The Issue Whether Respondent violated the duly promulgated rules of the Department of Health and Rehabilitative Services by designating and continuing to designate the same person as the Assistant Administrator and the Director of Nursing of the Bonifay Nursing Home, Inc., after having been cited for such deficiency and allowed sufficient time to correct the deficiency.
Findings Of Fact An Administrative Complaint was filed by Petitioner Department of Health and Rehabilitative Services on October 27, 1980 notifying Respondent Bonifay Nursing Home, Inc., a skilled nursing care home, that Petitioner intended to impose a civil penalty of $100 for violating duly promulgated rules by designating the same person to act as Assistant Administrator and Director of Nursing of the nursing home. At the formal administrative hearing the Administrator admitted that he served more than one health facility, that at all times pertinent to the hearing the acting Assistant Nursing Home Administrator was also designated as the Director of Nursing, and that she was the only registered nurse on duty. It was admitted that no change had been made after the inspector for the Petitioner Department had called attention to this alleged violation until after the time period allowed for correcting this situation had expired and after the Petitioner had informed Respondent it intended to impose a $100 civil penalty. In mitigation Respondent presented testimony and adduced evidence showing that as the owner and operator of the nursing home he had made an effort to employ registered nurses at the home and that on the date of hearing the nursing home was in compliance with the statutes, rules and regulations. It was evident to the Hearing Officer that the nursing home serves a need in the community and that the residents appreciate the service. Petitioner Department submitted proposed findings of fact, memorandum of law and a proposed recommended order, which were considered in the writing of this order. Respondent submitted a memorandum. To the extent the proposed findings of fact have not been adopted in or are inconsistent with factual findings in this order, they have been specifically rejected as being irrelevant or not having been supported by the evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that a final order be entered by the Petitioner assessing an administrative fine not to exceed $50. DONE and ORDERED this 10th day of February, 1982, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of February, 1982. COPIES FURNISHED: John L. Pearce, Esquire Department of Health and Rehabilitative Services 2639 North Monroe Street, Suite 200-A Tallahassee, Florida 32301 Mr. J. E. Speed, Administrator Bonifay Nursing Home 108 Wagner Road Bonifay, Florida 32425 David H. Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue Was Petitioner's license rating lawfully changed from Standard to Conditional.
Findings Of Fact Cross Creek is a nursing home located in Pensacola, Florida, which is duly licensed under Chapter 400, Part II, Florida Statutes. AHCA is the state agency which licenses and regulates nursing homes in the state. As such, it is required to evaluate nursing homes in Florida, pursuant to Section 400.23(7), 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 which receive Medicaid or Medicare funds. On March 8, 2001, an AHCA team completed a survey of the facility. The surveyors included Jackie Klug, Paula Faulkner, Norma Endress, and Sandra Corcoran. All of the surveyors are trained in the business of surveying nursing homes. Ms. Klug is a registered and licensed dietician. Ms. Faulkner is trained in social work. Norma Endress and Sandra Corcoran are registered nurse specialists. Nurse Corcoran was the team leader. Resident 1 Ms. Corcoran observed that Resident 1 had experienced weight loss. This resident was admitted to the facility on July 7, 2000. On October 9, 2000, the resident weighed 115 pounds. In a care planning meeting it was noted that the resident was combative and was refusing to eat. A care plan was not formulated but it was decided that the resident was to be provided a dietary supplement. On January 4, 2001, the resident's weight was 97 pounds. Eventually a care plan was devised which provided for dietary supplements in the form of "shakes." The resident was to consume shakes with meals. On multiple occasions during the survey the facility failed to provide dietary supplements to the resident. This resident could not feed himself and could only consume food which was pureed. The resident could only minimally engage in activities of daily living. Resident 1 had a lung lesion and was expected to lose weight. Despite this expectation, during January, records revealed the resident weighed 103 pounds, in February he weighed 102.3 pounds, and in March he weighed 107.2 pounds. Resident 1 was terminally ill and was being provided what was essentially hospice care. Upon considering all of the circumstances, the resident's weight was satisfactory. Resident 2 Ms. Faulkner observed Resident 2 on two occasions. This resident was totally dependent on the facility staff for feeding. On one occasion during the survey, the resident was provided potatoes which were cold and too hard for her to masticate. On two occasions during the survey, the resident's dentures were not put in her mouth. Ms. Faulkner was concerned with the resident's weight. Interventions which were on the care plan were not consistently provided. For instance, the resident's preferences for various types of food were not considered. Resident 2 was a dialysis patient. Dialysis affects a patient's weight. Patients are typically weighed prior to the administration of dialysis and then are weighed subsequently. In the usual case a weight loss is expected subsequent to dialysis. With regard to this resident, no credible evidence was adduced as to what the resident weighed at any given time. No credible evidence was adduced which would indicate that the resident experienced a weight loss, despite Ms. Faulkner's concerns. Resident 3 Resident 3 was receiving a pureed diet when observed by Ms. Faulkner. The resident ate between 75 and 100 percent of this food. The resident weighed only 87 pounds at this time. The resident was supposed to be fed two "206 shakes" which are supplements designed to promote weight gain. On at least two occasions during the survey, the resident was not provided with these supplements. On March 6, 2001, at 6:35 p.m., Ms. Faulkner observed the resident eating and the resident had not been provided the supplements. Ms. Faulkner informed LPN Pat Nelson, of the facility staff, of the absence of supplements. Nurse Nelson commented that the supplements should have been on the resident's tray. Resident 3 had dirty fingernails and generally was not clean. Moreover, she had multiple bruises and skin tears to the outer ankles. The resident's upper arm had a four centimeter bruise that was reddish brown. This resident was totally dependent on the staff for care. Consequently, Ms. Faulkner concluded that facility staff had caused or permitted the acquisition of these wounds and bruises. Nurse Corcoran observed a wound on the resident's right ankle. She also observed multiple skin tears and bruises on both legs. She also observed an open area on the resident's coccyx. She did not, however, believe that these were pressure sores. Patricia Powell is the assistant nursing director of the facility. She reviewed the medical records of the resident and determined that the resident had been evaluated three different times and that she suffered no skin breakdown. She noted that the resident, at the time of the survey, had been readmitted to the facility subsequent to a hospital stay and that upon readmission, the resident was afflicted with three stasis ulcers including one on her lower left extremity and one on her right lower extremity. Nurse Powell also noted that the resident had bruises on her upper and lower extremities. She stated that the hospital records reflected information from her granddaughter stating that the resident repeatedly bumped herself into the walls in the nursing home and bled from the wounds she received as a result. Nurse Powell stated that hospital records demonstrated that the resident gained weight in 2000. Records at the time of the visit noted that the resident's weight was stable. Linda Gunn is a staff member of the facility and is a LPN. She was a treatment nurse and she was responsible for the care of Resident 3 during times pertinent. She observed that the resident had abrasions and skin tears. She stated that the resident was a fragile patient who required total care. The resident had sores which were caused by vascular problems. Pressure sores were not present. Nurse Gunn checked the resident daily and each time she left the resident she made sure the resident was clean and dry and in a comfortable position. Resident 4 Ms. Faulkner observed Resident 4 during the survey and suspected that the resident might have pressure sores because the resident was not consistently found to have positioning devices which had been determined to be necessary. A record review revealed that the resident had two stage II pressure sores in January of 2001, but that they had healed by the time of the survey. Ms. Faulkner stated that at the time of the survey she observed the resident to have a stage III pressure sore on the right ankle, but she relied on Nurse Corcoran's expertise to make that determination. Ms. Faulkner observed that positioning devices were not used on the resident's legs, as they should have been, on March 1, 5, and 6, 2001. Ms. Faulkner noted that, according to the resident's medical record, the resident often kicked off protective devices and padding. Nurse Powell stated that the resident's medical record reflected that the resident had excoriations on the coccyx and between her leg folds. Excoriation is a break or redness in the skin that is caused by urine or feces. It is not a pressure sore. She also noted that the resident had constant involuntary movements of the left leg against the right leg, and that she was provided padded side rails but the resident removed them. Nurse Powell stated that the resident moved her legs in a scissor-like action all day long and that she removed the side rails, pillows, and foot pads which facility staff used to attempt to ameliorate the damage caused by the leg movement. Ms. Gunn, a staff nurse, also observed the resident frequently. She noted that the resident was diabetic, incontinent of her bowel and bladder, was immobile and needed total assistance to be turned and positioned. She had to be fed and otherwise required total care for all of activities of daily living. Ms. Faulkner additionally observed the resident on March 7, 2001, and noted that during the four times she observed the resident there was no splint or other device or treatment being used to address the resident's contracted right hand. There was no care plan to address this condition. Willa Gilliam is a certified nursing assistant employed at Cross Creek. Specifically she was a restorative aide. It was her duty to provide Resident 4 with range of motion exercises. She accomplished this. After the exercises a towel roll was to be placed inside the resident's hands. Ms. Gilliam placed the towel roll inside of the resident's hands but noted that the resident often removed the towels. Resident 8 Norma Endress is a nurse specialist. She observed Resident 8. The resident was assessed on September 5, 2000, to be at high risk for skin breakdown because he was incontinent of bowel and bladder. The resident was also dependent on staff for turning. The resident had a care plan which required that the resident be removed from bed and placed in a geri chair for positioning. Nurse Endress observed on March 6, 2001, on ten different occasions during the day, that the resident was lying on the resident's left side and was not being turned or placed in the geri chair as the care plan required. On March 7, 2001, the resident was observed to have a stage I pressure area on his right foot, ankle and heel. The resident had no positioning devices or heel protectors in place, as he should. When Nurse Endress inquired as to why the resident was not being put in a geri chair, a staff nurse informed her that the facility had a shortage of geri chairs. Nurse Endress did not see this resident move during the entire four days that she was present at the facility. Nurse Gunn confirmed that the resident required total care and that he was receiving wound care to his heel. She stated that the resident was supposed to be supplied with pillows and a wedge or wedges and that his feet were required to be elevated on pillows. Resident 9 Nurse Endress observed Resident 9 for four days during the survey. This resident had a history of heart problems. The resident was capable of walking when he reached the facility and he did walk. The resident's physician ordered continued ambulation. However, during the four day survey, the resident was not ambulated. The resident reported to Nurse Endress that he had not been walked for the prior three months and stated that he wanted to walk, if facility staff would help him. Nurse Powell stated the patient had diabetes and that the sore on his right foot was a decubitus ulcer caused by vascular insufficiency. The ulcer generated pain when the resident attempted to walk. Accordingly, the staff of the facility did not provide assistance in ambulation to this resident because it would be too painful for the resident. The resident was also required to wear a splint on his right hand to deter contraction. During the survey Nurse Endress visited the resident and observed the splint resting on the foot of the resident's bed. The splint was soiled. On March 5, 2001, Nurse Endress observed the resident five times during the day and at no time was he wearing a splint. Ms. Gilliam was the staff member charged with placing the splint on the resident. She claimed that she was to install the splint at 10:00 a.m. and to remove it at 2:00 p.m. and that she had in fact accomplished this every day. Her testimony, with regard to this, upon consideration of all of the other testimony, is determined not to be credible. Nurse Endress believed that the resident had a stage I pressure sore on his right foot but she was not allowed to touch the resident to actually make a determination that the observed redness was a pressure sore or was present due to some other cause. Resident 10 Resident 10 was observed by Dietician Klug during the survey. During various times the resident was observed sitting in a geri chair which sported duct tape on both armrests. Resident 10 was cognitively impaired and required extensive to total assistance in activities of daily living. The resident could not move from bed to chair, or chair to bed. Consequently this movement was necessarily accomplished by staff. The care plan determined that a minimum of two people be employed to properly transfer the resident. The resident had very fragile skin and was prone to skin tears, bruises and abrasions. On January 22, 2001, the resident experienced a skin tear to the left lateral leg. On February 4, 2001, the resident acquired a skin tear to the right arm. On February 19, 2001, the resident manifested a blood blister to the lower back. On March 5, 2001, a large skin tear to the right lower leg was observed. Ms. Klug said there was no evidence of competency check lists or records of training of staff in the area of transfers. However, there is no evidence in this record that Ms. Klug checked to see what, if any, evidence was available in the facility which might demonstrate that such training had occurred or that there was a deficiency in the training. Despite her belief that the injuries experienced by the resident were the result of rough or inexpert handling by staff, a causal connection was not demonstrated by the evidence. Cleanliness and grooming Ms. Klug observed resident 11 during the survey. At the time of observation the resident had long dirty fingernails and was emitting an unpleasant odor. This caused Ms. Klug to conclude that the resident needed a bath. This resident needed total assistance with the activities of daily living and this assistance was not being adequately provided. Residents F, G, M, and 14 were observed by Nurse Corcoran during the survey. Resident F was sitting in the day room in the morning with dried food smeared upon his mouth. Resident G was sitting in a wheelchair while wearing soiled pants and a soiled shirt. Resident M was seen in the main dining room during one afternoon of the survey and on that occasion the resident's fingernails were long and jagged, and a dark substance was present under the resident's nails. The resident's false teeth were caked with food. Resident 14's hair was greasy and disheveled. Ms. Faulkner observed residents number 3, 4, 21, and 22 to have dirty fingernails and noted that they were, "not clean, in general." Resident 19 Ms. Klug observed Resident 19. This resident was diagnosed with rheumatoid arthritis. Both of her hands were severely contracted. She had received physical therapy from September 26 to October 25, 2000, for the purpose of promoting comfort and preventing further contraction or deformity of her hands. Splints were applied to her hands at that time and the resident could tolerate them for four hours a day. In December 2000, the resident complained that the splints were causing more pain than she could bear. As a result, the use of splints was discontinued. Instead, the resident was to have a washcloth placed in the hands to prevent further deformity. Some members of the therapy staff informed Ms. Klug that the real reason the splints were not being used was because they had gone missing. On March 8, 2001, Ms. Klug interviewed a restorative aid who stated that the resident had not been treated for the prior month. The increase in contraction of the resident's hand resulted in the resident being unable to feed herself. The resident's record reflects that the splints were discontinued due to severe pain secondary to arthritis. A "Restorative Progress Note-Splinting" dated December 2, 2000, states that splints should be discontinued. It further states, that range of motion exercises should continue but, "We'll use washcloth for hand." Based on all of the available evidence of record, it is determined that the resident was receiving the best possible care for her hand contractions. Resident 19 was observed on March 6, 7, and 8, 2001, being fed pureed food. This was contrary to her then current diet order which called for a mechanical soft diet. The resident informed Ms. Klug that she did not like the taste of the pureed diet and claimed that she could masticate sufficiently well to subsist on a mechanically soft diet. Inquiry to the dietary manager revealed that a unit nurse had changed the diet order on December 18, 2000, because the resident had a sore mouth and missing teeth. Between January and March the resident suffered an 11-pound weight loss. The resident weighed 118 pounds in January of 2000. The resident was programmed to maintain a weight of between 113 and 118 pounds but only weighed 104 pounds at the time of the survey. Ms. Klug reviewed documentation in the resident's record which, as recently as March 2, 2001, reflected that the resident had a physician's order for a mechanically soft diet. Through observations and interviews she determined that facility staff were unaware of the discrepancy in the texture of the resident's diet. A change in a diet order, with regard to consistency, may come only from a physician. Resident 21 Ms. Faulkner observed Resident 21 in the resident's bed. She observed the head nurse attempt to do a range of motion on the resident's left hand. This resulted in the resident crying out in pain. The resident's left hand was moist and emitted an odor. Her care plan required interventions to keep her nails cleaned and trimmed and to decrease irritation through her palms. During the survey there were at least two times when the resident had no supportive devices in her hands. Ms. Faulkner discussed this with the facility occupational therapist on March 8, 2001, and the therapist stated that he was unable to splint the resident's hand. Ms. Gilliam was assigned to provide restorative assistance to Resident 21. She noted that after the motion exercises a towel roll was required to be placed in her hand. However, she stated that range of motion was impossible to conduct because of the pain and that the insertion of a towel roll into her hand might result in breaking the resident's fingers. During the time Ms. Gilliam was assigned to resident 21, she observed that her condition had worsened. Resident 22 Resident 22 also had range of motion issues. This resident had contracting of the arm, hand, leg, and foot. Ms. Faulkner sought from the facility a plan of care addressing the contracting of the resident's left hand. Facility staff informed her that none existed. The resident was admitted to the facility with contractures. No evidence was adduced as to whether or not the resident's contractures had become worse because the facility presented no documentation which would permit that determination. Staffing Staffing at the facility was in substantial compliance with AHCA requirements in terms of quantity and training.
