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 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
Findings Of Fact The Respondent, Stephen L. Watson, M.D., has been practicing medicine in Lakeland, Florida, since 1945. Since 1950, he has been board-certified in obstetrics and gynecology. Until this case, he has not been the subject of any Board of Medicine disciplinary proceeding. He recently closed his practice of medicine due to his own poor health. The Respondent saw B. D., as a gynecology patient, for the first time in December, 1983. She was 33 years old at the time and was obese, weighing 184 pounds and standing only approximately five feet, four inches. She also had borderline high blood pressure, at 140/90. On the patient's second visit in July, 1984, the Respondent discussed her weight and gave her a book on diet and weight loss entitled, "The Lighter Side of Life, the Doctor's Program that Really Works." He discussed the contents of the book with her, emphasizing certain parts of it. He also prescribed a month's supply of an appetite suppressant called Fastin, to be taken in conjunction with the diet recommendations, along with a diuretic. The patient's next visit was a weight conference on January 2, 1987. On this visit the patient weighed 212; her blood pressure was 140/90. The Respondent again discussed weight and diet with the patient and prescribed a month's supply of another appetite suppressant called Didrex, to be taken in conjunction with the diet recommendations, along with a diuretic. Didrex contains the anorectic agent benzphetamine hydrochloride. It is a sympathomimetic amine with pharmacologic activity similar to the prototype drugs of this class used in obesity, the amphetamines. Actions include some central nervous system stimulation and elevation of blood pressure. Didrex is contraindicated in patients with moderate to severe hypertension, and caution is to be exercised in prescribing amphetamines for patients with even mild hypertension. At the visit on January 2, 1987, it also was arranged that the Respondent would have blood work done on January 6, a pelvic examination on January 7, and another weight conference on January 29, 1987. As often would happen during the long doctor-patient relationship, the patient missed all three appointments and did not request a refill of her medications. The patient's next visit was for another weight conference on February 10, 1987. She had lost 12 pounds (down to 200), and her blood pressure reading was down to 130/88. The Respondent's course of treatment seemed to be effective. The Respondent prescribed another month's supply of Didrex, to be taken in conjunction with the diet recommendations, along with a diuretic. Ten days later, the patient came in complaining of "nerves" after taking her medications. The Respondent discontinued the Didrex and the diuretic and scheduled the patient for another weight conference for March 10, 1987. The patient missed the March 10, 1987, appointment as well as the next two rescheduled appointments, and she did not request a refill of her medications. Finally, the patient kept the third rescheduled appointment for a weight conference, for May 6, 1987. By this time, the patient's weight was back up to 208. Her blood pressure reading was 120/80. The Respondent prescribed a month's supply of another appetite suppressant called Ionamin, to be taken in conjunction with the diet recommendations, along with a diuretic. The patient missed her weight conference scheduled for June 3, 1987, and did not request a refill of her medications. The patient kept her rescheduled appointment for a weight conference, for June 11, 1987. This time, her weight was back down, to 197, and her blood pressure reading was 120/80. The Respondent's course of treatment seemed to be effective. The Respondent prescribed another month's supply of Ionamin, to be taken in conjunction with the diet recommendations, along with a diuretic. The patient again missed her next scheduled weight conference, for July 9, 1987, and did not request a refill of her medications. The patient kept her rescheduled appointment for a weight conference, for July 13, 1987. This time, her weight was down further, to 187, and her blood pressure reading again was 120/80. The Respondent's course of treatment continued to seem to be effective. The Respondent prescribed another month's supply of Ionamin, to be taken in conjunction with the diet recommendations, along with a diuretic. The patient's next weight conference was on August 17, 1987. Her weight was down a little more, to 183.5, and her blood pressure reading remained at 120/80. The Respondent's course of treatment continued to seem to be effective, although the patient's rate of weight loss was decreasing. The Respondent prescribed another month's supply of Ionamin, to be taken in conjunction with the diet recommendations, but discontinued the diuretic apparently due to a bladder problem. The patient missed her next scheduled weight conference, for September 15, 1987, and did not request a refill of her medications. The patient's next rescheduled weight conference was on October 9, 1987. Her weight was up a little, to 184.75. Her blood pressure reading again was 120/80. The Respondent prescribed another month's supply of Ionamin, to be taken in conjunction with the diet recommendations, along with a diuretic. The patient missed her next scheduled weight conference, for November 6, 1987, and did not request a refill of her medications. The patient's next rescheduled weight conference was on December 7, 1987. Her weight was down a little, to 183. Her blood pressure reading again was 120/80. The Respondent prescribed another month's supply of Ionamin, to be taken in conjunction with the diet recommendations, along with a diuretic. The patient missed her next scheduled weight conference, for January 5, 1988, and did not request a refill of her medications. The patient's next rescheduled weight conference was on February 18, 1988. Her weight was up a little, to 187.5. Her blood pressure reading was 130/80. The Respondent prescribed a month's supply of another appetite suppressant called Tenuate Dospan, to be taken in conjunction with the diet recommendations, along with a diuretic. Tenuate Dospan contains the anorectic agent diethylpropion hydrochloride. Like Didrex, it is a sympathomimetic amine with some pharmacologic activity similar to that of the prototype drugs of this class used in obesity, the amphetamines. Actions include some central nervous system stimulation and elevation of blood pressure. It is contraindicated in patients with severe hypertension, and caution is to be exercised in prescribing it for any patient with hypertension. The Respondent did not see the patient again for weight control, or prescribe any more medication, until May 3, 1988, when the patient was seen for bladder problems. Her weight was down a little, to 181.5, and her blood pressure reading was 120/80. The Respondent prescribed another month's supply of Ionamin, to be taken in conjunction with the diet recommendations, but discontinued the diuretic again apparently due to a bladder problem. The patient preferred Tenuate Dospan, and the Respondent changed the prescription to another month's supply of Tenuate Dospan. The patient missed the next two conferences, scheduled for August 8 and rescheduled for August 9, 1988, and did not request a refill of her medications. She did not see the Respondent or get any more medications from him until a weight conference on December 2, 1988. Her weight was up a little, to 185. Her blood pressure reading was 130/80. The Respondent prescribed a month's supply of Tenuate Dospan, to be taken in conjunction with the diet recommendations, along with a diuretic. The patient missed her next four scheduled appointments and did not request a refill of her medications. She did not see the Respondent or get any more medications from him until a blood pressure conference on June 28, 1989. Her weight was up significantly, to 200, and her blood pressure reading was up significantly, to 140/100. Although the patient still was relatively young (approximatly 39), and the Respondent believed there was a causal connection between the patient's weight and blood pressure, the Respondent prescribed only a month's supply of Enduron, a medication for hypertension. The patient missed her next two scheduled blood pressure conferences and did not request a refill of her blood pressure medications, or request any other medications. She did not see the Respondent or get any more medications from him until she saw him for blood in the urine on October 3, 1989, and had a urinalysis and conference. At the time, her weight was up a little more, to 203, and her blood pressure reading was 140/90. The Respondent prescribed an antibiotic and, for reasons not apparent from the evidence, a month's supply of a mild antidepressant, called Elavil. On or about October 23, 1989, the patient telephoned for a refill of her Enduron prescription, which was about to run out, and the Respondent prescribed another month's supply. The patient again missed her next weight conference scheduled for October 30, 1989, and did not request any other medications. She did not see the Respondent or get any more medications from him until a rescheduled weight conference on December 11, 1989. By this time her weight was up to 217, and her blood pressure reading was 140/98. The Respondent was aware that amphetamine-like appetite suppressants should be used with caution with patients having moderately high blood pressure, as the patient had by December 11, 1989. But he also continued to believe that there was a causal connection between the patient's weight and blood pressure and that, given the patient's relative youth and the past success with the treatment, it was worth trying appetite suppressants, in conjunction with diet recommendations, to help reduce both the patient's weight and her blood pressure. He prescribed a month's supply of Tenuate, to be taken in conjunction with the diet recommendations, along with a diuretic. (Tenuate is essentially the same drug as Tenuate Dospan but is shorter lasting.) On January 5, 1990, the patient telephoned the Respondent with a complaint of "nerves." The Respondent prescribed another month's supply of Elavil, with authority for two refills. The patient's next weight conference was on January 24, 1990. Her weight was up a little more, to 220, and her blood pressure reading was 160/98. At that point, it seemed that perhaps the Tenuate Dospan was not effective. Although there could be other explanations why the patient was not losing weight, and it was possible that all appetite suppressants had become ineffective, the Respondent decided to switch the patient to Didrex, which seemed to have been effective in the past, and prescribed a month's supply, to be taken in conjunction with the diet recommendations, along with a diuretic. He also changed her blood pressure medication to Wytensin. The patient missed her next weight conference, scheduled for January 31, 1990, and did not request any additional medications. The patient did not see the Respondent again, or get any additional medications from him, until March 21, 1990, when she saw him to get a letter for employment purposes certifying that she was disease-free. Her weight was up to 226, and her blood pressure was 164/96. The Respondent prescribed another month's supply of Didrex, to be taken in conjunction with the diet recommendations, along with a diuretic and another month's supply of Wytensin. The patient did not see the Respondent again, or get any additional medications from him until August 28, 1991, when she saw him to complain of blood in the urine. At this time, her weight was 234, and her blood pressure reading was 140/90. In addition to treating the urine problem, the Respondent prescribed a month's supply of Tenuate, to be taken in conjunction with the diet recommendations, along with a diuretic and a month's supply of Wytensin. The patient missed her appointment for a pelvic examination on September 5, 1991, and did not see the Respondent, or get any additional medications from him until she went to a weight conference on December 11, 1989. Her weight was 