The Issue The issue to be determined in this proceeding is whether Petitioner is entitled to a refund of premiums paid for life insurance coverage during the 2013 plan year.
Findings Of Fact Petitioner is a state employee with over 30 years of public employment. Respondent, Department of Management Services, Division of State Group Insurance (Division), is the state agency charged with administering the state group insurance program. Pursuant to section 110.123(5), Florida Statutes, its duties include determining the benefits to be provided to state employees and the contributions to be required for the state group insurance program. The Department of Management Services is also authorized, pursuant to section 110.161, to administer a pre-tax benefits program that allows employees’ contributions to premiums be paid on a pre-tax basis, and to provide for the payment of such premiums through a pre-tax payroll procedure. Among the insurance products available to state employees are group health insurance, basic group term life insurance, and optional group term life insurance. At the crux of this case is the premium to be paid for group term life insurance. Basic insurance is noncontributory insurance (meaning the employer pays the premium) for full-time employees and is contributory insurance (meaning the employee pays the premium) for part-time employees. Optional insurance is contributory insurance for all employees. At the time relevant to this proceeding, career service, university system support staff, senior management, and select exempt service employees, as well as active state senators and representatives, were entitled to a basic group term life insurance benefit of $25,000. For retired vested legislators, the basic group term life benefit was $150,000, and for retirees who were not vested legislators, the benefit was either $2,500 or $10,000. Optional group term life insurance was also available to active employees enrolled in basic term life. This insurance coverage was available for purchase up to seven times an employee’s annual earnings, to a maximum of $1,000,000. Both basic and optional life insurance are provided through Minnesota Life. The opportunity to enroll in or make changes to insurance coverage occurs during open enrollment each year. During open enrollment in 2012, Petitioner made selections for the 2013 plan year, which corresponds with the calendar year. Among his selections, Petitioner opted to continue his optional life insurance coverage at four times his annual salary. To make his selection, Petitioner used the People First System. The Minnesota Life screen shot for determining the premium for coverage contains the following information: Determining the cost To determine the new monthly cost of changing your Optional Life coverage, please follow the example below: How is your monthly premium calculated? Your annual earnings = Basic amount Choose the salary multiple of one = to seven times your annual Optional multiple earnings Multiply your basic amount by your = optional multiple and round to the Coverage amount next higher thousand Divide your coverage amount by = 1,000 $1,000 increments Of coverage From the table on the right, find = the rate that corresponds with Rate from table your age X Answer from #4 = Your monthly Insurance premium The table referenced above provides the premium rates based on age bands, such as under age 30, 30-34, 35-39, etc. For ages 55-59, the rate is $0.335. From 60-64, the rate is $0.613. Below the rate/age table is the statement, “[r]ates increase with age and all rates subject to change.” However, nothing in the worksheet indicates that the rate changes during a plan year if the insured has a birthday that puts the employee in a different age band. Based upon his completion of the worksheet in People First, the monthly premium for the optional life insurance selected by Petitioner was $81.08. Petitioner received a document entitled “State of Florida Confirmation of Benefits for 2013 Plan Year.” The Confirmation of Benefits document confirmed that for the 2013 plan year, Petitioner’s monthly cost for optional life insurance would be $81.08. For the first two months of 2013, the expected amount of $81.08 was deducted from Petitioner’s salary. However, beginning in March 2013, for the coverage beginning in April 2013, the premium increased from $81.08 to $148.36, a difference of $67.28 per month.1/ Petitioner did not receive any specific notice regarding the change in policy premiums. He did not notice the difference in his net pay immediately because his salary is subject to additives, and it was not unusual for the net pay to vary from month to month. Employees do not automatically receive a copy of their pay stubs. They must affirmatively retrieve them electronically from a Department of Financial Services website. Petitioner first called the People First information line on August 27, 2013, to inquire regarding the increase in premiums. He followed up with a letter dated September 10, 2013, asking for a refund of the amount deducted from his salary in excess of $81.08 a month. On September 12, 2013, the People First Service Center responded to his request by stating that the increase was a “Significant Cost Increase Qualifying Status Change (QSC) event,” and that inasmuch as Petitioner did not request a decrease in coverage level within 60 days of the QSC event, any change to his benefits would have to wait until open enrollment. The letter referenced Florida Administrative Code Rule 60P-2.003, stating, We are charged with the responsibility of administering the State Group Insurance Program pursuant to these state regulations, as well as the federal regulations. The rules pertaining to changes in health plans are found in Chapter 60P-2.003 which states: “An employee may elect, change or cancel coverage within thirty-one (31) days of a Qualified Status Change (QSC) event if the change is consistent with the event pursuant to subsection 60P-2.003(7), F.A.C. or during the open enrollment period.” While the letter purports to quote the rule, rule 60P- 2.003, the language above does not actually appear as quoted in the rule. Rule 60P-2.003 states in relevant part: An employee enrolled in the Health Program may apply for a change to family coverage or individual coverage within thirty-one (31) calendar days of a QSC event if the change is consistent with the event or during the open enrollment period. * * * All applications for coverage changes must be approved by the Department, subject to the following: The Department shall approve a coverage change if the completed application is submitted to the employing agency within thirty-one (31) calendar days of and is consistent with the QSC event. Documentation substantiating a QSC event is as follows: If changing to family coverage, proof of family status change or proof of loss of other group coverage is required. If changing to individual coverage, proof of family status change or proof of change of employment status is required. If adding an eligible dependent to family coverage, proof of family status change is required. If terminating coverage, proof of family status change or proof of employment change is required. On September 23, 2013, Petitioner sought a Level-II appeal, forwarding all of his correspondence to the Division. On October 11, 2013, Barbara Crosier, Director of the Division, wrote to Petitioner and advised that his Level-II appeal was denied. The letter cited rule 60P-2, and stated that Petitioner needed to have acted within 31 days of the QSC event if the change was consistent with the event, or wait until the open enrollment period. The letter provided Petitioner with notice of his right to a hearing pursuant to chapter 120, Florida Statutes, and on November 6, 2013, Petitioner filed a request for hearing that resulted in these proceedings. Both the correspondence from People First and the letter from Ms. Crosier refer to a qualifying status change. However, the definition of a QSC event in rule 60P-1.003(17) does not include a change in age band. The events identified in the rule are “the change in employment status, for subscriber or spouse, family status or significant change in health coverage of the employee or spouse attributable to the spouse’s employment.” There is a table available somewhere through People First2/ entitled “State of Florida Qualifying Status Change Event Matrix.” The matrix identifies changes in status, the type of documentation required, and the options available to the employee. There was no evidence presented indicating that the matrix has been adopted by rule and in some instances, the matrix is inconsistent with both section 110.123 and rule 60P-1.003. Petitioner did not see this matrix when making his insurance selections during open enrollment. Included in the matrix as a category of QSC events is a category entitled “Significant Cost Changes.” Under this category, the grid identifies “[p]remium increase or decrease to subscriber of at least $20 per month as a result of a change in pay plan (e.g., Career Service to SES), FTE (e.g., part-time to full-time), LWOP, FMLA, legislative premium mandates, Optional Life age banding, etc.” The category “significant cost changes” is not identified as a QSC event in rule 60P-1.003(17). Footnote four of the matrix states, “[t]he period of time to make allowable changes to benefits, as defined by the IRS. All QSC windows are 60 days unless otherwise specified.” Footnote four is appended to text within the cell for information related to a change in marital status, which states “60-day QSC window4.” Petitioner credibly testified that he was not experiencing any change to marital status, so did not believe that the information identified in footnote four would necessarily relate to his circumstances. On December 19, 2008, the Division published the State of Florida Salary Reduction Cafeteria Plan with a Premium Payment Feature, a Medical Reimbursement Component, and a Dependent Care Component (Salary Reduction Cafeteria Plan), which Petitioner submitted without objection as Petitioner’s Exhibit 10. This document is available on the DMS website but has not been identified as a rule. However, it is consistent with the requirements of 26 U.S.C. § 125, which authorizes cafeteria plans, and 26 C.F.R. § 125-4, which identifies permitted election changes in cafeteria plans. The Salary Reduction Cafeteria Plan states: Establishment of Plan The Department of Management Services, Division of State Group Insurance established the State of Florida Flexible Benefits Plan effective July 1, 1989. The Department of Management Services, Division of State Group Insurance hereby amends, restates and continues the State of Florida Flexible Benefits Plan, hereafter known as the State of Florida Salary Reduction Cafeteria Plan (“the Plan”), effective December 19, 2008. This plan is designed to permit an Eligible Employee to pay on a pre-tax basis for his or her share of premiums under the Health Insurance Plan, the Life Insurance Plan and the Supplemental Insurance Plan, and to contribute to an account for pre-tax reimbursement of certain medical care expenses and dependent care expenses. Legal Status This Plan is intended to qualify as a “cafeteria plan” under Section 125 of the Internal Revenue Code 1986, as amended (“the Code”), and regulations issued there under. The Medical Reimbursement Component of this Plan is also intended to qualify as a “self- insured medical reimbursement plan” under Code 105(h), and the Medical Care Expenses reimbursed under that component are intended to be eligible for exclusion from participating Employees’ gross income under Code 105(b). The Dependent Care Component of the Plan is intended to meet the requirements of Code 129. The Life Insurance Plan is intended to meet the requirements of Code 79. The Salary Reduction Cafeteria Plan contained definitions for a change in status. Those definitions are consistent with the definitions in rule 60P-1.003(17), although more detailed in terms of description. The definition does not include a change in cost due to age banding. Section 4.3 of the Salary Reduction Cafeteria Plan provides: Each eligible Employee’s Salary Reduction Agreement shall remain in effect for the entire Plan Year to which it applies, shall be irrevocable (except as provided in Sections 5.6, 6.4, and 7.4) and shall set forth the amount of the Participant’s Compensation to be used to purchase or provide benefits and the benefits to be purchased or provided. Sections 6.4 and 7.4 deal with a participant’s election to participate in the medical reimbursement component and the dependent care components of the plan and have no bearing on this proceeding. Section 5.6 deals with the irrevocability of the election under the premium component of the plan. The section states in pertinent part: In other words, unless one of the exceptions applies, the Participant may not change any elections for the duration of the Plan Year regarding: Participation in this Plan; Salary Reduction Amounts; or Election of particular component plan benefits. The exceptions to the irrevocability requirement, which would permit a Participant to make a mid-year election change in benefits and/or Salary Reduction amounts for this Premium Payment Component, are as follows: Change in Status: A Participant may change or terminate his actual or deemed election under the Plan upon the occurrence of a change in status, but only if such change or termination is made on account of, and is consistent with, the change in status. The Administrator (in its sole discretion) shall determine whether a requested change is on account of, and is consistent with, a change in status. Special HIPAA Enrollment rights. . . . Certain judgments, decrees and orders. . . . Medicare and Medicaid. . . . Significant Change in Cost or Coverage. A Participant may revoke a prior election with respect to pre-tax contributions and, in lieu thereof, may receive, on a prospective basis, coverage under another plan with similar coverage if any independent, third-party provider of medical benefits previously elected by the Participant either significantly increases the premium for such coverage, or significantly curtails the coverage available under such plans, during the plan year coverage period. (Note: if any mid- year premium increase by the third-party provider is insignificant, the Participant’s Salary Reduction election will be automatically adjusted by the Administrator or its agent. Significant Change in Coverage Attributable to Spouse’s Employment. . . . (emphasis added). None of the exceptions to irrevocability identified above apply in this instance. Section 5.2 of the Agreement addresses the Participant’s contributions and is the provision upon which Petitioner relies. It states in pertinent part: If an employee elects to participate in the Premium Payment Component the Participant’s share (as determined by the employer) of the premium for the plan benefits elected by the Participant will be financed by salary reductions. The salary reduction for each pay period is an amount equal to the annual premium divided by the number of pay periods in the plan year, or an amount otherwise agreed upon. . . . (emphasis added). Petitioner did not experience a QSC event. The Confirmation of Benefits received by Petitioner identifies the amount of premium Petitioner has agreed to pay and the benefit he was to receive for that premium. He elected optional life insurance coverage in accordance with the information provided to him on the People First screen. The statement “rates increase with age” can be construed, as Petitioner did, to explain the differences in rates reflected in the table described in paragraph 10. Nothing placed Petitioner on notice that upon achieving his 60th birthday, his premium would automatically increase to the next premium category. Such an interpretation is inconsistent with the method of premium calculation described in paragraph 5.2 of the Salary Reduction Cafeteria Plan.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division enter a Final Order authorizing the refund of excess premiums in the amount of $605.52. DONE AND ENTERED this 13th day of March, 2014, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 2014.
