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 As stated in the Prehearing Stipulation filed by the parties, the "issue to be litigated is whether Petitioner is entitled to a Superior or Standard rating on its license for the period September 1, 1986 through August 31, 1987"?
Findings Of Fact The Petitioner, The Magnolias Nursing and Convalescent Center, is a 210-bed nursing home located in a four-story building in Pensacola, Florida. It is licensed as a nursing home by the State of Florida pursuant to Chapter 400, Florida Statutes. Howard Bennett and his wife have been the owners of the Petitioner since it was built in 1978. On April 28-30, 1986, and May 1-2, 1986, the Department conducted an annual Licensure and Certification survey (hereinafter referred to as the "Annual Survey") of the Petitioner's nursing home as required by Section 400.23, Florida Statutes. Based upon the Annual Survey conducted by the Department, the Department determined that the Petitioner's facility failed to meet nursing home licensure requirement numbers (NH) 100 and 102, as identified on the Department's Nursing Home Licensure Survey Report, DHRS exhibit 2. The deficiencies found by the Department and which in fact existed during the Annual Survey relating to NH 100 and 102 were as follows: The charge nurse for each shift on each of the four floors of the facility is responsible, under direction from Director of Nursing, for the total nursing activities in the facility during each tour of duty. The charge nurses are thus responsible for ensuring that nursing personnel carry out the direct nursing care needs of specific patients and assist in carrying out these nursing care needs. This responsibility is not always met in that: On the day of the survey, there were urine odors noted on the halls, rooms of fourth and third floors, indicating lack of attention by nursing. Other instances of lack of personal attention by nursing on the above mentioned floor in that: One patient required oral hygiene. Fourteen residents required fingernail care, one resident's fingernails were long, thick, and black indicating a need for attention. Two residents had redden buttocks, three residents were wet, three residents needed shaving, three residents needed hair cuts. One resident needed colostomy bag changed. One resident had a small amount of feces on backside, and was not properly cleaned around the rectum and scrotum. Several residents had on clothing that was too tight, zippers open, buttons not fasten, soil wrinkled and threads hanging around the bottom. It is also noted, that there are 116 total care, and 17 self care residents in the facility indicating a need for constant intensive nursing care to the residents. Ref. 10D-29.108(3)(d)(1) Based upon the totality of these deficiencies, it was concluded that the Petitioner failed to comply with the standard of care to be provided by the charge nurse. The deficiencies cited by the Department during the Annual Survey were classified as Class III deficiencies. The Annual Survey was conducted by Christine Denson. Ms. Denson had conducted nine to ten annual surveys of the Petitioner prior to the survey which is the subject of this proceeding. During Ms. Denson's inspection of the Petitioner's nursing home, Ms. Denson pointed out the deficiencies which are noted above to the director of nursing who accompanied Ms. Denson during her inspection. Ms. Denson normally records in some manner the identity of a resident to whom a deficiency relates; by noting the room number or bed number. Ms. Denson did not follow this procedure during the Annual Survey. Ms. Denson met with Howard Bennett, the owner of the Petitioner, at the conclusion of the Annual Survey. After Ms. Denson had explained the deficiencies she had found during her inspection, Judge Bennett stated to Ms. Denson: "I know the place is going down hill. We are letting it slide. Judge Bennett did not ask Ms. Denson for any information concerning the identity of the residents to which deficiencies related. The Petitioner had policies in effect at the time of the Annual Survey which addressed each of the deficiencies cited by the Department. Those policies were not, however, followed. Ms. Denson did not know when the residents to which the deficiencies she found related had been admitted to the Petitioner, their medical condition, how long the fingernail problems had existed or how long the residents had resided at the Petitioner. Ms. Denson did not speak to the residents about the problems she noted, review their medical or dental records or talk to any residents' physician. Finally, Ms. Denson did not remember whether any of the residents were continent or incontinent. On August 13, 1986, a letter was issued by the Department informing the Petitioner that its license rating was being converted from a superior rating to a standard rating. The August 13, 1986, letter from the Department also indicated that the deficiencies noted in the Annual Survey had been corrected based upon a July 31, 1986, follow-up inspection conducted by the Department. The Petitioner requested an administrative hearing challenging the proposed rating of its license by letter dated September 24, 1986.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued assigning a standard rating on the Petitioner's license for the period September 1, 1986, through August 31, 1987. DONE and ENTERED this 19th day of October, 1988, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of October, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4182 The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Accentance or Reason for Rejection 1-3, 6-7, 81 These are matters included in the Prehearing Stipulation. They are hereby accepted. 4-5 Statement of the issue in this case 8 Not supported by the weight of the evidence. Ms. Denson testified at pages 48-49 of the transcript that whether a nursing home was considered to be out of compliance depended on the totality of the deficiencies and that she considered all of the deficiencies she found at the Petitioner's facility. 9 12. 10-11 10. 12-13 7. 14 Irrelevant. 15-16, 19-20, 22-23, 25, 29-31 10. 17 Hearsay. 18, 28, 33-34, 36-37, 39, 41-43, 45 Hereby accepted. 21, 24, 26-27, 32, 48, 54-66, 71, 73-77 These proposed findings of fact are generally true. They all involve, however, possible explanations for the deficiencies found at the Petitioner's facility. In order for these proposed findings of fact to be relevant it would have to be concluded that the Department had the burden of dispelling any and all possible explanations for the deficiencies. Such a conclusion would not be reasonable in this case. The Department presented testimony that the deficiencies cited existed and that, taken as a whole, they supported a conclusion that the Petitioner was not providing minimum nursing care. This evidence was credible and sufficient to meet the Department's burden of proof and to shift the burden to the Petitioner to provide proof of any explanations for the deficiencies. 35 9. 38, 40, 49-51, 53, 82-83, 86-87 Irrelevant and/or argument. 43-44 1. 46-47, 51, 56, 66-67, 71-71 These proposed findings of fact are true. They are not relevant to this proceeding, however, because they involve situations at the Petitioner's facility which may explain the deficiencies. The Petitioner failed to prove that they actually were the cause of any of the deficiencies. 70, 78-80, 84-85 Conclusions of law. The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 2-3. 2 11-12. 3 4 and 6. 4 4. 5-7 Irrelevant, summary of testimony, conclusion of law. 8 9. 9 8. 10 Irrelevant. 11 8. 12 Summary of testimony and facts relating to the weight of Ms. Mayo's testimony. 13-14 Hereby accepted. 15 Argument. 16-17 Conclusions of law. 18 4. 