The Issue The issue presented for decision in this case is whether a civil penalty in the amount of $1,400.00 should be imposed on the Respondent for the repeated deficiencies cited in the Administrative Complaint dated September 14, 1998.
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: Respondent, Heartland of Zephyrhills ("Heartland"), is a nursing home licensed by and subject to regulation by AHCA, pursuant to Chapter 400, Florida Statutes. Section 400.23(8), Florida Statutes, requires AHCA to evaluate all nursing home facilities and make a determination as to their degree of compliance with the established rules at least every 15 months. The inspection and evaluation is to ensure compliance with applicable state and federal standards. The standards relevant to this case are 42 Code of Federal Regulations (C.F.R.) Section 483.25(c), Florida Statutes, and Rule 59A-4.128, Florida Administrative Code. On August 17-20, 1998, AHCA surveyed Heartland and allegedly found violations of 42 C.F.R. Section 483.25(c), Florida Statutes, which states that a facility must ensure that a resident who enters the facility without pressure sores does not develop pressure sores unless the resident’s clinical condition demonstrates that they were unavoidable, and that a resident having pressure sores receives necessary treatment to promote healing, prevent infection, and prevent new sores from developing. In the parlance of the Federal Health Care Financing Administration Form 2567 ("Form 2567") employed by AHCA to report its findings, this requirement is referenced as "F 314" or "Tag 314." Katherine Robbins is a Registered Nurse with over 20 years experience, including working as a director of nursing in an 86-bed nursing home. She is a federally certified surveyor, and now works for AHCA as a surveyor of long-term care facilities such as nursing homes. Ms. Robbins performed a portion of the survey of Heartland and wrote the deficiency notes under Tag 314 for Resident No. 1. Resident No. 1 was admitted to Heartland on January 29, 1998, with a diagnosis of dementia, osteoarthritis, anxiety, and depression. Ms. Robbins testified that diagnoses of dementia and osteoarthritis indicate a predisposition to the development of pressure sores. She testified that a diagnosis of anxiety could indicate a predisposition to pressure sores, if the patient is receiving psychoactive medications. The initial skin assessment on Resident No. 1 indicated there was no skin breakdown at the time she was admitted. Review of the patient records indicated that skin breakdown was evident on July 26, 1998, when a stage II pressure sore on the coccyx was reported. Pressure sores are graded on a scale from stage I for the least severe to stage IV for the most severe. On August 5, 1998, the facility developed a care plan to deal with the skin breakdown and prevent further breakdown caused by Resident No. 1’s decreased mobility, medications, and lack of awareness of her own needs. The resident was completely unable to care for herself, and was unable to get in and out of a chair or the bed on her own. The approaches set forth in the plan included changing the resident after each incontinent episode, increasing her intake of protein foods, and naps in the afternoon to relieve sitting pressure on the coccyx. Ms. Robbins testified that this plan was not adequate in all respects, but would have been workable had it been properly implemented. On August 17, 1998, the first day of the survey, Resident No. 1 was observed at 9:20 a.m. sitting in a wheelchair in her room. She was observed sitting in the activity room from 11:35 a.m. until 12:50 p.m., at which time she was taken to the dining room for lunch. Following lunch, she was observed sitting in her wheelchair without a change in position until 3:20 p.m., when she was taken to the shower room for a shower. Ms. Robbins testified that allowing the resident to sit in the same position would create pressure on the coccyx, where the resident already had a pressure sore. It is routine preventive care to reposition a resident who has a pressure sore or is at risk of developing pressure sores. On August 18, 1998, Resident No. 1 was observed in her room, sitting in a wheelchair and eating breakfast at 8:15 a.m. She was observed at 12:40 p.m. in the dining room, sitting in a chair without a pressure relieving air flotation jell cushion. Ms. Robbins testified that use of such a cushion would be good practice to help heal a pressure sore. Ms. Robbins testified that she asked the director of nursing about this situation, and that the director of nursing told her that Resident No. 1 was sitting in the wrong chair. The clinical record showed that wheelchair modifications had been included in Resident No. 1’s physical therapy plan, but the resident was not placed in the correct chair. Therapy notes indicated that the goal for the resident was to have a chair that would prevent posterior pelvic pressure and lower the seat so that the resident could maneuver the wheelchair safely. The resident would be able to tolerate sitting up in the wheelchair for three or four hours with repositioning being provided every two hours for bathroom needs and pressure relief. The care plan for Resident No. 1 also called for her to be assisted to bed for a nap in the afternoon. Ms. Robbins observed that the resident was not taken for a nap on either August 17 or August 18, 1998. The survey team made a collective decision to cite the Tag 314 deficiency as a class II deficiency, because the stated care plan for the resident was not followed and this was a repeat licensure deficiency. A class II deficiency is subject to a civil penalty of not less than $1,000. However, the Administrative Complaint erroneously cited this as a class III deficiency and recommended a civil penalty of only $700. The August 17-20, 1998, survey also found alleged violations of Life Safety Code ("LSC") standards set forth by the National Fire Protection Association ("NFPA"), in particular NFPA 90A LSC 12-5.2.1 and 13-5.2.1 air conditioning and ventilation standards. In the parlance of Form 2567, this requirement is referenced as "K 067." Peter Cranfield is a fire protection specialist employed by AHCA. He has over 35 years experience in the design, installation, and sales of fire protection systems, mostly in the private sector, including fire protection systems for nursing homes. Mr. Cranfield participated in the survey of Heartland and cited the facility for the K 067 deficiency. Mr. Cranfield found that the following areas of the facility did not have an operable exhaust ventilation system: the main dietary and dishwasher independent units; the No. 300 wing nurse station toilet room; and the No. 400 wing and No. 100 wing janitor closets. Mr. Cranfield brought these deficiencies to the attention of Heartland’s maintenance director, who agreed upon examination that the exhaust units did not appear to be operational. Mr. Cranfield testified that the maintenance director later told him an electrical malfunction was causing the problem. The K 067 deficiency was noted as a repeat class III citation.
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 requiring Heartland of Zephyrhills to pay a civil penalty in the amount of $1,400 for the two cited class III deficiencies. DONE AND ENTERED this 25th day of March, 1999, 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 25th day of March, 1999. COPIES FURNISHED: Karel Baarslag, Esquire Agency for Health Care Administration 2295 Victoria Avenue Fort Myers, Florida 33906 Terrie Restivo-Mock, Esquire Heartland of Zephyrhills 38220 Henry Drive Zephyrhills, Florida 33540 Sam Power, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308 Paul J. Martin, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308
The Issue The parties have stipulated that Petitioner is a "prevailing small business party" as defined in Section 57.111, F.S., and that the attorney fees requested are reasonable, up to the $15,000.00 statutory limit. The issue remaining for resolution is whether the expungement proceeding had a "reasonable basis in law and fact at the time it was initiated by [the] state agency", as provided in Section 57.111, F.S.
Findings Of Fact The following findings are adduced from the record, consisting of the transcript and exhibits in cases number 89-4151C/89-6087C, from the stipulations of the parties, and from the final order of the agency adopting the recommended order of Hearing Officer, K.N. Ayers, dated March 20, 1990. Petitioners are sole proprietors of Forest Haven, an unincorporated adult congregate living facility (ACLF) licensed by the State of Florida pursuant to Chapter 400, Part II, F.S., and located at 8207 Forest City Road, Orlando, Florida. Petitioners and Forest Haven have their principal office in Orlando, Florida and are domiciled in Orlando, Florida. They have less than 25 full-time employees and a net worth of less than $2 million. On March 17, 1989, a Department of Health and Rehabilitative Services (HRS) survey team visited Forest Haven to conduct an annual survey of the facility. The survey team was comprised of 10 persons, enlarged due to a training exercise. Several of the team members were registered nurses; several members were Office of Licensure and Certification supervisors. During the course of the visit and observations of the residents, members of the team determined that eight residents required a higher level of care than could be provided at the ACLF. As found in the recommended order adopted by the agency, the basis for this determination was, As to T.M., age 81, the need for a restraining vest, and the existence of bruises and gashes on the face and head; As to H.L., age 89, the presence of a foley catheter, total disorientation, low weight and poor skin turgor (brittle skin); As to F.W., age 72, the presence of a foley catheter, observation of fresh blood in the catheter bag, and low body weight; As to M.B., age 81, incontinence and nonambulatory status; As to R.T., age 84, a foley catheter and contraction of both legs; As to L.O., age 94, edema of lower extremities, contracture of both knees, low body weight, skin tear on left buttocks, and possible bed sore on right buttocks; As to P.B., age 88, incontinence, low body weight, and inability to transfer from wheelchair to bed without assistance; and As to F.H., age 89, one-half inch bed sore on coccyx, pitting edema of legs, incontinence and somewhat confused state. An adult protective services investigator was summoned, as well as law enforcement personnel, and the above residents were removed from the facility on an emergency basis and were placed in a nursing home. They were evaluated at the nursing home the following day by Carolyn Lyons, a Registered Nurse Specialist with HRS, who found that intermediate or skilled nursing home services were required. A ninth resident, C.K., was evaluated by a medical review team nurse and an adult protective services worker at the ACLF on March 20, 1989, and was removed from the facility and placed in a nursing home the same day. C.K., age 89, was found to be confused, incontinent, with bruises, a swollen foot, non- ambulatory, and with a red rash on the trunk of her body. HRS obtained orders from the Circuit Court to provide protective services for seven of the above-mentioned residents. Of the remaining two, one was competent to consent to the nursing home placement and another was returned to his own home by relatives. On March 22, 1989, HRS Protective Services worker, Annette Hair, classified the report in her investigation as "confirmed" medical neglect by S.G. and J.G. of the eight residents who had been removed from the ACLF. She relied on her own observations of the individuals, on the medical assessments performed by the survey team nurses at the ACLF, and the subsequent assessment of Carolyn Lyons, the HRS staff person responsible for making an evaluation of the level of care required for medicaid nursing home placement. The narrative "investigative conclusion" of Ms. Hair's report provides, in pertinent part: * * * Based on the facts obtained during the course of this investigation this case is being classified as CONFIRMED. In accordance with F.S. Section 415.102(4) it is clearly estab- lished that [S. and J.G.] were the caregivers of the eight alleged victims of this report as they had been entrusted with the care of said individuals. The allegation of neglect is verified for each of the eight alleged victims in that [S. and J.G.] failed to provide the care and service necessary to maintain the physical and mental health of an aged person that a prudent person would deem essential for the well-being of an aged person (F.S. Section 415.102(13)). Specifically each of the eight alleged victims has a medical condition which required twenty-four hour skilled nursing care and supervision which the caregivers, [S. and J.G.] failed to provide for said individuals. Five of the eight alleged victims, [H.L., L.O., T.M., F.H. and P.B.] had Scabies (a highly contagious disease caused by parasitic mites that burrow under the skin. This disease is associated with unsanitary conditions and causes a painful itch). [S. and J.G.] failed to provide the supervision necessary to detect this disease and in so doing jeopardized the health and well-being of the other residents in the facility. [H.L.] in addition to having Scabies, was semi-comatose, had bed sores on her buttocks and pelvic area and had a foley catheter. [T.M.] had open lacerations on her face, was extremely mentally confused and was known to wander and fall which required her to be physically restrained. [L.O.] had two open skin areas and Edema. [M.B.] has an excoriated area on her buttocks, Edema of the feet, and her right knee was swollen. [R.T.] had a cough of unknown origin, contraction of both legs, and an in-dwelling catheter. [F.W.] had an in-dwelling catheter which was draining bloody urine and appeared malnourished. [P.B.] appeared malnourished and was incontinent of both bowels and bladder, was extremely confused, and had an open draining wound. [F.H.] had bed sores, and Pitting Edema in addition to Scabies. [S. and J.G.], in addition to being negligent for failing to provide the care and services necessary to maintain the physical and mental health of the alleged victims, were in direct violation of F.S. Section 400.426(1) as they did not perform their responsibility of determining the appropriateness of residence of said individuals in their facility. (Petitioner's exhibit 2, in cases number 89-4151C/89-6087C) On April 4, 1989, HRS Protective Services worker, Kathleen C. Schirhman, classified the report in her investigation as "confirmed" medical neglect by S.G. and J.G. She relied on her own assessment of the resident, and on the medical assessments by Nurse Lyons, and by medical staff at the receiving nursing home, including a physician, Dr. Parsons. The narrative "investigative conclusion" of Ms. Schirhman's report provides: Based upon the facts obtained during the course of this investigation, both alle- gations of medical neglect and other neglect were determined to be verified, and the case is being classified as CONFIRMED. [J.G. and S.G.] assumed the responsibility of care for [C.K.] and, therefore, became her caregivers. They did not provide the care and services necessary to maintain the physical and mental health of [C.K.] that a prudent person would deem essential for her well-being. She required medical services and nursing supervision in a skilled nursing facility. Pursuant to F.S. 400.426 "the owner or Admini- strator of a facility is responsible for determining the appropriateness of admission of an individual to the facility and for deter- mining the continued appropriateness of resi- dence of an individual in the facility." The assessment by the CARES nurse determined that [C.K.] was being medically neglected, because she required 24 hour nursing care, which she was not receiving. She had Scabies, for which she was not being treated. The CARES nurse believed that the alleged victim was at risk and requiring immediate nursing home placement. Allegation of "other neglect" was added to the original report. [C.K.] was being neglected, because she was a total transfer patient, who required restraints, which were not used and cannot be used in an ACLF. Furthermore, the potential for harm to her was great: She was blind, confused, and unable to self-preserve. (Petitioner's exhibit number 1 in cases number 89-4151C/89-6087C) S.G. and J.G. requested expungement of the reports but the request was denied on July 10, 1989. Thereafter, through counsel, they made a timely request for a formal evidentiary hearing. The hearing was conducted on February 14 and 15, 1990, by DOAH Hearing Officer, K.N. Ayers. Depositions of David J. Parsons, M.D. and Gideon Lewis, M.D. were filed after the hearing, by leave of the Hearing Officer. In his recommended order issued on March 20, 1990, Hearing Officer Ayers found that the HRS investigators did not contact the physicians who had signed the admissions forms when each of the residents at issue had been admitted to the ACLF. Nor did the HRS staff obtain records from the home health agency which, at the treating physicians' direction, was providing, or had provided, home health care to most of the residents at Forest Haven. Skin lesions (decubitus) and scabies were found to be frequently present in nursing home and ACLF residents. Edema and underweight conditions are also common in these residents. Dr. Lewis, the treating physician for most of the residents at Forest Haven, had ordered the vest restraint for T.M.'s protection. He had also written to HRS about a year prior to the survey, recommending that efforts be made to relocate H.L. to a skilled nursing facility. The recommended order found that no evidence of exploitation or neglect, other than medical neglect, was presented at the hearing. The order also found that evidence of medical neglect by S.G. and J.G. was not presented, but rather, "[t]o the contrary, the evidence was unrebutted that Respondents [Petitioners in this proceeding] promptly reported to the resident's physician all changes in the resident's physical condition." The agency's final order was filed on May 29, 1990, adopting the findings of fact and conclusions of law recommended by Hearing Officer Ayers, and granting J.G. and S.G.'s requests for expungement. The Final Order addressed the department's exceptions to the recommended order, as follows: RULING ON EXCEPTIONS FILED BY THE DEPARTMENT The dispositive issue is whether retention of a resident (or residents) in an ACLF whose medical condition is more serious than the established criteria for residence in an ACLF (see Section 10A-5.0181, Florida Administra- tive Code for the criteria) constitutes per se neglect under Chapter 415. Inappropriate retention of a resident may constitute grounds for disciplinary sanctions under the licensure rules, but it does not automatically consti- tute abuse under Chapter 415. See State vs. E. N. G., Case Number 89-3306C (HRS 2/13/90). The evidence of medical neglect was based on the inappropriate retention of certain resi- dents. The Hearing Officer's finding that these residents were not medically neglected is based on competent, substantial evidence; therefore, the department is obligated to accept this finding. Johnson vs. Department of Professional Regulation, 456 So2d 939 (Fla. 1st DCA 1981), B. B. vs. Department of Health and Rehabilitative Services, 542 So2d 1362 (Fla. 3rd DCA 1989). In pursuing expungement, Petitioners incurred fees, costs and interest in the total amount of $22,772.49. The amount of interest included in that total is $1,000.91. As stipulated, the fees, up to the $15,000.00 statutory maximum, are reasonable.