The Issue The issue is whether Petitioner lawfully issued Respondent a conditional skilled nursing facility license.
Findings Of Fact Respondent owns and operates a skilled nursing facility known as Coral Trace in Cape Coral. Petitioner has issued Respondent a skilled nursing facility license to operate the facility. Based on the findings from a survey completed on October 1, 1998, Petitioner downgraded Respondent's license from standard to conditional, effective October 1, 1998. Based on the findings from a survey completed on March 15, 1999, Petitioner raised Respondent's license from conditional to standard, effective March 15, 1999. In this case, Petitioner attempts to prove the bases for the downgraded license between October 1, 1998, and March 15, 1999. Tag F 224, Finding of Fact 2, asserts that Respondent failed to implement its policy prohibiting neglect of its residents when staffpersons failed to respond timely to one resident's request for a straw to drink her water. On September 30, 1998, one of Petitioner's surveyors saw Resident Number 16 awaken from a nap at about 3:45 PM. The surveyor entered the resident's room to speak to her. The resident said that she was thirsty, so the surveyor gave her the cup next to her bed. The resident said that she could not drink without a straw. The surveyor turned on the call light to summon a staffperson. A few minutes later, when no one had responded to the light, the surveyor left the room and approached a staffperson and relayed the request of Resident Number 16. About ten minutes later, a staffperson entered the room and turned off the call light. At 4:15 PM, Resident Number 16, seated in her wheelchair in her doorway, asked the surveyor, "Please help me, I'm so thirsty." A staffperson was in the hallway, heard the resident's call, approached the resident, and told her, "Let me finish what I'm doing, and I'll get back to you." This staffperson returned shortly with a straw, and the resident drank from the cup using the straw. The record does not reveal, directly or by inference, that the staffperson failed to help Resident Number 16 take a drink of water. The care plan for Resident Number 16 required that staff monitor her for dehydration, but she was not dehydrated on the day in question. The evidence fails to establish that Respondent neglected Resident Number 16 in connection with her need for fluids. She had drunk eight ounces of milk at 3:00 PM. It is possible that the staffperson who entered the room to turn off the call light gave Resident Number 16 a quick drink of water from the cup; with assistance, Resident Number 16 could drink from the cup without a straw. Even if the staffperson did not give Resident Number 16 a drink while in her room, no more than 30 or 35 minutes passed from when Resident Number 16 awoke from her nap thirsty to when she got a drink of water. Under the circumstances, this does not constitute neglect. Tag F 224, Finding of Fact 11, asserts that Respondent failed to implement its policy prohibiting neglect of its residents when residents complained about neglect in the form of showering, answering call lights, and not being walked. Petitioner failed to prove any neglect because it did not produce any admissible evidence of these allegations of neglect. Tag F 325, Finding of Fact 1, asserts that Respondent failed to follow its policies requiring that Respondent not serve house nutritional supplements to residents unless a physician has ordered the supplement for a particular resident. Petitioner's proposed recommended order discusses this Finding of Fact, but Respondent's proposed recommended order omits any discussion of this Finding of Fact. The Conclusions of Law discuss the consequence of this omission from Respondent's proposed recommended order and the larger issue of the omission of any charging pleading in this case. The evidence fails to establish that any failure on the part of Respondent to ensure that it obtained a physician's order prior to serving a resident a house nutritional supplement presented an immediate threat to the health, safety, or security of any resident in the facility. Nor does the evidence establish that Respondent failed timely to correct any such deficiency. Tag F 325, Finding of Fact 2, asserts that Respondent failed to provide adequate nutrition to Resident 11, who experienced a 14 percent weight loss, from 92 pounds to 79 pounds, over the eleven months preceding the inspection. This Finding of Fact alleges that half of this weight loss took place during the preceding three months, as the resident's weight dropped from 85 pounds to 79 pounds, which is 63 percent of the resident's desirable body weight of 125 pounds. Among other allegations, this Finding of Fact asserts that, on two occasions, a surveyor saw Resident 11 eating without assistance, playing with her food, receiving 2 percent skim milk rather than whole milk, failing to receive the nutritional shakes she was supposed to receive, and sitting for 45-50 minutes without the cueing to eat that she was supposed to receive from staff. Resident 11 suffered from advanced senile dementia. She was admitted to the facility in 1996 weighing 85 pounds. While in the facility, her usual body weight ranged from 90-92 pounds, but, starting in January 1998, she began gradually to lose weight, until she died in December 1998. During this period, Respondent's dietician had determined that Resident 11 required 1212 calories per day to maintain a healthy body weight. Her base diet provided her 2231 calories per day. Fortified foods and a daily nutritional shake added another 1335 calories per day. Even ignoring additional nutritional shakes, which Petitioner's surveyors did not see served, the caloric value of the nourishment served daily to Resident 11 was three times what she required. Most likely, the cause of Resident 11's weight loss and death was senile dementia, not Respondent's nutritional policies or implementation of these policies. The senile dementia also impeded effective cueing from staff to get Resident 11 to eat more of her food. The evidence fails to establish that Respondent provided inadequate nutrition to Resident 11. Tag F 325, Finding of Fact 3, asserts that Respondent failed to provide adequate nutrition to Resident 16. On June 19, 1998, Resident 16 had an albumin level of 2.9, which is below the desirable range of 3.7 to 5.1. The Finding of Fact alleges that a physician ordered, on June 26, 1998, a high-calorie cookie and eight ounces of whole milk twice daily. The Finding of Fact alleges that one surveyor saw the resident eat only a small part of her special cookie at one serving. Resident 16 has done well while residing at the facility. She has received high-protein, not high-"calorie," as alleged, cookies, but appears to maintain fairly low albumin levels, which is not entirely atypical of frail, tiny elderly persons. The evidence fails to establish that Respondent provided inadequate nutrition to Resident 16. Tag F 325, Finding of Fact 4, asserts that Respondent failed to provide adequate nutrition to Resident 17. Resident 17 allegedly lost 12.3 percent of her weight, from 110 pounds to 96.5 pounds, in the two-month period ending July 27, 1998. Despite an order for three nutritional shakes per day, Respondent's surveyor found, at 11:30 AM on September 29, 1998, the 10:30 AM shakes for that and the prior day still in the refrigerator. Respondent's dietician determined in April 1998 that Resident 17 required 1328 calories per day to maintain her body weight of 109 pounds. The dietician established a diet that provided her 3786 calories per day, exclusive of supplemental nutritional shakes, of the type seen in the refrigerator during the inspection. When staff determined in June 1998 that Resident 17 had lost nine pounds, Respondent's dietician added more supplements and recommended monitoring and encouraging of Resident 17's eating. It is more likely than not that a substantial portion of Resident 17's weight loss was due to an upper respiratory infection from which she suffered; after the infection cleared up, Resident 17 regained weight. The evidence fails to establish that Respondent failed to meet the nutritional needs of Resident 11, 16, or 17.
Recommendation It is RECOMMENDED that the Agency for Health Care Administration enter a final order revising Respondent's license rating from conditional to standard for the period from October 1, 1998, through March 15, 1999. DONE AND ENTERED this day of June, 1999, in Tallahassee, Leon County, Florida. 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 day of June, 1999. COPIES FURNISHED: Karel Baarslag Senior Attorney Agency for Health Care Administration State Regional Service Center Post Office Box 60127 Fort Myers, Florida 33906-0127 R. David Thomas, Jr. Qualified Representative Broad and Cassell Post Office Drawer 11300 Tallahassee, Florida 32302-1300 Paul J. Martin, General Counsel Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308 Sam Power, Agency Clerk Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308
The Issue The issue in this case is whether Petitioner should change the rating of Respondent's license from standard to conditional.
