The Issue The issue is whether Respondent is guilty of discrimination in employment based on race, in violation of Section 760.10(1), Florida Statutes.
Findings Of Fact Respondent owns and operates Indian River Estates, which is an adult community in which residents live independently, in an assisted living facility, or in a medical/nursing facility, as their needs dictate at various times. At all material times, Petitioner, who is black, worked as a certified nursing assistant in the medical/nursing facility. The medical/nursing facility at Indian River Estates comprises three units: the East unit (also known as an acute unit), the Alzheimer's unit, and the South unit. The South unit contains a maximum of 24 beds. Petitioner was first employed at Indian River Estates in June 1999 as a per diem certified nursing assistant. In September 2000, she became a fulltime certified nursing assistant. At one point, Petitioner worked in the East unit, but asked for a transfer because she had felt that a supervising nurse had been "harassing" her. Petitioner provided no other details in support of this assertion. As a result of Petitioner's complaint, Respondent transferred her to the South unit. The record provides no basis for a finding of unlawful discrimination in the treatment that Petitioner received from her supervisor in the East unit. In June 2004, shortly after being transferred to the South unit, Petitioner began a medical leave of absence. She returned to work in January 2005. Because Petitioner was out of work considerably in excess of 12 weeks, Respondent filled her fulltime position with a new employee. Pursuant to its employee policies, which are consistent with the federal Family and Medical Leave Act, Respondent guarantees a person's job only when the employee takes no more than 12 weeks of leave within a 12-month period. When Petitioner was ready to return to work in January 2005, her old job was no longer available. However, Respondent re-hired her as a per diem certified nursing assistant and returned her to fulltime status when an opening occurred. Petitioner cites several other white employees whom, she claims, Respondent treated preferably when they took medical leave. However, each of their cases is distinguishable. One returned from medical leave within 12 weeks. Two were granted brief extensions of the 12 weeks, but never returned to work. The last was granted a three-week extension of the 12 weeks, but returned to work after the extension expired; however, he regained his old job because Respondent had not yet filled it. Although Petitioner has provided a little more detail concerning her return to work from medical leave than she did about her harassment claim, again, the record provides no basis for a finding of unlawful discrimination in the handling of her medical leave or the reassignment of job duties following her subsequent re-hiring. While working in the South unit, Petitioner served as one of two certified nursing assistants. A licensed practical nurse served as the immediate supervisor of the two certified nursing assistants. The licensed practical nurse reported directly to the director of nursing at Indian River Estates. On April 5-6, 2005, Petitioner worked the shift from 11 p.m. to 7 a.m. B. H. was an 88-year-old resident, who was new to the South unit. A former nurse herself, B. H. sometimes lived in the medical unit, when her condition required, but at other times lived in an apartment upstairs, when her condition permitted. B. H.'s diagnoses included a history of breast cancer and functional decline. B. H. was in hospice care as of April 6, 2005. Nurses Progress Notes on April 4, 2005, indicate that B. H. was resisting her prescribed medications, but would take them after repeated persuasion. At 6:00 p.m. on April 5, B. H. received her normal administration of Ativan, which is a mild tranquillizer, from the licensed practical nurse then on duty. When Petitioner and her coworkers started arriving around 10:30 p.m. for the next shift, they found B. H. in an agitated state. Petitioner and the other certified nursing assistant working the 11-7 shift informed Francine Scott, who was the licensed practical nurse for this shift, that B. H. was unsettled. Ms. Scott advised the certified nursing assistants to place the bed alarm so that they could monitor B. H. more easily. Despite repeated efforts of the two certified nursing assistants, B. H. remained agitated. On one occasion, one of the certified nursing assistants found B. H. had half climbed out of her bed and was at risk of injuring herself. The certified nursing assistants told Ms. Scott that they needed to do something more to settle down B. H., and Ms. Scott told them to bring her from her room to the desk. When she saw B. H., Ms. Scott observed that B. H. was bleeding from wounds to both lower legs, evidently from thrashing in her bed. Ms. Scott tried to apply a dressing to a leg wound, but B. H. declined treatment. Ms. Scott offered B. H. some Ativan orally, but B. H. refused to take it, so Ms. Scott left her alone at the front desk and returned to her work. About an hour later, Ms. Scott asked B. H. what had happened. B. H. responded by screaming, "don't touch me," "police," "help," and "I want to go home." Staff from the East unit came to the South unit to find out what was wrong. Ms. Scott directed a certified nursing assistant to take B. H. to a nearby activity room, from which B. H. would less likely disturb other residents. Ms. Scott telephoned B. H.'s physician and reported that B. H. was agitated and cut, but had refused wound treatment and Ativan. Ms. Scott told the physician that she needed help, and the physician ordered Ativan administered by injection. At about 3:00 a.m., Ms. Scott informed B. H. that her physician had ordered the Ativan to help her calm down. Ms. Scott administered Ativan intramuscularly to B. H. Due to the size of the needle, Ms. Scott had to administer two injections in order to administer the prescribed dosage. B. H. did not want to take the injections. While Ms. Scott was trying to administer the injections, B. H. swung her arms from side to side, while seated in her wheelchair. Ms. Scott directed Petitioner to restrain B. H., so Ms. Scott could administer the injections. At times standing and at times seated next to B. H., Petitioner pinned down B. H.'s arms, so they were folded across her chest, while Ms. Scott injected the Ativan. At one point, B. H. bit Petitioner on her left forearm, leaving bite marks. B. H. remained agitated through the rest of the night, but, by breakfast that day, she had calmed down, as her husband had come to the unit to help calm her. By the afternoon, B. H. was taking her Ativan voluntarily and allowed a hospice nurse to dress her leg wounds. Later on April 6 or the following day, B. H. complained about the treatment that she had received from Ms. Scott and Petitioner. Respondent initiated an investigation that resulted in the immediate suspension of Ms. Scott and Petitioner and their eventual termination for violating B. H.'s right to refuse treatment and other rights. At all material times, Respondent maintained a written policy enumerating residents' rights. Paragraph 6 recognizes: The right to be adequately informed of his/her medical condition and proposed treatment, unless otherwise indicated by the Resident's Physician; to participate in the planning of all medical treatment, including the right to refuse medication and treatment unless otherwise indicated by the Resident's Physician; and to know the consequences of such actions. Paragraph 9 recognizes: The right to be treated courteously, fairly, and with the fullest measure of dignity and to receive a written statement and an oral explanation of the services provided by the Licensee, including those required to be offered on an as-needed basis. Paragraph 10 recognizes: The right to be free from mental and physical abuse and from physical and chemical restraints, except those restraints authorized in writing by a Physician for a specified and limited period of time or as are necessitated by an emergency. In case of an emergency, restraints may be applied only by a qualified Licensed Nurse who shall be [sic] set forth in writing the circumstances requiring the use of restraints; and in the case of use of a chemical restraint, a Physician shall be consulted immediately thereafter. Restraints may not be used in lieu of staff supervision or merely for staff convenience, for punishment, or for reasons other than Resident protection or safety. It is doubtful that Respondent's statement of residents' rights prohibits the administration of Ativan without B. H.'s consent or the nonabusive touching of B. H. to administer the Ativan. Paragraph 6 is probably inapplicable because the physician, knowing that B. H. had refused the medication, directed the administration of Ativan. Paragraph 9 is probably inapplicable. Although Petitioner's handling of B. H. was rough-handed, B. H. had already injured herself while in her bed, had risked even greater injury while trying to climb out of her bed, and had disrupted the South unit and part of the East unit, so the administration of Ativan had acquired a degree of urgency for the welfare of B. H. and the welfare of other residents. Paragraph 10 appears to have required a prior written authorization from the physician for the use of Ativan, but not in an emergency, and the above-described scenario at least approached qualifying as an emergency. Paragraph 10 imposes a burden on the licensed practical nurse when using restraints--probably, physical restraints--to document the use and necessity. Paragraph 10 imposes a burden to consult a physician immediately after using a chemical restraint. It is unlikely that Petitioner violated this provision because: 1) Ms. Scott consulted with the physician before using a chemical restraint and 2) the burden of consultation falls on the person using the restraint--Ms. Scott--not her subordinate, who merely follows her direction. However, as noted in the Conclusions of Law, B. H. had a clear right to refuse the Ativan, regardless of the direction of her physician. And Ms. Scott and Petitioner violated that right. Likewise, B. H. obviously has a right not to be physically abused, and the marks that Petitioner left on B. H.'s arms at least raise a legitimate fact question of such abuse. Respondent undertook a prompt, fair, and reasonably thorough investigation. The Department of Children and Family Services was contacted about possible abuse. The agency investigator told Respondent's staff that B. H.'s rights had been violated. Respondent's staff reached the same conclusion. Finding that Petitioner had violated B. H.'s rights, Respondent had a legitimate reason to terminate Petitioner, as it did Ms. Scott. Petitioner failed to produce any evidence whatsoever of a racial motive and has thus failed to prove that the reason cited by Respondent is pretextual. Petitioner's scant effort to show preferential treatment to other similarly situated employees failed to provide a basis on which to infer race discrimination. Petitioner testified that she had heard of employees who had abandoned a patient, who then died, but Respondent never fired the employees. However, Petitioner offered no direct evidence of this event. Absent detailed evidence of this alleged incident, it is impossible to use this briefly mentioned incident for the purpose for which Petitioner offers it. As noted above, the record does not support Petitioner's allegations of racial discrimination in harassment from a supervisor on the East unit or in the reassignment of duties following her return from an extended leave of absence. Implicitly abandoning these claims, Petitioner testified that her sole claim of racial discrimination involves her termination for her role in the B. H. incident. Thus, Petitioner did not try to prove racial discrimination in Respondent's handling of the B. H. incident by proving other instances of racial discrimination by Respondent--she admitted that there was none. The record contains no evidence whatsoever of unlawful discrimination based on any illness of Petitioner.