234.5, and her blood pressure reading was 140/94. The Respondent prescribed a month's supply of Tenuate, to be taken in conjunction with the diet recommendations, along with a diuretic. (It is not clear from the evidence why no blood pressure medication was prescribed.) The patient missed her appointment for a pelvic exam on December 17, 1991, and missed scheduled weight conferences for February 10, 11, and 19, 1992. She did not request any additional medications during this time. The patient made her next scheduled appointment on March 16, 1992, when the Respondent discussed her weight, blood pressure and complaint of headaches. Both her weight and her blood pressure were at their highest: weight, 237; blood pressure reading, 150/110. At this point, there was a real question whether the appetite suppressants still were effective in controlling the patient's weight and thereby helping reduce the patient's blood pressure. On the other hand, the patient continued to miss weight conferences and not follow through on the Respondent's instructions, and it was not clear whether the patient ever had followed the Respondent's weight control treatment long enough to give it a fair chance to work. The patient's blood pressure now was moderately to severely high; on the other hand, she still was only about 42 years of age, and her weight still could have been contributing to her high blood pressure. Nonetheless, the Respondent decided to prescribe only Wytensin on March 16; he also scheduled a complete physical for March 20, 1992. On March 20, 1992, the Respondent had the patient undergo a complete physical. Her weight still was 237, and her blood pressure reading was 160/120. He switched her blood pressure medication to Accupril and decided not to prescribe any appetite suppressants at that time. He scheduled the patient for a weight conference on April 3, 1992. On April 3, 1992, the patient's weight still was 237, but her blood pressure reading was 150/110. Although the patient's blood pressure still was moderately to severely high, the Respondent decided to try an appetite suppressant to reduce her weight in the hopes of, together with the blood pressure medication, effecting a lasting reduction in her blood pressure. He prescribed a month's supply of Tenuate Dospan, to be taken in conjunction with the diet recommendations, along with a diuretic. On April 14, 1992, the patient telephoned the Respondent to report that her blood pressure still was up and that she continued to suffer from headaches. The Respondent decided that it was time to refer the patient to a specialist in internal medicine and made an appointment for her. The patient missed her next scheduled weight conference on April 16, 1992, and missed the appointment with the internist which the Respondent had scheduled for her. She never saw the internist. The patient's next appointment was on May 6, 1992. The Respondent discussed the patient's weight and her hypertension. Her weight was 236, and her blood pressure reading was down to 144/100. The Respondent decided to prescribe a month's supply of Tenuate, to be taken in conjunction with the diet recommendations, along with a diuretic. The patient overdosed on a pain medication (not the appetite suppressant) and was hospitalized on June 4, 1992. She missed the next scheduled weight conference on June 15, 1992. She did not request any additional medications. The patient's next appointment with the Respondent was on June 18, 1992. She weighed 230, and her blood pressure reading was 140/110. The Respondent prescribed only Accupril and an iron supplement. The Respondent only saw the patient once more, on July 17, 1992, for gynecological problems, and referred the patient to a specialist. He did not prescribe any medications. The patient's blood pressure was 130/100. Her weight was not recorded. The evidence does not reflect that the patient, B. D., grew progressively dependent on the appetite suppressants the Respondent prescribed for her. There was no evidence that the patient ever asked for a refill or new prescription early. She often missed scheduled appointments, resulting in gaps of time between prescriptions when the patient presumably had no appetite suppressants available to her. There also were extended periods of time between visits during which time the patient presumably had no appetite suppressants available to her. Some reputable physicians now seriously question the use of appetite suppressants. There is some evidence that patients lose as much weight and maintain as much weight loss without them as with them. The trend in the late 1980s and early 1990s has been to treat patients for obesity with behavior modification (essentially, diet and exercise) only. But there is no evidence that it is below the level of care, skill and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances to treat patients for obesity by prescribing appetite suppressants in conjunction with diet recommendations. It is true that the Respondent prescribed appetite suppressants for longer periods of time than recommended in the medical and pharmaceutical literature. The literature recommends using appetite suppressants only during the early weeks of a weight reduction program. The reasons are twofold and related: first, the patient generally builds a tolerance to the appetite suppressant, making them less effective; second, the patient can become dependent on them. The goal is to use appetite suppressants to begin reducing caloric intake for initial weight loss, while changing eating habits for long term reduction in caloric intake and weight. The problem confronting the Respondent in this case lay in the nature of the patient's noncompliance. She would begin the program but not follow it or continue with it for long. When she returned to the Respondent after a long hiatus, it was like starting the program over again. The evidence did not prove that it was below the level of care, skill and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances for the Respondent to repeatedly restart his treatment for obesity, namely by prescribing appetite suppressants in conjunction with diet recommendations. There were occasions when the Respondent prescribed an appetite suppressant when the patient's blood pressure reading was high. According to the medical and pharmaceutical literature and the expert medical testimony, caution should be exercised in prescribing these medications for patients with high blood pressure. But the exercise of that caution is a matter of medical judgment, based on an overall knowledge and understanding of the patient and circumstances involved. Only once, on April 3, 1992, did the Respondent prescribe an appetite suppressant (Tenuate Dospan) when the patient's blood pressure reading was so high (150/110) as to clearly contraindicate the use of the appetite suppressant. On all other occasions, the patient's blood pressure would be considered mildly or moderately high, requiring the Respondent to exercise caution, which he did. In all cases, the Respondent believed that there was a causal connection between the patient's weight and blood pressure and that, given the patient's relative youth and the past success with the treatment, it was worth trying appetite suppressants, in conjunction with diet recommendations, to help reduce both the patient's weight and her blood pressure. Although some physicians would disagree with the Respondent's medical judgments, except for April 3, 1992, it was not proven that the Respondent's medical judgment in this case fell below the level of care, skill and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. However, it is found that it was below the level of care, skill and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances for the Respondent to prescribe Tenuate Dospan on April 3, 1992. It was not proven that it was below the level of care, skill and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances for the Respondent not to refer the patient to a specialist for hypertension before April 14, 1992. The first evidence of severe hypertension appeared on her visit on March 16, 1992. But the Respondent had not seen the patient since December, 1991, due to missed appointments, and it was reasonable at that point for the Respondent not to refer immediately. It could be argued that he should have referred the patient after one of the next two visits, but the delay until April 14, 1992, was fairly short. It was not the Respondent's fault that the patient did not keep the appointment with the specialist which he made for her. It should be noted that the patient does not complain about the level of care and treatment given by the Respondent. Nor is there any evidence that the Respondent's care and treatment harmed the patient. Apparently, while the patient was hospitalized for overdosing on pain medication unrelated to the Respondent's care and treatment, the patient's medical records were brought to the attention of the predecessor of the AHCA, and it appeared to that agency (and to the AHCA) that the Respondent was guilty of worse practice of medicine than ultimately was proven in this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Medicine enter a final order: (1) finding the Respondent guilty of a single violation, on April 3, 1992, of Section 458.331(1)(t), which also resulted in a technical violation of Section 458.331(1)(q), Fla. Stat. (1993); (2) requiring the Respondent to notify the Board or the AHCA if he reopens his practice of medicine; (3) placing the Respondent on probation on appropriate terms in the event the Respondent reopens his practice; and (4) fining the Respondent $500. RECOMMENDED this 15th day of November, 1994, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of November, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-2375 To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1.-8. Accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not proven. Rejected as not proven. (The Respondent testified.) Accepted but subordinate and unnecessary. Accepted. First sentence, subordinate to facts contrary to those found; second sentence, subordinate to facts found. Rejected as not proven that the patient's hypertension was severe. Otherwise, accepted but subordinate to facts contrary to those found. 14.-19. Accepted and incorporated. Rejected as not proven, except for patients with severe hypertension. First sentence, rejected as not proven. (He believed it permissible because the patient's blood pressure was not stable.) Second sentence, accepted but subordinate to facts contrary to those found. Third sentence, accepted but subordinate to facts contrary to those found, and unnecessary. First sentence, accepted but subordinate to facts contrary to those found. Second sentence, rejected as not proven. Accepted. Subordinate to facts found. Accepted but subordinate to facts contrary to those found. First sentence, accepted but subordinate to facts contrary to those found. Second sentence, rejected as not proven as to Didrex after 1990; otherwise, accepted and incorporated. First sentence, accepted and incorporated. Second sentence, accepted but subordinate to facts contrary to those found, and unnecessary. (The AHCA did not charge inadequate records.) 27.-29. Accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not proven. Accepted but subordinate to facts contrary to those found. Accepted and incorporated to the extent not subordinate or unnecessary. (The question is not whether a referral would have been appropriate but rather whether not referring was inappropriate.) Accepted and incorporated. Rejected as not proven that referral was required in 1984 or that the patient's weight and blood pressure did not respond to treatment before 1988. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. (The question is not whether a referral would have been appropriate but rather whether not referring was inappropriate.) Accepted but subordinate and unnecessary. Rejected. They knew it to the extent that it is the same as for an internist. 37.-38. Accepted but subordinate and unnecessary. 39. Rejected as not proven and as contrary to the facts found. Respondent's Proposed Findings of Fact. 1.-4. Accepted and incorporated to the extent not subordinate or unnecessary. 