Findings Of Fact Petitioner is the state agency responsible for evaluating nursing homes in Florida pursuant to Section 400.23(7), Florida Statutes (2001). Respondent operates a licensed nursing home located in Ft. Myers, Florida (the facility). (All chapter and section references are to Florida Statutes (2001) unless otherwise noted.) Petitioner conducted a survey of the facility on August 16, 2001. Petitioner determined that Respondent violated the standards of 42 Code of Federal Regulations (CFR) Section 483.25(i)(1) with respect to the dietary care of residents 20, 6, and 8. Florida Administrative Code Rule 58A-4.1288 makes the federal standards applicable to nursing homes in the state. Petitioner prepared a survey report that sets forth the basis for the alleged violations under "Tag F325." F325 is a shorthand reference to the regulatory standard of the CFR. Petitioner assigned the deficiency in F325 a severity rating of class "II." Section 400.23(8)(b) defines a class II deficiency as one that has: compromised the resident's ability to maintain or reach his or her highest practicable physical, mental and psychosocial well-being, as defined by an accurate and comprehensive resident assessment, plan of care, and provision of services. The surveyors for Petitioner testified that a Class II rating was appropriate because each of the cited residents experienced a significant weight loss that the facility could have prevented with better dietary care. Petitioner changed the license rating for the facility from Standard to Conditional within the meaning of Section 400.23(7). The change in license rating was effective August 16, 2001. The Conditional license rating continued until September 18, 2001, when Petitioner changed Respondent's license rating to Standard. The regulatory standard of Tag F325 requires a nursing home to: ensure that a resident maintains acceptable parameters of nutritional status such as body weight and protein levels, unless the resident's clinical condition demonstrates that this is not possible. 42 CFR Section 483.25(i)(1). The State Operations Manual (SOM) sets forth agency policy with respect to how surveyors are to interpret and apply the regulatory standard of Tag F325. In determining if a facility has maintained a resident's body weight at an acceptable level, the SOM guidelines direct surveyors to evaluate the significance of unplanned weight loss. A significant weight loss occurs when a resident loses five percent or more of his or her body weight in one month, 7.5 percent or more in three months, or 10 percent or more in six months. However, the guidelines caution surveyors that ideal body weight charts have not been validated for the elderly and that weight loss is only a guide in determining nutritional status. If a resident has experienced a significant weight loss, the facility may nonetheless comply with the regulatory standard of Tag F325, if the Resident has clinical conditions that demonstrate that the maintenance of the Resident's weight at an acceptable level is not possible. The SOM indicates that clinical conditions that demonstrate that the maintenance of acceptable nutritional status may not be possible include advanced diseases such as cancer and a Resident's refusal to eat. Even in the absence of an identified disease process, the weight loss is considered unavoidable if the facility has properly assessed the resident, developed a care plan for the resident, consistently implemented that care plan and periodically re- evaluated the care plan. Resident 20 suffered from end-stage Alzheimer's disease and cancer. Like many persons afflicted with end stage Alzheimer's disease, Resident 20 began to refuse to eat food in November 2000. Residents with end-stage Alzheimer's disease refuse to eat because they no longer are aware of the need to eat and do not recognize any hunger pangs. As a result, they typically experience weight loss in their final months of life. As early as October 2000, facility staff determined that Resident 20 was refusing to eat and developed a care plan for her. In November 2000, the facility dietician placed Resident 20 on a high calorie diet that offered her almost 4000 calories a day. The dietician also changed the consistency of Resident 20's diet from pureed to liquid in an effort to get her to consume more calories. However, Resident 20 continued to eat poorly. Resident 20's weight dropped from 151.6 pounds to 147.2 pounds between November 15, 2000, and December 20, 2000. Between December 20, 2000, and January 24, 2001, Resident 20 lost only six tenths of a pound to 146.6 pounds. Resident 20's weight loss during two months between November 2000 and January 2001 was only three percent of her actual body weight. A three percent loss of body weight is not a significant weight loss under the SOM guidelines. The facility dietician did not recommend any changes to Resident 20's dietary care plan for several reasons. Resident 20's weight had stabilized. The dietician believed that Resident 20's refusal to eat was a product of Alzheimer's disease and could not be reversed. Resident 20 had not experienced any significant weight loss. The dietician's decision not to make any revisions to the care plan was consistent with good dietary practice and relevant regulatory standards. Between January 24 and February 28, 2001, Resident 20's weight dropped to 134.2 pounds. The weight loss was 8.5 percent of the resident's body weight. The parties stipulated that this weight loss was significant within the meaning of the SOM. The facility dietician reassessed Resident 20 and concluded that the weight loss was attributable to a refusal to eat caused by Alzheimer's disease. The dietician placed Resident 20 on weekly weight monitoring. The facility dietician correctly determined that there was no dietary intervention that would make Resident 20 consume more food. Both parties acknowledged that an end-stage Alzheimer's patient will progressively decline and that the patient's consumption gets worse, not better, over time. The dietician did not make any recommended changes to Resident 20's dietary orders. Instead, the dietician recommended that staff discuss with the physician and family members the possibility of placing a feeding tube in Resident 20. The facility arranged a meeting with the physician for Resident 20 and family members in March 2001, to discuss the possibility of a feeding tube for Resident 20. The family refused to consent to the placement of the feeding tube in Resident 20. Resident 20 had issued an Advance Directive which prohibited that intervention. Resident 20 passed away on May 7, 2001. The facility did not violate the requirements of Tag F325 by failing to try or even consider new care plan interventions to prevent Resident 20's weight loss between March 1 and May 7, 2001. The facility could have offered Resident 20 smaller portions more frequently, instead of larger portions three times a day, or could have changed the temperature of the liquids offered to Resident 20. The facility could have offered Resident 20 supplements between meals. However, there is no evidence that the available interventions would have been effective. Resident 20's cognitive decline was so severe that it is unlikely the available interventions would have had any positive effect on Resident 20. No regulatory standard required the facility to change the dietary care plan interventions for Resident 20 prior to the significant weight loss in February 2001. The facility provided Resident 20 with every reasonable intervention for the resident's dietary care. Resident 20's diet provided her with more than enough calories. Changing the amount or frequency of food offerings would have had no positive impact on Resident 20's consumption because of the resident's diminished cognitive capacity. The absence of physician's orders for supplements for Resident 20 had no adverse effect. The facility's policy is to offer supplements throughout the day to all residents on the unit in which Resident 20 resided. The facility offered these supplements to Resident 20, but they did not improve her consumption or otherwise stem her weight loss. The facility provided adequate dietary care to Resident 20. The facility offered Resident 20 fluids at three different meal times in addition to supplements throughout the day. Resident 20's appetite and consumption did not improve. The refusal to eat was not related to her distaste for the food offered to her, the quantity of the food offered to her, or the frequency of feeding. Rather, the refusal to eat was a product of her inability to understand what food was and the need to eat. It was thus appropriate for the surveyor to conclude that additional interventions would not have been effective and should not have been employed. The significant weight loss experienced by Resident 20 was unavoidable due to clinical conditions. The SOM guidelines acknowledge that weight loss should be expected in a resident who has a terminal illness or whose diminished cognitive capacity results in a refusal to eat. Resident 20 possessed both of these clinical conditions. The facility admitted Resident 8 in July 2001, for rehabilitative care after surgery for a fractured femur. Upon admission, Resident 8 weighed 106.8 pounds. Her ideal body weight was approximately 98 pounds, and her usual body weight was between 100 and 105 pounds. The admitting body weight may have been high due to swelling in Resident 8's leg. The facility measured and monitored Resident 8's weight weekly for four weeks pursuant to the facility's protocol for all new admissions. The facility dietician assessed Resident 8's food preferences and nutritional needs at the time of admission. The dietician designed a diet to meet Resident 8's needs and preferences. Resident 8 was cognitively alert and physically capable of feeding herself. Resident 8 did not require any special assistance to consume her food other than for staff to set up her feeding tray. Resident 8 was at risk for weight loss due to poor intake upon admission. Facility staff decided not to develop a dietary care plan for Resident 8 because the resident was above both her ideal and usual body weights. The decision not to develop a dietary care plan was within the sound discretion of facility staff. The failure to develop a dietary care plan for Resident 8 did not violate the standard of Tag F325. The dietary plan for Resident 8 maintained the Resident's body weight at acceptable levels for the first three weeks of her stay at the facility. Resident 8's weight on July 25, 2001, was 104.2 pounds. On August 1, 2001, Resident 8's weight was 106.2 pounds. On August 8, 2001, however, Resident 8's weight dropped to 100.2 pounds. On August 9, 2001, the resident's weight was 99.8 pounds. Resident 8's ideal body weight was approximately 98 pounds. The facility discharged Resident 8 on or about August 9, 2001, upon successful completion of her rehabilitation before another weight could be measured. A threshold issue that must be determined is whether Resident 8 experienced a significant weight loss. Respondent stipulated at the administrative hearing that Residents 20 and 6 experienced significant weight losses during their stays at the facility, but refused to concede that point with regard to Resident 8. As noted earlier herein, SOM guidelines indicate that a significant weight loss occurs if a resident loses 5 percent of his or her body weight in the "interval" of one month. The SOM guidelines prescribe a formula for determining the percentage of weight loss. The formula requires usual weight to be reduced by actual weight. The result is divided by usual weight, and that result is multiplied by 100. Resident 8's usual body weight ranged between 100 and 105 pounds when she was admitted to the facility. Use of the high-end of that range in the SOM formula would produce the highest percentage of weight loss for Resident 8. The formula for calculating the significance of the Resident's weight loss produces a number that is less than the 5 percent weigh loss that must be present to satisfy the test of significant weight loss, e.g.: usual weight loss (105) less actual weight (99.9) equals 5.2. The result (5.2) is divided by usual weight (105). The result (.0495) is multiplied by 100 to determine the percentage of weight loss (4.95 percent). The parties stipulated at hearing that Resident 8 lost 6.5 percent of her body weight between July 18 and August 9, 2001. However, that