The Issue The issue in these cases is whether Respondent failed to provide appropriate emergency care for a nursing home resident in respiratory distress in violation of 42 Code of Federal Regulation (CFR) Section 483.25 and Florida Administrative Code Rule 59A-4.1288. (All references to rules are to rules promulgated in the Florida Administrative Code in effect as of the date of this Recommended Order.)
Findings Of Fact Petitioner is the state agency responsible for licensing and regulating nursing homes inside the State of Florida. Respondent operates a licensed nursing home at 830 West 29th Street, Orlando, Florida (the facility). Petitioner conducted a complaint survey of the facility on September 14, 2001. The survey cited the facility for a deficiency described in F309, and rated the deficiency with a scope and severity of "G" and Class II, respectively. The deficiency classifications authorized in Subsection 400.23(8) range from Class I through Class IV. Class I deficiencies are not relevant to this case. The statute defines the remaining classifications as follows: 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. . . . A Class III deficiency is a deficiency that the agency determines will result in no more than minimal physical, mental or psychosocial discomfort to the resident or has the potential to compromise the resident's ability to maintain or reach his or her highest practicable physical, mental, or psychosocial well-being as defined. . . . A Class IV deficiency is a deficiency that the agency determines has the potential for causing no more than a minor negative impact on the resident. . . . Rule 59A-4.1288 requires nursing home facilities licensed by the state of Florida to adhere to federal regulations found in Section 483 of the Code of Federal Regulations (CFR). In relevant part, Rule 59A-4.1288 provides: Nursing homes that participate in Title XVIII or XIX must follow certification rules and regulations found in 42 CFR 483, Requirements for Long Term Care Facilities, September 26, 1991, which is incorporated by reference. The "G" rating adopted by Petitioner for the scope and severity rating of the deficiency alleged in F309 is a rating authorized in relevant federal regulations. A "G" rating means that the alleged deficiency was isolated. Applicable state law authorizes Petitioner to change a facility's licensure rating from standard to conditional whenever Petitioner alleges that a Class II deficiency exists. Petitioner alleged in the survey report that a Class II deficiency existed at the facility and assigned a conditional rating to the facility's license. The conditional rating was effective September 14, 2001, and continued until substantial compliance was achieved. When Petitioner proves that a Class II deficiency exists, applicable law authorizes Petitioner to impose a civil money penalty. Petitioner filed an Administrative Complaint against Respondent seeking to impose a fine of $2,500.00 and subsequently filed an Amended Administrative Complaint. The allegations on which both the change in license status to a conditional license and the proposed fine are based are set forth in F309. The deficiency alleged in F309 is set forth on CMS Form 2567, entitled "Statement of Deficiencies and Plan of Correction" (the 2567). The 2567 that Petitioner used to charge Respondent with the deficiency described in F309 involved only one resident. In order to protect this resident's privacy, the 2567, F309, the Transcript, and all pleadings refer to the resident as Resident 1. F309 alleges that the facility failed to satisfy the requirement of 42 C.F.R. Section 483.25. In relevant part, the federal regulation provides: Each resident must receive and the facility must provide the necessary care and services to attain or maintain the highest practicable physical, mental, or psychosocial well-being, in accordance with the comprehensive assessment and plan of care. Use F309 for quality of care deficiencies not covered by 483.25(a)-(m). F309 alleges that the facility failed to satisfy the requirement of 42 CFR Section 483.25 because: Based on interview and record review the facility neglected to provide appropriate emergency care for [Resident 1] in respiratory distress and failure. Petitioner promulgates an officially stated policy in written guidelines entitled the State Operations Manual (the Manual). The Manual states agency policy regarding the interpretation and application of the regulatory standards surveyors must enforce. The facility admitted Resident 1 to the pediatric long-term care unit on November 20, 2000. The admitting diagnosis was cerebral palsy, pneumonia and convulsions, a tracheostomy, and a gastrostomy. Resident 1 could breathe on her own and was being weaned from the trach. She could breathe through her nose at times. She was not on a ventilator but could breathe room air. At all times, Resident 1 was making respiratory effort. Resident 1 was on an apnea monitor. Resident 1 had three stomas. Stomas are the openings for the tracheostomy tube. Her throat structures were very frail. She had received numerous throat reconstructions. She had significant scar tissue and a granuloma at her stoma sites. A granuloma is a tumor-like growth. The granuloma was vascular, and the blood vessels were easily broken. Resident 1 was spastic as a result of her cerebral palsy. On September 7, 2001, at 2:50 a.m., Resident 1's apnea monitor alarm sounded. Staff immediately responded to find that Resident 1 had pulled out her tracheostomy tube and was bleeding profusely. Facility staff called 911 and notified the treating physician and the parents. An ambulance was dispatched to the facility at 2:51 a.m. on September 7, 2001. While awaiting the ambulance, the Registered Nurse on duty (RN) could not detect an apical or radial pulse. The RN did not administer CPR. Rather, the RN established an airway by successfully replacing the tracheostomy tube. Securing a patent airway was the first thing that the RN should have done for Resident 1 under the circumstances. No oxygen can be given without a patent airway. It was difficult for the RN to visualize the trach opening because of the profuse bleeding. The RN was able to tactilely reinsert the tube. Vital signs taken by the RN showed that Resident 1 was alive when EMT personnel arrived on the scene. CPR is not appropriate when vital signs are present. The ambulance and EMT personnel arrived shortly after the RN reinserted the trach tube. At 2:56 a.m., EMT personnel took over the care of Resident 1. EMT personnel worked on Resident 1 for 23 minutes before transporting her to the hospital. Resident 1 died at the hospital at 3:35 a.m., 38 minutes after the EMTs took responsibility for her care. EMT personnel generated EKG strips indicating that Resident 1's heart was beating at some point after they took over. Two sets of x-rays subsequently taken at the hospital substantiate that Resident 1 was alive when EMT personnel took over her care. EMT personnel removed the trach the nurse had inserted and replaced it with an endotracheal tube. Removing the trach eliminated the airway that the RN had established for Resident 1 before EMT personnel arrived. The endotracheal tube was 22 centimeters long and significantly longer and larger than the regular trach tube used for Resident 1. The physician's order for Resident 1 stated that nothing should go past 6 centimeters into Resident 1's trach. It took the EMTs three attempts to get the endotracheal tube placed. The EMTs should have hyperventilated Resident 1 before placing the endotracheal tube. They did not do so. The x-ray taken at 3:42 a.m. in the hospital, shows that the endotracheal tube was improperly positioned in Resident 1's lung. All steps taken by the RN were appropriate for Resident 1 under the circumstances. Petitioner failed to show a nexus between any act or omission by the facility and the harm to Resident 1. The care plan for Resident 1 called for suctioning of her tracheal tube. Care plans are to be followed under normal circumstances. Emergency procedures take precedence in critical situations. Suctioning for Resident 1 was appropriate under normal circumstances when she had a patent airway. If Resident 1 did not have an airway, the first priority is to establish an airway. The RN first established a patent airway for Resident 1. It would have been inappropriate for the RN to suction Resident 1 before establishing an airway because it would have sucked out the air remaining in Resident 1's lungs. Suctioning also could have caused a vasovagal response that could stop the heart and could have caused tissue damage. After the RN opened an airway for Resident 1, the next priority would have been for the RN to check for vital signs. The RN checked Resident 1's vital signs after opening an airway, and the vital signs showed that Resident 1 was alive when EMT personnel arrived on the scene. The presence of vital signs made it inappropriate for either the RN or EMT personnel to administer CPR. CPR is appropriate only in the absence of vital signs. When EMT personnel arrived, they continued the same procedure that the RN had followed. EMT first established an airway by removing the trach tube used by the RN and replaced it with an endotracheal tube. The resident had vital signs after placement of the trach and CPR was inappropriate. F282 relates to failure to implement a care plan. Respondent was not cited under F282. Petitioner stipulated in the Prehearing Stipulation that both the conditional license and fine were based on F309 alone.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent not guilty of the allegations in F309 and the Administrative Complaint, dismissing the Administrative Complaint, and changing Respondent's conditional license to a standard license effective September 4, 2001. DONE AND ENTERED this 6th day of September, 2002, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of September, 2002. COPIES FURNISHED: Michael P. Sasso, Esquire Agency for Health Care Administration 525 Mirror Lake Drive, Room 3106 St. Petersburg, Florida 33701 Karen L. Goldsmith, Esquire Goldsmith, Grout & Lewis, P.A. Post Office Box 2011 2180 Park Avenue, North Suite 100 Winter Park, Florida 32790-2011 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 William Roberts, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building Three, Suite 3431 Tallahassee, Florida 32308 Rhonda M. Medows, M.D., Secretary Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building Three, Suite 3116 Tallahassee, Florida 32308
The Issue Was Petitioner's license rating lawfully changed from Standard to Conditional.
Findings Of Fact Cross Creek is a nursing home located in Pensacola, Florida, which is duly licensed under Chapter 400, Part II, Florida Statutes. AHCA is the state agency which licenses and regulates nursing homes in the state. As such, it is required to evaluate nursing homes in Florida, pursuant to Section 400.23(7), Florida Statutes. AHCA evaluates all Florida nursing homes at least every 15 months and assigns a rating of Standard or Conditional to each licensee. In addition to its regulatory duties under Florida law, AHCA is the state "survey agency" which, on behalf of the federal government, monitors nursing homes which receive Medicaid or Medicare funds. On March 8, 2001, an AHCA team completed a survey of the facility. The surveyors included Jackie Klug, Paula Faulkner, Norma Endress, and Sandra Corcoran. All of the surveyors are trained in the business of surveying nursing homes. Ms. Klug is a registered and licensed dietician. Ms. Faulkner is trained in social work. Norma Endress and Sandra Corcoran are registered nurse specialists. Nurse Corcoran was the team leader. Resident 1 Ms. Corcoran observed that Resident 1 had experienced weight loss. This resident was admitted to the facility on July 7, 2000. On October 9, 2000, the resident weighed 115 pounds. In a care planning meeting it was noted that the resident was combative and was refusing to eat. A care plan was not formulated but it was decided that the resident was to be provided a dietary supplement. On January 4, 2001, the resident's weight was 97 pounds. Eventually a care plan was devised which provided for dietary supplements in the form of "shakes." The resident was to consume shakes with meals. On multiple occasions during the survey the facility failed to provide dietary supplements to the resident. This resident could not feed himself and could only consume food which was pureed. The resident could only minimally engage in activities of daily living. Resident 1 had a lung lesion and was expected to lose weight. Despite this expectation, during January, records revealed the resident weighed 103 pounds, in February he weighed 102.3 pounds, and in March he weighed 107.2 pounds. Resident 1 was terminally ill and was being provided what was essentially hospice care. Upon considering all of the circumstances, the resident's weight was satisfactory. Resident 2 Ms. Faulkner observed Resident 2 on two occasions. This resident was totally dependent on the facility staff for feeding. On one occasion during the survey, the resident was provided potatoes which were cold and too hard for her to masticate. On two occasions during the survey, the resident's dentures were not put in her mouth. Ms. Faulkner was concerned with the resident's weight. Interventions which were on the care plan were not consistently provided. For instance, the resident's preferences for various types of food were not considered. Resident 2 was a dialysis patient. Dialysis affects a patient's weight. Patients are typically weighed prior to the administration of dialysis and then are weighed subsequently. In the usual case a weight loss is expected subsequent to dialysis. With regard to this resident, no credible evidence was adduced as to what the resident weighed at any given time. No credible evidence was adduced which would indicate that the resident experienced a weight loss, despite Ms. Faulkner's concerns. Resident 3 Resident 3 was receiving a pureed diet when observed by Ms. Faulkner. The resident ate between 75 and 100 percent of this food. The resident weighed only 87 pounds at this time. The resident was supposed to be fed two "206 shakes" which are supplements designed to promote weight gain. On at least two occasions during the survey, the resident was not provided with these supplements. On March 6, 2001, at 6:35 p.m., Ms. Faulkner observed the resident eating and the resident had not been provided the supplements. Ms. Faulkner informed LPN Pat Nelson, of the facility staff, of the absence of supplements. Nurse Nelson commented that the supplements should have been on the resident's tray. Resident 3 had dirty fingernails and generally was not clean. Moreover, she had multiple bruises and skin tears to the outer ankles. The resident's upper arm had a four centimeter bruise that was reddish brown. This resident was totally dependent on the staff for care. Consequently, Ms. Faulkner concluded that facility staff had caused or permitted the acquisition of these wounds and bruises. Nurse Corcoran observed a wound on the resident's right ankle. She also observed multiple skin tears and bruises on both legs. She also observed an open area on the resident's coccyx. She did not, however, believe that these were pressure sores. Patricia Powell is the assistant nursing director of the facility. She reviewed