The Issue The issues are whether Respondent committed the violations alleged in the Administrative Complaint concerning three nursing home residents, whether Petitioner should impose a civil penalty of $2,500 for each violation, whether Petitioner should change the status of Respondent's license from standard to conditional, and whether Petitioner should recover investigative costs.
Findings Of Fact Petitioner is the state agency responsible for licensing and regulating nursing homes in Florida. Respondent is licensed to operate an 87-bed nursing home located at 3250 12th Street, Sarasota, Florida (the facility). From February 9 through 11, 2004, Petitioner's staff inspected the facility pursuant to regulatory requirements for an annual survey of such facilities (the survey). At the conclusion of the survey, Petitioner issued a document identified in the record as CMS Form 2567L (the 2567 form). The 2567 form alleges violations of federal nursing home regulations that Petitioner has adopted by rule. The Administrative Complaint incorporates the factual allegations from the 2567 form and charges Respondent with committing four violations alleged to be Class II violations defined in Subsection 400.23(8)(b), Florida Statutes (2003). Counts I through III in the Administrative Complaint allege that facility staff committed acts involving residents identified in the record as Residents 14, 7, and 8. Count IV alleges that the allegations in Counts I through III show that Respondent administered the facility in a manner that violated relevant regulatory provisions. Counts I through IV propose an administrative fine of $2,500 for each alleged violation and the recovery of unspecified investigative costs. Count V alleges that the allegations in Counts I through III require Petitioner to change Respondent's license rating from standard to conditional while the alleged deficiencies remained uncorrected. Count I alleges that a staff nurse at the facility abused Resident 14, an elderly female. The substance of the allegation is that the nurse "intentionally caused pain" to Resident 14 by raising the resident's left hand above her head so the resident would open her mouth and allow the nurse to ensure the resident had swallowed her medication. Respondent admitted Resident 14 to the facility on January 31, 2000, with multiple health problems, including anxiety, paranoia, psychosis, delusions, and disorientation due to dementia. Resident 14 was not ambulatory and suffered poor wheel chair positioning for which she had been evaluated and received therapy. Resident 14 was non-verbal, angry, aggressive, combative with staff and other residents, displayed territorial aggression, and a tendency to strike out at others. Prior to admission, Resident 14 had suffered a fracture of the left arm resulting in a limited range of motion in her left shoulder of 60 degrees. At the time of the survey, Resident 14 was approximately 93 years old. Two surveyors observed a staff nurse administering medication to Resident 14 while the resident was sitting in her wheel chair in her room. Resident 14 did not respond to repeated cues from the nurse to open her mouth so the nurse could ensure the resident had swallowed her medication. The nurse continued to observe Resident 14 for some indication the resident had not swallowed her medication and offered pudding to the resident. Resident 14 remained unresponsive. The nurse directed a certified nurse assistant (CNA) to give Resident 14 breakfast and left to care for other residents. The surveyors asked the nurse to return to the room to ensure that Resident 14 had swallowed her medication. Resident 14 did not respond to additional cues from the staff nurse to open her mouth because the resident was distracted by the surveyors. The staff nurse attempted to redirect the attention of the resident to the nurse's cues to open her mouth by holding the resident's left hand and raising her hand and arm. Resident 14 opened her mouth, and the staff nurse observed no medication in the resident's mouth. The disputed factual issues call into question how quickly and how high the staff nurse raised the left hand of Resident 14, whether the resident suffered pain, and whether the staff nurse knew the action would cause pain. Although Resident 14 was non-verbal, Count I alleges, in relevant part, that Resident 14 cried "OW" when the staff nurse, without warning, raised the resident's hand over her head. A preponderance of evidence does not show that the staff nurse lifted the hand of Resident 14 in an abrupt manner. During cross-examination of the surveyor, counsel for Respondent conducted a reenactment of the alleged incident. The witness verified the manner in which the person acting as the staff nurse in the reenactment raised the left hand and arm of the person acting as Resident 14. The demonstration did not show the staff nurse acted abruptly. The reenactment showed that the description of the incident by the surveyor was less than persuasive. Petitioner admits in its PRO that a determination of whether the staff nurse raised the resident's hand gently or abruptly is a "matter of perspective." Petitioner argues unpersuasively at page 14 in its PRO that the surveyor's perception should be accepted because: Clearly, the surveyor would not have made comment if the resident had been treated in a gentle manner. Petitioner cites no evidence or law that precludes the written statement provided by the staff nurse during the facility's investigation of the incident from enjoying a presumption of credibility equivalent to that Petitioner claims for the report of the surveyor. The staff nurse had been a nurse at the facility for 19 years without any previous complaints or discipline and had ample experience with residents that suffered from dementia. The nurse had cared for Resident 14 for most of the four years that Resident 14 had been a resident at the facility. Irrespective of how fast and high the staff nurse raised the hand of Resident 14, a preponderance of evidence does not show that Resident 14 suffered an injury or harm that is essential to a finding of abuse. The surveyor asked Resident 14 if the resident had been in pain prior to the incident. Resident 14 was "unable to speak," according to the surveyor, but nodded affirmatively. Resident 14 did not indicate the source or location of any pain, and there is no evidence that the surveyor asked Resident 14 to indicate to the surveyor where the resident was experiencing pain. After the incident, the surveyors undertook no further inquiry or investigation, did not question the nurse or the resident further, and refused a request by facility administrators for a written statement describing the incident. The surveyors at the facility did not make a determination of whether the incident resulted in "harm" to Resident 14. Rather, the allegation of harm arises from Petitioner's employees who did not testify at the hearing. The determination of harm is uncorroborated hearsay, and the trier of fact has not relied on that determination for any finding of fact. Upon learning of the incident, Respondent's nursing staff immediately examined Resident 14 for injuries, had Resident 14 examined by her physician, and had Resident 14 x-rayed for possible injuries. No injury was found. Resident 14 did not complain of pain when her physician performed a range of motion examination on the suspect arm. Resident 14 was able to move both of her arms without pain. The medical records for Resident 14 and the testimony of her occupational therapist show that the resident had use of her left arm. Resident 14 frequently flailed both arms in an effort to strike others. Notes in the medical records show that Resident 14 "lashes out," "swings her arms," was "physically abusive to staff when attempting to provide care," and "refused to open mouth and became agitated and combative." The