Recommendation It is RECOMMENDED that the Florida Commission of Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 27th day of October, 2006, in Tallahassee, Leon County, Florida. S __ ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of October, 2006. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 David E. Block Scott S. Allen Jackson, Lewis, LLP One Biscayne Tower 2 South Biscayne Boulevard, Suite 3500 Miami, Florida 33131 Olivia Lewis 806 Mulberry Street Sebastian, Florida 32958
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Board of Nursing, was the state agency in Florida responsible for the licensing of registered nurses and the regulation of the nursing profession in this state. Respondent, Maria S. Melegrito was licensed as a registered nurse under license number RN 1138222. During the month of March, 1992, L.B. was a patient at HCA New Port Richey Hospital suffering from congestive heart failure and a decubitus ulcer on his coccyx. He was in and out of the hospital frequently during the month. During this period, Respondent called Mrs. B. on the phone and solicited being hired to care for him at home when he was released from the hospital. Respondent is alleged to have indicated she was L.B.'s favorite nurse. At first Mrs. B. declined, but on or about March 12, 1992, K.B., the patient's wife, after checking on Respondent's credentials with her husband's physician, contracted with the Respondent to provide home health care to L.B. upon his discharge from the hospital. The arrangements were made through Maximum Care, Inc., a home health nursing agency of which Respondent was a cofounder. In a telephone conversation with K.B. on March 12, 1992, the day prior to L.B.'s discharge from the hospital, Respondent assured K.B. that Respondent would supply cardiac trained registered nurses around the clock to care for L.B. K.B. understood from this conversation that a cardiac trained registered nurse would be waiting at the patient's home when he arrived there after discharge. No contract was signed between Respondent and L.B., his wife, or their daughters. That same day, March 12, 1992, Respondent, in a conversation with B.C., one of L.B.'s daughters, indicated that Respondent would be taking care of the patient; that she would relieve the family members of their responsibilities in caring for him. Respondent indicated she was a cardiac care specialist and that she would be present at the patient's home the following days, with all necessary medical equipment, when the patient arrived from the hospital. B.C. also understood Respondent to represent that she would provide certified nursing assistants, (CNA's), and that she was familiar with the patient's condition because she had been his personal nurse while he was in the hospital. In a conversation with G.P., the patient's other daughter, Respondent said she would provide private nurses around the clock; that home health aides and CNA's would be present to assist the family in caring for the patient; and that Respondent would personally be present at the home with the necessary oxygen equipment to greet the patient upon his arrival from the hospital. According to hospital records, L.B. was discharged to the care of his wife, K.B., and his daughter, B.C., at 10:20 AM on March 13, 1992, and the evidence indicates that the discharge form was signed by K.B. The party arrived at the home shortly thereafter, but Respondent was not present there when the party, including the patient, arrived. By the same token, the oxygen ordered by the patient's physician also was not there. Shortly after the patient and his family arrived home, Ms. B and one daughter went to the drug store. When they came back, they were met outside by K.B.'s grandson who kept K.B. outside while the daughter went in. It appears that while they were gone, L.B. suffered a cardiac episode. His daughter, B.C., laid him on the floor so that he would not aspirate his vomitus, but he appeared to have no pulse, no audible heartbeat, was not breathing, and appeared to turn blue from lack of oxygen. One of the family members attempted to contact the Respondent but was unable to do so. Finally, the family called the patient's physician who in turn called the oxygen supply house and directed that oxygen be delivered to the patient's home. Though the discharge form reflects the physician ordered oxygen for the patient, no evidence was presented as to who was to arrange for it. At approximately 1:00 PM the same day, Respondent contacted the family indicating she would "be right there." When family members told Respondent the patient had suffered a cardiac episode, she instructed them to leave him on the floor. Notwithstanding her promise to be right there, Respondent, according to the family, did not arrive at the patient's home until sometime after 3:00 PM. When she arrived she did not have with her oxygen, a stethoscope or a blood pressure cuff. Using the equipment owned by C.P., the patient's other daughter, also a nurse, Respondent took the patient's blood pressure while he was laying prone on the floor. She found it to be 60 over 40. Respondent tells a different story. While not disputing the allegation of her pre-need solicitation of the patient's family for her services, she contends that she was not advised of the immediate need for them until she received a call from one of the daughters at approximately 12:30 PM on March 13, 1992, indicating that the patient was to be discharged. She claims she immediately asked if there was anything needed for the patient's care and was told all was taken care of. She also claims she was told the patient would be at his home within 10 to 15 minutes. On cross examination, Respondent indicated the verbal agreement she had with the patient's wife called for her to be called when the patient got home and she would come, assess the patient and then decide if she or her firm could provide the services required. It is her contention that her initial visit to the patient's home on March 13, 1992 was for the purpose of rendering a patient assessment, and she ended up staying for five hours until she could arrange for follow-on nursing care to be present. This assertion is rejected, however. She had already indicated she knew the patient and was his favorite nurse in the hospital. She would have already been familiar with his condition. Ms. Melegrito further claims she arrived at the patient's house at 1:25 PM to find the patient on the floor with a blood pressure cuff on his arm and oxygen being supplied. Respondent claims it is usually the discharge nurse or the social worker who makes the arrangements for oxygen to be delivered to the patient's home, and it was not her responsibility to do so. There was no direct evidence to contradict this assertion, but it was the physician who ultimately arranged for the delivery of the oxygen. 11 Notwithstanding the allegation that the Respondent did not arrive until after 3:00 PM, the initial visit nursing notes, dated March 13, 1992, reflect in one place she arrived at 2:00 PM; in another place, that she arrived at 1:24 PM; and in a third place that she arrived at 3:00 PM. In its totality, the best evidence suggests that Respondent arrived sometime between 1:00 and 3:00 PM, neither as late as the family claims nor as early as she claims. There is some substantial question as to whether Respondent performed a proper initial assessment of the patient or devised a care plan for him when she arrived. An initial visit nursing note, prepared by the Respondent and bearing date of March 13, 1992, lists the patient's temperature, his pulse rate and his blood pressure. It also discusses a history of the patient's condition and certain initial observations of him. The second page of the form indicates that certain items were covered including a description of the patient's grip, his cardio-pulmonary status, the condition of his skin, his abdomen, ENT status and comments regarding his diet and genito-urinary status. The third page of the form described the patient as being fearful, anxious, restless, confused and disoriented, suffering from headaches, vertigo and blackout spells. He is described as having irregular breath with pale, dry, pallid skin, dry mouth and several difficulties in the cardio-vascular area. The body drawing on the form reflects he has an open bed sore at the base of the spine, and the intervention portion of the form indicates that the patient was found on the floor upon the Respondent's arrival, unconscious. His pressure was down and there was no palpable pulse. Patient was cyanotic and had appeared to have suffered another syncope syndrome. Nonetheless, Respondent noted that the patient's vital signs came back enough for him to regain consciousness, but notwithstanding, he was in the terminal stage of a cardiac condition and the instructions given by the family were not to resuscitate him in the event he should again reach the stage of unconsciousness. The parties agree that the Respondent gave the patient a sponge bath even though, at the time, he may not have been soiled. The family claims he was clean, but Respondent contends she bathed the patient to clean fecal material, urine and sweat from him and the bed clothes. Notwithstanding the Respondent's notation that the patient was confused or disoriented, neither his wife nor his two daughters considered him to be so, and after the patient was placed back in bed and cleaned up, according to the family members, Respondent spent the remainder of the afternoon at the patient's home on the telephone, trying to find a nurse to cover the next shift. Initially, she was unable to do so, and B.C. claims Respondent approached her to work as an aide and deliver patient care to her father. B.C. refused to do so. Respondent admits to a discussion with B.C. about hiring her to care for the patient but claims the discussion was in response to a question by the daughter, not a solicitation by Respondent. Respondent was apparently successful in securing a relief nurse because she was relieved at 5:00 PM by Dorothy Reisebeck, a licensed practical nurse, (LPN), who was not a trained cardiac nurse. According to Ms. Riesebeck she had been told by Respondent that the patient had been discharged from the hospital after minor surgery, and that she, Riesebeck, need only monitor him, check his oxygen, and make him comfortable. Notwithstanding Respondent's claim that she prepared an assessment of the patient and gave an adequate report to her relief, Ms. Riesebeck claims that Respondent failed to provide her with a care plan, an assessment sheet for the patient, or a list of the patient's medications and proper dosages. She also indicates Respondent did not inform her that the patient was suffering from congestive heart failure and was terminally ill. When fully advised of the patient's true condition, Ms. Riesebeck did not feel adequately prepared to care for him. Nonetheless, she remained on the scene until she was relieved at 7:30 the following morning. In this regard, Ms. Riesebeck claims she had been led to believe by Respondent that she would be relieved at 10:00 PM the prior evening, March 13. When she was relieved it was by another