The Issue The issue to be resolved in this proceeding concerns whether the Petitioner was harassed because of her race during employment as a registered nurse at Shands at Lakeshore, Inc. (Shands), and whether the Respondent terminated her because of race or for retaliation concerning alleged complaints of harassment.
Findings Of Fact The Petitioner, Valeria Thompkins, was employed as an RN on the medical-surgical unit on the third floor of Shands Lakeshore Hospital in Lake City, Florida, at times pertinent hereto. Each of the Petitioner's shifts began at 7 p.m. and ended at 7 a.m. The Petitioner reported to a "Charge Nurse" who supervised each shift and reported to the Nurse Manager for the unit. The Nurse Manager reported to the hospital’s Director of Nursing. Julia Woods was the Nurse Manager for the Petitioner's unit and Mattie Jones was the Director of Nursing, when the Petitioner was hired in August 2004. Julia Woods was removed by the Nursing Director, Ms. Jones, in September 2005 for performance issues. Jodi Wood replaced her as Nurse Manager for the Petitioner's unit. Julia Woods was removed by Ms. Jones because Ms. Woods had focused too heavily on staffing the unit and failed to properly supervise quality of patient care. When Ms. Jones promoted Jodi Wood, she specifically instructed Ms. Wood to improve the quality of patient care. Ms. Wood verbally counseled the Petitioner for failing to follow doctor's orders concerning administering intravenous antibiotics to a newly-admitted patient, who was suffering from sepsis. This verbal reprimand occurred on September 26, 2005. The failure to administer antibiotics to that patient harmed the patient's care and could have allowed the sepsis, a systemic infection, to become more severe. When the sepsis worsened as a result of failure to administer antibiotics timely, the Respondent was required to transfer that patient to the Intensive Care Unit. The Petitioner admits that she did not administer the ordered antibiotics, but claims that she did not administer them because the Respondent did not provide training explaining when to administer medications ordered to be administered twice per day. This explanation, however, does not raise any issue concerning disparate treatment for racial or other reasons and does not question the imposition of the verbal reprimand. All the nurses hired in August 2004 received the same training from the Respondent, including the Petitioner. The immediate administration of antibiotics is a standard nursing protocol for a patient with sepsis and the Respondent could reasonably presume that it did not need to train a registered nurse in such basic nursing care. It was reasonable for the Respondent to presume that the Petitioner was aware of that standard nursing practice. The Respondent's failure to raise any issue about the Petitioner's training, or orientation training, does not indicate that the verbal discipline was motivated by any illicit purpose, but rather was based upon the inadequate care provided the patient. The Respondent could fairly expect the Petitioner, hired as an RN, to have had adequate training in such standard nursing care or procedure before she was ever employed. The Petitioner ignored a doctor's order to monitor a patient's heart rate with a telemetry unit on October 14, 2005. This was less than a month after the previous verbal warning referenced above. The Petitioner admitted the patient to her unit and signed the patient's chart, noting that all orders above her signature, including the order for telemetry monitoring, had been executed, that is, performed. The Petitioner, however, failed to ensure that a telemetry unit was connected to the patient and did not take any telemetry readings while treating that patient. Ms. Wood presented this incident to Nursing Director Jones, who made an independent review of the events, including a review of the patient's chart. Ms. Jones decided to issue a First Written Corrective Action to the Petitioner because of this incident. The Petitioner's failure to place a telemetry unit on the patient made it impossible for the medical staff to monitor the patient's heart, thereby negatively affecting patient care. The Petitioner admitted that she was to blame for failing to ensure that the telemetry monitoring unit was on the patient. The Petitioner, however, attempted to dispute the First Written Corrective Action by claiming that other nurses, specifically those who had treated the patient in the Intensive Care Unit, were also at fault for failing to place a telemetry monitor on the patient. The Petitioner conceded, however, that Ms. Wood did not supervise any of those unidentified comparator nursing staff and could not therefore recommend discipline of them. Therefore, no question was raised concerning comparative discipline between the Petitioner and the nurses who had treated the patient in the Intensive Care Unit. Further, Ms. Jones is African-American. There is no evidence indicating that she would discipline the Petitioner concerning this mistake because of her race, while allowing employees outside the Petitioner's protected class to escape without discipline, if indeed they had done anything blame- worthy. The Petitioner has thus not provided credible evidence that any similarly-situated employees received disparate treatment with regard to any issue about responsibility for the referenced mistake in the care of this patient. On October 19, 2005, Terry Wayne, a Patient Care Coordinator at Shands, discovered that the Petitioner had administered an intravenous antibiotic, Gentamicin, to a patient who did not have an order for that antibiotic. Ms. Wayne determined that the antibiotic had actually been ordered for the other patient in the same room, but was carelessly administered to the wrong patient by the Petitioner. The Petitioner's error exposed the patient to potentially severe side effects. The error compromised the care of both patients by risking side effects for the patient who received the antibiotic in error, and by allowing the patient who should have received it to thus go untreated. The Petitioner denies administering the Gentamicin to that patient. The Petitioner claims that Jay Nash, the evening charge nurse, had come into the room and administered the antibiotic in an effort to “frame” the Petitioner as a sub- standard nurse. The Petitioner's explanation is not plausible. There is no credible evidence that Mr. Nash would be motivated to engage in such conspiratorial behavior to try to falsely blame the Petitioner. That theory relies heavily on the Petitioner's erroneous belief that Mr. Nash, not Terry Wayne, discovered the medication error. The Petitioner's explanation is simply not credible. It is undisputed that the Patient Care Coordinators, such as Ms. Wayne, were responsible for auditing patient charts to confirm that patients were receiving proper patient care. The Petitioner concedes that she does not know Terry Wayne or what her capacity is with Shands. Thus, there is no way she could know of Terry Wayne's holding any improper motivation to fabricate a medical error and blame it on the Petitioner. Ms. Wayne completed a Medical Error Report when she discovered the improperly administered Gentamicin. This was in accordance with routine Shands protocol. A copy of that report was delivered to the Nurse Manager, by routine policy. When the Nurse Manager, Ms. Wood, received the report, she forwarded it to the Nursing Director, Ms. Jones, and she recommended additional disciplinary action for the Petitioner. Ms. Jones made an independent review of the incident that included a review of the patient's chart and the incident report. Based upon this, Ms. Jones issued a Second Written Corrective Action to the Petitioner. Ms. Wood and Ms. Jones subsequently met with the Petitioner to prepare a development plan to try to improve the Petitioner's repeated patient-care problems. The Respondent routinely prepares development plans for employees who have two Written Corrective Actions, because a third Written Corrective Action in a 12-month period would result in termination. Ms. Wood met with the Petitioner once each week for the first two weeks after the development plan was presented to the Petitioner. Ms. Wood did not meet with the Petitioner the following two weeks because she took a vacation during the holiday season. The Petitioner caused several patient-care problems during the period Ms. Wood was unavailable to meet with her. Between December 13, 2005, and December 27, 2005, the Petitioner provided sub-standard care on at least eleven occasions. Two of these incidents were more serious patient-care problems than the others, because they resulted in a direct injury to one patient and exposed another patient to the risk of very serious infection. The first of the two incidents came to light when the Shands administration received a complaint from a patient, in the third floor medical-surgical unit, that his nurse had roughly removed a dressing for his IV and tore his skin. This complaint was passed on to Ms. Jones and Ms. Wood. Ms. Jones reviewed the patient’s chart and determined that the Petitioner had discontinued the IV on the patient in question. The discontinuation of an IV is the only reason to remove the dressing, so Ms. Jones reasonably concluded that the Petitioner was the nurse who tore the patient's skin. The Petitioner admitted treating the patient but denied tearing his skin. She claimed that she removed the first IV and replaced it with a new IV, only to have some other nurse come and discontinue the IV and tear the patient's skin. At the final hearing, however, the Petitioner conceded that she had to discontinue the original IV in order to replace it and that the patient's chart then would show that the Petitioner had discontinued the patient's IV. Therefore, even if the Petitioner was not the nurse who tore the patient's skin, the Petitioner's admission that