limited range of motion in the left shoulder of Resident 14 did not prevent Resident 14 from raising her left hand above her head while seated in a wheel chair. Resident 14 sat in a wheel chair with a forward pelvic thrust, causing her to slump with a lateral lean to the left. The wheel chair position effectively lowered the resident's head, reduced the distance between her head and left hand, and enabled the resident to raise her left hand above her head without pain. Count II alleges that Respondent failed to assist Resident 7 in "coping with changes in her living arrangements in a timely manner" after Resident 7 became upset that her guardian was selling her home. The allegation is not supported by a preponderance of evidence. Respondent admitted Resident 7 to the facility in September of 2003. Prior to admission, the circuit court for Sarasota County, Florida, entered an order appointing a guardian for Resident 7. In relevant part, the court order authorized the guardian to determine residency of Resident 7 and to manage her property. Prior to December 28, 2003, Resident 7 was reasonably content. Social service's notes in October 2003, show that Resident 7 was "alert with no mood or behaviors." Nurses notes in November 2003, show Resident 7 to be "pleasant" with a "sense of humor." On December 28, 2003, Resident 7 became angry when her guardian revealed plans to sell the resident's home. Resident 7 continued to exhibit anger for several weeks. On January 6, 2004, Respondent conducted a care plan conference with the guardian for Resident 7, discussed Resident 7's emotional state, and obtained the guardian's consent for counseling. Pursuant to the care plan, Respondent's social services staff met with Resident 7 regularly and provided psychological counseling twice a week. Facility staff did not undertake discharge planning for Resident 7. Staff provided other assistance to the resident, but that assistance was minimal and consisted mainly of giving Resident 7 telephone numbers to contact the Long Term Care Ombudsman in the area and the attorney for the guardian. The sufficiency of the other assistance provided by Respondent is not material because the court convened a second hearing to consider the objections of Resident 7 to her guardian and to consider a competency examination by another physician. On February 6, 2004, the court entered an order denying the resident's suggestion of capacity and authorizing the guardian to sell the residence. The allegation that Respondent should have undertaken discharge planning is not supported by a preponderance of the evidence. Pursuant to two court orders, Resident 7 continued to be in need of a nursing home level of care, and her expectations for discharge to a lower level of care were unrealistic. Count III alleges that a facility staff nurse failed to administer analgesic medication to Resident 8 causing "continued pain and emotional stress to the resident." Resident 8 experienced chronic pain from a joint disorder. A care plan for pain management, in relevant part, authorized Tylenol as needed. A preponderance of evidence does not show that Respondent failed to provide Tylenol to Resident 8 in accordance with the care plan. During the survey, a surveyor observed staff at the facility reinserting a catheter into a vein of Resident 8. The witness for Petitioner testified that the procedure did not cause Resident 8 to experience pain. It is undisputed that Resident 8 did not request pain medication and that no pain medication was medically required prior to the procedure. Respondent did provide Resident 8 with a prescription medication to calm the resident. The preponderance of evidence does not show that Respondent failed to ensure that Resident 8 obtained optimal improvement or that Resident 8 deteriorated. Petitioner submitted no evidence that Resident 8 experienced any lack of improvement or decline in functioning or well-being. Count IV in the Administrative Complaint alleges that the allegations in Counts I through III show that Respondent failed to administer the facility in a manner that enabled the facility to use its resources effectively and efficiently to maintain the highest practical well-being of Residents 14, 7, and 8. For reasons previously stated, the preponderance of evidence does not show that Respondent committed the acts alleged in Counts I through III. Without the violations charged in Counts I, II, or III, the charges in Count IV are moot. Assuming arguendo that the staff nurse abused Resident 14, a preponderance of evidence does not show that Respondent failed to take action that could have prevented such abuse. Petitioner's surveyor was unable to explain in her testimony how Respondent could have prevented the alleged abuse. The surveyor did not report the incident to management at the facility for approximately 1.5 hours. Management immediately suspended the staff nurse and undertook an investigation required by law. Petitioner's surveyors refused to provide written statements describing the incident. The staff nurse provided a written statement that Respondent included as part of its investigation and report to Petitioner. Respondent maintains adequate policies and procedures for background screening and regular training for its staff relating to abuse and neglect of residents. Respondent had accomplished all background screening and abuse training requirements for the staff nurse involved in the incident. Respondent had no information in the nurse's history that would have enabled the facility to predict any potential for this staff nurse to intentionally harm a resident. A preponderance of evidence does not show that Respondent failed to administer the facility in a manner that would ensure the highest practical well-being for Resident 7. Two court orders determined that Resident 7 was incompetent and authorized the guardian to sell the resident's real property. The opinion of a surveyor that Resident 7 was "clearly competent" does not eviscerate the findings of the court. A preponderance of evidence does not show that Respondent failed to administer the facility in a manner that would ensure the highest practical well-being for Resident 8. Respondent maintained an adequate pain management care plan for Resident 8 that included Tylenol as needed. It is undisputed that the care plan did not require Tylenol before or after the re-insertion of the catheter into the vein of Resident 8, that insertion of the catheter caused Resident 8 no pain, that Tylenol was not medically required before or after the procedure, and that Respondent provided Resident 8 with a stronger prescription medication for anxiety. Count V of the Administrative Complaint alleges that the allegations in Counts I through IV require Petitioner to change the status of Respondent's license from standard to conditional. In the absence of the violations charged in Counts I through IV, there is no factual basis to support the proposed change in the status of Respondent's license.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent not guilty of committing the violations charged in the Administrative Complaint. DONE AND ENTERED this 4th day of February, 2005, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 2005. COPIES FURNISHED: Alfred W. Clark, Esquire 117 South Gadsden Street, Suite 201 Post Office Box 623 Tallahassee, Florida 32302-0623 Gerald L. Pickett, Esquire Agency for Health Care Administration Sebring Building, Suite 330K 525 Mirror Lake Drive, North St. Petersburg, Florida 33701 Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration Fort Knox Building, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308 Alan Levine, Secretary Agency for Health Care Administration Fort Knox Building, Suite 3116 2727 Mahan Drive Tallahassee, Florida 32308
The Issue Whether Petitioner’s license should be changed from Standard to Conditional and/or disciplined.