LPN, Ms. Holloway, who also had no cardiac care experience. When Ms. Holloway arrived, she also looked for the assessment sheet on the patient which should have been there, but was told by Ms. Riesebeck that one did not exist. They tried without success to contact Respondent and while Ms. Riesebeck and Ms. Holloway were on the scene, the patient suffered another acute cardiac episode. The family understood that since Ms. Holloway, who arrived at 7:30 AM, had worked all the previous night at the hospital, she would be there for only three or four hours until relieved by someone that Respondent had found to do so. Her shift was to end at 11:00 AM, but she was not relieved until Respondent appeared at 3:00 PM on March 14, 1992. Respondent's arrival did not appear to be for the purpose of providing nursing care. She was, upon arrival, dressed in high heels, makeup, jewelry and a flowered dress. A man was waiting for her in the car outside the house, and it was obvious to everyone that Respondent was neither dressed for nor prepared to perform a shift providing care for this patient. It was clear she had no intention of staying for that purpose. Before the Respondent left, however, she began arguing with Ms. Holloway, which culminated in Ms. Holloway leaving. Respondent then began arguing with both of the patient's daughters, and attempted by telephone to find someone else to cover the shift. Respondent appeared to be very disturbed. She was screaming at people on the telephone and reacting to her conversations by slamming the receiver down. Before the Respondent had arrived that day, because they were having problems getting the patient's medications and a morphine IV set up, the family called the patient's physician and requested that the Respondent be replaced by Hospice. Someone other than the Respondent, presumably the physician, was able to contact a pharmacy which sent IV equipment and morphine, saline, and demerol solutions to the patient's home. These medications had been ordered by the physician for the patient's pain after he was called by the patient's daughter. Respondent was present when the pharmacy order arrived and requested that the delivery person set up the IV. That individual refused, however, indicating she was not authorized to do so by the physician. Consistent with the family's request, somewhat later a representative of Hospice arrived, and upon the arrival of that individual, the patient's wife discharged the Respondent. With this, the Respondent became very angry and began screaming, banging on the table and slamming things around. All of this served to disturb and upset the patient. Because of this, it was necessary for family members to calm him down. After the argument with the family, Respondent took the bag containing the patient's medications, the medication record kept by the patient's wife over the prior year, and the patient's hospital prescriptions, and told one of the daughters that the medications were hers because she had paid for them. Respondent then departed the home with the gentleman in the car. The daughter called the police and reported the theft. Respondent did not return the morphine, the saline solution and a bottle of 100 Valium tablets. Ms. Sangster, A Registered Nurse Practitioner for 24 years, evaluated Respondent's performance in this matter for the Department. According to her, a home health nurse is supposed to go into the patient's home and assess his physical status to see what care is needed at home and to assess the ability of the nurse to provide those needs. This function also includes working with the patient's family and to help them in understanding the care required so that family members can administer medications when the nurse is not present. Ordinarily, patients retain a home health agency which has an arrangement with the hospital, on referral by a physician, or directly. Before the patient is discharged the agency should have contacted the patient, and upon discharge an agency representative should go to the patient's home as quickly as possible to meet with the patient and the family. The home health agency is responsible to the family, and the nurse on duty is also responsible to provide the needed care. If the nurse sees that the needs are greater than her skills, she must notify the agency to get some with the requisite credentials. The standard of care applicable to home health nurses requires the practitioner to: Report to provide care on time. Stay with the patient as long as required. Perform all tasks assigned. Perform all tasks needed. Do a complete physical assessment of the patient at the first visit. Administer proper medications on time. Perform all procedures required. Document all activities performed. Provide necessary information to the successor shift personnel either verbally or in writing. If the assigned nurse cannot report on time or stay as long as scheduled, then the home health agency is responsible to provide a substitute. The nurse must advise the home health agency in advance and leave a report for the replacement. The nurse on duty must not leave until the replacement arrives. The initial physical assessment establishes the starting point for future patient status. It is a part of the care plan. It must be done the first time the nurse goes into the home for the initial home visit. It is usually done by a registered nurse or, if a licensed practical nurse does it, a registered nurse must evaluate and approve it. Standard practice requires that all patient contact be documented to include what services are to be provided, and entries in the record should be made when a particular service is rendered or as soon thereafter as is possible. Ms. Sangster reviewed the investigative file in this case. All nurses providing treatment to this patient under the terms of the agreement were to be registered nurses who had cardiac training. This was not what Respondent provided. In addition, the physician's order sheet indicates oxygen was to be delivered to the patient's home and that Maximum Care was to provide the home health care. It is the home health agency's responsibility to insure that what is needed for the patient's care is available if not present on the arrival of the patient. Here, in Ms. Sangster's opinion, since Respondent was the first agent of the home health agency to arrive at the patient's home, it was her responsibility to call and arrange for the oxygen to be delivered. She failed to do this. Ms. Sangster examined all the patient's records with the home health agency. Ordinarily such documents will describe the patient's condition, appearance and level of activity. Much of this information is in the records prepared by Respondent. However, Ms. Sangster found many inconsistencies in the assessment. These related to how the patient was described by two different people who observed him. Respondent describes the patient as confused and disoriented, suffering from blackouts, swollen and pale, but with a good appetite and normal urine. She does not, however, indicate how that confusion should be handled. Another individual notes that the patient activity is normal and he is alert, with normal respiration, temperature and skin, a clear chest, and can speak and hear without difficulty. The family contends the patient was neither confused or disoriented. The Respondent's assessment notes reflect the decubitus on the patient but do not indicate how it will be treated or how any anticipated problem the patient might have should be handled. The form is a three page document. Only the first page reflects the patient's name. Ms. Sangster notes that many of the "yes" or "no" blocks checked on the second page do not have explanatory comments, and it is so found. Based on her evaluation of the entire care package provided to this patient by the Respondent, Ms. Sangster concluded that Respondent's actions in this case did not meet required standards because: There was a lack of documentation to support the actions taken, and that documen- tation present was both inconsistent and incorrect. She failed to provide that care contracted for 24 hours per day, that is, care by cardiac trained registered nurses. She left the patient alone with his family, which constituted - The abandonment of the patient and his family, She failed to insure the required equipment was on hand. She did an improper and inadequate patient assessment. She failed to place the assessment she did in the patient's file. She failed to conduct herself with professionalism in her relationship with the patient and his family. She failed to address safety issues, and As a result of all the above, she placed her patient in great harm. The allegation of abandonment is of great import. Abandonment, defined as either the nurse's failure to show up on time or to leave her patient before relief, is viewed as very serious in the nursing community. The home health nurse must, if she cannot provide coverage, make sure that her agency knows her limitations. Since in this case the Respondent was at least in part owner of the agency, she had a multiple responsibility. She should have arranged for someone to be present at the patient's home when he arrived; insured the necessary oxygen equipment was present; and done an immediate assessment of the patient, while he was on the floor, and communicated the patient's status to his physician. Ms. Melegrito claims she did all that was necessary for this patient considering he was a terminal patient with a "do not resuscitate" order on record. She insists he was never neglected. The wife was briefed on the patient's medications because, Respondent claims, she wanted to administer the medications herself. Respondent got the impression that the patient's wife was resistant to her caring for the patient. Respondent claims the action taken against her is racially motivated based on the fact she is the only brown skinned person being charged. Aside from the fact there is no evidence to support this assertion, she overlooks the fact she was the most qualified person involved and her credentials placed upon her a higher standard of performance than that placed on the other two nurses. Her contention is without merit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent, Maria C. Melegrito's license as a registered nurse in Florida be suspended for three years, following the expiration of which it be placed on probation for an additional period of three years, under such terms and conditions as may be prescribed by the Board of Nursing, and that she pay an administrative fine of $1,000. RECOMMENDED this 28th day of November, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of November, 1995. COPIES FURNISHED: Miriam S. Wilkinson, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Maria C. Melegrito Federal I.D. number 08343-018 Federal Prison Camp Pembroke Station Danbury, Connecticut 06180 Jerome W. Hoffman General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32309 Judie Ritter Executive Director Board of Nursing Daniel Building, Room 50 111 East Coastline Drive Jacksonville, Florida 32202
The Issue Was Petitioner's license rating lawfully changed from Standard to Conditional.