the medical records of the resident and determined that the resident had been evaluated three different times and that she suffered no skin breakdown. She noted that the resident, at the time of the survey, had been readmitted to the facility subsequent to a hospital stay and that upon readmission, the resident was afflicted with three stasis ulcers including one on her lower left extremity and one on her right lower extremity. Nurse Powell also noted that the resident had bruises on her upper and lower extremities. She stated that the hospital records reflected information from her granddaughter stating that the resident repeatedly bumped herself into the walls in the nursing home and bled from the wounds she received as a result. Nurse Powell stated that hospital records demonstrated that the resident gained weight in 2000. Records at the time of the visit noted that the resident's weight was stable. Linda Gunn is a staff member of the facility and is a LPN. She was a treatment nurse and she was responsible for the care of Resident 3 during times pertinent. She observed that the resident had abrasions and skin tears. She stated that the resident was a fragile patient who required total care. The resident had sores which were caused by vascular problems. Pressure sores were not present. Nurse Gunn checked the resident daily and each time she left the resident she made sure the resident was clean and dry and in a comfortable position. Resident 4 Ms. Faulkner observed Resident 4 during the survey and suspected that the resident might have pressure sores because the resident was not consistently found to have positioning devices which had been determined to be necessary. A record review revealed that the resident had two stage II pressure sores in January of 2001, but that they had healed by the time of the survey. Ms. Faulkner stated that at the time of the survey she observed the resident to have a stage III pressure sore on the right ankle, but she relied on Nurse Corcoran's expertise to make that determination. Ms. Faulkner observed that positioning devices were not used on the resident's legs, as they should have been, on March 1, 5, and 6, 2001. Ms. Faulkner noted that, according to the resident's medical record, the resident often kicked off protective devices and padding. Nurse Powell stated that the resident's medical record reflected that the resident had excoriations on the coccyx and between her leg folds. Excoriation is a break or redness in the skin that is caused by urine or feces. It is not a pressure sore. She also noted that the resident had constant involuntary movements of the left leg against the right leg, and that she was provided padded side rails but the resident removed them. Nurse Powell stated that the resident moved her legs in a scissor-like action all day long and that she removed the side rails, pillows, and foot pads which facility staff used to attempt to ameliorate the damage caused by the leg movement. Ms. Gunn, a staff nurse, also observed the resident frequently. She noted that the resident was diabetic, incontinent of her bowel and bladder, was immobile and needed total assistance to be turned and positioned. She had to be fed and otherwise required total care for all of activities of daily living. Ms. Faulkner additionally observed the resident on March 7, 2001, and noted that during the four times she observed the resident there was no splint or other device or treatment being used to address the resident's contracted right hand. There was no care plan to address this condition. Willa Gilliam is a certified nursing assistant employed at Cross Creek. Specifically she was a restorative aide. It was her duty to provide Resident 4 with range of motion exercises. She accomplished this. After the exercises a towel roll was to be placed inside the resident's hands. Ms. Gilliam placed the towel roll inside of the resident's hands but noted that the resident often removed the towels. Resident 8 Norma Endress is a nurse specialist. She observed Resident 8. The resident was assessed on September 5, 2000, to be at high risk for skin breakdown because he was incontinent of bowel and bladder. The resident was also dependent on staff for turning. The resident had a care plan which required that the resident be removed from bed and placed in a geri chair for positioning. Nurse Endress observed on March 6, 2001, on ten different occasions during the day, that the resident was lying on the resident's left side and was not being turned or placed in the geri chair as the care plan required. On March 7, 2001, the resident was observed to have a stage I pressure area on his right foot, ankle and heel. The resident had no positioning devices or heel protectors in place, as he should. When Nurse Endress inquired as to why the resident was not being put in a geri chair, a staff nurse informed her that the facility had a shortage of geri chairs. Nurse Endress did not see this resident move during the entire four days that she was present at the facility. Nurse Gunn confirmed that the resident required total care and that he was receiving wound care to his heel. She stated that the resident was supposed to be supplied with pillows and a wedge or wedges and that his feet were required to be elevated on pillows. Resident 9 Nurse Endress observed Resident 9 for four days during the survey. This resident had a history of heart problems. The resident was capable of walking when he reached the facility and he did walk. The resident's physician ordered continued ambulation. However, during the four day survey, the resident was not ambulated. The resident reported to Nurse Endress that he had not been walked for the prior three months and stated that he wanted to walk, if facility staff would help him. Nurse Powell stated the patient had diabetes and that the sore on his right foot was a decubitus ulcer caused by vascular insufficiency. The ulcer generated pain when the resident attempted to walk. Accordingly, the staff of the facility did not provide assistance in ambulation to this resident because it would be too painful for the resident. The resident was also required to wear a splint on his right hand to deter contraction. During the survey Nurse Endress visited the resident and observed the splint resting on the foot of the resident's bed. The splint was soiled. On March 5, 2001, Nurse Endress observed the resident five times during the day and at no time was he wearing a splint. Ms. Gilliam was the staff member charged with placing the splint on the resident. She claimed that she was to install the splint at 10:00 a.m. and to remove it at 2:00 p.m. and that she had in fact accomplished this every day. Her testimony, with regard to this, upon consideration of all of the other testimony, is determined not to be credible. Nurse Endress believed that the resident had a stage I pressure sore on his right foot but she was not allowed to touch the resident to actually make a determination that the observed redness was a pressure sore or was present due to some other cause. Resident 10 Resident 10 was observed by Dietician Klug during the survey. During various times the resident was observed sitting in a geri chair which sported duct tape on both armrests. Resident 10 was cognitively impaired and required extensive to total assistance in activities of daily living. The resident could not move from bed to chair, or chair to bed. Consequently this movement was necessarily accomplished by staff. The care plan determined that a minimum of two people be employed to properly transfer the resident. The resident had very fragile skin and was prone to skin tears, bruises and abrasions. On January 22, 2001, the resident experienced a skin tear to the left lateral leg. On February 4, 2001, the resident acquired a skin tear to the right arm. On February 19, 2001, the resident manifested a blood blister to the lower back. On March 5, 2001, a large skin tear to the right lower leg was observed. Ms. Klug said there was no evidence of competency check lists or records of training of staff in the area of transfers. However, there is no evidence in this record that Ms. Klug checked to see what, if any, evidence was available in the facility which might demonstrate that such training had occurred or that there was a deficiency in the training. Despite her belief that the injuries experienced by the resident were the result of rough or inexpert handling by staff, a causal connection was not demonstrated by the evidence. Cleanliness and grooming Ms. Klug observed resident 11 during the survey. At the time of observation the resident had long dirty fingernails and was emitting an unpleasant odor. This caused Ms. Klug to conclude that the resident needed a bath. This resident needed total assistance with the activities of daily living and this assistance was not being adequately provided. Residents F, G, M, and 14 were observed by Nurse Corcoran during the survey. Resident F was sitting in the day room in the morning with dried food smeared upon his mouth. Resident G was sitting in a wheelchair while wearing soiled pants and a soiled shirt. Resident M was seen in the main dining room during one afternoon of the survey and on that occasion the resident's fingernails were long and jagged, and a dark substance was present under the resident's nails. The resident's false teeth were caked with food. Resident 14's hair was greasy and disheveled. Ms. Faulkner observed residents number 3, 4, 21, and 22 to have dirty fingernails and noted that they were, "not clean, in general." Resident 19 Ms. Klug observed Resident 19. This resident was diagnosed with rheumatoid arthritis. Both of her hands were severely contracted. She had received physical therapy from September 26 to October 25, 2000, for the purpose of promoting comfort and preventing further contraction or deformity of her hands. Splints were applied to her hands at that time and the resident could tolerate them for four hours a day. In December 2000, the resident complained that the splints were causing more pain than she could bear. As a result, the use of splints was discontinued. Instead, the resident was to have a washcloth placed in the hands to prevent further deformity. Some members of the therapy staff informed Ms. Klug that the real reason the splints were not being used was because they had gone missing. On March 8, 2001, Ms. Klug interviewed a restorative aid who stated that the resident had not been treated for the prior month. The increase in contraction of the resident's hand resulted in the resident being unable to feed herself. The resident's record reflects that the splints were discontinued due to severe pain secondary to arthritis. A "Restorative Progress Note-Splinting" dated December 2, 2000, states that splints should be discontinued. It further states, that range of motion exercises should continue but, "We'll use washcloth for hand." Based on all of the available evidence of record, it is determined that the resident was receiving the best possible care for her hand contractions. Resident 19 was observed on March 6, 7, and 8, 2001, being fed pureed food. This was contrary to her then current diet order which called for a mechanical soft diet. The resident informed Ms. Klug that she did not like the taste of the pureed diet and claimed that she could masticate sufficiently well to subsist on a mechanically soft diet. Inquiry to the dietary manager revealed that a unit nurse had changed the diet order on December 18, 2000, because the resident had a sore mouth and missing teeth. Between January and March the resident suffered an 11-pound weight loss. The resident weighed 118 pounds in January of 2000. The resident was programmed to maintain a weight of between 113 and 118 pounds but only weighed 104 pounds at the time of the survey. Ms. Klug reviewed documentation in the resident's record which, as recently as March 2, 2001, reflected that the resident had a physician's order for a mechanically soft diet. Through observations and interviews she determined that facility staff were unaware of the discrepancy in the texture of the resident's diet. A change in a diet order, with regard to consistency, may come only from a physician. Resident 21 Ms. Faulkner observed Resident 21 in the resident's bed. She observed the head nurse attempt to do a range of motion on the resident's left hand. This resulted in the resident crying out in pain. The resident's left hand was moist and emitted an odor. Her care plan required interventions to keep her nails cleaned and trimmed and to decrease irritation through her palms. During the survey there were at least two times when the resident had no supportive devices in her hands. Ms. Faulkner discussed this with the facility occupational therapist on March 8, 2001, and the therapist stated that he was unable to splint the resident's hand. Ms. Gilliam was assigned to provide restorative assistance to Resident 21. She noted that after the motion exercises a towel roll was required to be placed in her hand. However, she stated that range of motion was impossible to conduct because of the pain and that the insertion of a towel roll into her hand might result in breaking the resident's fingers. During the time Ms. Gilliam was assigned to resident 21, she observed that her condition had worsened. Resident 22 Resident 22 also had range of motion issues. This resident had contracting of the arm, hand, leg, and foot. Ms. Faulkner sought from the facility a plan of care addressing the contracting of the resident's left hand. Facility staff informed her that none existed. The resident was admitted to the facility with contractures. No evidence was adduced as to whether or not the resident's contractures had become worse because the facility presented no documentation which would permit that determination. Staffing Staffing at the facility was in substantial compliance with AHCA requirements in terms of quantity and training.
Recommendation Based upon the Findings of Fact and Conclusions of Law, RECOMMENDED: That a final order be entered assigning a Conditional license to Petitioner. DONE AND ENTERED this 27th day of December, 2001, in Tallahassee, Leon County, Florida. HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of December, 2001. COPIES FURNISHED: Christine T. Messana, Esquire Agency for Health Care Administration 2727 Mahan Drive Mail Stop No. 3 Tallahassee, Florida 32308-5403 Donna H. Stinson, Esquire Broad and Cassel 215 South Monroe Street, Suite 400 Post Office Drawer 11300 Tallahassee, Florida 32302 Diane Grubbs, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308 William Roberts, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308
Recommendation Revoke the license of Respondent Mary Katherine Mitchell. DONE and ORDERED this 31st day of January 1977 in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Julius Finegold, Esquire 1130 American Heritage Life Building Jacksonville, Florida 32202 Mary Katherine Mitchell, L.P.N. Route 7, Box 314 Milton, Florida 32570
The Issue The issues are whether Respondent committed the violations alleged in the Administrative Complaint concerning three nursing home residents, whether Petitioner should impose a civil penalty of $2,500 for each violation, whether Petitioner should change the status of Respondent's license from standard to conditional, and whether Petitioner should recover investigative costs.
