The Issue Whether, based upon a preponderance of the evidence, the Agency for Health Care Administration (AHCA) lawfully assigned conditional licensure status to Harbour Health Center for the period June 17, 2004, to June 29, 2004; whether, based upon clear and convincing evidence, Harbour Health Center violated 42 Code of Federal Regulations (C.F.R.) Section 483.25, as alleged by AHCA; and, if so, the amount of any fine based upon the determination of the scope and severity of the violation, as required by Subsection 400.23(8), Florida Statutes (2004).
Findings Of Fact Based upon stipulations, deposition, oral and documentary evidence presented at the final hearing, and the entire record of the proceeding, the following relevant findings of fact are made: At all times material hereto, AHCA was the state agency charged with licensing of nursing homes in Florida under Subsection 400.021(2), Florida Statutes (2004), and the assignment of a licensure status pursuant to Subsection 400.23(7), Florida Statutes (2004). AHCA is charged with the responsibility of evaluating nursing home facilities to determine their degree of compliance with established rules as a basis for making the required licensure assignment. Additionally, AHCA is responsible for conducting federally mandated surveys of those long-term care facilities receiving Medicare and Medicaid funds for compliance with federal statutory and rule requirements. These federal requirements are made applicable to Florida nursing home facilities pursuant to Florida Administrative Code Rule 59A-4.1288, which states that "[n]ursing homes that participate in Title XVIII or XIX must follow certification rules and regulations found in 42 C.F.R. §483, Requirements for Long Term Care Facilities, September 26, 1991, which is incorporated by reference." The facility is a licensed nursing facility located in Port Charlotte, Charlotte County, Florida. Pursuant to Subsection 400.23(8), Florida Statutes (2004), AHCA must classify deficiencies according to the nature and scope of the deficiency when the criteria established under Subsection 400.23(2), Florida Statutes (2004), are not met. The classification of any deficiencies discovered is, also, determinative of whether the licensure status of a nursing home is "standard" or "conditional" and the amount of administrative fine that may be imposed, if any. Surveyors note their findings on a standard prescribed Center for Medicare and Medicaid Services (CMS) Form 2567, titled "Statement Deficiencies and Plan of Correction" and which is commonly referred to as a "2567" form. During the survey of a facility, if violations of regulations are found, the violations are noted and referred to as "Tags." A "Tag" identifies the applicable regulatory standard that the surveyors believe has been violated, provides a summary of the violation, sets forth specific factual allegations that they believe support the violation, and indicates the federal scope and severity of the noncompliance. To assist in identifying and interpreting deficient practices, surveyors use Guides for Information Analysis Deficiency Determination/Categorization Maps and Matrices. On, or about, June 14 through 17, 2004, AHCA conducted an annual recertification survey of the facility. As to federal compliance requirements, AHCA alleged, as a result of this survey, that the facility was not in compliance with 42 C.F.R. Section 483.25 (Tag F309) for failing to provide necessary care and services for three of 21 sampled residents to attain or maintain their respective highest practicable physical, mental, and psychosocial well-being. As to the state requirements of Subsections 400.23(7) and (8), Florida Statutes (2004), and by operation of Florida Administrative Code Rule 59A-4.1288, AHCA determined that the facility had failed to comply with state requirements and, under the Florida classification system, classified the Federal Tag F309 non-compliance as a state Class II deficiency. Should the facility be found to have committed any of the alleged deficient practices, the period of the conditional licensure status would extend from June 17, 2004, to June 29, 2004. Resident 8 Resident 8's attending physician ordered a protective device to protect the uninjured left ankle and lower leg from injury caused by abrasive contact with the casted right ankle and leg. Resident 8 repeatedly kicked off the protective device, leaving her uninjured ankle and leg exposed. A 2.5 cm abrasion was noted on the unprotected ankle. The surveyors noted finding the protective device in Resident 8's bed but removed from her ankle and leg. Resident 8 was an active patient and had unsupervised visits with her husband who resided in the same facility but who did not suffer from dementia. No direct evidence was received on the cause of the abrasion noted on Resident 8's ankle. Given Resident 8's demonstrated propensity to kick off the protective device, the facility should have utilized a method of affixing the protective device, which would have defeated Resident 8's inclination to remove it. The facility's failure to ensure that Resident 8 could not remove a protective device hardly rises to the level of a failure to maintain a standard of care which compromises the resident's ability to maintain or reach her highest practicable physical, mental or psychosocial well-being. The failure to ensure that the protective device could not be removed would result in no more than minimal discomfort. Resident 10 Resident 10 has terminal diagnoses which include end- stage coronary artery disease and progressive dementia and receives hospice services from a local Hospice and its staff. In the Hospice nurse's notes for Resident 10, on her weekly visit, on May 17, 2004, was the observation that the right eye has drainage consistent with a cold. On May 26, 2004, the same Hospice nurse saw Resident 10 and noted that the cold was gone. No eye drainage was noted. No eye drainage was noted between that date and June 2, 2004. On June 3, 2004, eye drainage was noted and, on June 4, 2004, a culture of the drainage was ordered. On June 7, 2004, the lab report was received and showed that Resident 10 had a bacterial eye infection with Methicillin Resistant Staphylococcus Aureus (MRSA) bacteria. On June 8, 2004, the attending physician, Dr. Brinson, referred the matter to a physician specializing in infectious disease, and Resident 10 was placed in contact isolation. The infectious disease specialist to whom Resident 10 was initially referred was not available, and, as a result, no treatment was undertaken until a second specialist prescribed Bactrim on June 14, 2004. From June 8, 2004, until June 14, 2004, Resident 10 did not demonstrate any outward manifestations of the diagnosed eye infection. A June 9, 2004, quarterly pain assessment failed to note any discomfort, eye drainage or discoloration. In addition to noting that neither infectious control specialist had seen Resident 10, the nurses notes for this period note an absence of symptoms of eye infection. Colonized MRSA is not uncommon in nursing homes. A significant percentage of nursing home employees test positive for MRSA. The lab results for Resident 10 noted "NO WBC'S SEEN," indicating that the infection was colonized or inactive. By placing Resident 10 in contact isolation on June 8, 2004, risk of the spread of the infection was reduced, in fact, no other reports of eye infection were noted during the relevant period. According to Dr. Brinson, Resident 10's attending physician, not treating Resident 10 for MRSA would have been appropriate. The infectious disease specialist, however, treated her with a bacterial static antibiotic. That is, an antibiotic which inhibits further growth, not a bactericide, which actively destroys bacteria. Had this been an active infectious process, a more aggressive treatment regimen would have been appropriate. Ann Sarantos, who testified as an expert witness in nursing, opined that there was a lack of communication and treatment coordination between the facility and Hospice and that the delay in treatment of Resident 10's MRSA presented an unacceptable risk to Resident 10 and the entire resident population. Hospice's Lynn Ann Lima, a registered nurse, testified with specificity as to the level of communication and treatment coordination between the facility and Hospice. She indicated a high level of communication and treatment coordination. Dr. Brinson, who, in addition to being Resident 10's attending physician, was the facility's medical director, opined that Resident 10 was treated appropriately. He pointed out that Resident 10 was a terminally-ill patient, not in acute pain or distress, and that no harm was done to her. The testimony of Hospice Nurse Lima and Dr. Brinson is more credible. Resident 16 Resident 16 was readmitted from the hospital to the facility on May 24, 2004, with a terminal diagnosis of chronic obstructive pulmonary disease and was receiving Hospice care. Roxanol, a morphine pain medication, had been prescribed for Resident 16 for pain on a pro re nata (p.r.n.), or as necessary, basis, based on the judgment of the registered nurse or attending physician. Roxanol was given to Resident 16 in May and on June 1 and 2, 2004. The observations of the surveyor took place on June 17, 2004. On June 17, 2004, at 9:30 a.m., Resident 16 underwent wound care treatment which required the removal of her sweater, transfer from sitting upright in a chair to the bed, and being placed on the left side for treatment. During the transfer and sweater removal, Resident 16 made noises which were variously described as "oohs and aahs" or "ows," depending on the particular witness. The noises were described as typical noises for Resident 16 or evidences of pain, depending on the observer. Nursing staff familiar with Resident 16 described that she would demonstrate pain by fidgeting with a blanket or stuffed animal, or that a tear would come to her eye, and that she would not necessarily have cried out. According to facility employees, Resident 16 did not demonstrate any of her typical behaviors indicating pain on this occasion, and she had never required pain medication for the wound cleansing procedure before. An order for pain medication available "p.r.n.," requires a formalized pain assessment by a registered nurse prior to administration. While pain assessments had been done on previous occasions, no formal pain assessment was done during the wound cleansing procedure. A pain assessment was to be performed in the late afternoon of the same day; however, Resident 16 was sleeping comfortably. The testimony on whether or not inquiry was made during the wound cleansing treatment as to whether Resident 16 was "in pain," "okay," or "comfortable," differs. Resident 16 did not receive any pain medication of any sort during the period of time she was observed by the surveyor. AHCA determined that Resident 16 had not received the requisite pain management, and, as a result, Resident 16’s pain went untreated, resulting in harm characterized as a State Class II deficiency. AHCA's determination is not supported by a preponderance of the evidence. In the context that the surveyor considered what she interpreted as Resident 16's apparent pain, deference should have been given to the caregivers who regularly administered to Resident 16 and were familiar with her observable indications of pain. Their interpretation of Resident 16's conduct and their explanation for not undertaking a formal pain assessment are logical and are credible.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding: The facility's failure to secure the protective device to Resident 8's lower leg is not a Class II deficiency, but a Class III deficiency. The facility's care and treatment of Residents 10 and 16 did not fall below the requisite standard. The imposition of a conditional license for the period of June 17 to June 29, 2004, is unwarranted. The facility should have its standard licensure status restored for this period. No administrative fine should be levied. DONE AND ENTERED this 3rd day of June, 2005, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of June, 2005. COPIES FURNISHED: Karen L. Goldsmith, Esquire Goldsmith, Grout & Lewis, P.A. 2180 North Park Avenue, Suite 100 Post Office Box 2011 Winter Park, Florida 32790-2011 Eric Bredemeyer, Esquire Agency for Health Care Administration 2295 Victoria Avenue, Room 346C Fort Myers, Florida 33901 Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308 William Roberts, Acting General Counsel Agency for Health Care Administration Fort Knox Building, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308
The Issue The parties have stipulated that Petitioner is a "prevailing small business party" as defined in Section 57.111, F.S., and that the attorney fees requested are reasonable, up to the $15,000.00 statutory limit. The issue remaining for resolution is whether the expungement proceeding had a "reasonable basis in law and fact at the time it was initiated by [the] state agency", as provided in Section 57.111, F.S.