The Issue DOAH Case No. 01-3072: Whether Respondent's licensure status should be reduced from standard to conditional. DOAH Case No. 01-3616: Whether Respondent committed the violations alleged in the Administrative Complaint dated August 23, 2001, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: AHCA is the state Agency responsible for licensure and regulation of nursing homes operating in the State of Florida. Chapter 400, Part II, Florida Statutes. Jacaranda Manor operates a 299-bed licensed nursing home at 4250 66th Street, North, St. Petersburg, Florida. The facility has a staff of approximately 225 persons, including 15 registered nurses ("RNs"), 25 licensed practical nurses ("LPNs"), and 100-125 certified nursing assistants ("CNAs"). Contract nurses also work at the facility on a daily basis. Jacaranda Manor accepts residents from throughout the United States. It is known as a facility that accepts residents with psychiatric or behavioral idiosyncrasies that other nursing homes might be unwilling to handle. Jacaranda Manor residents are admitted from state mental hospitals, the psychiatric units of general hospitals, assisted living facilities, group homes, and other nursing homes. Jacaranda Manor also accepts admissions from the Pinellas County Jail, mostly homeless persons whose mental condition makes them inappropriate for a jail setting. While all of Jacaranda Manor's residents have a primary diagnosis relating to a need for nursing home care, almost 90 percent of its residents have a specific mental illness as a secondary diagnosis. All of the residents cited in the AHCA survey deficiencies suffered from mental disorders. One hundred percent of Jacaranda Manor's residents receive services related to mental illness or retardation, compared to a statewide average of 2.6 percent. Jacaranda Manor's population includes residents with Alzheimer's disease, schizophrenia, dementia, multiple sclerosis, cerebral palsy, muscular dystrophy, Huntington's chorea, spinal cord injuries and closed head injuries. Over 97 percent of Jacaranda Manor's residents are expected never to be discharged. More than 40 of Jacaranda Manor's residents have lived there for at least 25 years. Statewide, 59.2 percent of nursing home residents are never expected to be discharged. Two-thirds of Jacaranda Manor's residents are male, as opposed to a statewide average of 31.3 percent. Thirty- five percent of Jacaranda Manor's population is under age 50. Ninety-one percent of Jacaranda Manor's residents are Medicaid recipients, as opposed to a statewide average of 64 percent. Jacaranda Manor also operates the HCR Training Center, a licensed vocational school for CNAs, located across the street from the main nursing home. The center provides free training for prospective CNAs, and Jacaranda Manor employs the trainees and graduates. The course of study lasts six weeks, and each class usually has 20-25 students. The school day consists of four hours of classes followed by paid on-the-job training at Jacaranda Manor. Students generally work 30 hours per week at Jacaranda Manor. As part of its effort to create a home-like atmosphere for residents, Jacaranda Manor does not require staff to wear uniforms. The facility has no particular dress code for employees, aside from a requirement that they wear safe, protective shoes. Some of the administrative personnel wear name tags, but are otherwise indistinguishable from other employees. Thus, an outside observer could not be certain, without further inquiry, whether the "staff person" she sees in the facility is a nurse, a CNA, a CNA trainee, or a maintenance worker. The standard form used by AHCA to document survey findings, titled "Statement of Deficiencies and Plan of Correction," is commonly referred to as a "2567" form. The individual deficiencies are noted on the form by way of identifying numbers commonly called "Tags." A Tag identifies the applicable regulatory standard that the surveyors believe has been violated and provides a summary of the violation, specific factual allegations that the surveyors believe support the violation, and two ratings which indicate the severity of the deficiency. One of the ratings identified in a Tag is a "scope and severity" rating, which is a letter rating from A to L with A representing the least severe deficiency and L representing the most severe. The second rating is a "class" rating, which is a numerical rating of I, II, or III, with I representing the most severe deficiency and III representing the least severe deficiency. On April 3 through 6, 2001, AHCA conducted a licensure and certification survey of Jacaranda Manor, to evaluate the facility's compliance with state and federal regulations governing the operation of nursing homes. The survey noted one deficiency related to difficulty in opening two exit doors at the facility, but noted no deficiencies as to resident care. AHCA found Jacaranda Manor to be in substantial compliance with 42 C.F.R., Part 483, Requirements for Long Term Care Facilities. Pursuant to the mandate of the federal Centers for Medicare and Medicaid Services ("CMS") (formerly the Health Care Financing Administration, or "HCFA"), AHCA maintains a "survey integrity and support branch," also known as the "validation team." To ensure the quality and consistency of its survey process, AHCA sends the validation team to re- survey facilities that have received deficiency-free initial surveys. Because its April 2001 survey revealed no deficiencies related to resident care, Jacaranda Manor was considered deficiency-free. On May 8 through 11, 2001, AHCA's validation team conducted a second survey at Jacaranda Manor. The validation team alleged a total of thirteen deficiencies during the May 2001 survey. At issue in these proceedings were deficiencies identified as Tag F241 (violation of 42 C.F.R. Section 483.15(a), relating to resident dignity); Tag F250 (violation of 42 C.F.R. Section 483.15(g), relating to social services); and Tag F272 (violation of 42 C.F.R. Section 483.20(b)(1), relating to resident assessment). All of the deficiencies alleged in the May 2001 survey were classified as Class III under the Florida classification system for nursing homes. At the time of the survey, Class III deficiencies were defined as those having "an indirect or potential relationship to the health, safety, or security of the nursing home facility residents, other than Class I or Class II deficiencies." Section 400.23(8)(c), Florida Statutes (2001). Jacaranda Manor disputed the deficiencies alleged in the May 2001 survey and elected to go through the federally authorized Informal Dispute Resolution ("IDR") process. See 42 C.F.R. Section 488.331. The IDR process allows the facility to present information to an AHCA panel, which may recommend that the deficiencies alleged in the survey be deleted, sustained, or modified. Under AHCA's application of the process, the three-member AHCA panel considers the facility's information and then makes a recommendation to Susan Acker, the director of AHCA's health standards and quality unit, who makes the final decision. The IDR meeting was held via teleconference on June 11, 2001. The IDR resulted in AHCA's upholding all the deficiencies alleged in the May 2001 survey. AHCA modified the state level classification of Tag F241 from Class III to Class II. At the time of the survey, Class II deficiencies were defined as "those which the Agency determines have a direct or immediate relationship to the health, safety, or security of the nursing home facility residents, other than class I deficiencies." Section 400.23(8)(b), Florida Statutes (2000). This change in classification was recommended by the IDR panel and approved by Ms. Acker. The IDR meeting also resulted in AHCA's changing Tag F272 to Tag F309 (violation of 42 C.F.R. Section 483.25, relating to quality of care) and to classify the alleged Tag F309 deficiency as Class II. This change was made by Ms. Acker alone. The IDR panel recommended upholding the original Class III, Tag F272 findings, but increasing the federal scope and severity rating from D (no actual harm but with potential for more than minimal harm) to G (actual harm that is not immediate jeopardy). Ms. Acker overruled that recommendation and imposed the change to Tag F309. Based on the increased severity of the alleged deficiencies in Tags F241 and F309, from Class III to Class II, AHCA imposed a conditional license on Jacaranda Manor, effective May 15, 2001. The license expiration date was February 28, 2002. On June 19 and 20, 2001, AHCA conducted a follow-up survey of Jacaranda Manor to determine whether the deficiencies alleged in the May 2001 survey had been corrected. The survey team determined that Tags F241 and F250 were uncorrected Class III deficiencies. This determination resulted in the filing of an Administrative Complaint seeking imposition of a $2,000 civil penalty. May 2001 Survey A. Tag F241 The May 2001 validation survey allegedly found violations of 42 C.F.R. Section 483.15(a), which states that a facility must "promote care for residents in a manner and in an environment that maintains or enhances each resident's dignity and respect in full recognition of his or her individuality." In the parlance of the federal Health Care Financing Administration Form 2567 employed by AHCA to report its findings, this requirement is referenced as "Tag F241." Tag F241 is commonly referred to as the "quality of life" or "dignity" tag. For purposes of the Form 2567, the validation team gave the alleged deficiencies on the May 2001 survey a federal scope and severity rating of E for Tag F241. A rating of E indicates that there is a pattern of deficiencies causing no actual harm to the residents but with potential to cause more than minimal harm. After the IDR process, the federal scope and severity rating for Tag F241 was increased to H, meaning that there is a pattern of deficiencies causing actual harm that is less than immediate jeopardy to the health or safety of the residents. The increase of the federal scope and severity rating from E to H corresponded to the increase of the state level classification from Class III to Class II. The Form 2567 for the May 2001 survey listed nine separate incidents under Tag F241, the dignity tag. The first surveyor observation involved Resident 31, or "R-31": On 5/11/01 at 8:30 a.m., R-31 was observed in a 4 bed room, sitting on his/her bed eating breakfast. The resident had no clothes on, had a colostomy bag and foley catheter visible to anyone walking by in the hallway. A staff member went into the room to another resident but did not cover R-31. A second staff member came to the doorway of the room to talk to the first staff member and also did not attempt to cover the resident. Marsha Lisk was the AHCA team coordinator for the May 2001 survey and was the team member who recorded the observation of R-31. Ms. Lisk stated that this was a random observation, made without benefit of reviewing R-31's records. Ms. Lisk could not identify the two staff members who failed to cover R-31, aside from a recollection that one of them was a CNA. She was "astounded" that the staff persons did not intervene to cover the naked resident, especially because they could see that Ms. Lisk was standing in the doorway taking notes. Ms. Lisk would have thought nothing more of the incident had the staff members done anything to obscure the view of the resident from the hallway. Ms. Lisk admitted that R-31 appeared to be in no distress, and that no other resident complained about his nudity. Twenty minutes after this observation, Ms. Lisk saw R-31 fully clothed and being pushed in a wheelchair down the hall. Ms. Lisk noted this incident as a deficiency because she believed nudity cannot be considered to meet community standards under any circumstances. Even if the resident consciously preferred nudity, or was so mentally incapacitated as to be unaware he was nude, it was staff's responsibility to cover the resident, pull a curtain around him, or move his bed to a place where it could not be seen from the hall. At the hearing, it was established that R-31 was a 59-year-old male with multiple medical and psychiatric diagnoses, including schizophrenia and dementia due to organic brain syndrome. He preferred to sleep in the nude and to dress himself, though he required some assistance to do so properly. He was able to close his own privacy curtain. R-31 was very resistant when staff approached to dress him, to the point of physically lashing out. R-31 would refuse to eat if he was pushed to clothe himself near meal time. Carol Heintz, Jacaranda Manor's psychiatric nurse manager, stated that the main goal was to get R-31 to eat his breakfast, and that staff was concerned that any effort to dress him would disrupt his meal. Ms. Heintz offered no reason why the door could not be closed or the privacy curtain drawn while R-31 ate his breakfast in the nude. R-31 also preferred to keep his colostomy uncovered. Staff would cover it and encourage him to keep it covered, but he would refuse to do so. Ms. Lisk, the surveyor, admitted that she did not review R-31's record even after her observation. She made no attempt to interview R-31 and admitted that she was unaware of his habits and preferences. The second surveyor observation on Tag F241 concerned Resident 21,1 or "R-21", and stated: During the tour on 5/08/01, at approximately 10 a.m., a staff member invited the surveyor into a room to meet [R-21]. He/she was in adult briefs uncovered lying on his/her bed. There was no attempt to cover the resident to insure privacy. At approximately 4:40 p.m. [R-21] was observed from the hallway lying in bed in his/her adult brief with no pants on and the privacy curtain not drawn. Kriste Mennella was the survey team member who recorded the observation of R-21, identified only as a male resident. She did not review the facility's records relating to R-21, and offered no testimonial details beyond the facts set forth in her observation. She did not interview the resident and did not know whether the resident was able to respond to questions. Jacaranda Manor offered no explanation as to why the door could not have been closed or the privacy curtain drawn to prevent passersby from seeing R-21 uncovered in his bed. The third surveyor observation on Tag F241 concerned Resident 8, or "R-8," and stated: [R-8] was observed on 5/8/01 wheeling out of the dining area with several staff present. He had a black polo shirt on inside out and his Khaki pants, along with his adult brief, were down to his knee's [sic] exposing his right lower side and hip. There was no intervention by staff. He was unshaven and had dirty hand [sic] and his fingernails were ragged and dirty. His hair was unkempt. On 5/9/01 through out [sic] the day [R-8] was observed to have on two different shoes. One was a tennis shoe with his name written across the top and the other a brown loafer. Ms. Mennella recorded the observations of R-8. Ms. Mennella identified the unnamed staff persons as "management folks" who were following the surveyors around the facility, and the person in charge of the dining room. These staff persons told Ms. Mennella on May 8 that they did not intervene because R-8 was "resistive to care." Ms. Mennella subsequently discussed R-8 with a CNA, who told her that the resident may or may not be combative, depending on how he is approached. Ms. Mennella believed that some intervention should have occurred even with a combative resident, if only verbal prompting to tell the resident that his pants were down and he should pull them up. She observed R-8 throughout the three days of the survey, but did not see him with his pants down again after the May 8 observation. On May 9, when she saw R-8 wearing unmatched shoes, Ms. Mennella went to the resident's room and confirmed that he did have matching shoes. R-8 was a 46-year-old male with multiple medical and psychiatric diagnoses, among them paranoid schizophrenia. R-8 saw a variety of mental health professionals, including a psychiatrist, a psychiatric ARNP for medication management, a psychologist for individual therapy, and a licensed clinical social worker for group therapy. R-8 was classified as an elopement risk, paranoid and suspicious with a history of aggression. R-8 did not require a wheelchair to ambulate. R-8 habitually carried his "things" (e.g., a radio, or a box containing items sent him by a relative) with him as he moved about the facility. He liked to use a wheelchair to more easily carry his possessions. R-8 dressed himself, usually with some assistance in the morning. He changed clothes five or six times a day. Sometimes he would wear two different outfits in layers, or wear unmatched shoes. Jacaranda Manor staff uniformly noted that there was nothing unusual in R-8 having his shirt on inside-out or backwards, because he was constantly taking his clothes off and on. R-8 liked to wear his pants unbuttoned. He often moved about the facility holding his pants up with one hand, and his pants would often droop down to his knees. Jacaranda Manor staff constantly intervened in an effort to keep R-8 properly clothed. He was sometimes compliant, but other times would resist pulling up his pants. He would curse and run out of the room, or threaten to tell the President of the United States about his treatment. R-8 was indifferent to his appearance, displaying anxiety about his clothing only when staff attempted to change it. He would muss his hair as soon as it was brushed. His hands would get dirty because R-8 had a habit of rooting on the ground or through ashtrays for cigarette butts to smoke. Since the survey, Jacaranda Manor has addressed this problem by installing ashtrays that the residents cannot reach into. Ms. Mennella testified that she knew nothing about R-8's preferences or behaviors regarding clothing. She did not know he had a habit of tousling his own hair. She did not know he had a habit of rooting for cigarettes. She did not ask who wrote R-8's name on his shoe. Jacaranda Manor has a policy of not marking residents' clothing, for privacy reasons. However, R-8 would write his own name on his shoes and other items he received from his family because he was proud of them. The fourth surveyor observation on Tag F241 concerned an unnamed resident: During an observation on 5/9/01, outside in the lifestyles patio area, at approximately 9:10 a.m., a staff person who was on break under the pavilion shouted across the courtyard to a resident in a loud voice, "MR. (name) PULL UP YOUR PANTS." There was [sic] several staff on break and at least 15 other residents out side [sic] in the patio area at the time. Ms. Mennella recorded this observation. She testified that the staff person who yelled was an aide. By the time she looked to see whom the staff person was calling to, Ms. Mennella could see no resident with his or her pants down. Not having seen the resident, Ms. Mennella was unable to say whether the staff person could have reached the resident before his or her pants came down. Her concern was the tone and manner in which the instruction was given, and the embarrassment it could have caused the resident. Despite not having seen the resident, Ms. Mennella was certain that the staff person was addressing a male. Rosa Redmond, the director of nursing at Jacaranda Manor, testified that she learned of the incident shortly after it happened. A CNA and a trainee from the HCR Training Center told her of the incident. It was the trainee who called out to the resident. The trainee told Ms. Redmond that a female resident's slacks were starting to fall. The trainee was concerned that the resident would fall, and could not reach the resident in time to pull up her slacks, so the trainee called out to the resident. The fifth surveyor observation on Tag F241 was a general statement: Residents were observed during numerous random observations out in the patio area during all three days of the survey to have on only socks, no shoes on their feet. As a result the socks were black on the bottom. These general observations were made by surveyors Mary Maloney and Kriste Mennella. Ms. Maloney testified that she has surveyed nursing homes from Pensacola to Key West, including homes that accept mental health residents and have secured units, but that she has never seen another facility in which residents are allowed to walk around barefoot or only in dirty socks. In her experience, staff would intervene and redirect the residents to put on shoes or change their socks. Ms. Maloney testified that she asked one resident why he was not wearing shoes. The resident told her that he did not want to wear shoes, and showed Ms. Maloney several pairs of shoes in his closet. Ms. Maloney did not cite this instance as a deficiency. However, she noted other shoeless residents who appeared confused or cognitively impaired, and did cite these instances as deficiencies because of staff's failure to intervene or to assess why the residents resisted wearing shoes. Ms. Maloney admitted that the survey team discussed the issue of residents not having proper footwear, and determined that it caused no actual harm to the residents. Jacaranda Manor did not contest the fact that residents often go barefoot or wear only socks. Through various sources, the facility maintains an ample supply of shoes and socks for the residents, and attempts to keep the residents properly shod. However, the facility also tolerates residents' preferences in clothing and footwear, and does not consider the question of footwear a pressing issue. Some residents simply do not want to wear shoes. Some residents feel steadier when they can feel the floor against their bare feet. Carol Heintz, Jacaranda Manor's psychiatric nurse manager, testified that neither therapists nor family members have ever expressed concerns over the issue. No evidence was presented that going barefoot or wearing socks posed a safety risk to the residents. The alleged harm was simply that some of the residents had dirty feet, or dirty socks on their feet. The sixth surveyor observation on Tag F241 offered more specific information on the question of resident footwear: The facility did not assist residents to wear appropriate footwear, in that some of the residents who resided on 1 West, the secure unit, were observed wearing socks without shoes or were barefoot throughout the survey. During the initial tour on 5/08/0 [sic], it was observed that several residents were pacing and walking throughout 1 West, with only socks on. Some of these residents walked outside on a sidewalk. The soles of these resident's [sic] white socks were soiled dark gray. On 05/08/01, at 6:50 p.m., there were three male residents observed to walk around the unit with white socks on. One of these residents had holes in the socks. On 05/09/01 at 10:15 a.m., there was one male resident walking outside in the enclosed courtyard wearing white socks, as well as a female resident who was pacing back and forth on the side walk wearing socks only. On the morning of 05/10/01 at 7:45 a.m., there was a male resident sitting in a chair outside who was barefoot. On 05/11/01, at 9:30 a.m., during the resident's [sic] arranged smoking time on the enclosed courtyard on 1 West, there were several residents walking