Findings Of Fact Destin is a licensed nursing home located in Destin, Florida. On January 16, 2003, AHCA conducted a survey of Destin. AHCA asserted five “tag” deficiencies involving the nursing home. Tag deficiencies are a shorthand reference to state and federal nursing home regulations. The deficiencies cited during the January survey involved Tag F226, Tag F490, Tag F324, Tag F327 and Tag F329. Tag F226 incorporates the standard of 42 Code of Federal Regulations (CFR) contained in Section 483.13(c)(1)(i). It provides that a nursing home must “develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse of residents and misappropriation of resident property,” and “not use verbal, mental, sexual, or physical abuse, corporal punishment, or involuntary seclusion.” The standard addresses policy development by a facility. It does not address specific acts of abuse neglect or mistreatment that are covered by other tags. In addition to Tag F 226, Tag F490 incorporates the standard of 42 CFR Section 483.75, which provides that a nursing home must “be administered in a manner that enables it to use its resources effectively and efficiently to attain or maintain the highest practicable physical, mental and psycho-social well- being of each resident.” Under this Tag, AHCA charged essentially the same violations against Destin that were made under Tag F226. The surveyor offered no additional factual basis for the charge and opined that it was appropriate because the administrative staff bears ultimate responsibility for the operation of a nursing home. Under Florida law, no prospective employee can be hired by a nursing home until that person has cleared a Level I background screen. § 400.215(2)(a), Fla. Stat. (2003). To complete that screen, a nursing home must check with prior employers of the prospective employee, and must also obtain a statewide criminal correspondence check from the Florida Department of Law Enforcement (FDLE). § 435.03(1), Fla. Stat. (2003). If a nursing home conducts a Level I screen and finds that a prospective employee has pled nolo contendere or has been found guilty of one of the statutory offenses listed in Section 435.03(2), a nursing home cannot hire the prospective employee until that person obtains an exemption from AHCA. An employee who has not resided in Florida for the five years preceding the employee's hire date is also required to clear a Level II screen. § 400.215(2)(b), Fla. Stat. A Level II screen is a nationwide criminal background check conducted by the Federal Bureau of Investigation. Id. A nursing home is not required to do a Level II screen for an employee who has not been a resident of Florida for the preceding five years if that employee worked in another nursing home within the last 180 days and received a Level II screen at that time. Importantly, a nursing home is permitted to hire employees for a period of 180 days while awaiting the results of a Level II screen. If a Level II screen reveals that the employee has plead nolo contendere or has been found guilty of one of the disqualifying offenses, the employee can no longer work at the nursing home until an exemption is obtained from AHCA. Destin has a written policy that requires its staff developer to conduct background screens of all of its prospective employees and new employees to determine if any prospect or new hire has a history of abuse or neglect and otherwise complies with the background screening requirements in Florida. Destin also has a policy requiring annual performance evaluations of its employees. During the January survey, AHCA alleged that Destin failed to implement its policy related to background screens of its employees because its surveyor found, that out of 61 employee files reviewed: 11 did not contain Level I criminal background checks 21 did not contain Level I employer reference checks 17 did not contain attestations of residency, and 15 did not contain Level II criminal background checks AHCA has a written non-rule policy that a nursing home need only conduct background screens on its employees, not on employees of an independent contractor with whom a nursing home may contract. The policy was disseminated to the nursing home industry, including the Respondent. Respondent relied on this policy in utilizing an independent firm to perform housekeeping and laundry services. The independent contractor was responsible for screening its employees. In this case, nine workers included by the surveyor in her charge were not employed by Destin, but were employees of the company with whom Destin had a contract for housekeeping and laundry services. Destin was not required to perform background screens on these nine employees. Consequently, these nine employees should not have been included in AHCA’s charge. AHCA also included an employee on its Level II list who had been a Florida resident for the five years preceding her hire, and an employee who had an earlier Level II screen at another facility. These two employees should not have been included in AHCA’s charge. When the contract employees and the two employees who did not require Level II screens are eliminated from AHCA’s list, the undisputed numbers with regard to Destin’s failure to do required background screens are as follows: did not contain Level I criminal background screens did not contain Level I employer reference checks 8 did not contain attestations of residency 6 did not contain Level II criminal background checks In this case, Destin had a staff developer who had been trained in performing her job duties. She was hired on January 22, 2002. She had experience in other nursing homes, was highly recommended and was well qualified to fill the position of staff developer at Destin. Unfortunately, unknown to Destin and for reasons not revealed by the evidence, she did not perform her screening duties after October of 2002. She did perform her other job duties well. Indeed, Destin does not dispute that unknown to it, the staff developer failed to do some required background screens beginning in October of 2002. Upon discovery of the staff developer’s nonfeasance, she resigned her position and left the facility. In fact, Destin would have discovered the staff developer’s failure in approximately nine days because she was scheduled for her annual performance review by the hospital administrator, who was in the process of preparing for that review. AHCA rated the screening failure as a Class I deficiency. A Class I deficiency is one that has caused or is likely to cause serious injury, harm or death to a resident. A Class III deficiency is one which can potentially cause harm to a resident. AHCA rated the screening deficiency as Class I, in part, because Destin allegedly hired two employees, 48 and 19, in the Fall of 2002 who had disqualifying offenses in their past, without obtaining any exemption for their disqualifying offenses. Employee 48’s file contained a Level I criminal background screen that indicated that he plead no contest to a charge of aggravated assault with a weapon. Employee 19’s file indicated that she plead no contest to a charge of writing a bad check. Employee 48 was an employee of the laundry and housekeeping contractor and was not an employee of Destin. Destin had no obligation to conduct a background screen on that employee, and any risk of harm to residents that potentially might have been created by his hire cannot properly be blamed on Destin. Moreover, after discovery, the worker was not permitted to work at Destin. Employee 19’s conviction for writing bad checks, though ultimately considered a disqualifying offense under Florida law, is not predictive of abusive behavior. Moreover, Employee 19 was an exemplary employee at the facility, was never involved in any incident of abuse or neglect of residents, and was ultimately granted an exemption for her past offense by AHCA so that she could work in the facility. Destin’s decision to hire her certainly did not cause serious harm to residents nor make such harm likely or demonstrate that failure to screen was a Class I deficiency. Additionally, AHCA charged that the Class I rating assigned to the deficiency was appropriate, in part, because one cited employee allegedly abused a resident, thereby causing the requisite “serious physical harm” to the resident. However, the incident was reported to the Department of Health which determined, upon investigation, that no abuse occurred. Accordingly, the incident does not demonstrate serious harm or injury to support a Class I rating within the meaning of Section 400.23(8)(a), Florida Statutes. Furthermore, Destin completed the employer background calls for each cited employee immediately after the survey, and none revealed any information about an abusive past or any other disqualifying information for any employee. This evidence demonstrated that none of the employees had a past history of abuse or neglect of residents, or if one existed, that Destin would not have discovered it through the employer calls. The surveyor’s opinion as to the severity of the problems at Destin was also based, in part, on her failure to recognize that the legislature has determined that certain risks with regard to Level II checks, though potentially harmful, are nonetheless remote enough to be acceptable. As noted earlier Section 400.215, Florida Statutes, allows a nursing home to hire an employee for up to 180 days, pending receipt of the FBI background screen, thus indicating the legislature’s determination that any risk of harm presented to residents during that time period is minimal. Additionally, Destin ultimately obtained all of the Level II background screens for each of the cited