Findings Of Fact Petitioner is the state agency responsible for licensing and regulating nursing homes in Florida. Respondent is licensed to operate an 87-bed nursing home located at 3250 12th Street, Sarasota, Florida (the facility). From February 9 through 11, 2004, Petitioner's staff inspected the facility pursuant to regulatory requirements for an annual survey of such facilities (the survey). At the conclusion of the survey, Petitioner issued a document identified in the record as CMS Form 2567L (the 2567 form). The 2567 form alleges violations of federal nursing home regulations that Petitioner has adopted by rule. The Administrative Complaint incorporates the factual allegations from the 2567 form and charges Respondent with committing four violations alleged to be Class II violations defined in Subsection 400.23(8)(b), Florida Statutes (2003). Counts I through III in the Administrative Complaint allege that facility staff committed acts involving residents identified in the record as Residents 14, 7, and 8. Count IV alleges that the allegations in Counts I through III show that Respondent administered the facility in a manner that violated relevant regulatory provisions. Counts I through IV propose an administrative fine of $2,500 for each alleged violation and the recovery of unspecified investigative costs. Count V alleges that the allegations in Counts I through III require Petitioner to change Respondent's license rating from standard to conditional while the alleged deficiencies remained uncorrected. Count I alleges that a staff nurse at the facility abused Resident 14, an elderly female. The substance of the allegation is that the nurse "intentionally caused pain" to Resident 14 by raising the resident's left hand above her head so the resident would open her mouth and allow the nurse to ensure the resident had swallowed her medication. Respondent admitted Resident 14 to the facility on January 31, 2000, with multiple health problems, including anxiety, paranoia, psychosis, delusions, and disorientation due to dementia. Resident 14 was not ambulatory and suffered poor wheel chair positioning for which she had been evaluated and received therapy. Resident 14 was non-verbal, angry, aggressive, combative with staff and other residents, displayed territorial aggression, and a tendency to strike out at others. Prior to admission, Resident 14 had suffered a fracture of the left arm resulting in a limited range of motion in her left shoulder of 60 degrees. At the time of the survey, Resident 14 was approximately 93 years old. Two surveyors observed a staff nurse administering medication to Resident 14 while the resident was sitting in her wheel chair in her room. Resident 14 did not respond to repeated cues from the nurse to open her mouth so the nurse could ensure the resident had swallowed her medication. The nurse continued to observe Resident 14 for some indication the resident had not swallowed her medication and offered pudding to the resident. Resident 14 remained unresponsive. The nurse directed a certified nurse assistant (CNA) to give Resident 14 breakfast and left to care for other residents. The surveyors asked the nurse to return to the room to ensure that Resident 14 had swallowed her medication. Resident 14 did not respond to additional cues from the staff nurse to open her mouth because the resident was distracted by the surveyors. The staff nurse attempted to redirect the attention of the resident to the nurse's cues to open her mouth by holding the resident's left hand and raising her hand and arm. Resident 14 opened her mouth, and the staff nurse observed no medication in the resident's mouth. The disputed factual issues call into question how quickly and how high the staff nurse raised the left hand of Resident 14, whether the resident suffered pain, and whether the staff nurse knew the action would cause pain. Although Resident 14 was non-verbal, Count I alleges, in relevant part, that Resident 14 cried "OW" when the staff nurse, without warning, raised the resident's hand over her head. A preponderance of evidence does not show that the staff nurse lifted the hand of Resident 14 in an abrupt manner. During cross-examination of the surveyor, counsel for Respondent conducted a reenactment of the alleged incident. The witness verified the manner in which the person acting as the staff nurse in the reenactment raised the left hand and arm of the person acting as Resident 14. The demonstration did not show the staff nurse acted abruptly. The reenactment showed that the description of the incident by the surveyor was less than persuasive. Petitioner admits in its PRO that a determination of whether the staff nurse raised the resident's hand gently or abruptly is a "matter of perspective." Petitioner argues unpersuasively at page 14 in its PRO that the surveyor's perception should be accepted because: Clearly, the surveyor would not have made comment if the resident had been treated in a gentle manner. Petitioner cites no evidence or law that precludes the written statement provided by the staff nurse during the facility's investigation of the incident from enjoying a presumption of credibility equivalent to that Petitioner claims for the report of the surveyor. The staff nurse had been a nurse at the facility for 19 years without any previous complaints or discipline and had ample experience with residents that suffered from dementia. The nurse had cared for Resident 14 for most of the four years that Resident 14 had been a resident at the facility. Irrespective of how fast and high the staff nurse raised the hand of Resident 14, a preponderance of evidence does not show that Resident 14 suffered an injury or harm that is essential to a finding of abuse. The surveyor asked Resident 14 if the resident had been in pain prior to the incident. Resident 14 was "unable to speak," according to the surveyor, but nodded affirmatively. Resident 14 did not indicate the source or location of any pain, and there is no evidence that the surveyor asked Resident 14 to indicate to the surveyor where the resident was experiencing pain. After the incident, the surveyors undertook no further inquiry or investigation, did not question the nurse or the resident further, and refused a request by facility administrators for a written statement describing the incident. The surveyors at the facility did not make a determination of whether the incident resulted in "harm" to Resident 14. Rather, the allegation of harm arises from Petitioner's employees who did not testify at the hearing. The determination of harm is uncorroborated hearsay, and the trier of fact has not relied on that determination for any finding of fact. Upon learning of the incident, Respondent's nursing staff immediately examined Resident 14 for injuries, had Resident 14 examined by her physician, and had Resident 14 x-rayed for possible injuries. No injury was found. Resident 14 did not complain of pain when her physician performed a range of motion examination on the suspect arm. Resident 14 was able to move both of her arms without pain. The medical records for Resident 14 and the testimony of her occupational therapist show that the resident had use of her left arm. Resident 14 frequently flailed both arms in an effort to strike others. Notes in the medical records show that Resident 14 "lashes out," "swings her arms," was "physically abusive to staff when attempting to provide care," and "refused to open mouth and became agitated and combative." The limited range of motion in the left shoulder of Resident 14 did not prevent Resident 14 from raising her left hand above her head while seated in a wheel chair. Resident 14 sat in a wheel chair with a forward pelvic thrust, causing her to slump with a lateral lean to the left. The wheel chair position effectively lowered the resident's head, reduced the distance between her head and left hand, and enabled the resident to raise her left hand above her head without pain. Count II alleges that Respondent failed to assist Resident 7 in "coping with changes in her living arrangements in a timely manner" after Resident 7 became upset that her guardian was selling her home. The allegation is not supported by a preponderance of evidence. Respondent admitted Resident 7 to the facility in September of 2003. Prior to admission, the circuit court for Sarasota County, Florida, entered an order appointing a guardian for Resident 7. In relevant part, the court order authorized the guardian to determine residency of Resident 7 and to manage her property. Prior to December 28, 2003, Resident 7 was reasonably content. Social service's notes in October 2003, show that Resident 7 was "alert with no mood or behaviors." Nurses notes in November 2003, show Resident 7 to be "pleasant" with a "sense of humor." On December 28, 2003, Resident 7 became angry when her guardian revealed plans to sell the resident's home. Resident 7 continued to exhibit anger for several weeks. On January 6, 2004, Respondent conducted a care plan conference with the guardian for Resident 7, discussed Resident 7's emotional state, and obtained the guardian's consent for counseling. Pursuant to the care plan, Respondent's social services staff met with Resident 7 regularly and provided psychological counseling twice a week. Facility staff did not undertake discharge planning for Resident 7. Staff provided other assistance to the resident, but that assistance was minimal and consisted mainly of giving Resident 7 telephone numbers to contact the Long Term Care Ombudsman in the area and the attorney for the guardian. The sufficiency of the other assistance provided by Respondent is not material because the court convened a second hearing to consider the objections of Resident 7 to her guardian and to consider a competency examination by another physician. On February 6, 2004, the court entered an order denying the resident's suggestion of capacity and authorizing the guardian to sell the residence. The allegation that Respondent should have undertaken discharge planning is not supported by a preponderance of the evidence. Pursuant to two court orders, Resident 7 continued to be in need of a nursing home level of care, and her expectations for discharge to a lower level of care were unrealistic. Count III alleges that a facility staff nurse failed to administer analgesic medication to Resident 8 causing "continued pain and emotional stress to the resident." Resident 8 experienced chronic pain from a joint disorder. A care plan for pain management, in relevant part, authorized Tylenol as needed. A preponderance of evidence does not show that Respondent failed to provide Tylenol to Resident 8 in accordance with the care plan. During the survey, a surveyor observed staff at the facility reinserting a catheter into a vein of Resident 8. The witness for Petitioner testified that the procedure did not cause Resident 8 to experience pain. It is undisputed that Resident 8 did not request pain medication and that no pain medication was medically required prior to the procedure. Respondent did provide Resident 8 with a prescription medication to calm the resident. The preponderance of evidence does not show that Respondent failed to ensure that Resident 8 obtained optimal improvement or that Resident 8 deteriorated. Petitioner submitted no evidence that Resident 8 experienced any lack of improvement or decline in functioning or well-being. Count IV in the Administrative Complaint alleges that the allegations in Counts I through III show that Respondent failed to administer the facility in a manner that enabled the facility to use its resources effectively and efficiently to maintain the highest practical well-being of Residents 14, 7, and 8. For reasons previously stated, the preponderance of evidence does not show that Respondent committed the acts alleged in Counts I through III. Without the violations charged in Counts I, II, or III, the charges in Count IV are moot. Assuming arguendo that the staff nurse abused Resident 14, a preponderance of evidence does not show that Respondent failed to take action that could have prevented such abuse. Petitioner's surveyor was unable to explain in her testimony how Respondent could have prevented the alleged abuse. The surveyor did not report the incident to management at the facility for approximately 1.5 hours. Management immediately suspended the staff nurse and undertook an investigation required by law. Petitioner's surveyors refused to provide written statements describing the incident. The staff nurse provided a written statement that Respondent included as part of its investigation and report to Petitioner. Respondent maintains adequate policies and procedures for background screening and regular training for its staff relating to abuse and neglect of residents. Respondent had accomplished all background screening and abuse training requirements for the staff nurse involved in the incident. Respondent had no information in the nurse's history that would have enabled the facility to predict any potential for this staff nurse to intentionally harm a resident. A preponderance of evidence does not show that Respondent failed to administer the facility in a manner that would ensure the highest practical well-being for Resident 7. Two court orders determined that Resident 7 was incompetent and authorized the guardian to sell the resident's real property. The opinion of a surveyor that Resident 7 was "clearly competent" does not eviscerate the findings of the court. A preponderance of evidence does not show that Respondent failed to administer the facility in a manner that would ensure the highest practical well-being for Resident 8. Respondent maintained an adequate pain management care plan for Resident 8 that included Tylenol as needed. It is undisputed that the care plan did not require Tylenol before or after the re-insertion of the catheter into the vein of Resident 8, that insertion of the catheter caused Resident 8 no pain, that Tylenol was not medically required before or after the procedure, and that Respondent provided Resident 8 with a stronger prescription medication for anxiety. Count V of the Administrative Complaint alleges that the allegations in Counts I through IV require Petitioner to change the status of Respondent's license from standard to conditional. In the absence of the violations charged in Counts I through IV, there is no factual basis to support the proposed change in the status of Respondent's license.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent not guilty of committing the violations charged in the Administrative Complaint. DONE AND ENTERED this 4th day of February, 2005, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 2005. COPIES FURNISHED: Alfred W. Clark, Esquire 117 South Gadsden Street, Suite 201 Post Office Box 623 Tallahassee, Florida 32302-0623 Gerald L. Pickett, Esquire Agency for Health Care Administration Sebring Building, Suite 330K 525 Mirror Lake Drive, North St. Petersburg, Florida 33701 Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration Fort Knox Building, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308 Alan Levine, Secretary Agency for Health Care Administration Fort Knox Building, Suite 3116 2727 Mahan Drive Tallahassee, Florida 32308
The Issue Whether Respondent committed the violations alleged in the Administrative Complaints and, if so, what penalty should be imposed.
Findings Of Fact AHCA is the agency responsible for the licensing and regulation of skilled nursing facilities in Florida pursuant to Chapter 400, Part II, Florida Statutes, and Chapter 59A-4, Florida Administrative Code. At all times material hereto, Oakwood was licensed by Petitioner as a skilled nursing facility. Oakwood operates a 120-bed nursing home located in Eustis, Florida. From June 19 through July 1, 2002, Dorothy Mueller, who at the time was employed by AHCA as a Registered Nurse Specialist, conducted a complaint investigation at Oakwood. She received the complaint from Florida Protective Services of the Department of Children and Family Services (DCFS). Ms. Mueller is Surveyor Minimum Qualification Test (SMQT) qualified. She is currently licensed as a registered nurse in Florida but retired from AHCA in December 2002. Ms. Mueller began the complaint investigation on June 19, 2002. She announced her visit to the facility's administrator, observed residents, interviewed staff, and reviewed records. She requested a sampling of residents' records. The sample she reviewed included the record of Resident D.R. During the course of the complaint investigation, Ms. Mueller did not interview Resident D.R. as she had already been discharged from the facility. Ms. Mueller examined Resident D.R.'s care plans, assessments, nursing notes, and wound care. Nurse Mueller was specifically looking for whether anyone at Respondent's facility was actually looking at the skin of Resident D.R.'s heels because Resident D.R. was wearing TED hose. Because Resident D.R. was at risk for developing pressure sores, Ms. Mueller was concerned that she found no specific preventative measures taken by the facility to help prevent the development of pressure sores on Resident D.R.'s heels.1/ In determining her findings, Ms. Mueller took into consideration the findings of the person from DCFS who had filed the complaint that caused AHCA to send Ms. Mueller to investigate. Additionally, Ms. Mueller also took into consideration notes from Resident D.R.'s family physician and statements he made to her regarding the condition of Resident D.R.'s heels two days after her discharge from Oakwood.2/ Based on Ms. Mueller's findings during this complaint investigation, federal tag F224 was cited against Oakwood. Resident D.R. was admitted to Oakwood on February 24, 2002, following a four-day hospitalization for hip surgery due to a fall at her home which resulted in a hip fracture. Resident D.R.'s hospital records reveal the development of a skin ulcer in her sacral area the morning of February 23, 2002, and that the ulcer worsened before Resident D.R.'s discharge from the hospital on February 24, 2002. Upon admission to Oakwood, Resident D.R. was assessed by Dorothy Gilbert, a Registered Nurse employed by Oakwood. Nurse Gilbert's full skin assessment of Resident D.R. noted two skin ulcers on Resident D.R.'s sacral area with no other skin breakdown. Nurse Gilbert noted that Resident D.R.'s heels were "soft nonreddened." According to Nurse Gilbert, that notation meant that the skin on Resident D.R.'s heels was normal, intact, nonreddened and showed no deterioration. The nurse's assessment form contains a diagram of a person showing front and back with the following instruction: "Skin: Indicate on diagram below all body marks such as old or recent scar, bruise, discoloration, laceration, amputation, decubitus ulcer, and any other questionable marking(s) considered other than normal." Nurse Gilbert made detailed notations and drawings on the diagram indicating any and all skin breakdown of Resident D.R. The foot area of the diagram contained no notation or drawing indicating any skin breakdown on Resident D.R.'s feet upon admission to Oakwood. Another page of the nurse's assessment form is entitled "Braden Scale-For Predicting Pressure Sore Risk." Nurse Gilbert gave Resident D.R. a score of 14 which identified her to be at moderate risk for pressure sores or ulcers. She was at risk for skin breakdown over her entire body, not just her heels, and her care plan accounted for this. Resident D.R. was wearing TED hose at the time of admission and wore them throughout her stay. TED hose are anti- embolism stockings typically used following surgery to enhance blood flow and prevent clotting. Resident D.R. was a petite, elderly woman weighing 83 pounds. Appropriate assessments and interdisciplinary care plans were developed for Resident D.R., including for her existing skin ulcers also referred to as sores or wounds. During Resident D.R.'s stay at Oakwood, one of her existing sacral skin wounds improved and the other wound healed. She received daily wound treatment by the nurses on duty and the wound care nurse measured her ulcers and assessed her skin each Thursday. Cynthia Burbey is an Licensed Practical Nurse employed by Oakwood. She observed Resident D.R.'s heel condition usually every day when she gave her treatment for wound care on her coccyx, and on her shower days which occurred twice a week. While the Certified Nurses Assistants (CNAs) give showers to the residents, the nurses follow the bathing of the resident with a body check/body assessment. Nurse Burbey never saw any skin deterioration on Resident D.R.'s heels, including the day Resident D.R. was discharged. At the time of the discharge, Nurse Burbey did a body assessment from head to toe of Resident D.R. and did not observe any skin deterioration on Resident D.R.'s heels. The CNAs at Respondent's facility play a significant role in observing skin condition and are to report any change in skin condition to the nurses. In addition to their role in observing skin condition at bath time, the CNAs repositioned Resident D.R. every two hours and assisted her in and out of bed each day. She was completely dressed and undressed each day by her attending CNAs who would remove her TED hose and change them. Pressure on skin over bony areas is a primary cause of pressure ulcers or bed sores. Resident D.R. received a variety of services and devices during her stay at Oakwood aimed at reducing the likelihood of bed sores, including knee wedges for both her bed and wheelchair, calf pads for her wheelchair, a pressure reducing mattress, and physical therapy. Because of her petite size, the knee wedge used for her bed resulted in Resident D.R.'s heels being "floated" off her mattress. Resident D.R., also received physical therapy services including range of motion exercises while at Oakwood. The range of motion exercises for her lower extremities would have provided her therapists and restorative aids an opportunity to detect evidence of skin breakdown on her heels, because her heels were touched by the therapists or aides during these exercises. While Resident D.R. wore socks for these therapies, the therapists and aides saw no evidence of staining on her socks, which often happens from drainage from a heel wound, or any evidence that their touching her heels resulted in any pain to Resident D.R. The restorative aides provided Resident D.R. with range of motion exercises six days a week, including the day before her discharge from Respondent's facility. The initial nursing assessment indicating "heel soft, nonreddened" raised Ms. Mueller's concerns that there was no care specifically directed toward Resident D.R.'s heels. However, there is no competent evidence that Resident D.R. had heel wounds either upon admission or which developed during her stay at Oakwood. Accordingly, there was no reason for Oakwood to have a skin care plan specifically addressing Resident D.R.'s heels, particularly in light of the fact that Oakwood had a skin care plan in place for Resident D.R. which was followed. Further, during cross examination, when asked whether the phrase "heel soft nonreddened," was an indicator that Resident D.R. had a problem with her heel, she acknowledged, "I would have to answer yes and no to that." AHCA 's charge of failure to have due diligence taken to prevent, subsequently detect if the condition could not be prevented, and then provide appropriate care and treatment for avoidable bilateral pressure ulcers is based solely on hearsay evidence. AHCA's sole witness, the surveyor who conducted the complaint investigation, never observed Resident D.R. at any time, either in Respondent's facility or after her discharge. The evidence presented does not establish that Oakwood failed to have due diligence to prevent, subsequently detect if the condition could not be prevented, and then provide appropriate care and treatment for bilateral pressure sores. There is no competent proof that any heel sore developed on Resident D.R.'s heels while a resident at Oakwood. Moreover, the evidence shows that the nursing staff appropriately addressed the skin care needs of Resident D.R.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Agency for Health Care Administration enter a final order dismissing the Administrative Complaints issued against Respondent, Oakwood Center. DONE AND ENTERED this 21st day of March, 2003, in Tallahassee, Leon County, Florida. BARBARA J. STAROS 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 21st day of March, 2003.
