The Issue (1) Whether Respondent, Rockledge NH, L.L.C., d/b/a Rockledge Health and Rehabilitation Center, should be given a "Conditional" or "Standard" license effective February 12, 2002, or March 7, 2002; (2) Whether Respondent is subject to an administrative fine in the amount of $2,500.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made: Respondent operates a skilled nursing home located at 587 Barton Boulevard, Rockledge, Brevard County, Florida. Petitioner is the State of Florida agency responsible for licensure and regulation of nursing home facilities in Florida. Respondent was, at all times material to this matter, licensed by Petitioner and required to comply with applicable rules, regulations, and statutes, including Sections 415.1034 and 400.022, Florida Statutes. On or about March 7, 2002, Petitioner conducted a complaint survey of Respondent. Petitioner's surveys and pleadings assign numbers to residents in order to maintain the residents' privacy and confidentiality. The resident who was the subject of the Class II deficiency from the March 7, 2002, complaint survey has been identified as Resident number 1, with the initials "H.C." Resident number 1 is 82 years old and was admitted to Respondent's facility on January 19, 2002, with diagnoses of dementia, back pain from multiple falls, hypertension, osteoarthritis, recurrent bronchitis, and chronic obstructive pulmonary disease. At all times material to this matter, Resident number 1 was a "vulnerable adult" as defined in Subsection 415.102(26), Florida Statutes. On February 5, 2002, at approximately 9:50 p.m., a certified nursing assistant employed by Respondent went into Resident number 1's room to see why Resident number 1 was yelling. Upon entering the room, the certified nursing assistant found Resident number 1's bed positioned in such a way that his head was down and his feet were up. A blanket had been tied across the "up" end of the bed securing Resident number 1's feet allowing him to be held in a "head down" position. The certified nursing assistant who investigated the yelling "pulled on the blanket to verify that it was tied down." There were no prescriptions or written orders justifying the restraint of Resident number 1. The certified nursing assistant who found Resident number 1 in the above-described position identified a different certified nursing assistant, one provided to Respondent by a staffing agency, as the caregiver for the shift in question. The alleged abusive act was perpetrated by the certified nursing assistant provided by the staffing agency. The certified nursing assistant provided by the staffing agency placed Resident number 1 in a position that was contraindicated for a person with a diagnosis of chronic obstructive pulmonary disease. Respondent's certified nursing assistant waited approximately two days before reporting the alleged abusive act to the abuse hotline, Respondent's abuse coordinator or the Director of Nursing. A medical record review indicated that Resident number 1 was sent to the hospital on February 22, 2002, for shortness of breath and again on February 26, 2002, for difficulty in breathing and lung congestion. The History and Physical from the hospital, dated February 23, 2002, revealed that Resident number 1 was sent to the hospital because of progressive shortness of breath. Resident number 1's lower extremities were documented to have been severely edematous with "skin changes subsequent to chronic stasis and edema with excoriation, loss of circulation, blisters, etc." The certified nursing assistant provided by the staffing agency had a full resident assignment and cared for several residents the day of the alleged abusive act. After the discovery of the alleged abuse, the certified nursing assistant provided by the staffing agency continued to care for Resident number 1 and other residents assigned to her for approximately one hour or until the end of her shift. Documentation, dated March 8, 2002, from the staffing agency, confirmed that the certified nursing assistant provided by the staffing agency did have education in the current rules and regulations related to the abuse and neglect of the elderly. Petitioner's surveyor believed that the failure to immediately report the alleged abuse constituted a Class II deficiency because the certified nursing assistant provided by the staffing agency was allowed to continue to care for Resident number 1 and other residents until the shift ended and could have further abused Resident number 1 or other residents in her care.
Recommendation Based on the Foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administrative Complaints in this matter be dismissed and Respondent's licensure status be returned to Standard for the period it was Conditional and that no administrative fine be levied. DONE AND ENTERED this 18th day of February, 2003, in Tallahassee, Leon County, Florida. JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of February, 2003. COPIES FURNISHED: Joanna Daniels, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Alex Finch, Esquire Goldsmith, Grout & Lewis, P.A. 2180 North Park Avenue, Suite 100 Post Office Box 2011 Winter Park, Florida 32790-2011 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308
The Issue Whether Petitioner's stay at The Rehabilitation Center at Hollywood Hills LLC ("Rehab Center"), a skilled nursing facility, is a covered benefit pursuant to the State of Florida Employees' HMO Plan ("Plan") administered by AvMed.
