The Issue The issues for determination are whether Petitioner should have changed the status of Respondent's license from standard to conditional; and whether Petitioner should impose administrative fines of $7,500 and recover costs for alleged deficiencies in the care of four residents of a nursing home.
Findings Of Fact Petitioner is the state agency responsible for licensing and regulating nursing homes in Florida pursuant to Section 400.23(7), Florida Statutes (2003). Respondent is licensed to operate a 150-bed nursing home located at 2916 Habana Way, Tampa, Florida 33614 (the facility). Respondent admitted Resident 1 to the facility on March 9, 2001. The admitting diagnoses included tracheal bronchitis, diabetes mellitus, morbid obesity, and acute respiratory failure. From the time Resident 1 entered the facility until her death, Resident 1 lived with a tracheal tube in place. Resident 1 died on March 4, 2003, at 10:20 a.m. in the emergency room at St. Joseph's Hospital in Tampa, Florida. The tracheal tube of Resident 1 was completely occluded with hardened secretions when Resident 1 arrived at the hospital. The emergency room (ER) physician that treated Resident 1 testified by deposition. The ER physician diagnosed Resident 1 with respiratory arrest and death. However, the diagnosis is merely a clinical impression and is not a medical determination of the cause of death. No certain cause of death could be determined without an autopsy, and no one performed an autopsy on Resident 1. The diagnosis made by the ER physician is a clinical impression that is an educated guess. The respiratory arrest suffered by Resident 1 could have been precipitated by various causes including an occluded tracheal tube, a heart attack, or acute respiratory failure. The ER physician did not determine that the facility committed any negligence and found no evidence of negligence. The ER nurse who assisted the ER physician believed that the facility had been negligent in clearing the tracheal tube of Resident 1. The ER nurse suspected that secretions had been accumulating in the tracheal tube for several days and that the facility did not monitor or clean the tube because the tube was completely occluded when Resident 1 arrived at the hospital. The ER nurse notified Petitioner of her suspicions. On March 11, 2003, Petitioner conducted a complaint investigation of the facility in connection with the death of Resident 1. Petitioner determined that Respondent either had not assessed whether Resident 1 was capable of performing her own tracheal tube care; or had not monitored the respiratory status of Resident 1 between March 2 and March 4, 2003; or both. Petitioner determined that the alleged failure to assess and monitor Resident 1 violated 42 CFR Section 483.25(k)(4) and (5). Florida Administrative Code Rule 59A- 4.1288 applies the federal standard to nursing homes in Florida. 42 CFR Section 483.25(k)(4) and (5) requires Respondent to "ensure that residents receive proper treatment and care for . . . tracheostomy care (sic) . . . [and] tracheal suctioning." Petitioner assigned the charged deficiency a severity rating of class "II." In relevant part, Section 400.23(8)(b), Florida Statutes (2003), defines a Class II deficiency as one that has: compromised the resident's ability to maintain or reach his or her highest practicable physical, mental and psychosocial well-being, as defined by an accurate and comprehensive assessment, plan of care, and provision of services. Petitioner determined that a Class II rating was appropriate because the facility's alleged failure to provide Resident 1 with appropriate tracheal tube care harmed Resident 1. Petitioner changed the license rating for the facility from Standard to Conditional within the meaning of Section 400.23(7), Florida Statutes (2003). The change in license rating was effective March 11, 2003, when Petitioner completed the complaint survey of the facility. The Conditional rating continued until April 10, 2003, when Petitioner changed the rating to Standard. Petitioner also proposed an administrative fine of $2500 pursuant to Section 400.23(8)(b), Florida Statutes (2003). The preponderance of evidence shows, by various measures, that Respondent provided Resident 1 with proper treatment and care for her tracheotomy tube within the meaning of 42 CFR Section 483.25(k)(4) and (5). First, it is uncommon for a person to cough up material in a tracheal tube and have the material gradually accumulate until the tube closes. It is more likely that secretions coughed up will block the tracheal tube immediately. Second, the emergency medical team (EMT) that treated Resident 1 in the facility did not find it necessary to remove or replace the existing tracheal tube in order to obtain an open airway. Rather, EMT personnel administered oxygen through the existing tube. Third, Resident 1 had normal oxygen saturation levels on March 2, 2003. Finally, Resident 1 was experienced in maintaining her tracheal tube, was capable of clearing her own tube, and asked members of the nursing staff to clear the tube whenever Resident 1 needed assistance. On March 4, 2003, Resident 1 complained of shortness of breath rather than a blocked tracheal tube. The ER physician's testimony shows it is uncommon for a person to cough up material in a tracheal tube and have the material gradually accumulate until the tube closes. The ER nurse that suspected secretions had been accumulating in the tracheal tube of Resident 1 for several days had no experience caring for nursing home residents with tracheal tubes. Gradual accumulations of secretions in a tracheal tube are generally associated with a productive cough from causes such as infiltrated pneumonia. There is no evidence that Resident 1 had such a condition. It is more likely that any material Resident 1 coughed up would have occluded the tracheal tube immediately rather than accumulating over time. EMT personnel that treated Resident 1 in the facility did not find it necessary to remove or replace the existing tracheal tube in order to obtain an open airway. When EMT personnel arrived at the facility, Resident 1 was non- responsive. When confronted with a non-responsive patient, standard protocol requires EMT personnel to ensure an open airway. EMT personnel placed an oxygen "bag" over the existing tube to provide Resident 1 with oxygen. EMT personnel then transported Resident 1 to the hospital emergency room. In the emergency room, the ER physician found the tracheal tube of Resident 1 to be completely blocked with hardened secretions. He removed the tube, replaced it with an open tube, and unsuccessfully attempted to ventilate Resident 1. It is likely the hardened secretions found in the tracheal tube at the emergency room blocked the tube between the time EMT personnel administered oxygen to Resident 1 at the facility and the time the treating physician removed the tracheal tube in the emergency room. A contrary finding would require the trier of fact to speculate that EMT personnel found the tracheal tube to be blocked and administered oxygen to a closed tube; or incorrectly diagnosed Resident 1 with a clear tracheal tube before administering oxygen. There is less than a preponderance of evidence to support either finding. Sudden deposits of hardened secretions in the tracheal tube of Resident 1 are consistent with medical experience. A person with a tracheal tube may develop calcified secretions in their lung known as concretions that can be coughed into the tube and cause it to become instantly blocked. It is unlikely that the hardened secretions found in the tracheal tube at the emergency room were present before Resident 1 collapsed in the facility. Hardened secretions can be cleared with a suctioning device or by coughing them through the tube and out of the opening near the neck if the resident has sufficient muscle strength. Resident 1 was a cognitively alert, 40-year-old, and physically capable of cleaning her own tracheal tube with a suctioning device. Resident 1 also had sufficient muscle strength to cough some secretions through the opening in her tube. Whenever Resident 1 was unable to clear her tube through the suctioning device or by coughing, she became anxious and immediately notified a nurse, who would then suction the tube and clear it for her. On March 2, 2003, Resident 1 complained to a nurse that she was experiencing shortness of breath. Significantly, Resident 1 did not complain that her tracheal tube was blocked. The nurse on duty at the facility notified the treating physician of Resident 1's complaints, and the physician ordered the nurse to measure the oxygen saturation levels of Resident 1. The oxygen saturation levels were within normal range, at 97 percent. The treating physician then ordered bed rest for Resident 1 and ordered the nurse to give Resident 1 a breathing treatment. Resident 1 had no further problems on March 2, 2003. On March 4, 2003, at approximately 9:30 a.m., Resident 1 summoned a nurse to come to her bedside and told the nurse that she did not feel well. Resident 1 did not complain that her tracheal tube was blocked. Her skin color was gray. She then passed out and fell to the floor. Nursing staff immediately called for EMT assistance, and EMT personnel arrived at the facility at approximately 9:32 a.m. EMT personnel transported Resident 1 to the emergency room at approximately 9:52 a.m. Between March 2 and March 4, 2003, the preponderance of evidence shows that the tracheal tube of Resident 1 was clear. Nursing staff at the facility monitored Resident 1 three times on March 3, 2003. Resident 1 had no breathing difficulties and did not express any complaints or discomfort. Resident 1 took her scheduled medications and meals on March 3, 2003. The nurse on duty during the 11 p.m. to 7 a.m. shift for March 4, 2003, provided oxygen and suctioning, "as needed," to Resident 1. This action would have cleared secretions, if any, that would have been "accumulating" in the tracheal tube of Resident 1. Resident 1 placed her finger over the opening to her tracheal tube when she spoke to the nurse about not feeling well on March 4, 2003. Resident 1 covered her tracheal tube to force air around her vocal cords so that the nurse could hear Resident 1. It would not have been necessary for Resident 1 to cover her tracheal tube if the tube were occluded. The findings in paragraphs 25 through 27 are based on notes prepared by the unit manager on March 4, 2003, in response to the directive of the facility's risk manager. The risk manager was responsible for investigating the incident and required all nurses who had contact with Resident 1 on March 3 and 4, 2003, to document their experiences with Resident 1. The unit manager then placed the accounts in the medical record. Petitioner questions the credibility of the unit manager notes because they are late-filed entries in the medical records. The trier of fact finds the unit manager and her notes to be credible and persuasive. The testimony and notes of the unit manager are consistent with the apparent determination by EMT personnel that the tracheal tube was clear. In addition, the Medication Administration Record for March 4, 2003, indicates that Resident 1 received a dose of an ordered medication at 6:00 a.m. and did not complain of not feeling well until some time later. If the notes and testimony of the unit manager were disregarded, the trier of fact cannot ignore the administration of oxygen by EMT personnel. The preponderance of evidence shows that the tracheal tube of Resident 1 was clear when EMT personnel administered oxygen. If it were determined that the tracheal tube of Resident 1 were fully occluded at the facility before Resident 1 collapsed on March 4, 2003, such a finding would alter the outcome of this case. Petitioner failed to show by a preponderance of evidence that an occlusion occurred as a consequence of inadequate assessment or monitoring. Resident 1 had normal oxygen saturation levels on March 2, 2003. The preponderance of evidence does not show that facility staff had reason to believe that the tracheal tube of Resident 1 was occluded after March 2, 2003, and failed to take action to clean the tube prior to the time Resident 1 collapsed on March 4, 2003. There is no preprinted or accepted assessment form for nursing homes to use to assess and monitor the ability of Resident 1 to clean her own tracheal tube. The parties agree that the process involves nothing more than a simple observation of Resident 1 to confirm that she understood and could clean the tracheal tube either by suctioning or coughing. Resident 1 was capable of cleaning her tracheal tube. Relevant orders from the treating physician did not require cleaning to be performed by facility staff. One physician's order indicated that Resident 1 could participate in her own self-care. Another physician's order indicated that Resident 1 was to have "trach care" three times a day, but did not describe the nature and scope of the care or designate who was to provide such care. Another physician's