The Issue The issue for determination is whether Respondent committed violations of Section 468.1755, Florida Statutes, as alleged in an Administrative Complaint dated October 7, 1988, and if so, what discipline should be taken against his nursing home administrator's license.
Findings Of Fact Respondent, Robert Allen Maurer, is a licensed nursing home administrator, holding State of Florida license number NH 0002026. He is currently employed by Central Park Lodges, Inc., as a corporate administrator out of the corporate offices in Sarasota, Florida. From July 19, 1985, until February 9, 1989, Robert Maurer was the administrator at Central Park Lodges' retirement center and nursing home facility, Central Park Village, in Orlando, Florida. On April 28, 29 and 30, 1986, Grace Merifield and other staff from the Department of Health and Rehabilitative Services (HRS) Office of Licensure and Certification conducted their first annual inspection of Central Park Village. Ms. Merifield is an RN Specialist and licensed registered nurse. Ms. Merifield found several licensing rule violations, including the following, and noted them on a deficiency report form: NURSING SERVICES NH127 3 of 3 bowel or bladder retraining program patients charts reviewed lacked documentation of a formal retraining program being provided. The documentation lacked progress or lack of progress towards the retraining goal, ie., in the care plan, nurses notes or the monthly summaries. 10D-29.l08(5)(b), FAC, Rehabilitative and Restorative Nursing Care. DIETARY SERVICES NH193 1) Stainless steel polish containing toxic material was observed in the dishwasher area. Bulk ice cream and cartons of frozen foods were stored directly on the floor in the walk-in freezer. 10D-29.110(3)(g)1, FAC, Sanitary Conditions INFECTION CONTROL NH448 Infection control committee had not insured acceptable performance in that the following was observed: After a dressing change the nurse failed to wash her hands; three nurses failed to cover the table they were working off, one nurse used the bedstand along with the syringe for a tube feeding resident and returned the supplies to medical cart or medical room, cross contaminating the supplies. Floors of utility rooms were observed with dead bugs unmopped for two days of the survey. Syringe unlabeled and undated. Urinals and graduates unlabeled. Clean linen placed in inappropriate areas and soiled linen on floors, laundry bucket overflowing being pushed down the hall. 10D-29.123(2), FAC, Infection Control Committee (Petitioner's Exhibit #3) During the survey, Robert Maurer, as Administrator, and other nursing home staff met with the inspection team, took partial tours with them and participated in exit interviews, wherein the deficiencies were cited and recommendations were made for corrections. The infection control deficiencies required immediate correction, the dietary services deficiencies required correction by May 5, 1986, and the other deficiencies were to be corrected by May 30, 1986. On July 14, 1986, Ms. Merifield returned to Central Park Village for reinspection and found that most of the violations had been corrected. These, however, still remained: Stainless steel polish containing toxic materials was found in the dishwashing area, a violation of Rule 10D-29.110(3)(g)(1), Florida Administrative Code; Bulk ice cream and frozen food was stored directly on the floor in the walk-in freezer, and one of the five gallon ice cream container lids was completely off, exposing the ice cream, a violation of Rule 10D-29.110(3)(g)(1), Florida Administrative Code; Three out of three bowel or bladder retraining program program charts of residents reviewed lacked documentation, from all shifts of nurses, of a formal retraining program where progress or a lack of progress should be documented, a violation of Rule 10D-29.108(5)(b), Florida Administrative Code; The infection control committee had not insured acceptable performance, a violation of Rule 10D-29.123(2), Florida Administrative Code, in that: two nurses failed to properly cover the bedside table they were working from and cross contaminated dressing supplies; urinals and graduates were unlabeled; clean linen was placed in inappropriate areas, soiled linen was in the bathroom basin, and laundry buckets were overflowing with soiled linens in two utility rooms. After the survey in April, the facility was given a conditional license. That was changed to a standard license in October, 1986, when another inspection was conducted and no deficiencies were found. The following April, in 1987, the facility was given, and still maintains, a superior license. All of the deficiencies noted in April and July 1986 were class III, the least serious class of deficiencies, denoting an indirect or potential threat to health and safety. Deficiencies in Classes I and II are considered life-threatening or probably threatening. The number of deficiencies found at Central Park Village was not unusual. After the April inspection and before the July inspection, Robert Maurer took steps to remedy the deficiencies. Although the staff already had in-service training, additional training was given. Mr. Maurer met with the food service director and was told that a delivery had been made the morning of inspection, but that items had not been placed on the shelves by the stockman. Some of the food items had been left out to be discarded. Prior to the case at issue here, no discipline has been imposed against Robert Maurer's nursing home administrator's license.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED That a final order be entered finding Respondent guilty of a violation of Section 468.1755(1)(m), F.S., with a letter of guidance from the Probable Cause Panel of the Board. DONE AND RECOMMENDED this 11th day of October, 1989, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of October, 1989. APPENDIX The following constitute specific rulings on the findings of fact proposed by the parties: PETITIONER'S PROPOSED FINDINGS 1. and 2. Adopted in paragraph 1. Adopted in paragraph 2. Adopted in paragraph 3. Adopted in part in paragraph 5. Some of the deficiencies had to be corrected before the 30-day deadline. and 7. Adopted in paragraph 6. RESPONDENT'S PROPOSED FINDINGS Adopted in paragraph 1. Adopted in part in paragraph 1. Petitioner's exhibits #1 and #2 and Respondent's testimony at transcript, pages 54 and 55, establish that he was administrator from 1985-1989. Adopted in paragraph 2. Adopted in paragraph 6. Rejected as inconsistent with the evidence, including Respondent's testimony. Adopted in paragraph 6. Rejected as contrary to the evidence. Adopted in paragraph 9. through 11. Rejected as contrary to the weight of evidence. 12. and 13. Adopted or addressed in paragraph 8. 14. and 15. Adopted in paragraph 7. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Victoria Raughley, Esquire Dept. of Professional Regulation 1940 N. Monroe St., Suite 60 Tallahassee, FL 32399-0792 R. Bruce McKibben, Jr., Esquire P.O. Box 10651 Tallahassee, FL 32302 Mildred Gardner Executive Director Dept. of Professional Regulation Board of Nursing Home Administrators 1940 N. Monroe St., Suite 60 Tallahassee, FL 32399-0792 Kenneth E. Easley, General Counsel Dept. of Professional Regulation 1940 N. Monroe St., Suite 60 Tallahassee, FL 32399-0792
The Issue Whether the Respondent's license as a skilled nursing facility should have been changed to conditional effective January 28, 1998, and March 30, 1998.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Agency for Health Care Administration is the state agency responsible for licensing and regulating the operation of nursing home facilities. Chapter 400, Part II, Florida Statutes (1997). Edgewater Manor, located at 9555 Southeast Federal Highway, Hobe Sound, Florida, is a 120-bed facility licensed to operate as a nursing home pursuant to the provisions of Chapter 400, Part II, Florida Statutes, and the rules found in Chapter 59A-4, Florida Administrative Code. Edgewater Manor also participates in the federal Medicare and Medicaid programs. Edgewater Manor was rated superior from 1991 through 1994, and in 1997; it was rated standard in 1995 and 1996. The Agency conducted a survey of Edgewater Manor with an exit date of January 28, 1998, for the purpose of determining the degree of compliance with the applicable criteria. As a result of the January 28, 1998, survey and insofar as is relevant to the instant proceeding, the Agency cited Edgewater Manor for two violations relating to the quality of care provided its residents, classified the violations as Class II deficiencies, assigned Edgewater Manor a conditional rating, and issued Edgewater Manor a conditional license effective January 28, 1998, through February 28, 1998. The Agency conducted a follow-up survey with an exit date of March 30, 1998. The two Class II deficiencies identified during the January 28 survey had been corrected, but Edgewater Manor was cited for another violation relating to the quality of care provided its residents, and the new violation was classified as a Class II deficiency. A conditional rating was assigned, and a conditional license was issued effective March 30, 1998, through February 28, 1999. A follow-up survey was conducted on June 4, 1998, and the Agency found that all previously cited deficiencies had been corrected, a standard rating was assigned, and a standard license was issued. When the Agency prepares to conduct a compliance survey of a nursing home, a team of surveyors is selected, which meets and reviews documentation which includes the facility's history of deficiencies and its resident census. The team then takes an orientation tour of the facility, led by a staff member. After the orientation tour, the team selects its Phase I sample of residents to review; the Phase I review includes both comprehensive and focused reviews. A focused review is conducted when the team selects a particular resident with certain identifiable conditions which fall within the team's areas of concern. After the Phase I review is completed, a Phase II review is conducted, in which the team performs only focused reviews of particular residents. After the facility survey is completed, the team meets to discuss the results of the investigation and to evaluate the results to determine if the nursing home is in compliance with the applicable statutes, rules, and regulations. Violations are assessed in accordance with the criteria set forth in the State Operations Manual, which is published by the federal Health Care Financing Agency and provides guidance to state surveyors in interpreting and applying the federal rules and regulations applicable to nursing homes. The State Operations Manual, Guidance to Surveyors, includes "tag numbers" corresponding to provisions of the rules found in Title 42, Chapter 483, Code of Federal Regulations. In the State Operations Manual, a "tag number" is assigned to each provision of the federal rules, and the intent of the rule provision is set forth, together with guidelines, procedures, and probes which are to be used by the state surveyors in determining whether a particular rule provision has been violated. The parties stipulated that the deficiencies cited in the surveys were based on violations of tag F223, corresponding to Title 42, Section 483.13(b) Code of Federal Regulations; tag F224, corresponding to Title 42, Section 483.13(c)(1)(i), Code of Federal Regulations; tag F225, corresponding to Title 42, Section 483.13(c)(1)(ii), Code of Federal Regulations; tag F250, corresponding to Title 42, Section 483.15(g), Code of Federal Regulations; and tag F314, corresponding to Title 42, Section 483.25(c)(1) and (2), Code of Federal Regulations. Unfortunately, neither party offered into evidence the reports of the surveys referenced herein, in which the factual bases for each violation were set out. Accordingly, for purposes of the findings of fact herein, the specific nature of the violations alleged against Edgewater Manor could only be derived from the testimony of the two Agency surveyors who testified at the hearing. DOAH Case No. 98-1270: January 28, 1998, survey Resident 34 With regard to Resident 3, the Agency cited Edgewater Manor for a Class II deficiency based on violations of tag F223, tag F224, tag F225, and tag F250, as a result of the January 28, 1998, survey. The tag F223 violation is associated with the requirement of Title 42, Section 483.13(b), Code of Federal Regulations, that residents of long-term care facilities have the right to be free from abuse. The tag F224 violation is associated with the requirements of Title 42, Section 483.13(c)(1)(ii), (iii), and (2) through (4), Code of Federal Regulations, that a facility must develop and implement policies to prohibit abuse, neglect, and mistreatment, and not use abuse to control its residents. The tag F225 violation is, in this case, associated with the requirements of Title 42, Section 483.13(c)(2), (3), and (4), Code of Federal Regulations, that facility staff must report and investigate suspected abuse, neglect, or mistreatment. The tag F250 violation is associated with the requirement in Title 42, Section 483.15(g), Code of Federal Regulations, that a facility must provide social services to maintain the well-being of the residents. Resident 3 became a resident of Edgewater Manor on September 24, 1990. His diagnoses as of September 1992 included organic mental syndrome, arteriosclerotic heart disease, chronic obstructive pulmonary disease, dementia, Parkinson's disease, and depression. At the time at issue herein, Resident 3 lived in Room 124, which is in Edgewater Manor's Protective Care Unit. He had lived in Room 124 for quite a while before the unit where that room was located was converted to the locked Protective Care Unit. When asked before the conversion if he wanted to move to another unit, he chose to remain in Room 124. In the opinion of Janice Bey, Edgewater Manor's Director of Nursing, he was appropriate for the unit because he had been diagnosed with dementia secondary to Parkinson's disease. In 1997 and 1998, Resident 3's thought processes were impaired as a result of the dementia associated with Parkinson's disease, which was by that time in an advanced stage. In four Minimum Data Sets (comprehensive assessments) completed for Resident 3 from April 1997 through December 1997, it was noted that he was capable of independently making decisions regarding the tasks of daily life; that his short- and long-term memory was "OK"; that he had no indicators of periodic disordered thinking or awareness; and that he consistently exhibited inappropriate behavior but that the behavior was easily altered. Socially inappropriate behavior, as used in the Minimum Data Set, includes sexual behavior. At the time at issue herein, Resident 3 walked with a shambling gait, and his ability to ambulate was impaired by spasticity associated with Parkinson's disease. Numerous entries in the Nursing Care Notes for Resident 3 reflect that he was found on the floor of his room or in the hall after falling or losing his balance and sliding down the wall to the floor. He suffered from obvious tremors in his hands, which increased in severity when he was agitated or excited. Resident 3 was treated with Sinemet for his Parkinson's disease, a drug which has a noted side-effect of hypersexuality. He was referred for a psychiatric consultation in 1995 because he exhibited inappropriate sexual behavior. At the time at issue herein and notwithstanding the assessment included in the Minimum Data Set, Resident 3 was observed to experience periods of confusion regarding time and place, even though, at various times during the day, he appeared oriented as to time, place, and person. He was capable of independently making decisions concerning the basic activities of daily living, such as when to eat, when to sleep, and when to go to the bathroom. Resident 3 was not, however, able to make decisions requiring the exercise of judgment because, as a result of his dementia and impaired cognitive ability, he could not evaluate the consequences of such decisions. Resident 3 acted primarily to fulfill his basic needs. Inappropriate sexual behavior involving staff. Entries in the Nursing Care Notes maintained for 1997 and early 1998 by the nurses on the Protective Care Unit and in the Social Progress Notes maintained for the same time period by Edgewater Manor's social services director document a number occasions on which Resident 3 engaged in inappropriate sexual behavior toward female staff. According to the reports, this behavior was directed especially at certified nursing assistants and occurred primarily as they provided direct care. Resident 3 reportedly attempted to kiss the certified nursing assistants, grabbed at and actually grabbed their breasts and other private parts, pinched their buttocks, and exposed himself and masturbated in front of them. Resident 3 reportedly cornered one certified nursing assistant in his room, and she had to crawl over his bed to escape. Instances involving such behavior directed to staff were noted to have occurred on December 11, 1996; on January 9, February 11, March 6, July 8, August 29, and December 30, 1997; and on January 24, 1998. Inappropriate behavior toward staff members was also noted in the 1997 monthly summaries included in the Nursing Care Notes for March, April, May, June, July, August, September, October, and December. Kelly Streich, the social services director at Edgewater Manor, was notified of some of the instances of inappropriate sexual behavior involving staff. She was notified of an instance involving staff which took place on December 11, 1996, and she responded by notifying Resident 3's sister-in-law and requesting that her husband, Resident 3's brother, talk with him about the behavior. The sister-in-law suggested that Resident 3 should be seen by his physician and by a male psychologist. According to Ms. Streich's notes, Resident 3 denied that his behavior towards staff was serious. On December 18, 1996, Ms. Streich noted a nurse's report that Resident 3 had not exhibited any inappropriate sexual behavior since December 11 and that, in the nurse's opinion, a psychological consultation was not necessary. Later on December 18, Ms. Streich reported that Resident 3 was seen by his physician and promised that he would not make sexual advances to the staff in the future. Resident 