around wearing only socks on their feet. One male resident was wearing black shoes, but they were different style shoes. This was shown to the direct care staff who were not aware. They were not sure if these shoes belonged to this resident. The staff also stated that some of the resident's [sic] shoes were missing or the residents chose not to wear their shoes. Resident #16 was observed walking around in loose-fitting cloth slippers with rubber soles on 05/09/01, on 05/10/01. The resident showed that she/he had one black dress shoe, because the other shoe was missing. On 05/11/01, the resident was wearing open- toed bedroom slippers. This resident was identified as a fall risk due to akinesia (involuntary movement of the body). The resident's current care plan included an approach "to wear proper fitting shoes with non-skid soles." The resident was observed with a shuffling gait. Resident 16, or "R-16," was a 39-year-old male with HIV, cerebral atrophy, and a history of AIDS-related dementia with delusions. He suffered from depression, anxiety, psychosis, paranoia, and bipolar disorder. He was childlike and possessed poor judgment, forming unrealistic plans to get a job and live on his own outside a clinical setting. R-16 was an elopement risk, which caused a community-based HIV program to reject him for participation. Jacaranda Manor tried placing R-16 in its open unit, but he tried to leave without telling anyone, which necessitated placing him in the facility's secure unit. R-16 abused alcohol, liked to smoke and drink coffee constantly, and was prone to giving away his clothes. R-16 had pronounced preferences as to footwear. While he would occasionally wear regular shoes, he most often wore a pair of fuzzy, open-toed slippers. He would have a temper tantrum if not allowed to wear his slippers. R-16 was at risk of slipping and falling due to akinesia, and staff explained to him the potential safety problems in wearing slippers. R-16 had a peculiar gait, described by Jacaranda Manor personnel as "shuffling" or as a "sashay." His slippers had rubber soles to help prevent slipping. The seventh surveyor observation on Tag F241 concerned Resident 32, or "R-32", and an unnamed resident: On 05/08/01, at 6:50 p.m., during the evening meal, [R-32] was observed from the hallway, sitting in a chair in his room wearing only a t-shirt and an incontinent brief. Several staff were observed to walk past this resident's room and did not attempt to intervene. On 05/09/01, at 10:15 a.m., during a random observation, there was a confused male resident walking outside in the enclosed courtyard, who was removed his pants [sic] and exposed his incontinent brief. There was a female resident pacing back and forth nearby. A direct care staff person who was escorting another resident, walked past this resident without intervening. The surveyor went inside to inform the medication nurse of the situation. Mary Maloney was the surveyor who recorded the observation of R-32 and the unnamed resident. R-32 was a male resident who preferred not to wear trousers. Jacaranda Manor staff tried to convince R-32 to wear trousers. Staff tried different kinds of pants, such as pull-ups, zippered pants, and shorts. R-32 would occasionally accede to wearing the shorts, but while in his room always dressed in his brief and a t-shirt. Jacaranda Manor did not dispute Ms. Maloney's observation of R-32. Jacaranda Manor was unable to address Ms. Maloney's subsequent observation, as she was unable to name the "confused male resident," the pacing female resident, or the staff person who allegedly failed to intervene. Ms. Maloney's observation implies that the unnamed staff person should have intervened, but offers no information as to whether the staff person could have safely abandoned the other resident he or she was escorting at the time. The eighth surveyor observation on Tag F241 concerned Resident 4, or "R-4," and stated: During the breakfast meal observation on 05/09/01 and 05/10/01 at about 9:30 a.m., [R-4] was observed to be fed her/his breakfast at the nurse's station. The staff person was observed to be standing and feeding the resident who was seated in a reclining chair. The resident's meal tray was placed on the counter of the nurse's station, where the resident could not see her/his food. There was a high level of staff activity and residents walking around the area. Ms. Maloney was the surveyor who recorded this observation. Both Alma Hirsch, Jacaranda Manor's chief administrator, and Carol Heintz, the psychiatric nurse manager, testified that R-4 is fed entirely by means of a gastrointestinal tube and thus could not have been eating breakfast at the nurses' station. At the hearing, Ms. Maloney conceded that she might have misidentified the resident on the Form 2567, but was certain that she saw a particular male resident being fed breakfast at the nurses' station on May 9 and 10. Jacaranda Manor did not contest the fact that residents are often fed at the nurses' station. AHCA cited this incident as a deficiency because feeding the resident at a busy nurses' station does not promote his dignity. Ms. Maloney inquired and learned that the resident could not be fed in his room because it was being painted. She acknowledged that the resident in question was difficult to feed, and so prone to violent outbursts that Jacaranda Manor had removed all the furniture from his room for his safety. Ms. Maloney nonetheless thought that Jacaranda Manor staff should have chosen a quieter, less stimulative environment in which to feed the resident. The ninth surveyor observation on Tag F241 concerned Resident 16, or "R-16," and stated: On 05/10/01, at about 3:30 p.m., [R-16] approached the nurse's station and asked the medication nurse for some coffee. (The resident had his/her own personal jar of instant coffee.) The nurse denied the resident the coffee. The nurse stated that the resident's coffee was being rationed to several times per day. According to the nurse, the resident's coffee consumption was restricted because the resident prefers the coffee extra strong, and the resident exhibits effects from the excessive caffeine, described as "bouncing off the walls." From review of the clinical record, there was no physician's order for a caffeine restriction. According to facility policy, the coffee served to the residents is decaffeinated, the nurse reported. Ms. Maloney recorded this observation. R-16 is the same resident cited in the sixth surveyor observation for wearing open-toed slippers. Jacaranda Manor serves only decaffeinated coffee to all residents. R-16 had a personal, "special" jar of instant decaffeinated coffee that was in fact provided by Ms. Hirsch, at her own expense. R-16 was allowed to believe that his "special" coffee was caffeinated. R-16 was incapable of making his own coffee. His jar of coffee was kept in the medicine room near the nurses' station, and R-16 had to ask a nurse to prepare his coffee. The nurse would go to the kitchen for hot water, then prepare the coffee. R-16 drank coffee all day, every day. There were no medical restrictions on how much coffee he could drink. He carried a large mug, and would ask the nurses to prepare his coffee as many as thirty times a day. R-16 would ask insistently until his coffee was made. If the nurses were not busy, they would make the coffee immediately. If they were in the middle of a procedure, they would ask R-16 to wait until they were finished. Elaine Teller was the nurse referenced in the ninth observation. She was the charge nurse at the time of the incident. Ms. Teller was passing medications and speaking to Ms. Maloney when R-16 approached and demanded his coffee. Ms. Teller told R-16 that she was busy and would get his coffee in a few minutes. Ms. Maloney testified that Ms. Teller's response was "inappropriate," in that it had the potential to embarrass R- 16 in front of the people at the nurses' station. Ms. Maloney believed it would have been more appropriate to take R-16 aside and speak with him. Ms. Teller denied treating R-16 rudely or disrespectfully. She was "firm" with R-16 "because that's what [he] needs." Ms. Teller was close to R-16, such that he referred to her as his "second mom." At the time, Ms. Maloney voiced no concern over Ms. Teller's treatment of R-16. Ms. Teller testified that she had delayed but never "denied" coffee to R-16. She had on occasion lectured R-16 that he drank too much coffee, but never stated that R-16's coffee intake was restricted. Surveyors employ a "Guidance to Surveyors" document for long-term care facilities contained in the "State Operations Manual" promulgated by the federal CMS. The guidelines for Tag F241 state: "Dignity" means that in their interactions with residents, staff carries out activities that assist the resident to maintain and enhance his/her self-esteem and self-worth. For example: Grooming residents as they wish to be groomed (e.g., hair combed and styled, beards shaved/trimmed, nails clean and clipped); Assisting residents to dress in their own clothes appropriate to the time of day and individual preferences; Assisting residents to attend activities of their own choosing; Labeling each resident's clothing in a way that respects his or her dignity; Promoting resident independence and dignity in dining (such as avoidance of day-to-day use of plastic cutlery and paper/plastic dishware, bibs instead of napkins, dining room conducive to pleasant dining, aides not yelling); Respecting resident's private space and property (e.g., not changing radio or television station without resident's permission, knocking on doors and requesting permission to enter, closing doors as requested by the resident, not moving or inspecting resident's personal possessions without permission); Respecting resident's social status, speaking respectfully, listening carefully, treating residents with respect (e.g., addressing the resident with a name of the resident's choice, not excluding residents from conversations or discussing residents in community setting); and Focusing on residents as individuals when they talk to them and addressing residents as individuals when providing care and services. The same document sets forth survey procedures, and emphasizes examining the context of staff's actions: . . . As part of the team's information gathering and decision-making, look at the actions and omissions of staff and the uniqueness of the individual sampled resident and on the needs and preferences of the resident, not on the actions and omissions themselves. The issue of patient dignity was the subject of extensive testimony at the hearing. Ann Sarantos, survey integrity and support manager for AHCA and an expert in long- term care nursing practice, testified that the surveyors understood that residents will remove their shoes and clothing, particularly in a facility with the resident population of Jacaranda Manor. The survey team acknowledged that Jacaranda Manor's population was unique in terms of the number of mentally ill residents. Ms. Sarantos stated that AHCA's central concern was staff's lack of sensitivity. The surveyors repeatedly saw staff making no effort to cover the residents or get them into shoes, even when the surveyors pointed out the problems. Ms. Sarantos stated that AHCA does not set a different dignity standard for patients with psychiatric or organic conditions. She noted that a high percentage of residents in any nursing home will have some form of dementia or behavioral problem, and that the facility must plan its care to manage these problems. She stated that AHCA employs the same survey procedures for all facilities, regardless of the patient population. Patricia Reid Caufman, an expert in social work, opined that the residents are nursing home patients regardless of their diagnoses. When the facility accepts these patients, it does so on the basis that it can meet their needs, including their dignity needs. Susan Acker is the nursing services director of AHCA's health standards and quality unit. She is an expert in long-term care and was the person who made the final decision as to the classification of Jacaranda Manor's deficiencies. Ms. Acker stated that the provision of adequate clothing and footwear is a "fundamental level of compliance." The individuals listed under the Tag F241 deficiencies had portions of their bodies exposed in a way that does not conform to the community standard of a nursing home. The "community standard" for a nursing home includes an expectation that a resident will be dressed in his or her own clothes and assisted in dressing and making appropriate selections, or, if the resident's judgment is impaired, will be provided with selections allowing them to appear in a dignified manner. Ms. Mennella offered the common sense view that, in applying a "community standard," the surveyor should ask herself whether a mentally impaired resident would be embarrassed under normal circumstances. The exposure of these residents demonstrated noncompliance with the requirement that the facility maintain or enhance the self-esteem and dignity of the residents. Ms. Acker acknowledged the right of the residents to select their own clothing or to be undressed within the confines of their rooms. However, the facility must continually provide these residents with encouragement or assistance in dressing. Staff must act if the residents lack the ability to make their own judgments. The issue was not that the facility should deny choice to the residents, but that a therapeutic environment should be established that maintained and enhanced resident dignity. Ms. Acker found that the "key point" in the deficiencies was the proximity of staff to the cited residents. In each instance involving nudity or improper dress in a resident's room, staff was available to pull the privacy curtain or to assist the resident in redressing. The staff person may not have minded the resident's dress, but should have acted to protect the resident's dignity when a stranger walked into or past the room. Staff could have re- established the community standard by clothing the resident or providing the privacy that would protect the resident's dignity, but failed to do so. Ms. Acker characterized these incidents as staff's failure to provide services to the community standard for residents who were unable to exercise their own judgment to maintain their own dignity. Ms. Acker testified that, to change the scope and severity of Tag F241 from E to H, the IDR panel members would have to believe that the situation resulted in a negative outcome that compromised the ability of the resident to maintain or reach the highest practicable physical, mental or psychosocial well-being, as defined in the Resident Assessment Protocol ("RAP"). She concurred with upgrading Tag F241 to a Class II deficiency because there was a direct impact on the residents observed and on those residents who witnessed the failure to deliver adequate care. Carol Heintz, the psychiatric nurse manager and an expert in psychiatric nursing care, opined that Jacaranda Manor is not below community standards in terms of patient dignity. She agreed that "it would be nice" if more than 200 residents with physical and mental health issues wanted to wear appropriate clothing, shoes and socks every day, but for these people "things like that may not be the priority that it is to you or [me]." Clothing issues can be difficult with some residents, because they do not perceive their unorthodox dress or even nudity as an issue. If a resident resists wearing proper clothing or using a privacy curtain, the staff just keeps trying to reinforce proper dress and modesty. Ms. Heintz acknowledged the facility's responsibility to respect the rights of others not to be subjected to the improper dress of residents. However, she also stated that residents' modes of dress have had no adverse impact on them, and that no therapist or any resident's family has ever complained about the facility's methods of dealing with clothing and footwear issues. In light of all the factual and expert testimony, it is found that the IDR panel's decision to upgrade Tag F241 from Class III, with a scope and severity rating of E, to Class II, with a scope and severity rating of H, was supported by the evidence presented, though not as to all nine observations made under Tag F241. The first observation, for R-31, supports the Agency's finding a Class II deficiency. R-31 was sitting on his bed eating breakfast in the nude and was plainly observable from the hallway. Staff persons were present but did nothing to remedy the situation. Granting that it may have been counterproductive to attempt to dress R-31 while he was eating, no evidence was presented to show that pulling the privacy curtain or closing the door would have disturbed R- 31's meal. Even if, as Jacaranda Manor implied, these staff persons may not have been direct care employees, they should have alerted the nursing staff to the situation. The dignity of R-31 and of any other resident who happened to pass his room were directly affected by this incident. The second observation, for R-21, supports the Agency's finding a Class II deficiency. R-21 was seen twice lying in bed wearing uncovered adult briefs. Jacaranda Manor offered no reason why the resident could not be covered or why the view from the hallway could not be obscured. The dignity of R-21 and of any other resident who happened to pass his room were directly affected by this incident. The third observation, for R-8, does not support the Agency's finding a Class II deficiency. The initial rating of this as a Class III deficiency was supported by the evidence. While the bare facts set forth in the observation were concededly accurate, the surveyor focused entirely "on the actions and omissions themselves," and made no effort to assess the "uniqueness of the individual sampled resident" or "the needs and preferences of the resident." The facts established that R-8 was subject to unbuttoning his pants and allowing them to droop. In three days of constant observation, Ms. Mennella witnessed one such brief incident. R-8 was also subject to digging for cigarette butts and tousling his own hair, making it very likely that at some point over a three-day period he could be observed with dirty hands and unkempt hair. R-8 wrote his own name on his shoes, because he was proud of them. Testimony established that staff of Jacaranda Manor conscientiously cared for R-8, but that it was impossible to maintain appropriate appearance for this resident all day, every day. There was no evidence of any impact on this resident's dignity or self-esteem. The fourth observation was of the staff member shouting to a resident to pull up her pants. This observation does not support the Agency's finding a Class II or a Class III deficiency. Had the surveyor made inquiry into the circumstances of the incident, she would have learned that it involved a sudden reaction to a potentially critical situation. The trainee called out to the resident because she couldn't reach the resident in time to keep her pants from falling, which in turn could have caused the resident to fall. Concern for the resident's possible embarrassment cannot be held more important than the resident's physical safety when an emergency arises. The fifth and sixth observations involved residents walking around barefoot, in only socks, or, in the case of R- 16, in slippers. The deficiencies noted for these observations do not support the Agency's finding a Class II or a Class III deficiency. The only harm alleged by the Agency was that the residents' dignity is impaired by their having dirty feet. It is found that Jacaranda Manor was acceding to the wishes of its residents regarding footwear, and that dirty feet or socks are a necessary and essentially harmless incident of choosing not to wear shoes. The seventh observation, of R-32 and an unnamed resident, supports the Agency's finding a Class II deficiency. As to the unnamed resident observed in the courtyard with his brief exposed, the surveyor could not provide enough information to allow Jacaranda Manor to defend itself. The surveyor could not name the resident, the female resident allegedly in the vicinity, or the staff person who allegedly walked past. This portion of the deficiency was unproven. However, the surveyor adequately stated her observation of R- 32, who was seen from the hallway sitting in a chair in his room, wearing only a t-shirt and adult brief. Several staff members walked past the room and did not intervene. Jacaranda Manor offered no reason why the resident could not be covered or why the view from the hallway could not be obscured. The dignity of R-32 and of any other resident who happened to pass his room were directly affected by this incident. The eighth observation, of a resident initially identified as R-4, supports the Agency's finding a Class II deficiency. The surveyor guidelines expressly describe promoting "dignity in dining." While the underlying facts explained why Jacaranda Manor could not feed the resident in his room, they did not explain why the resident was being fed at the busy, noisy nurses' station rather than in the dining room or some other, quieter location. The resident was difficult to feed and subject to violent outbursts, but these facts do not explain the choice of feeding the resident at the nurses' station, leading to the inference that this choice was likely made for the convenience of the nurses. The dignity of this resident was directly affected by this incident. The ninth observation, of R-16, does not support the Agency's finding a Class II or a Class III deficiency. The facts established that Ms. Teller, the nurse in question, had a close relationship with R-16 and could speak somewhat sternly to him without affecting his dignity or self-esteem. Ms. Teller's version of the incident is credited. Requiring R-16 to wait a few minutes for his coffee while Ms. Teller finished passing medications caused the resident no harm whatever. In summary, of the nine observations listed under Tag F241, four supported the Agency's finding of a Class II deficiency; one supported the initial finding of a Class III deficiency; and four supported a finding of neither a Class II or a Class III deficiency. Thus, the Agency's overall finding of a Class II deficiency for Tag F241 is supported by the record evidence. Tag F250 The May 2001 validation survey allegedly found a violation of 42 C.F.R. Section 483.15(g), which states that a facility must "provide medically-related social services to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident," and sets forth the standards for resident social services. This requirement is referenced on Form 2567 as "Tag F250," or the "social services tag." For purposes of the Form 2567, the validation team gave the alleged deficiency on the May 2001 survey a federal scope and severity rating of D for Tag F250. A rating of D indicates that there is an isolated deficiency causing no actual harm to the resident but with potential to cause more than minimal harm. This alleged deficiency was rated Class III, and was not part of the basis for imposing a conditional license on Jacaranda Manor. Its significance is that it was determined to be an uncorrected deficiency in the