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 DOAH Case No. 01-3072: Whether Respondent's licensure status should be reduced from standard to conditional. DOAH Case No. 01-3616: Whether Respondent committed the violations alleged in the Administrative Complaint dated August 23, 2001, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: AHCA is the state Agency responsible for licensure and regulation of nursing homes operating in the State of Florida. Chapter 400, Part II, Florida Statutes. Jacaranda Manor operates a 299-bed licensed nursing home at 4250 66th Street, North, St. Petersburg, Florida. The facility has a staff of approximately 225 persons, including 15 registered nurses ("RNs"), 25 licensed practical nurses ("LPNs"), and 100-125 certified nursing assistants ("CNAs"). Contract nurses also work at the facility on a daily basis. Jacaranda Manor accepts residents from throughout the United States. It is known as a facility that accepts residents with psychiatric or behavioral idiosyncrasies that other nursing homes might be unwilling to handle. Jacaranda Manor residents are admitted from state mental hospitals, the psychiatric units of general hospitals, assisted living facilities, group homes, and other nursing homes. Jacaranda Manor also accepts admissions from the Pinellas County Jail, mostly homeless persons whose mental condition makes them inappropriate for a jail setting. While all of Jacaranda Manor's residents have a primary diagnosis relating to a need for nursing home care, almost 90 percent of its residents have a specific mental illness as a secondary diagnosis. All of the residents cited in the AHCA survey deficiencies suffered from mental disorders. One hundred percent of Jacaranda Manor's residents receive services related to mental illness or retardation, compared to a statewide average of 2.6 percent. Jacaranda Manor's population includes residents with Alzheimer's disease, schizophrenia, dementia, multiple sclerosis, cerebral palsy, muscular dystrophy, Huntington's chorea, spinal cord injuries and closed head injuries. Over 97 percent of Jacaranda Manor's residents are expected never to be discharged. More than 40 of Jacaranda Manor's residents have lived there for at least 25 years. Statewide, 59.2 percent of nursing home residents are never expected to be discharged. Two-thirds of Jacaranda Manor's residents are male, as opposed to a statewide average of 31.3 percent. Thirty- five percent of Jacaranda Manor's population is under age 50. Ninety-one percent of Jacaranda Manor's residents are Medicaid recipients, as opposed to a statewide average of 64 percent. Jacaranda Manor also operates the HCR Training Center, a licensed vocational school for CNAs, located across the street from the main nursing home. The center provides free training for prospective CNAs, and Jacaranda Manor employs the trainees and graduates. The course of study lasts six weeks, and each class usually has 20-25 students. The school day consists of four hours of classes followed by paid on-the-job training at Jacaranda Manor. Students generally work 30 hours per week at Jacaranda Manor. As part of its effort to create a home-like atmosphere for residents, Jacaranda Manor does not require staff to wear uniforms. The facility has no particular dress code for employees, aside from a requirement that they wear safe, protective shoes. Some of the administrative personnel wear name tags, but are otherwise indistinguishable from other employees. Thus, an outside observer could not be certain, without further inquiry, whether the "staff person" she sees in the facility is a nurse, a CNA, a CNA trainee, or a maintenance worker. The standard form used by AHCA to document survey findings, titled "Statement of Deficiencies and Plan of Correction," is commonly referred to as a "2567" form. The individual deficiencies are noted on the form by way of identifying numbers commonly called "Tags." A Tag identifies the applicable regulatory standard that the surveyors believe has been violated and provides a summary of the violation, specific factual allegations that the surveyors believe support the violation, and two ratings which indicate the severity of the deficiency. One of the ratings identified in a Tag is a "scope and severity" rating, which is a letter rating from A to L with A representing the least severe deficiency and L representing the most severe. The second rating is a "class" rating, which is a numerical rating of I, II, or III, with I representing the most severe deficiency and III representing the least severe deficiency. On April 3 through 6, 2001, AHCA conducted a licensure and certification survey of Jacaranda Manor, to evaluate the facility's compliance with state and federal regulations governing the operation of nursing homes. The survey noted one deficiency related to difficulty in opening two exit doors at the facility, but noted no deficiencies as to resident care. AHCA found Jacaranda Manor to be in substantial compliance with 42 C.F.R., Part 483, Requirements for Long Term Care Facilities. Pursuant to the mandate of the federal Centers for Medicare and Medicaid Services ("CMS") (formerly the Health Care Financing Administration, or "HCFA"), AHCA maintains a "survey integrity and support branch," also known as the "validation team." To ensure the quality and consistency of its survey process, AHCA sends the validation team to re- survey facilities that have received deficiency-free initial surveys. Because its April 2001 survey revealed no deficiencies related to resident care, Jacaranda Manor was considered deficiency-free. On May 8 through 11, 2001, AHCA's validation team conducted a second survey at Jacaranda Manor. The validation team alleged a total of thirteen deficiencies during the May 2001 survey. At issue in these proceedings were deficiencies identified as Tag F241 (violation of 42 C.F.R. Section 483.15(a), relating to resident dignity); Tag F250 (violation of 42 C.F.R. Section 483.15(g), relating to social services); and Tag F272 (violation of 42 C.F.R. Section 483.20(b)(1), relating to resident assessment). All of the deficiencies alleged in the May 2001 survey were classified as Class III under the Florida classification system for nursing homes. At the time of the survey, Class III deficiencies were defined as those having "an indirect or potential relationship to the health, safety, or security of the nursing home facility residents, other than Class I or Class II deficiencies." Section 400.23(8)(c), Florida Statutes (2001). Jacaranda Manor disputed the deficiencies alleged in the May 2001 survey and elected to go through the federally authorized Informal Dispute Resolution ("IDR") process. See 42 C.F.R. Section 488.331. The IDR process allows the facility to present information to an AHCA panel, which may recommend that the deficiencies alleged in the survey be deleted, sustained, or modified. Under AHCA's application of the process, the three-member AHCA panel considers the facility's information and then makes a recommendation to Susan Acker, the director of AHCA's health standards and quality unit, who makes the final decision. The IDR meeting was held via teleconference on June 11, 2001. The IDR resulted in AHCA's upholding all the deficiencies alleged in the May 2001 survey. AHCA modified the state level classification of Tag F241 from Class III to Class II. At the time of the survey, Class II deficiencies were defined as "those which the Agency determines have a direct or immediate relationship to the health, safety, or security of the nursing home facility residents, other than class I deficiencies." Section 400.23(8)(b), Florida Statutes (2000). This change in classification was recommended by the IDR panel and approved by Ms. Acker. The IDR meeting also resulted in AHCA's changing Tag F272 to Tag F309 (violation of 42 C.F.R. Section 483.25, relating to quality of care) and to classify the alleged Tag F309 deficiency as Class II. This change was made by Ms. Acker alone. The IDR panel recommended upholding the original Class III, Tag F272 findings, but increasing the federal scope and severity rating from D (no actual harm but with potential for more than minimal harm) to G (actual harm that is not immediate jeopardy). Ms. Acker overruled that recommendation and imposed the change to Tag F309. Based on the increased severity of the alleged deficiencies in Tags F241 and F309, from Class III to Class II, AHCA imposed a conditional license on Jacaranda Manor, effective May 15, 2001. The license expiration date was February 28, 2002. On June 19 and 20, 2001, AHCA conducted a follow-up survey of Jacaranda Manor to determine whether the deficiencies alleged in the May 2001 survey had been corrected. The survey team determined that Tags F241 and F250 were uncorrected Class III deficiencies. This determination resulted in the filing of an Administrative Complaint seeking imposition of a $2,000 civil penalty. May 2001 Survey A. Tag F241 The May 2001 validation survey allegedly found violations of 42 C.F.R. Section 483.15(a), which states that a facility must "promote care for residents in a manner and in an environment that maintains or enhances each resident's dignity and respect in full recognition of his or her individuality." In the parlance of the federal Health Care Financing Administration Form 2567 employed by AHCA to report its findings, this requirement is referenced as "Tag F241." Tag F241 is commonly referred to as the "quality of life" or "dignity" tag. For purposes of the Form 2567, the validation team gave the alleged deficiencies on the May 2001 survey a federal scope and severity rating of E for Tag F241. A rating of E indicates that there is a pattern of deficiencies causing no actual harm to the residents but with potential to cause more than minimal harm. After the IDR process, the federal scope and severity rating for Tag F241 was increased to H, meaning that there is a pattern of deficiencies causing actual harm that is less than immediate jeopardy to the health or safety of the residents. The increase of the federal scope and severity rating from E to H corresponded to the increase of the state level classification from Class III to Class II. The Form 2567 for the May 2001 survey listed nine separate incidents under Tag F241, the dignity tag. The first surveyor observation involved Resident 31, or "R-31": On 5/11/01 at 8:30 a.m., R-31 was observed in a 4 bed room, sitting on his/her bed eating breakfast. The resident had no clothes on, had a colostomy bag and foley catheter visible to anyone walking by in the hallway. A staff member went into the room to another resident but did not cover R-31. A second staff member came to the doorway of the room to talk to the first staff member and also did not attempt to cover the resident. Marsha Lisk was the AHCA team coordinator for the May 2001 survey and was the team member who recorded the observation of R-31. Ms. Lisk stated that this was a random observation, made without benefit of reviewing R-31's records. Ms. Lisk could not identify the two staff members who failed to cover R-31, aside from a recollection that one of them was a CNA. She was "astounded" that the staff persons did not intervene to cover the naked resident, especially because they could see that Ms. Lisk was standing in the doorway taking notes. Ms. Lisk would have thought nothing more of the incident had the staff members done anything to obscure the view of the resident from the hallway. Ms. Lisk admitted that R-31 appeared to be in no distress, and that no other resident complained about his nudity. Twenty minutes