order indicated that Resident 1 was to receive oxygen through her tracheal collar while in bed and "suction trach as needed." However, nothing in the order indicated who was to provide those services. Resident 1 had her tracheal tube for more than a year prior to March 4, 2003. Facility staff routinely observed Resident 1 successfully suctioning and otherwise cleaning her own tracheal tube. Resident 1 also routinely notified staff when she could not remove a blockage in her tube. Facility staff appropriately determined that Resident 1 was capable of performing self-care on her tracheal tube. It was appropriate for facility staff to rely on Resident 1 to inform them if Resident 1 were unable to clean the tube. Her transfer to the hospital on March 4th and her subsequent death were not the product of any inadequate or erroneous assessment or monitoring of Resident 1. On May 12, 2003, Petitioner conducted another complaint investigation of the facility. Petitioner determined that Respondent failed to provide adequate care for pressure sores for three residents identified in the record as Residents 1A, 4, and 5, in violation of 42 CFR Section 483.25(c). Florida Administrative Code Rule 59A-4.1288 applies the federal requirements for pressure sore care to nursing homes in Florida. Petitioner assigned the charged deficiency a class II rating. Petitioner determined that a Class II rating was appropriate because actual harm or a negative outcome allegedly occurred with each of the residents cited in the deficiency. Petitioner changed the license rating for the facility from Standard to Conditional within the meaning of Section 400.23(7), Florida Statutes (2003). The change in license rating was effective May 12, 2003, and continued until June 16, 2003, when Petitioner changed the rating to Standard. Petitioner also proposes a $5,000 fine against Respondent. The fine is calculated by doubling the prescribed fine of $2,500, based on the alleged deficiency in the survey conducted on March 11, 2003, in accordance with Section 400.23(8)(b), Florida Statutes (2003). For reasons stated in previous findings, Respondent committed no violation in connection with the survey conducted on March 11, 2003. The fine for the alleged deficiency found on May 12, 2003, cannot exceed $2,500. Petitioner alleges that the pressure sore care provided by Respondent for Residents 1A, 4, and 5 violated 42 CFR Section 483.25(c). In relevant part, 42 CFR Section 483.25(c) requires a nursing home to ensure that: 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. 42 CFR Section 483.25(c) Petitioner alleges that Respondent failed to provide Resident 1A with necessary treatment and services to promote healing of an existing pressure sore on the coccyx of Resident 1A. Resident 1A acquired the pressure sore before Respondent admitted Resident 1A to the facility. In April 2003, Resident 1A had surgery to cover the pressure sore with a skin graft taken from her thigh. The surgery required approximately sixty staples to secure the graft. The alleged improper care of Resident 1A is based on several observations made by the surveyor on May 12, 2003. The surveyor observed that the staples used in the surgical process had not been removed even though a physician's order dated April 16, 2003, directed staff to set up an appointment with the plastic surgeon within two weeks of the date of the order. The surveyor found no evidence that staff had scheduled an appointment or taken any other steps to remove the staples. The surveyor observed that the skin was reddened and growing over some of the areas around the staples. The surveyor also observed Resident 1A positioned on her back in bed in such a manner that her weight was on her coccyx area. The area in question was not a pressure sore. Petitioner has adopted a written definition of a pressure sore in the guidelines that Petitioner requires its surveyors to use in interpreting the federal regulation at issue. In relevant part, the guidelines 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. If the area of concern were the area over the coccyx of Resident 1A, that area would have been over a "bony prominence" within the meaning of definition of a pressure sore. However, it is undisputed that the area of concern for Resident 1A was located in the fleshy part of the buttocks where staples were used to secure the skin flap to the skin. The area of concern was a surgical wound site, rather than a pressure sore because of its origin and location. The preponderance of evidence shows that the area of concern failed to satisfy the definition of a pressure sore adopted by Petitioner. Section 120.68(7)(e), Florida Statutes (2003), prohibits Petitioner from deviating from its officially stated policy unless Petitioner explains the deviation. Petitioner failed to provide any evidence to explicate legitimate reasons for deviating from its written definition of a pressure sore in this case. Assuming arguendo the staples around the wound site were a pressure sore, the preponderance of evidence shows that Respondent provided necessary treatment to promote healing. Respondent turned and repositioned Resident 1A every two hours in accordance with standard protocol. That schedule included a period during which Resident 1A was on her back in bed, with the head of her bed elevated. The single observation by the surveyor of Resident 1A on her back in bed did not show that Respondent failed to properly turn and reposition Resident 1A. The failure to timely comply with the physician's order for Resident 1A to consult with a plastic surgeon did not deprive Resident 1A of the care necessary to promote healing of a pressure sore. The removal of staples from a skin flap is not an element of required care for a pressure sore. Rather, removal of staples is part of the established care for a surgical wound site. The failure to timely provide a consult was not a violation of the requirements for care of pressure sores. If the removal of staples were required for treatment of pressure sores, the failure to timely obtain a consult and the failure to timely remove the staples did not cause harm to Resident 1A. The undisputed purpose of the physician's order to see a plastic surgeon was to evaluate whether the staples should be removed from the wound site. Respondent removed the staples from the wound site shortly after the survey with no complications to the resident. The surgical wound site healed in a timely and complete manner. The absence of harm to Resident 1A precludes a rating as a Class II deficiency. Petitioner alleges that Respondent allowed avoidable pressure sores to develop on Resident 4 and failed to provide necessary treatment after the pressure sores developed. During the survey, the surveyor and a nurse, who was a clinical consultant to the facility, twice observed Resident 4 lying on a special air mattress that was not inflated. After the second observation, the surveyor and consultant examined Resident 4 and observed what each determined to be two stage II pressure sores on each of the outer heels of Resident 4, a stage IV pressure sore on the right toe, two stage II areas on her left side above her rib cage, and a stage II area under her left breast. The surveyor and the nurse-consultant found nothing in the medical record to indicate that these areas had been previously identified by facility staff. Nor did they find any treatment orders for the areas of concern. The areas of concern were not pressure sores. It is undisputed that pressure sores involve deep tissue damage, do not heal quickly, and would have been present a few days later during examination. The director of nursing and the wound care nurse for the facility examined Resident 4 on May 13, 2003, and found no evidence of the areas that caused concern to the surveyor and nurse-consultant on May 12, 2003. The director of nursing asked the treating physician to examine Resident 4 to confirm the director's observations. On May 19, 2003, the treating physician examined Resident 4 and found no areas of concern on Resident 4. Resident 4 had no conditions that placed her at risk for developing pressure sores. The failure to inflate the special air mattress under Resident 4 did not create any risk for pressure sores. The mattress had not been ordered for Resident 4 and was not necessary for her care because Resident 4 was not at risk for developing pressure sores. Resident 4 was on the mattress because she had moved into a new room, and facility staff had not yet removed the mattress from the bed in the room that was used by the previous occupant. Petitioner alleges that Respondent failed to provide necessary treatment to promote healing of existing pressure sores on Resident 5. Resident 5 had three open areas on his skin: one on each hip and one over the coccyx. The areas on each hip were surgical wounds from hip surgeries prior to admission to the facility. For reasons stated in previous findings, these areas were surgical wound sites and were not pressure sores. It is undisputed that the remaining area on Resident 5 was a stage II pressure sore over the coccyx that was present upon admission to the facility. During the survey, the surveyor and the nurse-consultant observed Resident 5 on a specialty air mattress that contained a number of air chambers. Two of the chambers were not inflated. The surveyor and nurse-consultant determined that the area over the coccyx had worsened to a stage IV pressure sore. Petitioner alleges that Respondent failed to provide necessary care to Resident 5 by failing to properly inflate his specialty air mattress during the survey. Respondent did not fail to properly inflate the air mattress for Resident 5. The level of inflation of that mattress is not determined or set by the facility. Rather, the manufacturer calculates and sets the level of inflation for the mattress. The alleged failure to properly inflate the air mattress did not cause harm to Resident 5. The director of nursing observed the area of concern the day after the survey and determined it to be a stage II, rather than a stage IV, pressure sore. The clinical records that charted the size and stage of the pressure sore for the month after the survey show that the area was never more than a stage II pressure sore. A stage IV pressure sore would not have improved to a stage II sore within a month. Petitioner failed to show by a preponderance of the evidence that the alleged improper inflation of an air mattress caused the pressure sore on Resident 5 to worsen from a Stage II to a Stage IV pressure sore.
Recommendation Based on the foregoing findings of fact and conclusions of law, It is RECOMMENDED that Petitioner enter a Final Order deleting the disputed deficiencies from the survey reports for March 11 and May 12, 2003; replacing the Conditional ratings with Standard ratings; and dismissing the proposed fines and investigative costs with prejudice. DONE AND ENTERED this 2nd day of March, 2004, 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 2nd day of March, 2004. COPIES FURNISHED: Gerald L. Pickett, Esquire Agency for Health Care Administration Sebring Building, Suite 330K 525 Mirror Lake Drive, North St. Petersburg, Florida 33701 Donna Holshouser Stinson, Esquire Broad and Cassel 215 South Monroe Street, Suite 400 Post Office Drawer 11300 Tallahassee, Florida 32302-1300 R. Davis Thomas, Jr. Broad and Cassel 215 South Monroe Street, Suite 400 Post Office Box 11300 Tallahassee, Florida 32302-1300 Rhonda M. Medows, M.D., Secretary Agency for Health Care Administration Fort Knox Building, Suite 3116 2727 Mahan Drive Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration Fort Knox Building, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308
The Issue The issues are thus whether the acts and omissions charged occurred, whether they constitute violations of Section 400.022(1)(j) and 400.141, Florida Statutes, and related rules, and whether an administrative fine is appropriate pursuant to 400.102(c) and Section 400.121, Florida Statutes. Upon the commencement of the hearing, the petitioner moved to amend paragraph 8 of its Complaint, so that the date "March 4" would read March 14." The motion was granted on the basis that there was only a clerical error involved and paragraph 8 correctly alleges that there-was a nursing staff shortage from February 20 to March 14, 1980. Eight witnesses were called by the Petitioner, and two by the Respondent. Ten exhibits were adduced as evidence. The Respondent has submitted and requested rulings upon ninety-five proposed findings of fact. In that connection, all proposed findings, conclusions, and supporting arguments of the parties have been considered. To the extent that the proposed findings and conclusions submitted by the parties, and the arguments made by them, are in accordance with the findings, conclusions and views stated herein they have been accepted, and to the extent such proposed findings and conclusions of the parties, and such arguments made by the parties, are inconsistent therewith they have been rejected.