Findings Of Fact Respondent is the state agency charged with administering the state employee health insurance program pursuant to section 110.123, Florida Statutes. At all times material hereto, Petitioner was a member of the Plan. AvMed is the third party administrator for the Plan at issue in this cause. As the third party administrator, AvMed provides utilization and benefit management services. On or about September 21, 2016, Petitioner suffered a hemorrhagic cerebral vascular accident, commonly referred to as a stroke, while in her home. Petitioner was transported to Jackson Memorial Hospital for treatment. Petitioner was discharged from Jackson Memorial Hospital on October 17, 2016. Upon discharge on October 17, 2016, Petitioner was admitted to the Rehab Center. On October 11, 2016, AvMed received a pre-authorization request for inpatient admission for rehabilitative services at the Rehab Center from Petitioner's medical provider. On the same day, AvMed denied the request for pre-authorization on the basis that an inpatient admission to the skilled nursing facility for the purpose of rehabilitation is not a covered benefit. A copy of the denial letter was sent to Petitioner, the physician that made the request for coverage, the Rehab Center, and was provided to the family at the hospital by a case manager. Despite notice of the denied pre-authorization by AvMed, six days later, on October 17, 2016, Petitioner was admitted into the Rehab Center. Petitioner remained at the facility until November 11, 2016. While at the facility, Petitioner experienced pain and swelling in her right leg and was transferred to Memorial Hospital on November 11, 2016, on an emergency basis. Petitioner had a deep vein thrombosis ("DVT") blood clot and had a DVT filter inserted. Petitioner remained at the hospital until November 15, 2016. Although Petitioner was not actually "discharged" from the Rehab Center prior to her emergency admission to Memorial Hospital, Memorial Hospital submitted a pre-authorization request to return Petitioner to the Rehab Center for the purpose of rehabilitation. On November 15, 2016, AvMed denied the request on the basis that inpatient stays for the purpose of rehabilitation are not a covered benefit. A copy of the denial letter was provided to Petitioner, the requesting physician, the Rehab Center, and was provided to the family by the case manager at the hospital. Despite being provided notice of the denial by AvMed, on November 15, 2016, Petitioner transferred back to the Rehab Center where she remained until discharge on January 14, 2017. On November 30, 2016, Petitioner, by and through her daughter, submitted a request for a Level I Appeal to AvMed. In the request for the Level I Appeal, Petitioner's daughter stated it is "very important that [Petitioner] gets proper rehabilitation care . . . [p]lease advise if rehab treatment will be covered." The Level I Appeal request only included an attachment of the denial of pre-authorization for the stay commencing in November 2016. There was no indication that Petitioner was appealing the pre-authorization denial from October. However, Petitioner referenced both denials in the Level II Appeal request; therefore, both stays were considered on the Level II Appeal, and both stays are being addressed in this action. Pursuant to the plan document, rehabilitative services is a covered benefit but is subject to certain restrictions. Specifically, the Plan states, in pertinent part: Rehabilitative services shall not be covered when: The Health Plan member was admitted to a Hospital or other facility primarily for the purpose of providing rehabilitative services; or The rehabilitative services maintain rather than improve a level of physical function, or where it has been determined that the services shall not result in significant improvement in the Health Plan Member's condition within a 60-day period. Resp. Ex. 1, at 46 (emphasis added). The Plan defines "Other Health Care Facility" as follows: Any licensed facility, other than acute care Hospitals and those facilities providing services to ventilator dependent patients, which provides inpatient services such as skilled nursing care and rehabilitative services. Resp. Ex. 1, at 9. The Rehab Center is an "other health care facility" pursuant to the terms of the Plan. The Rehab Center provides skilled care, including skilled nursing and rehabilitation services. Skilled nursing facilities provide two types of services. The first type of service is custodial care. Custodial care is when a person lives in the facility for reasons other than healthcare needs. The second type of service is skilled care. There are two types of skilled care: skilled nursing services and rehabilitation services. Skilled nursing is applicable when a patient needs the services of someone with medical licensure equal to or greater than a licensed registered nurse, and those services are needed on a daily basis. An example of skilled nursing services is administration of intravenous medication, wound care, tracheotomy care, and assistance with a ventilator. On the other hand, rehabilitation services do not require the services of a medical professional with a minimum licensure of registered nurse. Rather, rehabilitation services are comprised of physical therapy, occupational therapy, and speech therapy. Occupational therapy is a covered benefit per the Plan only if the therapy is provided as a home health service, a hospice service, or as treatment for Autism Spectrum Disorder. The occupational therapy services received by Petitioner were in a skilled nursing facility and were not for the purpose of treatment of Autism; therefore, the therapy would not be a covered service under the Plan. The Level I Appeal was reviewed by Edwin Rodriguez, M.D., a Medical Director at AvMed. Dr. Rodriguez specializes in internal medicine, the practice of medical care for the adult population. Approximately 60 to 65 percent of the practice of internal medicine is geriatric medicine, which is the specialty that focuses on medical care for the elderly. As a practicing physician, Dr. Rodriguez has worked in a skilled nursing facility. A primary function of Dr. Rodriguez's current position is utilization management. Utilization management includes the process of reviewing a request for coverage to determine whether the service is a covered benefit pursuant to the Plan and, if it is a covered benefit, reviewing the service for medical appropriateness. In Dr. Rodriguez's opinion, Petitioner's stays at the Rehab Center commencing in October and in November were primarily for the purpose of rehabilitation, and therefore, not a covered benefit. Dr. Rodriguez testified that the discharge summary from Jackson Memorial Hospital indicated that Petitioner needed