June 2001 return survey, and thus formed part of the basis for the civil penalty imposed after the return survey. The May 2001 survey found one instance in which Jacaranda Manor allegedly failed to provide medically related social services. The surveyor's observation on Form 2567 concerned R-16, the same resident discussed above in the sixth and ninth observations under Tag F241: [R-16] was admitted to the facility on 09/29/00, and the resident's comprehensive assessment of [10/05/00]2 indicated that the resident had dental caries. The care plan stated that the resident's "teeth will be clean and oral mucosa will be free of signs and symptoms of infection at all times." One of the approaches on the care plan was for the "resident to see the Dentist as needed." The resident revealed that she/he had not seen a dentist since admission and desired dental services. Observation of the resident's teeth and gums, indicated that there was evidence of abnormal oral mucosa. There was no documentation in the resident's clinical record to indicate that the resident had seen the dentist since admission. The nursing management staff person was asked on 05/11/01, if there was any information to show that the resident had seen the dentist. Later that day, the nursing management staff indicated that the resident now has a dental appointment scheduled on 05/23/01. The lack of dental services can lead to dental problems, oral infection, changes in food consistency, and decrease resident's self-esteem. Ms. Maloney observed R-16 and noted that the edge of his gums was black, perhaps indicating periodontal disease. R-16 showed no evidence of pain and was eating normally. Ms. Maloney interviewed R-16, who told her he wanted to see a dentist. On May 11, 2001, Ms. Maloney told the director of nursing that she could find no indication in the record that R-16 had ever seen a dentist, and asked for any information not apparent in the record. Later that day, the director of nursing told Ms. Maloney that R-16 now had a dental appointment scheduled for May 23. Ms. Maloney was left with the understanding that nothing had been done for R-16 up to that time, and that his appointment was made only in response to her inquiry. The evidence established that R-16's dental appointment for May 23 had actually been scheduled by the facility on May 7, prior to the survey. The appointment was scheduled because R-16 had expressed to Ms. Hirsch a desire to have his teeth cleaned and whitened. The only complaint R-16 voiced about his teeth was that they were discolored. The key to Ms. Maloney's finding a deficiency was her impression that the facility did not respond to R-16's request to see a dentist until Ms. Maloney herself inquired and pressed the issue. In fact, the appointment had been made before the AHCA survey team arrived at Jacaranda Manor. The nurse manager to whom Ms. Maloney spoke was apparently unaware the appointment had been made. The evidence does not support the finding of a deficiency under Tag F250. Tag F309 As noted above, the deficiencies alleged under Tag F309 were originally placed under Tag F272. Tag F272 is the Form 2567 reference to violations of 42 C.F.R. Section 483.20(b), which states that a facility "must conduct initially and periodically a comprehensive, accurate, standardized, reproducible assessment of each resident's functional capacity," and sets forth at length the standards that must be observed in performing these comprehensive assessments. Tag F309 references 42 C.F.R. Section 483.25, which states that each resident "must receive and the facility must provide the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with the comprehensive assessment and plan of care," and sets forth at length the standards by which a facility's quality of care is measured. The significance of the change from Tag F272 to Tag F309 is that Tag F272 merely alleges a failure to conduct or update the assessment of the resident. Tag F309 alleges a deficiency in the quality of care provided to the resident, inherently a more serious violation. For purposes of the Form 2567, the validation team gave the alleged deficiencies on the May 2001 survey a federal scope and severity rating of D for Tag F272. A rating of D indicates that there are isolated deficiencies causing no actual harm to the residents but with potential to cause more than minimal harm. The IDR panel recommended upholding the deficiencies as cited by the survey team. However, Ms. Acker believed that the presence of a negative outcome for Resident 7, discussed below, merited changing the tag from F272 to F309 and making it a Class II deficiency with a federal scope and severity rating of G, meaning that there are isolated deficiencies causing actual harm that is less than immediate jeopardy to the health or safety of the residents. The May 2001 survey, as modified by the IDR process, set forth two alleged deficiencies under Tag F309. The first alleged deficiency concerned Resident 7, or "R-7:" [R-7] triggered on the Resident Assessment Protocol (RAP) Summary for behavior. On the 06/02/00 Minimum Data Set (MDS) this resident was coded as having moderate daily pain. Subsequently on the 02/22/01 MDS this resident was coded as having daily pain which was sometimes severe. During the initial tour at 9:30 a.m. on 05/08/01, the resident was described as refusing to get out of bed and refusing showers due to pain. Clinical record review and staff interview revealed there was no documentation of an ongoing evaluation of this resident's pain since 1999. The behavior assessment identified pain and chronic illness but did not reflect the increase in pain or an evaluation of the resident refusing care. R-7 was admitted to Jacaranda Manor on March 23, 1999. She received a comprehensive psychiatric evaluation upon admission. R-7 was a 41-year-old female, bipolar with a history of psychosis, dementia, and manic episodes. She was a hermaphrodite. Her physical illnesses included pickwickian syndrome, a condition characterized by obesity, decreased pulmonary function and somnolence. R-7 also suffered from psoriatic arthritis, a condition that caused her chronic pain and limited her movement. She complained of pain when being moved. When she was in bed and not moving, she did not complain of pain. Jacaranda Manor prepared a formal pain assessment of R-7 upon her admission. She was seen weekly by her attending physician, psychiatrists, and therapists, and was seen several times a day by the nursing staff. All of the medical professionals who saw her entered written notes into her medical record. AHCA's observation accurately notes that R-7's medical record lacks a document formally titled "evaluation" or "assessment" of R-7's pain, but testimony and documentary evidence at the hearing established that R-7's condition, including her pain, was consistently monitored and noted by Jacaranda Manor staff. Franklin May, a senior pharmacist, was the AHCA surveyor who made the observation of R-7. Mr. May interviewed R-7 and the treating nursing staff, and he reviewed the available medical records. Mr. May testified that he had "no problems with the way they were treating this lady." Mr. May's concern was that R-7's pain had apparently increased, and her condition deteriorated, but the facility could provide him with no documentation of a formal assessment or evaluation of her pain subsequent to her admission in 1999. Jacaranda Manor did not dispute Mr. May's contention as to documentation of formal assessments, but contended that medical staff "assessed" R-7 on a daily basis and that their chart notes constituted documentation of those assessments. This contention is credited to the extent that Jacaranda Manor established that nothing was lacking in the actual care provided to R-7, and that staff of Jacaranda Manor possessed a nuanced understanding of R-7's condition and of her somewhat mercurial personality as it affected her complaints of pain. It is not credited to the extent that Jacaranda Manor contends that ongoing, formal assessments of R-7's pain were superfluous. Mr. May's impression was that R-7's refusal to get out of bed and to take showers was a recent phenomenon indicating an increase in pain. In fact, R-7 was mostly bed- bound throughout her stay at Jacaranda Manor, and even before her admission. Her reported pain fluctuated from time to time, as did her amenability to taking her prescribed pain medications. The totality of the evidence established that R- 7's condition was at least stable, if not markedly improved, throughout her stay at Jacaranda Manor. In conclusion, the evidence supported Mr. May's contention that Jacaranda Manor's documentation of the care provided to R-7 was insufficient to permit a surveyor to obtain an accurate picture of her condition and treatment, and therefore supported the initial classification of Tag F272 in that R-7's formal assessment instruments were insufficiently updated. However, the evidence did not support changing the classification to Tag F309, because no actual deficiencies in R-7's care were proven or even alleged prior to Ms. Acker's review of the IDR process. The second alleged deficiency under Tag F309 concerned Resident 25, or "R-25:" [R-25] was admitted on 04/10/01 directly to the secure unit upon admission to the facility. The Resident had a primary diagnosis of Cancer of the lung and paranoid schizophrenia. The Resident was receiving Hospice in another skilled nursing facility in Tampa before he/she was sent to the hospital for violent outburst of behavior. Transfer social services document from the hospital indicate [sic] that resident is to be admitted to Jacaranda Manor with Hospice services. Monthly orders for this resident for April and May, 2001 reflected orders for Hospice. Interview of facility social services' staff, state [sic] that Resident was discontinued from Hospice due to "residents [sic] condition being stable" according to hospice. Contact was conducted with Life Path [the Tampa hospice] who confirm that this resident did meet Hospice criteria and that they do not service the St. Petersburg area and that was the only reason they had to discharge the resident. Hospice staff said that Jacaranda admissions person was told that they were responsible to secure the services of the Hospice covering the St. Petersburg area and they would then share their records with that Hospice. This resident was documented to be ambulatory throughout the secure unit and sociable with staff. Resident had episodes of shortness of breath and occasional use of oxygen. On 05/10/01 the resident developed cardiac arrest and was sent to the hospital by EMS where he/she was pronounced dead. The facility did not meet the needs of this resident for his/her terminal care needs. R-25 was a large, heavy-set 67-year-old male who had been diagnosed with lung cancer, chronic obstructive pulmonary disease ("COPD"), paranoid schizophrenia, and seizure disorder. R-25 had been a resident of a Tampa nursing home until a behavioral outburst caused his admission to the psychiatric unit of Tampa General Hospital for an adjustment of his medications. While in the Tampa nursing home, R-25 had received services from Life Path Hospice, which served patients in Hillsborough County, due to his lung cancer diagnosis. The decision had been made not to treat the cancer, and R-25 had been receiving hospice services for over one year. R-25 was an elopement risk and subject to violent outbursts, such that the Tampa nursing home declined to re- admit him after his hospital admission. Staff of Life Path Hospice knew of Jacaranda Manor's reputation for accepting this kind of difficult resident. Grizier Cruz, a mental health counselor at Life Path, contacted Sharon Laird, Jacaranda Manor's admissions director. Ms. Laird agreed to evaluate R-25 for admission, and Jacaranda Manor admitted R-25 on April 10, 2001. Ms. Laird testified that she initially asked Ms. Cruz whether Life Path would continue to provide services to R-25 at Jacaranda Manor, or whether Life Path would transfer the case to the hospice serving Pinellas County. Ms. Laird testified that Ms. Cruz told her that R-25 was stable and no longer in need of hospice services. Ms. Cruz denied telling anyone at Jacaranda Manor that R-25 was stable and not in need of hospice services. Ms. Cruz stated that she informed Jacaranda Manor that Life Path would be withdrawing services from R-25 because he was leaving Hillsborough County, Life Path's area of coverage. She testified that Jacaranda Manor would have to establish a physician for R-25 at the facility. The physician would have to write an order for hospice, at which time Life Path would make the referral to the Pinellas County hospice that would then come to Jacaranda Manor to evaluate R-25 for its program. When R-25 was admitted, Jacaranda Manor followed its standard assessment and care planning procedures, noting his diagnosis of lung cancer and the need to contact hospice. Linnea Gleason, social services director at Jacaranda Manor, testified that she contacted Life Path twice during the care planning process, and was told both times that R-25 was stable and in no need of hospice. Ms. Gleason's contemporaneous notes in R-25's chart are consistent with her testimony. Dr. Gabriel Decandido was R-25's physician at Jacaranda Manor. His examination revealed that R-25's cancer was apparently slow growing, because he was relatively pain free and did not appear to be at the end stage of life. Dr. Decandido was not surprised to learn that R-25 had lasted over one year on hospice; he was surprised that R-25 had been receiving hospice services at all. Dr. Decandido did not believe that R-25 needed hospice services. R-25 was stable, comfortable, not in pain, happy and smiling. At times, he used oxygen due to his COPD and continued smoking. He kidded with the nurses and went outside to smoke throughout the day. Dr. Decandido noted that R-25's schizophrenia made him a poor patient with whom to discuss death because such discussions could increase his psychosis and paranoia. Given R-25's entire situation, Dr. Decandido thought it best to allow R-25 to live out his life at Jacaranda Manor, walking around, talking to people, eating, drinking, and smoking. Another factor influencing Dr. Decandido's opinion was that x-rays taken of R-25 at Jacaranda Manor did not indicate lung cancer. Dr. Decandido did not dispute the diagnosis of lung cancer, but did dispute that R-25 was a man about to die from lung cancer. His findings from the x-rays were that R-25 suffered from congestive heart failure and possibly pneumonia. Ms. Gleason testified that she and her social services staff visited R-25 three times a week to offer counseling, but that R-25 showed no anxiety about his lung cancer and declined services. Elaine Teller was the charge nurse at Jacaranda Manor during R-25's admission. She directly asked R-25 on several occasions whether he wanted hospice. She explained the advantages of hospice care in managing his medications. On each occasion, R-25 declined hospice. Ms. Teller failed to note these declinations in R-25's chart. However, given that there was no physician's order for hospice and that R-25's capacity to consent was questionable at best, Ms. Teller's notations would have been superfluous in any event. Life Path Hospice informed Jacaranda Manor that it would be necessary to obtain the consent of R-25's only known relative, a daughter in Jacksonville, to commence hospice services in the event they were ordered by a physician. Ms. Laird of Jacaranda Manor contacted the daughter by telephone and sent her an admissions package by certified mail. The daughter did not accept delivery of the package. Thus, Jacaranda Manor never received signed admission documents from R-25's family, which would have included advance directives such as hospice. AHCA's contention that "[m]onthly orders for this resident for April and May, 2001 reflected orders for Hospice" is simply a misreading of R-25's record. The notation "hospice" appears under the term "advance directives" on a record document with the title "physicians orders and administration record." Despite its title, this sheet was used by Jacaranda Manor as a medication sheet. A notation of an advance directive for hospice was not a physician's order for hospice. Jacaranda Manor staff was fully aware that a physician's order for hospice would have been indicated by a special sticker on the sheet and by accompanying paperwork. Ms. Gleason explained this procedure to AHCA surveyors, who nonetheless cited these "orders" as deficiencies. R-25 died on May 10, 2001, one month after his admission to Jacaranda Manor. His death was caused by cardiac arrest, unrelated to his lung cancer diagnosis. Jacaranda Manor's version of events involving R-25 is credited. Other residents at the facility receive hospice services, and there is no reason to conclude that the facility would fail to implement a physician's order for hospice services for R-25. The evidence does not support the deficiency cited by AHCA, either under F272 or F309. In summary, the evidence did not support the change of Tag F272 to Tag F309. The evidence did support a Class III deficiency under Tag F272 as to the documentation of Jacaranda Manor's treatment of R-7. II. June 2001 Survey A. Tag F241 The June 2001 survey allegedly found two Class III violations of Tag F241, the "dignity tag," both from observations made on June 19, 2001, at 3:05 p.m. by surveyor Patricia Reid Caufman. The first observation involved Resident 19, or "R-19": [R-19] was lying in bed (mattress) on the floor and receiving one to one supervision from the Certified Nursing Assistant (CNA). The resident was sleeping with the door open and the privacy curtain was not pulled around the resident. The resident faced toward the window with his adult briefs exposed to the hallway. The CNA was sitting on a chair in the hallway observing the resident. The CNA did not attempt to cover the resident to maintain his/her dignity. R-19 was a 60-year-old male with a history of dementia and a propensity for violent outbursts. R-19 had no safety awareness, and had done such things as pull his room air conditioning unit out of the wall and attempt to walk it out into the hallway. He had a great deal of psychomotor agitation, and persistently pulled at things. He was prone to falling into chairs or his bed, pulling down curtains and curtain rods. If approached abruptly, he might strike out. Three or four people could be needed to give him a bath. The medical staff constantly adjusted his medications in an effort to manage his behavior without over-sedating him. R-19 was very resistant to dressing, and could undress himself very quickly. Staff of Jacaranda Manor tried various strategies to keep him dressed, including one-piece outfits, clothing that zipped in the back, and hospital gowns with pajama bottoms, but nothing was entirely successful. Jacaranda Manor had taken steps to ensure his safety. R-19 had been placed in a private room at the back of his hallway to minimize his interactions with other residents. All furnishings had been removed from the room, save for a mattress on the floor. Padding was placed around the mattress to minimize his thrashing. The windowsills were padded, and the air conditioner protected. At the time of the June 2001 survey, R-19 was receiving 24-hour one-on-one care, for his own safety and that of the other residents. When R-19 slept, the CNA assigned to him was instructed to sit in the doorway to his room. A Dutch door was installed to his room. Once R-19 fell asleep, the bottom part of the door could be closed to obscure the view of passersby but still allow the CNA to peek over the top to check on him. Jacaranda Manor conceded the accuracy of Ms. Caufman's observation, but contended there was no alternative plan of care for R-19. The door could not be closed completely, because the resident then could not be observed by the CNA. Placing the CNA on a chair inside the room would defeat the purpose of removing all the furnishings for safety, and would have placed the CNA in jeopardy. The privacy curtain would obscure the CNA's view of the resident. R-19 was easily disturbed. Ms. Redmond, the director of nursing, testified that R-19 "needs to sleep when he wants to, because otherwise he is just up and going all the time." Ms. Redmond believed that any attempt to cover R-19 with a sheet would have awakened him, "and then he would have been up and going again and wouldn't have gotten any rest." Based upon the unique characteristics of this resident, and the extensive steps taken by Jacaranda Manor to ensure R-19's safety with some level of privacy, it is found that the evidence failed to establish that the observation of R-19 constituted a deficiency under Tag F241. Ms. Caufman's second observation under Tag F241 involved Resident 20, or "R-20": [R-20] was observed from the hallway lying in bed with the door open and the privacy curtains not pulled around the resident. The resident was wearing adult briefs and the front half of the resident was exposed. Two staff members passed by the open door and failed to intervene so as to protect resident dignity. R-20 was a male resident suffering from dementia. He would take off his gown or shirt while lying in bed. He was capable of opening and closing his own privacy curtain. Ms. Caufman could not identify the two staff members who passed the open door. Ms. Caufman's handwritten notes state that she observed R-20 uncovered at 3:05 p.m., but that staff had covered him when she next went past the room at 3:09 p.m. She did not explain why her formal statement omitted the fact that the resident was covered no more than four minutes after her observation. Jacaranda Manor offered no explanation as to why the door could not have been closed or the privacy curtain drawn to prevent passersby from seeing R-20 uncovered in his bed. On the other hand, Ms. Caufman's brief description of the incident, her failure to identify the staff members who allegedly ignored R-20, and her omission of a relevant fact render the situation ambiguous. As noted above, staff at Jacaranda Manor do not wear uniforms. Only direct care staff are allowed to approach patients to dress or cover them. Other staff, such as maintenance or cafeteria workers, are directed to be alert to residents' dress and to go get a direct care staff person when they see a problem. Based on Ms. Caufman's narrative and on the fact that the resident was covered within four minutes of her observation, it is as likely as not that the two people she saw pass the room were not direct care staff, and that they alerted the direct care staff, who then covered the resident. It is found that the evidence failed to establish that the observation of R-19 constituted a deficiency under Tag F241. B. Tag F250 The June 2001 survey allegedly found one violation of Tag F250, the "social services tag," involving Resident 14, or "R-14": [R-14] was admitted to the facility on 7/2/98 with diagnoses that include organic brain syndrome, traumatic brain injury and dysphagia. The resident's minimum data set (MDS) of 7/3/00 indicated that the resident had broken, loose teeth and dental caries. The most recent MDS, dated 3/8/01, indicated that the resident had some or all natural