Findings Of Fact Manhattan Convalescent Center is a nursing home facility located in Tampa and licensed by the Department of Health and Rehabilitative Services. On January 22, February 20, February 25, March 3, March 6, and March 14, 1980, a number of Department employees representing the Department's medical review team, and the Office of Licensure and Certification, consisting of registered nurses, hospital consultants and Department surveillance team members, made inspections of the Respondent's facility for the purpose of ascertaining whether the premises, equipment and conduct of operations were safe and sanitary for the provision of adequate and appropriate health care consistent with the rules promulgated by the Department and whether minimum nursing service staff standards were being maintained. Thus, on January 22, 1980 a member of the medical review team, witness Maulden, observed a rat run across the floor in one of the wings of the nursing home facility. On February 20, Muriel Holzberger, a registered nurse and surveyor employed by the Petitioner, observed rodent droppings in one of the wings of the facility and on February 20, March 12 and March 14, 1980, numerous roaches were observed by various employees of the Department making inspections throughout the facility. On February 20, 1980 strong urine odors were present on the 200, 300 and 400 wings of the facility as well as in the lobby. The odor was caused by urine puddles under some patients' chairs in the hallway, wet sheets, and a spilled catheter. On February 20 and 25, 1980 the grounds were littered with debris and used equipment, the grass and weeds on the grounds needed cutting and there was a build up of organic material, food spills and wet spots on the floors. The Respondent's witness, Ann Killeen, as well as the Petitioner's hospital consultant, Joel Montgomery, agreed that a general state of disrepair existed at the Respondent's facility, consisting of torn screens, ill fitting exterior doors with inoperative or missing door closers and missing ceiling tile. Interior and exterior walls were in need of repair and repainting. Additionally, eleven bedside cords for the nurse paging system were cut, apparently by patients, and on February 25, 1980, a total of 36 nurse paging stations were inoperative. A substantial number of these cords were cut by a patient (or patients) with scissors without the knowledge of the Respondent and steps to correct the condition were immediately taken. On January 22, 1980 Petitioner's representatives, Mary Maulden and Alicia Alvarez, observed a patient at the Respondent's facility free himself from physical restraints, walk down the hall and leave the facility. A search for nursing staff was made but none were found on the wing. After three to five minutes the Assistant Director of Nurses was located and the patient was apprehended. Nurse Alvarez's testimony revealed that the Respondent's nursing staff was in and out of, and working in that wing all that morning except for that particular point in time when the patient shed his restraints and walked out of the facility. On March 3, 1980 Department employee, William Musgrove, as part of a surveillance team consisting of himself and nurse Muriel Holzberger, observed two patients restrained in the hall of the facility in chairs and Posey vests, which are designed to safely restrain unstable patients. The witness questioned the propriety of this procedure, but could not establish this as a violation of the Respondent's patient care policies required by Rule 10D-29.41, Florida Administrative Code. The witness reviewed the Respondent's written patient care policy required by that Rule and testified that their policy complied with it and that the policy did not forbid restraining a patient to a handrail in the facility as was done in this instance. The witness was unable to testify whether patients were improperly restrained pursuant to medical orders for their own or other patients' protection. A hospital consultant for the Department, Bill Schmitz, and Marsha Winae, a public health nurse for the Department, made a survey of the Respondent's facility on March 12, 1980. On that day the extensive roach infestation was continuing as was the presence of liquids in the hallways. On February 20, 1980 witness Joel Montgomery observed a lawn mower stored in the facility's electrical panel room which is charged as a violation in paragraph 3 of the Administrative Complaint. The lawn mower was not shown to definitely contain gasoline however, nor does it constitute a bulk storage of volatile or flammable liquids. Nurse Holzberger who inspected the Respondent's nursing home on February 20, February 25, March 3 and March 6, 1980, corroborated the previously established roach infestation and the presence of strong urine odors throughout the facility including those emanating from puddles under some patients' chairs, the soaking of chair cushions and mattresses and an excess accumulation of soiled linen. Her testimony also corroborates the existence of 36 instances of inoperative nurse paging devices including the 11 nurse calling cords which had been cut by patients. This witness, who was accepted as an expert in the field of proper nursing care, established that an appropriate level of nursing care for the patients in this facility would dictate the requirement that those who are incontinent be cleaned and their linen changed more frequently and that floors be mopped and otherwise cleaned more frequently. Upon the second visit to the facility by this witness the nurse call system had 9 paging cords missing, 11 cords cut, and 15 of the nurse calling devices would not light up at the nurses' station. This situation is rendered more significant by the fact that more than half of the patients with inoperative nurse paging devices were bedridden. On her last visit of March 6, 1980 the problem of urine puddles standing on the floors, urine stains on bed linen, and resultant odor was the same or slightly worse than on the two previous visits. An effective housekeeping and patient care policy or practice would dictate relieving such incontinent patients every two hours and more frequent laundering of linen, as well as bowel and bladder training. On March 6, 1980 controlled drugs were resting on counters in all of the facility's four drug rooms instead of being stored in a locked compartment, although two of the drug rooms themselves were locked. The other two were unlocked, but with the Respondent's nurses present. Ms. Holzberger participated in the inspections of March 3 and March 6, 1980. On March 3, 1980 there were no more than 14 sheets available for changes on the 4:00 p.m. to midnight nursing shift. On March 6, 1980 there were only 68 absorbent underpads and 74 sheets available for changes for approximately 65 incontinent patients. The unrefuted expert testimony of Nurse Holzberger established that there should be available four sheets for each incontinent patient per shift. Thus, on these two dates there was an inadequate supply of bed linen to provide changes for the incontinent patients in the facility. On March 6, 1980 Nurse Holzberger and Nurse Carol King observed 12 patients who were lying on sheets previously wet with urine, unchanged, dried and rewet again. This condition is not compatible with generally recognized adequate and appropriate nursing care standards. Incontinent patients should be examined every two hours and a change of sheets made if indicated. If such patients remain on wet sheets for a longer period of time their health may be adversely affected. On March 6, 1980 these same employees of the Petitioner inspected a medical supply room and found no disposable gloves, no adhesive tape, no razor blades and one package of telfa pads. There was no testimony to establish what the medical supply requirements of this facility are based upon the types of patients it cares for and the types and amounts of medical supplies thus needed. The testimony of Robert Cole, the facility's employee, who was at that time in charge of dispensing medical supplies, establishes that in the medical supply room (as opposed to the nurses' stations on the wings) there were at least six rolls of tape per station, 50 razors, four boxes or 80 rolls, 300 telfa pads and 200 sterile gloves. Nurses Holzberger and King made an evaluation of the Respondent's nurse staffing patterns. Ms. Holzberger only noted a shortage of nursing staff on February 24, 1980. Her calculations, however, were based on an average census of skilled patients in the Respondent's facility over the period February 20 to March 4, 1980 and she did not know the actual number of skilled patients upon which the required number of nursing staff present must be calculated on that particular day, February 24, 1980. Further, her calculations were based upon the nurses' "sign in sheet" and did not include the Director of Nurses who does not sign in when she reports for work. Therefore, it was established that on February 24 there would be one more registered nurse present than her figures reflect, i.e., the Director of Nurses. Nurse King, in describing alleged nursing staff shortages in the week of March 7 to March 13, 1980, was similarly unable to testify to the number of skilled patients present on each of those days which must be used as the basis for calculating required nursing staff. She rather used a similar average patient census for her calculations and testimony. Thus, neither witness for the Petitioner testifying regarding nursing staff shortages knew the actual number of patients present in the facility on the days nursing staff shortages were alleged. In response to the problem of the roach infestation, the Respondent's Administrator changed pest control companies on March 26, 1980. The previous pest control service was ineffective. It was also the practice of the Respondent, at that time, to fog one wing of the facility per week with pesticide in an attempt to control the roaches. Further, vacant lots on all sides, owned and controlled by others, were overgrown with weeds and debris, to which the witness ascribed the large roach population. The problem of urine odors in the facility was attributed to the exhaust fans for ventilating the facility which were inoperable in February, 1980. She had them repaired and, by the beginning of April, 1980 (after the subject inspections), had removed the urine odor problem. The witness took other stops to correct deficiencies by firing the previous Director of Nurses on March 14, 1980, and employing a new person in charge of linen supply and purchasing. A new supply of linen was purchased in February or March, 1980. The Respondent maintains written policies concerning patient care, including a provision for protection of patients from abuse or neglect. The Respondent's Administrator admitted existence of the torn screens, broken door locks, missing ceiling tiles and the roach infestation. She also admitted the fact of the cut and otherwise inoperable nurse paging cords in the patients' rooms, but indicated that these deficiencies had been repaired. The various structural repairs required have been accomplished. All correction efforts began after the inspections by the Petitioner's staff members, however.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the candor and demeanor of the witnesses, and the evidence in the record, it is RECOMMENDED that for the violations charged in Counts I, II, IV, VI, IX and X of the Administrative Complaint and found herein to be proven, the Respondent should be fined a total of $1,600.00. Counts III, V, VII and VIII of the Administrative Complaint should be dismissed. DONE AND ENTERED this 31st day of March, 1981 in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 1981. (904) 488-9675 COPIES FURNISHED: AMELIA PARK, ESQUIRE JANICE SORTER, ESQUIRE W. T. EDWARDS FACILITY 4000 WEST BUFFALO AVENUE, 4TH FLOOR TAMPA, FLORIDA 33614 KENNETH E. APGAR, ESQUIRE EDWARD P. DE LA PARTE, JR., ESQUIRE 403 NORTH MORGAN STREET, SUITE 102 TAMPA, FLORIDA 33602
Findings Of Fact Defendant came on duty at Ambrosia Nursing Home at 9:00 a.m. on January 30, 1976, and was scheduled to be relieved at 3:00 p.m. During the day Defendant began showing signs of an intestinal disorder evidenced by diarrhea and vomiting. The nurse scheduled to relieve Defendant in the afternoon did not appear for duty and, despite her illness, Defendant volunteered to remain on duty for the next shift. She did advise the Director of Nursing that she was ill and would like to leave earlier than the schedule end of the shift at 11:00 p.m. The Director of Nursing advised her that she could leave at 9:00 p.m. if everything was normal. By 7:30 p.m. Defendant had checked the patients and found all were in bed and conditions normal, but her intestinal problems had not lessened. At that time she left the nursing home. The owner of the nursing home is a registered nurse and at the time occupied a room at the home. Defendant did not notify the owner that she was leaving because frequently the owner would not respond to a knock on her door. Since she had permission from the Director of Nursing to leave early, four capable aides were on duty and she was ill, Defendant departed the nursing home. No evidence was presented that the owner had been notified that Defendant had been granted permission to leave early and the inference was that she had not been so notified. The present Director of Nursing, a former Director of Nursing, and the Nursing Home, Administrator testified on behalf the Defendant. Defendant is an excellent nurse who is well liked by the patients and all members of the staff. She has always been extremely cooperative and a big asset to the nursing home. The nursing home very strongly desires that Defendant remain an employee at the home in her present position. Both directors of nursing would be well pleased to have Defendant on their services and would employ her instantly if the opportunity arose. Defendant has been licensed for nearly 24 years and this is the first time she has ever had as much as an oral admonition from a supervisor.
The Issue Whether petitioner has good cause, within the meaning of Rule 10D- 29.128(6), Florida Administrative Code, to revoke respondent's superior rating, for the reasons alleged either in Ms. Cheren's letter or in the statement of deficiencies?
