The Issue Whether Shady Rest Care Pavilion, Inc. failed to maintain the nutritional status of one of its residents so as to justify the imposition of a conditional license rating upon the facility and an administrative fine of $2,500.
Findings Of Fact Based upon the testimony and evidence received at the hearing and the parties' stipulations, the following findings are made: Shady Rest is licensed by the Agency as a skilled nursing facility. Shady Rest's license number is SNF1497096. The Agency conducted an on-site survey of Shady Rest from July 30, 2001, to August 2, 2001. At the time of the survey, Shady Rest's licensure status was standard. The survey was conducted by a "team" that included dietitian Lori Riddle and other health care professionals. The survey team identified several deficiencies at the facility. The deficiencies were detailed on the Form 2567 which was provided to Shady Rest by the Agency. The only deficiency still at issue in this proceeding is the Tag F325 which was summarized on the Form 2567 as follows: Based on observations, clinical record review and staff interviews, the facility failed to ensure that nutritional needs were met for 3 (Residents 11, 21 and 22) of 5 active sampled residents receiving tube feeding who were at high risk for malnutrition as evidenced by significant weight loss, low albumin and total protein levels and recurring pressure sores. The survey team classified the Tag F325 at Level "G" (i.e., isolated actual harm) on the federal scope and severity matrix, which corresponds to an isolated Class II deficiency under the Florida classification scheme. Based upon the cited Class II deficiency, the Agency issued a notice of intent to change Shady Rest's licensure status from standard to conditional, and the Agency initiated a separate action to impose an administrative fine upon Shady Rest. This proceeding followed. At the hearing, the Agency narrowed the focus of the alleged deficiency from the three residents identified on the Form 2567 to only one, Resident 11. No evidence or testimony was presented regarding any other residents. Resident 11 is a female. At the time of the survey, she was 89 years old, 64 inches (five feet, four inches) tall, and weighed 145 pounds. She has been at Shady Rest since 1987. A care plan for Resident 11 was developed by a "team" that included the director of nursing at Shady Rest, a nurse (Sonja Reece, R.N.), a dietitian (Ann Marie Shields, R.D.), two care plan coordinators, and social service and activity personnel. Members of the care plan team worked closely with Resident 11's physician, Dr. Lakshmi Bushan, to manage Resident 11's medical conditions. Dr. Bushan was actively involved with the care of Resident 11 and was very familiar with her conditions. Dr. Bushan was at the facility on a weekly basis and sometimes several times per week. Resident 11 is totally dependent on Shady Rest and its staff for the provision of nutrition. She is fed through a tube connected directly to her stomach. Resident 11 is a "very complex resident" as a result of a myriad of serious medical conditions, including heart attack, seizure disorder, edema (i.e., swelling of the tissues due to fluid retention), hiatal hernia with reflux, pemphagus (i.e., an autoimmune disease resulting in blisters around the body), congestion in the lungs which caused breathing problems, kidney disease, and liver problems. She was also prone to skin breakdown. The treatment of Resident 11 was complicated by the fact that management of one of her conditions would exacerbate another. For example, the Prednisone she was taking to treat her pemphagus increased her fluid retention and, hence, her edema; but, Lasix, the diuretic she was taking for the edema, caused her to have diarrhea which led to the breakdown of her skin from constant cleaning and put her at risk of dehydration and kidney failure. Resident 11's edema was at a dangerous level, referred to as "3+ pitting edema." Relieving the edema was determined to be of critical importance to Resident 11 by her physician. The fluid retention in Resident 11's lungs caused her to suffer from shortness of breath which could ultimately lead to congestive heart failure. Because Resident 11 did not respond well to Lasix and because it actually exacerbated her other medical problems (i.e., skin breakdown), a fluid reduction diet was deemed necessary by her physician. Resident 11 was overweight, partially due to her edema. Resident 11's weight contributed to and exacerbated her medical conditions, particularly her congestion and breathing problems, and it enhanced her risk of congestive heart failure. On April 3, 2001, Dr. Bushan ordered an evaluation of Resident 11's nutritional status and the adequacy of her tube feeding. Resident 11 weighed 163 pounds on that date. On April 4, 2001, Ms. Shields, performed the evaluation ordered by Dr. Bushan. Ms. Shields calculated the total calories per day (cal/day) needed by Resident 11 based upon a standard formula. She then subtracted 400 cal/day to take into account the weight loss desired by Dr. Bushan. Ms. Shields' calculation resulted in an estimated caloric need for Resident 11 of 1,100 to 1,200 cal/day. Because the feeding ordered at that time provided 1,125 cal/day, which was within the range computed by Ms. Shields, no changes were made to Resident 11's diet at that time. Resident 11 was, however, taken off Lasix at that time because it was not contributing significantly to her weight loss and it was putting her at risk for dehydration and kidney failure. Resident 11's weight dropped only slightly after the April 4, 2001, evaluation. On May 1, 2001, she weighed 159 pounds and on June 1, 2001, she weighed 158 pounds. Dr. Bushan wanted Resident 11 to lose more weight more rapidly to stabilize her serious medical conditions. Accordingly, on June 13, 2001, Dr. Bushan requested a dietary consultant to check the amount of Resident 11's tube feedings in order to implement a planned weight loss program to reduce Resident 11's weight to 145 to 150 pounds. Ms. Shields conducted the assessment on June 14, 2001, and after consulting with Resident 11's care plan team, she recommended to Dr. Bushan that Resident 11's caloric intake be reduced from 1,125 cal/day to 750 cal/day to accomplish the rapid and significant weight loss desired by Dr. Bushan. Dr. Bushan accepted Ms. Shield's recommendations and ordered the reduction in calories on June 14, 2001. On that date, Resident 11 weighed 158 pounds. Resident 11's care plan was updated on June 14, 2001, to reflect the goal of reducing her weight by not more than five pounds per week until she reached less than or equal to 150 pounds. The dietary change achieved the desired effect of rapidly reducing Resident 11's weight and stabilizing her medical conditions. Her weight records showed the following: Date June 20, 2001 Weight 153 June 27, 2001 153 July 4, 2001 152 July 11, 2001 153 July 18, 2001 152 July 25, 2001 n/a August 2, 2001 145 The dietary notes for August 1, 2001, indicate that Resident 11's "weight goal was met" and recommended a dietary change to increase Resident 11's caloric intake to 1,000 cal/day. The record does not include the doctor's order implementing that recommendation. However, by August 8, 2001, Resident 11's weight was at 151 pounds, suggesting that the dietary change was implemented. Between the June 14, 2001, dietary change and the August 2, 2001, survey, Resident 11 lost 13 pounds, which is an 8.2 percent weight loss. For the three-month period of May 1, 2001 through August 2, 2001, Resident 11 lost 14 pounds, which is an 8.8 percent weight loss. Resident 11's edema improved significantly during this period; it was no longer at the "3+ pitting edema" level. In this regard, some of Resident 11's weight loss is attributable to the elimination of retained fluids (i.e., reduction in her edema), which was a significant purpose of the weight loss program. The amount of the weight loss attributable to the fluid loss is not quantifiable. The federal guidelines discussing Tag F325, which the Agency's survey team uses in its evaluation of a facility, state that "weight loss (or gain) is a guide in determining nutritional status" and identify parameters to be used in evaluating the significance or severity of weight loss. The 8.8 percent weight loss experienced by Resident 11 over a three- month period would be considered "severe" based upon the parameters. The parameters in the federal guidelines specifically refer to "unplanned and undesired weight loss." By contrast, the weight loss experienced by Resident 11 was planned and desirable. It was directed by Dr. Bushan after Ms. Shield's dietary consultation in order to reduce Resident 11's fluid intake and her edema while also promoting rapid weight loss to minimize her congestion and related breathing problems. The estimated protein needs for Resident 11 were 53 to 57 grams per day. The protein that she was being given, both prior to and after the June 14, 2001, dietary change was within that range. Increasing Resident 11's protein to offset the calorie reduction was not considered a viable option for Resident 11 because her history showed that the more protein she received the more weight she gained. Moreover, too much protein could cause liver failure, which was a risk for Resident 11. When the body is not receiving enough calories, it can metabolize protein as a calorie source rather than for the purposes protein is normally used, such as health of the skin. Resident 11 experienced skin breakdown (i.e., pressure sores or decubitus ulcers) after the June 14, 2001, dietary change. The sores were very small in size and, consistent with Resident 11's past history, the sores healed quickly. Therefore, they are not indicative of a protein deficiency. Indeed, subsequent to the dietary change, Resident 11's skin turgor was good. The laboratory reports for Resident 11 showed her having low albumin levels after the dietary change. Low albumin is generally an indicator of insufficient protein in the body. However, as noted above, the rate at which Resident 11's skin healed suggests that she was getting sufficient protein. Resident 11's low albumin level, in and of itself, is not determinative of her nutritional status. Indeed, the federal guidelines provided to the survey team state: Because some healthy elderly people have abnormal laboratory values, and because abnormal values can be expected in some disease processes, do not expect laboratory values to be within normal ranges for all residents. Consider abnormal values in conjunction with the resident's clinical condition and baseline abnormal values. Even before the June 14, 2001, dietary change, Resident 11's albumin level was not within the normal range. Her abnormal albumin levels may have been the result of her liver problems. Dr. Bushan and the care plan team at Shady Rest managed Resident 11's care based upon their clinical observations of her in conjunction with their experience regarding what worked for her in the past, not simply based upon her laboratory values. They were constantly weighing standards of practice with what was actually happening with Resident 11.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration issue a final order which: Dismisses the Administrative Complaint against Shady Rest Care Pavilion in DOAH Case No. 02-1291; and Rescinds the notice of intent to assign conditional licensure status to Shady Rest Care Pavilion in DOAH Case No. 02-1965 and retains the facility's standard licensure status. DONE AND ENTERED this 26th day of August, 2002, in Tallahassee, Leon County, Florida. T. KENT WETHERELL, II 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 26th day of August, 2002.
The Issue Whether Beverly Health Care of North Okaloosa violated certain regulations at the time of two surveys conducted on July 16 and November 29, 2001, so as to justify the Agency for Health Care Administration's decision to issue Beverly Health Care of North Okaloosa Conditional licenses and administrative fines.