3 was not seen by a psychologist at this time due to his promise that he would stop engaging in offensive behavior. After being notified of the behavior involving staff which occurred January 9, 1997, Ms. Streich again notified Resident 3's family and his physician. She also reviewed Resident 3's care plan and modified it to provide that she continue to monitor Resident 3 and to make one-to-one visits and provide counseling. Primarily, however, Ms. Streich determined that staff should continue to discourage Resident 3's inappropriate sexual behavior and that his physician should speak with him again. Resident 3's annual review was completed in April 1997. In her notes, Ms. Streich reported that Resident 3's cognitive status remained the same and that he was alert and oriented as to time, place, and person. She described Resident 3 as "isolative" and noted that he preferred watching television in his room to interacting with other residents. Ms. Streich also observed that he continued to have episodes of inappropriate sexual behavior and that the staff continued to discourage this behavior. Ms. Streich testified that she should also have noted that Resident 3 sometimes exhibited confused thought processes. In the care plan developed as a result of this annual review and dated April 11, 1997, it was noted that Resident 3 had difficulty with "individual coping" which was "evidenced by inappropriate sexual behavior related to Cognitive impairment." The interventions identified in the care plan to reach the stated goal that Resident 3 would "not exhibit inappropriate sexual gestures to staff by next review," included the following: Be firm but gentle when correcting resident's inappropriate sexual behavior Monitor & document inappropriate behavior Discourage all inappropriate behavior of resident with staff Provide 1:1 individual visits In an entry dated June 25, 1997, Ms. Streich observed as part of her quarterly review of Resident 3's care plan that he continued to exhibit inappropriate sexual behavior. She further noted: "Staff continues to tell him this behavior is unacceptable." Ms. Streich determined that the care plan did not need to be changed and that she would continue to provide one-to- one supportive visits. In her quarterly review recorded September 20, 1997, Ms. Streich noted that Resident 3 "occasionally display[ed] inappropriate sexual gestures." Ms. Streich determined that no changes were needed to his care plan and that staff should continue to discourage Resident 3's inappropriate sexual behavior. In her quarterly review recorded December 19, 1997, Ms. Streich noted that Resident 3 "continues to be inappropriate at times sexually - displays gesture to direct care staff." She recommended that no change be made to his care plan and indicated that her one-to-one supportive visits would continue and that appropriate behavior would be reinforced. Inappropriate sexual behavior toward staff in a long- term care facility, and especially in a protective care unit for patients suffering from dementia, is not unusual. Edgewater Manor had guidelines directing staff how to handle residents who engaged in inappropriate sexual behavior and provided its staff with in-service training for avoiding and redirecting this behavior. Inappropriate sexual behavior with residents. The Nursing Care Notes and Social Service Notes document instances of Resident 3's sexual behavior involving female residents of the Protective Care Unit. The Agency surveyor was particularly concerned with reports of Resident 3's behavior with three residents of the Protective Care Unit, Resident 18, Resident 19, and Resident 20. Resident 18 When Resident 18 was admitted to Edgewater Manor on June 16, 1997, she was an eighty-five-year-old widow who suffered from Alzheimer's disease. She had short- and long-term memory problems and was moderately impaired in her ability to make decisions regarding activities of daily living. Resident 18 was ambulatory and was very social and outgoing, appearing to enjoy interacting with others, especially men, and she would sometimes escort other residents to her room for conversation. Ms. Streich reported in the Social Service Notes for Monday, June 30, 1997, that, on the previous Friday and Saturday nights, Resident 18 was found in her room with Resident 3 in what were described in Ms. Streich's notes as "various sexual positions." Both Resident 3 and Resident 18 were lying fully clothed in Resident 18's bed during these encounters. On both occasions, Resident 18 resisted when staff separated them. Ms. Streich did not personally observe the encounters, and she did not interview the nurse reporting the encounters to learn what was meant by "various sexual positions." Ms. Streich contacted H. F., Resident 18's daughter, on June 30 regarding her mother's behavior and asked that the family decide if staff should continue to separate Resident 3 and Resident 18 should they attempt to engage in any further intimate contact.5 In her notes dated July 1, 1997, Ms. Streich reported that Resident 18's family had decided that Resident 3 and Resident 18 should be allowed to continue their relationship. A note was added to Resident 3's care plan by the care plan team that "condoms available from floor nurse," and an addition was made to Resident 18's care plan on July 7, 1997, by the care plan team, to address "DESIRE FOR AN INTIMATE RELATIONSHIP WITH ANOTHER RESIDENT." The care plan provided that Resident will participate in a safe sexual encounter as she wishes. Provide resident with a safe, private room Provide condoms on request Family will be kept aware of situation Condoms available from floor nurse. In H. F.'s opinion, her mother might have Alzheimer's disease and be forgetful, but she still has her personality and would not do anything she did not want to do. H. F. believed at the time at issue herein that her mother was capable of consenting to intimate contact, including sexual intercourse. Although H. F. believed it absurd to think that her mother would want to have sexual intercourse, she also thought it was responsible of Edgewater Manor to include in her mother's care plan a provision that she should be provided with condoms on request. Ms. Bey was notified of the encounters between Resident 3 and Resident 18 which had taken place on June 27 and 28, 1997. She spoke with staff about the encounters and concluded that there had not been an incident of abuse involving Resident 3 and Resident 18. The term "incident" is defined in the long-term care context as "any unusual happening in a facility that deviates from day-to-day normal activities or anything that results in an injury." Ms. Bey does not believe that sex is an unusual activity, and, in her opinion, Resident 18 was capable of refusing to do anything she did not want to do. Ms. Bey did not conduct an investigation beyond speaking with staff, and she did not notify the facility administrator of the encounters between the two residents. Ms. Bey concluded as a result of her investigation that no abuse had occurred, and, accordingly, no incident and accident report was completed by the facility, nor were the encounters between Resident 3 and Resident 18 reported to Florida's Abuse Registry. The encounters between Resident 3 and Resident 18 were also investigated by the Assistant Director of Nursing, Sherree Montero. Ms. Montero interviewed both staff who had observed Resident 3 and Resident 18 together on June 27 and 28 and staff who had heard about the encounters from other staff. Ms. Montero concluded that there was no evidence that Resident 3 had sexually abused Resident 18. Resident 3 and Resident 18 apparently abandoned their relationship after their first two encounters because there are no further reports of their engaging in sexual conduct, and neither ever requested condoms. On the basis of the information contained in the nursing and social service notes and of the information she obtained through interviews, the Agency surveyor concluded during the survey which was completed on January 28, 1998, that Resident 18 had been the victim of sexual abuse by Resident 3 on June 27 and 28, 1997, and that Edgewater Manor had allowed the abusive situation to occur. In the surveyor's opinion, Resident 18 "lacked the capacity to make that decision [to be sexual] and needed to be protected,"6 even though the surveyor was told by H. F. that Resident 18 could make her own decisions. The surveyor's conclusion that Edgewater Manor's management and the nurses on the Protective Care Unit allowed an abusive situation to exist was also based on her opinion that, even if Resident 18 were able to consent to a sexual relationship, she would need a physical examination and a lubricant before having intercourse. There is no evidentiary basis in the record to support these conclusions of the Agency's surveyor or a finding of fact that Resident 3 sexually abused Resident 18. Rather, the evidence presented is sufficient to establish with the requisite degree of certainty that Resident 18 had the capacity to consent to an intimate relationship and that she did so with regard to her two encounters with Resident 3. The evidence is also sufficient to establish that Edgewater Manor's staff responded appropriately to the situation. Resident 19 Resident 19 suffers from Alzheimer's disease and, at the time at issue herein, was alert and oriented towards herself only. She was severely impaired in her ability to make decisions involving activities of daily living. She was incontinent of bowel and bladder and wore a diaper at all times. She was non- verbal except that she would respond to her name being called by uttering noises. She constantly wandered throughout the Protective Care Unit and seldom stayed in one place for any length of time. She often wandered into the rooms of other residents on the unit, and she was sometimes found on the beds in these rooms. When she sat or lay down, she would often lift her legs and wave them in the air. It was reported in the Nursing Care Notes that, on December 30, 1997, Resident 19 was found in Resident 3's room, lying across his bed. In the opinion of the nurse who observed this behavior, Resident 3 was attempting to remove Resident 19's slacks and briefs. Resident 19 was described as disoriented, and she was assisted out of Resident 3's room. When Resident 3 was interrupted, he reportedly stated "It's hard, let me do her - let me do her." The nurse told Resident 3 that his behavior was unacceptable, and he was closely monitored for the rest of the night. On December 31, it was noted that Ms. Streich called Resident 3's brother, who came in and talked to him about his behavior. Resident 3 was reportedly well-behaved until mid- January 1998. Ms. Bey was notified of Resident 3's encounter with Resident 19, and she spoke with staff members about the incident. She was unable to find a staff member who had witnessed Resident 3 pulling Resident 19's slacks down below her waist, although a corner of her brief was sticking above the waistband of the slacks, as though the slacks had not been pulled up completely. The nurse who documented the incident in the Nursing Care Notes would not change her interpretation of what had occurred in Resident 3's room that night; other witnesses interviewed by Ms. Bey stated that Resident 3 sat in his chair until Resident 19 was escorted from his room. As a result of her investigation, Ms. Bey concluded that there had not been an incident of abuse involving Resident 3 and Resident 19. As a result, she did not report the incident to the administrator or prepare an incident and accident report. Ms. Montero also investigated this encounter and interviewed both staff who had observed the incident and staff who had heard about it from others. Based on these interviews and on her own knowledge of Resident 3's physical condition, Ms. Montero concluded that it was not likely that Resident 3 could have successfully pulled Resident 19's slacks down because he often needed assistance dressing himself. The evidence presented by the Agency is sufficient to establish with the requisite degree of certainty that, when he was interrupted by Edgewater Manor's staff, Resident 3 was attempting unsuccessfully to pull Resident 19's pants down as she lay on the bed. The evidence presented by the Agency is not sufficient to establish with the requisite degree of certainty that Resident 3 sexually abused Resident 19: To the contrary, the evidence presented is sufficient to establish with the requisite degree of certainty that Resident 3 did not have the mental capacity to formulate the intention to inflict either physical or psychological injury on Resident 19 by his behavior. Moreover, the evidence is uncontroverted that Edgewater Manor's staff intervened promptly to prohibit Resident 3 from completing the act of removing Resident 19's slacks. Resident 20 At the time at issue herein, Resident 20 suffered from Alzheimer's disease and was alert and oriented to herself and others, although she was sometimes confused as to time and place. She had short- and long-term memory problems and was moderately impaired in her ability to make decisions regarding activities of daily life. It was noted on the Multiple Data Set for June 1997 that her cognitive status had deteriorated since the previous quarterly review. She was combative and frequently angry with herself and others, and she sometimes resisted care. She wandered throughout the Protective Care Unit and sometimes exhibited frustration, anxiety, and agitation. Her husband visited her every day, and he attended to her personal needs. Resident 20 was very territorial and would become agitated if another resident came into her room. She did not speak very well, but she would communicate by chattering loudly and waving her arms. As a result, it was always obvious when Resident 20 was agitated or upset. It was reported in the Nursing Care Notes for Resident 3 that, on January 22, 1998, he was found in Rm 123 making sexual advances to both ladies and ejaculation [sic] on the floor after masturbating in front of them. Both ladies were upset. R escorted to own room and then did it on the floor there. R laughed when this nurse told him his actions were not appropriate for public viewing. Room 123 is occupied by Resident 20 and her roommate and is directly across the hall from Resident 3's room. It was reported in the Nursing Care Notes for Resident 20 that, on January 22, 1998, she was very upset because the man from "124-2" had come into her room and made sexual advances to her. She reportedly yelled and pushed away from him. When this encounter was reported to Ms. Bey, she was told that Resident 3 held up his gown with his left arm while he walked, masturbated with his right hand, and ejaculated. Ms. Bey investigated by interviewing staff, and she concluded that the report of the event contained in the Nursing Care Notes was not objective. In Ms. Bey's opinion, Resident 3 was physically incapable of performing these acts simultaneously because of his advanced Parkinson's disease and his history of falling. Ms. Bey spoke with the nurse who had charted the nursing note, but the nurse refused to change the note, stating that the note accurately described the encounter. Ms. Montero also investigated this event and concluded that Resident 3 was not physically capable of simultaneously walking, holding up his gown, and masturbating, much less of ejaculating twice within a thirty-minute period. The evidence presented by the Agency is sufficient to establish that Resident 3 stood in Resident 20's room holding his gown up, masturbating, and ejaculating. The evidence presented by the Agency is not sufficient to establish with the requisite degree of certainty that Resident 3 sexually abused Resident 20. To the contrary, the evidence presented is sufficient to establish with the requisite degree of certainty that Resident 3 did not have the mental capacity to formulate the intention to inflict either physical or psychological injury on Resident 20 by his behavior. Moreover, the evidence is uncontroverted that Edgewater Manor's staff intervened promptly to remove Resident 3 from Resident 20's room. Generally In addition to the instances of inappropriate sexual behavior involving Resident 18, Resident 19, and Resident 20, Resident 3 was reported to have behaved inappropriately toward other residents of the Protective Care Unit. The following notation was entered in the Nursing Care Notes for July 9, 1997, at 10:00 p.m.: Resident walks down hallway grabbing [at] other female residents. Attempts to pull a female resident into another room. This nurse found resident pushing shoulders of a female resident down towards bed. Resident starting [sic] kissing another female resident on lips and started leaning over. This nurse caught them. This nurse reminds resident about behavior towards females. Resident continued this behavior for over 2 [hours] this evening. In the Nursing Care Notes for January 24, 1998, it was reported that Resident sexual promiscuity has increased during the last two weeks. Resident calls female staff into room while he is masturbating. He laughs when staff attempts to tell him that his behavior is not appropriate. He was also observed to fondle fellow female residents & was observed undressing them in his room. Fellow residents do not have the mental capacity & are unaware of his sexual advances as it appears. He was again redirected & told that his behavior is unacceptable & . . . the resident just denies he does nothing [sic] wrong & that his behavior is acceptable. As a result of Resident 3's behavior in the weeks preceding January 24, a psychiatric consultation was ordered by Resident 3's physician on January 26, 1998. The report of the consultation was dated February 5, 1998, and the psychiatrist reported that Resident 3's hypersexuality might be controlled by medication. It was also noted in the report that Resident 3 had been referred for a psychiatric consultation in 1995 as a result of sexually inappropriate, aggressive behavior. The Agency's surveyor did not discuss Resident 3's behavior with Ms. Bey or with Mr. Murray, the administrator of Edgewater Manor. Rather, she contacted the Florida Abuse Registry and the Martin County Sheriff's Department and reported her interpretation of Resident 3's behavior based on the information she had gathered from the documentation and her interviews with staff. As