rehabilitation services. Specifically, the discharge summary recommended a "protracted rehab course in the setting of a skilled nursing facility." The discharge summary also recommended physical therapy, occupational therapy, and speech therapy as follow-up care. Dr. Rodriguez testified that the Jackson Memorial Hospital discharge summary did not indicate any need for skilled nursing. The discharge summary indicated that at the time of discharge, Petitioner had a new onset of Atrial Fibrillation ("AFib"), a resolved urinary tract infection, and a Foley catheter. Dr. Rodriguez testified that none of these conditions required skilled nursing. Dr. Rodriguez testified that Petitioner's AFib was rate-controlled, meaning it was stabilized, and therefore, did not require skilled nursing care. The discharge summary indicated Petitioner had a urinary tract infection, which had resolved at the time of discharge. Dr. Rodriguez testified that a urinary tract infection does not require skilled nursing unless intravenous antibiotics are required. There was no evidence that Petitioner was taking any intravenous medications. All of the medications listed in the medical records from Jackson Memorial Hospital, Memorial Hospital, and the Rehab Center were oral medications that did not require any skilled care. Dr. Rodriguez further testified that although the discharge summary indicated that Petitioner had dysphagia, or difficulty swallowing, that Petitioner passed a swallow test prior to discharge from Jackson Memorial Hospital. Dr. Rodriguez testified that Petitioner's Foley catheter did not require skilled nursing. A Foley catheter is a thin tube that goes directly into the bladder through the urethra. A Foley catheter does not require skilled care, in fact, many people leave skilled nursing facilities with Foley catheters. Dr. Rodriguez testified that Petitioner's specific medical conditions and physical limitations did not require skilled care for the Foley catheter. Petitioner's catheter was to be changed once per month, and according to the Rehab Center records, the catheter was changed on an outpatient basis by a physician located outside of the Rehab Center. Furthermore, pursuant to the Plan, catheter care is considered "custodial care" and is excluded from coverage. Dr. Rodriguez testified that the records from the Rehab Center for the stay commencing in October indicate Petitioner's stay was for rehabilitation services, specifically occupational therapy, speech therapy, and physical therapy. The records include an occupational therapy care plan, occupational therapy progress notes, and a speech therapy plan for treatment. The records further include progress notes that include an "assessment and plan" to address the hemorrhagic cerebral vascular accident to include physical therapy and occupational therapy. Dr. Rodriguez testified that the records did not indicate any need for skilled nursing care. Dr. Rodriquez testified that the records from the Rehab Center for the stay commencing in November also evidence that Petitioner was primarily receiving rehabilitative services, specifically physical therapy and occupational therapy services. Petitioner presented to the Rehab Center with motor control deficits, right-side balance hemiplegia, balance deficits, impaired coordination, poor functional activity tolerance, and poor safety awareness. A physical therapy plan was completed in order to address these issues. Petitioner also presented with a decline in her functioning activities of daily living, such as self-feeding and functional mobility. An occupational therapy plan was completed in order to address these issues. Dr. Rodriguez testified that there was no documentation as to the need for skilled nursing care. The claim forms submitted by the Rehab Center to AvMed also indicate that Petitioner was primarily receiving rehabilitation services, specifically physical therapy, occupational therapy, and speech therapy. On December 1, 2016, AvMed denied the Level I Appeal on the basis that the inpatient stay commencing in November for the purpose of rehabilitation is not a covered benefit. By letter dated December 5, 2016, a request for a Level II Appeal was submitted by Petitioner's daughter, Marie Wright. The letter requests coverage for acute rehabilitation. The letter specifically alleged that AvMed refused to "grant [Petitioner] acute and skilled rehabilitation to put [Petitioner] on her feet again." Ms. Wright states that she wants Petitioner to "receive the Acute Rehabilitation [Petitioner] so desperately needs and deserves." As supportive documentation for the Level II Appeal request, Ms. Wright attached a physical therapy evaluation from Memorial Hospital. Kathy Flippo, a registered nurse and employee of Respondent, reviewed the Level II Appeal. Ms. Flippo's opinion was that the stays at the Rehab Center were primarily for purposes of rehabilitation. Ms. Flippo testified that the focus of the treatment at the Rehab Center for both stays was rehabilitation services to provide assistance and/or training with activities of daily living, such as moving in bed, getting out of bed, and feeding. Ms. Flippo testified that she reviewed the records from Jackson Memorial Hospital, the Rehab Center, and Memorial Hospital, and there was no indication that Petitioner needed skilled nursing services. Ms. Flippo testified that Petitioner's medications were all oral and the Foley catheter did not require skilled care. Ms. Flippo testified that the statements of Petitioner's representative, Ms. Wright, further confirmed that the intent was for Petitioner to receive rehabilitation at the Rehab Center. By letter dated December 21, 2016, Respondent notified Petitioner of the decision to deny the claim as a non-covered service. Ms. Wright testified that her mother needed total care for all of her needs and was not in need of rehabilitation services until after Petitioner's discharge from the Rehab Center on January 14, 2017. Ms. Wright testified that she did call PeopleFirst to request a change in Petitioner's health plan as rehabilitation services were not covered under the current AvMed plan. Ms. Wright stated that she did not recall the timeframe of the call but that she was asking about the possibility of changing the plan, not because Petitioner needed rehabilitation "right then and there," but that she was looking at "options for down the road." However, the call records from PeopleFirst evidence that Ms. Wright contacted PeopleFirst on October 19, 2016, in an effort to "upgrade" Petitioner's insurance to a plan that covers rehabilitation services. During the call, Ms. Wright was informed that any changes to the plan would not take effect until January 1, 2017. In response, Ms. Wright stated, "Ok, so that won't help us, I mean it could