the patient chart showed that she had discontinued at least one of the patient's I.V.'s creates a non-discriminatory explanation for a good faith belief by Nursing Director Jones that the Petitioner was the nurse who injured the patient. The second serious incident was discovered on December 24, 2005. Dayshift nurse Darlene Hewitt, who had taken over care of patients treated by the Petitioner during the preceding evening, noticed that one of the patients had dark stool dried over the site of his “femoral central line.” Ms. Hewitt had received a report from the Petitioner, only ten minutes before discovering the feces, but the Petitioner had not informed her of the patient's condition. Ms. Hewitt reported the incident to Ms. Wood, who reviewed the patient’s chart and determined that the Petitioner returned to the chart, after the presence of the feces had been discovered, and added false entries, effective 6 a.m. that morning, claiming to have discovered and reported the stool to the succeeding nurse at the shift change. A femoral central line is an I.V. line inserted into the femoral artery in the groin of the patient. It is used to administer prescription medication directly to a patient's heart. A dressing is used to cover the central line insertion point, because any bacteria that contaminate the site could potentially go directly to a patient's heart. A contaminated femoral central line is a serious patient-care issue and exposes the patient to potentially serious health consequences. Ms. Wood reported the incident to Director Jones, along with the other ten incidents of sub-standard patient-care occurring between December 13, 2005, and December 27, 2005. Ms. Jones reviewed each incident independently, and made an examination of each patient chart at issue. She determined that the Petitioner's patient-care practices had not improved. She therefore decided to issue the Petitioner a Third Written Corrective Action. Ms. Woods and Ms. Jones met with the Petitioner on December 28, 2005, to discuss the issues underlying the Third Written Corrective Action. Ms. Jones explained to the Petitioner that the Third Written Corrective Action would result in automatic termination. Ms. Jones offered the Petitioner the opportunity to resign, in lieu of termination, before the Third Written Corrective Action was completed. The Petitioner left the meeting and never responded to Ms. Jones’ offer. The Petitioner maintains that she was terminated. Whether she was terminated or resigned in lieu of termination, or was constructively terminated, is not material to resolution of the issues at hand. In fact, the Petitioner was effectively terminated for providing sub-standard patient care. There is no evidence to suggest that Ms. Jones’ decision to discipline and terminate the Petitioner was based upon race, retaliation for any alleged complaints of harassment, or engaging in any statutorily protected conduct. The Petitioner did not identify any employees outside her protected class that were not disciplined for providing similar sub-standard patient care. The Respondent, however, identified several employees outside the Petitioner's protected class who were disciplined by Ms. Wood for providing poor patient care. When faced with that evidence at hearing, the Petitioner conceded that the Respondent did not terminate her for any improper purpose. The Petitioner also claims to have been harassed by several white co-workers. Co-workers Shannon Poppel, Kim Morris, and Darlene Hewitt were purported by the Petitioner to have harassed her. Those three persons, however, all work on the day shift. The Petitioner worked on the 7 p.m. to 7 a.m. shift. Jay Nash was the only night-shift employee who had been alleged to have mistreated the Petitioner. At hearing, however, the Petitioner conceded that Mr. Nash was not harassing her; rather, she contends he was assigning her more difficult patients than he was assigning other employees. The Petitioner maintains that Poppel, Morris, and Hewitt were very friendly with Nursing Director Wood. The Petitioner suspects they had a social relationship outside the hospital. The Petitioner contends that Poppel, Morris, and Hewitt ignored her and interrupted her when she was attempting to give her report at shift changes. Finally, the Petitioner claims that the three people would stop all conversation whenever she entered a room and, on one occasion, she overheard Director Wood and one of the alleged harassers laughing in Ms. Woods's office when discussing the Petitioner. The Petitioner concedes, however, that none of the alleged harassers ever used any racially derogatory language or made any reference to the Petitioner's race. In fact, she offered no evidence relating the behavior of the three alleged harassers to the Petitioner's race, aside from the fact that the alleged harassers are Caucasian and the Petitioner is African- American. The Petitioner's contention that this behavior was based on race is the Petitioner's own bare, unsupported opinion and is un-persuasive. The Petitioner even concedes that the harassers were friends away from the hospital. Their social relationship, which was not shared with the Petitioner, is a more plausible explanation for any behavior of the alleged harassers than is the race of the Petitioner. This is especially so, given the fact that Nursing Director Wood herself is African-American. The Petitioner has also exaggerated the severity of the alleged harassment, because there was an insufficient temporal opportunity for the alleged harassers to engage in that conduct. The day-shift nurses, including the three alleged harassers, must "punch in" between 6:45 a.m. and 6:52 a.m. for their 12-hour shift, which runs from 7 a.m. to 7 p.m. Generally, the night-shift nurses finish giving reports to the day-shift nurses and leave the hospital by 7:15 a.m. Therefore, at most, Ms. Poppel, Morris, or Hewitt could have interacted with the Petitioner only for a total of about 30 minutes per day. Thus any harassment, if it occurred, would have occurred for only a very short period of time. Moreover, there is no proof that any harassment, based upon race, occurred at all. The Petitioner contends that she complained to Nursing Director Jones about the harassment, but Ms. Jones denies this. Ms. Jones is well-trained in the anti-harassment policy followed by Shands. She had conducted several other investigations into harassment allegations during her tenure as Nursing Director. Her thorough response to those other allegations concerning harassment makes it very unlikely that Ms. Jones would have ignored the Petitioner's alleged complaint, had she made one. Ms. Jones is an African-American woman and, if she had a history, as she does, of actively investigating any allegations of harassment, it is unlikely that she would have disregarded an allegation that an employee felt that she was being harassed because of her race. Therefore, the Petitioner's self-serving opinion that she was being harassed, and her allegation that she had complained about the harassment, lacks credibility and persuasiveness.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Florida Commission on Human Relations denying the petition in its entirety. DONE AND ENTERED this 19th day of January, 2010, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of January, 2010. COPIES FURNISHED: Nancy Toman Baldwin, Esquire Law offices of Nancy Toman Baldwin 309 North East First Street Gainesville, Florida 32601 Marquis W. Heilig, Esquire Thompson, Sizemore, Gonzalez & Hearing, P.A. 201 North Franklin Street, Suite 1600 Tampa, Florida 33602 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Conclusions THIS CAUSE came before the State of Florida, Agency for Health Care Administration (“the Agency") for the issuance of a final order. 1. On March 10, 2014, Greystone Hospice of District 6B, LLC, (“Greystone”) requested a formal administrative hearing to contest the preliminary denial of Certificate of Need (“CON”) Application No. 10206, which it submitted to establish a hospice program in the Service District 6B, and to contest the preliminary approval of VITAS Healthcare Corporation of Florida (“VITAS”) CON Application No. 10207, to establish a hospice program in Hospice Service Area 6B. Filed May 15, 2014 4:04 PM Division of Administrative Hearings 2. The request was referred to the Division of Administrative Hearings (“DOAH”) where it was assigned Case No. 14-1369CON. 3. On March 13, 2014, VITAS requested a formal administrative hearing to challenge the co-batched CON Application filed by Greystone to establish a hospice program in Service District 6B, (CON No. 10206), and to support the preliminary approval of its application (CON No. 10207). 4. The request was referred to DOAH where it was assigned Case No. 14-1366CON. 5. On April 4, 2014, DOAH issued an Order of Consolidation. 6. On April 18, 2014, Greystone filed a Notice of Voluntary Dismissal. It is therefore ORDERED: 7. The denial of Greystone’s CON Application No. 10206 is upheld. 8. The approval of VITAS’ CON Application No. 10207 is upheld subject to the conditions noted in the State Agency Action Report. ORDERED in Tallahassee, Florida, on this /4 day of hay 2014. Elizabeth Dudek, Secretary Agency for Hgalth Care Administration
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. Page 2 of 3 CERTIFICATE OF SERVICE I CERTIFY that a true and correct copy of this Final Order was served on the below- named persons by the method designated on this [Soma Ate , 2014. Agency for Health Care Administration 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308 (850) 412-3630 R. Bruce McKibben Administrative Law Judge Division of Administrative Hearings (Electronic Mail) Lorraine M. Novak, Esquire Office of the General Counsel Agency for Health Care Administration (Electronic Mail) Stephen A. Ecenia, Esquire Rutledge, Ecenia and Purnell, P.A. Post Office Box 551 Tallahassee, Florida 32302-0551 Steve@reuphlaw.com (Electronic Mail) R. Terry Rigsby, Esquire Pennington, P.A. Post Office Drawer 10095 Tallahassee, Florida 32302 Trigsby@penningtonlaw.com (Electronic Mail) | James McLemore, Supervisor Certificate of Need Unit Agency for Health Care Administration (Electronic Mail) Page 3 of 3