Findings Of Fact North Okaloosa is a licensed nursing home located in Crestview, Florida. On July 16, 2001, AHCA conducted a survey of North Okaloosa’s facility. In its survey AHCA found one alleged deficiency relating to Resident No. 5. The deficiency was cited under Tag F-324. Tag F-324 relates to whether a facility has provided sufficient supervision or assistive devices to a resident to prevent injury from falls. The tag does not address assessment, the failure to assess, or maintenance of a care plan. These deficiencies are covered by other tags. Specific to Resident No. 5, the agency surveyor suggested that Resident No. 5 should have been provided a different type of footwear from that which he was wearing or that the facility should have provided additional assistive devices to prevent falls. Resident No. 5 was admitted to North Okaloosa’s facility around April 16, 2001. At the time of admission, he was assessed as being at high risk for falls. Interventions included monitoring medications, laboratory values, steadiness and balance. Resident No. 5 resided on the secured ward at the facility. Resident No. 5 had pain in both feet, but could ambulate. He walked with a shuffling gait due to his foot pain, and he wore slip-on house shoes without non-skid soles. He refused to wear other types of shoes because other types of shoes caused more discomfort. He was also cognitively impaired and refused to sit down or lie down to rest but would ambulate continuously. Restraints were not appropriate for him. Resident No. 5 had been assessed to be at risk for falling and had a care plan in place. He was on the facility’s "Falling Star" program which meant that he was checked on by the staff at least every half hour. The general standard of observation in nursing homes is every two hours. The nurses’ notes contain many entries regarding monitoring the resident while he walked. Since admission, Resident No. 5 fell on June 12, June 25, July 8, and July 14, 2001. The only falls charged as violations by AHCA concerned the falls on July 8 and July 14, 2001. The resident was found on the floor outside the shower on July 8, 2001. He sustained some injury which caused him to be taken to the local hospital. However, there was no indication of inappropriate supervision or that his shoes were involved or contributed to the fall. Indeed, there was very little evidence regarding how Resident No. 5 got down on the floor of the shower. Resident No. 5 fell again on July 14, 2001. On that date, he was being observed by staff who saw him bend over and then lose his balance. At that time, he was being supervised closely, but even so, the fall could not be prevented. Again, there was no indication that the shoes contributed to his fall. Unfortunately, falls are a common occurrence in nursing homes and cannot always be prevented. The goal is to balance the need to prevent falls and the need to keep residents free of restraints given physical, cognitive, and treatment limitations. Falls can result regardless of adequate supervision. There is no standard of care which requires one-on-one supervision of any resident. However, such one-on-one supervision would not necessarily prevent all falls. Although AHCA suggested the resident should have had shoes with non-skid soles, such shoes would have increased the risk of falls, given the resident’s shuffling gait. Non-skid soles were not appropriate footwear for Resident No. 5. There was some indication in the evidence that the facility at times had one C.N.A. on duty for the ward. No schedules or testimony from the facility confirmed this fact. There was insufficient evidence on this point to address the adequacy of the facility's staffing. Moreover, the evidence did not demonstrate any appropriate measures which could have been added to protect Resident No. 5 from falls. Beyond agency speculation, there was no evidence that the standard of care for supervision of a resident in order to prevent falls was violated and no Class II deficiency occurred in relation thereto. On November 29, 2001, AHCA again conducted a survey of North Okaloosa’s facility. In its survey AHCA found several violations related to various residents. The deficiencies cited by AHCA involved Resident No. 3 (Tags F-157 and F-324); Residents No. 2 and 22 (Tag F-221); Resident No. 19 (Tags F-221, F-324 and F-325); Resident No. 7 (Tag F-279); Residents No. 10 and 12 (Tags F-279 and F-325); Resident No. 15 (Tag F-279); Resident No. 16 (Tags F-279 and F-324); Resident No. 24 (Tag F-279); Resident No. 25 (Tag F-324); and Residents No. 1 and 17 (Tag F-325). Tag F-157 represents 42 C.F.R. Section 483.10(b)(11), which in pertinent part requires a facility to immediately inform a physician "when there . . . is a significant change in the resident’s . . . status . . . (i.e., a deterioration in health . . . status in either life threatening conditions or clinical complications) . . ." Not all changes in a resident’s condition trigger the notification provisions of Tag F-157. Notification is required only where the change is significant as outlined above. Resident No. 3 required assistance with her activities of daily living and was cognitively impaired. Resident No. 3 required assistance with ambulation. There was no evidence that she required assistance with toileting. She was diagnosed with dementia and had severe osteoarthritis. Resident No. 3 often complained of back pain and was prescribed Darvocet as a medication for her back pain. She also often refused to ambulate and would remain in her bed. She was prescribed Zyprexa and Haldol. Nursing notes indicate that at 7:23 p.m. on August 31, 2001, Resident No. 3 was assisted to the bathroom and seated. A few minutes later she was found "on the floor no injuries noted." Nurses are trained to assess patients after an accident to determine whether there has been an injury. This is a regular part of practice in a nursing facility. A notification was faxed to the doctor regarding the incident, with the notation that there was no injury, but that the resident had experienced a decline in ability to ambulate. However, the staff did not think the decline was a significant change in status since Resident No. 3 often would stay in bed. AHCA asserts that this notice was insufficient, as it was sent after office hours prior to a weekend. AHCA’s position assumes the doctor would not have received the fax. The nursing notes over the weekend note that the resident complained of back pain, that she had a small bruise on her left shoulder, that she remained in bed but displayed no effects from the fall. Nursing staff continued to monitor her. On Saturday and Sunday, the C.N.A. did range of motion and ambulation exercises with the resident. There was no complaint of pain or "guarding." On the following Tuesday (Monday was Labor Day), while in therapy, the therapist noted pain while doing exercises. The physician was called and an X-ray was ordered which revealed a fracture of the tibia. In this case, the complaint of back pain did not constitute a significant change in condition, as the resident’s record is replete with continuing complaints of back pain prior to August 31, 2001, and a medication prescribed for that particular problem. The resident had also had episodes of staying in bed and a recent decline in ambulation, of which the doctor was aware. Given this history, the clinical records do not reflect any significant change in condition which would warrant an immediate notification of a physician prior to Tuesday, when the doctor was called. Therefore, no Class II violation occurred in relation to Resident No. 3 under Tag F-157. Tag F-324 was also cited as a violation in relation to Resident No. 3. As indicated earlier, Tag F-324 relates to the provision of adequate supervision or assistive devices to prevent falls. The record reflects that the resident had been able to ambulate independently with a recent decline in ambulation and need for some assistance. She could follow instructions. She had a care plan for falls and was on the Falling Star program. She was seen by a neurologist and a physical therapist. Nothing in the record indicated insufficient capacity to be allowed to use the bathroom in private. AHCA's surveyor did not know what the usual routine was for this resident as it related to toileting but suggested that she should not have been left alone while toileting. The evidence does not support this conclusion and there is no other basis under this tag in relation to Resident No. 3, which demonstrates a violation. Tag F-221 corresponds to 42. C.F.R. Section 483.13(a) and prohibits the use of restraints "imposed for discipline or convenience and not required to treat the resident’s medical condition." Again, the tag does not include assessment, failure to assess or maintenance of a care plan. AHCA asserted that three residents had restraints which were not used to treat a medical condition, Residents No. 2, 19, and 22. Resident No. 2 had a history of falls, and a care plan to address his risk of falls. On October 17, 2001, he fell for the third time since September 30, 2001, causing a 3.5 cm laceration to the back of his head. He had been experiencing a decline in cognitive status and disease progression, of which the doctor was aware. The resident had severe mental impairment which caused him to not be aware of safety. As a result of this history and his injury, the doctor assessed and ordered the use of a lap belt while he was in a wheelchair, along with an alarm to notify staff if he attempted to stand. The records reflect a medical need for the restraint to prevent injury to this resident. Resident No. 19 used a front opening lap belt while she was in her wheelchair. The lap belt was assessed and ordered by the physician on August 14, 2001. The clinical record contained an assessment of the device and approval from the family, but the assessment clearly noted that the device was used "for positioning. Not as a restraint." The resident had a care plan for falls, which also stated that the seat belt was for positioning to "prevent her from sliding out of the chair," not to prevent her from getting up. According to the notes of her assessment, the belt also acted as a reminder for her to seek assistance when getting up. AHCA acknowledged that the device was not a restraint because the resident could, and did, open it. Even if it were considered a restraint, however, the record reflects that it was used to address her history of falls and poor safety awareness due to her dementia. In short, the belt was used because of her medical condition and, therefore, had a medical reason underlying its use. Resident No. 22 had a physician’s assessment and order for a roll belt while in bed. A roll belt is attached to either side of the bed and keeps the resident from getting up or out of bed. It is a restraint. The roll belt was ordered because, as acknowledged by AHCA in the survey report, the resident had sustained a fall in which she broke her hip, and then, upon return to the facility, fell from her bed and re-injured her hip. The second fall necessitated a complete hip replacement. She had poor safety awareness, and any further fall would have resulted in severe limitations. The doctor had also ordered cushions to be attached to her legs to keep her hip aligned properly, so that any attempt to get up would necessarily have resulted in a fall. Clearly, this restraint had a medical purpose. As to Tag F-221, there was insufficient evidence that North Okaloosa used restraints in an inappropriate manner. It was clear from the evidence that AHCA’s main concern was a perceived lack of assessment or reassessment of the devices used on these residents. However, assessment is not covered by this tag. Moreover, the record demonstrated some assessment was done by the doctor in ordering the use of these devices for medical reasons. The facility is entitled to rely on that expert's decision. Tag F-279 encompasses 42 C.F.R. Section 483.20(k), which requires a comprehensive care plan for each resident to meet needs identified in a comprehensive assessment. AHCA asserted that the care plans for six residents were defective in varying ways. AHCA's surveyor asserted that the care plan for pressure sores for Resident No. 7 was deficient because it did not mention that the resident was at high risk for pressure sores, that he had sores that opened and healed, or included the changes in the doctor’s orders regarding those sores. A "care plan" as opposed to a "plan of care" is developed pursuant to an assessment called a Minimum Data Set or MDS, which is conducted on admission, then annually with quarterly updates for significant changes. It is not an all- inclusive document and cannot be all-inclusive. As set forth in Rule 59A-4.109, Florida Administrative Code, the overall "plan of care" includes not only the care plan, but physician’s orders and other information relating to the resident. Physician orders are not required to be included in the formal care plan required under Tag F-279 and such orders are not typically reflected on a care plan document. Resident No. 7 was admitted with Stage IV pressure ulcers in February 2001. Resident No. 7 was diagnosed with leukemia, as well as other debilitating conditions. A care plan was developed in March pursuant to an MDS on admission which stated that he had pressure sores and was at high risk for developing such. The plan was amended several times, most recently before the survey on November 14, 2001. Contrary to the surveyor’s assertion, the care plan did mention the resident was at increased risk for pressure sores and noted that, in spite of the resident’s conditions, the pressure sores healed by May and did not reoccur. The care plan was kept in effect to prevent further problems and was obviously effective. Clearly, Resident No. 7 had a care plan which reasonably addressed his needs. AHCA asserted that Resident No. 10 required a care plan for weight loss. However, the resident was admitted at 80 pounds, and at the time of the survey weighed 93.6 pounds, indicating that there was not a weight loss problem. A physician’s assessment in September described her as a "petite, well-developed" 87-year-old, which indicates no problem with her weight. She was within her ideal weight range. She had some history of up and down weights, but the evidence did not demonstrate a need to change or update Resident No. 10’s care plan. Resident No. 10 had also been flagged by the facility as being at risk for weight loss and sometimes refused her meals. However, these facts demonstrate an appropriate ongoing monitoring and assessment of Resident No. 10 by the facility. These facts do not demonstrate a need to immediately amend the formal care plan for Resident No. 10. Resident No. 12 was a Hospice patient. He had metastatic prostate cancer