The Issue The issue in this case is whether the licensee, Watch Care, Inc., should be fined for providing services beyond the scope of its adult day care license, and if so, in what amount.
Findings Of Fact Respondent, Watch Care, is licensed to operate an adult day care center at 100 West First Street, Atlantic Beach, Florida. The day care center is licensed to provide services to 30 people. An adult day care facility is only licensed to provide care-taking services for a limited period of time during the day. A day care facility cannot provide care-taking services 24 hours a day. At the time, Respondent was not licensed to provide 24-hour assisted living services. Watch Care's adult day care center is located in one side of a building at 100 West First Street. The entire building is owned by Watch Care. The other side of the building contained apartments or rooms in which two elderly people had resided for a number of years. The two areas were separated by a wall and had separate entrances. However, both areas had the same address. Even so, the separate area does not appear to have been included for review during any agency inspections done prior to January 27, 1999, since agency inspectors appeared to be unaware of the two occupants living in the separate area. Upon these facts, the evidence did not demonstrate that this separate area was part of the adult day care license. It does appear to be separate property owned by Watch Care and used for a purpose different from the adult day care center next door. Other than the corporation, no human owner lived on either of the two premises. In January 1999, Petitioner received an anonymous complaint that Respondent was running an unlicensed Assisted Living Facility (ALF). On January 27, 1999, the inspector for Respondent, for the first time found that two people were living next door to the adult day care. Respondent admitted that the two residents lived in the section of the building adjoining the adult day care. Prior to January 1999, Respondent believed that Florida Statutes permitted two unrelated people to reside at a facility without being licensed as an ALF. At some point Respondent discovered the law regarding unrelated residents had changed. By statute, Respondent had six months to comply with the changed law. Respondent moved the residents to another facility within the six months following the statute change. The two residents had been living next door to the adult day care center for more than two years. The residents had lived next door to the day care center at the behest and with the consent of both the residents and their families. During the daytime the residents went to Watch Care's adult day care center. While not at the day care, certain staff persons associated with Watch Care would perform care-taking services for the residents. The care-taking services were provided separate from any services the staff persons may have performed during their shifts at Watch Care and the services were not performed while working on their shift at Watch Care. Importantly, the evidence did not establish the terms of any written or oral contract or the parties to such a contract. In short, it is just as likely that these separate care-taking services were being provided and paid for separately by the two residents living in the separate part of the building. The evidence was insufficient to establish that Watch Care offered 24-hour care-taking services as part of its day care center program as opposed to providing such services as a private corporation entitled to enter into contracts separate from the day care center and its other business. At the time of the inspection, Respondent intended and eventually did apply for and became licensed as an ALF. The ALF license was issued on July 9, 1999, and is in effect to date. The ALF license covers the area of the building adjacent to the adult day care center where the two residents lived.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That Petitioner Agency for Health Care Administration enter a final order finding Respondent Watch Care, Inc., not guilty of providing services beyond the scope of its license and dismissing the Administrative Complaint. DONE AND ENTERED this 29th day of September, 2000, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of September, 2000. COPIES FURNISHED: Michael O. Mathis, Esquire Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3408D Tallahassee, Florida 32308 Jamie Glavich, General Manager Watch Care, Inc. 100 West First Street Atlantic Beach, Florida 32233 Sam Power, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3431 Tallahassee, Florida 32308 Julie Gallagher, General Counsel Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3431 Tallahassee, Florida 32308 Ruben J. King-Shaw, Jr., Director Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3116 Tallahassee, Florida 32308
The Issue The issue for determination is whether the Agency for Health Care Administration found deficiencies at Wellington Specialty Care and Rehab Center sufficient to support the change in its licensure status to a conditional rating.
Findings Of Fact Wellington is a nursing home located in Tampa, Florida, licensed by and subject to regulation by the Agency pursuant to Chapter 400, Florida Statutes. The Agency is the licensing agency in the State of Florida responsible for regulating nursing facilities under Part II of Chapter 400, Florida Statutes. On September 10, 1998, the Agency conducted a complaint investigation at Wellington in a matter unrelated to the issues that are the subject of this proceeding. On that same date, the Agency also conducted an appraisal survey that focused on six areas of care for which Wellington had been cited as deficient in past surveys. After the investigation and survey were completed, the Agency determined that there was no basis for the complaint, and further determined that Wellington was not deficient in any of the six areas of care which were the subject of the appraisal survey. Notwithstanding its findings that the complaint against Wellington was unfounded and that there were no deficiencies in the targeted areas of care being reviewed, the Agency determined that Wellington was deficient in an area not initially the subject of the September 1998 survey. Specifically, the Agency found that Wellington had failed to provide adequate supervision and assistance devices to two residents at the facility in violation of the regulatory standard contained in 42 C.F.R. s. 483.25(h)(2). Based on its findings and conclusions, the Agency issued a survey report in which this deficiency was identified and described under a "Tag F324." The basis for the Agency’s findings were related to observations and investigations of two residents at the facility, Resident 6 and Resident 8. During the September 1998 survey and complaint investigation, the surveyors observed that Resident 6 had a bruise on her forehead and that Resident 8 had bruises on the backs of both of her hands. Resident 6 suffered a stroke in May 1998 and had left-side neglect, a condition that caused her to be unaware of her left side and placed her at risk for falls. Moreover, Resident 6's ability to recall events was impaired. The Agency's investigation revealed that Resident 6 sustained the bruise on her forehead when she fell from the toilet on August 31, 1998. The Agency determined that Resident 6 fell because she was left alone by the staff of the facility and further concluded that Wellington was responsible for causing this fall. The Agency believed that given Resident 6's left-side neglect, the facility staff should have known not to leave the resident unattended during her trips to the toilet. The Agency suggested that Wellington should have provided constant supervision to Resident 6, although it acknowledged that such supervision may have created privacy violations. In making its determination and reaching its conclusions, the Agency relied exclusively on an interview with Resident 6, notwithstanding the fact that her ability to recall events was impaired. Since Resident 6 was admitted to the facility in May 1998, Wellington appropriately and adequately addressed her susceptibility to falls, including falls from her toilet. After Resident 6 was initially admitted to the facility in May 1998, she received occupational therapy to improve her balance. In late June 1998, following several weeks of occupational therapy, Wellington’s occupational therapist evaluated Resident 6’s ability to sit and to control the balance in the trunk of her body and determined that the resident was capable of sitting upright without support for up to 40 minutes. Based upon that assessment, Resident 6 was discharged from occupational therapy on June 25, 1998, and her caregivers were provided with instructions on how to maintain her balance. At the time Resident 6 was discharged from occupational therapy, a care plan was devised for her which provided that the facility staff would give her assistance in all of her activities of daily living, but would only provide stand-by assistance to Resident 6 while she was on the toilet, if such assistance was requested. In light of the occupational therapist's June 1998 assessment of Resident 6, this care plan was adequate to address her risk for falls, including her risk for falls while on the toilet. Wellington also provided Resident 6 with appropriate assistance devices. In Resident 6's bathroom, Wellington provided her with a right-side handrail and an armrest by her toilet to use for support and balance, and also gave her a call light to alert staff if she felt unsteady. These measures were effective as demonstrated by the absence of any falls from the toilet by Resident 6 over the course of June, July, and August 1998. The Agency's surveyor who reviewed Resident 6’s medical records was not aware of and did not consider the June 1998 Occupational Therapy Assessment of Resident 6 before citing