after this observation, Ms. Lisk saw R-31 fully clothed and being pushed in a wheelchair down the hall. Ms. Lisk noted this incident as a deficiency because she believed nudity cannot be considered to meet community standards under any circumstances. Even if the resident consciously preferred nudity, or was so mentally incapacitated as to be unaware he was nude, it was staff's responsibility to cover the resident, pull a curtain around him, or move his bed to a place where it could not be seen from the hall. At the hearing, it was established that R-31 was a 59-year-old male with multiple medical and psychiatric diagnoses, including schizophrenia and dementia due to organic brain syndrome. He preferred to sleep in the nude and to dress himself, though he required some assistance to do so properly. He was able to close his own privacy curtain. R-31 was very resistant when staff approached to dress him, to the point of physically lashing out. R-31 would refuse to eat if he was pushed to clothe himself near meal time. Carol Heintz, Jacaranda Manor's psychiatric nurse manager, stated that the main goal was to get R-31 to eat his breakfast, and that staff was concerned that any effort to dress him would disrupt his meal. Ms. Heintz offered no reason why the door could not be closed or the privacy curtain drawn while R-31 ate his breakfast in the nude. R-31 also preferred to keep his colostomy uncovered. Staff would cover it and encourage him to keep it covered, but he would refuse to do so. Ms. Lisk, the surveyor, admitted that she did not review R-31's record even after her observation. She made no attempt to interview R-31 and admitted that she was unaware of his habits and preferences. The second surveyor observation on Tag F241 concerned Resident 21,1 or "R-21", and stated: During the tour on 5/08/01, at approximately 10 a.m., a staff member invited the surveyor into a room to meet [R-21]. He/she was in adult briefs uncovered lying on his/her bed. There was no attempt to cover the resident to insure privacy. At approximately 4:40 p.m. [R-21] was observed from the hallway lying in bed in his/her adult brief with no pants on and the privacy curtain not drawn. Kriste Mennella was the survey team member who recorded the observation of R-21, identified only as a male resident. She did not review the facility's records relating to R-21, and offered no testimonial details beyond the facts set forth in her observation. She did not interview the resident and did not know whether the resident was able to respond to questions. Jacaranda Manor offered no explanation as to why the door could not have been closed or the privacy curtain drawn to prevent passersby from seeing R-21 uncovered in his bed. The third surveyor observation on Tag F241 concerned Resident 8, or "R-8," and stated: [R-8] was observed on 5/8/01 wheeling out of the dining area with several staff present. He had a black polo shirt on inside out and his Khaki pants, along with his adult brief, were down to his knee's [sic] exposing his right lower side and hip. There was no intervention by staff. He was unshaven and had dirty hand [sic] and his fingernails were ragged and dirty. His hair was unkempt. On 5/9/01 through out [sic] the day [R-8] was observed to have on two different shoes. One was a tennis shoe with his name written across the top and the other a brown loafer. Ms. Mennella recorded the observations of R-8. Ms. Mennella identified the unnamed staff persons as "management folks" who were following the surveyors around the facility, and the person in charge of the dining room. These staff persons told Ms. Mennella on May 8 that they did not intervene because R-8 was "resistive to care." Ms. Mennella subsequently discussed R-8 with a CNA, who told her that the resident may or may not be combative, depending on how he is approached. Ms. Mennella believed that some intervention should have occurred even with a combative resident, if only verbal prompting to tell the resident that his pants were down and he should pull them up. She observed R-8 throughout the three days of the survey, but did not see him with his pants down again after the May 8 observation. On May 9, when she saw R-8 wearing unmatched shoes, Ms. Mennella went to the resident's room and confirmed that he did have matching shoes. R-8 was a 46-year-old male with multiple medical and psychiatric diagnoses, among them paranoid schizophrenia. R-8 saw a variety of mental health professionals, including a psychiatrist, a psychiatric ARNP for medication management, a psychologist for individual therapy, and a licensed clinical social worker for group therapy. R-8 was classified as an elopement risk, paranoid and suspicious with a history of aggression. R-8 did not require a wheelchair to ambulate. R-8 habitually carried his "things" (e.g., a radio, or a box containing items sent him by a relative) with him as he moved about the facility. He liked to use a wheelchair to more easily carry his possessions. R-8 dressed himself, usually with some assistance in the morning. He changed clothes five or six times a day. Sometimes he would wear two different outfits in layers, or wear unmatched shoes. Jacaranda Manor staff uniformly noted that there was nothing unusual in R-8 having his shirt on inside-out or backwards, because he was constantly taking his clothes off and on. R-8 liked to wear his pants unbuttoned. He often moved about the facility holding his pants up with one hand, and his pants would often droop down to his knees. Jacaranda Manor staff constantly intervened in an effort to keep R-8 properly clothed. He was sometimes compliant, but other times would resist pulling up his pants. He would curse and run out of the room, or threaten to tell the President of the United States about his treatment. R-8 was indifferent to his appearance, displaying anxiety about his clothing only when staff attempted to change it. He would muss his hair as soon as it was brushed. His hands would get dirty because R-8 had a habit of rooting on the ground or through ashtrays for cigarette butts to smoke. Since the survey, Jacaranda Manor has addressed this problem by installing ashtrays that the residents cannot reach into. Ms. Mennella testified that she knew nothing about R-8's preferences or behaviors regarding clothing. She did not know he had a habit of tousling his own hair. She did not know he had a habit of rooting for cigarettes. She did not ask who wrote R-8's name on his shoe. Jacaranda Manor has a policy of not marking residents' clothing, for privacy reasons. However, R-8 would write his own name on his shoes and other items he received from his family because he was proud of them. The fourth surveyor observation on Tag F241 concerned an unnamed resident: During an observation on 5/9/01, outside in the lifestyles patio area, at approximately 9:10 a.m., a staff person who was on break under the pavilion shouted across the courtyard to a resident in a loud voice, "MR. (name) PULL UP YOUR PANTS." There was [sic] several staff on break and at least 15 other residents out side [sic] in the patio area at the time. Ms. Mennella recorded this observation. She testified that the staff person who yelled was an aide. By the time she looked to see whom the staff person was calling to, Ms. Mennella could see no resident with his or her pants down. Not having seen the resident, Ms. Mennella was unable to say whether the staff person could have reached the resident before his or her pants came down. Her concern was the tone and manner in which the instruction was given, and the embarrassment it could have caused the resident. Despite not having seen the resident, Ms. Mennella was certain that the staff person was addressing a male. Rosa Redmond, the director of nursing at Jacaranda Manor, testified that she learned of the incident shortly after it happened. A CNA and a trainee from the HCR Training Center told her of the incident. It was the trainee who called out to the resident. The trainee told Ms. Redmond that a female resident's slacks were starting to fall. The trainee was concerned that the resident would fall, and could not reach the resident in time to pull up her slacks, so the trainee called out to the resident. The fifth surveyor observation on Tag F241 was a general statement: Residents were observed during numerous random observations out in the patio area during all three days of the survey to have on only socks, no shoes on their feet. As a result the socks were black on the bottom. These general observations were made by surveyors Mary Maloney and Kriste Mennella. Ms. Maloney testified that she has surveyed nursing homes from Pensacola to Key West, including homes that accept mental health residents and have secured units, but that she has never seen another facility in which residents are allowed to walk around barefoot or only in dirty socks. In her experience, staff would intervene and redirect the residents to put on shoes or change their socks. Ms. Maloney testified that she asked one resident why he was not wearing shoes. The resident told her that he did not want to wear shoes, and showed Ms. Maloney several pairs of shoes in his closet. Ms. Maloney did not cite this instance as a deficiency. However, she noted other shoeless residents who appeared confused or cognitively impaired, and did cite these instances as deficiencies because of staff's failure to intervene or to assess why the residents resisted wearing shoes. Ms. Maloney admitted that the survey team discussed the issue of residents not having proper footwear, and determined that it caused no actual harm to the residents. Jacaranda Manor did not contest the fact that residents often go barefoot or wear only socks. Through various sources, the facility maintains an ample supply of shoes and socks for the residents, and attempts to keep the residents properly shod. However, the facility also tolerates residents' preferences in clothing and footwear, and does not consider the question of footwear a pressing issue. Some residents simply do not want to wear shoes. Some residents feel steadier when they can feel the floor against their bare feet. Carol Heintz, Jacaranda Manor's psychiatric nurse manager, testified that neither therapists nor family members have ever expressed concerns over the issue. No evidence was presented that going barefoot or wearing socks posed a safety risk to the residents. The alleged harm was simply that some of the residents had dirty feet, or dirty socks on their feet. The sixth surveyor observation on Tag F241 offered more specific information on the question of resident footwear: The facility did not assist residents to wear appropriate footwear, in that some of the residents who resided on 1 West, the secure unit, were observed wearing socks without shoes or were barefoot throughout the survey. During the initial tour on 5/08/0 [sic], it was observed that several residents were pacing and walking throughout 1 West, with only socks on. Some of these residents walked outside on a sidewalk. The soles of these resident's [sic] white socks were soiled dark gray. On 05/08/01, at 6:50 p.m., there were three male residents observed to walk around the unit with white socks on. One of these residents had holes in the socks. On 05/09/01 at 10:15 a.m., there was one male resident walking outside in the enclosed courtyard wearing white socks, as well as a female resident who was pacing back and forth on the side walk wearing socks only. On the morning of 05/10/01 at 7:45 a.m., there was a male resident sitting in a chair outside who was barefoot. On 05/11/01, at 9:30 a.m., during the resident's [sic] arranged smoking time on the enclosed courtyard on 1 West, there were several residents walking around wearing only socks on their feet. One male resident was wearing black shoes, but they were different style shoes. This was shown to the direct care staff who were not aware. They were not sure if these shoes belonged to this resident. The staff also stated that some of the resident's [sic] shoes were missing or the residents chose not to wear their shoes. Resident #16 was observed walking around in loose-fitting cloth slippers with rubber soles on 05/09/01, on 05/10/01. The resident showed that she/he had one black dress shoe, because the other shoe was missing. On 05/11/01, the resident was wearing open- toed bedroom slippers. This resident was identified as a fall risk due to akinesia (involuntary movement of the body). The resident's current care plan included an approach "to wear proper fitting shoes with non-skid soles." The resident was observed with a shuffling gait. Resident 16, or "R-16," was a 39-year-old male with HIV, cerebral atrophy, and a history of AIDS-related dementia with delusions. He suffered from depression, anxiety, psychosis, paranoia, and bipolar disorder. He was childlike and possessed poor judgment, forming unrealistic plans to get a job and live on his own outside a clinical setting. R-16 was an elopement risk, which caused a community-based HIV program to reject him for participation. Jacaranda Manor tried placing R-16 in its open unit, but he tried to leave without telling anyone, which necessitated placing him in the facility's secure unit. R-16 abused alcohol, liked to smoke and drink coffee constantly, and was prone to giving away his clothes. R-16 had pronounced preferences as to footwear. While he would occasionally wear regular shoes, he most often wore a pair of fuzzy, open-toed slippers. He would have a temper tantrum if not allowed to wear his slippers. R-16 was at risk of slipping and falling due to akinesia, and staff explained to him the potential safety problems in wearing slippers. R-16 had a peculiar gait, described by Jacaranda Manor personnel as "shuffling" or as a "sashay." His slippers had rubber soles to help prevent slipping. The seventh surveyor observation on Tag F241 concerned Resident 32, or "R-32", and an unnamed resident: On 05/08/01, at 6:50 p.m., during the evening meal, [R-32] was observed from the hallway, sitting in a chair in his room wearing only a t-shirt and an incontinent brief. Several staff were observed to walk past this resident's room and did not attempt to intervene. On 05/09/01, at 10:15 a.m., during a random observation, there was a confused male resident walking outside in the enclosed courtyard, who was removed his pants [sic] and exposed his incontinent brief. There was a female resident pacing back and forth nearby. A direct care staff person who was escorting another resident, walked past this resident without intervening. The surveyor went inside to inform the medication nurse of the situation. Mary Maloney was the surveyor who recorded the observation of R-32 and the unnamed resident. R-32 was a male resident who preferred not to wear trousers. Jacaranda Manor staff tried to convince R-32 to wear trousers. Staff tried different kinds of pants, such as pull-ups, zippered pants, and shorts. R-32 would occasionally accede to wearing the shorts, but while in his room always dressed in his brief and a t-shirt. Jacaranda Manor did not dispute Ms. Maloney's observation of R-32. Jacaranda Manor was unable to address Ms. Maloney's subsequent observation, as she was unable to name the "confused male resident," the pacing female resident, or the staff person who allegedly failed to intervene. Ms. Maloney's observation implies that the unnamed staff person should have intervened, but offers no information as to whether the staff person could have safely abandoned the other resident he or she was escorting at the time. The eighth surveyor observation on Tag F241 concerned Resident 4, or "R-4," and stated: During the breakfast meal observation on 05/09/01 and 05/10/01 at about 9:30 a.m., [R-4] was observed to be fed her/his breakfast at the nurse's station. The staff person was observed to be standing and feeding the resident who was seated in a reclining chair. The resident's meal tray was placed on the counter of the nurse's station, where the resident could not see her/his food. There was a high level of staff activity and residents walking around the area. Ms. Maloney was the surveyor who recorded this observation. Both Alma Hirsch, Jacaranda Manor's chief administrator, and Carol Heintz, the psychiatric nurse manager, testified that R-4 is fed entirely by means of a gastrointestinal tube and thus could not have been eating breakfast at the nurses' station. At the hearing, Ms. Maloney conceded that she might have misidentified the resident on the Form 2567, but was certain that she saw a particular male resident being fed breakfast at the nurses' station on May 9 and 10. Jacaranda Manor did not contest the fact that residents are often fed at the nurses' station. AHCA cited this incident as a deficiency because feeding the resident at a busy nurses' station does not promote his dignity. Ms. Maloney inquired and learned that the resident could not be fed in his room because it was being painted. She acknowledged that the resident in question was difficult to feed, and so prone to violent outbursts that Jacaranda Manor had removed all the furniture from his room for his safety. Ms. Maloney nonetheless thought that Jacaranda Manor staff should have chosen a quieter, less stimulative environment in which to feed the resident. The ninth surveyor observation on Tag F241 concerned Resident 16, or "R-16," and stated: On 05/10/01, at about 3:30 p.m., [R-16] approached the nurse's station and asked the medication nurse for some coffee. (The resident had his/her own personal jar of instant coffee.) The nurse denied the resident the coffee. The nurse stated that the resident's coffee was being rationed to several times per day. According to the nurse, the resident's coffee consumption was restricted because the resident prefers the coffee extra strong, and the resident exhibits effects from the excessive caffeine, described as "bouncing off the walls." From review of the clinical record, there was no physician's order for a caffeine restriction. According to facility policy, the coffee served to the residents is decaffeinated, the nurse reported. Ms. Maloney recorded this observation. R-16 is the same resident cited in the sixth surveyor observation for wearing open-toed slippers. Jacaranda Manor serves only decaffeinated coffee to all residents. R-16 had a personal, "special" jar of instant decaffeinated coffee that was in fact provided by Ms. Hirsch, at her own expense. R-16 was allowed to believe that his "special" coffee was caffeinated. R-16 was incapable of making his own coffee. His jar of coffee was kept in the medicine room near the nurses' station, and R-16 had to ask a nurse to prepare his coffee. The nurse would go to the kitchen for hot water, then prepare the coffee. R-16 drank coffee all day, every day. There were no medical restrictions on how much coffee he could drink. He carried a large mug, and would ask the nurses to prepare his coffee as many as thirty times a day. R-16 would ask insistently until his coffee was made. If the nurses were not busy, they would make the coffee immediately. If they were in the middle of a procedure, they would ask R-16 to wait until they were finished. Elaine Teller was the nurse referenced in the ninth observation. She was the charge nurse at the time of the incident. Ms. Teller was passing medications and speaking to Ms. Maloney when R-16 approached and demanded his coffee. Ms. Teller told R-16 that she was busy and would get his coffee in a few minutes. Ms. Maloney testified that Ms. Teller's response was "inappropriate," in that it had the potential to embarrass R- 16 in front of the people at the nurses' station. Ms. Maloney believed it would have been more appropriate to take R-16 aside and speak with him. Ms. Teller denied treating R-16 rudely or disrespectfully. She was "firm" with R-16 "because that's what [he] needs." Ms. Teller was close to R-16, such that he referred to her as his "second mom." At the time, Ms. Maloney voiced no concern over Ms. Teller's treatment of R-16. Ms. Teller testified that she had delayed but never "denied" coffee to R-16. She had on occasion lectured R-16 that he drank too much coffee, but never stated that R-16's coffee intake was restricted. Surveyors employ a "Guidance to Surveyors" document for long-term care facilities contained in the "State Operations Manual" promulgated by the federal CMS. The guidelines for Tag F241 state: "Dignity" means that in their interactions with residents, staff carries out activities that assist the resident to maintain and enhance his/her self-esteem and self-worth. For example: Grooming residents as they wish to be groomed (e.g., hair combed and styled, beards shaved/trimmed, nails clean and clipped); Assisting residents to dress in their own clothes appropriate to the time of day and individual preferences; Assisting residents to attend activities of their own choosing; Labeling each resident's clothing in a way that respects his or her dignity; Promoting resident independence and dignity in dining (such as avoidance of day-to-day use of plastic cutlery and paper/plastic dishware, bibs instead of napkins, dining room conducive to pleasant dining, aides not yelling); Respecting resident's private space and property (e.g., not changing radio or television station without resident's permission, knocking on doors and requesting permission to enter, closing doors as requested by the resident, not moving or inspecting resident's personal possessions without permission); Respecting resident's social status, speaking respectfully, listening carefully, treating residents with respect (e.g., addressing the resident with a name of the resident's choice, not excluding residents from conversations or discussing residents in community setting); and Focusing on residents as individuals when they talk to them and addressing residents as individuals when providing care and services. The same document sets forth survey procedures, and emphasizes examining the context of staff's actions: . . . As part of the team's information gathering and decision-making, look at the actions and omissions of staff and the uniqueness of the individual sampled resident and on the needs and preferences of the resident, not on the actions and omissions themselves. The issue of patient dignity was the subject of extensive testimony at the hearing. Ann Sarantos, survey integrity and support manager for AHCA and an expert in long- term care nursing practice, testified that the surveyors understood that residents will remove their shoes and clothing, particularly in a facility with the resident population of Jacaranda Manor. The survey team acknowledged that Jacaranda Manor's population was unique in terms of the number of mentally ill residents. Ms. Sarantos stated that AHCA's central concern was staff's lack of sensitivity. The surveyors repeatedly saw staff making no effort to cover the residents or get them into shoes, even when the surveyors pointed out the problems. Ms. Sarantos stated that AHCA does not set a different dignity standard for patients with psychiatric or organic conditions. She noted that a high percentage of residents in any nursing home will have some form of dementia or behavioral problem, and that the facility must