19-20 Conclusions of law, argument and irrelevant. COPIES FURNISHED: Jonathan S. Grout, Esquire Dempsey & Goldsmith, P.A. Post Office Box 10651 Tallahassee, Florida 32302 Michael O. Mathis Staff Attorney Office of Licensure and Certification Department of Health and Rehabilitative Services 2727 Mahan Drive Tallahassee, Florida 32308 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact The Petitioner owns property in Dade County, Florida, located at 47 Northwest 32nd Place, Miami, Florida. Improvements have been erected on the property. The Petitioner leases the property and improvements to Flordean Nursing Home, Inc., a Florida corporation. The corporation operates a skilled nursing home on the premises, and pays a monthly rent of five hundred dollars to the Petitioner for the exclusive occupation of the property and improvements. The Petitioner is the president and majority stockholder of the corporation, and the administrator of the nursing home. The nursing home is licensed by the Florida Department of Health and Rehabilitative Services. The corporation provides extended care treatment and skilled nursing home services to its clients or patients. The clients pay a single charge for the services which include a room, nursing care, laundry, meals, activities, and medical attentions. Activities include movies, religious services, birthday and other holiday celebrations, and similar functions. The corporation does not and has never simply rented a room to any client. The nursing home is a commercial venture for profit, and it in fact makes a profit. The average age of the nursing home guests is 84. Typically they are admitted through physicians. They become permanent residents. They receive their mail at the home and typically do not leave until they die. The average stay is three years, five months. At the time of hearing the nursing home housed 52 guests in 19 rooms. The rooms are private, semiprivate and three in a room. The petitioner applied for a certificate of registration from the Florida Department of Revenue in June, 1968. The certificate was issued under sales tax number 23-08-102316-82. The Petitioner has paid sales taxes on the monthly rental payments that she has received from the corporation. She is seeking a refund of these taxes for the period from March 1, 1972 through and including May 30, 1978. The corporation does not collect sales taxes from the nursing home guests.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby, RECOMMENDED: That the Respondent enter a final order denying the petitioner's refund application. DONE and ORDERED this 9th day of January, 1979, in Tallahassee, Florida. G. STEVEN PFEIFFER, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Joseph C. Mellichamp, III, Assistant Attorney General The Capitol, Rm. LL04 Tallahassee, Florida 32304 Jack R. Rice, Jr., Esquire P. O. Box 350838 2424 N. W. First Street Miami, Florida 33135
The Issue The issues for determination are: (1) whether the noncompliance as alleged during the August 30, 2001, survey and identified as Tags F324 and F242, were Class II deficiencies; (2) whether the "Conditional" licensure status, effective August 30, 2001, to September 30, 2001, based upon noncompliance is appropriate; and (3) whether a fine in the amount of $5,000 is appropriate for the cited noncompliance
Findings Of Fact Charlotte is a nursing home located at 5405 Babcock Street, Northeast, Fort Myers, Florida, with 180 residents and is duly licensed under Chapter 400, Part II, Florida Statutes. AHCA is the state agency responsible for evaluating nursing homes in Florida pursuant to Section 400.23(7), Florida Statutes. As such, in the instant case it is required to evaluate nursing homes in Florida in accordance with Section 400.23(8), Florida Statutes (2000). AHCA evaluates all Florida nursing homes at least every 15 months and assigns a rating of standard or conditional to each licensee. In addition to its regulatory duties under Florida law, AHCA is the state "survey agency," which, on behalf of the federal government, monitors nursing homes that receive Medicaid or Medicare funds. On August 27 through 30, 2001, AHCA conducted an annual survey of Charlotte's facility and alleged that there were deficiencies. These deficiencies were organized and described in a survey report by "Tags," numbered Tag F242 and Tag F324. The results of the survey were noted on an AHCA form entitled "Statement of Deficiencies and Plan of Correction." The parties refer to this form as the HCFA 2567-L or the "2567." The 2567 is the document used to charge nursing homes with deficiencies that violate applicable law. The 2567 identified each alleged deficiency by reference to a Tag number. Each Tag on the 2567 includes a narrative description of the allegations against Charlotte and cites a provision of the relevant rule or rules in the Florida Administrative Code violated by the alleged deficiency. To protect the privacy of nursing home residents, the 2567 and this Recommended Order refer to each resident by a number (i.e., Resident 24) rather than by the name of the resident. AHCA must assign a class rating of I, II or III to any deficiency that it identifies during a survey. The ratings reflect the severity of the identified deficiency, with Class I being the most severe and Class III being the least severe deficiency. There are two Tags, F242 and F324 at issue in the instant case, and, as a result of the August 2001 survey, AHCA assigned each Tag a Class II deficiency rating and issued Charlotte a "Conditional" license effective August 30, 2001. Tag F242 Tag F242 generally alleged that Charlotte failed to meet certain quality of life requirements for the residents, based on record review, group interviews, and staff interviews, and that Charlotte failed to adequately ensure that the residents have a right to choose activities that allow them to interact with members of the community outside the facility. On or about August 24, 2001, AHCA's surveyors conducted group interviews. During these interviews, 10 of 16 residents in attendance disclosed that they had previously been permitted to participate in various activities and interact with members of the community outside the facility. They were permitted to go shopping at malls, go to the movies, and go to restaurants. Amtrans transportation vans were used to transport the residents to and from their destinations. The cost of transportation was paid by Charlotte. An average of 17 to 20 residents participated in those weekly trips to dine out with other community members at the Olive Garden and other restaurants. During those trips, Charlotte would send one activity staff member for every four to six residents. The record contains no evidence that staff nurses accompanied those select few residents on their weekly outings. The outings were enjoyed by those participants; however, not every resident desired or was able to participate in this particular activity. Since 1985, outside-the-facility activities had been the facility's written policy. However, in August 2000, one year prior to the survey, Matthew Logue became Administrator of the facility and directed his newly appointed Activities Director, Debbie Francis, to discontinue facility sponsored activities outside the facility and in its stead to institute alternative activities which are all on-site functions. Those residents who requested continuation of the opportunity to go shopping at the mall or dine out with members of the community were denied their request and given the option to have food from a restaurant brought to the facility and served in-house. The alternative provided by the facility to those residents desiring to "interact with members of the community outside the facility" was for each resident to contact the social worker, activity staff member, friends or family who would agree to take them off the facility's premises. Otherwise, the facility would assist each resident to contact Dial-A-Ride, a transportation service, for their transportation. The facility's alternative resulted in a discontinuation of all its involvement in "scheduling group activities" beyond facility premises and a discontinuation of any "facility staff members" accompanying residents on any outing beyond the facility's premises. As described by its Activities Director, Charlotte's current activities policy is designed to provide for residents' "interaction with the community members outside the facility," by having facility chosen and facility scheduled activities such as: Hospice, yard sales, barbershop groups for men and beautician's day for women, musical entertainment, antique car shows, and Brownie and Girl Guides visits. These, and other similar activities, are conducted by "community residents" who are brought onto the facility premises. According to the Activities Director, Charlotte's outside activities with transportation provided by Amtrans buses were discontinued in October of 2000 because "two to three residents had been hurt while on the out trip, or on out-trips."1 Mr. Logue's stated reason for discontinuing outside activities was, "I no longer wanted to take every member of the activities department and send them with the resident group on an outing, thereby leaving the facility understaffed with activities department employees." The evidence of record does