 Jim Marrione, a surveyor and an expert in nursing practices and procedures, conducted a survey of Resident 7 during the survey of January 8, 2001. According to Marrione, Resident 7 suffered pneumonia and chronic airway obstruction and hypoxemia. In his opinion, Evans was out of compliance with standards of practice for the following reasons: (i) failure to document daily record of oxygen saturation rates as ordered by the physician on October 23, 2000; (ii) failure to document the monitoring of daily oxygen saturation on December 25 and 26, 2000; and (iii) failure to document the monitoring of daily oxygen saturation on January 3, 4, 5, and 6, 2001. Daily monitoring of the oxygen saturation rate indicated that the doctor wanted to make sure that the resident's saturation rate was maintained at an acceptable level. The potential harm that results from the failure to document the saturation rate is respiratory failure of the resident. This failure to document the daily oxygen saturation rate was beneath the professional standards of quality and in violation of the Nursing Practice Act. Evans' contention that other manifested physical symptoms would be more observable indicators of respiratory failure begs the question of quality care that is intended to avoid and prevent, when possible, respiratory failure in residents. The standard of care does not permit substitution of more observable indicators of potential respiratory failure. AHCA has proven Evans' failure to document the daily record of oxygen saturation rates; failure to document the monitoring of daily oxygen saturation on December 25 and 26, 2000; and failure to document the monitoring of daily oxygen saturation on January 3, 4, 5, and 6, 2001. TAG F326 - NOVEMBER 15, 2000 - SURVEY Tag F326, a Class III deficiency, generally alleges that Evans failed to ensure that Resident 6 received a therapeutic diet,1 when there was a nutritional problem, in violation of 42 C.F.R. Section 483.25(i)(2). Resident 6 Mary Maloney, an expert in nutrition, surveyed Resident 6 who had multiple diagnoses, including being severely underweight, chronic renal failure, diabetes, dysphagia (difficulty in swallowing), and other conditions that caused him to be much debilitated, bed bound and, therefore, requiring a specialized tube feeding formula for diabetes and a gastrostomy tube for the dysphagia. According to Maloney, Resident 6's ideal body weight (IBW) was 136 pounds; therefore, the care plan goal for this resident was weight increase. Evans' nutritional assessment for Resident 6 dated September 19, 2000, revealed that the resident weighed 122 pounds on September 9, 2000, and his caloric needs were 1,706 per day. The nutritional assessment dated September 25, 2000, assessed Resident 6's caloric needs at 1,6ll calories; however, the resident was only receiving 1,380 calories. Evans' dietician recommended increasing the tube feeding from 60ccs to 65ccs over a 23-hour period, providing 1,495 calories over a 24-hour period. The caloric increase recommended by Evans' dietician, in Maloney's expert opinion, did not meet Resident 6's caloric needs. Maloney opined that the initial assessment documented Resident 6 as underweight and did not include sufficient additional calories to promote weight gain (the target weight of 136 pounds). Even with the additional tube feeding increase to provide 1,495 calories, there was a deficit of 116 calories from the initial assessment of 1,611 calories. Inquiry was made of an Evans' dietician, Andrea, as to why Resident 6 was not receiving the calorie amount assessed (1,495 calories), to which she replied that Resident 6 had hemoptysis (spitting up blood). Review of Resident 6's medical records revealed only periodically excessive sputum and no documented episodes specifically related to hemoptysis. In the opinion of Maloney, not receiving enough calories for this resident, who was underweight and suffering with pressure sores, may have delayed healing of the pressure sores and resulted in a continued weight loss. Further, holistic consideration of Resident 6's debilitated condition, with the addition of a failure to receive sufficient calories, over time would not assist but would rather delay or defeat Resident 6's efforts to reach the resident's highest practicable condition. AHCA has proven, by a preponderance of the evidence, the allegations of failure of Evans to provide therapeutic diet for the nutritional problems suffered by Resident 6, Tag F326 of the November 15, 2000, survey. TAG F326 - JANUARY 8, 2001 - SURVEY Resident 7 AHCA surveyor, Jim Marrione, testified concerning Resident 7. Evans stipulated to the factual allegations contained in paragraph 2 of Tag F326 of the survey report of January 8, 2001, to wit: Based on the record review, observations and interview with the Dietician and staff nurse two (Resident 7 and Resident 10) of 13 active residents of the facility were sampled. Resident 7 was admitted to the facility with multiple diagnoses, including dysphagia (difficulty in swallowing). The medical orders on October 23, 2000, revealed that Resident 7 was to receive thickened liquids, nectar consistency, that the resident was capable of swallowing. The nectar-thickened liquids were a mechanically altered and therapeutic diet plan. Evans was to protect the resident from receiving any thin liquids that could cause him difficulty in swallowing. The potential for harm to this resident could have been choking if given non-thickened juices or water. On January 7, 2001, the surveyor observed Resident 7 being given non-thickened orange juice, and on January 8, 2001, again observed Resident 7 being given non-thickened water. Resident 10 Surveyor Norbert Smith's deposition testimony was admitted in lieu of his personal appearance. Evans objected to Smith's deposition testimony that was not related to and/or specifically contained in the 2567 survey report dated January 8, 2001. Resident 10 was admitted to the facility on May 24, 2000, whose diagnoses included dysphagia (difficulty in swallowing). The physician's order of September 23, 2000, required a "pureed" NCS (No Concentrated Sweets) diet, and the order of October 24, 2000, gives instruction to thicken all liquids to honey consistency for all meals, med passes, and activities. Smith observed Resident 10 on January 7, 2001, in the dining room, and at 12:40 p.m., observed the resident being served prune juice thickened by Evans' Quality Assurance Director (QAD) to the consistency of Jell-O and served soup that did not appear to be of honey consistency. The surveyor opined that the Mighty Shake (milk shake) being served Resident 10 did not appear to be honey-thickened. When Smith queried Evans' nurse about the Mighty Shake's thickness, she replied, "This is as close to honey thickened as they get." Smith inquired of Evans' QAD if the Mighty Shake and soup were honey thickened, and the QAD acknowledged she did not know. Evans' dietician became involved in this issue and confirmed that the soup served to Resident 10 was nectar- thickened and the Mighty Shake had to be further thickened to be considered honey-thickened. In the afternoon of January 7, 2001, Smith entered Resident 10's room and asked the staff nurse in the room at that time to check if the water on Resident 10's bedside stand was honey-thickened. Upon examination by the staff nurse, she determined that the water was not honey-thickened. Smith defined "dysphagia" as a condition where one's windpipe does not cover when swallowing, as it should. Therefore, when people suffering with dysphagia drink a liquid, unless thickened, that person could choke or aspirate and possibly die. Evans' two contentions: (1) AHCA's November allegation concerned "adequate diet to maintain acceptable nutritional status," was purportedly corrected; and (2) AHCA's January allegations of non-thickened liquids is different from