Recommendation Based upon the Findings of Fact and Conclusions of Law, RECOMMENDED: That a final order be entered assigning a Conditional license to Petitioner. DONE AND ENTERED this 27th day of December, 2001, in Tallahassee, Leon County, Florida. HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of December, 2001. COPIES FURNISHED: Christine T. Messana, Esquire Agency for Health Care Administration 2727 Mahan Drive Mail Stop No. 3 Tallahassee, Florida 32308-5403 Donna H. Stinson, Esquire Broad and Cassel 215 South Monroe Street, Suite 400 Post Office Drawer 11300 Tallahassee, Florida 32302 Diane Grubbs, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308 William Roberts, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308
Findings Of Fact At all times material hereto, Plantation was a licensed nursing home facility and participated in the Medicaid program. A nursing home that receives a superior rating is entitled to incentives based on the Florida Medicaid Reimbursement Plan. Plantation has met all the requirements for a superior rating that are enumerated in Rule lOD-29.128, Florida _Administrative Code. The only reason Plantation was not granted a superior rating was based on the Medicaid Inspection of Care, Team report. (stipulated facts) From August 21 through August 31, 1984, Plantation underwent a routine inspection by the HRS Medicaid Inspection of Care (IOC) Team. The purpose of the inspection was to review the care and treatment of Medicaid recipient patients in accordance with state and federal standards in order for the facility to receive Medicaid payment for those individuals. During the course of the inspection, several deficiencies were found by IOC Team. The deficiencies were summarized in the Medicaid Inspection of Care Team report, entitled Facility Evaluation Summary, prepared by Ms. Tranger. The report listed the deficiencies as follows: Fifteen skilled and two intermediate out of 46 medical records reviewed failed to have medication revalidated by the attending physician within the proper time frame Four of forty-six records reviewed failed to have available documentation that laboratory tests were completed in accordance with doctors' orders and medication regimen, Fourteen skilled and thirteen intermediate out of 46 medical records reviewed failed to have the Plan of Care reviewed within the proper time frame: Ten medical records were not certified within the proper time frames and fifteen medical records were not current for recertification. As to the first deficiency noted, the problem was not that the physician failed to revalidate medication, but that Ms. Tranger did not think that the physician appropriately dated the revalidation. In almost all of the cases, the problem was that Ms. Tranger did not think that the physician had personally entered the date because the date was written with a different color of ink than the doctor's signature or the handwriting appeared to be different. Ms. Tranger did not know whether the dates were written by someone in the physician's office or someone at the nursing home. It is very difficult for a nursing home to get a physician to sign and date orders properly. Plantation had a procedure for securing the doctor's signature and having records dated. When a record was received that was not properly signed and dated, Plantation returned the record to the doctor with a letter or note telling the doctor what needed to be done. When returned by the doctor to Plantation, the record would bear the later date, which caused some records to be out of' compliance with the required time frames. The return to the doctor of records that were not properly dated may also explain why some of he dates were written in a different color ink than the doctor's signature. In those few cases where the dates on the report were not within the proper time frame, the dates were only a few days off. In one case a 34 day period, from July 7, 1984 to August 10, 1984, elapsed before the medication was revalidated. In another case, there were 33 days between the dates. In both cases the medication should have been revalidated every 30 days. The problem with the revalidation dates was strictly a paperwork problem and not one that affected the care of the patients. As stated before, in the majority of the cases the medication was revalidated within the proper time frame. The problem was simply that it appeared that someone other than the doctor had written down the date. The second deficiency was a finding by the surveyors that 4 of the 46 medical records reviewed failed to have available documentation regarding laboratory tests being completed in accordance with doctors' orders. However, Jean Bosang, Administrator of Plantation, reviewed all of the records cited by the IOC Team as the basis for these deficiencies and could only find two instances in which laboratory tests were not performed. HRS did not present any evidence to establish the two other alleged instances. Dr. Lopez reviewed the medical records of the two residents in question and determined that there was no possibility of harm to the patient as a result of failure to perform these tests. One of the two residents is Dr. Lopez' patient, and he normally sees her every day. He stated that the test, an electrolyte examination, was a routine test, that the patient had had no previous problems, and if any problem had developed, she would have had symptoms which would have been observable to the nurses. The tests performed before and after the test that was missed were normal, and the failure to perform the one test had absolutely no effect on the patient. Dr. Lopez was familiar with the other resident upon whom a test was not performed and had reviewed her records. This resident was to have a fasting blood sugar test performed every third month. Although this test was not performed in April of 1984, it was performed timely in every other instance. All tests were normal, and the failure to perform this test did not have any effect on the resident. Had she been suffering from blood sugar problems, there would have been physical signs observable to the nurses. The fourth deficiency listed in the report was a paperwork problem similar to the first deficiency. Patients in a nursing home are classified by level of care and must be recertified from time to time. Certification does not affect the care of the resident. The recertification must be signed and dated by the physician. Again, there was a problem on the recertification because some of the dates were in a different color ink than the physician's signature. Again, the problem was primarily caused by difficulty in getting proper physician documentation. The deficiency did not affect the care of the residents. Mr. Maryanski, who made the decision not to give Plantation a superior rating, testified that of the four deficiencies cited in the IOC report, he believed that only the third deficiency listed, in and of itself, would have precluded a superior rating. An analysis of that deficiency, however, shows that it also was mainly a paperwork deficiency and had no impact on patient care. The third deficiency listed involved a purported failure to have the plans of care reviewed within the proper time frames. Patient care plans are to be reviewed every 60 days for "skilled" patients, those that need the most supervision, and every 90 days for "intermediate" patients, those that need less supervision. A patient's plan of care is a written plan establishing the manner in which each patient will be treated and setting forth certain goals to be reached. A discharge plan is also established, which is basically what the nursing home personnel believe will be the best outcome for the patient if and when he or she leaves the hospital. The patient plan of care is established at a patient care plan meeting. Patient care plan meetings are held by the various disciplines in the nursing home, such as nursing, dietary, social work and activities, to review resident records and discuss any problems with specific residents. The manner in which the problem is to be corrected is determined and then written down on the patient's plan of care record. The evidence revealed that the basis of the deficiency was not a failure to timely establish or review a plan of care, but a failure to timely write down and properly date the plan of care. During the time in question, care plan meetings were held every Wednesday, and all of the disciplines attended the meetings. However, all disciplines did not write their comments on the patients' records at the meeting; some wrote them later. Usually, when they were added later, the comments were dated on the day they were written, rather than on the day the meetings were held. The evidence presented did not show any case in which all disciplines were late in making notes, but revealed only that specific disciplines were tardy. Since all the disciplines attended one meeting, it is apparent that when the date for any discipline was timely, the later dates of other disciplines merely reflected a documentation or paperwork problem. In late 1984 or early 1985, Plantation changed its system to avoid the problem in the future. There appeared to be problems with some of the discharge plans being untimely. The discharge plan is not utilized in the day-to-day care of the resident. Discharge plans at Plantation were kept in two places, and Ms. Tranger recognized that she may have overlooked some plans if they had been written only on the separate discharge sheet. The four deficiencies cited all involved time frames. There are innumerable time frames that must be met by a nursing home. The great majority of the deficiencies involved a failure to properly document. None of the deficiencies affected the care of the patients. Indeed, Ms. Tranger indicated that the patients were all receiving proper nursing care. The decision to give Plantation a standard rating was made by Mr. Maryanski based solely on the IOC report. He relied upon section 400.23,(3) Florida Statutes, which states: "The department shall base its evaluation on the most recent annual inspection report, taking into consideration findings from other official reports, surveys, interviews, investigations and inspections." There are no regulations or written or oral policies implementing this provision. Mr. Maryanski looked solely at the face of the IOC report and did not do any independent investigation. He never visited the nursing home, and he never talked to the on-site surveyors to determine whether the deficiencies cited by the IOC Team were significant. He never saw the underlying documentation which formed the basis of the report. Mr. Maryanski has no background either in nursing or medicine and had no knowledge of purpose the tests that were allegedly not performed. On October 4, 1984, the HRS Office of Licensure and Certification (OLC) conducted the annual survey of the facility. Mr. Maryanski did not determine whether the deficiencies found by the IOC Team had been corrected at the time of the annual survey. An IOC Team surveyor returned on November 21, 1984, and found that all of the deficiencies cited during the IOC inspection had been corrected. A resurvey of the facility was conducted on December 27, 1984, by OLC. All deficiencies noted in OLC's original inspection had been corrected. All nursing home facilities in Florida are rated by HRS as conditional, standard, or superior. In addition to its financial significance, the rating of a facility is important because it affects the facility's reputation in the community and in the industry. The rating for a facility goes into effect on· the day of the follow-up visit of OLC if all deficiencies have been corrected. Therefore, Plantation would have received a superior rating, effective December 27, 1984, had it not been for the IOC report Mr. Maryanski never tried to determine whether the deficiencies in the IOC report had been corrected subsequent to the report being issued. Under rule lOD-29.128, Florida Administrative Code, there are extensive regulatory and statutory requirements which must be met for a facility to be granted a superior rating. Plantation met all of the enumerated requirements, yet it received only a standard rating. Mr. Maryanski based his determination on the IOC report despite the fact that it was outdated and the deficiencies in that report were corrected by November, 1984, prior to the December, 1984, resurvey by the OLC. There was nothing in the annual survey report of the OLC to preclude a superior rating. This is the first time a facility has been denied a superior rating based upon a report other than the annual report.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Plantation Nursing Home be given a superior rating. DONE AND ENTERED this 3rd day of March, 1986, in Tallahassee, Leon County, Florida. DIANE A. GRUBBS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of March, 1986. COPIES FURNISHED: Jonathan S. Grout, Esquire Post Office Box 1980 Orlando, Florida 32802 Harold Braynon; Esquire District X Legal Counsel, 201 West Broward Boulevard Ft. Lauderdale, Florida 33301 William Page, Jr. Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings On Proposed Findings of Fact Submitted by the Petitioner Accepted in Finding of Fact 1. 2-3. Accepted in Finding of Fact 2. 4. Accepted as set forth in Finding of Fact 21. 5-6. Accepted in Findings of Fact 22-23. 7-9. Accepted in Finding of Fact 24. 10. Rejected as immaterial. 11-12. Accepted in Findings of Fact 24-25. Accepted in Finding of Fact 19. Accepted in Finding of Fact 26. 15-16. Accepted generally in Findings of Fact 20 and 24. 17-19. Accepted generally as set forth in Finding of Fact 26. In Background section. Cumulative. Accepted in Finding of Fact 18. Accepted in Finding of Fact 12. 25-31. Accepted in substance in Findings of Fact 4-7. 32-43. Accepted in substance in Findings of Fact 8-10. 44. Rejected as not supported by the evidence. 45-46. Accepted in Finding of Fact 11. 47. Accepted in Finding of Fact 3. 48-49. Accepted in Finding of Fact 3. 50-57. Accepted in general in Findings of Fact 13-16. 58. Accepted in Finding of Fact 17. Rulings On Proposed Findings of Fact Submitted by the Respondent Accepted in Finding of Fact 1. Accepted generally in Findings of Fact 1, 20, 24. Accepted in Finding of Fact 1. Accepted generally in Finding of Fact 19 and Background. 5-8. Accepted in Finding of Fact 3. Accepted in substance in Finding of Fact 2. Accepted in Finding of Fact 2. Accepted in Finding of Fact 3. Accepted in Finding of Fact 13 except as to time frame for intermediate patients which should be 90 days. Accepted that the documentation showed a gap, but proposed finding rejected in that the evidence did not show that, in fact, the patient was not reviewed with the proper time frame. Accepted, without naming the patients, and explained in Finding of Fact 6.
The Issue The issue presented is whether Section V. B. 7. of the Florida Title XIX Long-Term Care Reimbursement Plan which is incorporated in Florida Administrative Code Rule 59G-6.010 is an invalid exercise of delegated legislative authority.
Findings Of Fact Petitioner, Manor Pines Convalescent Center, LLC, operates a skilled nursing home located in Ft. Lauderdale, Broward County, Florida, known as Manor Pines Convalescent Center. Manor Pines currently participates in the Medicaid program and has been issued provider number 25417700. Respondent, Agency for Health Care Administration, administers the Florida Title XIX Long-Term Care Reimbursement Plan (hereinafter "the Plan") which is incorporated by reference into Florida Administrative Code Rule 59G-6.010 and which establishes the methodology for determining reimbursement to nursing homes for the care provided to Medicaid beneficiaries. In accordance with the Plan, nursing homes participating in the Medicaid program are reimbursed by Medicaid on a per diem basis. The Medicaid per diem rate consists of four cost components: the operating costs component, the indirect patient care component, the direct patient care component, and a property component. Rates are calculated by following the provisions of the Plan and are cost-based in nature. Medicaid rates are normally set twice per year, once in January and again in July. The Plan contains numerous cost-saving mechanisms that are employed to limit a provider's actual costs. Examples of the cost-saving measures are class ceilings, cost ceilings, and targets. Each of those cost-saving measures uses a "lesser of" mechanism to ensure that a provider's Medicaid rate does not exceed the various mechanisms regardless of the actual costs to the provider. The class ceiling limits the amount that any facility in a particular class of providers can be reimbursed in an affected cost component. The class ceilings are based upon the size of the facility and the facility's geographic location. The cost ceiling caps the amount of costs that Medicaid will reimburse in any given component. The target limits check the amount of growth that Medicaid will reimburse a provider in any one component between rate semesters. Additionally, the Plan also contains a provision that is commonly referred to as the "low occupancy adjustment." According to Section V. B. 7. of the Plan, nursing homes are penalized in their reimbursement rates if they do not meet occupancy thresholds. In the version of the Plan in effect on January 1, 2006 (Version XXIX), the low occupancy adjustment provision reduced the reimbursement rate established for nursing homes for each of the reimbursement components (except the property component under the fair rental value system) that make up the nursing homes' Medicaid reimbursement rate. The Agency amended the low occupancy adjustment on July 1, 2006 (Version XXX). The effect of the amendment was that the adjustment no longer affected the direct patient care component and only affected the operating and indirect patient care components of the Medicaid per diem. The low occupancy adjustment is calculated by determining a low occupancy threshold and then reducing the established Medicaid per diem of any provider that does not meet that threshold. The low occupancy adjustment is a statement of general applicability that applies to all nursing homes in Florida that participate in the Medicaid program. In the January 1, 2006, rate-setting semester, Manor Pines' Medicaid per diem was limited by the low occupancy adjustment. Manor Pines was penalized $11.30 per patient day in the operating component, $25.40 per patient day in the direct patient care component, and $15.90 per patient day in the indirect patient care component. In the July 1, 2006, rate-setting semester, Manor Pines' Medicaid per diem was also limited by the low occupancy adjustment. At that time, Manor Pines was penalized $7.61 per patient day in the operating component and $10.23 per patient day in the indirect patient care component. It is illogical to adjust any component of the Medicaid nursing home per diem due to occupancy because the Medicaid per diem is determined based upon an allocation of costs that already factors Medicaid utilization in the methodology. Simply put, Medicaid's share of costs is limited in the per diem rate by a facility's Medicaid utilization. Further limiting those costs based upon occupancy creates a penalty that has no basis in law or fact. At the time of the final hearing in this cause, Manor Pines had been participating in the Medicaid program for four or five years after 35 years as a private-pay facility. Nearly two-thirds of all residents in nursing homes in Florida and in Broward County are Medicaid recipients. However, the low occupancy adjustment creates a disincentive to accept Medicaid residents because a nursing home affected by the adjustment loses reimbursement on each Medicaid resident in its facility. The low occupancy adjustment is illogical because it creates this disincentive to admit Medicaid residents. The adjustment is illogical because a facility attempting to increase its occupancy to escape the adjustment must admit two Medicaid-eligible individuals for every individual that is not Medicaid-eligible. Yet, each Medicaid-eligible patient causes the facility affected by this adjustment to lose more money. The effect, therefore, of this adjustment is that it actually and illogically hampers the facility's ability to increase its occupancy and ultimately escape the penalty. The Legislature has created five different diversion programs that are designed to divert people eligible for nursing home care from nursing homes to home- and community-based services. One of the major diversion projects has helped to reduce nursing home occupancies in Broward County. It has created a reduction in the overall need for nursing home beds in Broward County despite increasing population and, therefore, has created increased competition for nursing home residents among the nursing home community. The low occupancy adjustment forces nursing homes to recruit and retain residents in their facilities, contrary to the legislative intent enumerated in the various diversion statutes. The low occupancy adjustment illogically imposes a penalty based upon occupancy when the Legislature is actively creating programs designed to reduce nursing home occupancies. Nursing homes are required to provide minimum staffing hours to their residents. During the January 1 and the July 1, 2006, rate semesters, Manor Pines complied with those minimum staffing requirements. The costs, as stated in the direct care component of the January 1, 2006, rate sheets, accurately reflect the costs associated with complying with the minimum staffing requirements. The low occupancy adjustment has created a situation at Manor Pines where in order to meet the minimum staffing requirements, Manor Pines has had to reduce staff in other areas, has had to forego completing certain repairs brought on by recent hurricanes, and has cancelled numerous projects at the facility that were intended to improve and enhance the facility in the eyes of prospective nursing home residents, such as replacing crank beds with electric beds. The addition of new nursing home beds in Florida has been under a moratorium for years and will be for, minimally, four more years unless modified by law. Despite increasing population, there has been no corollary increase in nursing home residents. The statistics demonstrate the success of the legislative programs to divert residents from nursing homes, and they render the Agency's low occupancy adjustment a penalty, unsupported by reason.
The Issue Whether Petitioner was in violation of 42CFR 483.25(l)(1), 42CFR 483.60(d), Rules 59A-4.112(5) and 59A-4.1288, Florida Administrative Code, at the time of its annual survey in July 2000, and, if so, whether those violations were uncorrected at the time of resurvey in September 2000, in order to justify the issuance of a Conditional licensure rating.
