The Issue The primary issue for determination is whether Sea Breeze Health Care (Respondent) committed the deficiencies as alleged in the Amended Administrative Complaint dated April 2, 2004, which amended both complaints in the above-styled consolidated cases. Secondary issues include whether Petitioner should have changed the status of Respondent's license from Standard to Conditional for the time period of August 28, 2003 until October 29, 2003; and whether Petitioner should impose administrative fines for alleged deficiencies that are proven to be supported by the evidence.
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 nursing home located at 1937 Jenks Avenue, Panama City, Florida 32405 (the facility). By stipulation of the parties, the facts reveal that Respondent is a long term care facility that receives Medicare and Medicaid funds for compliance with Federal statutory and rule requirements. Petitioner is required to classify deficiencies according to the nature and scope of the deficiency. The classification of deficiencies is also determinative of whether the licensure status of a nursing home is "standard" or "conditional" and also governs the amount of administrative fine to be imposed. Petitioner conducted an annual survey of Respondent's facility from August 25th through August 28th, 2004. Upon completion of that survey, Petitioner prepared a report that charged Respondent with violations of various nursing home regulations. This report organized each of the charged violations under “Tags,” which are shorthand references to the regulatory standards that Petitioner alleges were violated. Additionally, Petitioner assigned, as required by law, class II ratings to the four deficiencies or Tags ( F223, F241, F314, and F318) at issue in this proceeding. Resident 6 is a 56 year old, cognitively alert male who was admitted to Respondent's facility on May 21, 2003. He had a history of diabetes. When admitted to the facility, he had pressure ulcers on his coccyx and right heel, and his left leg had been amputated above the knee. He was referred to physical therapy to improve his functional mobility. On July 25, 2004, a doctor ordered that Resident 6 was to receive a sliding board to assist staff in transferring the Resident from his bed to his wheelchair, based upon a recommendation for the board made by the facility’s physical therapist. The sliding board was never ordered. Additionally, the doctor ordered a knee brace for Resident 6's right knee that had been recommended by the therapist for the purpose of increasing the Resident's range of motion and decreasing muscle spasms to his right hamstring. Respondent provided Resident 6 with a knee brace from July 25th until August 4th; however, the Resident complained of pain that it was causing him. The nursing staff then asked the physical therapist to re-evaluate the brace. A new brace, to have been ordered for the Resident, was processed incorrectly by the supply manager at the facility. The brace request was then rejected by Respondent's corporate office. While awaiting the receipt of the new brace, the physical therapist directed the restorative nursing staff to use a temporary brace and pillows as wedges around the Resident’s leg in lieu of the permanent brace, which they did. Additionally, the Resident's pain medication was increased until the new brace could be obtained. During the course of Petitioner's survey, the surveyor observed that the Resident complained on six separate occasions of pain and muscle spasms. The knee brace did not arrive until September 3, 2003. The failure of the facility's supply manager to order the devices on the correct form deprived Resident 6 of devices needed to improve his range of motion. As noted above, Resident 6 was admitted to the facility with pressure sores on his coccyx and right heel, classified as stage IV wounds. Respondent's facility’s treatments of the Resident's coccyx wound was inadequate because Resident 6 had a physician’s order to treat his coccyx wound daily with calcium alginate. However, the wound care nurses did not follow that order and instead followed the facility’s wound protocols that directed staff to treat the wound every three to four days and as necessary, such as when the wound became contaminated with feces. After the completion of Petitioner's survey, Respondent personnel contacted Resident 6's physician about the discrepancy between the order and the protocols. The physician directed that the order be changed to comport with the facility’s protocol. During the survey, Petitioner's surveyor observed the wound care nurse using unclean techniques when she changed the Resident’s coccyx wound care