Findings Of Fact Respondent holds a license to operate a 120-bed (T. 186) nursing home at 6535 Chester Avenue in Jacksonville, and does so under the name of Taylor Care Center (TCC). Petitioner Department of Health and Rehabilitative Services (HRS), which issued the license, later gave TCC a superior rating, the rating it had in March of 1988. On March 28, 1988, a Monday, Joanna T. Warfel, R.N., Edward Melvin and Richard Gerard undertook an annual "combined Medicare/Medicaid licensure survey" (T. 39) at TCC on behalf of HRS' Office of Licensure and Certification. The surveyors produced a statement of deficiencies on Form HCFA-2567 (10-84), the same form on which TCC responded with its plan of correction. HRS' Exhibit No. 1. If TCC, "a community-based nursing facility . . . [with] probably . . . 80 percent or more . . . Medicaid residents," (T. 186) loses the superior rating and receives instead only a standard rating for the period July 1, 1988 to June 30, 1989, TCC "is projected . . . [to sustain] a loss of at least $50,000 in revenue." Pre-hearing Stipulation. Infection Control TCC "had a policy and procedure manual for infection control," (Dep. 20) with which HRS does not find fault. In practice, if a floor nurse suspects an infection, she tells the charge nurse, who asks a doctor to order laboratory analysis of a culture. (T. II. 38) The laboratory furnishes the physician, the floor and TCC's infection control nurse copies of its reports, which form the basis for a log the Infection control nurse keeps. In addition, TCC's Ms. Jarrett took "environmental" samples and sent them for cultures sporadically, although no law or rule requires this, in terms. In part, the HRS team's statement of deficiencies alleged the following: INFECTION CONTROL NH-445: The condition is out of compliance because there was no system in operation to prevent the spread of infections. Ref: 405.1135, 10D-29.123 Class III 4/23/88 NH-452: Infection Control Standards not met. Ref: 405.1135(b) Class III 5/31/88 F-339/122 NH-454, 458, 116, 99: Observation revealed the following: Five residents with draining wounds not on any type of Isolation precautions. Drainage from a supra pubic catheter insertion site without a dressing. 5-7 residents with Staph Aureus eye Infections not on any type of isolation precautions. Dressings from at least 3 draining wounds were removed without gloves by the facility's nurse. One dressing to a draining wound was applied without gloves. Nurse placing gloved hand into medication jar after being in contact with infected wound. Whirlpool cleaned only with Betadine between residents. Resident with stage 2 decubiti on both feet, one of which was draining purulent material, placing both feet in the whirlpool at the same time. Pictures of a stasis ulcer healing well in August 1987, currently infected with a heavy growth of pseudomonas and much larger in size. When isolation precautions were posted, there were no isolation bags for linen and trash and no gloves left available in the room. Review of documentation revealed: Residents with positive cultures for known pathogans such as staph aureus and pseudomonas were not on isolation precautions. All draining wounds had not been cultured. All positive cultures and wounds with purulent drainage were not included in the infection log. The written infection report by nursing was prepared quarterly rather than monthly as required by state regulations. Environmental cultures collected 11/24/87 revealed "unsatisfactory" results on 5 of 5 sources cultured i.e., Pseudomonas from the whirlpool tub and water fountain. The quarterly infection control meeting minutes did not contain any plan of correction or any mention of the environmental culture results. There were no environmental culture reports since 11/24/87. Of the 39 infections recorded in the last 3 months 100% were nosocomial. There was no documented evidence of isolation being instituted for the last 12 months. Ref: 10D-29.123(3)(b), 10D-29.123(3)(f) 10D-29.108(5)(b), 10D-29.108(3)(e) 405.1135(b) Class III 5/31/88 * * * INFECTION CONTROL/DISASTER PREPAREDNESS F-342/343 NH-490: Infection Control/Disaster Preparedness Standards not met. Ref: 405.1135(d), 442.327 Class III F-345 NH 493: Observation revealed that linen, contaminated with known pathogens, specifically, Pseudomonas was removed from the resident's roe without gloves and deposited with the regular laundry. Observation further revealed that laundry personnel were handling soiled linen without gloves on the first day of the survey. Ref: 405.1135, 442.327, 10D-29.124(2)(b)1 Class III 5/31/88 * * * INFECTION CONTROL/DISASTER PREPAREDNESS F-345 NH-453: Infection control committee has not approved policies and procedures for the laundry operation. Ref: 405.1135(d), 10D-29.124(2)(b) Class III 5/31/88 The "NH" references in the statement of deficiencies are set out in Part B of the nursing home licensure survey report received as HRS' Exhibit 2, and include the following: XIII. INFECTION CONTROL. 10D-29.123. The nursing facility establishes an infection control committee, appointed by the Administrator, of representative professional staff with responsibility for overall infection control in the facility. Necessary staff are provided to maintain a sanitary and comfortable environment and to help prevent the development and transmission of infection. (b) STANDARD: Infection control committee policies and procedures. The policies and procedures developed by the committee include, at a minimum, policies and procedures governing the following: NH454 Monitoring of the methods of maintaining sanitary conditions no less often than quarterly. 10D-29.123(3)(b) * * * NH458 Infection control measures, which include, at a minimum, the following: Isolation procedures for residents in communicable stage of disease. Specifics of nursing care for residents with infection. NH116 Nursing care includes control of occurrence of infection through the use of aseptic techniques, surveillance of personnel and environmental conditions, identification of high-risk, infection prone residents, health education, counseling, and practicing health promoting habits. 10D-29.108(5)(b) * * * NH99 The DON ensures that the facility's resident care policies and procedures and the policies and procedures developed by the pharmaceutical services committee and the infection control committee, which relate to nursing services are implemented. (e) STANDARD: Linen and laundry * * * NH493 The responsible person ensures that written policies and procedures for linen and laundry services, including methods of collection, storage, transportation are developed, implemented and maintained in conjunction with the policies and procedures developed by the infection control committee. 10D-29.124(2)(b)1 The rule provisions on which HRS relies are set out in the conclusions of law. Decubiti, called pressure sores or bed sores after their wonted etiology, advance through four stages, if not checked. In stage one, the skin is intact, but "remains red after approximately 30 minutes of pressure relief." (T. II. 117-8) In stage two, the skin is "open," and the sore moist, but superficial and devoid of infection. Muscle and necrotic tissue may be seen in stage three, when open lesions are deeper. Stage four lesions go to the bone. Clear serous drainage from a stage two decubitus facilitates healing. While purulent drainage from more advanced lesions may also be of some benefit, this yellowish or greenish fluid contains pathogenic organisms which pose the danger that infection will spread. (T. I. 69-70) Stasis ulcers, attributable to poor venous circulation, and eyes in which antibiotic resistant staphylococci aurei have established themselves are other sources of infection in nursing homes. In the course of the survey, Ms. Warfel observed three decubiti on the feet of the resident who slept in bed 101-A at TCC, including a stage two decubitus, TCC's Exhibit No. 2, "with small amount of drainage, half-inch in diameter on the left inner ankle." (Dep. 22) Any discoloration of the drainage (Dep. 25, 31) was apparently due to medication. (T. 11, 33) She saw a sore of similar size "with a slight amount of drainage," (Dep. 23) on the outside of the left foot of the man who slept In bed 210-B, who also had an undressed suprapubic catheter with a "strand of mucous . . . between the catheter tubing and the skin." (Dep. 25) The resident who slept in bed 301-B "had a stage two on the left hip, one inch in diameter, and had a positive culture for staph in March of '88." (Dep. 23) The woman who slept in bed 316-B had both "a draining area on her left thigh . . .from a previous hip pin" (Dep. 23) and a "small stage two decubitus on the coccyx." Id. The drainage from the surgical incision was clear, and, when analyzed after the survey (in response to Ms. Warfel's characterization) proved noninfectious, just as the resident's physician had earlier advised TCC. (T. I. 44-45) One nurse placed a gloved hand into a medication jar after contact with a stasis ulcer the woman in Room 115 had. (Dep. 29) Room 115 is private. What became of the medication thereafter the record does not reveal. The woman's ulcer was heavily infected with pseudomonas, although it had been reported to be healing well in August of 1987. She told Ms. Warfel it had gotten [re]infected from the whirlpool." (Dep. 31) Ms. Warfel saw the resident who slept in bed 101-A with both feet in the whirlpool, then saw a staff person dry both feet with the same towel. (Dep. 31) On March 24, 1988, her physician had ordered "sterile WP to [both] feet." TCC's Exhibit No. 2. The physical therapist regularly disinfected the whirlpool with Wescodyne. (T. II. 34) As far as the evidence revealed, she did so after each use. On her initial visit, Ms. Warfel did not see precautions posted for Room 210 "but on the fourth day . . . went back and checked, and that was on the door then." (Dep. 22) The man who slept in bed 210-B had been placed on secretion precautions the week before the survey, when a culture revealed that he suffered from an infection of methicillin-resistant staphylococcus aureus. Perhaps because the sign posted on his door was not the customary green, Ms. Warfel overlooked it originally. In rooms in which isolation procedures are in effect, soiled linen is placed in "a double red bag or a water soluble bag." (T. II. 30) Water soluble bags go "directly into the hamper . . . [while the contents of each] double red bag . . . [go] into a separate laundry from the regular linen." (T. II. 30) Gloves at the nurse's desk were available to the nursing staff. (Dep. 28) Although the "director of nurses wore gloves part of the time when she was handling dressings . . . [t]he nurse who did the treatment on the pseudomonas infection wore gloves while she was doing the dressing only." (Dep. 27) TCC terminated that nurse's employment. (T. II. 32) Because Jackie Williams, TCC's infection control nurse who began at TCC not long before the survey, listed all urinary tract infections as nosocomial, the infection control log grossly overstated the number of nosocomial infections occurring at TCC during the three months before the survey took place. HRS' Exhibit No. 4. If evaluated against accepted criteria, Hearing Officer's Exhibit No. 1, the actual number was on the order of six. Of these, four were urinary tract infections in which only pathogens present at admission were implicated. The infection control log was updated continuously, as information was received, but monthly reports as such were not prepared. Dr. Tremble, who attends the woman who sleeps in Room 115, "does his very own cultures himself." (T. II. 38) No laboratory or other report of the results of cultures done for this resident reached TCC's infection control nurse nor were any deflected in the infection control log. As far as the record reveals, environmental cultures were denominated "unsatisfactory if there was any bacteria count," (Dep. 39) however small. The evidence did not establish that the environmental culture results reflected conditions about which TCC should have done anything it failed to do. Guidelines The CDC Guideline for Isolation Precautions in Hospitals published in 1983, excerpts from which were received as HRS' Exhibit No. 6, say the following about gowns, gloves, bagging of articles, linen and dressings: Gowns In general, gowns are recommended to prevent soiling of clothing when taking care of patients. Gowns are not necessary for most patient care because such soiling is not likely. However, gowns are indicated when taking care of patients on isolation precautions if clothes are likely to be soiled with infective secretions or excretions, for example, when changing the bed of an incontinent patient who has infectious diarrhea or when holding an infant who has a respiratory infection. Furthermore, gowns are indicated, even when gross soiling is not anticipated, for all persons entering the room of patients who have infections that if transmitted in hospitals frequently cause serious illness, for example, varicella (chickenpox) or disseminated zoster. When gowns are indicated, they should be worn only once and then discarded in an appropriate receptacle. Clean, freshly laundered or disposable gowns may be worn in most circumstances. In some instances, as with extensive burns or extensive wounds, sterile gowns may be worn when changing dressings. Gloves In general, there are 3 distinct reasons for wearing gloves. First, gloves reduce the possibility that personnel will become