plan its care to manage these problems. She stated that AHCA employs the same survey procedures for all facilities, regardless of the patient population. Patricia Reid Caufman, an expert in social work, opined that the residents are nursing home patients regardless of their diagnoses. When the facility accepts these patients, it does so on the basis that it can meet their needs, including their dignity needs. Susan Acker is the nursing services director of AHCA's health standards and quality unit. She is an expert in long-term care and was the person who made the final decision as to the classification of Jacaranda Manor's deficiencies. Ms. Acker stated that the provision of adequate clothing and footwear is a "fundamental level of compliance." The individuals listed under the Tag F241 deficiencies had portions of their bodies exposed in a way that does not conform to the community standard of a nursing home. The "community standard" for a nursing home includes an expectation that a resident will be dressed in his or her own clothes and assisted in dressing and making appropriate selections, or, if the resident's judgment is impaired, will be provided with selections allowing them to appear in a dignified manner. Ms. Mennella offered the common sense view that, in applying a "community standard," the surveyor should ask herself whether a mentally impaired resident would be embarrassed under normal circumstances. The exposure of these residents demonstrated noncompliance with the requirement that the facility maintain or enhance the self-esteem and dignity of the residents. Ms. Acker acknowledged the right of the residents to select their own clothing or to be undressed within the confines of their rooms. However, the facility must continually provide these residents with encouragement or assistance in dressing. Staff must act if the residents lack the ability to make their own judgments. The issue was not that the facility should deny choice to the residents, but that a therapeutic environment should be established that maintained and enhanced resident dignity. Ms. Acker found that the "key point" in the deficiencies was the proximity of staff to the cited residents. In each instance involving nudity or improper dress in a resident's room, staff was available to pull the privacy curtain or to assist the resident in redressing. The staff person may not have minded the resident's dress, but should have acted to protect the resident's dignity when a stranger walked into or past the room. Staff could have re- established the community standard by clothing the resident or providing the privacy that would protect the resident's dignity, but failed to do so. Ms. Acker characterized these incidents as staff's failure to provide services to the community standard for residents who were unable to exercise their own judgment to maintain their own dignity. Ms. Acker testified that, to change the scope and severity of Tag F241 from E to H, the IDR panel members would have to believe that the situation resulted in a negative outcome that compromised the ability of the resident to maintain or reach the highest practicable physical, mental or psychosocial well-being, as defined in the Resident Assessment Protocol ("RAP"). She concurred with upgrading Tag F241 to a Class II deficiency because there was a direct impact on the residents observed and on those residents who witnessed the failure to deliver adequate care. Carol Heintz, the psychiatric nurse manager and an expert in psychiatric nursing care, opined that Jacaranda Manor is not below community standards in terms of patient dignity. She agreed that "it would be nice" if more than 200 residents with physical and mental health issues wanted to wear appropriate clothing, shoes and socks every day, but for these people "things like that may not be the priority that it is to you or [me]." Clothing issues can be difficult with some residents, because they do not perceive their unorthodox dress or even nudity as an issue. If a resident resists wearing proper clothing or using a privacy curtain, the staff just keeps trying to reinforce proper dress and modesty. Ms. Heintz acknowledged the facility's responsibility to respect the rights of others not to be subjected to the improper dress of residents. However, she also stated that residents' modes of dress have had no adverse impact on them, and that no therapist or any resident's family has ever complained about the facility's methods of dealing with clothing and footwear issues. In light of all the factual and expert testimony, it is found that the IDR panel's decision to upgrade Tag F241 from Class III, with a scope and severity rating of E, to Class II, with a scope and severity rating of H, was supported by the evidence presented, though not as to all nine observations made under Tag F241. The first observation, for R-31, supports the Agency's finding a Class II deficiency. R-31 was sitting on his bed eating breakfast in the nude and was plainly observable from the hallway. Staff persons were present but did nothing to remedy the situation. Granting that it may have been counterproductive to attempt to dress R-31 while he was eating, no evidence was presented to show that pulling the privacy curtain or closing the door would have disturbed R- 31's meal. Even if, as Jacaranda Manor implied, these staff persons may not have been direct care employees, they should have alerted the nursing staff to the situation. The dignity of R-31 and of any other resident who happened to pass his room were directly affected by this incident. The second observation, for R-21, supports the Agency's finding a Class II deficiency. R-21 was seen twice lying in bed wearing uncovered adult briefs. Jacaranda Manor offered no reason why the resident could not be covered or why the view from the hallway could not be obscured. The dignity of R-21 and of any other resident who happened to pass his room were directly affected by this incident. The third observation, for R-8, does not support the Agency's finding a Class II deficiency. The initial rating of this as a Class III deficiency was supported by the evidence. While the bare facts set forth in the observation were concededly accurate, the surveyor focused entirely "on the actions and omissions themselves," and made no effort to assess the "uniqueness of the individual sampled resident" or "the needs and preferences of the resident." The facts established that R-8 was subject to unbuttoning his pants and allowing them to droop. In three days of constant observation, Ms. Mennella witnessed one such brief incident. R-8 was also subject to digging for cigarette butts and tousling his own hair, making it very likely that at some point over a three-day period he could be observed with dirty hands and unkempt hair. R-8 wrote his own name on his shoes, because he was proud of them. Testimony established that staff of Jacaranda Manor conscientiously cared for R-8, but that it was impossible to maintain appropriate appearance for this resident all day, every day. There was no evidence of any impact on this resident's dignity or self-esteem. The fourth observation was of the staff member shouting to a resident to pull up her pants. This observation does not support the Agency's finding a Class II or a Class III deficiency. Had the surveyor made inquiry into the circumstances of the incident, she would have learned that it involved a sudden reaction to a potentially critical situation. The trainee called out to the resident because she couldn't reach the resident in time to keep her pants from falling, which in turn could have caused the resident to fall. Concern for the resident's possible embarrassment cannot be held more important than the resident's physical safety when an emergency arises. The fifth and sixth observations involved residents walking around barefoot, in only socks, or, in the case of R- 16, in slippers. The deficiencies noted for these observations do not support the Agency's finding a Class II or a Class III deficiency. The only harm alleged by the Agency was that the residents' dignity is impaired by their having dirty feet. It is found that Jacaranda Manor was acceding to the wishes of its residents regarding footwear, and that dirty feet or socks are a necessary and essentially harmless incident of choosing not to wear shoes. The seventh observation, of R-32 and an unnamed resident, supports the Agency's finding a Class II deficiency. As to the unnamed resident observed in the courtyard with his brief exposed, the surveyor could not provide enough information to allow Jacaranda Manor to defend itself. The surveyor could not name the resident, the female resident allegedly in the vicinity, or the staff person who allegedly walked past. This portion of the deficiency was unproven. However, the surveyor adequately stated her observation of R- 32, who was seen from the hallway sitting in a chair in his room, wearing only a t-shirt and adult brief. Several staff members walked past the room and did not intervene. Jacaranda Manor offered no reason why the resident could not be covered or why the view from the hallway could not be obscured. The dignity of R-32 and of any other resident who happened to pass his room were directly affected by this incident. The eighth observation, of a resident initially identified as R-4, supports the Agency's finding a Class II deficiency. The surveyor guidelines expressly describe promoting "dignity in dining." While the underlying facts explained why Jacaranda Manor could not feed the resident in his room, they did not explain why the resident was being fed at the busy, noisy nurses' station rather than in the dining room or some other, quieter location. The resident was difficult to feed and subject to violent outbursts, but these facts do not explain the choice of feeding the resident at the nurses' station, leading to the inference that this choice was likely made for the convenience of the nurses. The dignity of this resident was directly affected by this incident. The ninth observation, of R-16, does not support the Agency's finding a Class II or a Class III deficiency. The facts established that Ms. Teller, the nurse in question, had a close relationship with R-16 and could speak somewhat sternly to him without affecting his dignity or self-esteem. Ms. Teller's version of the incident is credited. Requiring R-16 to wait a few minutes for his coffee while Ms. Teller finished passing medications caused the resident no harm whatever. In summary, of the nine observations listed under Tag F241, four supported the Agency's finding of a Class II deficiency; one supported the initial finding of a Class III deficiency; and four supported a finding of neither a Class II or a Class III deficiency. Thus, the Agency's overall finding of a Class II deficiency for Tag F241 is supported by the record evidence. Tag F250 The May 2001 validation survey allegedly found a violation of 42 C.F.R. Section 483.15(g), which states that a facility must "provide medically-related social services to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident," and sets forth the standards for resident social services. This requirement is referenced on Form 2567 as "Tag F250," or the "social services tag." For purposes of the Form 2567, the validation team gave the alleged deficiency on the May 2001 survey a federal scope and severity rating of D for Tag F250. A rating of D indicates that there is an isolated deficiency causing no actual harm to the resident but with potential to cause more than minimal harm. This alleged deficiency was rated Class III, and