employees within 180 days of each employee’s hire date, and none of those screens revealed any disqualifying information. Thus, Destin’s failure to obtain Level II checks earlier did not create a likelihood that residents would suffer death or serious harm within the meaning of Section 400.23(8)(5). Clearly, this evidence does not demonstrate that a nursing home's failure to conduct background screens would cause or likely cause serious harm or death to any resident. Nor is it reasonable to assume such a nexus exists. Therefore, Destin’s failure to make those calls did not create a likelihood that residents would suffer death or serious harm within the meaning of Section 400.23(8)(5), Florida Statutes. Indeed, the greater weight of the evidence demonstrated that the screening deficiency under either Tag 226 or 490 did not create any likelihood of death or serious harm to support a Class I rating within the meaning of Section 400.23(8)(a), Florida Statutes. At most, the failure to obtain the background screens presented a “potential” for harm to residents, which is a Class III, not a Class I, deficiency. AHCA presented no evidence to indicate the duration of the identified F226 or F490 deficiency. The surveyor testified that she returned to the facility on January 23, 2003, and determined that conditions no longer existed for a Class I deficiency. On the other hand, Destin demonstrated that any potential harm to residents as a consequence of the deficient practice was corrected and abated before the end of the survey on January 16, 2003. On that same day, Destin ordered every employee cited by AHCA to leave the facility and remain out of it pending receipt of an acceptable background screen. These actions were more than sufficient to correct any problems identified by AHCA under Tag F226 or F490. Destin also had reasonable policies in place and implemented to enable the facility to do appropriate background checks and comply with Florida law. Additionally, it was undisputed that the administrative staff had no reason to believe that its system for conducting background checks was not working at the time of the survey. The staff developer was highly qualified for the job, had a history of outstanding work in nursing homes, and was performing all of her other job duties well. The rate of alleged incidents of abuse in the facility in 2002 was very low and did not indicate any systemic problem involving background screens. Moreover, the facility had been surveyed in March of 2003, and the survey team looked at employee background checks at that time and determined that there were no identified problems. Thus, the evidence demonstrated that the administrative staff at Destin had appropriate systems in place to ensure that background checks were being done, and that there was no reason to believe that those systems were not working at the time of the survey or that administration should be doing something more. The identified deficiency occurred simply because one employee failed to do her job, not because of any failure by the administration of Destin. Such circumstances do not create a violation under Tag F490 or F226. Tag F324 incorporates the standard of 42 CFR Section 483.25(h)(2), and provides that a nursing home “must ensure that each resident receives adequate supervision and assistance devices to prevent accidents.” AHCA charged that Destin failed to provide required supervision to Resident 26 and thereby allowed him to injure another resident. Resident 26 was admitted to Destin on May 30, 2002, with a diagnosis of dementia, a history of mental illness and a history of aggressive behaviors. The facility developed a care plan to address those behaviors, which included the interventions that staff would encourage the Resident to attend activities of interest, to attend “diversional” activities when he was agitated, or to place him in a calm environment when agitated. The facility also obtained orders for medications for the Resident’s behaviors, including Remeron, Zyprexa, Celexa and Ativan. Despite many noted incidents involving the Resident striking out at staff or other residents after his admission, the facility was able to manage his behaviors through staff interventions and medications without injury to any other resident. In those instances, staff would re-direct the Resident by toileting him, offering him snacks, placing him in the dayroom or taking him to activities. His physician was called and appropriate medication changes were made to his regimen. On September 7, 2002, Resident 26 was noted as being aggressive toward staff through the shift. He was taken by staff to a quiet area. He was provided with one-to-one supervision for a brief period of time until he settled down. He was given a regular dose of Ativan in the afternoon to address his agitation, but it was noted as having little effect. Around 7:00 p.m., Resident 26 was placed in the facility dayroom with other residents, where a certified nursing assistant was stationed to observe them. Thereafter, while the assistant’s back was briefly turned to him, the Resident grabbed another resident’s wheelchair, and pushed it back and forth so as to cause the other resident to fall out of her chair. The assistant saw the incident but could not get to the residents in time to prevent the other resident from falling out of the chair. The other resident sustained a subdural hematoma as a consequence of Resident 26’s actions. The dayroom was a relatively small room that was being monitored by a designated staff member. Such monitoring is a high level of supervision in a nursing home setting. Placing the Resident in the dayroom was also consistent with his care plan and had been utilized successfully in the past by staff. Furthermore, the Resident was noted to have eaten 100 percent of his supper, thereby indicating that he had calmed down and would not be a threat to other residents in the dayroom. Finally, the Resident had no history of grabbing other residents’ wheelchairs while in the dayroom or elsewhere. Under these circumstances, it cannot be said that the decision to place him in the dayroom was unreasonable. Destin also demonstrated that the Resident was receiving a high level of supervision that was more than adequate to meet industry standards. Unfortunately, the incident occurred in spite of such supervision. The incident occurred when the assistant turned her back briefly to attend to another resident in the dayroom. She saw part of the attack when she turned around. One-to-one supervision is not a required standard in nursing homes. The quantity or quality of supervision that is required for a resident is ultimately based upon nursing judgment. However, as noted above, the situation with Resident 26 at 7:00 p.m. was not an emergency or imminently threatening situation, and the nursing staff’s decision to place him in the dayroom under the observation of a nursing assistant was reasonable under the circumstances. Even one-to-one supervision would not necessarily have prevented the incident as it occurred in a brief moment when the observer’s back was turned. AHCA’s survey report charged that Destin should have notified Resident 26’s physician or psychiatrist about his behaviors earlier in the day. AHCA’s surveyor offered no testimony to support this charge, nor was any explanation offered to indicate how a failure to notify a physician falls under the umbrella of a regulation requiring a facility to adequately supervise residents. Nonetheless, Destin demonstrated that there was no need to contact the physician prior to the incident because the facility successfully calmed the Resident at supper. Moreover, after the incident, the doctor was notified but took no immediate action. Based upon the foregoing, AHCA did not demonstrate that Destin failed to adequately supervise Resident 26. Though unfortunate, the incident and ensuing injury to one of Destin’s residents occurred in spite of good care, not because of inadequate care. Tag F327 incorporates the standard of 42 CFR Section 483.25(j), and provides that a facility “must provide each resident with sufficient fluid intake to maintain proper hydration and health.” AHCA charged that Destin failed to provide sufficient fluids to Resident 16 in December of 2002 and, as a consequence of that failure, Resident 16 developed a urinary tract infection because she was dehydrated. Resident 16 was admitted to Destin in June of 1996. She required a feeding tube, and had a history of pressure sores. She was incontinent and had a catheter which, when changed, would frequently cause her to develop urinary tract infections. In April of 2003, the facility dietitian assessed the Resident as needing 1560-1820 ccs of fluid per day. However, in November, the dietitian decreased the Resident’s tube feeding from five cans per day to four cans per day, which resulted in a lowering of the fluid offered to her from that source to 1264 ccs per day. However, even though not reflected in the dietitian’s fluid calculations for the Resident, the Resident received water flushes each time her medications were administered through her feeding tube. When these additional flushes are added to the daily fluid she received from other sources, the Resident’s total daily fluid intake in December of 2002 was 1587, not 1262 ccs per day, and was within her assessed fluid range. The noted explanation on the dietary assessment for the change in tube feeding was that the resident had recently experienced a large and quick weight gain. AHCA’s surveyor did not dispute the dietitian’s stated justification for reducing the tube feeding amount in November. She also was not aware of the amount the