which was likely to result in death within six months. For Hospice residents, the focus is on comfort as opposed to aggressive care. The Hospice agency is a separate entity from the nursing home, and when Hospice comes in to care for a resident, it becomes the care manager and determines the approaches to care. AHCA's surveyor asserted that there did not appear to be coordinated care plans between Hospice and North Okaloosa for Resident No. 12, but the basis for this concern was not made clear. AHCA's surveyor acknowledged that the facility and Hospice had care plans and did not identify any specific concerns except that the facility did not appear to be doing weekly weighings of the resident. However, Resident No. 12 had been assessed to be likely to lose weight due to his medical conditions. He received nutritional supplements, and the family had declined tube feedings, which is consistent with Hospice care. The facility records reflect that the resident did receive the nutritional supplements, and that, while he gradually lost weight as expected, he did not decline significantly in the period prior to survey. The facility did not shirk its duty to continue to monitor Resident No. 12. It coordinated its care with that of Hospice and AHCA’s concerns over such were not born out by the evidence. AHCA’s complaint about Resident No. 15 was that the care plan for weight loss was discontinued when the resident was admitted to Hospice care. At that time, however, the resident continued to have a Hospice care plan regarding nutrition, and a facility care plan regarding hospice care which noted that the resident was to be monitored for abnormal weight loss, appetite, and skin breakdown. Additionally, as a result of an assessment completed November 26, 2001, it was determined that there were concerns about skin breakdown. A separate care plan for nutritional status was to be developed. This assessment demonstrates that the care planning process was working appropriately for Resident No. 15. It also demonstrates coordination between Hospice and the facility. Again, AHCA's concern of coordination of Hospice care with facility care was not born out by the evidence. Resident No. 16 was diagnosed with various dementias, anxiety and depression. The resident had frequent episodes of dizziness with a history of falls. AHCA's surveyor asserted that the care plan for Resident No. 16 should have had particular mention of dizziness and a method of addressing that condition. The care plan did appropriately plan for fall prevention and addressed the reasons for her falls, i.e. vertigo, under that section. The resident’s record demonstrates that the resident received frequent physician attention due to her spells of dizziness or vertigo and that the nurses continuously monitored for that condition. The assessment which resulted in the development of the resident’s care plan indicates that the resident has dizzy spells causing falls. The care plan lists monitoring of the resident for "steadiness and balance." As "dizziness" is a subjective state, it cannot be monitored, and the care plan, which was updated on many occasions, adequately addressed the problem even if it was not in terms AHCA thought should be used. Resident No. 24 was also a Hospice resident. The resident was in a vegetative state. AHCA's surveyor suggested that the Hospice care plans and facility care plans were not "integrated." The resident’s record reflects, however, that the facility developed a care plan noting that the resident was on Hospice care and that Hospice attended care plan meetings. AHCA also suggested that the care plan for pressure sores was deficient because it noted a "risk of" pressure sores and was not updated to reflect actual pressure sores which the resident acquired while in the hospital. AHCA suggested no way in which this would have changed the care given. However, as noted above, physician orders are not typically reflected on the care plan document. Furthermore, Hospice had a care plan for pressures sores as well, and the record reflects that there were numerous physician orders for treatments. The care plans for all the residents cited were developed pursuant to the comprehensive assessment process. The evidence did not demonstrate any Class II violations of Tag F-279. Indeed the evidence demonstrated that confusion by AHCA over a resident’s formal care plan with an ongoing and changing plan of care. Again, in the November survey AHCA charged that North Okaloosa failed to provide adequate supervision to prevent accidents for three residents under Tag F-324. The allegations relating to Resident No. 3 were covered earlier. As indicated earlier, Resident No. 16 experienced dizziness or vertigo. She also had a high risk for falls. AHCA's surveyor speculated that alarms should have been attached to her chair or increased supervision. However, the resident regularly got up and walked, which would render the alarms useless. Indeed, the evidence did not demonstrate that rising from a seated position was the cause of her falls. In fact, the resident had not experienced any falls from August 22 until November 27, 2001, in spite of her episodes of vertigo and dizziness. She received frequent physician evaluations and the nurses’ notes reflect frequent monitoring. The record reflects that there was no warning of her attacks of vertigo. There was no evidence of inadequate supervision or of assistive devices which would reduce the resident’s risk of falling. Resident No. 19 had a history of falls and had been assessed several times for the problem. He was in a wheelchair with a front opening seat belt. A TABS monitor was used while the resident was in bed. The resident had a care plan in place to address such, including restorative care to assist with transfers. She received therapy to address her problem with balance. AHCA's surveyor suggested that her seat belt did not operate as an effective restraint but did not suggest the resident should have been restrained, agreeing that residents generally have the right to be free of restraints. Indeed, restraints were not appropriate for this resident. AHCA also noted that no measures other than a seatbelt and chair alarm had been put in place since August. Those measures had been reviewed through assessment in September, however, and had been effective in preventing falls until November 23, 2001. There was no evidence that there was any lack of supervision of Resident No. 19. Additionally, the resident was in the process of being reassessed to determine if further interventions were appropriate after her fall of November 23, 2001, and that review, though underway, had not been completed at the time of the survey. The evidence did not demonstrate that AHCA failed to adequately supervise or provide assistive devices to these residents. Therefore, no Class II violation under Tag F-324 was established. Tag F-325 requires a facility to ensure that a resident "maintains acceptable parameters of nutritional status" insofar as possible given a resident’s clinical conditions. 42 C.F.R. Section 483.25(i). Guidelines used by AHCA in interpreting this regulation are found in the State Operations Manual and suggest that there are levels of "significant" weight loss which would be unacceptable, if not explained by a resident’s medical circumstances. Weight loss is to be determined by looking to the resident’s usual weight, and significance is measured at one month, three month, and six month intervals, recognizing that a shorter term could be a temporary aberration. Generally, a 5 percent total body weight loss in 30 days or a 10 percent total body weight loss in 180 days is considered significant by AHCA. However, these are simply guidelines and do not necessarily demonstrate a violation of this tag. Other considerations, such as the resident’s medical condition and obesity, must be considered. AHCA asserted that Resident No. 1 had a significant weight loss, from 249 to 222 pounds from September 16 through October 9, 2001. The selection of this time period is inappropriate, however, for two reasons. One, the weight of 249 is clearly, by the weight records, not a usual weight and appears to be a mistake. The resident’s prior weight was 238, and the resident’s usual weight was between 220 and 230 pounds. The resident was obese, which can make weighing difficult and cause inaccuracies. Moreover, it is physically impossible for the resident to have lost 27 pounds in three weeks. The second reason that the noted time frame was inappropriate was that it spanned less than a one month’s time and, therefore, was not necessarily indicative of any trend or condition. The surveyor also opined, though she was not a dietician or physician, that the facility should have increased the resident’s tube feeding level prior to October 9, 2001. The level had been reduced on physician orders on September 24, 2001, due to nausea and vomiting. The resident had metastatic breast cancer and was on Hospice care, making comfort the primary goal of treatment. From that date until October 9, 2001, the clinical record reflects continuing reasons not to increase the feeding level, irrespective of the dieticians recommendations. Medications had been added, and monitoring for their effectiveness would take time. The resident also had a distended abdomen indicating a failure to absorb the feedings she was receiving. Even if there had been a weight loss, it was not inadvisable given the resident’s obesity. There was no evidence that the resident’s nutritional well-being was not being monitored appropriately by the facility. AHCA cited Resident No. 10 under Tag F-325, but did not identify any "parameter of nutritional status" which was not maintained. Again, the surveyor identified a short term (one week) weight loss, which was not significant. The resident was within her ideal range. The surveyor suggested only that she had a history of varying weights and that, during the survey, she did not eat some of her meals. The weight record reflects, however, fairly consistent weights and an overall increase from the time of the resident’s admission. It was not disputed that Resident No. 12 experienced a significant weight loss; however, it was also undisputed that weight loss was to be expected with his metastatic prostate cancer, other medical conditions, and Hospice status. The surveyor was concerned that the resident was seen with a regular meal, rather than a "mechanical soft" meal, as ordered, and that the meal tray did not contain a sugar free shake, as ordered. The description of the meal in the survey report identified a meal which is considered "mechanical soft" by dietary standards. Further the clinical record (medication administration record) demonstrated that the shakes were provided. The shakes were not required to be on the meal tray, as there was a one-hour window around mealtime in which they could be served. Furthermore, the resident’s weight in October and November was relatively stable. The resident’s weight loss and protein levels were the result of his medical condition and the resident was on an adequate diet given the parameters of the resident’s treatment and condition. Resident No. 17 was cited under this tag, though there was no evidence of any significant weight decline or other nutritional deficit. The resident was within her ideal body weight and gained weight during her stay at North Okaloosa. AHCA disputed the tube feeding provided to the resident, but was unaware the resident also received food orally. Resident No. 19 lost weight since her admission in August 2000, to North Okaloosa. However, the trend was noted by the facility when it became significant. The concern was addressed and the weight stabilized after June 2001. The resident remained in her ideal body weight range, so there was no need to recapture the lost weight. In July, a physician review noted that the resident was "well-nourished." The surveyor acknowledged that there had been no significant weight loss from March to September 2001, and that weights were stable from June until the survey. In September, the resident’s psychiatrist noted that there had previously been a weight loss concern but that it had been resolved. The weight loss had occurred due to his medical condition and his need for 15 different medications which affected his appetite and condition. Resident No. 25 had a diagnosis of failure to thrive and was placed on Hospice care. Failure to thrive means an accumulation of factors trending to weight loss. Eating more does not affect weight loss as there is an inability to utilize nutrients. AHCA's surveyor objected to the fact that there was a dietary recommendation on October 23, 2001, for double portions, which had not resulted in an order. A physician’s order is required to make a diet change, and there is no indication of failure to notify the physician. However, the resident already received 3,300 calories, far in excess of her assessed needs, consumed 100 percent of her meals, and continued to lose weight. From a dietary standpoint, there was no reason to believe the addition of more calories would have affected the trend caused by her failure to thrive. The evidence did not demonstrate any Class II deficiencies related to these residents under Tag F-325.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, there was no basis upon which AHCA could have issued Conditional ratings to North Okaloosa on July 12, 2001, or November 29, 2001 or impose a fine. It is RECOMMENDED that the Agency for Health Care Administration enter a final order revising the July 12, 2001, and November 29, 2001, survey reports by deleting the deficiencies described under Tags F-157, F-221, F-279, F-324, and F-325, and issuing Standard ratings to North Okaloosa to replace the previously issued Conditional ratings, and correcting all other records to reflect the absence of any proven deficiencies at North Okaloosa during either survey, and dismiss the Administrative Complaint. DONE AND ENTERED this 3rd day of April, 2003, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of April, 2003. COPIES FURNISHED: Jodi C. Page, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308 Donna H. Stinson, Esquire Broad & Cassel 215 South Monroe Street, Suite 400 Post Office Box 11300 Tallahassee, Florida 32302 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308 R. Davis Thomas, Esquire Broad & Cassel 215 South Monroe Street, Suite 400 Post Office Box 11300 Tallahassee, Florida 32302
The Issue Whether a commercial motor vehicle owned by Respondent exceeded the posted weight when it crossed a "low limit" bridge in rural Brevard County, Florida on June 3, 1992, in violation of Section 316.545, Florida Statutes. Whether extenuating circumstances justifies the reduction or elimination of the proposed penalty for the alleged violation.