percentage is based upon a comparison of her actual body weights rather than the usual-body-weight formula prescribed in the SOM. Petitioner provided no evidence to justify a deviation from the SOM formula generally used for determining significant weight loss in this case. Even if such a deviation were justified, Resident 8 did not experience a significant weight loss within the meaning of the SOM guidelines. The guidelines indicate that the minimum interval for evaluating a resident's weight loss is one month. Resident 8's actual weight loss occurred in the eight-day period between August 1 and 9, 2001. That is less than the one-month interval established in the SOM guidelines. Even if July 18, 2001, were used as the beginning point for evaluating Resident 8's weight loss, the one-month interval for determining if a significant weight loss had occurred did not expire and would not expire until August 18, 2001. The facility discharged Resident 8 on or about August 9, 2001. Petitioner's surveyor testified that if Resident 8 were to have stayed in the facility for 30 days and if her weight had returned to that present before she began her weight loss, there would have been no significant weight loss. Petitioner provided no evidence that indicated that a resident's weight loss should be evaluated over some time period shorter than the one month period established in the SOM guidelines. Resident 8's case illustrates at least one reason why the SOM guidelines caution surveyors against strict reliance on the amount of a resident's weight loss to determine the resident's nutritional status. Resident 8's body weight never dropped below her ideal body weight while she was admitted to the facility. A weight loss which occurs over a one-week period, and which only results in the Resident dropping to her ideal body weight, does not indicate that the Resident is malnourished. Assuming arguendo that Resident 8 experienced a significant weight loss at the facility, the weight loss was not caused by the failure of facility staff to develop a dietary care plan. It is undisputed that facility staff assessed Resident 8 for her nutritional needs and provided her with an adequate diet to meet those needs. It is also undisputed that, prior to the Resident's weight being taken on August 8, 2001, the facility had no reason to believe or know that the diet that it had prescribed for Resident 8 or the Resident's consumption of that diet might be inadequate. Resident 8's weight remained at or near its admission level under the dietary regimen that the facility prescribed for her for those three weeks. Petitioner was unable to identify one intervention that should have appeared in a dietary care plan that the facility did not actually provide to Resident 8 or that would have prevented the weight loss experienced by Resident 8. The surveyor who developed the allegations regarding Resident 8 is a nurse and not a dietician. The surveyor alleged that Resident 8 was anxious, had been ill when she was admitted, and that the facility had not appropriately assessed whether those factors would affect Resident 8's appetite. Resident 8 did not express such problems to the facility dietician. If it were determined that those problems existed at the time of admission, they were not significant because Resident 8 maintained her usual body weight during the first three weeks of her stay at the facility. When the Resident's weight loss was identified on August 9th, the facility added fortified foods to her diet. Fortified foods are the appropriate dietary response to Resident 8's identified weight loss. The facility provided Resident 8 with all appropriate dietary care. Resident 6 had been a resident at the facility since November 29, 1999. Between May 9 and June 13, 2001, Resident 6 experienced a weight loss of 6.5 percent. The parties stipulated that this loss was significant. However, Resident 6's weight of 152 pounds on June 13th remained above his ideal body weight of 144 pounds. During the period of weight loss, Resident 6 experienced a urinary tract infection for which he was receiving anti-biotic therapy. It is not uncommon for a resident to lose his or her appetite and to have a corresponding weight loss during such treatment. The surveyor for Petitioner who prepared the case involving Resident 6 is not a dietician. The surveyor charged that Resident 6's weight loss was avoidable because the facility failed to assess Resident 6's protein needs after he developed the urinary tract infection and because the facility did not closely monitor Resident 6's food intake. Petitioner offered no evidence to show what additional calorie or protein requirements the facility did not provide to Resident 6. The facility monitored the resident's low consumption levels and attributed them to his antibiotic therapy. The facility dietician is a dietary expert. There is no dietary standard that requires dieticians to reassess a resident's nutritional needs when the resident has an infection. Instead, good dietary practice allows the infection and antibiotic treatments to run their course. Thereafter, the dietician should monitor the resident's consumption and weight to see if he or she returns to normal. The facility dietician assessed Resident 6 after the infection cleared and after the antibiotic treatment had been completed. The dietician determined that Resident 6's consumption was good. The weight loss Resident 6 experienced was attributable to his decreased appetite while on antibiotic therapy. Resident 6's weight remained stable after his infection cleared, and his treatment was completed. Resident 6's ideal body weight is 144 pounds. The facility determined to maintain Resident 6's weight at 150 pounds. The significant weight loss experienced by Resident 6 was the unavoidable consequence of clinical conditions in the form of the illness he experienced and the treatments he received for that illness. The weight loss was not caused by inadequate dietary care by the facility. Moreover, Resident 6 remained above his ideal body weight and, therefore, did not experience any harm. On or about July 12, 2001, the facility obtained an albumin level for Resident 6 of 2.9, which was below the suggested normal laboratory range of 3.5 to 5.0. The surveyor for Petitioner charged that the facility did nothing to address this low lab value but conceded that Resident 6 did not experience any harm as a result of that failure. The SOM guidelines indicate that surveyors should not expect normal lab values for all residents they review because abnormal values are to be expected with certain disease processes. Resident 6 was severely compromised by cardiac problems, dementia, a prior stroke, diabetes, prostate cancer, and Alzheimer's disease. He died shortly after the survey in this case. His albumin level of 2.9 was indicative of his diseased condition rather than his nutritional status. Accordingly, the facility did not violate any standard of good dietary practice when it did not consider or implement dietary interventions for the low albumin level.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner enter a Final Order finding no basis to issue a Conditional rating to the facility on August 16, 2001; deleting the deficiency described under Tag F325; and issuing a Standard rating to the facility to replace the previously issued Conditional rating. DONE AND ENTERED this 6th day of September, 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 6th day of September, 2002. COPIES FURNISHED: R. Davis Thomas, Jr. Qualified Representative Broad and Cassel 215 South Monroe Street, Suite 400 Post Office Drawer 11300 Tallahassee, Florida 32302 Dennis Godfrey, Esquire Agency for Health Care Administration 525 Mirror Lake Drive, North Sebring Building, Suite 310 St. Petersburg, Florida 33701 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 William Roberts, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308 Rhonda M. Medows, M.D., Secretary Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3116 Tallahassee, Florida 32308
The Issue DOAH Case No. 02-0033: Whether Respondent's licensure status should be reduced from standard to conditional. DOAH Case No. 02-1788: Whether Respondent committed the violations alleged in the Administrative Complaint dated March 13, 2002, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: AHCA is the state Agency responsible for licensure and regulation of nursing homes operating in the State of Florida. Chapter 400, Part II, Florida Statutes. Healthpark operates a licensed nursing home at 16131 Roserush Court, Fort Myers, Florida. The standard form used by AHCA to document survey findings, titled "Statement of Deficiencies and Plan of Correction," is commonly referred to as a "2567" form. The individual deficiencies are noted on the form by way of identifying numbers commonly called "Tags." A Tag identifies the applicable regulatory standard that the surveyors believe has been violated and provides a summary of the violation, specific factual allegations that the surveyors believe support the violation, and two ratings which indicate the severity of the deficiency. One of the ratings identified in a Tag is a "scope and severity" rating, which is a letter rating from A to L with A representing the least severe deficiency and L representing the most severe. The second rating is a "class" rating, which is a numerical rating of I, II, or III, with I representing the most severe deficiency and III representing the least severe deficiency. On October 15 through 18, 2001, AHCA conducted an annual licensure and certification survey of Healthpark, to evaluate the facility's compliance with state and federal regulations governing the operation of nursing homes. The survey team alleged three deficiencies during the survey, two of which are at issue in these proceedings. At issue are deficiencies identified as Tag F224 (violation of 42 C.F.R. Section 483.13(c)(1)(i), relating to neglect of residents) and Tag F325 (violation of 42 C.F.R. Section 483.25(i)(l), relating to maintenance of acceptable parameters of nutritional status). Both of the deficiencies alleged in the survey were classified as Class II under the Florida classification system for nursing homes. A class II deficiency is "a deficiency that the agency determines has compromised the resident's ability to maintain or reach his or her highest practicable physical, mental, and psychosocial well-being, as defined by an accurate and comprehensive resident assessment, plan of care, and provision of services." Section 400.23(8)(b), Florida Statutes. Both of the deficiencies alleged in the survey were cited at a federal scope and severity rating of G, meaning that each deficiency was isolated, caused actual harm that is not immediate jeopardy, and did not involve substandard quality of care. Based on the alleged Class II deficiencies in Tags F224 and F325, AHCA imposed a conditional license on Healthpark, effective October 18, 2001. The license expiration date was September 30, 2002. Tag F224 The survey allegedly found violations of 42 C.F.R. Section 483.13(c)(1)(i), which states: Staff treatment of residents. The facility must develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse of residents and misappropriation of resident property. The facility must-- (i) Not use verbal, mental, sexual, or physical abuse, corporal punishment, or involuntary seclusion.... In the parlance of the federal Health Care Financing Administration Form 2567 employed by AHCA to report its findings, this requirement is referenced as "Tag F224." The Agency's allegations in this case involved neglect of a resident rather than any form of abusive treatment. The Form 2567 listed two incidents under Tag F224, both involving Resident 10, or "R-10." The surveyor observations read as follows: Based on observations, record review and interviews with a resident and a Certified Nursing Assistant (CNA), the facility failed to provide toileting needs as care planned for 1 (Resident #10) of 8 sampled residents reviewed for incontinence and toileting programs. The resident was not toileted for more than 5 hours causing multiple creased areas and redness to her left groin, perineum and buttocks. The findings include: On 10/15/2001, Resident #10 was in her room, #141, in bed A at 2:20 P.M. Resident stated she was wet. The call bell cord was clipped to the sheet, but the bell mechanism was off the side of the bed, out of the resident's reach. Surveyor walked