the November allegation or at best is de minimus, are inadequate. AHCA has proven by a preponderance of evidence the allegation that Evans failed to thicken all liquids to honey consistency for all meals, med passes, and activities with regard to Resident 10 and, therefore, did not ensure that the resident received a therapeutic diet as ordered by the physician. TAG F426 - NOVEMBER 15, 2000 - SURVEY Tag F426, a Class III deficiency, generally alleges that Evans failed to provide pharmaceutical services (including procedures that assure the accurate acquiring, receiving, dispensing, and administering of all drugs and biologicals) to meet the needs of the residents, in violation of 42 C.F.R. Section 483.60(a). Glenn T. Boyles, AHCA's surveyor/pharmacist, gave testimony regarding allegations of paragraph 1 of Tag F426 of the November 15, 2000, survey report. According to Boyles, based upon his observations, record review and interviews with staff, he determined that Evans did not provide pharmaceutical services to meet the needs of three residents. Boyles testified that in his opinion a nurse failed to wait the federally prescribed amount of time (five minutes) between administering eye drops, and did not properly measure the prescribed amount of Abuterol solution (eye drops) for administration. The above-observed deficiencies created the potential for harm to the resident that would be more than minimal because the physician had ordered the resident to receive the medication's effect of two eye drops. The improper administration caused the resident to receive the medication's effect of only one eye drop. The improper administration also created the potential for harm because the physician had ordered a prescribed amount of solution to be used, and the nurse, when preparing the medication, did not properly measure the amount prescribed by the physician. In paragraph 2 of Tag F426 of the survey report, Boyles found two instances of non-compliance by Evans. First, Evans stocked an expired tube of ointment and allowed the expired medication to remain in the medication room. In doing so, Evans did not take steps to limit the possibility that the resident may receive a less than full potency antibiotic ointment. An outdated and expired antibiotic would not be as strong in combating the infection for which it was prescribed. Second, Evans failed to return medications prescribed for a resident who left the facility two months before the survey. The failure to return medication violated Evans' policy that states a medication form must be completed within 15 days of discharge (of a resident), and the policy sets out the procedure to be taken (return or destroy) with medications based on the class of the medication. In Boyles' opinion, the potential for harm is that Evans did not preclude the diversion to a resident or staff for whom the medications were not intended. Evans did not dispute the above Findings of Fact numbered 49 through 53, contending that the SOM guidelines contained no directive to surveyors to cite medication administration error as violations of the Tag, but rather directed surveyors to determine whether Evans' system provides that Evans' pharmaceutical services result in medication being available to residents. The requirement is clear that Evans must provide pharmaceutical services (including procedures that ensure the accurate acquiring, receiving, dispensing, and administering of all drugs and biologicals) to meet the needs of each resident. AHCA has proved by a preponderance of the evidence that Evans failed to provide pharmaceutical services (including procedures that ensure the accurate acquiring, receiving, dispensing, and administering of all drugs and biologicals) to meet the needs of the residents hereinabove cited. In paragraph 3 of Tag F426 of the survey report of November 15, 2000, Boyles reported (subsection A) that Evans failed to administer medications from September 20, 2000, to October 28, 2000, to a resident on dialysis. In the opinion of Boyles, this omission resulted from the failure of Evans' staff to comply with the physician's instructions that they "may" omit the resident's medications on days the resident underwent dialysis treatment, i.e. Tuesday, Thursday, and Saturday. Boyles further opined that Evans was to "hold" (not administer) these medications three days a week before the dialysis treatments. Boyles opined that Evans' nurses disregarded the physician's "hold" medication instructions and gave the medication before dialysis treatment on the above days. In Boyles' opinion, the medication and its effect was subsequently removed by the dialysis treatment. Further, Evan's staff did not re-administer the medication after each dialysis treatment, and thereby, did not ensure the accurate administration of medication as called for by 42 C.F.R. Section 483.60(a). Regarding paragraph 3 of Tag F426 of the survey report (subsection B) of November 15, 2000, Boyles reported that Evans was non-compliant for its failure to ensure accurate administration of drugs to Resident 4. This resident's physician prescribed the drugs Vasotec (for hypertension) and Diflucan. Both drugs, after being administered, were removed by the resident's dialysis treatment on Tuesdays, Thursdays, and Saturdays. Boyles opined that Evans, knowing the drugs were removed by dialysis, should have given Resident 4 supplemental doses of the prescribed drugs on Tuesdays, Thursdays, and Saturdays, after dialysis treatment. Boyles opined that the potential harm would be the negative effect that the absence of the anti-hypertension medication would have on the resident's ability to excrete urine, an added complication to the resident's dialysis treatment. As to paragraph 3 of Tag F426 (subsection A) Evans contends that the physician's order stated "may" withhold medications on dialysis days and that Boyles' opinion that Evans should have withheld medication until after dialysis treatment (or administered medication after dialysis treatment) would be in violation of the physician's order. Evans points to the fact that on October 28, 2000, the physician clarified the order to indicate that Evans should "not" (with) hold administration of medications on dialysis days. Evans' position hereinabove does not address the failure to ensure "accurate" administration of drugs to Resident 4. Should Evans' nursing staff doubt, question or be confused regarding the intent and meaning of the physician's instructions or content of the order, they were under professional obligation to seek clarification from the physician so as to maintain the required standard to ensure accurate administration of drugs on dialysis days. Accordingly, AHCA has proven by a preponderance of evidence that Evans failed to provide pharmaceutical services (including procedures that assure the accurate acquiring, receiving, dispensing, and administering of all drugs and biologicals) to meet the needs of the residents in paragraphs 1, 2, and 3 of Tag F426. TAG F426 - JANUARY 8, 2001 - SURVEY In the January 8, 2001, survey report, Tag F426, ACHA determined that Evans failed to provide pharmaceutical services to meet the needs of the residents, in violation of 42 C.F.R. Section 483.60(a). It was alleged by AHCA that Evans failed to comply with the regulations because Evans did not ensure accurate dispensing and administrating of drugs to meet the needs of each resident. The surveyor observed expired drugs in the A Wing and B Wing refrigerators. AHCA further alleged that Evans did not ensure that residents received their medications within one hour before and after the scheduled medication time. Lori Riddle, surveyor, testified that Evans' nurse was still passing out medications to residents at 12:00 noon. Evans does not dispute that morning medication for the A Wing were to be administered at 9:00 a.m. Mariana Yingling informed Riddle that