Findings Of Fact The following findings are adduced from the record, consisting of the transcript and exhibits in cases number 89-4151C/89-6087C, from the stipulations of the parties, and from the final order of the agency adopting the recommended order of Hearing Officer, K.N. Ayers, dated March 20, 1990. Petitioners are sole proprietors of Forest Haven, an unincorporated adult congregate living facility (ACLF) licensed by the State of Florida pursuant to Chapter 400, Part II, F.S., and located at 8207 Forest City Road, Orlando, Florida. Petitioners and Forest Haven have their principal office in Orlando, Florida and are domiciled in Orlando, Florida. They have less than 25 full-time employees and a net worth of less than $2 million. On March 17, 1989, a Department of Health and Rehabilitative Services (HRS) survey team visited Forest Haven to conduct an annual survey of the facility. The survey team was comprised of 10 persons, enlarged due to a training exercise. Several of the team members were registered nurses; several members were Office of Licensure and Certification supervisors. During the course of the visit and observations of the residents, members of the team determined that eight residents required a higher level of care than could be provided at the ACLF. As found in the recommended order adopted by the agency, the basis for this determination was, As to T.M., age 81, the need for a restraining vest, and the existence of bruises and gashes on the face and head; As to H.L., age 89, the presence of a foley catheter, total disorientation, low weight and poor skin turgor (brittle skin); As to F.W., age 72, the presence of a foley catheter, observation of fresh blood in the catheter bag, and low body weight; As to M.B., age 81, incontinence and nonambulatory status; As to R.T., age 84, a foley catheter and contraction of both legs; As to L.O., age 94, edema of lower extremities, contracture of both knees, low body weight, skin tear on left buttocks, and possible bed sore on right buttocks; As to P.B., age 88, incontinence, low body weight, and inability to transfer from wheelchair to bed without assistance; and As to F.H., age 89, one-half inch bed sore on coccyx, pitting edema of legs, incontinence and somewhat confused state. An adult protective services investigator was summoned, as well as law enforcement personnel, and the above residents were removed from the facility on an emergency basis and were placed in a nursing home. They were evaluated at the nursing home the following day by Carolyn Lyons, a Registered Nurse Specialist with HRS, who found that intermediate or skilled nursing home services were required. A ninth resident, C.K., was evaluated by a medical review team nurse and an adult protective services worker at the ACLF on March 20, 1989, and was removed from the facility and placed in a nursing home the same day. C.K., age 89, was found to be confused, incontinent, with bruises, a swollen foot, non- ambulatory, and with a red rash on the trunk of her body. HRS obtained orders from the Circuit Court to provide protective services for seven of the above-mentioned residents. Of the remaining two, one was competent to consent to the nursing home placement and another was returned to his own home by relatives. On March 22, 1989, HRS Protective Services worker, Annette Hair, classified the report in her investigation as "confirmed" medical neglect by S.G. and J.G. of the eight residents who had been removed from the ACLF. She relied on her own observations of the individuals, on the medical assessments performed by the survey team nurses at the ACLF, and the subsequent assessment of Carolyn Lyons, the HRS staff person responsible for making an evaluation of the level of care required for medicaid nursing home placement. The narrative "investigative conclusion" of Ms. Hair's report provides, in pertinent part: * * * Based on the facts obtained during the course of this investigation this case is being classified as CONFIRMED. In accordance with F.S. Section 415.102(4) it is clearly estab- lished that [S. and J.G.] were the caregivers of the eight alleged victims of this report as they had been entrusted with the care of said individuals. The allegation of neglect is verified for each of the eight alleged victims in that [S. and J.G.] failed to provide the care and service necessary to maintain the physical and mental health of an aged person that a prudent person would deem essential for the well-being of an aged person (F.S. Section 415.102(13)). Specifically each of the eight alleged victims has a medical condition which required twenty-four hour skilled nursing care and supervision which the caregivers, [S. and J.G.] failed to provide for said individuals. Five of the eight alleged victims, [H.L., L.O., T.M., F.H. and P.B.] had Scabies (a highly contagious disease caused by parasitic mites that burrow under the skin. This disease is associated with unsanitary conditions and causes a painful itch). [S. and J.G.] failed to provide the supervision necessary to detect this disease and in so doing jeopardized the health and well-being of the other residents in the facility. [H.L.] in addition to having Scabies, was semi-comatose, had bed sores on her buttocks and pelvic area and had a foley catheter. [T.M.] had open lacerations on her face, was extremely mentally confused and was known to wander and fall which required her to be physically restrained. [L.O.] had two open skin areas and Edema. [M.B.] has an excoriated area on her buttocks, Edema of the feet, and her right knee was swollen. [R.T.] had a cough of unknown origin, contraction of both legs, and an in-dwelling catheter. [F.W.] had an in-dwelling catheter which was draining bloody urine and appeared malnourished. [P.B.] appeared malnourished and was incontinent of both bowels and bladder, was extremely confused, and had an open draining wound. [F.H.] had bed sores, and Pitting Edema in addition to Scabies. [S. and J.G.], in addition to being negligent for failing to provide the care and services necessary to maintain the physical and mental health of the alleged victims, were in direct violation of F.S. Section 400.426(1) as they did not perform their responsibility of determining the appropriateness of residence of said individuals in their facility. (Petitioner's exhibit 2, in cases number 89-4151C/89-6087C) On April 4, 1989, HRS Protective Services worker, Kathleen C. Schirhman, classified the report in her investigation as "confirmed" medical neglect by S.G. and J.G. She relied on her own assessment of the resident, and on the medical assessments by Nurse Lyons, and by medical staff at the receiving nursing home, including a physician, Dr. Parsons. The narrative "investigative conclusion" of Ms. Schirhman's report provides: Based upon the facts obtained during the course of this investigation, both alle- gations of medical neglect and other neglect were determined to be verified, and the case is being classified as CONFIRMED. [J.G. and S.G.] assumed the responsibility of care for [C.K.] and, therefore, became her caregivers. They did not provide the care and services necessary to maintain the physical and mental health of [C.K.] that a prudent person would deem essential for her well-being. She required medical services and nursing supervision in a skilled nursing facility. Pursuant to F.S. 400.426 "the owner or Admini- strator of a facility is responsible for determining the appropriateness of admission of an individual to the facility and for deter- mining the continued appropriateness of resi- dence of an individual in the facility." The assessment by the CARES nurse determined that [C.K.] was being medically neglected, because she required 24 hour nursing care, which she was not receiving. She had Scabies, for which she was not being treated. The CARES nurse believed that the alleged victim was at risk and