Findings Of Fact Tampa Health Care Center (Petitioner) is a licensed nursing home in Tampa, Florida. Pursuant to Chapter 400, Florida Statutes, Respondent surveys Petitioner to determine whether it is in compliance with applicable laws and regulations. If there are deficiencies, it determines the level of deficiency. When Respondent conducts a survey of a nursing home, it issues a survey report, commonly called by its form number, a "2567." The particular regulation, and the allegedly deficient practices which constitute a violation of that regulation, are cited in a column on the left side of the paper. After receiving the 2567, the facility is required to develop a plan of correction which is put in the right hand column corresponding to the alleged deficiency. The facility is required to develop this plan regardless of whether it agrees that it is in violation of any regulations, and it is prohibited from being argumentative. Respondent conducted its annual survey of Petitioner, ending July 27, 2000, and issued a 2567 survey report noting certain deficiencies. The deficiencies are designated as tag numbers. Among those noted were Tag F329, which is the shorthand reference to 42 C.F.R. Subsection 483.25 (1)(1), and Tag F431, which incorporates 42 C.F.R. Subsection 483.60(d). Respondent rated these deficiencies as Class III deficiencies. Respondent conducted a follow-up survey on September 5, 2000, and determined that the deficiencies under tags F329 and F431 were uncorrected, and, as a result, issued a Conditional rating to the facility. On December 2000, Respondent conducted another follow- up survey and determined that all deficiencies had been corrected and therefore issued a Standard license to Petitioner effective that date. The 2567 constitutes the charging document for purposes of issuing a Conditional license. No other document was offered to describe the offenses, or deficiencies, which resulted in imposition of the Conditional license. The parties stipulated at the hearing that Tags F329 and F431 were the only ones at issue in this proceeding. In conducting its survey, Respondent uses a document developed by the Health Care Financing Administration (HCFA), called the State Operations Manual. It indicates guidance on how are to interpret regulations. TAG F 329 The 2567 from the July survey asserts, under Tag F 329, that the facility "failed to monitor psychotropic medications for 5 of 5 sampled residents." The regulation states that residents are to be "free from unnecessary drugs," and elaborates that a drug given without adequate monitoring is considered unnecessary. The guidelines establish that monitoring is expected only for residents on psychotropic medications. Therefore, for a violation to occur, there must first be a resident who is receiving psychotropic medications, and secondly, a lack of monitoring of the use of that drug. Respondent alleged and put on evidence that certain residents (numbers 1, 9, 19, and 21) identified in the July survey did not have "behavior monitoring records" in their files. Specific forms are not mandatory, and evidence of monitoring can be documented elsewhere in a resident's clinical record. Monitoring can be documented in nurses' notes, and those notes were not thoroughly reviewed, as Respondent's surveyors only had limited time for the survey. Respondent presented no evidence that Residents 9, 19, or 21 were receiving psychotropic medications. Petitioner presented evidence of numerous systems in place to monitor residents, including those receiving psychotropic medications. Residents are given a complete clinical assessment within 24 hours of admission; there is then a 14-day more thorough observation and assessment process, culminating in the development of care plans which address particular issues and direct staff to care for residents in particular ways. Nurses regularly document issues or concerns in nurses notes; a physician visits the residents at least once a month, which, as all drugs are ordered by the physician, includes review of the resident's medication. If necessary, a psychiatric evaluation is completed. Once a week a transdisciplinary team meets to discuss any residents "at risk," which includes those receiving psychotropic medications. Additionally, a consultant pharmacist reviews all residents' medications once a month. This review is to determine how well the resident is doing on the drug regimen. It includes reviewing nurses' notes, physicians' notes, the medication administration record, the record of dosages taken on an "as needed" basis, and discussions with nursing staff. The pharmacist reviews whether there are medications administered in excessive doses, in excessive duration, without adequate monitoring, without adequate indications for use, or in the presence of adverse consequences. With regard to the September survey, Respondent alleged in the Form 2567 that "Residents numbers 3, 4, 9, 11, and 13 lacked Behavior Monitoring Forms in their records" and that all were on psychotropic medications which required monitoring. Respondent presented the testimony of Barbara Bearden who stated that Residents 3 and 4 were on psychotropic medications, and that there were no behavior monitoring forms. With regard to Resident 4, Respondent asserted that there was no assessment of behaviors in any records after August 14. Bearden acknowledged that both Residents 3 and 4 received reasonable doses, and that there was no reason to believe the level of medication was too high. Respondent's witness also asserted that there was no "AIMS" assessments, no initial assessment, and no indication of the reason for or effectiveness of the medications. These matters were not alleged in the charging document, which only asserted the lack of behavior monitoring forms. During her testimony, Respondent's witness acknowledged that there was no standard to determine how often there should be behavior monitoring. Marie Maisel testified for Respondent regarding Residents 9, 11, and 13. With regard to Resident 9, she testified that the resident received Restoril, a sleeping medication, and also Zoloft, an anti-depressant, and that there was no "systematic behavior monitoring." Sleeping medications do not require behavior monitoring, according to the State Operations Manual, and at deposition, the surveyor indicated that the only medication the resident received was Restoril. Petitioner therefore had no notice of the additional allegation regarding Zoloft and this fact cannot be considered. With regard to Resident 11, Maisel testified that the resident received Risperdal, a psychotropic medication, and that, in her opinion, the behavior monitoring was not adequate. At hearing the surveyor testified that Resident 13 was receiving Haldol and there was no systemic behavior monitoring. However, the witness acknowledged that when her deposition was taken, she did not know why Resident 13 had been cited. Petitioner therefore had no notice of these allegations regarding Resident 13. Petitioner presented evidence, including excerpts from the resident's clinical record, that Resident 3 had been assessed for drug use, and that behaviors were monitored. The resident had been admitted less than three weeks before the September survey, which means that an initial assessment had been performed, as well as the complete 14-day assessment, just prior to survey. Respondent admitted that it would be inappropriate to reduce medication soon after admission. There was a care plan which addressed the resident's use of Risperdal, and another which addressed the resident's ability to function with the activities of daily living. These care plans directed staff to monitor the resident's condition and behavior. Numerous nursing notes documented the resident's condition and behaviors. Resident 3 was not noted in the pharmacist's monthly report, meaning the review revealed no problems with medications. Furthermore, the resident's medications were significantly reduced while in Petitioner's care, and her condition improved dramatically, from being nearly comatose, to being alert and oriented, and needing only limited assistance with mobility. Resident 4 had been admitted just a month before the survey and had also just undergone an extensive assessment process. Her medications were also reduced from those she had been receiving on admission, and nurses notes clearly documented her condition and behaviors throughout the period up to the survey. These notes document not only the monitoring of behaviors, but the reason and need for the medication, as she exhibited combative behaviors. Resident 4 also did not appear on the pharmacist's report. With regard to Resident 9, Petitioner presented evidence that there was a care plan specifically addressing the resident's use of Zoloft, that there were other care plans which addressed behaviors and condition which required that the resident be monitored, and that there was periodic consideration of reductions. Resident 9 did appear on the pharmacist's report, suggesting consideration of a reduction in dosage; thus demonstrating the effectiveness of the system. Resident 11 had a care plan addressing her use of Risperdal, which required monitoring and other interventions. Monthly nursing summaries reflected that she was monitored, as did nursing notes. Generally, nurses notes indicate when there are problems or unusual occurrences, not when everything is routine. Petitioner also presented evidence with regard to Resident 13's use of Haldol, which showed the reason for its use (wandering, verbal abusiveness), numerous efforts to reduce the dosage, review by the pharmacist, a care plan to address its use, which required monitoring, and monthly summaries summarizing her condition and behaviors. Respondent presented sufficient evidence to show that Residents 3, 4, 9, 11, and 13, cited in the September survey, were appropriately monitored and were not receiving unnecessary drugs. TAG F431 Respondent charged in the September 2000 survey that several insulin vials in the medication room were not marked with the date they were opened. The regulation under Tag F431, 42 C.F.R. Subsection 483.60(d), requires that drugs be labeled "in accordance with currently accepted professional principles" and "the expiration date when applicable." The surveyor guidelines indicate that the critical elements of labeling are the name of the drug and its strength. Additionally, the guidelines advise that drugs approved by the Federal Drug Administration (F.D.A.) must have expiration dates on the manufacturer's container. Respondent's witness acknowledged that all insulin had the manufacturer's expiration date. Although there is a chance of contamination after opening a vial of insulin, it was acknowledged that it is customary to have a policy allowing use for six months after opening. Petitioner has a policy of discarding insulin 60 days after opening. While it is customary to write the opening date on the vial, a failure to do so will only reduce the amount of time it can be used, because of other systems in place. The pharmacy which dispenses the insulin puts a dispensing date on it, and the pharmacist reviews, monthly, stored medications. Within every three months, all medications are checked, and if there is no date of opening, the pharmacist looks to the dispensing date. If the vial was dispensed more than 60 days prior, it is given to the nurse for discarding. Instead of being able to be used for six months beyond the date opened, the medication is discarded sixty days, or at most ninety days, after it was dispensed. Writing the date opened on the vial is not an item encompassed by the regulation as explicated in the guidelines. Furthermore, there is no potential for harm, as there are redundant systems in place.
Recommendation Based of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Director of the Agency for Health Care Administration enter a final order revising the July 27 and September 5, 2000, survey reports by deleting the deficiencies described under Tags F329 and F431, and issuing a Standard rating to Respondent to replace the previously issued Conditional rating. DONE AND ENTERED this 22nd day of August, 2001, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 22nd day of August, 2001. COPIES FURNISHED: Patricia J. Hakes, Esquire Agency for Health Care Administration 525 Mirror Lake Drive, North Room 310J St. Petersburg, Florida 33701 Donna H. Stinson, Esquire Broad and Cassel 215 South Monroe Street, Suite 400 Post Office Drawer 11300 Tallahassee, Florida 32302 Sam Power, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building Three Suite 3431 Tallahassee, Florida 32308 Julie Gallagher, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building Three Suite 3431 Tallahassee, Florida 32308
The Issue Whether Respondent’s nursing home license should be disciplined, and whether Respondent’s nursing home license should be changed from a Standard license to a Conditional license.
Findings Of Fact Bayside Manor is a licensed nursing home located in Pensacola, Florida. On June 14, 2003, Resident No. 4 climbed out of her bed without assistance to go to the bathroom. She fell to the floor and sustained a bruise to her forehead and lacerations to her cheek and chin. Her Foley catheter was pulled out with the bulb still inflated. The fall occurred shortly after Resident No. 4 had finished eating. No staff was in her room when she climbed out of her bed. She was found on her side on the floor by staff. According to the June 14 Bayside’s Nurses' notes, Resident No. 4 stated, "Oh, I was going to the bathroom." In the hour prior to her fall, Resident No. 4 was seen at least three times by nursing assistants, which was more than appropriate monitoring for Resident No. 4. On June 20, 2002, AHCA conducted a survey of Bayside Manor’s facility. In its survey, AHCA found one alleged deficiency relating to Resident No. 4. The surveyor believed that Resident No. 4 should have been reassessed for falls by the facility and, based upon that reassessment, offered additional assistive devices and/or increased supervision. The surveyor also believed that the certified nursing assistant had left Resident No. 4 alone with the side rails to her bed down. The deficiency was cited under Tag F-324. Tag F-324 requires a facility to ensure that “[e]ach resident receives adequate supervision and assistance devices to prevent accidents.” The deficiency was classified as a Class II deficiency. On October 9, 2001, and January 14, 2002, Bayside Manor assessed Resident No. 4 as having a high risk for falls, scoring 9 on a scale where scores of 10 or higher constitute a high risk. In addition to the June 14, 2002, fall noted above, Resident No. 4 had recent falls on November 30, 2001, April 19, 2002, and May 12, 2002. Resident No. 4's diagnoses included end-stage congestive heart failure and cognitive impairment. She had periods of confusion, refused to call for assistance, and had poor safety awareness. Resident No. 4 had been referred to hospice for palliative care. Because hospice care is given when a resident is close to death, care focuses on comfort of the resident rather than aggressive care. Additionally, the resident frequently asked to be toileted even though she had a catheter inserted. She frequently attempted to toilet herself without staff assistance, which in the past had led to her falls. Often her desire to urinate did not coincide with her actual need to urinate. She was capable of feeding herself and did not require assistance with feeding. Bayside Manor addressed Resident No. 4’s high risk of falls by providing medication which eliminated bladder spasms that might increase her desire to urinate and medication to alleviate her anxiety over her desire to urinate. She was placed on the facility’s falling stars program which alerts staff to her high risk for falls and requires that staff check on her every hour. The usual standard for supervision in a nursing home is to check on residents every two hours. The facility also provided Resident No. 4 with a variety of devices to reduce her risk of falling or any injuries sustained from a fall. These devices included a lap buddy, a criss-cross belt, a roll belt while in bed, a low bed, and a body alarm. Some of the devices were discontinued because they were inappropriate for Resident No. 4. In December 2001, the roll belt was discontinued after Resident No. 4, while attempting to get out of bed, became entangled in the roll belt and strangled herself with it. On May 6, 2002, the low bed and fall mat were discontinued for Resident No. 4. The doctor ordered Resident No. 4 be placed in a bed with full side rails. The doctor discontinued the low bed because it could not be raised to a position that would help alleviate fluid build-up in Resident No. 4’s lungs caused by Resident No. 4’s congestive heart failure. Discontinuance of the low bed was also requested by hospice staff and the resident’s daughter to afford the resident more comfort in a raised bed. The fact that placement in a regular raised bed potentially could result in an increase in the seriousness of injury from a fall from that bed was obvious to any reasonable person. The May 5, 2002, nurses’ notes indicate that there was a discussion with Resident No. 4’s daughter about returning the resident to a high bed for comfort. On balance, the placement of Resident No. 4 in a regular raised bed was medically warranted, as well as reasonable. The placement in a regular bed with side rails was not noted directly in the care plan but was contained in the doctor’s orders and was well known by all the facility’s staff. There was no evidence that directly mentioned the regular bed in the formal care plan was required or that the failure to do so had any consequence to Resident No. 4’s care. Even a lack of documentation clearly would not constitute a Class II deficiency. Moreover, the bed with side rails was not ordered to protect or prevent falls by Resident No. 4. The facility does not consider a bed with side rails of any sort to be a device which assists in the prevention of falls. Indeed rails often cause falls or increase the injury from a fall. In this case, the rails were ordered so that the resident could more easily position herself in the bed to maintain a comfortable position. Again, the decision to place Resident No. 4 in a regular raised bed with side rails was reasonable. The focus is on comfort as opposed to aggressive care for hospice residents. The evidence did not demonstrate that Bayside Manor failed to adequately supervise or provide assistive devices to Resident No. 4. There was no evidence that reassessment would have shown Resident No. 4 to be at any higher risk for falls, since she was already rated as a high risk for falls. Nor did the evidence show that reassessment would have changed any of the care given to Resident No. 4 or changed the type bed in which she was most comfortable.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order restoring the Respondent’s licensure status to Standard and dismissing the Administrative Complaint. DONE AND ENTERED this 3rd day of June, 2003, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of June, 2003. COPIES FURNISHED: Joanna Daniels, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Donna H. Stinson, Esquire R. Davis Thomas, Jr., Esquire Broad & Cassel 215 South Monroe Street, Suite 400 Post Office Box 11300 Tallahassee, Florida 32302 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308
The Issue In their Prehearing Stipulation the original parties described the background and general nature of the controversy as follows: In January, 1985, HCR filed an application for certificate of need to develop a new 120 bed nursing home in Collier County, Florida. By notice dated June 28, 1985, HRS stated its intention to deny HCR's application. HCR timely filed a request for formal administrative proceeding, and the proceeding was forwarded to the Division of Administrative Hearings. By application supplement dated May 15, 1986, HCR has reduced this application to a 90-bed new nursing home. The nursing home will provide skilled nursing care to Alzheimer's patients and to patients discharged from hospitals in need of additional intensive nursing care, in addition to the typical nursing home patient. HRS has denied HCR's application because, pursuant to Rule 10-5.11(21), Florida Administrative Code there is insufficient need for the additional nursing home beds proposed by HCR. In the Prehearing Statement the Petitioner described its position as follows: HCR contends that there is an identifiable need for a nursing home in Collier County, Florida, to serve the needs of patients who suffer from Alzheimer's disease and similar disorders and patients who are discharged from hospitals with a continuing need for a high level of intensive care, often provided through sophisticated technical or mechanical means. Existing nursing homes in Collier County do not offer adequate facilities for such patients and refuse admission to such patients. These patients have experienced an inability to obtain such care in Collier County. HCR's proposed nursing home will provide needed care which is otherwise unavailable and inaccessible in Collier County. The application meets all criteria relevant to approval of a certificate of need. HCR further contends that the nursing home formula shows a need for additional nursing home beds in Collier County. Previously, in circumstances where a need for additional nursing home services has been identified, HRS has approved certificates of need even though the nursing home formula showed a need for zero additional beds or a small number of additional beds. In the Prehearing Statement the Respondent described its position as follows: HRS contends, pursuant to the formula contained in Rule 10-5.11(21), Florida Administrative Code, that there is insufficient need in the January, 1988 planning horizon demonstrated for additional nursing home beds in Collier County to warrant approval of a-new nursing home. Therefore, HRS contends that the HCR application should be denied. Further in its original application, HCR did not identify services proposed specially for Alzheimer's disease patients or "sub-acute" patients. HCR did not and has not complied with provision of Chapter 10-5.11(21)(b 10., Florida Administrative Code, regarding mitigated circumstances. The Respondent also identified the following as an issue of fact to be litigated. "HRS contends that it should be determined whether HCR's supplement dated May 15, 1986, is a significant change in scope for which the application was originally submitted." Because of its late intervention into this case, the Intervenor's position is not described in the Prehearing Statement. In general, the Intervenor urges denial of the application on the same grounds as those advanced by the Respondent. The Intervenor did not attempt to become a party to this case until the morning of the second day of the formal hearing. Respondent had no objection to the Petition To Intervene. The original Petitioner objected on the grounds that the effort at intervention was untimely and that the Intervenor was without standing. The objection to intervention was overruled and the Intervenor was granted party status subject to taking the case as it found it. Accordingly, intervention having been granted at the conclusion of the evidentiary presentation of the other parties, the Intervenor was not permitted to call any witnesses or offer any exhibits. Intervenor's participation before the Division of Administrative Hearings was limited to an opportunity to file proposed findings of fact and conclusions of law. Following the hearing a transcript of proceedings was filed on July 8, 1986. Thereafter, all parties filed Proposed Recommended Orders containing proposed findings of fact. Careful consideration has been given to all of the Proposed Recommended Orders in the formulation of this Recommended Order. A specific ruling on all proposed findings of fact proposed by all parties is contained in the Appendix which is attached to and incorporated into this Recommended Order. The Petitioner also filed an unopposed post-hearing motion requesting that its name be corrected in the style of this case. The motion is granted.