she was an "Evans" nurse, paid by Evans. She admitted that even though the medications were not timely administered, she signed off as having given the medications at 9:00 a.m. Nurse Yingling acknowledged that as an Evans' nurse, she believed she was to be held to the same standards of nursing as a regular full-time employee responsible for ensuring compliance with Evans' policy: to wit, medications are to be administered within one hour before and one hour after the scheduled time, which was 9:00 a.m. for the A Wing and the B Wing. In Riddle's opinion, the potential for harm to residents if the drugs were not timely administered would be that the effectiveness of the drugs would be affected. If drugs were administered too close in time, there would exist a potential for toxicity and other related side effects. It is undisputed that four residents did not receive their medication in a timely fashion in violation of Evans' own policy. AHCA has proven by a preponderance of the evidence that Evans failed to provide pharmaceutical services (including procedures that ensure the accurate acquiring, receiving, dispensing, and administering of all drugs and biologicals) to meet the needs of the residents as alleged under Tag F426. Evans does not dispute the above facts in Tag F426. On January 8, 2001, Jim Marrione, a registered nurse surveyor, saw medication in the medication room of the A Wing that expired "after 12/21/00." Marrione was informed by an Evans' nurse that the drug belonged to a resident who had died "last week," confirming that the drug should have been discarded as required by Evan's policy. On the above date, Marrione looked in the refrigerator of the B Wing medication room and found that two bottles of Ri Max, an over-the-counter antacid, were stored in the refrigerator and had expired on "12/00." Marrione opined that the potential for harm existed with the expired medications because of their lost of potency, which deprived the residents of the intended full benefits of the medications. Evans did not dispute the allegations regarding the expired medications in the refrigerators located in the A Wing and in the B Wing of the facility. Accordingly, AHCA proved, by a preponderance of the evidence, that Evans failed to ensure the accurate acquiring, receiving, dispensing, and administering of all drugs and biologicals to meet the needs of each resident by Findings of Fact 62 through 69 hereinabove.
Recommendation Upon consideration of the Findings of Fact and Conclusions of Law reached, it is RECOMMENDED: That a final order be entered in which Respondent assigns Petitioner a Conditional license for the period of January 8, 2001 through March 5, 2001. DONE AND ENTERED this 8th day of October, 2002, in Tallahassee, Leon County, Florida. FRED L. BUCKINE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of October, 2002.
The Issue Whether Respondent's license as a nursing home administrator in the State of Florida should be suspended, revoked, or otherwise disciplined for the alleged violation of Chapter 468, Florida Statutes, as set forth in the Administrative Complaint filed October 10, 1988. The Administrative Complaint charges Respondent with violating Section 468.1755(1)(g), Florida Statutes, because of alleged negligence, incompetence or misconduct in the practice of nursing home administration, and Section 468.1755(1)(m), Florida Statutes, as a result of willfully or repeatedly violating any of the provisions of the law, code or rules of the licensing or supervising authority or agency of the state having jurisdiction of the operation and licensing of nursing homes. The charges are based on the allegation that Respondent was the Administrator in charge of a nursing home in Miami, Florida while also acting in the capacity of Administrator at another facility without having a qualified Assistant Administrator to act in his absence. This case was originally scheduled for hearing on March 26, 1989. That hearing was continued while the parties attempted to finalize a settlement agreement. On April 25, 1989, the Petitioner, Department of Professional Regulation, Board of Nursing Home Administrators entered a Final Order imposing a reprimand on Respondent. Respondent objected to the Final Order and contended that it was not in accordance with the settlement negotiations that took place. A Notice of Appeal was filed in connection with the Final Order. Subsequently, the parties agreed that the appeal should be dismissed and the case was remanded to the Division of Administrative Hearings to conduct a formal administrative hearing. At the hearing, Petitioner called two witnesses: James W. Bavetta, an inspector with the Department of Health and Rehabilitative Services, Office of Licensure and Certification and William Carl Wheatley, Jr., a licensed Nursing Home Administrator in the State of Florida, who was accepted as an expert in the field of nursing home administration. The Petitioner offered three exhibits into evidence all of which were accepted. The Respondent testified on his own behalf and had fourteen exhibits marked, all of which were accepted into evidence except Respondent's Exhibit 2 which was not offered. At the conclusion of the hearing, the parties requested and were granted an opportunity to brief certain legal issues raised during the hearing in order to obtain a ruling on those issues prior to submitting proposed recommended orders. However, the parties subsequently withdrew this request and by Agreed Order dated December 29, 1989, the parties were granted until January 29, 1990 to file their proposed recommended orders. The parties were also granted fifteen days after submission of proposed recommended orders to file a reply memoranda to the legal issues raised in the proposals. Both parties filed proposed recommended orders. In addition, Respondent filed a Memorandum Brief regarding certain legal issues raised. The Petitioner did not file a separate brief on the legal issues. The Petitioner's proposed recommended order was filed on January 30, 1990. By notice filed on February 5, 1990, the Respondent waived any objection to the late filing of Petitioner's Recommended Order. All submittals have been reviewed and considered in the preparation of this Recommended Order. A ruling on each of the parties' proposed findings of fact is included in the Appendix to this Recommended Order. Prior to the hearing, Respondent had filed a Motion to Compel Complete Response to Respondent's Request for Production of Documents. That Motion was related to the purported failure by the Department of Health and Rehabilitative Services to produce documents requested pursuant to subpoena Duces Tecum issued August 16, 1989. The Department of Health and Rehabilitative Services ("HRS") is not a party to this action, but it filed a Response to Motion to Compel indicating that HRS's records were not kept in a manner which would allow the agency to isolate the documents requested without going through every licensure file kept by the agency. HRS offered the Respondent an opportunity to undertake such an investigation. At the commencement of the hearing, the Respondent advised that he was prepared to go forward with the hearing without a ruling on the Motion to Compel. However, counsel for Respondent requested the opportunity to revisit this issue, if necessary, at the conclusion of the hearing. During the hearing, an investigator from HRS testified and produced certain documents relating to Respondent's Florida facility. In addition, the HRS investigator testified regarding certain HRS policies and procedures. Based upon the evidence adduced at the hearing, the Motion to Compel appears moot and Respondent has not addressed this issue in his proposed recommended order. Therefore, the Motion to Compel is denied. At Petitioner's request, official recognition has been taken of Rule 10D- 29.104(6)(c).