a result of suggestions by the Agency's surveyor and the adult protective investigator, Edgewater Manor placed a personal alarm, also known as a tether alarm, on Resident 3. This device would sound an alarm if Resident 3 moved from his chair, so that the staff would know where he was at all times. Although Ms. Bey investigated the reports regarding the sexual behaviors Resident 3 exhibited with Resident 18, Resident 19, and Resident 20, she did not reduce to writing the results of her investigation. No incident and accident reports relating to these events were prepared and no reports were submitted to adult protective services about Resident 3's behavior because Ms. Bey concluded from her investigations that there were no instances of suspected abuse, mistreatment, or neglect involving Resident 3. Had Ms. Bey suspected that abuse had occurred, she would have reported the incidents involving Resident 3 to the Florida Abuse Registry, pursuant to Edgewater Manor's policy of reporting all instances of suspected abuse, mistreatment, or neglect. During the survey, the Agency surveyor was provided with a copy of Edgewater Manor's policy and procedures to prevent abuse, neglect, and mistreatment. Although the policy addressed resident-to-resident abuse and sexual harassment, the survey team concluded that the policy had not been implemented to prevent what the team considered to be the abusive behavior of Resident 3 toward the female residents of the Protective Care Unit. Summary The evidence presented by the Agency is sufficient to establish that Resident 3 had a pattern of engaging in inappropriate sexual behavior directed to both female staff and female residents on the Protective Care Unit. The evidence presented by the Agency is not, however, sufficient to establish with the requisite degree of certainty that Resident 3 could, or did, formulate the intent to inflict physical or psychological injury that would be necessary for his behavior to constitute sexual abuse, as that term is defined in the State Operations Manual. Indeed, the evidence taken as a whole supports a finding that Resident 3 was an elderly man who, as a result of progressive cognitive impairment related to advanced Parkinson's disease, engaged in inappropriate sexual behavior in response to the basic urge for sexual gratification but without any appreciable comprehension of the potential effect of his behavior on others. As derived from the evidence presented herein, the Agency charged that Edgewater Manor failed to prevent, investigate, document, and report Resident 3's sexual abuse of female residents on the Protective Care Unit. Because the Agency has failed to present sufficient evidence to support a finding of fact that Resident 3 committed sexual abuse, Edgewater Manor did not breach its duty to prevent, investigate, document, or report abuse. Moreover, the evidence establishes that Edgewater Manor's staff promptly and appropriately intervened to interrupt Resident 3's inappropriate sexual behavior involving Resident 19 and Resident 20 and to confirm that Resident 3's relationship with Resident 18 was consensual. Additionally, the evidence is uncontroverted that Edgewater Manor had a written policy statement with procedures designed to prevent abuse, neglect, and mistreatment of residents7 and that investigations were done of the encounters between Resident 3 and Resident 18, Resident 19, and Resident 20 by both the Director of Nursing and the Assistant Director of Nursing. Because the investigations lead to the conclusion that sexual abuse had not occurred in any of the three encounters, no written reports were prepared, and the encounters were not reported to the Florida Abuse Registry. The evidence is, therefore, not sufficient to establish that Edgewater Manor violated the requirements that sexual abuse be prevented, investigated, documented, and reported. The evidence presented by the Agency is sufficient to establish with the requisite degree of certainty that Edgewater Manor failed to provide Resident 3 with the medically-related social services necessary for his physical, mental, and psychosocial well-being. Resident 3 was first sent for a psychiatric consultation in 1995 because he had engaged in inappropriate sexual behavior, but, notwithstanding the numerous instances of Resident 3's inappropriate sexual behavior toward staff and other residents from July 1997 through late January 1998, Resident 3 was not referred for another psychiatric consultation until January 26, 1998. The interventions identified in the care plans for Resident 3 were limited to correcting Resident 3 when he engaged in inappropriate sexual behavior, observing and documenting such behavior, and discouraging such behavior toward staff. In addition, the social services director conducted one-on-one "supportive" visits with Resident 3. Edgewater Manor's staff, pursuant to policy, interrupted and redirected Resident 3 when he was observed engaging in inappropriate sexual behavior involving others.8 Resident 3's family members and physician were asked to talk with him after episodes of inappropriate behavior. Because it became obvious that none of these interventions resulted in anything more that a temporary hiatus in his inappropriate sexual behavior, Edgewater Manor should have developed a care plan designed to provide Resident 3 with the services he needed to control his inappropriate sexual behavior both to enhance his own well-being and to protect other residents of the Protective Care Unit. Resident 12 As a result of the January 28, 1998, survey, the Agency cited Edgewater Manor for a Class II deficiency based on a violation of tag F314. The tag F314 violation and Class II deficiency cited by the Agency are associated with the requirement in Title 42, Section 483.25(c), Code of Federal Regulations, that facilities ensure that residents do not develop pressure sores which are not unavoidable and that residents with pressure sores be provided necessary treatment and services. A pressure sore is defined in the State Operations Manual as an "ischemic ulceration and/or necrosis of tissues overlying a bony prominence that has been subjected to pressure, friction or shear." The seriousness of a pressure sore is described using a "staging system" in which the characteristics of the sore are classified by reference to four stages, two of which are relevant here: A Stage II pressure sore exists when "[a] partial thickness of skin is lost; may present as blistering surrounded by an area of redness and/or induration"; a pressure sore has reached Stage III when "[a] full thickness of skin is lost; exposing the subcutaneous tissue; presents as shallow crater; may be draining."9 Unrelieved, prolonged pressure on areas of dependency such as the heels and the buttocks and coccyx can cause the development of pressure sores, and pressure sores can develop and/or worsen as a result of various clinical conditions. Peripheral vascular disease contributes to the development and impedes the healing of pressure sores because blood vessels are constricted, blood flow is decreased, and skin integrity and healing are compromised because nutrients aren't delivered efficiently to the tissue and because the removal of waste materials is inhibited. Chronic bowel and urinary incontinence compromise skin integrity and contribute to the development of pressure sores, first, because the skin in the area of the buttocks and coccyx is continually being rubbed to clean the resident after each episode of incontinence and, second, because even with regular cleaning and the application of an ointment to provide a moisture barrier it is impossible to keep an incontinent resident's skin from coming into contact with urine and stool. Weight loss affects skin integrity because it is indicative of poor nutrition and hydration, which impede healing. At the time of the January 28, 1998, survey, Resident 12 was a ninety-six-year-old woman who was admitted to Edgewater Manor on October 30, 1990.10 Her diagnoses as of December 1, 1997, and January 1, 1998, included senile dementia, atrial fibrillation, organic brain syndrome, psychotic disorder, cerebral vascular accident, iron deficiency anemia, peripheral vascular disease, stasis ulcer on lower right leg, and impaired skin integrity. As of December 1, 1997, Resident 12 was, and had been for some time, incontinent of bowel and bladder and consistently had loose stool. Since at least August 13, 1997, Resident 12 had been totally dependent on staff for all activities of daily living and was severely impaired in decision- making. Based on Resident 12's diagnoses and her general condition as of December 1, 1997, Resident 12 had several of the primary risk factors for developing pressure sores identified in tag F314: She was immobile and depended on the staff for repositioning; she spent time in a wheelchair with a restraint to keep her properly positioned; and she suffered from peripheral vascular disease, chronic bowel incontinence, and continuous urinary incontinence. Resident 12 was identified by Edgewater Manor as a person at risk of the development of pressure sores, and a care plan dated August 20, 1997, was developed which provided generally for increased protein in her diet and directed that she be given a multivitamin and vitamin C. The care plan reflected that, as of August 20, 1997, Resident 12 had an open area on her right lateral calf,11 and the plan contained specific provisions to deal with the development of pressure sores and with impaired skin integrity. A soft tech mattress, which is like a large feather pillow, was placed on her bed to reduce pressure on the pressure points on her body; she was to be provided with clean dry linens; range of motion manipulation was to be done on her extremities every shift; she was to be turned and repositioned every two hours, her heels were to be off the bed at all times, and pillows were to be placed under her calves; she was to be encouraged to consume all the fluids on her food tray and 80-to- 100 percent of her food; pillows were to be used to keep any bony prominences from direct contact with each other; balmex ointment (bag balm) was to be used on her buttocks after each episode of incontinence; and she was to have a daily skin assessment. Much of the preventive care set out in the August 20 care plan was to be provided by certified nursing assistants. Specifically, because Resident 12 was dependent on staff for almost all activities of daily living, certified nursing assistants were responsible for, among other things, turning and repositioning Resident 12 every two hours, feeding, bathing and grooming, and cleaning her body and her bed after episodes of incontinence. The services provided were recorded daily for each shift on a form entitled "Nurse Assistant Care Records," which was completed and initialed daily by the certified nursing assistant caring for the resident during each shift. The Nurse Assistant Care Records completed for Resident 12 during October, November, and December 1997 establish that, each day, she was fed by the staff and ate her meals in one of Edgewater Manor's dining rooms; that she was repositioned; that she had frequent bouts of bowel and bladder incontinence; that she was cooperative and accepted assistance; that she received passive range of motion movement; and that she spent time sitting in a wheelchair, with restraints. Frequent turning and repositioning is a critical component of care to prevent the development of pressure sores. The Nursing Assistant Care Records for October, November, and December 1997 reflect that Resident 12 was turned and repositioned each shift. The records do not, however, show the frequency of turning and repositioning and variously reflect that Resident 12 turned and repositioned herself independently, that she turned and repositioned herself with assistance, and that she was fully dependent on staff for turning and repositioning. Enid Lue, a certified nursing assistant who provided care to Resident 12 during these three months, testified that she personally turned and repositioned Resident 12 every two hours whenever she cared for her and that she was routinely informed verbally by the certified nursing assistant who cared for Resident 12 during the shift preceding hers that Resident 12 had been turned and repositioned every two hours during that shift. Ms. Lue confirmed that Resident 12 was totally dependent on staff for turning and repositioning and testified that she had incorrectly indicated on the Nursing Assistant Care Records that she had merely assisted Resident 12 to turn and reposition herself. The wound care nurse who provided treatment to Resident 12 for the stasis ulcer on her leg and for the pressure sore which developed on her coccyx testified that whenever he provided treatment to Resident 12 and whenever he passed her room, which was several times each day, he observed that she had been turned and repositioned. Notations are included in the monthly summaries in the Nursing Care Notes for Resident 12 indicating that she was turned and repositioned every two hours in October, November, and December 1997. In addition, the daily Nursing Care Notes maintained for Resident 12 include entries indicating that Resident 12 was turned and repositioned every two hours; the entries in the daily notes appear with greater frequency after December 30, 1997. In September 1997, it was noted in the Dietary Progress Notes maintained by Edgewater Manor's dietitian for Resident 12 that she had problems with skin integrity. The amount of protein in her diet was increased, and it was noted that she received a multi-vitamin and vitamin C, both of which aid in promoting healing. In the quarterly dietary care plan review conducted on November 4, it was noted that Resident 12's weight had remained stable at 117 pounds since January 1997 and that she was on a mechanical soft diet. Resident 12 was to be continued on the current care plan, and staff was directed to encourage fluids. On December 5, the dietitian ordered that protein rich foods be sent on Resident 12's tray. Daily skin assessments for each resident are routine practice at Edgewater Manor, and they are completed by licensed nurses, with a certain number of residents being assessed each shift. Pursuant to a memorandum to all licensed nurses, dated July 8, 1996, the nurses are to note the results of the skin assessment on a Daily Skin Assessment form. The nurses are specifically alerted to watch for redness, tearing, sheet burns, friction, shearing, and pressure areas, among other things. On December 18, 1997, it was noted on the Daily Skin Assessment for Resident 12 that a blister, redness, and/or an open area was observed on her "cheeks." On December 19, Resident 12's physician discontinued the application of bag balm as a moisture barrier on her buttocks and ordered that Desitin ointment be applied instead. The change in the type of ointment to be used on Resident 12's buttocks was made because a reddened area had been detected. The appearance of the reddened area was not, however, charted in the Nursing Care Notes, as required by the Edgewater Manor internal memorandum dated July 8, 1996. On December 24, 1997, it was noted on the Daily Skin Assessment that Resident 12 had an open area on her buttocks. This is reflected in the Nursing Care Notes for December 24, and a new order was given by Resident 12's physician on that date. The new order directed that a hydrocoloid dressing12 was to be applied to the coccyx every three days and that, on the third day, the dressing was to be removed, the area cleaned with a solution of normal saline and dried, and a new dressing applied. The open area was located in a fold of Resident 12's buttock, and two people were required to treat the wound because the buttocks had to be separated to expose it for treatment. On December 29, Resident 12's physician visited her, but he did not issue any new treatment orders except to discontinue the "leg buddy," a type of restraint used to help maintain proper positioning for a person sitting in a wheelchair. The "leg buddy" had been ordered on December 9, 1997, to replace a "lap buddy," another, more restrictive, device used to maintain proper positioning in a wheelchair. The staff noted in the Nursing Care Notes of December 29 that the "leg buddy" had been tried but did not properly position Resident 12 in the wheelchair. It allowed her to slide down in the chair and to rock back and forth. This caused pressure on Resident 12's coccyx and irritated the area. Even so, it was not improper to prescribe use of the leg buddy for Resident 12 because it was important for her to sit up to improve healing, and the leg buddy is the least restrictive restraint for use with a wheelchair. On December 30, Dante Graziani, Edgewater Manor's wound care nurse, visited Resident 12 for the first time to treat both the pressure sore on the coccyx area and the stasis ulcer on the right lower leg.13 Mr. Graziani removed the hydrocoloid dressing which had been placed on the coccyx area pursuant to the treatment prescribed by Resident 12's physician on December 24, and he observed that the wound had worsened since it was first noted on December 24. Mr. Graziani was on vacation from December 24 through December 29 and did not observe the open area on December 24, when treatment began. Nonetheless, he was able to determine that the pressure sore was at Stage II14 on December 24 based on the information provided in the Nursing Care Notes and physician's order. In his experience as a wound care nurse, it is not unusual for pressure sores to worsen during the first days of treatment, and it is standard procedure to allow a week for each new treatment to see if the sore is responding. In Mr. Graziani's opinion, it was unlikely that the sore would have appeared worse when the hydrocoloid dressing was changed on the third day after treatment began and it was not inappropriate for that treatment to have been continued for an additional three days, until December 30. On December 30, Mr. Graziani made the first entry for Resident 12 on the Weekly Pressure Sore Progress Report, which is an internal Edgewater Manor report usually prepared by the wound care nurse. Mr. Graziani determined from his examination that the pressure sore had advanced to Stage III.15 He noted on the report that the open area measured two centimeters wide and three centimeters long, with