to the North nurse's station and continued to observe the resident's room entrance. Record review revealed Resident #10's most recent quarterly Minimum Data Set (MDS) completed 8/27/2001, assessed her with bladder incontinence at 3 (frequently incontinent), bowel incontinence at 1 (less than once weekly), activity is assessed as bed mobility 3/3 (needs extensive assistance to move in bed), and toilet use at 3/2 (needs extensive assistance). At 4:15 P.M., the resident requested the surveyor to get someone to change her as no one had come in and the call bell was still out of her reach. The resident's request was given to the nurse at 4:20 P.M. On 10/16/01, Resident #10 was observed in her wheelchair in the hall outside her room from 8:55 A.M. until 12:05 P.M., when she was escorted to the main dining room. At 2:20 P.M., resident was still sitting in her wheelchair. After surveyor intervention, the CNA put the resident to bed at 2:30 P.M. When the adult diaper was removed, it revealed the resident to be incontinent of feces and urine. The odor of urine was very strong in the room. The resident's perineum and buttocks were red and moist, with multiple creased areas. The left groin was especially red. During an interview with the CNA, she stated the resident was last toileted before lunch at approximately 11:00 A.M. This was during the time of direct observation by the surveyor of the resident in the hall outside her room. Review of the resident's Care Plan revealed that she was to have the call bell in place at all times and scheduled toileting. Diane Ashworth was the survey team member who recorded the observation of R-10. Ms. Ashworth was assigned the task of observing R-10, and based her findings on a review of the resident's medical records, observations and interviews. R-10 was a 96-year-old diabetic female who had been admitted to Healthpark on March 28, 2000. R-10's most recent Minimum Data Set ("MDS"), completed on August 27, 2001, indicated that R-10 had short and long-term memory difficulties and moderately impaired decision making as to tasks of daily life. R-10 was generally confused as to place and time. She could make herself understood, and had no difficulty understanding what was said to her. She was easily angered and could be physically abusive to staff. R-10 required extensive assistance to move, dress, toilet, and maintain general hygiene. She was confined to her bed or to a wheelchair, and required assistance to move the wheelchair. R-10's MDS indicated a loss of voluntary movement in her hands, including her wrists and fingers. The MDS indicated that R-10 experienced daily incontinence of the bladder, and bowel incontinence once a week on average. The nurse's notes for R-10 indicated that she was able to make her needs known and that she was encouraged by staff to call for assistance as needed. The care plan for R-10 stated that she should have "scheduled toileting," but set forth no firm schedule. Ms. Ashworth testified that she would have expected R-10 to be toileted before meals, before bed, and upon rising, at a minimum. Mona Joseph was the CNA who attended R-10 on a daily basis. Ms. Joseph testified that R-10, like all residents who wore adult diapers, was scheduled for toileting every two hours and whenever necessary. In practice this meant that Ms. Joseph would inquire as to R-10's need for toileting every two hours. Ms. Joseph testified that R-10 would ask her for toileting at least twice a day, and that she never refused the request. She always toileted R-10 before lunch, and testified that on October 16 she toileted R-10 at about 11 a.m. before taking her to lunch. Toileting R-10 required the use of a Hoyer lift to move the resident from her wheelchair to the bed. Ms. Joseph estimated that the entire process of toileting R-10 took seven to eight minutes. Caroline Nicotra, the supervisor of the long-term care unit in which R-10 resided and Ms. Joseph's supervisor, confirmed that Healthpark's CNAs were trained to make rounds every two hours and ask those residents requiring assistance if they needed to be toileted. R-10 was capable of making that decision, and her wishes regarding her need for toileting would be respected by the CNA. Ms. Ashworth's testimony was generally consistent with her written findings. She met R-10 on the afternoon of October 15. R-10 was lying in bed, and told Ms. Ashworth that she was wet. Ms. Ashworth noted that the call bell cord was clipped to R-10's bed, but that the bell mechanism itself was not within R-10's reach. Ms. Ashworth left the room and took a position at the nurses' station, from which she could see the door to R-10's room. She watched to see if any staff person from Healthpark went into R-10's room. She saw no one enter the room between 2:20 p.m. and 4:15 p.m., at which time she asked a CNA to toilet R-10. Ms. Ashworth returned at 8:55 a.m. on October 16, and observed R-10 sitting in her wheelchair in the hallway outside her room. Ms. Ashworth took up her post at the nurses' station and watched R-10 until 12:05 p.m. At no time in the morning did Ms. Ashworth see R-10 being moved or taken for toileting, though Ms. Joseph testified that she toileted R-10 at about 11 a.m. The evidence established that R-10's room was at the opposite end of a corridor from the nurses' station. The corridor was approximately 200 feet long from the nurses' station to R-10's room. The corridor was busy. Medications were passed at 9:00 a.m., meaning that medication carts went up and down the corridor. Staff carried breakfast trays in and out of rooms. Housekeeping and treatment carts were in the hallway. Given the distance of the nurses' station from R-10's room and the constant activity in the corridor, it is unlikely that Ms. Ashworth's view of R-10 was unobstructed at all times. Moreover, the nurses' station itself was a hub of activity. At the end of the nurses' station where Ms. Ashworth stood was the fax machine. The fax machine was kept constantly busy sending physicians' orders to the pharmacy. The unit secretary was stationed in this location. Nurses passed through this area to retrieve forms from the filing cabinets or to go to the medication room. The likelihood that Ms. Ashworth was unable from her vantage point to view R-10 at all times makes credible Ms. Joseph's testimony that she regularly checked with R-10 to ask whether she required toileting. However, it is unlikely that R-10 was ever out of Ms. Ashworth's sight for the period of seven to eight minutes necessary to actually toilet the resident. Ms. Ashworth's testimony that R-10 was not toileted at 11 a.m. on October 16 is therefore credited. At 12:05 p.m., R-10 was taken to the dining room for lunch. Ms. Ashworth followed and observed R-10 in the dining room. After lunch, R-10 was wheeled back to the outside of her room. Ms. Ashworth observed her from the nurses' station until 2:20 p.m. Ms. Ashworth did not see R-10 being taken for toileting between 12:05 and 2:20 p.m. At 2:30 p.m. on October 16, Ms. Ashworth approached Mona Joseph, the CNA responsible for R-10, and asked her to put R-10 to bed so that Ms. Ashworth could examine her buttocks. Ms. Ashworth asked another AHCA surveyor, Maria Donohue, to accompany her to confirm her observations. There was some delay while Ms. Joseph finished a task for another resident, but eventually Ms. Joseph wheeled R-10 into the room and placed her into bed. Ms. Joseph changed R-10's adult brief in the presence of Ms. Ashworth and Ms. Donohue. Ms. Ashworth testified that there was a strong smell of urine in the room, even before the brief was removed, though she noticed no smell of urine about R- 10 prior to entering the room. When Ms. Joseph removed the adult brief, Ms. Ashworth noted that it was wet and that there was a large amount of feces in the brief and on R-10's buttocks. Ms. Ashworth noted that the skin on R-10's perineum and buttocks was creased and red. The area of R-10's left groin was so red that Ms. Ashworth at first thought there was no skin. Ms. Ashworth stated that this kind of redness is associated with not being toileted as scheduled, though she conceded that such redness can also result from pressure. Ms. Ashworth also conceded that this was her first observation of R-10's buttocks, and thus that she had no baseline to judge how abnormal the redness was at the time Ms. Joseph changed the adult brief. Ms. Donohue also recalled a strong urine smell as soon as they entered the room. She agreed that R-10's buttocks were red in some areas, but recalled no further details. She could not recall if there was feces in the adult brief, but did recall that it was saturated with urine. Mona Joseph, the CNA who changed R-10's adult brief, believed that the urine smell in the room came from the next bed, because she had just changed the adult brief of the person in that bed. Ms. Joseph smelled no odor of urine or feces about R-10. Ms. Joseph testified that R-10's brief was dry, and that she began having a bowel movement while being changed. She noted no redness on R-10's buttocks. Caroline Nicotra was the supervisor of the long-term care unit in which R-10 resided. She knew R-10, and stated that R-10 regularly used her call bell, and would call out for help if she could not reach the call button clipped to her bed. She noted that all of the rooms to which Ms. Joseph was assigned were in the same area of the corridor, so that Ms. Joseph would always be able to hear R-10 call out. There would also be nurses in the area who could hear R-10. Ms. Nicotra knew the surveyors had gone into R-10's room with Ms. Joseph, and she went into the room moments after the surveyors left the room to ascertain whether anything had occurred that she needed to address. Ms. Joseph told Ms. Nicotra what had happened. Ms. Nicotra asked R-10 for permission to examine her body and R-10 assented. Ms. Nicotra removed R-10's adult brief and inspected R-10's buttocks. She observed no creasing or redness of the perineum or the buttocks. R-10's skin was intact and no different than Ms. Nicotra had seen it on other occasions. R-10 told Ms. Nicotra that she was not experiencing pain or discomfort in her buttocks area. Ms. Nicotra stated that R-10 weighed about 180 pounds, and that the creasing and redness observed by the surveyors could have been caused by the pressure of sitting in her wheelchair for a long time. Ms. Nicotra examined the adult brief that had been removed from R-10. She observed that it was slightly damp, which she attributed to sweat, and that it contained a smear of bowel movement. It did not smell strongly of urine. Viewing the evidence in its entirety, and crediting the honesty of the testimony of each witness, it is found that AHCA failed to prove the elements of Tag F224 by a preponderance of the evidence. Ms. Ashworth did not observe R-10 being toileted. However, Ms. Ashworth's observation does not establish that R-10 required toileting or that the facility was negligent in not toileting the resident. After the first meeting on October 15, Ms. Ashworth did not ask R-10 whether she needed to be toileted. Ms. Joseph inquired as to R-10's toileting needs every two hours. R-10 was able to make her needs known to facility staff, and she did so on a daily basis. If her call bell was out of reach, she would call out to staff. Ms. Joseph's testimony that the adult brief was dry of urine and contained only a slight amount of fecal material is supported by that of Ms. Nicotra, the only other witness who actually handled the adult brief, and is therefore credited. The only harm alleged by AHCA was the irritation to R- 10's bottom, claimed to be the result of R-10's sitting in a soiled adult brief for an extended period of time. The surveyors' testimony that R-10's perineum, buttocks, and left groin were creased and red at the time of changing is credited. Also credited, however, is Ms. Nicotra's testimony that R-10's perineum, buttocks and left groin were no longer creased or red a few minutes after the changing. Ms. Nicotra's testimony indicates that the creasing and redness were caused, not by irritation from urine and/or feces in the adult brief, but by an extended period of sitting in her wheelchair. The evidence indicates no neglect of R-10, and that R-10 suffered no harm during the sequence of events described in the Form 2567. II. Tag F325 The survey allegedly found a violation of 42 C.F.R. Section 483.25(i)(1), which states: Nutrition. Based on a resident's comprehensive assessment, the facility