requiring immediate nursing home placement. Allegation of "other neglect" was added to the original report. [C.K.] was being neglected, because she was a total transfer patient, who required restraints, which were not used and cannot be used in an ACLF. Furthermore, the potential for harm to her was great: She was blind, confused, and unable to self-preserve. (Petitioner's exhibit number 1 in cases number 89-4151C/89-6087C) S.G. and J.G. requested expungement of the reports but the request was denied on July 10, 1989. Thereafter, through counsel, they made a timely request for a formal evidentiary hearing. The hearing was conducted on February 14 and 15, 1990, by DOAH Hearing Officer, K.N. Ayers. Depositions of David J. Parsons, M.D. and Gideon Lewis, M.D. were filed after the hearing, by leave of the Hearing Officer. In his recommended order issued on March 20, 1990, Hearing Officer Ayers found that the HRS investigators did not contact the physicians who had signed the admissions forms when each of the residents at issue had been admitted to the ACLF. Nor did the HRS staff obtain records from the home health agency which, at the treating physicians' direction, was providing, or had provided, home health care to most of the residents at Forest Haven. Skin lesions (decubitus) and scabies were found to be frequently present in nursing home and ACLF residents. Edema and underweight conditions are also common in these residents. Dr. Lewis, the treating physician for most of the residents at Forest Haven, had ordered the vest restraint for T.M.'s protection. He had also written to HRS about a year prior to the survey, recommending that efforts be made to relocate H.L. to a skilled nursing facility. The recommended order found that no evidence of exploitation or neglect, other than medical neglect, was presented at the hearing. The order also found that evidence of medical neglect by S.G. and J.G. was not presented, but rather, "[t]o the contrary, the evidence was unrebutted that Respondents [Petitioners in this proceeding] promptly reported to the resident's physician all changes in the resident's physical condition." The agency's final order was filed on May 29, 1990, adopting the findings of fact and conclusions of law recommended by Hearing Officer Ayers, and granting J.G. and S.G.'s requests for expungement. The Final Order addressed the department's exceptions to the recommended order, as follows: RULING ON EXCEPTIONS FILED BY THE DEPARTMENT The dispositive issue is whether retention of a resident (or residents) in an ACLF whose medical condition is more serious than the established criteria for residence in an ACLF (see Section 10A-5.0181, Florida Administra- tive Code for the criteria) constitutes per se neglect under Chapter 415. Inappropriate retention of a resident may constitute grounds for disciplinary sanctions under the licensure rules, but it does not automatically consti- tute abuse under Chapter 415. See State vs. E. N. G., Case Number 89-3306C (HRS 2/13/90). The evidence of medical neglect was based on the inappropriate retention of certain resi- dents. The Hearing Officer's finding that these residents were not medically neglected is based on competent, substantial evidence; therefore, the department is obligated to accept this finding. Johnson vs. Department of Professional Regulation, 456 So2d 939 (Fla. 1st DCA 1981), B. B. vs. Department of Health and Rehabilitative Services, 542 So2d 1362 (Fla. 3rd DCA 1989). In pursuing expungement, Petitioners incurred fees, costs and interest in the total amount of $22,772.49. The amount of interest included in that total is $1,000.91. As stipulated, the fees, up to the $15,000.00 statutory maximum, are reasonable.
The Issue Whether petitioner is entitled to be reimbursed by respondent six hundred twenty dollars and thirty-six cents ($620.36) for intermediate nursing care provided to one John W. Bernard during the period July 1 to July 27, 1983?
Findings Of Fact Some time in 1980 Mr. Bernard entered petitioner's facility for intermediate nursing care, in order to recuperate from amputation of his leg. He made satisfactory progress, and the utilization review committee eventually recommended his transfer to an adult congregate living facility. On May 11, 1982, respondent's Medicaid Services Unit mailed a notice, received by the petitioner the following day, to the effect that Mr. Bernard would no longer be eligible for intermediate nursing care under the Medicaid program, effective May 22, 1982. Another office within the Department of Health and Rehabilitative Services (HRS), the office from which social workers are deployed (HRS-SRS), also received a copy of the notice. Mr. Bernard who is legally competent, and HRS' payments office also got copies. On or about May 12, 1983, as soon as she saw the notice, Ms. M. L. Croft, petitioners administrator, telephoned HRS' payment office. She did not understand that payment for Mr. Bernard's nursing care would be cut off as a result of the notice. HRS-SRS got a telephone call from petitioner on June 22, 1982, requesting assistance in relocating Mr. Bernard. Ms. Sue Henderson, the HRS-SRS supervisor, asked Ms. Velma L. Murphy, a social worker in respondent's employ, to handle the matter; and Ms. Murphy visited Bay Convalescent Center and spoke to Mr. Bernard on June 22, 1982, after checking with the Hiland Park Retirement Home, an adult congregate living facility in the same general vicinity, and learning of a vacancy there. Mr. Bernard did not want to make the move, but Ms. Murphy asked him to consider it, and left. Some time later, Ms. Murphy got word that somebody at petitioner's had called and said that a friend of Mr. Bernard's had asked for a hearing on the change in his status. Ms. Murphy telephoned the nursing home herself and was told the same thing. In fact, however, there never was any appeal of Mr. Bernard's change of care status. On another visit to the nursing home, in July, Ms. Murphy was asked by Ms. Croft to help make arrangements to transfer Mr. Bernard and made plans to effect the move before the end of the month. When she learned, on July 27, 1982, that petitioner was no longer being paid for Mr. Bernard's care, she arranged for his transfer that day to an adult congregate living facility. On July 26, 1982, Linda Dorman, a public assistance eligibility specialist II in respondent's employ, had come across a copy of Mr. Bernard's change of status notice in the course of processing rate changes for Bay Convalescent Center. From her examination of the statement of institutional services submitted by petitioner, she could see that petitioner was billing for services rendered to Mr. Bernard, so she notified petitioner that no additional moneys would be paid to petitioner by HRS on account of Mr. Bernard; and that payment already made on his account for the period from June 21 to June 30, 1982 had been inadvertant.
Recommendation It is, accordingly, RECOMMENDED: That respondent reimburse petitioner for Mr. Bernard's care for 36 days at the rate in force at the time for adult congregate living facilities, less what petitioner has already received on account of care rendered to Mr. Bernard June 22 to June 30, 1982, inclusive. DONE and ENTERED this 20th day of June, 1983, in Tallahassee, Florida. ROBERT T. BENTON, II 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 June, 1983. COPIES FURNISHED: Michael C. Overstreet, Esquire 229 McKenzie Avenue Panama City, Florida 32401 John Pearce, Esquire 2639 North Monroe Street Tallahassee, Florida 32301 David Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
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
The Issue Which one of three Certificate of Need applications for a new nursing facility in AHCA Nursing Home District 3 should be granted: Beverly Savana Cay Manor, Inc.’s; Life Health Care Resources, Inc.’s; or Arbor Health Care Company’s?