Conclusions Having reviewed the Administrative Complaint and Amended Administrative Complaint, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency has jurisdiction over the above-named Respondent pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Administrative Complaint and Election of Rights form to the Respondent. (Ex. 1) The Election of Rights forms advised of the right to an administrative hearing. 3. The parties entered into the attached Settlement Agreement. (Ex. 2) Based upon the foregoing, it is ORDERED: 1. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 2. The Respondent shall pay the Agency $3,000.00. If full payment has been made, the cancelled check acts as receipt of payment and no further payment is required. If full payment has not been made, payment is due within 30 days of the Final Order. Overdue amounts are subject to statutory interest and may be referred to collections. Any check made payable to the “Agency for Health Care Administration” and containing the AHCA ten-digit case number should be sent to: Office of Finance and Accounting Revenue Management Unit Agency for Health Care Administration 2727 Mahan Drive, MS 14 Tallahassee, FL 32308 Filed March 26, 2015 11:09 AM Division of Administrative Hearings ORDERED at Tallahassee, Florida, on this 2U day of Maca , 2015, aw, Elizdyeth’Dudgk{ Secretary y for H€ Care Administration
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I CERTIFY that a true and correct of this Final Order, was served on the below-named persons by the method designated on this Debit Aer Cc ZL. , 2015. Richard Shoop, Agency Cler Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, FL 32308-5403 Telephone: (850) 412-3630 Facilities Intake Unit Finance & Accounting (Electronic Mail) Revenue Management Unit (Electronic Mail) David Selby, Assistant General Counsel Louis F. Gerrard, President Office of the General Counsel Grace Manor at Lake Morton, LLC Agency for Health Care Administration c/o Mainstay Financial Services (Electronic Mail) 5578 Commercial Blvd. NW Winter Haven, FL 33880 (U.S. Mail) J. Davis Connor, Esq. Peterson & Myers, P.A. 225 East Lemon Street Lakeland, FL 33802-4628 (U.S. Mail) STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION Petitioner, . . CASE NO. 2013013450 vw a 2014002084 GRACE MANOR AT LAKE MORTON, LLC, Respondent. ADMINISTRATIVE COMPLAINT COMES NOW the Petitioner, State of Florida, Agency for Health Care Administration (“the Agency”), by and through its undersigned counsel, and files this Administrative Complaint : against the Respondent, Grace Manor at Lake Morton, LLC (“Respondent”), pursuant to Sections 120,569 and 120.87, Fla. Stat. (2013), and alleges: ‘This is an action against an assisted living facility (“ALF”) to impose a $2,000 fine for one State Class Il violation (Count 1) and a $ 1,000 fine for an uncorrected State Class TI violation (Count I). SS “JURISDICTIONAND VENUE ss— 1. The Agency has jurisdiction pursuant to Sections 20.42, 120.60, and Chapters 408, Part II, and 429, Part I, Fla. Stat. (2013). 2, Venue lies pursuant to Florida Administrative Code (“F.A.C.”) Rule 28-106.207. 1 EXHIBIT - 1 a oemec eae rena nipnpintetineccpinat: tty uinepiman menttinie manent pasa pammemnat ety arr sec nmmpematest ean neem at tt CT BE PARTIES 3. The Agency is the regulatory authority responsible for licensure of ALFs and enforcement of all applicable State statutes and rules governing ALFs pursuant to Chapters 408, Part IL, and 429, Part ], Fla, Stat., and Chapter 58A-5, F.A.C., respectively. 4,, Respondent operates a 50 bed ALF at 610 East Lime St, Lakeland, FL 33801, Standard license #5217. 5, Respondent was at all times material hereto.a licensed facility under the licensing authority of the Agency and was required to comply with all applicable rules and statutes, COUNT I - $2,000 CLASS I FINE (Case No. 2013013450; State Tag A0030: Resident Care - Rights & Facility Procedures) 6 The Agency re-alleges and incorporates paragraphs 1-5 asif fully set forth herein. 7. The Agency’s surveyor conducted an unannounced complaint investigation (CCR 2013008974) on 8 October, 2013, 8. The surveyor learned this information during the survey: _-a,-Based_on interviews and-a-record-reviews, the facility failed-to ensure that Resident #1,-an-85-—— Sanne year old man, with received appropriate medical care in a timely manner which led to delayed medical care and extreme continual pain. b. Phone interview with Staff ‘A’, a former med tech/caregiver, on 10/9/13 at about 4:40 pm. She stated that the last night that Resident #1 was sent to the hospital, Staff “B’ (another - ‘categiver) and she were working, They did their final rounds. Resident #1 came.out about 10:30 - i 11:30 pm and complained about a burning, like a hot rod was in his eye. She called the resident care coordinator (RCC) and told her what was going on. She asked the RCC if she could give him a i brand name medication for Acetaminophen that he had scheduled for later in the moming. The RCC said Staff “A? wasn't supposed to but she could just this one time. Staff ‘A stated Resident #1 was hurting. She could tell he was in pain by his demeanor, About 11:30 to 12:30 am he started vomiting when he was in the recliner. He. was in the recliner so they could keep an eye on him. She called the RCC again and she said just keep an eye on him and she would deal with him in the morning. The RCC told Staff ‘A’ that she knew the family would be upset if they sent him out because he had done this thing before. At 12:30 to 1:30 am it got worse and his breathing got worse, He was breathing funny. His vitals were going crazy. His blood pressure was 200 and something over 100 and something. His pulse was fast and oxygen saturation was low. His breathing was irregular. She called the RCC again and she said to call the home health company. The guy she spoke to at home health asked why did he need to come and she explained the situation and the vitals. He stated based on Resident #1's vitals he should be sent out to the hospital. She called the RCC again and told her what home health said and the RCC said "no " , to not send him out and she would deal with him in the morning. At 1:30 to 2:30 am he was panic screaming (like yelling). He said now I know what it feels like to die alone. He already had problems:with his left eye and it was white and lie could not see out of it but he.could see out of his tight eye. However, then he complained that he could not see ~ ~ them and they were Fight in front of him. She called the RCC again and she responded again that she - would deal with him in the moming. At 3:30 am he was puking but she could hear it gurgling back in his hings. He was.aspirating. She called the RCC and told her that she was sending this man out even if she had to be written up. He was throwing up and now he‘is aspirating. She stated OK do started to move him onto the stretcher. He couldn't stand. He had a stroke. Emergency medical services (EMS) and the emergency room doctor asked her why the resident was not sent to the hospital earlier, A friend who worked at the facility told her the next day that Resident #1 died at 6:45 am. c Phone interview with Staff ‘B’,a med tech/caregiver, on 10/9/13 at approximately 5:40 “am. She reported that on the night of the incident at 11:00 pm, Resident #1 complained that his eye hurt and he had a bad headache, Staff ‘A’ called the RCC and she said to go ahead and give the brand name medication for Acetaminophen he had scheduled at.some point during the next morning, In an hour he stated it was getting worse. Staff ‘A’ called the RCC and she stated he did this before and to keep an eye on him, They sat with Resident #1 throughout the night in the living room in front. Resident #1 would freak out if he could not see them. He stated he could not see them and they were right in front of his face. He said to please not leave him because he did not want to die alone. Staff ‘A’ called again and finally got permission to call 911 from the RCC about 2:00 to 3:00 am. Paramedics asked if leaning to the side was normal for him and they told them it was not normal. They asked if his face drooping was:normal and they said, "no." They did a stress test and he was weaker on one side. He fell to the'side when they stood him up and stated they thought he had a stroke when they took him out:on a stretcher. Staff ‘B’ stated she felt like Resident #1 should have went out to the hospital the first time Staff ‘“ called the RCC. Resident #1 stated he felt like a hot rod was stabbing through his eye. It was not normal for him to come out of his room and complain d. Interview with the RCC about Resident #1 on 10/8/13 at about 2:15 pm. She stated that Staff ‘A’ called her orice for Resident #1's headache and she asked Staff ‘A’ if he had anything she could give him for pain and Staff ‘A’ said a brand name medication for Acetaminophen. The RCC said, " well give him that." Staff‘A’ called back later and stated he was throwing up and she told Staff‘ A” to send him to the hospital. It started about 1:00 am and she did not know how long in between before Staff ‘A’ called the second time. She stated she did not remember exact times “because it happened almost a year ago. 7 San et ecngioeeanygmeninepe bier see mane nt egress nemsmmn enue on Sibuset einer arsine ' i t ; @. Review of the EMS report dated 4/30/13. It indicated that the stroke alert was called at 3:28 am and Resident #1 arrived at the hospital at 3:43 am. ) f. Review of the hospital Emergency Department Note - Phiysician final report dated 4/30/13. It noted that the physician spoke directly to the staff at the facility and was told that at 11:00 