5. Accepted but subordinate and unnecessary. 6.-20. Accepted and incorporated to the extent not subordinate or unnecessary. Rejected as contrary to the greater weight of the evidence. Accepted but subordinate and unnecessary. 23.-28. Accepted and incorporated to the extent not subordinate or unnecessary. Other than evidence that she may have become nervous on occasion from the appetite suppressants, accepted and incorporated to the extent not subordinate or unnecessary. Accepted. The second occasion is irrelevant, having occurred after the events in issue in this case. The first is accepted and incorporated to the extent not subordinate or unnecessary. 31.-32. Accepted and incorporated to the extent not subordinate or unnecessary. Rejected as contrary to the greater weight of the evidence. Accepted and incorporated. Accepted but subordinate and unnecessary. 36.-37. Accepted and incorporated. 38.-40. Accepted. Subordinate to facts found. First sentence, accepted and incorporated. Second sentence, accepted but subordinate and unnecessary. Accepted (that it is not necessarily inappropriate) and incorporated. Accepted. First two sentences, incorporated; second, subordinate to facts found. Accepted. Subordinate to facts found. Rejected as to April 3, 1992, as contrary to facts found and to the greater weight of the evidence. Otherwise, accepted but subordinate to facts found. 46.-47. Accepted and incorporated. 48. Rejected as to April 3, 1992, as contrary to facts found and to the greater weight of the evidence. Otherwise, accepted and incorporated. COPIES FURNISHED: Alex D. Barker, Esquire Elaine Lucas, Esquire Agency for Health Care Administration 7960 Arlington Expressway Suite 230 Jacksonville, Florida 32211-7466 John A. Naser, Esquire 1401 South Florida Avenue Suite 201 Lakeland, Florida 33802 Dr. Marm Harris Executive Director, Board of Medicine Agency for Health Care Administration Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Harold D. Lewis, Esquire Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303
The Issue DOAH Case No. 02-0949: Whether Respondent's licensure status should be reduced from standard to conditional. DOAH Case No. 02-1299: Whether Respondent committed the violation alleged in the Administrative Complaint dated February 19, 2002, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: AHCA is the state Agency responsible for licensure and regulation of nursing homes operating in the State of Florida. Chapter 400, Part II, Florida Statutes. Harbour Health operates a licensed nursing home at 23013 Westchester Boulevard, Port Charlotte, Florida. The standard form used by AHCA to document survey findings, titled "Statement of Deficiencies and Plan of Correction," is commonly referred to as a "2567" form. The individual deficiencies are noted on the form by way of identifying numbers commonly called "Tags." A Tag identifies the applicable regulatory standard that the surveyors believe has been violated and provides a summary of the violation, specific factual allegations that the surveyors believe support the violation, and two ratings which indicate the severity of the deficiency. One of the ratings identified in a Tag is a "scope and severity" rating, which is a letter rating from A to L with A representing the least severe deficiency and L representing the most severe. The second rating is a "class" rating, which is a numerical rating of I, II, or III, with I representing the most severe deficiency and III representing the least severe deficiency. On October 22 through 25, 2001, AHCA conducted an annual licensure and certification survey of Harbour Health, to evaluate the facility's compliance with state and federal regulations governing the operation of nursing homes. The survey team alleged several deficiencies during the survey, only one of which is at issue in these proceedings. At issue is a deficiency identified as Tag F325 (violation of 42 C.F.R. Section 483.25(i)(1), relating to maintenance of acceptable parameters of nutritional status). The deficiency alleged in the survey was classified as Class II under the Florida classification system for nursing homes. A Class II deficiency is "a deficiency that the agency determines has compromised the resident's ability to maintain or reach his or her highest practicable physical, mental, and psychosocial well-being, as defined by an accurate and comprehensive resident assessment, plan of care, and provision of services." Section 400.23(8)(b), Florida Statutes. The deficiency alleged in the survey was cited at a federal scope and severity rating of G, meaning that the deficiency was isolated and caused actual harm that is not immediate jeopardy. Based on the alleged Class II deficiency in Tag F325, AHCA imposed a conditional license on Harbour Health, effective October 25, 2001. The license expiration date was August 31, 2002. The survey allegedly found a violation of 42 C.F.R. Section 483.25(i)(1), which states: Nutrition. Based on a resident's comprehensive assessment, the facility must ensure that a resident-- Maintains acceptable parameters of nutritional status, such as body weight and protein levels, unless the resident's clinical condition demonstrates that this is not possible. . . . This requirement is referenced on Form 2567 as "Tag F325." The survey found one instance in which Harbour Health allegedly failed to ensure that a resident maintained acceptable parameters of nutritional status. The surveyor's observation on Form 2567 concerned Resident 5, or "R-5": Based on observations, record review and staff interviews, the facility failed to maintain acceptable parameters of nutritional status and did not use all possible interventions, to prevent an unplanned, severe weight loss (7.8 percent in a two month period) for 1 (Resident 5) of 20 active sampled residents. The findings include: During her lunch on 10/22/01 at approximately 12:20 P.M., Resident 5 was observed clinching her teeth together making it difficult to get food into her mouth. Resident 5 was observed on 10/23/01 at 12:30 P.M., taking a limited amount of thickened liquids from her nosey cup, and clinching her teeth together making feeding her more difficult. Resident 5 was observed 5:25 P.M. until 5:55 P.M. on 10/23/01, taking small sips from the nosey cup and clinching her teeth together making it very difficult for the Certified Nursing Assistant (CNA) to feed her 25 percent of her meal. These observations were made in the assisted dining room on A-Wing. Record review of Resident 5's chart, documents 5/1/01 she weighed 127 pounds. On 7/2/01 and again on 7/16/01, her weight was documented 117 pounds. This is a severe weight loss of 7.8 percent in a two month period. Review of the resident's care plan dated 7/18/01, revealed the resident's nutrition problem was "Res. is on a puree diet with thickened liquids-- is continuing to lose weight-- is terminal-- weight is down 6 pounds for the month-- on weekly weight-- consumes 25-50 percent of her meals-- small portions at lunch-- super cereal on breakfast tray and Carnation Instant Breakfast on other trays. Resident can be combative during meals-- resists any attempt to assist her with eating-- is very difficult to feed." Approaches to address the problem included consult with Registered Dietician as needed and to monitor labs. Further review of the care plan included the problem: "Resident is on psychotropic meds for dementia with psychosis as evidenced by . . . increased agitation and resisting care." Review of the resident's physician orders reveal the resident began receiving Risperdal in July 2001 for the diagnosis of psychosis. The record also revealed that the resident was given a terminal status in January 2001. During an interview at 5:20 P.M. on 10/23/01, regarding Resident 5's evening meal being delivered after the other 3 residents at her table, the Certified Nursing Assistant stated, "She don't eat nothing anyway." Interview with CDM (Certified Dietary Manager) and Consulting Dietician on 10/23/01 at approximately 4:45 P.M., regarding resident's severe weight loss and limited nutritional intake, revealed that the Consulting Dietician stated she was unaware of this resident. The CDM stated the resident clinches her teeth, refuses food, and they have tried everything else. She stated that the resident was terminal and that the family did not want a tube feeding placed. The resident was put on thickened liquids by a speech therapist in 1998 for dysphagia, but there had been no speech therapy follow-up. They confirmed that no psychiatric consult was ordered since the care plan was developed, despite continued behaviors during feeding. An interview was conducted with the CDM joined by the DON regarding Resident 5's weight loss and possible interventions on 10/24/01 at 3:05 P.M. It was identified that no routine snacks were ordered, no psychiatric follow-up nor speech therapy follow-up, nor medication adjustments had been done during May 2001 through July 2001. The CDM stated that the facility only acknowledges a 5 percent weight loss at an interval of 1 month, and 10 percent at a 6 month interval as significant, but would not look at a 7.5 percent because it would not trigger on the Minimum Data Set. On 10/24/01 at 3:55 P.M., during an interview with the Unit Manager regarding Resident 5, she stated there was no psychiatric or mental health evaluation ordered, it was only on her care plan. Diane Ashworth was the survey team member who recorded the observation of R-5. Ms. Ashworth based her findings on her observations of R-5, a review of the resident's medical records, and interviews with Harbour Health staff. R-5 was a 92-year-old female who had resided at Harbour Health since 1998. She suffered from dementia with psychosis, in particular end-stage Alzheimer's disease. Her worsening condition caused her physician to request a neurological consultation in January 2001. The consulting neurologist diagnosed her condition as terminal. R-5 was severely impaired cognitively, and was completely dependent on Harbor Health staff for all of her care. R-5 was unable to feed herself. For over three years, Harbour Health has implemented a "restorative dining" program for residents with eating problems. In the restorative dining program, the resident is taken to a quiet area and given one-to-one attention by a CNA during meals. R-5 has been in the restorative dining program since its introduction. During her entire stay at Harbour Health, R-5 was very difficult to feed. She would clench her teeth, cover her mouth and push away. At times she would take the food into her mouth, then spit it back into the face of the caregiver. R-5's medical condition made it impossible to reason with her about the importance of maintaining nutrition. The CNA assigned to R-5 as her restorative aide would spend up to two hours feeding one meal to her. The CNA would attempt to feed R-5 until her agitation and resistance made it impossible. The CNA would refrigerate the food, then wait for R-5 to calm down. Then the CNA would reheat the food and begin the process again. Because of her Alzheimer's and her difficult behavior during meals, R-5 was identified as at risk for weight loss and dehydration. Harbour Health's care plan for R-5 identified several strategies for maximizing R-5's caloric intake, and called for consultation with the facility's registered dietician when needed. R-5 was on a no-sodium-added puree diet, taking thickened liquids in place of solid food. Because she tended to consume only 25 to 50 percent of the food offered at meals, the facility offered her 3,252 calories per day at meals, well in excess of the 1,677 to 1,960 calories required to maintain her usual body weight of 120 to 123 pounds. Staff noted that R-5 appeared overwhelmed by large portions of food and began offering her smaller amounts at one time. R-5 was offered fortified cereals and potatoes, and supplements such as Health Shake and Carnation Instant Breakfast. If R-5 showed signs of accepting certain foods, such as eggs, staff would order extra portions of those foods. Snacks were offered between meals, and R-5 was given vitamin C, zinc, and multivitamins with iron to supplement her nutrition. Staff employed items such as a "Nosey Cup," a cup designed