the facility for the deficiency. Resident 8 was admitted to Wellington in February 1998 with a history of bruising and existing bruises on her body. At all times relevant to this proceeding, Resident 8 was taking Ticlid, a medication which could cause bruising and also had osteopenia, a degenerative bone condition that could increase Resident 8's risk for bruising, making it possible for her to bruise herself with only a slight bump. After observing the bruising on the backs of both of Resident 8's hands during the September 1998 survey, the Agency asked facility staff about the bruising and also reviewed the resident’s medical records. Based on her interviews and record review, the Agency surveyor found that these bruises had not been ignored by Wellington. Rather, the Agency found that when facility staff initially observed these bruises on Resident 8's hands, (1) staff had immediately notified Resident 8's physician of the bruises; and (2) the physician then ordered an X-ray of Resident 8 to determine whether there was a fracture. The X-ray determined that there was not a fracture but that there was evidence of a bone loss or osteopenia, which indicated that Resident 8 had an underlying structural problem which could increase the resident's risk for bruising. The Agency surveyor found nothing in Resident 8's medical record to indicate that the facility had investigated the bruising on the resident’s hands, identified the cause of the bruising, or identified any means to prevent the bruising from reoccurring. Based on the absence of this information in Resident 8's records, the Agency cited the facility for a deficiency under "Tag F324." The Agency's surveyor made no determination and reached no conclusion as to the cause of the bruising. However, she considered that the bruising on Resident 8 may have been caused by the underlying structural damage, medication, or external forces. With regard to external forces, the surveyor speculated that the bruising may have occurred when Resident 8 bumped her hands against objects such as her chair or bed siderails. During the September 1998 survey, when the Agency surveyor expressed her concerns about the cause of the bruising on Resident 8's hands, Wellington’s Director of Nursing suggested to the surveyor that the bruising could have been the result of the use of improper transfer techniques by either Resident 8’s family or the facility staff, or Resident 8’s medications. Despite the surveyor's speculation and suggestions by the facility's Director of Nursing, the Agency surveyor saw nothing that would indicate how the bruising occurred. In fact, the Agency surveyor's observation of a staff member transferring Resident 8 indicated that the staff member was using a proper transfer technique that would not cause bruising to the resident’s hands. The Agency surveyor made no other observations and conducted no investigation of the potential causes of the bruising on Resident 8's hands. During the September 1998 survey, after the Agency surveyor inquired as to the cause of the bruises on Resident 8's hands, the facility conducted an investigation to try to identify the potential causes for the bruising. The investigation was conducted by the facility’s Care Plan Coordinator, a licensed practical nurse who was also the Unit Manager for the unit on which Resident 8 was located. Included in the Care Plan Coordinator's investigation was a thorough examination of the potential causes suggested by the Agency's surveyor. The Agency surveyor’s speculation that the bruising was caused when Resident 8 hit her hands against her chair or bed siderails was ruled out as a cause for the bruises because Resident 8 was unable to move around in her bed or chair. More importantly, there were no bedrails on Resident 8's bed and her chair was a heavily padded recliner. Also, as a part of her investigation, the Care Plan Coordinator observed the transfer techniques employed by both Resident 8's family members and facility staff. During these observations, she did not see any indication that the techniques used were improper or would otherwise cause Resident 8 to bruise her hands. Based upon her thorough investigation, the Case Plan Coordinator determined that there were no identifiable causes of the bruising and, thus, there were no care plan interventions that the facility could have implemented then or in September 1998 to prevent the bruising suffered by Resident 8. Instead, the Care Plan Coordinator reasonably concluded that the bruising was most likely an unavoidable result of Resident 8's medications and her osteopenia. The Agency is required to rate the severity of any deficiency identified during a survey with two types of ratings. One of these is "scope and severity" rating which is defined by federal law, and the other rating is a state classification rating which is defined by state law and rules promulgated thereunder. As a result of the September 1998 survey, the Agency assigned the Tag F324 deficiency a scope and severity rating of "G" which, under federal regulations, is a determination that the deficient practice was isolated. The Tag F324 deficiency was also given a state classification rating of "II" which, under the Agency’s rule, is a determination that the deficiency presented "an immediate threat to the health, safety or security of the residents." Because the Agency determined that there was a Class II deficiency at Wellington after the September 1998 survey, it changed Wellington’s Standard licensure rating to Conditional, effective September 10, 1998. At the completion of the September 1998 survey, the Agency assigned the Class II rating to the deficiency although the surveyors failed to determine and did not believe that there was an immediate threat of accidents to other residents at Wellington. In fact, at the time of the September 1998 survey, the number of falls at Wellington had declined since the last survey. The Agency returned to Wellington on November 6, 1998, to determine if the facility had corrected the Tag F324 deficiency cited in the September 1998 survey report. After completing that survey, the Agency determined that the deficiency had been corrected and issued Wellington a Standard License effective November 6, 1998.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that the Agency for Health Care Administration enter a final order issuing a Standard rating to Wellington and rescinding the Conditional rating. DONE AND ENTERED this 17th day of May, 1999, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of May, 1999. COPIES FURNISHED: R. Davis Thomas, Jr., Esquire Qualified Representative Broad and Cassel 215 South Monroe, Suite 400 Post Office Drawer 11300 Tallahassee, Florida 32302 Thomas Caufman, Esquire Agency for Health Care Administration 6800 North Dale Mabry Highway Suite 200 Tampa, Florida 33614 Sam Power, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308 Paul J. Martin, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308
The Issue May Respondent be discharged from the Robert H. Jenkins Veterans' Domiciliary Home of Florida for four violations of Rule 55-11.009(1), Florida Administrative Code, as more fully set out in the February 16, 2001, letter of dismissal.
Findings Of Fact The Robert H. Jenkins Veterans' Domiciliary Home of Florida (hereafter, "The Veterans' Home"), is licensed by the Florida Agency for Health Care Administration as an extended congregate care facility and is also licensed to provide limited nursing services and limited mental health services. It is commonly known as an "ALF," or "assisted living facility." The Department of Veterans' Affairs has oversight of The Veterans' Home. All of its residents are military veterans. Some have significant physical limitations, such as missing limbs and blindness. Approximately thirty of its 130 residents suffer one or more forms of psychiatric disturbance, including, but not limited to, geriatric conditions. Respondent served with distinction in the United States Navy during World War II. Thereafter, he graduated from college and pursued a teaching career at P. B. Young Laboratory School. He is now retired. He has been a continuous resident of The Veterans' Home since approximately January 2000. On February 16, 2001, Respondent was issued a letter of discharge based on the following alleged incidents: FAC 55-11.009(1)(b)3: Members shall maintain a courteous relationship toward other members and members of the staff. A Behavior Management Report (January 12, 2001), reflects that you verbally responded inappropriately to another member. FAC 55-11.009(1)(b): Members shall conduct themselves in a way that does not endanger the safety or security of other members of the home. A Behavior Management Report (February 2, 2001) reflects that you hit another member in the stomach. FAC 55-11.009(1)(b): Members shall conduct themselves in a way that does not endanger the safety or security of other members of the home. A Behavior Management Report (February 5, 2001) reflects that you pushed another member. FAC 55-11.009(1): Members of the home shall cooperate fully in the preservation of order and discipline in the Home. Behavior Management Reports (February 13, 2001 and February 15, 2001) reflect that you attempted to interfere with nursing services to another member. (Emphasis supplied). The Veterans Home administrator testified that no single incident was cause to dismiss Respondent, but that the cumulative nature of the incidents was behind her decision. No evidence related to the dates of February 2, 13, or 15, 2001, was offered. Mr. Cook is a wheelchair-bound amputee, whom Respondent regularly assists with daily living. On January 1, 2001, Mr. Cook was unable to feed himself, and Respondent had, according to their custom, prearranged a tray and two chairs in the lunchroom so he could feed Mr. Cook. However, there were no assigned chairs in the lunchroom, and another male resident, Mr. Gordon