Findings Of Fact Cross Creek is a nursing home located in Pensacola, Florida, which is duly licensed under Chapter 400, Part II, Florida Statutes. AHCA is the state agency which licenses and regulates nursing homes in the state. As such, it is required to evaluate nursing homes in Florida, pursuant to Section 400.23(7), Florida Statutes. AHCA evaluates all Florida nursing homes at least every 15 months and assigns a rating of Standard or Conditional to each licensee. In addition to its regulatory duties under Florida law, AHCA is the state "survey agency" which, on behalf of the federal government, monitors nursing homes which receive Medicaid or Medicare funds. On March 8, 2001, an AHCA team completed a survey of the facility. The surveyors included Jackie Klug, Paula Faulkner, Norma Endress, and Sandra Corcoran. All of the surveyors are trained in the business of surveying nursing homes. Ms. Klug is a registered and licensed dietician. Ms. Faulkner is trained in social work. Norma Endress and Sandra Corcoran are registered nurse specialists. Nurse Corcoran was the team leader. Resident 1 Ms. Corcoran observed that Resident 1 had experienced weight loss. This resident was admitted to the facility on July 7, 2000. On October 9, 2000, the resident weighed 115 pounds. In a care planning meeting it was noted that the resident was combative and was refusing to eat. A care plan was not formulated but it was decided that the resident was to be provided a dietary supplement. On January 4, 2001, the resident's weight was 97 pounds. Eventually a care plan was devised which provided for dietary supplements in the form of "shakes." The resident was to consume shakes with meals. On multiple occasions during the survey the facility failed to provide dietary supplements to the resident. This resident could not feed himself and could only consume food which was pureed. The resident could only minimally engage in activities of daily living. Resident 1 had a lung lesion and was expected to lose weight. Despite this expectation, during January, records revealed the resident weighed 103 pounds, in February he weighed 102.3 pounds, and in March he weighed 107.2 pounds. Resident 1 was terminally ill and was being provided what was essentially hospice care. Upon considering all of the circumstances, the resident's weight was satisfactory. Resident 2 Ms. Faulkner observed Resident 2 on two occasions. This resident was totally dependent on the facility staff for feeding. On one occasion during the survey, the resident was provided potatoes which were cold and too hard for her to masticate. On two occasions during the survey, the resident's dentures were not put in her mouth. Ms. Faulkner was concerned with the resident's weight. Interventions which were on the care plan were not consistently provided. For instance, the resident's preferences for various types of food were not considered. Resident 2 was a dialysis patient. Dialysis affects a patient's weight. Patients are typically weighed prior to the administration of dialysis and then are weighed subsequently. In the usual case a weight loss is expected subsequent to dialysis. With regard to this resident, no credible evidence was adduced as to what the resident weighed at any given time. No credible evidence was adduced which would indicate that the resident experienced a weight loss, despite Ms. Faulkner's concerns. Resident 3 Resident 3 was receiving a pureed diet when observed by Ms. Faulkner. The resident ate between 75 and 100 percent of this food. The resident weighed only 87 pounds at this time. The resident was supposed to be fed two "206 shakes" which are supplements designed to promote weight gain. On at least two occasions during the survey, the resident was not provided with these supplements. On March 6, 2001, at 6:35 p.m., Ms. Faulkner observed the resident eating and the resident had not been provided the supplements. Ms. Faulkner informed LPN Pat Nelson, of the facility staff, of the absence of supplements. Nurse Nelson commented that the supplements should have been on the resident's tray. Resident 3 had dirty fingernails and generally was not clean. Moreover, she had multiple bruises and skin tears to the outer ankles. The resident's upper arm had a four centimeter bruise that was reddish brown. This resident was totally dependent on the staff for care. Consequently, Ms. Faulkner concluded that facility staff had caused or permitted the acquisition of these wounds and bruises. Nurse Corcoran observed a wound on the resident's right ankle. She also observed multiple skin tears and bruises on both legs. She also observed an open area on the resident's coccyx. She did not, however, believe that these were pressure sores. Patricia Powell is the assistant nursing director of the facility. She reviewed the medical records of the resident and determined that the resident had been evaluated three different times and that she suffered no skin breakdown. She noted that the resident, at the time of the survey, had been readmitted to the facility subsequent to a hospital stay and that upon readmission, the resident was afflicted with three stasis ulcers including one on her lower left extremity and one on her right lower extremity. Nurse Powell also noted that the resident had bruises on her upper and lower extremities. She stated that the hospital records reflected information from her granddaughter stating that the resident repeatedly bumped herself into the walls in the nursing home and bled from the wounds she received as a result. Nurse Powell stated that hospital records demonstrated that the resident gained weight in 2000. Records at the time of the visit noted that the resident's weight was stable. Linda Gunn is a staff member of the facility and is a LPN. She was a treatment nurse and she was responsible for the care of Resident 3 during times pertinent. She observed that the resident had abrasions and skin tears. She stated that the resident was a fragile patient who required total care. The resident had sores which were caused by vascular problems. Pressure sores were not present. Nurse Gunn checked the resident daily and each time she left the resident she made sure the resident was clean and dry and in a comfortable position. Resident 4 Ms. Faulkner observed Resident 4 during the survey and suspected that the resident might have pressure sores because the resident was not consistently found to have positioning devices which had been determined to be necessary. A record review revealed that the resident had two stage II pressure sores in January of 2001, but that they had healed by the time of the survey. Ms. Faulkner stated that at the time of the survey she observed the resident to have a stage III pressure sore on the right ankle, but she relied on Nurse Corcoran's expertise to make that determination. Ms. Faulkner observed that positioning devices were not used on the resident's legs, as they should have been, on March 1, 5, and 6, 2001. Ms. Faulkner noted that, according to the resident's medical record, the resident often kicked off protective devices and padding. Nurse Powell stated that the resident's medical record reflected that the resident had excoriations on the coccyx and between her leg folds. Excoriation is a break or redness in the skin that is caused by urine or feces. It is not a pressure sore. She also noted that the resident had constant involuntary movements of the left leg against the right leg, and that she was provided padded side rails but the resident removed them. Nurse Powell stated that the resident moved her legs in a scissor-like action all day long and that she removed the side rails, pillows, and foot pads which facility staff used to attempt to ameliorate the damage caused by the leg movement. Ms. Gunn, a staff nurse, also observed the resident frequently. She noted that the resident was diabetic, incontinent of her bowel and bladder, was immobile and needed total assistance to be turned and positioned. She had to be fed and otherwise required total care for all of activities of daily living. Ms. Faulkner additionally observed the resident on March 7, 2001, and noted that during the four times she observed the resident there was no splint or other device or treatment being used to address the resident's contracted right hand. There was no care plan to address this condition. Willa Gilliam is a certified nursing assistant employed at Cross Creek. Specifically she was a restorative aide. It was her duty to provide Resident 4 with range of motion exercises. She accomplished this. After the exercises a towel roll was to be placed inside the resident's hands. Ms. Gilliam placed the towel roll inside of the resident's hands but noted that the resident often removed the towels. Resident 8 Norma Endress is a nurse specialist. She observed Resident 8. The resident was assessed on September 5, 2000, to be at high risk for skin breakdown because he was incontinent of bowel and bladder. The resident was also dependent on staff for turning. The resident had a care plan which required that the resident be removed from bed and placed in a geri chair for positioning. Nurse Endress observed on March 6, 2001, on ten different occasions during the day, that the resident was lying on the resident's left side and was not being turned or placed in the geri chair as the care plan required. On March 7, 2001, the resident was observed to have a stage I pressure area on his right foot, ankle and heel. The resident had no positioning devices or heel protectors in place, as he should. When Nurse Endress inquired as to why the resident was not being put in a geri chair, a staff nurse informed her that the facility had a shortage of geri chairs. Nurse Endress did not see this resident move during the entire four days that she was present at the facility. Nurse Gunn confirmed that the resident required total care and that he was receiving wound care to his heel. She stated that the resident was supposed to be supplied with pillows and a wedge or wedges and that his feet were required to be elevated on pillows. Resident 9 Nurse Endress observed Resident 9 for four days during the survey. This resident had a history of heart problems. The resident was capable of walking when he reached the facility and he did walk. The resident's physician ordered continued ambulation. However, during the four day survey, the resident was not ambulated. The resident reported to Nurse Endress that he had not been walked for the prior three months and stated that he wanted to walk, if facility staff would help him. Nurse Powell stated the patient had diabetes and that the sore on his right foot was a decubitus ulcer caused by vascular insufficiency. The ulcer generated pain when the resident attempted to walk. Accordingly, the staff of the facility did not provide assistance in ambulation to this resident because it would be too painful for the resident. The resident was also required to wear a splint on his right hand to deter contraction. During the survey Nurse Endress visited the resident and observed the splint resting on the foot of the resident's bed. The splint was soiled. On March 5, 2001, Nurse Endress observed the resident five times during the day and at no time was he wearing a splint. Ms. Gilliam was the staff member charged with placing the splint on the resident. She claimed that she was to install the splint at 10:00 a.m. and to remove it at 2:00 p.m. and that she had in fact accomplished this every day. Her testimony, with regard to this, upon consideration of all of the other testimony, is determined not to be credible. Nurse Endress believed that the resident had a stage I pressure sore on his right foot but she was not allowed to touch the resident to actually make a determination that the observed redness was a pressure sore or was present due to some other cause. Resident 10 Resident 10 was observed by Dietician Klug during the survey. During various times the resident was observed sitting in a geri chair which sported duct tape on both armrests. Resident 10 was cognitively impaired and required extensive to total assistance in activities of daily living. The resident could not move from bed to chair, or chair to bed. Consequently this movement was necessarily accomplished by staff. The care plan determined that a minimum of two people be employed to properly transfer the resident. The resident had very fragile skin and was prone to skin tears, bruises and abrasions. On January 22, 2001, the resident experienced a skin tear to the left lateral leg. On February 4, 2001, the resident acquired a skin tear to the right arm. On February 19, 2001, the resident manifested a blood blister to the lower back. On