pm or so Resident #1 had severe pain behind his right eye. He walked out to the nursing — station to request help. Resident #1 sat down in a chair near the nutsing station and stayed there for the next few hours. Somewhere between 3:00 and 3:15 am Resident #1 became less responsive and vomited and developed slurred speech. Facility staff did not notice left sided weakness. At the hospital Resident #1 was diagnosed with intracerebral hemorrhage (a type of stroke where an artery bursts in the brain and causes bleeding in the brain). g. Death. The hospital death record indicated that the resident died at 7:25 am on 4/30/13. h. Interview with the RCC on 10/8/13 at about 2:40 pm. Stafflet them know if residents-are sick and then they contact the nurse (a home health nurse because the facility has no nursés) and she comes to evaluate. If the nutse states they need-to go out to hospital then they send them. If it's night time staff call her (the RCC) and then the nurse is called and the nurse still comes to assess. They and the nurse might say to go ahead and send out. i. Interview with the executive director (ED). The ED revealed that Resident #1 's family was adamant about not sending him out to the hospital (not specifically talking about this event, but Previous ones). ; . _ j. Review of the hospital Emergency Department Note ~ Nursing final report dated 4/30/13. It revealed that EMS reported that the family was not thrilled with the idea of the resident being transported to the hospital. cde esate aspen era ety tatoo so tenn tnsennnenntammpanma aea i i 1 i i i i | | | k. Review of the facility's medical emergencies policy. It was located on page 93 and 94 of its Assisted Living Policy and Procedure Manual. Section 1 indicated that the administrator should be. contacted immediately and section 2 indicated that the administrator makes the determination of the severity of the situation. Section 3 indicated that the community summons emergency medical services by calling 911 when the resident exhibits signs and symptoms of distress and /or emergency : condition, One example included was sudden onset of severe pain. Resident #1 had indicated to staff that he felt like a hot rod was stabbing through his eye but medical care was still delayed for hours. 9. Florida’s law regatding residents having the right to a safe and decent living environment free from abuse and neglect is stated as follows: B r : ; i 429.28 Resident bill of rights.— . (1) No resident of a facility shall be deprived of any civil or legal rights, | ‘ benefits, or privileges. guaranteed by law, the Constitution of the State of Florida, or the Constitution of the United States.as a resident of a facility. Every resident of a facility shall have the right to: (a) Live ina safe and decent living environment, free from abuse and neglect. Section 429.28, Fla. Stat. (2013) 10. In sum, the facility failed to ensure that Resident #1 was free from neglect, to wit, he did not __ receive timely and appropriate medical care which led to extreme continual pain because he first alerted staff between the 10:30 to 11:30 pm time frame on.4/29/13 that he was in extreme pain but, despite his, e. g., repeated complaints of extreme pain, panic yelling, expressing his fear of dying alone, vomiting, lack of vision, crazy vitals, aspirating, leaning to the side and drooping face, 911 was not notified until about 3:30 atv the next iiditiing, an inappropriate delay of several hours. 11. Respondent was cited fora Class Il violation, defined as follows: 408.813 Administrative fines; violations.—As a penalty for any violation of this part, authorizing statutes, or applicable rules, the agency may impose an administrative fine. (2) Violations of this part, authorizing statutes, or applicable rules shall be _ Classified according to the nature of the violation and the gravity of its probable effect on clients. .» Violations shall be classified:on the written notice as follows: (b) Class “II” violations are those conditions or‘oceurrences related to the operation and maintenance of a provider or to the care of clients which the agency _ determines directly threaten the physical or emotional health, safety, or security of the clients, other than class I violations. The agency shall impose an administrative fine as provided by law for a cited class II violation. A’fine shall be levied notwithstanding the correction of the violation. Section 408.813, Fla, Stat. (2013) 12. Florida-law states as follows as regards the fine for an ALF for a Class II violation: 429.19 Violations; imposition of administrative fines; grounds.— (1) In addition to the requirements of part II of chapter 408, the agency shall impose an administrative fine in the manner provided in chapter 120 for the violation of any provision of this part, part II of chapter 408, and applicable rules by an assisted living facility, for the actions of any person subject to level 2 background screening under s. 408.809, for the actions of any facility employee, or for an intentional or negligent act seriously affecting the health, safety, or welfare of a resident of the facility. (2) Each violation of this part and adopted rules shall be classified ‘according to the nature of the violation and the gravity of its probable efféct on facility residents. The agency shall indicate the classification on the written notice of the violation as follows: {b) Class “II” violations are defined in s. 408.813. The agency shall impose an administrative fine for a cited class II violation i inan n amount not less than $1,000 and een HOE ENCE $5,000 Lor CAC Via data (3) For purposes of this section, in determining if a penalty is.to be imposed and in fixing the amount of the fine, the agency shall consider the following factors: (a) The gravity of the violation, including the probability that death or serious physical or emotional harm to a resident will result or has resulted, the severity of the action or potential harm, and the extent to which the provisions of the applicable laws or rules were violated. (b) Actions taken by the owner or administrator to correct violations. “~(e) ~~ Any previous violations: d)- The financial benefit to the facility of committing or continuing the violation, (e) The licensed capacity of the facility. Section 429.19, Fla. Stat, (2013) smear mre erin nites teins ingest cnn ee ne ene WHEREFORE, the Agency intends to-impose a $2,000 fine agninst Respondent pursuant to Sections 408.813 and 429, 19, Fla, Stat. (2013). COUNT Il - $1,000 UNCORRECTED CLASS III FINE (Case No. 2014002084; State Tag A0010 — Admissions —-Continued Residency) 13. The Agency re-alleges and incorporates paragraphs | - 5 as if fully set forth herein. fa survey - 11/21/13 (paras 14 —19) 14. A complaint investigation (CCR#2013012071) was conducted on 21 November, 2013. 15. Based upon record review the facility failed to ensure that an interdisciplinary care plan was developed and implemented for Resident #1, an 89 year old female receiving hospice care and services. A 11/21/13 review of her records showed that although she was retained at the facility on | hospice care it failed to develop and implement an interdisciplinary care plan developed by hospice. in coordination with her and/or another responsible party in order to meet her needs. 16. Florida law provides as follows as regards an ALF resident receiving hospice services: 58A-5.0181 Admission Procedures, “Appropriateness “of Placement and Continued Residency Criteria. (4) CONTINUED RESIDENCY. Except as follows in paragtaphs (a) through (e) of this subsection, criteria for continued residency in any licensed facility shall be the same as the criteria for admission. As part of the continued residency criteria, a resident must have a face-to-face medical examination by a licensed health. care provider at least every 3 years after the initial assessment, or after a significant change, whichever comes first. A significant change is defined in Rule 58A-5.0131, F.A.C. The results of the examination must be recorded on AHCA Form 1823, which is incorporated by reference in paragraph (2)(b) of this rule. The form must be completed in accordance with that paragraph. After the effective date of this rule, providers shall have up to 12 months to comply with this requirement. ©) A terminally ill resident who no longer meets the criteria for continued residency may continue to reside in the facility if the following conditions are met: 1. The resident qualifies for, is admitted to, and consents to the services of.a licensed 8 hospice which coordinates and ensures the provision of any additional care and . services that may be needed; 2. Continued residency is agreeable to the resident and the facility; 3, An interdisciplinary care plan is developed and implemented by a licensed hospice in consultation with the facility. Facility staff may provide any nursing service permitted under the facility’s license and total help with the activities of daily living; and : 4. Documentation of the requirements of this paragraph is maintained in the resident's file. Rule 58A-5.0181, F.A.C, | 17. Insum, the facility failed to develop and implement Resident #1’s interdisciplinary plan for hospice care and services. | 18. Petitioner cited Respondent for a Class III violation, defined as follows:. 408.813 Administrative fines; violations.—As a penalty for any violation of this part, authorizing statutes, or applicable rules, the agency may impose an administrative fine. (2) Violations of this part, authorizing statutes, or applicable rules shall be classified according to the nature of the violation and the gravity of its probable effect on clients, ~ .,. Violations shall be classified on the written notice as follows: (c) Class “IIT” violations are those conditions or occurrences related to the operation and maintenance of a provider or to the care of clients which emotional health, safety, or security of clients, other than class J or class II violations. The agency shall impose an administrative fine as provided in this section for a cited class III violation, A citation for a class TII violation must specify the time within which the violation is required tobe corrected, If a class III violation is corrected within the time specified, a fine may not be imposed, Section 408.813, Fla. Stat. (2013) 19. By letter dated 9 December, 2013, Respondent was notified of a mandatory correction date of 30 days from the letter’s 9 December date, to wit, on or about 9 January, 2014. 