dressing. The wound care nurse’s testimony denying this observation is not credible. The surveyor observed the wound care nurse, during the course of changing the Resident's wound dressings, retrieve calcium alginate from a previously opened sterile package with her bare hands, then cut a length for use with scissors retrieved from her pocket, all before washing her hands and without gloves. After cutting the calcium alginate for use, the wound care nurse laid this piece of medication on the dressing area, then put other supplies and gloves on top of it. When packing this medication into a wound, the medication should be kept as clean as possible and the dressing supplies should be kept on a clean dressing field. The unclean manner of dressing Resident 6's wounds, coupled with the directive from personnel that he defecate in his diaper, exposed his coccyx wound to contamination from feces. In the course of Petitioner's survey of Respondent's facility during the period of August 25-28, 2003, Petitioner's surveyor overheard Resident 6 tell the facility wound care nurse that he needed to go to the bathroom. The wound care nurse offered the Resident no assistance and told him to defecate in his diaper. Later in the course of further questioning of the patient, Petitioner's surveyor learned that Respondent's staff frequently acted in the fashion observed by the surveyor, forcing the Resident to defecate in his diaper and sit in his feces. The facility wound care nurse disputed the surveyor’s account of her conversation with Resident 6, and denied that she told Resident 6 to defecate in his diaper. Her testimony is not credited. Resident 6 was toileted in a manner that violated his dignity.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner enter a final order upholding the assignment of the Conditional licensure status for the period August 28 through October 29, 2003, and imposing an administrative fine of $2,500 for each of the violations proven in Count I, Count II, and Count IV of the Amended Administrative Complaint, for a total of $7,500. DONE AND ENTERED this 21st day of July, 2004, in Tallahassee, Leon County, Florida. S DON W. DAVIS 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 21st day of July, 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 R. Davis Thomas, Jr. Qualified Representative Broad and Cassel 215 South Monroe Street, Suite 400 Post Office Drawer 11300 Tallahassee, Florida 32302-1300 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 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308
Findings Of Fact Wright is a licensed practical nurse in Florida, holding license number PN 185281. In accordance with her licensure, Wright worked as a practical nurse at Manor Care Nursing Center in Jacksonville, Florida. On January 15, 1991, patient R.B. was admitted to Manor Care for recovery from multiple factures and organic brain damage. R.B. was receiving nourishment, Jevity, through a nasogastric tube (NGT). On January 18, 1991, at approximately 5:00 p.m., R.B. removed the NGT. R.B.'s mental confusion was such that she would attempt to remove the NGT regularly and mittens were used to prevent this behavior. Wright was the nurse responsible for R.B.'s care from approximately 4:00 p.m. to midnight on January 18, 1991. She recorded R.B.'s removal of the NGT. At some point thereafter, registered nurse Rosalina Harrell came and reinserted the NGT. At 9:30 p.m., Wright's notes indicate that R.B. was coughing and that she checked the placement of the NGT. Placement is checked to insure that the tube is inserted into the stomach and not into the trachea and lungs. According to Wright's notes and testimony, she discontinued feeding to give R.B. a rest, even though the placement checks were negative, meaning that the checks did not show that the tube was in the trachea or lungs. Wright restarted the feeding of Jevity (a white liquid food supplement). At 10:30 p.m., Wright's notes showed that R.B. was coughing up "large" amounts of white frothy phlegm. Wright again held the tube feeding for a short time. Another practical nurse, Margaret Patti, came on duty to replace Wright as the nurse in charge of R.B.'s care. In discussing R.B.'s condition with Wright, Wright informed Patti that R.B. had been coughing since the tube was inserted by Harrell. Wright said she did not remove the tube because she was not sure it was indeed in the wrong place. Wright and Patti then both did one test for placement and it was negative to show that the tube was incorrectly placed . Wright then did two other tests while Patti was out of the room, but she reported to Patti that those tests were also negative. Because of the concerns expressed