to permit its being held near the resident's face without bumping the nose, to ease the feeding process. Harbour Health's standard practice was to weigh residents once per month. If the monthly weights indicated a problem, then Harbour Health would commence weighing the resident on a weekly basis until the problem was resolved. As noted by Ms. Ashworth, R-5 weighed 127 pounds at her monthly weighing on May 1, 2001. At her next monthly weighing on June 1, 2001, R-5 weighed 123 pounds. At the following monthly weighing on July 2, 2001, R-5 weighed 117 pounds. Ms. Ashworth calculated the weight loss from May 1 to July 2, 2001 as 7.8 percent of R-5's body weight. Noting the weight loss, Harbour Health placed R-5 on weekly weights in July 2001. On July 16, 2001, her weight remained at 117 pounds. On July 23, 2001, her weight had increased to 123 pounds. On August 1, 2001, R-5's weight was 125 pounds. Thus, by early August R-5 had regained nearly all of the weight she had lost between May and July 2001. On July 6, 2001, R-5's attending physician prescribed Risperdal, an antipsychotic medication, to calm her severe agitation and constant movement. Risperdal can act as an appetite stimulant. The administration of Risperdal to R-5 coincided with her weight gain in July 2001. When the facility became aware of R-5's weight loss in July 2001, staff began offering R-5 food more often, including more snacks between meals. The attending physician removed the sodium restriction from R-5's puree diet. Aside from those steps, Harbour Health maintained the same nutritional procedures for R-5. The agency alleged that Harbour Health was deficient in not involving the consulting dietician when it became aware of R-5's weight loss. The agency further alleged that Harbour Health should have ordered a psychiatric consultation and a speech therapy consultation. Regular snacks should have been ordered, and R-5's medications should have been adjusted. Harbour Health contended that it was already doing everything possible to ensure R-5's nutritional status. The only alternative to the puree diet would be tube feeding. R-5's son, who acted as her guardian, made it clear to the facility that he would not consent to tube feeding. In May 2001, R-5 suffered from an upper respiratory infection diagnosed as bronchitis by her attending physician. On May 14, 2001, the physician ordered the antibiotic Levaquin; nebulizer treatments with Albuterol and Atrovent, both bronchodilators; and oral administration of Robitussin. All of these medications were ordered and administered for a period of one week. Harbour Health contended that R-5's respiratory infection completely explained her weight loss. The evidence does not entirely support that contention. The medical records indicate that R-5's condition was largely resolved by the latter part of May 2001. R-5 lost four pounds during the month of May 2001. The majority of R-5's weight loss occurred during the month of June 2001, after her bronchitis was treated and apparently resolved. At most, R-5's weight loss was only partially explained by her upper respiratory infection. Dr. Michael Brinson, R-5's attending physician, testified that it is expected that an end-stage Alzheimer's patient will lose weight, because at some point the resident loses the will to live. In Dr. Brinson's opinion, R-5 had reached this point, which explained her refusal to eat. He was aware of R-5's weight loss. Given R-5's clinical condition, the weight loss did not concern Dr. Brinson, who deemed it irrelevant to her care and treatment. Even Ms. Ashworth, the agency RN who performed the survey observation of R-5, agreed that weight loss can be a symptom of end-stage Alzheimer's. R-5 had been provided with a speech consultation and speech therapy in 1998. She was discharged from speech therapy in March 1998 because it was determined that nothing more could be done for her. Dr. Brinson testified that a speech therapy consultation would have been useless in July 2001. Speech therapy is called for if the resident's refusal to eat is related to a swallowing problem. R-5 had no swallowing problem. Catherine Rolin, the restorative nurse who supervised R-5's feedings, confirmed that there were no indications R-5 had difficulty swallowing, or had choked or aspirated during the time she was losing weight. Dr. Brinson opined that R-5's terminal diagnosis with end-stage Alzheimer's disease made a psychiatric consultation of no value. R-5's cognitive impairment would have rendered her unable to participate in any psychiatric examination. Dr. Brinson came to the facility at least once a week. His Advanced Registered Nurse Practitioner ("ARNP"), Vickie Swank, came to the facility several times a week. Dr. Brinson would have had to order any psychiatric or speech therapy consultation, or any laboratory work. Dr. Brinson believed that none of these was appropriate for R-5. The interdisciplinary team overseeing R-5's care included the facility's certified dietary manager. The team was aware of R-5's weight loss as of July 2, 2001, and decided that R-5's status did not trigger a need to consult the registered dietician. Deborah Blackburn, a dietician and expert in nutrition, reviewed R-5's records and concluded that there was no need to consult a registered dietician. Ms. Blackburn opined that the facility was taking all reasonable steps to maintain R- 5's caloric intake and nutritional status. She could not think of a workable approach that Harbour Health had failed to employ. Aside from the weight loss itself, R-5 suffered no skin breakdown or other negative effects. Viewing the evidence in its entirety, it is found that AHCA failed to prove the elements of Tag F325 by a preponderance of the evidence. R-5 lost the weight then quickly gained most of it back with no dramatic changes in Harbour Health's approaches to her feeding and overall nutrition. This fact demonstrates that R-5's weight loss was caused not by Harbour Health's failure to provide adequate nutrition, but by a combination of R-5's terminal Alzheimer's disease and her upper respiratory infection. Once Harbour Health became aware of the weight loss, it reacted appropriately and successfully. The steps that the agency faulted Harbour Health for failing to take--psychiatric consultation, speech therapy consultation, dietician consultation, and medication adjustments--were demonstrated to be unnecessary in light of R-5's condition.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Agency for Health Care Administration enter a final order dismissing the Administrative Complaint in DOAH Case No. 02-1299, and rescinding the notice of intent to assign conditional licensure status to Harbour Health Center in DOAH Case No. 02-0949 and reinstating the facility's standard licensure status. DONE AND ENTERED this 23rd day of September, 2002, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of September, 2002. COPIES FURNISHED: Ursula Eikman, Esquire Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308 Dennis L. Godfrey, Esquire Agency for Health Care Administration 525 Mirror Lake Drive, North Room 310L St. Petersburg, Florida 33701 Karen L. Goldsmith, Esquire Goldsmith, Grout & Lewis, P.A. 2180 North Park Avenue, Suite 100 Post Office Box 2011 Winter Park, Florida 32790-2011 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Valinda Clark Christian, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308
The Issue The issue in this case is whether the alleged deficiency cited in the October 2001 survey report existed and, if so, whether the deficiency is sufficient to support the change in the Aristocrat's licensure status from standard to conditional.
Findings Of Fact The Agency is the state agency responsible for licensing and regulating nursing facilities in the State of Florida under Part II, Chapter 400, Florida Statutes. The Aristocrat (The Aristocrat or facility) is a nursing home located at 10949 Parnu Street, in Naples, Florida, licensed by and subject to regulation by the Agency pursuant to Part II, Chapter 400, Florida Statutes. The Agency conducted an annual survey of The Aristocrat from October 8 through 10, 2001. The results of the survey are summarized in a report known as the 2567 report. The 2567 report identifies each alleged deficiency by reference to a tag number (“Tag”). Each Tag of the 2567 report includes a narrative description of the alleged deficiency and cites the relevant rule or regulation violated thereby. The Tag at issue in this proceeding is Tag F 325. Tag F 325 relates to quality of care and references 42 C.F.R. 483.25(i)(l), which requires that, “[b]ased on a resident’s comprehensive assessment, the facility must ensure that a resident maintains acceptable parameters of nutritional status, such as body weight and protein levels, unless the resident’s clinical condition demonstrates that this is not possible.” The standard in 42 C.F.R. 483.25(i)(1) is made applicable to nursing homes in Florida pursuant to Rule 59A- 4.1288, Florida Administrative Code. The Agency is required to rate the severity of any deficiency pursuant to the classification system outlined in Section 400.23(7), Florida Statutes. The Agency assigned a Class II rating to the deficiency as well as “scope and severity” of G pursuant to federal law. The state classification is at issue in this case. A Class II deficiency is one which “the agency determines has compromised the resident's ability to maintain or reach his or her highest practicable physical, mental, and psychosocial well-being, as defined by an accurate and comprehensive resident assessment, plan of care, and provision of services." Section 400.23(8)(b), Florida Statutes. When the Agency alleges that there is a Class II deficiency, as it did in this case, the Agency may change the facility’s licensure rating from standard to conditional. In accordance with its authority and discretion, based on the alleged Tag F 325 deficiency, the Agency changed The Aristocrat’s nursing home licensure rating from standard to conditional, effective October 10, 2001. During the October survey, an Agency surveyor reviewed the clinical records of six residents at The Aristocrat. The Tag F 325 deficiency was based on the Agency’s findings related to the records of one of those six residents and on interviews with facility staff. In order to protect the privacy of the nursing home resident who is the subject of the alleged deficiency, the Administrative Complaint, the 2567 report, and this Recommended Order refer to the resident by number rather than by name. As a result of the surveyors’ review of the records, the Agency determined that one of the residents, Resident 1, had a weight loss of 7.2 pounds between July 30, 2001, and August 11, 2001. The surveyors’ review of Resident 1’s records further reflected that she had a total weight loss of 13.5 pounds between July 30, 2001, and August 25, 2001. According to the resident’s weight records and nutritional assessment, which listed the resident’s usual body weight as 136 pounds, the surveyors considered the weight loss during the aforementioned periods to be significant. Once the surveyors concluded that Resident 1 had a significant weight loss, the surveyors had to determine whether the resident’s weight loss was avoidable. In making this determination, the surveyors had to determine whether the facility assessed the resident adequately, developed a care plan, implemented the care plan, and reevaluated the care plan. Applying the Agency’s protocol set forth in the above paragraph, the surveyors determined that the significant weight loss experienced by Resident 1 was avoidable. The Agency surveyors found that the facility failed to do the following: adequately assess and develop a plan of care to prevent Resident 1 from significant weight loss; assess and develop an adequate care plan after the resident had a significant weight loss of 5.3 percent of her body weight in less than two weeks; and adequately assess, evaluate and revise the care plan to address the resident’s significant weight loss of 9.9 percent of her body weight in less than a month. According to the 2567 report and the Administrative Complaint, the nutritional parameter that the Agency alleges the facility did not maintain for Resident 