Flash, took the seat in the lunchroom customarily taken by Respondent. Respondent retaliated by pushing over the chair in which Mr. Flash was seated. Nurse Leahy observed a fresh cut on Mr. Flash's face as a result of the January 1, 2001, altercation. No one observed Respondent kick Mr. Flash. Mr. Flash was sent to a hospital where he was diagnosed with one or two broken ribs. However, no nexus by medically competent testimony tied Mr. Flash's broken ribs to his January 1, 2001, altercation with Respondent. The Home's administrator had previously observed Mr. Flash taking the lunchroom chair in which Mr. Cook customarily sat and concluded that Mr. Flash was the instigator and Respondent was the reactor in the January 1, 2001, incident. Nonetheless, she issued a written warning to both Mr. Flash and Respondent. Respondent's warning charged him with violating Rule 55-11.009(1), Florida Administrative Code, not cooperating fully in the preservation of order and discipline in The Home and subsection (8), not maintaining a courteous relationship towards other residents and members of staff. Respondent acknowledged receipt of this warning and knew that future similar offenses could result in his dismissal from The Veterans' Home. Nurse Leahy, who reported the January 1, 2001, incident, recommended that Mr. Flash and Respondent be kept separated. After the January 1, 2001, incident, Respondent was observed modifying his own behavior by moving himself and Mr. Cook to other chairs in the lunchroom. On January 12, 2001, Custodial Supervisor Craig Bracht observed Respondent and another resident, Mr. Pullio, in a hallway, pulling a legally blind female resident between them in something akin to a tug-of-war. Respondent had cocked his arm back, apparently threatening to hit Mr. Pullio if he did not turn the female resident loose. Mr. Bracht asked the males to "behave" and directed the female on her way. Mr. Bracht had observed Mr. Pullio acting mildly erratic before. Mr. Pullio has psychiatric infirmities. Mr. Bracht counseled Respondent that what he was doing was not a good thing. Respondent and Mr. Pullio went on their respective ways. On February 5, 2001, Marjorie Rigdon, Nursing Supervisor, witnessed Respondent pull Mr. Flash by his arm out of a medication line and push Mr. Flash so violently that Mr. Flash "staggered backwards" but "managed to catch himself before he fell." Ms. Rigdon wrote a Behavior Management Report memorializing this incident and recommending as alternative means to prevent recurrence of such incidents, that Respondent and Mr. Flash report for medication at different times or that Respondent be missed. Mr. Flash had a reputation for butting ahead in the medication line. It is probable Mr. Flash broke in line out of turn on February 5, 2001. Misunderstandings regarding the medication line and alleged breaking in line are frequent at The Veterans' Home. Mentally impaired patients frequently will not wait in turn. Counseling or case management concerning the problem is a frequent occurrence. There was evidence that residents who observed the February 5, 2001, incident were divided on whether Respondent was a hero for defending fair play (waiting in line) or a villain for interfering with Mr. Flash's position in line. Mr. Flash voluntarily checked out of The Veterans' Home prior to the disputed-fact hearing. Respondent has no known mental infirmity, but he has frequently evidenced lack of patience and demonstrated intolerance of mentally infirm residents. At the same time, he has been a valiant defender of those physically infirm patients he has been asked by the Home's staff to assist and those physically infirm patients he has appointed himself to assist. He has always responded to the administrator's requests to help other residents. Even now, the administrator would trust him to orient new residents. As of the date of hearing, Respondent had resided at The Veterans' Home for 18 months and had served as elected vice- president of the Residents' Council for the last six months. During the five months between the February 5, 2001, incident and the date of hearing, Respondent's behavior seems to have remediated. Instructed and cautioned by Mr. Orwell, the elected President of the Residents' Council, Respondent has modified his impatience and his aggressive behavior by writing- up reports of residents' conflicts for resolution by the Administrator or for mediation by the Residents' Council, Mr. Orwell, or himself. The administrator acknowledged Respondent's recent good behavior but attributed it to the potential of the instant cause to dismiss him from The Veterans' Home.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Veterans Affairs enter a final order which: Rescinds the February 16, 2001, letter of dismissal and returns Respondent to full status in the Robert H. Jenkins Veterans' Domiciliary Home. DONE AND ENTERED this 27th day of September, 2001, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 September, 2001. COPIES FURNISHED: James Sloan, General Counsel Department of Veterans Affairs Koger Center, Douglas Building, Suite 100 2540 Executive Center Circle, West Tallahassee, Florida 32301-4746 Weyman T. Johnson, Qualified Representative Suite 2400 600 Peachtree Street Northeast Atlanta, Georgia 30308-2222 Jennifer Carroll, Executive Director Department of Veterans Affairs Koger Center, Douglas Building, Suite 100 2450 Executive Center Circle, West Tallahassee, Florida 32301-2222
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 The issue in this case is whether Petitioner's license should be classified as conditional, pursuant to Section 400.23(8)(b), Florida Statutes (1999), and Florida Administrative Code Rule 59A-4.1288. (All chapter and section references are to Florida Statutes (1999) unless otherwise stated. Unless otherwise stated, all references to rules are to the Florida Administrative Code in effect on the date of this Recommended Order).
Findings Of Fact Respondent is the state agency responsible for evaluating nursing homes in Florida pursuant to Section 400.23(8). Petitioner is a licensed nursing home located in Titusville, Florida (the "facility"). Chapter 400 originally required Respondent to conduct a survey of each nursing home in Florida every 12 months. Each survey was commonly referred to as an annual survey. The legislature subsequently changed the survey interval to every 15 months, but each survey is still referred to as an annual survey. Respondent conducted an annual survey of the facility on November 17 through 19, 1999. The survey report is identified in the record as the "2567 Report." The parties agree that the 2567 Report is the charging document. The 2567 Report expressly determined that Petitioner failed to ensure that resident number four (the "resident") did not develop pressure sores on September 16, 1999, and that Petitioner failed to ensure that the resident received the necessary treatment and services to prevent pressure sores from developing. The parties stipulated that no other deficiency is at issue in this proceeding. The resident had developed pressure sores on June 18, 1999, but those sores had healed before September 16, 1999, and are not at issue in this proceeding. The 2567 Report determined that the alleged deficiency violates 42 Code of Federal Regulations ("CFR") Section 483.25(c). Rule 59A-4.1288 applies relevant federal regulations to Florida nursing homes. The 2567 Report identifies the standard of care at issue as Tag F314. Based on the Tag 314, Respondent issued Petitioner a nursing home operating license rated as "Conditional" for the period November 19, 1999, through December 23, 1999. The conditional license decreased the license rating for Petitioner from "Standard" to "Conditional" within the meaning of Section 400.23(8). On December 23, 1999, Respondent conducted a follow-up survey. Respondent determined that Petitioner had corrected the deficiencies in Tag F314 and issued a "Standard" license pursuant to Section 400.23(8)(a). Respondent rated the severity of alleged deficiency between November 19 and December 23, 1999, with a rating of "II". A severity rating of "II" means the deficiency presented an immediate threat to the health, safety, or security of residents in the facility. Respondent is also required to rate the deficiency under a federal classification system. Respondent assigned a scope and severity rating of "G" to the alleged deficiency between November 19 and December 23, 1999. A "G" rating means an isolated incident creates actual harm to a resident, but the resident is not in immediate jeopardy. Applicable law requires that Petitioner post the conditional license in a conspicuous place near the entrance of the facility. Petitioner did so and filed a Petition for Formal Administrative Hearing with Respondent. The Petition challenged the finding of the November survey that Petitioner committed a Class II deficiency and also challenged Respondent's decision to issue a conditional license to Petitioner. Respondent referred the Petition to DOAH and this proceeding ensued. Open Areas A threshold issue is whether the resident developed pressure sores or whether the open areas were reddened areas or friction blisters that did not satisfy the definition of pressure sores. A pressure sore is defined in 42 CFR Section 483.25(c) as: . . . ischemic ulceration and/or necrosis of tissues overlying a bony prominence that has been subjected to pressure, friction or shear. Neither of the open areas over the resident's left and right hips satisfied the definition of a pressure sore. Neither open area was located over a bony area. Both wounds were located over a fatty area of the resident's hips. The medical records describe the area over the right hip as having peeled-back skin, being small in size, and having yellow slough. That description is consistent with chafing and is not descriptive of a pressure sore. Unlike the two open