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 March 8 through May 30, 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 5405 Babcock Street, Northeast, in Palm Bay, Florida (the "facility"). Petitioner conducted an annual survey of the facility that Petitioner completed on March 8, 2001 (the "March survey"). Petitioner noted the results of the survey 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". Petitioner conducted a follow-up survey of the facility that Petitioner completed on April 17, 2001 (the "April survey"). 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 "tags"). Each tag on the 2567 includes a narrative description of the allegations against Respondent and cites a provision of the relevant rule or rules in the Florida Administrative Code violated by the alleged deficiency. In order to protect the privacy of nursing home residents, the 2567 and this Recommended Order refer to each resident by a number rather than by the name of the resident. There are five tags at issue in this proceeding. The March survey cites two Class II deficiencies and three Class III deficiencies. The April survey cites repeat violations of three Class III violations. In this case, Section 400.23(8)(b) and (c), Florida Statutes (2000) establishes the deficiency classifications referred to as Classes II and III. All statutory references in this Recommended Order are to Florida Statutes (2000) unless otherwise stated. Section 400.23(8)(b) defines Class II deficiencies as those: . . . which the agency determines have a direct or immediate relationship to the health, safety, or security of the nursing home facility resident. . . . Section 400.23(8)(c) defines Class III deficiencies as those: . . . 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 March survey sets forth allegations against Respondent in Tags F224, F282, F314, F325, and F363. Petitioner classifies Tags F224 and F314 as class II deficiencies and Tags F282, F325, and F363 as class III deficiencies. Tag F224 in the March survey generally alleges that Respondent failed to implement policies and procedures to prevent abuse to a resident by another resident. Tag F314 generally alleges that Respondent failed to provide necessary assessment, treatment, and documentation for pressure sores for one resident. Tag F282 generally alleges that the facility failed to provide care and services in accordance with the plan of care for two residents. Tag F325 generally alleges that the facility failed to ensure that one resident maintained acceptable parameters of nutritional status, including body weight. Tag F363 generally alleges that the facility failed to provide menus that meet the nutritional needs of the residents by not following menus for pureed and dysphagia diets. The April survey sets forth allegations against Respondent in Tags F282, F325, and F363. Petitioner classifies each alleged violation as a Class III deficiency. Tag F282 in the April survey generally alleges that Respondent failed to follow a resident’s plan of care by failing to provide a weighted spoon and plate guard. Tag F325 generally alleges that the facility failed to ensure that a resident maintained acceptable parameters of nutritional status, including body weight. Tag F363 generally alleges that the facility failed to ensure that menus designed to meet the nutritional needs of the residents were prepared in advance and followed. Florida Administrative Code Rule 59A-4.1288 establishes the requirement for nursing home facilities licensed by the State of Florida to adhere to federal rules and regulations as found in Section 483 of the Code of Federal Regulations (CFR). In relevant part, the state rule 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. (All references to rules are to rules promulgated in the Florida Administrative Code in effect on the date of this Recommended Order). Applicable federal and state laws require Petitioner to assign to the deficiencies alleged in the 2567 a scope and severity rating required by federal regulations. In the March survey, Petitioner assigned a "G" rating to Tags F224 and F314, both of which are Class II deficiencies. A "G" rating means that the alleged deficiency was isolated, caused actual harm to one or more residents, but did not involve substandard quality of care. Petitioner assigned a "D" rating to the three Class III deficiencies alleged in Tags F282, F325, and F363 in the March survey. A "D" rating means that there is no actual harm but there is potential for more than minimal harm without actual jeopardy. Petitioner relies on two grounds for changing Respondent's license rating from standard to conditional. When Petitioner alleges two Class II deficiencies in the 2567, as Petitioner did in the March survey, applicable rules require Petitioner to change the rating of a facility's license. Applicable rules also authorize Petitioner to change a facility's license rating when the facility does not correct Class III deficiencies within the time prescribed by Petitioner. Petitioner alleges that Respondent failed to correct three Class III deficiencies alleged in Tags F282, F325, and F363 in the March survey by the time Petitioner conducted the April survey. Effective March 8, 2001, Petitioner changed the rating of the facility's license from standard to conditional. Effective May 31, 2001, Petitioner changed the rating of the facility's license from conditional to standard. The allegations in Tag F224 in the March survey pertain to two residents in the dementia unit of the facility who are identified individually as Resident 1 and Resident 13. Tag F224 in the March survey alleges that the facility failed to meet the requirements of 42 CFR Section 483.13(c). The federal regulation provides in relevant part: The facility must develop and implement written policies and procedures that prohibit mistreatment, neglect and abuse of residents and misappropriation of resident property. The facility must not use verbal, mental, sexual, or physical abuse, corporal punishment, or involuntary seclusion. The federal regulation is applicable to nursing homes in Florida pursuant to Rule 59A-4.1288. Tag F224 does not allege that the facility failed to develop the written policies required by 42 CFR Section 483.13(c) and Rule 59A-4.1288. Rather, Tag F224 alleges that Respondent failed to implement its policy. Tag F224 alleges that the facility failed to provide care and services to Resident 13 to prevent the resident from sexually intimidating a female resident identified as Resident 1. Tag F224 further alleges that Resident 13 had a past history of abusive and aggressive behavior to other residents but was not reassessed, "care planned," and monitored. The allegations in Tag F224 are based on observations of one of Petitioner's surveyors who participated in the March survey. On March 5, 2001, the surveyor observed Resident 13 in the dementia unit standing over Resident 1. The surveyor did not observe any overt sexual misconduct by Resident 13. Rather, the surveyor concluded that sexual misconduct occurred because she determined that Resident 13 was "invading [the female resident's] space," Resident 1 appeared "very anxious," "nervous," and "uncomfortable", and screamed for 15 minutes for Resident 13 to leave. The surveyor also relied on the history of Resident 13 to conclude that Resident 13 engaged in sexual misconduct on March 5, 2001. Resident 13 had, on two occasions, previously expressed a desire to have sex with female residents in the dementia unit and on other occasions had wandered into the rooms of female residents. Based on the inappropriate sexual statements by Resident 13 prior to March 5, 2001, the surveyor alleged in Tag F224 that Resident 13 engaged in sexual misconduct with Resident 1 on March 5, 2001. The preponderance of evidence does not show that Resident 13 engaged in sexual misconduct on March 5, 2001, by standing in front of Resident 1. Resident 13 did not engage in any overt sexual act or gesture. Resident 13 did not utter any inappropriate sexual comments. Resident 13 suffered from dementia and was elderly. He was mentally incapable of forming the requisite intent to sexually intimidate Resident 1 and was physically incapable of carrying out any such intent. In the absence of any overt sexual misconduct on March 5, 2001, the only evidence to support the allegation of sexual misconduct in F224 is the inference of the surveyor based on the gender difference between Residents 13 and 1 and the past history of inappropriate sexual statements by Resident 13. The inference of the observer does not satisfy the requirement for a preponderance of the evidence. The resident’s physician was qualified as an expert witness without objection. The physician testified that he was aware of Resident 13’s aggressive behavior, including the two occasions on which the resident expressed a desire to have sex with female residents. However, such incidents are typical of demented residents, do not reflect that Resident 13 was going to attack other residents in the dementia unit, and do not require any alteration to the care plan that was already in place. The only evidence that Petitioner provided to the contrary was the non-expert opinion of its surveyor. The non- expert opinion of the surveyor was insufficient to refute the physician’s expert opinion. Resident 13 suffered from severe cognitive impairment and was not physically or mentally capable of premeditating a plan to sexually intimidate Resident 1 and then carry out that plan. Resident 1 was paranoid of men. Her response to the encounter with Resident 13 was precipitated by her paranoia rather than by Resident 13's intent to sexually intimidate Resident 1. Although Resident 13 voiced a desire to have sex with other residents on two occasions during his stay at the facility, he never acted on those statements and was physically and mentally incapable of acting on them. On those two occasions, Respondent monitored Resident 13 closely but the resident did nothing to indicate that he would act on his stated desires or that he even remembered voicing them. Petitioner did not allege that Resident 13 engaged in any behavior on March 5, 2001, other than sexual misconduct. Even if Tag F224 were to have alleged that Resident 13 engaged in abuse other than sexual abuse, the preponderance of the evidence failed to show that Resident 13 engaged in non-sexual abuse. As a threshold matter, the evidence that the incident lasted for 15 minutes is not credible. It is implausible that a surveyor would allow apparent sexual intimidation to continue after she perceived the incident to be sexual intimidation, much less allow Resident 1 to endure such intimidation for 15 minutes. The surveyor testified that she could not locate a certified nursing assistant ("CNA") on the dementia unit when the incident occurred on March 5, 2001. The dementia unit is a locked unit comprised of resident rooms that open at regular intervals along a 60-foot hallway, and an activities room. There were two CNAs on duty at the time. One of those CNAs was in the hallway at the time of the alleged incident. The surveyor did not inform any member of the staff or administration at the facility that the incident had occurred before Petitioner provided Respondent with the allegations in the 2567 at the conclusion of the March survey. Resident 13’s primary behavior problem did not involve physical aggression toward other residents. Rather, the primary behavior problem was Resident 13's tendency to become aggressive with staff when they attempted to provide personal care, especially that care required for the resident's incontinence. Petitioner incorrectly concluded that the inappropriate behavior by Resident 13 indicated that he was a risk to assault or intimidate other residents. Resident 13’s historical experience at the facility did not involve aggression toward other residents. Instead, Resident 13 directed his aggressive behavior to situations with staff who were attempting to provide personal care for him. Irrespective of the proper characterization of Resident 13's behavior on March 5, 2001, the behavior did not occur because of any failure by the facility to assess Resident 13 or to develop and implement appropriate care plans to address the Resident 13's inappropriate behavior. Respondent acknowledged that Resident 13 wandered the hall, wandered into residents’ rooms, occasionally urinated in inappropriate places, and occasionally made inappropriate sexual remarks. However, those behaviors are typical of residents who suffer from dementia, and the inappropriate behavior cannot be eliminated through a care plan. Facility staff knew to monitor Resident 13 and to re- direct him if he engaged in inappropriate behavior that affected other residents. The chart for Resident 13 is replete with instances of staff consistently implementing those interventions. The care plan for Resident 13 directed staff to approach him calmly, let the resident choose the timing of his care, assess him for pain as a potential cause of agitation, and leave the resident alone and approach him later if the resident became upset during care. All of these interventions were appropriate for the identified behavior problem, and the record is replete with instances of the successful implementation of appropriate interventions. A physician saw Resident 13 and evaluated the resident almost weekly. The physician was aware of and assisted in the evaluation of the resident’s behavior. The physician considered several alternative interventions including the use of anti- anxiety medications to address the resident’s aggressiveness. The physician called in a psychiatric nurse practitioner to evaluate the resident and to recommend medications that might be effective in controlling aggressive episodes. At various times during the course of Resident 13’s stay at the facility, the physician prescribed Seraquil, Risperdal, BuSpar and Ativan for the resident. When aggressive incidents occurred, staff administered these medications with positive effects. Petitioner offered no specific evidence that any intervention used by the facility was not appropriate or that there was another intervention that the facility failed to identify and implement that would have changed any of the inappropriate behavior. Rather, the surveyor concluded that whatever the facility did was inappropriate because Resident 13’s behavioral problems did not subside or disappear while he was at the facility. The surveyor's conclusion fails to adequately understand dementia. The inappropriate behavior displayed by Resident 13 is typical of residents in a dementia unit and cannot be eliminated. Petitioner did not prove that Respondent failed to adequately reassess Resident 13. The resident’s medical record is replete with examples of efforts by the staff to continually re-evaluate the resident and to modify care plan approaches. The facility conducted quarterly re-assessments of the resident. The facility required staff to chart all incidents of inappropriate behavior in the resident’s medical record in an effort to identify any triggering events. The facility provided staff with in-service training for Resident 13 by the resident’s physician. The scope of the training encompassed the care of residents with dementia but focused in particular on the care that was required for Resident 13. The physician wanted to assure that Resident 13 would not become over-medicated and implemented frequent assessments and readjustments of the dosages of the resident's medications. Petitioner offered no evidence that Respondent failed to assess the resident in a timely manner or that any assessment performed by the facility was inappropriate. Petitioner did not allege in the March survey that the