by Wright, Patti monitored R.B. closely after Wright left around midnight. Patti observed some coughing and white sputum between 11:30 p.m. and 2:00 a.m., January 19, 1991. Again at 2:00 a.m. Patti recorded the R.B. was coughing and there was a moderate amount of white sputum present. Then the coughing became continuous and Patti removed the NGT. At 4:00 a.m., Patti recorded that R.B.'s respirations were even and unlabored and that tube feeding remained discontinued. At 5:00 a.m., Patti was advised by the nursing assistant that R.B. had no respiration or heartbeat. Patti called the doctor at 5:40 and R.B. was dead. An autopsy revealed that R.B. had died from asphyxia due to aspiration of Jevity. The lungs were full of Jevity and the bronchioles were plugged by the soft white material. There was nothing in R.B.'s stomach. As it relates to Wright's actions that night, at no time did Wright call a supervisor, registered nurse or doctor to express concern about the placement of the NGT or to indicate the presence of coughing or a white frothy substance around R.B.'s mouth. The presence of coughing and white frothy sputum or phlegm around the mouth is a danger sign that the NGT is in the trachea instead of the stomach. The minimum standard of acceptable and prevailing nursing practice requires that a licensed practical nurse report coughing or frothiness to her supervisor or to an R.N. If the practical nurse did not place the tube, she should contact the person who did insert the tube. If no one is available, then the practical nurse should remove the tube and contact the supervisor, an R.N., or the doctor, by telephone. There is no other acceptable level of care except to stop the food immediately and then report the coughing and presence of white frothy sputum to the appropriate person. At Manor Care that night, no supervisor or R.N. was on the premises, but Wright made no attempt to reach anyone by telephone regarding the situation. Wright's failure to meet these minimum standards of care constitutes unprofessional conduct as that term is defined in Section 464.018(1)(h), Florida Statutes (1991).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Professional Regulation enter a Final Order and therein: Issue a reprimand to Geraldine McNeal Wright. Place Wright on probation for six months subject to attendance at continuing education courses relative to the omissions in this case, to include a review of danger signs and appropriate responses in patients with nasogastric tubes and a refresher on the appropriate administration of procedures for checking the placement of such a tube. Impose a fine of $100. DONE and ENTERED this 11th day of February, 1993, in Tallahassee, Florida. DIANE K. KIESLING 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 11th day of February, 1992. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-4573 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Department of Professional Regulation, Board of Nursing Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-7(1-5); 7(7); 9(12); 10(10); 11(11); 12(11); and 15(12 & 16). [Note--There are two different sets of paragraphs numbered 7, 8, and 9. A review of the actual Finding of Fact will clarify to which paragraph these specific rulings apply.] Proposed findings of fact 8, 9, 8, and 14 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 13 and 16 are unsupported by the competent and substantial evidence. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Geraldine McNeal Wright As indicated above, Wright's proposed findings of fact are in a form which does not permit clear specific rulings. Those proposed findings of fact which are based on the documents attached to the proposed order, which were not part of the evidentiary record, are rejected. Additionally, those proposals which constitute argument are rejected. The proposed findings of fact which are consistent with the facts found herein are adopted. All other proposed findings of fact are subordinate to the facts actually found in this Recommended Order. COPIES FURNISHED: Charles Faircloth Senior Attorney Department of Professional Regulation 1940 N. Monroe St., Ste. 60 Tallahassee, FL 32399-0792 Geraldine McNeal Wright 7925 Merrill Road, Apt. 216 Jacksonville, FL 32211 Jack McRay, General Counsel Department of Professional Regulation 1940 N. Monroe St. Tallahassee, FL 32399-0792 Judie Ritter, Executive Director Board of Nursing Daniel Building, Room 50 111 E. Coastline Dr. Jacksonville, FL 32202
The Issue Whether SeaView was properly issued a conditional license and should pay an administrative fine for violation of regulations at the time of surveys conducted on February 8 and February 21, 2002.