Findings Of Fact The Florida Department of Transportation (DOT) is the state agency charged with the duty to administer and enforce the provisions of Chapter 316, Florida Statutes, which regulates the weight and load of commercial motor vehicles on the state highway system. State Road 520, in Brevard County, Florida, is a part of the state highway system, and title to the right-of-way for said highway is held in the name of the State. A bridge which crosses over the St. Johns River on State Road 520 (SR520) in Brevard County, Florida, had a weight limit of 80,000 pounds for motor vehicles until October 20, 1991. On that date, the maximum weight for vehicles was reduced to a limit of 56,000 pounds. On May 26, 1992, the weight limit was again reduced, and the Department posted a new weight limit for the bridge of 30,000 pounds. On June 3, 1992, a commercial motor vehicle owned by Respondent was traveling northbound on Interstate 95 (I-95). The vehicle exited I-95, proceeded westbound on SR 520, and crossed the bridge. After the vehicle crossed the bridge, it was stopped by a Department Transportation Officer, and taken to a nearby pit scale. The weight of the vehicle was accurately determined to be 56,140 ponds. The Transportation Officer then imposed a fine of $1,307.00 on the vehicle, based on 5 cents per pound above the posted weight limit of 30,000 pounds. The penalty was paid by M & M Truck Service, and the vehicle was permitted to proceed. M & M Truck Service sought a refund of the penalty from the Commercial Motor Carrier Review Board. The Board authorized a 50 percent refund under its policy providing for a 50 percent refund when vehicles exceed a posted weight limit within 30 days of the date of a posted weight reduction. The following standard weight limit signs, each showing a 30,000 pound weight limit, had been posted by the Department on SR 520, from I-95 to SR 528, on May 26, 1992: Facing Eastbound on SR 520 (in Brevard County): Just east of I-95: "Weight Limit Last Exit" Just west of I-95: "Weight Limit" (no distance to bridge stated) 2 miles east of the bridge and just east of SR 524: "Weight Limit 2 Miles" Just east of the bride: "Weight Limit" Facing Westbound on SR 520 (in Orange County): Just west of SR 528: "Weight Limit 9 Miles" 4.2 miles west of bridge: "Weight Limit Restriction Ahead" (no distance to bridge state) 4 miles west of bridge: "Weight Limit 4 Miles" Just west of SR 532: "Weight Limit Last Exit" 2 miles west of the bridge: "Weight Limit 2 Miles" Just west of the bridge on the St. Johns River: "Weight Limit" The above signs meet current MUTCD standards. MUTCD refers to the Federal Highway Administration Manual on Uniform Traffic Control Devices, 1988 Edition, which has been incorporated by reference into Florida Administrative Code Rule 14-15.010. SR 520 was under construction at the time the vehicle crossed the bridge, and the driver did not observe the signs posted by the Department.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered finding that a penalty correctly assessed to M & M Truck Service, Inc., under the provisions of Section 316.545, Florida Statutes, and that no refund of the reduced penalty of $653.00 should be made. DONE and ENTERED this 8th day of June, 1993, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of June, 1993. APPENDIX Petitioner's proposed findings of fact: Accepted in substance by stipulation. Respondent's proposed findings of fact: Consisted of argument directed to the stipulated facts and need not be specifically ruled upon. COPIES FURNISHED: Paul Sexton, Esquire Assistant General Counsel Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0450 Gary E. Moses, President M & M Truck Service, Inc. 313 Shadow Oak Drive Casselberry, Florida 32707 Ben G. Watts, Secretary Attn: Michelle Arsenault #58 Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 Thornton J. Williams General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458
The Issue The issue is whether Respondent's license as a medical doctor should be disciplined for the reasons given in the Administrative Complaints filed on October 17, 1997, and February 2, 1998.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background At all times material hereto, Respondent, Duke H. Scott, was a licensed medical doctor having been issued license number ME 0013791 by the Board of Medicine (Board). Until 1998, Respondent practiced as a family physician at 1205 Beach Boulevard, Jacksonville, Florida. Except for the charges raised in this proceeding, there is no evidence that Respondent has ever been involved in a prior disciplinary action. Based on complaints filed by three former female patients, J. P., B. N., and S. C., Petitioner, Department of Health (Department), prosecuting this matter on behalf of the Board, issued an Administrative Complaint on October 17, 1997, alleging that while treating those patients between the years 1992 and 1994, Respondent improperly exercised influence in the patient-physician relationship for the purpose of engaging those patients in a sexual activity, and he engaged in sexual misconduct in the practice of medicine. Those three complaints are found in Case No. 98-0985. On February 2, 1998, the Department issued a second Administrative Complaint alleging that during the years 1992 through 1995 Respondent engaged in similar activity with two other female patients, C. A. and A. G. Those two complaints are found in Case No. 98-0785. Respondent has denied all allegations of misconduct and requested a hearing for the purpose of contesting the charges. Because the parties presented sharply conflicting versions of events, the undersigned has accepted the most credible testimony and resolved those conflicts in the following manner. Respondent's Practice Respondent has worked as a family practitioner in Jacksonville, Florida, since the 1960's and has treated thousands of patients over the years. When the events herein occurred, he was employed as a physician by Health South, Inc. (HSI), a large medical organization, until HSI was bought out by another entity. In 1992 through 1994, when the alleged misconduct occurred, Respondent's typical day would begin around 5:30 a.m. or 6:00 a.m. when he made "morning rounds" at two local hospitals visiting patients. He then met with his office personnel at 7:30 a.m., and he began seeing patients shortly thereafter. His work day did not end until the last patient was seen, generally between 6:00 p.m. and 8:00 p.m., depending on the case load. In an average day, Respondent saw no fewer than twenty-five, and as many as sixty, patients. The regular staff, which numbered five or six, reported to work each morning by 7:30 a.m. Besides the regular staff, Respondent also hired temporary or part-time workers, often former or current patients, to staff the office after 4:00 p.m. so that some of his regular staff could be relieved. Respondent encouraged these part-timers to complete their education, he paid for their books and tuition while they worked in his office, and he arranged their work schedules around their classes. Because of his full work day, it was not unusual for Respondent to meet with potential part-timers at the end of the work day in his office to discuss possible employment and what their duties would entail. The staff was divided into "front" and "back" staff, which meant they either worked in the front reception area answering the telephone, making appointments, receiving payments, and processing insurance claims, or they worked in the back assisting the doctor when he was seeing patients. As a rule, part-timers worked with the front staff and not with patients. During the early 1990's, Respondent had a fairly large contingent of patients who were on a weight loss program. After an initial comprehensive examination, these patients would return on a periodic basis at 7:30 a.m. for weight and blood pressure checks and a quick visit with Respondent to check on their progress. They remained fully clothed during follow-up visits. Unless they had a specific problem, the patients rarely saw the doctor for longer than a minute or two, and an assistant was always present to keep the patients moving. Beginning around 1985 or so, Respondent had a policy of always having a female assistant in the examination room whenever he conducted a pelvic or breast examination on a female patient. Whenever patients were required to disrobe, they were given a paper gown to wear. It was established that a female assistant would remain in the room until the examination was completed. During a pelvic examination, Respondent always wore a rubber glove on the hand that was being used for the examination. Finally, Respondent kept detailed patient records, and he would never do a breast examination without documenting this in the patient's chart. Unlike most modern era doctors, Respondent occasionally made house calls to family members of his patients when unusual circumstances arose. He followed up on concerns personally, and he treated whole families. In terms of his practicing style, Respondent would sometimes hug his patients, male and female, or even give the females a peck on the forehead before they left his office. This conduct was grounded on his care and concern for the patient, and not for sexual gratification. His style of personally caring for patients has become so rare in today's society that some patients might misinterpret this behavior. The Charges Each of the five patients who filed charges with the Department was either represented in a civil action, or signed an affidavit prepared, by the same Jacksonville attorney. Their claims will be discussed separately below. Patient C. A. In September 1997, C. A. read an article in a local newspaper regarding a civil lawsuit filed against Respondent and certain other defendants by J. P., S. C., and B. N. Motivated by the fact that she could "help out getting [Respondent's] license taken away," she contacted the attorney who was representing the plaintiffs and agreed to sign an affidavit prepared by him. The attorney then mailed it to the Department. She offered no plausible explanation as to why she had waited five years after the alleged misconduct occurred before making a complaint. Respondent's initial contact with C. A. occurred on November 16, 1992, or five years earlier, when she was eighteen years old, after she fell out of a jeep, broke her ankle, and suffered multiple bruises and contusions. Using her parents' health insurance policy, she visited Respondent's office on seven occasions for treatment of her ankle between November 16 and December 30, 1992. She had no complaints regarding his conduct while visiting him for treatment on those occasions. At hearing, C. A. contended that on an undisclosed date in late 1992, at Respondent's invitation, she rode with him to his condominium where they ate a take-out dinner and he mixed her one drink, ostensibly for the purpose of discussing a part-time job at his office. Respondent denied that this occurred. She also claimed that they met several times at his office "after dark," when the office was empty, for "training" sessions. While she felt "uncomfortable" and "weird" in those settings, she conceded that Respondent never raised the subject of sex, never asked her to engage in sexual relations, and never tried to inappropriately touch her. C. A.'s recollection of the alleged events was somewhat hazy. For example, she claimed that Respondent showed her around the condominium, but her description of the condominium was inaccurate. She could not recall the specific dates or times that she visited his office, except that it was after 5:30 p.m., when it became dark. She agreed that it was probably between 6:00 and 7:00 p.m., but if this were true, there would still have been patients or staff in the office at that time, as well as the cleaning crew. She also says that on one occasion, she got some basic training on how to take blood pressure; that training, however, was always given by an assistant, rather than Respondent, and in any event, she would have been hired as "front" staff to meet patients rather than assisting the doctor in treating them. C. A. says that she related Respondent's alleged misconduct to her "mom, stepmother, grandmother, and roommate," and to her present husband, whom she met a few months after last seeing Respondent in December 1992. Except for her husband, no one appeared at hearing to corroborate this assertion. As to the husband, his testimony has been discredited as being biased since he was evicted as a tenant from a rental property owned by Respondent. This occurred after he made an unannounced visit to Respondent's home one Sunday afternoon seeking reimbursement for some painting expenses. During that visit, he banged on the door and windows of Respondent's home until Respondent threatened to call the police and have him arrested. Because of his animosity towards Respondent, it is fair to suspect that he may have motivated his wife to bring these charges or color her testimony. For the foregoing reasons, the testimony of C. A. has not been credited. Even assuming arguendo that the events described by C. A. occurred, there is less than clear and convincing evidence that Respondent exercised influence within this relationship for the purpose of engaging C. A. in sexual activity, as alleged in the complaint. Patient A. G. Like C. A., A. G. read a local newspaper story which detailed the fact that three other patients had filed a lawsuit against Respondent and certain other defendants. She also read that one or more of the actions had been settled for money by the other defendants. After contacting the plaintiffs' attorney, she learned that the statute of limitations barred her from filing a claim. She agreed, however, to sign an affidavit executed by the attorney, who then filed it with the Department. A. G. first visited Respondent in September 1992 to seek assistance in controlling her weight. She was referred to Respondent by her mother, who was also a weight loss patient and a "long time" friend. A. G. continued in the weight loss program for around nine months. In her complaint, A. G. contended that Respondent always asked her to remove her bra, without any attendant being present, while he conducted her follow-up weight loss examinations. Although he never touched her breasts, she complained that she was "uncomfortable" without a top, and that he sometimes positioned himself much closer to her than was necessary. Once, she says he brushed his body against her while examining her eyes and ears. Besides these office visits, A. G. also contended that Respondent approached her to discuss the possibility of her appearing in a scuba diving instruction video he wished to produce. A meeting at his office, however, never materialized. A. G.'s testimony contained many inconsistencies. For example, at one point, she contended that she was asked by Respondent to take off her bra on "every" office visit; she later testified that he asked her to do so on some occasions; she finally testified that this occurred only once. Even then, she conceded that Respondent had never touched her breasts during any office visit. A. G. also recalled Respondent wearing an old fashioned doctor's band with a little silver "thing" on the top of his head. His office staff established, however, that he does not use such a device. The testimony regarding weight checks by Respondent's former office staff was unequivocal that weight patients are fully clothed; that evidence has been accepted as being the most credible on this issue. Visits by weight program patients took no more than a minute or two at most, and an assistant was always in and out of the room to ensure that Respondent moved on to the next waiting patient. In 1995, after having not seen him for over two years, A. G. returned to Respondent's office and requested that he give her a medical excuse to cover an unauthorized leave of absence from her job. Although A. G. denied that this occurred, it was established that she had in fact returned to his office in 1995 and was very angry when she left because Respondent refused to give her the work excuse note that she requested. A. G. also testified that she told her confidant and godmother, Margaret Hightower, about Respondent's alleged behavior. Hightower denied, however, that A. G. ever relayed these alleged incidents to her, and testified that A. G. has a reputation for untruthfulness. For the foregoing reasons, the testimony of A. G. has not been credited. Even one of Petitioner's own experts did not find her testimony to be credible. Accordingly, there is insufficient clear and convincing evidence that Respondent improperly exercised influence in his relationship with A. G. for the purpose of engaging in sexual activity, as alleged in the complaint. Patient J. P. J. P.'s allegations are rather lengthy and involve a number of office visits beginning in late April 1993 and ending in early May 1994. However, she did not have specific recall of which allegations arose from a particular office visit. During her testimony, she relied on notes she had made over two years later in contemplation of civil litigation. In some cases, her testimony was in conflict with contemporaneous medical and insurance records, or with the testimony of other witnesses. In addition, her testimony was seriously impeached as a result of other matters found in the record. For these reasons, her testimony has not been accepted. J. P. initially saw Respondent for hormone and thyroid problems, and emotional distress. She was also treated for a knee injury occuring in May 1993. She was a very large woman weighing approximately 272 pounds. The patient had no complaint regarding her first visit. On her second visit on May 18, 1993, however, she claimed that Respondent examined her without an assistant in the room and attempted