areas over the resident's hips, the open area over the resident's coccyx was located over a bony area of the tailbone. However, the small size and rapid healing time of two weeks are consistent with contact dermatitis caused by diarrhea rather than a pressure sore. The open area did not have the deep tissue damage associated with a pressure sore. Pressure sores start deep in the muscle and work their way to the surface. They are caused by prolonged pressure to skin over a bony area and typically require a prolonged healing time. The open area over the resident's right hip had healed by December 23, 1999, when Respondent conducted the follow-up survey. However, the open area over the resident's left hip had not healed as of the date of administrative hearing on May 12, 2000. The long healing time for the open area over the resident's left hip is consistent with a pressure sore even though the area is not located over a bony area. Petitioner performed an MRI bone scan to determine why the open area over the resident's left hip was not healing. The scan revealed that the resident had a prosthetic hip and that the prosthesis had loosened. The MRI scan noted that the "skin wound shows no associated bone activity." The failure of the wound to heal, more likely than not, was caused by stress on the resident's skin from the interaction between the loose prosthesis and the contraction and relaxation of the resident's muscles. The resident's clinical condition demonstrates that the occurrence of the open area over the resident's left hip and its failure to heal were unavoidable. Petitioner did not fail to provide the treatment and services necessary to prevent the open area over the left hip from developing. The treatment measures used by Petitioner for the open area over the resident's left hip included debridement, or surgical cleaning. Surgical cleaning of the open area is appropriate for a friction blister as well as a pressure sore. Unlike Respondent's witness, both of the witnesses for Petitioner actually observed the resident. The Director of Nursing and the nurse that testified for Petitioner both concluded that the three open areas on the resident were not pressure sores. Their testimony was credible and persuasive. Petitioner listed the three open areas at issue on the Pressure Ulcer Report in the medical records because that is the only form available to document open wound and treatment areas. The medical records contain six references that describe the three open areas on the resident as ulcers or decubitis wounds. Hundreds of other references in the medical records describe each of the three open areas as a wound, blistered area, or red area. Notice Assuming arguendo that the three open areas on one resident were pressure sores, a second threshold issue is whether the 2567 Report provides adequate notice of the charges against Petitioner. The parties agree that the 2567 Report charged Petitioner with allowing a pressure sore to develop and with failing to ensure that the resident received the care and services needed to prevent pressure sores from developing. However, the parties dispute whether the 2567 Report charged that Petitioner failed to provide the services necessary to promote healing. Tag F314 in the charging document provides notice to Petitioner in the following manner. Tag F314 first states the "Requirement" for the quality of care of each resident, then states the basis for the conclusion that the "Requirement" was not met for the resident, and finally states the "Findings" that allegedly support the conclusion. In relevant part, Tag F314 states: F314 483(25(c) Requirement SS=G Quality of Care (emphasis supplied) Based on the comprehensive assessment of a resident, the facility must ensure that a resident who enters the facility without pressure sores does not develop pressure sores unless the individual's clinical condition demonstrates that they were unavoidable; and a resident having pressure sores receives necessary treatment and services to promote healing, prevent infection and prevent new sores from developing. (emphasis supplied) This requirement is not met as evidenced by: The facility did not ensure that [the resident] received the care and services to prevent pressure sores from developing. (emphasis supplied) Findings: Resident #4 was admitted 1/27/98 with diagnoses of dementia, bronchitis, thrombosis and embolism. Her MDS (Minimum Data Set) dated 6/18/99 indicated she had three (3) stage II pressure sores. These apparently healed because documentation in the nurses notes dated 9/10/99, noted "no open areas". Her care plan dated 9/20/99 noted open areas to the left hip, stage II, measuring 4 x 1.5 cm and right hip, unstageable, measuring 3 cm, and sacral area, stage II, measuring 2 cm. Documentation on 10/5/99 noted the coccyx was healed and on 10/12/99, left and right hips reddened stage I. On 9/16/99 at 10:55PM, documentation in the nurses notes indicated "3 x 3 red area left hip with 2 intact blisters below". The next note on 9/17/99 at 10:30 PM indicated "preventative skin care". The pressure ulcer reports noted that the pressure sore on left and right hips was first observed on 9/16/99 as stage I. On 9/20/99, four (4) days later, both pressure sores were noted as stage II, measuring 1 cm round with the left hip having serous drainage and the right hip having scant drainage. However, nurses notes documented on 9/20/99 that the pressure sore on right hip measured cm red with brown center, left hip measured cm red with 1.5 cm soft, open white/brown center, and sacral area 2 cm red open. By 9/24/99 documentation in the pressure ulcer report noted the left hip increased in size to 2.2 x 4 cm. Documentation noted right hip increased to 1.6 x 1.4 cm 10/21/99. Nurses notes dated 9/22/99 at 7:00 PM noted, "treatment orders received from doctor", six (6) days after the pressure sore was first observed and two days after the order was faxed to the physician. Interview with charge nurses on both units on 11/16/99, at 3:30 PM and 11/17/99 at 2:00 PM revealed they did not know why the resident had developed pressure sores. Observation of the pressure sore on 11/17/99 at 1:00 PM revealed the left hip measuring 1.5 x 2.5 cm with yellow slough and the right hip measuring 1.1 x 0.7 cm with a necrotic area on top. There was no way to determine what stage the pressure sore on the left hip was at this time since it was covered with slough. The charge nurse indicated that the pressure sores had become worse over the weekend. The resident was observed on 11/18/99 from 9:35 AM in bed, lying on her back and head of bed elevated 45 degrees, 10:20 AM, lying flat on her back in bed, 11:48 AM and 12:20 PM lying on her back flat in bed. The resident's position was changed at 1:30 PM when she was turned to her left side. During the course of the survey, the resident was never observed out of bed. Additionally, the resident had a 36 pound weight loss for one year and a 13 pound weight loss for six months. There was no documentation that the facility provided services necessary to ensure that this resident did not develop pressure sores and no documentation that the physician was notified promptly after the pressure sores were first observed. Documentation revealed that the facility notified the physician when the pressure sores on both hips were stage II and six days after they were first observed. (emphasis supplied) The express terms of Tag F314 do not charge that Petitioner failed to provide the resident with the necessary treatment and services to promote healing and prevent infection. Evidence of any alleged deficiency not contained in the express terms of the charging document are not relevant and material to the allegations in the charging document. Open Areas Were Unavoidable Assuming arguendo that one or more of the three open areas on the resident were pressure sores and that the 2567 support provided adequate notice of the charge that Petitioner's services failed to promote healing and prevent infection, two issues must be determined. One issue is whether the resident's clinical condition made the occurrence of the pressure sores unavoidable. The other issue is whether Petitioner failed to provide the treatment and services necessary to prevent the pressure sores. Respondent's witness did not evaluate whether the resident's open areas were avoidable. The witness did not offer an opinion on this issue. The resident was originally admitted to the facility in 1991. She has resided there since that time except for a number of brief trips to the hospital. She is a long-term resident of the facility whose needs are well known to facility staff. By 1999, the resident was a very sick woman. Her diagnoses included: Alzheimer's disease/dementia; low thyroid; psychosis; colostomy; artrial fibrillation; mitral valve prolapse; embolism; deep vein thrombosis; dysphagia; anorexia; bronchitis; urinary track infection; electrolyte and fluid imbalance; contractures; depression; intermittent edema; periodic diarrhea; chronic incontinence of bowel and bladder; and decreased tissue tolerance. The resident was routinely evaluated by Petitioner using a Minimum Data Set ("MDS") evaluation tool. The MDS assessment of April 14, 1999, identified the resident as being at risk for, among other things, the development of pressure sores and for weight loss. Petitioner developed a care plan to address these risks. The care plan for pressure sores included prompt cleaning and drying after each incidence of incontinence; regular monitoring of skin condition; a weekly skin assessment; encouraging the resident to maintain her nutrition and hydration; turning and repositioning the resident at least every two hours; and encouraging the resident to participate in movement oriented activities to relieve pressure points. When the resident's skin became compromised and reduced the turning surfaces, Petitioner brought in an air bed. In an effort to