Findings Of Fact The Parties and The Applications Beverly Beverly Savana Cay Manor, Inc., is a wholly-owned subsidiary of Beverly Enterprises, Inc., the largest provider of nursing-home care in the nation. Beverly is proposing to construct a 120-bed freestanding nursing home in Marion County from which it proposes to provide hospice services, respite services and, for six days a week, inpatient and outpatient therapy services. The nursing home, if constructed, will contain a 16-bed Medicare unit and a 20-bed secured Alzheimer’s unit. The Beverly application is conditioned upon providing at least 55 percent of its patient days to Medicaid patients. In addition, Beverly proposes to provide 0.2 percent of its patient days to indigent and charity patients. Beverly proposes to provide care to residents who are HIV positive or have AIDS. If the application is approved, Beverly will contribute $10,000 to a geriatric research fund. Life Care Life Care is a new, start-up corporation formed initially for the purpose of seeking a CON for a nursing home in Hernando County. Life Care’s plan is that it be operated by Life Care Centers of America, Inc. (LCCA), a privately owned Tennessee corporation authorized to business in Florida. LCCA owns, operates, or manages over 185 nursing homes with over 22,700 beds and retirement center units in 28 states. It is the largest privately owned nursing-home company in the United States. Life Care’s application proposes construction and operation of a 120-bed nursing home in Hernando County. The nursing home will include a 20-bed secured Alzheimers/dementia care unit and a state-of-the-art adult care unit. In fact, Life Care has agreed to condition approval of its application on inclusion of these two units. Additionally, it has agreed to a condition of service of Medicaid residents at the district average (69.26 percent) at least. Life Care proposes a broad range of Specialized Programs, including care of AIDS victims, respite care, and care to hospice clients and outpatient rehabilitative care. Its inpatient care will include a 20-bed Medicare unit, within which will be at least 12 beds for "subacute" services. Arbor Headquartered in Lima, Ohio, Arbor Health Care Company has 27 facilities located in five states. Twelve of the facilities are in Florida but none of its licensed facilities are in District 3. Of the twelve in Florida, eleven are JCAHO accredited, with the twelfth, newly-licensed, scheduled at the time of hearing for an accreditation survey in December of 1997. Ten of the eleven accredited facilities are also accredited for subacute care. Arbor’s accreditation record is outstanding compared to both the 600 nursing facilities in Florida, 93 of which are JCAHO accredited and 49 of which are accredited for subacute care, and the national record of accreditation of nursing home facilities in subacute care, 23 percent. This record, too, is demonstrative of Arbor’s progress in carrying out its corporate mission: to be the premier subacute provider of long-term care services. Consistent with its mission, Arbor proposes a distinct subacute unit to serve patients with digestive diseases and patients in need of ventilator therapy, infusion therapy, wound care, and cardiac therapy. In addition to subacute services, Arbor proposes to serve residents with dementia, including Alzheimer’s, by utilizing a strongly-developed, individualized- care plan with an interdisciplinary approach implemented upon admission and subject to continuous review and, if necessary, revision. Arbor's application, however, distinctly different from Beverly’s and Life Care’s, does not propose a secured Alzheimer’s unit. Arbor proposes comprehensive rehabilitation care for its patient and residents, as well as outpatient rehabilitation services for both former residents and residents throughout the community. Arbor proposes to provide 0.2 percent of all patient days for charity care and 69.26 percent of all patient days for Medicaid patients within its 104-bed long-term facility. Medicaid patients will also be served in the 16-bed subacute unit. In addition, Arbor proposes to provide, at a minimum, one percent of its patient days for hospice care, respite care, the care of AIDS patients, and the care of pediatric patients. Arbor is committed to such services, as well as the provision of both inpatient and outpatient intensive rehabilitative programs, and has agreed to condition its award of a Certificate of Need upon such commitments. Arbor is the only one of the three applicants committed to provide care and services to pediatric patients. Location Introduction The issue on which these cases turn is location within District 3. (There are other issues in this case certainly. For one reason or another, their disposition will not determine the outcome of this case. Not the least among the other issues is whether Beverly or Life Care should be favored over Arbor because they propose secured Alzheimer’s units. This issue, however important and subject to whatever quality of debate, is not dispositive because at present it has no clear answer. See Findings of Fact Nos. 43-45, below.) District 3 Comprised of 16 counties located as far north as the Georgia state line and southwest to Hernando County, District 3 is the largest AHCA Nursing Home District area-wise. The District is not divided into subdistricts for the purpose of applying the state methodology to determine numeric need of additional nursing home beds. Among the 16 counties in the district are Marion, Hernando and Citrus. The Applicant’s Proposed Locations Beverly proposes to construct its 120-bed freestanding nursing home in Marion County. The specific proposed location is south of the City of Ocala, east of State Road 200 and west of Maricamp Road. From this location, Beverly would serve primarily residents of Marion County, but would also be accessible to residents of Citrus, Lake and Sumter Counties. Life Care proposes to construct its 120-bed nursing home in the Spring Hill area of Hernando County. Arbor proposes to locate its 120-bed nursing home in Citrus County. It did not propose a specific location within the County. The Best Location Conflicting qualified opinions were introduced into evidence by each of the three applicants. Each applicant, of course, presented expert testimony that its proposed location was superior to the locations proposed by the other two. In its preliminary decision, AHCA approved Arbor’s application and denied the other two. AHCA continues to favor Citrus County as the best location for a new 120-bed nursing home in District 3. At bottom, AHCA’s preliminary decision is supported by Arbor's proposal to locate in the county among Marion, Hernando and Citrus Counties with the greatest need: Citrus. This basis underlying, and therefore, the Agency’s preliminary decision, is supported by the findings of fact in paragraphs 21-35, below. Allocation of Nursing Home Beds Within AHCA Nursing Home District 3 Although the district is identified as a single entity for purposes of the state methodology utilized to determine the need for additional nursing home beds, the local planning council divides the district into geographic units or planning areas in order to specify preferences for the allocation of nursing homes within the district. The North Central Florida Health Planning Council, Inc., has created seven planning areas in District 3. The local health plan utilizes a priority-setting system to identify the relative importance of adding beds to specific planning areas. After establishing well-defined priorities for geographically-underserved areas and designated occupancy thresholds, the priority-setting system creates a decision matrix: the Planning Area Nursing Home Bed Allocation (PANHAM). The matrix is based on the population at risk, bed supply (both licensed and approved), and occupancy levels within the planning area. The allocation factors in the local health plan are particularly significant with respect to District 3 in light of its lone stance among the Agency’s Nursing Home Districts as lacking a process for allocating number of beds needed to the individual subdistrict. The local health plan provides "the only road map or the only guidance" (Tr. 311) as to how to allocate beds within District 3. The local health plan bases its occupancy priorities upon both licensed and approved beds within each planning area. From a planning perspective, it is reasonable and appropriate to calculate occupancy rates based upon both licensed and approved beds in assessing the need for additional beds. The number of approved beds is a measure of how much additional capacity will be on line in the near future. To ignore the number of approved beds in the evaluation of where to allocate new beds is not a good health planning technique. The three counties in which Beverly, Life Care and Arbor propose to locate are each separate planning areas in the local health plan. Marion is Planning Area 4; Hernando and Citrus are 6 and 5, respectively. The preferences contained within the local health plan for the allocation of nursing home beds within District 3 are listed in terms of importance and priority. Allocation factors "[t]wo and three really are the basis . . . for figur[ing] out in this huge district of 16 counties, how [to] make sense of where the beds ought to go." (Tr. 312.) The first of these is for applicants proposing to develop nursing home beds in geographically-underserved areas. None of the planning areas designated by the three applicants in this proceeding meet this geographic-access priority. The second of these two allocation factors, Allocation Factor 3, assigns a number of priorities in order of significance. These priorities are based primarily upon occupancy or utilization and need determined by the number of beds per area residents of 75 years of age and older. The first priority in Allocation Factor 3 is "an acid test." (Tr. 312.) It states that no nursing home beds should be added in a planning area until the number of nursing home days, considering both licensed and approved beds, for the most recent six months is 80 percent. It is only when an applicant meets this threshold that the remaining priorities in Allocation Factor 3 are considered. If the 80-percent priority is not met in a planning area, then the area should be given no further consideration for the allocation of beds. The only planning area of the three at issue in this case which meets the 80-percent occupancy standard is Planning Area 5, Citrus County. At the time the original fixed need pool for District 3 was published for the batching cycle applicable to this case, Citrus County had 69-approved nursing home beds. Hernando County had 147 (including 27 hospital-based skilled nursing beds), and Marion County had 234 approved beds. The most recent data available at the time of hearing show no new beds in Citrus or Hernando Counties but 309 new beds approved for Marion County. Utilizing the most recent data regarding the number of licensed and approved beds in Citrus, Hernando and Marion Counties, Citrus County remains the only planning area of the three which meets or exceeds the 80 percent occupancy threshold. Assuming that the remaining priority factors contained within the PANHAM matrix are applicable, none of the three applicants received a priority ranking under the PANHAM methodology. Applying the most recent data available, however, only Citrus County is moving toward the highest priority of high need and high occupancy. Both Marion County and Hernando County are moving away from the highest priority. Excluding the two counties within District 3 which have no nursing home beds (Dixie and Union), Hernando County has the lowest bed-to-elderly population ratio in the District. Considering occupancy rates over the past three years based solely upon licensed beds, Hernando County has demonstrated a marked decrease in utilization. Thus, even though Hernando has had a growth in population and experiences a lower bed-to- population ratio than the District as a whole, there is no stress on the nursing home bed supply in Hernando County. There is, moreover, no evidence of a