March 5, 2001, a large skin tear to the right lower leg was observed. Ms. Klug said there was no evidence of competency check lists or records of training of staff in the area of transfers. However, there is no evidence in this record that Ms. Klug checked to see what, if any, evidence was available in the facility which might demonstrate that such training had occurred or that there was a deficiency in the training. Despite her belief that the injuries experienced by the resident were the result of rough or inexpert handling by staff, a causal connection was not demonstrated by the evidence. Cleanliness and grooming Ms. Klug observed resident 11 during the survey. At the time of observation the resident had long dirty fingernails and was emitting an unpleasant odor. This caused Ms. Klug to conclude that the resident needed a bath. This resident needed total assistance with the activities of daily living and this assistance was not being adequately provided. Residents F, G, M, and 14 were observed by Nurse Corcoran during the survey. Resident F was sitting in the day room in the morning with dried food smeared upon his mouth. Resident G was sitting in a wheelchair while wearing soiled pants and a soiled shirt. Resident M was seen in the main dining room during one afternoon of the survey and on that occasion the resident's fingernails were long and jagged, and a dark substance was present under the resident's nails. The resident's false teeth were caked with food. Resident 14's hair was greasy and disheveled. Ms. Faulkner observed residents number 3, 4, 21, and 22 to have dirty fingernails and noted that they were, "not clean, in general." Resident 19 Ms. Klug observed Resident 19. This resident was diagnosed with rheumatoid arthritis. Both of her hands were severely contracted. She had received physical therapy from September 26 to October 25, 2000, for the purpose of promoting comfort and preventing further contraction or deformity of her hands. Splints were applied to her hands at that time and the resident could tolerate them for four hours a day. In December 2000, the resident complained that the splints were causing more pain than she could bear. As a result, the use of splints was discontinued. Instead, the resident was to have a washcloth placed in the hands to prevent further deformity. Some members of the therapy staff informed Ms. Klug that the real reason the splints were not being used was because they had gone missing. On March 8, 2001, Ms. Klug interviewed a restorative aid who stated that the resident had not been treated for the prior month. The increase in contraction of the resident's hand resulted in the resident being unable to feed herself. The resident's record reflects that the splints were discontinued due to severe pain secondary to arthritis. A "Restorative Progress Note-Splinting" dated December 2, 2000, states that splints should be discontinued. It further states, that range of motion exercises should continue but, "We'll use washcloth for hand." Based on all of the available evidence of record, it is determined that the resident was receiving the best possible care for her hand contractions. Resident 19 was observed on March 6, 7, and 8, 2001, being fed pureed food. This was contrary to her then current diet order which called for a mechanical soft diet. The resident informed Ms. Klug that she did not like the taste of the pureed diet and claimed that she could masticate sufficiently well to subsist on a mechanically soft diet. Inquiry to the dietary manager revealed that a unit nurse had changed the diet order on December 18, 2000, because the resident had a sore mouth and missing teeth. Between January and March the resident suffered an 11-pound weight loss. The resident weighed 118 pounds in January of 2000. The resident was programmed to maintain a weight of between 113 and 118 pounds but only weighed 104 pounds at the time of the survey. Ms. Klug reviewed documentation in the resident's record which, as recently as March 2, 2001, reflected that the resident had a physician's order for a mechanically soft diet. Through observations and interviews she determined that facility staff were unaware of the discrepancy in the texture of the resident's diet. A change in a diet order, with regard to consistency, may come only from a physician. Resident 21 Ms. Faulkner observed Resident 21 in the resident's bed. She observed the head nurse attempt to do a range of motion on the resident's left hand. This resulted in the resident crying out in pain. The resident's left hand was moist and emitted an odor. Her care plan required interventions to keep her nails cleaned and trimmed and to decrease irritation through her palms. During the survey there were at least two times when the resident had no supportive devices in her hands. Ms. Faulkner discussed this with the facility occupational therapist on March 8, 2001, and the therapist stated that he was unable to splint the resident's hand. Ms. Gilliam was assigned to provide restorative assistance to Resident 21. She noted that after the motion exercises a towel roll was required to be placed in her hand. However, she stated that range of motion was impossible to conduct because of the pain and that the insertion of a towel roll into her hand might result in breaking the resident's fingers. During the time Ms. Gilliam was assigned to resident 21, she observed that her condition had worsened. Resident 22 Resident 22 also had range of motion issues. This resident had contracting of the arm, hand, leg, and foot. Ms. Faulkner sought from the facility a plan of care addressing the contracting of the resident's left hand. Facility staff informed her that none existed. The resident was admitted to the facility with contractures. No evidence was adduced as to whether or not the resident's contractures had become worse because the facility presented no documentation which would permit that determination. Staffing Staffing at the facility was in substantial compliance with AHCA requirements in terms of quantity and training.
Recommendation Based upon the Findings of Fact and Conclusions of Law, RECOMMENDED: That a final order be entered assigning a Conditional license to Petitioner. DONE AND ENTERED this 27th day of December, 2001, in Tallahassee, Leon County, Florida. HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of December, 2001. COPIES FURNISHED: Christine T. Messana, Esquire Agency for Health Care Administration 2727 Mahan Drive Mail Stop No. 3 Tallahassee, Florida 32308-5403 Donna H. Stinson, Esquire Broad and Cassel 215 South Monroe Street, Suite 400 Post Office Drawer 11300 Tallahassee, Florida 32302 Diane Grubbs, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308 William Roberts, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308
The Issue The issue for consideration in this case is whether Respondent’s license to operate a nursing home should be disciplined because of the matters alleged in the Administrative Complaint filed herein, and whether the license issued to Respondent on October 1, 1995 should be conditional or standard.
Findings Of Fact At all times pertinent to the issues herein, the Agency for Health Care Administration, (Agency), was the governmental agency responsible for licensing and regulating the operation of nursing homes in Florida. Respondent operated a licensed nursing home known as Manhattan Convalescent Center, in Tampa. Consistent with its responsibility to conduct surveys (inspections) of nursing homes in this state, on June 16, 1995, the Agency conducted a complaint survey of the Respondent’s facility during which it noted a deficiency in staffing. This related to the surveyor’s determination that on May 22, 27, and 28, and on June 2, 3 and 6, 1995, there was “an underage of the state minimum CNA staffing requirements”. No citation was given for any violation of a state rule in this regard, nor was there any reference to a violation of state regulation. In addition, the matter was not noted as a “class” deficiency for state purposes under the provisions of Section 400.23, Florida Statutes. CNA’s, Certified Nursing Assistants, are answerable to nurses. Registered nurses, (RN’s), licensed practical nurses, (LPNs), and CNAs together constitute the nursing staff, which is responsible for direct resident care in a facility such as operated here by Respondent. All members of the nursing staff, regardless of classification, are responsible for hands-on resident care, such as bathing and feeding, and these duties are a part of the job description of not only CNAs but LPNs and RNs as well. The difference is that LPNs and RNs, depending on certification, are trained and authorized to provide additional, skilled care which a CNA is neither trained nor authorized to do. In other words, though a CNA can perform those functions which she or he is trained and licensed to do, a nurse, LPN or RN, can do and does those things within her or his training and certification which includes those things done by nurses lower on the scale. Nurses, either RNs or LPNs, employed at Manhattan are advised and understand that they are to perform CNA duties and cover for CNAs if a CNA does not come to work. If a nurse refuses or resists doing CNA work for any reason, the nurse is asked to leave the building. The Agency by rule has set a minimum level of CNAs per patient in nursing homes. The total number of CNAs required is figured by using a formula which multiplies the patient census for the day times 1.7 and divides the result by 7.5, the number of hours per shift worked by a CNA at Manhattan. The result is the number of CNAs required to be on duty on any given day. On July 31 and August 1, 1995, Elke Johnson, an RN specialist surveyor for the Agency, visited Manhattan for the purpose of following up on the complaint survey conducted in June, 1995. One of the allegations in the complaint was that patients were not being cared for. Ms. Johnson found this allegation to be unconfirmed. Nevertheless, as a part of the inspection, Ms. Johnson looked at the personnel records regarding CNA staffing for the two week period from June 16 through June 29, 1995 and did the calculation according to the cited formula for four days out of the 14. On all four days, she noted a shortage of CNAs. On July 15, 1995, there were 32 CNAs versus 38 required by patient census; 35 versus 38 on July 17, 1995; 35 versus 37 on July 22, 1995; and 25 versus 36 on July 23, 1995. When Ms. Johnson spoke about this finding with Manhattan’s director of nursing or assistant director of nursing, she was told that Manhattan was using licensed nurses, RNs or LPNs, to fill in for CNAs. The Agency claims that the director of nursing, Ms. Buble, stated that if licensed nurses were scheduled to do CNA work, that individual would be listed on the daily assignment sheet as a CNA so that the licensed nurse could receive assignments as a CNA. According to Ms. Johnson, however, even with the substitutions, there was still a shortage which Ms. Johnson classified as a deficiency. The Agency’s rule does not specifically provide for the use of RNs or LPNs in place of CNAs, but Ms. Johnson considered such a substitution to be appropriate. Accepting that, however, as was noted previously, Ms. Johnson still noted a deficiency in numbers. Though Ms. Johnson did not participate in the December 1995 follow-up inspection, on her visit to the facility in April 1996, she found the staffing deficiency had been cleared and no violations existed at that time. Two complaints involving staffing in September and November 1995 caused a reinspection of the facility by Susanne Emond of the Agency on December 5, 1995. Ms. Emond worked with the director of nursing, Ms. Buble, the entire day and went over the patient census sheets with her as well as the assignment sheets. At that time the documents provided by Manhattan reflected that it was required to have 37 CNAs on duty each day between September 12 through September 16, 1995, but in reality had only 32.5 CNAs on duty on September 12; 32 on September 13; 32 on September 14; 34 on September 15 and 32 on September 16, 1995. In addition, Manhattan was required to have more than 35 CNAs on duty each day between November 9 through 12, 1995 but had only 27.5, 28, 30 and 32.5 on November 9, 10, 11 and 12, 1995, respectively. As was previously stated, the determination of a CNA shortage was based upon a consideration of numbers generated by the surveyor in consultation with the then director of nursing, Ms. Buble. The compilation by Ms. Buble was made utilizing only the assignment sheets, and did not consider any extra hours which were worked by on-duty personnel which was reflected on the sign- in