must ensure that a resident-- Maintains acceptable parameters of nutritional status, such as body weight and protein levels, unless the resident's clinical condition demonstrates that this is not possible.... This requirement is referenced on Form 2567 as "Tag F325." The survey found one instance in which Healthpark allegedly failed to ensure that a resident maintained acceptable parameters of nutritional status. The surveyor's observation on Form 2567 concerned Resident 17, or "R-17": Based on record review and staff (Unit Manager and Registered Dietician) interviews, the facility failed to adequately assess and revise the care plan to address the significant weight loss of 1 (Resident #17) of 15 from a sample of 21 residents reviewed for nutritional concerns. This is evidenced by: 1) After Resident #17 had a significant weight loss of 6.8% in 4 weeks, the facility did not have an adequate nutritional assessment and did not revise the care plan to prevent the resident from further weight loss. The findings include: 1. Resident #17 was admitted to the facility on 9/6/01 with diagnoses that include Sepsis, S/P Incision and Drainage (I&D) of the Right Knee and GI Bleed. The resident has a history of Coronary Artery Disease (CAD). During the clinical record review, it revealed [sic] that the resident's physician ordered Ancef (antibiotic) 2 grams every 8 hours on 9/6/01, to be given for 25 days. During the review of the resident's initial MDS (Minimum Data Set) completed on 9/19/01, it revealed [sic] he weighed 185 lbs (pounds) and is 72 inches tall. Review of the MDS also revealed the resident is independent with his cognitive skills for daily decision making. Further review of the MDS also revealed he requires set up and supervision during meals. He requires extensive assistance with dressing, bathing, and ambulation. Review of the nutritional assessment revealed the RD assessed the resident on 9/10/01. The assessment stated, "Resident has decreased appetite which may be R/T (related to) current meds (medications); Resident's wife feels he has lost wt (weight) but wt is increased due to edema in feet. Resident's current diet meets assessed needs. Will include food preferences to increase intake." Under "Ethnic/Religious Food Preferences" it stated, "No cultural preferences stated." The nutritional assessment completed by the RD on 9/10/01, stated that the resident weighs 185 lbs. His UBW (usual body weight) is 182 lbs. During an interview with the Unit Manager and Registered Dietician (RD) on 10/18/01 at approximately 11:00 AM, they stated that the resident's weight of 185 lbs., which is documented in the initial MDS, was inaccurate. The resident's accurate weight on admission was 175 lbs. During the review of the weight record, it revealed [sic] the resident remained 175 lbs. on 9/11/01. On 9/18/01, the resident weighed 168 lbs., indicating a weight loss of 7 lbs. in 7 days. During the review of the Resident Assessment Protocol (RAP) completed on 9/19/01, it revealed [sic] she [sic] triggered for "Nutritional Status." The care plan developed on 9/19/01 stated, "Res. (resident) leaves 25% or more of food uneaten at most meals. Weight: 168 lbs; UBW (usual body weight) 182 lbs." The goal stated, "Res will maintain weight up or down within 1-2 lbs. through next quarter: 10/17/01." The following approaches are listed: "Diet as ordered." "Encourage fluids." "Monitor weights." "Food preferences and substitute for uneaten foods." "Assist with tray set-ups, open all packages." Review of the physician's order dated 9/18/01 revealed the resident was started on TwoCal HN (supplements) 60cc's four times a day, ice cream everyday [sic] at 8:00 P.M., fruit everyday [sic] at 10:00 A.M. and peanut butter, cracker, and juice everyday [sic] at 2:00 P.M. During the review of the Medication Administration Record (MAR) for the months of 9/01 and 10/01, it confirmed [sic] that this additional supplements were given to the resident, however there is no documentation to indicate the resident's consumption of each supplement. Interview with the Unit Manager on 10/18/01 at approximately 11:15 A.M. also confirmed there is no documentation in the clinical record to indicate the resident's consumption of each snack. Review of the CNA (Certified Nursing Assistant) Care Plan for the month of 9/01 revealed no documentation being offered at bedtime and no documentation for the month of 10/01 that the resident received bedtime snacks. Further review of the resident's weight record revealed the resident weighed 163 lbs on 10/2/01. This indicates a significant weight loss of 12 lbs or 6.8 percent of his total body weight in 4 weeks. Review of the nurses' notes revealed that this significant weight loss had been identified on 9/26/01, 20 days after the resident's admission to the facility. The nurse's notes dated 9/26/01 stated that the care plan to address the risk for weight loss was reviewed. Review of the care plan confirmed it was reviewed on 9/26/01 and 10/6/01. The goal stated, "Will lose no more weight, 11/6/01." Added to approaches stated, "Nutritional supplements as ordered." However, further review of the clinical record and the care plan revealed no documentation to indicate that a comprehensive nutritional assessment was done. There is no documentation in the resident's clinical record to indicate that the care plan was revised. During an interview with the Unit Manager on 10/18/01 at approximately 2:15 P.M., she confirmed that after the resident's admission to the facility on 9/6/01, the resident was refusing to eat, but his appetite improved in the beginning of 10/01. He was consuming 75 percent-100 percent of his meals. She also stated that the resident had "pedal (foot and ankle) edema" on admission to the facility. There is no documentation in the resident's clinical record to indicate that this edema was monitored. There is no documentation in the clinical record that the resident was on a diuretic. She further stated that the final report on the blood culture done on the resident, dated 10/1/01, was positive for Candida sp (yeast infection). During the review of the clinical record, it did not have [sic] documentation to indicate that an assessment of the resident's protein intake was assessed at this time. There is no documentation in the resident's clinical record to indicate that the resident's albumin and protein levels were assessed. During an interview with the Unit Manager on 10/18/01, at approximately 2:15 P.M., she stated that the resident's family members were encouraged to visit more often and encourage to bring foods that he likes. She stated that the resident liked Italian food. This is in contrary to [sic] the RD's nutritional assessment completed on 9/10/01. She also stated that the facility staff continued to honor resident's food preferences and provided alternatives. There is no documentation in the resident's clinical record to indicate that an assessment of the resident's nutritional status, based on his current weight of 163 lbs. and current food intake was done. Further review of the resident's weight record revealed he weighed 158 lbs. on 10/9/01. This reveals a weight loss of 5 more lbs. in 12 days. During the interview on 10/18/01 at approximately 2:15 P.M., she did not have an explanation why the resident continued to lose weight despite an improvement in his appetite. Maria Donohue was the survey team member who recorded the observation of R-17. This resident was initially assigned to Ms. Ashworth, who briefly assessed R-17 in his room and commenced a review of his medical records. Ms. Ashworth noted R-17's weight loss and that his situation required further investigation. Because Ms. Ashworth was busy with her observations of R-10, the survey team shifted responsibility for R-17 to Ms. Donohue. Ms. Donohue based her findings on a review of the resident's medical records and interviews with Healthpark staff. She did not speak to or observe R-17. She did not interview R-17's physician, and could not recall speaking to R- 17's family. R-17 was an 84-year-old male with a history of coronary artery disease who was admitted to Healthpark from a hospital. About a year and a half before his admission to Healthpark, R-17 had a total knee replacement. He was admitted to the hospital because of a fever. A medical work-up revealed that he was septic, with infection throughout his body. The infection stemmed from his knee, and an incision and drainage was performed. The infection was severe, requiring the parenteral administration of the cephalosporin Ancef for a period of 25 days, beginning September 6, 2001. Anorexia is a known adverse reaction to Ancef. Upon admission to Healthpark, R-17 was experiencing pain that was controlled by Percocet, an analgesic with the potential to affect appetite. R-17 was prescribed Zanaflex, a muscle relaxant that can affect appetite. R-17 was also diagnosed as prone to constipation and took laxatives. R-17 also had swelling in his feet and ankles that caused discomfort when he walked. On September 9, an attending nurse documented edema from his ankles to his feet. On September 10, R-17's physician prescribed T.E.D. hose (compressive stockings) for the edema. R-17 refused to wear them. On the same date, R-17's pain increased and his physician ordered a low-dosage Duragesic patch in addition to his other medications. The dosage was increased on September 12, when his pain became so severe that he was screaming out and having spasms. By September 13, R-17's spasms were abating. On September 14, the pain had lessened and he was able to move about, though he continued to voice complaints about the pain. On September 18, R-17 was weighed and it was noted that he had lost seven pounds in the week since his admission. This weight loss was attributed to his pain and the combination of drugs R- 17 was taking, as well as some subsidence of the edema. Healthpark's nursing staff reported the weight loss to R-17's physician, who ordered the snacks and the TwoCal protein drinks described in Ms. Donohoe's observation. The physician visited on September 24 because R-17's pain level had increased and he was again experiencing constipation. The physician ordered blood cultures and Methotrexate for his pain. The physician was making continued efforts to determine the cause of R-17's pain. After the blood cultures were performed, R-17 was referred to a rheumotologist. The blood cultures revealed the presence of another organism in R-17's system besides that being treated with Ancef. On October 2, R-17 was also seen by an infectious disease specialist. R-17's condition improved for about a week. By October 10, the physician was preparing to order his discharge from Healthpark. However, in the early morning hours of October 11, R-17 became confused, incontinent, and had greatly increased pain. His physician ordered new lab work, including a total protein array and electrolyte tests. The record shows that on October 12, R-17 was screaming out in pain and his appetite, which had shown some improvement in early October, was very poor. Though R-17's condition and appetite showed some improvement over the next few days, on October 16 his physician decided to admit him to a hospital to determine the cause of R-17's weight loss and why his pain could not be controlled. Ms. Donohue explained the protocol followed by AHCA surveyors assessing a resident's nutritional status. First, the surveyor determines whether the resident has been assessed comprehensively, adequately, and accurately. If the assessment found that the resident was at risk for nutritional problems, then the facility must determine the interventions necessary to prevent the problems. The surveyor next assesses how the facility implemented the interventions. If the interventions do not work, the facility must show that it has re-evaluated the interventions and reassessed the resident to determine why the interventions failed. The facility must demonstrate that it has looked at all relevant factors, including intake of food and supplements and the resident's underlying medical condition. This re-evaluation and reassessment should lead to revisions in the interventions. The essential allegation under Tag F325 was that Healthpark failed to make a nutritional reassessment after finding that R-17 experienced a significant weight loss over a period of four weeks. Ms. Donohue's testimony at the hearing essentially confirmed her observation on the Form 2567, quoted above. R-17 