provide the resident with the best care possible, Petitioner upgraded the air bed several times without reimbursement. The parties agree that the resident's medical condition was highly compromised and that her condition deteriorated during 1999. She had numerous clinical comorbidities and became bedfast due to the development of contractures. The major problems that required constant monitoring and adjustment to the resident care plan included chronic incontinence of the bladder that resulted in excoriation and breakdown of the resident skin. Petitioner routinely used a Foley catheter for the resident to allow her skin to heal. Once the skin healed, the catheter was removed. Once the catheter was removed, the resident would suffer from renewed excoriation and breakdown of her skin. This cycle repeated itself throughout 1999. The resident also suffered from edema throughout 1999. This resulted in her being hospitalized on June 9, 1999. Whenever the resident experienced worsening of her edema, she would be put on Lasix. When her edema abated, Petitioner discontinued its Lasix. The resident experienced weight loss as her medical condition deteriorated. She weighed 162 pounds on January 15, 1999, and 121 pounds by August 15, 1999. Her weight stabilized in August, however, and never dropped below her ideal body weight. Petitioner tried numerous interventions to stabilize and increase the resident's weight. One intervention included dietary supplements. However, dietary supplements had to be discontinued because they caused diarrhea. The resident suffered from dysphagia that created difficulty in eating and swallowing. In an attempt to overcome this condition, Petitioner gave the resident speech therapy and put her on a pureed diet. Throughout 1999, Petitioner continued to evaluate the resident's condition and to provide her with the best possible care. Petitioner gave the resident MDS evaluations seven times between March and September, 1999. All of the resident's body functions, including skin integrity, were constantly on the verge of becoming dysfunctional. On September 12 and 13, 1999, the East Coast of Florida was threatened by Hurricane Floyd. Hurricane Floyd appeared to be heading straight for Titusville. The facility administrator monitored the national disaster center, the hurricane center, and the local weather information. The facility administrator decided that Petitioner should evacuate the facility to provide for the safety of the residents. The evacuation of a nursing home is a demanding task. All residents must be fed and have liquids during the transfer. The facility has to make sure that the residents' medications and medical devices and clothes will travel with the residents. Although Petitioner doesn't usually use adult diapers on its residents, it was necessary during transport from and back to the facility because there is no ability to change resident clothing during the trip. These tasks were made all the harder because Petitioner did not have its full complement of staff due to the hurricane. All in all, it took over five hours to load the residents onto the busses for evacuation. Petitioner evacuated the residents to three central Florida nursing homes that were also short-handed due to the hurricane. Petitioner sent the resident to Plantation Bay in Kissimmee, Florida. While she was there, it was impossible to implement every element of her care plan. Care focused primarily on feeding residents, seeing that they received their medications, and keeping them clean and dry. Petitioner transported the resident's air mattress to Plantation Bay. By September 15, 1999, Hurricane Floyd had passed, and the residents returned to the facility. This again necessitated packing the residents up, placing them in adult diapers, and transporting them back to the facility. When the staff and residents returned to the facility, they found that the electric power was out temporarily. The residents' clothes could not be washed immediately and the residents had to wear adult diapers until the power was restored. On September 16, 1999, the resident underwent a complete evaluation. At that time, it was noted that she had a 3 cm. X 3 cm. red area on her left hip with two small intact blisters below the reddened area. She did not have any open areas at that time. This area was examined again the next day. At that time, the facility was providing preventive skin care and was putting barrier cream on the left hip area. On September 19, 1999, the treating physician examined the resident, and did not note anything concerning her skin integrity. On September 20, 1999, the resident had open areas on her skin for the first time. The nurse's notes on that day describe three open areas as follows: On the right hip there is a 3 cm. open area with peeled skin and a 2 cm. brown center; on the left hip there is a 4 cm. red area with a 1.5 cm. open area with a white/brown center; and on the sacral area there is a 2 cm. open area. Facility staff notified the treating physician of this development and recommended that Allevyn bandages be prescribed for all three open areas. On September 22, 1999, the treating physician notified staff that he concurred with their recommendation. Within two weeks, the area of the coccyx/sacral area had healed completely. The right hip area was completely healed within two months. The left area still had not completely healed at the time of the Final Hearing and continues to be an area of concern and a focus of treatment. On November 15, 1999, before the state survey inspection started, Petitioner had a culture done on the resident's left hip to determine if that area was infected. The results of that laboratory test showed that the area was not infected. On November 23, 1999, Petitioner debrided, or surgically cleaned, the open area on the resident's left hip in an effort to promote healing. On December 23, 1999, Petitioner had a bone scan done to the area of the resident's left hip. The scan noted that there was a possible loosening of the resident's prosthesis and that the "skin wound shows no associated bone activity". Petitioner did everything reasonably possible to prevent the resident from developing pressure sores and to treat the open areas. Petitioner performed seven MDS assessments between March and September, 1999, four Braden assessments during that period, and a weekly head-to-toe skin assessment. Petitioner inspected for skin integrity during the resident's twice-weekly showers. Petitioner turned the resident and repositioned her at least every two hours. In addition, Petitioner turned and repositioned the resident every time she was treated for incontinence and after each meal. Petitioner made every effort to keep the resident dry and clean, even though she had chronic incontinence. Petitioner routinely placed the resident on a catheter to allow her skin to heal. Once her skin was intact, the catheter was removed. However, incontinence led to further skin breakdown that, in turn, led to the catheter being put back in place. Petitioner used a barrier cream in an effort to keep the resident skin dry and clean. When indicated, Petitioner put heel-protecting booties on the resident. When the resident turning surfaces became weakened, Petitioner obtained a pressure- relieving air mattress without reimbursement and upgraded the mattress several times. Proper Care Respondent contends that Petitioner failed to provide the resident with the necessary treatment and services to promote the healing of her pressure sores and that the result of this failure was the development of infections. The particular treatment and services that Respondent alleges Petitioner did not provide are turning and repositioning the resident; notifying the resident doctor in a timely manner after the development of the open areas; and failure to address weight loss. Turning and repositioning a resident who is at risk for the development of pressure sores, or who has developed pressure sores, is a standard intervention. It keeps a resident from having prolonged pressure over any one bony prominence. The standard protocol in the industry calls for a resident to be turned and repositioned at least every two hours. Respondent asserts two grounds for finding that the resident was not turned and repositioned every two hours. First, the nurse's notes do not always state that the resident was turned and repositioned. Of 720 possible opportunities to note turning and repositioning between March 24 and November 19, 1999, the nurses' notes contain 105 entries that refer to turning and repositioning. According to Respondent's expert witness, if turning and repositioning isn't in the chart, it didn't occur. The resident was extremely compromised and was at great risk for the development of pressure sores. If the resident had been turned and repositioned only 105 times of 720 opportunities, she would have developed serious pressure ulcers on all of her weight-bearing surfaces including her heels, knees, and ankles. She would have developed Stage IV ulcers on her heels and sacrum had she not been regularly turned and repositioned. The absence of pressure sores on the resident is persuasive evidence that Petitioner regularly turned and repositioned the resident. There is no requirement or nursing standard that routine care such as turning and repositioning must be charted. Routine care is sometimes charted by nurses out of habit, but charting turnings and repositionings is not mandatory. The resident's records show that charting of certain routine items was irregular. For example, the air mattress for the resident remained in place once it was put in place. The resident's chart notes the presence of an air mattress on June 6, 8, 11, and 17. There is no mention of the air mattress in the nurses' notes of June 9, 10, 13, 14, 15, 18, 19, or 20. There are multiple nurses' notes on June 12, 21, 24, 26 and 30, wherein one of the notes mentions the air