1 was weight loss. The Agency was concerned that Resident 1’s weight dropped from 136 pounds on July 30, 2001, to 128.8 pounds on August 11, 2001, which was a 5.3 percent loss of her body weight, upon admission to the facility. Also, the Agency was concerned that the resident’s weight dropped from 136 pounds on July 30, 2001, to 122.5 pounds on August 25, 2001, a 9.9 percent loss of her body weight, upon her admission to the facility. The Agency alleges that the failure to assess and develop an adequate care plan to address weight loss caused the referenced weight loss. Resident 1, a 92-year-old female, was admitted to The Aristocrat on July 30, 2001, at about 3:00 p.m. Her diagnosis included a left hip fracture, left shoulder fracture, atrial fibrillation, esophageal reflux, depression, bipolar disorder, hypertension, and chronic insomnia. John Patrick Lewis, M.D., was Resident 1’s treating physician at the time of and throughout her three-month stay at The Aristocrat. Upon Resident 1’s admission to the facility, Dr. Lewis had “great concern” about the resident’s atrial fibrillation because of her history of T.I.A.s (strokes). As a result of this concern, Dr. Lewis consulted with and reviewed the medical records of Dr. Drew, Resident 1’s primary physician. Resident 1's weight dropped from 136 pounds on July 30, 2001, to 134.8 pounds on July 31, 2001, to 133 pounds on August 4, 2001, to 128.8 pounds on August 11, 2001. Resident 1’s weight began to level off on August 15 or 16, 2001, when edema was no longer noted on her records. Thereafter, beginning on August 19, 2001, the resident’s weight began to stabilize. Resident 1 weighed 124.2 pounds on August 19, 2001; 122.5 pounds on August 25, 2001; 122.7 pounds on September 7, 2001; 121.2 pounds on September 14, 2001; 122.2 pounds on September 21, 2001; 121.6 pounds on September 28, 2001; and was 120.3 pounds on October 6, 2001. Resident 1 came to The Aristocrat days following major surgery of her hip after she suffered a fracture of her hip and shoulder. Resident 1 was hydrated with fluids prior to and/or during the operation to ensure that she maintained a good blood pressure. As a result thereof, at the time Resident 1 was admitted to The Aristocrat, she had an increased amount of fluids in her body and was over-hydrated. The over-hydration caused Resident 1 to have swelling, known as edema. Dr. Lewis testified that Resident 1's edema was actually third space fluids, which are fluids that go extravascularly into the soft tissues or into the peritoneal cavity. It typically takes a period of 7-14 days for that fluid to return to the intravascular compartment and then be urinated away. At the time of her admission at The Aristocrat and throughout her stay there, Resident 1 was on a medication known as Lasix, which is a diuretic that causes the body to urinate excess fluids. Lasix was included in Resident 1’s discharge orders from the hospital where she had surgery for her hip fracture and was never discontinued. In Dr. Lewis’ opinion, there was no need to discontinue the Lasix because the resident was never dehydrated during her stay at The Aristocrat. Moreover, Dr. Lewis is aware that in addition to being a diuretic, Lasix is sometimes prescribed for high blood pressure and this may have been another reason Lasix was included in the resident's discharge orders. The presence of edema in Resident 1 was clearly noted in her chart by facility staff at or near the time she was admitted to the facility. The reference to Resident 1's edema is included in the nurse’s notes dated July 30, 2001, nurse’s notes dated July 31, 2001, a registered dietician's note dated August 1, 2001, and a physical therapy note dated July 31, 2001. The nurse’s notes dated July 30, 2001, the date Resident 1 was admitted to the facility, state that “2 plus edema noted on left upper extremity.” Another document in Resident 1's chart, dated July 31, 2001, states, “2 plus edema on left hip, incision site.” The nutritional assessment dated August 1, 2001, two days after Resident 1 was admitted to the facility, notes edema in lower and upper extremities and “some weight loss expected.” Finally, a dietary note dated August 1, 2001, mentions Resident 1’s edema, but does not mention the location of the edema. The Aristocrat staff did not note Resident 1’s edema on her initial Minimum Data Set form (MDS) as preferred by the Agency. However, the resident’s edema was charted in several places in her records. The Agency’s surveyor acknowledged that Dr. Lewis saw Resident 1 on August 11, 2001, when her weight had dropped from 136 pounds to 128.8 pounds and did not instruct The Aristocrat’s staff to alter their approach to providing adequate nutrition to Resident 1. The reason Dr. Lewis did not order that any changes be made for Resident 1 on August 11, 2001, was that he believed that none were required or necessary in that “the majority of this weight loss was to be expected.” According to Dr. Lewis, “this weight loss [was] not unexpected due to her excessive hydration and third space fluids.” The Agency’s initial concern was Resident 1’s weight loss, during the period of July 30, 2001, through August 11, 2001, when she lost 7.2 pounds, or 5.3 percent of her weight at the time of her admission to the facility. Surveyors are instructed to use a resident’s “usual body weight” to make weight loss calculations. When calculating weight loss, the usual body weight is determined by considering the person’s weight through adult life. According to the state’s guidelines, an analysis of weight loss or gain should be examined in light of the individual’s former life style, as well as current diagnosis. The medical records of Dr. Drew, Resident 1’s primary physician, indicate that Resident 1 weighed 127 pounds on January 31, 2001, and weighed 125 pounds on June 8, 2001. In light of the undisputed fact that Resident 1 was over-hydrated at the time she weighed 136 pounds, it is reasonable to assume that her weight in the months and weeks prior to surgery would be more appropriate figures to use as the resident's usual body weight. Based on her 5'0" height, Resident 1's ideal weight was 100 pounds, the midpoint between the ideal weight range of 90 to 110 pounds for someone five feet tall. In fact, were 136 pounds Resident 1's true weight, she would be considered clinically obese. The Agency surveyor based his calculations that Resident 1 had a significant weight loss on the assumption that the resident’s usual body weight was 136 pounds. The surveyor obtained the 136-pound weight as the resident’s usual body weight from the facility’s nutritional assessment. The Aristocrat incorrectly listed the resident’s weight upon admission, 136 pounds, as her usual body weight. Even if it is assumed that the Agency reasonably relied on the facility’s records that note Resident 1’s usual weight as 136 pounds, the calculations using this weight are flawed because that is not Resident 1’s usual body weight. Had the Agency based its calculations relative to the resident’s weight loss on her usual body weight of 125 pounds, a drop in weight from 125 pounds to any of Resident 1's charted weights would not be “significant” according to surveyor guidelines. One can lose 10 pounds of water weight in just a couple of days but one must burn calories to lose body weight. There are 3,500 calories in a pound. Therefore, in order lose one pound of body mass, a person would need to burn 3,500 calories. Resident 1 lost one pound each day for the first three days she was at The Aristocrat. In order to lose three pounds of body mass, Resident 1 would need to burn 10,500 calories. At the time of her admission to The Aristocrat, Resident 1 was 92 years old and, for the first two weeks she was at the facility, was bed-bound, with a fractured hip and shoulder. Given Resident 1’s condition, it is reasonable to assume that she burned minimal calories. It was physiologically impossible for Resident 1 to lose true body weights in the amounts quoted in the 2567 report. Resident 1 dropped from 136 pounds down to 134.8 pounds the next day and then down to 133 pounds the following day. Because it is impossible to lose a pound of actual body weight in one day, the recorded weight loss for Resident 1 was too rapid to be true weight loss. Rather, the resident's initial weight loss was the result of a decrease in her edema. In determining that Resident 1 had a significant weight loss during the period of July 30 and August 11, 2001, the Agency surveyors based their calculations on an inaccurate usual body weight for the resident. Moreover, the Agency did not consider that the resident had edema and was taking Lasix, a diuretic, and that part of the weight loss could have been water weight. In fact, the 2567 report does not mention that the resident’s chart or records indicate that Resident 1 had edema and that a weight loss could be expected as the edema decreases. The Agency’s explanation for not doing so was that the facility’s records did not indicate or assess the amount of edema Resident 1 had upon her admission. Even though Resident 1 was edematous, the facility staff appropriately addressed her weight issues and immediately began implementing nutritional interventions. There are a number of complex factors at play in the selection and timing of appropriate interventions for a given resident. For example, there is a "warm-up time" to see how a new resident will adjust to the facility. It is not unusual for new residents to experience problems as a result of being in a new environment. However, after a couple of weeks, many of the new residents resolve their relocation issues and adjust to their new environment. During the period of July 30 through August 11, 2001, The Aristocrat’s staff engaged in numerous activities, which assessed Resident 1 from a nutritional standpoint, and immediately implemented interventions to enable her to maintain as much weight as possible. On July 31, 2001, the day after Resident 1 was admitted to the facility, the occupationa1 therapy staff evaluated Resident 1 to determine the level of supervision and set up assistance she needed while eating. On August 1, 2001, two days after Resident 1 was admitted to The Aristocrat, the facility’s registered dietician assessed Resident 1 and, as noted in paragraph 23, above, indicated that some weight loss would be expected as her edema decreased. That same day, the facility’s registered dietician reviewed some of the resident’s lab values that had been taken at the hospital from which Resident 1 had been released and also ordered a multi-vitamin for the resident. On August 2, 2001, the day after the registered dietician completed a nutritional assessment of Resident 1, the facility’s dietary manager met with Resident 1 to assess her food preferences and find out her likes and dislikes. During this meeting, the dietary manager learned that Resident 1 wanted coffee, with four packs of sugar, with all of her meals and a danish at breakfast. The danish is considered a specialty food and is not one usually provided on a daily basis to residents in nursing home facilities such as The Aristocrat. However, upon learning of Resident 1’s food preferences, the facility immediately began providing her with a danish with her breakfast each morning and coffee with four sugars with each meal. The facility’s providing Resident 1 with the foods she requested was an appropriate intervention that honored her preferences. The assessment described in paragraph 42 is consistent with the acceptable industry standard concerning nutritional issues of new residents. That standard requires facilities to analyze the resident for a number of days, determine their food preferences, and see if their nutritional and/or caloric needs can be met through food first. As such, using specialty foods such as a danish and coffee with sugar are appropriate interventions, which honored the resident's preferences. Two additional assessments were performed within a week of Resident 1’s admission to the facility. First, on August 5, 2001, a restorative assessment was completed which addressed Resident 1's ability to use utensils and open her food. The next day, the speech therapy unit of the facility completed a swallowing screening that assessed