teeth and needed daily cleaning. It did not document broken, loose teeth with dental caries. The resident assessment protocol (RAP) for Dental, dated 3/8/01, documented that the resident was missing several teeth, had no dentures and the remaining teeth were discolored, but no gross caries or other problems. The status was documented as no oral hygiene problem, no problem that would benefit from a dental evaluation, but the patient was determined to be at risk for developing an oral/dental problem. The staff was to assist the resident with oral care and monitor for problems. The care plan, dated 3/14/01, documented that the resident had dental caries (in conflict with the RAP assessment) along with missing teeth and the goal was to assist with oral care at least twice daily and obtain a dental consult as needed. A dental evaluation had been done on 8/18/98 (three years prior to the survey), and the evaluation (obtained from the thinned record) revealed that this was an initial oral examination and the resident had several missing teeth, heavy calculus and plaque noted. His teeth were documented as stable with no swelling or fractures noted and the resident was determined not to be a good candidate for routine dental care. During the initial tour with the 7-3 Supervisor, on 6/19/01, at about 9:30 a.m., the resident's teeth were observed. A front tooth was missing and a very large amount of plaque was noted, especially on the lower teeth. The supervisor commented that she observed dental caries. On 6/20/01, at 11:10 a.m., observations of the patient's teeth were made with the director of nursing (DON). The resident was seated in a recliner, sleeping with his mouth wide open. The left front tooth was broken and multiple dark areas in the back teeth were observed. There was a large amount of built up plaque on upper and lower teeth and on the upper and lower gum lines. An unpleasant mouth odor was detected at that time. Review of the social service notes from 7/15/98 through 5/16/01, revealed no documentation that the patient had dental needs. The current record did not contain a recent dental evaluation and the DON stated that she would review the thinned record. The initial dental evaluation, dated 8/18/98 mentioned above, was the only documented dental evaluation provided by the facility for review. Interview with the DON, on 6/20/01, at 1:50 p.m., revealed that the resident had refused dental work as documented on the care plan, dated 2/12/01. The nurses notes did not document that a dental appointment had been made and the resident refused examination. The facility was asked to provide any documentation that the resident had been sent to a dentist and refused care. No other documentation was provided. In addition, the resident was coded as severely cognitively impaired on the MDS of 7/3/00, 2/5/01 and 3/8/01. There was no evaluation of the resident's capacity to provide or deny consent for treatment in the record. The resident's wife was documented as the decision maker on the MDS, but according to the DON she was unable to be contacted for a "long time" and there was no documentation that she had been involved in any decision making. The resident had no other legal representative. On 6/20/01, at 1:50 p.m., the DON stated that a doctor's order had been obtained for a dental appointment and the appointment was made. Lack of appropriate dental care may result in infections and diminish the resident's health status. Patricia Procissi was the surveyor who recorded the observation of R-14. She found a conflict between the July 3, 2000, MDS, which documented broken, loose teeth with dental caries, and the March 8, 2001, MDS, which did not document the tooth problems. However, a RAP prepared on the same date did document dental problems for R-14. Ms. Procissi interpreted the March 8, 2001, RAP as indicating improvement in R-14's condition without any documented dental intervention. She believed that this RAP conflicted with a care plan dated March 14, 2001, that indicated dental caries. In fact, the March 8 RAP stated "no gross caries," which is not necessarily in conflict with a finding that R-14 had some dental caries. Ms. Procissi noted that the director of nursing, Ms. Redmond, had told her that R-14 refused dental care, but Ms. Procissi could find nothing in Jacaranda Manor's records documenting that R-14 had been sent to a dentist and refused care. Ms. Gleason, the social services director, testified that she asked R-14 if he would like to see a dentist, and he had refused dental care. Ms. Gleason testified that she documented this refusal in R-14's care plan, along with a notation that staff should continue to encourage him to accept dental services. Ms. Procissi saw Ms. Gleason's note reflecting R- 14's refusal to see a dentist. However, she believed that this documentation raised the question of why there was no doctor's order that R-14 should be seen by a dentist. She stated that in most cases, there is a doctor's order followed by a nurse's note documenting why the order could not be carried out. Here, there was nothing in the record explaining the circumstances of R-14's refusal. Ms. Procissi also found it "odd" that R-14's refusal was documented in the social services care plan rather than the medical notes. At the hearing, Ms. Gleason and Ms. Hirsch testified as to the general difficulty of obtaining dental services for Medicaid patients. Few dentists are willing to accept adult Medicaid patients. At the time of the survey, Jacaranda Manor had two dentists and an oral surgeon who would see its residents, but even these dentists limited the number of residents they would accept in a given month. If a Medicaid resident needs dental work, the doctor or a nurse will write a note to the social services office, which phones the dentist's office and provides the resident's Medicaid information and the nature of the dental needs. The dentist's office calls back to inform social services whether the resident is eligible under the "medically necessary" criteria for Medicaid reimbursement. If the resident is eligible, social services makes the appointment, arranges transportation for the resident, and accompanies the resident to the appointment, if necessary. Jacaranda Manor also schedules routine appointments several months in advance. R-14 was a 47-year-old cognitively impaired male. He was a Medicaid recipient. R-14 could be verbally and physically abusive when approached. At the time of his admission to Jacaranda Manor, and at all times subsequent, R- was fed exclusively via gastrointestinal tube, meaning that any dental problems would not affect his nutrition. Dr. Stuart Strikowsky, Jacaranda Manor's medical director, opined that R-14 was in no pain or discomfort, had loudly and adamantly stated that he wanted no dental work, and would require complete sedation to undergo a dental evaluation. Dr. Strikowsky believed that a dental examination was medically unnecessary for this resident. Kevin Mulligan, AHCA's Medicaid dental specialist, testified that Medicaid covers only medically necessary dental services, and that a dental examination for a nursing home patient must be requested by the attending physician and the nursing director. Dr. Strikowsky plainly believed that such a request was unnecessary for this resident. It is found that the evidence was at best ambiguous that the observation of R-14 constituted a deficiency under Tag F250. Jacaranda Manor conscientiously monitored and documented R-14's dental condition. R-14's physician believed that a dental examination was medically unnecessary, somewhat mooting Ms. Procissi's concerns regarding the lack of a doctor's order for dental services.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Agency for Health Care Administration enter a final order finding a Class II deficiency for Tag F241, a Class III deficiency for Tag F272, and assigning conditional licensure status to Jacaranda Manor for the time period from May 15, 2001 to February 28, 2002. It is further recommended that the Administrative Complaint be dismissed and no civil penalty assessed against Jacaranda Manor. DONE AND ENTERED this 25th day of July, 2002, in Tallahassee, Leon County, Florida. ___________________________________ LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative this 25th day of July, 2002.
The Issue The issue in this case is whether the Board of Nursing should discipline the Respondent, Joyce Knowlton, on charges contained in the Amended Administrative Complaint, DPR Case No. 0111292.
Findings Of Fact The Respondent is a licensed practical nurse who was working as a nurse at Seminole Nursing Pavilion in Seminole, Florida, in January, 1989. She holds Florida license number PN13417. The evidence proved that the Respondent dispensed Mellaril to the patient, L. W., on the evenings of January 5, 6, 8, 9, 11-14, 18, 19, 22, 25 and 26, 1989. On the evenings of January 3, 4 and 28, 1989, another nurse dispensed Mellaril to the patient. On the other 15 evenings in January, 1989, the Respondent was not on duty, and Mellaril was not dispensed to the patient. The doctor's orders for the patient, L. W., were: "Mellaril concentrate 25 mg. give two (2) times daily as needed for agitation." The evidence proved that the Respondent dispensed Mellaril to the patient, L. W., on at least one occasion--on January 5, 1989--when the patient was not agitated and showed no sign of becoming agitated. The patient was "calm to the point of being almost placid." The Respondent went in and roused the patient to give her the medication. The Respondent explained to other witnesses that she dispensed Mellaril to the patient, L. W., without symptoms of agitation because the patient ate better and with less agitation at meal time after administration of Mellaril, and also because the patient's family favored this course. The evidence proved that it was below minimum standards of acceptable and prevailing practice of nursing for the Respondent to administer Mellaril to this particular patient, L. W., for the stated purpose. It is possible for a patient regularly to become agitated at about meal time. This is not uncommon with some nursing home patients; it is commonly referred to as "sundowner syndrome." In the case of "sundowner syndrome," administration of the medication just before meal time to prevent agitation, so that the patient would eat better and with less agitation, could be in compliance with the doctor's orders, as written, and not below minimum standards of acceptable and prevailing practice of nursing. But, in this case, the evidence proved that the patient did not have "sundowner syndrome." On only three of the 16 evenings in January, 1989, when the Respondent was not on duty did the on-duty nurse administer Mellaril for agitation. The Respondent has a history of recurring episodes of major depression. She was fired from her job at the Seminole Nursing Pavilion on or about January 27, 1989. She became angry and then deeply depressed. On or about February 28, 1989, the depression became so severe that the Respondent attempted to end her life, or at least made a suicidal gesture, by an overdose of valium and wine. Fortunately, she recovered and received treatment in various clinical settings through approximately April 24, 1989. She continued to receive therapy, particularly to deal with the stress of this proceeding. But by the time of the hearing, she was fairly stable, and her recurrent depression was in remission. She now is able to work and, in fact, has been working as a nurse without any apparent incapacity. The opinion testimony of the Department expert witness that the Respondent is now incapable, by reason of mental illness, to practice nursing with reasonable skill and safety to patients was not persuasive. The testimony was based solely on a review of the records in evidence as part of the Department's case in chief. The witness did not examine the Respondent and had no knowledge of the Respondent's employment history before about 1982 or after her employment at Seminole Pavilion ended.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Nursing enter a final order placing the Respondent, Joyce Knowlton, on probation for one year, during which time the Respondent's current mental condition can be evaluated and her practice closely monitored to insure that she is rehabilated enough to be able to continue to practice nursing safely. RECOMMENDED this 26th day of November, 1990, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of November, 1990. APPENDIX TO RECOMMENDED ORDER To comply with the requirements of Section 120.59(2), Florida Statutes (1989), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1.-3. Accepted and incorporated to the extent not subordinate or unnecessary. 4. Rejected as not proven that agitation necessarily results in harm to the patient or others. Agitation could result only in what is called resistance to care. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. 5.-13. Accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not proven. The Respondent believed that the patient ate better and with less agitation after being given Mellaril, not that the Mellaril "made the patient eat better" in the sense that it increased her appetite. Accepted but subordinate and unnecessary. Rejected as not proven. The evidence suggested that the family approved of the use of Mellaril to counteract anticipated agitation; it did not prove that the family asked the Respondent to keep the patient sedated, as implied by this proposed finding. 17.-20. Accepted and incorporated to the extent not subordinate or unnecessary. 21. Accepted and incorporated. 22.-25. Without testimony to explain the records on which these proposed findings are based, it is difficult to decipher what they say, and no findings are based solely on them except as may be found in the Findings of Fact. Accepted and incorporated. Accepted but subordinate and unnecessary. Rejected. See 22-25, above. 29.-33. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted but subordinate and unnecessary. Rejected as not proven. See 22-25, above. Accepted and incorporated. First clause, accepted. However, the same records indicate that the Respondent's major depression is in remission. The Respondent's history is that her major depression alternately recurs and goes into remission depending on what is happening in her life and what kind of treatment she gets. Therefore, to the extent that it is inconsistent with the Findings, the rest is rejected as not proven. 38.-41. Generally accepted but unnecessary. These are vague generalities; no specifics were proven. The only relevance of these facts in this case would be to prove the Respondent's mental condition and the effects on her ability to practice nursing. But the evidence did not relate any of these facts to the Respondent's mental condition or to its effect on her ability to practice nursing. 42.-43. Rejected as not proven. 44.-46. The Respondent was not charged with untruthfulness. The only relevance of these facts in this case would be to prove the Respondent's mental condition and the effects on her ability to practice nursing. But the evidence did not relate any of these facts to the Respondent's mental condition or to its effect on her ability to practice nursing. 47.-50. The Respondent was not charged with breach of a contractual agreement. The only relevance of these facts in this case would be to prove the Respondent's mental condition and the effects on her ability to practice nursing. But the evidence did not relate any of these facts to the Respondent's mental condition or to its effect on her ability to practice nursing. Proposed finding 50 is based strictly on inadmissible hearsay. 51.-52. Rejected as based strictly on inadmissible hearsay. 53.-57. Subordinate to facts found and unnecessary. 58.-60. The Respondent was charged with only one med pass error--dispensing Mellaril to the patient, L.W. The only relevance of these facts in this case would be to prove the Respondent's mental condition and the effects on her ability to practice nursing. But the evidence did not relate any of these facts to the Respondent's mental condition or to its effect on her ability to practice nursing. 61. Rejected as not proven. 62.-72. Rejected as not proven. Without testimony to explain the records on which these proposed findings are based, it is difficult to decipher what they say, and no findings are based solely on them except as may be found in the Findings of Fact. Accepted and incorporated. Rejected as not proven. Nursing has some unique stresses. It has more stress than some jobs and less stress than other. Accepted but subordinate to facts found. Respondent's Proposed Findings of Fact. 1.-12. Accepted and incorporated to the extent not subordinate or unnecessary. Rejected contrary to facts found and to the greater weight of the evidence. As found, the evidence did not prove that the Respondent is now unable, by reason of her mental condition, to practice nursing safely. However, the Respondent's evidence on this point consisted only of medical records and progress notes created by the Respondent's therapist. Without any testimony to explain these records, the evidence did not prove that the Respondent was more than "fairly stable" at the time of the hearing. On the other hand, the evidence did prove that the Respondent has a history of recurrent major depression, a legitimate concern to the Board of Nursing after the February 28, 1989, suicide attempt. Rejected as contrary to facts found and to the greater weight of the evidence. COPIES FURNISHED: Lois B. Lepp, Esquire Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Christina M. Ippolito, Esquire Gulfcoast Legal Services, Inc. 6 South Ft. Harrison Avenue Clearwater, Florida 34616 Judie Ritter, Executive Director Board of Nursing 504 Daniel Building 111 East Coastline Drive Jacksonville, Florida 32202 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Respondent is a skilled nursing home facility located in Blountstown, Florida, and is licensed by HRS. During a routine survey (inspection) of Apalachicola Valley Nursing Center on January 7-8, 1980, a staffing analysis revealed that for the three weeks prior to the survey, Respondent was short one licensed nurse on the night shift (11:00 p.m. to 7:00 a.m.) for this 21-day period. During the entire period here involved, the adjusted average census of the Respondent was over 60 patients. At the time of this survey, Petitioner's policy was not to cite staff shortages as deficiencies on HRS Form 553D unless they affected patient care or there was a deficiency in patient care to which a staff shortage could relate. At all times here relevant, Mrs. Margaret Z. Brock was Administrator and part-owner of the Respondent. Following the January 7-8, 1980 survey, the results were discussed with Mrs. Brock. The head of the survey team advised Mrs. Brock of HRS' policy on staff shortages which did not affect patient care. As a result of unfavorable publicity regarding HRS' laxness in enforcing regulations involving medical facilities, by memorandum dated January 10, 1980 (Exhibit 2), HRS changed the policy on staff shortages which did not affect patient care. This change directed all staff shortages to be noted on the inspection report (Form 553D), which would thereby require action by the facility to correct. It further provided that all such shortages be corrected within 72 hours and if not corrected within the time specified, administrative action against the facility would be taken. By letter dated January 15, 1980, Mrs. Brock was forwarded the survey report containing the deficiency relating to the shortage of one LPN on the night shift during the three-week period prior to the survey. A follow-up visit was made to the Respondent on February 21, 1980, at which time it was noted that the LPN shortage on the night shift remained uncorrected. By letter dated February 27, 1980 (Exhibit 3), Mrs. Brock was advised of this finding and the accompanying Form 553D stated that the deficiency was referred for administrative action. This resulted in the Administrative Complaint in Docket No. 80-1443. A second follow-up visit was made on March 25, 1980, at which time it was noted that the LPN shortage on the 11:00 p.m. to 7:00 a.m. shift was still uncorrected. By letter dated April 1, 1980 (Exhibit 4), Mrs. Brock was advised of this finding and the accompanying Form 553D indicates that the deficiency is again being referred for administrative action. This resulted in the Administrative Complaint in Docket No. 80-1444. There is a shortage of nurses, both registered and licensed practical, nationwide, as well as in the panhandle of Florida. This shortage is worse in smaller towns and rural areas than in more metropolitan areas. Respondent is located in a rural area. Respondent has encouraged and assisted potential employees to attend the LPN courses given in nearby technical schools. One of these enrollees is currently working for Respondent. Respondent has advertised in newspapers for additional nursing personnel and has offered bonuses to present employees if they can recruit a nurse to work for Respondent. Other hospitals and nursing homes in the panhandle experience difficulties in hiring the number of nurses they would like to have on their staff. All of those medical facilities, whose representatives testified in these proceedings, have difficulty employing as many nurses as they feel they need. The LPN shortage is worse than the RN shortage. None of these medical facilities, whose representatives testified to the nurse shortage, except Respondent, was unable to meet the minimum staffing requirements of HRS although they sometimes had to shift schedules to meet the prescribed staffing. Respondent has found it more difficult to keep nurses on the 11:00 p.m. to 7:00 a.m. shift than other shifts, particularly if these employees are married or have families. Because of this staffing shortage, on July 18, 1980, a moratorium was placed on Respondent's admitting additional patients. This moratorium was lifted presumably after Respondent met the prescribed staffing requirements by employing a second nurse for the 11:00 p.m. to 7:00 a.m. shift. Failure to meet minimum staffing requirements is considered by Petitioner to constitute a Class III deficiency.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Administrative Complaint in Docket No. 80-1443 be dismissed. It is further recommended that for failure to comply with the minimum staffing requirements after February 21, 1980, Respondent be fined $500.00. DONE and ENTERED this 7th day of November, 1980, at Tallahassee, Florida. K. N. AYERS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of November, 1980. COPIES FURNISHED: John L. Pearce, Esquire HRS District 2 Legal Office Suite 200-A 2639 North Monroe Street Tallahassee, FL 32303 Stephen D. Milbrath, Esquire Dempsey & Slaughter Suite 610, Eola Office Center 605 E. Robinson Street Orlando, FL 32801
The Issue The issue in this case is whether Respondent committed the allegations in the notice of intent to assign a conditional license and, if so, whether Petitioner should have changed the rating of Respondent's license from standard to conditional for the period June 14 through August 10, 2001.