bed and others do not. Similarly, the charts note that the resident had open areas to her skin for September 16, 20, 30, and October 4 and 5, 1999. The nurses' notes for September 17, 22, 24, 29, and October 7 and 8, 1999, do not mention the resident's skin condition. The surveyor noted in relevant part: The resident was observed on 11/18/99, from 9:30 AM in bed, lying on her back and the head of bed elevated 45 degrees, 10:20 AM, lying on her back flat in bed, 11:48 AM and 12:20 PM lying on her back flat in bed. The resident's position was changed at 1:30 PM when she was turned to her left side. From this recitation, Respondent infers that the resident was not turned and repositioned for a four-hour period on November 18, 1999, and was not, therefore, regularly turned and repositioned. The resident had severe contractures that resulted in her left leg being pulled way up and across her body. Due to this condition, the resident could appear to be lying flat on her back when she was either on her back or when she was actually on her right side. The surveyor did not enter the resident's room when the surveyor made the observations contained in the survey report. The surveyor merely observed the resident briefly from the hallway. The surveyor mistakenly believed the resident was on her back when she was actually on her right side. The Director of Nursing was aware that the resident was a focus of the survey. The Director directed her CNA's, her wing managers, and her Assistant Director of Nursing to be sure that the resident was regularly turned and repositioned. The Director personally checked to confirm that the resident was regularly repositioned. She knew of her own knowledge that the resident was turned and repositioned at least every two hours and identified the person who physically did the turning. Respondent asserts that Petitioner was deficient because it did not notify the resident's doctor of her skin condition for a period of six days. Respondent bases this allegation on the fact that the first red area on the resident was observed on September 16, 1999, and the doctor's concurrence of staff's recommended treatment was not received until September 22, 1999. The resident's treating physician visited her at the facility on September 19, 1999. He did not determine that additional treatment orders were needed at that time. Facility staff first noted open areas on the resident on September 20, 1999, and notified the treating physician on that day. In the notification, staff requested that the physician approve a treatment plan that called for "cleanse w/ N/S then apply Requesting Allevyn Islands for all three. Change every three days & prn." The physician was out of town, but approved the recommendation when he returned on September 22, 1999. The resident's physician visited her after the red area was observed on her left hip, but before it became open. Petitioner notified the physician immediately upon noting the open areas. The two-day delay in getting confirmation of the recommended treatment was caused by the physician's absence and not by Petitioner. Respondent's witness testified that the resident's weight loss "was a factor that influenced the clinical outcome of the pressure ulcer," that it "was a tangible manifestation of some type of physiological symptom failure," and that the weight loss indicated that the resident was at risk for developing pressure sores. However, Petitioner knew that the resident was at risk for developing pressure sores. Petitioner prepared and implemented numerous care plans to deal with this risk. Respondent did not allege that the nutritional services provided to the resident were inadequate. The resident never dropped below her ideal body weight. The resident stabilized in August 1999, approximately 123 pounds. Petitioner provided the resident with speech therapy for dysphagia and difficulty with swallowing and digestion. Petitioner provided the resident with dietary supplements to increase her caloric intake. The supplements were discontinued because they caused diarrhea. Petitioner placed the resident on a pureed diet in an effort to make her food easier to eat. A dietitian evaluated the resident 23 times between May 27 and December 8, 1999. Respondent did not identify any dietary or nutritional intervention that Petitioner should have taken, or any ill- advised nutritional treatment that Petitioner did provide. Petitioner was aware of the resident's weight loss, constantly evaluated and reevaluated her nutritional needs and strategies for meeting them, and successfully halted her weight loss while she was still within her ideal body weight and before she suffered any breakdown of her skin. No nutritional deficiency was shown. Respondent infers that the resident's wound to her left hip became infected because it was noted at one time in the nurse's notes to have a foul odor and pus. As a part of the treatment of the resident's left hip, Petitioner applied Hydrogel directly on the wound and Polyskin over that. The dressing remained in place for three days. The dressing created a foul odor as it disintegrated over the three days it was in place. As the serous drainage of the wound mixes with the medication, it creates the appearance of pus. Petitioner had a culture done to test for infection. The culture test was ordered before the survey inspection. The test demonstrated that the resident did not have an infection. In addition, the resident's physician never prescribed an antibiotic for infection. At the time of the inspection, the resident census at the facility was 113. Of those, at least 50 percent were identified as being at risk for the development of pressure sores. Based on the national average of a 7-9 percent incidence of pressure sores on nursing home residents, one would expect that the facility would have 8 to 10 residents at any one time with pressure sores. The resident was the only resident Respondent alleged to have pressure sores. Class II Rating Assuming arguendo that the resident did actually develop three pressure sores, the greater weight of the evidence suggests that she was turned and repositioned on a regular basis at least every two hours; that her physician was properly kept abreast of changes in her condition; that her nutritional status was regularly evaluated and every effort was made to maintain her weight; and that her wounds did not become infected and were superficial and relatively mild. As such, it was not proven that the alleged deficiencies had more than an indirect or potential relationship to the health, safety, or security of the resident. The alleged deficiencies should have therefore been classified as no more than Class III deficiencies, and Petitioner should not have been issued a Conditional license.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order finding Respondent not guilty of the alleged deficiency and reinstating Respondent's license rating to standard for the period between November 19 and December 23, 2000. DONE AND ENTERED this 27th day of September, 2000, 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 27th day of September, 2000. COPIES FURNISHED: Mark S. Thomas, Esquire Michael Hope, Esquire Agency for Health Care Administration Fort Knox Building 3 2727 Mahan Drive Tallahassee, Florida 32308-0543 R. Davis Thomas, Jr., Qualified Representative Jay Adams, Esquire Broad and Cassel 215 South Monroe Street, Suite 400 Tallahassee, Florida 32301 Sam Power, Agency Clerk Agency for Health Care Administration Fort Knox Building 3 2727 Mahan Drive, Suite 3431 Tallahassee, Florida 32308 Paul J. Martin, General Counsel Agency for Health Care Administration Fort Knox Building 3 2727 Mahan Drive, Suite 3431 Tallahassee, Florida 32308-5403
Findings Of Fact Respondent Gulf Coast Home Health Services, Inc. is a corporation providing home health care services in several Florida counties. It has an office in Hernando County and also serves clients in Citrus County. It presently has no license to serve Citrus County and has no Subunit in Hernando County. Petitioner Department of Health and Rehabilitative Services notified Respondent on January 17, 1980 that it intended to enter a final order requiring Respondent to terminate its operations in the two counties, aid Respondent requested an administrative hearing. Respondent's home office is located in St. Petersburg, Pinellas County, Florida. It was licensed to serve an area including Pinellas, Pasco, Hillsborough and Hernando Counties until licensure in 1980-81, when Hernando County was omitted. It was then stipulated that Respondent could continue operations in Hernando County until the final order in this case. Respondent was licensed to serve said counties without obtaining a certificate of need inasmuch as Petitioner had determined that Section 400.504, Florida Statutes, was inapplicable to those counties in which there was service to the area previous to the effective date of the statute. Respondent first served Hernando County from its Pinellas County office, but after opening an office in Pasco County in April of 1979, it notified Petitioner that it was serving Hernando County from its Pasco County office. Petitioner wrote a letter to Respondent on April 28, 1978 stating that in view of the increased expansion of Gulf Coast Home Health Services, Inc. into Hernando County, a sufficient client population base in Hernando County, and because of the time and distance factors from Pinellas County to Hernando County, a "Subunit" must be established in Hernando County (Petitioner's Exhibit 2, page 17). Respondent replied to the April correspondence by letter dated October 20, 1978 that servicing of Hernando County bad been moved from Pinellas County to Pasco County and stated that Respondent, too, saw a need to establish an office in Hernando County (Petitioner's Exhibit 2, page 14). Thereafter, an office was opened in Brooksville, Hernando County, Florida, by Respondent, but no