flushes added to the Resident’s fluid intake or that the Resident had chronic urinary tract infections. Subsequently, the Resident developed a urinary tract infection which can be, but is not necessarily, a sign of dehydration. AHCA’s surveyor, who is not a registered dietitian or a doctor, opined that the Resident was dehydrated and that her dehydration was possibly caused by the decision to reduce her tube feeding amounts in November. She cited the facility for a Class II deficiency because she believed that the facility caused actual harm to the Resident through its noncompliance with the requirements of this Tag. However on December 5, 2002, prior to the survey the dietitian re-assessed the Resident and noted that her pressure sores were healing and that there were no signs of dehydration. Additionally, at that same time, the Resident had two catheter changes. Given these facts, AHCA failed to prove that Resident 16 was not provided with sufficient fluids to maintain proper hydration. Additionally, AHCA failed to establish that any decision made by the dietitian to reduce the tube feeding caused the Resident to experience a urinary tract infection or any other sign of dehydration that would support the Class II rating assigned to the deficiency. Tag F329 incorporates the standard of 42 CFR Section 483.25(l)(1), which provides that “each resident’s drug regimen must be free from unnecessary drugs.” It further provides in relevant part that an “unnecessary drug” is, among other things, a drug “used . . . without adequate monitoring.” AHCA charged that Destin violated this Tag because it did not conduct ordered PT/INR tests on Residents 2 and 18 while they were taking Coumadin. Coumadin is a blood thinner often prescribed for persons who are at risk of suffering a stroke. Excess Coumadin can cause a person’s blood to become so thin it will not clot. This condition is known as Coumadin toxicity and can place the individual at risk for excessive bleeding. Residents on Coumadin typically have an order for a test commonly called a PT/INR, which measures the clotting time of their blood. For Residents whose Coumadin dosages are low or whose past PT/INR levels have been normal, the standard frequency for PT/INR tests is once a month. For others, more frequent testing may be required by their physicians. A resident’s risk for excessive bleeding is also monitored by nursing staff through observations. A resident whose Coumadin Levels are excessive and causing the resident to bleed will show that condition by bleeding from the gums, passing blood in urine or by showing bruises. Destin did not dispute, that Resident 18 had a physician’s order for weekly PT/INR tests beginning in September of 2002, and that the facility did not follow it because it only conducted those tests monthly. However, Resident 18 did not have any abnormal test results and manifested no signs of excessive bleeding. Destin contacted the Resident’s physician after the survey and he discontinued the order and replaced it with an order to conduct the tests monthly. Unquestionably, it is a good idea for a facility to obey doctors' orders. The issue here is the level of the risk of harm associated with this violation. Given these facts, the risk for failing to do the ordered tests was at best, potential only. AHCA’s surveyor acknowledged that she did not charge and had no evidence to support that Resident 18 experienced any harm or negative outcome as a consequence of Destin’s failure to conduct the ordered weekly tests. She further conceded that the charges relating to Resident 18 only evidenced a Class III deficiency, not a Class II deficiency. The Class II rating was assigned solely because of AHCA’s charged deficiency with Resident 2. Resident 2 was admitted to Destin on August 20, 2002, from the hospital. During the Summer of 2002, Resident 2 experienced three strokes. He received treatment at the hospital after the strokes in June and July. The treatment included Coumadin. He was discharged home. In early August he experienced another stroke which required hospitalization. However, he was unable to return home after that stroke and was admitted to Destin. While in the hospital in August, Resident 2 received Coumadin and had PT/INR tests done that indicated that his Levels were stable. He was admitted to Destin with orders from the hospital physician for a relatively low dosage of Coumadin and for a PT/INR lab to be done on August 27, 2002. Destin did not draw the ordered PT/INR on August 27. The Resident showed no outward signs that he was bleeding as a consequence of taking Coumadin. However, on September 18, Resident 2 passed out and fell at the facility. He had to be transported to the hospital. While in the hospital, a PT/INR test was done and the results exceeded normal Coumadin levels. The hospital assigned a preliminary diagnosis of Coumadin toxicity. AHCA’s surveyor concluded that the facility failed to properly monitor the Resident’s Coumadin Levels when it failed to take the PT/INR lab that was ordered by the emergency room physician. Though she is not a physician, she further opined that the Resident became Coumadin toxic as evidenced by his September hospital PT/INR results, and that his fall was related to excessive internal bleeding. She charged that the facility could and should have been aware of his perilous state and prevented it if it had taken the ordered PT/INR test. She further opined that a Class II rating for this deficiency was appropriate because the Resident was Coumadin toxic and sustained a subdural hematoma as a consequence of his fall in the facility. When Resident 2 was discharged from the hospital and admitted to Destin, the Resident’s care was transferred to Dr. Lorenz. Dr. Lorenz issued orders for Coumadin testing every month. Dr. Lorenz testified that he issued his order for monthly testing because it is the standard for individuals who have been on Coumadin for quite some time, whose dosages of Coumadin are relatively low, and whose Coumadin Levels have been stabilized. Because Resident 2 fit those criteria, Dr. Lorenz concluded that monthly testing was all that was required for Resident 2. He further opined that his order was the controlling order for the frequency of testing for Resident 2, and that the facility was not required to follow the hospital physician’s order for testing on August 27. Facility staff did not note in Resident 2’s chart that the hospital physician’s order for the PT/INR test had been discontinued, and the surveyor assumed that it was still effective when she did her file review. Notably, she did not speak to Dr. Lorenz about the intended meaning of his order. Under Dr. Lorenz’ order for monthly testing, no PT/INR test would have been required for Resident 2 until September 20, 2002, after Resident 2 fell and was admitted to the hospital. Accordingly, the evidence failed to support AHCA’s basic charge that Destin was required to monitor Resident 2’s use of Coumadin through a PT/INR test on August 27, or that any test was required for Resident 2 prior to his admission to the hospital in September. Dr. Lorenz was also Resident 2’s treating physician at the hospital in September and testified that there was no evidence in his observations or in the medical record that the Resident experienced a subdural hematoma or was Coumadan toxic. He opined that the Resident’s fall was caused by a number of compromising conditions that the Resident had, including an elevated white cell count, bacteria in his urine, elevated and potentially lethal potassium Levels and metabolic acidosis. None of these conditions were related to the Resident's Coumadin Levels. Dr. Lorenz testified that Coumadin toxicity is not, of itself, actual harm to a resident but is instead a situation that indicates that a resident might be at risk for excessive bleeding. The actual harm, according to Dr. Lorenz, would be excessive loss of blood, which Resident 2 did not experience. AHCA thus failed to demonstrate that Resident 2’s Coumadin Levels were not adequately monitored by Destin or that Resident 2 sustained any negative outcome as a consequence of any failure to take a August 27 PT/INR test. Because the only remaining deficiency identified was that related to Resident 18, and because AHCA acknowledged that the deficient practice with regard to Resident 18 was, at most, a Class III deficiency, AHCA failed to demonstrate that any deficiency under Tag F329 was a Class II deficiency. Finally, any deficiencies for which Respondent was cited was during the January survey was timely corrected by February 15, 2003.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Administrative Complaint be dismissed and Respondent’s license be reinstated as a standard license. DONE AND ENTERED this 2nd day of March, 2004, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March, 2004. COPIES FURNISHED: Michael O. Mathis, Esquire Agency for Health Care Administration Fort Knox Building III, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308 Donna Holshouser Stinson, Esquire Broad and Cassel 215 South Monroe Street, Suite 400 Post Office Drawer 11300 Tallahassee, Florida 32302-1300 R. Davis Thomas, Jr. Qualified Representative Broad and Cassel 215 South Monroe Street, Suite 400 Post Office Box 11300 Tallahassee, Florida 32302 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration Fort Knox Building, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308
The Issue The issue for determination is whether the Agency for Health Care Administration found deficiencies at Wellington Specialty Care and Rehab Center sufficient to support the change in its licensure status to a conditional rating.