Findings Of Fact Based upon the testimony of the witnesses and documentary evidence received at the hearing and the entire record herein, I make the following findings of fact: The Respondent, is a licensed Nursing Home Administrator in the State of Florida, license number NH 0001018. He has been duly licensed in Florida since 1974-1975. At all times material hereto, the Respondent has been the nursing home administrator in charge at Riverside Care Center ("Riverside",) a nursing home located at 899 N.W. 4th Street, Miami Florida. Respondent has never been the designated nursing home administrator for any other facility licensed by or located in Florida. At all times material hereto, Riverside held and continues to hold a superior rating issued by Florida HRS pursuant to Section 400.23, Florida Statutes. At all times material hereto, Respondent has been a licensed nursing home administrator in the State of Kentucky, having been issued license number 420. Respondent has also been a licensed nursing home administrator in the State of Ohio since 1973. Other than the charges in this case, Respondent has never been the subject of disciplinary action or faced administrative charges in any of the states in which he is licensed. At all times material hereto, Respondent has been the licensed nursing home administrator in charge of Garrard Convalescent Home, (`1Garrard") located at 425 Garrard Street, Covington, Kentucky 41011. In December, 1985, as a part of the re-licensure process, Riverside filed DHRS Form 109 with MRS. The information contained on that form disclosed that Respondent served as an Administrator for Garrard which is a superior rated nursing home located in and licensed by the Commonwealth of Kentucky. Prior to July 11, 1986, Riverside designated in writing, Richard Stacey and Riverside's Director of Nursing, as the persons in charge and responsible for the facility in the absence of Respondent from the facility. On July 11, 1986, Richard Stacey, Respondent's brother, was a nursing home administrator licensed by Kentucky. Thus, he had passed the national examination. He had applied for an administrator's license by endorsement in Florida. Such license was issued to Mr. Stacey in 1986, but not until after July 11, 1986. On July 11, 1986, Respondent was in Cincinnati, Ohio, at Riverside's central business office, working on payroll for the facility. Richard Stacey was physically present and in charge of Riverside on that date. However, he was not a licensed administrator in Florida at that time. Betty Ward, a licensed administrator, was physically present and in charge at Garrard. On July 11, 1986, as the result of comments received from the HRS Medicaid Office, Audit Division, in Tallahassee, an MRS representative went to Riverside and determined that Respondent was not present at the facility. During the inspection, Mr. Bavetta, the MRS representative, did not look for nor did he find any evidence that the residents were not being cared for or that their rights were not being protected. As a result of the inspection, the HRS investigator issued a Recommendation for Sanctions against the facility for a purported violation of Florida Administrative Code Rule 10D-29.104(6)(c) and/or 10D-29.104(6)(d). A violation of either of those sections would generally constitute a Class III deficiency pursuant to Section 400.238(4), Florida Statutes. Class III deficiencies do not present a direct or immediate threat to the safety or welfare of the residents. The existence of a Class III deficiency or deficiencies does not automatically establish negligence, incompetence or misconduct on the part of the Administrator of the facility. As a matter of general policy, HRS does not seek administrative sanctions if a Class III deficiency is corrected within the prescribed time. In this case, no time to correct the deficiency was prescribed and HRS sought administrative sanctions against the facility. Within six (6) days of receipt of the notice by Riverside of the alleged violations of Florida Administrative Code Rule 10D-29.104(6), a licensed assistant administrator was hired by Riverside. The decision not to hire a licensed assistant administrator at Riverside prior to July 11, 1986 was based upon the advice of Respondent's attorney that such was not a requirement under Florida law. For the period January 1, 1985 through September 21, 1989, Petitioner has not filed charges against any other licensed nursing home administrator in the State of Florida except Respondent for an alleged violation of Florida Administrative Code Rule 10D-29.104(6)(c) or 10D-29.104(6)(d). Respondent's conduct of nursing home administration at Riverside was in conformity with the standard of practice utilized by a normal, prudent, responsible nursing home administrator in Florida.