incident between Residents 13 and 1 was a result of Respondent's failure to consistently implement Respondent's policy regarding investigations of abuse. Therefore, any evidence relevant to such an allegation at the hearing is irrelevant to the allegations for which Petitioner provided adequate notice in the March survey. A contrary ruling would violate fundamental due process requirements for notice of the charges that substantially affect Respondent's license to operate the facility. Assuming arguendo that Petitioner can prove charges at the hearing that were not included in the allegations in the March survey, Petitioner's surveyor testified at the hearing that the incident she observed on March 5, 2001, occurred because the facility did not implement its policy and procedure regarding investigations of abuse of residents. As evidence of Respondent's failure to implement its policy, the surveyor contended that the facility did not properly investigate another incident described in nursing notes on January 31, 2001, before the March survey. In the January incident, the nursing notes indicated that Resident 13 made sexual advances to other residents. The implication is that the facility would have done something different with the resident had it properly investigated the January incident and would have, in turn, been able to prevent the occurrence of the incident the surveyor observed on March 5, 2001. Respondent maintains an adequate anti-abuse policy. Respondent’s anti-abuse policy requires its designated staff members to investigate and report to abuse agencies, if necessary, any suspected incidence of abuse of its residents. However, the facility did not fail to implement this policy with regard to Resident 13. Abuse is defined in Respondent's policy as the "willful infraction [sic] of injury . . . resulting in physical harm, pain or mental anguish." Due to Resident 13's dementia, he was not capable of willfully inflicting harm on anyone. No facility investigator could reasonably conclude that an incident involving Resident 13 constituted abuse within the meaning of the written policy of the facility. Even if the incident described in the January 31, 2001, nursing notes were relevant to the allegations in the March survey, Petitioner failed to show that the incident which the surveyor observed on March 5, 2001, was the product of any failure by Respondent to implement its policy on January 31, 2001. The facility’s director of nursing adequately investigated the incident described in the nursing notes on January 31, 2001, and determined that Resident 13 made no sexual advances to anyone and did not direct any inappropriate sexual comments to other residents. Rather, the investigation found that Resident 13 made inappropriate sexual comments to a CNA. Staff appropriately monitored Resident 13 after he made that statement to the CNA, and Resident 13 did nothing to act on the statement. The director of nursing notified Resident 13’s physician, and the physician determined there was no need to alter the resident’s care plan. Petitioner failed to show that the deficiency alleged in F224 was a Class II deficiency. Petitioner presented no evidence that the incident the surveyor observed on March 5, 2001, was anything other than an isolated incident or presented a threat of harm to other residents. Tag F314 alleges that Respondent violated 42 CFR Section 483.25(c). The federal regulation requires, in relevant part: Pressure Sores. Based on the comprehensive assessment of a resident, the facility must ensure that— A resident who enters the facility without pressure sores does not develop pressure sores unless the individual’s clinical condition demonstrates that they were unavoidable; and A resident having pressure sores receives necessary treatment and services to promote healing, prevent infection and prevent new sores from developing. The federal regulation is applicable to nursing homes in Florida pursuant to Rule 59A-4.1288. The March survey alleges in Tag F314 that the facility failed to provide required treatment and services to Resident 2. The surveyor determined the facility was out of compliance after she determined that Resident 2 had pressure sores. The surveyor based her findings on her observation of Resident 2 and a review of the records. In the nursing notes of February 22, 2001, the facility noted small open areas to the left thigh, back of scrotum, and buttocks. On March 5, 2001, the resident’s medical record indicated that the resident had two reddened areas on his buttocks. On March 6, 2001, the surveyor observed that the resident had two open areas on his right buttock and two on his scrotum. Petitioner charged in F314 in the March survey that these areas were pressure sores, and that the areas identified on March 6th were those which had been initially identified on February 22, 2001. Petitioner further charged that the facility failed to provide necessary treatment and services because staff failed to notify the resident’s physician and obtain a treatment order to the areas in accordance with the facility's policy relating to pressure sore care. A threshold issue is whether the reddened areas on Resident 2 were pressure sores or were reddened areas that did not satisfy Petitioner's definition of a pressure sore. If the areas were not pressure sores, Petitioner acknowledges that there would be no deficiency and no violation of the facility's pressure sore policy. The guidelines promulgated by Petitioner to guide its surveyors in the interpretation of the standard applicable under Tag F314 define a pressure sore as: . . . ischemic ulceration and/or necrosis of tissues overlying a bony prominence that has been subjected to pressure, friction or sheer. The areas identified on February 22, 2001, were located on Resident 2’s buttocks, scrotum, and thigh. None of those areas were located over any bony prominence within the meaning of Petitioner's promulgated definition of a pressure sore. Additionally, the areas identified on February 22nd were healed the next day. Pressure sores do not typically heal overnight. A nurse practitioner examined the areas identified on March 5th and 6th during the survey. The nurse practitioner diagnosed those reddened areas as a rash. Petitioner relies on records that identify the reddened areas on forms that the facility uses for both pressure sores and reddened areas that are not located over a bony prominence. For convenience, the facility uses a single form to identify both reddened areas and pressure sores. Petitioner seeks to rely on the facility forms, including elements of the plan of care on such forms, as though they were admissions by the facility that define pressure sores and then attempt to require the facility to prove the areas are not pressure sores. Petitioner is bound by its own definition of a pressure sore, cannot deviate from that definition, and cannot rely on a different definition as a basis for disciplinary action against the licensee. Petitioner limits the definition of a pressure sore to those ischemic ulcerations and/or necrosis of tissues that overlie a bony prominence. Those ischemic ulcerations and/or necrosis of tissues that do not overlie a bony prominence are not pressure sores within the meaning of the definition adopted by the state agency. The use by the facility of pressure sore treatment forms and the use of the term pressure sore in the medical records does not create a bony prominence where none exists. The preponderance of evidence shows that the reddened areas at issue were not located over a bony prominence. Clearly, there is no bony prominence in the scrotum, thigh, or buttocks where the reddened areas were located on Resident 2. Assuming arguendo that the areas were pressure sores, Respondent provided all treatment and services to the areas necessary to promote their healing. The facility treated the areas identified on February 22, 2001, by cleansing and application of Lantiseptic, a skin protector. The effectiveness of the treatment is reflected by the complete healing of the areas on the next day. Facility staff properly notified the treating physician and treated the areas identified on March 5th with Lantiseptic. A physician’s assistant examined the areas identified in the March survey and confirmed the use of Lantiseptic on the areas. The surveyor found no record of any plan of care for the pressure sores alleged in the March survey. The facility subsequently produced a note by a nurse practitioner dated March 6, 2001, stating that Lantiseptic was applied to a rash on the buttocks and scrotum, a doctor’s order for treatment, and a care plan for pressure sores after the physician’s note of February 23, 2001. The surveyor testified that the additional documents did not alter her testimony that the areas were pressure sores and that the facility failed to provide an adequate plan of care. The testimony of the surveyor does not refute the preponderance of evidence at the hearing. The areas at issue did not overlay a bony prominence. In any event, Petitioner failed to show that the deficiency alleged in F314 in the March survey was a Class II deficiency. Even if the areas were pressure sores and it were determined that the facility failed to provide necessary treatment and services, the evidence does not demonstrate that the problem suffered by Resident 2 was systemic or likely to occur with other residents in the facility. At most, the evidence demonstrates a limited failure to provide care to one resident. Accordingly, Petitioner failed to prove that the identified deficiency presented an immediate threat to other residents in the facility. At the conclusion of Petitioner's case in chief, Respondent moved to dismiss the allegations in Tag F282 on the grounds that Tag F282 in the March and April surveys alleged different deficiencies and therefore were not relevant or material to a change in license that is based on uncorrected deficiencies. After hearing arguments from both parties, the ALJ granted the motion to dismiss with leave for Petitioner to revisit the issue in its PRO if Petitioner could provide legal authority to support its position. Petitioner argues in its PRO that the ALJ erred in granting the motion to dismiss. However, Petitioner does not cite any legal authority to support its argument. Tag F282 in the March and April surveys alleges that the facility failed to provide care and services in accordance with the plan of care for two residents in violation of 42 CFR Section 483.20(k)(ii). The federal regulation provides in relevant part: 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. The federal standard is applicable to nursing homes in Florida pursuant to Rule 59A-4.1288. In the March survey, Tag F282 did not allege that Respondent provided services to residents by unqualified staff. Instead, Tag F282 charged that Respondent's staff incorrectly fastened a clip belt in the back of Resident 21 while she was in her wheel chair and failed to toilet her once in accordance with a physician’s order. In addition, Tag F282 alleged that staff did not weigh Resident 3 weekly as required by his care plan. However, a preponderance of the evidence showed that the facility did not miss any required weights after January 13, 2001. In the April survey, Tag F282 did not allege that Respondent failed to correct the deficiencies alleged in the March survey regarding Residents 21 and 3. Nor did Tag F282 allege that Respondent failed to comply with the plan of corrections submitted by Respondent after the March survey. Rather, Tag F282 in the April survey alleged that Respondent failed to provide a plate guard and weighted spoon for Resident 7 in violation of a physician's order. Petitioner argues that the alleged deficiencies in Tag F282 in the March and April surveys, pertaining to Residents 21 and 7, respectively, involved the failure to comply with a physician's order and, therefore, represent uncorrected deficiencies. Even if Petitioner's definition of an "uncorrected deficiency" were accepted, it would not be dispositive of the issue. The evidence showed that the physician who ordered the weighted spoon and plate guard for Resident 7 terminated the order at the conclusion of the April survey. Even if Respondent failed to follow a physician's order for Residents 21 and 3 in the March survey, Respondent did not fail to follow a physician's order for Resident 7 during the April survey. Moreover, the termination of the physician's order evidences a medical determination that the failure to comply with the order did not cause any harm to Resident 7. In any event, the definition of an "uncorrected deficiency" asserted by Petitioner is not persuasive. Notwithstanding the request of the ALJ, Petitioner did not submit any legal authority to support its asserted definition of the phrase "uncorrected deficiency." In the absence of a technical definition established by statute, rule, or judicial precedent, the phrase "uncorrected deficiency" is properly construed in accordance with the plain and ordinary meaning of its terms. The allegations in Tag F282 in the March survey are rooted in a physician’s order that called for a clip belt to be placed around Resident 21 while she was in her wheelchair. The purpose of the order was to guard the safety of Resident 21. The order further directed staff to check the belt every thirty minutes and release it every two hours to toilet the resident. During the March survey, a surveyor observed that staff had placed the clip belt on Resident 21 improperly on one day, and further determined that the resident had not been taken to the toilet. Based upon that information, the surveyor charged that the facility failed to follow the doctor’s order for checking and releasing the belt. The surveyor’s observations established, at most, a single isolated instance of failure to follow the care plan for Resident 21. The surveyor's observations failed to establish a consistent failure to implement the care plan. The alleged deficiency presented no potential for harm to Resident 21. Resident 21 was cognitively alert and could notify staff if she needed to be toileted or needed her belt removed. At the time that the surveyor observed Resident 21, the resident was in a supervised setting with staff readily available to her in the event she needed attention. She was not shown to have experienced any incontinent episode or to have even requested that she be toileted or otherwise released from the belt. Petitioner acknowledges that any failure by staff to remove the resident’s belt during this time presented nothing more than a minimal risk of harm to the resident. Resident 3 was admitted to the facility on January 13, 2001, and had a care plan that called for the resident to be weighed weekly. Between the resident’s admission to the facility and the March survey, the facility weighed the resident in accordance with the care plan except for one omission in late February. This one instance of failing to do a weekly weight did not demonstrate a consistent failure to implement the care plan. Petitioner provided no evidence that this single instance of failing to weigh the resident caused the resident harm or presented even the potential for harm to the resident. After the March survey, Respondent submitted a plan of correction to address the alleged deficiencies relating to Tag F282. Applicable law precludes Respondent from arguing the validity of the alleged deficiencies in its plan of correction. In the plan of correction, Respondent indicated that it would focus on restraints and weekly weights to insure that the alleged deficiencies would not re-occur. Petitioner accepted the plan of correction and, in April, did not find that staff at the facility failed to properly apply