Findings Of Fact Wellington is a nursing home located in Tampa, Florida, licensed by and subject to regulation by the Agency pursuant to Chapter 400, Florida Statutes. The Agency is the licensing agency in the State of Florida responsible for regulating nursing facilities under Part II of Chapter 400, Florida Statutes. On September 10, 1998, the Agency conducted a complaint investigation at Wellington in a matter unrelated to the issues that are the subject of this proceeding. On that same date, the Agency also conducted an appraisal survey that focused on six areas of care for which Wellington had been cited as deficient in past surveys. After the investigation and survey were completed, the Agency determined that there was no basis for the complaint, and further determined that Wellington was not deficient in any of the six areas of care which were the subject of the appraisal survey. Notwithstanding its findings that the complaint against Wellington was unfounded and that there were no deficiencies in the targeted areas of care being reviewed, the Agency determined that Wellington was deficient in an area not initially the subject of the September 1998 survey. Specifically, the Agency found that Wellington had failed to provide adequate supervision and assistance devices to two residents at the facility in violation of the regulatory standard contained in 42 C.F.R. s. 483.25(h)(2). Based on its findings and conclusions, the Agency issued a survey report in which this deficiency was identified and described under a "Tag F324." The basis for the Agency’s findings were related to observations and investigations of two residents at the facility, Resident 6 and Resident 8. During the September 1998 survey and complaint investigation, the surveyors observed that Resident 6 had a bruise on her forehead and that Resident 8 had bruises on the backs of both of her hands. Resident 6 suffered a stroke in May 1998 and had left-side neglect, a condition that caused her to be unaware of her left side and placed her at risk for falls. Moreover, Resident 6's ability to recall events was impaired. The Agency's investigation revealed that Resident 6 sustained the bruise on her forehead when she fell from the toilet on August 31, 1998. The Agency determined that Resident 6 fell because she was left alone by the staff of the facility and further concluded that Wellington was responsible for causing this fall. The Agency believed that given Resident 6's left-side neglect, the facility staff should have known not to leave the resident unattended during her trips to the toilet. The Agency suggested that Wellington should have provided constant supervision to Resident 6, although it acknowledged that such supervision may have created privacy violations. In making its determination and reaching its conclusions, the Agency relied exclusively on an interview with Resident 6, notwithstanding the fact that her ability to recall events was impaired. Since Resident 6 was admitted to the facility in May 1998, Wellington appropriately and adequately addressed her susceptibility to falls, including falls from her toilet. After Resident 6 was initially admitted to the facility in May 1998, she received occupational therapy to improve her balance. In late June 1998, following several weeks of occupational therapy, Wellington’s occupational therapist evaluated Resident 6’s ability to sit and to control the balance in the trunk of her body and determined that the resident was capable of sitting upright without support for up to 40 minutes. Based upon that assessment, Resident 6 was discharged from occupational therapy on June 25, 1998, and her caregivers were provided with instructions on how to maintain her balance. At the time Resident 6 was discharged from occupational therapy, a care plan was devised for her which provided that the facility staff would give her assistance in all of her activities of daily living, but would only provide stand-by assistance to Resident 6 while she was on the toilet, if such assistance was requested. In light of the occupational therapist's June 1998 assessment of Resident 6, this care plan was adequate to address her risk for falls, including her risk for falls while on the toilet. Wellington also provided Resident 6 with appropriate assistance devices. In Resident 6's bathroom, Wellington provided her with a right-side handrail and an armrest by her toilet to use for support and balance, and also gave her a call light to alert staff if she felt unsteady. These measures were effective as demonstrated by the absence of any falls from the toilet by Resident 6 over the course of June, July, and August 1998. The Agency's surveyor who reviewed Resident 6’s medical records was not aware of and did not consider the June 1998 Occupational Therapy Assessment of Resident 6 before citing the facility for the deficiency. Resident 8 was admitted to Wellington in February 1998 with a history of bruising and existing bruises on her body. At all times relevant to this proceeding, Resident 8 was taking Ticlid, a medication which could cause bruising and also had osteopenia, a degenerative bone condition that could increase Resident 8's risk for bruising, making it possible for her to bruise herself with only a slight bump. After observing the bruising on the backs of both of Resident 8's hands during the September 1998 survey, the Agency asked facility staff about the bruising and also reviewed the resident’s medical records. Based on her interviews and record review, the Agency surveyor found that these bruises had not been ignored by Wellington. Rather, the Agency found that when facility staff initially observed these bruises on Resident 8's hands, (1) staff had immediately notified Resident 8's physician of the bruises; and (2) the physician then ordered an X-ray of Resident 8 to determine whether there was a fracture. The X-ray determined that there was not a fracture but that there was evidence of a bone loss or osteopenia, which indicated that Resident 8 had an underlying structural problem which could increase the resident's risk for bruising. The Agency surveyor found nothing in Resident 8's medical record to indicate that the facility had investigated the bruising on the resident’s hands, identified the cause of the bruising, or identified any means to prevent the bruising from reoccurring. Based on the absence of this information in Resident 8's records, the Agency cited the facility for a deficiency under "Tag F324." The Agency's surveyor made no determination and reached no conclusion as to the cause of the bruising. However, she considered that the bruising on Resident 8 may have been caused by the underlying structural damage, medication, or external forces. With regard to external forces, the surveyor speculated that the bruising may have occurred when Resident 8 bumped her hands against objects such as her chair or bed siderails. During the September 1998 survey, when the Agency surveyor expressed her concerns about the cause of the bruising on Resident 8's hands, Wellington’s Director of Nursing suggested to the surveyor that the bruising could have been the result of the use of improper transfer techniques by either Resident 8’s family or the facility staff, or Resident 8’s medications. Despite the surveyor's speculation and suggestions by the facility's Director of Nursing, the Agency surveyor saw nothing that would indicate how the bruising occurred. In fact, the Agency surveyor's observation of a staff member transferring Resident 8 indicated that the staff member was using a proper transfer technique that would not cause bruising to the resident’s hands. The Agency surveyor made no other observations and conducted no investigation of the potential causes of the bruising on Resident 8's hands. During the September 1998 survey, after the Agency surveyor inquired as to the cause of the bruises on Resident 8's hands, the facility conducted an investigation to try to identify the potential causes for the bruising. The investigation was conducted by the facility’s Care Plan Coordinator, a licensed practical nurse who was also the Unit Manager for the unit on which