Findings Of Fact Based on the stipulations of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at the hearing, I make the following findings of fact. Findings based on admitted facts The parties agree that HCR properly filed a letter of intent and application for certificate of need for a new nursing home to be located in Collier County. The application was reviewed by HRS in the ordinary course of its activities, and HRS initially denied the application. HRS continues to oppose issuance of a CON because (a) there is an insufficient need, pursuant to Rule 10-5.11(21), Florida Administrative Code, for additional nursing home beds to warrant approval of a new nursing home [Section 381.494(6)(c)1., Florida Statutes]; (b) the long term financial feasibility and economic impact of the proposal is questionable because of low occupancy being experienced by existing nursing homes "Section 381.494(6)(c)9., Florida Statutes]. HRS proposes no other basis for denial of the application. The parties agree that HCR meets all criteria for a certificate of need, with the exception of those two criteria listed in the immediately foregoing paragraph relating to need and financial feasibility/economic impact (relevant to low occupancy), which HRS contends have not been met. The parties agree that HCR would provide good quality care to patients, that the project would be financially feasible if the occupancy projections asserted by HCR were obtained, that the costs and methods of proposed construction are appropriate and reasonable, and that the proposed facility would be adequately available to underserved population groups. The rest of the findings In January 1985, HCR filed an application for a certificate of need to develop a new 120-bed nursing home facility in Collier County, Florida. The original application described a traditional approach to nursing home care. By notice dated June 28, 1985, HRS stated its intention to deny HCR's application. HCR timely filed a request for formal administrative proceedings and this proceeding ensued. By application supplement dated May 15, 1986, HCR made certain changes to its original application. These changes included reducing the size of the proposed nursing home from 120 to go beds and changing the-concept of the nursing home from a traditional nursing home to one specifically designed to address the treatment of Alzheimer's disease patients and sub-acute care patients. The supplement specifically provided that 30 of the 90 proposed beds would be "set aside to offer a therapeutic environment for patients with Alzheimer's or similar disorders." The project description in the original application contained no such provision. HCR's proposed facility would consist of 90 nursing home beds, 30 assisted living beds, and an adult day care facility located adjacent to the nursing home portion of the facility. Those portions of the facility relating to assisted living and adult day care do not require certificate of need review. The estimated cost of the portion of the project which requires certificate of need review is $3.5 million. HCR estimates that approximately 33 1/3 per cent of the patients in the facility will be Medicaid reimbursed. It is proposed that 30 of the 90 nursing home beds be designed and staffed specifically to provide care and treatment necessary to meet the special needs of certain patients who suffer from Alzheimer's disease and dementia and exhibit need for care different from that found in the typical nursing home. It is proposed that another 30-bed wing be staffed and equipped to provide sub-acute, high-tech services such as ventilator, I.V. therapy, pulmonary aids, tube feeding, hyperalimentation and other forms of care more intensive than those commonly found in a nursing home and necessary for the care of patients discharged from hospitals and patients in the last stages of Alzheimer's disease. The remaining 30-bed wing would be devoted to traditional nursing home care. HRS has adopted a rule which establishes a methodology for estimating the numeric need for additional nursing home beds within the Department's districts or subdistricts. This methodology is set out in Rule 10-5.11(21), Florida Administrative Code. This rule determines historic bed rates and projects those bed rates to a three-year planning horizon. Allocation to a subdistrict such as Collier County is adjusted by existing occupancy in the subdistrict and the subdistrict's percentage of beds in relationship to the total number of beds in the district. Additional beds normally are not authorized if there is no need for beds as calculated under the rule. HRS calculated need utilizing current population estimates for January 1986 and projected need for the population estimated for January 1988, arriving at a need of approximately 16 additional nursing home beds for the January 1988 planning horizon. HCR projected need to the January 1989 planning horizon and projected a numeric need of approximately 38 additional nursing home beds. There are no applicants for additional nursing home beds in the January 1989 planning horizon (batching cycle). Alzheimer's disease is a primary degenerative disease of the central nervous system which results in a breakdown of the nerve cells in the brain. The disease is progressive, in that it begins subtly, often with forgetfulness or simple personality changes, and ultimately results in death following a phase in which the patient is bedridden and totally dependent upon others for survival. The cause of the disease is not known. The disease is much more common in the older age groups and is very common in the southwest Florida area. (However, nothing in the evidence in this case suggests that Alzheimer's disease is more common in southwest Florida than in other parts of the state.) There is no known cure for Alzheimer's disease. Alzheimer's disease patients are characterized by such symptoms as memory loss, communication problems, difficulty understanding, confusion, disorientation, inability to recognize care givers, waking at night, wandering, inability to socialize appropriately, and incontinence. The progress of the disease can be divided into stages. During the initial stage, the patients will display forgetfulness and subtle personality changes. As the disease progresses, the patients encounter increasing difficulty performing more than simple tasks, tend to be more emotional, become more confused, encounter difficulty with concentration and retaining thoughts, and often display poor judgment and a denial of the significance of their actions. In the next stage, the patients begin to require assistance to survive. Forgetfulness and disorientation increase and wandering patients are often unable to find their way. The patients become incontinent, experience sleep disturbances, become restless at night, and wander during the day, leading to considerable family distraction and difficulties for the care givers. The patients encounter difficulty recognizing family members and often become paranoid and fearful of those family members within the house. violence and aggressive outbursts may occur. Finally, the patients progress to a stage in which they are totally inattentive to their features physical needs, requiring total care. These Patients are totally incontinent, experience frequent falls, develop seizures, and eventually become bedridden, going into a fetal position and becoming totally unable to provide any care for themselves. Traditionally, most nursing homes offer no special programs for patients who suffer from Alzheimer's disease and mix these patients with other patients in the nursing home. There is no nursing home in Collier County which provides program specifically designed for the treatment of Alzheimer's disease patients. The nearest nursing home where such care can be found is in Venice, some 92 miles from Naples. The total facility proposed by HCR is designed to provide a continum of care for Alzheimer's disease patients and their family care givers. The adult day care portion of the facility would enable family members to place Alzheimer's disease patients in day care for a portion of the day in order for the family care givers to maintain employment, perform normal household chores, and find relief from the extremely demanding task of constantly supervising and caring for an Alzheimer's disease victim. The adult day care portion of the facility would be designed and staffed to provide a therapeutic program for the Alzheimer's disease patient and the patient's family. The assisted living portion of the facility would allow an Alzheimer's disease patient in the early stages of the disease to live in an environment, with his or her spouse if desired, where immediate care and routine supervision at a level lower than that required by a nursing home patient would be provided. Thirty nursing home patient and who do not display those characteristics which are disruptive to non-Alzheimer's patients, such as wandering, combativeness, and incontinence. For those Alzheimer's patients who should not be mixed with other nursing home patients because of their disruptive routines and who require unique programs and facility design features to meet their specific needs, a 30-bed wing would be set aside. Finally, for Alzheimer's patients in the final stages of the disease who require total care and are bedridden, and for patients discharged from local hospitals who require high-tech services, a 30-bed wing designed, staffed and equipped to provide such services would be set aside. The facility would provide a high level of staffing to meet the demanding, personal care needs of Alzheimer's patients and would provide 24-hour nursing supervision in that portion of the facility dedicated to intensive services for the bedridden and high-tech patient. The design and equipment of the proposed facility are particularly addressed to the needs of Alzheimer's disease patients. Physically, the facility would allow patients freedom of movement both inside the facility and in an outside courtyard with porches, but the facility would be sufficiently secure to prevent the patient from wandering away from the facility. There would be amenities such as therapeutic kitchens which would allow patients still able to cook to do so. Fixtures in the facility would be designed so that the Alzheimer's disease patients could easily identify the functions of fixtures such as wastebaskets, toilets, and sinks. Features such as low frequency sound systems, lever door knobs, square instead of round tables, barrier-free doorways, special floor coverings, appropriate labeling, automatic bathroom lighting, and provisions for seating small groups of patients together would all provide the special care required by the Alzheimer's patient. The concept of a separate unit for Alzheimer's disease patients is a new one, growing out of increased medical awareness of the disease. The proposed unit would be a prototype for the Petitioner. There are four nursing homes in Collier County and 413 licensed nursing home beds. There are no approved but unlicensed nursing home beds in Collier County. At the time that HRS initially reviewed the HCR application, Collier County nursing homes were reporting an average occupancy of approximately 70 percent. At the time of the hearing, average occupancy of existing nursing home beds in Collier County was 83.5 per cent. Existing nursing home beds in Collier County are underutilized and there are a number of nursing home beds available to the public. Also there are available alternatives to nursing homes in Collier County. HCR has projected reaching 95 per cent occupancy within one year of opening. This projection seems overly optimistic and unwarranted by prior history, as only one existing facility has an occupancy rate that high. HCR's occupancy projections are based on assumptions that the future growth will be similar to that experienced between 7/1/85 and 12/1/85. But more recent data shows that growth has been decreasing and that there was no growth for the most recent period prior to the hearing. If projected occupancy is not met, projected revenues will not be realized, and projections of financial feasibility will not materialize. The record in this case does not contain evidence of patients' need for nursing home care documented by the attending physicians' plans of care or orders, assessments performed by the staff of the Department of Health and Rehabilitative Services, or equivalent assessments performed by attending physicians indicating need for nursing home care. The local health plan (Policy 1, priority 4) requires an occupancy level of at least 90 per cent before new nursing homes can be approved. The local health plan (Policy 1, priority 6) also provides, "No new community nursing home facility should be constructed having less than 60 beds. However, less than 60 beds may be approved as part of an established acute care hospital facility."
Recommendation For all of the foregoing reasons, it is recommended that the Department of Health and Rehabilitative Services issue a Final Order in this case denying the Petitioner's application for a certificate of need to construct either its original proposal or its supplemented proposal. DONE AND ENTERED this 14th day of October, 1986, at Tallahassee, Florida. MICHAEL M. PARRISH, 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 October, 1986.
Findings Of Fact FMCC's application is to provide a 102-bed long-term care nursing facility in Fort Myers, Florida, while AHC's and HSI's applications are to provide 120-bed long-term nursing care facilities. When each of these applications was presented to the south Central Florida Health Systems Council, Inc. (HSA), the application of FMCC was approved and forwarded to Respondent recommending approval and the other two applications were disapproved and so forwarded. The primary reason given by HSA for disapproving HSI's application was lack of firm financing and for disapproving AHC's application was cost of construction. Trained personnel to man the proposed facilities are in short supply in Lee County. Applicants' plans to import personnel, if necessary, from other parts of the country were supported by no evidence to indicate such personnel would be amenable to move to Lee County. All applications were disapproved by Respondent and each applicant requested a hearing which resulted in this consolidated hearing. At present there are 741 existing or approved long-term care nursing home beds in Lee County, Florida. A 120-bed facility at Cape Coral became operative in February, 1979 and a 60-bed addition to Beacon-Donegan Manor nursing home has also been approved. Prior to the opening of the newest 120-bed facility at Cape Coral, the occupancy rate for the other long-term care nursing homes was greater than 90 percent. Due to its recent opening, no evidence was presented as to the occupancy rate in Lee County following the opening of the Cape Coral facility. The population of Lee County in 1978 was 184,841 with 41,984 more than 65 years old, which is less than 23 percent of the population. This is in line with the population forecasts by the University of Florida and validates the estimated 1980 population figures which were used by all parties in submitting their applications. In 1978 Respondent proposed a State Health Plan which included a determination that the long-term care nursing home bed needs were 27 per 1,000 population greater than 65 years old. This determination was unacceptable to the Department of Health, Education and Welfare (HEW) whose decision is binding on Respondent. In refusing to accept this standard, HEW reaffirmed the requirement that the formula contained in the Hill-Burton Act be utilized in determining certificates of need. Following the Hill-Burton formula results in no additional long-term care nursing home beds needed in Lee County. Modification of the results produced by use of the Hill-Burton formula when extenuating and mitigating circumstances exist is authorized by the Florida Medical Facilities Plan. Accordingly, when use of Hill-Burton formula produces results contrary to obvious facts, such as a showing of no need for additional facilities when occupancy rates are high and long waiting lists for admission exists, these extenuating circumstances are considered and a finding of need is made. The parties stipulated that extenuating circumstances, notably the greater than 90 percent occupancy rate in nursing homes in 1977 and most of 1978 and the existing waiting lists created need for 100 to 120 additional beds. No evidence was presented establishing a need for more than 100-120 additional long-term care nursing home beds in Lee County. In fact, no evidence was presented showing the current occupancy rate, current waiting lists, or any other information not previously submitted to the Health Systems Agency was here presented other than the latest Census Report, which merely confirmed the accuracy of the forecasts. Even if the 27 beds per 1,000 population greater than 65 which was proposed by the South Central Florida Health Systems Agency were used to establish the number of beds needed, their limitation, that no more than 50 percent be added in the two-year planning period, would preclude approving more than one additional nursing home at this time. Absent evidence showing a need for more than one additional nursing home, the only issue remaining is which of the applicants is best qualified to provide the best service at the lowest cost for the stipulated need. HSI submitted proposed construction costs and patient charges in line with those submitted by FMCC. However, although their application states, and the Health Systems Agency apparently accepted, their allegation that an option to lease had been obtained on the property on which the proposed facility was to be erected, testimony at the hearing disclosed that only an oral agreement to lease the property had been obtained by HSI. An oral agreement affecting a long-term lease of real property comes within the Statute of Frauds and is unenforceable. This fact alone renders all cost estimates submitted by HSI suspect. Further, the financing proposed by HSI to construct the facility shows less than $200,000 equity capital available and a requirement to borrow $1,300,000. One ground noted by the Health Systems Agency for disapproving this application was the inadequacy of their financing. No evidence presented at this hearing contradicted this Health System Agency's finding. AHC operates some 50 nursing homes in 14 states with two nursing homes in the Orlando area. A certificate of need has been obtained for a third nursing home in Jacksonville. Florida Living Care, Inc., the parent corporation of FMCC, manages some 44 nursing homes and owns 25. It has certificates of need for 6 nursing homes in Florida, one of which is completed and in operation, while 3 are under construction. AHC proposes to finance 87 percent of the cost of the 120-bed project, or $2,160,000, in a 40-year loan at 8.5 percent interest. FMCC proposes to finance 80 percent of the cost of a 102-bed project, or $1,000,000, in a 25-year loan at 9.5 percent interest. Although no testimony regarding the current status of mortgage money was presented, it is recognized that interest rates are at historically high levels and that FMCC is more likely to get financing on the terms it proposed than is AHC on the terms the latter proposed. HSI proposed costs and charges result in average costs of $30.16 per patient per day. FMCC proposed costs and charges result in average costs of $30.96 per patient per day. AHC proposed costs and charges result in average costs of $34.40 per patient per day. No significant difference exists in the services proposed by each of the applicants. Savings from combined purchasing can result when numerous facilities are operated. Both AHC and FMCC are in a better position in this regard than is HSI. Additional savings in group food purchasing can result when facilities are within 200 miles of each other. The facilities FMCC's parent corporation is opening in Sebring and Port Charlotte are close enough to Fort Myers to allow group food purchasing for these facilities. AHC's construction costs are approximately 50 percent higher per bed than are the costs submitted by FMCC and HSI. This factor must result in higher charges to amortize these higher construction costs.