application for a Subunit was filed. By correspondence dated June 14, 1979 Petitioner notified Respondent that a certificate of need had been deemed not necessary but an application for a Subunit was necessary and should be filed by July 6, 1979, and that a survey would then be scheduled. No application was filed, and a Notice to Show Cause why the Respondent's license should not be modified was issued on August 23, 1979. Respondent took no action. The office that was established in Brooksville, Florida in April of 1979 is under the overall general supervision of an Associate Director of Nursing. The Associate is the supervisor of the staff in the office both as to patient care and the clerical processing of all office records. The Associate's duties include supervision of a variety of skilled professional nurses, physical therapists, speech therapists, occupational therapists, social workers, home health aides and homemakers as well as the supervision of clerical personnel. The field supervisor in St. Petersburg coordinates the care of patients from the hospital to the home and relays information regarding patient care from the patient's physician to the nursing supervisor in the Brooksville office, who in turn relays the information to the appropriate staff who visit the patient. Patient medical records and plans for treatment are kept in the Brooksville office except for the annual survey, when they are moved to the home office in St. Petersburg. Some billing and typing of progress notes for the Brooksville office is provided by the Respondent's office in New Port Richey before such records are sent to the home office in St. Petersburg, Florida. The distance from Brooksville in Hernando County to St. Petersburg in Pinellas County is approximately 63 miles. Pasco County, where Respondent has another office, is between Pinellas County arid Hernando County. The distance between the office site in New Port Richey and that of Brooksville is about 37 miles. The area is rapidly growing, and the traffic is often congested on the few highways. II. On August 26, 1976 the Program Coordinator for Home Health Services of the Department of Health and Rehabilitative Services stated in a letter to the president of Gulf Coast Home Health Services, Inc. that Respondent had agreed to assume care on an interim basis of the former patients of Alaris Home Health Care Agency, which had ceased operations in Citrus County, Florida. The letter further stated that if the staff of that agency were employed by Respondent they should be supervised from the central office of Gulf Coast Home Health Service, Inc. (Petitioner's Exhibit 3, pages 15-16). Respondent accepted the patients of Alaris in August of 1976 as well as other patients from Citrus County. It continued to serve patients from Citrus County but did not apply for a license to serve Citrus County and did not include that county on its applications for licensure for the other counties it served until 1980. In late 1978 or early 1979 the Director of the office of Licensure and Certification, Department of Health and Rehabilitative Services, received a complaint from Central Florida Home Health Agency, Inc. that Respondent was operating in Citrus County. The Director notified Respondent's Director that Gulf Coast Home Health Service, Inc. was not licensed to serve Citrus County and requested some action. On January 15, 1979 Respondent sent a memorandum to the Brooksville office in Hernando County instructing the staff to cease serving Citrus County and forwarded a copy of said memorandum to Petitioner. However, before the memorandum was effected Respondent's Director verbally rescinded his directive, without notifying Petitioner, and continued to serve patients in Citrus County (Petitioner's Exhibit 3; Transcript, pages 139-144) Central Florida Home Health Agency, Inc. has been issued a license to service Citrus County, and at present both that agency and Respondent are serving patients in Citrus County, Florida. Central Florida Home Health Agency, Inc. has requested the Department of Health and Rehabilitative Services to enjoin Respondent from its activities in Citrus County. Both parties submitted proposed findings of fact, memoranda of law and proposed recommended orders. These instruments were considered in the writing of this order. To the extent the proposed findings of fact have not been adopted in or are inconsistent with factual findings in this order, they have been specifically rejected as being irrelevant or not having been supported by the evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that Respondent be required to cease its operations in Hernando County until and unless it is licensed as a Subunit. It is also recommended that Respondent terminate its operation in Citrus County until and unless it is licensed to serve said county. DONE and ORDERED this 5th day of September, 1980, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Robert P. Daniti, Esquire Department of HRS 1323 Winewood Boulevard Tallahassee, Florida 32301 Howard P. Ross, Esquire 980 Tyrone Boulevard Post Office Box 41100 St. Petersburg, Florida 33743
The Issue The issues for determination are: (1) whether the noncompliance as alleged during the August 30, 2001, survey and identified as Tags F324 and F242, were Class II deficiencies; (2) whether the "Conditional" licensure status, effective August 30, 2001, to September 30, 2001, based upon noncompliance is appropriate; and (3) whether a fine in the amount of $5,000 is appropriate for the cited noncompliance
Findings Of Fact Charlotte is a nursing home located at 5405 Babcock Street, Northeast, Fort Myers, Florida, with 180 residents and is duly licensed under Chapter 400, Part II, Florida Statutes. AHCA is the state agency responsible for evaluating nursing homes in Florida pursuant to Section 400.23(7), Florida Statutes. As such, in the instant case it is required to evaluate nursing homes in Florida in accordance with Section 400.23(8), Florida Statutes (2000). 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 that receive Medicaid or Medicare funds. On August 27 through 30, 2001, AHCA conducted an annual survey of Charlotte's facility and alleged that there were deficiencies. These deficiencies were organized and described in a survey report by "Tags," numbered Tag F242 and Tag F324. The results of the survey were noted on an AHCA form entitled "Statement of Deficiencies and Plan of Correction." The parties refer to this form as the HCFA 2567-L or the "2567." The 2567 is the document used to charge nursing homes with deficiencies that violate applicable law. The 2567 identified each alleged deficiency by reference to a Tag number. Each Tag on the 2567 includes a narrative description of the allegations against Charlotte and cites a provision of the relevant rule or rules in the Florida Administrative Code violated by the alleged deficiency. To protect the privacy of nursing home residents, the 2567 and this Recommended Order refer to each resident by a number (i.e., Resident 24) rather than by the name of the resident. AHCA must assign a class rating of I, II or III to any deficiency that it identifies during a survey. The ratings reflect the severity of the identified deficiency, with Class I being the most severe and Class III being the least severe deficiency. There are two Tags, F242 and F324 at issue in the instant case, and, as a result of the August 2001 survey, AHCA assigned each Tag a Class II deficiency rating and issued Charlotte a "Conditional" license effective August 30, 2001. Tag F242 Tag F242 generally alleged that Charlotte failed to meet certain quality of life requirements for the residents, based on record review, group interviews, and staff interviews, and that Charlotte failed to adequately ensure that the residents have a right to choose activities that allow them to interact with members of the community outside the facility. On or about August 24, 2001, AHCA's surveyors conducted group interviews. During these interviews, 10 of 16 residents in attendance disclosed that they had previously been permitted to participate in various activities and interact with members of the community outside the facility. They were permitted to go shopping at malls, go to the movies, and go to restaurants. Amtrans transportation vans were used to transport the residents to and from their destinations. The cost of transportation was paid by Charlotte. An average of 17 to 20 residents participated in those weekly trips to dine out with other community members at the Olive Garden and other restaurants. During those trips, Charlotte would send one activity staff member for every four to six residents. The record contains no evidence that staff nurses accompanied those select few residents on their weekly outings. The outings were enjoyed by those participants; however, not every resident desired or was able to participate in this particular activity. Since 1985, outside-the-facility activities had been the facility's written policy. However, in August 2000, one year prior to the survey, Matthew Logue became Administrator of the facility and directed his newly appointed Activities Director, Debbie Francis, to discontinue facility sponsored activities outside the facility and in its stead to institute alternative activities which are all on-site functions. Those residents who requested continuation of the opportunity to go shopping at the mall or dine out with members of the community were denied their request and given the option to have food from a restaurant brought to the facility and served in-house. The alternative provided by the facility to those residents desiring to "interact with members of the community outside the facility" was for each resident to contact the social worker, activity staff member, friends or family who would agree to take them off the facility's premises. Otherwise, the facility would assist each resident to contact