infected with microorganisms that are infecting patients; for example, gloves should prevent personnel from developing herpetic whitlow after giving oral care or suctioning a patient with oral herpes simplex infections. Second, gloves reduce the likelihood that personnel will transmit their own endogenous microbial flora to patients; for example, sterile gloves are used for this reason when personnel perform operations or touch open surgical wounds. Third, gloves reduce the possibility that personnel will become transiently colonized with microorganisms that can be transmitted to other patients. Under most conditions, such transient colonization can be eliminated by handwashing. Thus, in hospitals where handwashing is performed carefully and appropriately by all personnel, gloves are theoretically not necessary to prevent transient colonization of personnel and subsequent transmission by them to others. However, since handwashing practices are thought to be inadequate in most hospitals, gloves appear to be a practical means of preventing transient hand colonization and spread of some infections. Therefore, for many diseases or conditions listed in this guideline, wearing gloves is indicated for touching the excretions, secretions, blood, or body fluids that are listed as infective material. Gloves may not be needed if "no touch" technique (not touching infective materials with hands) can be used. When gloves are indicated, disposable single-use gloves (sterile or nonsterile, depending on the purpose for use) should be worn. Used gloves should be discarded into an appropriate receptacle. After direct contact with a patient's excretions or secretions, when taking care of that patient, gloves should be changed if care of hat patient has not been completed. Bagging of Articles Used articles may need to be enclosed in an impervious bag before they are removed from the room or cubicle of a patient on isolation precautions. Such bagging is intended to prevent inadvertent exposures of personnel to articles contaminated with infective material and prevent contamination of the environment. Most articles do not need to be bagged unless they are contaminated (or likely to be contaminated) with infective material. (See the Tables, which contain an alphabetical listing of diseases for identification of the infective material for each disease.) A single bag is probably adequate if the bag is impervious and sturdy (not easily penetrated) and if the article can be placed in the bag without contaminating the outside of the bag; otherwise, double bagging should be used. Bags should be labeled or be a particular color designated solely for contaminated articles or infectious wastes. * * * Linen In general, soiled linen should be handled as little as possible and with a minimum of agitation to prevent gross microbial contamination of the air and of persons handling the linen. Soiled linen from patients on Isolation precautions should be put in a laundry bag in the patient's room or cubicle. The bag should be labeled or be a particular color (for example, red) specifically designated for such linen so that whoever receives the linen knows to take the necessary precautions. Linens will require less handling if the bag is hot-water-soluble because such bags can be placed directly into the washing machine; however, a hot-water soluble bag may need to be double-bagged because they are generally easily punctured or torn or may dissolve when wet. Linen from patients on isolation precautions should not be sorted before being laundered. If mattresses and pillows are covered with impervious plastic, they can be cleaned by wiping with a disinfectant-detergent. (See Guideline for Hospital Environmental Control: Laundry Services.) * * * Dressings and Tissues All dressings, paper tissues, and other disposable items soiled with infective material (respiratory, oral, or wound secretions) should be bagged and labeled and disposed of in accordance with the hospital's policy for disposal of infectious wastes. Local regulations may call for incineration or disposal in an authorized sanitary landfill without being opened. (See Guideline for Hospital Environmental Control: Housekeeping Services and Waste Disposal.) The same document also specifies "secretion precautions" and "bodily fluid precautions" for certain hospital patients: Drainage/Secretion Precautions Drainage/Secretion Precautions are designed to prevent infections that are transmitted by direct or indirect contact with purulent material or drainage from an infected body site. . . . Infectious diseases included in this category are those that result in the production of infective purulent material, drainage, or secretions, unless the disease is included in another isolation category that requires more rigorous precautions. For example, minor or limited skin, wound, or burn infections are included in this category, but major skin, wound, or burn infections are included in Contact Isolation. . . . Specifications for Drainage/Secretion Precautions Private room is not indicated. Masks are not indicated. Gowns are indicated if soiling is likely. Gloves are indicated for touching infective material. Hands must be washed after touching the patient or potentially contaminated articles and before taking care of another patient. Articles contaminated with infective material should be discarded or bagged and labeled before being sent for decontamination and reprocessing. * * * Blood/Body Fluid Precautions Blood/Body Fluid Precautions are designed to prevent infections that are transmitted by direct or indirect contact with infective blood or body fluids, unless the disease is included in another isolation category that requires more rigorous precautions, for example, Strict Isolation. For some diseases included in this category, such as malaria, only blood is infective; for other diseases, such as hepatitis B (including antigen carriers), blood and body fluids (saliva, semen, etc.) are infective. Specifications for Blood/Body Fluid Precautions Private room is indicated if patient hygiene is poor. A patient with poor hygiene does not wash hands after touching infective material, contaminates the environment with infective material, or shares contaminated articles with other patients. In general, patients infected with the same organism may share a room. Masks are not indicated. Gowns are indicated if soiling of clothing with blood or body fluids is likely. Gloves are indicated for touching blood or body fluids. Hands must be washed immediately if they are potentially contaminated with blood or body fluids and before taking care of another patient. Articles contaminated with blood or body fluids should be discarded or bagged and labeled before being sent for decontamination and reprocessing. Care should be taken to avoid needle-stick injuries. Used needles should not be recapped or bent; they should be placed in a prominently labeled, puncture-resistant container designated specifically for such disposal. Blood spills should be cleaned up promptly with a solution of 5.25% sodium hypochlorite diluted 1:10 with water. TCC has incorporated these provisions in its infection control policy and procedure manual. Joint Exhibit No. 1. More recently, the Centers for Disease Control have prescribed "universal precautions," recommending that hospital personnel proceed as if every patient had acquired immune deficiency syndrome. (T. I. 75-6) No Isolation The TCC resident who slept in bed 306-A had an eye infection which TCC staff began treating with ophthalmic ointment (Gentamycin) on February 3, 1988. "Resolved" by the time of the survey, this infection was caused by staphylococcus aureus, which was methicillin resistant (T. II. 73, 111) and required isolation (secretion precaution) procedures (T. II. 46, 7) which were never instituted. (T. II. 42) "[T]hey should have been wearing gloves. And the linen that they were using should have been placed in isolation bags before washing, labeled and identified". (Dep. 26)(T. I. 70, 73-4) Except for the resident who slept in bed 210-B, TCC had placed nobody in isolation for the six months preceding the survey. (T. II. 42) Other Red Eyes The TCC resident who slept in bed 112A had redness of the eye, from which Ms. Warfel concluded "that it was conjunctivitis and the patient should have been isolated". The patient to whom bed 112A was assigned had no drainage. At the time of the survey, the TCC resident who slept in bed 203B was already receiving medication for an eye infection. A laboratory report dated March 15, 1988, identified the organism as "staph epi," normal skin flora, to be distinguished from the malevolent staphylococcus aureus. The woman who slept in bed 407B also "had light growth of staph epi . . . was on an ointment for seven days and didn't require isolation". (T. II. 47) The women who slept in beds 305A and 316B had red eyes, as well, attributable, it turned out, to glaucoma, and not to staphylococcus aureus. Resident Care Plans and Activities With respect to patient care management and residents' activities, the HRS team alleged, in its statement of deficiencies: F-237/238 NH-136: Patient Care Management Standards not met. Ref: 405.1124(d), 442.341 Class III 5/31/88 F-239/240 NH-138: Observation of patient care and record review revealed that all resident's problems/needs, i.e., decubiti, infections, rehab, etc. were not being addressed in the written plan of care or delivery of services. Goals were not measurable and interventions were limited and inadequate. The evaluations did not address the effectiveness of the interventions or institute appropriate changes in either the goals or approaches. Social Services and Activities in the care plans, also did not have measurable goals and specific approaches to meet the residents identified needs. Also the disciplines did not evaluate the effectiveness of their approaches. Ref: 405.1124, 442.341, 10D-29.109(2) Class III 5/31/88 * * * F-234 NH-324: The facility has two programs implemented for its residents: (1) stroke group, (2) Adventure Group for Alzheimers residents. Surveyor found that these groups had about 20 residents each in the groups. However, surveyor found from interview, observation, and documentation could not ascertain that the residents were receiving benefits from these programs or that these programs were meeting their identified needs. Ref: 442.345, 10D-22.116 Class III 5/31/88 The statement of deficiencies also sets out pertinent standards: STANDARD: Resident care plans NH138 The DON serves as coordinator of an interdisciplinary team responsible for the development, implementation, maintenance and evaluation of each resident's plan of care. Each interdisciplinary team member involved in the resident's care provides input into the development, implementation, maintenance, and evaluation of the resident's plan of care. 10D-29.109(2) NH324 The activities program provides diversified independent and group activities for each resident, including those confined to bed, commensurate with each resident's needs, abilities and interests. The rule provisions on which HRS relies are set out in the conclusions of law. TCC provides two programs of group activities as part of the care it affords residents. In specifying which group activities are to be available to a particular resident, the resident's care plan typically listed either the "Stroke Club" or the "Alzheimers Adventure Group," without further elaboration. Only from other documents was HRS' Mr. Melvin able to discern the goals and objectives of the two programs. (T. 117, 119) In reviewing six charts in particular, Mr. Melvin perceived flaws in residents' care plans, plans that may be summarized, as follows: Patient Diagnosis/Problems Goals Approaches No. 361 Alzheimer's disease, Safe and free ADV. group unaware, disoriented unaware of needs and from harm needs will be 24 hour su- pervision of care wants met learn her signals and needs No. 348 Alzheimer's disease, unaware, disoriented will be kept aware of day, time, & place ADV. program No. 368 CVA (new admit) monitor needs get pt. to activities No. 365 Alzheimer's disease, free from ADV. program bladder tumors, con- harm and injury fused, disoriented, wanders ADV. program potential for de- & take to creased social stimula- parties tion & mental status No. 328 OBS, osteoarthritis, will attend encourage periods of confusion and depression memory loss and has good past recall activities, be- come acquainted with others; not to be em- barrassed when she forgets to parti- cipate in activities introduce to other residents; do not argue or dwell on things No. 011 arthritis & hyperten- sion, altered mental status, unaware of needs provide needs keep free from harm and in- jury 24 hour supervi- sion & adv prog. For the most part these plans lack specificity and individualization. They do not specify the severity of Alzheimer patients' disease. They are vague enough that it would be, in many instances, difficult to say whether they had been complied with. Nor was Mr. Melvin impressed with the 20-member Alzheimers Adventure Group in action. When he observed, a woman lay on the floor without participating in the group's activities. But the family of the recumbent resident, well aware of her proclivity to stretch out, agreed with staff that letting her lie was the more sensible and humane course. The other patients sat in rows "for hours in the room . . . [without] any programming . . . except the break at lunchtime". (T 120) Arts and crafts were not available to them.