The Issue DOAH Case No. 01-3072: Whether Respondent's licensure status should be reduced from standard to conditional. DOAH Case No. 01-3616: Whether Respondent committed the violations alleged in the Administrative Complaint dated August 23, 2001, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: AHCA is the state Agency responsible for licensure and regulation of nursing homes operating in the State of Florida. Chapter 400, Part II, Florida Statutes. Jacaranda Manor operates a 299-bed licensed nursing home at 4250 66th Street, North, St. Petersburg, Florida. The facility has a staff of approximately 225 persons, including 15 registered nurses ("RNs"), 25 licensed practical nurses ("LPNs"), and 100-125 certified nursing assistants ("CNAs"). Contract nurses also work at the facility on a daily basis. Jacaranda Manor accepts residents from throughout the United States. It is known as a facility that accepts residents with psychiatric or behavioral idiosyncrasies that other nursing homes might be unwilling to handle. Jacaranda Manor residents are admitted from state mental hospitals, the psychiatric units of general hospitals, assisted living facilities, group homes, and other nursing homes. Jacaranda Manor also accepts admissions from the Pinellas County Jail, mostly homeless persons whose mental condition makes them inappropriate for a jail setting. While all of Jacaranda Manor's residents have a primary diagnosis relating to a need for nursing home care, almost 90 percent of its residents have a specific mental illness as a secondary diagnosis. All of the residents cited in the AHCA survey deficiencies suffered from mental disorders. One hundred percent of Jacaranda Manor's residents receive services related to mental illness or retardation, compared to a statewide average of 2.6 percent. Jacaranda Manor's population includes residents with Alzheimer's disease, schizophrenia, dementia, multiple sclerosis, cerebral palsy, muscular dystrophy, Huntington's chorea, spinal cord injuries and closed head injuries. Over 97 percent of Jacaranda Manor's residents are expected never to be discharged. More than 40 of Jacaranda Manor's residents have lived there for at least 25 years. Statewide, 59.2 percent of nursing home residents are never expected to be discharged. Two-thirds of Jacaranda Manor's residents are male, as opposed to a statewide average of 31.3 percent. Thirty- five percent of Jacaranda Manor's population is under age 50. Ninety-one percent of Jacaranda Manor's residents are Medicaid recipients, as opposed to a statewide average of 64 percent. Jacaranda Manor also operates the HCR Training Center, a licensed vocational school for CNAs, located across the street from the main nursing home. The center provides free training for prospective CNAs, and Jacaranda Manor employs the trainees and graduates. The course of study lasts six weeks, and each class usually has 20-25 students. The school day consists of four hours of classes followed by paid on-the-job training at Jacaranda Manor. Students generally work 30 hours per week at Jacaranda Manor. As part of its effort to create a home-like atmosphere for residents, Jacaranda Manor does not require staff to wear uniforms. The facility has no particular dress code for employees, aside from a requirement that they wear safe, protective shoes. Some of the administrative personnel wear name tags, but are otherwise indistinguishable from other employees. Thus, an outside observer could not be certain, without further inquiry, whether the "staff person" she sees in the facility is a nurse, a CNA, a CNA trainee, or a maintenance worker. The standard form used by AHCA to document survey findings, titled "Statement of Deficiencies and Plan of Correction," is commonly referred to as a "2567" form. The individual deficiencies are noted on the form by way of identifying numbers commonly called "Tags." A Tag identifies the applicable regulatory standard that the surveyors believe has been violated and provides a summary of the violation, specific factual allegations that the surveyors believe support the violation, and two ratings which indicate the severity of the deficiency. One of the ratings identified in a Tag is a "scope and severity" rating, which is a letter rating from A to L with A representing the least severe deficiency and L representing the most severe. The second rating is a "class" rating, which is a numerical rating of I, II, or III, with I representing the most severe deficiency and III representing the least severe deficiency. On April 3 through 6, 2001, AHCA conducted a licensure and certification survey of Jacaranda Manor, to evaluate the facility's compliance with state and federal regulations governing the operation of nursing homes. The survey noted one deficiency related to difficulty in opening two exit doors at the facility, but noted no deficiencies as to resident care. AHCA found Jacaranda Manor to be in substantial compliance with 42 C.F.R., Part 483, Requirements for Long Term Care Facilities. Pursuant to the mandate of the federal Centers for Medicare and Medicaid Services ("CMS") (formerly the Health Care Financing Administration, or "HCFA"), AHCA maintains a "survey integrity and support branch," also known as the "validation team." To ensure the quality and consistency of its survey process, AHCA sends the validation team to re- survey facilities that have received deficiency-free initial surveys. Because its April 2001 survey revealed no deficiencies related to resident care, Jacaranda Manor was considered deficiency-free. On May 8 through 11, 2001, AHCA's validation team conducted a second survey at Jacaranda Manor. The validation team alleged a total of thirteen deficiencies during the May 2001 survey. At issue in these proceedings were deficiencies identified as Tag F241 (violation of 42 C.F.R. Section 483.15(a), relating to resident dignity); Tag F250 (violation of 42 C.F.R. Section 483.15(g), relating to social services); and Tag F272 (violation of 42 C.F.R. Section 483.20(b)(1), relating to resident assessment). All of the deficiencies alleged in the May 2001 survey were classified as Class III under the Florida classification system for nursing homes. At the time of the survey, Class III deficiencies were defined as those having "an indirect or potential relationship to the health, safety, or security of the nursing home facility residents, other than Class I or Class II deficiencies." Section 400.23(8)(c), Florida Statutes (2001). Jacaranda Manor disputed the deficiencies alleged in the May 2001 survey and elected to go through the federally authorized Informal Dispute Resolution ("IDR") process. See 42 C.F.R. Section 488.331. The IDR process allows the facility to present information to an AHCA panel, which may recommend that the deficiencies alleged in the survey be deleted, sustained, or modified. Under AHCA's application of the process, the three-member AHCA panel considers the facility's information and then makes a recommendation to Susan Acker, the director of AHCA's health standards and quality unit, who makes the final decision. The IDR meeting was held via teleconference on June 11, 2001. The IDR resulted in AHCA's upholding all the deficiencies alleged in the May 2001 survey. AHCA modified the state level classification of Tag F241 from Class III to Class II. At the time of the survey, Class II deficiencies were defined as "those which the Agency determines have a direct or immediate relationship to the health, safety, or security of the nursing home facility residents, other than class I deficiencies." Section 400.23(8)(b), Florida Statutes (2000). This change in classification was recommended by the IDR panel and approved by Ms. Acker. The IDR meeting also resulted in AHCA's changing Tag F272 to Tag F309 (violation of 42 C.F.R. Section 483.25, relating to quality of care) and to classify the alleged Tag F309 deficiency as Class II. This change was made by Ms. Acker alone. The IDR panel recommended upholding the original Class III, Tag F272 findings, but increasing the federal scope and severity rating from D (no actual harm but with potential for more than minimal harm) to G (actual harm that is not immediate jeopardy). Ms. Acker overruled that recommendation and imposed the change to Tag F309. Based on the increased severity of the alleged deficiencies in Tags F241 and F309, from Class III to Class II, AHCA imposed a conditional license on Jacaranda Manor, effective May 15, 2001. The license expiration date was February 28, 2002. On June 19 and 20, 2001, AHCA conducted a follow-up survey of Jacaranda Manor to determine whether the deficiencies alleged in the May 2001 survey had been corrected. The survey team determined that Tags F241 and F250 were uncorrected Class III deficiencies. This determination resulted in the filing of an Administrative Complaint seeking imposition of a $2,000 civil penalty. May 2001 Survey A. Tag F241 The May 2001 validation survey allegedly found violations of 42 C.F.R. Section 483.15(a), which states that a 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." In the parlance of the federal Health Care Financing Administration Form 2567 employed by AHCA to report its findings, this requirement is referenced as "Tag F241." Tag F241 is commonly referred to as the "quality of life" or "dignity" tag. For purposes of the Form 2567, the validation team gave the alleged deficiencies on the May 2001 survey a federal scope and severity rating of E for Tag F241. A rating of E indicates that there is a pattern of deficiencies causing no actual harm to the residents but with potential to cause more than minimal harm. After the IDR process, the federal scope and severity rating for Tag F241 was increased to H, meaning that there is a pattern of deficiencies causing actual harm that is less than immediate jeopardy to the health or safety of the residents. The increase of the federal scope and severity rating from E to H corresponded to the increase of the state level classification from Class III to Class II. The Form 2567 for the May 2001 survey listed nine separate incidents under Tag F241, the dignity tag. The first surveyor observation involved Resident 31, or "R-31": On 5/11/01 at 8:30 a.m., R-31 was observed in a 4 bed room, sitting on his/her bed eating breakfast. The resident had no clothes on, had a colostomy bag and foley catheter visible to anyone walking by in the hallway. A staff member went into the room to another resident but did not cover R-31. A second staff member came to the doorway of the room to talk to the first staff member and also did not attempt to cover the resident. Marsha Lisk was the AHCA team coordinator for the May 2001 survey and was the team member who recorded the observation of R-31. Ms. Lisk stated that this was a random observation, made without benefit of reviewing R-31's records. Ms. Lisk could not identify the two staff members who failed to cover R-31, aside from a recollection that one of them was a CNA. She was "astounded" that the staff persons did not intervene to cover the naked resident, especially because they could see that Ms. Lisk was standing in the doorway taking notes. Ms. Lisk would have thought nothing more of the incident had the staff members done anything to obscure the view of the resident from the hallway. Ms. Lisk admitted that R-31 appeared to be in no distress, and that no other resident complained about his nudity. Twenty minutes after this observation, Ms. Lisk saw R-31 fully clothed and being pushed in a wheelchair down the hall. Ms. Lisk noted this incident as a deficiency because she believed nudity cannot be considered to meet community standards under any circumstances. Even if the resident consciously preferred nudity, or was so mentally incapacitated as to be unaware he was nude, it was staff's responsibility to cover the resident, pull a curtain around him, or move his bed to a place where it could not be seen from the hall. At the hearing, it was established that R-31 was a 59-year-old male with multiple medical and psychiatric diagnoses, including schizophrenia and dementia due to organic brain syndrome. He preferred to sleep in the nude and to dress himself, though he required some assistance to do so properly. He was able to close his own privacy curtain. R-31 was very resistant when staff approached to dress him, to the point of physically lashing out. R-31 would refuse to eat if he was pushed to clothe himself near meal time. Carol Heintz, Jacaranda Manor's psychiatric nurse manager, stated that the main goal was to get R-31 to eat his breakfast, and that staff was concerned that any effort to dress him would disrupt his meal. Ms. Heintz offered no reason why the door could not be closed or the privacy curtain drawn while R-31 ate his breakfast in the nude. R-31 also preferred to keep his colostomy uncovered. Staff would cover it and encourage him to keep it covered, but he would refuse to do so. Ms. Lisk, the surveyor, admitted that she did not review R-31's record even after her observation. She made no attempt to interview R-31 and admitted that she was unaware of his habits and preferences. The second surveyor observation on Tag F241 concerned Resident 21,1 or "R-21", and stated: During the tour on 5/08/01, at approximately 10 a.m., a staff member invited the surveyor into a room to meet [R-21]. He/she was in adult briefs uncovered lying on his/her bed. There was no attempt to cover the resident to insure privacy. At approximately 4:40 p.m. [R-21] was observed from the hallway lying in bed in his/her adult brief with no pants on and the privacy curtain not drawn. Kriste Mennella was the survey team member who recorded the observation of R-21, identified only as a male resident. She did not review the facility's records relating to R-21, and offered no testimonial details beyond the facts set forth in her observation. She did not interview the resident and did not know whether the resident was able to respond to questions. Jacaranda Manor offered no explanation as to why the door could not have been closed or the privacy curtain drawn to prevent passersby from seeing R-21 uncovered in his bed. The third surveyor observation on Tag F241 concerned Resident 8, or "R-8," and stated: [R-8] was observed on 5/8/01 wheeling out of the dining area with several staff present. He had a black polo shirt on inside out and his Khaki pants, along with his adult brief, were down to his knee's [sic] exposing his right lower side and hip. There was no intervention by staff. He was unshaven and had dirty hand [sic] and his fingernails were ragged and dirty. His hair was unkempt. On 5/9/01 through out [sic] the day [R-8] was observed to have on two different shoes. One was a tennis shoe with his name written across the top and the other a brown loafer. Ms. Mennella recorded the observations of R-8. Ms. Mennella identified the unnamed staff persons as "management folks" who were following the surveyors around the facility, and the person in charge of the dining room. These staff persons told Ms. Mennella on May 8 that they did not intervene because R-8 was "resistive to care." Ms. Mennella subsequently discussed R-8 with a CNA, who told her that the resident may or may not be combative, depending on how he is approached. Ms. Mennella believed that some intervention should have occurred even with a combative resident, if only verbal prompting to tell the resident that his pants were down and he should pull them up. She observed R-8 throughout the three days of the survey, but did not see him with his pants down again after the May 8 observation. On May 9, when she saw R-8 wearing unmatched shoes, Ms. Mennella went to the resident's room and confirmed that he did have matching shoes. R-8 was a 46-year-old male with multiple medical and psychiatric diagnoses, among them paranoid schizophrenia. R-8 saw a variety of mental health professionals, including a psychiatrist, a psychiatric ARNP for medication management, a psychologist for individual therapy, and a licensed clinical social worker for group therapy. R-8 was classified as an elopement risk, paranoid and suspicious with a history of aggression. R-8 did not require a wheelchair to ambulate. R-8 habitually carried his "things" (e.g., a radio, or a box containing items sent him by a relative) with him as he moved about the facility. He liked to use a wheelchair to more easily carry his possessions. R-8 dressed himself, usually with some assistance in the morning. He changed clothes five or six times a day. Sometimes he would wear two different outfits in layers, or wear unmatched shoes. Jacaranda Manor staff uniformly noted that there was nothing unusual in R-8 having his shirt on inside-out or backwards, because he was constantly taking his clothes off and on. R-8 liked to wear his pants unbuttoned. He often moved about the facility holding his pants up with one hand, and his pants would often droop down to his knees. Jacaranda Manor staff constantly intervened in an effort to keep R-8 properly clothed. He was sometimes compliant, but other times would resist pulling up his pants. He would curse and run out of the room, or threaten to tell the President of the United States about his treatment. R-8 was indifferent to his appearance, displaying anxiety about his clothing only when staff attempted to change it. He would muss his hair as soon as it was brushed. His hands would get dirty because R-8 had a habit of rooting on the ground or through ashtrays for cigarette butts to smoke. Since the survey, Jacaranda Manor has addressed this problem by installing ashtrays that the residents cannot reach into. Ms. Mennella testified that she knew nothing about R-8's preferences or behaviors regarding clothing. She did not know he had a habit of tousling his own hair. She did not know he had a habit of rooting for cigarettes. She did not ask who wrote R-8's name on his shoe. Jacaranda Manor has a policy of not marking residents' clothing, for privacy reasons. However, R-8 would write his own name on his shoes and other items he received from his family because he was proud of them. The fourth surveyor observation on Tag F241 concerned an unnamed resident: During an observation on 5/9/01, outside in the lifestyles patio area, at approximately 9:10 a.m., a staff person who was on break under the pavilion shouted across the courtyard to a resident in a loud voice, "MR. (name) PULL UP YOUR PANTS." There was [sic] several staff on break and at least 15 other residents out side [sic] in the patio area at the time. Ms. Mennella recorded this observation. She testified that the staff person who yelled was an aide. By the time she looked to see whom the staff person was calling to, Ms. Mennella could see no resident with his or her pants down. Not having seen the resident, Ms. Mennella was unable to say whether the staff person could have reached the resident before his or her pants came down. Her concern was the tone and manner in which the instruction was given, and the embarrassment it could have caused the resident. Despite not having seen the resident, Ms. Mennella was certain that the staff person was addressing a male. Rosa Redmond, the director of nursing at Jacaranda Manor, testified that she learned of the incident shortly after it happened. A CNA and a trainee from the HCR Training Center told her of the incident. It was the trainee who called out to the resident. The trainee told Ms. Redmond that a female resident's slacks were starting to fall. The trainee was concerned that the resident would fall, and could not reach the resident in time to pull up her slacks, so the trainee called out to the resident. The fifth surveyor observation on Tag F241 was a general statement: Residents were observed during numerous random observations out in the patio area during all three days of the survey to have on only socks, no shoes on their feet. As a result the socks were black on the bottom. These general observations were made by surveyors Mary Maloney and Kriste Mennella. Ms. Maloney testified that she has surveyed nursing homes from Pensacola to Key West, including homes that accept mental health residents and have secured units, but that she has never seen another facility in which residents are allowed to walk around barefoot or only in dirty socks. In her experience, staff would intervene and redirect the residents to put on shoes or change their socks. Ms. Maloney testified that she asked one resident why he was not wearing shoes. The resident told her that he did not want to wear shoes, and showed Ms. Maloney several pairs of shoes in his closet. Ms. Maloney did not cite this instance as a deficiency. However, she noted other shoeless residents who appeared confused or cognitively impaired, and did cite these instances as deficiencies because of staff's failure to intervene or to assess why the residents resisted wearing shoes. Ms. Maloney admitted that the survey team discussed the issue of residents not having proper footwear, and determined that it caused no actual harm to the residents. Jacaranda Manor did not contest the fact that residents often go barefoot or wear only socks. Through various sources, the facility maintains an ample supply of shoes and socks for the residents, and attempts to keep the residents properly shod. However, the facility also tolerates residents' preferences in clothing and footwear, and does not consider the question of footwear a pressing issue. Some residents simply do not want to wear shoes. Some