not support Mr. Logue's assumption that "every member of the facility's activities department accompanied the residents on any weekly group outings," as argued by Charlotte in its Proposed Recommended Order. Charlotte's Administrator further disclosed that financial savings for the facility was among the factors he considered when he instructed discontinuation of trips outside the facility. "The facility does not sponsor field trips and use facility money to take people outside and too many staff members were required to facilitate the outings." During a group meeting conducted by the Survey team, residents voiced their feelings and opinions about Charlotte's no longer sponsoring the field trips on a regular basis in terms of: "feels like you're in jail," "you look forward to going out," and being "hemmed in." AHCA's survey team determined, based upon the harm noted in the Federal noncompliance, that the noncompliance should be a State deficiency because the collective harm compromised resident's ability to reach or maintain their highest level of psychosocial well being, i.e. how the residents feel about themselves and their social relationships with members of the community. Charlotte's change in its activities policy in October of 2000 failed to afford each resident "self- determination and participation" and does not afford the residents the "right to choose activities and schedules" nor to "interact with members of the community outside the facility." AHCA has proved the allegations contained in Tag F242, that Charlotte failed to meet certain quality of life requirements for the residents' self-determination and participation. By the testimonies of witnesses for AHCA and Charlotte and the documentary evidence admitted, AHCA has proven by clear and convincing evidence that Charlotte denied residents the right to choose activities and schedules consistent with their interests and has failed to permit residents to interact with members of the community outside the facility. Tag F324 As to the Federal compliance requirements, AHCA alleged that Charlotte was not in compliance with certain of those requirements regarding Tag F324, for failing to ensure that each resident receives adequate supervision and assistance devices to prevent accidents. As to State licensure requirements of Sections 400.23(7) and (8), Florida Statutes (2000), and by operation of Florida Administrative Code, Rule 59A-4.1288, AHCA determined that Charlotte had failed to comply with State established rules, and under the Florida classification system, classified Tag F324 noncompliance as a Class II deficiency. Based upon Charlotte's patient record reviews and staff interviews, AHCA concluded that Charlotte had failed to adequately assess, develop and implement a plan of care to prevent Resident 24 from repeated falls and injuries. Resident 24 was admitted to Charlotte on April 10, 2001, at age 93, and died August 6, 2001, before AHCA's survey. He had a history of falls while living with his son before his admission. Resident 24's initial diagnoses upon admission included, among other findings, Coronary Artery Disease and generalized weakness, senile dementia, and contusion of the right hip. On April 11, 2001, Charlotte staff had Resident 24 evaluated by its occupational therapist. The evaluation included a basic standing assessment and a lower body assessment. Resident 24, at that time, was in a wheelchair due to his pre-admission right hip contusion injury. On April 12, 2001, two days after his admission, Resident 24 was found by staff on the floor, the result of an unobserved fall, and thus, no details of the fall are available. On April 23, 2001, Resident 24 was transferred to the "secured unit" of the facility. The Survey Team's review of Resident 24's Minimum Data Set, completed April 23, 2001, revealed that Resident 24 required limited assistance to transfer and to ambulate and its review of Resident 24's Resident Assessment Protocols (RAPs), completed on April 23, 2001, revealed that Resident 24 was "triggered" for falls. Charlotte's RAP stated that his risk for falls was primarily due to: (1) a history of falls within the past 30 days prior to his admission; (2) his unsteady gait; (3) his highly impaired vision; and (4) his senile dementia. On April 26, 2001, Charlotte developed a care plan for Resident 24 with the stated goal that the "[r]esident will have no falls with significant injury thru [sic] July 25, 2001," and identified those approaches Charlotte would take to ensure that Resident 24 would not continue falling. Resident 24's care plan included: (1) place a call light within his reach; (2) do a falls risk assessment; (3) monitor for hazards such as clutter and furniture in his path; (4) use of a "Merry Walker" for independent ambulation; (5) placing personal items within easy reach; (6) assistance with all transfers; and (7) give Resident 24 short and simple instructions. Charlotte's approach to achieving its goal was to use tab monitors at all times, to monitor him for unsafe behavior, to obtain physical and occupational therapy for strengthening, and to keep his room free from clutter. All factors considered, Charlotte's care plan was reasonable and comprehensive and contained those standard fall prevention measures normally employed for residents who have a history of falling. However, Resident 24's medical history and his repeated episodes of falling imposed upon Charlotte a requirement to document his records and to offer other assistance or assistive devices in an attempt to prevent future falls by this 93-year-old, senile resident who was known to be "triggered" for falls. Charlotte's care plan for Resident 24, considering the knowledge and experience they had with Resident 24's several falling episodes, failed to meet its stated goal. Charlotte's documentation revealed that Resident 24 did not use the call light provided to him, and he frequently refused to use the "Merry Walker" in his attempts of unaided ambulation. On June 28, 2001, his physician, Dr. Janick, ordered discontinuation of the "Merry Walker" due to his refusal to use it and the cost involved. A mobility monitor was ordered by his physician to assist in monitoring his movements. Charlotte's documentation did not indicate whether the monitor was actually placed on Resident 24 at any time or whether it had been discontinued. Notwithstanding Resident 24's refusal to cooperatively participate in his care plan activities, Charlotte conducted separate fall risk assessments after each of the three falls, which occurred on April 12, May 12, and June 17, 2001. In each of the three risk assessments conducted by Charlotte, Resident 24 scored above 17, which placed him in a Level II, high risk for falls category. After AHCA's surveyors reviewed the risk assessment form instruction requiring Charlotte to "[d]etermine risk category and initiate the appropriate care plan immediately," and considered that Resident 24's clinical record contained no notations that his initial care plan of April 23, 2001, had been revised, AHCA concluded that Charlotte was deficient. On May 13, 2001, Dr. Janick visited with Resident 24 and determined that "there was no reason for staff to change their approach to the care of Resident 24." Notwithstanding the motion monitors, on June 17, 2001, Resident 24 fell while walking unaided down a corridor. A staff member observed this incident and reported that while Resident 24 was walking (unaided by staff) he simply tripped over his own feet, fell and broke his hip. Charlotte should have provided "other assistance devices," or "one-on-one supervision," or "other (nonspecific) aids to prevent further falls," for a 93-year-old resident who had a residential history of falls and suffered with senile dementia. Charlotte did not document other assistive alternatives that could have been utilized for a person in the condition of Resident 24. AHCA has carried its burden of proof by clear and convincing evidence regarding the allegations contained in Tag F324.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Agency enter a final order upholding the assignment of the Conditional licensure status for the period of August 30, 2001 through September 30, 2001, and impose an administrative fine in the amount of $2,500 for each of the two Class II deficiencies for a total administrative fine in the amount of $5,000. DONE AND ENTERED this 13th day of February, 2003, in Tallahassee, Leon County, Florida. FRED L. BUCKINE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of February, 2003.