to undress her by unbuttoning her blouse and unhooking her bra. She also contended that he examined her breasts unlike any other doctor she had ever visited, including doing so while she sat upright on an examination table and rubbing her nipples until they became hard. Although J. P. contended that the purpose of the second visit was for treatment of an injured knee, the record shows that the original purpose of the visit was to review lab tests and to receive a refill for her thyroid medication. There was no indication in the medical records that a breast examination was performed, and the documentary evidence has been accepted on this issue. Even if one was performed, Petitioner's own expert agreed that it was appropriate to examine her breasts while she was sitting up on the examination table and that it was appropriate and necessary to examine and rub her nipples. J. P. also contended that Respondent performed breast examinations on other occasions even though she was being treated for a knee injury. The medical records do not support this assertion. She also contended that on two occasions, she felt an erection when Respondent brushed up against her during an examination. Like many other doctors, however, Respondent routinely carried an otoscope in his pocket, and it is more likely that the patient felt this instrument if in fact Respondent may have accidentally brushed against her. During a pelvic examination conducted on December 15, 1993, J. P. recalled that Respondent insisted that the female assistant, Frances McLaurin, leave the room. McLaurin disputed that this occurred, and her testimony has been accepted on this issue. When asked why she continued to see Respondent despite the foregoing conduct, J. P. stated that she believed that her insurance company would not allow her to change doctors. The record belies this contention in several respects. For the foregoing reasons, it is found that Respondent did not improperly influence his relationship with J. P. for sexual purposes, or engage in sexual misconduct with the patient, as alleged in the complaint. Patient B. N. B. N. first saw Respondent in March 1979 when she was eighteen years of age. She continued to see him on approximately thirty-five occasions prior to May 1992. She expressed no complaints regarding his conduct during those visits. In April 1992, B. N. began working as an assistant in Respondent's office. She was terminated in October 1992. A few months later, she was rehired on a part-time basis in the late afternoon. This employment ended on August 19, 1993, when she found a full-time job elsewhere. When she left Respondent's employ, B. N. had a disagreement with Respondent regarding her insurance benefits. This was confirmed by a representative of HSI, who was in charge of health insurance benefits. B. N. was under the impression that Respondent had maliciously and intentionally cut her work hours so that she would not be eligible for insurance. As it turned out, though, Respondent had no control over the provision of health insurance to a part-time employee. This bias on the part of B. N. casts doubt on the credibility of her testimony. On May 15, 1992, B. N. claimed that she was disrobed above the waist while no one other than she and Respondent were in the room. She further complained that Respondent touched her forehead while breathing in her ear. She also contended that Respondent stared into her eyes while doing a breast examination, and that he kissed her on the forehead after the examination was completed. Assuming arguendo that the foregoing events occurred, they do not rise to the level of constituting sexual activity or misconduct, as charged in the complaint. For example, Petitioner's expert conceded that it was not inappropriate to stare into a patient's eyes while performing a breast examination. Moreover, the fact that the patient may have felt Respondent's breath while he looked into her ears is not per se an inappropriate activity. Finally, when Respondent gave a female patient a peck on the forehead before she left his office, it was established that this was done out of care and concern for the patient, and not for sexual gratification. On August 10, 1993, Respondent performed a pelvic examination on B. N. after she presented complaints of pain in her lower left quadrant which was enhanced during sexual relations. She was diagnosed with inflammation of the cervix and a bacterial infection of the uterus and vagina. B. N. complained, however, that she felt pressure to her clitoris during the pelvic examination, and she was asked inappropriate questions of a sexual nature by the doctor. As to the first contention, Petitioner's own expert established that given the complaints presented by the patient, it was appropriate for a doctor to touch the clitoris during a pelvic examination, particularly if the patient had complained of pain during sex. As to the inappropriate questions, the same expert testified as to the legitimate medical reasons for the inquiries made by Respondent. B. N. further contended that Respondent performed the vaginal examination without a glove. In light of the more credible evidence presented by his medical assistants on this issue, and Respondent's own testimony to the contrary, this assertion has been rejected. In summary, there is insufficient clear and convincing evidence that Respondent exercised influence within his relationship with B. N. for the purpose of engaging in sexual activity, or that he engaged in sexual misconduct with the patient. Patient S. C. S. C. was a twenty-year-old female when she first saw Respondent as a patient in August 1993. She was taken to see Respondent on August 18, 1993, by her mother, who was also a patient. At that time, she complained of shortness of breath and anxiety. During the comprehensive initial examination, S. C. was asked by a member of the staff to remove her blouse, but not her bra, and she was given a paper gown to wear. During the comprehensive examination, Respondent checked the patient's groin areas for nodes, and he felt the femoral pulses. Although S. C. felt uncomfortable when this occurred, she did not think it was inappropriate. According to Petitioner's expert, this was acceptable conduct on the part of Respondent since there were medical reasons for checking a femoral pulse. S. C. also noted that Respondent cupped her breast while listening to her heart with a stethoscope. However, he never rubbed, caressed, or otherwise fondled her breast, and S. C. never indicated this made her feel uncomfortable or was inappropriate. S. C. was unemployed during this period of time and was looking for a job. At the same time, Respondent needed someone to replace a part-timer (B. N.) who was leaving the next day. Accordingly, he asked her to return later that day to discuss possible employment. When S. C. returned, the office floors were being buffed by the clean-up crew, and it was too noisy to discuss a job. Respondent suggested that they go to his nearby condominum, sometimes used as a rental or loaned to friends, where his wife was cleaning and restocking the unit. This was confirmed by his wife, who was waiting for him at the condominium. On the way to the condominium, S. C. suggested they stop to eat dinner. Since Respondent had already eaten with his wife, he suggested they return to his office on the assumption that the cleaning of the floors was completed. When they returned, one member of the clean-up crew was still present. While in the office, S. C. mentioned that she was having trouble breathing through her nose. Respondent gave her a medication for allergic rhinitis. S. C. recalled that he also performed a quick nasal inspection, and while doing so, Respondent's groin area came into contact with her hands and that he had an erection. She later amended her testimony to state that his groin area came into contact with her knee. At no time, however, did Respondent ever say a word about engaging in sex. Assuming that the above scenario occurred, an accidental brushing up against the patient does not constitute sexual misconduct. Even if S. C. may have felt something brush up against her knee, it is more likely that she felt his otoscope, which he routinely carried in his pocket. S. C. accepted the offer of employment, but she left for Miami shortly thereafter, where her father lived, and she never returned to work for Respondent. In light of the foregoing, it is found that there is less than clear and convincing evidence to indicate that Respondent exercised influence within the patient-physician relationship for the purpose of engaging S. C. in sexual activity, or that he engaged in sexual misconduct with her, as alleged in the complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a final order dismissing the two complaints, with prejudice. DONE AND ENTERED this 4th day of May, 1999, in Tallahassee, Leon County, Florida. COPIES FURNISHED: John O. Williams, Esquire Maureen L. Holz, Esquire The Cambridge Center 355 North Monroe Street Tallahassee, Florida 32301 Kelly B. Mathis, Esquire Michael A. Wasylik, Esquire DONALD R. ALEXANDER 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 May, 1999. Suite 1700, SunTrust Building 200 West Forsyth Street Jacksonville, Florida 32202-4359 Joseph P. Milton, Esquire 1660 Prudential Drive, Suite 200 Jacksonville, Florida 32207-8185 Robert M. Ervin, Jr., Esquire Melissa F. Allaman, Esquire Post Office Drawer 1170 Tallahassee, Florida 32302-1170 Tanya Williams, Executive Director Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0750 J. Harding Peterson, III, General Counsel Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1701
The Issue The issue is whether Petitioner lawfully issued Respondent a conditional skilled nursing facility license.
Findings Of Fact Respondent owns and operates a skilled nursing facility known as Coral Trace in Cape Coral. Petitioner has issued Respondent a skilled nursing facility license to operate the facility. Based on the findings from a survey completed on October 1, 1998, Petitioner downgraded Respondent's license from standard to conditional, effective October 1, 1998. Based on the findings from a survey completed on March 15, 1999, Petitioner raised Respondent's license from conditional to standard, effective March 15, 1999. In this case, Petitioner attempts to prove the bases for the downgraded license between October 1, 1998, and March 15, 1999. Tag F 224, Finding of Fact 2, asserts that Respondent failed to implement its policy prohibiting neglect of its residents when staffpersons failed to respond timely to one resident's request for a straw to drink her water. On September 30, 1998, one of Petitioner's surveyors saw Resident Number 16 awaken from a nap at about 3:45 PM. The surveyor entered the resident's room to speak to her. The resident said that she was thirsty, so the surveyor gave her the cup next to her bed. The resident said that she could not drink without a straw. The surveyor turned on the call light to summon a staffperson. A few minutes later, when no one had responded to the light, the surveyor left the room and approached a staffperson and relayed the request of Resident Number 16. About ten minutes later, a staffperson entered the room and turned off the call light. At 4:15 PM, Resident Number 16, seated in her wheelchair in her doorway, asked the surveyor, "Please help me, I'm so thirsty." A staffperson was in the hallway, heard the resident's call, approached the resident, and told her, "Let me finish what I'm doing, and I'll get back to you." This staffperson returned shortly with a straw, and the resident drank from the cup using the straw. The record does not reveal, directly or by inference, that the staffperson failed to help Resident Number 16 take a drink of water. The care plan for Resident Number 16 required that staff monitor her for dehydration, but she was not dehydrated on the day in question. The evidence fails to establish that Respondent neglected Resident Number 16 in connection with her need for fluids. She had drunk eight ounces of milk at 3:00 PM. It is possible that the staffperson who entered the room to turn off the call light gave Resident Number 16 a quick drink of water from the cup; with assistance, Resident Number 16 could drink from the cup without a straw. Even if the staffperson did not give Resident Number 16 a drink while in her room, no more than 30 or 35 minutes passed from when Resident Number 16 awoke from her nap thirsty to when she got a drink of water. Under the circumstances, this does not constitute neglect. Tag F 224, Finding of Fact 11, asserts that Respondent failed to implement its policy prohibiting neglect of its residents when residents complained about neglect in the form of showering, answering call lights, and not being walked. Petitioner failed to prove any neglect because it did not produce any admissible evidence of these allegations of neglect. Tag F 325, Finding of Fact 1, asserts that Respondent failed to follow its policies requiring that Respondent not serve house nutritional supplements to residents unless a physician has ordered the supplement for a particular resident. Petitioner's proposed recommended order discusses this Finding of Fact, but Respondent's proposed recommended order omits any discussion of this Finding of Fact. The Conclusions of Law discuss the consequence of this omission from Respondent's proposed recommended order and the larger issue of the omission of any charging pleading in this case. The evidence fails to establish that any failure on the part of Respondent to ensure that it obtained a physician's order prior to serving a resident a house nutritional supplement presented an immediate threat to the health, safety, or security of any resident in the facility. Nor does the evidence establish that Respondent failed timely to correct any such deficiency. Tag F 325, Finding of Fact 2, asserts that Respondent failed to provide adequate nutrition to Resident 11, who experienced a 14 percent weight loss, from 92 pounds to 79 pounds, over the eleven months preceding the inspection. This Finding of Fact alleges that half of this weight loss took place during the preceding three months, as the resident's weight dropped from 85 pounds to 79 pounds, which is 63 percent of the resident's desirable body weight of 125 pounds. Among other allegations, this Finding of Fact asserts that, on two occasions, a surveyor saw Resident 11 eating without assistance, playing with her food, receiving 2 percent skim milk rather than whole milk, failing to receive the nutritional shakes she was supposed to receive, and sitting for 45-50 minutes without the cueing to eat that she was supposed to receive from staff. Resident 11 suffered from advanced senile dementia. She was admitted to the facility in 1996 weighing 85 pounds. While in the facility, her usual body weight ranged from 90-92 pounds, but, starting in January 1998, she began gradually to lose weight, until she died in December 1998. During this period, Respondent's dietician had determined that Resident 11 required 1212 calories per day to maintain a healthy body weight. Her base diet provided her 2231 calories per day. Fortified foods and a daily nutritional shake added another 1335 calories per day. Even ignoring additional nutritional shakes, which Petitioner's surveyors did not see served, the caloric value of the nourishment served daily to Resident 11 was three times what she required. Most likely, the cause of Resident 11's weight loss and death was senile dementia, not Respondent's nutritional policies or implementation of these policies. The senile dementia also impeded effective cueing from staff to get Resident 11 to eat more of her food. The evidence fails to establish that Respondent provided inadequate nutrition to Resident 11. Tag F 325, Finding of Fact 3, asserts that Respondent failed to provide adequate nutrition to Resident 16. On June 19, 1998, Resident 16 had an albumin level of 2.9, which is below the desirable range of 3.7 to 5.1. The Finding of Fact alleges that a physician ordered, on June 26, 1998, a high-calorie cookie and eight ounces of whole milk twice daily. The Finding of Fact alleges that one surveyor saw the resident eat only a small part of her special cookie at one serving. Resident 16 has done well while residing at the facility. She has received high-protein, not high-"calorie," as alleged, cookies, but appears to maintain fairly low albumin levels, which is not entirely atypical of frail, tiny elderly persons. The evidence fails to establish that Respondent provided inadequate nutrition to Resident 16. Tag F 325, Finding of Fact 4, asserts that Respondent failed to provide adequate nutrition to Resident 17. Resident 17 allegedly lost 12.3 percent of her weight, from 110 pounds to 96.5 pounds, in the two-month period ending July 27, 1998. Despite an order for three nutritional shakes per day, Respondent's surveyor found, at 11:30 AM on September 29, 1998, the 10:30 AM shakes for that and the prior day still in the refrigerator. Respondent's dietician determined in April 1998 that Resident 17 required 1328 calories per day to maintain her body weight of 109 pounds. The dietician established a diet that provided her 3786 calories per day, exclusive of supplemental nutritional shakes, of the type seen in the refrigerator during the inspection. When staff determined in June 1998 that Resident 17 had lost nine pounds, Respondent's dietician added more supplements and recommended monitoring and encouraging of Resident 17's eating. It is more likely than not that a substantial portion of Resident 17's weight loss was due to an upper respiratory infection from which she suffered; after the infection cleared up, Resident 17 regained weight. The evidence fails to establish that Respondent failed to meet the nutritional needs of Resident 11, 16, or 17.