Resident 1's dysphagia and ability to swallow. Throughout the month of August, including August 11, 2001, and prior thereto, nurse’s notes regularly included information concerning Resident 1’s appetite, food intake, necessary and/or recommended interventions, and other nutritional issues. For example, prior to August 12, 2001, at least two nurse’s notes indicated that Resident 1’s appetite was fair and another nurse’s note indicated that her appetite was poor. Two of the nurse’s notes for this time period indicated that that the resident needed encouragement with oral intake. In addition to the aforementioned interventions implemented by The Aristocrat’s staff during August 2001, Dr. Lewis intervened numerous times with Resident 1. Because Resident 1's room was near the front of the facility, every time Dr. Lewis went into the facility he walked by her room and encouraged her to eat. Dr. Lewis also had numerous conversations with Resident 1's family to have them bring home cooked food that she would enjoy eating. To the extent that Resident 1 did not maintain “acceptable” parameters of nutritional status, the weight loss was attributable to Resident 1's clinical condition and not any failure on the part of The Aristocrat’s staff. In addition to Resident 1's having edema, she had other clinical issues that may have contributed to her weight loss. These clinical conditions involve the resident's behavioral and emotional problems and certain medication that the resident was taking to relieve the pain she was experiencing following her surgery. A person's behavior and emotional problems can have a considerable impact on the resident’s appetite and eating patterns. For example, a person, such as Resident 1, who suffered from depression and a bipolar disorder, may have a low appetite. In this case, Resident 1 suffered from depression and a bipolar disorder. These conditions may likely have been exacerbated by the resident's having to leave the assisted living facility in which she had lived prior to her surgery, going to a hospital for surgery, and, after being released from the hospital, having to be admitted to yet another nursing facility, The Aristocrat. Resident 1 exhibited behavior problems from the beginning of her stay at The Aristocrat, as documented in her records. During the first two weeks that Resident 1 was at the facility, staff of The Aristocrat documented some of the behaviors that the resident was exhibiting. The resident's MDS dated August 8, 2001, and the MDS dated August 13, 2001, indicate that Resident 1 was experiencing mood and behavior problems, on a daily basis, as reflected in her verbal expressions. Resident 1's August 5, 2001, Social Work Assessment Report indicated that Resident 1 made negative statements almost daily and wanted to return to the assisted living facility. The Social Work Assessment Report described the resident's medical conditions that interfered with her relationship skills as "sad mood, melancholy, anxieties, fear, [and] relocation issues." With regard to the resident's relationship involvement patterns, the report indicates that Resident 1 prefers solitude. The Social Work Assessment Report of August 27, 2001, confirmed that Resident 1 made negative statements almost daily and was anxious and angry. The assessment report also noted that Resident 1 was in an unpleasant mood in the morning almost daily, that Resident 1 withdrew from activities almost daily and exhibited reduced social interaction almost daily. The same document indicated that Resident 1 preferred solitude, and demonstrated a sad mood, melancholy, anxieties, fear, and relocation issues. The Behavior/Intervention Monthly Flow Chart Record for August 15 through August 31, 2001, indicates that Resident 1 yelled at staff and was uncooperative. Finally, the care plan priority document for Resident 1 dated August 30, 2001, indicated that her anxiety may be secondary to anger, that her anger was persistent, and that she was verbally abusive to staff. Undoubtedly, Resident 1's behavior and mood could have likely affected and inhibited her appetite, and, thus, contributed to some of the resident's weight loss. Yet, despite the facility’s documentation concerning the resident's behavioral issues, the Agency apparently did not consider either the documentation or the statements by facility staff during the survey that Resident 1's behaviors interfered with some of the attempted nutritional interventions. Another factor that may have contributed to the amount of food Resident 1 ate while at the facility was the medication she was taking. Resident 1 was on a regimen of Darvocet, a narcotic and pain medication, prescribed to help manage the pain she was experiencing as a result of the surgery and/or the hip and left shoulder fracture. Darvocet is a medication that inhibits a person's appetite. In this case, Resident 1 took approximately 30 doses of the narcotic pain reliever Darvocet during the first 10 or 12 days she was at The Aristocrat. Therefore, it is very likely that as a result of Resident 1's taking Darvocet, her appetite was inhibited and she ate less food than she may otherwise have eaten. The Aristocrat’s staff provided numerous interventions for Resident 1 during her first 21 days in the nursing home. They analyzed her weight and food intake through the dietary and nursing units. They offered to assist her with intake and encouraged her to eat. For example, CNA flow sheets for the month of August indicate that food and fluid were offered to Resident 1 approximately 10 times per day, usually five times during the 7-3 shift and five times during the 3-11 shift, every day. This was in addition to her regular meals, specialty foods such as coffee and danish and nutritional supplements. The snacks offered to Resident 1 were foods such as crackers and juice. Staff continually assessed Resident 1's needs and added interventions throughout her stay. A "significant change" MDS was completed on August 13, 2001, which related to Resident 1's percentage of meals eaten and weight loss. On August 14, 2001, The Aristocrat’s staff completed a behavior flow record that addressed Resident 1's uncooperativeness. On or about August 15, 2001, the facility developed a care plan for Resident 1 that included concerns about her weight loss after the initial weight loss due to resident’s loss of "water weight." The nutritional care plan included numerous approaches such as providing increased calories and encouraging intake of diet supplements and fluid. A nursing note of August 16, 2001, indicated that Resident 1's appetite was fair but improved to quite good while a note dated August 20, 2001, indicated that Resident 1 felt she was not getting good food. Staff discussed Resident 1's many dietary dislikes at a weight meeting on August 22, 2001. In order to increase the resident’s caloric intake, the dietary manager added ice cream to Resident 1’s diet at lunch and dinner. On or about August 23, 2001, Dr. Lewis ordered Medpass, a nutritional supplement, for Resident 1. Pursuant to the order, the resident had two 120cc of the supplement daily. Each 120cc of Medpass has 240 calories. Five days later, on August 28, 2001, Dr. Lewis increased the amount of Medpass Resident 1 was to receive from two 120cc of Medpass to four 120cc of Medpass each day. This order was immediately implemented. The goal of the nursing home is to provide 2,000 calories per day to a resident through food. After the first two weeks Resident 1 was at the facility, she consumed an average of 50 percent of her meals, which equaled approximately 1,000 calories per day. In addition, Resident 1 received 300 calories from her daily danish, 240 calories from her coffee with sugar, 300 calories from her daily ice cream, and 480 from Medpass, a nutritional supplement. This equaled an additional 1,020 calories from the “non-diet” portion of her food consumption and exceeded the 1,600 to 1,800 calories per day that Agency believed Resident 1 needed. The number of calories was increased an additional 480 calories, on or about August 28, 2001, after Resident 1 began receiving four 120cc of Medpass. The Agency alleged at hearing that the facility failed to ensure that Resident 1's estimated protein needs were being met. In determining a person's estimated protein needs, it is clinically appropriate to base such needs on the person's ideal weight. In light of that approach, Resident 1 would have needed approximately 59 grams of protein per day. The meal consumption estimates do not reflect whether the resident ate only one food item or a portion of each item. However, given that the resident's diet had approximately 100 grams of protein and that she consumed approximately 50 percent of her diet, it is reasonable to conclude that her protein needs were met. Most of the time Resident 1 was at the facility, she was eating “fair” which is generally considered that she was eating about 50-75 percent of her meals. Given Resident 1's consumption of her 2,000-calorie diet plus supplements, it is reasonable to conclude that she maintained adequate parameters of nutritional status. The Aristocrat’s staff began interventions for Resident 1 from the day she was admitted to the facility. The staff analyzed her needs and provided her with a supplementation of calories by August 1, 2001. Staff continually assessed Resident 1's needs and added additional interventions throughout her stay at the facility. Two of the more aggressive interventions included obtaining a psychological consultation for Resident 1 and ordering an appetite stimulant for her. The Agency indicated that The Aristocrat should have implemented these more aggressive interventions much earlier than it did in order prevent Resident 1 from losing weight. Contrary to this position, it is not likely that these interventions would have prevented the resident’s initial weight loss that occurred between July 30 and August 11, 2001, because the weight loss was water weight. Dr. Lewis waited until September 13, 2001, to order Megace for Resident 1 because he wanted to give other interventions a chance to work. Also, Megace is an appetite stimulant that can cause liver toxicity. Because of the known side effects of Megace, Dr. Lewis used this approach only as a “last-ditch alternative.” With regard to the psychological consultation, the facility delayed this intervention although the staff was aware of and had noted the resident’s behavior problems soon after she was admitted. The consultation was appropriately delayed to give the resident a chance to adjust to her new environment and to first attempt more conservative measures. Moreover, in this case, Dr. Lewis testified that he recalled that, initially, there may have been some opposition from Resident 1's family regarding a psychological consultation. Resident 1 maintained “adequate” nutritional parameters while at The Aristocrat. To the extent that she may not have maintained "adequate" nutritional parameters during the first almost two weeks at the facility, Resident 1's clinical condition made her initial weight loss unavoidable. Signs or symptoms that a person has been nutritionally compromised include the development of pressure sores and malnourishment, dehydration, dull eyes, and/or swollen lips. In this case, Resident 1 did not exhibit any clinical signs of malnourishment, dehydration, or pressure sores. Moreover, Resident 1 suffered no harm as a result of the initial or subsequent weight loss noted in the 2567 report. The Agency’s reason for changing the facility's licensure rating from standard to conditional is based on its conclusion that the weight loss experienced by Resident 1 was avoidable. The Agency's policy is that if there is an avoidable weight loss, there is harm, with or without a determination that there is actual harm to the resident. The credible testimony of Dr. Lewis was that Resident 1 recovered “very successfully from two major fractures, even in the setting of depression and advanced age.” At the end of Resident 1's stay at the facility she was ambulating on her own with a walker and performing some of her own activities of daily living; and after approximately three months in the facility, the resident returned to the assisted living facility where she previously lived.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order issuing a standard license rating to The Aristocrat and rescinding the conditional license rating. DONE AND ENTERED this 14th day of August, 2002, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 14th day of August, 2002. COPIES FURNISHED: Virginia A. Daire, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308 William Roberts, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308 Dennis L. Godfrey, Esquire Agency for Health Care Administration 525 Mirror Lake Drive, North Room 310L St. Petersburg, Florida 33701 Michael S. Howard, Esquire Gallagher & Howard, P.A. Post Office Box 2722 Tampa, Florida 33602-4935