sheets, rather than the assignment sheets. Respondent claims, therefore, that the documentation provided to the surveyor by Ms. Buble was not accurate. Gary Janovsky is a RN specialist with the Agency who inspected Manhattan on June 16, 1995. During the course of his visit he checked the staffing levels relating to CNAs for May 22,27 and 28, and June 2,3 and 6, 1995, and using the appropriate formula as applied to the sign-in sheets provided by the Respondent, concluded there was a shortage on all six days whether one considered an 8 hour shift or a 7.5 hours shift. Jerry Alfieri has been the director of nursing at Manhattan since March 23, 1996 and was in place there during the follow-up inspections. He has worked as a director of nursing in a nursing home for 4 years. Before he got to Manhattan it was Respondent’s policy to heavily overstaff with licensed nurses to make up for shortages of CNAs, of which there is a shortage in the area. When he took over as director of nursing, he reviewed all staffing records from January 1995 up to date and found an adequate number of CNAs were hired and assigned, but from time to time, there was an attendance problem with that category of employee. It got so bad that at times, up to 10 CNAs per day would call in to be absent, and when this would happen, he would assign LPNs or RNs to CNA duties. He contends this was not made clear to the surveyors. Mr. Alfieri believes this is now clear to the Agency and his office is following the same procedure now, without problem, and was being followed at the time of the surveys which resulted in the filing of deficiencies. Mr. Alfieri reviews his staffing figures on a daily basis looking at hours worked, not bodies. When that procedure is followed, one sees that on May 22, 1995, Manhattan was 139.1 hours over requirement and, he believes, a review of every day in issue but one, July 23, 1995, will show an overage of hours for the facility. On that day, Manhattan was 21 hours low, a shortage of 3%. Mr. Alfieri takes the position not that the number of CNAs on duty was up to the Agency’s standard, but that adequate nursing hours were provided to meet the requirement, and there was no complaint sustained regarding a lack of patient care. In September 1995, for example a listing by date of nursing hours over standard shows: 9/12 103 9/13 36 9/14 77 9/15 15 11/9 93 11/10 201 11/11 4.7 11/12 27.92 It should be noted that on November 11, 1996, though 6 CNAs called in absent, Manhattan still had 4.7 hours of nursing care over standard. According to Mr. Alfieri, licensed nurses at Manhattan are assigned a certain set of patients and they are to insure that those patients get whatever care is necessary. If a CNA can do a procedure, its done by a CNA, or by a licensed nurse if a CNA is not available. That statement is confirmed by Robin Grab, nurse manager of station 1 (the Medicare unit of 42 beds) at Manhattan for 6 years. She has been an LPN for more than 19 years. According to Ms. Grab, from time to time CNAs call in absent, and when this happens, the licensed nurses do rounds and assist in doing whatever is needed to provide patient care. It is a part of their job duties and if a licensed nurse refuses to do anything asked, that individual is asked to leave. As a result, RNs and LPNs regularly assist and are involved in activities of daily living, (ADL), and answering call lights. If a licensed nurse has to do CNA work, the nurse is so told. When a shortage of CNAs appears imminent, an attempt is made to call in more CNAs, but, if necessary, RNs and LPNs are called in to fill vacancies of CNAs. When William Scheller, Manhattan’s administrator, first came to the facility he was made aware of the inadequate number of CNAs. To correct this, he started the practice of using licensed nurses to make up the shortage. He also hired additional licensed staff to make up for call-outs, paid bonuses and recruited staff from other facilities. Manhattan pays its nurses and CNAs competitive wages. At no time has it ever intentionally understaffed with CNAs. To do so does not make sense because it costs more for licensed nurses than for CNAs. He insures that licensed personnel perform CNA duties when required by personal checks by him and his staff. Unit managers are responsible to insure that patients get adequate care and if staff is insufficient, they try to bring in additional people. The documentation used to record nursing staffing was changed in early 1996 to conform to Agency direction as to how it should be done. These documentation changes did not change coverage practices, however, as those practices were, he contends, up to standard all along.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Agency for Health Care Administration enter a final order finding that Respondent did not fail to meet staffing requirements sufficient to ensure each resident maintained his or her highest practicable level of well- being, but that it did fail to have an average of 1.7 hours of certified nursing assistant time for each resident during at least eight 24 hour periods, and assessing an administrative fine of $250.00. It is further recommended that the Agency correct its records to reflect Respondent’s entitlement to a standard license rating effective October 1, 1995. DONE and ENTERED this 12th day of March, 1997, in Tallahassee, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 12th day of March, 1997. COPIES FURNISHED: Thomas W. Caufman, Esquire Agency for Health Care Administration 7827 North Dale Mabry Highway Tampa, Florida 33614 Donna H. Stinson, Esquire Broad and Cassel 215 S. Monroe Street, Suite 400 Post Office Drawer 11300 Tallahassee, Florida 32302 Sam Power Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308 Jerome W. Hoffman General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32309
The Issue The issues for consideration in these cases are: as to Case Number 00-3497, whether the Agency for Health Care Administration should impose an administrative fine against the Respondent's license to operate Beverly Savana Cay Manor, a nursing home in Lakeland; and, as to Case Number 00-2465, whether the Agency should issue a conditional license to the Respondent's facility effective April 28, 2000.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Agency for Health Care Administration, was the state agency in Florida responsible for the licensing of nursing homes and the regulation of the nursing home industry in this state. It is also the agency responsible for conducting surveys to monitor the compliance of nursing homes with the conditions of Medicare and Medicaid participation. Respondents, Beverly Savana Cay Manor, Inc., d/b/a Beverly Healthcare Lakeland, and Beverly Enterprises - Lakeland, are licensed by the Agency to operate a skilled nursing home at 1010 Carpenter's Way in Lakeland. On August 31, 1999, the Agency conducted an investigation into a complaint that Savana Cay had failed to provide sufficient nursing service and related services to allow residents to attain or maintain the highest practicable physical, mental, and psychosocial well-being as required by Federal rules governing Medicare and Medicaid. The Agency surveyor, Patricia Mills, observed several residents who did not have their call buttons within reach so that they could summon help if needed. Ms. Mills also talked with residents and family members and from these interviews determined that even when the resident could reach the call button and summon help, the response time was excessively long or, in some instances, the call went unheeded. This sometimes resulted in resident's suffering from the results of their incontinence because the staff did not timely respond to the help calls. Ms. Mills concluded, based on her extensive experience in surveying nursing homes, that the number of staff on duty was not sufficient to meet the residents' needs. It did not allow for the best possible well-being of the residents. Though the information related by Ms. Mills came from her interviews with residents and their families and was clearly hearsay testimony, it was admissible and considered as corroborative of her direct observation. The parties stipulated that a follow-up survey of the facility was conducted on October 13, 1999, at which time the deficiency described was deemed to have been timely corrected. The Respondent, by stipulation, does not concede the validity of this discrepancy on the August 19, 1999, survey, and the Agency does not rely on it to support the administrative fine sought to be imposed herein. Another survey of the facility was conducted by the Agency on April 26-28, 2000. On this occasion, surveyor Patricia Gold interviewed residents regarding the everyday life of the facility and reviewed resident council reports to follow up on any resident or family concerns which did not appear to have been addressed by the facility staff. During the resident interviews, Ms. Gold was advised that call lights were not answered in a timely fashion. In that connection, early on the morning of April 28, 2000, Ms. Gold observed a resident request a nurse to bring something to drink. The nurse was overheard to tell the resident the request would have to wait until she finished her report. Ms. Gold also noted on April 28, 2000, that dirty dishes were left uncollected over night in the facility common corridor and that one resident had two dirty trays left in the room. The dishes in the corridor were also seen by surveyors Donna Edwards and Marie Maisel. Based on their observations, the interviews, and the review of the council reports, the surveyors concluded that the staff on duty were insufficient in number. Another surveyor, Joanne Stewart, reviewed the resident files and medical reports of several of the residents and determined that in several cases the facility had failed to provide adequate supervision and assistive devices to prevent falls and inconsistently applied the interventions that were put in place. For example, Ms. Stewart observed Resident 12 on the floor at 2:40 p.m. on April 27, 2000. This resident, a cognitively impaired individual, had been placed in the facility from the hospital after he had sustained a fracture to his right hip and, at the time of the fall, still had staples in his hip. Ms. Stewart's review of the kardexes maintained by the certified nursing assistant (CNA) revealed there were no entries thereon indicating a need for special care to prevent this resident from falling. Although he was supposed to wear a tab alarm at all times, the facility staff knew the resident would periodically remove it, and when Ms. Stewart saw him prior to the fall, he was not wearing it. No other interventions, such as quick-release seat belts or Velcro belts, had been implemented to prevent his falls. It was just the kind of fall that he had which caused his placement in the facility and which gave rise to the need for supervision adequate to prevent further injury. He did not get the needed supervision. In fact, though the resident sustained a skin tear and bleeding of the arm as a result of the fall, the nurse who came to the scene of the fall went back to her desk and did some paperwork for between twenty and twenty-five minutes before the resident was provided any treatment for his injury. Ms. Stewart concluded the facility did not provide adequate supervision and assistance to Resident 12, and it is so found. Due to a cognitive impairment and an inability to ambulate due to an intracerebral hemorrhage, diabetes, and a cardio-vascular accident, Resident 9 was assessed at high risk for falls, and a determination was made that the resident should wear a tab alarm while in bed and in the wheelchair. During the course of her survey, Ms. Stewart observed this resident on several occasions without the tab alarm when she should have been wearing it. The resident had previously sustained falls, one of which occurred while the resident was on leave, on March 31 and April 1, 2000, but the only caveat on the CNA kardex for the resident was the caution not to leave her on the toilet alone. Ms. Stewart did not consider the supervision and assistance rendered Resident 9 to be adequate. It is so found. Ms. Edwards focused her review on the records of Resident 22 who was not at the facility at the time of the survey. The records indicated the resident had been assessed at a high risk for falls at the time of her admission and a tab alarm was used. However, according to the nurse's notes, on April 10, 2000, the alarm went off causing the resident to lose her balance and fall while in the merry walker. She lacerated her scalp and sustained a large swelling in the occipital area. The only fall assessment of