Findings Of Fact During the months of June and July, 1987, Respondent Convalescent Services of Venice, Inc., operated Pinebrook Place Health Care Center in Venice, Florida. On or about June 19, 1987, Rev. Spittal, then the licensed Administrator of the facility, submitted his emergency resignation in order to assume administration of another facility to which he was obligated to give guidance. He immediately notified the Regional Director of the Respondent corporation, Mr. Rick Winkler, who was himself a licensed health care administrator in Florida. As Regional Director, with the responsibility for supervising five nursing homes and one retirement center, Mr. Winkler had his office in the Pinebrook Place facility. Mr. Winkler's license was physically located at Respondent corporation's other facility, Lakeside Nursing Home in Naples, Florida. Mr. Winkler had been the Administrator of that facility prior to becoming Regional Director, and because the incumbent administrator, Ms. Harnish, was newly licensed, and because an administrator in training, Ms. Cox, was undergoing training at that facility, he left his license at the Lakeside facility when he moved to Pinebrook to become Regional Director. Upon the departure of Rev. Spittal, Mr. Winkler immediately assumed administration of the Pinebrook facility, fulfilling all the functions of the administrator and advising the staff that he had done so. In addition, he immediately entered into a contract with Ms. Joyce A. Coleman, a licensed nursing home administrator, to assume the position of Administrator of Pinebrook Place effective July 13, 1987. Thereafter, between Rev. Spittal's departure on June 19 and Ms. Coleman's arrival on July 13, 1987, Mr. Winkler was the Administrator of Pinebrook Place Health Care Center. A licensed assistant administrator was not employed at Pinebrook during that period. On June 30, 1987, Mr. Dowless, an investigator for HRS Office of Licensure and Certification, pursuant to a report filed by a discharged former employee at Pinebrook, visited the facility to determine if the allegation made that Pinebrook was operating without a licensed administrator was true. That day in question, Mr. Winkler was absent from the facility attending the opening of the Respondent corporation's newest facility. When Mr. Dowless arrived he spoke with the acting Administrator In Charge, the chief nurse to whom Mr. Winkler supposedly gave a letter of authority in writing to assume supervision in his absence, and after an inspection of the facility, concluded that the Respondent corporation was in violation of the law. This was because Mr. Winkler, though a licensed nursing home administrator, had his license physically located at Lakeside and he failed to have an Assistant Administrator under his supervision at the Pinebrook facility. This information was telephonically reported to Mr. Winkler who called Mr. Dowless by telephone later that day. The discussion was somewhat heated. Because he was unable to convince Mr. Dowless of the fact that he was the administrator at that facility, Mr. Winkler placed a telephone call to Mr. Richard Reysen, a Deputy Director of the Office of Licensure and Certification. During this conversation, Mr. Winkler explained his licensure situation and was led to believe that the situation was acceptable so long as he would have his license physically removed from Lakeside to Pinebrook. He did this and took no further action. Considering the matter closed, he was somewhat surprised when a citation was subsequently issued by Petitioner levying a fine of $1300. The fine was $100 per day for each day of the alleged violation.
Recommendation Based on the foregoing findings of fact and conclusions of laws it is therefore: RECOMMENDED that the Administrative Complaint filed in this case against the Respondent, Convalescent Services of Venice, Inc. d/b/a Pinebrook Place Health Care Center be DISMISSED. RECOMMENDED in Tallahassee this 16th day of June, 1988. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 FILED with the Clerk of the Division of Administrative Hearings this 16th day of June, 1988. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. By the Petitioner 1 - 2. Accepted. Accepted and incorporated herein. Irrelevant. Respondent is not cited for this alleged violation. Accepted and incorporated herein. 6 - 10. Accepted and incorporated herein. 11. Irrelevant. 12 - 13. Accepted and incorporated herein. By the Respondent Accepted and incorporated herein. Accepted and incorporated herein. Accepted and Incorporated herein. 4 - 5. Accepted and incorporated herein. Accepted and incorporated herein. Rejected as a synopsis of testimony, not a finding of fact. Irrelevant. COPIES FURNISHED: ANTHONY DELUCCIA, ESQUIRE DISTRICT VIII LEGAL COUNSEL P. O. BOX 06085, SUITE 110 FT. MYERS, FLORIDA 33906 R. BRUCE MCKIBBEN, JR., ESQUIRE P. O. BOX 10651 TALLAHASSEE, FLORIDA 32302 GREGORY L. COLER, SECRETARY DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES 1323 WINEWOOD BOULEVARD TALLAHASSEE, FLORIDA 32399-0700 R. S. POWER, AGENCY CLERK DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES 1323 WINEWOOD BOULEVARD TALLAHASSEE, FLORIDA 32399-0700
The Issue Whether Respondent failed to protect one of the residents of its facility from sexual coercion. Whether Respondent failed to report the alleged violation immediately to the administrator.
Findings Of Fact Petitioner is the state agency charged with licensing and regulating nursing homes in Florida, under state and federal statutes. Respondent is a licensed nursing facility located in Orlando, Florida. Respondent is a small not-for-profit facility, overseen by a voluntary board of directors. Resident 2 is a Hispanic male, 57 years of age, who speaks English and Spanish fluently. He was a self-admitted resident at Respondent's nursing home facility during the relevant time period. Respondent is a small, not-for-profit facility, overseen by a voluntary board of directors. Respondent receives its funds to operate through various types of sources such as United Way, City of Orlando, Orange County, and many foundations. At all times material hereto, Petitioner is the state agency charged with licensing of nursing homes in Florida and the assignment of a licensure status. The statute charges Petitioner with evaluating nursing home facilities to determine their degree of compliance with established rules as a basis for making the required licensure assignment. Additionally, Petitioner is responsible for conducting federally mandated surveys of those long-term care facilities receiving Medicare and Medicaid funds for compliance with federal statutory and rule requirements. These federal requirements are made applicable to Florida nursing home facilities. Pursuant to the statute, Petitioner must classify deficiencies according to the nature and scope of the deficiency when the criteria established under the statute are not met. The classification of any deficiencies discovered is determinative of whether the licensure status of a nursing home is "standard" or "conditional." The evaluation, or survey, of a facility includes a resident review and, depending upon the circumstances, may consist of record reviews, resident observations, and interviews with family and facility staff. Surveyors note their findings on a standard prescribed Center for Medicare and Medicaid Services Form 2567, titled "Statement Deficiencies and Plan of Correction" and is commonly referred to as a "2567" form. During the survey of a facility, if violations of regulations are found, the violations are noted and referred to as "Tags." A "Tag" identifies the applicable regulatory standard that the surveyors believe has been violated, provides a summary of the violation, sets forth specific factual allegations that they believe support the violation and indicates the federal scope and severity of the noncompliance. Agency surveyors use the "State Operations' Manual," a document prepared by the U.S. Department of Health and Human Services, Center for Medicare and Medicaid Services, as guidance in determining whether a facility has violated 42 Code of Federal Regulations (C.F.R.), Chapter 483. In March 2003, Petitioner conducted a survey to investigate a complaint that Respondent failed to protect a resident from sexual coercion. The allegation of the deficient practice was based upon an incident involving Resident 2. Pursuant to 42 C.F.R. Section 483.13(b), a nursing facility must assure that a resident has the right to be free from verbal, sexual, and mental abuse. Failure to do so constitutes a deficiency under Florida Statutes. At hearing, Petitioner presented the testimony of Jane Woodson, nursing program specialist, employed by Petitioner. Woodson testified that she does state and federal surveys in both state and federal licensure and federal institutions to identify or define any noncompliance. She visited Respondent's facility on or about March 26, 2003, and prepared a 2567 form based on her observations, interviews, and record review. It details the results of her investigation, including her interviews with the director of nursing, the administrator, the social worker, the compliance officer, a licensed practical nurse (LPN), and the assistant director of nursing. She also toured the total facility, observed its residents and also observed Resident 2. Woodson observed that Resident 2 was a well-dressed, alert male, and she spoke to him about the incident on March 15, 2003. Woodson did not have an interpreter present at any time when she interviewed Resident 2, nor did she consider it necessary to do so. At no time did she have any concern that Resident 2 was not mentally competent to understand her when she