high need to add additional bed capacity in Hernando County. The recently opened 120-bed Beverly nursing home in Spring Hill will serve to suppress or depress the overall rate of occupancy in Hernando County, making the occupancy rate even lower. There are a number of reasons why an area that has a relatively low bed-to-population ratio may also experience low occupancy. While a county or a planning area is defined by political boundaries, people do not necessarily stay within those boundaries for nursing home services. Socio-economic factors, the quality of existing nursing home services and the existence of alternatives, such as assisted living facilities, driving times and distances, the proximity of family, all may play a role in determining occupancy rates in a particular area. With regard to Planning Area 6, Hernando County, there are five nursing homes in northern Pasco County within a 15-mile radius of the center of Spring Hill, Life Care’s proposed location. Three of the four existing nursing homes in Hernando County have had downward occupancy trends. Occupancy rate may be expected to further drop with the recently licensed 120-bed facility in Spring Hill. Marion County has far and away the highest number of approved beds and a very high ratio of approved beds to licensed beds, thus providing significant additional capacity in that planning area. While the local health plan for District 3 affords no priorities based upon data concerning patient origin, Beverly attempted to demonstrate a greater need for additional beds in Marion County, as opposed to Citrus County, through patient origin information reported in those two counties. Beverly concluded that while 99 percent of the Citrus County population placed in a nursing home seek care within Citrus County, only 78 percent of Marion County residents placed in a nursing home seek nursing home care in Marion County. A 1996 nursing home data report showed that 147 Marion County residents sought nursing home care outside of Marion County, primarily in adjacent Levy, Sumter and Citrus Counties. Beverly’s analysis fails to establish need in Marion greater than in Citrus. First, it fails to take into account the 309 approved beds which will significantly add to Marion County’s capacity. Second, Citrus County’s occupancy rates are slightly higher than Marion County’s. Third, the data relied upon by Beverly’s expert performing the analysis is incomplete in that two or three nursing homes in Marion County did not report any data regarding patient origin. And finally, there are a number of reasons, found above, for why residents of one planning area choose a nursing home in another planning area. The Extent and Quality of Services Overview The District 3 local plan expresses a preference and priority for applicants which propose specialized services to meet the needs of identified population groups. Examples of such services include care for special children, care for Alzheimer’s or dementia patients, subacute care, and adult day care. Only a small percentage of nursing home care is provided to children. Proposing such care does not in the ordinary nursing home case carry much weight. Nor was there any demonstration that there is an unmet need for pediatric nursing home services in District 3. Nonetheless, it is at least noteworthy that only Arbor proposes care for special children as part of its pediatric services; the other two do not propose pediatric care at all. Arbor is also the only applicant that demonstrated a need for subacute care in its planning area and that is committed to provide such care. Utilizing a reasonable methodology, Arbor demonstrated a need for 41 additional subacute care beds in Citrus County. Arbor’s 16-bed subacute unit is consistent with that demonstrated need. While Beverly and Life Care propose to offer skilled, short-term services, neither proposes a distinct subacute unit. Indeed, Beverly’s skilled Medicare unit will not provide subacute care or services. Life Care’s subacute "program" will be implemented only if management later verifies a community need for such a program. While Life Care proposes to offer adult day care for five clients, Life Care did not identify a need for such services in Hernando County. Each of the applicants proposes to offer services and programs for residents with Alzheimer’s disease or dementia and each intends to service AIDS patients, provide respite care, and offer rehabilitation therapy services. Given the mix of services proposed, as well as Arbor’s commitment to such services, Arbor best meets the local health plan’s priority for the provision of specialized services to meet the needs of identified population groups. Subacute Care Arbor will offer a full range of subacute services, programs, and staffing it in its quest to be a premier provider of subacute services. In contrast, neither Beverly nor Life Care demonstrated a need for subacute care in their districts. In keeping with this lack of demonstration, neither Beverly nor Life Care made any commitment to a dedicated and distinct subacute unit or the provision of such services. Care for Alzheimer’s and Dementia Patients Approximately 50 percent of residents within nursing homes suffer from Alzheimer’s Disease or some form of related dementia. All three applicants propose to serve such patients and offer specified programs and rehabilitative services to these patients. Arbor, however, differs from Beverly and Life Care in its approach to treating those with Alzheimer’s. Beverly and Life Care propose secured, dedicated Alzheimer’s units. Arbor, while clustering patients within the facility in terms of the level of care and resources which each requires, follows a policy of mainstreaming residents with Alzheimer’s within the general nursing home population. There is a difference of opinion in the health care community as to which approach is better: secured, dedicated Alzheimer’s units or mainstreaming. There are both positive and negative aspects to dedicated, secured Alzheimer’s units. And it may turn out that the positive aspects prevail ultimately. But, at present, the results of research are inconclusive. The conclusion cannot yet be drawn that a secured, dedicated unit provides a more effective manner, either from a clinical standpoint or a cost-effective standpoint, of treating and caring for Alzheimer’s or dementia patients. Medicaid Services Florida’s State Health Plan expresses a preference for applicants proposing to serve Medicaid residents in proportion to the average subdistrict-wide percentage of the nursing homes in the same subdistrict. Since District 3 is not divided into subdistricts, the applicable comparison is the average District Medicaid utilization: 69.26 percent at the time the applications were filed. Beverly proposes to offer only 55 percent of its patient days to Medicaid patients. Beverly showed that Medicaid utilization has been declining in Marion County to the point at the time of hearing that it was 58 percent. But even if it were appropriate to use Marion County as the equivalent of a subdistrict, Beverly’s commitment would not match the Marion County rate, a rate lower than the district-wide rate. Beverly does not qualify for the preference. Life Care proposes 69.5 percent of its total patient days to Medicaid patients. Life Care qualifies for the preference. Arbor proposes to commit 69.26 percent of its patient days to Medicaid residents in the 104-bed long-term unit of its facility, or a minimum of 67 long-term care beds. In addition, Arbor will dually-certify some of its Medicare-certified beds for Medicaid in its subacute unit for patients who are either admitted on Medicaid or would convert of Medicaid. Typically, an applicant’s commitment to provide a certain percentage of its patient days for services to Medicaid patients is expressed in terms of patient days for the total facility. This batching cycle, however, was unique in that AHCA created a separate subset of nursing home beds, known as short- term beds, and required that separate applications be filed by applicants proposing both long-term and short-term beds. The partition created a problem for each applicant because it set up the possibility that one of the applicant's applications (either the short-term or the long-term) would be approved and the other denied. Arbor solved the problem by considering its 104-bed long term application as an application for a stand-alone project. Beverly and Life Care did not have the problem since they do not intend to have subacute units within their proposed facility. For facilities approved by more than one CON, AHCA uses a blended rate for monitoring compliance with CON conditions. For Arbor’s application, therefore, one could argue that a blended rate of 60.03 percent, composed of 69.23 percent for 104 beds and 0 percent for the 16 subacute beds, which is the rate Arbor proposes for the entire 120-bed facility, should apply. Whether applying a blended rate or using the rate applicable to long-term beds, Arbor is entitled to the State Health Plan preference for service to Medicaid patients. Financial Feasibility With one exception, all parties stipulated that each of the three applicants propose projects that are financially feasible both immediately and on a long-term basis. The exception relates to the listing in Arbor’s application in Schedule 6 of understated proposed wages for certified occupational therapy assistants (COTAs) and licensed physical therapy assistants (LPTAs). The evidence establishes that through inadvertence, Arbor mislabeled the line item designated as COTAs and LPTAs. The item should have borne a description of therapists aides instead of licensed therapists. Had the item been correctly described, the wages listed were salary levels comparable to wages experienced in other Arbor facilities. The error is harmless. The licensed assistants, that is, the COTAs and LPTAs, were included under the therapist line items within Arbor’s Schedule 6. Thus, the total salary expenses reflected in the schedule are accurate and Arbor’s project is financially feasible in the second year of operation. Even if Arbor has misstated the total amount of salaries for therapists and aides in Schedule 6, Arbor’s project would still be financially feasible because the majority of those costs would be allocated to the Medicare unit and would be reimbursed by the Medicare program. Arbor would continue to show a profit (approximately $189,000) in the second year of operation. Arbor’s proposed project is financially feasible in both the short and long terms.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The applications of Arbor Health Care Company (CON Application Numbers 8471L and 8471S) to construct and operate a 120-bed nursing home facility in Citrus County be GRANTED; and the applications of Beverly Savana Cay Manor, Inc. (CON Applications Numbers 8484L and 8484S) and Life Care Health Resources, Inc. (CON Applications Numbers 8479L and 8479S) to construct and operate 120-bed nursing home facilities in Marion and Hernando Counties, respectively, be DENIED. DONE AND ORDERED this 17th day of February, 1998, in Tallahassee, Leon County, Florida. DAVID M. MALONEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 17th day of February, 1998. COPIES FURNISHED: Diane D. Tremor, Esquire John L. Wharton, Esquire Rose, Sundstrom & Bentley, LLP 2548 Blairstone Pines Drive Tallahassee, Florida 32301 R. Bruce McKibben, Esquire Holland & Knight, LLP Post Office Box 810 Tallahassee, Florida 32301-0810 Jay Adams, Esquire Douglas L Mannheimer, Esquire Broad & Cassel Post Office Box 11300 Tallahassee, Florida 32302-1300 Richard A. Patterson, Esquire Office of the General Counsel Agency for Health Care Administration Post Office 14229 Tallahassee, Florida 32317-4229 Jerome W. Hoffman, General Counsel Agency for Health Care Administration Fort Knox Building 3 2727 Mahan Drive Tallahassee, Florida 32308-5403 Sam Power, Agency Clerk Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308-5403
The Issue The issue is whether Respondent is guilty of discrimination in employment based on race, in violation of Section 760.10(1), Florida Statutes.