help us for her second step of rehab but it is not going to help us now. Right now we are you know stuck in the middle between acute rehab and Avmed and Medicare so I was hoping that I could just fix it by upgrading her plan if it was going to work immediately." Furthermore, Ms. Wright's own statements in the Level I Appeal request dated November 30, 2016, and the Level II Appeal request dated December 5, 2016, both indicate that Ms. Wright's intent was to secure coverage for rehabilitation services well before Petitioner's discharge on January 14, 2017. Petitioner's sister, Lorraine Simpson's, call to PeopleFirst also confirms that Petitioner was placed in the Rehab Center for the purpose of obtaining rehabilitation services. Ms. Simpson called PeopleFirst on December 27, 2016, in order to upgrade Petitioner's policy. Ms. Simpson stated Petitioner "needs rehab and no one is able to give it to her because she hasn't got the coverage." Additionally, the family placed calls to AvMed regarding coverage of inpatient rehabilitation at a Rehab Center. On October 8, 2016, three days prior to the pre-authorization denial and seven days prior to admission to the Rehab Center, Ms. Simpson was notified that inpatient rehabilitation services at a skilled nursing facility are not a covered benefit. On October 14, 2016, three days before Petitioner was admitted to the Rehab Center, Ms. Simpson again contacted AvMed and was notified that the Plan does not cover inpatient admissions for the purpose of rehabilitation. At no time was Petitioner or her family advised that either stay at the Rehab Center would be covered. While Ms. Wright and Ms. Simpson testified that Claudia Martinez with AvMed notified them that the stay commencing in October would be covered, Ms. Martinez testified that she did not tell Petitioner or her family that the stay would be covered and that, in fact, she told them that the request for pre-authorization was denied.2/ Ms. Martinez further testified that Ms. Wright asked her about changing the health plan since rehabilitation services were not covered, and Ms. Martinez informed Ms. Wright to contact member services. Ms. Martinez confirmed that AvMed does not have any authorizations on file for the stays in question. Ms. Wright testified that AvMed's approval of 100 days at the facility was documented in Petitioner's Exhibit 2. However, the form entitled "Insurance Co-Payment" is not a document generated or used by AvMed. The document itself has the name of the skilled nursing facility, The Rehabilitation Center at Hollywood Hills LLC, on the bottom. Furthermore, the document states that the policy covers up to 100 days at a skilled nursing facility, which corresponds with Medicare's maximum for coverage as opposed to the State of Florida coverage for skilled nursing which covers a maximum of 60 days in a skilled nursing facility. Due to Petitioner's age, she was eligible for Medicare. The Plan provides for coordination of benefits when a member is Medicare eligible. When the member is an active employee, the Plan is typically the primary payor while Medicare is the secondary payor.3/ In a case for which the Plan is a primary payor, and the medical claim at issue is not a covered benefit, Medicare is able to provide coverage for the claim. In this case, Medicare covered a portion of Petitioner's stay at the Rehab Center. Unlike the Plan at issue in this action, Medicare does not limit or exclude coverage for rehabilitation stays in a skilled nursing facility. Medicare covers up to 100 days in a skilled nursing facility. Medicare typically covers 100 percent of the inpatient stay for the first 20 days. For days 21 through 100, the member is responsible for a co-payment of $161.00 per day.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of State Group Insurance, issue a final order denying Petitioner's claim for coverage of the stays at The Rehabilitation Center at Hollywood Hills LLC, and further, denying Petitioner's request for attorney's fees and costs. DONE AND ENTERED this 11th day of August, 2017, in Tallahassee, Leon County, Florida. S MARY LI CREASY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 2017.
The Issue The issue for consideration in this matter is whether Petitioner should be granted an exemption from disqualification from working with residents or patients of nursing homes, home health agencies, companion services, or nurse registries.
Findings Of Fact In 1991, Petitioner, a certified nursing assistant (CNA), was convicted of two counts of armed robbery of a bank committed in 1988 in the State of Florida. A review of her arrest record indicates she had previously been tried for homicide and acquitted due to a diagnosed multiple personality disorder (MPD). As a result of that incident she was confined to the state mental hospital at Chattahoochee until just before the 1988 robbery. The treatment she received for her condition subsequent to the homicide was not successful. The armed robbery for which she was convicted took place while she was in the control of one of her alter egos. The conviction of armed robbery was sufficient to disqualify her from eligibility for employment working with residents or patients of nursing homes, home health agencies, homemaker- companion-sitter services, or nurse registries. Immediately after her conviction of armed robbery, Petitioner was placed in a mental health facility where she remained under treatment for her MPD for several months. Upon her release, she went back to Ft. Myers, where she had previously lived, and subsequently moved to St. Petersburg, where she took several jobs as a CNA. No one was injured in the bank robberies she was involved in. She was not aware of the incidents at the time she committed them but can now recall what happened because she has completely reintegrated the several personalities she manifested. Her MPD, she claims and it so appears, is a protective mechanism which came about as a result of sexual abuse and incest early in her life. Treatment for the condition began during the three years she was incarcerated prior to her trial for armed robbery. As a result of her plea of guilty at the trial, she was placed in lifetime probation. After her trial, she went from the jail to a mental hospital for three months and from there, was placed under the treatment of a psychologist, Dr. Miller, who, consistent with the terms of her probation, furnished a yearly report to the court. Petitioner was released from institutional confinement in October 1991 and stayed in treatment with Dr. Miller until April 1996, when she ended her relationship with him because of his alleged sexual mistreatment of her. These allegations are currently under investigation by Pinellas County authorities. She is now being seen at least twice