interviewed him. Woodson was not aware that Resident 2 signed his own financial responsibility forms, patient's rights statement, or that he voluntarily checked himself into the facility. She was not aware that Resident 2 made his own medical decisions in the facility. Following her investigation, Woodson conducted an exit interview with the administrator, the director of nursing, the assistant director of nursing, the social worker, and the compliance offer. Woodson included in her report a document filled out by Sharon Ebanks (Ebanks), registered nurse (RN), but she did not personally interview Ebanks. She also did not interview Marilyn Harrilal, LPN, nor did she interview the employee involved in the incident. She advised the administrator of her finding a Class II deficiency and provided a correction date of April 17, 2003. She also concluded that this was an isolated incident. Ebanks was the weekend charge nurse on March 15, 2003, and was in charge of the facility on that date. Ebanks was working on the north wing when she was called by Mr. Daniels, a LPN working on the south wing. Daniels told Ebanks about the alleged incident between Resident 2 and the staff person. Ebanks then called Resident 2; the employee, Marcia Dorsey (Dorsey); and the certified nursing assistants (CNAs), Ms. Polysaint and Ms. Mezier (first names not in the record), who had witnessed the incident, to the green room. She also asked Harrilal to act as a witness to her interviews with the individuals involved. Ebanks first spoke to Resident 2 and Dorsey, both of whom stated that nothing had happened. She then questioned the two CNAs about what they had witnessed. Ebanks concluded, after interviewing both the participants and the witnesses, that the incident was not abuse, but rather, was inappropriate behavior on the part of both Resident 2 and the employee. She based this conclusion on the fact that Dorsey is a trainable Dows Syndrome individual, who was supposed to be working when the incident occurred. Ebanks concluded that Resident 2 had not been abused or hurt in any manner and had participated voluntarily. Ebanks noted that Resident 2 makes his own medical decisions, is considered to be mentally competent, has never been adjudicated mentally incompetent and has not had a legal guardian appointed for him. Ebanks concluded that Resident 2 had not been abused. Ebanks testified that she completed a Resident Abuse Report on March 20, 2003, concerning the incident, after being asked to do so by Respondent's compliance officer. The resident abuse report was admitted into evidence as Respondent's Exhibit 1. At the time of the initial investigation of the incident, Ebanks asked Harrilal to accompany her to the green room. While there, Harrilal listened as Ebanks first questioned Resident 2 and then Dorsey. Both stated that nothing happened. Harrilal then witnessed Ebanks question the CNAs, Polysaint and Mezier. Woodson did not interview Harrilal during her investigation. Ann Campbell, RN, a nurse for more than 38 years, was functioning in the role of assistant director of nursing on March 15, 2003. She was not in the facility on that day and was not made aware of the incident on the date of its occurrence, but became aware when she returned to work. Campbell is familiar with Resident 2. He was initially admitted with a diagnosis of alcohol abuse and dementia. She observed that he was a little confused and forgetful when first admitted, but has since became more alert and responsive. Michael Annichiarico, administrator of the facility and custodian of records, including medical records and personnel files, reviewed the personnel file of the employee, Dorsey. There were no disciplinary actions or counseling prior to the incident of March 15, 2003. Annichiarico is familiar with Resident 2 and has interacted with him. Annichiarico testified that, according to the resident's medical record, Resident 2 has never been declared mentally incompetent and that he makes his own medical and financial decisions. The Progress Note of Gideon Lewis, M.D., dated October 9, 2003, with transcription, was admitted into evidence as Respondent's Exhibit 2 and indicates that Resident 2 is mentally competent and is responsible for his actions as his cognitive functions are intact. Patricia Collins, RN, testified as an expert in the areas of nursing, long-term care, nursing home rules and regulations, and survey procedures. Collins is a RN, currently working in consulting work. She reviewed documents related to the incident. She went to the facility on two different occasions and interviewed the staff. She also reviewed the documents contained in the report of Woodson's survey. Collins interviewed the two CNAs, Ebanks, Resident 2, the medical records custodian, the director of nursing, the social worker, and Harrilal. She spent approximately four to five hours in the facility. After speaking with Resident 2, Collins concluded that he was cognitively intact and very alert. He appeared to be mentally competent. Before interviewing Resident 2, Collins reviewed his resident chart and the documents used to sign himself into the facility. She also reviewed physician's orders for medication, progress notes, nurses' notes, the MDS and the care plan. Collins testified that she reviewed the resident's financial responsibility statement and patient's rights statement, both of which were signed by the resident himself. The resident had no legal guardian. Collins concluded that during the incident of March 15, 2003, there was some inappropriate behavior that needed to be addressed and that this behavior was properly addressed by staff. The inappropriate behavior was the observation of hugging and kissing between Dorsey and Resident 2 in an empty resident's room while the employee was on duty. Collins was of the opinion that the behavior was mutual and not abuse. Collins found no reason to conclude that any harm had been done to Resident 2. Collins testified that a nursing home resident has the right to associate with whomever he desires. He also has the right to have voluntary and willing sexual contact with other people. The inappropriateness in this incident was due to the fact that Resident 2 had involvement with someone with mental deficits. The incident was inappropriate on the part of the employee as well, since she was participating in it during her working time. Collins disagrees with the findings of Petitioner's surveyor. Collins testified that the investigator should have determined the abuse allegation was unfounded. According to Collins' expert testimony, the facility staff acted appropriately. The CNA who initially observed the activity called another CNA as a witness. They then went to their supervisor, who then went to the ranking nurse at the facility at that point in time, which was Ebanks. Ebanks questioned the employee, Resident 2 and the witnesses. She had the presence of mind to have a witness there as well, which was Harrilal. Ebanks made the determination, based on her nursing judgment and in her authority as nurse in charge of the facility on that day, that there was inappropriate behavior on behalf of Resident 2 and the employee. She put a care plan in place as to Resident 2, separated the employee and Resident 2, and sent the CNAs back to work. Collins testified there was no need to report the incident to the Department of Children and Family Services because there was no evidence of abuse or harm to Resident 2. Collins' testimony is found to be credible. Based on all the evidence, it is found and determined that an incident occurred at Respondent's facility on Saturday, March 15, 2003, at approximately 11:00 a.m., involving Resident 2 and a staff employee of Respondent, Dorsey. Resident 2 and the employee were seen by staff employees sitting on a bed hugging and kissing each other in a resident's room that was not being used at the time. Two CNA employees witnessed and reported the incident to the charge nurse. Ebanks was the charge nurse on duty on March 15, 2003. Ebanks was advised of the incident shortly after it occurred and interviewed both Resident 2 and the employees involved, as well as the employees who witnessed the incident. The interviews were conducted in the presence of Harrilal. She completed a Resident Abuse Report on March 20, 2003, at the request of the risk manager within four business days of the incident, and the administrator was advised of the incident on the first business day after the incident. Resident 2 was alert and oriented on the date of the incident. Although he had a low level of dementia, he was mentally competent at the time of the incident. He does not meet the definition of an "elderly person" or "vulnerable adult" under Chapter 415, Florida Statutes.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order of dismissal of the Administrative Complaint be entered in this case. DONE AND ENTERED this 28th day of January, 2004, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 28th day of January, 2004. COPIES FURNISHED: George F. Indest, III, Esquire The Health Law Firm Center Pointe Two 220 East Central Parkway, Suite 2030 Altamonte Springs, Florida 32701 Gerald L. Pickett, Esquire Agency for Health Care Administration Sebring Building, Suite 330K 525 Mirror Lake Drive, North St. Petersburg, Florida 33701 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 2727 Mahan Drive, Suite 3431 Tallahassee, Florida 32308
The Issue The issue in this case is whether Respondent committed the allegations in the notice of intent to assign a conditional license and, if so, whether Petitioner should have changed the rating of Respondent's license from standard to conditional for the period June 14 through August 10, 2001.