Resident 8 was located. Included in the Care Plan Coordinator's investigation was a thorough examination of the potential causes suggested by the Agency's surveyor. The Agency surveyor’s speculation that the bruising was caused when Resident 8 hit her hands against her chair or bed siderails was ruled out as a cause for the bruises because Resident 8 was unable to move around in her bed or chair. More importantly, there were no bedrails on Resident 8's bed and her chair was a heavily padded recliner. Also, as a part of her investigation, the Care Plan Coordinator observed the transfer techniques employed by both Resident 8's family members and facility staff. During these observations, she did not see any indication that the techniques used were improper or would otherwise cause Resident 8 to bruise her hands. Based upon her thorough investigation, the Case Plan Coordinator determined that there were no identifiable causes of the bruising and, thus, there were no care plan interventions that the facility could have implemented then or in September 1998 to prevent the bruising suffered by Resident 8. Instead, the Care Plan Coordinator reasonably concluded that the bruising was most likely an unavoidable result of Resident 8's medications and her osteopenia. The Agency is required to rate the severity of any deficiency identified during a survey with two types of ratings. One of these is "scope and severity" rating which is defined by federal law, and the other rating is a state classification rating which is defined by state law and rules promulgated thereunder. As a result of the September 1998 survey, the Agency assigned the Tag F324 deficiency a scope and severity rating of "G" which, under federal regulations, is a determination that the deficient practice was isolated. The Tag F324 deficiency was also given a state classification rating of "II" which, under the Agency’s rule, is a determination that the deficiency presented "an immediate threat to the health, safety or security of the residents." Because the Agency determined that there was a Class II deficiency at Wellington after the September 1998 survey, it changed Wellington’s Standard licensure rating to Conditional, effective September 10, 1998. At the completion of the September 1998 survey, the Agency assigned the Class II rating to the deficiency although the surveyors failed to determine and did not believe that there was an immediate threat of accidents to other residents at Wellington. In fact, at the time of the September 1998 survey, the number of falls at Wellington had declined since the last survey. The Agency returned to Wellington on November 6, 1998, to determine if the facility had corrected the Tag F324 deficiency cited in the September 1998 survey report. After completing that survey, the Agency determined that the deficiency had been corrected and issued Wellington a Standard License effective November 6, 1998.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that the Agency for Health Care Administration enter a final order issuing a Standard rating to Wellington and rescinding the Conditional rating. DONE AND ENTERED this 17th day of May, 1999, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of May, 1999. COPIES FURNISHED: R. Davis Thomas, Jr., Esquire Qualified Representative Broad and Cassel 215 South Monroe, Suite 400 Post Office Drawer 11300 Tallahassee, Florida 32302 Thomas Caufman, Esquire Agency for Health Care Administration 6800 North Dale Mabry Highway Suite 200 Tampa, Florida 33614 Sam Power, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308 Paul J. Martin, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308
The Issue Whether, based upon a preponderance of the evidence, the Agency for Health Care Administration (AHCA) lawfully assigned conditional licensure status to Harbour Health Center for the period June 17, 2004, to June 29, 2004; whether, based upon clear and convincing evidence, Harbour Health Center violated 42 Code of Federal Regulations (C.F.R.) Section 483.25, as alleged by AHCA; and, if so, the amount of any fine based upon the determination of the scope and severity of the violation, as required by Subsection 400.23(8), Florida Statutes (2004).
Findings Of Fact Based upon stipulations, deposition, oral and documentary evidence presented at the final hearing, and the entire record of the proceeding, the following relevant findings of fact are made: At all times material hereto, AHCA was the state agency charged with licensing of nursing homes in Florida under Subsection 400.021(2), Florida Statutes (2004), and the assignment of a licensure status pursuant to Subsection 400.23(7), Florida Statutes (2004). AHCA is charged with the responsibility of evaluating nursing home facilities to determine their degree of compliance with established rules as a basis for making the required licensure assignment. Additionally, AHCA is responsible for conducting federally mandated surveys of those long-term care facilities receiving Medicare and Medicaid funds for compliance with federal statutory and rule requirements. These federal requirements are made applicable to Florida nursing home facilities pursuant to Florida Administrative Code Rule 59A-4.1288, which states that "[n]ursing homes that participate in Title XVIII or XIX must follow certification rules and regulations found in 42 C.F.R. §483, Requirements for Long Term Care Facilities, September 26, 1991, which is incorporated by reference." The facility is a licensed nursing facility located in Port Charlotte, Charlotte County, Florida. Pursuant to Subsection 400.23(8), Florida Statutes (2004), AHCA must classify deficiencies according to the nature and scope of the deficiency when the criteria established under Subsection 400.23(2), Florida Statutes (2004), are not met. The classification of any deficiencies discovered is, also, determinative of whether the licensure status of a nursing home is "standard" or "conditional" and the amount of administrative fine that may be imposed, if any. Surveyors note their findings on a standard prescribed Center for Medicare and Medicaid Services (CMS) Form 2567, titled "Statement Deficiencies and Plan of Correction" and which is commonly referred to as a "2567" form. During the survey of a facility, if violations of regulations are found, the violations are noted and referred to as "Tags." A "Tag" identifies the applicable regulatory standard that the surveyors believe has been violated, provides a summary of the violation, sets forth specific factual allegations that they believe support the violation, and indicates the federal scope and severity of the noncompliance. To assist in identifying and interpreting deficient practices, surveyors use Guides for Information Analysis Deficiency Determination/Categorization Maps and Matrices. On, or about, June 14 through 17, 2004, AHCA conducted an annual recertification survey of the facility. As to federal compliance requirements, AHCA alleged, as a result of this survey, that the facility was not in compliance with 42 C.F.R. Section 483.25 (Tag F309) for failing to provide necessary care and services for three of 21 sampled residents to attain or maintain their respective highest practicable physical, mental, and psychosocial well-being. As to the state requirements of Subsections 400.23(7) and (8), Florida Statutes (2004), and by operation of Florida Administrative Code Rule 59A-4.1288, AHCA determined that the facility had failed to comply with state requirements and, under the Florida classification system, classified the Federal Tag F309 non-compliance as a state Class II deficiency. Should the facility be found to have committed any of the alleged deficient practices, the period of the conditional licensure status would extend from June 17, 2004, to June 29, 2004. Resident 8 Resident 8's attending physician ordered a protective device to protect the uninjured left ankle and lower leg from injury caused by abrasive contact with the casted right ankle and leg. Resident 8 repeatedly kicked off the protective device, leaving her uninjured ankle and leg exposed. A 2.5 cm abrasion was noted on the unprotected