2% Survey - 1/31/14 (paras 20 - 25) 20. A revisit survey was conducted on 31 January, 2014, to check on the deficiencies cited during 9 the first survey on 21 November, 2013. 21, a, Based upon record review the facility failed to ensure that an interdisciplinary care plan was developed and implemented for resident #1, an 89 year old female receiving hospice care and services, . b. An 11/21/13 review of Resident #1’s records showed that although she was retained at the facility on hospice care it failed to develop and implement an interdisciplinary care plan with, hospice in coordination with her and/or another responsible party to meet her needs. c. During the revisit survey an interdisciplinary care plan was still not available for her. The facility had a hospice ‘Interdisciplinary Care Plans’ form which was a blank form with the words "Interdiciplinary Care Plans" hand written at the top of the page labeled as a "HHA Plan of Care and Note", The rest of the page corisisted of a check list to indicate the information for all areas pertaining to pain level, mental status, bathing, grooming, dressing, nutrition, activity tolerance and transfer. In sum, the form was empty in content and did not meet the intent of the requirement. d. During a staff interview the surveyor determined that they did not have a good discussion that they were going to develop their own form for this purpose. 22. Insum, the facility failed to correct the prior deficiency by still not having developed and implemented the required interdisciplinary care plan for Resident #1 who was still receiving hospice care and services. 23. Florida law regarding an ALF resident receiving hospice services is cited in paragraph 16. 24. Petitioner cited Respondent for a Class III violation, defined in paragraph 18. 10 25. The'same constitutes an uncorrected Class III violation with the fine determined as follows: WHEREFORE, the Agency intends to impose a $1,000 fine against Respondent, an ALF 429,19 - Violations; imposition of adminisirative fines; grounds.— (1) Inaddition to the requirements of part II of chapter 408, the agency “shall impose an administrative fine in the manner provided:in chapter 120 for the violation of any provision of this part, part II of chapter 408, and applicable rules by an assisted living facility ... - (2) Each violation of this part:and adopted rules shall be classified - according to the nature of the violation and the gravity ofits probable: effect on facility residents. The agency shall indicate the classification on the written notice of the violation as follows: (c) Class “III” violations are defined in s. 408.813. The agency shall impose an administrative fine for a cited class III violation in an amount not less than $500 and not exceeding $1,000 for each violation. Section 429.19, Fla. Stat. (2012) in the State of Florida, pursuant to § 429,19 (2) (c), Fla. Stat. (2013). +k Submitted this @ day of April, 2014. STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION 525 Mirror Lake Dr. N., Ste 330 Ph: (727) 552-1942 Fax: -1440 david.selby@ahca.myflorida.com _ By: z Q Edwin D. Selby Assistant General Counsel Fla. Bar No, 262587 41 | | i | 4 Le i j H 4 / L i : i L i f i f St Petersburg, FL 33701 5 i t i * : i i | i
The Issue The issues are whether Respondent's operation of its nursing home was deficient and, if so, whether Petitioner should have imposed an already-lifted admissions moratorium, pursuant to Section 400.121(5)(a), Florida Statutes; and should impose a conditional license, pursuant to Section 400.23(7)(b), Florida Statutes; administrative fines of $95,000, pursuant to Section 400.19(8), Florida Statutes; a survey fee of $6000, pursuant to Section 400.19(3), Florida Statutes; and costs, pursuant to Section 400.121(10), Florida Statutes.
Findings Of Fact Respondent owns and operates Hallandale Rehabilitation Center (Hallandale), which is a 141-bed nursing home located at 2400 East Hallandale Beach in Hallandale. Licensed as a skilled nursing facility, Hallandale holds license number SNF11920961, effective April 25, 2001, through December 31, 2001. Petitioner's surveyors conducted an inspection of Hallandale on December 3 and 4, 2001. The inspection lasted four to five hours on the first day and twelve and one-half hours on the second day. As a result of the inspection, Petitioner found numerous deficiencies in resident care, as discussed below. At the time of the incident described below, Resident #1 was 84 years old. She had been admitted to Hallandale on September 11, 2001, having suffered a stroke with aphasia, hemiplagia, hypertension, and cardiac arrhythmia. She was totally dependent upon staff for all of her needs, which she was unable to communicate. On October 25, 2001, one of Respondent's staff discovered a large reddened area on the right anterior thigh of Resident #1. The area measured 14 cm by 8 cm and was raised and hard. A licensed practical nurse and registered nurse, both employed by Respondent, examined the wound. The registered nurse spoke to the certified nursing assistants to learn what she could about the wound, but no one was aware of its cause. Without delay, the nurse on duty contacted the advanced registered nurse practitioner, who was employed by the physician who supervised Resident #1's care. After listening to an accurate description of the wound, the advanced registered nurse practitioner opined that the reddened area might be cellulitis, possibly due to a bug bite. At 6:45 a.m., the advanced registered nurse practitioner ordered the application of warm compresses to the wound several times a day. Respondent's staff promptly implemented these orders. Respondent's staff also contacted Resident #1's husband and informed him of the situation. The wound quickly deteriorated. When Respondent's staff informed the advanced registered nurse practitioner later the same day that the reddened area had begun to blister and opened blisters had begun to seep clear fluids, the advanced registered nurse practitioner ordered that staff discontinue the warm compresses and clean the wound with saline solution, apply triple antibiotic ointment, and cover the wound with Telfa. Respondent's staff promptly implemented these orders. Respondent's staff initiated an investigation into the cause of Resident #1's wound and completed adverse incident reports. In retrospect, the most plausible explanation is that a heated metal plate warmer, which is under the food plate on which residents are served their food, may have somehow slipped out of its protective enclosure and burned Resident #1. But this explanation appears to have emerged later, partly due to the fact that the facility had never previously had a resident burned by a plate warmer and partly due to the belated identification of the wound as a burn. The day after the discovery of the wound, the advanced registered nurse practitioner visited the facility and intended to examine Resident #1's wound. However, Resident #1 was out of the facility at a neurologist's appointment, and the advanced registered nurse practitioner did not see her on that day. Four days after the discovery of the wound, the advanced registered nurse practitioner ordered the discontinuation of the triple antibiotic ointment and the application of Silvadene. It is unclear what prompted this change in orders. Six days after the discovery of the wound, the advanced registered nurse practitioner visited the facility and examined the wound, but was unable to conclude the source of the injury. Satisfied with the present treatment, the advanced registered nurse practitioner ordered the continuation of the Silvadene and a follow-up visit in one week. On November 2, which was eight days after the discovery of the wound, Respondent's staff notified the advanced registered nurse practitioner that the wound was not progressing. The advanced registered nurse practitioner ordered a consultation with a wound care physician, with whom an appointment was made for November 6. In the meantime, Respondent's staff continued to implement the orders of the advanced registered nurse practitioner. On November 4, the advanced registered nurse practitioner re-examined the wound and did not change the treatment order. Two days later, the wound care physician, who is a dermatologist, examined the wound and ordered Santal ointment, which is a debriding agent, and an outpatient debridement, but Resident #1's husband declined the surgical procedure on behalf of his wife. Eight days later, on November 14, a plastic surgeon examined Resident #1's wound. Testifying that he did not know who summoned him to the facility, the physician visited the facility and found that Resident #1's wound was actually a third-degree burn, which was now 16 cm by 9 cm and exhibiting areas of necrosis. Continuing the order for Santal, the plastic surgeon ordered a surgical debridement to remove the nonviable tissue that were impeding healing. Based on the plastic surgeon's testimony, the application of warm compresses, although contraindicated for a burn wound, did not exacerbate the injury because all of the damage was done at the moment of the initial incident. Also, the Silvadene, triple antibiotic, and Santal were appropriate treatments. From the moment of the initial incident, Resident #1 would have required surgical treatment regardless of the diagnosis and nonsurgical treatment of the wound. However, the passage of