restraints to residents, failed to do weekly weights for residents, or otherwise failed to implement the plan of correction. Petitioner charged that Respondent violated Tag F282 in April because the facility failed to provide a weighted spoon and plate guard to Resident 7 as required by a physician’s order. It is uncontroverted that the plan of correction adopted to address the March F282 deficiency pertaining to Residents 21 and 3 did not address the deficiency alleged in Tag F282 in the April survey with respect to Resident 7; and would not have prevented the deficiency alleged in the April survey pertaining to Resident 7. Accordingly, the deficiency alleged in Tag F282 in the April survey pertaining to Resident 7, even if true, did not represent an "uncorrected" deficiency. Instead, the deficiency alleged in Tag F282 in the April survey represented a new deficiency. In any event, Petitioner failed to demonstrate that the alleged failure of the facility to comply with any of the orders at issue denied residents any necessary care and treatment, or presented even the possibility that the residents would be harmed. The physician ordered the weighted spoon and plate guard for Resident 7 due to the loss of dexterity in the resident's hand needed to assist him in the consumption of his meals. Even though the plate guard and spoon were not provided to the resident after they were ordered for him, the resident had no trouble with meal consumption. His medical records reflected that he consistently consumed his meals and that he gained almost 20 pounds during the time period that the spoon and plate guard were ordered. The weight gain and food consumption are significant because the facility initially admitted the resident as a hospice resident. The absence of any medical necessity for the physician's order requiring the spoon and plate was confirmed when the facility contacted the doctor during the survey, and the doctor issued an order discontinuing the use of the plate guard and spoon. Tag F325 in the March and April surveys alleges that the facility failed to comply with the requirements of 42 CFR Section 483.25(i)(1). The federal regulation provides, in pertinent part: Nutrition. Based on a resident’s comprehensive assessment, the facility must ensure that a resident-- Maintains acceptable parameters of nutritional status, such as body weight and protein levels, unless the resident’s clinical condition demonstrates that this is not possible. . . . The federal regulation applies to nursing homes in Florida pursuant to Rule 59A-4.1288. Tag F325 alleges in the March survey that Respondent did not maintain acceptable parameters of body weight for Resident 4. Respondent does not dispute this charge. Tag F325 alleges in the April survey that Respondent did not maintain acceptable parameters of body weight for Resident 9. Resident 9 lost approximately 20 pounds between August of 2000 and April 8, 2001. However, Petitioner provided no evidence that the weight the resident lost was "unacceptable" or caused by inadequate nutritional care. Petitioner neither contended nor demonstrated that a 20-pound weight loss over seven or eight months violates any accepted dietary or health standard. Even if such a rate of weight loss were an "unacceptable nutritional parameter," Petitioner provided no evidence that Respondent failed to properly monitor Resident 9's weight, assess his dietary needs, provide the resident with an appropriate diet, or otherwise caused the weight loss. Rather, the resident’s medical records demonstrate on-going assessments of the resident by the dietary staff and numerous interventions to address the resident's weight. Petitioner alleges that Respondent failed to comply with several directives for supporting care for Resident 9. Facility staff had been directed to cue Resident 9 to use a "chin tuck" to address his risk of aspiration due to swallowing difficulties. Staff were directed to cue the resident to cough and tuck his chin anytime the staff determined that the resident's voice sounded wet. During the survey, the surveyor observed three meals in which the staff provided no cues to Resident 9. However, no cues were required of staff if the resident did not have a wet sounding voice, and the surveyor acknowledged that she did not hear the resident cough during any of her meal observations. Even if cues were required to be given to Resident 9 during the meals observed by the surveyor, the surveyor did not demonstrate that the failure to cue the resident had any negative impact either on the resident's ability to eat or on the resident's weight. Rather, the evidence shows that Resident 9 weighed 151.6 pounds on April 8, 2001, and weighed 160.2 pounds on April 20, 2001, the day after Petitioner completed the April survey. Thus, the failure of the staff to cue the resident during the observed meals did not violate a nutritional parameter. The surveyor testified that the facility failed to provide fortified foods to Resident 9 during the April survey in violation of the resident's dietary care plan. The allegations in Tag F325 in the April survey do not include the allegation of inadequate care to which the surveyor testified during the hearing. In the absence of adequate notice in the written allegations, the testimony of the surveyor cannot be used as a basis for any finding of deficiency. Even if the testimony were considered as a basis for a finding of fact, the failure to provide fortified foods did not violate any nutritional requirements. Resident 9's wife provided the resident with "home-cooked" meals to satisfy his food preferences. Petitioner acknowledges that the meals the wife supplied effectively precluded the resident from eating fortified foods provided by the facility. Moreover, Resident 9 gained weight between April 8 and 17, 2001. Tag F363 alleges in the March and April surveys that the facility failed to meet the requirements of 42 CFR Section 483.35(c)(1)-(3). The federal regulation provides in relevant part: (C) menus and nutritional adequacy. Menus must-- Meet the nutritional needs of residents in accordance with the recommended dietary allowances of the Food and Nutrition Board of the national Research Council, National Academy of Sciences; Be prepared in advance; and Be followed. The federal regulation applies to nursing homes in Florida pursuant to Rule 59A-4.1288. Tag F363 alleges that the facility’s menu for March 8, 2001, included cranberry sauce and that the facility did not serve cranberry sauce to 11 residents in the rehabilitation dining room. The surveyor who made this charge did not evaluate the meal actually provided to the residents for its nutritional adequacy. Rather, the surveyor cited the facility because the facility failed to comply with the literal terms of the printed menu. Respondent does not dispute that the facility did not serve cranberry sauce to 11 residents in its rehabilitation dining room on the day in question. The facility’s menu for March 8, 2001, consisted of roast turkey, poultry gravy, cornbread dressing, peas and carrots, mandarin oranges, bread, and cranberry sauce. The menu called for one-half tablespoon of cranberry sauce. The omission was not significant. The dietician did not include the cranberry sauce in calculating the nutritional content of the meal. The cranberry sauce was only a garnish to the plate. The remainder of the food items offered in the meal met all of the requirements for residents’ nutritional needs. Any failure by Respondent to provide the cranberry garnish presented no risk of harm to any resident. Tag F363 alleges in the April survey that Respondent provided a saltine cracker during one meal to a resident who required a pureed diet. Tag F363 also alleges that Respondent gave a bologna sandwich to a resident whose food preferences did not include bologna sandwiches. Petitioner provided no evidence that either of these residents received nutritionally inadequate meals. Petitioner’s apparent concern with the resident who was served the cracker was that she might attempt to eat it and choke on it because she required pureed foods and the cracker was not pureed. The surveyor who observed the resident acknowledged that the resident did not eat the cracker. She also acknowledged that there is a regulatory standard which requires a facility to provide a therapeutic diet to residents who require such a diet, and that a pureed diet is a therapeutic diet. Accordingly, this observation is, at most, a violation of that standard, not Tag F363, and presented nothing more than a minimal chance of harm to the resident. Petitioner failed to show that the resident who did not get the bologna sandwich was deprived of any required nutrition, or that placing a bologna sandwich in front of the resident created any risk of harm to the resident. The surveyor acknowledged that the sandwich did not remain in front of the resident for long and that the facility immediately corrected the situation by providing the resident with an acceptable substitute. Tag F363 also alleges that the facility posted for resident observation the same menu on Monday, April 17, 2001, that the facility posted on Sunday, April 16, 2001. The regulation at issue does not address how or even if menus must be posted in a nursing home. Petitioner failed to explain why posting the same menu on consecutive days would violate any regulation, rule, or statute. Respondent acknowledged that the Sunday menu was not removed on Monday, but demonstrated that different, nutritionally adequate meals were planned and served to residents on each of those days.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Agency for Health Care Administration enter a final order finding that Petitioner failed to show by a preponderance of the evidence that a factual basis existed upon which Petitioner should have issued a Conditional rating to Respondent on March 8, 2001, and revising the March 8 and April 16, 2001, 2567 reports by deleting the deficiencies described under Tags F224, F314, F282, F363 and F325 (April only); and issuing a Standard rating to Respondent to replace the previously issued Conditional rating that was in effect from March 8, 2001, until May 31, 2001. DONE AND ENTERED this 4th day of March, 2002, in Tallahassee, 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 4th 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, Qualified Representative Broad & Cassel 215 South Monroe Street, Suite 400 Tallahassee, Florida 32302 Diane Grubbs, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Suite 3431 Tallahassee, Florida 32308 William Roberts, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive Suite 3431 Tallahassee, Florida 32308
Conclusions Having reviewed the Amended Notice of Intent to Deny, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency has jurisdiction over the above-named Petitioner pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Amended Notice of Intent to Deny and Election of Rights form to the Petitioner. (Ex. 1) The Election of Rights form advised of the right to an administrative hearing. 3. The parties have since entered into the attached Settlement Agreement. (Ex. 2) Based upon the foregoing, it is ORDERED: 4. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement, which set forth requirements of continued licensure imposed upon the Petitioner. The failure to comply with these requirements may result in licensure revocation or application denial as set forth in the Settlement Agreement. ORDERED at Tallahassee, Florida, on this 24 day of _Dece bey~ , 2012. Filed December 26, 2012 3:20 PM Division of Administrative Hearings
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I CERTIFY that a true and correct pry of this Final Order was served on the below-named persons by the method designated on this 7/ lay of [ech , 2012. Richard Shoop, Agency Ch Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Shaddrick Haston, Unit Manager Facilities Intake Unit Assisted Living Unit (Electronic Mail) Agency for Health Care Administration (Electronic Mail) Suzanne S. Hurley Rafael Gaitan, Esq. Office of the General Counsel Gus Suarez, Esq. Agency for Health Care Administration Counsel for Southern Parks, Inc. (Electronic Mail) 1110 Brickell Avenue, Suite 407. Miami, Florida 33131-3135 (U.S. Mail) | Pat Caufman, Field Office Manager R. Bruce McKibben Area 5/6 Administrative Law Judge Agency for Health Care Administration Division of Administrative Hearings (Electronic Mail) (Electronic Mail) Paul Brown, Health Facility Evaluator Supervisor Area 5/6 Agency for Health Care Administration (Electronic Mail) RICK SCOTT FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION, ELIZABETH DUDEK GOVERNOR Better Health Care for all Floridians INTERIM SECRETARY August 8, 2012 Sanny P. Panningbatan, Administrator Southern Parks, Inc. d/b/a/ Southern Oaks ALF P.O. Box 789 Wauchula, FL 33873 re: Case No.: 2012005197 AMENDED NOTICE OF INTENT TO DENY Dear Ms. Panningbatan: The Agency for Health Care Administration hereby DENIES the application by Southern Parks, Inc. d/b/a Southern Oaks ALF for renewal of its Assisted Living Facility license. The Specific Basis for this determination is a failure by the facility to pay outstanding fines and assessed fees from 2008 in the amount of $154; a failure by the facility to pay an outstanding Medicaid fine in the amount of $6000 in Case #121947000; a failure by the facility to obtain a satisfactory Level 2 background screen for its Chief Financial Officer; and the facility has shown a pattern of deficient practice as indicated in detail below. The applicant failed to meet minimum licensure standards pursuant to Sections 408.809, 408.815(1)(d), 408.831, 429.14(1)(e), 429.14(3), and 429.174, Florida Statutes.’ On June 22, 2010, a complaint investigation was conducted. A widespread Class I deficiency was cited because the facility was found out of compliance with local authorities that oversee building construction codes and water and fire safety standards. The county fire jurisdiction had to issue a cease and desist order to suspend the use of the facility as related to multiple electrical violations; a “boil water” alert had also been put in place and all of the facility’s 49 residents had to be relocated on an emergency basis. A widespread Class II deficiency was also cited for the facility’s failure to maintain a safe and decent living environment and physical plant. The place was filthy throughout, including mattresses in the rooms, dirty floors & walls, bathrooms had mold, toilets were filled with feces and cigarette butts, blinds were broken, cockroaches were everywhere. The facility agreed to an immediate moratorium on admissions until corrections were made and approved by the Agency. On May 18, 2011, a complaint investigation was conducted. Four Class Il deficiencies were cited because the facility had failed to assure that its staff had received training in basic CPR and ' For each citation subsequently noted, the relevant section(s) of the Florida Statutes or Administrative Rule(s) violated, as was provided contemporaneously to the facility in writing, is incorporated herein by reference. SIN Headquarters 2727 Mahan Drive Tallahassee, FL 32308 http:/fahca.myflorida.com Area Office 525 Mirror Lake Drive, N. Sebring Building, #330H St. Peter wr 33701 EXHIBIT 4 First Aid, failed to assure proper training for its staff who worked with mental health residents, failed to assure sufficient staff to provide the necessary supervision, safety and care to the residents, and failed to obtain and keep the required medical examination reports for the residents. A patterned Class II deficiency was also cited for the facility’s failure to assure the required criminal background clearance for employees who were providing personal services. On June 28, 2011, a revisit to the complaint investigation was conducted and the facility had failed to correct the cited deficiencies. The Agency cited four uncorrected Class III deficiencies as it still lacked sufficient staff to provide proper care and supervision; it lacked sufficient qualified staff to care for the mental health residents; it failed to provide minimum staffing hours and it had still not required proper training in CPR and First Aid for the staff providing services. On July 22, 2011, a follow up survey was conducted in regard to the above and three Class III deficiencies were cited. The deficiencies included that the facility was failing to provide care and services appropriate to the needs of the residents, medications were being mishandled, and the physical plant was still filthy with evidence of pest and/or insect droppings. On September 15, 2011, a second revisit to the June 28 complaint investigation was conducted and two uncorrected Class III deficiencies were cited. The facility had still not required the proper training in CPR and First Aid for staff providing personal services and had failed to assure that one staff member trained in CPR and First Aid were available on all shifts. Corrections were not completed until October 27, 2010. On August 4, 2011, a monitoring visit was conducted with “operation spot check.” Twelve Class III deficiencies were cited, including: a) residents’ health assessments indicated that they were inappropriate for assisted living; b) some residents lacked the required health assessments; c) documentation was lacking to show that the residents were receiving proper activities; d) the facility had no elopement policy and had failed to conduct elopement drills as required; e) the facility was assisting a resident with medication when there was no signed physician order for same; f) the facility had failed to put in place the required Do Not Resuscitate (“DNR”) policy; g) staff members were lacking the required training in abuse, neglect, resident rights, emergency procedures and reporting adverse incidents; h) the facility administrator lacked the required nutrition and food service training; i) the facility staff lacked the required training for DNR; j) the facility had failed to obtain the required surety bond before acting as representative payee for residents; j) the facility had failed to maintain a safe living environment with regard to sanitation; and k) the facility had failed to assure that it had contracts with all of its residents. On November 17, 2011, another complaint survey was conducted along with a revisit. Two Class III deficiencies were cited. The medication observation record was found not to match the medication orders for residents on healthcare forms signed by their physicians. The residents had been receiving medications which were not ordered and had been missing medications that their physicians had ordered for them. The deficiencies appeared to be corrected on January 31, 2012, when the Agency conducted three complaint surveys. On March 5, 2012, a complaint survey was conducted in conjunction with a revisit survey and two Class III deficiencies were cited. The facility was failing to fill out the medication observation record appropriately and it was using an outdated form for the heaithcare assessments for the residents. Corrections had been made when the Agency returned on April 26, 2012. The Class I and Class II deficiencies along with an extraordinarily-large number of Class III deficiencies supports the Agency’s denial. EXPLANATION OF RIGHTS Pursuant to Section 120.569 Florida Statutes, you have the right to request an administrative hearing. In order to obtain a formal proceeding before the Division of Administrative Hearings under Section 120.57(1), Florida Statutes, your request for an administrative hearing must conform to the requirements in Section 28-106.201, Florida Administrative Code and must state the material facts you dispute. SEE ATTACHED ELECTION OF RIGHTS FORM Sincerely, Shh Z— Shaddrick A. Haston, Manager Assisted Living Unit Bureau of Long Term Care Services Copy to: Jan Mills, Office of the General Counsel STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION RE: SOUTHERN PARKS, INC. d/b/a CASE NO.: 2012005197 SOUTHERN OAKS ALF ELECTION OF RIGHTS’ This Election of Rights form is attached to a proposed action by the Agency for Health Care Administration (AHCA). The title may be Notice of Intent to Deny, Notice of Intent to Impose a Late Fee, Notice of Intent to Impose a Late Fine or Administrative Complaint. Your Election of Rights must be returned by mail or by fax within 21 days of the day you receive the attached Notice of Intent to Deny, Notice of Intent to Impose a Late Fee, Notice of Intent to Impose a Late Fine or Administrative Complaint. If your Election of Rights with your selected option is not received by AHCA within twenty- one (21) days from the date you received this notice of proposed action by AHCA, you will have given up your right to contest the Agency’s proposed action and a final order will be issued. (Please use this form unless you, your attorney or your representative prefer to reply according to Chapter120, Florida Statutes (2012) and Rule 28, Florida Administrative Code.) PLEASE RETURN YOUR ELECTION OF RIGHTS TO THIS ADDRESS: Agency for Health Care Administration Attention: Agency Clerk 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308. Phone: 850-412-3630 Fax: 850-921-0158. PLEASE SELECT ONLY 1 OF THESE 3 OPTIONS: OPTION ONE (1) I admit to the allegations of facts and law contained in the Notice of Intent to Impose a Late Fine or Fee, or Administrative Complaint and I waive my right to object and to have a hearing. I understand that by giving up my right to a hearing, a final order will be issued that adopts the proposed agency action and imposes the penalty, fine or action. OPTION TWO (2) I admit to the allegations of facts contained in the Notice of Intent to Impose a Late Fee, the Notice of Intent to Impose a Late Fine, or Administrative Complaint, but I wish to be heard at an informal proceeding (pursuant to Section 120.57(2), Florida Statutes) where I may submit testimony and written evidence to the Agency to show that the proposed administrative action is too severe or that the fine should be reduced. ' Here filed in response to the Agency’s Amended Notice of Intent to Deny OPTION THREE (3)___—s-.s dispute the allegations of fact contained in the Notice of Intent to Impose a Late Fee, the Notice of Intent to Impose a Late Fine, or Administrative Complaint, and I request a formal hearing (pursuant to Subsection 120.57(1), Florida Statutes) before an Administrative Law Judge appointed by the Division of Administrative Hearings. PLEASE NOTE: Choosing OPTION THREE (3), by itself, is NOT sufficient to obtain a formal hearing. You also must file a written petition in order to obtain a formal hearing before the Division of Administrative Hearings under Section 120.57(1), Florida Statutes. It must be received by the Agency Clerk at the address above within 21 days of your receipt of this proposed administrative action. The request for formal hearing must conform to the requirements of Rule 28-106.2015, Florida Administrative Code, which requires that it contain: 1. Your name, address, and telephone number, and the name, address, and telephone number of your representative or lawyer, if any. 2. The file number of the proposed action. 3. A statement of when you received notice of the Agency’s proposed action. 4. A statement of all disputed issues of material fact. If there are none, you must state that there are none. Mediation under Section 120.573, Florida Statutes, may be available in this matter if the Agency agrees. License type: (ALF? nursing home? medical equipment? Other type?) Licensee Name: License number: Contact person: Name Title Address: Street and number City Zip Code Telephone No. Fax No. Email(optional) [hereby certify that I am duly authorized to submit this Notice of Election of Rights to the Agency for Health Care Administration on behalf of the licensee referred to above. Signed: Date: Print Name: Title: Deny/Late fee/fine/AC STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION SOUTHERN PARKS, INC. d/b/a SOUTHERN OAKS ALF, Petitioner, vs. DOAH Case No. 12-2274 AHCA Case No. 2012005197 STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Respondent. / SETTLEMENT AGREEMENT Respondent, the State of Florida, Agency for Health Care Administration (the “Agency”), through its undersigned representatives, and Petitioner, Southern Parks, Inc. d/b/a Southem Oaks ALF (“Petitioner”), pursuant to Section 120.57(4), Florida Statutes, each individually, a “party,” collectively as “parties,” hereby enter into this Settlement Agreement (“Agreement”) and agree as follows: WHEREAS, Petitioner is an assisted living facility licensed pursuant to Chapters 429, Part I and 408, Part II, Florida Statutes, and Chapter 58A-5, Florida Administrative Code; and WHEREAS, the Agency has jurisdiction by virtue of being the regulatory and licensing authority over Petitioner, pursuant to Chapters 429, Part I and 408, Part II, Florida Statutes; and WHEREAS, the Agency served Petitioner with a Notice of Intent to Deny dated May 10, 2012, and an Amended Notice of Intent to Deny dated August 8, 2012, notifying the Petitioner of the Agency’s intent to deny Petitioner’s renewal application for licensure to operate an assisted living facility in the State of Florida; and WHEREAS, Petitioner requested a formal administrative proceeding by selecting Option “3” on the Election of Rights form or by the filing of a Petition; and EXHIBIT 2 WHEREAS, the parties have negotiated and agreed that the best interest of all the parties will be served by a settlement of this proceeding; and NOW THEREFORE, in consideration of the mutual promises and recitals herein, the parties intending to be legally bound, agree as follows: 1. All recitals herein are true and correct and are expressly incorporated herein. 2. Both parties agree that the “whereas” clauses incorporated herein are binding findings of the parties. 3. Upon full execution of this Agreement, Petitioner agrees to waive any and all appeals and proceedings to which it may be entitled including, but not limited to, an informal proceeding under § 120.57(2), Florida Statutes, a formal proceeding under § 120.57(1), Florida Statutes, appeals under § 120.68, Florida Statutes; and declaratory and all writs of relief in any court or quasi-court of competent jurisdiction; and agrees to waive compliance with the form of the Final Order (findings of fact and conclusions of law) to which it may be entitled provided that the form of the Final Order remains consistent with the recitals, “whereas” clauses, and terms of this Settlement Agreement; and, further that no agreement herein shall be deemed a waiver by either party of its right to judicial enforcement of this Agreement. 4. Upon full execution of this Agreement, the parties stipulate and agree as follows: a. Petitioner shall contract with and maintain as a consultant Ms. Marlene Hunter, MS CHCRM, commencing September 1, 2012, and extending for two (2) years thereafter. Petitioner shall cause its consultant to review and complete a written quarterly report on a monthly basis regarding the facility’s operations and regulatory compliance. Said quarterly report shall include, but not be limited to: assessments of and actions taken related to medication administration and records, quality of care, risk management activities, staff training activities, and the adoption or amendment of facility policy and procedures. The quarterly report shall be maintained by Petitioner and provided to the Agency upon request. b. The provisions of subparagraph (a) above and the affirmative duties therein, shall continue in full force and effect throughout any renewal of the Petitioner’s license as necessary during the two (2) year period referenced herein. c. Petitioner places itself under a Voluntary Limitation on Admissions effective (retroactive to) August 17, 2012. The Voluntary Limitation on Admissions prohibits Petitioner from admitting any resident which would result in the Facility’s census exceeding forty (40) residents. d. A violation of the Voluntary Limitation on Admissions shall result in administrative sanctions by the Agency just as if for violation of a duly-entered Emergency Immediate Moratorium on Admissions. e. On or after February 17, 2013, the Petitioner may request the Agency’s authorization to discontinue its Voluntary Limitation on Admissions. Any such request shall be supported by documentation, including but not limited to, reports or records of Petitioner’s consultant referenced in subparagraph (a) above, which demonstrate actions undertaken by Petitioner to assure current and future compliance with the regulatory mandates. Upon receipt of any such request, the Agency may take such action as is appropriate and prudent, including but not limited to: a survey of the Facility, a request for further information or direct communication with Petitioner’s consultant. The Agency agrees to review any request in good faith, in a timely manner and not to unreasonably withhold consent. Said review shall be conducted as soon as possible and/or practical for the Agency. Should consent be denied, the Agency shall state in writing the reasons for 5. denial and will provide, if applicable, corrective measures to be taken by Petitioner to receive consent. Petitioner may seek further consent at any time. f. Upon adoption of this Agreement as a Final Order of the Agency, the Agency for Health Care Administration shall issue to Petitioner a renewal license for a facility capacity of sixty (60) residents, valid for a period of two calendar years commencing on May 5, 2012. g. On or after September 1, 2013, the Petitioner may apply to increase its licensed capacity at the Facility as provided by law. Any application to increase the licensed capacity of the Petitioner’s facility filed prior to September 1, 2013, shall be summarily denied based upon the terms of this Agreement and that the Petitioner waives any right to challenge said summarily denied application in any judicial or quasi-judicial forum. The Agency further agrees to review any application, received on or after September 1, 2013, to increase Petitioner’s licensed capacity in good faith and not to unreasonably deny the same other than as provided by law. Should Petitioner’s application be denied, the reasons for the denial shall be set forth in writing or as provided by law. h. Should Petitioner be cited for one Class I, one Class II, or three or more uncorrected Class III deficient practices at any survey over a two-year period from the date of the issuance of the renewal license (i.e., May 5, 2012), Petitioner stipulates that the deficient practice(s) will, if proven, constitute grounds for revocation of the Petitioner’s license (if provided for by law) in addition to additional Agency action pursuant to applicable provisions of law. Venue for any action brought to enforce the terms of this Agreement or the Final Order entered pursuant hereto shall lie in Circuit Court in Leon County, Florida. 6. By executing this Agreement, Petitioner denies the allegations set forth in the Notice of Intent to Deny and the Amended Notice of Intent to Deny, and the Agency asserts the validity of the allegations raised in these Notices of Intent to Deny. No agreement made herein shall preclude the Agency from imposing a penalty against Petitioner for any deficiency/ violation of statute or rule identified in a future survey of Petitioner, which constitutes a “repeat” or “uncorrected” deficiency from surveys identified in the administrative complaint. 