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 G4S Secure Solutions f/k/a The Wackenhut Corporation (Respondent or G4S) discriminated against Keith A. Galloway (Petitioner) in violation of the Florida Civil Rights Act of 1992, sections 760.01-760.11 and 509, Florida Statutes,2/ and if so, what is the appropriate remedy.
Findings Of Fact G4S is a company that provides security services to businesses and governments. Infrastructure Corporation of America (ICA) contracts with the State of Florida Department of Transportation (DOT), for asset management of DOT's rest stops along interstate highways in Florida. Pursuant to a subcontract with ICA, G4S provides security services for DOT rest stops managed by ICA. ICA is one of the largest clients of G4S's office located in Pensacola, Florida. G4S has more than 600,000 employees. G4S's Pensacola office employs approximately 200 security officers. Security services provided by G4S's Pensacola office include nine locations for ICA, and approximately 25 non-ICA locations, including resorts, hospitals, and at least one shopping center. Petitioner was employed by G4S from 2005 to 2008, and again from 2009 to October 2010. Although Petitioner has not done any work for G4S since October 2010, G4S's Pensacola office still considers Petitioner to be an employee. In 2008, Petitioner left the employ of G4S to take a job as a police officer in the State of Alabama. As a result of an injury received while working in that capacity, Petitioner had part of his leg amputated in December, 2008. Petitioner also has diabetes, which may have contributed to the severity of his injury. As a result, Petitioner now wears a prosthetic leg, can only walk short distances, and cannot climb. Petitioner also had part of his foot on his other leg amputated. Unable to return to work for the police department in Alabama, Petitioner applied for and, in 2009, was once again hired by G4S. Upon his re-hire, Petitioner was assigned to work as a security guard at an ICA site in Florida, the Ponce de Leon rest stop along Interstate 10. G4S's job description for Petitioner's position as a rest stop security guard lists the position title as “Custom Protection Officer.” The activities and corresponding estimated time spent performing each activity are listed in the “Safety, Exertion, and General Ergonomics” portion of the job description as follows: Using a computer, 25% Using a telephone, 25% Sitting, 50% Standing, 50% Walking, 50% Reaching, 15% Listening, 50% Stooping, 15% Climbing, 15% Kneeling, 10% Speaking, 50% Observing, 100% Lifting objects over 10 pounds, 15% Running, 2.5% Writing, 50% Working outdoors, 50% Working indoors, 0% Working in confined spaces as defined by OSHA, 0% Working in extreme temperatures, 25% Although walking is listed as a 50 percent activity in the ergonomics section of the job description, the “Nature of Specific Duties Performed” section of the job description estimates that only 30 percent of a security guard's time will be spent performing “security patrols of designated areas on foot or in vehicle.” (emphasis added). While Petitioner was working for G4S at the Ponce de Leon rest stop, it was common knowledge among Petitioner's co- workers and supervisors that Petitioner had a prosthetic leg. When Petitioner began working at the Ponce de Leon rest stop, Petitioner advised his supervisor that he had a prosthetic leg and had trouble walking.3/ Petitioner?s immediate supervisor, a lieutenant with G4S, and the lieutenant's supervisor, a project manager with G4S over the ICA account, were aware of Petitioner?s prosthetic leg and his limited walking ability. They allowed Petitioner to use his personal vehicle as an accommodation. Although Petitioner walked on occasion, most of his patrol at the rest stop was accomplished using his personal vehicle. With that accommodation, Petitioner was able to satisfactorily perform the essential functions of his job. During the same time period that Petitioner was working at the Ponce de Leon rest stop, ICA had an employee named Rick Rousseau. Mr. Rousseau was employed by ICA as a senior wastewater operator with responsibilities over the water testing, water and wastewater plants, and lift stations at the Interstate 10 rest stops between mile marker 96 in Holmes County, Florida, and mile marker 194 in Leon County, Florida. Mr. Rousseau was formerly an inmate incarcerated in Holmes Correctional Institution, Holmes County, Florida. Several of the G4S security guards assigned to the rest stops where Mr. Rousseau had responsibilities had been guards at Holmes Correctional Institution while Mr. Rousseau was incarcerated there. They remembered Mr. Rousseau and, apparently, he remembered them. Part of the contract between ICA and DOT required ICA to inspect the G4S security officers. ICA project manager Joseph Mastro did some of those inspections himself, including routine, announced inspections, as well as surprise inspections. Mr. Mastro authorized Mr. Rousseau and other ICA employees, as part of their duties, to observe and report whether the G4S security officers were doing their jobs at the rest stops. In fulfilling this role, Mr. Rousseau would often sneak up on G4S security officers in the dark to see whether they were sleeping, take pictures, and shine his flashlight at the officers and into their vehicles. These activities caused friction between the G4S security officers and Mr. Rousseau, some of whom remembered him from his days as an inmate at Holmes Correctional Institution. Although Petitioner had never been a correctional officer, he was subjected to the same surprise “inspections” conducted by Mr. Rousseau. Petitioner knew that Mr. Rousseau was a former inmate. Petitioner felt as though Mr. Rousseau's activities amounted to “stalking” type behavior and asked a supervisor with G4S for permission to file a complaint against Mr. Rousseau with law enforcement. The supervisor, John Helms, who at the time was a project manager over the G4S account for the ICA interstate highway protection program, gave Petitioner permission to report Mr. Rousseau to law enforcement. As explained by Mr. Helms: The issue with Rick [Rousseau] came to light. [Petitioner] had complained several times on [Rousseau] -- as well as the other guards -- about this stalking and sneaking and lurking activity, and this went on long enough that I believe [Petitioner] finally got fed up with it. We certainly saw this as a safety issue at least. [Petitioner] asked me if he could report this to law enforcement. And, of course, he's a citizen, I can't keep him from reporting anything to law enforcement if he's a victim of crime, so I told him yes. After receiving permission to do so, Petitioner filed a complaint with the Holmes County Sheriff's Office on October 5, 2010, complaining about Mr. Rousseau's stalking behavior. When Mr. Mastro found out that Petitioner had filed an official complaint against Mr. Rousseau, he was upset. He felt as though the G4S security guards had been unfair to Mr. Rousseau because of Mr. Rousseau's past incarceration, and that Mr. Rousseau had just been doing his job. Previously, someone had posted a mug shot of Mr. Rousseau on a security door with a note that stated, “Be on the lookout for.” Although there was no evidence that Petitioner was involved in the posting of Mr. Rousseau's mug shot, Mr. Mastro was sensitive to the issue. He felt as though Petitioner's filing of the complaint against Mr. Rousseau was a violation of Petitioner's chain-of-command. On October 22, Mr. Mastro e-mailed G4S's general manager of the Pensacola office, Patrick Dawson. The e-mail stated: Patrick, After talking with my supervisor, I am requesting that [Petitioner] be REMOVED from ICA's project, effective ASAP. I cannot require you to terminate him but can require for him to be removed. If you wish to talk about this matter please give me a call. We may be able to work something out by moving this officer west to Okaloosa Rest area. After talking to you yesterday this officer did not follow the required chain of command that was sent to ICA in a letter and provided to all officers. Thanks. Mr. Mastro was aware that Petitioner had a disability related to his foot or toes, but was unaware that he could not walk for long distances or that he had been using his truck to patrol the Ponce de Leon rest stop. There is no evidence that Mr. Mastro's request that Petitioner be removed was related to Petitioner's disability. Based upon the client's request, Mr. Dawson decided to remove Petitioner from the ICA account. The decision was not based upon Petitioner's work performance, which was satisfactory. In addition, the evidence does not reasonably suggest that the decision to remove Petitioner from the ICA account was based upon Petitioner's disability. While preparing to go back to work on the Sunday after filing the complaint against Mr. Rousseau, Petitioner received a call from Captain Helms, who advised Petitioner that he was being removed from the rest area. The next day, Jason Taylor contacted Petitioner and told him that he was being removed from the ICA account and would be reassigned. Petitioner asked Mr. Taylor, to no avail, why he could not just be reassigned from the rest stop at Ponce de Leon to the rest stop at Okaloosa. Later that afternoon, Mr. Dawson called Petitioner and told him that he was being taken off the ICA account at Mr. Mastro's request. When Petitioner asked about reassignment, Mr. Dawson said that he believed his reassignment would be to a place where Petitioner would be checking in clients and would have a vehicle to do road patrol. Mr. Dawson did not tell Petitioner that Mr. Mastro had suggested reassignment to the Okaloosa rest stop as a possibility. Mr. Dawson had never met Petitioner before he called him on the telephone to advise that he was being taken off the ICA account. While Mr. Dawson told Petitioner that he believed Petitioner would have use of a vehicle to do road patrol, there is no evidence that Petitioner and Mr. Dawson specifically discussed Petitioner's disability or that Petitioner needed an accommodation because of his disability. According to Mr. Dawson, he did not know of Petitioner's disability when he asked for Petitioner's reassignment. Mr. Dawson, however, did not concern himself with the details of Petitioner's reassignment. Rather, he left those details to Jason Taylor and Theresa Flores. Mr. Dawson told Jason Taylor, operations manager with responsibilities over day-to-day operation for G4S's Pensacola Office, to reassign Petitioner. Mr. Taylor was aware of the fact that there had been problems with Mr. Rousseau. In fact, the first time he met Petitioner during an inspection at the Ponce de Leon rest stop around May 2009, Petitioner informed him of the problems that he and other security officers were having with Mr. Rousseau. Mr. Taylor was also aware that Petitioner had a prosthetic leg. During that same May 2009, inspection, Petitioner showed Mr. Taylor his prosthetic leg. Despite his responsibilities and knowledge of Petitioner's prosthetic leg, Mr. Taylor testified that he was unaware of Petitioner's limitations or the fact that Petitioner had been allowed by his supervisors to use his personal vehicle to make his rounds at the Ponce de Leon rest stop. Mr. Taylor, however, was aware of the requirements of the ADA and agreed that, to the extent that Petitioner could not walk or stand, Petitioner's use of his personal vehicle to make his rounds was a reasonable accommodation. Although Mr. Taylor was aware of Petitioner's prosthetic leg