a week by a psychiatric social worker, a female, with whom Petitioner has a productive professional relationship. Petitioner started her training for certification as a nursing assistant in 1991. She chose this profession because, as she relates it, her advisor felt that her experiences and her demeanor with people indicated she would be good at it. Petitioner agreed and also felt it would be her way of giving something back. When she was certified as a nursing assistant, she started working at a nursing home and often worked three and four double shifts a week. Though the work was hard and often quite stressful, she claims never to have had any trouble working with other staff or her patients, many of whom could be quite difficult and disagreeable. In fact, she claims, she loves her work and though she routinely found herself in extremely stressful situations, never felt she could not handle it or found it necessary to regress into one of her other personalities, as she had often done in the past before treatment. According to Petitioner, her reintegration is permanent. Even though her life can be stressful at times, she believes she can handle it without regression. Admittedly, she left one job as a CNA because she had a tough time working with people who knew about her past. Working for the nursing agency has given her the opportunity to work at a lot of different places and to see which she likes. She does not make light of her past but she claims to have worked very hard to turn her life around. Petitioner has not, in the past, always worked steadily. There have been intervals of non-employment due to health problems relating to a mitral valve prolapse, to family problems and the like. However, she remains in therapy, has lost a lot of weight, meditates and reads her Koran daily, and feels she has no risk of repeated black-outs. She likes caring for the elderly and believes she constitutes no threat to anyone. Petitioner's supervisor at the nursing facility for which she has worked as an agency nurse for two years, Mr. Banks, speaks highly of her professionally and as a person. She was always on time and well liked by her patients. She was always ready to help others, was considerate of her patients, timely in the completion of her nursing tasks and never a problem in any way. Because Petitioner was supplied to the nursing home by an agency and was not an employee of the facility, Mr. Banks had the option to refuse her or specifically request her. Because of her attitude and performance, he always requested she be assigned to duty at his facility. In fact, he and his supervisors had concluded they wanted her to work for the facility as a full time employee, until the issue of her disqualification came up. When it did, Mr. Bates encouraged Petitioner to seek an exemption. Over the time Petitioner worked for him, Mr. Banks never saw her in a situation where she was a threat to her patients. Petitioner worked on a difficult floor with difficult patients and even with these difficult patients, she was always calm and handled them well - including in stressful situations. She could communicate with her patients and earned their trust, and he never feared she was a danger to her patients as a result of her condition. Even knowing of her medical problems and her robbery conviction, Mr. Banks could see her as no threat to her patients. Her Imam, Abdul Aziz, has known Petitioner since 1972, since she and her former husband were neighbors and co-religionists. As her Imam, he was very familiar with her personal problems and is aware of her court difficulties from 1988, and before. Since she started treatment, he has noticed she has become very focused as to where she is going in her life - a direct contrast to her approach to life before that time. As he sees her, she wants an opportunity to work, to rebuild her life and to be a productive member of the community. Mr. Aziz sees Petitioner several times a week and has seen nothing in her which indicates to him that she is a threat to anyone. She wants to become a member of the mainstream of society. She wants to work and pay her own way. While being trained as a CNA, she was very excited about her future and wants to stay with her profession. Mr. Aziz described Petitioner as very conscientious and supportive of her treatment. She impressed him as being sound and able to communicate her feelings. As a result, he is convinced she now has a good grip on her life and would do well in nursing. Petitioner's husband has known her for nine years - since before the robberies, and maintained contact with her while she was in jail awaiting trial, marrying her while she was in the mental hospital after her trial. According to Mr. E., the terms of Petitioner's probation require her to work and to undergo continued mental treatment. As he knows her, she wants a steady life and a steady job. In his opinion, she has grown considerably since 1988 when she committed her offenses. She now shows compassion and restraint, even when in very stressful situations. She shows good common sense and conducts herself appropriately. She is very good with his daughter from a prior relationship, and he has no concern for his daughter's welfare when she is in Petitioner's care. Mr. El-Amin has seen nothing since Petitioner has been in treatment to indicate she has not re-integrated her personalities. By letter dated September 21, 1995, Dr. Miller, Petitioner's clinical psychologist, indicated he had treated Petitioner for approximately four years and was satisfied she was completely rehabilitated regarding her past behavior. He strongly supported her functioning as a certified nursing assistant, opining she could function in this role in an above average to excellent capacity. No other expert evidence regarding Petitioner's condition was offered. By letter dated August 30, 1995, Mr. Taylor, of Universal Healthcare Staffing, on whose staff Petitioner served for several months, described her as a positive influence on the reputation of the corporation and "truly an asset." He noted that through her superior performance she had earned the respect of her peers and provided care well beyond the expectations of the facilities where she worked. These sentiments and comments were supported and echoed by at least two other registered nurses for whom Petitioner worked at the nursing home. Both favorably commented on her compassionate and calm way with patients, her ability to perform well even in periods of stress, and her receptivity to undergoing the exemption process. It would appear that if an exemption were granted, she would be hired at any facility at which these individuals were employed. While Petitioner was working for the nursing agency, the Agency for Health Care Administration became aware of