7. No agreement made herein shall preclude the Agency ftom using the deficiencies from the surveys identified in the Notice of Intent to Deny in any decision regarding licensure of Petitioner, including, but not limited to, licensure for limited mental health, limited nursing services, extended congregate care, or a demonstrated pattern of deficient performance, as provided for by then existing law. The Agency is not precluded from using the subject events for any purpose within the jurisdiction of the Agency as provided for by law. Further, Petitioner acknowledges that this Agreement shall not preclude or estop any other federal, state, or local agency or office from pursuing any cause of action or taking any action, even if based on or arising from, in whole or in part, the facts raised in the administrative complaint. This agreement does not prohibit the Agency from taking action regarding Petitioner’s Medicaid provider status, conditions, requirements or contract. 8. Upon full execution of this Agreement, the Agency shall enter a Final Order adopting and incorporating the terms of this Agreement and closing the above-styled case. 9. Each party shall bear its own costs and attorney’s fees. 10. This Agreement shall become effective on the date upon which it is fully executed by all the parties. 11. Petitioner for itself and for its related or resulting organizations, its successors or transferees, attorneys, heirs, and executors or administrators, does hereby discharge the State of Florida, Agency for Health Care Administration, and its agents, representatives, and attorneys of and from all claims, demands, actions, causes of action, suits, damages, losses, and expenses, of any and every nature whatsoever, arising out of or in any way related to this matter and the Agency’s actions, including, but not limited to, any claims that were or may be asserted in any federal or state court or administrative forum, including any claims arising out of this agreement, by or on behalf of Petitioner or related facilities; provided and limited, however, that Petitioner’s rights to any costs, expenses or attorneys fees arising from or relating to enforcement of this Settlement Agreement shall survive. 12. This Agreement is binding upon all parties herein and those identified in paragraph eleven (11) of this Agreement. 13. In the event that Petitioner was a Medicaid provider at the subject time of the occurrences alleged in the complaint herein, this settlement does not prevent the Agency from secking Medicaid overpayments related to the subject issues or from imposing any sanctions pursuant to Rule 59G-9.070, Florida Administrative Code. 14, Petitioner agrees that if any funds to be paid under this agreement to the Agency are not paid within thirty-one (31) days of entry of the Final Order in this matter, the Agency may deduct the amounts assessed against Petitioner in the Final Order, or any portion thereof, owed by Petitioner to the Agency from any present or future funds owed to Petitioner by the Agency, and that the Agency shall hold a lien against present and future funds owed to Petitioner by the Agency for said amounts until paid. 15. The undersigned have read and understand this Agreement and have the authority to bind their respective principals to it. Petitioner has the capacity to execute this Agreement. 16. This Agreement contains and incorporates the entire understandings and agreements of the parties. 17. This Agreement supersedes any prior oral or written agreements between the parties. 18. This Agreement may not be amended except in writing. Any attempted assignment of this Agreement shall be void. 19. All parties agree that a facsimile signature suffices for an original signature. The following representatives hereby acknowledge that they are duly authorized to enter into this Agreement. epi Agency for Health Care Administration _2727 Mahan Drive Tallahassee, Florida 32308 DATED: _\ vi Stuart F. Williams General Counsel Agency for Health Care Administration 2727 Mahan Drive, Building #3 Tallahassee, Florida 32308-5407 : ie urley, Seni ’ Florida Bar No. 0985775 r Lake Drive, Suite 330H St. Petersburg, Florida 33701 Of G (20) 32. DATED: Florida Bar No. 17987 Gus Suarez, Esq. Florida Bar No. 616613 Counsel for Southern Parks, Inc. ~ 1110 Brickell Avenue? Suite 407 ~~ Miami, Florida 33131-3135 paTep: /°/ 9 /20/2_ Name (printed): Sherry Qanleo Position: i Southern Parks, Inc. DATED: 9-/4-ja@
Findings Of Fact Respondent corporation operates a licensed day care center in Duval County, Florida. Marie Flood owns Respondent and personally operates the day care center. She holds 51 per cent of the corporate stock for the Respondent corporation. Her husband is a 49 per cent stock holder. In the day care center is located a large room. The room is divided into smaller spaces by shelves which are called "cubbies". Those shelves are three feet high. The areas divided by the shelves constitute separate rooms for purposes of defining the proper ratio for day care staff members to children cared for in the facility. In May, 1995, an inspection was made at the day care center facility by an inspector working for Petitioner. That inspector was Joyce E. Bates. During the visit Ms. Bates observed a day care worker leave one of the small areas in the large room that was divided from other spaces in the room by the presence of the shelves. The worker went to put plates out for toddlers who were cared for at the facility. When the worker left the first area to go and put the plates in place, Ms. Bates considered that the appropriate staff ratio to children had been compromised in the area where the worker had been located. Ms. Bates indicated in her inspection report that this departure by the worker from one area where children were kept to another area where the plates were being placed constituted a deficiency in delivering the care to the children by not maintaining the proper ratio for staff and children. Ms. Flood did not believe that the departure by the worker for a brief period of time necessary to set out plates for the toddlers constituted non- compliance with the proper arrangement for staff in the requirement to monitor the children's activities. Ms. Flood believed that the worker while in another area placing the plates was still able to directly supervise the children in the area that had been left by watching and directing their activities within close proximity to the children. Given the difference of opinions Ms. Flood asked Ms. Bates to arrange for Ms. Flood to meet with Ms. Bates' supervisor to discuss the disagreement between those individuals concerning maintenance of the proper ratio for staff and children. Shortly after the May, 1995 inspection was conducted Ms. Flood met with Andrea J. Trzcinski, a supervisor for Petitioner for whom Ms. Bates worked in the child care licensure field. At this meeting Ms. Flood told Ms. Trzcinski about the concern that workers would be temporarily away from the areas in which children were located in the small spaces within the large room where care was provided. Ms. Flood explained that those short intervals where the workers were unavailable in the immediate areas where children were being attended were associated with various types of staff emergencies, staff preparing bottles for infants, or staff going to the restroom. Ms. Flood believed that to meet the exact terms for the staff to children ratio would require extra staff to meet the various contingencies where workers were absent from the discrete space where care was delivered to the children. Ms. Flood believed at the time and continues to believe that she cannot afford to have extra staff available to meet the contingency where the principal care giver has left the discrete space. Ms. Trzcinski explained to Ms. Flood that the choices which Ms. Flood had concerning the staff to children ratio were to divide the large room into discrete areas to deliver care or to leave the room as one area where care was given, thus requiring more staff than would be needed to maintain smaller areas within the large room. In the conversation between Ms. Flood and Ms. Trzcinski, Ms. Flood expressed the belief that the ability to look over the tops of the dividers which were only three feet tall would meet the requirements for maintaining the proper ratios when the staff was away from the immediate area where the children were located. Ms. Trzcinski explained to Ms. Flood that Ms. Flood's perception concerning the ability to maintain direct supervision by looking over the divider walls was not providing the direct supervision that was necessary. Ms. Trzcinski made Ms. Flood aware that Ms. Trzcinski's interpretation was that direct care meant having staff in the immediate area of the infants not monitoring from some other part of the overall large room by looking over the divider walls back into the area where the infants had been left. In summary, Ms. Trzcinski told Ms. Flood that a caregiver could not leave the discrete space where the children were located and move to another area and still maintain the called for ratio for staff to children. On October 11, 1995, Ms. Bates made another visit to the facility. The visit was as a follow up to an inspection that was conducted on September 29, 1995, unrelated to proper ratios for staff to children and upon a complaint that had been made concerning care provided to a child in the facility, again, unassociated with the proper ratio of staff to children. While Ms. Bates was inspecting the facility on October 11, 1995, she observed that in the room referred to as an infant room there were five children and one staff member. One child in that room was younger than one year old. Consequently, the ratio which Ms. Bates believed was appropriate for staff to children was 1 to 4, there being a child in the group who was not a year old. During the October 11, 1995 inspection Ms. Bates spoke to Marjorie James who was in charge of the facility on that occasion and explained the problem concerning the ratio in the infant room, in that the Florida Administrative Code required a ratio of 1 staff member to 4 children, not 1 staff member to 5 children as discovered in the inspection. Ms. Bates expressed to Ms. James the importance of maintaining those ratios in an instance where infants are involved in the receipt of care. A check-list for the inspection was prepared and provided to Ms. James who signed for the document. The document pointed out the problem of the ratios for staff to children wherein an infant not 1 year old was in the group of children. Ms. Bates made Ms. Trzcinski aware that the inspection of October 11, 1995, was being conducted and the results pertaining to that inspection wherein the ratio problem for staff to children had been identified. On November 8, 1995, Ms. Flood intended to work at the facility as a caregiver. By that arrangement it would allow Ms. James to leave the facility and go to a different location to pick up children from a kindergarten and return those children to the facility for care. Before arriving at the facility on November 8, 1995, Ms. Flood called the personnel at the facility and stated that Ms. Flood was going to be late. Ms. Flood recognized that the consequence would be that the ratios for staff to children would not be met for a short period of time. The reason Ms. Flood was tardy for her assignment was based upon an automobile accident on the road between her location and the facility. Ms. Flood explained to the other caregiver at the facility that she wanted to place a 22-month old child in the front room of the facility creating a problem for the staff to children ratio in that room, while maintaining the proper ratio in another room where infants less than one year old were found. As described before, the ratio for staff to children in the infant room should be 1 staff member for 4 children. The staff member who received Ms. Flood's call abided by the instructions and moved the 22-month old child to the front room. That meant that the ratio for staff to Children should be 1 to 6. In reality the ratio of staff to children was 1 to 9. Coincidentally on November 8, 1995, beyond the point and time at which Ms. James left to pick up the kindergarten children and the ratios where modified for staff to children in the front room, Ms. Bates arrived to conduct a follow-up inspection to check the ratios of staff to children. Ms. Bates discovered that the ratio of staff to children in the front room was 1 staff member for 9 children, whereas the ratio anticipated by Ms. Bates for the front room in which the 22-month old child was found should have been 1 staff member for 6 children. When Ms. Bates arrived to conduct the inspection on November 8, 1995, Virginia Sikes was caring for the children in the front room, and another caregiver was taking care of children in the infant room. Shortly after Ms. Bates arrival Ms. Flood came into the facility to provide care, thus the problem with the ratio with staff to children was corrected. Not long after Ms. Flood arrived Ms. James returned to the facility with the kindergarten children. The inspection which Ms. Bates conducted on November 8, 1995, was unannounced. Because the problem with staff ratios for children had been observed on both October 11, 1995 and November 8, 1995, Petitioner determined to impose an administrative fine in the amount of $150.00. The fine was perceived by Ms. Trzcinski to be a fine of $50.00 for each child over the ratio allowed as discovered on November 8, 1995, in which the proper ratio was 1 staff member for 6 children as opposed to the ratio discovered which was 1 staff member for 9 children. From Petitioner's view, expressed through Ms. Trzcinski, the violation was a Class II violation. Ms. Trzcinski characterized the violation as a "middle" violation. Respondent, through Ms. Flood, takes no issue that the ratios discovered for staff to children in the inspections performed on October 11, 1995 and November 8, 1995 were incorrect. Her principle concern is that the Respondent not be required to pay an administrative fine for the events which transpired on November 8, 1995. Her reasoning is that you cannot get substitute personnel quickly when contingencies arise such as were encountered on November 8, 1995. Also, her belief is that the problem was quickly corrected making imposition of a fine uncalled for.
Recommendation Upon the consideration of the findings of fact and the conclusions of law, it is, RECOMMENDED: That a Final Order be entered imposing a $100.00 administrative fine for the failure to comply with the requirements related to maintenance of ratio for staff to children on November 8, 1995. DONE and ENTERED this 24th day of May, 1996, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 1996. APPENDIX CASE NO. 96-1223 The following discussion is given concerning the findings of fact by the parties: Petitioner's facts are subordinate to facts found with the exception that Paragraph 2 is not necessary to the resolution of the dispute. Respondent's submission constitutes legal argument which was considered in entering the recommended order. COPIES FURNISHED: Roger L.D. Williams, Esquire HRS District 4 Legal Office Post Office Box 2417 Jacksonville, FL 32231-0083 Marie Flood Progressive Learning Center 1855 Hamilton Street Jacksonville, FL 32210 Gregory D. Venz, Agency Clerk Department of Health and Rehabilitative Services Building 7 Suite 728 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Richard Doran, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
The Issue The issue for consideration in this case is whether Respondent should be issued a standard or a conditional license for the period beginning August 5, 1998.