Findings Of Fact Respondent owns and operates Indian River Estates, which is an adult community in which residents live independently, in an assisted living facility, or in a medical/nursing facility, as their needs dictate at various times. At all material times, Petitioner, who is black, worked as a certified nursing assistant in the medical/nursing facility. The medical/nursing facility at Indian River Estates comprises three units: the East unit (also known as an acute unit), the Alzheimer's unit, and the South unit. The South unit contains a maximum of 24 beds. Petitioner was first employed at Indian River Estates in June 1999 as a per diem certified nursing assistant. In September 2000, she became a fulltime certified nursing assistant. At one point, Petitioner worked in the East unit, but asked for a transfer because she had felt that a supervising nurse had been "harassing" her. Petitioner provided no other details in support of this assertion. As a result of Petitioner's complaint, Respondent transferred her to the South unit. The record provides no basis for a finding of unlawful discrimination in the treatment that Petitioner received from her supervisor in the East unit. In June 2004, shortly after being transferred to the South unit, Petitioner began a medical leave of absence. She returned to work in January 2005. Because Petitioner was out of work considerably in excess of 12 weeks, Respondent filled her fulltime position with a new employee. Pursuant to its employee policies, which are consistent with the federal Family and Medical Leave Act, Respondent guarantees a person's job only when the employee takes no more than 12 weeks of leave within a 12-month period. When Petitioner was ready to return to work in January 2005, her old job was no longer available. However, Respondent re-hired her as a per diem certified nursing assistant and returned her to fulltime status when an opening occurred. Petitioner cites several other white employees whom, she claims, Respondent treated preferably when they took medical leave. However, each of their cases is distinguishable. One returned from medical leave within 12 weeks. Two were granted brief extensions of the 12 weeks, but never returned to work. The last was granted a three-week extension of the 12 weeks, but returned to work after the extension expired; however, he regained his old job because Respondent had not yet filled it. Although Petitioner has provided a little more detail concerning her return to work from medical leave than she did about her harassment claim, again, the record provides no basis for a finding of unlawful discrimination in the handling of her medical leave or the reassignment of job duties following her subsequent re-hiring. While working in the South unit, Petitioner served as one of two certified nursing assistants. A licensed practical nurse served as the immediate supervisor of the two certified nursing assistants. The licensed practical nurse reported directly to the director of nursing at Indian River Estates. On April 5-6, 2005, Petitioner worked the shift from 11 p.m. to 7 a.m. B. H. was an 88-year-old resident, who was new to the South unit. A former nurse herself, B. H. sometimes lived in the medical unit, when her condition required, but at other times lived in an apartment upstairs, when her condition permitted. B. H.'s diagnoses included a history of breast cancer and functional decline. B. H. was in hospice care as of April 6, 2005. Nurses Progress Notes on April 4, 2005, indicate that B. H. was resisting her prescribed medications, but would take them after repeated persuasion. At 6:00 p.m. on April 5, B. H. received her normal administration of Ativan, which is a mild tranquillizer, from the licensed practical nurse then on duty. When Petitioner and her coworkers started arriving around 10:30 p.m. for the next shift, they found B. H. in an agitated state. Petitioner and the other certified nursing assistant working the 11-7 shift informed Francine Scott, who was the licensed practical nurse for this shift, that B. H. was unsettled. Ms. Scott advised the certified nursing assistants to place the bed alarm so that they could monitor B. H. more easily. Despite repeated efforts of the two certified nursing assistants, B. H. remained agitated. On one occasion, one of the certified nursing assistants found B. H. had half climbed out of her bed and was at risk of injuring herself. The certified nursing assistants told Ms. Scott that they needed to do something more to settle down B. H., and Ms. Scott told them to bring her from her room to the desk. When she saw B. H., Ms. Scott observed that B. H. was bleeding from wounds to both lower legs, evidently from thrashing in her bed. Ms. Scott tried to apply a dressing to a leg wound, but B. H. declined treatment. Ms. Scott offered B. H. some Ativan orally, but B. H. refused to take it, so Ms. Scott left her alone at the front desk and returned to her work. About an hour later, Ms. Scott asked B. H. what had happened. B. H. responded by screaming, "don't touch me," "police," "help," and "I want to go home." Staff from the East unit came to the South unit to find out what was wrong. Ms. Scott directed a certified nursing assistant to take B. H. to a nearby activity room, from which B. H. would less likely disturb other residents. Ms. Scott telephoned B. H.'s physician and reported that B. H. was agitated and cut, but had refused wound treatment and Ativan. Ms. Scott told the physician that she needed help, and the physician ordered Ativan administered by injection. At about 3:00 a.m., Ms. Scott informed B. H. that her physician had ordered the Ativan to help her calm down. Ms. Scott administered Ativan intramuscularly to B. H. Due to the size of the needle, Ms. Scott had to administer two injections in order to administer the prescribed dosage. B. H. did not want to take the injections. While Ms. Scott was trying to administer the injections, B. H. swung her arms from side to side, while seated in her wheelchair. Ms. Scott directed Petitioner to restrain B. H., so Ms. Scott could administer the injections. At times standing and at times seated next to B. H., Petitioner pinned down B. H.'s arms, so they were folded across her chest, while Ms. Scott injected the Ativan. At one point, B. H. bit Petitioner on her left forearm, leaving bite marks. B. H. remained agitated through the rest of the night, but, by breakfast that day, she had calmed down, as her husband had come to the unit to help calm her. By the afternoon, B. H. was taking her Ativan voluntarily and allowed a hospice nurse to dress her leg wounds. Later on April 6 or the following day, B. H. complained about the treatment that she had received from Ms. Scott and Petitioner. Respondent initiated an investigation that resulted in the immediate suspension of Ms. Scott and Petitioner and their eventual termination for violating B. H.'s right to refuse treatment and other rights. At all material times, Respondent maintained a written policy enumerating residents' rights. Paragraph 6 recognizes: The right to be adequately informed of his/her medical condition and proposed treatment, unless otherwise indicated by the Resident's Physician; to participate in the planning of all medical treatment, including the right to refuse medication and treatment unless otherwise indicated by the Resident's Physician; and to know the consequences of such actions. Paragraph 9 recognizes: The right to be treated courteously, fairly, and with the fullest measure of dignity and to receive a written statement and an oral explanation of the services provided by the Licensee, including those required to be offered on an as-needed basis. Paragraph 10 recognizes: The right to be free from mental and physical abuse and from physical and chemical restraints, except those restraints authorized in writing by a Physician for a specified and limited period of time or as are necessitated by an emergency. In case of an emergency, restraints may be applied only by a qualified Licensed Nurse who shall be [sic] set forth in writing the circumstances requiring the use of restraints; and in the case of use of a chemical restraint, a Physician shall be consulted immediately thereafter. Restraints may not be used in lieu of staff supervision or merely for staff convenience, for punishment, or for reasons other than Resident protection or safety. It is doubtful that Respondent's statement of residents' rights prohibits the administration of Ativan without B. H.'s consent or the nonabusive touching of B. H. to administer the Ativan. Paragraph 6 is probably inapplicable because the physician, knowing that B. H. had refused the medication, directed the administration of Ativan. Paragraph 9 is probably inapplicable. Although Petitioner's handling of B. H. was rough-handed, B. H. had already injured herself while in her bed, had risked even greater injury while trying to climb out of her bed, and had disrupted the South unit and part of the East unit, so the administration of Ativan had acquired a degree of urgency for the welfare of B. H. and the welfare of other residents. Paragraph 10 appears to have required a prior written authorization from the physician for the use of Ativan, but not in an emergency, and the above-described scenario at least approached qualifying as an emergency. Paragraph 10 imposes a burden on the licensed practical nurse