Recommendation Based upon the foregoing facts and conclusions of law, it is RECOMMENDED that the Florida Board of Nursing Home Administrators enter a Final Order finding Ralph L. Stacey, Jr., not guilty of violating Section 468.1755(1)(g) and Section 468.1755(1)(m) Florida Statutes, and dismissing all the charges in the Administrative Complaint. DONE and ORDERED this 4th day of April 1990, in Tallahassee, Florida. J. STEVEN MENTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12 day of April 1990. APPENDIX TO RECOMMENDED ORDER CASE NO. 88-6233 Both the Petitioner and the Respondent submitted Proposed Recommended Orders which include proposed findings of fact and conclusions of law. The following rulings are directed towards the findings of fact contained in those proposals. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order were Accepted or Reason for Rejection. 1 Adopted in substance in Findings of Fact Adopted in substance in Findings of Fact 2. Adopted in substance in Findings of Fact 4. Adopted in substance in Findings of Fact 5. Adopted in substance in Findings of Fact 9. Adopted in substance in Findings of Fact 14. Adopted in substance in Findings of Fact 8. The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order were Accepted or Reason for Rejection. 1 Adopted in substance in Findings of Fact 2. Adopted in substance in Findings of Fact 4. 3. Adopted in substance in Findings of Fact 2. 4. Adopted in substance in Findings of Fact 3. 5. Adopted in substance in Findings of Fact 6. 6. Adopted in substance in Findings of Fact 7. 7. Adopted in substance in Findings of Fact 8. 8. Adopted in substance in Findings of Fact 9. Rejected as constituting a conclusion of law rather than a finding of fact. Adopted in substance in Findings of Fact 11. Adopted in substance in Findings of Fact 12. Adopted in substance in Findings of Fact 13. 13. Adopted in substance in Findings of Fact 15. 14. Adopted in substance in Findings of Fact 16. 15. Adopted in substance in Findings of Fact 17. 16. Subordinate to Findings of Fact 14. 17. Subordinate to Findings of Fact 13. 18. Rejected as constituting a conclusion of law rather than a finding of fact. 19. Adopted in substance in Findings of Fact 18. COPIES FURNISHED: Charles F. Tunnicliff Chief Attorney Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Kenneth S. Handmaker, Esquire Middleton & Reutlinger 2500 Brown & Williamson Tower Louisville, Kentucky 40202 Judie Ritter Executive Director 504 Daniel Building 111 East Coastline Drive Jacksonville, Florida 32202 Kenneth E. Easely, Esquire Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
The Issue Whether Petitioner's application for a Certificate of Need ("CON") authorizing establishment of a 60-bed sheltered nursing home adjacent to a 75-unit life care residential facility in HRS Health District IX, Palm Beach County, Florida, should be granted (in whole or in part), or denied.
Findings Of Fact I. The Proposal Petitioner is a not-for-profit Florida corporation organized to provide retirement and nursing home services to aged Episcopalians in the three Episcopal Dioceses in Florida: Central, Southwest and Southeast. Since 1951, Petitioner has operated a life care facility or community, with adjacent nursing home, in Davenport, Florida. It has 71 residential (well-care) units and 60 nursing home beds, operates at nearly full capacity, and has a 3-to-5 year waiting list. There are 128 residents at the facility, 57 of whom live in the nursing home. Petitioner now seeks to replicate the (Davenport) Crane Gray Inn in Lake Worth, Palm Beach County, Florida, in order to better serve the needs of older Episcopalians. The life care community, consisting of a 60-bed skilled nursing home and a 75- unit retirement facility, would be convenient to the residents of the Southeast Florida diocese, but is expected to draw residents throughout Florida. The 60-bed skilled nursing home, for which a CON is required, would be a one-story building measuring 19,100 square feet. Initially estimated to cost $1,705,515, or $68.06 per square foot to construct and equip, actual bids subsequently received have reduced the expected cost to $60.00 per square foot. The total cost of the entire project, including the well- care and nursing-care facilities, is estimated to be $3,600,000. Petitioner intends to obtain certification of the entire project as a continuing care facility in accordance with Chapter 651, Florida Statutes. In March, 1985, the State of Florida Department of Insurance and Treasurer issued Petitioner a provisional license to operate the proposed facility as a continuing care facility.2 Petitioner intends to comply with the reporting and escrow requirements which Chapter 651, Florida Statutes, imposes on life-care facilities. The admission requirements for the proposed life care facility are the same as those which have applied to the Davenport Crane Gray Inn ("Inn"). Before admission, a resident must execute a continuing care or "Resident's Agreement" with the Inn. Under that agreement, in exchange for the future maintenance and support of the resident at the Inn for the remainder of the applicant's life, the applicant transfers all of his or her real and personal property to the Inn. The resident also agrees to execute a will to the Inn to effectuate the transfer of property then owned or later acquired. No entrance fee is charged. The Inn promises to provide the resident with a personal living unit (including all utilities); three meals a day; health care (including medicine, physician fees, dental care, and hospitalization); recreational, educational, social and religious programs; funeral and burial costs; a monthly allowance for personal expenses; weekly maid service and laundry facilities; and transportation for shopping trips and other activities. Either party may terminate the agreement under specified conditions. On termination, the Inn will transfer back to the resident the property previously conveyed, or a sum equal to the value thereof, without interest and deducting therefrom an amount sufficient to compensate the Inn for the resident's care and support while at the Inn. If the resident becomes eligible for social security or government assistance, such assistance is paid to the Inn for the support of the resident. If the resident dies while at the Inn, all property transferred to the Inn on admission is considered to have been earned and becomes the property of the Inn. (Joint Exhibit I) There is no requirement that a prospective resident have any assets and applicants are ostensibly admitted without regard to their financial condition. (However, in the past ten years, only two Medicaid patients or indigent residents have been admitted to the Davenport Inn.) An account for each resident is maintained, to which earnings are transferred and costs of care deducted. Residents without assets are treated the same as those with assets and the account information is treated confidentially. Over time, the accounts of residents are depleted. Currently, 68% of the patients at the Davenport nursing home are Medicaid patients. The per diem rate reimbursed by Medicaid is $51.25. No resident has ever been transferred for lack of funds. However, the average resident, when admitted, transfers assets worth approximately $24,000 to the Inn. Prospective residents of the proposed nursing home will ordinarily come from the adjacent well-care retirement units. The purpose of the nursing home is to serve the individuals residing in the life care community who, as their needs intensify, require skilled nursing care. Only on rare occasions will an individual be admitted directly to the nursing home without first residing