Recommendation It is, accordingly, RECOMMENDED: That HRS revoke respondent's superior rating, until and unless respondent demonstrates its renewed eligibility for the same. DONE AND ENTERED this 9th day of January, 1989, in Tallahassee, Florida. ROBERT T. BENTON, II 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 9th day of January, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-2326 Petitioner's proposed findings of fact Nos. 1, 2, 12 and 13 have been adopted, in substance, insofar as material. Petitioner's proposed findings of fact Nos. 3, 4, 6, 7, 8, 9, 10, and 11, merely recite testimony. With respect to petitioner's proposed finding of fact No. 5, the infection control log was inaccurate, subparagraphs (c) and (e) are adopted; and the remaining parts of the proposed findings relate to subordinate matters. Petitioner's proposed finding of fact No. 14 has been adopted in part only. Respondent's proposed finding of fact No. 15 is a proposed conclusion of law. Respondent's proposed findings of fact Nos. 1, 2, 3, 4, 8, 10, 14, 16, 18, 23, 24 and 27 have been adopted, in substance, insofar as material. With respect to respondent's proposed finding of fact No. 5, a new infection control nurse began work. Respondent's proposed findings of fact Nos. 6, 7, 9, 11 (as to individualization) 12, 15, 19 (including secretion precautions) 22 and 26 have been rejected as against the weight of the evidence. Respondent's proposed finding of fact No. 13 merely recites testimony. With respect to respondent's proposed finding of fact No. 17, an HRS witness did cite the patient's opinion. With respect to respondent's proposed finding of fact No. 20, the infection control log was up to date, but inaccurate. Respondent's proposed finding of fact No. 21 is a proposed conclusion of law. Respondent's proposed finding of fact No. 25 relates to subordinate matters. COPIES FURNISHED: Frederick J. Simpson, Esquire Post Office Box 2417 Jacksonville, Florida 32230-0083 R. Bruce McKibben, Jr., Esquire Dempsey & Goldsmith, P.A. Post Office Box 10651 Tallahassee, Florida 32303 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 R. S. Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Suite 407 Tallahassee, Florida 32399-0700
The Issue The issue for determination is whether the Agency for Health Care Administration found deficiencies at Petitioner's nursing home sufficient to support the change in its licensure status to a conditional rating.
Findings Of Fact Petitioner, Glen Oaks, is a licensed nursing facility located in Clearwater Florida, licensed by and subject to regulation by the Agency pursuant to Chapter 400, Florida Statutes. The Agency is the licensing agency in the State of Florida responsible for regulating nursing facilities under Part II of Chapter 400, Florida Statutes. On February 2 and 3, 1998, the Agency conducted a complaint investigation at Glen Oaks in a matter unrelated to the issue that is the subject of this proceeding. As a result of that investigation, the Agency determined that the allegations in the underlying complaint were unfounded. While the Agency surveyor was at Glen Oaks investigating the complaint, she also performed a focused review at the facility. The focused review involved a matter unrelated to the complaint and came to the Agency surveyor's attention while she was touring the facility. During a tour of the facility, Claire R. Hoagland, R.N., the Agency surveyor, accompanied by Marlice Nix, R.N., an employee of Glen Oaks, entered the room of Resident No. 8. Once they were in the room, the resident complained to her primary care charge nurse, Marlice Nix, of soreness in the buttocks area. The charge nurse and the Agency surveyor, with the permission of the residence, looked at and noted redness on the resident's buttocks. This redness appeared to be excoriation associated with incontinence, rather than with any stages of pressure sores. In addition to the redness on the resident's buttocks, the surveyor and Ms. Nix identified an 0.5 centimeter linear shaped open area, equivalent in size to a pinpoint, measuring 0.1 centimeter in width with a zero depth located in the Resident No. 8's gluteal fold. Surveyor Hoagland believed that the red pinpoint size area on Resident No. 8 was a Stage II pressure sore. Upon review of the clinical record of Resident No. 8, Ms. Hoagland found no documentation that the facility had assessed the skin integrity of Resident No. 8 since December 20, 1997. Ms. Hoagland then spoke to the facility's administrator and its Director of Nursing. According to the administrator and Director of Nursing, the facility performed skin assessments on Resident No. 8, but had not documented all of the assessments. However, at the time of the Agency's visit to Glen Oaks, Resident No. 8's most recent annual "Minimum Data Set" (MDS), dated June 1997, documented the absence of any pressure sores. An MDS is a comprehensive assessment tool. During the April 1998, complaint investigation, the Agency surveyor learned that there were times when Resident No. 8 refused to be changed. For example, occasionally, when Resident No. 8 was watching her favorite television show, she asked not to be disturbed. The surveyor viewed this as "non-compliance" by Resident No. 8 and cited the facility because the resident's care plan did not specifically provide that staff would turn, re-position, or change the resident when her favorite television program was not on. Following the complaint investigation, the Agency cited Glen Oaks with an alleged failure to comply with the Omnibus Budget Reconciliation Act of 1987 (OBRA) regulatory requirements set forth at 42 C.F.R., Section 483.25 (c)(1). This requirement is also referred to on the Form 2567 as Federal Tag F-314 (the deficiency). According to that OBRA provision, the facility must ensure: (1) that a resident who enters the facility without pressure sores does not develop pressure sores unless they were unavoidable; and (2) that a resident with pressure sores receives the necessary treatment and services to promote healing, prevent infection, and prevent new sores from developing. The Agency alleged that Glen Oaks failed to comply with the above-cited OBRA provision in that (1) the facility did not document and/or perform weekly skin assessments on Resident No. 8, and that (2) Resident No. 8's care plan did not address her non-compliant behavior. Based on the facility's alleged deficiencies, it was the Agency's position that Resident No. 8 had developed a pressure sore that was avoidable. During the exit interview, the Agency Surveyor informed Glen Oaks that the deficiency would be classified as a Class III deficiency and would not affect Glen Oaks' superior licensure status. However, the Agency notified Glen Oaks on February 13, 1998, through the telephone call of its employee, Pat Silar, that its deficiency classification would be changed from a Class III to a Class II, resulting in a conditional rating for its nursing home license. By letter dated February 16, 1998, the Agency issued a Form 2567 setting forth the alleged deficiency; the findings supporting the deficiency; assessing the scope and severity of the deficiency at G; and classifying the deficiency as a Class II deficiency. In making her determination, Surveyor Hoagland used the surveyors' guidelines contained in the State Operating Manual (SOM). Appendix P of the SOM, entitled "Guidance to Surveyors," is the federal interpretative guideline to state surveyors regarding the OBRA regulations. Moreover, Surveyor Hoagland relied on the interpretive guidelines of F-314, including the booklet, Pressure Ulcers in Adults: Prediction and Prevention. There are two components to determining whether the development of an open area constitutes non-compliance with the OBRA requirement. First, the open area must, in fact, be a pressure sore. Second, if a pressure sore exists, the Agency must next determine if the development of the pressure sore was unavoidable. The SOM guideline corresponding to the OBRA Requirement governing pressure sores defines a pressure sore as an "ischemic ulceration and/or necrosis of tissues overlying a bony prominence that has been subjected to pressure, friction or sheer." The SOM defines a Stage II pressure ulcer or sore as "a partial thickness loss of skin layers either dermis or epidermis that presents clinically as an abrasion, blister, or shallow crater." Based on the definition in the SOM, a pressure sore is located over a bony prominence where the area would be subject to pressure. The pinpoint-size open area on Resident No. 8 was not located over a bony prominence, but rather in the gluteal fold. Also, the area was not the deep, dark, dusty red, with a purple center, that is associated with a Stage I or II pressure sore. Moreover, a Stage II pressure sore does not typically resolve in ten days as was the case with the area in Resident No. 8's gluteal fold. Due to the factors noted in paragraph 16 above, it is found that the pinpoint-size open area in Resident No. 8's gluteal fold was not a pressure sore. Even if it is assumed that the mark was a pressure sore, the Agency must next determine whether the pressure sore was unavoidable. In assessing whether a pressure sore was unavoidable, surveyors are to apply the "probes" set forth in the SOM. These probes are: Did the facility identify the resident as being at risk for pressure sores? Did the facility provide aggressive/appropriate preventative measures and care specific to addressing the resident's unique factors (e.g., if serum albumin is below 3.4 mg per dl, provide additional protein in daily snacks)? Was the preventative care plan implemented consistently? In the instant case, the answer to the first "probe" is yes. Resident No. 8 was admitted to Glen Oaks on March 4, 1994. At the time of admission, the resident had a Stage IV pressure sore which had healed by January, 1995, without surgical intervention. However, due to her medical history, Resident No. 8 was identified on the Resident Assessment Protocol as being at risk for the development of pressure sores. Because Resident No. 8 was identified as being at risk for developing pressure sores, the second "probe" requires that the Agency determine whether the facility provided aggressive appropriate preventative measures and care to the resident. Routine preventative care is defined by the SOM as turning and proper positioning; application of pressure reduction or relief devices; providing good skin care (i.e., keeping the skin clean, instituting measures to reduce excessive moisture); providing clean and dry bed linens; and maintaining adequate nutrition and hydration if possible. Resident No. 8's care plans dated June 1997, September 1997, and December 1997, were based on a comprehensive assessment of the resident; addressed the potential for alterations in skin integrity; and, provided for appropriate aggressive preventative measures and care. These preventative measures and care included turning and re-positioning at least every two hours; providing pressure relief mattress in both the Resident's bed and wheelchair; application of good skin care, including application of Vaseline care cream as a moisture barrier; and maintaining adequate nutrition and hydration, including the addition of the protein supplement Promod, and daily supplemental protein snacks and vitamins. These preventative skin care measures were also consistently implemented and effected the expedient healing of Resident No. 8's Stage IV pressure sore, present upon her admission to Glen Oaks in 1994. Furthermore, the consistent implementation of the prescribed preventative skin care measures prevented the development of any pressure sores for the period between January 1995 and February 1998, inclusive. The third probe requires a determination of whether the preventative care plan was implemented consistently. Here, Glen Oaks consistently implemented the preventative care plan measures listed in Resident No. 8's care plan. Thus, the third probe is answered in the affirmative. In the instant case, each of the inquiries or probes listed in paragraph 18 above is answered in the affirmative. Glen Oaks identified Resident No. 8 as being at risk for pressure sores; provided aggressive/appropriate preventative measures and care specific to address the residents unique risk factors; and, implemented the preventative care plan consistently. Accordingly, the development of the pinpoint-size open area in Resident No. 8's gluteal fold was unavoidable. Neither the applicable OBRA regulations governing pressure sores nor the SOM interpretative guidelines require weekly skin assessments for residents at risk for developing pressure sores. Thus, the failure to document all skin assessments does not constitute non-compliance with the OBRA requirements. Notwithstanding the Agency's findings to the contrary, Glen Oaks consistently implemented the care plan developed for Resident No. 8. However, Resident No. 8's care plan did not require a weekly skin assessment. Rather, the care plan required only that the Resident's skin be assessed for changes and that any changes be reported to the charge nurse/physician. Skin assessments were performed on Resident No. 8 more frequently than weekly. They were performed on Resident No. 8 several times a day during brief changes and twice a week during whirlpool baths performed by Charge Nurse Nix. However, because Resident No. 8's care plan did not so require, the benign assessments were not routinely documented. Typically, only changes or abnormal findings in a Resident's skin condition were documented in the resident's clinical records. Although the benign findings relative to skin assessments were not routinely recorded, the January 1998 Monthly Nursing Assessment for Resident No. 8 documented that the skin was intact; however, that report also noted the red area on the buttocks referred to in paragraph 4 above. On the other hand, two health care providers, charged with caring for Resident No. 8, observed no abnormal findings with regard to the resident's skin on January 30 and February 1, 1998. In the latter instances, the nursing staff did not record their findings that Resident No. 8's skin was intact. The Agency acknowledged that if skin assessments were performed on Resident No. 8 every day, there was no problem with the care provided. A care plan should address compliance only when a resident's non-compliance is frequent and becomes a habitual problem. Resident No. 8's non-compliance was not a habitual problem, and did not occur on a daily basis. Rather, Resident No. 8 was only "occasionally" non-compliant with regard to brief changes, turning and repositioning. In most cases, Resident No. 8's non-compliance required only that the charge nurse or Director of Nursing speak with the patient before the resident would comply. Occasionally, when Resident No. 8 was watching television, she refused to comply with the turning and re-positioning schedule and requested that the nursing staff come back when the television program was over. In these situations, the nurse complied with the resident's request, but would return soon thereafter to turn and re-position the resident. Resident No. 8's conduct cannot be deemed to be non- compliant and, therefore, there was no need to have the issue of non-compliance addressed in Resident 8's care plan.