her disqualifying conviction and declared her ineligible for employment in her current position even though the Board of Nursing granted her certification subsequent to her conviction. As a result of the Agency notice of disqualification, Petitioner requested an exemption and on November 6, 1995, the Agency held an informal hearing at which Petitioner submitted information regarding her rehabilitation. This information included her certificate and letters from her employer and co-workers, including two nurses, a movie producer and a psychologist. Petitioner also testified at the hearing, indicating she had committed the robberies when she was blacked out during an episode of MPD. She claimed that because she did not want to be classified as insane, she went to trial rather than rely on that condition as a defense. During its deliberations, the Agency also looked at the other matters in Petitioner's file and found she also had been charged with a homicide for which she had been acquitted because of her MPD. At the hearing on her rehabilitation, Petitioner contended she had previously not been given proper treatment after the homicide and still suffered from the MPD when she committed her offense in 1988. After that second offense she did begin to get the appropriate treatment. Petitioner indicated to the Agency at the informal hearing that her multiple personalities had been reintegrated and denied that any other personalities could now emerge. She admitted, however, that under stress a new personality might emerge to help her but that she had learned and practices techniques to deal with stress. The agency did not call any expert witnesses or engage in any independent effort to determine Petitioner's actual condition. Petitioner has denied any episodes of black-outs since 1988 and the agency could come up with no derogatory information regarding her performance which indicated any inappropriate behavior by her as a result of stress. Nonetheless, based on the information presented at the informal hearing, which included the documentation supplied by the Petitioner and the testimony by her and her witnesses, the Agency decided not to grant the exemption because though Petitioner had "strived heroically" to keep her MPD under control, it was not convinced additional episodes would not occur in the future. It was felt that a nursing home was a high stress area which could expose Petitioner to the possibilities of new MPD episodes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Agency for Health Care Administration enter a final order granting Juanita El-Amin an exemption from disqualification under Section 435.07, Florida Statutes. DONE and ENTERED this 29th day of July, 1996, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of July, 1996. COPIES FURNISHED: Robert H. Dillinger, Esquire 6450 First Avenue North St. Petersburg, Florida 33710 Thomas W. Caufman, Esquire Agency for Health Care Administration 7827 North Dale Mabry Highway Tampa, Florida 33614 Sam Power Agency Clerk Agency for Health Care Administration 2929 Mahan Drive, Suite 3431 Tallahassee, Florida 32308 Douglas M. Cook Director Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308 Jerome W. Hoffman General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308
The Issue Whether Petitioner is entitled to reinstatement of his license as a registered nurse in the State of Florida.
Findings Of Fact Petitioner is a nurse licensed by the Florida Board of Nursing, having nursing license number RN 2651872. On June 3, 1998, an Administrative Complaint was filed against Petitioner in Case No. 1998-00739, asserting that Petitioner engaged in unprofessional conduct in violation of Section 464.018(1)(8), Florida Statutes. The parties entered into a Settlement Agreement and on March 3, 2000, a Final Order was filed by the Board of Nursing approving the Settlement Agreement and imposing one year of probation. Pursuant to an Order to Show Cause, Petitioner appeared before the Board of Nursing in August 2000. By Order filed September 25, 2000, the Board of Nursing extended Petitioner's probation for six months and required him to obtain an evaluation coordinated by the Intervention Project for Nurses (IPN) within six months. On approximately March 29, 2002, an Administrative Complaint was filed against Petitioner in Case No. 2001-12091, alleging that Petitioner had engaged in unprofessional conduct in violation of Section 464.018(1)(h), Florida Statutes, and violated the terms of the Final Order in Case No. 1998-00739, in violation of Section 456.072(1)(q), Florida Statutes. On October 28, 2003, the Board of Nursing entered a Final Order with respect to Case No. 2001-12091. The Final Order reprimanded Petitioner; suspended Petitioner's license for a period of three years; required him to undergo an evaluation coordinated by PRN; and imposed a $1,000.00 administrative fine. Specifically, the Final Order provided: The license of Hubert H. Herring is hereby reprimanded. The licensee, Hubert H. Herring, is suspended for three (3) years and thereafter until she/he personally appears before the Board and can demonstrate the present ability to engage in the safe practice of nursing. That demonstration shall include at least an in-depth psychological evaluation coordinated through the Intervention Project for Nurses, with an MMPI or other appropriate testing from a psychiatrist, psychologist, or other licensed mental health counselor experienced in the treatment of addiction. The licensee shall supply a copy of this Order to the evaluator. The evaluation must contain evidence that the evaluator knows of the reason for referral. The evaluator must specifically advise this Board that the licensee is presently able to engage in the safe practice of nursing or recommend the conditions under which safe practice could be attained. The licensee must also submit prior to appearance before the Board a reentry plan, proof of continued treatment and counseling if recommended in the psychological evaluation, and demonstration of two years of documented continuous drug free/alcohol free living. The Board reserves the right to impose reasonable conditions of reinstatement at the time the licensee appears before the Board to demonstrate her/his present ability to engage in the safe practice of nursing. Petitioner appealed the Final Order and on January 28, 2005, the First District Court of Appeal affirmed the Final Order in Case No. 1D03-5084. The mandate of the district court issued February 15, 2005. See Herring v. Department of Health, 891 So. 2d 1167 (Fla. 1st DCA 2005). No stay of the penalty was sought during the pendency of the appeal. On November 18, 2004, the Department of Health filed an Administrative Complaint against Petitioner in Case No. 2004- 01520, alleging a