six days before a physician (or presumably an advanced registered nurse practitioner) examined the wound was unreasonable; at most, two days would be reasonable. On November 18, Resident #1 was admitted to the hospital for an unrelated condition. During this admission, on November 23, the plastic surgeon performed the debridement. The wound healed nicely after the procedure. The three allegations concerning Resident #1 involve mistreatment and neglect, the failure to provide services meeting professional standards of quality, and the failure to provide the services necessary for Resident #1 to attain her highest practicable physical, mental, and psychosocial wellbeing. Petitioner has focused on Respondent's acts and omissions after discovering the wound and not on any acts or omissions possibly resulting in the wound. These issues turn on the failure of the physician or at least advanced registered nurse practitioner to examine the wound for six days. Ultimately, it is unimportant that the advanced registered nurse practitioner was at the facility the next day, but was unable to examine the injury due to the absence of the resident. The fact remains that Resident #1 was not examined by a physician or an advanced registered nurse practitioner for six days after the injury was discovered. However, when the advanced registered nurse practitioner examined Resident #1 on October 31, he did find that the condition of the wound demanded a change in treatment or immediate intervention. As noted by the plastic surgeon, the Silvadene then being administered was appropriate. The failure of the advanced registered nurse practitioner to diagnose Resident #1's burn would have been material, if timely diagnosis would have resulted in materially different treatment that could have obviated the need for surgical debridement. However, the plastic surgeon established that, from the moment of the burn, Resident #1 was destined to undergo a surgical debridement of the wound. Significantly, the wound healed shortly after the surgery. The failure of the advanced registered nurse practitioner to diagnose Resident #1's burn would also have been material, if a timely diagnosis would have materially shortened the healing process or materially reduced the amount of pain produced by the wound. However, the evidence describing Resident #1's reaction to the pain of the wound prior to debridement is scant. And no evidence suggests timely diagnosis would have meant that a surgical debridement would have taken place earlier than the one actually performed--about one month after the burn occurred. In general, the evidence fails to show that the delayed diagnosis materially affected Resident #1's physical, mental, or psychosocial wellbeing. The question whether Respondent mistreated or neglected Resident #1 requires an assessment of the reasonableness of its reliance upon the nonemployee health care professionals who cared for Resident #1 prior to the intervention of the plastic surgeon. Respondent timely notified these professionals, as well as Resident #1's husband, of the initial injury, as well as subsequent developments. Petitioner has not shown that any shortcomings in diagnosis and treatment by those professionals had a material bearing on the course or outcome of Resident #1's case. In general, Petitioner has not proved that Respondent's care for Resident #1 after discovery of the injury constitutes mistreatment or neglect, a failure to provide services meeting professional standards of quality, or a failure to provide the services necessary for Resident #1 to attain her highest practicable physical, mental, and psychosocial wellbeing. At the time of the incident described below, Resident #2 was 61 years old. He had been admitted to Hallandale on October 9, 2001, with a right-leg amputation below the knee a day or two prior to the admission to Hallandale, diabetes, cardiovascular disease, and dehydration, but not pressure sores. While at the facility, Resident #2 mostly remained in his room. Resident #2 had recently been living in a homeless shelter. When he used his wheelchair, Resident #2 propelled himself with his arms, not his foot. On October 31, about three weeks after his admission, Respondent's staff found a "stage II" open wound measuring 2 cm by 3 cm on the sole of Respondent's foot. Respondent contends that the wound was a vascular ulcer. This contention is supported by the diabetes, peripheral vascular disease, and recent amputation. On the other hand, Petitioner's surveyor examined the wound during the survey and found a stage II pressure sore the size of a quarter or half-dollar. Several facts support Petitioner's classification of the wound as a pressure sore; these include the fact that it healed later in December, that some of Respondent's records identify the wound as a pressure sore, various risk factors for pressure sores, and Respondent's haphazard maintenance of medical records for this resident-- featuring one admittedly incorrect record of the inception of the wound and treatment records that Respondent claims are missing. A stage II pressure sore is defined by the presence of opened area through the epidermis and possibly the dermis. A stage I pressure sore is defined by a reddened area. A stage III pressure sore is defined by the exposure of subcutaneous tissue, and a stage IV pressure sore is defined by the exposure of the fascia, muscle, or bone. A pressure sore results from pressure to an area over an extended period of time, so that an area loses blood circulation and suffers tissue breakdown. It is impossible to find sufficient factual bases for mistreatment or neglect of Resident #2 strictly in the development of the pressure sore. His various physical problems predisposed him to this condition. His means of movement in the wheelchair was his hands, not his foot, so that the source of pressure on the foot is not obvious. However, Respondent's response to the pressure sore was inadequate. First, Respondent provided Resident #2 no treatment for the pressure sore for the first three weeks after its discovery; under these circumstances, this absence of treatment was mistreatment and neglect and a failure to provide services meeting professional standards of quality. During this period, Respondent likewise failed to make the necessary revisions in any care plan that it maintained for Resident #2. On November 20, Respondent's staff applied duoderm to the pressure sore and continued to provide effective treatment, including hydrogel, that resulted in the speedy resolution of the condition. However, the period during which Resident #2 suffered with an untreated pressure sore on his foot occurred during a crucial period of his life, as he tried to recover from the amputation of part of his right leg. While his pressure sore remained symptomatic and untreated, Resident #2 suffered a decline in his level of participation in physical therapy. For instance, progress notes from the occupational therapist dated October 17 and 24 report "excellent progress"; the latter note reports "max[imum] motivation" and the therapist's expectation that Resident #2 will make "cont[inued] progress." By November 19, Resident #2 was refusing to participate in physical therapy, citing "drainage pain in foot." He refused physical therapy again the next day for the same reason. One week later, the physical therapist discontinued Resident #2's physical therapy due to his noncompliance. Interestingly, Resident #2's urinary continence also changed for the worse during the same period that his painful foot remained untreated. On October 22, Respondent completed a minimum data set for Resident #2 and determined that he was continent. However, the minimum data set that Respondent completed six weeks later revealed that he was now occasionally incontinent. The interdisciplinary care plan confirms declines during this time in behavior and continence. If Resident #2 reacted poorly to the untreated and painful pressure sore in his left foot, it can perhaps be explained by, not only the fact that this was his sole remaining foot, but also by the circumstances surrounding the loss of the right foot. A week prior to his admission to Hallandale, Resident #2 had been admitted to the hospital complaining of a draining ulcer at the base of his right foot, which resulted in the amputation of his right leg below the knee a few days later. Two other allegations involve Resident #2. One involves the discovery of the resident by a surveyor in a urine- soaked condition. The other involves the presence of excessively long toenails on Resident #2, suggestive of a lack of attention to his grooming needs. During the survey, a surveyor found Resident #2 in his bed soaked in urine up to his armpits. She found his sheets and clothing totally soaked in urine and the smell "unbelievabl[y] . . . strong." When the surveyor contacted the Director of Nursing, he told her that staff had last changed Resident #2's incontinence brief 12 hours ago. The evidence concerning the condition of Resident #2's toenails does not establish any deficiency. The surveyor who noted the condition of the toenails had to rely on her report, rather than an independent recollection. The evidence generally does not describe the circumstances surrounding this situation. Although Petitioner did not prove that Respondent unreasonably failed to avoid the development of the pressure sore, Petitioner proved that Respondent's failure to treat the pressure sore promptly was mistreatment and neglect and a failure to provide services meeting professional standards of quality. Similarly, Petitioner proved that Respondent failed to revise Resident #2's comprehensive care plan during this period of nontreatment. Although Petitioner did not prove that Respondent failed to promote care to maintain Resident #2's dignity in terms of any failure to timely trim his toenails, Petitioner proved that Respondent's failure to change Resident #2's briefs for 12 hours, at the end of which time he was totally soaked in urine, constituted a failure to provide those services necessary to maintain personal hygiene to a resident in need of assistance in his activities of daily living. The prompt healing of the pressure sore, once it was treated, is a mitigating factor. However, the effect of the delay in treatment upon Resident #2 is a serious aggravating factor. Having recently undergone the amputation of his lower right leg following a similar sore on his right foot, Resident #2 began the difficult transition period with a worrisome pressure sore on his remaining foot. The period during which Respondent failed to treat this pressure sore corresponds with the period during which Resident #2 suffered declines in urinary continence and therapeutic progress following the leg amputation. Allowing Resident #2 to lie in bed totally soaked in his own urine literally added insult to injury. At the time of the incident described below, Resident #3 was 45 years old. He was quadriplegic and incontinent. Due to decreased bed mobility and bowel incontinence, Resident #3 was at increased risk of developing pressure sores. The surveyor directed that staff remove dressings of wounds, so that she could examine the condition of the wounds. In removing a dressing covering a stage II pressure sore at the sacrum, a nurse either tore the epidermis at the distal end of Resident #3's buttock or a previously reddened area had been masked by the tape used to secure the dressing for the pressure sore at the sacrum. There is little evidence in the record concerning Resident #3. With respect to either of his pressure sores, Petitioner failed to prove any mistreatment or neglect or any failure to provide services meeting professional standards of care. At the time of the incident described below, Resident #4 was 77 years old. She was incontinent and dependent on staff for all of her needs. During the survey, a surveyor discovered a severe excoriation of the perineal area extending to Resident #4's groin and right upper thigh. At the time, Respondent's staff was treating the excoriated area with zinc oxide to provide a barrier between the skin and external moisture. The treatment was appropriate, and Respondent's standing orders duly authorized the use of zinc oxide for this condition without obtaining a physician's order to do so. Petitioner failed to prove any mistreatment or neglect or failure to meet professional standards of quality in Respondent's care of Resident #4. At the time of the incidents described below, Resident #5 was 87 years old and Resident #7 was 57 years old. Both residents had been admitted to Hallandale less than one month prior to the survey. During the survey, the surveyor noticed that each of these residents had stage II pressure sores without dressings. The Director of Nursing, who was pregnant at the time and unable to remove dressings herself, had directed staff to remove the dressings of a number of residents at the same time, shortly before the wound inspection, to facilitate the surveyor's examination of wounds. Staff did so with respect to Resident #5 and Resident #7, and the surveyor wrongly inferred that Respondent did not maintain the necessary dressings for these residents. As to Resident #5 and Resident #7, Petitioner failed to prove any mistreatment or neglect or any failure to meet professional standards of quality. At the time of the incident described below, Resident #6 was 90 years old. During the survey, the surveyor found a dressing on a wound on Resident #6's left lateral ankle. The date written on the dressing was two days prior to the date of the survey, but the physician's order was to change the dressing and treat the wound daily. The treatment record documents that Respondent's staff changed the dressing on the day prior to the survey, even though this date was not noted on the dressing itself. Absent any evidence of harm to the resident, the evidence does not establish that Respondent's staff failed to change the dressing on the prior day. As to Resident #6, Petitioner has failed to prove any mistreatment or neglect or any failure to provide services meeting professional standards of quality. At the time of the incident described below, Resident #8 was 47 years old. He had been admitted to Hallandale with diagnoses of heart failure, HIV, neuropathy, and psychosis. Fortunately, Resident #8 required minimal assistance with his activities of daily living because he was intractably abusive toward staff, yelling insults and throwing furniture and dishes. During the survey, a surveyor noticed that Resident #8's fingernails were long and yellowed. The resident claimed that Respondent's staff ignored his frequent pleas that they trim his nails. According to Respondent's staff, Resident #8 refused to allow anyone to trim his fingernails. It is impossible to credit Resident #8's claims. Petitioner cited excessively long nails for only two of about 75 residents. The other situation was discussed above. The most likely explanation for Resident #8's long fingernails was his disruptive lack of cooperativeness and psychotic behavior. Petitioner failed to prove any failure to promote care to maintain Resident #8's dignity. There is little evidence concerning Resident #9, whom Petitioner alleges suffered from excoriated buttocks and delays in changing wet briefs. In its proposed recommended order, Petitioner did not mention the latter allegation, which consisted of hearsay in this record, but restated the observation of excoriated buttocks. There is also little evidence concerning Resident #10, whom Petitioner alleges suffered from delays in responses to her call bell to be assisted in toileting. In its proposed recommended order, Petitioner did not mention this allegation, which consisted of hearsay in this record. Absent evidence of the circumstances surrounding the excoriation or the other alleged deficiencies omitted from the proposed recommended order, Petitioner has failed to prove any failure to promote care to maintain either resident's dignity. As for Resident #11, Resident #12, and Resident #13, Respondent's staff double-diapered all of them at the time of the survey. Resident #11 and Resident #13 had requested double diapering. As to these residents, Petitioner failed to prove any failure to promote care to maintain their dignity. Resident #12 had not consented to double diapering. However, according to her minimum data set completed about three weeks before the survey, Resident #12 suffers from dementia, has a poor memory, and is completely incontinent of bladder and bowel. Absent additional evidence of Resident #12's response to the double diapering, it is impossible, on this record, to infer sufficient insight on her part as to justify a finding of loss of dignity in this otherwise-benign practice, as evidenced by the fact that some residents request double diapering. Although Respondent had reminded staff not to double diaper residents who had not requested such extra protection, language barriers likely contributed to the unrequested double diapering of Resident #12. As to Resident #12, Petitioner has failed to prove any failure to promote care to maintain her dignity. At the time of the incident described below, Resident #14 was 49 years old. She had been admitted to Hallandale on November 22, 2000, with diagnoses of acute respiratory failure, status--post subarachnoid hemorrhage, status--post cerebral aneurysm, seizure disorder, and percutaneous endoscopic gastrostomy tube and tracheostomy placement. Respondent was aware that Resident #14 repeatedly pulled at both tubes, without which she would expire. Respondent was aware that Resident #14 was agitated and restless. On January 16, 2001, Resident #14 succeeded in pulling out her tracheotomy tube, and, after onsite resuscitation, she was transported by ambulance to the hospital for treatment. Three days later, Resident #14 was readmitted to Hallandale with wrist restraints, pursuant to her physician's order. The order required that Respondent's staff check the restraints every 30 minutes to assure that they would effectively prevent Resident #14 from pulling out her tubes. The order required that Respondent's staff release the wrist restraints every two hours for ten minutes. Five hours after her readmission to Hallandale, Resident #14 was found with her wrists unrestrained, her tracheotomy tube removed, and not breathing. She was in a coma from which she never recovered, and Resident #14 later died. Petitioner cited Respondent for a class II deficiency in connection with this incident. On April 25, 2001, one of Petitioner's surveyors conducted a complaint-investigation survey concerning Respondent's care of Resident #14 and concluded that Respondent had failed to provide Resident #14 with adequate supervision. In its proposed recommended order, Respondent concedes that it was unable to demonstrate that the citation from this incident had been improperly issued. Petitioner has alleged that Respondent never developed a risk management plan or trained its staff in the management and prevention of risk. Although Petitioner alleges in the alternative that Respondent did not implement a presumably developed risk management plan, the amended Administrative Complaint cites only Section 400.147(1)(e), Florida Statutes, which is not the subsection covering implementation, but is the subsection covering the development of a plan and the training of staff in risk management and prevention. Although Respondent lacked a written risk management plan at the time of the survey, it maintained a program that included the reporting of all adverse incidents, investigation of all adverse incidents, development of plans to avoid the repetition of adverse incidents, and training of staff on avoiding adverse incidents. Additionally, Respondent conducted monthly quality assurance meetings and required the weekly assessment of