residents feel steadier when they can feel the floor against their bare feet. Carol Heintz, Jacaranda Manor's psychiatric nurse manager, testified that neither therapists nor family members have ever expressed concerns over the issue. No evidence was presented that going barefoot or wearing socks posed a safety risk to the residents. The alleged harm was simply that some of the residents had dirty feet, or dirty socks on their feet. The sixth surveyor observation on Tag F241 offered more specific information on the question of resident footwear: The facility did not assist residents to wear appropriate footwear, in that some of the residents who resided on 1 West, the secure unit, were observed wearing socks without shoes or were barefoot throughout the survey. During the initial tour on 5/08/0 [sic], it was observed that several residents were pacing and walking throughout 1 West, with only socks on. Some of these residents walked outside on a sidewalk. The soles of these resident's [sic] white socks were soiled dark gray. On 05/08/01, at 6:50 p.m., there were three male residents observed to walk around the unit with white socks on. One of these residents had holes in the socks. On 05/09/01 at 10:15 a.m., there was one male resident walking outside in the enclosed courtyard wearing white socks, as well as a female resident who was pacing back and forth on the side walk wearing socks only. On the morning of 05/10/01 at 7:45 a.m., there was a male resident sitting in a chair outside who was barefoot. On 05/11/01, at 9:30 a.m., during the resident's [sic] arranged smoking time on the enclosed courtyard on 1 West, there were several residents walking around wearing only socks on their feet. One male resident was wearing black shoes, but they were different style shoes. This was shown to the direct care staff who were not aware. They were not sure if these shoes belonged to this resident. The staff also stated that some of the resident's [sic] shoes were missing or the residents chose not to wear their shoes. Resident #16 was observed walking around in loose-fitting cloth slippers with rubber soles on 05/09/01, on 05/10/01. The resident showed that she/he had one black dress shoe, because the other shoe was missing. On 05/11/01, the resident was wearing open- toed bedroom slippers. This resident was identified as a fall risk due to akinesia (involuntary movement of the body). The resident's current care plan included an approach "to wear proper fitting shoes with non-skid soles." The resident was observed with a shuffling gait. Resident 16, or "R-16," was a 39-year-old male with HIV, cerebral atrophy, and a history of AIDS-related dementia with delusions. He suffered from depression, anxiety, psychosis, paranoia, and bipolar disorder. He was childlike and possessed poor judgment, forming unrealistic plans to get a job and live on his own outside a clinical setting. R-16 was an elopement risk, which caused a community-based HIV program to reject him for participation. Jacaranda Manor tried placing R-16 in its open unit, but he tried to leave without telling anyone, which necessitated placing him in the facility's secure unit. R-16 abused alcohol, liked to smoke and drink coffee constantly, and was prone to giving away his clothes. R-16 had pronounced preferences as to footwear. While he would occasionally wear regular shoes, he most often wore a pair of fuzzy, open-toed slippers. He would have a temper tantrum if not allowed to wear his slippers. R-16 was at risk of slipping and falling due to akinesia, and staff explained to him the potential safety problems in wearing slippers. R-16 had a peculiar gait, described by Jacaranda Manor personnel as "shuffling" or as a "sashay." His slippers had rubber soles to help prevent slipping. The seventh surveyor observation on Tag F241 concerned Resident 32, or "R-32", and an unnamed resident: On 05/08/01, at 6:50 p.m., during the evening meal, [R-32] was observed from the hallway, sitting in a chair in his room wearing only a t-shirt and an incontinent brief. Several staff were observed to walk past this resident's room and did not attempt to intervene. On 05/09/01, at 10:15 a.m., during a random observation, there was a confused male resident walking outside in the enclosed courtyard, who was removed his pants [sic] and exposed his incontinent brief. There was a female resident pacing back and forth nearby. A direct care staff person who was escorting another resident, walked past this resident without intervening. The surveyor went inside to inform the medication nurse of the situation. Mary Maloney was the surveyor who recorded the observation of R-32 and the unnamed resident. R-32 was a male resident who preferred not to wear trousers. Jacaranda Manor staff tried to convince R-32 to wear trousers. Staff tried different kinds of pants, such as pull-ups, zippered pants, and shorts. R-32 would occasionally accede to wearing the shorts, but while in his room always dressed in his brief and a t-shirt. Jacaranda Manor did not dispute Ms. Maloney's observation of R-32. Jacaranda Manor was unable to address Ms. Maloney's subsequent observation, as she was unable to name the "confused male resident," the pacing female resident, or the staff person who allegedly failed to intervene. Ms. Maloney's observation implies that the unnamed staff person should have intervened, but offers no information as to whether the staff person could have safely abandoned the other resident he or she was escorting at the time. The eighth surveyor observation on Tag F241 concerned Resident 4, or "R-4," and stated: During the breakfast meal observation on 05/09/01 and 05/10/01 at about 9:30 a.m., [R-4] was observed to be fed her/his breakfast at the nurse's station. The staff person was observed to be standing and feeding the resident who was seated in a reclining chair. The resident's meal tray was placed on the counter of the nurse's station, where the resident could not see her/his food. There was a high level of staff activity and residents walking around the area. Ms. Maloney was the surveyor who recorded this observation. Both Alma Hirsch, Jacaranda Manor's chief administrator, and Carol Heintz, the psychiatric nurse manager, testified that R-4 is fed entirely by means of a gastrointestinal tube and thus could not have been eating breakfast at the nurses' station. At the hearing, Ms. Maloney conceded that she might have misidentified the resident on the Form 2567, but was certain that she saw a particular male resident being fed breakfast at the nurses' station on May 9 and 10. Jacaranda Manor did not contest the fact that residents are often fed at the nurses' station. AHCA cited this incident as a deficiency because feeding the resident at a busy nurses' station does not promote his dignity. Ms. Maloney inquired and learned that the resident could not be fed in his room because it was being painted. She acknowledged that the resident in question was difficult to feed, and so prone to violent outbursts that Jacaranda Manor had removed all the furniture from his room for his safety. Ms. Maloney nonetheless thought that Jacaranda Manor staff should have chosen a quieter, less stimulative environment in which to feed the resident. The ninth surveyor observation on Tag F241 concerned Resident 16, or "R-16," and stated: On 05/10/01, at about 3:30 p.m., [R-16] approached the nurse's station and asked the medication nurse for some coffee. (The resident had his/her own personal jar of instant coffee.) The nurse denied the resident the coffee. The nurse stated that the resident's coffee was being rationed to several times per day. According to the nurse, the resident's coffee consumption was restricted because the resident prefers the coffee extra strong, and the resident exhibits effects from the excessive caffeine, described as "bouncing off the walls." From review of the clinical record, there was no physician's order for a caffeine restriction. According to facility policy, the coffee served to the residents is decaffeinated, the nurse reported. Ms. Maloney recorded this observation. R-16 is the same resident cited in the sixth surveyor observation for wearing open-toed slippers. Jacaranda Manor serves only decaffeinated coffee to all residents. R-16 had a personal, "special" jar of instant decaffeinated coffee that was in fact provided by Ms. Hirsch, at her own expense. R-16 was allowed to believe that his "special" coffee was caffeinated. R-16 was incapable of making his own coffee. His jar of coffee was kept in the medicine room near the nurses' station, and R-16 had to ask a nurse to prepare his coffee. The nurse would go to the kitchen for hot water, then prepare the coffee. R-16 drank coffee all day, every day. There were no medical restrictions on how much coffee he could drink. He carried a large mug, and would ask the nurses to prepare his coffee as many as thirty times a day. R-16 would ask insistently until his coffee was made. If the nurses were not busy, they would make the coffee immediately. If they were in the middle of a procedure, they would ask R-16 to wait until they were finished. Elaine Teller was the nurse referenced in the ninth observation. She was the charge nurse at the time of the incident. Ms. Teller was passing medications and speaking to Ms. Maloney when R-16 approached and demanded his coffee. Ms. Teller told R-16 that she was busy and would get his coffee in a few minutes. Ms. Maloney testified that Ms. Teller's response was "inappropriate," in that it had the potential to embarrass R- 16 in front of the people at the nurses' station. Ms. Maloney believed it would have been more appropriate to take R-16 aside and speak with him. Ms. Teller denied treating R-16 rudely or disrespectfully. She was "firm" with R-16 "because that's what [he] needs." Ms. Teller was close to R-16, such that he referred to her as his "second mom." At the time, Ms. Maloney voiced no concern over Ms. Teller's treatment of R-16. Ms. Teller testified that she had delayed but never "denied" coffee to R-16. She had on occasion lectured R-16 that he drank too much coffee, but never stated that R-16's coffee intake was restricted. Surveyors employ a "Guidance to Surveyors" document for long-term care facilities contained in the "State Operations Manual" promulgated by the federal CMS. The guidelines for Tag F241 state: "Dignity" means that in their interactions with residents, staff carries out activities that assist the resident to maintain and enhance his/her self-esteem and self-worth. For example: Grooming residents as they wish to be groomed (e.g., hair combed and styled, beards shaved/trimmed, nails clean and clipped); Assisting residents to dress in their own clothes appropriate to the time of day and individual preferences; Assisting residents to attend activities of their own choosing; Labeling each resident's clothing in a way that respects his or her dignity; Promoting resident independence and dignity in dining (such as avoidance of day-to-day use of plastic cutlery and paper/plastic dishware, bibs instead of napkins, dining room conducive to pleasant dining, aides not yelling); Respecting resident's private space and property (e.g., not changing radio or television station without resident's permission, knocking on doors and requesting permission to enter, closing doors as requested by the resident, not moving or inspecting resident's personal possessions without permission); Respecting resident's social status, speaking respectfully, listening carefully, treating residents with respect (e.g., addressing the resident with a name of the resident's choice, not excluding residents from conversations or discussing residents in community setting); and Focusing on residents as individuals when they talk to them and addressing residents as individuals when providing care and services. The same document sets forth survey procedures, and emphasizes examining the context of staff's actions: . . . As part of the team's information gathering and decision-making, look at the actions and omissions of staff and the uniqueness of the individual sampled resident and on the needs and preferences of the resident, not on the actions and omissions themselves. The issue of patient dignity was the subject of extensive testimony at the hearing. Ann Sarantos, survey integrity and support manager for AHCA and an expert in long- term care nursing practice, testified that the surveyors understood that residents will remove their shoes and clothing, particularly in a facility with the resident population of Jacaranda Manor. The survey team acknowledged that Jacaranda Manor's population was unique in terms of the number of mentally ill residents. Ms. Sarantos stated that AHCA's central concern was staff's lack of sensitivity. The surveyors repeatedly saw staff making no effort to cover the residents or get them into shoes, even when the surveyors pointed out the problems. Ms. Sarantos stated that AHCA does not set a different dignity standard for patients with psychiatric or organic conditions. She noted that a high percentage of residents in any nursing home will have some form of dementia or behavioral problem, and that the facility must plan its care to manage these problems. She stated that AHCA employs the same survey procedures for all facilities, regardless of the patient population. Patricia Reid Caufman, an expert in social work, opined that the residents are nursing home patients regardless of their diagnoses. When the facility accepts these patients, it does so on the basis that it can meet their needs, including their dignity needs. Susan Acker is the nursing services director of AHCA's health standards and quality unit. She is an expert in long-term care and was the person who made the final decision as to the classification of Jacaranda Manor's deficiencies. Ms. Acker stated that the provision of adequate clothing and footwear is a "fundamental level of compliance." The individuals listed under the Tag F241 deficiencies had portions of their bodies exposed in a way that does not conform to the community standard of a nursing home. The "community standard" for a nursing home includes an expectation that a resident will be dressed in his or her own clothes and assisted in dressing and making appropriate selections, or, if the resident's judgment is impaired, will be provided with selections allowing them to appear in a dignified manner. Ms. Mennella offered the common sense view that, in applying a "community standard," the surveyor should ask herself whether a mentally impaired resident would be embarrassed under normal circumstances. The exposure of these residents demonstrated noncompliance with the requirement that the facility maintain or enhance the self-esteem and dignity of the residents. Ms. Acker acknowledged the right of the residents to select their own clothing or to be undressed within the confines of their rooms. However, the facility must continually provide these residents with encouragement or assistance in dressing. Staff must act if the residents lack the ability to make their own judgments. The issue was not that the facility should deny choice to the residents, but that a therapeutic environment should be established that maintained and enhanced resident dignity. Ms. Acker found that the "key point" in the deficiencies was the proximity of staff to the cited residents. In each instance involving nudity or improper dress in a resident's room, staff was available to pull the privacy curtain or to assist the resident in redressing. The staff person may not have minded the resident's dress, but should have acted to protect the resident's dignity when a stranger walked into or past the room. Staff could have re- established the community standard by clothing the resident or providing the privacy that would protect the resident's dignity, but failed to do so. Ms. Acker characterized these incidents as staff's failure to provide services to the community standard for residents who were unable to exercise their own judgment to maintain their own dignity. Ms. Acker testified that, to change the scope and severity of Tag F241 from E to H, the IDR panel members would have to believe that the situation resulted in a negative outcome that compromised the ability of the resident to maintain or reach the highest practicable physical, mental or psychosocial well-being, as defined in the Resident Assessment Protocol ("RAP"). She concurred with upgrading Tag F241 to a Class II deficiency because there was a direct impact on the residents observed and on those residents who witnessed the failure to deliver adequate care. Carol Heintz, the psychiatric nurse manager and an expert in psychiatric nursing care, opined that Jacaranda Manor is not below community standards in terms of patient dignity. She agreed that "it would be nice" if more than 200 residents with physical and mental health issues wanted to wear appropriate clothing, shoes and socks every day, but for these people "things like that may not be the priority that it is to you or [me]." Clothing issues can be difficult with some residents, because they do not perceive their unorthodox dress or even nudity as an issue. If a resident resists wearing proper clothing or using a privacy curtain, the staff just keeps trying to reinforce proper dress and modesty. Ms. Heintz acknowledged the facility's responsibility to respect the rights of others not to be subjected to the improper dress of residents. However, she also stated that residents' modes of dress have had no adverse impact on them, and that no therapist or any resident's family has ever complained about the facility's methods of dealing with clothing and footwear issues. In light of all the factual and expert testimony, it is found that the IDR panel's decision to upgrade Tag F241 from Class III, with a scope and severity rating of E, to Class II, with a scope and severity rating of H, was supported by the evidence presented, though not as to all nine observations made under Tag F241. The first observation, for R-31, supports the Agency's finding a Class II deficiency. R-31 was sitting on his bed eating breakfast in the nude and was plainly observable from the hallway. Staff persons were present but did nothing to remedy the situation. Granting that it may have been counterproductive to attempt to dress R-31 while he was eating, no evidence was presented to show that pulling the privacy curtain or closing the door would have disturbed R- 31's meal. Even if, as Jacaranda Manor implied, these staff persons may not have been direct care employees, they should have alerted the nursing staff to the situation. The dignity of R-31 and of any other resident who happened to pass his room were directly affected by this incident. The second observation, for R-21, supports the Agency's finding a Class II deficiency. R-21 was seen twice lying in bed wearing uncovered adult briefs. Jacaranda Manor offered no reason why the resident could not be covered or why the view from the hallway could not be obscured. The dignity of R-21 and of any other resident who happened to pass his room were directly affected by this incident. The third observation, for R-8, does not support the Agency's finding a Class II deficiency. The initial rating of this as a Class III deficiency was supported by the evidence. While the bare facts set forth in the observation were concededly accurate, the surveyor focused entirely "on the actions and omissions themselves," and made no effort to assess the "uniqueness of the individual sampled resident" or "the needs and preferences of the resident." The facts established that R-8 was subject to unbuttoning his pants and allowing them to droop. In three days of constant observation, Ms. Mennella witnessed one such brief incident. R-8 was also subject to digging for cigarette butts and tousling his own hair, making it very likely that at some point over a three-day period he could be observed with dirty hands and unkempt hair. R-8 wrote his own name on his shoes, because he was proud of them. Testimony established that staff of Jacaranda Manor conscientiously cared for R-8, but that it was impossible to maintain appropriate appearance for this resident all day, every day. There was no evidence of any impact on this resident's dignity or self-esteem. The fourth observation was of the staff member shouting to a resident to pull up her pants. This observation does not support the Agency's finding a Class II or a Class III deficiency. Had the surveyor made inquiry into the circumstances of the incident, she would have learned that it involved a sudden reaction to a potentially critical situation. The trainee called out to the resident because she couldn't reach the resident in time to keep her pants from falling, which in turn could have caused the resident to fall. Concern for the resident's possible embarrassment cannot be held more important than the resident's physical safety when an emergency arises. The fifth and sixth observations involved residents walking around barefoot, in only socks, or, in the case of R- 16, in slippers. The deficiencies noted for these observations do not support the Agency's finding a Class II or a Class III deficiency. The only harm alleged by the Agency was that the residents' dignity is impaired by their having dirty feet. It is found that Jacaranda Manor was acceding to the wishes of its residents regarding footwear, and that dirty feet or socks are a necessary and essentially harmless incident of