and the requirements of the ADA, he did not play a direct role in selecting Petitioner's reassignment. Rather, he relied on Theresa Flores, a G4S area supervisor under his supervision, to deal with Petitioner's reassignment. When asked whether G4S made reasonable accommodations for Petitioner in his reassignment so that Petitioner could perform the essential functions of the job, Mr. Taylor testified, “That was given to Ms. Theresa Flores and Ms. Flores did that.” Ms. Flores was in charge of payroll and duty assignments for G4S's Pensacola area office. She assisted site supervisors and was directly in charge of schedules and security guards at sites that had no other supervisors. She knew that Petitioner had problems with his leg, but did not know any specifics about his prosthetic leg. She acknowledged that she would have received Petitioner's leave requests, including a medical leave request that Petitioner had previously submitted for surgery on his leg, but she was not “specifically” aware that Petitioner had taken leave for leg surgery. Ms. Flores was not aware of the Rousseau situation. Her involvement in finding a reassignment for Petitioner was based solely on Mr. Taylor's request that she reassign Petitioner to a non-ICA location. At the final hearing, Ms. Flores testified that she had no ADA training. Ms. Flores never talked to Petitioner face-to-face. She did, however, have a basic understanding of the concept of “accommodation” as it relates to disabilities. Ms. Flores recalled a telephone conversation with Petitioner during the time she was looking for reassignments to offer him, in which Petitioner told her he could not walk for a long period of time. Ms. Flores offered Petitioner three positions. She testified: So I first offered him one position, and he turned it down because it was, I believe, too much walking is what I remember. So it was kind of tough at that point, because of the positions at that time required walking, some kind of walking. So I offered him a second position, and the same thing, you know, it was too much walking. Okay. And then I believe this was the last position, Sanctuary by the Sea, and I did tell him it is walking, but to me, it was nothing -- it wasn't too hard. I didn't think it would be too physically hard because it's just walking, you walk at your own pace, you know. It's nothing that I thought would be hard physically on him. So he said okay, I'll give it a try. Indeed, Petitioner accepted the position at Sanctuary by the Sea. He was under the impression that the position would not require much walking. His start date was delayed a day because of car trouble. He showed up for training on the evening of October 28, 2010. In his testimony, Petitioner described what happened that evening: Well, I got out -- I went and parked. He said use -- the guard there said use any parking space, said you'll go down up under the condos and everything to park. I parked there, and he came and got me and we went to the guard shack and everything. I walked in and I got to looking, and I said, dang, you- all got a computer and a TV. He said you ain't got time to do it. I said what do you mean? He said just one round alone is going to take you anywhere from three to four hours to complete. He said you've got to walk this whole facility. I said that's not what they told me. He said, well, someone must have lied to you. He said this whole facility is 33 and a half acres, and he said that is not including going to the beach area and Gulf, you've got to walk the beach. I asked him to specifically tell me what my orders are of what I've got to do. He said it's simple, you've got to walk these grounds here, go to the pool area, walk them, make sure there's nobody down there in the pool that's not supposed to be. I said how do you know that? He said it was pre-sent to you who all has permission to be there. He said your job is that you're going to have to walk the stairwells, and there's five stairwells in this facility, and make sure none of the people have come in through the outside and sleeping in the stairwell. I said okay. He said also you've got to go to each individual condo that is not occupied, and he says you've got to open it up and check it, then you've got to go out to the balcony and make sure there's nobody there, and then you've got to turn around, and he says you've got to climb ladders up to the roof latches. I said what's that for? He said you've got to make sure that nobody has cut the locks off or nobody has broken in through the roof. * * * I went through the training as long as I could, and then my leg gave out on me to where I could not walk anymore. * * * The leg, it had swollen up and it had a split on the corner of where it had split open. * * * I told him [the guard] I'm not going to be able to make this, my leg is gone, I cannot do the work or anything, I cannot walk, I said you need to call Theresa. And he said I agree, and he said I can see that you're in pain right now. We called Theresa and we waited for a response and we never got a response back. I told him I'm going to have to leave, I've got to get this prosthetic off before it swells up to the point where I can't. And when I got home, it was so swollen I had to have my wife literally pull the prosthetic off my leg while I held onto the bed so she wouldn't drag me. Petitioner's testimony was believable and is credited. The next morning, Petitioner spoke to Ms. Flores on the telephone. She told him that she did not have any positions for him that did not require walking. In his testimony, Petitioner explained: I talked to Theresa the next morning. She told me she didn't have anything at that time that I could do and that I was basically useless to her. I told her, I said, well, if you could find something to accommodate me I will take it and everything, but I do have to have overnights and I need something within reasonable driving distance. And that was the last I had any communication with Wackenhut. Consistent with Petitioner's testimony, Ms. Flores's e-mail to Mr. Taylor containing her statement provides in pertinent part: On the night of 10/28, at midnight, I received a missed call from [Petitioner]. I called him back at 10 minutes after midnight with no answer. Immediately after attempting to contact [Petitioner], I received a call from the Officer on duty at the Sanctuary by the Sea. He informed me that [Petitioner] left at midnight and was not going to return. He stated that his reason for leaving was that he was having a hard time walking the property. On Saturday, 10/30, I received a call from [Petitioner], explaining to me what had happened the previous night. He stated that he was having a hard time walking the property, therefore he decided to leave. He also stated he needed to work at a place where he wasn't going to be required to walk. I informed him that almost all of our sites in the Destin area required some walking. The only two positions that required very little walking were at Regatta Bay and Watercolor. I asked him if he would be interested to work at Regatta Bay, being that we had some hours to offer him. He said it was too far. He asked me about Watercolor but there were no openings at Watercolor at the time. At the final hearing, Ms. Flores admitted that Regatta Bay was probably too far away. Mr. Taylor admitted that, in working with Ms. Flores to try to find Petitioner another position, G4S had an obligation to comply with the requirements of ADA and accommodate Petitioner's disability. Mr. Taylor further suggested in his testimony that the job offers made to Petitioner were attempts to accommodate Petitioner. It is clear, however, that they were not. Mr. Taylor admitted that no reasonable accommodation was offered to Petitioner with regard to the position offer at Sanctuary at the Sea. There is otherwise no evidence that Petitioner's disability was accommodated after he was removed from his job at Ponce de Leon. While Mr. Taylor and Mr. Dawson state in their testimonies that Petitioner never requested accommodation, the evidence demonstrates that he did, both prior to and after his removal from his position at the Ponce de Leon rest area. Petitioner's immediate supervisors at Ponce de Leon were aware of Petitioner's disability and allowed him the accommodation of using his private vehicle. Thereafter, Petitioner made it known to Ms. Flores that he could not walk long distances and needed accommodation. The evidence demonstrated that Petitioner's requests for accommodation were ignored. As a result of his attempt to complete his training for the position at Sanctuary by the Sea without accommodation, Petitioner was injured. Without accommodation, Petitioner could not perform the duties of that position or other positions that required a lot of walking. Despite his requests, he was not offered reassignment at locations within reasonable distances where he could perform the duties without much walking or with reasonable accommodation as previously allowed. At the time of the hearing, G4S still had Petitioner listed as an employee and considered Petitioner to be an employee. Although it had knowledge through Petitioner?s supervisors at G4S that Petitioner could satisfactorily perform the essential duties of a rest stop security officer as long as he was allowed to use a vehicle, G4S never again offered Petitioner a position with that accommodation. As a result, Petitioner could not continue to work for G4S and had to seek other employment. On November 8, 2010, Petitioner called the G4S “Employee Concerns Hotline” to complain about the treatment he had received concerning his employment and disability. He later received a call from someone at G4S denying liability, and a follow-up letter from G4S's director of employee relations dated February 14, 2011, thanking Petitioner for utilizing the hotline and stating, “I have been informed that the review of your concern has been concluded and that you have been informed of the subsequent actions.” Approximately two weeks after the night he could not complete his training at Sanctuary by the Sea, Petitioner found part-time work with the Geneva County Sheriff's Office, where he worked until June, 2012. His part-time pay at Geneva County Sheriff's Office was $180.22 per month less than the approximately $1,000 per month he received when last employed at G4S. In addition to his earnings, Petitioner receives Social Security disability benefits. At the final hearing, Petitioner advised that he could not earn more than $1,000 per month and maintain his present level of Social Security benefits. Petitioner also contended at the final hearing that as a result of G4S?s failure to provide reasonable accommodation, he suffered compensatory damages, including medical expenses, mental anguish, pain, and suffering. Relief for those claims, however, is not available in this administrative proceeding. See Conclusions of Law, infra.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order: Finding that Respondent, G4S Secure Solutions, f/k/a The Wackenhut Corporation, discriminated against Petitioner, Keith A. Galloway, in violation of the Act, by failing to accommodate his disability. Ordering Respondent to pay Petitioner $4,595.61 in back pay through the date of this Recommended Order, plus $180.22 per month thereafter through the date of the Commission's final order, with interest accruing on the total amount at the applicable statutory rate from the date of the Commission's final order; Ordering Respondent to reinstate Petitioner to a part- time position, so that Petitioner can earn approximately, but no more than, $1000 per month, in which he is permitted to use a vehicle to perform the essential functions or his job, or is provided with such other reasonable accommodation that will permit Petitioner to perform the essential functions of the job; failing which, Petitioner shall be entitled to an award of front pay from Respondent, taking into account Petitioner's obligation to mitigate by finding other suitable employment. Prohibiting any future acts of discrimination by Respondent; and Awarding Petitioner his costs and a reasonable attorney?s fee. DONE AND ENTERED this 30th day of November, 2012, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 2012.