this resident was done when she was admitted to the facility. The evidence does not indicate when this was, but presumably, it was not done timely. There is a requirement that fall assessments be done quarterly, but it cannot be determined when it was done here. Even when, on April 11, 2000, the day after the fall, the physical therapy staff re-screened this resident for a merry walker, no change in care notation was noted in her record or implemented. Resident 22 sustained another fall on April 16, 2000. On this occasion, the resident was found on the floor of the day room, out of the merry walker. There was no indication she was being supervised or monitored at the time of her fall. This time she sustained another head injury just above the old one. After this fall, the facility staff ordered a new merry walker even though there was no indication a different one would provide additional protection. The resident sustained a third fall on April 18, 2000, sustaining another injury to the head which resulted in substantial blood loss. As a result of this fall, she was taken to the hospital. Because of this, she was not present when the survey was done, but based on her review of the resident records, Ms. Edwards concluded that the facility did not provide sufficient supervision or assistive devices to this resident. During the period of the survey, Ms. Gold observed Resident 3 on five separate occasions. On none of them was the resident wearing a Tabs alarm even though the facility's care plan called for one to be used. A falls assessment had been started on the resident but not completed. The record also revealed that the resident fell on March 29, 2000, resulting in a skin tear to the right arm. Based on the above, Ms. Gold concluded that the resident was not provided with adequate care and assistive devices. Resident 10 was a resident with a history of falls both before and after admission to the facility. The resident's care plan called for chair alarms, a merry walker, a safety seat belt, a low bed, and a bike horn. Though Ms. Maisel, the surveyor, observed that the resident had a chair alarm, she did not see that any of the other interventions called for in the plan were provided. She did not ever see the resident with a merry walker, and on at least two occasions, she saw the resident when the chair alarm was not in use. In her opinion, the use of one intervention does not make the use of other interventions unnecessary, and she considers the facility's supervision and assistive device provision to be inadequate. Resident 4 was an individual who had sustained a hip fracture, was senile, and was taking pain medications. The resident required help in getting out of bed or a chair. The care plan for the resident called for the use of a Tabs alarm, but on none of the occasions that Ms. Stewart observed this resident was the tabs alarm in use. She considered the supervision and assistive devices provided by the facility to this resident to be inadequate. Respondent does not contest that the incidents cited by the Agency took place. Rather, it contends that the interventions implemented by it were sufficient. It also disputes the effectiveness of some interventions called for, specifically the Tabs alarms, suggesting that the alarm does not prevent falls and often contributes to them by startling the wearer. There is some evidence to support that claim. Respondent further contends that the safety provided by the use of an intervention device, such as the Tabs alarm, straps, bed rails, or the merry walker, restrictive as they are, must be weighed and evaluated against the loss of dignity of the resident caused by their use. It is also urged by the facility that the use of certain interventions such as Tabs alarms is made unnecessary when the resident is immobile and safety is provided by the use of other interventions such as bed rails, which are more pertinent to the condition of the resident. In the case of Resident 9, the failure to provide for the use of a Tabs alarm when the resident was on leave with her husband was off-set by the one-on-one supervision she received during that period. Respondent contends that falls will occur among residents of the type in issue here regardless of the planning to identify the risks of fall, the efforts made to prevent them, and the implementation and use of interventions designed to avoid them. While this may be so, the facility nonetheless has a duty to provide necessary and adequate supervision and assistive devices to minimize to the greatest extent possible, the risk of injury as the result of falls. In some cases, this was not done here. In support of its position, Respondent presented the testimony of Theresa Vogelspohl, a nursing home consultant and an agreed expert on falls, issues of the elderly, issues of care of the elderly, and nursing practices and standards in nursing homes. Ms. Vogelspohl indicated that as a general practice when patients are admitted to a nursing home they are considered at risk for falls until the facility staff gets to know them. Each facility sets its own standard as to the length of the observation period, during which the residents are studied for their gait and safety awareness. In addition, the residents are evaluated for safety awareness by the staff of the physical and occupational therapy departments. Ordinarily, the assessment includes only the minimum data set (MDS) criteria, but increasingly during the last few years, a separate falls assessment has become common. In addition to the initial assessment, the attending nurses do an independent admissions assessment, and Ms. Vogelspohl found that such an assessment process was followed as to each of the residents in issue here. Ms. Vogelspohl found that an incomplete falls assessment had been done on Resident 3. Based upon her own review of the resident's records, however, had the full assessment been completed, other than the fact that she was a new resident, the resident would have been classified as a low risk for falls. She opines that the failure to complete the falls assessment did not deny the resident any care or a care plan for falls. Ms. Vogelspohl determined that the facility had opted, instead, for a more cautious approach to this resident in the care plan which, in her opinion, was appropriate for a new admission. A care plan is a map for the staff to be made aware of the care being provided and the specific interventions pertinent to the resident. If the resident is at increased risk for falls, the care plan would list the interventions designed to decrease the risk of falls. One of the most significant risk factors for falls is increase in age. Others are disease conditions, medications, cognitive functioning levels, eyesight, and other impairments. The interventions available to a facility to address the issue of risk of falls depend upon the condition of the resident. The first consideration should be the need to maintain a safe physical environment for the resident. Appropriate footwear is important as is the availability of assistive devices such as a cane or walker. If the resident has a history of falls, consideration should be given to changing those factors which were related to the prior falls. Included in that is consideration of different seating or a more frequent toileting schedule. According to Ms. Vogelspohl, the last thing one would want to do is to apply physical restraint, but, if all else has failed, the least restrictive physical or chemical restraint may be necessary to decrease the likelihood of falls. Ms. Vogelspohl emphasizes that only the likelihood of falls can be reduced. It is not possible to prevent all falls. Room cleanliness is not something which should appear in a care plan. It is a given, and nurses know to place furniture in such a way and to reduce clutter to the extent that the resident can safely navigate the room either with a walker or a wheelchair. Obviously, in this case the survey staff concluded the placement of the dirty trays in the hallway and in the resident's room constituted a hazard. In Ms. Vogelspohl's opinion, supervision and monitoring of residents in a nursing home is a basic. That is generally the reason for the resident's being admitted in the first place. While they should be done on a routine basis, supervision and monitoring are still sometimes placed in a care plan, but the failure to have the requirements in black and white is not a discrepancy so long as the appropriate supervision and monitoring are accomplished. The residents most at risk for falls, and those who are the most difficult to manage, are those who have full physical functioning yet who have almost nonexistent cognitive functioning. Ms. Vogelspohl is of the opinion that for these residents, the best intervention is the merry walker. This is better than a regular walker because the resident cannot leave it behind. If the resident is one who falls from bed, then a low bed, with rails if appropriate, is the primary option. A low bed was called for for Resident 10 but was not provided. Ms. Vogelspohl does not have a high opinion of the Tabs alarm because it can cause as many falls as it prevents. It has a place with the cognitively aware resident who will sit back down if she or he hears the alarm sound. More often than not, however, the routine resident will automatically react by trying to get away from the noise, and, thus, be more likely to engage in rapid, impulsive behavior that can lead to a fall. Ms. Vogelspohl considers the use of the Tabs alarm as only one factor in assessing the degree of supervision provided. She looks at the care plan to see if the Tabs alarm even meets the needs of the resident. If the resident is cognitively alert and at no risk of falls, a Tabs alarm is not appropriate. There are other interventions which can be used such as quick release, velcro seat belts which better prevent falls because they provide a resistance when the resident attempts to stand up. To determine whether a care plan has been developed and implemented, Ms. Vogelspohl reviews the record. She looks at the nurse's notes and those of the social services personnel. She evaluates the records of the physical, occupational, and recreational therapy staff. Finally, she reads the resident's chart to see what staff is actually doing to implement the interventions called for in the care plan. However, on the issue of supervision, she does not expect the notes or the record to affirmatively reflect every incident of supervision. There is no standard of nursing practice that she is aware of that calls for that degree of record keeping. What she would expect to see is a record of any kind of unsafe behavior that was observed. By the same token, Ms. Vogelspohl would not expect a facility to document every time it placed an alarm unit on a resident. The units are applied and removed several times a day for bathing, clothing changes, incontinence care, and the like, and it would be unreasonable, she opines, to expect each change to be documented. Further, she considers it inappropriate and insulting to the resident to require him or her to wear an alarm when cognizant and not displaying any unsafe behavior. If a resident who is not cognitively impaired declines intervention, it would, in her opinion, be a violation of that resident's rights to put one on. In that regard, generally, interventions are noted in the resident records when initiated. Usually, however, they are not removed until the quarterly assessment, even though the intervention may be discontinued shortly after implementation. Ms. Vogelspohl took exception to Ms. Edwards' finding fault with the facility for the three falls experienced by Resident 22. The resident was under observation when the first fall occurred, but the staff member was not able to get to the resident quickly enough to catch her when she stood up and immediately toppled over in her merry walker. The resident had been properly assessed and proper interventions had been called for in the care plan. Ms. Vogelspohl attributes the fall to the resident's being frightened by the Tabs alarm going off when she stood up and believes she probably would not have fallen had she not had the tab unit on. The second fall took place while the resident got out of her marry walker in the day room. Though the day room was visible to anyone out in the hallway, the fall was not witnessed, but Ms. Vogelspohl is of the opinion that it is not reasonably possible to keep every resident under constant visual supervision unless an aide can be assigned on a one-on-one basis to every resident. On the third fall, which occurred at about 10 p.m., the staff had put the resident to bed and had put a