choosing not to wear shoes. The seventh observation, of R-32 and an unnamed resident, supports the Agency's finding a Class II deficiency. As to the unnamed resident observed in the courtyard with his brief exposed, the surveyor could not provide enough information to allow Jacaranda Manor to defend itself. The surveyor could not name the resident, the female resident allegedly in the vicinity, or the staff person who allegedly walked past. This portion of the deficiency was unproven. However, the surveyor adequately stated her observation of R- 32, who was seen from the hallway sitting in a chair in his room, wearing only a t-shirt and adult brief. Several staff members walked past the room and did not intervene. Jacaranda Manor offered no reason why the resident could not be covered or why the view from the hallway could not be obscured. The dignity of R-32 and of any other resident who happened to pass his room were directly affected by this incident. The eighth observation, of a resident initially identified as R-4, supports the Agency's finding a Class II deficiency. The surveyor guidelines expressly describe promoting "dignity in dining." While the underlying facts explained why Jacaranda Manor could not feed the resident in his room, they did not explain why the resident was being fed at the busy, noisy nurses' station rather than in the dining room or some other, quieter location. The resident was difficult to feed and subject to violent outbursts, but these facts do not explain the choice of feeding the resident at the nurses' station, leading to the inference that this choice was likely made for the convenience of the nurses. The dignity of this resident was directly affected by this incident. The ninth observation, of R-16, does not support the Agency's finding a Class II or a Class III deficiency. The facts established that Ms. Teller, the nurse in question, had a close relationship with R-16 and could speak somewhat sternly to him without affecting his dignity or self-esteem. Ms. Teller's version of the incident is credited. Requiring R-16 to wait a few minutes for his coffee while Ms. Teller finished passing medications caused the resident no harm whatever. In summary, of the nine observations listed under Tag F241, four supported the Agency's finding of a Class II deficiency; one supported the initial finding of a Class III deficiency; and four supported a finding of neither a Class II or a Class III deficiency. Thus, the Agency's overall finding of a Class II deficiency for Tag F241 is supported by the record evidence. Tag F250 The May 2001 validation survey allegedly found a violation of 42 C.F.R. Section 483.15(g), which states that a facility must "provide medically-related social services to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident," and sets forth the standards for resident social services. This requirement is referenced on Form 2567 as "Tag F250," or the "social services tag." For purposes of the Form 2567, the validation team gave the alleged deficiency on the May 2001 survey a federal scope and severity rating of D for Tag F250. A rating of D indicates that there is an isolated deficiency causing no actual harm to the resident but with potential to cause more than minimal harm. This alleged deficiency was rated Class III, and was not part of the basis for imposing a conditional license on Jacaranda Manor. Its significance is that it was determined to be an uncorrected deficiency in the June 2001 return survey, and thus formed part of the basis for the civil penalty imposed after the return survey. The May 2001 survey found one instance in which Jacaranda Manor allegedly failed to provide medically related social services. The surveyor's observation on Form 2567 concerned R-16, the same resident discussed above in the sixth and ninth observations under Tag F241: [R-16] was admitted to the facility on 09/29/00, and the resident's comprehensive assessment of [10/05/00]2 indicated that the resident had dental caries. The care plan stated that the resident's "teeth will be clean and oral mucosa will be free of signs and symptoms of infection at all times." One of the approaches on the care plan was for the "resident to see the Dentist as needed." The resident revealed that she/he had not seen a dentist since admission and desired dental services. Observation of the resident's teeth and gums, indicated that there was evidence of abnormal oral mucosa. There was no documentation in the resident's clinical record to indicate that the resident had seen the dentist since admission. The nursing management staff person was asked on 05/11/01, if there was any information to show that the resident had seen the dentist. Later that day, the nursing management staff indicated that the resident now has a dental appointment scheduled on 05/23/01. The lack of dental services can lead to dental problems, oral infection, changes in food consistency, and decrease resident's self-esteem. Ms. Maloney observed R-16 and noted that the edge of his gums was black, perhaps indicating periodontal disease. R-16 showed no evidence of pain and was eating normally. Ms. Maloney interviewed R-16, who told her he wanted to see a dentist. On May 11, 2001, Ms. Maloney told the director of nursing that she could find no indication in the record that R-16 had ever seen a dentist, and asked for any information not apparent in the record. Later that day, the director of nursing told Ms. Maloney that R-16 now had a dental appointment scheduled for May 23. Ms. Maloney was left with the understanding that nothing had been done for R-16 up to that time, and that his appointment was made only in response to her inquiry. The evidence established that R-16's dental appointment for May 23 had actually been scheduled by the facility on May 7, prior to the survey. The appointment was scheduled because R-16 had expressed to Ms. Hirsch a desire to have his teeth cleaned and whitened. The only complaint R-16 voiced about his teeth was that they were discolored. The key to Ms. Maloney's finding a deficiency was her impression that the facility did not respond to R-16's request to see a dentist until Ms. Maloney herself inquired and pressed the issue. In fact, the appointment had been made before the AHCA survey team arrived at Jacaranda Manor. The nurse manager to whom Ms. Maloney spoke was apparently unaware the appointment had been made. The evidence does not support the finding of a deficiency under Tag F250. Tag F309 As noted above, the deficiencies alleged under Tag F309 were originally placed under Tag F272. Tag F272 is the Form 2567 reference to violations of 42 C.F.R. Section 483.20(b), which states that a facility "must conduct initially and periodically a comprehensive, accurate, standardized, reproducible assessment of each resident's functional capacity," and sets forth at length the standards that must be observed in performing these comprehensive assessments. Tag F309 references 42 C.F.R. Section 483.25, which states that each resident "must receive and the facility must provide the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with the comprehensive assessment and plan of care," and sets forth at length the standards by which a facility's quality of care is measured. The significance of the change from Tag F272 to Tag F309 is that Tag F272 merely alleges a failure to conduct or update the assessment of the resident. Tag F309 alleges a deficiency in the quality of care provided to the resident, inherently a more serious violation. For purposes of the Form 2567, the validation team gave the alleged deficiencies on the May 2001 survey a federal scope and severity rating of D for Tag F272. A rating of D indicates that there are isolated deficiencies causing no actual harm to the residents but with potential to cause more than minimal harm. The IDR panel recommended upholding the deficiencies as cited by the survey team. However, Ms. Acker believed that the presence of a negative outcome for Resident 7, discussed below, merited changing the tag from F272 to F309 and making it a Class II deficiency with a federal scope and severity rating of G, meaning that there are isolated deficiencies causing actual harm that is less than immediate jeopardy to the health or safety of the residents. The May 2001 survey, as modified by the IDR process, set forth two alleged deficiencies under Tag F309. The first alleged deficiency concerned Resident 7, or "R-7:" [R-7] triggered on the Resident Assessment Protocol (RAP) Summary for behavior. On the 06/02/00 Minimum Data Set (MDS) this resident was coded as having moderate daily pain. Subsequently on the 02/22/01 MDS this resident was coded as having daily pain which was sometimes severe. During the initial tour at 9:30 a.m. on 05/08/01, the resident was described as refusing to get out of bed and refusing showers due to pain. Clinical record review and staff interview revealed there was no documentation of an ongoing evaluation of this resident's pain since 1999. The behavior assessment identified pain and chronic illness but did not reflect the increase in pain or an evaluation of the resident refusing care. R-7 was admitted to Jacaranda Manor on March 23, 1999. She received a comprehensive psychiatric evaluation upon admission. R-7 was a 41-year-old female, bipolar with a history of psychosis, dementia, and manic episodes. She was a hermaphrodite. Her physical illnesses included pickwickian syndrome, a condition characterized by obesity, decreased pulmonary function and somnolence. R-7 also suffered from psoriatic arthritis, a condition that caused her chronic pain and limited her movement. She complained of pain when being moved. When she was in bed and not moving, she did not complain of pain. Jacaranda Manor prepared a formal pain assessment of R-7 upon her admission. She was seen weekly by her attending physician, psychiatrists, and therapists, and was seen several times a day by the nursing staff. All of the medical professionals who saw her entered written notes into her medical record. AHCA's observation accurately notes that R-7's medical record lacks a document formally titled "evaluation" or "assessment" of R-7's pain, but testimony and documentary evidence at the hearing established that R-7's condition, including her pain, was consistently monitored and noted by Jacaranda Manor staff. Franklin May, a senior pharmacist, was the AHCA surveyor who made the observation of R-7. Mr. May interviewed R-7 and the treating nursing staff, and he reviewed the available medical records. Mr. May testified that he had "no problems with the way they were treating this lady." Mr. May's concern was that R-7's pain had apparently increased, and her condition deteriorated, but the facility could provide him with no documentation of a formal assessment or evaluation of her pain subsequent to her admission in 1999. Jacaranda Manor did not dispute Mr. May's contention as to documentation of formal assessments, but contended that medical staff "assessed" R-7 on a daily basis and that their chart notes constituted documentation of those assessments. This contention is credited to the extent that Jacaranda Manor established that nothing was lacking in the actual care provided to R-7, and that staff of Jacaranda Manor possessed a nuanced understanding of R-7's condition and of her somewhat mercurial personality as it affected her complaints of pain. It is not credited to the extent that Jacaranda Manor contends that ongoing, formal assessments of R-7's pain were superfluous. Mr. May's impression was that R-7's refusal to get out of bed and to take showers was a recent phenomenon indicating an increase in pain. In fact, R-7 was mostly bed- bound throughout her stay at Jacaranda Manor, and even before her admission. Her reported pain fluctuated from time to time, as did her amenability to taking her prescribed pain medications. The totality of the evidence established that R- 7's condition was at least stable, if not markedly improved, throughout her stay at Jacaranda Manor. In conclusion, the evidence supported Mr. May's contention that Jacaranda Manor's documentation of the care provided to R-7 was insufficient to permit a surveyor to obtain an accurate picture of her condition and treatment, and therefore supported the initial classification of Tag F272 in that R-7's formal assessment instruments were insufficiently updated. However, the evidence did not support changing the classification to Tag F309, because no actual deficiencies in R-7's care were proven or even alleged prior to Ms. Acker's review of the IDR process. The second alleged deficiency under Tag F309 concerned Resident 25, or "R-25:" [R-25] was admitted on 04/10/01 directly to the secure unit upon admission to the facility. The Resident had a primary diagnosis of Cancer of the lung and paranoid schizophrenia. The Resident was receiving Hospice in another skilled nursing facility in Tampa before he/she was sent to the hospital for violent outburst of behavior. Transfer social services document from the hospital indicate [sic] that resident is to be admitted to Jacaranda Manor with Hospice services. Monthly orders for this resident for April and May, 2001 reflected orders for Hospice. Interview of facility social services' staff, state [sic] that Resident was discontinued from Hospice due to "residents [sic] condition being stable" according to hospice. Contact was conducted with Life Path [the Tampa hospice] who confirm that this resident did meet Hospice criteria and that they do not service the St. Petersburg area and that was the only reason they had to discharge the resident. Hospice staff said that Jacaranda admissions person was told that they were responsible to secure the services of the Hospice covering the St. Petersburg area and they would then share their records with that Hospice. This resident was documented to be ambulatory throughout the secure unit and sociable with staff. Resident had episodes of shortness of breath and occasional use of oxygen. On 05/10/01 the resident developed cardiac arrest and was sent to the hospital by EMS where he/she was pronounced dead. The facility did not meet the needs of this resident for his/her terminal care needs. R-25 was a large, heavy-set 67-year-old male who had been diagnosed with lung cancer, chronic obstructive pulmonary disease ("COPD"), paranoid schizophrenia, and seizure disorder. R-25 had been a resident of a Tampa nursing home until a behavioral outburst caused his admission to the psychiatric unit of Tampa General Hospital for an adjustment of his medications. While in the Tampa nursing home, R-25 had received services from Life Path Hospice, which served patients in Hillsborough County, due to his lung cancer diagnosis. The decision had been made not to treat the cancer, and R-25 had been receiving hospice services for over one year. R-25 was an elopement risk and subject to violent outbursts, such that the Tampa nursing home declined to re- admit him after his hospital admission. Staff of Life Path Hospice knew of Jacaranda Manor's reputation for accepting this kind of difficult resident. Grizier Cruz, a mental health counselor at Life Path, contacted Sharon Laird, Jacaranda Manor's admissions director. Ms. Laird agreed to evaluate R-25 for admission, and Jacaranda Manor admitted R-25 on April 10, 2001. Ms. Laird testified that she initially asked Ms. Cruz whether Life Path would continue to provide services to R-25 at Jacaranda Manor, or whether Life Path would transfer the case to the hospice serving Pinellas County. Ms. Laird testified that Ms. Cruz told her that R-25 was stable and no longer in need of hospice services. Ms. Cruz denied telling anyone at Jacaranda Manor that R-25 was stable and not in need of hospice services. Ms. Cruz stated that she informed Jacaranda Manor that Life Path would be withdrawing services from R-25 because he was leaving Hillsborough County, Life Path's area of coverage. She testified that Jacaranda Manor would have to establish a physician for R-25 at the facility. The physician would have to write an order for hospice, at which time Life Path would make the referral to the Pinellas County hospice that would then come to Jacaranda Manor to evaluate R-25 for its program. When R-25 was admitted, Jacaranda Manor followed its standard assessment and care planning procedures, noting his diagnosis of lung cancer and the need to contact hospice. Linnea Gleason, social services director at Jacaranda Manor, testified that she contacted Life Path twice during the care planning process, and was told both times that R-25 was stable and in no need of hospice. Ms. Gleason's contemporaneous notes in R-25's chart are consistent with her testimony. Dr. Gabriel Decandido was R-25's physician at Jacaranda Manor. His examination revealed that R-25's cancer was apparently slow growing, because he was relatively pain free and did not appear to be at the end stage of life. Dr. Decandido was not surprised to learn that R-25 had lasted over one year on hospice; he was surprised that R-25 had been receiving hospice services at all. Dr. Decandido did not believe that R-25 needed hospice services. R-25 was stable, comfortable, not in pain, happy and smiling. At times, he used oxygen due to his COPD and continued smoking. He kidded with the nurses and went outside to smoke throughout the day. Dr. Decandido noted that R-25's schizophrenia made him a poor patient with whom to discuss death because such discussions could increase his psychosis and paranoia. Given R-25's entire situation, Dr. Decandido thought it best to allow R-25 to live out his life at Jacaranda Manor, walking around, talking to people, eating, drinking, and smoking. Another factor influencing Dr. Decandido's opinion was that x-rays taken of R-25 at Jacaranda Manor did not indicate lung cancer. Dr. Decandido did not dispute the diagnosis of lung cancer, but did dispute that R-25 was a man about to die from lung cancer. His findings from the x-rays were that R-25 suffered from congestive heart failure and possibly pneumonia. Ms. Gleason testified that she and her social services staff visited R-25 three times a week to offer counseling, but that R-25 showed no anxiety about his lung cancer and declined services. Elaine Teller was the charge nurse at Jacaranda Manor during R-25's admission. She directly asked R-25 on several occasions whether he wanted hospice. She explained the advantages of hospice care in managing his medications. On each occasion, R-25 declined hospice. Ms. Teller failed to note these declinations in R-25's chart. However, given that there was no physician's order for hospice and that R-25's capacity to consent was questionable at best, Ms. Teller's notations would have been superfluous in any event. Life Path Hospice informed Jacaranda Manor that it would be necessary to obtain the consent of R-25's only known relative, a daughter in Jacksonville, to commence hospice services in the event they were ordered by a physician. Ms. Laird of Jacaranda Manor contacted the daughter by telephone and sent her an admissions package by certified mail. The daughter did not accept delivery of the package. Thus, Jacaranda Manor never received signed admission documents from R-25's family, which would have included advance directives such as hospice. AHCA's contention that "[m]onthly orders for this resident for April and May, 2001 reflected orders for Hospice" is simply a misreading of R-25's record. The notation "hospice" appears under the term "advance directives" on a record document with the title "physicians orders and administration record." Despite its title, this sheet was used by Jacaranda Manor as a medication sheet. A notation of an advance directive for hospice was not a physician's order for hospice. Jacaranda Manor staff was fully aware that a physician's order for hospice would have been indicated by a special sticker on the sheet and by accompanying paperwork. Ms. Gleason explained this procedure to AHCA surveyors, who nonetheless cited these "orders" as deficiencies. R-25 died on May 10, 2001, one month after his admission to Jacaranda Manor. His death was caused by cardiac arrest, unrelated to his lung cancer diagnosis. Jacaranda Manor's version of events involving R-25 is credited. Other residents at the facility receive hospice services, and there is no reason to conclude that the facility would fail to implement a physician's order for hospice services for R-25. The evidence does not support the deficiency cited by AHCA, either under F272 or F309. In summary, the evidence did not support the change of Tag F272 to Tag F309. The evidence did support a Class III deficiency under Tag F272 as to the documentation of Jacaranda Manor's treatment of R-7. II. June 2001 Survey A. Tag F241 The June 2001 survey allegedly found two Class III violations of Tag F241, the "dignity tag," both from observations made on June 19, 2001, at 3:05 p.m. by surveyor Patricia Reid Caufman. The first observation involved Resident 19, or "R-19": [R-19] was lying in bed (mattress) on the floor and receiving one to one supervision from the Certified Nursing Assistant (CNA). The resident was sleeping with the door open and the privacy curtain was not pulled around the resident. The resident faced toward the window with his adult briefs exposed to the hallway. The CNA was sitting on a chair in the hallway observing the resident. The CNA did not attempt to cover the resident to maintain his/her dignity. R-19 was a 60-year-old male with a history