in the well-care portion of the life care community. At the Davenport Inn, this has happened only once. Petitioner acknowledges that prospective nursing home patients may come from eligible Episcopalians who reside in nursing homes in the local community. Actual residence in the well-care units will not be a prerequisite to admission to the nursing home. However, no person has been, or will be, admitted to the nursing home without first executing a continuing care agreement. Direct admission of nursing home patients from outside the life care center is permissible under "sheltered nursing home" rules, as construed by HRS officials. Robert E. Maryanski, Administrator of HRS' Community Medical Facilities Office of Health Planning and Development (which implements the CON licensing process) advised Petitioner's counsel on September 20, 1985, that under HRS rules, patients may--if necessary--be admitted directly to the proposed nursing home without first residing in the well-care units. Individuals who have paid for membership with the particular life care center, finding themselves in immediate need of nursing home care, may be directly admitted into the nursing home. (Petitioner's Ex. No. 11) If HRS rules were interpreted otherwise, perfunctory stops in well-care units "on the way to the nursing home" would be encouraged, a practice which would burden patients and serve no useful purpose. Although Petitioner's CON application does not specify a minimum age for admission to the life care community, Petitioner's life care centers are oriented toward members of the Episcopal Protestant Churches who are at an advanced age and "need a place to go for their last days... [In] a lot of cases they have outlived their own children." (TR-34) The average age of the patients in the Davenport nursing home is 89; in the well-care retirement units, 82. The average overall age of members of the Davenport life care community is 84 or 85. Approximately one-half of the residents eventually need nursing care. At Davenport, the minimal age for admission is 71. (TR- 12) According to a member of the Board of Directors of Petitioner, only patients 70 or over will be admitted to the life care community proposed for Palm Beach County. (TR-35) There is already a waiting list of ninety (90) qualified persons for the proposed life care community in Palm Beach County. Out of that figure, only five people currently require nursing home services. After executing the standard continuing care agreement, these five people would be admitted directly to the nursing home facility, without first residing in a well-care unit. Waiting lists are compiled six times a year, with the most recent completed only a week prior to hearing. Petitioner does not intend to utilize all the nursing home beds, since it must keep some beds open to meet the needs of well-care residents. Nursing home beds at the Palm Beach facility would be filled gradually, approximately two per week, so it would take six months to reach optimum capacity. The parties stipulate that all criteria for evaluating CON applications under Section 381.494(6)(c) and Rule 10-5.11, Florida Administrative Code, have been met or are inapplicable except for the following: The long-term financial feasibility of the project, the availability of operating capital, and the economic impact on other providers (Section 381.494(6) (c)8, 9, Fla. Stat.); The cost of construction (Section 381.494(6) (c)13, Fla. Stat.); The ratio of beds to residential units (Rule 10-5.11(22)(a), Fla. Admin. Code). II. Financial Feasibility The historical track record of the Davenport facility over the last 13 years and projections for the proposed facility demonstrate that the proposed nursing home is financially feasible and that Petitioner has, or can obtain sufficient funds to meet its operating costs. Moreover, as a licensed Chapter 651 life care facility, the financial viability of the entire operation will be monitored by the Department of Insurance. Assets available to support the costs of operating the life care community include income and assets derived from incoming residents; estates and bequests; and a fund of 1,300,000.00, functioning as an endowment, to be placed in escrow. The cost for a resident in the well-care units is approximately $27 per day; the cost in the nursing home is approximately $54 per day. Although there is a deficit of approximately $300 per month in the well-care section of the Davenport facility, there is no deficiency in the nursing home. Medicaid payments are sufficient to cover the costs of providing nursing care. Philanthropy should not be required to sustain the operation of the proposed nursing home. Petitioner has never had difficulty in obtaining financial support for its Davenport well-care units. More than one-half of the operating deficit for the well-care units was met by funds at work and did not depend on philanthropy. There are over 200 Episcopal Churches in the three Florida dioceses with 90-100,000 parishioners, who have been responsive to fund- raising efforts in the past. Last year, Petitioner raised $693,000 from fund raising drives. It is reasonably expected that this source of financial support will also be available to support the proposed life care facility, including the nursing home. An endowment fund of $1,300,000 is also available. These funds will be made available to support the proposed life care community. In addition, each new resident contributes an average of $24,000, which is used to defray operating costs. Barnett Bank will finance construction of the project at one-half percent over prime. Petitioner intends to pay off the capital debt in two or three years. The land has already been acquired and some land preparation costs have been paid. Petitioner has expended over $800,000, to date, on the proposed life care community. Petitioner has $120, 000 on hand for the project, in addition to escrowed reserves. An HRS health care planner has misgivings about the financial viability of the project since Petitioner has relied on philanthropy to support its Davenport facility, and would rely on it to some extent to support the proposed facility. However, Petitioner projects that 77% of the nursing home patients at the proposed facility will be Medicaid eligible. Due to efficiencies in operation, Medicaid payments should be sufficient to cover the costs of nursing home patients at the proposed facility, just as they have been at the Davenport nursing home. The various sources of funds available to Petitioner--proven wholly adequate in the past--should be sufficient to cover the other costs of operation and ensure the continued financial viability of the nursing home, as well as the associated well-care units. III. Cost of Construction HRS contends that the initial estimate of construction costs for the proposed nursing home ($68.00 per square foot) is excessive when compared to other 60-bed nursing facilities, where the cost is approximately $10.00 less per square foot. But, through various cost-cutting measures, the cost of the project has now been reduced to approximately $60.00 per square foot, which is reasonable and in line with the other nursing home projects. IV. Ratio of Nursing Rome Beds to Residential Units Rule 10-5.11(22)(a), Florida Administrative Code, provides that HRS "will not normally approve an application for new or additional sheltered nursing home beds if approved would result in the number of sheltered nursing home beds that exceed one for every four residential units in the life care facility." The parties stipulate that, absent unusual or exceptional circumstances, this rule would preclude approval of more than 19 of Petitioner's 