Recommendation It is RECOMMENDED that the Agency for Health Care Administration enter a final order revising Respondent's license rating from conditional to standard for the period from October 1, 1998, through March 15, 1999. DONE AND ENTERED this day of June, 1999, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this day of June, 1999. COPIES FURNISHED: Karel Baarslag Senior Attorney Agency for Health Care Administration State Regional Service Center Post Office Box 60127 Fort Myers, Florida 33906-0127 R. David Thomas, Jr. Qualified Representative Broad and Cassell Post Office Drawer 11300 Tallahassee, Florida 32302-1300 Paul J. Martin, General Counsel Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308 Sam Power, Agency Clerk Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308
The Issue Whether the Respondent committed the violations alleged in the Administrative Complaint dated October 22, 2001, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department is the state agency responsible for the investigation and prosecution of complaints involving physicians licensed to practice medicine in Florida. See Section 455.225, Florida Statutes. The Board of Medicine is the entity responsible for regulating the practice of medicine in Florida and for imposing penalties on physicians found to have violated the provisions of Section 458.331(1), Florida Statutes. See Section 458.331(2), Florida Statutes. Dr. Pliskow is, and was at the times material to this proceeding, a physician licensed to practice medicine in Florida, having been issued license number ME 0054211, and he is Board-certified in Obstetrics, Gynecology, and Forensic Medicine. At the times material to this proceeding, Dr. Pliskow practiced obstetrics and gynecology with three other physicians, Dr. Ackerman, Dr. Herbst, and Dr. Aqua, under the name "Advanced Women's Healthcare." In 1996, Dr. Pliskow, Dr. Ackerman, and Dr. Herbst established the Comprehensive Weight Loss & Nutrition Center ("Center") as a separate corporation. Kimberly Payne, an A.R.N.P., was the administrative director of the Center, and, in addition to administrative duties, her job responsibilities included supervision of the nursing staff working in the Center, direct patient care, and staff training. The four physicians practicing at Advanced Women's Healthcare were the designated supervising physicians for staff of the Center. Bariatrics is the subspecialty dealing with the medical treatment of obesity, and the four physicians supervising the Center, as well as Nurse Payne, were members of the American Society of Bariatric Physicians. As members of this organization, the physicians and Nurse Payne received two monthly journals, a biweekly newsletter, a monthly magazine, and faxes and e-mails containing updates on standard-of-care issues, medication changes, updates from the Federal Drug Administration, and suggested treatment changes and recommendations. The organization also provided educational programs and training opportunities for its members. In accordance with the recommendations of the American Society of Bariatric Physicians, the Center's weight loss program included a behavior modification program; a diet providing between 1200 and 1400 kilocalories per day; and an exercise program designed for each of its patients. In addition, if the patient was an appropriate candidate, the Center prescribed anorectic medications, including the combination of the drugs Phentermine and Fenfluramine commonly known as "Phen/Fen." Weight Loss Protocol At the times material to this proceeding, A.R.N.P.s were allowed under Florida law to practice independently under the general supervision of a physician who was accessible to them if they needed a consultation or evaluation of a patient. See Sections 464.003(3)(c) and 464.012(3), Florida Statutes (1995); Rule 64B8-35.002, Florida Administrative Code. Among other things, A.R.N.P.s were allowed to perform physical examinations of patients, to take medical histories, to initiate treatment programs, to prescribe certain types of drugs, and to evaluate patients for signs and symptoms of side effects associated with medications. A.R.N.P.s could not, however, prescribe drugs that were classified as controlled substances. Nurse Payne, and another A.R.N.P. subsequently hired to work at the Center, practiced under the general supervision of Dr. Pliskow, Dr. Ackerman, Dr. Herbst, and Dr. Aqua and in accordance with a protocol setting forth the respective duties of the A.R.N.P.s and of the physicians in the various areas of practice at Advanced Women's Healthcare. The protocol was filed with the appropriate state agency. Section Four of the protocol dealt with weight loss. Pursuant to the general guidelines, the A.R.N.P.s working at the Center were "responsible for the assessment and management of overweight individuals in a comprehensive weight reduction program including nutritional counseling, exercise management, and use of anorectic medications when appropriate." Patient selection criteria were as follows: Any individual who is over their ideal body weight may participate in the nutrition and exercise portions of the program. In order to qualify to participate in the medication portion of the program, the individual must meet the following criteria: Between the ages of 18 and 65 (any person between the ages of 61 and 65 must have medical clearance from their PCP [primary care physician]). Minimum of 20% over ideal body weight. No present history of heart disease, uncontrolled hypertension, cardiac arrhythmia, glaucoma, uncontrolled diabetes, hyperthyroidism, psychotic illness, drug or alcohol abuse, pregnancy, breastfeeding, or impending surgery requiring general anesthesia. Any deviation from these criteria requires collaboration with physician. The following was the General Condition of the weight loss protocol: The A.R.N.P. should consult with the physician on all patients exhibiting abnormal findings which might affect their weight loss management and refer for physician evaluation as needed. Patient C.B. Patient C.B. learned of the Center's weight loss program from her daughter, who had participated in the program and taken weight loss medication. C.B. had an initial consultation at the Center on October 23, 1996. At the time, as recorded on the Center's Weight Reduction Intake Form, C.B. was 62 years of age, her weight was 165 pounds, her height was five feet and four inches, she had a medium frame, her blood pressure was 138/82, and her pulse was 72 beats per minute. The intake form also included her body measurements as of October 23, 1996. As part of the initial consultation, C.B. completed the Center's Weight Reduction Program Questionnaire, in which she stated that she considered her ideal weight to be 135 pounds, that her biggest obstacle to losing weight was staying on a diet, and that she was interested in using medication in her weight loss program. C.B. indicated that she had no limitations on exercise and played tennis regularly. She disclosed her current medications, and she indicated that she did not then, nor had she ever, had the following conditions: heart disease, irregular heartbeat, high blood pressure, glaucoma, diabetes, psychotic illness, or alcohol or drug abuse. Nurse Payne reviewed the Weight Reduction Program Questionnaire with C.B. and completed the intake form. She noted on the intake form that C.B.'s ideal weight was between 120 and 135 pounds, that her weight goal was 135 pounds, and that her body mass index ("BMI") was 28.1 Nurse Payne reviewed with C.B. the information C.B. provided on the questionnaire, including her medical history, current medications, and drug allergies, and Nurse Payne noted on the intake form that C.B. reported arthritis as her only significant medical history. Nurse Payne and C.B. discussed the 1200-calorie exchange diet that was part of the program, and Nurse Payne developed an exercise plan for C.B. that included walking in the pool twice each week and incorporated C.B.'s usual routine of playing tennis three times each week. Nurse Payne noted on the intake form that Dr. Ira Fine was C.B.'s primary care physician. Nurse Payne also discussed medication options with C.B., including the benefits and risks of medications. The intake form included a printed section on medications, in which the first entry was "Pondimin2 20 mg. po bid and Phentermine 37.5 mg. po qd" and the second entry was "Other." Nurse Payne indicated on the intake form that C.B. would be started on "Phen/Fen pending medical clearance [by] Dr. Fine & EKG." Nurse Payne also advised C.B. that she would need to obtain medical clearance from Dr. Fine before medication would be prescribed. During the initial consultation on October 23, 1996, Nurse Payne provided C.B. with a Consent for Diet Program form and discussed with C.B. in detail the information in the consent form. The consent form contained descriptions of both Phentermine and Fenfluramine, together with the contraindications to their use, and Nurse Payne provided C.B. with an excerpt from the Physician's Desk Reference for Phentermine and the packet insert for Pondimin.3 C.B. signed the consent form on October 23, 1996. A blood specimen was drawn from C.B. on October 23, 1996, and Nurse Payne scheduled C.B. for an EKG on October 26, 1996. Nurse Payne telephoned Dr. Fine's office on October 25, 1996, and spoke with "Betty" about medical clearance for C.B. to participate in the weight loss program; she specifically told Dr. Fine's office the program would include the use of Phen/Fen. Nurse Payne was later advised by Dr. Fine's office that Dr. Fine had medically cleared C.B. to participate in the Center's weight loss program.4 Once medical clearance was obtained for a patient and the results of the blood work and EKG were received, the standard procedure at the Center was for the A.R.N.P. to present the patient's chart to one of the supervising physicians.5 The physician would review the test results and the patient's medical history and determine whether it was appropriate to prescribe medications for the patient. If so, the physician wrote the prescriptions, which were then given to the patient. Neither Dr. Pliskow nor Nurse Payne can recall specifically that this procedure was followed in C.B.'s case, but there is nothing in the record to indicate a deviation from this procedure with respect to C.B. C.B. was cleared for participation in the weight loss program and for the use of Phen/Fen based the results of her blood work and her EKG and on the criteria set out in the weight loss protocol: Her primary care physician had given medical clearance; her weight was 20 percent above her ideal body weight; and she had reported no present history of the conditions identified in paragraph II.B.3 of the protocol. Her blood pressure and pulse were normal. The results of her EKG showed no significant abnormality, and there was nothing in the results of the blood work done on October 23, 1996, that would prevent C.B. from participating in the weight loss program or from taking Phen/Fen. C.B.'s initial prescriptions for Phen/Fen were written on October 28, 1996 and, as noted in her chart, were for Pondimin in the dosage of "20 mg. [milligrams] po [orally] bid [twice daily]" and for Phentermine in the dosage of "37.5 mg. [milligrams] po [orally] qd [daily]."6 The medications and dosage prescribed for C.B. remained the same throughout the time she participated in the Center's weight loss program, and no further notations regarding dosage was included in her chart. C.B. initially visited the Center each week; in late November 1996, the frequency of her visits was decreased to once every two weeks, and then, in early February 1997, to once every four weeks. At each visit, a member of the nursing staff at the Center would note C.B.'s blood pressure, pulse, and weight on the progress forms in her chart, together with the amount of weight lost since her last visit. The chart also contained the notes of Nurse Payne or the other A.R.N.P. working at the Center reporting on C.B.'s success in staying on the diet and exercise plans; noting that her medication was "P/F"; and summarizing C.B.'s general progress, anything unusual she reported, and the plan she would follow until the next visit. C.B. also completed at each visit a Follow-Up Questionnaire in which she was asked to report whether, since her last visit, she had experienced chest pain, shortness of breath, dizziness, light-headedness, visual problems, palpitations, abdominal pain, bowel changes, fatigue, difficulty sleeping, depression, irritability, difficulty concentrating, memory loss, tremors, or increased appetite. The Center's standard procedure was for the A.R.N.P. meeting with the patient to discuss the answers in the questionnaire with the patient and to question the patient regarding any problems he or she might be having with the program. Once the A.R.N.P. had examined the patient and completed the patient's progress report, the A.R.N.P. would take the chart to the supervising physician, who would review the chart and write the prescriptions for Phen/Fen. None of the prescriptions for Phen/Fen dispensed at the Center were pre-signed. Patients in the weight loss program received new prescriptions for Phen/Fen at each visit to the Center. Because Phentermine and Fenfluramine are controlled substances, there could be no refills on a prescription, so the prescriptions were written for a sufficient number of pills to last until the patient's next visit to the Center. Although the prescriptions were written and signed by one of the supervising physicians, the physicians did not sign the patient's chart. After the supervising physician wrote the prescriptions, the A.R.N.P. would take the prescriptions to the patient, who could have them filled at the pharmacy in the offices of Advanced Women's Healthcare or at a pharmacy elsewhere. There is nothing in the record to indicate that this practice was not followed with respect to the prescriptions issued to C.B.7 On November 4, 1996, her first visit after beginning the program, C.B. reported one episode of light-headedness. Otherwise, C.B. reported none of the symptoms identified in the questionnaire and reported no problems with the program. Had C.B. reported experiencing anything abnormal, Nurse Payne would have called in one of the physicians supervising the Center for a consultation. C.B. participated in the Center's weight loss program through April 7, 1997, which was the date of her last visit. C.B. lost weight on the Center's program at a slow but steady rate, usually between one and four pounds between visits, until, on April 7, 1997, she weighed 141 pounds. C.B.'s treatment with Phen/Fen ended before May 1997, when the Florida Board of Medicine published stricter limitations on the use of these medications.8 Although Dr. Pliskow was not present in the office on October 28, 1996, when C.B.'s first prescriptions for Phen/Fen were written, he was present in the office during four of C.B.'s ten visits to the Center. Because at least one other physician was also present in the office during these four visits, Dr. Pliskow may or may not have reviewed C.B.'s chart and written her prescriptions.9 