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED that the Agency for Health Care Administration enter a final order rescinding the conditional rating. DONE AND ENTERED this 14th day of December, 1998, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 14th day of December, 1998. COPIES FURNISHED: Karel Baarslag, Esquire Agency for Health Care Administration State Regional Service Center 2295 Victoria Avenue Fort Myers, Florida 33901 Rebekah N. Plowman, Esquire Long, Aldridge and Norman, LLP 303 Peachtree Street, Suite 5300 Atlanta, Georgia 30308 Sam Power, Agency Clerk Agency for Health Care Administration Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308 Paul J. Martin, General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308 Douglas M. Cook, Director Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: Case background and the parties: The Department is the state agency charged with the responsibility of issuing, revoking, or denying certificates of need for health care facilities or services. In that regard the Department has promulgated a rule for computing the need for new or additional community nursing home beds. The methodology of the rule (now Rule 10-5.036, Florida Administrative Code) calculates a specific number of beds anticipated to be needed for a given planning horizon. Once calculated, the Department publishes the calculated need for the district/subdistrict. Additional beds are generally not authorized if their approval would cause the total number of beds approved to exceed the number of beds calculated to be needed under the rule. The Department is not, however, obligated to approve beds so that the total number of beds calculated to be needed are approved, i.e. the Department may, as in this case, approve only a portion of those beds thought to be needed. In this case, the Department published a projected need for 165 additional beds in Orange County, Florida. That bed pool was calculated for the January, 1993 planning horizon and was published in the Florida Administrative Weekly on April 13, 1990. The calculated need published in this case has not been challenged and, therefore, was not at issue in these proceedings. At the time need was computed, there were 2,797 licensed beds in Orange County with an additional 505 approved nursing beds. The occupancy rate for the county was just under 93 percent. Following the publication of the need figures, letters of intent and applications were filed by health care providers seeking to obtain approvals for the available nursing beds. Coordinated Care, Inc. filed an application (CON #6287) for approval to develop a new, freestanding 120 bed community nursing home. The project was estimated to require a capital expenditure of $6,000,000 and would provide 24 beds in a subacute care unit. Florida Convalescent Centers, Inc. filed an application (CON #6292) for approval to develop a 60 bed addition to its existing facility known as Palm Garden of Orlando (CON #2991). If approved, the total number of nursing beds for that facility would then be 120 beds. The project cost for the expansion was estimated at $1,648,638. It was proposed that financing and management for the facility would be provided by National HealthCorp., Ltd. Marriott Retirement Communities, Inc. filed an application (CON #6290) for approval of a 39 bed community nursing home facility to be built as a component of a retirement community to be known as Brighton Gardens Nursing Center. The project cost for the Marriott proposal was $2,613,919. The Department's preliminary action in this case was to grant the CONs requested by Marriott and Florida Convalescent and to deny the application filed by Coordinated Care. Health Quest Management Corporation VII (Health Quest) operates an existing 120 bed nursing home in Orange County, Florida. That nursing home is known as Regents Park. Health Quest also operates Regents Woods, an adult congregate living facility, in Orange County. Health Quest opposes the proposed approval of CON #6290 for Marriott. Coordinated Care opposes the proposed approval of CON #6292 for Florida Convalescent and affirmatively alleges it is entitled, as the superior co-batched applicant, to the approval of its application. The petitions filed by Coordinated Care and Health Quest challenging the Department's preliminary action were timely. As to Case no. 90-7563: At the outset of the hearing, the parties stipulated that the following review criteria found in Section 381.705, Florida Statutes, were not at issue or were inapplicable to this case: Subsections 381.705(1)(d),(e),(f),(g),(j),(k),(m), and (2)(b) and (c). As to all other relevant criteria, Florida Convalescent and Coordinated Care were comparatively reviewed for CON approval by the Department and are so reviewed in this order. Florida Convalescent is a nursing home company currently operating twelve nursing homes in Florida, including Palm Garden of Orlando (Palm Garden). Palm Garden is a 60 bed facility that was constructed according to a 120 bed prototype. The facility was designed to have three sections: two 60 bed patient wings and a center, nonliving area for the operations of the facility. The kitchen, dining room area, therapy spaces, office spaces and open areas have already been constructed and are currently utilized for the existing 60 bed unit. The approval of the CON here would allow the completion of the final 60 bed wing. Palm Garden is managed by National Healthcorp, Ltd. (National), a nursing home company headquartered in Murfreesboro, Tennessee. National provides financial, developmental, and management services to nursing home companies in nine states. National prepared the CON application in this case on behalf of Florida Convalescent. If approved, National will continue to manage the Palm Garden facility in Orlando. As part of the 60 bed extension, Palm Garden will have specialized programs for Alzheimer's patients, subacute care, and special respite care. The approval of the 60 extension will allow these programs to be expanded and Florida Convalescent has indicated its willingness to accept as a condition of its CON an obligation to provide such special care programs. Currently, the profile of Palm Garden patients can be summarized as follows: 70 percent Medicaid, 25 percent private pay, and 5 percent Medicare. Florida Convalescent has agreed to commit to providing 58 percent of its services to Medicaid patients, and has indicated its willingness to accept as a condition of its CON such a provision. National has agreed to finance 1.6 million dollars of expenses for the Florida Convalescent proposal. The total project cost associated with the proposal is $3,333,119. Coordinated Care is a management company whose principals, Fred A. Lane and Patricia Lane, his wife, operate four nursing home facilities in Volusia County, Florida. If approved, Mr. Lane will administer Coordinated Care's facility in Orange County. It is proposed that the Coordinated Care facility will have 120 beds with a 24 bed subacute unit. The subacute unit will provide care for AIDS patients, ventilator dependent patients, and IV therapy. Additionally, the Coordinated Care proposal offers a program for mentally impaired patients including those with Alzheimer's and will also offer a respite care program. Coordinated Care is willing to accept as conditions on its certificate of need the following commitments: to exceed minimums on direct care staff to patient ratios by 10 percent; to provide service to AIDS patients; to offer 48 percent Medicaid and 15 percent Medicare; and to provide the subacute programs previously described. The Department's District 7, subdistrict Orange County, has a need for additional nursing home beds. The District 7 Local Health Plan cites recommendations regarding new nursing home beds for the District. Those recommendations speak to the needs of the District as a whole and are not ranked by priority of interest. In this case, both applicants, Coordinated Care and Florida Convalescent, will provide nursing services to AIDS patients. The Coordinated Care application recognized the need for a staff education program to provide AIDS training and committed the applicant to provide care for AIDS patients. The Florida Convalescent application did not address AIDS patients specifically because no AIDS patient has sought admission at the existing facility. Florida Convalescent will conduct staff education for AIDS patients, however, and will not deny admission to AIDS patients. Both Coordinated Care and Florida Convalescent will provide, and will commit to provide, specific levels of Medicaid patients. In this context, Florida Convalescent's history (63 percent) and proposed commitment (58 percent) to Medicaid utilization is greater than that offered by Coordinated Care (48 percent). With regard to indigent or charity care, Florida Convalescent currently provides such care at Palm Garden of Orlando. Both Coordinated Care and Florida Convalescent have demonstrated a commitment to high quality nursing home care. Palm Garden of Orlando is a superior rated nursing home and has, additionally, established a high quality service rating among homes managed by National. Similarly, the Lane family homes have experienced superior ratings and are committed to quality care. Both Coordinated Care and Florida Convalescent have demonstrated good track records for employee recruitment, training, and benefits. Additionally, the salary and bonus offers make both providers an attractive employer. Palm Garden of Orlando currently has ties to nursing programs in the Orlando area and is close geographically to Valencia Community College and the University of Central Florida. It is anticipated that Coordinated Care will be able to establish such ties in the Orlando area since it has done so in Volusia County. Both Florida Convalescent and Coordinated Care have demonstrated that their proposals in Orange County meet the State Health Plan preferences. By virtue of it being an existing provider, it is anticipated that Florida Convalescent will lower its administrative costs with the addition of 60 beds since there is recognized an economy of scale at that level. There is no demonstrated problem related to availability, accessibility, extent of utilization, or adequacy of nursing care services in this case. It is likely that resources, including health care manpower, will be available for project accomplishment and operation. Both applicants have demonstrated the immediate and long-term financial feasibility of the proposals. It is anticipated that the addition of 60 beds to the Florida Convalescent facility will have the least impact on the costs of providing health services and will promote cost-effectiveness. It is anticipated that the Florida Convalescent's proposal will best provide services to Medicaid patients and the medically indigent. The Florida Convalescent expansion is the most efficient and more appropriate alternative for providing nursing home services. The Florida Convalescent expansion will minimize the numbers of patients who were not admitted because of lack of beds at the Palm Garden facility. The Florida Convalescent expansion is consistent with other agencies and is in compliance with the local plans for providing long term care. The application submitted by Florida Convalescent was complete and its consolidated financial statement was consistent with the Department's rules and policies. The consolidated financial statement submitted by Florida Convalescent was prepared in accordance with generally accepted accounting principles and is sufficient for all purposes for which such statements are required by the Department. Florida Convalescent has demonstrated it has the financial resources to accomplish the project expansion and that the methods of construction, including equipment costs, are reasonable. On balance, when comparatively reviewed, the application submitted by Florida Convalescent is superior to the proposal submitted by Coordinated Care. As to Case No. 90-7565 Marriott filed an application for a certificate of need, designated by the Department CON # 6290, to construct a 39 bed nursing unit to be built in conjunction with an 133 bed adult congregate living facility (ACLF) in Orange County, Florida. The Marriott proposal in this case is based upon a design it has utilized before and is commonly known as a "Brighton Gardens" project. In accordance with Department statutes and rules, a certificate of need (CON) is necessary in order for Marriott to pursue the nursing component of its project. A CON is not required for the ACLF component. The Marriott project will be financed by its parent company. That Marriott entity has $400 million in cash or cash equivalents, generates $600 million annually in cash flow, and can easily afford the project addressed by this application. The Marriott proposal substantially meets the preferences and recommendations of the State and Local Health Plans. The Marriott proposal specifies 30 percent of its patient days will be available for Medicaid patients. Marriott is able to provide a high quality of care. The Marriott proposal will establish links with the nursing school community so that recruitments and staffing may be enhanced. Additionally, Marriott will offer continuing education for staff with reasonable salary and benefit opportunities. The costs of construction for the Marriott proposal are reasonable, allocated appropriately between the nursing facility and the ACLF, and meet or exceed all applicable code requirements. Both as to the manner of allocation and costs of allocation, Marriott has disclosed sufficient detail to adequately assess the nursing component of its proposed development. Marriott's proposed project both in the immediate and long-term is financially feasible. The granting of Marriott's proposal will not adversely affect Health Quest's ability to recruit personnel. The granting of Marriott's proposal will not adversely affect Health Quest's rate of occupancy. If Health Quest's occupancy should decrease following the approval of Marriott's request, such result is not attributable to the approval since Health Quest currently has a lower than district average for occupancy and since Health Quest currently charges more than the average amount charged by other nursing facilities. The number of beds requested by Marriott represents approximately 1 percent of the total number of beds currently approved in Orange County. Marriott's application substantially complies with all review criteria set forth in Chapter 381, Florida Statutes.