Dial-A-Ride, a transportation service, for their transportation. The facility's alternative resulted in a discontinuation of all its involvement in "scheduling group activities" beyond facility premises and a discontinuation of any "facility staff members" accompanying residents on any outing beyond the facility's premises. As described by its Activities Director, Charlotte's current activities policy is designed to provide for residents' "interaction with the community members outside the facility," by having facility chosen and facility scheduled activities such as: Hospice, yard sales, barbershop groups for men and beautician's day for women, musical entertainment, antique car shows, and Brownie and Girl Guides visits. These, and other similar activities, are conducted by "community residents" who are brought onto the facility premises. According to the Activities Director, Charlotte's outside activities with transportation provided by Amtrans buses were discontinued in October of 2000 because "two to three residents had been hurt while on the out trip, or on out-trips."1 Mr. Logue's stated reason for discontinuing outside activities was, "I no longer wanted to take every member of the activities department and send them with the resident group on an outing, thereby leaving the facility understaffed with activities department employees." The evidence of record does not support Mr. Logue's assumption that "every member of the facility's activities department accompanied the residents on any weekly group outings," as argued by Charlotte in its Proposed Recommended Order. Charlotte's Administrator further disclosed that financial savings for the facility was among the factors he considered when he instructed discontinuation of trips outside the facility. "The facility does not sponsor field trips and use facility money to take people outside and too many staff members were required to facilitate the outings." During a group meeting conducted by the Survey team, residents voiced their feelings and opinions about Charlotte's no longer sponsoring the field trips on a regular basis in terms of: "feels like you're in jail," "you look forward to going out," and being "hemmed in." AHCA's survey team determined, based upon the harm noted in the Federal noncompliance, that the noncompliance should be a State deficiency because the collective harm compromised resident's ability to reach or maintain their highest level of psychosocial well being, i.e. how the residents feel about themselves and their social relationships with members of the community. Charlotte's change in its activities policy in October of 2000 failed to afford each resident "self- determination and participation" and does not afford the residents the "right to choose activities and schedules" nor to "interact with members of the community outside the facility." AHCA has proved the allegations contained in Tag F242, that Charlotte failed to meet certain quality of life requirements for the residents' self-determination and participation. By the testimonies of witnesses for AHCA and Charlotte and the documentary evidence admitted, AHCA has proven by clear and convincing evidence that Charlotte denied residents the right to choose activities and schedules consistent with their interests and has failed to permit residents to interact with members of the community outside the facility. Tag F324 As to the Federal compliance requirements, AHCA alleged that Charlotte was not in compliance with certain of those requirements regarding Tag F324, for failing to ensure that each resident receives adequate supervision and assistance devices to prevent accidents. As to State licensure requirements of Sections 400.23(7) and (8), Florida Statutes (2000), and by operation of Florida Administrative Code, Rule 59A-4.1288, AHCA determined that Charlotte had failed to comply with State established rules, and under the Florida classification system, classified Tag F324 noncompliance as a Class II deficiency. Based upon Charlotte's patient record reviews and staff interviews, AHCA concluded that Charlotte had failed to adequately assess, develop and implement a plan of care to prevent Resident 24 from repeated falls and injuries. Resident 24 was admitted to Charlotte on April 10, 2001, at age 93, and died August 6, 2001, before AHCA's survey. He had a history of falls while living with his son before his admission. Resident 24's initial diagnoses upon admission included, among other findings, Coronary Artery Disease and generalized weakness, senile dementia, and contusion of the right hip. On April 11, 2001, Charlotte staff had Resident 24 evaluated by its occupational therapist. The evaluation included a basic standing assessment and a lower body assessment. Resident 24, at that time, was in a wheelchair due to his pre-admission right hip contusion injury. On April 12, 2001, two days after his admission, Resident 24 was found by staff on the floor, the result of an unobserved fall, and thus, no details of the fall are available. On April 23, 2001, Resident 24 was transferred to the "secured unit" of the facility. The Survey Team's review of Resident 24's Minimum Data Set, completed April 23, 2001, revealed that Resident 24 required limited assistance to transfer and to ambulate and its review of Resident 24's Resident Assessment Protocols (RAPs), completed on April 23, 2001, revealed that Resident 24 was "triggered" for falls. Charlotte's RAP stated that his risk for falls was primarily due to: (1) a history of falls within the past 30 days prior to his admission; (2) his unsteady gait; (3) his highly impaired vision; and (4) his senile dementia. On April 26, 2001, Charlotte developed a care plan for Resident 24 with the stated goal that the "[r]esident will have no falls with significant injury thru [sic] July 25, 2001," and identified those approaches Charlotte would take to ensure that Resident 24 would not continue falling. Resident 24's care plan included: (1) place a call light within his reach; (2) do a falls risk assessment; (3) monitor for hazards such as clutter and furniture in his path; (4) use of a "Merry Walker" for independent ambulation; (5) placing personal items within easy reach; (6) assistance with all transfers; and (7) give Resident 24 short and simple instructions. Charlotte's approach to achieving its goal was to use tab monitors at all times, to monitor him for unsafe behavior, to obtain physical and occupational therapy for strengthening, and to keep his room free from clutter. All factors considered, Charlotte's care plan was reasonable and comprehensive and contained those standard fall prevention measures normally employed for residents who have a history of falling. However, Resident 24's medical history and his repeated episodes of falling imposed upon Charlotte a requirement to document his records and to offer other assistance or assistive devices in an attempt to prevent future falls by this 93-year-old, senile resident who was known to be "triggered" for falls. Charlotte's care plan for Resident 24, considering the knowledge and experience they had with Resident 24's several falling episodes, failed to meet its stated goal. Charlotte's documentation revealed that Resident 24 did not use the call light provided to him, and he frequently refused to use the "Merry Walker" in his attempts of unaided ambulation. On June 28, 2001, his physician, Dr. Janick, ordered discontinuation of the "Merry Walker" due to his refusal to use it and the cost involved. A mobility monitor was ordered by his physician to assist in monitoring his movements. Charlotte's documentation did not indicate whether the monitor was actually placed on Resident 24 at any time or whether it had been discontinued. Notwithstanding Resident 24's refusal to cooperatively participate in his care plan activities, Charlotte conducted separate fall risk assessments after each of the three falls, which occurred on April 12, May 12, and June 17, 2001. In each of the three risk assessments conducted by Charlotte, Resident 24 scored above 17, which placed him in a Level II, high risk for falls category. After AHCA's surveyors reviewed the risk assessment form instruction requiring Charlotte to "[d]etermine risk category and initiate the appropriate care plan immediately," and considered that Resident 24's clinical record contained no notations that his initial care plan of April 23, 2001, had been revised, AHCA concluded that Charlotte was deficient. On May 13, 2001, Dr. Janick visited with Resident 24 and determined that "there was no reason for staff to change their approach to the care of Resident 24." Notwithstanding the motion monitors, on June 17, 2001, Resident 24 fell while walking unaided down a corridor. A staff member observed this incident and reported that while Resident 24 was walking (unaided by staff) he simply tripped over his own feet, fell and broke his hip. Charlotte should have provided "other assistance devices," or "one-on-one supervision," or "other (nonspecific) aids to prevent further falls," for a 93-year-old resident who had a residential history of falls and suffered with senile dementia. Charlotte did not document other assistive alternatives that could have been utilized for a person in the condition of Resident 24. AHCA has carried its burden of proof by clear and convincing evidence regarding the allegations contained in Tag F324.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Agency enter a final order upholding the assignment of the Conditional licensure status for the period of August 30, 2001 through September 30, 2001, and impose an administrative fine in the amount of $2,500 for each of the two Class II deficiencies for a total administrative fine in the amount of $5,000. DONE AND ENTERED this 13th day of February, 2003, in Tallahassee, Leon County, Florida. FRED L. BUCKINE 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 13th day of February, 2003.