of dementia and a propensity for violent outbursts. R-19 had no safety awareness, and had done such things as pull his room air conditioning unit out of the wall and attempt to walk it out into the hallway. He had a great deal of psychomotor agitation, and persistently pulled at things. He was prone to falling into chairs or his bed, pulling down curtains and curtain rods. If approached abruptly, he might strike out. Three or four people could be needed to give him a bath. The medical staff constantly adjusted his medications in an effort to manage his behavior without over-sedating him. R-19 was very resistant to dressing, and could undress himself very quickly. Staff of Jacaranda Manor tried various strategies to keep him dressed, including one-piece outfits, clothing that zipped in the back, and hospital gowns with pajama bottoms, but nothing was entirely successful. Jacaranda Manor had taken steps to ensure his safety. R-19 had been placed in a private room at the back of his hallway to minimize his interactions with other residents. All furnishings had been removed from the room, save for a mattress on the floor. Padding was placed around the mattress to minimize his thrashing. The windowsills were padded, and the air conditioner protected. At the time of the June 2001 survey, R-19 was receiving 24-hour one-on-one care, for his own safety and that of the other residents. When R-19 slept, the CNA assigned to him was instructed to sit in the doorway to his room. A Dutch door was installed to his room. Once R-19 fell asleep, the bottom part of the door could be closed to obscure the view of passersby but still allow the CNA to peek over the top to check on him. Jacaranda Manor conceded the accuracy of Ms. Caufman's observation, but contended there was no alternative plan of care for R-19. The door could not be closed completely, because the resident then could not be observed by the CNA. Placing the CNA on a chair inside the room would defeat the purpose of removing all the furnishings for safety, and would have placed the CNA in jeopardy. The privacy curtain would obscure the CNA's view of the resident. R-19 was easily disturbed. Ms. Redmond, the director of nursing, testified that R-19 "needs to sleep when he wants to, because otherwise he is just up and going all the time." Ms. Redmond believed that any attempt to cover R-19 with a sheet would have awakened him, "and then he would have been up and going again and wouldn't have gotten any rest." Based upon the unique characteristics of this resident, and the extensive steps taken by Jacaranda Manor to ensure R-19's safety with some level of privacy, it is found that the evidence failed to establish that the observation of R-19 constituted a deficiency under Tag F241. Ms. Caufman's second observation under Tag F241 involved Resident 20, or "R-20": [R-20] was observed from the hallway lying in bed with the door open and the privacy curtains not pulled around the resident. The resident was wearing adult briefs and the front half of the resident was exposed. Two staff members passed by the open door and failed to intervene so as to protect resident dignity. R-20 was a male resident suffering from dementia. He would take off his gown or shirt while lying in bed. He was capable of opening and closing his own privacy curtain. Ms. Caufman could not identify the two staff members who passed the open door. Ms. Caufman's handwritten notes state that she observed R-20 uncovered at 3:05 p.m., but that staff had covered him when she next went past the room at 3:09 p.m. She did not explain why her formal statement omitted the fact that the resident was covered no more than four minutes after her observation. Jacaranda Manor offered no explanation as to why the door could not have been closed or the privacy curtain drawn to prevent passersby from seeing R-20 uncovered in his bed. On the other hand, Ms. Caufman's brief description of the incident, her failure to identify the staff members who allegedly ignored R-20, and her omission of a relevant fact render the situation ambiguous. As noted above, staff at Jacaranda Manor do not wear uniforms. Only direct care staff are allowed to approach patients to dress or cover them. Other staff, such as maintenance or cafeteria workers, are directed to be alert to residents' dress and to go get a direct care staff person when they see a problem. Based on Ms. Caufman's narrative and on the fact that the resident was covered within four minutes of her observation, it is as likely as not that the two people she saw pass the room were not direct care staff, and that they alerted the direct care staff, who then covered the resident. It is found that the evidence failed to establish that the observation of R-19 constituted a deficiency under Tag F241. B. Tag F250 The June 2001 survey allegedly found one violation of Tag F250, the "social services tag," involving Resident 14, or "R-14": [R-14] was admitted to the facility on 7/2/98 with diagnoses that include organic brain syndrome, traumatic brain injury and dysphagia. The resident's minimum data set (MDS) of 7/3/00 indicated that the resident had broken, loose teeth and dental caries. The most recent MDS, dated 3/8/01, indicated that the resident had some or all natural teeth and needed daily cleaning. It did not document broken, loose teeth with dental caries. The resident assessment protocol (RAP) for Dental, dated 3/8/01, documented that the resident was missing several teeth, had no dentures and the remaining teeth were discolored, but no gross caries or other problems. The status was documented as no oral hygiene problem, no problem that would benefit from a dental evaluation, but the patient was determined to be at risk for developing an oral/dental problem. The staff was to assist the resident with oral care and monitor for problems. The care plan, dated 3/14/01, documented that the resident had dental caries (in conflict with the RAP assessment) along with missing teeth and the goal was to assist with oral care at least twice daily and obtain a dental consult as needed. A dental evaluation had been done on 8/18/98 (three years prior to the survey), and the evaluation (obtained from the thinned record) revealed that this was an initial oral examination and the resident had several missing teeth, heavy calculus and plaque noted. His teeth were documented as stable with no swelling or fractures noted and the resident was determined not to be a good candidate for routine dental care. During the initial tour with the 7-3 Supervisor, on 6/19/01, at about 9:30 a.m., the resident's teeth were observed. A front tooth was missing and a very large amount of plaque was noted, especially on the lower teeth. The supervisor commented that she observed dental caries. On 6/20/01, at 11:10 a.m., observations of the patient's teeth were made with the director of nursing (DON). The resident was seated in a recliner, sleeping with his mouth wide open. The left front tooth was broken and multiple dark areas in the back teeth were observed. There was a large amount of built up plaque on upper and lower teeth and on the upper and lower gum lines. An unpleasant mouth odor was detected at that time. Review of the social service notes from 7/15/98 through 5/16/01, revealed no documentation that the patient had dental needs. The current record did not contain a recent dental evaluation and the DON stated that she would review the thinned record. The initial dental evaluation, dated 8/18/98 mentioned above, was the only documented dental evaluation provided by the facility for review. Interview with the DON, on 6/20/01, at 1:50 p.m., revealed that the resident had refused dental work as documented on the care plan, dated 2/12/01. The nurses notes did not document that a dental appointment had been made and the resident refused examination. The facility was asked to provide any documentation that the resident had been sent to a dentist and refused care. No other documentation was provided. In addition, the resident was coded as severely cognitively impaired on the MDS of 7/3/00, 2/5/01 and 3/8/01. There was no evaluation of the resident's capacity to provide or deny consent for treatment in the record. The resident's wife was documented as the decision maker on the MDS, but according to the DON she was unable to be contacted for a "long time" and there was no documentation that she had been involved in any decision making. The resident had no other legal representative. On 6/20/01, at 1:50 p.m., the DON stated that a doctor's order had been obtained for a dental appointment and the appointment was made. Lack of appropriate dental care may result in infections and diminish the resident's health status. Patricia Procissi was the surveyor who recorded the observation of R-14. She found a conflict between the July 3, 2000, MDS, which documented broken, loose teeth with dental caries, and the March 8, 2001, MDS, which did not document the tooth problems. However, a RAP prepared on the same date did document dental problems for R-14. Ms. Procissi interpreted the March 8, 2001, RAP as indicating improvement in R-14's condition without any documented dental intervention. She believed that this RAP conflicted with a care plan dated March 14, 2001, that indicated dental caries. In fact, the March 8 RAP stated "no gross caries," which is not necessarily in conflict with a finding that R-14 had some dental caries. Ms. Procissi noted that the director of nursing, Ms. Redmond, had told her that R-14 refused dental care, but Ms. Procissi could find nothing in Jacaranda Manor's records documenting that R-14 had been sent to a dentist and refused care. Ms. Gleason, the social services director, testified that she asked R-14 if he would like to see a dentist, and he had refused dental care. Ms. Gleason testified that she documented this refusal in R-14's care plan, along with a notation that staff should continue to encourage him to accept dental services. Ms. Procissi saw Ms. Gleason's note reflecting R- 14's refusal to see a dentist. However, she believed that this documentation raised the question of why there was no doctor's order that R-14 should be seen by a dentist. She stated that in most cases, there is a doctor's order followed by a nurse's note documenting why the order could not be carried out. Here, there was nothing in the record explaining the circumstances of R-14's refusal. Ms. Procissi also found it "odd" that R-14's refusal was documented in the social services care plan rather than the medical notes. At the hearing, Ms. Gleason and Ms. Hirsch testified as to the general difficulty of obtaining dental services for Medicaid patients. Few dentists are willing to accept adult Medicaid patients. At the time of the survey, Jacaranda Manor had two dentists and an oral surgeon who would see its residents, but even these dentists limited the number of residents they would accept in a given month. If a Medicaid resident needs dental work, the doctor or a nurse will write a note to the social services office, which phones the dentist's office and provides the resident's Medicaid information and the nature of the dental needs. The dentist's office calls back to inform social services whether the resident is eligible under the "medically necessary" criteria for Medicaid reimbursement. If the resident is eligible, social services makes the appointment, arranges transportation for the resident, and accompanies the resident to the appointment, if necessary. Jacaranda Manor also schedules routine appointments several months in advance. R-14 was a 47-year-old cognitively impaired male. He was a Medicaid recipient. R-14 could be verbally and physically abusive when approached. At the time of his admission to Jacaranda Manor, and at all times subsequent, R- was fed exclusively via gastrointestinal tube, meaning that any dental problems would not affect his nutrition. Dr. Stuart Strikowsky, Jacaranda Manor's medical director, opined that R-14 was in no pain or discomfort, had loudly and adamantly stated that he wanted no dental work, and would require complete sedation to undergo a dental evaluation. Dr. Strikowsky believed that a dental examination was medically unnecessary for this resident. Kevin Mulligan, AHCA's Medicaid dental specialist, testified that Medicaid covers only medically necessary dental services, and that a dental examination for a nursing home patient must be requested by the attending physician and the nursing director. Dr. Strikowsky plainly believed that such a request was unnecessary for this resident. It is found that the evidence was at best ambiguous that the observation of R-14 constituted a deficiency under Tag F250. Jacaranda Manor conscientiously monitored and documented R-14's dental condition. R-14's physician believed that a dental examination was medically unnecessary, somewhat mooting Ms. Procissi's concerns regarding the lack of a doctor's order for dental services.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Agency for Health Care Administration enter a final order finding a Class II deficiency for Tag F241, a Class III deficiency for Tag F272, and assigning conditional licensure status to Jacaranda Manor for the time period from May 15, 2001 to February 28, 2002. It is further recommended that the Administrative Complaint be dismissed and no civil penalty assessed against Jacaranda Manor. DONE AND ENTERED this 25th day of July, 2002, in Tallahassee, Leon County, Florida. ___________________________________ LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative this 25th day of July, 2002.
The Issue The issue is whether a certificate of need should be issued to permit Tamarac Hospital, Inc. d/b/a University Community Hospital (Tamarac) to convert 10 acute care medical/surgical beds to skilled nursing facility beds. Based on their presentations at the final hearing and their proposed findings of fact and conclusions of law, the central issue is whether there is a need for the proposed nursing home beds.
Findings Of Fact Tamarac proposes to convert 10 currently licensed medical/surgical acute care beds into skilled nursing facility beds. The skilled nursing beds would be available at the hospital to treat patients who no longer require acute hospital care but do require skilled nursing services beyond those required by ordinary nursing home patients. (Tr. 15-16) 1/ The capital cost of the project would be approximately $20,000 for renovation to provide a private bathroom in the existing group of hospital rooms which would be converted to use as the skilled nursing facility (Tr. 25). The testimony of the petitioner with respect to the financial feasibility of the project was undisputed (Tr. 25, PX 1, p.14). Tamarac has encountered problems in placing patients who no longer require acute hospital care in nursing homes in HRS District 10, Broward County, when those patients require more than normal nursing home services. These patients, due to their diagnosis or treatment, require more skilled nursing care, more technical assistance, supplies or more frequent checking than traditional nursing home patients (Tr. 15). These are patients with infectious diseases or draining wounds who require isolation; patients requiring ongoing intravenous administration of medications including antibiotics and narcotics; patients on chronic ventilator support; patients with tracheostomies requiring respiratory support, suctioning or oxygen; patients with naso-gastric feeding tubes and patients receiving total parenteral nutrition (PX 1, application, p. 2). Tamarac introduced a study it had conducted concerning discharge delays for the one year period prior to its application which included 70 patients (Tr. 12, PX 3). The study is anecdotal in nature. The director of social services for Tamarac, who is in charge of discharge planning coordination, testified that the 70 cases were representative and randomly sampled (Tr. 12, 21). There was no specific evidence of the sampling methodology, however. In the absence of better evidence of the sampling methodology it is not possible to determine what inferences validly may be drawn from the information presented in PX 3. For example, the evidence fails to show whether the 70 cases included represent 1 percent or 100 percent of the instances where a discharge was delayed. All that is known is that in 53 percent of those 70 cases studied the discharge delay occurred because the patient could not be placed in a nursing home (Tr. 12). These 37 patients might have been served at Tamarac if a skilled nursing facility had been in operation. Due to the limited evidence of how the sample was chosen, the study has been given little weight. In addition, the application and Tamarac's study focuses solely on the experience of Tamarac in attempting to place patients who no longer required acute care in a nursing home. There is no basis for determining whether there is a general community need for the project proposed. The narrowness of the proof offered is apparently due to the restriction Tamarac made in the application that "this project is for [Tamarac] hospitalized patients only". Application, PX 1, page 6 paragraph 4. Tamarac also conducted a survey of Broward nursing homes to determine what services they provide, PX 4. That survey indicates that there are some specialized nursing services that are not available in nursing homes in Broward County, e.g., services for patients on chronic ventilators and patients with acquired immune deficiency syndrome (although Tamarac did not indicate that it proposed to offer services to AIDS patients). There are also services which are not commonly available. Many nursing homes will not accept patients on intravenous medication in the form of chemotherapy or narcotics or patients with draining wounds, and the few that do generally require no pathogenic organism be present as shown by negative culture test. Even when some nursing home in Broward County provides a specific service, a bed at that nursing home may not be available to a patient in Tamarac Hospital ready for discharge from acute care when the bed is requested (Tr. 14- 15). Tamarac's placement problem is made more difficult because it is to some extent in competition with other Broward County hospitals for the available nursing home beds for patients needing skilled, subacute nursing services (Tr. 16). This generalized evidence of competition does not rise to the level of demonstrating a need in HRS Service District 10 for the proposed skilled nursing facility. Tamarac has attempted to persuade existing nursing homes to expand services to accept on a routine basis patients needing the type services which Tamarac proposes to provide, but has been unsuccessful (Tr. 16). The bed need calculation methodology set out in Rule 10-5.11(21), Florida Administrative Code, for the July 1988 planning horizon shows a surplus of 92 nursing home beds in Broward County (RX 1 and 2, Tr. 32-44). Approximately 258 nursing home beds are unoccupied in Broward County on a daily basis, assuming 100 percent occupancy actually could be achieved (Tr. 39). The availability of empty nursing home beds in the district does not necessarily mean that beds are available for a particular patient at Tamarac Hospital who needs more than normal nursing services on a specific day (Tr. 55). Individual patients requiring subacute care may remain in the hospital (Tr. 18). Patients ready for discharge from acute care are not eligible for Medicare coverage (Tr. 17), and are potentially liable for their hospital costs incurred awaiting placement. If they were transferred to a skilled nursing facility such as that proposed by Tamarac, those patients would be eligible for the Medicare benefits for the first 20 days, with an additional 80 days of co- insurance reimbursement thereafter (Tr. 26). The average hospital room, board, and ancillary charges at Tamarac is $900 per patient and per day. The charge to be made in Tamarac's proposed skilled nursing facility would be $115 per day (Tr. 26). According to the application (PX 1, table 7, utilization by the class of pay), 65.6 percent of its patient days of service are provided by Tamarac to Medicare patients. Tamarac would recover approximately $115 per patient per day for patients utilizing its skilled nursing facility, rather than writing off, as it does now, approximately $900 per day for those Medicare patients requiring subacute care who remain in Tamarac due to an inability to identify an appropriate skilled nursing facility in Broward County to accept them when their care requirements are greater than that normally provided by Broward County nursing homes (Tr. 29). Few Medicaid patients utilize the services of Tamarac because of the nature of the population surrounding the hospital. Referring again to the evidence of utilization by class of pay, only one tenth of one percent of the patient days spent at Tamarac during the period January 84 through December 84 were days spent by Medicaid patients. There would be no restriction on access to the skill nursing facility unit if one of the rare Medicaid patients at Tamarac Hospital required those services (Tr. 27-28).
Recommendation It is recommended that the application of Tamarac Hospital, Inc., d/b/a University Community Hospital to convert 10 medical/surgical beds to skilled nursing facility beds be denied. DONE AND ORDERED this 20th day of October 1986 in Tallahassee, Leon County, Florida. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of October, 1986.