Recommendation Based on the foregoing, it is recommended that the Department of Health and Rehabilitative Services enter a final order approving the applications filed by Marriott and Florida Convalescent, denying the application of Coordinated Care, and dismissing the petition filed by Health Quest. RECOMMENDED this 31st day of October, 1991, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 90-7563 and 90-7565 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE DEPARTMENT: Paragraphs 1 through 5 are accepted. The first sentence of paragraph 6 is accepted; the remainder of the paragraph is not a statement of fact. Paragraphs 7 through 13 are accepted. With the deletion of the word "well" in the last sentence, paragraph 14 is accepted. Paragraph 15 is accepted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY MARRIOTT: Paragraphs 1 through 3 are accepted. With the clarification that at most 120 beds are in dispute, paragraph 4 is accepted. With regard to paragraph 5 it is accepted that Marriott's application is consistent with the state and local health plans; otherwise rejected as irrelevant. Paragraphs 6 through 8 are accepted. With regard to paragraph 9, it is rejected as argument or response to a position argued by Health Quest. The weight of the credible evidence showed that Marriott appropriately disclosed its projects and that it will be able to finance the project which is at issue. Paragraphs 10 through 19 are accepted. With the exception of the last sentence which is accepted; paragraph 20 is rejected as irrelevant. Paragraphs 21 through 23 are accepted. The first sentence of paragraph 24 is accepted, the remainder rejected as irrelevant. The first two sentences of paragraph 25 are accepted; the remainder rejected as irrelevant or argument. With the deletion of the words "by far" which are rejected as argument, paragraph 26 is accepted. With the deletion of the words "serious" and "numerous" which are rejected as contrary to the weight of the evidence, paragraph 27 is accepted. Paragraph 28 is rejected as contrary to the weight of the evidence. Paragraphs 29 and 30 are accepted. Paragraphs 31 through 33 are rejected as argument, contrary to the weight of the evidence, or irrelevant. It is not found, however, that Health Quest will suffer adversely from the approval of Marriott's application, to the contrary it will not. Paragraph 34 is accepted. Paragraphs 35 and 36 are rejected as argument. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY HEALTH QUEST: Paragraphs 1 through 3 are accepted. Paragraph 4 (a) is accepted. Paragraphs 4 (b), 4 (c), and 4 (d) are rejected as contrary to the weight of the evidence. Paragraphs 5 and 6 are accepted. With regard to paragraph 7, it is rejected as irrelevant or argument; in this case Marriott has allocated and identified appropriately to establish the support areas needed for the nursing component of its proposal. Those areas have been computed in the cost and fairly and reasonably been considered in the financial feasibility of the project. To the extent addressed in the findings of fact or as accepted elsewhere in this appendix, paragraphs 8 through 36 are accepted, otherwise rejected as contrary to the weight of the evidence or irrelevant. It is specifically found that Marriott appropriately and accurately disclosed and allocated costs of the nursing facility and that those costs fairly depict the expenses reasonably expected to be incurred by this project. As to the suggestion by Health Quest that Marriott's proposal could not survive as a stand alone facility, such suggestion is rejected as irrelevant given the total circumstances and financial disclosures made in this case. Paragraph 37 is accepted. Paragraph 38 is rejected as contrary to the weight of the evidence, hearsay, or not supported by the evidence in this case. Paragraphs 39 through 147 are rejected as recitation of testimony, irrelevant, argument, contrary to the weight of credible evidence or not supported by the evidence in this case. Paragraph 148 is accepted. Paragraph 149 is rejected as contrary to the weight of the evidence or irrelevant. Paragraphs 150 through 169 are rejected as irrelevant, contrary to the weight of the evidence, or not supported by the evidence. Paragraphs 170 through 179 are accepted. Paragraph 180 is rejected as irrelevant. Paragraphs 181 through 185 are rejected as irrelevant, argument, or contrary to the weight of the evidence. Paragraph 186 is accepted. Paragraph 187 is rejected as irrelevant. Paragraph 188 is accepted. Paragraphs 189 through 199 are rejected as contrary to the weight of the evidence, irrelevant, or argument. It is found that the allocations of space and costs in this case accurately describe the project and would allow for the financial feasibility of the nursing component. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY COORDINATED CARE: Paragraphs 1 through 3 are accepted. With regard to paragraph 4 it is accepted that the mathematical calculations are correct but such are not depositive of this case. Paragraph 5 is accepted. With the deletion of the phrase "Contrasted to the management style of FCC, which does not manage any of its facilities," which is rejected as argument or irrelevant, paragraph 6 is accepted. Paragraphs 7 through 21 are accepted. Paragraph 22 is rejected as contrary to the weight of the evidence. Paragraph 23 is rejected as irrelevant. Paragraph 24 is rejected as irrelevant. The first two sentences of paragraph 25 are accepted; the remainder is rejected as contrary to the weight of the evidence presented, irrelevant, or unsupported by the record. Paragraphs 26 through 31 are accepted. Paragraph 32 is rejected as repetitive. Paragraph 33 is rejected as repetitive. Paragraphs 34 through 36 are accepted. Paragraph 37 is rejected as repetitive. Paragraphs 38 through 44 are rejected as contrary to the weight of the evidence, irrelevant, or, where accurate as to fact, considered to be not dispositive of the issues of this case. Paragraph 45 is accepted. Paragraph 46 is accepted (assuming numbers have been rounded off). Paragraph 47 is rejected as contrary to the weight of the evidence. Paragraphs 48 and 49 are accepted. Paragraphs 50 through 64 are rejected as irrelevant, contrary to the weight of the evidence presented or argument. Paragraphs 65 and 66 are accepted. Paragraphs 67 through 72 are rejected as argument, irrelevant, or contrary to the weight of the evidence. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY FLORIDA CONVALESCENT CENTERS: Paragraphs 1 through 19 are accepted. Paragraph 20 is rejected as argument. Paragraphs 21 through 24 are accepted. Paragraph 25 and 26 are rejected to the extent that they suggest the Palm Garden facility enjoys a higher quality of care than the Lane family facilities. Both applicants provide a high quality of care and must be ranked equally in this regard. It is expected that the expansion of Palm Garden will assure that facility's continued high care and only to that extent has Palm Garden been considered the better applicant in this batch. Paragraph 27 is accepted to the extent it details the history of Florida Convalescent, otherwise rejected as irrelevant or contrary to the weight of the evidence. Paragraphs 28 and 29 are rejected as irrelevant. Paragraph 30 is accepted to the extent that it suggests both Florida Convalescent and Coordinated Care have established good recruitment and training programs, etc. To the extent that Florida Convalescent is already established in the Orlando community it is advantaged; but, it is expected that Coordinated Care will be able to duplicate its efforts and successes (as in Volusia) in the Orange County venue. It is because it has an established program that Florida Convalescent gets the nod in this category. Paragraphs 31 through 38 are accepted. Paragraph 39 is accepted to the extent that it states both applicants have superior programs and quality of care; otherwise, rejected as contrary to the weight of the evidence. With regard to paragraphs 40 through 42 it is found that both applicants meet the preferences addressed in the state health plan and that neither ranks higher in the categories listed in these paragraphs. Paragraphs 43 through 45 are accepted. Paragraph 46 is rejected as contrary to the weight of the evidence. Paragraphs 47 (all subparts) through 52 are accepted. The first sentence of paragraph 53 is accepted; the remainder is rejected as contrary to the weight of the evidence or irrelevant. Paragraphs 54 through 74 are accepted. Paragraphs 75 through 91 are rejected as contrary to the weight of the evidence or irrelevant. Paragraphs 92 through 109 are accepted. COPIES FURNISHED: James M. Barclay Theodore E. Mack Cobb Cole & Bell 315 South Calhoun Street Suite 500 Tallahassee, Florida 32301 Elizabeth McArthur Aurell, Radey, Hinkle & Thomas 101 N. Monroe Street Suite 1000 Post Office Drawer 11307 Tallahassee, Florida 32302 Charles M. Loeser 315 West Jefferson Boulevard South Bend, Indiana 46601 Darrell White Gerald B. Sternstein McFARLAIN, STERNSTEIN, WILEY & CASSEDY, P.A. Post Office Box 2174 Tallahassee, Florida 32316-2174 Donna Stinson Thomas M. Beason Moyle, Flanigan, Katz, Fitzgerald & Sheehan, P.A. 118 North Gadsden Street Suite 100 Tallahassee, Florida 32301 Richard Patterson Assistant General Counsel Department of Health and Rehabilitative Services Fort Knox Executive Center 2727 Mahan Drive Tallahassee, Florida 32308 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Slye, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