when using restraints--probably, physical restraints--to document the use and necessity. Paragraph 10 imposes a burden to consult a physician immediately after using a chemical restraint. It is unlikely that Petitioner violated this provision because: 1) Ms. Scott consulted with the physician before using a chemical restraint and 2) the burden of consultation falls on the person using the restraint--Ms. Scott--not her subordinate, who merely follows her direction. However, as noted in the Conclusions of Law, B. H. had a clear right to refuse the Ativan, regardless of the direction of her physician. And Ms. Scott and Petitioner violated that right. Likewise, B. H. obviously has a right not to be physically abused, and the marks that Petitioner left on B. H.'s arms at least raise a legitimate fact question of such abuse. Respondent undertook a prompt, fair, and reasonably thorough investigation. The Department of Children and Family Services was contacted about possible abuse. The agency investigator told Respondent's staff that B. H.'s rights had been violated. Respondent's staff reached the same conclusion. Finding that Petitioner had violated B. H.'s rights, Respondent had a legitimate reason to terminate Petitioner, as it did Ms. Scott. Petitioner failed to produce any evidence whatsoever of a racial motive and has thus failed to prove that the reason cited by Respondent is pretextual. Petitioner's scant effort to show preferential treatment to other similarly situated employees failed to provide a basis on which to infer race discrimination. Petitioner testified that she had heard of employees who had abandoned a patient, who then died, but Respondent never fired the employees. However, Petitioner offered no direct evidence of this event. Absent detailed evidence of this alleged incident, it is impossible to use this briefly mentioned incident for the purpose for which Petitioner offers it. As noted above, the record does not support Petitioner's allegations of racial discrimination in harassment from a supervisor on the East unit or in the reassignment of duties following her return from an extended leave of absence. Implicitly abandoning these claims, Petitioner testified that her sole claim of racial discrimination involves her termination for her role in the B. H. incident. Thus, Petitioner did not try to prove racial discrimination in Respondent's handling of the B. H. incident by proving other instances of racial discrimination by Respondent--she admitted that there was none. The record contains no evidence whatsoever of unlawful discrimination based on any illness of Petitioner.
Recommendation It is RECOMMENDED that the Florida Commission of Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 27th day of October, 2006, in Tallahassee, Leon County, Florida. S __ ROBERT E. MEALE 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 October, 2006. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 David E. Block Scott S. Allen Jackson, Lewis, LLP One Biscayne Tower 2 South Biscayne Boulevard, Suite 3500 Miami, Florida 33131 Olivia Lewis 806 Mulberry Street Sebastian, Florida 32958
The Issue The issues are whether Respondent committed the violations alleged in the Administrative Complaint concerning three nursing home residents, whether Petitioner should impose a civil penalty of $2,500 for each violation, whether Petitioner should change the status of Respondent's license from standard to conditional, and whether Petitioner should recover investigative costs.
Findings Of Fact Petitioner is the state agency responsible for licensing and regulating nursing homes in Florida. Respondent is licensed to operate an 87-bed nursing home located at 3250 12th Street, Sarasota, Florida (the facility). From February 9 through 11, 2004, Petitioner's staff inspected the facility pursuant to regulatory requirements for an annual survey of such facilities (the survey). At the conclusion of the survey, Petitioner issued a document identified in the record as CMS Form 2567L (the 2567 form). The 2567 form alleges violations of federal nursing home regulations that Petitioner has adopted by rule. The Administrative Complaint incorporates the factual allegations from the 2567 form and charges Respondent with committing four violations alleged to be Class II violations defined in Subsection 400.23(8)(b), Florida Statutes (2003). Counts I through III in the Administrative Complaint allege that facility staff committed acts involving residents identified in the record as Residents 14, 7, and 8. Count IV alleges that the allegations in Counts I through III show that Respondent administered the facility in a manner that violated relevant regulatory provisions. Counts I through IV propose an administrative fine of $2,500 for each alleged violation and the recovery of unspecified investigative costs. Count V alleges that the allegations in Counts I through III require Petitioner to change Respondent's license rating from standard to conditional while the alleged deficiencies remained uncorrected. Count I alleges that a staff nurse at the facility abused Resident 14, an elderly female. The substance of the allegation is that the nurse "intentionally caused pain" to Resident 14 by raising the resident's left hand above her head so the resident would open her mouth and allow the nurse to ensure the resident had swallowed her medication. Respondent admitted Resident 14 to the facility on January 31, 2000, with multiple health problems, including anxiety, paranoia, psychosis, delusions, and disorientation due to dementia. Resident 14 was not ambulatory and suffered poor wheel chair positioning for which she had been evaluated and received therapy. Resident 14 was non-verbal, angry, aggressive, combative with staff and other residents, displayed territorial aggression, and a tendency to strike out at others. Prior to admission, Resident 14 had suffered a fracture of the left arm resulting in a limited range of motion in her left shoulder of 60 degrees. At the time of the survey, Resident 14 was approximately 93 years old. Two surveyors observed a staff nurse administering medication to Resident 14 while the resident was sitting in her wheel chair in her room. Resident 14 did not respond to repeated cues from the nurse to open her mouth so the nurse could ensure the resident had swallowed her medication. The nurse continued to observe Resident 14 for some indication the resident had not swallowed her medication and offered pudding to the resident. Resident 14 remained unresponsive. The nurse directed a certified nurse assistant (CNA) to give Resident 14 breakfast and left to care for other residents. The surveyors asked the nurse to return to the room to ensure that Resident 14 had swallowed her medication. Resident 14 did not respond to additional cues from the staff nurse to open her mouth because the resident was distracted by the surveyors. The staff nurse attempted to redirect the attention of the resident to the nurse's cues to open her mouth by holding the resident's left hand and raising her hand and arm. Resident 14 opened her mouth, and the staff nurse observed no medication in the resident's mouth. The disputed factual issues call into question how quickly and how high the staff nurse raised the left hand of Resident 14, whether the resident suffered pain, and whether the staff nurse knew the action would cause pain. Although Resident 14 was non-verbal, Count I alleges, in relevant part, that Resident 14 cried "OW" when the staff nurse, without warning, raised the resident's hand over her head. A preponderance of evidence does not show that the staff nurse lifted the hand of Resident 14 in an abrupt manner. During cross-examination of the surveyor, counsel for Respondent conducted a reenactment of the alleged incident. The witness verified the manner in which the person acting as the staff nurse in the reenactment raised the left hand and arm of the person acting as Resident 14. The demonstration did not show the staff nurse acted abruptly. The reenactment showed that the description of the incident by the surveyor was less than persuasive. Petitioner admits in its PRO that a determination of whether the staff nurse raised the resident's hand gently or abruptly is a "matter of perspective." Petitioner argues unpersuasively at page 14 in its PRO that the surveyor's perception should be accepted because: Clearly, the surveyor would not have made comment if the resident had been treated in a gentle manner. Petitioner cites no evidence or law that precludes the written statement provided by the staff nurse during the facility's investigation of the incident from enjoying a presumption of credibility equivalent to that Petitioner claims for the report of the surveyor. The staff nurse had been a nurse at the facility for 19 years without any previous complaints or discipline and had ample experience with residents that suffered from dementia. The nurse had cared for Resident 14 for most of the four years that Resident 14 had been a resident at the facility. Irrespective of how fast and high the staff nurse raised the hand of Resident 14, a preponderance of evidence does not show that Resident 14 suffered an injury or harm that is essential to a finding of abuse. The surveyor asked Resident 14 if the resident had been in pain prior to the incident. Resident 14 was "unable to speak," according to the surveyor, but