60 proposed nursing home beds. The proposed nursing home, like the Davenport facility it duplicates, will be unique, unusual or extraordinary, when compared with other nursing homes in Florida, due to the advanced age of its patients. No one under 70 will be admitted. The average age of its patients is expected to approach 89 with the average age of well-care residents approaching 82. Approximately one-half of the well-care residents will eventually require transfer into the nursing home. People of advanced age are more likely to require nursing home care. Based on Petitioner's historical experience at its Davenport facility, it is likely that 60 nursing home beds will be required to meet the needs of residents of the proposed well- care units. It has been shown that the proposed 60 nursing beds will be needed to serve the needs of well-care residents as they age and their health care needs intensify. That has been the case at the Davenport facility, where rarely has a patient been admitted to the nursing home who did not first reside in the well-care units. The proposed nursing home and life care center will draw patients and residents similar to those drawn by the Davenport facility--the state-wide applicant "pool" of both is expected to be the same. For this reason, the proposed nursing home should have no significant impact on the census of, or need for, community nursing homes in Palm Beach County. It appears that the rationale behind the four-to-one (residential units to nursing home beds) ratio of the HRS rule is that, under normal or ordinary conditions, only one nursing home bed will be required to serve the residents of four well- care units. In the instant case, actual experience has shown this assumption to be patently erroneous. If only 19 nursing home beds were allowed Petitioner--because of the ratio cast in HRS rules--it is likely that many well-care residents at the proposed life care center would be forced to find nursing care outside of the center. Displaced, placed in nursing homes distant from the life care community, such patients would lose close contact with spouses and friends. The HRS rule, embracing a numerical ratio for the norm, allows flexibility in particular situations which are shown to be abnormal. The circumstances of the instant case show it to be an abnormal situation, fully justifying approval of 60-beds sought, rather than the 19 otherwise permitted by the HRS rule.
Recommendation Accordingly, based on the foregoing, it is RECOMMENDED: That Petitioner's application for a CON authorizing establishment of a 60-bed nursing home in Palm Beach County be GRANTED; and that the CON, on its face, state that issuance is predicated on Petitioner's statement of intent (during Section 120.57(1) licensing proceedings) that (i.) no one under 70 years of age will be admitted to the life care community (including both well-care and nursing-care sections) and (ii.) that, only in relatively rare and unusual cases, will patients be directly admitted to the nursing home without first residing in the well- care residential units of the life care communities.3 See, Section 381.494(8)(g), Florida Statutes (1985). DONE and ORDERED this 14th day of March, 1986, in Tallahassee, Florida. R. L. CALEEN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of March, 1986.
The Issue The issue for determination is whether the Agency for Health Care Administration found deficiencies at Wellington Specialty Care and Rehab Center sufficient to support the change in its licensure status to a conditional rating.
Findings Of Fact Wellington is a nursing home located in Tampa, Florida, licensed by and subject to regulation by the Agency pursuant to Chapter 400, Florida Statutes. The Agency is the licensing agency in the State of Florida responsible for regulating nursing facilities under Part II of Chapter 400, Florida Statutes. On September 10, 1998, the Agency conducted a complaint investigation at Wellington in a matter unrelated to the issues that are the subject of this proceeding. On that same date, the Agency also conducted an appraisal survey that focused on six areas of care for which Wellington had been cited as deficient in past surveys. After the investigation and survey were completed, the Agency determined that there was no basis for the complaint, and further determined that Wellington was not deficient in any of the six areas of care which were the subject of the appraisal survey. Notwithstanding its findings that the complaint against Wellington was unfounded and that there were no deficiencies in the targeted areas of care being reviewed, the Agency determined that Wellington was deficient in an area not initially the subject of the September 1998 survey. Specifically, the Agency found that Wellington had failed to provide adequate supervision and assistance devices to two residents at the facility in violation of the regulatory standard contained in 42 C.F.R. s. 483.25(h)(2). Based on its findings and conclusions, the Agency issued a survey report in which this deficiency was identified and described under a "Tag F324." The basis for the Agency’s findings were related to observations and investigations of two residents at the facility, Resident 6 and Resident 8. During the September 1998 survey and complaint investigation, the surveyors observed that Resident 6 had a bruise on her forehead and that Resident 8 had bruises on the backs of both of her hands. Resident 6 suffered a stroke in May 1998 and had left-side neglect, a condition that caused her to be unaware of her left side and placed her at risk for falls. Moreover, Resident 6's ability to recall events was impaired. The Agency's investigation revealed that Resident 6 sustained the bruise on her forehead when she fell from the toilet on August 31, 1998. The Agency determined that Resident 6 fell because she was left alone by the staff of the facility and further concluded that Wellington was responsible for causing this fall. The Agency believed that given Resident 6's left-side neglect, the facility staff should have known not to leave the resident unattended during her trips to the toilet. The Agency suggested that Wellington should have provided constant supervision to Resident 6, although it acknowledged that such supervision may have created privacy violations. In making its determination and reaching its conclusions, the Agency relied exclusively on an interview with Resident 6, notwithstanding the fact that her ability to recall events was impaired. Since Resident 6 was admitted to the facility in May 1998, Wellington appropriately and adequately addressed her susceptibility to falls, including falls from her toilet. After Resident 6 was initially admitted to the facility in May 1998, she received occupational therapy to improve her balance. In late June 1998, following several weeks of occupational therapy, Wellington’s occupational therapist evaluated Resident 6’s ability to sit and to control the balance in the trunk of her body and determined that the resident was capable of sitting upright without support for up to 40 minutes. Based upon that assessment, Resident 6 was discharged from occupational therapy on June 25, 1998, and her caregivers were provided with instructions on how to maintain her balance. At the time Resident 6 was discharged from occupational therapy, a care plan was devised for her which provided that the facility staff would give her assistance in all of her activities of daily living, but would only provide stand-by assistance to Resident 6 while she was on the toilet, if such assistance was requested. In light of the occupational therapist's June 1998 assessment of Resident 6, this care