violation of the Final Order in Case No. 2001- 12901. On or about June 29, 2005, the Board of Nursing filed a Final Order in Case No. 2004-01520, revoking Petitioner's license. Petitioner appealed this Final Order. The Department of Health requested the First District Court of Appeal to relinquish jurisdiction to the Board of Nursing because the penalty of revocation was outside the Board's disciplinary guidelines. The Court granted the Motion to Relinquish Jurisdiction and on January 10, 2006, the Board vacated the Final Order revoking Petitioner's license. On that same day, the Board issued a new Final Order in Case No. 2004- 01520, that reprimanded Petitioner's license; fined him $250 and imposed investigative costs of $1,592.21; and suspended Petitioner's license until he made payment of the fine and costs of the most recent Final Order and "demonstrates compliance with each and every term of the Final Order in Case No. 2001-12091 filed on October 28, 2003." On February 20, 2006, the First District Court of Appeal dismissed the appeal as moot in light of the vacation of the Final Order being appealed. Petitioner has not been authorized to practice nursing in the State of Florida since October 28, 2003, some four and a half years ago. No evidence was presented at hearing to show whether Petitioner has attended continuing education courses during this time or taken any steps to keep his nursing skills and knowledge up to date. Petitioner submitted the deposition of Dr. Bernard, a physician with whom he worked prior to the suspension of his license. He also presented the testimony of Karen Clark, the staffing coordinator at Tandem Rehabilitation Center. Ms. Clark served in that capacity from December 2002 through August 2004, and knew Mr. Herring during her employment there. According to her testimony, Mr. Herring was a nursing supervisor and was still employed at Tandem when she left in August 2004. She considered him a good, "team player" employee.1/ No testimony was presented, however, regarding his current ability to practice with reasonable skill and safety. Mr. Herring petitioned the Board for reinstatement of his license. His re-entry plan "is simple, to go back to work and provide for my family." He submitted information showing he had paid his fines, renewed his license, and sought evaluation from IPN providers. He stated, however, that he could not and would not be involved with IPN, both because of cost and what he considered to be "extreme prejudice" to him. Two evaluations from IPN providers were presented to the Board of Nursing. The first, prepared by Dr. Selah of the Center for Medicine and Psychiatry, Inc., indicates that in Dr. Selah's view, Petitioner was not safe to practice nursing with reasonable skill and safety. The second, prepared by Dr. Judy Rivenbark, stated that Petitioner would be safe to practice nursing only if he obtained therapy, entered into and complied with an IPN contract and demonstrated that he was current and up to date on his nursing skills. Although considered by the Board of Nursing, no testimony was presented at hearing from either professional. The Board considered his request and on December 27, 2006, entered an Order on Petition for Reinstatement denying his request.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered denying Petitioner's request for reinstatement of his nursing license. DONE AND ENTERED this 22nd day of April, 2008, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of April, 2008.
The Issue The issue presented is whether Respondent abused a resident of a nursing home in violation of Sections 456.072(1)(k), 400.022(1), and 825.102(1), Florida Statutes (2001). (All chapter and section references are to Florida Statutes (2001) unless otherwise stated.)
Findings Of Fact Petitioner is the state agency responsible for regulating the practice of nursing pursuant to Chapters 20, 456, and 464. Respondent is licensed as a CNA in the state pursuant to license number 0992086466909. Alterra HealthCare Residence (Alterra) is a nursing home in Sarasota, Florida, that provides 24-hour skilled nursing services for its residents. On September 1, 2001, Alterra employed Respondent, Ms. Deborah McNeely (McNeely), and Ms. Angela Perry (Perry) as CNAs. Patient M.B. was a 74 year-old resident at Alterra. M.B. had Alzheimer's disease but was cognizant of her surroundings and had short-term memory. On September 1, 2001, McNeely and Perry were cleaning a resident in a shower room of Alterra shortly before lunch. McNeely and Perry wheeled the resident out of the shower room when the CNAs finished cleaning the resident. No one else remained in the shower room. Perry left the area outside of the shower room with the resident and wheeled the resident into the lunch room. McNeely remained in the area outside of the shower room. Respondent wheeled M.B. into the shower room past McNeely. Respondent stated to McNeely that M.B. needed to be cleaned because M.B. had soiled herself during a bowel movement. McNeely said she would return to help Respondent after McNeely disposed of the dirty linens belonging to the previous resident. McNeely walked across the hall to the linen room, disposed of the dirty linen, and returned to the shower room. As McNeely approached the shower room, she heard Respondent telling the patient, "Stand up, goddamn it, stand up." Respondent spoke in an angry, harsh tone, and very loudly. McNeely opened the door to the shower room, heard a noise, and heard patient M.B. say, "Ow. That hurt." When McNeely entered the shower room, Respondent had his right arm under M.B.'s right armpit, jerking M.B. out of her wheel chair. Respondent said to M.B., "Goddamn it. Stand up. Fucking stand up." Respondent jerked M.B. out of her wheel chair. M.B. struck her head against the wall of the shower room. McNeely went over to M.B., cleaned the resident, and put a clean diaper on her. Respondent then wheeled M.B. out of the shower room. McNeely reported the incident to Perry and Ms. Shelly Bruggeman (Bruggeman), the charge nurse. Bruggeman examined M.B. M.B. had a red bump or raised area on her forehead that was about the size of a dime. M.B. told Bruggeman, "He hit my head, and he was a'cussin'." Bruggeman directed McNeely to report the incident to Ms. Darlin Groom (Groom), the weekend supervisor. Groom reported the incident to Ms. Deborah Atwell (Atwell), the Director of Nursing. Atwell was not at Alterra at the time. Atwell instructed Groom to tell Respondent to go home pending an investigation. Groom complied with Atwell's instructions, and Respondent left the facility. Groom examined M.B. M.B. had a red bump on her forehead. M.B. stated that "he" had hurt her. Appropriate personnel conducted an investigation of the incident for Alterra. On September 4, 2001, Mr. Sam Ware, the nursing home administrator, conducted a meeting with Atwell and Respondent. Respondent admitted cursing in front of M.B. and stated that he may have cursed at M.B. Alterra terminated Respondent's employment. Respondent has no adverse disciplinary history. Respondent was an exemplary employee for Alterra, and his actions on September 1, 2001, represent a single, isolated incident that is inconsistent with his previous employment license history.