was not part of the basis for imposing a conditional license on Jacaranda Manor. Its significance is that it was determined to be an uncorrected deficiency in the June 2001 return survey, and thus formed part of the basis for the civil penalty imposed after the return survey. The May 2001 survey found one instance in which Jacaranda Manor allegedly failed to provide medically related social services. The surveyor's observation on Form 2567 concerned R-16, the same resident discussed above in the sixth and ninth observations under Tag F241: [R-16] was admitted to the facility on 09/29/00, and the resident's comprehensive assessment of [10/05/00]2 indicated that the resident had dental caries. The care plan stated that the resident's "teeth will be clean and oral mucosa will be free of signs and symptoms of infection at all times." One of the approaches on the care plan was for the "resident to see the Dentist as needed." The resident revealed that she/he had not seen a dentist since admission and desired dental services. Observation of the resident's teeth and gums, indicated that there was evidence of abnormal oral mucosa. There was no documentation in the resident's clinical record to indicate that the resident had seen the dentist since admission. The nursing management staff person was asked on 05/11/01, if there was any information to show that the resident had seen the dentist. Later that day, the nursing management staff indicated that the resident now has a dental appointment scheduled on 05/23/01. The lack of dental services can lead to dental problems, oral infection, changes in food consistency, and decrease resident's self-esteem. Ms. Maloney observed R-16 and noted that the edge of his gums was black, perhaps indicating periodontal disease. R-16 showed no evidence of pain and was eating normally. Ms. Maloney interviewed R-16, who told her he wanted to see a dentist. On May 11, 2001, Ms. Maloney told the director of nursing that she could find no indication in the record that R-16 had ever seen a dentist, and asked for any information not apparent in the record. Later that day, the director of nursing told Ms. Maloney that R-16 now had a dental appointment scheduled for May 23. Ms. Maloney was left with the understanding that nothing had been done for R-16 up to that time, and that his appointment was made only in response to her inquiry. The evidence established that R-16's dental appointment for May 23 had actually been scheduled by the facility on May 7, prior to the survey. The appointment was scheduled because R-16 had expressed to Ms. Hirsch a desire to have his teeth cleaned and whitened. The only complaint R-16 voiced about his teeth was that they were discolored. The key to Ms. Maloney's finding a deficiency was her impression that the facility did not respond to R-16's request to see a dentist until Ms. Maloney herself inquired and pressed the issue. In fact, the appointment had been made before the AHCA survey team arrived at Jacaranda Manor. The nurse manager to whom Ms. Maloney spoke was apparently unaware the appointment had been made. The evidence does not support the finding of a deficiency under Tag F250. Tag F309 As noted above, the deficiencies alleged under Tag F309 were originally placed under Tag F272. Tag F272 is the Form 2567 reference to violations of 42 C.F.R. Section 483.20(b), which states that a facility "must conduct initially and periodically a comprehensive, accurate, standardized, reproducible assessment of each resident's functional capacity," and sets forth at length the standards that must be observed in performing these comprehensive assessments. Tag F309 references 42 C.F.R. Section 483.25, which states that each resident "must receive and the facility must provide the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with the comprehensive assessment and plan of care," and sets forth at length the standards by which a facility's quality of care is measured. The significance of the change from Tag F272 to Tag F309 is that Tag F272 merely alleges a failure to conduct or update the assessment of the resident. Tag F309 alleges a deficiency in the quality of care provided to the resident, inherently a more serious violation. For purposes of the Form 2567, the validation team gave the alleged deficiencies on the May 2001 survey a federal scope and severity rating of D for Tag F272. A rating of D indicates that there are isolated deficiencies causing no actual harm to the residents but with potential to cause more than minimal harm. The IDR panel recommended upholding the deficiencies as cited by the survey team. However, Ms. Acker believed that the presence of a negative outcome for Resident 7, discussed below, merited changing the tag from F272 to F309 and making it a Class II deficiency with a federal scope and severity rating of G, meaning that there are isolated deficiencies causing actual harm that is less than immediate jeopardy to the health or safety of the residents. The May 2001 survey, as modified by the IDR process, set forth two alleged deficiencies under Tag F309. The first alleged deficiency concerned Resident 7, or "R-7:" [R-7] triggered on the Resident Assessment Protocol (RAP) Summary for behavior. On the 06/02/00 Minimum Data Set (MDS) this resident was coded as having moderate daily pain. Subsequently on the 02/22/01 MDS this resident was coded as having daily pain which was sometimes severe. During the initial tour at 9:30 a.m. on 05/08/01, the resident was described as refusing to get out of bed and refusing showers due to pain. Clinical record review and staff interview revealed there was no documentation of an ongoing evaluation of this resident's pain since 1999. The behavior assessment identified pain and chronic illness but did not reflect the increase in pain or an evaluation of the resident refusing care. R-7 was admitted to Jacaranda Manor on March 23, 1999. She received a comprehensive psychiatric evaluation upon admission. R-7 was a 41-year-old female, bipolar with a history of psychosis, dementia, and manic episodes. She was a hermaphrodite. Her physical illnesses included pickwickian syndrome, a condition characterized by obesity, decreased pulmonary function and somnolence. R-7 also suffered from psoriatic arthritis, a condition that caused her chronic pain and limited her movement. She complained of pain when being moved. When she was in bed and not moving, she did not complain of pain. Jacaranda Manor prepared a formal pain assessment of R-7 upon her admission. She was seen weekly by her attending physician, psychiatrists, and therapists, and was seen several times a day by the nursing staff. All of the medical professionals who saw her entered written notes into her medical record. AHCA's observation accurately notes that R-7's medical record lacks a document formally titled "evaluation" or "assessment" of R-7's pain, but testimony and documentary evidence at the hearing established that R-7's condition, including her pain, was consistently monitored and noted by Jacaranda Manor staff. Franklin May, a senior pharmacist, was the AHCA surveyor who made the observation of R-7. Mr. May interviewed R-7 and the treating nursing staff, and he reviewed the available medical records. Mr. May testified that he had "no problems with the way they were treating this lady." Mr. May's concern was that R-7's pain had apparently increased, and her condition deteriorated, but the facility could provide him with no documentation of a formal assessment or evaluation of her pain subsequent to her admission in 1999. Jacaranda Manor did not dispute Mr. May's contention as to documentation of formal assessments, but contended that medical staff "assessed" R-7 on a daily basis and that their chart notes constituted documentation of those assessments. This contention is credited to the extent that Jacaranda Manor established that nothing was lacking in the actual care provided to R-7, and that staff of Jacaranda Manor possessed a nuanced understanding of R-7's condition and of her somewhat mercurial personality as it affected her complaints of pain. It is not credited to the extent that Jacaranda Manor contends that ongoing, formal assessments of R-7's pain were superfluous. Mr. May's impression was that R-7's refusal to get out of bed and to take showers was a recent phenomenon indicating an increase in pain. In fact, R-7 was mostly bed- bound throughout her stay at Jacaranda Manor, and even before her admission. Her reported pain fluctuated from time to time, as did her amenability to taking her prescribed pain medications. The totality of the evidence established that R- 7's condition was at least stable, if not markedly improved, throughout her stay at Jacaranda Manor. In conclusion, the evidence supported Mr. May's contention that Jacaranda Manor's documentation of the care provided to R-7 was insufficient to permit a surveyor to obtain an accurate picture of her condition and treatment, and therefore supported the initial classification of Tag F272 in that R-7's formal assessment instruments were insufficiently updated. However, the evidence did not support changing the classification to Tag F309, because no actual deficiencies in R-7's care were proven or even alleged prior to Ms. Acker's review of the IDR process. The second alleged deficiency under Tag F309 concerned Resident 25, or "R-25:" [R-25] was admitted on 04/10/01 directly to the secure unit upon admission to the facility. The Resident had a primary diagnosis of Cancer of the lung and paranoid schizophrenia. The Resident was receiving Hospice in another skilled nursing facility in Tampa before he/she was sent to the hospital for violent outburst of behavior. Transfer social services document from the hospital indicate [sic] that resident is to be admitted to Jacaranda Manor with Hospice services. Monthly orders for this resident for April and May, 2001 reflected orders for Hospice. Interview of facility social services' staff, state [sic] that Resident was discontinued from Hospice due to "residents [sic] condition being stable" according to hospice. Contact was conducted with Life Path [the Tampa hospice] who confirm that this resident did meet Hospice criteria and that they do not service the St. Petersburg area and that was the only reason they had to discharge the resident. Hospice staff said that Jacaranda admissions person was told that they were responsible to secure the services of the Hospice covering the St. Petersburg area and they would then share their records with that Hospice. This resident was documented to be ambulatory throughout the secure unit and sociable with staff. Resident had episodes of shortness of breath and occasional use of oxygen. On 05/10/01 the resident developed cardiac arrest and was sent to the hospital by EMS where he/she was pronounced dead. The facility did not meet the needs of this resident for his/her terminal care needs. R-25 was a large, heavy-set 67-year-old male who had been diagnosed with lung cancer, chronic obstructive pulmonary disease ("COPD"), paranoid schizophrenia, and seizure disorder. R-25 had been a resident of a Tampa nursing home until a behavioral outburst caused his admission to the psychiatric unit of Tampa General Hospital for an adjustment of his medications. While in the Tampa nursing home, R-25 had received services from Life Path Hospice, which served patients in Hillsborough County, due to his lung cancer diagnosis. The decision had been made not to treat the cancer, and R-25 had been receiving hospice services for over one year. R-25 was an elopement risk and subject to violent outbursts, such