plan was adequate to address her risk for falls, including her risk for falls while on the toilet. Wellington also provided Resident 6 with appropriate assistance devices. In Resident 6's bathroom, Wellington provided her with a right-side handrail and an armrest by her toilet to use for support and balance, and also gave her a call light to alert staff if she felt unsteady. These measures were effective as demonstrated by the absence of any falls from the toilet by Resident 6 over the course of June, July, and August 1998. The Agency's surveyor who reviewed Resident 6’s medical records was not aware of and did not consider the June 1998 Occupational Therapy Assessment of Resident 6 before citing the facility for the deficiency. Resident 8 was admitted to Wellington in February 1998 with a history of bruising and existing bruises on her body. At all times relevant to this proceeding, Resident 8 was taking Ticlid, a medication which could cause bruising and also had osteopenia, a degenerative bone condition that could increase Resident 8's risk for bruising, making it possible for her to bruise herself with only a slight bump. After observing the bruising on the backs of both of Resident 8's hands during the September 1998 survey, the Agency asked facility staff about the bruising and also reviewed the resident’s medical records. Based on her interviews and record review, the Agency surveyor found that these bruises had not been ignored by Wellington. Rather, the Agency found that when facility staff initially observed these bruises on Resident 8's hands, (1) staff had immediately notified Resident 8's physician of the bruises; and (2) the physician then ordered an X-ray of Resident 8 to determine whether there was a fracture. The X-ray determined that there was not a fracture but that there was evidence of a bone loss or osteopenia, which indicated that Resident 8 had an underlying structural problem which could increase the resident's risk for bruising. The Agency surveyor found nothing in Resident 8's medical record to indicate that the facility had investigated the bruising on the resident’s hands, identified the cause of the bruising, or identified any means to prevent the bruising from reoccurring. Based on the absence of this information in Resident 8's records, the Agency cited the facility for a deficiency under "Tag F324." The Agency's surveyor made no determination and reached no conclusion as to the cause of the bruising. However, she considered that the bruising on Resident 8 may have been caused by the underlying structural damage, medication, or external forces. With regard to external forces, the surveyor speculated that the bruising may have occurred when Resident 8 bumped her hands against objects such as her chair or bed siderails. During the September 1998 survey, when the Agency surveyor expressed her concerns about the cause of the bruising on Resident 8's hands, Wellington’s Director of Nursing suggested to the surveyor that the bruising could have been the result of the use of improper transfer techniques by either Resident 8’s family or the facility staff, or Resident 8’s medications. Despite the surveyor's speculation and suggestions by the facility's Director of Nursing, the Agency surveyor saw nothing that would indicate how the bruising occurred. In fact, the Agency surveyor's observation of a staff member transferring Resident 8 indicated that the staff member was using a proper transfer technique that would not cause bruising to the resident’s hands. The Agency surveyor made no other observations and conducted no investigation of the potential causes of the bruising on Resident 8's hands. During the September 1998 survey, after the Agency surveyor inquired as to the cause of the bruises on Resident 8's hands, the facility conducted an investigation to try to identify the potential causes for the bruising. The investigation was conducted by the facility’s Care Plan Coordinator, a licensed practical nurse who was also the Unit Manager for the unit on which Resident 8 was located. Included in the Care Plan Coordinator's investigation was a thorough examination of the potential causes suggested by the Agency's surveyor. The Agency surveyor’s speculation that the bruising was caused when Resident 8 hit her hands against her chair or bed siderails was ruled out as a cause for the bruises because Resident 8 was unable to move around in her bed or chair. More importantly, there were no bedrails on Resident 8's bed and her chair was a heavily padded recliner. Also, as a part of her investigation, the Care Plan Coordinator observed the transfer techniques employed by both Resident 8's family members and facility staff. During these observations, she did not see any indication that the techniques used were improper or would otherwise cause Resident 8 to bruise her hands. Based upon her thorough investigation, the Case Plan Coordinator determined that there were no identifiable causes of the bruising and, thus, there were no care plan interventions that the facility could have implemented then or in September 1998 to prevent the bruising suffered by Resident 8. Instead, the Care Plan Coordinator reasonably concluded that the bruising was most likely an unavoidable result of Resident 8's medications and her osteopenia. The Agency is required to rate the severity of any deficiency identified during a survey with two types of ratings. One of these is "scope and severity" rating which is defined by federal law, and the other rating is a state classification rating which is defined by state law and rules promulgated thereunder. As a result of the September 1998 survey, the Agency assigned the Tag F324 deficiency a scope and severity rating of "G" which, under federal regulations, is a determination that the deficient practice was isolated. The Tag F324 deficiency was also given a state classification rating of "II" which, under the Agency’s rule, is a determination that the deficiency presented "an immediate threat to the health, safety or security of the residents." Because the Agency determined that there was a Class II deficiency at Wellington after the September 1998 survey, it changed Wellington’s Standard licensure rating to Conditional, effective September 10, 1998. At the completion of the September 1998 survey, the Agency assigned the Class II rating to the deficiency although the surveyors failed to determine and did not believe that there was an immediate threat of accidents to other residents at Wellington. In fact, at the time of the September 1998 survey, the number of falls at Wellington had declined since the last survey. The Agency returned to Wellington on November 6, 1998, to determine if the facility had corrected the Tag F324 deficiency cited in the September 1998 survey report. After completing that survey, the Agency determined that the deficiency had been corrected and issued Wellington a Standard License effective November 6, 1998.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that the Agency for Health Care Administration enter a final order issuing a Standard rating to Wellington and rescinding the Conditional rating. DONE AND ENTERED this 17th day of May, 1999, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of May, 1999. COPIES FURNISHED: R. Davis Thomas, Jr., Esquire Qualified Representative Broad and Cassel 215 South Monroe, Suite 400 Post Office Drawer 11300 Tallahassee, Florida 32302 Thomas Caufman, Esquire Agency for Health Care Administration 6800 North Dale Mabry Highway Suite 200 Tampa, Florida 33614 Sam Power, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308 Paul J. Martin, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308