was weighed weekly, and his weight record confirmed that between September 11, 2001 and October 9, 2001, R-17's weight dropped from 175 to 158 pounds. Lori Riddle, AHCA's expert in dietetics and nutrition, was also involved in the decision to cite R-17's treatment as a deficiency. Her review of the records led her to conclude that Healthpark was aware of R-17's weight loss and put in place approaches to counter that weight loss, but that these approaches were not well planned. Healthpark did not adequately monitor R-17's nutritional intake, such that the record indicated amount of food that was offered but not how much R-17 actually consumed. Ms. Riddle found that Healthpark's approaches were "fairly generic." Healthpark added snacks and nutritional supplements to R-17's diet, but did not indicate in its written care plan whether or how these would meet R-17's nutritional needs. After the initial nutritional assessment on September 10, Healthpark did not formally reassess R-17's caloric needs, even after he began losing weight. Ms. Riddle saw indications in the record that Healthpark recognized the weight loss and stated a goal of maintaining R-17's weight, but saw no recalculation of how many calories would be needed to maintain his weight. Alexandria Antoni was the registered dietician at Healthpark and an expert in the field of nutrition. Ms. Antoni performed the initial nutritional assessment of R-17 and monitored his status throughout the relevant period. She testified as to her relationship with R-17 and her efforts to maintain his food intake. R-17 was very alert and oriented, but had adjustment problems because he had always been an independent, relatively healthy person and had never been in a facility like Healthpark. As a result, R-17 was not receptive to staff's offering food. He did not want to be in the facility at all and resented being bothered by staff. Ms. Antoni noted that R-17 was in much pain and had a hard time dealing with it. The pain affected his ability to sit up or be mobile, and he was on many medications for his pain and infection, any or all of which could have affected his appetite. On her initial visit, Ms. Antoni brought R-17 a copy of the Healthpark menu and reviewed it with him and his family. Ms. Antoni credibly testified that R-17 stated no ethnic food preferences at this initial meeting, though he did tell her that he liked soup at lunch, prune juice in the morning, and a banana on his breakfast tray. Ms. Antoni's initial strategy was to increase R-17's intake by offering foods he liked to eat. His family was there with him every day, and she encouraged them to bring in foods that R-17 liked. Ms. Antoni saw R-17 daily. He would wait for her in the hallway and ask her to come in and tell him what was on the menu. R-17 would often directly phone the kitchen staff to discuss his meal preferences. Ms. Antoni disagreed that R-17's caloric needs were not properly documented. In her initial nutritional assessment, she calculated his caloric needs, based on his height, weight and medical condition, at 1,900 to 2,300 calories per day. She relied on the nursing admission assessment, which listed R-17's weight at 185 pounds, rather than his accurate weight of 175 pounds. Thus, Ms. Antoni's calculation resulted in R-17's getting more calories than his actual weight would have indicated. In her later approaches to R-17's situation, Ms. Antoni kept in mind that R-17 was already being offered more calories than his weight required. She opined that if R-17 had consumed what she calculated, his nutritional needs would have been met and he should not have lost weight. Ms. Antoni could not say why R-17 was losing weight. For the most part, he was eating 75 percent of his meals, which provided between 1,800 and 2,000 calories per day. The TwoCal supplement and the snacks ordered by the physician provided an additional 1,000 calories per day, providing a total well in excess of the 1,900 to 2,300 calorie range calculated by Ms. Antoni. Healthpark staff, including Ms. Antoni and R-17's physician, held meetings every week to discuss the residents' weight status. At each of these weight meetings, Ms. Antoni brought up the subject of R-17's weight loss with his doctor. Ms. Antoni disagreed with AHCA's conclusion that no reassessment was performed. She contended that reassessment occurred at the weekly weight meetings. She followed R-17's caloric intake daily. She could think of nothing else she could have done to increase R-17's weight. Any further action, such as ordering further laboratory tests or a feeding tube, would have required a physician's order. Carol Morris, an RN, was Medicare clinical coordinator at Healthpark and an expert in geriatric nursing. She concurred that the diet ordered for R-17 was adequate to meet his needs. He was cognitively aware, responsive, and could not be forced to eat. Ms. Morris confirmed that Healthpark staff tried to encourage R-17 to eat. The staff gave nutritional advice to R-17's family members so that they could assist in offering him foods that might help his appetite. Ms. Morris noted that pain can be a factor in weight loss. She also observed that the edema would have added to his weight on admission, and its resolution would naturally cause some weight loss. Resolution of his constipation also could have affected his weight. Healthpark staff considered all these factors in care planning to deal with R-17's weight loss. Staff communicated with R-17's physician and with his family on a daily basis. The nursing staff was following doctor's orders, and expected to see R-17's weight stabilize at some point. Ms. Morris testified that Healthpark's assessment of R-17's weight loss took into account his edema, constipation, adjustment to the facility, disease process, and the amount he was eating. She did not think there was anything else Healthpark could have done, given that R-17's physician was also perplexed as to why he was losing weight. Ms. Morris attributed the AHCA citation for failure to document R-17's caloric intake to a simple failure to understand Healthpark's method of charting. The nurses did not explicitly note the amount eaten by R-17 at every meal or snack. The nurse's initials indicated that R-17 ate 100 percent of the meal or snack. An amount was noted only when R-17 ate less than 100 percent of the food offered. If R-17 declined a meal or snack, it was noted and his physician was informed. Ms. Morris testified that R-17's preference for Italian food came up in a conversation with his family, after the nutritional assessment was done. When Healthpark staff saw that R-17 was losing weight, they to the family about what he might like to eat. Viewing the evidence in its entirety, it is found that AHCA failed to prove the elements of Tag F325 by a preponderance of the evidence. It is unquestioned that R-17 lost a significant amount of weight during the four weeks from September 11, 2001, to October 9, 2001. However, the evidence does not demonstrate that R-17's weight loss was caused by Healthpark's failure to provide adequate nutrition. To the contrary, the record indicates that R-17 was provided more than enough calories through meals to maintain his weight, and that supplements were ordered by his physician when he began to lose weight. While R-17's appetite was diminished, he continued to consume 75 percent of his meals on average and to take the snacks and TwoCal supplement. Healthpark's staff and R-17's physician were perplexed as to the reasons for his weight loss, with the physician ultimately ordering R-17 admitted to a hospital for further testing as to both his persistent pain and his weight loss. AHCA correctly noted that Healthpark failed to perform a nutritional reassessment of R-17, but the evidence indicates that such a reassessment would merely have constituted a written rendition of the actions the facility was taking. Healthpark was fully aware of R-17's weight loss and reacted in a reasonable manner. Staff encouraged R-17 to eat by offering him dietary options and enlisting the aid of his family. AHCA criticized Healthpark for failure to perform follow-up laboratory tests or to consider a feeding tube for R-17. However, only R-17's physician could have ordered laboratory tests or a feeding tube. The record makes it apparent the physician was concerned with the weight loss, but that his primary concern was R-17's multiple infections and his unexplained and intractable pain. R-17's edema subsided during his stay at Healthpark, which could account for some weight loss. His constipation was resolved to some extent, which could also have had some effect on his weight. R-17 was taking multiple medications, including powerful antibiotics and analgesics, that could affect his appetite. R-17 was having emotional difficulty adjusting to the facility and to his physical condition. Finally, R-17 was cognitively alert and within his rights simply to refuse to eat. Aside from the weight loss itself, R-17 showed no indications of a lack of proper nutrition. Healthpark took all these factors into account in its treatment of R-17. A formal nutritional reassessment would have had no substantive effect on R-17's treatment. At most, Healthpark failed adequately to document the steps it took in caring for R-17 and addressing his weight loss.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Agency for Health Care Administration enter a final order dismissing the Administrative Complaint in DOAH Case No. 02-1788, and rescinding the notice of intent to assign conditional licensure status to Healthpark Care Center in Doah Case No. 02-0033 and reinstating the facility's standard licensure status. DONE AND ENTERED this 6th day of September, 2002, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of September, 2002. COPIES FURNISHED: Lealand McCharen, 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 Karen L. Goldsmith, Esquire Goldsmith, Grout & Lewis, P.A. 2180 North Park Avenue, Suite 100 Post Office Box 2011 Winter Park, Florida 32790-2011 Jodie C. Page, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308
Findings Of Fact The Respondent's name is Maurice L. Kaye. The Respondent's current address is 735-49th Street North, St. Petersburg, Florida 33710. The Respondent is now a licensed osteopathic physician in the State of Florida. The Respondent holds osteopathic license No. OS 0000949. The Respondent was a licensed osteopathic physician in the State of Florida at all times alleged in the Administrative Complaint filed in this cause on August 9, 1983. The Respondent served as the "doctor" at the Florida Medical Weight Loss Clinic from approximately January 15, 1983 until February 10, 1983. The Respondent was employed by Lydia Stein of Florida Medical Weight Loss Clinic. The Florida Medical Weight Loss Clinic placed or caused to be placed an advertisement in the Tampa Tribune dated January 24, 1983. This advertisement failed to conspicuously identify the Respondent by name and failed to conspicuously identify the Respondent as the physician providing medical supervision at the Florida Medical Weight Loss Clinics. The Respondent was vicariously responsible for the dissemination of the advertisement described in the paragraph above. The Respondent caused an advertisement to be placed in the St. Petersburg Times which offered a nonsurgical treatment for cataracts. This advertisement was published on January 10, 1983. This advertisement read as follows: CATARACT TREATMENT NON-SURGICAL FREE CONSULTATION By Dr. Alex Dewart MEDICAL HEALTH CENTER 735-49th Street North 321-3341 The advertisement described above in the St. Petersburg Times failed to conspicuously identify the Respondent by name, failed to identify the Respondent as the responsible physician, and failed to identify the Respondent as an osteopathic physician. The Respondent had no professional or contractual relationship with Dr. Alex Dewart or Alex Duarte, neither of whom were ever employees of Medical Health Center or Respondent at 735-49th Street North, St. Petersburg, Florida. Dr. Alex Duarte is a recognized specialist in non- surgical treatment of cataracts. Evidence was presented concerning the efficacy of non- surgical treatment for cataracts. It is concluded that such treatment may be beneficial and that the extent to which such non-surgical treatment is beneficial is a matter about which reasonable men differ. No believable evidence was presented that the Respondent was unable to assess patients.