Findings Of Fact At all times pertinent to the issues herein, the Agency for Health Care Administration (Agency) was the state agency in Florida responsible for the oversight, licensing, and regulation of skilled nursing facilities (SNF) in this state. Emerald Oaks, is a SNF located at 1507 South Tuttle Avenue in Sarasota, Florida. As a result of matters discovered during a survey of the facility on August 5, 1998, the Agency changed the Emerald Oaks' license rating from standard to conditional. The conditional license was to expire on October 31, 1998. James Marrione was one of the surveyors who conducted the survey which resulted in the change in rating. The survey began on August 1, 1998. His examination of the records of various residents of the facility resulted in the discovery of several Class II deficiencies. One of the requirements placed upon a SNF is to develop policies to prevent the mistreatment of residents. Federal law mandates the establishment of a minimum data set of records (MDS) for each resident of an SNF. The MDS is to contain at least an assessment of the resident and a plan of care. When Mr. Marrione checked the MDS for Resident 4 on August 1, he found a current assessment had not been done. Resident Four: In addition to checking the MDS, Mr. Marrione also visited this resident and found the resident suffered bi-lateral contractions of the hands. This condition is usually caused by a neglectful failure to attend to the paralysis caused by a misuse or non-use of the hands. This is not a routine condition. On the day of Mr. Marrione's visit, he found the resident lying flat in bed in the same position from 2:00 to 4:00 p.m. Marrione checked on the resident every half hour during that period to see if the resident had been moved every two hours as the care plan called for, and to see if any of the resident's personal needs had been met. The resident was incapable of holding a cup from which to drink, and needed help. At first, Mr. Marrione did not check on the pad under the resident, but the resident said she was incontinent. As a result, at 4:15 p.m. on that day, Mr. Marrione asked for assistance and looked at the resident's buttocks. He found the resident's skin to be excoriated and the pad soaked with urine. Mr. Marrione also noted that the care plan called for the resident to be wearing booties to prevent damage to the skin of the heels, but none were present. Ms. Mitchell headed the unit where Resident 4 was housed, and she is sure that the resident regularly wore booties in bed and never developed pressure sores on her heels. She was evaluated at bath time and regularly in between, and if any skin deterioration was noted, the physician would be called. In addition, the resident was discussed regularly at team meetings. Notwithstanding these procedures in place, no evidence was presented to contradict Mr. Marrione's eye-witness recollection that when he saw the resident she did not have booties on, and that the resident developed a pressure sore after admission because of a lack of proper care. Resident Six: Mr. Marrione also visited with Resident 6 on August 4, 1998. When he entered the resident's room he smelled a strong odor of feces. He came back to this room every half hour, and each time, smelled the same odor. He determined that the resident had not been moved periodically as required. When he looked at the resident's bottom, he found it red and excoriated as well. Mr. Marrione again visited Resident 6 at 7:45 p.m. On this occasion he again noticed the odor of feces and when he checked the resident's buttocks, he found them still to be red and excoriated. He also noticed a stage 2 pressure sore on the buttocks right below the cheek, which had not been there on the previous visit. Mr. Marrione's review of the MDS relating to this resident dated April 29, 1998, showed that at that time the resident had no pressure sores. However, it was mentioned that the resident was incontinent of bowel and bladder. This is important because moisture from urine and feces contributes to skin breakdown, and the orders in the resident's file called for the resident to be kept dry and taken to the toilet frequently. A significant change to the resident's MDS on June 29, 1998 showed a stage 2 pressure sore had been identified, and on July 1, 1998, a physician ordered an antibiotic for the resident and that a cream be applied to the area to keep out moisture. Marrione's review of the records for this resident showed no skin assessments having been done thereafter except for one on July 27, 1998. In the interim, however, the care plan for Resident 6 dated July 7, 1998 revealed the existence of a condition leading to a pressure sore and directed action to prevent it. However, the resident's record shows that on July 27, 1998, stage 1 and stage 2 pressure sores were found. The records also contained doctor's orders to keep the resident's heels elevated, but when Mr. Marrione checked, he found the resident's heels were on the bed surface. Observations made on each of the survey days showed the resident had a stage 2 pressure sore on the buttocks, but there was no indication that this incontinent resident had been taken to the toilet frequently as the doctor had ordered. A pressure sore is a break in the skin and is classified as to severity from stages 1 through 4. The higher the number, the more severe the condition. A stage 2 pressure sore is only a break in the skin, However, it can lead to infection, can cause loss of protein, and is uncomfortable to the patient. If untreated, and if it progresses to stage 4, it can be very serious. To prevent pressure sores, it is necessary to keep the patient clean and dry and to turn the resident every two hours. Not all pressure sores are avoidable, however. Regardless of how good the care given is, some pressure sores will develop on some patients. In that regard, Resident 6 was an extremely sick resident with physical conditions which contributed to the development of pressure sores. Mr. Marrione admits this resident was very difficult to manage. He was quarrelsome, non-compliant, uncooperative, and argumentative, and these factors contributed to the development of his pressure sores. The resident's physician, Dr. Harris, indicated in a handwritten note dated August 12, 1998, that the staff's attention to the resident's hygiene had been "quite adequate" in maintaining the resident's quality of life and health. Ms. Mitchell, the facility's former unit manager, knew Resident 6 from another nursing home. She recalls that he had numerous health problems and his general skin integrity was very fragile. She remembers him as being very uncooperative. He would refuse meals and refuse to take nutritional supplements. He was offered any food he wanted, but he still resisted eating, even though a nutritional assessment indicated dietary problems. The resident also had numerous circulatory problems and was incontinent of bowel and bladder. Nonetheless, he refused urinals and resisted going to the bathroom, voiding in his bed instead. As a result, he was identified as a risk for pressure sores, and was referred for evaluation to the trans-disciplinary team (TDT) which recommended repositioning, creaming of the skin, hydration, washing and cleaning the body, and, because he could turn himself in bed to some degree, the use of bed-side rails to allow him to turn himself more easily. All of the recommendations of the TDT were regularly offered to Resident 6, but due to his lack of compliance, often they could not be implemented. The resident refused to use the call button available to him, and when a pillow was placed under his feet to keep them off the bed, he would pull it out. Notwithstanding the resident's total lack of cooperation, staff remained available to help in any way possible and no service was denied him. He was placed on regular incontinent care status which called for him to be taken to void himself no less than every two hours, and if he was seen to be soiled before then, he was cleaned. He did not have to wait until the next toilet run. In addition, the staff got the resident's son involved in an effort to encourage him to cooperate, but nothing they did worked. Ms. Mitchell is confident that the care given Resident 6 in general was excellent, not only at the time of the survey, but at all times. In her considered opinion, given his medical condition, his pressure sores were unavoidable. In light of the evidence presented regarding Resident 6, it cannot be found that the facility's staff acted in an inappropriate manner, and the resident's condition is deemed to be the result of his physical condition and lack of cooperation, and not as a result of any failure on the part of the facility or its staff. Resident Fifteen: Marrione's review of the records relating to Resident 15 revealed physician orders dated October 23, 1997, which called for the resident to wear booties. When Marrione looked at this resident on August 5, 1998, he discovered that the resident was not wearing booties as ordered. He does not know if the resident was provided with booties on other days of the survey. The booties referenced are padded and are worn by the resident to prevent skin breakdown. Ms. Weyant recalls, as to Resident 15, that she regularly and routinely had and wore in bed the booties called for by the physician's orders in the file, with some exceptions. In Weyant's opinion, the occasional failure to ensure booties were worn by the resident had no adverse effect of the resident's skin condition. This resident was regularly observed and her skin evaluated on a daily basis. Ms. Weyant cannot recall seeing any pressure sores on the resident's heels at any time. Resident Sixteen: Review of the records of Resident 16 showed that on July 6, 1998, when admitted to the facility, the resident showed no indication of pressure sores. The resident was identified as incontinent of bladder and at risk for skin breakdown. The care plan called for action to assist the resident and included mobility and toileting. Nurses' notes for July 28, 1998 showed two pressure sores had developed. Pressure sores are a constant threat to bedridden patients. However, there are preventive measures which can be taken to reduce the risk that a patient will develop them. These include following prescribed protocols set out in the MDS and assessments; turning and repositioning the patient on a frequent and regular basis; keeping the patient clean and dry; ensuring the patient gets proper nutrition; and cushioning the likely areas of abrasion. As to the turning and repositioning, as a general rule, two hours between turnings is appropriate. Resident Two: Ms. O'Connell, the Agency's other nurse surveyor on this survey, reviewed Resident 2, a patient initially admitted to the facility with a fracture of the femur and lung disease. These conditions resulted in restricted movement. Her review of the MDS disclosed that the resident had a stage 1 (healed) pressure sore and a stage 2 (pink) pressure sore upon admission which had developed into a stage 3 pressure sore on May 28, 1998, fifteen days later. This resident wore a brace on her leg which restricted her mobility and increased the need of the staff to help her with her mobility. When the pressure sores were discovered, an interdisciplinary care plan was formulated to deal with them. This plan included repositioning the resident every two hours. The resident was observed by the surveyors at least once each shift on each of the three days of the survey. The surveyors reported that each time she was looked at, at least nine times, the resident was seen to be lying on her back. This indicated to Ms. O'Connell that the resident was not being turned properly. Ms. O'Connell cannot be sure if she, or any of the other surveyors, actually saw the pressure sores on this resident. According to Ms. Weyant, the registered nurse unit supervisor of the unit in issue here, Resident 2, whose primary diagnoses on admission were a fractured femur and lung disease, also suffered from congestive heart failure and other complications. When, several weeks after her admission, staff noticed the stage 2 and stage 3 pressure sores which had not been there upon admission, they continued to monitor the condition. In June, the resident's physician said the leg brace could come off while the resident was in bed, and in July 1998 she was allowed to have it off even when out of bed. By that time, the pressure sores had improved to stage 2 and by the end of July they were at stage 1 and were considered healed soon thereafter. However, Ms. O'Connell also noted that when she saw the resident on August 5, 1998, the resident was sitting, exposed, on the bed pan, with no covers concealing her except on her feet. The resident subsequently left the facility to return to the adult living facility where she had lived before coming to Emerald Oaks. In the opinion of Ms. Weyant, a unit manager at the facility, Resident 2 had poor circulation which is a contributing factor to the formation of pressure sores. So was the pain she experienced from her fracture which reduced her mobility. The resident also was not a co-operative patient, Ms. Weyant recalls. She would refuse to change position or to get out of bed even though the staff explained to her that it would be in her best interests to do so. The resident was competent and, therefore, could refuse treatment. Though Ms. Weyant claims a notation to this effect is in the resident's records, no direct evidence of this was presented by either side. Regardless, even when a resident is uncooperative, according to Ms. Weyant, the staff continues to try interventions such as repositioning. Though she is sure this was done in this case, she cannot be sure it was documented. Nonetheless, as the resident's leg healed, she became more mobile and her pressure sore healed more rapidly. As her leg healed, she was in less pain and became more cooperative. This resulted in faster healing. Ms. Weyant cannot conceive of what more could have been done to prevent pressure sores from developing on this resident than was done. Under the circumstances of that case, she considers it to have been almost unavoidable. However, without adequate documentation in the medical records, in light of the survey observations, it cannot be found that the resident was properly moved or repositioned as required. As a result of this survey, the deficiencies identified were classified as Class II deficiencies which, under Florida law, automatically results in the issuance of a conditional certificate.
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 confirming the issuance of a conditional license to Emerald Oaks, effective August 5, 1998. DONE AND ENTERED this 23rd day of September, 1999, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of September, 1999. COPIES FURNISHED: Jay Adams, Esquire Broad and Cassel 215 South Monroe Street Suite 400 Post office Drawer 11300 Tallahassee, Florida 32302 Karel L. Baarslag, Esquire Agency for Health Care Administration 2295 Victoria Avenue Fort Myers, Florida 33901 Sam Power, Agency Clerk Agency for Health Care Administration Fort Knox Building 3 Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308 Julie Gallagher, General Counsel Agency for Health Care Administration Fort Knox Building 3 Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308
The Issue The issues are whether Respondent committed the violations alleged in the Administrative Complaint concerning three nursing home residents, whether Petitioner should impose a civil penalty of $2,500 for each violation, whether Petitioner should change the status of Respondent's license from standard to conditional, and whether Petitioner should recover investigative costs.