Findings Of Fact Petitioner is the state agency responsible for licensing and regulating nursing homes inside the state. Respondent operates a licensed nursing home at 1120 West Donegan Avenue, Kissimmee, Florida (the "facility"). Petitioner conducted an annual survey of the facility from May 7, through May 10, 2001 (the "May survey"). Petitioner conducted a follow-up survey of the facility on June 14, 2001 (the "June survey"). The May survey cites one Class III violation. The June survey cites a repeat deficiency of a Class III violation. Subsection 400.23(8)(b) and (c), Florida Statutes (2000), refers to deficiency classifications as Class I-III deficiencies. All statutory references are to Florida Statutes (2000) unless otherwise stated. Section 400.23(8)(c) defines Class III deficiencies as those deficiencies . . . which the agency determines to have an indirect or potential relationship to the health, safety, or security of the nursing home facility residents, other than class I or class II deficiencies. The statutory definitions of Class I and II deficiencies are not relevant to this case because this case involves only a Class III deficiency. Florida Administrative Code Rule Rule 59A-4.1288 requires nursing home facilities licensed by the State of Florida to adhere to federal regulations in Section 483 of the Code of Federal Regulations ("CFR"). All references to rules are to rules promulgated in the Florida Administrative Code on the date of this Recommended Order. In relevant part, Rule 59A- 4.1288 provides: Nursing homes that participate in Title XVIII or XIX must follow certification rules and regulations found in 42 CFR 483, Requirements for Long Term Care Facilities, September 26, 1991, which is incorporated by reference. Applicable federal regulations require Petitioner to assign a scope and severity rating to the deficiencies alleged by Petitioner. Petitioner assigned a "D" rating to the deficiencies alleged in the May and June surveys. A “D” rating means that there is no actual harm with potential for more than minimal harm that is not actual jeopardy. When Petitioner alleges that the Class III deficiency from the May survey was not corrected within the time established by the agency, the agency may change the rating of the facility license from standard to conditional. Petitioner determined in the June survey that the facility had not corrected the deficiency alleged in the May survey. Effective June 14, 2001, Petitioner changed the rating of the facility's license from standard to conditional. Petitioner noted the results of the May and June surveys on a Health Care Federal Administration form entitled "Statement of Deficiencies and Plan of Correction." The parties refer to the form as the HCFA 2567-L or the "2567". The 2567 is the document used to charge nursing homes with deficiencies that violate applicable law. The 2567 identifies each alleged deficiency by reference to a tag number (the "Tag"). Each tag on the 2567 includes a narrative description of the allegations against Respondent and cites a provision of relevant state rules violated by the alleged deficiency. There is only one tag at issue in the May and June surveys. It is Tag F282. In order to protect the privacy of nursing home residents, Tag F282, the 2567, and this Recommended Order refer to each resident by a number rather than by the name of the resident. Tag F282 alleges in the May and June survey that the facility failed to satisfy the requirements of 42 CFR Section 483.20(k)(ii). In relevant part, the federal regulation provides: Comprehensive Care Plans. (3). The services provided or arranged by the facility must— (ii) Be provided by qualified persons in accordance with each resident’s written "plan of care." This standard is made applicable to nursing homes in Florida pursuant to Rule 59A-4.1288. Tag F282 does not allege that the facility provided care to residents by unqualified persons. Rather, Tag F282 alleges that Respondent failed to follow the plan of care for two residents. Tag F282 alleges in the May survey that the facility failed to provide care and services in accordance with the plan of care for Residents 3 and 1. Tag F282 alleges in the June survey that Respondent failed to follow the plan of care for Resident 1. The resident identified as Resident 1 is not the same resident in the May and June surveys. Before proceeding to the merits of the allegations in Tag F282, two policy issues must be resolved in order to make findings of fact in a manner that is consistent with Petitioner's officially stated agency policy. One issue is procedural and the other involves the definition of terms. Petitioner promulgates an officially stated policy in written guidelines entitled the State Operations Manual (the "Manual"). The Manual states agency policy regarding the interpretation and application of the regulatory standards surveyors must enforce. The Manual authorizes surveyors to determine whether a facility has complied with Tag F282 only after surveyors have identified violations of standards relating to: quality of care, defined in 42 CFR Section 483.25(a)–(m); quality of life, defined 42 CFR Section 483.15(a)–(h); or residents rights, defined 42 CFR Section 483.10(a)–(o). The state agency's written policy set forth in the Manual requires its surveyors to identify an issue of quality of care, quality of life, or residents’ rights before proceeding to a determination of whether the facility has violated Tag F282. The second issue involves the interpretation of the terms "inadequate", "incorrect", and "consistent." The Manual indicates that violations occur if surveyors can demonstrate inadequate or incorrect implementation of the care plan. The Manual does not define the term “inadequate.” The common meaning of the term suggests that something less than perfect implementation satisfies the requirements of the regulatory standard. That construction is consistent with other provisions in the Manual. The Manual further provides that violations of standards occur only if a facility fails to “consistently” implement the plan of care for a resident. Petitioner's surveyors acknowledged in their testimony that the goal for the quality of care regulations is to achieve positive resident outcomes and is identical to the goal of Tag F282. Petitioner offered no credible reason, within the meaning of Section 120.68(7)(e)3, why the standard for implementation of a resident’s care plan under Tag F282 should be stricter than that required by the quality of care regulations. Resident 3 had many compromising conditions and was near death at the time of the May survey. Resident 3 had 10 to 12 care plans to address his various medical problems and conditions. Each care plan contained an average of 15 separate interventions. One of the care plans for Resident 3 addressed the risk of developing pressure sores and contained 20 separate interventions for staff to implement. One intervention required staff to turn and reposition the resident every two hours. On May 7, 2001, a surveyor stationed herself outside of Resident 3’s room from 1:00 p.m. to 4:00 p.m. in the afternoon to observe who entered the resident’s room and what care was given to the resident. During that time, the surveyor observed that no staff member entered the room to turn and reposition the resident. The care plan required staff to turn the resident once during the three-hour period. The allegations in Tag F282 pertaining to the failure to reposition Resident 3 during a three-hour period on May 7, 2001, deviate from Petitioner's written agency policy in two respects. First, Petitioner did not cite the facility for any violation relating to quality of care, quality of life, or resident rights. Second, a single isolated failure to implement one intervention prescribed in one of 12 care plans for Resident 3, during a three-hour period, on one of four days of a survey, does not demonstrate inadequate care by failing to consistently implement a care plan. Petitioner failed to explain by a preponderance of the evidence why it deviated from its official written policy in its determination that Respondent violated the standard prescribed in Tag F282. The surveyor provided no credible explanation to justify a deviation from agency policy with respect to Resident 3. Nor did Petitioner present any evidence that Resident 3 developed any pressure sores or had any pressure sores worsen as a result of the failure to turn and reposition the resident on May 7, 2001. The evidence shows that the failure to turn and reposition Resident 3 presented nothing more than a minimal chance of negative impact. Tag F282 alleged in the May survey that the facility failed to provide care for Resident 1 in accordance with the care plan. Resident 1 suffered from a condition that caused his chin to droop toward his chest. The condition caused positioning problems for the resident while he was in his wheelchair. The physical therapist for the facility examined Resident 1 and recommended periodic placement of a Futuro cervical collar while the resident was in his wheelchair in order to elevate the resident's chin. The recommendation required staff to place the collar on the resident when he was in his wheelchair for two hours and then to remove it for two hours. Staff was not to place the collar on the resident during meals or while the resident was in bed. The resident would sometimes remove the collar after it was placed on him. On May 8, 2001, Petitioner’s surveyor made five observations of the resident between 10:45 a.m. and 1:50 p.m. The surveyor did not see the resident wearing the collar during any of the observations. The observations of the surveyor were intermittent. The surveyor did not observe Resident 1 continuously from 10:45 a.m. until 1:50 p.m. The surveyor did not know if or when the collar should have been placed on the resident during the observations on May 8, 2001. It is uncontroverted that the resident would have eaten lunch for one hour during the time that the surveyor observed the resident and that the care plan did not require staff to place the collar on the resident during meals. Petitioner offered no evidence that the failure to put the collar on the resident during the observed instances presented potential for any harm to the resident. Petitioner failed to show by a preponderance of the evidence that the facility failed to implement Resident 1’s care plan. Even if it were determined that the facility failed to consistently implement the care plan or inadequately implemented the care plan, Tag F282 deviates from Petitioner's officially stated agency policy because the tag does not charge the facility with any violation of quality of care, quality of life, or resident rights. Petitioner failed to explain why it deviated from its policy. Finally, the observed circumstances presented no more than a minimal chance of minor negative impact to Resident 1. On May 9, 2001, Petitioner's surveyor observed Resident 1 on three different occasions between 10:00 a.m. and 11:05 a.m. without the collar. The surveyor did not know if or when the collar should have been placed on the resident during that time-period. The observations of the surveyor were intermittent. The surveyor did not observe Resident 1 continuously from 10:00 a.m. until 11:05 a.m. The preponderance of the evidence failed to sustain the charge that the facility did not implement Resident 1’s care plan on May 9, 2001. The observations are insufficient to demonstrate a consistent failure to implement the care plan. Petitioner provided no credible explanation for deviating from its officially stated agency policy. Finally, the circumstances presented no chance of any harm other than minimal negative impact to the resident. Tag F282 alleges in the June survey that the facility failed to follow doctor’s orders for Resident 1 that required multi-podus boots to be applied every shift. Resident 1 in the June survey is not the same resident identified as Resident 1 in the May survey. Resident 1 in the June survey had pressure sores on his feet, and one of the interventions prescribed in the care plan required Resident 1 to wear multi-podus boots. On June 13, 2001, at 2:45 p.m., Petitioner's surveyor observed Resident 1 lying in bed without the required multi- podus boots. Resident 1 was lying on a pressure-relieving mattress so that his heels were receiving pressure relief without the need for multi-podus boots. On June 14, 2001, Petitioner's surveyor observed Resident 1 in his wheelchair in the activities room with black, hard-soled shoes on his feet instead of the multi-podus boots. The resident had dressings on his heels that protected them and was sitting so that his heels bore no weight. The facility maintained medical records that described the size and appearance of the pressure sores on Resident 1's heels. The records indicated that the pressure sores healed progressively after Respondent admitted Resident 1 to the facility. The area on the right heel was completely healed by June, 2001, and the area on the left heel was closed by July 2001. Petitioner deviated from its officially stated policy in two respects. First, Petitioner did not charge the facility with any violation of a quality of care, quality of life, or residents rights. Second, the instances observed by the surveyor do not demonstrate a failure to consistently implement the plan of care or a failure to provide adequate care. Petitioner offered no credible explanation for deviating from its policy. The events observed by Petitioner's surveyor, at most, presented the potential for causing no more than a minor negative impact on the resident.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration should enter a final order revising the May 10 and June 13, 2001, survey reports to delete the deficiency described under Tag F282, and replace the previously issued Conditional rating with a Standard rating. DONE AND ENTERED this 5th day of March, 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 5th day of March, 2002. COPIES FURNISHED: Dennis L. Godfrey, Esquire Agency for Health Care Administration 525 Mirror Lake Drive North, Room 310L St. Petersburg, Florida 33701 R. Davis Thomas, Jr. Broad & Cassel 215 South Monroe Street, Suite 400 Post Office Box 11300 Tallahassee, Florida 32302-1300 Diane Grubbs, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308 William Roberts, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308
The Issue The issue in this case is whether Respondent committed the allegations in the notice of intent to assign a conditional license and, if so, whether Petitioner should have changed the rating of Respondent's license from standard to conditional for the period March 8 through May 30, 2001.
Findings Of Fact Petitioner is the state agency responsible for licensing and regulating nursing homes inside the state. Respondent operates a licensed nursing home at 5405 Babcock Street, Northeast, in Palm Bay, Florida (the "facility"). Petitioner conducted an annual survey of the facility that Petitioner completed on March 8, 2001 (the "March survey"). Petitioner noted the results of the survey on a Health Care Federal Administration form entitled "Statement of Deficiencies and Plan of Correction." The parties refer to the form as the HCFA 2567-L or the "2567". Petitioner conducted a follow-up survey of the facility that Petitioner completed on April 17, 2001 (the "April survey"). The 2567 is the document used to charge nursing homes with deficiencies that violate applicable law. The 2567 identifies each alleged deficiency by reference to a tag number (the "tags"). Each tag on the 2567 includes a narrative description of the allegations against Respondent and cites a provision of the relevant rule or rules in the Florida Administrative Code violated by the alleged deficiency. In order to protect the privacy of nursing home residents, the 2567 and this Recommended Order refer to each resident by a number rather than by the name of the resident. There are five tags at issue in this proceeding. The March survey cites two Class II deficiencies and three Class III deficiencies. The April survey cites repeat violations of three Class III violations. In this case, Section 400.23(8)(b) and (c), Florida Statutes (2000) establishes the deficiency classifications referred to as Classes II and III. All statutory references in this Recommended Order are to Florida Statutes (2000) unless otherwise stated. Section 400.23(8)(b) defines Class II deficiencies as those: . . . which the agency determines have a direct or immediate relationship to the health, safety, or security of the nursing home facility resident. . . . Section 400.23(8)(c) defines Class III deficiencies as those: . . . which the agency determines to have an indirect or potential relationship to the health, safety, or security of the nursing home facility residents, other than class I or class II deficiencies. The March survey sets forth allegations against Respondent in Tags F224, F282, F314, F325, and F363. Petitioner classifies Tags F224 and F314 as class II deficiencies and Tags F282, F325, and F363 as class III deficiencies. Tag F224 in the March survey generally alleges that Respondent failed to implement policies and procedures to prevent abuse to a resident by another resident. Tag F314 generally alleges that Respondent failed to provide necessary assessment, treatment, and documentation for pressure sores for one resident. Tag F282 generally alleges that the facility failed to provide care and services in accordance with the plan of care for two residents. Tag F325 generally alleges that the facility failed to ensure that one resident maintained acceptable parameters of nutritional status, including body weight. Tag F363 generally alleges that the facility failed to provide menus that meet the nutritional needs of the residents by not following menus for pureed and dysphagia diets. The April survey sets forth allegations against Respondent in Tags F282, F325, and F363. Petitioner classifies each alleged violation as a Class III deficiency. Tag F282 in the April survey generally alleges that Respondent failed to follow a resident’s plan of care by failing to provide a weighted spoon and plate guard. Tag F325 generally alleges that the facility failed to ensure that a resident maintained acceptable parameters of nutritional status, including body weight. Tag F363 generally alleges that the facility failed to ensure that menus designed to meet the nutritional needs of the residents were prepared in advance and followed. Florida Administrative Code Rule 59A-4.1288 establishes the requirement for nursing home facilities licensed by the State of Florida to adhere to federal rules and regulations as found in Section 483 of the Code of Federal Regulations (CFR). In relevant part, the state rule provides: Nursing homes that participate in Title XVIII or XIX must follow certification rules and regulations found in 42 CFR 483, Requirements for Long Term Care Facilities, September 26, 1991, which is incorporated by reference. (All references to rules are to rules promulgated in the Florida Administrative Code in effect on the date of this Recommended Order). Applicable federal and state laws require Petitioner to assign to the deficiencies alleged in the 2567 a scope and severity rating required by federal regulations. In the March survey, Petitioner assigned a "G" rating to Tags F224 and F314, both of which are Class II deficiencies. A "G" rating means that the alleged deficiency was isolated, caused actual harm to one or more residents, but did not involve substandard quality of care. Petitioner assigned a "D" rating to the three Class III deficiencies alleged in Tags F282, F325, and F363 in the March survey. A "D" rating means that there is no actual harm but there is potential for more than minimal harm without actual jeopardy. Petitioner relies on two grounds for changing Respondent's license rating from standard to conditional. When Petitioner alleges two Class II deficiencies in the 2567, as Petitioner did in the March survey, applicable rules require Petitioner to change the rating of a facility's license. Applicable rules also authorize Petitioner to change a facility's license rating when the facility does not correct Class III deficiencies within the time prescribed by Petitioner. Petitioner alleges that Respondent failed to correct three Class III deficiencies alleged in Tags F282, F325, and F363 in the March survey by the time Petitioner conducted the April survey. Effective March 8, 2001, Petitioner changed the rating of the facility's license from standard to conditional. Effective May 31, 2001, Petitioner changed the rating of the facility's license from conditional to standard. The allegations in Tag F224 in the March survey pertain to two residents in the dementia unit of the facility who are identified individually as Resident 1 and Resident 13. Tag F224 in the March survey alleges that the facility failed to meet the requirements of 42 CFR Section 483.13(c). The federal regulation provides in relevant part: 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 not use verbal, mental, sexual, or physical abuse, corporal punishment, or involuntary seclusion. The federal regulation is applicable to nursing homes in Florida pursuant to Rule 59A-4.1288. Tag F224 does not allege that the facility failed to develop the written policies required by 42 CFR Section 483.13(c) and Rule 59A-4.1288. Rather, Tag F224 alleges that Respondent failed to implement its policy. Tag F224 alleges that the facility failed to provide care and services to Resident 13 to prevent the resident from sexually intimidating a female resident identified as Resident 1. Tag F224 further alleges that Resident 13 had a past history of abusive and aggressive behavior to other residents but was not reassessed, "care planned," and monitored. The allegations in Tag F224 are based on observations of one of Petitioner's surveyors who participated in the March survey. On March 5, 2001, the surveyor observed Resident 13 in the dementia unit standing over Resident 1. The surveyor did not observe any overt sexual misconduct by Resident 13. Rather, the surveyor concluded that sexual misconduct occurred because she determined that Resident 13 was "invading [the female resident's] space," Resident 1 appeared "very anxious," "nervous," and "uncomfortable", and screamed for 15 minutes for Resident 13 to leave. The surveyor also relied on the history of Resident 13 to conclude that Resident 13 engaged in sexual misconduct on March 5, 2001. Resident 13 had, on two occasions, previously expressed a desire to have sex with female residents in the dementia unit and on other occasions had wandered into the rooms of female residents. Based on the inappropriate sexual statements by Resident 13 prior to March 5, 2001, the surveyor alleged in Tag F224 that Resident 13 engaged in sexual misconduct with Resident 1 on March 5, 2001. The preponderance of evidence does not show that Resident 13 engaged in sexual misconduct on March 5, 2001, by standing in front of Resident 1. Resident 13 did not engage in any overt sexual act or gesture. Resident 13 did not utter any inappropriate sexual comments. Resident 13 suffered from dementia and was elderly. He was mentally incapable of forming the requisite intent to sexually intimidate Resident 1 and was