Findings Of Fact Petitioner is the state agency responsible for licensing and regulating nursing homes inside the state. Respondent operates a licensed nursing home at 1120 West Donegan Avenue, Kissimmee, Florida (the "facility"). Petitioner conducted an annual survey of the facility from May 7, through May 10, 2001 (the "May survey"). Petitioner conducted a follow-up survey of the facility on June 14, 2001 (the "June survey"). The May survey cites one Class III violation. The June survey cites a repeat deficiency of a Class III violation. Subsection 400.23(8)(b) and (c), Florida Statutes (2000), refers to deficiency classifications as Class I-III deficiencies. All statutory references are to Florida Statutes (2000) unless otherwise stated. Section 400.23(8)(c) defines Class III deficiencies as those deficiencies . . . which the agency determines to have 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. The statutory definitions of Class I and II deficiencies are not relevant to this case because this case involves only a Class III deficiency. Florida Administrative Code Rule Rule 59A-4.1288 requires nursing home facilities licensed by the State of Florida to adhere to federal regulations in Section 483 of the Code of Federal Regulations ("CFR"). All references to rules are to rules promulgated in the Florida Administrative Code on the date of this Recommended Order. In relevant part, Rule 59A- 4.1288 provides: Nursing homes that participate in Title XVIII or XIX must follow certification rules and regulations found in 42 CFR 483, Requirements for Long Term Care Facilities, September 26, 1991, which is incorporated by reference. Applicable federal regulations require Petitioner to assign a scope and severity rating to the deficiencies alleged by Petitioner. Petitioner assigned a "D" rating to the deficiencies alleged in the May and June surveys. A “D” rating means that there is no actual harm with potential for more than minimal harm that is not actual jeopardy. When Petitioner alleges that the Class III deficiency from the May survey was not corrected within the time established by the agency, the agency may change the rating of the facility license from standard to conditional. Petitioner determined in the June survey that the facility had not corrected the deficiency alleged in the May survey. Effective June 14, 2001, Petitioner changed the rating of the facility's license from standard to conditional. Petitioner noted the results of the May and June surveys on a Health Care Federal Administration form entitled "Statement of Deficiencies and Plan of Correction." The parties refer to the 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 identifies each alleged deficiency by reference to a tag number (the "Tag"). Each tag on the 2567 includes a narrative description of the allegations against Respondent and cites a provision of relevant state rules violated by the alleged deficiency. There is only one tag at issue in the May and June surveys. It is Tag F282. In order to protect the privacy of nursing home residents, Tag F282, the 2567, and this Recommended Order refer to each resident by a number rather than by the name of the resident. Tag F282 alleges in the May and June survey that the facility failed to satisfy the requirements of 42 CFR Section 483.20(k)(ii). In relevant part, the federal regulation provides: Comprehensive Care Plans. (3). The services provided or arranged by the facility must— (ii) Be provided by qualified persons in accordance with each resident’s written "plan of care." This standard is made applicable to nursing homes in Florida pursuant to Rule 59A-4.1288. Tag F282 does not allege that the facility provided care to residents by unqualified persons. Rather, Tag F282 alleges that Respondent failed to follow the plan of care for two residents. Tag F282 alleges in the May survey that the facility failed to provide care and services in accordance with the plan of care for Residents 3 and 1. Tag F282 alleges in the June survey that Respondent failed to follow the plan of care for Resident 1. The resident identified as Resident 1 is not the same resident in the May and June surveys. Before proceeding to the merits of the allegations in Tag F282, two policy issues must be resolved in order to make findings of fact in a manner that is consistent with Petitioner's officially stated agency policy. One issue is procedural and the other involves the definition of terms. Petitioner promulgates an officially stated policy in written guidelines entitled the State Operations Manual (the "Manual"). The Manual states agency policy regarding the interpretation and application of the regulatory standards surveyors must enforce. The Manual authorizes surveyors to determine whether a facility has complied with Tag F282 only after surveyors have identified violations of standards relating to: quality of care, defined in 42 CFR Section 483.25(a)–(m); quality of life, defined 42 CFR Section 483.15(a)–(h); or residents rights, defined 42 CFR Section 483.10(a)–(o). The state agency's written policy set forth in the Manual requires its surveyors to identify an issue of quality of care, quality of life, or residents’ rights before proceeding to a determination of whether the facility has violated Tag F282. The second issue involves the interpretation of the terms "inadequate", "incorrect", and "consistent." The Manual indicates that violations occur if surveyors can demonstrate inadequate or incorrect implementation of the care plan. The Manual does not define the term “inadequate.” The common meaning of the term suggests that something less than perfect implementation satisfies the requirements of the regulatory standard. That construction is consistent with other provisions in the Manual. The Manual further provides that violations of standards occur only if a facility fails to “consistently” implement the plan of care for a resident. Petitioner's surveyors acknowledged in their testimony that the goal for the quality of care regulations is to achieve positive resident outcomes and is identical to the goal of Tag F282. Petitioner offered no credible reason, within the meaning of Section 120.68(7)(e)3, why the standard for implementation of a resident’s care plan under Tag F282 should be stricter than that required by the quality of care regulations. Resident 3 had many compromising conditions and was near death at the time of the May survey. Resident 3 had 10 to 12 care plans to address his various medical problems and conditions. Each care plan contained an average of 15 separate interventions. One of the care plans for Resident 3 addressed the risk of developing pressure sores and contained 20 separate interventions for staff to implement. One intervention required staff to turn and reposition the resident every two hours. On May 7, 2001, a surveyor stationed herself outside of Resident 3’s room from 1:00 p.m. to 4:00 p.m. in the afternoon to observe who entered the resident’s room and what care was given to the resident. During that time, the surveyor observed that no staff member entered the room to turn and reposition the resident. The care plan required staff to turn the resident once during the three-hour period. The allegations in Tag F282 pertaining to the failure to reposition Resident 3 during a three-hour period on May 7, 2001, deviate from Petitioner's written agency policy in two respects. First, Petitioner did not cite the facility for any violation relating to quality of care, quality of life, or resident rights. Second, a single isolated failure to implement one intervention prescribed in one of 12 care plans for Resident 3, during a three-hour period, on one of four days of a survey, does not demonstrate inadequate care by failing to consistently implement a care plan. Petitioner failed to explain by a preponderance of the evidence why it deviated from its official written policy in its determination that Respondent violated the standard prescribed in Tag F282. The surveyor provided no credible explanation to justify a deviation from agency policy with respect to Resident 3. Nor did Petitioner present any evidence that Resident 3 developed any pressure sores or had any pressure sores worsen as a result of the failure to turn and reposition the resident on May 7, 2001. The evidence shows that the failure to turn and reposition Resident 3 presented nothing more than a minimal chance of negative impact. Tag F282 alleged in the May survey that the facility failed to provide care for Resident 1 in accordance with the care plan. Resident 1 suffered from a condition that caused his chin to droop toward his chest. The condition caused positioning problems for the resident while he was in his wheelchair. The physical therapist for the facility examined Resident 1 and recommended periodic placement of a Futuro cervical collar while the resident was in his wheelchair in order to elevate the resident's chin. The recommendation required staff to place the collar on the resident when he was in his wheelchair for two hours and then to remove