ankle. The surveyors noted finding the protective device in Resident 8's bed but removed from her ankle and leg. Resident 8 was an active patient and had unsupervised visits with her husband who resided in the same facility but who did not suffer from dementia. No direct evidence was received on the cause of the abrasion noted on Resident 8's ankle. Given Resident 8's demonstrated propensity to kick off the protective device, the facility should have utilized a method of affixing the protective device, which would have defeated Resident 8's inclination to remove it. The facility's failure to ensure that Resident 8 could not remove a protective device hardly rises to the level of a failure to maintain a standard of care which compromises the resident's ability to maintain or reach her highest practicable physical, mental or psychosocial well-being. The failure to ensure that the protective device could not be removed would result in no more than minimal discomfort. Resident 10 Resident 10 has terminal diagnoses which include end- stage coronary artery disease and progressive dementia and receives hospice services from a local Hospice and its staff. In the Hospice nurse's notes for Resident 10, on her weekly visit, on May 17, 2004, was the observation that the right eye has drainage consistent with a cold. On May 26, 2004, the same Hospice nurse saw Resident 10 and noted that the cold was gone. No eye drainage was noted. No eye drainage was noted between that date and June 2, 2004. On June 3, 2004, eye drainage was noted and, on June 4, 2004, a culture of the drainage was ordered. On June 7, 2004, the lab report was received and showed that Resident 10 had a bacterial eye infection with Methicillin Resistant Staphylococcus Aureus (MRSA) bacteria. On June 8, 2004, the attending physician, Dr. Brinson, referred the matter to a physician specializing in infectious disease, and Resident 10 was placed in contact isolation. The infectious disease specialist to whom Resident 10 was initially referred was not available, and, as a result, no treatment was undertaken until a second specialist prescribed Bactrim on June 14, 2004. From June 8, 2004, until June 14, 2004, Resident 10 did not demonstrate any outward manifestations of the diagnosed eye infection. A June 9, 2004, quarterly pain assessment failed to note any discomfort, eye drainage or discoloration. In addition to noting that neither infectious control specialist had seen Resident 10, the nurses notes for this period note an absence of symptoms of eye infection. Colonized MRSA is not uncommon in nursing homes. A significant percentage of nursing home employees test positive for MRSA. The lab results for Resident 10 noted "NO WBC'S SEEN," indicating that the infection was colonized or inactive. By placing Resident 10 in contact isolation on June 8, 2004, risk of the spread of the infection was reduced, in fact, no other reports of eye infection were noted during the relevant period. According to Dr. Brinson, Resident 10's attending physician, not treating Resident 10 for MRSA would have been appropriate. The infectious disease specialist, however, treated her with a bacterial static antibiotic. That is, an antibiotic which inhibits further growth, not a bactericide, which actively destroys bacteria. Had this been an active infectious process, a more aggressive treatment regimen would have been appropriate. Ann Sarantos, who testified as an expert witness in nursing, opined that there was a lack of communication and treatment coordination between the facility and Hospice and that the delay in treatment of Resident 10's MRSA presented an unacceptable risk to Resident 10 and the entire resident population. Hospice's Lynn Ann Lima, a registered nurse, testified with specificity as to the level of communication and treatment coordination between the facility and Hospice. She indicated a high level of communication and treatment coordination. Dr. Brinson, who, in addition to being Resident 10's attending physician, was the facility's medical director, opined that Resident 10 was treated appropriately. He pointed out that Resident 10 was a terminally-ill patient, not in acute pain or distress, and that no harm was done to her. The testimony of Hospice Nurse Lima and Dr. Brinson is more credible. Resident 16 Resident 16 was readmitted from the hospital to the facility on May 24, 2004, with a terminal diagnosis of chronic obstructive pulmonary disease and was receiving Hospice care. Roxanol, a morphine pain medication, had been prescribed for Resident 16 for pain on a pro re nata (p.r.n.), or as necessary, basis, based on the judgment of the registered nurse or attending physician. Roxanol was given to Resident 16 in May and on June 1 and 2, 2004. The observations of the surveyor took place on June 17, 2004. On June 17, 2004, at 9:30 a.m., Resident 16 underwent wound care treatment which required the removal of her sweater, transfer from sitting upright in a chair to the bed, and being placed on the left side for treatment. During the transfer and sweater removal, Resident 16 made noises which were variously described as "oohs and aahs" or "ows," depending on the particular witness. The noises were described as typical noises for Resident 16 or evidences of pain, depending on the observer. Nursing staff familiar with Resident 16 described that she would demonstrate pain by fidgeting with a blanket or stuffed animal, or that a tear would come to her eye, and that she would not necessarily have cried out. According to facility employees, Resident 16 did not demonstrate any of her typical behaviors indicating pain on this occasion, and she had never required pain medication for the wound cleansing procedure before. An order for pain medication available "p.r.n.," requires a formalized pain assessment by a registered nurse prior to administration. While pain assessments had been done on previous occasions, no formal pain assessment was done during the wound cleansing procedure. A pain assessment was to be performed in the late afternoon of the same day; however, Resident 16 was sleeping comfortably. The testimony on whether or not inquiry was made during the wound cleansing treatment as to whether Resident 16 was "in pain," "okay," or "comfortable," differs. Resident 16 did not receive any pain medication of any sort during the period of time she was observed by the surveyor. AHCA determined that Resident 16 had not received the requisite pain management, and, as a result, Resident 16’s pain went untreated, resulting in harm characterized as a State Class II deficiency. AHCA's determination is not supported by a preponderance of the evidence. In the context that the surveyor considered what she interpreted as Resident 16's apparent pain, deference should have been given to the caregivers who regularly administered to Resident 16 and were familiar with her observable indications of pain. Their interpretation of Resident 16's conduct and their explanation for not undertaking a formal pain assessment are logical and are credible.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding: The facility's failure to secure the protective device to Resident 8's lower leg is not a Class II deficiency, but a Class III deficiency. The facility's care and treatment of Residents 10 and 16 did not fall below the requisite standard. The imposition of a conditional license for the period of June 17 to June 29, 2004, is unwarranted. The facility should have its standard licensure status restored for this period. No administrative fine should be levied. DONE AND ENTERED this 3rd day of June, 2005, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of June, 2005. COPIES FURNISHED: Karen L. Goldsmith, Esquire Goldsmith, Grout & Lewis, P.A. 2180 North Park Avenue, Suite 100 Post Office Box 2011 Winter Park, Florida 32790-2011 Eric Bredemeyer, Esquire Agency for Health Care Administration 2295 Victoria Avenue, Room 346C Fort Myers, Florida 33901 Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308 William Roberts, Acting General Counsel Agency for Health Care Administration Fort Knox Building, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308