a depth of two-tenths of a centimeter, about the size of a quarter. Mr. Graziani attributed the worsening of the pressure sore between December 24 and December 30 to Resident 12's continued incontinence, her failure to eat well, her weight loss, her iron deficiency anemia, and her peripheral vascular disease. On the basis of the information provided by Mr. Graziani, Resident 12's physician ordered a change in the treatment of the pressure sore on the coccyx on December 30. Because there was necrotic tissue in the wound, the hydrocoloid dressing was discontinued and a transigel pad was ordered. A transigel pad is a debriding agent and facilitates the removal of necrotic tissue from a wound. Mr. Graziani indicated on the Weekly Pressure Sore Progress Report that December 30 was the first day of treatment with the transigel pad. Also on December 30, Resident 12's physician ordered five days' bed rest and insertion of a Foley catheter until the open area on the coccyx resolved. A care plan for Resident 12 was prepared to address the pressure sore on her coccyx and the statis ulcer on her right leg. The alteration to the integrity of her skin was attributed to her immobility, peripheral vascular disease, and incontinence. The care plan incorporated the physician's orders for use of the transigel pad, insertion of the Foley catheter, and five days' bed rest. It also provided for routine preventive care such as continued use of the soft tech mattress, turning and repositioning every two hours, use of pillows to turn and reposition and to keep pressure off Resident 12's wounds, use of heel protectors, and range of motion to all extremities each shift. The Nursing Care Notes for January 3, 1998, reflect that Resident 12 was not chewing her food and, as a result, was choking. A notation was made that the speech therapist would be notified. In an entry on the Dietary Progress Notes dated January 7, 1998, the dietitian reported that Resident 12's diet had been changed to puree on the recommendation of the speech therapist because Resident 12 had exhibited a problem chewing her food, although the precise date the change was made is not recorded in either the Nursing Care Notes or the Dietary Progress Notes. On January 5, Resident 12's physician ordered a urine culture and sensitivity test because her urine had become dark and cloudy. On the same day, the physician prescribed the antibiotic Cipro for a week and ordered that Resident 12 be encouraged to take fluids. The urinary culture confirmed that Resident 12 had a urinary tract infection. Although fluids were encouraged, Resident 12 generally took them poorly during her illness. The urinary tract infection was resolved on or about January 12, 1998. Also on January 12, 1998, it was noted in the Dietary Progress Notes that Resident 12's weight had dropped to 110.5 pounds, a ten-pound weight loss since December 8, 1997, but still above her ideal body weight of 85-to-105 pounds. The dietitian noted that Resident 12 had been ill with a urinary tract infection but that she had improved and was again eating in the dining room. The dietitian also noted that Resident 12 continued to have skin breakdown and recommended that a protein supplement be prescribed to combat Resident 12's weight loss and to meet her need for increased protein in her diet. The protein supplement was ordered by Resident 12's physician on January 12 and was to be given twice each day. During the time she had the urinary tract infection, Resident 12 continued to receive treatment for the stasis ulcer on her leg and for the pressure sore on her coccyx. On January 8, 1998, the transigel pad was ordered discontinued because the sore on Resident 12's coccyx had been debrided; orders were given by Resident 12's physician that a hydrocoloid dressing was to be placed on the wound on the coccyx. Mr. Graziani noted on the Weekly Pressure Sore Progress Report that, as of January 8, the pressure sore was a Stage II sore. On January 15, Mr. Graziani noted that the pressure sore was improving with the use of the hydrocoloid dressing. However, by January 22, the sore was larger, although still a Stage II sore, and the treatment was changed back to a transigel pad to debride the wound. The record does not reflect the date the pressure sore to the coccyx was resolved, but it was present at the time of the January 30, 1998, survey. The Agency's surveyor based her conclusion that resident 12 developed an avoidable pressure sore while she was a resident of Edgewater Manor on the surveyor's review of documentation provided by Edgewater Manor; on interviews with staff, specifically with Doris Huey, a licensed practical nurse who cared for resident 12; and on an Edgewater Manor internal memorandum to licensed nurses dated July 8, 1996, regarding daily skin assessments. There is no evidence in the record that the Agency's surveyor actually observed resident number 12 during her review of the resident's condition. It is uncontroverted that Resident 12 developed a pressure sore while a resident of Edgewater Manor. The evidence is, however, sufficient to establish with the requisite degree of certainty that Resident 12's clinical condition was such that she was at risk for developing pressure sores and that the care plan for Resident 12 included appropriate routine preventive care measures. In addition, the evidence is sufficient to establish with the requisite degree of certainty that Edgewater Manor's staff provided the prescribed routine preventive and daily care, such as turning and repositioning every two hours; cleaning and drying Resident 12 after episodes of incontinence, including applying ointments to her buttocks which acted as a moisture barrier; using a soft tech mattress to decrease pressure on areas of dependence and bony prominences; and increasing the amounts of protein in Resident 12's diet, changing her food to puree, and encouraging Resident 12 to take fluids. Although weight loss puts a resident at risk of slow healing, nothing in this record associates the development or worsening of Resident 12's pressure sore with her ten-pound weight loss between December 8 and January 8. Finally, the evidence is sufficient to establish with the requisite degree of certainty that Resident 12 received proper treatment to promote healing of the pressure sore, to avoid infection, and to prevent development of new sores. Routine preventive care was continued, and orders were issued for a change from bag balm to Desitin ointment when a reddened area was discovered on Resident 12's coccyx, for use of a hydrocoloid dressing as soon as the sore developed into an open area, and for insertion of a Foley catheter to minimize moisture in the area. In light of all of the evidence of record, the failure of Edgewater Manor's staff to document in the Nursing Care Notes the treatment of the pressure sore from December 24 through December 29 cannot support the inference that such treatment was not given. DOAH Case No. 98-2553: March 30, 1998, survey When the Agency's survey team conducted the March 30, 1998, follow-up survey, Edgewater Manor was found to have corrected the two Class II deficiencies identified in the January 28 survey involving Resident 3 and Resident 12. However, as a result of the March 30 follow-up survey, the Agency cited Edgewater Manor for a Class II deficiency based on a violation of tag F224. The tag F224 violation and Class II deficiency cited by the Agency are associated with the requirements in Title 42, Section 483.13(c), Code of Federal Regulations, that facilities develop and implement written policies prohibiting the mistreatment, neglect, and abuse of residents. Resident 8, who was born on October 7, 1914, was admitted to Edgewater Manor on February 22, 1996, with a primary diagnosis of a fracture of the femur intertrochanteric, that is, a fractured hip. In a Minimum Data Set completed January 12, 1998, Resident 8's diagnoses were listed as hypertension, peripheral vascular disease, non-Alzheimer's dementia, transient ischemic attack, and hemiplegia/hemiparesis. She had both short- and long-term memory problems and was severely impaired in her decision-making ability, with a deterioration of her cognitive status having occurred since the previous assessment. She was totally dependent on staff for personal hygiene, locomotion in a wheelchair both on and off her unit, dressing, eating, and toilet use. She was frequently incontinent of bowel and always incontinent of bladder. She had two areas on her skin which exhibited redness which did not disappear when pressure was relieved, and she had a pressure ulcer in which a partial thickness of skin was lost, presenting as either an abrasion, blister, or shallow crater. She also had skin tears or cuts and was receiving protective and/or preventative skin care. She could reposition herself in her bed with limited assistance from one staff member.16 On the other hand, Resident 8 needed extensive assistance to transfer from her bed to a chair or wheelchair, with two staff members required to assist her by providing weight-bearing support or, at times, full support. Her ability to perform activities of daily living had deteriorated since the previous assessment, and Edgewater Manor staff's predicted that Resident 8's condition would continue to decline. A care plan was developed January 18, 1998, in which the care to be given to Resident 8 in light of the January 12 assessment was specified.17 On February 25, 1998, at approximately 10:00 a.m., a hematoma (bruise) of moderate size was found on Resident 8's left upper arm. Edgewater Manor's Director of Nursing, Janice Bey, was notified of the hematoma through an incident report, conducted an investigation to determine the cause of the injury, and concluded that the hematoma resulted from a blood-draw done on February 23 and not from abuse, neglect or mistreatment. Ms. Bey did not reduce to writing the results of her investigation into the cause of the hematoma on Resident 8's arm. Also on February 25, 1998, at approximately 3:30 p.m., the registered nurse on duty was called to Resident 8's room by a certified nursing assistant to observe that Resident 8's left great toe was swollen and looked inflamed. The wound care nurse and a podiatrist were called to evaluate the wound. On February 27, at approximately 4:00 p.m., a certified nursing assistant reported that there was some bleeding on Resident 8's left great toe and that the toenail had come off. The toe was rinsed with normal saline solution and loosely wrapped with gauze; there was no indication that the toe had received any previous treatment. Ms. Bey was notified of the bleeding toe and of the missing nail through an incident report. She was already aware that the toe was swollen and inflamed. Ms. Bey investigated the cause of the injury by interviewing the staff members who cared for Resident 8, and she personally examined Resident 8's toe. She concluded that the swelling and inflammation of the toe, with the subsequent loss of the toenail, was the result of Resident 8's peripheral vascular disease, exacerbated by the fact that she was not ambulatory. Ms. Bey found no bruising or skin tears around the toe and, therefore, determined that no abuse, neglect, or mistreatment had occurred. Ms. Bey did not reduce to writing the results of her investigation. At approximately 3:00 p.m. on March 4, 1998, an aide reported that Resident 8 had an "ecchymotic" area (bruise) above her right eye. The licensed practical nurse on duty at the time completed an incident report and noted that the cause of the bruise and the place and time it occurred was unknown. On March 17, 1998, Resident 8 received two skin tears as she was being transferred from her bed to a wheelchair. The tears were on the right shin area, at right angles to one another, and were approximately one centimeter long by one centimeter wide. A small amount of redness was noted. The skin tears were cleansed and wrapped. Resident 8's son was notified of the skin tears, and an incident report and treatment request were sent via facsimile to Resident 8's physician. Ms. Bey was notified of the skin tears, and she investigated the cause of the injury. Ms. Bey found no evidence that the skin tears were caused by neglect or mistreatment, especially since Resident 8's skin was extremely fragile and paper-thin. Ms. Bey did not reduce to writing the results of her investigation. On March 21, 1998, at approximately 7:45 p.m., the nurse on duty was called to Resident 8's room to examine her left lower leg, which had a bruised area and was hot to the touch. An incident report was prepared, and Ms. Bey was contacted at her home. She directed the nurse to contact Resident 8's physician. The physician was notified of the condition of the leg at approximately 9:30 p.m. He initially diagnosed Resident 8's condition as cellulitis and issued new orders for treatment of this condition. By 6:00 a.m. on March 22, antibiotics were being administered, and shortly thereafter, Resident 8's temperature was recorded at 100.4 degrees. By 2:30 p.m. on March 22, the left lower leg was not quite as swollen but was still hot to the touch. Ms. Bey visited Resident 8 when she returned to work on Monday, March 23. She observed that the leg had edema and that it was no longer red but was dark bluish in color. Based on her observation, Ms. Bey doubted that the diagnosis of cellulitis was accurate. Ms. Bey directed that Resident 8's physician be called, and she recommended that an x-ray be taken of the leg. On March 23, Resident 8's physician visited her and ordered an x-ray of the left lower leg and ankle. The x-ray of the left ankle, which was read by a radiologist at the Martin Memorial Diagnostic Center on March 23, 1998, showed that Resident 8 had a "trimalleolar fracture with significant displacement and disruption of the mortise," with "generalized soft tissue swelling" noted. An x-ray of the tibia and fibula taken at the same time revealed evidence of "the distal fracture" but no others, and the report contained the observation that Resident 8's bones were demineralized and vascular calcifications were noted. On March 25, Resident 8 was transported to the office of a Dr. Fraraccio for examination and treatment. He concurred that Resident 8 had an old "fracture of the left distal femur" and that she also had "a fresh fracture of the left ankle." He put a short cast on the leg, and she was returned to Edgewater Manor. Resident 8's left lower leg was still in the cast when the March 30, 1998, survey was conducted. When Edgewater Manor received the reports which indicated that Resident 8's ankle was fractured and displaced, Ms. Bey spoke with the staff to determine the cause of the injury. As a result of this investigation, Ms. Bey concluded that Resident 8 had not been dropped when being transferred and that the fracture could not be associated with any particular event. Ms. Bey's clinical impression was that Resident 8 had very fragile bones and a history of fractures, as set out in reports of x-rays taken in May 1997, which were maintained as part of Resident 8's chart. In her opinion, Resident 8's ankle could have been fractured when she was transferred from the bed to a chair or turned and repositioned in the bed or by the pressure of a wash cloth when she was bathed. Ms. Bey relied during her investigation on the opinion of Dr. Fraraccio, which she solicited, that he believed the fracture was unavoidable and that it "could have occurred during normal transfer or by any other maneuver, such as turning the patient in bed." Ms. Bey ultimately concluded that the fracture was not caused by abuse, neglect, or exploitation, but she did not reduce to writing the results of her investigation. The Agency's surveyor determined that each of Resident 8's bruises, the inflamed toe, and the ankle fracture were caused by mistreatment or neglect by the staff. This determination was not based on any independent investigation by the surveyor but solely on her conclusion that Resident 8 could not have injured herself because she was cognitively impaired, was totally dependent on staff for activities of daily living, and required the assistance of two people for transfers from her bed to a chair or wheelchair. Even if it such a determination were relevant to the violation alleged, the Agency presented no evidence from which it could be found, with any degree of confidence, that Resident 8 was the victim of abuse, mistreatment, or neglect. The Agency did not, however, cite Edgewater Manor with a tag F224 violation for having abused, mistreated, or neglected Resident 8 or with a tag F225 violation for having failed to investigate incidents involving abuse, neglect, or mistreatment.18 Rather, the Agency cited Edgewater Manor with a tag F224 violation for failing to develop and implement written policies and procedures to prohibit mistreatment, neglect, and abuse of residents.19 The evidence conclusively establishes that Edgewater Manor had indeed developed such written policies and procedures for the protection of all of its residents from abuse, mistreatment, or neglect and provided a copy to the Agency surveyor. Furthermore, the Agency presented no evidence to establish that these policies were not implemented with regard to Resident 8. The survey team apparently based its decision to cite Edgewater Manor for a tag F224 violation and Class II deficiency related to Resident 8 on the lack of documentation of Ms. Bey's investigations into the causes of Resident 8's bruises, inflamed toe, and fractured ankle. 20 The team apparently applied the following reasoning: Because there were no written reports of Ms. Bey's investigations, no investigations had been conducted; because no investigations were conducted, it was not possible for Edgewater Manor to develop written policies and procedures to prohibit abuse, neglect, or mistreatment or to develop a care plan for Resident 8 to avoid future injuries.21 These inferences lack any foundation in logic and, as noted above, are not supported by the evidence presented in this case. Finally, the evidence is not sufficient to establish with the requisite degree of certainty that the care plan developed for Resident 8 failed to specify the means by which she was to be transferred from her bed to a chair or wheelchair,22 even assuming that the inclusion of such instructions would be necessary to protect her from abuse, mistreatment, or neglect.