that the Tampa nursing home declined to re- admit him after his hospital admission. Staff of Life Path Hospice knew of Jacaranda Manor's reputation for accepting this kind of difficult resident. Grizier Cruz, a mental health counselor at Life Path, contacted Sharon Laird, Jacaranda Manor's admissions director. Ms. Laird agreed to evaluate R-25 for admission, and Jacaranda Manor admitted R-25 on April 10, 2001. Ms. Laird testified that she initially asked Ms. Cruz whether Life Path would continue to provide services to R-25 at Jacaranda Manor, or whether Life Path would transfer the case to the hospice serving Pinellas County. Ms. Laird testified that Ms. Cruz told her that R-25 was stable and no longer in need of hospice services. Ms. Cruz denied telling anyone at Jacaranda Manor that R-25 was stable and not in need of hospice services. Ms. Cruz stated that she informed Jacaranda Manor that Life Path would be withdrawing services from R-25 because he was leaving Hillsborough County, Life Path's area of coverage. She testified that Jacaranda Manor would have to establish a physician for R-25 at the facility. The physician would have to write an order for hospice, at which time Life Path would make the referral to the Pinellas County hospice that would then come to Jacaranda Manor to evaluate R-25 for its program. When R-25 was admitted, Jacaranda Manor followed its standard assessment and care planning procedures, noting his diagnosis of lung cancer and the need to contact hospice. Linnea Gleason, social services director at Jacaranda Manor, testified that she contacted Life Path twice during the care planning process, and was told both times that R-25 was stable and in no need of hospice. Ms. Gleason's contemporaneous notes in R-25's chart are consistent with her testimony. Dr. Gabriel Decandido was R-25's physician at Jacaranda Manor. His examination revealed that R-25's cancer was apparently slow growing, because he was relatively pain free and did not appear to be at the end stage of life. Dr. Decandido was not surprised to learn that R-25 had lasted over one year on hospice; he was surprised that R-25 had been receiving hospice services at all. Dr. Decandido did not believe that R-25 needed hospice services. R-25 was stable, comfortable, not in pain, happy and smiling. At times, he used oxygen due to his COPD and continued smoking. He kidded with the nurses and went outside to smoke throughout the day. Dr. Decandido noted that R-25's schizophrenia made him a poor patient with whom to discuss death because such discussions could increase his psychosis and paranoia. Given R-25's entire situation, Dr. Decandido thought it best to allow R-25 to live out his life at Jacaranda Manor, walking around, talking to people, eating, drinking, and smoking. Another factor influencing Dr. Decandido's opinion was that x-rays taken of R-25 at Jacaranda Manor did not indicate lung cancer. Dr. Decandido did not dispute the diagnosis of lung cancer, but did dispute that R-25 was a man about to die from lung cancer. His findings from the x-rays were that R-25 suffered from congestive heart failure and possibly pneumonia. Ms. Gleason testified that she and her social services staff visited R-25 three times a week to offer counseling, but that R-25 showed no anxiety about his lung cancer and declined services. Elaine Teller was the charge nurse at Jacaranda Manor during R-25's admission. She directly asked R-25 on several occasions whether he wanted hospice. She explained the advantages of hospice care in managing his medications. On each occasion, R-25 declined hospice. Ms. Teller failed to note these declinations in R-25's chart. However, given that there was no physician's order for hospice and that R-25's capacity to consent was questionable at best, Ms. Teller's notations would have been superfluous in any event. Life Path Hospice informed Jacaranda Manor that it would be necessary to obtain the consent of R-25's only known relative, a daughter in Jacksonville, to commence hospice services in the event they were ordered by a physician. Ms. Laird of Jacaranda Manor contacted the daughter by telephone and sent her an admissions package by certified mail. The daughter did not accept delivery of the package. Thus, Jacaranda Manor never received signed admission documents from R-25's family, which would have included advance directives such as hospice. AHCA's contention that "[m]onthly orders for this resident for April and May, 2001 reflected orders for Hospice" is simply a misreading of R-25's record. The notation "hospice" appears under the term "advance directives" on a record document with the title "physicians orders and administration record." Despite its title, this sheet was used by Jacaranda Manor as a medication sheet. A notation of an advance directive for hospice was not a physician's order for hospice. Jacaranda Manor staff was fully aware that a physician's order for hospice would have been indicated by a special sticker on the sheet and by accompanying paperwork. Ms. Gleason explained this procedure to AHCA surveyors, who nonetheless cited these "orders" as deficiencies. R-25 died on May 10, 2001, one month after his admission to Jacaranda Manor. His death was caused by cardiac arrest, unrelated to his lung cancer diagnosis. Jacaranda Manor's version of events involving R-25 is credited. Other residents at the facility receive hospice services, and there is no reason to conclude that the facility would fail to implement a physician's order for hospice services for R-25. The evidence does not support the deficiency cited by AHCA, either under F272 or F309. In summary, the evidence did not support the change of Tag F272 to Tag F309. The evidence did support a Class III deficiency under Tag F272 as to the documentation of Jacaranda Manor's treatment of R-7. II. June 2001 Survey A. Tag F241 The June 2001 survey allegedly found two Class III violations of Tag F241, the "dignity tag," both from observations made on June 19, 2001, at 3:05 p.m. by surveyor Patricia Reid Caufman. The first observation involved Resident 19, or "R-19": [R-19] was lying in bed (mattress) on the floor and receiving one to one supervision from the Certified Nursing Assistant (CNA). The resident was sleeping with the door open and the privacy curtain was not pulled around the resident. The resident faced toward the window with his adult briefs exposed to the hallway. The CNA was sitting on a chair in the hallway observing the resident. The CNA did not attempt to cover the resident to maintain his/her dignity. R-19 was a 60-year-old male with a history of dementia and a propensity for violent outbursts. R-19 had no safety awareness, and had done such things as pull his room air conditioning unit out of the wall and attempt to walk it out into the hallway. He had a great deal of psychomotor agitation, and persistently pulled at things. He was prone to falling into chairs or his bed, pulling down curtains and curtain rods. If approached abruptly, he might strike out. Three or four people could be needed to give him a bath. The medical staff constantly adjusted his medications in an effort to manage his behavior without over-sedating him. R-19 was very resistant to dressing, and could undress himself very quickly. Staff of Jacaranda Manor tried various strategies to keep him dressed, including one-piece outfits, clothing that zipped in the back, and hospital gowns with pajama bottoms, but nothing was entirely successful. Jacaranda Manor had taken steps to ensure his safety. R-19 had been placed in a private room at the back of his hallway to minimize his interactions with other residents. All furnishings had been removed from the room, save for a mattress on the floor. Padding was placed around the mattress to minimize his thrashing. The windowsills were padded, and the air conditioner protected. At the time of the June 2001 survey, R-19 was receiving 24-hour one-on-one care, for his own safety and that of the other residents. When R-19 slept, the CNA assigned to him was instructed to sit in the doorway to his room. A Dutch door was installed to his room. Once R-19 fell asleep, the bottom part of the door could be closed to obscure the view of passersby but still allow the CNA to peek over the top to check on him. Jacaranda Manor conceded the accuracy of Ms. Caufman's observation, but contended there was no alternative plan of care for R-19. The door could not be closed completely, because the resident then could not be observed by the CNA. Placing the CNA on a chair inside the room would defeat the purpose of removing all the furnishings for safety, and would have placed the CNA in jeopardy. The privacy curtain would obscure the CNA's view of the resident. R-19 was easily disturbed. Ms. Redmond, the director of nursing, testified that R-19 "needs to sleep when he wants to, because otherwise he is just up and going all the time." Ms. Redmond believed that any attempt to cover R-19 with a sheet would have awakened him, "and then he would have been up and going again and wouldn't have gotten any rest." Based upon the unique characteristics of this resident, and the extensive steps taken by Jacaranda Manor to ensure R-19's safety with some level of privacy, it is found that the evidence failed to establish that the observation of R-19 constituted a deficiency under Tag F241. Ms. Caufman's second observation under Tag F241 involved Resident 20, or "R-20": [R-20] was observed from the hallway lying in bed with the door open and the privacy curtains not pulled around the resident. The resident was wearing adult briefs and the front half of the resident was exposed. Two staff members passed by the open door and failed to intervene so as to protect resident dignity. R-20 was a male resident suffering from dementia. He would take off his gown or shirt while lying in bed. He was capable of opening and closing his own privacy curtain. Ms. Caufman could not identify the two staff members who passed the open door. Ms. Caufman's handwritten notes state that she observed R-20 uncovered at 3:05 p.m., but that staff had covered him when she next went past the room at 3:09 p.m. She did not explain why her formal statement omitted the fact that the resident was covered no more than four minutes after her observation. Jacaranda Manor offered no explanation as to why the door could not have been closed or the privacy curtain drawn to prevent passersby from seeing R-20 uncovered in his bed. On the other hand, Ms. Caufman's brief description of the incident, her failure to identify the staff members who allegedly ignored R-20, and her omission of a relevant fact render the situation ambiguous. As noted above, staff at Jacaranda Manor do not wear uniforms. Only direct care staff are allowed to approach patients to dress or cover them. Other staff, such as maintenance or cafeteria workers, are directed to be alert to residents' dress and to go get a direct care staff person when they see a problem. Based on Ms. Caufman's narrative and on the fact that the resident was covered within four minutes of her observation, it is as likely as not that the two people she saw pass the room were not direct care staff, and that they alerted the direct care staff, who then covered the resident. It is found that the evidence failed to establish that the observation of R-19 constituted a deficiency under Tag F241. B. Tag F250 The June 2001 survey allegedly found one violation of Tag F250, the "social services tag," involving Resident 14, or "R-14": [R-14] was admitted to the facility on 7/2/98 with diagnoses that include organic brain syndrome, traumatic brain injury