Findings Of Fact Petitioner is the state agency responsible for licensing and regulating nursing homes in Florida. Respondent is licensed to operate an 87-bed nursing home located at 3250 12th Street, Sarasota, Florida (the facility). From February 9 through 11, 2004, Petitioner's staff inspected the facility pursuant to regulatory requirements for an annual survey of such facilities (the survey). At the conclusion of the survey, Petitioner issued a document identified in the record as CMS Form 2567L (the 2567 form). The 2567 form alleges violations of federal nursing home regulations that Petitioner has adopted by rule. The Administrative Complaint incorporates the factual allegations from the 2567 form and charges Respondent with committing four violations alleged to be Class II violations defined in Subsection 400.23(8)(b), Florida Statutes (2003). Counts I through III in the Administrative Complaint allege that facility staff committed acts involving residents identified in the record as Residents 14, 7, and 8. Count IV alleges that the allegations in Counts I through III show that Respondent administered the facility in a manner that violated relevant regulatory provisions. Counts I through IV propose an administrative fine of $2,500 for each alleged violation and the recovery of unspecified investigative costs. Count V alleges that the allegations in Counts I through III require Petitioner to change Respondent's license rating from standard to conditional while the alleged deficiencies remained uncorrected. Count I alleges that a staff nurse at the facility abused Resident 14, an elderly female. The substance of the allegation is that the nurse "intentionally caused pain" to Resident 14 by raising the resident's left hand above her head so the resident would open her mouth and allow the nurse to ensure the resident had swallowed her medication. Respondent admitted Resident 14 to the facility on January 31, 2000, with multiple health problems, including anxiety, paranoia, psychosis, delusions, and disorientation due to dementia. Resident 14 was not ambulatory and suffered poor wheel chair positioning for which she had been evaluated and received therapy. Resident 14 was non-verbal, angry, aggressive, combative with staff and other residents, displayed territorial aggression, and a tendency to strike out at others. Prior to admission, Resident 14 had suffered a fracture of the left arm resulting in a limited range of motion in her left shoulder of 60 degrees. At the time of the survey, Resident 14 was approximately 93 years old. Two surveyors observed a staff nurse administering medication to Resident 14 while the resident was sitting in her wheel chair in her room. Resident 14 did not respond to repeated cues from the nurse to open her mouth so the nurse could ensure the resident had swallowed her medication. The nurse continued to observe Resident 14 for some indication the resident had not swallowed her medication and offered pudding to the resident. Resident 14 remained unresponsive. The nurse directed a certified nurse assistant (CNA) to give Resident 14 breakfast and left to care for other residents. The surveyors asked the nurse to return to the room to ensure that Resident 14 had swallowed her medication. Resident 14 did not respond to additional cues from the staff nurse to open her mouth because the resident was distracted by the surveyors. The staff nurse attempted to redirect the attention of the resident to the nurse's cues to open her mouth by holding the resident's left hand and raising her hand and arm. Resident 14 opened her mouth, and the staff nurse observed no medication in the resident's mouth. The disputed factual issues call into question how quickly and how high the staff nurse raised the left hand of Resident 14, whether the resident suffered pain, and whether the staff nurse knew the action would cause pain. Although Resident 14 was non-verbal, Count I alleges, in relevant part, that Resident 14 cried "OW" when the staff nurse, without warning, raised the resident's hand over her head. A preponderance of evidence does not show that the staff nurse lifted the hand of Resident 14 in an abrupt manner. During cross-examination of the surveyor, counsel for Respondent conducted a reenactment of the alleged incident. The witness verified the manner in which the person acting as the staff nurse in the reenactment raised the left hand and arm of the person acting as Resident 14. The demonstration did not show the staff nurse acted abruptly. The reenactment showed that the description of the incident by the surveyor was less than persuasive. Petitioner admits in its PRO that a determination of whether the staff nurse raised the resident's hand gently or abruptly is a "matter of perspective." Petitioner argues unpersuasively at page 14 in its PRO that the surveyor's perception should be accepted because: Clearly, the surveyor would not have made comment if the resident had been treated in a gentle manner. Petitioner cites no evidence or law that precludes the written statement provided by the staff nurse during the facility's investigation of the incident from enjoying a presumption of credibility equivalent to that Petitioner claims for the report of the surveyor. The staff nurse had been a nurse at the facility for 19 years without any previous complaints or discipline and had ample experience with residents that suffered from dementia. The nurse had cared for Resident 14 for most of the four years that Resident 14 had been a resident at the facility. Irrespective of how fast and high the staff nurse raised the hand of Resident 14, a preponderance of evidence does not show that Resident 14 suffered an injury or harm that is essential to a finding of abuse. The surveyor asked Resident 14 if the resident had been in pain prior to the incident. Resident 14 was "unable to speak," according to the surveyor, but nodded affirmatively. Resident 14 did not indicate the source or location of any pain, and there is no evidence that the surveyor asked Resident 14 to indicate to the surveyor where the resident was experiencing pain. After the incident, the surveyors undertook no further inquiry or investigation, did not question the nurse or the resident further, and refused a request by facility administrators for a written statement describing the incident. The surveyors at the facility did not make a determination of whether the incident resulted in "harm" to Resident 14. Rather, the allegation of harm arises from Petitioner's employees who did not testify at the hearing. The determination of harm is uncorroborated hearsay, and the trier of fact has not relied on that determination for any finding of fact. Upon learning of the incident, Respondent's nursing staff immediately examined Resident 14 for injuries, had Resident 14 examined by her physician, and had Resident 14 x-rayed for possible injuries. No injury was found. Resident 14 did not complain of pain when her physician performed a range of motion examination on the suspect arm. Resident 14 was able to move both of her arms without pain. The medical records for Resident 14 and the testimony of her occupational therapist show that the resident had use of her left arm. Resident 14 frequently flailed both arms in an effort to strike others. Notes in the medical records show that Resident 14 "lashes out," "swings her arms," was "physically abusive to staff when attempting to provide care," and "refused to open mouth and became agitated and combative." The limited range of motion in the left shoulder of Resident 14 did not prevent Resident 14 from raising her left hand above her head while seated in a wheel chair. Resident 14 sat in a wheel chair with a forward pelvic thrust, causing her to slump with a lateral lean to the left. The wheel chair position effectively lowered the resident's head, reduced the distance between her head and left hand, and enabled the resident to raise her left hand above her head without pain. Count II alleges that Respondent failed to assist Resident 7 in "coping with changes in her living arrangements in a timely manner" after Resident 7 became upset that her guardian was selling her home. The allegation is not supported by a preponderance of evidence. Respondent admitted Resident 7 to the facility in September of 2003. Prior to admission, the circuit court for Sarasota County, Florida, entered an order appointing a guardian for Resident 7. In relevant part, the court order authorized the guardian to determine residency of Resident 7 and to manage her property. Prior to December 28, 2003, Resident 7 was reasonably content. Social service's notes in October 2003, show that Resident 7 was "alert with no mood or behaviors." Nurses notes in November 2003, show Resident 7 to be "pleasant" with a "sense of humor." On December 28, 2003, Resident 7 became angry when her guardian revealed plans to sell the resident's home. Resident 7 continued to exhibit anger for several weeks. On January 6, 2004, Respondent conducted a care plan conference with the guardian for Resident 7, discussed Resident 7's emotional state, and obtained the guardian's consent for counseling. Pursuant to the care plan, Respondent's social services staff met with Resident 7 regularly and provided psychological counseling twice a week. Facility staff did not undertake discharge planning for Resident 7. Staff provided other assistance to the resident, but that assistance was minimal and consisted mainly of giving Resident 7 telephone numbers to contact the Long Term Care Ombudsman in the area and the attorney for the guardian. The sufficiency of the other assistance provided by Respondent is not material because the court convened a second hearing to consider the objections of Resident 7 to her guardian and to consider a competency examination by another physician. On February 6, 2004, the court entered an order denying the resident's suggestion of capacity and authorizing the guardian to sell the residence. The allegation that Respondent should have undertaken discharge planning is not supported by a preponderance of the evidence. Pursuant to two court orders, Resident 7 continued to be in need of a nursing home level of care, and her expectations for discharge to a lower level of care were unrealistic. Count III alleges that a facility staff nurse failed to administer analgesic medication to Resident 8 causing "continued pain and emotional stress to the resident." Resident 8 experienced chronic pain from a joint disorder. A care plan for pain management, in relevant part, authorized Tylenol as needed. A preponderance of evidence does not show that Respondent failed to provide Tylenol to Resident 8 in accordance with the care plan. During the survey, a surveyor observed staff at the facility reinserting a catheter into a vein of Resident 8. The witness for Petitioner testified that the procedure did not cause Resident 8 to experience pain. It is undisputed that Resident 8 did not request pain medication and that no pain medication was medically required prior to the procedure. Respondent did provide Resident 8 with a prescription medication to calm the resident. The preponderance of evidence does not show that Respondent failed to ensure that Resident 8 obtained optimal improvement or that Resident 8 deteriorated. Petitioner submitted no evidence that Resident 8 experienced any lack of improvement or decline in functioning or well-being. Count IV in the Administrative Complaint alleges that the allegations in Counts I through III show that Respondent failed to administer the facility in a manner that enabled the facility to use its resources effectively and efficiently to maintain the highest practical well-being of Residents 14, 7, and 8. For reasons previously stated, the preponderance of evidence does not show that Respondent committed the acts alleged in Counts I through III. Without the violations charged in Counts I, II, or III, the charges in Count IV are moot. Assuming arguendo that the staff nurse abused Resident 14, a preponderance of evidence does not show that Respondent failed to take action that could have prevented such abuse. Petitioner's surveyor was unable to explain in her testimony how Respondent could have prevented the alleged abuse. The surveyor did not report the incident to management at the facility for approximately 1.5 hours. Management immediately suspended the staff nurse and undertook an investigation required by law. Petitioner's surveyors refused to provide written statements describing the incident. The staff nurse provided a written statement that Respondent included as part of its investigation and report to Petitioner. Respondent maintains adequate policies and procedures for background screening and regular training for its staff relating to abuse and neglect of residents. Respondent had accomplished all background screening and abuse training requirements for the staff nurse involved in the incident. Respondent had no information in the nurse's history that would have enabled the facility to predict any potential for this staff nurse to intentionally harm a resident. A preponderance of evidence does not show that Respondent failed to administer the facility in a manner that would ensure the highest practical well-being for Resident 7. Two court orders determined that Resident 7 was incompetent and authorized the guardian to sell the resident's real property. The opinion of a surveyor that Resident 7 was "clearly competent" does not eviscerate the findings of the court. A preponderance of evidence does not show that Respondent failed to administer the facility in a manner that would ensure the highest practical well-being for Resident 8. Respondent maintained an adequate pain management care plan for Resident 8 that included Tylenol as needed. It is undisputed that the care plan did not require Tylenol before or after the re-insertion of the catheter into the vein of Resident 8, that insertion of the catheter caused Resident 8 no pain, that Tylenol was not medically required before or after the procedure, and that Respondent provided Resident 8 with a stronger prescription medication for anxiety. Count V of the Administrative Complaint alleges that the allegations in Counts I through IV require Petitioner to change the status of Respondent's license from standard to conditional. In the absence of the violations charged in Counts I through IV, there is no factual basis to support the proposed change in the status of Respondent's license.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent not guilty of committing the violations charged in the Administrative Complaint. DONE AND ENTERED this 4th day of February, 2005, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 2005. COPIES FURNISHED: Alfred W. Clark, Esquire 117 South Gadsden Street, Suite 201 Post Office Box 623 Tallahassee, Florida 32302-0623 Gerald L. Pickett, Esquire Agency for Health Care Administration Sebring Building, Suite 330K 525 Mirror Lake Drive, North St. Petersburg, Florida 33701 Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration Fort Knox Building, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308 Alan Levine, Secretary Agency for Health Care Administration Fort Knox Building, Suite 3116 2727 Mahan Drive Tallahassee, Florida 32308
Findings Of Fact The Petitioner is an elderly lady who is the recipient of benefits pursuant to the "Home Care for the Elderly" program administered by the Respondent pursuant to Section 410.035, Florida Statutes. The subject program is designed to be an alternative to institutionalized care in a nursing home for such elderly, physically disabled citizens as the petitioner, Mrs. Sapp. The program's purpose is to enable such persons to remain in a physically and emotionally wholesome family environment, if at all possible, rather than being forced to reside in a nursing home institution when they are no longer able to care for themselves. In the Petitioner's case, a family member, Mrs. Taylor, is able to provide round-the-clock care for the Petitioner in return for which the Respondent (Department) pays the Petitioner a home care subsidy based upon a flat rate schedule in some way related to the recipient's income (See Exhibit No. 1). The State benefits by such a program since a recipient such as the Petitioner, who qualifies fully for subsidized care in a nursing home, with its substantially greater expense, can be maintained much less expensively at home. On or about July 1, 1980, the petitioner received notice from the Federal social Security Administration that her Supplemental Security Income benefits would be increased due to an increase in the cost of living during the past year. Because of this and because the petitioner had no other "countable income" for the purposes of the Social Security Act benefits, her Supplemental Security Income (551) was raised to $238.00 per month. Upon learning of the increase in the Petitioner's 551 benefits, the Respondent, apparently following the subsidy schedule contained in Exhibit No. 1, reduced the benefits paid to the Petitioner from $96.00 per month to $72.00 per month. The subsidy schedule contained in Exhibit No. 1 makes no allowance for increase in the cost of living, but rather, is apparently based on the "institutional care policy" or based (pursuant to Section 410.035, Florida Statutes) on the minimum payment the recipient would be entitled to for full institutional nursing home care. The State subsidy amounts depicted on Exhibit No. 1 may be within the range of less then 45 percent and more than ten percent of the minimum institutional nursing home care payment pursuant to Section 409.266, Florida Statutes, but there is no showing of the amount of such institutional care benefits. The Respondent described the income received from the federal program and other sources as a dollar-for-dollar "set off" against the income she receives from the home care subsidy program. That contention is not accurate, however, inasmuch as the State subsidy benefit reduction involved herein was not a reduction in the same sum as the subject increase in the federal 551 payment, and additionally, once the State benefits were reduced to the disputed amount of $72.00 per month, then they would remain at $72.00 per month oven if the federal benefits ultimately increased by several hundred dollars. Thus, it is obvious that the federal benefits do not operate as a dollar-per-dollar "set off" against the State benefits normally due. The Respondent's position that the federal benefits are fully countable income in calculating the amount of benefits due in order to provide such a recipient as the Petitioner with her fully allowable income under this Home Nursing Care program, is not an accurate description of the State policy nor the means by which the State benefits are calculated. It is undeterminable how the benefits are calculated or why and in what manner the federal benefits under the SSI program are considered in large part to be "countable income" in determining the Petitioner's financial status and entitlement under the State program. The Respondent apparently arrived at the $24.00 per month reduction in benefits under the Section 410.035 program by applying the Petitioner's new increased income under the federal program to the corresponding chart of State benefits contained in Exhibit No. 1, the origin or derivation of which was not shown. There was no definitive showing of the amount of relevant nursing home care payments which the Petitioner would be entitled to if she were confined in a nursing home, and thus no means to calculate the fractional portion thereof due the Petitioner as a subsidy for home nursing care pursuant to the program under discussion.
Recommendation Having considered the competent, substantial evidence of record, the foregoing Findings of Fact and the Conclusions of Law, it is concluded that competent, substantial evidence has not been presented which will sustain the Respondent's burden of proving adequate justification for its reduction of the Petitioner's Home Care for the Elderly benefits. It is, therefore, RECOMMENDED that the Petitioner continue to receive the benefits in the amount of $96.00 per month which she was receiving prior to the agency action herein involved and that Home Care for the Elderly benefits withheld from her pursuant to the agency's action be restored. DONE and ENTERED this 6th day of November, 1980, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of November, 1980. COPIES FURNISHED: Mrs. Ada Sapp Route 3, Box 137 Cottondale, Florida 32431 John L. Pearce, Esquire District II Legal Counsel Department of Health and Rehabilitative Services 2639 North Monroe Street Suite 200-A Tallahassee, Florida 32303
The Issue Was Petitioner properly cited for a Class III deficiency.