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Nursing enter a final order finding Respondent guilty of violating Sections 456.072(1)(k), 400.022(1), and 825.102(1), suspending Respondent's license for a period of six months from November 2, 2001, imposing an administrative fine of $150, requiring Respondent to pay the costs incurred by Petitioner to investigate and prosecute this matter, and requiring Respondent to complete the minimum number of hours in continuing education classes for Proper Care and Handling of Elderly Patients and Anger Management. DONE AND ENTERED this 24th day of May, 2002, in Tallahassee, Leon County, Florida. ___________________________________ DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 2002. COPIES FURNISHED: Michael T. Flury, Esquire Practitioner Regulation-Allied Health Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 39 Tallahassee, Florida 32308 Brett W. Mauch, C.N.A. 309A Shore Road Nokomis, Florida 34275 Ruth R. Stiehl, Ph.D., R.N., Executive Director Board of Nursing Department of Health 4080 Woodcock Drive, Suite 202 Jacksonville, Florida 32207-2714 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
Findings Of Fact At all times material hereto, Anthony Martin, Respondent, has been a licensed practical nurse with license number PN 0727851 whose last known address is 4041C N.W. 16th Street, Apartment 109, Fort Lauderdale, Florida 33313. Respondent was contacted at said address by an investigator employed by Petitioner in May, 1984 and he has not notified Petitioner of any change of address. Although notice of the final hearing was duly sent to Respondent at his last known address, he did not appear. Respondent was employed at St. John's Nursing and Rehabilitation Center as a licensed practical nurse from November 30, 1983 until March 8, 1984. During the course of his employment on January 9, 1984 Respondent received a warning notice and a one-day suspension from the Director of Nursing due to a complaint by a coworker who smelled alcohol on his breath while on duty. Respondent's supervisor also smelled alcohol on his breath on that date. Respondent was interviewed by the Director of Nursing who testified that he admitted to having a drinking problem. She referred him to an impaired nurse program for assistance with his drinking problem but he never attended the program. It is contrary to good nursing practice, and is also contrary to the employment policies and standards of St. John's Nursing and Rehabilitation Center to report for duty as a nurse after having consumed alcohol to the extent that it can be smelled on one's breath. Nancy Cox an expert in nursing education testified that such conduct was unprofessional and below minimum nursing standards since the use of alcohol impairs a nurse's ability to respond to nursing care emergencies and to exercise sound nursing judgment. Cox also testified that an indication of an alcohol problem was a belligerent and uncaring attitude in dealing with patients. Respondent's employment records contain complaints from patients about his hostile and uncaring attitude while on duty. On February 7, 1984 Respondent received a second warning notice concerning his lack of proper care to a tracheostomy patient which resulted in a medical emergency. Respondent was on the 3:00 p.m.-11:00 p.m. shift at the time. During his shift, a nurse's aide asked Respondent to assist a tracheostomy patient on two occasions. Respondent looked in on the patient but did not administer suction or any other care. On a third occasion the aide asked Respondent to care for the patient and he did not even look in on the patient. Before leaving the floor at 11:30 p.m. after her shift, the same aide again looked in on the tracheostomy patient and saw that the patient was in distress and in immediate need of care. The aide got her supervisor who found that the patient was blue. Attempts to clear the air passage with suction were unsuccessful, and the patient had to be transferred to a hospital for emergency care. The expert in nursing education, Nancy Cox, testified that Respondent's actions in dealing with this patient were unprofessional and below minimum standards. Cox explained that a tracheostomy patient cannot verbalize his need for care so extra attention must be paid to patient needs by the nurse on duty, particularly for blockages of the airway. Each occasion when Respondent simply looked in on the patient but failed to administer suction, and the one occasion when he totally ignored this patient's needs constituted unprofessional conduct, in Cox's opinion. Petitioner presented evidence of a third incident on February 25, 1984 involving a diabetic-patient and the care rendered to said patient by Respondent which resulted in a third warning notice against Respondent. The diabetic patient vomited around 7:30 p.m. and lapsed into a coma at 9:10 p.m. Respondent did not check this patient's blood sugar level after the vomiting, which he should have according to Cox, nor did he call this to his supervisor's attention. The parties were allowed to submit proposed findings of fact after the hearing pursuant to Section 120.57(1)(b)4, F.S., and a ruling on each proposed finding that was submitted has been made in this Recommended Order, either directly or indirectly, except where proposed findings have been rejected as subordinate, immaterial, unnecessary, irrelevant or unduly repetitious.
Recommendation Based upon the foregoing, it is recommended that a Final Order be issued revoking Respondent's license but providing that he may apply for reinstatement if, within one (1) year from the issuance of the Final Order Respondent submits to, and successfully completes an impaired nurse program to be designated by the Department of Professional Regulation and Hoard of Nursing at his own expense. DONE and ENTERED this 24th day of June, 1985 at Tallahassee, Florida. DONALD D. CONN, 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 24th day of June, 1985. COPIES FURNISHED: Edward C. Hill, Jr., Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Anthony Martin 4041C NW 16th Street Apartment 109 Fort Lauderdale, Florida 33313 Judie Ritter, Executive Director Board of Nursing 111 East Coastline Drive, Room 504 Jacksonville Florida 32202 Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee Florida 32301