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 in DOAH Case No. 98-1270 Finding that Hobe Sound Geriatric Vill., d/b/a Edgewater Manor, violated the requirements of Title 42, Section 483.15(g), Code of Federal Regulations; Citing Edgewater Manor with a Class II deficiency at the time of the January 1998 survey based on a violation of tag F250; and, Denying Edgewater Manor's request to change its conditional rating for the period from January 28, 1998 through March 30, 1998. 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 in DOAH Case No. 98-2553 Rescinding the conditional rating for the period from March 31, 1998, through February 28, 1999; and Issuing the appropriate rating to Edgewater Manor effective March 31, 1998. DONE AND ENTERED this 10th day of May, 1999, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of May, 1999.
The Issue Whether the Petitioner's licensure status should be reduced from standard to conditional effective April 5, 2001.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: AHCA is the state agency responsible for licensing and regulating the operation of nursing home facilities, including ensuring that nursing homes are in compliance with criteria established by Florida statute. Chapter 400, Part II, Florida Statutes (2000).1 Beverly Fort Pierce, located in Fort Pierce, Florida, is a facility licensed to operate as a nursing home pursuant to the provisions of Chapter 400, Part II, Florida Statutes, and the rules found in Chapter 59A-4, Florida Administrative Code. AHCA conducted an annual relicensure survey of Beverly Fort Pierce from April 2 through April 5, 2001, ("April 5, 2001, survey") for the purpose of determining Beverly Fort Pierce's compliance with the state and federal criteria applicable to nursing homes. As is AHCA's usual practice, the alleged deficiencies found during the survey were reported on a form used by the federal Department of Health and Human Services, Health Care Financing Administration, HCFA-2567, which is commonly referred to as a "Form 2567." The deficiencies cited on the Form 2567 were identified in accordance with the criteria set forth in the State Operations Manual, which is published by the federal Health Care Financing Agency and provides guidance to state surveyors in interpreting and applying the federal regulations applicable to nursing homes receiving reimbursement from Medicaid and/or Medicare. The State Operations Manual, Guidance to Surveyors, includes "tag numbers" corresponding to provisions of the regulations found in Title 42, Chapter 483, Code of Federal Regulations. In the State Operations Manual, a "tag number" is associated with each provision of the federal regulations, and the intent of the regulation is set forth, together with guidelines, procedures, and probes which are to be used by the state surveyors in determining whether a particular regulation has been violated. The deficiencies cited on the Form 2567 completed as a result of the April 5, 2001, survey of Beverly Fort Pierce were each identified by the federal tag number, by a citation to the applicable provision of the Code of Federal Regulations, by a citation to the applicable Florida administrative rule, and by a Florida statutory classification as either a Class II or Class III deficiency. The Form 2567 included citations for three Class II deficiencies and for several Class III deficiencies. On May 18, 2001, AHCA returned to Beverly Fort Pierce and conducted the first "revisit survey" subsequent to the April 5, 2001, survey. The Form 2567 prepared for the May 18, 2001, revisit survey indicated that two deficiencies from the April 5, 2001, survey remained out of compliance. In its original five-count Administrative Complaint, dated December 3, 2001, AHCA identified as the bases for the reduction of Beverly Fort Pierce's licensure status to conditional two of the three Class II deficiencies and one of the several Class III deficiencies cited in the Form 2567 for the April 5, 2001, survey, as well as the two Class III deficiencies cited in the Form 2567 for the May 18, 2001, revisit survey. The Amended Administrative Complaint filed on the date of the hearing contained only three counts, and, at the hearing, AHCA voluntarily dismissed two of the three counts in the Amended Administrative Complaint. Accordingly, at the hearing, AHCA offered proof only with respect to the Class II deficiency identified in the Form 2567 for the April 5, 2001, survey based on the allegations that resident #13 developed pressure sores on her right heel, left heel, and right great toe while she was a resident at Beverly Fort Pierce.2 At the time of the April 5, 2001, survey, resident #13 was 92 years of age and had resided at Beverly Fort Pierce since November 21, 1995. Resident #13 was chosen by the survey team prior to the commencement of the survey as one of the residents to be observed during the team's visit to Beverly Fort Pierce. During the initial tour of the facility on April 2, 2001, the survey team leader, Judy Spiritu, visited resident #13's room and noticed that she was lying on her back in bed and was wearing heel protectors, although the one on the left leg was around her calf. Ms. Spiritu decided to observe resident #13 more closely during the survey, and she reviewed her clinical records and interviewed her caregivers. The Nurses Notes for resident #13 indicate that "pressure areas to bilateral heels" were noted by the care specialist at approximately 10:30 p.m. on March 1, 2001, and the resident's feet were elevated off of the bed. At 10:00 a.m. on March 2, 2001, resident #13's right heel and great toe were sprayed and wrapped and socks and heel protectors were applied. At 1:00 p.m. on March 2, 2001, blisters were noted on resident #13's right and left heels and right great toe; the blister on the right heel measured 3 centimeters by 3 centimeters, the blister on the top of the right great toe measured 0.5 centimeters by 0.5 centimeters, and the blister on her left heel measured 1 centimeter by 1 centimeter. The blisters were classified as Stage II ulcers, defined in Beverly Fort Pierce's records as "an ulceration in which partial thickness of skin is lost with involvement of the epidermal and/or dermal layers of skin."3 Resident #13 suffered from a number of serious medical problems, including seizure disorder, advanced Alzheimer's disease, carotid artery stenosis, a duodenal ulcer, hypertension, osteoporosis, arthritis, peripheral vascular disease, arterial sclerotic heart disease, and aortic heart disease. The Minimum Data Set dated February 15, 2001,4 indicated, among other things, that resident #13 was completely dependent on staff for turning and repositioning in bed, although she could move her legs, and that resident #13 was incontinent of bowel and bladder. Beverly Fort Pierce prepared a Problem Summary for resident #13 based upon the problems identified in the Minimum Data Set prepared February 15, 2001. Entries made in the Problem Summary for resident #13 on February 16 and 22, 2001, reflect that, over the previous 90 days, resident #13 had significant weight loss and decline in functioning with respect to activities of daily living and that she was totally dependent on staff for bed mobility.5 It was also noted in the Problem Summary entry for February 22, 2001, that resident #13 was at risk for the development of pressure ulcers because of incontinence, advanced Alzheimer's, and the decline in bed mobility. Beverly Fort Pierce had in place a Plan of Care for resident #13 for February 2001, and it was noted in the February 22, 2001, entry that resident #13 was at risk of developing pressure ulcers due to incontinence; it was further noted that, at the time, she had no pressure ulcers. A number of interventions were identified in the Plan of Care to deal with the risk that resident #13 would develop pressure ulcers, including use of a "pressure relieving mattress"; "protective/preventative skin care after each incontinent episode"; "monitor skin turgor for any area of concern"; "[i]ntervene as needed"; and "turn and reposition Q 2H [each two hours]." There is no mention in resident #13's Plan of Care that heel protectors should be used as an intervention until on or after March 2, 2001, when the Stage II ulcers on resident #13's heels and right great toe were first discovered. Although there is no indication in the Plan of Care of the date on which a pressure-relieving mattress was provided, Beverly Fort Pierce replaced all of its mattresses with pressure relieving-mattresses several years prior to the times material to this proceeding. Skin Assessment Forms completed for resident #13 for March and April 2001 documented that resident #13's skin was assessed weekly from March 5, 2001, through April 16, 2001, and the existence of blisters on the right and left heels and the right great toe were noted on the March 5, 2001, assessment.6 In addition, the Treatment Records for March and April 2001 carry a set of initials for each shift for most days through April 22, 2001, beside the entry of an order dated February 16, 1999, which required the following care: "Both siderails up when in bed due to alteration in safety awareness due to cognitive decline. Check q [each] 30 min[.] Release q2h [each two hours] for positioning and tolieting [sic]."7 It was not the policy of Beverly Fort Pierce to make a notation each time routine care such as turning and repositioning was provided, and the only explicit indication that resident #13 was turned and repositioned was an entry in the Nurses Notes for March 23, 2001.8 The first mention of the use of heel protectors was a notation in the Nurses Notes entered at 10:00 a.m. on March 2, 2001, and the use of heel protectors for resident #13 is often mentioned in the Nurses Notes after that date. A pressure ulcer is a sore that develops as a result of pressure to areas of the body referred to as pressure points, because the pressure diminishes the blood supply to the affected area and results in the death of the tissue; a pressure sore can develop in a matter of hours and may first appear as a Stage II blister because the damage to the tissue may initially occur beneath the surface of the skin. A stasis ulcer is an ulcer that develops on the lower extremities, most commonly in the "inner aspect of the lower third of the leg" and on the "lateral aspect of the leg."9 A stasis ulcer is related to chronic venous disease that inhibits the flow of blood from an area or to extensive arterial disease that inhibits the delivery of blood, oxygen, and nutrition to an area; a stasis ulcer develops over a period of time, not in one or two days, and is characterized by thickening, redness, and changes in the skin referred to as stasis dermatitis. Stasis ulcers develop as a result of a resident's clinical condition and are considered unavoidable. Based on the description in the Nurses Notes of resident #13's ulcers when they were first discovered and given the short time during which the ulcers developed, the ulcers on resident #13's heels and right great toe were pressure ulcers, not stasis ulcers,10 although the ulcers could have been caused in part by resident #13's vascular status.11 As noted in the entry on the Problem Summary of February 22, 2001, resident #13's medical condition had deteriorated during the previous 90 days, she had a number of serious medical problems, and she was very near the end of her life. A person with such morbidity factors is more likely to develop pressure ulcers despite being provided with appropriate routine preventive care and medical services than are persons with fewer or less serious medical problems. Although resident #13's clinical condition might have placed her at risk of developing pressure ulcers, the evidence presented by Beverly Fort Pierce establishes that the staff was aware that resident #13 was at risk of developing pressure ulcers and that certain preventive measures were included in her Plan of Care as a result of this risk, including providing her with a pressure-relieving mattress and turning and repositioning her in bed once every two hours. However, no requirement was included in the Plan of Care that heel protectors were to be used when resident #13 was in bed. Beverly Fort Pierce presented no evidence with respect to the preventive care that was actually provided to resident #13 prior to 10:30 p.m. on the night of March 1, 2001, when the pressure areas on resident #13's heels were noted. The evidence establishes that resident #13 was provided with a pressure-relieving mattress, but there is no evidence that she was turned and repositioned every two hours or that she was provided with heel protectors prior to 10:00 a.m. on March 2, 2001.12 Without proof of the preventive care that the staff provided resident #13, Beverly Fort Pierce has failed to establish that the pressure ulcers on resident #13's heels and right great toe were unavoidable.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order: Finding that Beverly Health and Rehabilitation Center, Fort Pierce, had a Class II deficiency at the time of the April 5, 2001, relicensure survey in that resident #13 developed pressure sores on her heels and right great toe that were not unavoidable; and Reducing the licensure status of Beverly Fort Pierce from standard to conditional, effective April 5, 2001, pursuant to Section 400.23(7)(b), Florida Statutes (2000). DONE AND ENTERED this 24th day of April, 2002, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of April, 2002.