it for two hours. Staff was not to place the collar on the resident during meals or while the resident was in bed. The resident would sometimes remove the collar after it was placed on him. On May 8, 2001, Petitioner’s surveyor made five observations of the resident between 10:45 a.m. and 1:50 p.m. The surveyor did not see the resident wearing the collar during any of the observations. The observations of the surveyor were intermittent. The surveyor did not observe Resident 1 continuously from 10:45 a.m. until 1:50 p.m. The surveyor did not know if or when the collar should have been placed on the resident during the observations on May 8, 2001. It is uncontroverted that the resident would have eaten lunch for one hour during the time that the surveyor observed the resident and that the care plan did not require staff to place the collar on the resident during meals. Petitioner offered no evidence that the failure to put the collar on the resident during the observed instances presented potential for any harm to the resident. Petitioner failed to show by a preponderance of the evidence that the facility failed to implement Resident 1’s care plan. Even if it were determined that the facility failed to consistently implement the care plan or inadequately implemented the care plan, Tag F282 deviates from Petitioner's officially stated agency policy because the tag does not charge the facility with any violation of quality of care, quality of life, or resident rights. Petitioner failed to explain why it deviated from its policy. Finally, the observed circumstances presented no more than a minimal chance of minor negative impact to Resident 1. On May 9, 2001, Petitioner's surveyor observed Resident 1 on three different occasions between 10:00 a.m. and 11:05 a.m. without the collar. The surveyor did not know if or when the collar should have been placed on the resident during that time-period. The observations of the surveyor were intermittent. The surveyor did not observe Resident 1 continuously from 10:00 a.m. until 11:05 a.m. The preponderance of the evidence failed to sustain the charge that the facility did not implement Resident 1’s care plan on May 9, 2001. The observations are insufficient to demonstrate a consistent failure to implement the care plan. Petitioner provided no credible explanation for deviating from its officially stated agency policy. Finally, the circumstances presented no chance of any harm other than minimal negative impact to the resident. Tag F282 alleges in the June survey that the facility failed to follow doctor’s orders for Resident 1 that required multi-podus boots to be applied every shift. Resident 1 in the June survey is not the same resident identified as Resident 1 in the May survey. Resident 1 in the June survey had pressure sores on his feet, and one of the interventions prescribed in the care plan required Resident 1 to wear multi-podus boots. On June 13, 2001, at 2:45 p.m., Petitioner's surveyor observed Resident 1 lying in bed without the required multi- podus boots. Resident 1 was lying on a pressure-relieving mattress so that his heels were receiving pressure relief without the need for multi-podus boots. On June 14, 2001, Petitioner's surveyor observed Resident 1 in his wheelchair in the activities room with black, hard-soled shoes on his feet instead of the multi-podus boots. The resident had dressings on his heels that protected them and was sitting so that his heels bore no weight. The facility maintained medical records that described the size and appearance of the pressure sores on Resident 1's heels. The records indicated that the pressure sores healed progressively after Respondent admitted Resident 1 to the facility. The area on the right heel was completely healed by June, 2001, and the area on the left heel was closed by July 2001. Petitioner deviated from its officially stated policy in two respects. First, Petitioner did not charge the facility with any violation of a quality of care, quality of life, or residents rights. Second, the instances observed by the surveyor do not demonstrate a failure to consistently implement the plan of care or a failure to provide adequate care. Petitioner offered no credible explanation for deviating from its policy. The events observed by Petitioner's surveyor, at most, presented the potential for causing no more than a minor negative impact on the resident.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration should enter a final order revising the May 10 and June 13, 2001, survey reports to delete the deficiency described under Tag F282, and replace the previously issued Conditional rating with a Standard rating. DONE AND ENTERED this 5th day of March, 2002, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of March, 2002. COPIES FURNISHED: Dennis L. Godfrey, Esquire Agency for Health Care Administration 525 Mirror Lake Drive North, Room 310L St. Petersburg, Florida 33701 R. Davis Thomas, Jr. Broad & Cassel 215 South Monroe Street, Suite 400 Post Office Box 11300 Tallahassee, Florida 32302-1300 Diane Grubbs, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308 William Roberts, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308
The Issue The issues in this proceeding are whether the Respondent unjustifiably filed its application for licensure as a nursing home for the 1982 calendar year later than required, and, if so, what, if any, administrative fine should be imposed.
Findings Of Fact The Petitioner is the agency responsible for enforcing the provisions of law pertaining to the licensure of nursing home facilities. Petitioner is specifically charged by statute with the responsibility of processing applications for renewal of nursing home licenses, and for determining when applications are filed late and whether a late fee should be imposed. Section 400.111, Florida Statutes. The Respondent is a nursing home licensed by Petitioner. Petitioner issued the Respondent a license which specifically covered the period January 1, 1981,through December 31, 1981. The cover letter which accompanied delivery of the license to the Respondent also specified dates that the license was effective. During 1980, the Florida Legislature amended provisions of Florida Statutes relating to licensure of nursing homes so as to require that nursing homes apply to renew licenses at least ninety (90) days prior to the expiration of the existing license. In August, 1980, Petitioner specifically notified all licensed nursing homes of the statutory amendments and of homes' responsibilities to reapply for licensure at least ninety (90) days in advance of the expiration of existing licenses. Petitioner developed a procedure whereby all licensed nursing homes would be mailed a notice and a blank application with instructions at least one hundred twenty (120) days prior to the expiration of the license. Petitioner developed a "master log" which listed all nursing home facilities and showed the dates when existing licenses would expire. Nursing homes whose licenses expired on December 31, 1981, were mailed this package of material on August 19, 1981. This allowed the nursing homes ample time within which to prepare and submit applications prior to October 2, 1981, which was ninety (90) days prior to the expiration of the 1981 licenses. While no specific evidence was offered to establish that the packet of materials was delivered to the Respondent, the Petitioner's office procedure is sufficient to give rise to a presumption that the package of materials was placed in the mail, and it is appropriate to presume that having been mailed, the materials were received by Respondent. Respondent's president testified that he never received the materials; however, no evidence was presented as to the Respondent's office procedures sufficient to overcome the presumptions that Petitioner's office procedures were followed and that materials placed in the mail are delivered. On November 10, 1981, Petitioner sent another letter to Respondent reminding it of its responsibility to file an application for renewal of its license. Respondent ultimately submitted its renewal application on November 18, 1981, to the Pinellas County Health Department in accordance with the provisions of Rule 10D-29.35, Florida Administrative Code, which were in effect at that time. The application was thus filed forty-five (45) days after the October 2, 1981, deadline. The Respondent is a thirty-eight (38) bed nursing home facility. The annual license fee imposed upon nursing home facilities for the 1981 licensure year was two dollars ($2) per bed. In Respondent's case, the fee was seventy- six dollars ($76). By statute, the late fee imposed for the untimely filing of an application for relicensure is one-half of the license fee for the prior year for each day that the application for relicensure is late. This amounts to a late fee in the Respondent's case of $1,710. The Petitioner renewed Respondent's license for the 1982 calendar year on December 7, 1981. There was no period of time during which the Respondent was unlicensed.