wounds. Undoubtedly, Respondent's care for Resident #14 was gravely deficient, and its care for Resident #2 was seriously deficient. Resident #2 was not the only resident who was the victim of poor recordkeeping, although he seems to have been the only resident who was the victim of materially false recordkeeping. Respondent's care for Resident #1 was marginally adequate. Notwithstanding obvious shortcomings in staff competence, the record in this case does not portray a facility replete with care problems--from which an inference of risk management deficiencies would be easier. Respondent's nontreatment of Resident #14 and mistreatment of Resident #2 seem isolated, Respondent's treatment of Resident #1--although not without its flaws--reflects a dogged persistence to obtain competent care for her wound, and Respondent's handling of the other residents is either adequate or not materially inadequate. Petitioner has failed to prove any failure to develop a risk management program or to train staff in risk management and prevention. Petitioner has sought a $6000 survey fee, based on the existence of a class I deficiency. Ignoring Petitioner's argument that the citation alone of a class I deficiency satisfies the statutory requirement, as discussed in the Conclusions of Law below, it is necessary to consider the status of the matters proved as to Resident #2. As to Resident #2, Petitioner cited Respondent for an isolated class I deficiency with respect to the following: mistreatment or neglect and a failure to provide services meeting professional standards of quality. The remaining citations were for isolated class II deficiencies. However, in its proposed recommended order, Petitioner refers to the mistreatment or neglect as a class II deficiency. Assuming that this is a typographical error, it remains necessary to consider all aspects of Respondent's mishandling of the care of Resident #2 to determine if it constitutes a class I deficiency. As discussed above, Respondent's mistreatment or neglect of Resident #2 and failure to provide him with services meeting professional standards of quality interfered with his ability to rehabilitate following the amputation of part of his right leg. As such, these deficiencies are class II deficiencies. These deficiencies were not so grave as to meet the class I criterion of causing, or likely to cause, serious injury, harm, impairment, or death. Petitioner has failed to prove that Respondent committed a class I deficiency during the December 2001 survey and thus has failed to prove that Respondent is liable for the $6000 statutory survey fee. The amount of the fines is based on the classification of the deficiencies and whether they are isolated or widespread. As already noted, the deficiencies of mistreatment or neglect and failure to provide services meeting professional standards of quality are class II deficiencies, not class I deficiencies as alleged. The failure to revise the comprehensive care plan and the failure to provide services in the form of changing urine-soaked sheets and clothes to maintain personal hygiene are also class II deficiencies, as alleged. The care plan relates closely to the other deficiencies concerning the delayed treatment of the pressure sore, and the failure to alleviate Resident #2's urine-soaked condition compromised his ability to maintain or reach his highest psychosocial wellbeing. As alleged, these deficiencies are isolated because they affect only one resident. In calculating the amount of fines, it is necessary to treat the mistreatment or neglect and failure to provide services meeting professional standards of quality as a single deficiency because they are proved by the same facts. However, the failure to revise the care plan is a separate deficiency, as is obviously the failure to provide services to maintain personal hygiene. The fine for each isolated class II deficiency is $2500 for a total of $7500. However, the citation six months earlier of a class II deficiency in the failure to supervise Resident #14 requires the doubling of the fine to $15,000. On December 11, 2001, Petitioner issued a moratorium on admissions, which Petitioner lifted eight days later. Respondent's mistreatment and neglect of Resident #2 following its recent citation in connection with the death of Resident #14 constitute adequate grounds for Petitioner to have found, at the time of the December 2001 survey, or even a few days later, that the care provided by Hallandale was so inadequate as to present a threat to the health, safety, or welfare of its residents. Based on the facts then known or presently found in this recommended order, an eight-day admissions moratorium was a prudent action. Based on the findings of class I and II deficiencies, Petitioner, by letter dated December 14, 2001, imposed upon Respondent a conditional license, effective December 4, 2001. This license expired on December 31, 2001. Lastly, Petitioner seeks the costs related to the investigation and prosecution of this case, pursuant to Section 400.121(10), Florida Statutes. Absent evidence of such costs, the Administrative Law Judge shall retain jurisdiction of the case solely for the purpose of entering a supplemental recommended order awarding these costs, if the parties cannot agree to such costs within a reasonable time. The Administrative Law Judge will set a hearing for this purpose on the request of either party.
Recommendation It is RECOMMENDED that the Agency for Health Care Administration enter a final order finding Respondent guilty of three separate, isolated class II deficiencies with respect to Resident #2, imposing a fine of $7500 for these violations, doubling the fine to $15,000 due to the existence of a class II deficiency in the preceding complaint investigation, imposing a conditional license, sustaining the already-lifted admissions moratorium, and imposing costs for the investigation and prosecution (if the parties can agree on an amount; if not, remanding the issue of costs to the Administrative Law Judge for the issuance of a supplemental recommended order on the amount of these costs). It is further RECOMMENDED that the Agency for Health Care Administration enter a final order dismissing the remainder of the amended Administrative Complaint. DONE AND ENTERED this 11th day of December, 2002, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 11th day of December, 2002. COPIES FURNISHED: Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop No. 3 Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308 Lori C. Desnick Agency for Health Care Administration 2727 Mahan Drive, Suite 3431 Fort Knox Building No. 3 Tallahassee, Florida 32308 Jay Adams Jay Adams, P.A. Broad and Cassel 215 South Monroe Street, Suite 400 Post Office Drawer 11300 Tallahassee, Florida 32302
Conclusions THIS CAUSE came before the State of Florida, Agency for Health Care Administration (“the Agency") for the issuance of a final order. 1. On March 10, 2014, Greystone Hospice of District 7B, LLC, (“Greystone”) requested a formal administrative hearing to contest the preliminary denial of Certificate of Need (“CON”) Application No. 10209, which it submitted to establish a hospice program in the Agency Health Planning Service District 7, Hospice Service Area 7B, and to contest the preliminary approval of Halifax Hospice, Inc.’s (“Halifax”) CON Application No. 10210, to Filed May 15, 2014 4:20 PM Division of Administrative Hearings establish a hospice program in Hospice Service Area 7B. 2. The matter was referred to the Division of Administrative Hearings (CDOAH”) where it was assigned Case No. 14-1368CON. 3. On April 1, 2014, Halifax requested a formal administrative hearing challenging the co-batched applications and supporting the Agency’s preliminary approval of Halifax’s CON Application No. 10210, to establish a hospice program in Service Area 7B, and to support the Agency’s preliminary denial of the co-batched application filed by Greystone. 4. The request was referred to DOAH where it was assigned Case No. 14-1472CON. 5. On April 2, 2014, DOAH issued an Order of Consolidation. 6. On April 18, 2014, Greystone filed a Notice of Voluntary Dismissal. It is therefore ORDERED: 7. The denial of Greystone’s CON Application No. 10209 is upheld. 8. The approval of Halifax’s CON Application No. 10210 is upheld subject to the conditions noted in the State Agency Action Report. ORDERED in Taliahassee, Florida, on this ee day of [hae , 2014. ab hb Ductere Elizabeth Dudek, Secretary Agency for Hegfth Care Administration
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. Page 2 of 3 CERTIFICATE OF SERVICE I CERTIFY that a true and correct copy of this Final Order was served on the below- —~—” named persons by the method designated on this [Pine Les , 2014. Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308 (850) 412-3630 W. David Watkins Administrative Law Judge Division of Administrative Hearings (Electronic Mail) Lorraine M. Novak, Esquire Office of the General Counsel Agency for Health Care Administration (Electronic Mail) Stephen A. Ecenia, Esquire Rutledge, Ecenia and Purnell, P.A. Post Office Box 551 Tallahassee, Florida 32302-0551 Steve@reuphlaw.com (Electronic Mail) Seann M. Frazier, Esquire Parker, Hudson, Rainer and Dobbs, LLP 215 South Monroe Street, Suite 750 Tallahassee, Florida 32301 Sfrazier@phrd.com (Electronic Mail) R. David Prescott, Esquire Rutledge, Ecenia and Purnell, P.A. Jonathan L. Rue, Esquire Parker, Hudson, Rainer and Dobbs, LLP Post Office Box 551 285 Peachtree Center Avenue, Suite 1500 Tallahassee, Florida 32302-0551 Atlanta, Georgia 30303 David@reuphlaw.com jrue@phrd.com (Electronic Mail) (Electronic Mail) | Gabriel F.V. Warren, Esquire James McLemore, Supervisor Rutledge, Ecenia and Purnell, P.A. Certificate of Need Unit Post Office Box 551 Agency for Health Care Administration Tallahassee, Florida 32302-0551 (Electronic Mail) Gabriel@reuphlaw.com (Electronic Mail) Page 3 of 3