physically incapable of carrying out any such intent. In the absence of any overt sexual misconduct on March 5, 2001, the only evidence to support the allegation of sexual misconduct in F224 is the inference of the surveyor based on the gender difference between Residents 13 and 1 and the past history of inappropriate sexual statements by Resident 13. The inference of the observer does not satisfy the requirement for a preponderance of the evidence. The resident’s physician was qualified as an expert witness without objection. The physician testified that he was aware of Resident 13’s aggressive behavior, including the two occasions on which the resident expressed a desire to have sex with female residents. However, such incidents are typical of demented residents, do not reflect that Resident 13 was going to attack other residents in the dementia unit, and do not require any alteration to the care plan that was already in place. The only evidence that Petitioner provided to the contrary was the non-expert opinion of its surveyor. The non- expert opinion of the surveyor was insufficient to refute the physician’s expert opinion. Resident 13 suffered from severe cognitive impairment and was not physically or mentally capable of premeditating a plan to sexually intimidate Resident 1 and then carry out that plan. Resident 1 was paranoid of men. Her response to the encounter with Resident 13 was precipitated by her paranoia rather than by Resident 13's intent to sexually intimidate Resident 1. Although Resident 13 voiced a desire to have sex with other residents on two occasions during his stay at the facility, he never acted on those statements and was physically and mentally incapable of acting on them. On those two occasions, Respondent monitored Resident 13 closely but the resident did nothing to indicate that he would act on his stated desires or that he even remembered voicing them. Petitioner did not allege that Resident 13 engaged in any behavior on March 5, 2001, other than sexual misconduct. Even if Tag F224 were to have alleged that Resident 13 engaged in abuse other than sexual abuse, the preponderance of the evidence failed to show that Resident 13 engaged in non-sexual abuse. As a threshold matter, the evidence that the incident lasted for 15 minutes is not credible. It is implausible that a surveyor would allow apparent sexual intimidation to continue after she perceived the incident to be sexual intimidation, much less allow Resident 1 to endure such intimidation for 15 minutes. The surveyor testified that she could not locate a certified nursing assistant ("CNA") on the dementia unit when the incident occurred on March 5, 2001. The dementia unit is a locked unit comprised of resident rooms that open at regular intervals along a 60-foot hallway, and an activities room. There were two CNAs on duty at the time. One of those CNAs was in the hallway at the time of the alleged incident. The surveyor did not inform any member of the staff or administration at the facility that the incident had occurred before Petitioner provided Respondent with the allegations in the 2567 at the conclusion of the March survey. Resident 13’s primary behavior problem did not involve physical aggression toward other residents. Rather, the primary behavior problem was Resident 13's tendency to become aggressive with staff when they attempted to provide personal care, especially that care required for the resident's incontinence. Petitioner incorrectly concluded that the inappropriate behavior by Resident 13 indicated that he was a risk to assault or intimidate other residents. Resident 13’s historical experience at the facility did not involve aggression toward other residents. Instead, Resident 13 directed his aggressive behavior to situations with staff who were attempting to provide personal care for him. Irrespective of the proper characterization of Resident 13's behavior on March 5, 2001, the behavior did not occur because of any failure by the facility to assess Resident 13 or to develop and implement appropriate care plans to address the Resident 13's inappropriate behavior. Respondent acknowledged that Resident 13 wandered the hall, wandered into residents’ rooms, occasionally urinated in inappropriate places, and occasionally made inappropriate sexual remarks. However, those behaviors are typical of residents who suffer from dementia, and the inappropriate behavior cannot be eliminated through a care plan. Facility staff knew to monitor Resident 13 and to re- direct him if he engaged in inappropriate behavior that affected other residents. The chart for Resident 13 is replete with instances of staff consistently implementing those interventions. The care plan for Resident 13 directed staff to approach him calmly, let the resident choose the timing of his care, assess him for pain as a potential cause of agitation, and leave the resident alone and approach him later if the resident became upset during care. All of these interventions were appropriate for the identified behavior problem, and the record is replete with instances of the successful implementation of appropriate interventions. A physician saw Resident 13 and evaluated the resident almost weekly. The physician was aware of and assisted in the evaluation of the resident’s behavior. The physician considered several alternative interventions including the use of anti- anxiety medications to address the resident’s aggressiveness. The physician called in a psychiatric nurse practitioner to evaluate the resident and to recommend medications that might be effective in controlling aggressive episodes. At various times during the course of Resident 13’s stay at the facility, the physician prescribed Seraquil, Risperdal, BuSpar and Ativan for the resident. When aggressive incidents occurred, staff administered these medications with positive effects. Petitioner offered no specific evidence that any intervention used by the facility was not appropriate or that there was another intervention that the facility failed to identify and implement that would have changed any of the inappropriate behavior. Rather, the surveyor concluded that whatever the facility did was inappropriate because Resident 13’s behavioral problems did not subside or disappear while he was at the facility. The surveyor's conclusion fails to adequately understand dementia. The inappropriate behavior displayed by Resident 13 is typical of residents in a dementia unit and cannot be eliminated. Petitioner did not prove that Respondent failed to adequately reassess Resident 13. The resident’s medical record is replete with examples of efforts by the staff to continually re-evaluate the resident and to modify care plan approaches. The facility conducted quarterly re-assessments of the resident. The facility required staff to chart all incidents of inappropriate behavior in the resident’s medical record in an effort to identify any triggering events. The facility provided staff with in-service training for Resident 13 by the resident’s physician. The scope of the training encompassed the care of residents with dementia but focused in particular on the care that was required for Resident 13. The physician wanted to assure that Resident 13 would not become over-medicated and implemented frequent assessments and readjustments of the dosages of the resident's medications. Petitioner offered no evidence that Respondent failed to assess the resident in a timely manner or that any assessment performed by the facility was inappropriate. Petitioner did not allege in the March survey that the incident between Residents 13 and 1 was a result of Respondent's failure to consistently implement Respondent's policy regarding investigations of abuse. Therefore, any evidence relevant to such an allegation at the hearing is irrelevant to the allegations for which Petitioner provided adequate notice in the March survey. A contrary ruling would violate fundamental due process requirements for notice of the charges that substantially affect Respondent's license to operate the facility. Assuming arguendo that Petitioner can prove charges at the hearing that were not included in the allegations in the March survey, Petitioner's surveyor testified at the hearing that the incident she observed on March 5, 2001, occurred because the facility did not implement its policy and procedure regarding investigations of abuse of residents. As evidence of Respondent's failure to implement its policy, the surveyor contended that the facility did not properly investigate another incident described in nursing notes on January 31, 2001, before the March survey. In the January incident, the nursing notes indicated that Resident 13 made sexual advances to other residents. The implication is that the facility would have done something different with the resident had it properly investigated the January incident and would have, in turn, been able to prevent the occurrence of the incident the surveyor observed on March 5, 2001. Respondent maintains an adequate anti-abuse policy. Respondent’s anti-abuse policy requires its designated staff members to investigate and report to abuse agencies, if necessary, any suspected incidence of abuse of its residents. However, the facility did not fail to implement this policy with regard to Resident 13. Abuse is defined in Respondent's policy as the "willful infraction [sic] of injury . . . resulting in physical harm, pain or mental anguish." Due to Resident 13's dementia, he was not capable of willfully inflicting harm on anyone. No facility investigator could reasonably conclude that an incident involving Resident 13 constituted abuse within the meaning of the written policy of the facility. Even if the incident described in the January 31, 2001, nursing notes were relevant to the allegations in the March survey, Petitioner failed to show that the incident which the surveyor observed on March 5, 2001, was the product of any failure by Respondent to implement its policy on January 31, 2001. The facility’s director of nursing adequately investigated the incident described in the nursing notes on January 31, 2001, and determined that Resident 13 made no sexual advances to anyone and did not direct any inappropriate sexual comments to other residents. Rather, the investigation found that Resident 13 made inappropriate sexual comments to a CNA. Staff appropriately monitored Resident 13 after he made that statement to the CNA, and Resident 13 did nothing to act on the statement. The director of nursing notified Resident 13’s physician, and the physician determined there was no need to alter the resident’s care plan. Petitioner failed to show that the deficiency alleged in F224 was a Class II deficiency. Petitioner presented no evidence that the incident the surveyor observed on March 5, 2001, was anything other than an isolated incident or presented a threat of harm to other residents. Tag F314 alleges that Respondent violated 42 CFR Section 483.25(c). The federal regulation requires, in relevant part: Pressure Sores. Based on the comprehensive assessment of a resident, the facility must ensure that— A resident who enters the facility without pressure sores does not develop pressure sores unless the individual’s clinical condition demonstrates that they were unavoidable; and A resident having pressure sores receives necessary treatment and services to promote healing, prevent infection and prevent new sores from developing. The federal regulation is applicable to nursing homes in Florida pursuant to Rule 59A-4.1288. The March survey alleges in Tag F314 that the facility failed to provide required treatment and services to Resident 2. The surveyor determined the facility was out of compliance after she determined that Resident 2 had pressure sores. The surveyor based her findings on her observation of Resident 2 and a review of the records. In the nursing notes of February 22, 2001, the facility noted small open areas to the left thigh, back of scrotum, and buttocks. On March 5, 2001, the resident’s medical record indicated that the resident had two reddened areas on his buttocks. On March 6, 2001, the surveyor observed that the resident had two open areas on his right buttock and two on his scrotum. Petitioner charged in F314 in the March survey that these areas were pressure sores, and that the areas identified on March 6th were those which had been initially identified on February 22, 2001. Petitioner further charged that the facility failed to provide necessary treatment and services because staff failed to notify the resident’s physician and obtain a treatment order to the areas in accordance with the facility's policy relating to pressure sore care. A threshold issue is whether the reddened areas on Resident 2 were pressure sores or were reddened areas that did not satisfy Petitioner's definition of a pressure sore. If the areas were not pressure sores, Petitioner acknowledges that there would be no deficiency and no violation of the facility's pressure sore policy. The guidelines promulgated by Petitioner to guide its surveyors in the interpretation of the standard applicable under Tag F314 define a pressure sore as: . . . ischemic ulceration and/or necrosis of tissues overlying a bony prominence that has been subjected to pressure, friction or sheer. The areas identified on February 22, 2001, were located on Resident 2’s buttocks, scrotum, and thigh. None of those areas were located over any bony prominence within the meaning of Petitioner's promulgated definition of a pressure sore. Additionally, the areas identified on February 22nd were healed the next day. Pressure sores do not typically heal overnight. A nurse practitioner examined the areas identified on March 5th and 6th during the survey. The nurse practitioner diagnosed those reddened areas as a rash. Petitioner relies on records that identify the reddened areas on forms that the facility uses for both pressure sores and reddened areas that are not located over a bony prominence. For convenience, the facility uses a single form to identify both reddened areas and pressure sores. Petitioner seeks to rely on the facility forms, including elements of the plan of care on such forms, as though they were admissions by the facility that define pressure sores and then attempt to require the facility to prove the areas are not pressure sores. Petitioner is bound by its own definition of a pressure sore, cannot deviate from that definition, and cannot rely on a different definition as a basis for disciplinary action against the licensee. Petitioner limits the definition of a pressure sore to those ischemic ulcerations and/or necrosis of tissues that overlie a bony prominence. Those ischemic ulcerations and/or necrosis of tissues that do not overlie a bony prominence are not pressure sores within the meaning of the definition adopted by the state agency. The use by the facility of pressure sore treatment forms and the use of the term pressure sore in the medical records does not create a bony prominence where none exists. The preponderance of evidence shows that the reddened areas at issue were not located over a bony prominence. Clearly, there is no bony prominence in the scrotum, thigh, or buttocks where the reddened areas were located on Resident 2. Assuming arguendo that the areas were pressure sores, Respondent provided all treatment and services to the areas necessary to promote their healing. The facility treated the areas identified on February 22, 2001, by cleansing and application of Lantiseptic, a skin protector. The effectiveness of the treatment is reflected by the complete healing of the areas on the next day. Facility staff properly notified the treating physician and treated the areas identified on March 5th with Lantiseptic. A physician’s assistant examined the areas identified in the March survey and confirmed the use of Lantiseptic on the areas. The surveyor found no record of any plan of care for the pressure sores alleged in the March survey. The facility subsequently produced a note by a nurse practitioner dated March 6, 2001, stating that Lantiseptic was applied to a rash on the buttocks and scrotum, a doctor’s order for treatment, and a care plan for pressure sores after the physician’s note of February 23, 2001. The surveyor testified that the additional documents did not alter her testimony that the areas were pressure sores and that the facility failed to provide an adequate plan of care. The testimony of the surveyor does not refute the preponderance of evidence at the hearing. The areas at issue did not overlay a bony prominence. In any event, Petitioner failed to show that the deficiency alleged in F314 in the March survey was a Class II deficiency. Even if the areas were pressure sores and it were determined that the facility failed to provide necessary treatment and services, the evidence does not demonstrate that the problem suffered by Resident 2 was systemic or likely to occur with other residents in the facility. At most, the evidence demonstrates a limited failure to provide care to one resident. Accordingly, Petitioner failed to prove that the identified deficiency presented an immediate threat to other residents in the facility. At the conclusion of Petitioner's case in chief, Respondent moved to dismiss the allegations in Tag F282 on the grounds that Tag F282 in the March and April surveys alleged different deficiencies and therefore were not relevant or material to a change in license that is based on uncorrected deficiencies. After hearing arguments from both parties, the ALJ granted the motion to dismiss with leave for Petitioner to revisit the issue in its PRO if Petitioner could provide legal authority to support its position. Petitioner argues in its PRO that the ALJ erred in granting the motion to dismiss. However, Petitioner does not cite any legal authority to support its argument. Tag F282 in the March and April surveys alleges that the facility failed to provide care and services in accordance with the plan of care for two residents in violation of 42 CFR Section 483.20(k)(ii). The federal regulation provides in relevant part: Comprehensive Care Plans. (3). The services provided or arranged by the facility must— (ii) Be provided by qualified persons in accordance with each resident’s written plan of care. The federal standard is applicable to nursing homes in Florida pursuant to Rule 59A-4.1288. In the March survey, Tag F282 did not allege that Respondent provided services to residents by unqualified staff. Instead, Tag F282 charged that Respondent's staff incorrectly fastened a clip belt in the back of Resident 21 while she was in her wheel chair and failed to toilet her once in accordance with a physician’s order. In addition, Tag F282 alleged that staff did not weigh Resident 3 weekly as required by his care plan. However, a preponderance of the evidence showed that the facility did not miss any required weights after January 13, 2001. In the April survey, Tag F282 did not allege that Respondent failed to correct the deficiencies alleged in the March survey regarding Residents 21 and 3. Nor did Tag F282 allege that Respondent failed to comply with the plan of corrections submitted by Respondent after the March survey. Rather, Tag F282 in the April survey alleged that Respondent failed to provide a plate guard and weighted spoon for Resident 7 in violation of a physician's order. Petitioner argues that the alleged deficiencies in Tag F282 in the March and April surveys, pertaining to Residents 21 and 7, respectively, involved the failure to comply with a physician's order and, therefore, represent uncorrected deficiencies. Even if Petitioner's definition of an "uncorrected deficiency" were accepted, it would not be dispositive of the issue. The evidence showed that the physician who ordered the weighted spoon and plate guard for Resident 7 terminated the order at the conclusion of the April survey. Even if Respondent failed to follow a physician's order for Residents 21 and 3 in the March survey, Respondent did not fail to follow a physician's order for Resident 7 during the April survey. Moreover, the termination of the physician's order evidences a medical determination that the failure to comply with the order did not cause any harm to Resident 7. In any event, the definition of an "uncorrected deficiency" asserted by Petitioner is not persuasive. Notwithstanding the request of the ALJ, Petitioner did not submit any legal authority to support its asserted definition of the phrase "uncorrected deficiency." In the absence of a technical definition established by statute, rule, or judicial precedent, the phrase "uncorrected deficiency" is properly construed in accordance with the plain and ordinary meaning of its terms. The allegations in Tag F282 in the March survey are rooted in a physician’s order that called for a clip belt to be placed around Resident 21 while she was in her wheelchair. The purpose of the order was to guard the safety of Resident 21. The order further directed staff to check the belt every thirty minutes and release it every two hours to toilet the resident. During the March survey, a surveyor observed that staff had placed the clip belt on Resident 21 improperly on one day, and further determined that the resident had not been taken to the toilet. Based upon that information, the surveyor charged that the facility failed to follow the doctor’s order for checking and releasing the belt. The surveyor’s observations established, at most, a single isolated instance of failure to follow the care plan for Resident 21. The surveyor's observations failed to establish a consistent failure to implement the care plan. The alleged deficiency presented no potential for harm to Resident 21. Resident 21 was cognitively alert and could notify staff if she needed to be toileted or needed her belt removed. At the time that the surveyor observed Resident 21, the resident was in a supervised setting with staff readily available to her in the event she needed attention. She was not shown to have experienced any incontinent episode or to have even requested that she be toileted or otherwise released from the belt. Petitioner acknowledges that any failure by staff to remove the resident’s belt during this time presented nothing more than a minimal risk of harm to the resident. Resident 3 was admitted to the facility on January 13, 2001, and had a care plan that called for the resident to be weighed weekly. Between the resident’s admission to the facility and the March survey, the facility weighed the resident in accordance with the care plan except for one omission in late February. This one instance of failing to do a weekly weight did not demonstrate a consistent failure to implement the care plan. Petitioner provided no evidence that this single instance of failing to weigh the resident caused the resident harm or presented even the potential for harm to the resident. After the March survey, Respondent submitted a plan of correction to address the alleged deficiencies relating to Tag F282. Applicable law precludes Respondent from arguing the validity of the alleged deficiencies in its plan of correction. In the plan of correction, Respondent indicated that it would focus on restraints and weekly weights to insure that the alleged deficiencies would not re-occur. Petitioner accepted the plan of correction and, in