Tabs unit on her at that time, but the resident had detached the unit and gotten out of bed. There was nothing the staff could do to prevent that. The resident was able to remove the unit no matter how it was affixed to her. Taken together, the actions taken by the facility with regard to this resident were, to Ms. Vogelspohl, appropriate. Some things could have been done differently, such as perhaps using a heavier merry walker, but she did not consider these matters as defects in the care plan, in assessment, in design, or in application. Further, she concluded that the actions taken by the facility subsequent to the first fall on April 10, 2000, wherein the resident's medications were adjusted to compensate for their effect on the resident, constituted a recognition of a change in the resident's condition which was properly addressed. Too much supervision becomes a dignity issue. There is no formula for determining how much supervision is adequate. It is a question of nursing discretion based on the individual resident. An unofficial standard in place within the industry calls for a resident to be checked on every two hours, but rarely will this be documented. Staff, mostly nurses and CNAs, are in and out of the residents' rooms on a regular basis, administering medications and giving treatments. Those visits are documented, but not every visit to a resident's room is. Resident 12, a relatively young man of 62 with several severe medical problems, sustained a fall which resulted in a fractured hip just two weeks after admission to the facility and two weeks before the survey. He was far more mobile than expected. According to the records, he was mostly cognitive intact and had been assessed for falls. As a result of this assessment, the facility developed a care plan to address his risk for falls. Implementation of the plan was difficult, however, because he was aware and could make up his own mind as to what interventions he would accept. As to the resident's April 27, 2000 fall, the only evidence in the file shows that he was found on the floor of his room in front of a straight chair, having sustained a small skin tear in addition to the fracture. From Ms. Vogelspohl's review of the record she could find no indication that the facility had failed to do something that it should have done to prevent the fall. The staff had put a Tabs alarm on the resident, and he removed it. They tried to keep his wheel chair as close to him as possible. They tried to restrict his water intake by giving him thickened liquids to reduce his trips to the rest room. He would pour out the thickened fluids and replace them with water. Because of this resident's mobility, Ms. Vogelspohl does not accept the surveyor's conclusion that the facility did not use Tabs alarms. He was able to get out of them by himself and frequently did. She is also of the opinion, in light of the way the resident behaved, that the blank kardex observed by the surveyor in no way contributed to the resident's fall. The CNA's were aware that the Tabs units were supposed to be used, and Ms. Vogelspohl has concluded that there were no more aggressive interventions that could have been used with this resident. To attempt the use of restraints, either belt or vest, would have been futile because he could have gotten out of them easily. The only other thing Ms. Vogelspohl feels could have been done was to put him in a geriatric psychiatric unit, and this was ultimately done, but not in the Respondent facility. Ms. Vogelpohl also addressed the surveyors' write- ups as they related to Residents 9, 4, 3, and 10. Resident 4 was bed-ridden as a result of Parkinson's Disease and did not need a Tabs alarm, the deficiency cited, while in bed. When seated in a wheel chair, his postural deficits were compensated for by lateral supports and a padded cushion, and she was of the opinion that a Tabs alarm was not required. She opines its absence would not have addressed his risk for falls. His January 2000 fall apparently did not relate to the failure to use a Tabs unit. Resident 3, also the subject of a write-up for failure to use a Tabs alarm, was not, in Ms. Vogelspohl's opinion, at risk for falls because she did not move around a lot due to her physical condition. Nonetheless, she experienced a fall in late March 2000 and shortly thereafter, the facility placed a Tabs alarm on her and made the appropriate entry in her care plan. Resident 9 was ambulatory only with assistance and had a special seating device to keep her in her wheel chair. After the resident sustained two falls close together, a Tabs alarm was placed on her, and from that time until the time of the survey she had no further falls. Ms. Vogelspohl contends that it was an appropriate nursing decision not to place a Tabs unit on her. The rationale for this position is not at all clear. The care plan for Resident 10, also one of the residents observed without a Tabs alarm in place, was described as "somewhat cluttered." It showed multiple interventions initiated as early as April 1999. The initial care plan was crossed through and a new one substituted in September 1999 with the family's concurrence. Nonetheless, Ms. Vogelspohl did not find it too cluttered to be understood. The evidence shows that the resident's chair was outfitted with a soft seat belt and a pressure-sensitive alarm, both of which are considered to be more effective than the Tabs alarm. Ms. Vogelspohl contends that the facility did not ignore the requirement to assess the residents for falls or the requirement to address that issue in care planning. She admits that in some cases, the plan addressing falls prevention was covered in another assessment than the one wherein it might most likely be expected, but it is her contention that if the subject is properly and thoroughly addressed somewhere in the resident's care record, that is sufficient. She considers placing it in several areas to be a redundancy and though it is frequently done so, it is done to meet a paper compliance without having any impact on the quality of care provided.
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 sustaining the Conditional license for the Respondent effective April 28, 2000, and, based only on the conditions observed at the facility on that date, imposing an administrative fine of $700.00. DONE AND ENTERED this 22nd day of March, 2001, in Tallahassee, Leon County, Florida. ___________________________________ ARNOLD H. POLLOCK 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of March, 2001. COPIES FURNISHED: Christine T. Messana, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 R. Davis Thomas, Jr., Qualified Representative Broad and Cassel 215 South Monroe Street, Suite 400 Post office Box 11300 Tallahassee, Florida 32302-1300 Sam Power, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building Three, Suite 3431 Tallahassee, Florida 32308 Julie Gallagher, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building Three, Suite 3431 Tallahassee, Florida 32308
The Issue Whether there was negligence involved in treating Lewis Dougal, a patient in the Miracle Hill Nursing and Convalescent Home. Whether the Respondent kept records in compliance with the statutes and the requirements of Chapter 10D-29 of the Florida Administrative Code.
Findings Of Fact The Miracle Hill Nursing and Convalescent Home had Lewis Dougal, an adult mentally retarded male, as a patient in January of 1976. On Thursday, January 29, 1976, Mr. Dougal was taken to Tallahassee Memorial Hospital for a neurological brain scan. His exact whereabouts have not been established during the period of time from 10:00 a.m. until 3:00 p.m. on that day, but he was in the emergency room area or in the radiology area of the hospital. At approximately 3:00 p.m. he was returned to the Respondent nursing home. At approximately 7:00 p.m. on January 30, a nurses aide discovered that Lewis Dougal had a reddened and swollen penis, a swollen scrotum and red marks on the buttocks. She called the charge nurse, an L.P.N., who did not call the doctor, but noted on the "nurse's log" that the patient should see a doctor the following day. No notation was made on the patient's individual medical record at that time. Mr. Dougal was transferred to Tallahassee Memorial Hospital late in the morning of January 31, 1976, whereupon he received a 50 mm injection of demerol for pain upon his admission to the hospital. He was released February 25, 1976. An investigative team from the Office of Health Facilities of the Department of Health and Rehabilitative Services, which consisted of a Hospital Nursing Home Consultant and a Registered Nurse, investigated the circumstances surrounding the incident on February the 25th and 27th, 1976. The injuries sustained by Mr. Dougal and his hospital records from the date of his admission, January 31, 1976, to the hospital, to the date of his release, February 25, 1976, were reviewed. The investigative team thereupon visited the Miracle Hill Convalescent and Nursing Home on February 27, 1976 and requested all medical records of the patient, Lewis Dougal. No medical records had been kept and the only reference to the incident was made on the "nurse's log" January 30 and 31, 1976. These entries were made subsequent to the dates thereof. Other information was placed on the records long after the incident occurred. On March 26, 1976, Petitioner State of Florida, Department of Health and Rehabilitative Services, issued an order charging Respondent with two violations: The first being in violation of Section 400.102(1)(a), Florida Statutes, and Chapter 10D-29.11(7), Florida Administrative Code, to-wit: "1. That the facility failed to protect a patient from neglect and abuse, in that a mentally retarded patient, incontinent of bowel and bladder, was allowed to acquire burns of the scrotal area, genitalia and buttocks, of sufficient severity to require hospitilization, such burns being caused by inadequate and improper nursing care on the part of the nursing service staff of the facility. As a result of the subject burns, the patient was hospitalized for treatment and care during the period January 31, 1976, and February 25, 1976, at Tallahassee Memorial Hospital. The admission diagnosis for this patient at the hospital in part was, "burns of the genitalia and buttocks." The admitting physician further noted that the admission examination revealed an obvious burn in the skin from the scrotum which had already desquamated indicating the burn had occurred some time previously, maybe as much as a couple of days. Further, a circular burn involving the buttocks was observed with the notation that it appeared the patient had been sitting in some very hot solution. The second charge was alleged to be in violation of Chapter 10D- 29.11(10) and (13) 1.(c), of the Florida Administrative Code in the following language: "(2) In that the required medical record documentation concerning how or when the above injuries occurred to this particular patient was lacking, and the investigating team was unable to determine just how or when the burns occurred or the specific person responsible for this."
Recommendation Section 400.121(1) (8), Florida Statutes, Denial, suspension, revocation of license; procedure.- (1) "The [department] may deny, revoke, or suspend a license or impose an administrative fine for a violation of any provision of s. 400.102 only after written notice to the applicant or licensee setting forth the particular grounds for the proposed action and a hearing, if demanded by the applicant or licensee." (8) The [department], as a part of any final order issued by it under the provisions of this chapter, may impose such fine as it deems proper, except that such fine shall not exceed $500 for each violation. Each day a violation of this chapter occurs shall constitute a separate violation and shall be subject to separate fine. An action for recovery of the fine may be maintained in the circuit court of the county in which the facility is located, and appeal from any judgment rendered shall be in the manner and within the time provided by the Florida Appellate Rules for reviewing judgments rendered by circuit courts in action at law." Record keeping is such an important and necessary adjunct to nursing home care the Respondent should suffer a fine of at least $200 for violation of the foregoing statutes and rules. DONE and ORDERED this 10th day of January, 1977 in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Robert M. Eisenberg, Esquire Health Program Office Department of Health and Rehabilitative Services Post Office Box 210 Jacksonville, Florida 32201 John K. Folsom, Esquire 122 South Calhoun Street Tallahassee, Florida 32301