Summary The evidence presented by the Department is not sufficient to support a finding that Dr. Pliskow practiced medicine below the level of care considered acceptable by a reasonably prudent physician under similar circumstances or to support a finding that Dr. Pliskow failed to document in C.B.'s medical records justification for the course of her treatment in the weight loss program and the dosage of the medications prescribed for her. The evidence is not sufficient to establish clearly and convincingly that the prevailing standard of care required the physician supervising the Center's A.R.N.P.s personally to perform a physical examination of C.B. prior to her being cleared for receiving medication as part of her weight loss program or personally to obtain C.B.'s medical history. Rather, it was appropriate for Nurse Payne and the other A.R.N.P. working at the Center to perform physical examinations and to take medical histories of persons seeking to participate in the Center's weight loss program. In addition, the evidence is not sufficient to establish clearly and convincingly that it was inconsistent with the prevailing standard of care for the Center's supervising physicians to rely on C.B.'s primary care physician to provide medical clearance for her to participate in the weight loss program. Dr. Fine was familiar with C.B.'s overall medical condition as a result of his examination of her on September 12, 1996, and he was, therefore, competent to assess the overall risks of her participation in a weight loss program incorporating the use of anorectic medications. Furthermore, the evidence fails to establish that it was inconsistent with the prevailing standard of care to rely on the verbal medical clearance conveyed to Nurse Payne through Dr. Fine's office; rather, the persuasive evidence suggests that it was the normal practice for clearance to be given in this manner.10 And, significantly, Dr. Fine's medical clearance was not the only basis for C.B.'s clearance to take anorectic medications: C.B.'s vital signs were recorded on the intake form by the Center's nursing staff, and Nurse Payne compiled C.B.'s medical history from C.B.'s answers to questions on the Weight Loss Program Questionnaire and from discussions with C.B; an EKG and extensive blood work were ordered for C.B., and a physician reviewed C.B.'s chart and the results of these tests before writing C.B. prescriptions for anorectic medications.11 The evidence is not sufficient to establish that the physicians practicing at Advanced Women's Healthcare failed to provide the appropriate level of supervision to the A.R.N.P.s who worked in the Center. A.R.N.P.s are independent practitioners, and they are subject only to the general supervision of a physician. The evidence failed to establish that the prevailing standard of care for physicians supervising A.R.N.P.s required anything more than that the physician be available for consultation. At least one physician was available in the Advanced Women's Healthcare offices at all times for consultation and/or patient evaluation if an A.R.N.P. working at the Center determined that a patient was experiencing any complications or if a patient reported any unusual symptoms. The evidence is not sufficient to establish clearly and convincingly that the type and scope of information collected during C.B.'s regular visits to the Center and the on-going care provided to C.B. were not appropriate under the prevailing standard of care for monitoring patients on weight loss programs such as C.B.'s. The prescriptions for C.B.'s weight loss medications were written by a physician at each of C.B.'s visits, but only after the physician reviewed her chart, which included the A.R.N.P.'s progress notes and C.B.'s answers on the Follow-Up Questionnaires she completed at each visit, to determine whether it was appropriate to continue C.B. on anorectic medications.12 The evidence also fails to establish that the prevailing standard of care required a supervising physician to sign a chart prepared by an A.R.N.P. to indicate that it had been reviewed.13 The evidence is not sufficient to establish that C.B. was not an appropriate candidate for a weight loss program using Phen/Fen under the prevailing standard of care in 1996 and early 1997.14 Adequate justification for the treatment of C.B. with anorectic medications was included in C.B.'s medical records: She was considered obese by 1996 standards because her weight of 165 pounds was more than 20 percent higher than her ideal body weight of 120-to-135 pounds and because her BMI was 28 and she wanted to lose weight. In addition, nothing in the medical history C.B. provided to Nurse Payne or in her tests results indicated that she would be an inappropriate candidate for anorectic medications, and she reported no complications during her follow-up visits.15 The evidence is not sufficient to establish clearly and convincingly that the dosages of Phen/Fen prescribed for C.B. were inappropriate or excessive under the prevailing standard of care in 1996 and early 1997. Rather, the dosages prescribed for C.B. were in the lower range of dosages recommended at the time by the American Society of Bariatric Physicians and in the medical literature in general for the use of Phentermine and Fenfluramine in combination.16 The dosage of both medications was printed on the intake form completed during C.B.'s initial visit to the Center, and the dosages did not change during the time C.B. participated in the Center's weight loss program; in accordance with normal practice, no further notations were made regarding dosages in C.B.'s chart. New prescriptions were written each time C.B. visited the Center, and no refills were permitted, which is also in accordance with the standard practice in dispensing controlled substances.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a final order dismissing in its entirety the Administrative Complaint against Steven Pliskow, M.D. DONE AND ENTERED this 30th day of April, 2002, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 30th day of April, 2002.
Findings Of Fact The Respondent's name is Maurice L. Kaye. The Respondent's current address is 735-49th Street North, St. Petersburg, Florida 33710. The Respondent is now a licensed osteopathic physician in the State of Florida. The Respondent holds osteopathic license No. OS 0000949. The Respondent was a licensed osteopathic physician in the State of Florida at all times alleged in the Administrative Complaint filed in this cause on August 9, 1983. The Respondent served as the "doctor" at the Florida Medical Weight Loss Clinic from approximately January 15, 1983 until February 10, 1983. The Respondent was employed by Lydia Stein of Florida Medical Weight Loss Clinic. The Florida Medical Weight Loss Clinic placed or caused to be placed an advertisement in the Tampa Tribune dated January 24, 1983. This advertisement failed to conspicuously identify the Respondent by name and failed to conspicuously identify the Respondent as the physician providing medical supervision at the Florida Medical Weight Loss Clinics. The Respondent was vicariously responsible for the dissemination of the advertisement described in the paragraph above. The Respondent caused an advertisement to be placed in the St. Petersburg Times which offered a nonsurgical treatment for cataracts. This advertisement was published on January 10, 1983. This advertisement read as follows: CATARACT TREATMENT NON-SURGICAL FREE CONSULTATION By Dr. Alex Dewart MEDICAL HEALTH CENTER 735-49th Street North 321-3341 The advertisement described above in the St. Petersburg Times failed to conspicuously identify the Respondent by name, failed to identify the Respondent as the responsible physician, and failed to identify the Respondent as an osteopathic physician. The Respondent had no professional or contractual relationship with Dr. Alex Dewart or Alex Duarte, neither of whom were ever employees of Medical Health Center or Respondent at 735-49th Street North, St. Petersburg, Florida. Dr. Alex Duarte is a recognized specialist in non- surgical treatment of cataracts. Evidence was presented concerning the efficacy of non- surgical treatment for cataracts. It is concluded that such treatment may be beneficial and that the extent to which such non-surgical treatment is beneficial is a matter about which reasonable men differ. No believable evidence was presented that the Respondent was unable to assess patients.
Recommendation For failing to identify himself as the responsible osteopathic physician in the Tampa Tribune advertisement contrary to Rule 21R-14.01(2) , Florida Administrative Code and Section 459.015(1)(d), Florida Statutes, it is recommended that the Respondent be fined by the Board the amount of Two Thousand Dollars ($2,000). For having placed the advertisement in the St. Petersburg Times falsely representing that Dr. Alex Dewart was associated with the Medical Health Center contrary to Section 459.015(1)(d) , Florida Statutes, it is recommended that Dr. Kaye's license be suspended for one (1) year and be reinstated upon payment for the fine levied above, and that thereafter Dr. Kaye be placed upon a two (2) year probation period pursuant to Section 459.015(2) , Florida Statutes. DONE and ORDERED this 15th day of January, 1985 in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Oakland Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 15th day of January, 1985. COPIES FURNISHED: James H. Gillis, Esq. Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Maurice L. Kaye, D.O. 735-49th Street, North St. Petersburg, Florida 33710 Ms. Dorothy Faircloth Executive Director Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 =================================================================
The Issue The issue in this case is whether Petitioner should change the rating of Respondent's license from standard to conditional.
Findings Of Fact Petitioner is the state agency responsible for evaluating nursing homes in Florida pursuant to Section 400.23(7), Florida Statutes (2001). Respondent operates a licensed nursing home located in Ft. Myers, Florida (the facility). (All chapter and section references are to Florida Statutes (2001) unless otherwise noted.) Petitioner conducted a survey of the facility on August 16, 2001. Petitioner determined that Respondent violated the standards of 42 Code of Federal Regulations (CFR) Section 483.25(i)(1) with respect to the dietary care of residents 20, 6, and 8. Florida Administrative Code Rule 58A-4.1288 makes the federal standards applicable to nursing homes in the state. Petitioner prepared a survey report that sets forth the basis for the alleged violations under "Tag F325." F325 is a shorthand reference to the regulatory standard of the CFR. Petitioner assigned the deficiency in F325 a severity rating of class "II." Section 400.23(8)(b) defines a class II deficiency as one that has: compromised the resident's ability to maintain or reach his or her highest practicable physical, mental and psychosocial well-being, as defined by an accurate and comprehensive resident assessment, plan of care, and provision of services. The surveyors for Petitioner testified that a Class II rating was appropriate because each of the cited residents experienced a significant weight loss that the facility could have prevented with better dietary care. Petitioner changed the license rating for the facility from Standard to Conditional within the meaning of Section 400.23(7). The change in license rating was effective August 16, 2001. The Conditional license rating continued until September 18, 2001, when Petitioner changed Respondent's license rating to Standard. The regulatory standard of Tag F325 requires a nursing home to: ensure that a resident maintains acceptable parameters of nutritional status such as body weight and protein levels, unless the resident's clinical condition demonstrates that this is not possible. 42 CFR Section 483.25(i)(1). The State Operations Manual (SOM) sets forth agency policy with respect to how surveyors are to interpret and apply the regulatory standard of Tag F325. In determining if a facility has maintained a resident's body weight at an acceptable level, the SOM guidelines direct surveyors to evaluate the significance of unplanned weight loss. A significant weight loss occurs when a resident loses five percent or more of his or her body weight in one month, 7.5 percent or more in three months, or 10 percent or more in six months. However, the guidelines caution surveyors that ideal body weight charts have not been validated for the elderly and that weight loss is only a guide in determining nutritional status. If a resident has experienced a significant weight loss, the facility may nonetheless comply with the regulatory standard of Tag F325, if the Resident has clinical conditions that demonstrate that the maintenance of the Resident's weight at an acceptable level is not possible. The SOM indicates that clinical conditions that demonstrate that the maintenance of acceptable nutritional status may not be possible include advanced diseases such as cancer and a Resident's refusal to eat. Even in the absence of an identified disease process, the weight loss is considered unavoidable if the facility has properly assessed the resident, developed a care plan for the resident, consistently implemented that care plan and periodically re- evaluated the care plan. Resident 20 suffered from end-stage Alzheimer's disease and cancer. Like many persons afflicted with end stage Alzheimer's disease, Resident 20 began to refuse to eat food in November 2000. Residents with end-stage Alzheimer's disease refuse to eat because they no longer are aware of the need to eat and do not recognize any hunger pangs. As a result, they typically experience weight loss in their final months of life. As early as October 2000, facility staff determined that Resident 20 was refusing to eat and developed a care plan for her. In November 2000, the facility dietician placed Resident 20 on a high calorie diet that offered her almost 4000 calories a day. The dietician also changed the consistency of Resident 20's diet from pureed to liquid in an effort to get her to consume more calories. However, Resident 20 continued to eat poorly. Resident 20's weight dropped from 151.6 pounds to 147.2 pounds between November 15, 2000, and December 20, 2000. Between December 20, 2000, and January 24, 2001, Resident 20 lost only six tenths of a pound to 146.6 pounds. Resident 20's weight loss during two months between November 2000 and January 2001 was only three percent of her actual body weight. A three percent loss of body weight is not a significant weight loss under the SOM guidelines. The facility dietician did not recommend any changes to Resident 20's dietary care plan for several reasons. Resident 20's weight had stabilized. The dietician believed that Resident 20's refusal to eat was a product of Alzheimer's disease and could not be reversed. Resident 20 had not experienced any significant weight loss. The dietician's decision not to make any revisions to the care plan was consistent with good dietary practice and relevant regulatory standards. Between January 24 