and dysphagia. The resident's minimum data set (MDS) of 7/3/00 indicated that the resident had broken, loose teeth and dental caries. The most recent MDS, dated 3/8/01, indicated that the resident had some or all natural teeth and needed daily cleaning. It did not document broken, loose teeth with dental caries. The resident assessment protocol (RAP) for Dental, dated 3/8/01, documented that the resident was missing several teeth, had no dentures and the remaining teeth were discolored, but no gross caries or other problems. The status was documented as no oral hygiene problem, no problem that would benefit from a dental evaluation, but the patient was determined to be at risk for developing an oral/dental problem. The staff was to assist the resident with oral care and monitor for problems. The care plan, dated 3/14/01, documented that the resident had dental caries (in conflict with the RAP assessment) along with missing teeth and the goal was to assist with oral care at least twice daily and obtain a dental consult as needed. A dental evaluation had been done on 8/18/98 (three years prior to the survey), and the evaluation (obtained from the thinned record) revealed that this was an initial oral examination and the resident had several missing teeth, heavy calculus and plaque noted. His teeth were documented as stable with no swelling or fractures noted and the resident was determined not to be a good candidate for routine dental care. During the initial tour with the 7-3 Supervisor, on 6/19/01, at about 9:30 a.m., the resident's teeth were observed. A front tooth was missing and a very large amount of plaque was noted, especially on the lower teeth. The supervisor commented that she observed dental caries. On 6/20/01, at 11:10 a.m., observations of the patient's teeth were made with the director of nursing (DON). The resident was seated in a recliner, sleeping with his mouth wide open. The left front tooth was broken and multiple dark areas in the back teeth were observed. There was a large amount of built up plaque on upper and lower teeth and on the upper and lower gum lines. An unpleasant mouth odor was detected at that time. Review of the social service notes from 7/15/98 through 5/16/01, revealed no documentation that the patient had dental needs. The current record did not contain a recent dental evaluation and the DON stated that she would review the thinned record. The initial dental evaluation, dated 8/18/98 mentioned above, was the only documented dental evaluation provided by the facility for review. Interview with the DON, on 6/20/01, at 1:50 p.m., revealed that the resident had refused dental work as documented on the care plan, dated 2/12/01. The nurses notes did not document that a dental appointment had been made and the resident refused examination. The facility was asked to provide any documentation that the resident had been sent to a dentist and refused care. No other documentation was provided. In addition, the resident was coded as severely cognitively impaired on the MDS of 7/3/00, 2/5/01 and 3/8/01. There was no evaluation of the resident's capacity to provide or deny consent for treatment in the record. The resident's wife was documented as the decision maker on the MDS, but according to the DON she was unable to be contacted for a "long time" and there was no documentation that she had been involved in any decision making. The resident had no other legal representative. On 6/20/01, at 1:50 p.m., the DON stated that a doctor's order had been obtained for a dental appointment and the appointment was made. Lack of appropriate dental care may result in infections and diminish the resident's health status. Patricia Procissi was the surveyor who recorded the observation of R-14. She found a conflict between the July 3, 2000, MDS, which documented broken, loose teeth with dental caries, and the March 8, 2001, MDS, which did not document the tooth problems. However, a RAP prepared on the same date did document dental problems for R-14. Ms. Procissi interpreted the March 8, 2001, RAP as indicating improvement in R-14's condition without any documented dental intervention. She believed that this RAP conflicted with a care plan dated March 14, 2001, that indicated dental caries. In fact, the March 8 RAP stated "no gross caries," which is not necessarily in conflict with a finding that R-14 had some dental caries. Ms. Procissi noted that the director of nursing, Ms. Redmond, had told her that R-14 refused dental care, but Ms. Procissi could find nothing in Jacaranda Manor's records documenting that R-14 had been sent to a dentist and refused care. Ms. Gleason, the social services director, testified that she asked R-14 if he would like to see a dentist, and he had refused dental care. Ms. Gleason testified that she documented this refusal in R-14's care plan, along with a notation that staff should continue to encourage him to accept dental services. Ms. Procissi saw Ms. Gleason's note reflecting R- 14's refusal to see a dentist. However, she believed that this documentation raised the question of why there was no doctor's order that R-14 should be seen by a dentist. She stated that in most cases, there is a doctor's order followed by a nurse's note documenting why the order could not be carried out. Here, there was nothing in the record explaining the circumstances of R-14's refusal. Ms. Procissi also found it "odd" that R-14's refusal was documented in the social services care plan rather than the medical notes. At the hearing, Ms. Gleason and Ms. Hirsch testified as to the general difficulty of obtaining dental services for Medicaid patients. Few dentists are willing to accept adult Medicaid patients. At the time of the survey, Jacaranda Manor had two dentists and an oral surgeon who would see its residents, but even these dentists limited the number of residents they would accept in a given month. If a Medicaid resident needs dental work, the doctor or a nurse will write a note to the social services office, which phones the dentist's office and provides the resident's Medicaid information and the nature of the dental needs. The dentist's office calls back to inform social services whether the resident is eligible under the "medically necessary" criteria for Medicaid reimbursement. If the resident is eligible, social services makes the appointment, arranges transportation for the resident, and accompanies the resident to the appointment, if necessary. Jacaranda Manor also schedules routine appointments several months in advance. R-14 was a 47-year-old cognitively impaired male. He was a Medicaid recipient. R-14 could be verbally and physically abusive when approached. At the time of his admission to Jacaranda Manor, and at all times subsequent, R- was fed exclusively via gastrointestinal tube, meaning that any dental problems would not affect his nutrition. Dr. Stuart Strikowsky, Jacaranda Manor's medical director, opined that R-14 was in no pain or discomfort, had loudly and adamantly stated that he wanted no dental work, and would require complete sedation to undergo a dental evaluation. Dr. Strikowsky believed that a dental examination was medically unnecessary for this resident. Kevin Mulligan, AHCA's Medicaid dental specialist, testified that Medicaid covers only medically necessary dental services, and that a dental examination for a nursing home patient must be requested by the attending physician and the nursing director. Dr. Strikowsky plainly believed that such a request was unnecessary for this resident. It is found that the evidence was at best ambiguous that the observation of R-14 constituted a deficiency under Tag F250. Jacaranda Manor conscientiously monitored and documented R-14's dental condition. R-14's physician believed that a dental examination was medically unnecessary, somewhat mooting Ms. Procissi's concerns regarding the lack of a doctor's order for dental services.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Agency for Health Care Administration enter a final order finding a Class II deficiency for Tag F241, a Class III deficiency for Tag F272, and assigning conditional licensure status to Jacaranda Manor for the time period from May 15, 2001 to February 28, 2002. It is further recommended that the Administrative Complaint be dismissed and no civil penalty assessed against Jacaranda Manor. DONE AND ENTERED this 25th day of July, 2002, in Tallahassee, Leon County, Florida. ___________________________________ LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings 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 this 25th day of July, 2002.
The Issue The issues for determination are: (1) whether the deficiency alleged as a result of a Complaint Survey conducted on June 18, 2002, is appropriately classified as a Class I deficiency; (2) whether a fine in the amount of $10,000 is appropriate; (3) whether the "Conditional" licensure status, issued October 29, 2002, is warranted; and (4) whether the alleged violation constitutes grounds for a six-month survey requirement and $6,000 survey fee.
Findings Of Fact At all times material hereto, AHCA was the state agency responsible for evaluating nursing homes in Florida pursuant to Section 400.23(7), Florida Statutes. As such, in the instant case it is required to conduct a complaint evaluation of nursing homes in Florida in accordance with Section 400.23(8), Florida Statutes (2000). AHCA's evaluation of Florida nursing homes requires an assignment of a rating of standard or conditional to each licensee. In addition to its regulatory duties under Florida law, AHCA is the state "survey agency," which, on behalf of the federal government, monitors nursing homes that receive Medicaid or Medicare funds. Carrollwood Care Center is a nursing home located at 15002 Hutchinson Road, Tampa, Florida, and is duly-licensed under Chapter 400, Part II, Florida Statutes. On June 18, 2002, a complaint investigation survey was conducted at Carrollwood by Pamela Mraz, a surveyor for AHCA, who visited the Carrollwood facility to inquire into the death of Resident 1 that occurred on May 5, 2002. Ms. Mraz is a registered nurse (RN) with over 20 years of nursing experience, including having served as a director of nursing and having completed more than 100 surveys of long-term care facilities. She has been a surveyor for AHCA since September 2001. During the course of her complaint survey of the facility, Ms. Mraz examined the facility's records pertaining to Resident 1's death. Her review indicated that the death of Resident 1 constituted failure to meet the standards set-up under Tag F324, as identified on the Form 2567-L of the U.S. Department of Health and Human Services' Health Care Financing Administration. The parties refer to this form as the HCFA 2567-L or the "2567." The 2567 is the document used to charge nursing homes with deficiencies that violate applicable law. The 2567 identified each alleged deficiency by reference to a tag number. Each tag on the 2567 includes a narrative description of the allegations against Carrollwood and cites a provision of the relevant rule or rules in the Florida Administrative Code violated by the alleged deficiency. To protect the privacy of nursing home residents, the 2567 and this Recommended Order refer to the resident by a number (i.e., Resident 1) rather than by the name of the resident. AHCA must assign a class rating of I, II or III to any deficiency that it identifies during a survey. The rating reflects the severity of the identified deficiency, with Class I being the most severe and Class III being the least severe deficiency. There is one tag, Tag