nodded affirmatively. Resident 14 did not indicate the source or location of any pain, and there is no evidence that the surveyor asked Resident 14 to indicate to the surveyor where the resident was experiencing pain. After the incident, the surveyors undertook no further inquiry or investigation, did not question the nurse or the resident further, and refused a request by facility administrators for a written statement describing the incident. The surveyors at the facility did not make a determination of whether the incident resulted in "harm" to Resident 14. Rather, the allegation of harm arises from Petitioner's employees who did not testify at the hearing. The determination of harm is uncorroborated hearsay, and the trier of fact has not relied on that determination for any finding of fact. Upon learning of the incident, Respondent's nursing staff immediately examined Resident 14 for injuries, had Resident 14 examined by her physician, and had Resident 14 x-rayed for possible injuries. No injury was found. Resident 14 did not complain of pain when her physician performed a range of motion examination on the suspect arm. Resident 14 was able to move both of her arms without pain. The medical records for Resident 14 and the testimony of her occupational therapist show that the resident had use of her left arm. Resident 14 frequently flailed both arms in an effort to strike others. Notes in the medical records show that Resident 14 "lashes out," "swings her arms," was "physically abusive to staff when attempting to provide care," and "refused to open mouth and became agitated and combative." The limited range of motion in the left shoulder of Resident 14 did not prevent Resident 14 from raising her left hand above her head while seated in a wheel chair. Resident 14 sat in a wheel chair with a forward pelvic thrust, causing her to slump with a lateral lean to the left. The wheel chair position effectively lowered the resident's head, reduced the distance between her head and left hand, and enabled the resident to raise her left hand above her head without pain. Count II alleges that Respondent failed to assist Resident 7 in "coping with changes in her living arrangements in a timely manner" after Resident 7 became upset that her guardian was selling her home. The allegation is not supported by a preponderance of evidence. Respondent admitted Resident 7 to the facility in September of 2003. Prior to admission, the circuit court for Sarasota County, Florida, entered an order appointing a guardian for Resident 7. In relevant part, the court order authorized the guardian to determine residency of Resident 7 and to manage her property. Prior to December 28, 2003, Resident 7 was reasonably content. Social service's notes in October 2003, show that Resident 7 was "alert with no mood or behaviors." Nurses notes in November 2003, show Resident 7 to be "pleasant" with a "sense of humor." On December 28, 2003, Resident 7 became angry when her guardian revealed plans to sell the resident's home. Resident 7 continued to exhibit anger for several weeks. On January 6, 2004, Respondent conducted a care plan conference with the guardian for Resident 7, discussed Resident 7's emotional state, and obtained the guardian's consent for counseling. Pursuant to the care plan, Respondent's social services staff met with Resident 7 regularly and provided psychological counseling twice a week. Facility staff did not undertake discharge planning for Resident 7. Staff provided other assistance to the resident, but that assistance was minimal and consisted mainly of giving Resident 7 telephone numbers to contact the Long Term Care Ombudsman in the area and the attorney for the guardian. The sufficiency of the other assistance provided by Respondent is not material because the court convened a second hearing to consider the objections of Resident 7 to her guardian and to consider a competency examination by another physician. On February 6, 2004, the court entered an order denying the resident's suggestion of capacity and authorizing the guardian to sell the residence. The allegation that Respondent should have undertaken discharge planning is not supported by a preponderance of the evidence. Pursuant to two court orders, Resident 7 continued to be in need of a nursing home level of care, and her expectations for discharge to a lower level of care were unrealistic. Count III alleges that a facility staff nurse failed to administer analgesic medication to Resident 8 causing "continued pain and emotional stress to the resident." Resident 8 experienced chronic pain from a joint disorder. A care plan for pain management, in relevant part, authorized Tylenol as needed. A preponderance of evidence does not show that Respondent failed to provide Tylenol to Resident 8 in accordance with the care plan. During the survey, a surveyor observed staff at the facility reinserting a catheter into a vein of Resident 8. The witness for Petitioner testified that the procedure did not cause Resident 8 to experience pain. It is undisputed that Resident 8 did not request pain medication and that no pain medication was medically required prior to the procedure. Respondent did provide Resident 8 with a prescription medication to calm the resident. The preponderance of evidence does not show that Respondent failed to ensure that Resident 8 obtained optimal improvement or that Resident 8 deteriorated. Petitioner submitted no evidence that Resident 8 experienced any lack of improvement or decline in functioning or well-being. Count IV in the Administrative Complaint alleges that the allegations in Counts I through III show that Respondent failed to administer the facility in a manner that enabled the facility to use its resources effectively and efficiently to maintain the highest practical well-being of Residents 14, 7, and 8. For reasons previously stated, the preponderance of evidence does not show that Respondent committed the acts alleged in Counts I through III. Without the violations charged in Counts I, II, or III, the charges in Count IV are moot. Assuming arguendo that the staff nurse abused Resident 14, a preponderance of evidence does not show that Respondent failed to take action that could have prevented such abuse. Petitioner's surveyor was unable to explain in her testimony how Respondent could have prevented the alleged abuse. The surveyor did not report the incident to management at the facility for approximately 1.5 hours. Management immediately suspended the staff nurse and undertook an investigation required by law. Petitioner's surveyors refused to provide written statements describing the incident. The staff nurse provided a written statement that Respondent included as part of its investigation and report to Petitioner. Respondent maintains adequate policies and procedures for background screening and regular training for its staff relating to abuse and neglect of residents. Respondent had accomplished all background screening and abuse training requirements for the staff nurse involved in the incident. Respondent had no information in the nurse's history that would have enabled the facility to predict any potential for this staff nurse to intentionally harm a resident. A preponderance of evidence does not show that Respondent failed to administer the facility in a manner that would ensure the highest practical well-being for Resident 7. Two court orders determined that Resident 7 was incompetent and authorized the guardian to sell the resident's real property. The opinion of a surveyor that Resident 7 was "clearly competent" does not eviscerate the findings of the court. A preponderance of evidence does not show that Respondent failed to administer the facility in a manner that would ensure the highest practical well-being for Resident 8. Respondent maintained an adequate pain management care plan for Resident 8 that included Tylenol as needed. It is undisputed that the care plan did not require Tylenol before or after the re-insertion of the catheter into the vein of Resident 8, that insertion of the catheter caused Resident 8 no pain, that Tylenol was not medically required before or after the procedure, and that Respondent provided Resident 8 with a stronger prescription medication for anxiety. Count V of the Administrative Complaint alleges that the allegations in Counts I through IV require Petitioner to change the status of Respondent's license from standard to conditional. In the absence of the violations charged in Counts I through IV, there is no factual basis to support the proposed change in the status of Respondent's license.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent not guilty of committing the violations charged in the Administrative Complaint. DONE AND ENTERED this 4th day of February, 2005, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 2005. COPIES FURNISHED: Alfred W. Clark, Esquire 117 South Gadsden Street, Suite 201 Post Office Box 623 Tallahassee, Florida 32302-0623 Gerald L. Pickett, Esquire Agency for Health Care Administration Sebring Building, Suite 330K 525 Mirror Lake Drive, North St. Petersburg, Florida 33701 Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration Fort Knox Building, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308 Alan Levine, Secretary Agency for Health Care Administration Fort Knox Building, Suite 3116 2727 Mahan Drive Tallahassee, Florida 32308