The Issue Whether the Agency for Health Care Administration found deficiencies at Cypress Manor sufficient to support issuance of a conditional license.
Findings Of Fact Petitioner, Cypress Manor, is a nursing home in Fort Myers, Florida, licensed by and subject to regulation by AHCA pursuant to Part II, Chapter 400, Florida Statutes. AHCA is the state agency charged with conducting licensure surveys of nursing home facilities in Florida to ensure that nursing homes are in compliance with state regulations. AHCA also surveys nursing homes to ensure that they are in compliance with federal Medicare and Medicaid requirements. The surveys are usually conducted by a team consisting of nurses, dieticians, and social workers from the AHCA. Each survey lasts approximately three days, during which time the AHCA team tours the facility; reviews records; interviews staff, families and residents; and observes care of residents and medication administration. After surveying the facility, AHCA prepares a survey report which lists the deficiencies found at the facility. The survey report is then sent to the nursing home. Each alleged deficiency found by AHCA during a survey is identified by a “tag” number, which corresponds to the regulation AHCA claims to have violated. A federal scope and severity rating is assigned to each deficiency. AHCA conducted a relicensure survey of Cypress Manor in September 1996, and a follow-up survey in November 1996. At both surveys, AHCA tagged the deficiency denominated as Tag F241, and gave this tag a “Class III” designation. The regulation described under Tag F241 states that: The 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. AHCA contends that this regulation was violated by the actions of the facility as described in the survey reports. Because these alleged deficiencies were found in both surveys, AHCA contends that the facility should be given a conditional license. A conditional license has a significant adverse effect on a nursing home. It must be posted in a public place and AHCA publicizes this information, in part through issuance of press releases. A conditional rating affects the ability of the facility to attract residents, and causes morale problems among staff and existing residents. The rating makes staff recruiting difficult. The September 1996 survey report has two numbered findings. However, no evidence was presented as to the first finding. Therefore, the only pertinent and remaining allegations with respect to this survey are those listed under the second finding. The September 1996 survey cited the following findings under the Tag 241: (1)three residents at Cypress Manor, Residents 11, 12, and 13, were observed wearing slipper socks with the names of deceased residents written on them; Resident 11’s shoes were too small; and (3) the slipper socks of Resident 12, were twisted so that the bottom of each slipper was on the top of her foot. The policy at Cypress Manor was, and had been for many years, to label clothing of residents upon admission, and to write residents' names on slipper socks in approximately 1/4 inch letters. However, when residents died their family members would often donate the clothing of those individuals to Cypress Manor to be used for other residents who had insufficient clothing of their own. For example, Cypress Manor used these donated clothes for incontinent residents who would needed changes of clothing, including slipper socks, several times a day. This practice had been in place during surveys conducted by the AHCA in prior years, but had never been cited by AHCA surveyors as a deficient practice. There is no indication that either the subject residents or their families objected to this practice. Moreover, with regard to the slipper socks with names written on them, the writing on the socks had faded to the point that they could not easily be read. Nothing in the regulation specifically addresses the standards for footwear and no evidence was provided by the AHCA with respect to generally accepted standards for footwear. Moreover, no evidence or testimony was presented that the practice of allowing residents to wear donated clothing or slippers constituted a failure to treat such residents with dignity and respect. With regard to the finding that Resident 11’s shoes were too small, there was no evidence to support this claim. Rather, Resident 11 had shoes brought in by her husband, but she regularly took them off and left them in various places throughout the facility. The third alleged violation involved Resident 12, the resident whose slipper socks were turned around. According to Cypress Manor staff who know this resident, she was capable of and did, in fact, propel herself in a wheelchair. As a result of Resident 12’s propelling herself in the wheelchair, the slipper socks often turned. The November 1996 survey report contains eight numbered findings, none of which relate to the footwear issues described in the September survey. No evidence was presented by the agency at hearing with respect to findings 1, 2, 3, 4, or 7. In finding number five, AHCA noted that a resident was seen on two consecutive days wearing the same pink flowered gown and pink sweater. Although this was cited as violating the resident's dignity and respect, the AHCA surveyor acknowledged that the resident's clothing was clean and appropriate. Furthermore, the AHCA surveyor never asked the resident if she liked the clothes that she was wearing. Nor did the surveyor attempt to determine the resident's clothing preference. Cypress Manor staff members familiar with this resident were aware that she had favorite clothes and often insisted on wearing the same items of clothing. The pink sweater worn by the resident on the two days she was observed by the surveyor was one of the resident's favorite garments. In finding number six, AHCA indicated that during a tour of the facility with the facility administrator, the surveyor and administrator entered the room of a resident. The finding further noted that while in the resident’s room, the administrator asked the resident to describe her medical condition to the surveyor. In the surveyor's opinion, the resident seemed "surprised” when asked by the administrator to describe her condition to the surveyor. The issue of requesting that residents describe or discuss their conditions with surveyors is not covered in the regulations. However, it is standard practice as part of surveys to ask residents to describe their condition to surveyors, and it is becoming more common for residents to speak directly to surveyors. The resident referred to in finding number six was a relatively young and assertive resident who had lived at Cypress Manor for several years and served as president of the facility's Residents' Council. Also, as a former employee of the Department of Health and Rehabilitative Services, this resident was very familiar with the survey process. In fact, she would often comment to staff to "let those surveyors at me [sic]; I want to talk to them." This resident often spoke openly about her physical condition and, in the opinion of those who knew her well, would not have been offended by a request to describe her medical condition with AHCA surveyors. It was acknowledged by AHCA that dignity can vary depending on the individual, and that what might be considered undignified to one resident might not be undignified to another. While there are some areas that might be considered to violate the standard regarding the dignity of the patient, no general standards as to what constitutes such a violation was presented by AHCA. In finding number eight of the November 1996 survey report, AHCA stated that a resident in the dining room was given his meal, but did not receive eating utensils until approximately ten minutes later. The surveyor acknowledged that the resident did not attempt to eat the meal with his hands, but waited until the utensils were brought to him. At the time this occurred, there was a large number of residents in the dining room, all of whom were being served their meals. This incident appears to be an isolated and inadvertent oversight, and one that was immediately corrected. At the time of the relicensure survey of Cypress Manor, the facility had no Class I or Class II deficiencies; no Class III deficiencies not corrected within the time established by the agency; and was in substantial compliance with established criteria. It is the policy of the AHCA to classify all deficiencies as at least a Class III deficiency, even when, according to the federal evaluation, the facility would be in substantial compliance with the regulation at issue.
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 Cypress Manor, and rescinding the conditional rating and imposition of the $500 penalty. DONE AND ENTERED this 6th day of January, 1998, 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 Filed with the Clerk of the Division of Administrative Hearings this 6th day of January, 1998. COPIES FURNISHED: Donna H. Stinson, Esquire R. Davis Thomas, Jr., Qualified Representative Broad and Cassel 215 South Monroe Street Suite 400 Tallahassee, Florida 32302 Karel Baarslag Agency for Health Care Administration Regional Service Center 2295 Victoria Avenue Room 309 Fort Myers, Florida 33901 Jerome Hoffman General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308