F324, at issue in the instant case, and, as a result of the complaint survey of June 18, 2002, AHCA assigned Tag F324 a Class I deficiency rating. Tag F324, reflecting the requirement of 42 C.F.R. Chapter 483.25(h)(2), requires a facility to ensure that each resident receives adequate supervision and assistance devices to prevent accidents. AHCA's witness, Ms. Mraz, was asked her opinion only regarding the facility's compliance with the requirements of Tag F324. She opined that Carrollwood did not provide adequate supervision and assistance devices to prevent the accidental death of Resident 1. Resident 1's first admission to Carrollwood was on March 27, 2002. He was 89 years of age at the time of his admission, weighted 118 pounds and was 5'3" in height. He did not speak English. His initial screening assessment form reflected that he suffered with both short-term and long-term memory impairment, incontinency, decubitus ulcer, prostate cancer, malnutrition, heart problems, and was determined by Carrollwood's staff to be "bedfast" (in bed not less than 22 hours per day). Resident 1's range of motion was limited to his hands, arms and legs. Even though he could make occasional slight changes in body or extremity positions, he was unable to make frequent or significant body changes independently. Resident 1 was incapable of getting out of bed on his own, had no involuntary body movements, and required two persons to physically assist him in bed mobility. He could not use a wheel chair and experienced short periods of restlessness demonstrated by crying out in Spanish, his native language. Carrollwood's Fall Risk Assessment observation indicated that Resident 1 was virtually immobile and was, therefore, a minimum risk for falls. His assessment and care plan were adequate for his condition and comfort. Resident 1 was placed in a semi-private room with his wife. A curtain between the beds separated them. Viewed from the foot of Resident 1's bed, his wife's bed would be to the left of his bed. On the right side of his bed, an upper half side rail was placed as an enabler. On April 17, 2002, three weeks after his admission, Resident 1 was discharged to the hospital due to an increase in his temperature and congestion. On April 30, 2002, he returned from the hospital and was readmitted to Carrollwood. At this time, his second admission, he was assessed by Carrollwood's staff to be in a much weaker condition than at his initial admission, with additional diagnoses of sepsis, pneumonia, psychosis, anemia, depression and malnutrition. Upon his second admission to Carrollwood, his assessment determination changed, and Resident 1 was classified as "bed-bound," as opposed to the prior assessment of bedfast, and he required extensive assistance, at least two persons to physically assist in transferring and dressing him with use of the upper bed side rail as enablers. The doctors' notes made in conjunction with the second admission did not include the use of upper side rails as in-bed enablers. The Nurse Evaluation Assessment, dated May 1, 2002, reported that Resident 1 was completely dependent on staff for all his daily living activities, i.e., bathing, grooming, dressing, feeding, and toileting, because he could not do these functions for himself. His Resident Care Plan reflected that he had a "potential for falls due to decreased cognition and physical mobility." His bed was lowered, the head of his bed was elevated, a second mattress was added, and a pneumatic call bell was attached. With knowledge of his updated medical history and further weakened condition, the nursing staff made an independent decision to use one upper bed side rail on Resident 1's bed. The staff had received a Food and Drug Administration alert regarding potential dangers resulting from the use of side rails as recently as February 2002, and had participated in in- service training sessions concerning the use of side rails. AHCA presented no evidence of authoritative directives for "the care giver's use of side rails" in long-term care facilities. There was no evidence of statutory proscriptions, rules or accepted industry standards relating to the use of side rails in long-term care facilities. Therefore, each long-term care facility, including Carrollwood, may independently determine when, where, how and under what circumstances bed side rails will be used. Thus, AHCA's evidence of record affords no substantial basis to support its allegation that Carrollwood's decision to use an upper side rail on Resident 1's bed demonstrated a lack of adequate supervision that would cause or tend to cause immediate harm and/or death to Resident 1. Marie Gianan, RN and MDS Coordinator for Carrollwood, which included coordination of assessments and care planning since July 2000, determined that Resident 1's April 17, 2002, transfer to the hospital was a "complete discharge" from Carrollwood. According to Ms. Gianan, Carrollwood's policy, as she understands it, is that once a resident is completely discharged, his or her medical records go to medical storage. Thus, Resident 1's return on April 30, 2002, was considered and treated as a new admission requiring an original initial assessment, a new care plan and 30 days thereafter, preparation of a new MDS. The procedure, as understood by Ms. Gianan, was to not consider Resident 1's old medical records, old care plans, and old MDS, but rather to start anew based upon staff's observations, inquiries, and a check and review of current medical records and, thereafter, formulate an assessment and initial care plan within 24 hours of admission. The MDS would follow within 30 days after completion of the initial care plan. Resident 1's April 2, 2002, care plan and fall risk assessment, indicated the following: skin problems that required repositioning him in bed every two hours; bath to be given on shower day or twice weekly; dehydration requiring liquids every night; placing his bed in a low position to prevent falls due to his decreased physical mobility; providing a pneumatic call bell; and using one upper side rail as an enabler placed on his bed. The care plan for Resident 1 met all requirements and does not indicate nor support an allegation of lack of supervision or inadequate care. Ms. Gianan was adamant that Resident 1, although maybe weaker in body strength than before his discharge on May 8, 2002, was "mobile," per her interpretation of the word on his April 2, 2002, admission. She disagreed with the March 27, 2002, assessment of Resident 1 as being "immobile." Ms. Gianan has opined that, "immobile means you do not move in bed--you just stay in the position that you are put in--I do not agree with that evaluation." Carrollwood's policy permits its MDS Coordinator to independently evaluate, assess, interview and otherwise determine the status and condition of each resident. On May 5, 2002, the date of Resident 1's death, at approximately 6:45 a.m., Ann Nickerson, certified nursing assistant (CNA), entered Resident 1's room to empty his catheter. During this process, Resident 1 cried out in Spanish. His wife, awaken by the activity and Resident 1's cry, said to Ms. Nickerson "he is alright," and Ms. Nickerson completed her task and departed the room. An hour and one-half later, at approximately 8:15 a.m., Jermaine Martinez, CNA, entered Resident 1's room with his breakfast tray. Mr. Martinez found Resident 1 on the floor with his clothing pulled upward around his torso. His head was wedged between the bed's upper side rail and the mattress, with his chin resting upward against the upper side rail, thereby hyperextending his neck. Resident 1 had no pulse or respiration when found by Mr. Martinez. The Hillsborough County Medical Examiner, in an amended1 death certificate, listed Resident 1's cause of death as positional asphyxiation; the result of a lack of oxygen due to the position of his head wedged between the bed mattress and the upper side rail and hyperextension of his neck. Within a few minutes of the discovery of Resident 1 on the floor by the Mr. Martinez, Resident 1's family entered the facility for a visit and was stopped in the hall by the duty nurse who informed them of his death. During that brief period, and following the instructions given by the duty nurse, Mr. Martinez and Ms. Nickerson moved the body of Resident 1 from the floor and placed him back in his bed, pulling the cover up to his chin. Thereafter, staff contacted Carla Russo, director of nursing, for further instructions. Following instructions, staff called and released Resident 1's body to the funeral home without first notifying the Hillsborough County Medical Examiner. Because of this action, in violation of policy, no autopsy was performed on the body. It is undisputed that the facility's failure to immediately notify the Hillsborough County Medical Examiner of Resident 1's death constituted a violation of the facility's own policy and procedures regarding the death of residents at the facility. AHCA did not cite the facility for this particular facility policy violation. Therefore, there is no evidence to support an allegation of lack of supervision or inadequate care for this policy violation. Based upon the care plan, nurse's notes, and medical records, it is undisputed that staff visited Resident 1's room an average of every two and one-half hours, if not more often, to provide medications and to attend the personal needs for both Resident 1 and his wife, during each 24-hour period from April 2, 2002, to May 5, 2002. During those staff visits, while attending one occupant, staff would, could and did observe the other occupant. During those frequent room visits during the 24-hour period preceding Resident 1's demise, staff had not observed him to be restless or to independently move his body about in his bed. There is no evidence that Resident 1 was not under staff's observation, and, by implication, not under staff's supervision for any overly long period or an extended period of time of more than two and one-half hours during the April 2, 2002, through May 5, 2002, time period. The evidence does not indicate or support an allegation of lack of supervision or inadequate care by the facility. From all medical records in evidence, it is clear that during his residency in the facility, Resident 1 never exhibited the type of behaviors that would indicate to staff he was a risk for falls; he had no recorded prior history of falls at home, at the hospital or at Carrollwood, he did not use a wheelchair and he could not independently ambulate. He was never observed by staff attempting to get out of bed, and his only infrequent and occasional expressions of restlessness were "crying out" in Spanish. The evidence of record does not indicate or support an allegation of lack of supervision or inadequate care by the facility. AHCA presented no evidence of sufficient reliability to provide a plausible foundation upon which to conclude that the cause of Resident 1 moving from his bed-bound prone position to a sitting position on the floor with his neck wedged between the upper side rail and the bed mattress was due to a lack of supervision or inadequate care by the facility's staff. The evidence supports a plausible conclusion that Resident 1's demise, although inexplicable from the evidence of record, was nonetheless accidental.
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 dismissing in its entirety the Administrative Complaints filed in this cause. DONE AND ENTERED this 27th day of March, 2003, in Tallahassee, Leon County, Florida. FRED L. BUCKINE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of March, 2003.