Recommendation For failing to identify himself as the responsible osteopathic physician in the Tampa Tribune advertisement contrary to Rule 21R-14.01(2) , Florida Administrative Code and Section 459.015(1)(d), Florida Statutes, it is recommended that the Respondent be fined by the Board the amount of Two Thousand Dollars ($2,000). For having placed the advertisement in the St. Petersburg Times falsely representing that Dr. Alex Dewart was associated with the Medical Health Center contrary to Section 459.015(1)(d) , Florida Statutes, it is recommended that Dr. Kaye's license be suspended for one (1) year and be reinstated upon payment for the fine levied above, and that thereafter Dr. Kaye be placed upon a two (2) year probation period pursuant to Section 459.015(2) , Florida Statutes. DONE and ORDERED this 15th day of January, 1985 in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Oakland Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 15th day of January, 1985. COPIES FURNISHED: James H. Gillis, Esq. Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Maurice L. Kaye, D.O. 735-49th Street, North St. Petersburg, Florida 33710 Ms. Dorothy Faircloth Executive Director Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 =================================================================
The Issue Whether Petitioner was the subject of an Unlawful Employment Practice by being discharged from his employment due to his handicap, obesity with resulting sleep apnea, in violation of the Florida Human Rights Act, Section 760.10, Florida Statutes.
Findings Of Fact Petitioner was hired as a radiology escort in March, 1981, at Sun Coast Hospital. At that time Petitioner weighed approximately 325 - 335 pounds. The essential functions of Petitioner's job require that he transport patients by stretcher and wheelchair to and from the radiology department, and lift and maneuver up to 300 pounds without assistance. Other primary duties include assisting in the radiographic rooms as needed, removing soiled linen to a designated area, monitoring oxygen tanks, cleaning radiographic rooms and performing dark room duties as needed. In 1985, Petitioner received an average work performance evaluation. In 1986, Petitioner did not meet standards in four out of nine areas. Petitioner needed to improve his work habits and relationships with his coworkers. Petitioner frequently complained when requested he perform special tasks. Petitioner received two counsel sheets in 1986. Counsel sheets are the last stage of the progressive discipline procedure. One counsel sheet arose from Petitioner refusing to perform one of his job duties. The other sheet specified that Petitioner was not performing his share of the work. Petitioner complained about his work, slept on the job, and insisted on taking lunch breaks, even if there was a patient that needed assistance. Petitioner's performance improved in 1987. Nevertheless, Petitioner's self motivation was still below standard. In 1988, Petitioner experienced performance problems once again. Petitioner's 1988 annual evaluation specified that Petitioner needed to increase his productivity and decrease his absenteeism. In addition, Petitioner needed to be more self-motivating. In September, 1988, Petitioner received a written warning for falling asleep in the hospital's front lobby. Petitioner was warned not to sleep on hospital time or work premises. When Petitioner returned with a patient, he was short of breath and sweating. In November, 1988, Petitioner received a written counsel sheet again for his poor job performance. Petitioner was slow, did not do his share of the work, and complained in front of patients. Again, when Petitioner returned with a patient, he was short of breath and sweating. Petitioner insisted on sitting down and resting before he transported another patient. Other employees complained to his supervisor that they could not perform their job when Mr. Engleka was not getting patients to them. In 1988, Petitioner did not indicate that he needed reasonable accommodation. Petitioner's position as an escort was a one person job. Petitioner could not rest in between patients because other employees could not get their work done. Delay resulted in radiological tests not being done in a timely fashion which resulted in delayed patient care. At the request of management, Petitioner was evaluated to determine if he was physically able to perform the essential requirements of his position. Dr. Rea, Respondent's personal physician, determined that continued employment of Petitioner would pose a reasonable probability of substantial harm to Petitioner. Petitioner's labile hypertension, evidence of heart disease, obesity, low blood oxygen levels, and the physical requirements of his job placed Petitioner at substantial risk of having a heart attack and/or stroke. Petitioner's prognosis as it stood was determined to be very guarded to poor. There was no way to decrease the substantial risk of potential heart attack or stroke, but for Petitioner to go on medical leave and lose weight. No reasonable accommodations could be made to enable Petitioner to perform his essential job functions and eliminate or reduce the significant risk of heart attack or stroke to Petitioner. It was decided to recommend that Petitioner go on medical leave and participate in a weight loss program to improve his physical well being which could result in improvement of his work performance. Petitioner was advised that the Hospital was placing Petitioner on a medical leave of absence requiring Petitioner to enter the Optifast Weight Loss Program, and get treatment for sleep apnea. Respondent agreed to and did pay for eighty percent (80 percent) of the weight loss program. Petitioner's last day of work was February 14, 1989. When Petitioner was initially told about the requirement for weight loss, he thought it was a good idea. The next Optifast program started in March, 1989. Petitioner was paid all outstanding vacation, holidays, and sick leave until the Hospital outlined the specifics of placing Petitioner on medical leave. On or about March 24, 1989, Petitioner signed the leave agreement which specified Petitioner would be terminated if he did not comply with the weight loss program. Additionally, the Hospital agreed to assist Petitioner in receiving some income. The document specified that Petitioner understood that he would be replaced in his job. The Optifast program lasted at least twenty-six (26) weeks. Petitioner was expected to be on a leave of absence for at least the twenty-six (26) weeks time period, and return to his position once he completed the Optifast program. Petitioner applied for unemployment compensation in February, 1989, but was denied unemployment when Petitioner told the Unemployment Commission that he was on a medical leave of absence. Petitioner started the Optifast program on March 14, 1989. At that time Petitioner weighed four hundred fifty-three (453) pounds. Petitioner had problems with weight loss program compliance in week 6 (April 18, 1989); week 12 (May 30, 1989); and Week 15 (June 20, 1989) when Petitioner gained more than five (5) pounds. Petitioner stopped attending the Optifast program after week 16, (June 27, 1989), of the 26 week program, and did not see the doctor after that date. A very important phase of a fasting program is the behavior modification phase where eating habits are actually changed so the patient does not regain the weight he lost. Petitioner quit the Optifast program before reaching maintenance. Petitioner was not released, nor did he graduate from the Optifast program. Petitioner did not comply with the Optifast Weight Loss Program, because he stopped the program after 16 weeks. Therefore, Petitioner did not comply with the agreement between himself and Sun Coast Hospital. Petitioner understood that he would be terminated by the Hospital if he did not complete the Optifast program. Petitioner was denied Social Security disability benefits in July 17, 1989. At that time, Petitioner told Ken Deibel, former Director of Human Resources for Suncoast Hospital, that he was in desperate need of some type of income. Deibel told Petitioner the Hospital would change Petitioner's status to layoff so he could receive unemployment. Petitioner immediately received two weeks severance pay in keeping with layoff status. Shortly thereafter, Dr. Rea wrote an undated note stating that Petitioner could return to a working status, in order for Petitioner to qualify for unemployment. Dr. Rea wrote this note after Petitioner complained that he would not be able to continue the weight loss program unless he had a source of income. Dr. Rea did not release Petitioner to return to his position of radiology escort. The note was not addressed to or received by the Hospital. The note did not qualify Mr. Engleka to return to work as an escort at Sun Coast Hospital. Petitioner did not receive unemployment compensation following the change of his status from medical leave of absence to layoff. Petitioner did not restart the Optifast program. Petitioner never brought a release from the Optifast program or told the Hospital that he was ready to return to work. On January 14, 1990, Dr. Rea wrote another letter stating Petitioner could return to a "working status." In January, 1990, when Sun Coast Hospital received the release for Petitioner to return to a "working status," Petitioner was not otherwise qualified for the escort position because he had not lost weight, and still represented a substantial risk to himself. At that time Petitioner had regained almost all the weight that he lost while on the Optifast program, weighing 443 pounds. In January, 1992, Petitioner was diagnosed as having congestive heart failure.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED THAT: That a Final Order be issued which DENIES Petitioner's Charge of Discrimination. DONE AND ENTERED this 26th day of May, 1993, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of May, 1993. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Proposed Findings of Fact Submitted by Petitioner: Petitioner did not submit proposed findings of fact Proposed Findings of Fact Submitted by Respondent: Accepted in substance: paragraphs - 1, 2, 4-11, 18-20, 21(in part), 22-42, 45-49, 50 in part Rejected as irrelevant or subsumed: paragraphs - 3, 12, 13, 14, 15, 16, 17, 21(in part), 43, 44 COPIES FURNISHED: Robin E. Greiwe, Esquire Thompson, Sizemore & Gonzalez, P.A. 109 Brush North Suite 200 Tampa, Florida 33602 Mr. Michael David Engleka 2826 Oak Lawn Avenue Apartment B Largo, Florida 34641 Sharon Moultry, Clerk Commission on Human Relations 325 John Knox Road Building F Suite 240 Tallahassee, Florida 32303-4149 Dana Baird, Esquire Commission on Human Relations 325 John Knox Road Building F Suite 240 Tallahassee, Florida 32303-4149
Findings Of Fact The Hospital Cost Containment Board has adopted a policy known as the "outlier" policy. Generally speaking, the policy is a credit available to a hospital as a result of the hospital's having experienced a higher level of outlier experience compared to total admissions in one period as compared to another period. The policy has an exception in which a hospital can receive credit in an amendment for a change in outlier experience in a previous year if it files an amendment to its budget within the first ninety days of its current fiscal year. For such amendments, the comparison is between changes in outlier experience which have occurred between two specific timeframes. The first is the change between outlier experience during all the fiscal year two years prior to the current year and the first half of the year prior to the current year. The second is the change between outlier experience in all the fiscal year two years prior to the current year and all of the year prior to the current year. If the second change is greater than the first change, the difference is the outlier credit that is allowed. For an amendment filed after the first ninety days of a hospital's current fiscal year, no credit is allowed for changes in outlier experience from the prior year because in such cases the comparison is between outlier experience which has actually occurred in the current year-to- date compared to the hospital's prior year actual outlier experience. The "outlier" policy described above has been adopted by the Hospital Cost Containment Board as a policy that it generally applies to all hospitals subject to its regulation. The "outlier" policy described above has not been promulgated as a rule in accordance with the procedures established by Section 120.54, Fla. Stat. (1987).