April, did not find that staff at the facility failed to properly apply restraints to residents, failed to do weekly weights for residents, or otherwise failed to implement the plan of correction. Petitioner charged that Respondent violated Tag F282 in April because the facility failed to provide a weighted spoon and plate guard to Resident 7 as required by a physician’s order. It is uncontroverted that the plan of correction adopted to address the March F282 deficiency pertaining to Residents 21 and 3 did not address the deficiency alleged in Tag F282 in the April survey with respect to Resident 7; and would not have prevented the deficiency alleged in the April survey pertaining to Resident 7. Accordingly, the deficiency alleged in Tag F282 in the April survey pertaining to Resident 7, even if true, did not represent an "uncorrected" deficiency. Instead, the deficiency alleged in Tag F282 in the April survey represented a new deficiency. In any event, Petitioner failed to demonstrate that the alleged failure of the facility to comply with any of the orders at issue denied residents any necessary care and treatment, or presented even the possibility that the residents would be harmed. The physician ordered the weighted spoon and plate guard for Resident 7 due to the loss of dexterity in the resident's hand needed to assist him in the consumption of his meals. Even though the plate guard and spoon were not provided to the resident after they were ordered for him, the resident had no trouble with meal consumption. His medical records reflected that he consistently consumed his meals and that he gained almost 20 pounds during the time period that the spoon and plate guard were ordered. The weight gain and food consumption are significant because the facility initially admitted the resident as a hospice resident. The absence of any medical necessity for the physician's order requiring the spoon and plate was confirmed when the facility contacted the doctor during the survey, and the doctor issued an order discontinuing the use of the plate guard and spoon. Tag F325 in the March and April surveys alleges that the facility failed to comply with the requirements of 42 CFR Section 483.25(i)(1). The federal regulation provides, in pertinent part: 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. . . . The federal regulation applies to nursing homes in Florida pursuant to Rule 59A-4.1288. Tag F325 alleges in the March survey that Respondent did not maintain acceptable parameters of body weight for Resident 4. Respondent does not dispute this charge. Tag F325 alleges in the April survey that Respondent did not maintain acceptable parameters of body weight for Resident 9. Resident 9 lost approximately 20 pounds between August of 2000 and April 8, 2001. However, Petitioner provided no evidence that the weight the resident lost was "unacceptable" or caused by inadequate nutritional care. Petitioner neither contended nor demonstrated that a 20-pound weight loss over seven or eight months violates any accepted dietary or health standard. Even if such a rate of weight loss were an "unacceptable nutritional parameter," Petitioner provided no evidence that Respondent failed to properly monitor Resident 9's weight, assess his dietary needs, provide the resident with an appropriate diet, or otherwise caused the weight loss. Rather, the resident’s medical records demonstrate on-going assessments of the resident by the dietary staff and numerous interventions to address the resident's weight. Petitioner alleges that Respondent failed to comply with several directives for supporting care for Resident 9. Facility staff had been directed to cue Resident 9 to use a "chin tuck" to address his risk of aspiration due to swallowing difficulties. Staff were directed to cue the resident to cough and tuck his chin anytime the staff determined that the resident's voice sounded wet. During the survey, the surveyor observed three meals in which the staff provided no cues to Resident 9. However, no cues were required of staff if the resident did not have a wet sounding voice, and the surveyor acknowledged that she did not hear the resident cough during any of her meal observations. Even if cues were required to be given to Resident 9 during the meals observed by the surveyor, the surveyor did not demonstrate that the failure to cue the resident had any negative impact either on the resident's ability to eat or on the resident's weight. Rather, the evidence shows that Resident 9 weighed 151.6 pounds on April 8, 2001, and weighed 160.2 pounds on April 20, 2001, the day after Petitioner completed the April survey. Thus, the failure of the staff to cue the resident during the observed meals did not violate a nutritional parameter. The surveyor testified that the facility failed to provide fortified foods to Resident 9 during the April survey in violation of the resident's dietary care plan. The allegations in Tag F325 in the April survey do not include the allegation of inadequate care to which the surveyor testified during the hearing. In the absence of adequate notice in the written allegations, the testimony of the surveyor cannot be used as a basis for any finding of deficiency. Even if the testimony were considered as a basis for a finding of fact, the failure to provide fortified foods did not violate any nutritional requirements. Resident 9's wife provided the resident with "home-cooked" meals to satisfy his food preferences. Petitioner acknowledges that the meals the wife supplied effectively precluded the resident from eating fortified foods provided by the facility. Moreover, Resident 9 gained weight between April 8 and 17, 2001. Tag F363 alleges in the March and April surveys that the facility failed to meet the requirements of 42 CFR Section 483.35(c)(1)-(3). The federal regulation provides in relevant part: (C) menus and nutritional adequacy. Menus must-- Meet the nutritional needs of residents in accordance with the recommended dietary allowances of the Food and Nutrition Board of the national Research Council, National Academy of Sciences; Be prepared in advance; and Be followed. The federal regulation applies to nursing homes in Florida pursuant to Rule 59A-4.1288. Tag F363 alleges that the facility’s menu for March 8, 2001, included cranberry sauce and that the facility did not serve cranberry sauce to 11 residents in the rehabilitation dining room. The surveyor who made this charge did not evaluate the meal actually provided to the residents for its nutritional adequacy. Rather, the surveyor cited the facility because the facility failed to comply with the literal terms of the printed menu. Respondent does not dispute that the facility did not serve cranberry sauce to 11 residents in its rehabilitation dining room on the day in question. The facility’s menu for March 8, 2001, consisted of roast turkey, poultry gravy, cornbread dressing, peas and carrots, mandarin oranges, bread, and cranberry sauce. The menu called for one-half tablespoon of cranberry sauce. The omission was not significant. The dietician did not include the cranberry sauce in calculating the nutritional content of the meal. The cranberry sauce was only a garnish to the plate. The remainder of the food items offered in the meal met all of the requirements for residents’ nutritional needs. Any failure by Respondent to provide the cranberry garnish presented no risk of harm to any resident. Tag F363 alleges in the April survey that Respondent provided a saltine cracker during one meal to a resident who required a pureed diet. Tag F363 also alleges that Respondent gave a bologna sandwich to a resident whose food preferences did not include bologna sandwiches. Petitioner provided no evidence that either of these residents received nutritionally inadequate meals. Petitioner’s apparent concern with the resident who was served the cracker was that she might attempt to eat it and choke on it because she required pureed foods and the cracker was not pureed. The surveyor who observed the resident acknowledged that the resident did not eat the cracker. She also acknowledged that there is a regulatory standard which requires a facility to provide a therapeutic diet to residents who require such a diet, and that a pureed diet is a therapeutic diet. Accordingly, this observation is, at most, a violation of that standard, not Tag F363, and presented nothing more than a minimal chance of harm to the resident. Petitioner failed to show that the resident who did not get the bologna sandwich was deprived of any required nutrition, or that placing a bologna sandwich in front of the resident created any risk of harm to the resident. The surveyor acknowledged that the sandwich did not remain in front of the resident for long and that the facility immediately corrected the situation by providing the resident with an acceptable substitute. Tag F363 also alleges that the facility posted for resident observation the same menu on Monday, April 17, 2001, that the facility posted on Sunday, April 16, 2001. The regulation at issue does not address how or even if menus must be posted in a nursing home. Petitioner failed to explain why posting the same menu on consecutive days would violate any regulation, rule, or statute. Respondent acknowledged that the Sunday menu was not removed on Monday, but demonstrated that different, nutritionally adequate meals were planned and served to residents on each of those days.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Agency for Health Care Administration enter a final order finding that Petitioner failed to show by a preponderance of the evidence that a factual basis existed upon which Petitioner should have issued a Conditional rating to Respondent on March 8, 2001, and revising the March 8 and April 16, 2001, 2567 reports by deleting the deficiencies described under Tags F224, F314, F282, F363 and F325 (April only); and issuing a Standard rating to Respondent to replace the previously issued Conditional rating that was in effect from March 8, 2001, until May 31, 2001. DONE AND ENTERED this 4th day of March, 2002, in Tallahassee, 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 4th day of March, 2002. COPIES FURNISHED: Dennis L. Godfrey, Esquire Agency for Health Care Administration 525 Mirror Lake Drive, North, Room 310L St. Petersburg, Florida 33701 R. Davis Thomas, Qualified Representative Broad & Cassel 215 South Monroe Street, Suite 400 Tallahassee, Florida 32302 Diane Grubbs, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Suite 3431 Tallahassee, Florida 32308 William Roberts, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive Suite 3431 Tallahassee, Florida 32308
Findings Of Fact FMCC's application is to provide a 102-bed long-term care nursing facility in Fort Myers, Florida, while AHC's and HSI's applications are to provide 120-bed long-term nursing care facilities. When each of these applications was presented to the south Central Florida Health Systems Council, Inc. (HSA), the application of FMCC was approved and forwarded to Respondent recommending approval and the other two applications were disapproved and so forwarded. The primary reason given by HSA for disapproving HSI's application was lack of firm financing and for disapproving AHC's application was cost of construction. Trained personnel to man the proposed facilities are in short supply in Lee County. Applicants' plans to import personnel, if necessary, from other parts of the country were supported by no evidence to indicate such personnel would be amenable to move to Lee County. All applications were disapproved by Respondent and each applicant requested a hearing which resulted in this consolidated hearing. At present there are 741 existing or approved long-term care nursing home beds in Lee County, Florida. A 120-bed facility at Cape Coral became operative in February, 1979 and a 60-bed addition to Beacon-Donegan Manor nursing home has also been approved. Prior to the opening of the newest 120-bed facility at Cape Coral, the occupancy rate for the other long-term care nursing homes was greater than 90 percent. Due to its recent opening, no evidence was presented as to the occupancy rate in Lee County following the opening of the Cape Coral facility. The population of Lee County in 1978 was 184,841 with 41,984 more than 65 years old, which is less than 23 percent of the population. This is in line with the population forecasts by the University of Florida and validates the estimated 1980 population figures which were used by all parties in submitting their applications. In 1978 Respondent proposed a State Health Plan which included a determination that the long-term care nursing home bed needs were 27 per 1,000 population greater than 65 years old. This determination was unacceptable to the Department of Health, Education and Welfare (HEW) whose decision is binding on Respondent. In refusing to accept this standard, HEW reaffirmed the requirement that the formula contained in the Hill-Burton Act be utilized in determining certificates of need. Following the Hill-Burton formula results in no additional long-term care nursing home beds needed in Lee County. Modification of the results produced by use of the Hill-Burton formula when extenuating and mitigating circumstances exist is authorized by the Florida Medical Facilities Plan. Accordingly, when use of Hill-Burton formula produces results contrary to obvious facts, such as a showing of no need for additional facilities when occupancy rates are high and long waiting lists for admission exists, these extenuating circumstances are considered and a finding of need is made. The parties stipulated that extenuating circumstances, notably the greater than 90 percent occupancy rate in nursing homes in 1977 and most of 1978 and the existing waiting lists created need for 100 to 120 additional beds. No evidence was presented establishing a need for more than 100-120 additional long-term care nursing home beds in Lee County. In fact, no evidence was presented showing the current occupancy rate, current waiting lists, or any other information not previously submitted to the Health Systems Agency was here presented other than the latest Census Report, which merely confirmed the accuracy of the forecasts. Even if the 27 beds per 1,000 population greater than 65 which was proposed by the South Central Florida Health Systems Agency were used to establish the number of beds needed, their limitation, that no more than 50 percent be added in the two-year planning period, would preclude approving more than one additional nursing home at this time. Absent evidence showing a need for more than one additional nursing home, the only issue remaining is which of the applicants is best qualified to provide the best service at the lowest cost for the stipulated need. HSI submitted proposed construction costs and patient charges in line with those submitted by FMCC. However, although their application states, and the Health Systems Agency apparently accepted, their allegation that an option to lease had been obtained on the property on which the proposed facility was to be erected, testimony at the hearing disclosed that only an oral agreement to lease the property had been obtained by HSI. An oral agreement affecting a long-term lease of real property comes within the Statute of Frauds and is unenforceable. This fact alone renders all cost estimates submitted by HSI suspect. Further, the financing proposed by HSI to construct the facility shows less than $200,000 equity capital available and a requirement to borrow $1,300,000. One ground noted by the Health Systems Agency for disapproving this application was the inadequacy of their financing. No evidence presented at this hearing contradicted this Health System Agency's finding. AHC operates some 50 nursing homes in 14 states with two nursing homes in the Orlando area. A certificate of need has been obtained for a third nursing home in Jacksonville. Florida Living Care, Inc., the parent corporation of FMCC, manages some 44 nursing homes and owns 25. It has certificates of need for 6 nursing homes in Florida, one of which is completed and in operation, while 3 are under construction. AHC proposes to finance 87 percent of the cost of the 120-bed project, or $2,160,000, in a 40-year loan at 8.5 percent interest. FMCC proposes to finance 80 percent of the cost of a 102-bed project, or $1,000,000, in a 25-year loan at 9.5 percent interest. Although no testimony regarding the current status of mortgage money was presented, it is recognized that interest rates are at historically high levels and that FMCC is more likely to get financing on the terms it proposed than is AHC on the terms the latter proposed. HSI proposed costs and charges result in average costs of $30.16 per patient per day. FMCC proposed costs and charges result in average costs of $30.96 per patient per day. AHC proposed costs and charges result in average costs of $34.40 per patient per day. No significant difference exists in the services proposed by each of the applicants. Savings from combined purchasing can result when numerous facilities are operated. Both AHC and FMCC are in a better position in this regard than is HSI. Additional savings in group food purchasing can result when facilities are within 200 miles of each other. The facilities FMCC's parent corporation is opening in Sebring and Port Charlotte are close enough to Fort Myers to allow group food purchasing for these facilities. AHC's construction costs are approximately 50 percent higher per bed than are the costs submitted by FMCC and HSI. This factor must result in higher charges to amortize these higher construction costs.
The Issue Was Petitioner properly cited for a Class III deficiency.
Findings Of Fact Horizon Healthcare & Specialty Center (Horizon), is an 84-bed nursing home located at 1350 South Nova Road, Daytona Beach, Florida. It is licensed under Chapter 400, Part II, Florida Statutes. The Agency for Health Care Administration (AHCA) is the state agency charged with licensing and regulating nursing homes in Florida. On August 14, 2000, AHCA conducted a survey of Horizon. This was accomplished in part by Rose Dalton, a nurse. At the hearing Ms. Dalton was determined to be an expert in nursing care. A report on a nursing home survey is made on a Form 2567-L which is approved by the U.S. Department of Health and Human Services, Health Care Financing Administration. A Form 2567-L was generated as a result of Ms. Dalton's survey. It was reported under the category Tag 327. Resident 7. Ms. Dalton, in conjunction with the survey team accompanying her, determined on August 17, 2000, that Resident 7 was dehydrated. This conclusion was reached because facility records indicated that Patient 7 had a blood urea nitrogen (BUN) of 57 on August 7, 2000, with normal being 6-26, and a high normal creatinine of 1.6. Another factor used in concluding that Resident 7 was dehydrated was a report dated August 8, 2000, which revealed a BUN of 34. On August 12, 2000, a report indicated a BUN of 43 and a creatinine of 1.9. The survey team was also aware that Resident 7 was ingesting Levaquin, a powerful antibiotic which requires that a patient remain well-hydrated. Ms. Dalton and the survey team cited the facility with a Class III deficiency, for state purposes, and a "G" on the federal scale. The federal scale goes from "A", which is a deficiency which causes no harm, to "J", which is harm which may cause death. The "G" level meant that it was the team's opinion that there was great potential for actual harm. Resident 7 was admitted on August 3, 2000. Among other ailments, Resident 7 was suffering from a femoral neck fracture and renal insufficiency when admitted. The resident contracted a urinary tract infection (UTI), and was being administered Levaquin, an antibiotic appropriate for UTI treatment. On August 8, 2000, a physician's order requested that the patient be encouraged to consume fluids. It is Ms. Dalton's opinion that Resident 7 was not provided proper fluid intake by the facility which could have caused serious health consequences for Resident 7. When Resident 7 was in the hospital, prior to being admitted to Horizon, his BUN was 41 and his creatinine was 2.3, which is consistent with Resident 7's chronic renal insufficiency. The BUN of 43 and creatinine of 1.9 observed in the facility on August 12, 2000, did not indicate Resident 7's condition was worsening, and in fact, it was improving marginally. The values for a normal BUN might vary from laboratory to laboratory but generally a normal BUN would be around 25 or less. Because of Resident 7's underlying renal disease and ischemic cardiomyopathy, it was unlikely that Resident 7 would ever manifest a BUN which would be considered normal. Dr. Elizabeth Ann Eads, D.O., an expert in the field of geriatric medicine, reviewed the laboratory values and the nursing notes in the case of Resident 7. It is her opinion, based on that review, that the facility provided appropriate care, that the patient improved during the stay at the facility, and that there was nothing in the record which suggested any actual harm to Resident 7. This opinion was accepted. Resident 8. Ms. Dalton opined that, based on her personal observation and a review of Resident 8's medical records, that the facility failed to respond to the hydration needs of Resident 8 and did not follow the care plan which was developed for Resident 8. Ms. Kala Fuhrmann was determined to be an expert in the field of long-term care nursing. She noted that Resident 8 was admitted to the facility on August 1, 2000. Resident 8's hospital records indicated that Resident 8 might be developing a UTI based on a urinalysis performed on July 31, 2000, which revealed blood and protein in the urine. On August 3, 2000, Resident 8's doctor started an antibiotic, Levaquin, and ordered another urinalysis. On August 4, 2000, a culture determined that Resident 8 was positive for a UTI, so the antibiotic treatment was continued. On August 15, 2000, it was determined the UTI had been cured. During the course of the UTI, Resident 8 was incontinent, which is often the case when elderly patients are afflicted with UTI. By August 18, 2000, Resident 8 was continent. It is Ms. Fuhrmann's opinion that the care provided to Resident 8 was appropriate and that there is nothing in the record which demonstrates that anything less than adequate hydration was provided to this resident. This opinion was accepted.
Recommendation Based upon the Findings of Fact and Conclusions of Law, RECOMMENDED: That the Agency for Health Care Administration enter a final order dismissing the allegations set forth in relation to the TAG 327. DONE AND ENTERED this 12th day of June, 2001, in Tallahassee, Leon County, Florida. HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of June, 2001. COPIES FURNISHED: Karen L. Goldsmith, Esquire Goldsmith & Grout, P.A. 2180 North Park Avenue, Suite 100 Post Office Box 2011 Winter Park, Florida 32790-2011 Michael O. Mathis, Esquire Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building Three, Suite 3431 Tallahassee, Florida 32308-5403 Sam Power, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building Three, Suite 3431 Tallahassee, Florida 32308 Julie Gallagher, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building Three, Suite 3431 Tallahassee, Florida 32308