and February 28, 2001, Resident 20's weight dropped to 134.2 pounds. The weight loss was 8.5 percent of the resident's body weight. The parties stipulated that this weight loss was significant within the meaning of the SOM. The facility dietician reassessed Resident 20 and concluded that the weight loss was attributable to a refusal to eat caused by Alzheimer's disease. The dietician placed Resident 20 on weekly weight monitoring. The facility dietician correctly determined that there was no dietary intervention that would make Resident 20 consume more food. Both parties acknowledged that an end-stage Alzheimer's patient will progressively decline and that the patient's consumption gets worse, not better, over time. The dietician did not make any recommended changes to Resident 20's dietary orders. Instead, the dietician recommended that staff discuss with the physician and family members the possibility of placing a feeding tube in Resident 20. The facility arranged a meeting with the physician for Resident 20 and family members in March 2001, to discuss the possibility of a feeding tube for Resident 20. The family refused to consent to the placement of the feeding tube in Resident 20. Resident 20 had issued an Advance Directive which prohibited that intervention. Resident 20 passed away on May 7, 2001. The facility did not violate the requirements of Tag F325 by failing to try or even consider new care plan interventions to prevent Resident 20's weight loss between March 1 and May 7, 2001. The facility could have offered Resident 20 smaller portions more frequently, instead of larger portions three times a day, or could have changed the temperature of the liquids offered to Resident 20. The facility could have offered Resident 20 supplements between meals. However, there is no evidence that the available interventions would have been effective. Resident 20's cognitive decline was so severe that it is unlikely the available interventions would have had any positive effect on Resident 20. No regulatory standard required the facility to change the dietary care plan interventions for Resident 20 prior to the significant weight loss in February 2001. The facility provided Resident 20 with every reasonable intervention for the resident's dietary care. Resident 20's diet provided her with more than enough calories. Changing the amount or frequency of food offerings would have had no positive impact on Resident 20's consumption because of the resident's diminished cognitive capacity. The absence of physician's orders for supplements for Resident 20 had no adverse effect. The facility's policy is to offer supplements throughout the day to all residents on the unit in which Resident 20 resided. The facility offered these supplements to Resident 20, but they did not improve her consumption or otherwise stem her weight loss. The facility provided adequate dietary care to Resident 20. The facility offered Resident 20 fluids at three different meal times in addition to supplements throughout the day. Resident 20's appetite and consumption did not improve. The refusal to eat was not related to her distaste for the food offered to her, the quantity of the food offered to her, or the frequency of feeding. Rather, the refusal to eat was a product of her inability to understand what food was and the need to eat. It was thus appropriate for the surveyor to conclude that additional interventions would not have been effective and should not have been employed. The significant weight loss experienced by Resident 20 was unavoidable due to clinical conditions. The SOM guidelines acknowledge that weight loss should be expected in a resident who has a terminal illness or whose diminished cognitive capacity results in a refusal to eat. Resident 20 possessed both of these clinical conditions. The facility admitted Resident 8 in July 2001, for rehabilitative care after surgery for a fractured femur. Upon admission, Resident 8 weighed 106.8 pounds. Her ideal body weight was approximately 98 pounds, and her usual body weight was between 100 and 105 pounds. The admitting body weight may have been high due to swelling in Resident 8's leg. The facility measured and monitored Resident 8's weight weekly for four weeks pursuant to the facility's protocol for all new admissions. The facility dietician assessed Resident 8's food preferences and nutritional needs at the time of admission. The dietician designed a diet to meet Resident 8's needs and preferences. Resident 8 was cognitively alert and physically capable of feeding herself. Resident 8 did not require any special assistance to consume her food other than for staff to set up her feeding tray. Resident 8 was at risk for weight loss due to poor intake upon admission. Facility staff decided not to develop a dietary care plan for Resident 8 because the resident was above both her ideal and usual body weights. The decision not to develop a dietary care plan was within the sound discretion of facility staff. The failure to develop a dietary care plan for Resident 8 did not violate the standard of Tag F325. The dietary plan for Resident 8 maintained the Resident's body weight at acceptable levels for the first three weeks of her stay at the facility. Resident 8's weight on July 25, 2001, was 104.2 pounds. On August 1, 2001, Resident 8's weight was 106.2 pounds. On August 8, 2001, however, Resident 8's weight dropped to 100.2 pounds. On August 9, 2001, the resident's weight was 99.8 pounds. Resident 8's ideal body weight was approximately 98 pounds. The facility discharged Resident 8 on or about August 9, 2001, upon successful completion of her rehabilitation before another weight could be measured. A threshold issue that must be determined is whether Resident 8 experienced a significant weight loss. Respondent stipulated at the administrative hearing that Residents 20 and 6 experienced significant weight losses during their stays at the facility, but refused to concede that point with regard to Resident 8. As noted earlier herein, SOM guidelines indicate that a significant weight loss occurs if a resident loses 5 percent of his or her body weight in the "interval" of one month. The SOM guidelines prescribe a formula for determining the percentage of weight loss. The formula requires usual weight to be reduced by actual weight. The result is divided by usual weight, and that result is multiplied by 100. Resident 8's usual body weight ranged between 100 and 105 pounds when she was admitted to the facility. Use of the high-end of that range in the SOM formula would produce the highest percentage of weight loss for Resident 8. The formula for calculating the significance of the Resident's weight loss produces a number that is less than the 5 percent weigh loss that must be present to satisfy the test of significant weight loss, e.g.: usual weight loss (105) less actual weight (99.9) equals 5.2. The result (5.2) is divided by usual weight (105). The result (.0495) is multiplied by 100 to determine the percentage of weight loss (4.95 percent). The parties stipulated at hearing that Resident 8 lost 6.5 percent of her body weight between July 18 and August 9, 2001. However, that percentage is based upon a comparison of her actual body weights rather than the usual-body-weight formula prescribed in the SOM. Petitioner provided no evidence to justify a deviation from the SOM formula generally used for determining significant weight loss in this case. Even if such a deviation were justified, Resident 8 did not experience a significant weight loss within the meaning of the SOM guidelines. The guidelines indicate that the minimum interval for evaluating a resident's weight loss is one month. Resident 8's actual weight loss occurred in the eight-day period between August 1 and 9, 2001. That is less than the one-month interval established in the SOM guidelines. Even if July 18, 2001, were used as the beginning point for evaluating Resident 8's weight loss, the one-month interval for determining if a significant weight loss had occurred did not expire and would not expire until August 18, 2001. The facility discharged Resident 8 on or about August 9, 2001. Petitioner's surveyor testified that if Resident 8 were to have stayed in the facility for 30 days and if her weight had returned to that present before she began her weight loss, there would have been no significant weight loss. Petitioner provided no evidence that indicated that a resident's weight loss should be evaluated over some time period shorter than the one month period established in the SOM guidelines. Resident 8's case illustrates at least one reason why the SOM guidelines caution surveyors against strict reliance on the amount of a resident's weight loss to determine the resident's nutritional status. Resident 8's body weight never dropped below her ideal body weight while she was admitted to the facility. A weight loss which occurs over a one-week period, and which only results in the Resident dropping to her ideal body weight, does not indicate that the Resident is malnourished. Assuming arguendo that Resident 8 experienced a significant weight loss at the facility, the weight loss was not caused by the failure of facility staff to develop a dietary care plan. It is undisputed that facility staff assessed Resident 8 for her nutritional needs and provided her with an adequate diet to meet those needs. It is also undisputed that, prior to the Resident's weight being taken on August 8, 2001, the facility had no reason to believe or know that the diet that it had prescribed for Resident 8 or the Resident's consumption of that diet might be inadequate. Resident 8's weight remained at or near its admission level under the dietary regimen that the facility prescribed for her for those three weeks. Petitioner was unable to identify one intervention that should have appeared in a dietary care plan that the facility did not actually provide to Resident 8 or that would have prevented the weight loss experienced by Resident 8. The surveyor who developed the allegations regarding Resident 8 is a nurse and not a dietician. The surveyor alleged that Resident 8 was anxious, had been ill when she was admitted, and that the facility had not appropriately assessed whether those factors would affect Resident 8's appetite. Resident 8 did not express such problems to the facility dietician. If it were determined that those problems existed at the time of admission, they were not significant because Resident 8 maintained her usual body weight during the first three weeks of her stay at the facility. When the Resident's weight loss was identified on August 9th, the facility added fortified foods to her diet. Fortified foods are the appropriate dietary response to Resident 8's identified weight loss. The facility provided Resident 8 with all appropriate dietary care. Resident 6 had been a resident at the facility since November 29, 1999. Between May 9 and June 13, 2001, Resident 6 experienced a weight loss of 6.5 percent. The parties stipulated that this loss was significant. However, Resident 6's weight of 152 pounds on June 13th remained above his ideal body weight of 144 pounds. During the period of weight loss, Resident 6 experienced a urinary tract infection for which he was receiving anti-biotic therapy. It is not uncommon for a resident to lose his or her appetite and to have a corresponding weight loss during such treatment. The surveyor for Petitioner who prepared the case involving Resident 6 is not a dietician. The surveyor charged that Resident 6's weight loss was avoidable because the facility failed to assess Resident 6's protein needs after he developed the urinary tract infection and because the facility did not closely monitor Resident 6's food intake. Petitioner offered no evidence to show what additional calorie or protein requirements the facility did not provide to Resident 6. The facility monitored the resident's low consumption levels and attributed them to his antibiotic therapy. The facility dietician is a dietary expert. There is no dietary standard that requires dieticians to reassess a resident's nutritional needs when the resident has an infection. Instead, good dietary practice allows the infection and antibiotic treatments to run their course. Thereafter, the dietician should monitor the resident's consumption and weight to see if he or she returns to normal. The facility dietician assessed Resident 6 after the infection cleared and after the antibiotic treatment had been completed. The dietician determined that Resident 6's consumption was good. The weight loss Resident 6 experienced was attributable to his decreased appetite while on antibiotic therapy. Resident 6's weight remained stable after his infection cleared, and his treatment was completed. Resident 6's ideal body weight is 144 pounds. The facility determined to maintain Resident 6's weight at 150 pounds. The significant weight loss experienced by Resident 6 was the unavoidable consequence of clinical conditions in the form of the illness he experienced and the treatments he received for that illness. The weight loss was not caused by inadequate dietary care by the facility. Moreover, Resident 6 remained above his ideal body weight and, therefore, did not experience any harm. On or about July 12, 2001, the facility obtained an albumin level for Resident 6 of 2.9, which was below the suggested normal laboratory range of 3.5 to 5.0. The surveyor for Petitioner charged that the facility did nothing to address this low lab value but conceded that Resident 6 did not experience any harm as a result of that failure. The SOM guidelines indicate that surveyors should not expect normal lab values for all residents they review because abnormal values are to be expected with certain disease processes. Resident 6 was severely compromised by cardiac problems, dementia, a prior stroke, diabetes, prostate cancer, and Alzheimer's disease. He died shortly after the survey in this case. His albumin level of 2.9 was indicative of his diseased condition rather than his nutritional status. Accordingly, the facility did not violate any standard of good dietary practice when it did not consider or implement dietary interventions for the low albumin level.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner enter a Final Order finding no basis to issue a Conditional rating to the facility on August 16, 2001; deleting the deficiency described under Tag F325; and issuing a Standard rating to the facility to replace the previously issued Conditional rating. DONE AND ENTERED this 6th day of September, 2002, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of September, 2002. COPIES FURNISHED: R. Davis Thomas, Jr. Qualified Representative Broad and Cassel 215 South Monroe Street, Suite 400 Post Office Drawer 11300 Tallahassee, Florida 32302 Dennis Godfrey, Esquire Agency for Health Care Administration 525 Mirror Lake Drive, North Sebring Building, Suite 310 St. Petersburg, Florida 33701 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 William Roberts, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308 Rhonda M. Medows, M.D., Secretary Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3116 Tallahassee, Florida 32308