Findings Of Fact Horizon Healthcare & Specialty Center (Horizon), is an 84-bed nursing home located at 1350 South Nova Road, Daytona Beach, Florida. It is licensed under Chapter 400, Part II, Florida Statutes. The Agency for Health Care Administration (AHCA) is the state agency charged with licensing and regulating nursing homes in Florida. On August 14, 2000, AHCA conducted a survey of Horizon. This was accomplished in part by Rose Dalton, a nurse. At the hearing Ms. Dalton was determined to be an expert in nursing care. A report on a nursing home survey is made on a Form 2567-L which is approved by the U.S. Department of Health and Human Services, Health Care Financing Administration. A Form 2567-L was generated as a result of Ms. Dalton's survey. It was reported under the category Tag 327. Resident 7. Ms. Dalton, in conjunction with the survey team accompanying her, determined on August 17, 2000, that Resident 7 was dehydrated. This conclusion was reached because facility records indicated that Patient 7 had a blood urea nitrogen (BUN) of 57 on August 7, 2000, with normal being 6-26, and a high normal creatinine of 1.6. Another factor used in concluding that Resident 7 was dehydrated was a report dated August 8, 2000, which revealed a BUN of 34. On August 12, 2000, a report indicated a BUN of 43 and a creatinine of 1.9. The survey team was also aware that Resident 7 was ingesting Levaquin, a powerful antibiotic which requires that a patient remain well-hydrated. Ms. Dalton and the survey team cited the facility with a Class III deficiency, for state purposes, and a "G" on the federal scale. The federal scale goes from "A", which is a deficiency which causes no harm, to "J", which is harm which may cause death. The "G" level meant that it was the team's opinion that there was great potential for actual harm. Resident 7 was admitted on August 3, 2000. Among other ailments, Resident 7 was suffering from a femoral neck fracture and renal insufficiency when admitted. The resident contracted a urinary tract infection (UTI), and was being administered Levaquin, an antibiotic appropriate for UTI treatment. On August 8, 2000, a physician's order requested that the patient be encouraged to consume fluids. It is Ms. Dalton's opinion that Resident 7 was not provided proper fluid intake by the facility which could have caused serious health consequences for Resident 7. When Resident 7 was in the hospital, prior to being admitted to Horizon, his BUN was 41 and his creatinine was 2.3, which is consistent with Resident 7's chronic renal insufficiency. The BUN of 43 and creatinine of 1.9 observed in the facility on August 12, 2000, did not indicate Resident 7's condition was worsening, and in fact, it was improving marginally. The values for a normal BUN might vary from laboratory to laboratory but generally a normal BUN would be around 25 or less. Because of Resident 7's underlying renal disease and ischemic cardiomyopathy, it was unlikely that Resident 7 would ever manifest a BUN which would be considered normal. Dr. Elizabeth Ann Eads, D.O., an expert in the field of geriatric medicine, reviewed the laboratory values and the nursing notes in the case of Resident 7. It is her opinion, based on that review, that the facility provided appropriate care, that the patient improved during the stay at the facility, and that there was nothing in the record which suggested any actual harm to Resident 7. This opinion was accepted. Resident 8. Ms. Dalton opined that, based on her personal observation and a review of Resident 8's medical records, that the facility failed to respond to the hydration needs of Resident 8 and did not follow the care plan which was developed for Resident 8. Ms. Kala Fuhrmann was determined to be an expert in the field of long-term care nursing. She noted that Resident 8 was admitted to the facility on August 1, 2000. Resident 8's hospital records indicated that Resident 8 might be developing a UTI based on a urinalysis performed on July 31, 2000, which revealed blood and protein in the urine. On August 3, 2000, Resident 8's doctor started an antibiotic, Levaquin, and ordered another urinalysis. On August 4, 2000, a culture determined that Resident 8 was positive for a UTI, so the antibiotic treatment was continued. On August 15, 2000, it was determined the UTI had been cured. During the course of the UTI, Resident 8 was incontinent, which is often the case when elderly patients are afflicted with UTI. By August 18, 2000, Resident 8 was continent. It is Ms. Fuhrmann's opinion that the care provided to Resident 8 was appropriate and that there is nothing in the record which demonstrates that anything less than adequate hydration was provided to this resident. This opinion was accepted.
Recommendation Based upon the Findings of Fact and Conclusions of Law, RECOMMENDED: That the Agency for Health Care Administration enter a final order dismissing the allegations set forth in relation to the TAG 327. DONE AND ENTERED this 12th day of June, 2001, in Tallahassee, Leon County, Florida. HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of June, 2001. COPIES FURNISHED: Karen L. Goldsmith, Esquire Goldsmith & Grout, P.A. 2180 North Park Avenue, Suite 100 Post Office Box 2011 Winter Park, Florida 32790-2011 Michael O. Mathis, Esquire Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building Three, Suite 3431 Tallahassee, Florida 32308-5403 Sam Power, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building Three, Suite 3431 Tallahassee, Florida 32308 Julie Gallagher, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building Three, Suite 3431 Tallahassee, Florida 32308
The Issue The issue for consideration in this matter is whether Respondent’s Extended Congregate Care (ECC) license for the facility at 302 11th Avenue, Northeast, in St. Petersburg, Florida, should be renewed, and whether her license to operate that assisted living facility should be disciplined because of the matters alleged in the denial letter dated April 16, 1998, and in the Administrative Complaint filed herein on December 15, 1998. Ms. Berthelot requested formal hearing on those issues, and this hearing ensued.
Findings Of Fact At all times pertinent to the issues herein, the Agency for Health Care Administration (Agency) was the state agency in Florida responsible for the licensing and regulation of assisted living facilities in this state. Respondent Marlene C. Berthelot operated Four Palms Manor, a licensed assisted living facility located at 302 11th Avenue, Northeast, in St. Petersburg, Florida. Ann DaSilva had been a surveyor of assisted living facilities for the Agency for at least five years at the time of the initial survey in this matter that took place in December 1997. On that occasion, Ms. DaSilva, in the company of another surveyor, Mr. Kelly, inspected the facility in issue on a routine basis. At that time, Ms. DaSilva noted that with regard to at least one resident, there was no health assessment by the resident’s physician in the resident’s file. A health assessment should contain the physician’s evaluation of the resident’s capabilities and needs, as well as his or her initial status upon admission. In this case, Ms. DaSilva found that the health care provider had not addressed the skin integrity of the resident at the time of admission as should have been done. This is important because if the resident had had a skin problem or some other health problem, the resident might well not have been eligible to reside in the facility because facilities of this kind normally do not have the capability of treating pressure sore ulcers. Ms. DaSilva also found that the health assessment did not accurately reflect the resident’s status at the time of the survey. She found the resident was far less capable of doing what the health assessment said she could do, and the assessment was neither current nor accurate. The resident required assistance in all activities of daily living, and it was reported the resident fell out of bed because she could not stand. This situation was written up as Tag A-403. Tag A-403 was re-cited in a follow-up survey conducted on March 26, 1998. At that time the surveyor found that the health assessment did not address the resident’s method of medication administration. On admission, the resident was receiving no medications at all. After she began taking medications, the facility failed to get an order from her physician to indicate how the medications were to be administered, self or with help of staff administration. Tag A- 403 was cited for a third time in the October 1998 survey where the same deficiency, as cited in the March survey, the failure of the file to reflect how the resident’s medications were to be administered, was again cited. The record still did not indicate how the resident was to receive her medications. This tag was classified as a Class III deficiency and that classification appears to be appropriate. Tag A-406, which deals with the facility’s need for an evaluation of the resident’s ability to self-preserve in case of emergency, was also cited as a deficiency in the December 30, 1997, survey. There was no evidence in the file that such an evaluation was accomplished during the first 30 days after admission regarding this resident as is required by rule. Ms. DaSilva observed the resident in bed at 9:30 a.m., and the nurses’ notes reflected she was totally dependent and needed help with locomotion. The resident suffered from cerebral palsy with severe paresis (weakness) on one side. This situation raised the surveyor’s concern as to whether the resident could get out of the facility in the event of an emergency. No indication appeared in the records or documentation regarding this resident, and no supplement was provided upon the request of the surveyor. Ms. DaSilva also heard the resident call out for assistance, a call which remained unanswered because the one staff member on duty at the time was not in the immediate area. Ms. DaSilva observed that the resident was not able to stand without assistance but the facility’s paper-work indicated the resident could self-ambulate. This was obviously incorrect. When the facility administrator, Ms. Berthelot, was called by her staff manager, she came to the facility to assist in finding the requested paperwork, but was unable to locate in the file any evaluation of the resident’s capability to self-preserve. Tag A-406 was re-cited in the March 1998 survey because again there were two residents who had been in the facility for over 30 days without any evaluation of their ability to self- preserve. It was cited for a third time during the October 1998 survey when the surveyor found two other residents who had been in the facility for over 30 days but who had not been evaluated for their ability to self-preserve, and notwithstanding a request for such documentation, none was found or produced. This resulted in Tag 406 being classified as a Class III deficiency. At the March 26, 1998, survey, Ms. DaSilva cited Tag A-504, which deals with the requirement for direct care staff to receive training in patient care within 30 days of being hired. The Agency requires documentation of such training, and surveyors look at the files of the staff members on duty to see if the employee’s file contains certification of the proper training, appropriate application information, references, and like material. This information is needed to ensure that the employee is qualified to do the job. Here, examination of the facility’s files failed to show that the one staff person on the premises during the evening shift Monday through Friday, Employee No. 1, had had the proper training. It also appeared that Employee No. 3, who was hired to work alone on Thursday and Friday evenings and Saturday and Sunday day shifts, also did not have any record of required training. This subject matter was again cited during the October 1998 survey. When Ms. DaSilva requested the file of the individual on duty, there was nothing contained therein to reflect the individual had had the required training. This was properly classified as a Class III deficiency. Tag A-505 was also cited as a result of the March 1998 survey. This tag deals with the requirement for staff who provide personal services to residents to be trained in providing those services. Ms. DaSilva asked for and was given the facility’s files but could find no evidence of proper training having been given. This subject matter was again cited as a result of the October 1998 survey. At the hearing, Respondent presented certificates of training in personal hygiene, medication policy and training, and direct care 2-hour staff training, given to all employees of all Respondent’s facilities. These certificates reflect, however, that the training was administered on April 22, 1998, after the March 1998 survey but before the October 1998 survey, though that survey report reflects the item was again tagged because of employees scheduled to work alone who did not have documentation of appropriate training. This was a Class III deficiency. As a result of the December 1997 survey, Ms. DaSilva also cited the facility under Tag A-602, which deals with medication administration, and requires staff who administer medications to be trained in appropriate methods. At the time of the survey, Ms. DaSilva observed a staff member pour medications from prescription bottles into her hand, take the medications to the resident, and give them to her. This staff member was not a licensed person and only licensed staff may administer medications. At the time, when asked by Ms. DaSilva, the staff member admitted she was not licensed and had not received any training in medication administration. Tag A-602 was again cited as a result of the March 1998 survey because at that time Ms. DaSilva observed a staff member assist a resident correctly, but when she looked at the records, she found the member had not received the required training. This has, she contends, a potential for improper medications being given which could result in possible harm to the resident. This Tag was again cited as a result of the October 1998 survey. On this occasion, Ms. DaSilva’s review of records or employees who had indicated they had assisted with medications revealed no evidence of appropriate training. Here again, the training was certified as having been given in April 1998, and Respondent contends that by the time of the October 1998 survey, the certificates were in the records. They were not found by the surveyors, however, and it is the operator’s responsibility to make the records available. This constitutes a Class III violation. Under the rules supporting citation Tag A-703, a facility must have an ongoing activities program into which the residents have input. On December 30, 1997, Ms. DaSilva interviewed the residents who indicated there was no activities program at Four Palms. Ms. DaSilva observed no planned activities taking place over the six to seven hours she was there. This deficiency was re-cited during the March 1998 survey. Again, Ms. DaSilva interviewed the residents who indicated they watched TV or walked. A calendar of activities was posted, but there was no indication any were taking place, and upon inquiry, a staff member indicated none were being done that day. The activities calendar provided by the staff member merely listed potential activities, but did not indicate when or where they would take place. Ms. DaSilva again cited the facility for a deficiency in its activities program as a result of the October 1998 survey. At this time, she observed no activities during the time she was at the facility. The staff member on duty reported that the planned activity was not done because she did not have time to do it. At that time, residents were observed to be lying on their beds or watching TV. The one staff person on duty was cooking, cleaning, or helping residents with care issues. This is a Class III deficiency.
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 granting Respondent renewal of a license to operate Four Palm Manor, an assisted living facility at 302 11th Avenue, Northeast in St. Petersburg, Florida; granting renewal of the ECC license for the same facility; and finding Respondent guilty of Class III deficiencies for Tags 403, 406, 504, 505, 602, and 703 on the surveys done on December 30, 1997, and March 26, 1998. An administrative fine of $100 should be imposed for each of Tags 403, 404, 504, and 505. DONE AND ENTERED this 13th day of December, 1999, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850)488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of December, 1999. COPIES FURNISHED: Karel L. Baarslag, Esquire Agency for Health Care Administration 2295 Victoria Avenue Fort Myers, Florida 33901 Renee H. Gordon, Esquire Gay and Gordon, P.A. Post Office Box 265 St. Petersburg, Florida 33731 Sam Power, Agency Clerk Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308 Julie Gallagher, General Counsel Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308