Findings Of Fact AHCA is the state agency responsible for evaluating nursing homes in Florida pursuant to Section 400.23(7). SeaView is a licensed nursing home located in Pompano Beach, Florida. AHCA conducted a survey of SeaView on February 8, 2002, and alleged that SeaView violated the standards of Section 400.022(1)(l), and Rule 59A-4.109(1)(c)2, and 3, which relate to the obligations of a nursing home to supervise residents to assure their safety. It is undisputed that during the survey period, two residents were outside the facility, out of the company of staff, for brief periods of time. AHCA contends that these incidents demonstrate that SeaView failed to adequately supervise these residents, thereby placing them, and one other resident, “at risk of serious injury, harm, impairment or death.” AHCA also asserted that SeaView failed to adequately implement policies and procedures for investigating, reporting, and preventing allegations of possible neglect in violation of Section 400.022(1)(l) and Rule 59A-4.109(1)(c)2, by failing to report an incident to the abuse registry, failing to review a resident’s records as part of its investigation, failing to interview sufficient people as part of its investigation, and failing to take corrective action. AHCA is required to rate the severity of any deficiency identified in a survey. AHCA assigned both of the identified deficiencies a Class I rating. This means that the deficiency “has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident receiving care in a facility.” Section 400.23(8)(a). On a follow-up visit on February 21, AHCA again cited the same violations as Class I deficiencies. The charges arising out of the February 8 survey revolve primarily around a resident referred to by the parties as G. D. At the time of his admission to SeaView in September 2001, G. D. suffered from Alzheimer’s disease and alcoholic dementia. It was SeaView's practice to place cognitively impaired residents such as G. D. on the second floor of the facility. SeaView's management felt that the second floor was a more secure location for individuals like G. D. who, on account of their impairments, were considered to be at risk for attempting to exit the facility without staff knowledge or supervision, also known as "elopement." Like many Alzheimer's patients, G. D. was confused, often agitated and combative, and prone to wander. His care plan therefore employed management practices typically recommended by medical professionals for the caregivers of Alzheimer's patients, i.e. checking on him every hour, encouraging his family to bring in personal possessions, and involving him in activities of his liking, etc. G. D., like many Alzheimer's patients, was unable to fully benefit from activities. He was inclined to wander in and out of activities and to verbally interrupt them. He was at times restless and resistant to care. He was on medications which produced side effects which may have negated their beneficial effects. He tended to walk around the hallways aimlessly and try to push the alarmed doors open. Staff at SeaView, aware of these behaviors, appropriately contacted G. D.’s physician in December 2001, to obtain an order for a new psychiatric consult. This resulted in the addition of a new medication. Thereafter, nursing notes on January 7, 2002, indicated that G. D. was less aggressive and less agitated. Shortly before 8:00 p.m., on January 9, 2002, G. D. was being attended to by a certified nursing assistant (CNA) who left him briefly to attend to another resident. G. D. went to the nurse’s station, interacted with the nurse there, and left in his wheelchair. Less than ten minutes later, the CNA tried unsuccessfully to locate him. The nurse and CNA looked throughout the second floor, and when they still did not find him, went downstairs where a visitor who was just leaving motioned through a window that he was outside. The staff went out and found him tipped over on his right side, in his wheelchair, about 6-8 steps from the front door and near the bottom of concrete steps leading to a second floor exit door. He was alert and spoke, and said he was fine and that he fell from “way up top.” Staff checked G. D. and called 911. G. D. was taken by ambulance to a hospital. The neurosurgeon who was consulted documented that there was no evidence of head trauma. A CT scan was performed which did show that G. D. had old, chronic subdural hematomas (internal bleeding) on both his right and left sides, with a recent bleed into the one on the left. There is no evidence regarding when or how G. D. suffered the hematoma. The evidence did establish that hematomas can occur in the absence of significant trauma, and can even result from a strong sneeze or cough. The CT scan revealed no evidence of significant head trauma, however, such as swelling, which would be expected to be present with a severe blow. G. D. died three days later of the hematoma. It is impossible to know how G. D. was able to exit the building. At first, SeaView concluded, largely on the basis of his statement, that G. D. had fallen down the outside stairs from the second floor. SeaView staff revised its opinion on further consideration, and concluded that G. D. was somehow able to make his way down the elevator to the first floor, and then exit the building unnoticed. In reaching this conclusion, SeaView noted that the upstairs door had a 15-second delay mechanism and alarm, which had to be manually turned off by staff once activated. No alarm was heard or deactivated, and a check revealed that the mechanism was working. Shortly after the incident, staff exited the upstairs door and the alarm sounded. AHCA’s investigation determined that all doors were in working order and in compliance with all life safety code requirements. Neither the stairway nor the wheelchair exhibited any damage as would be expected from a fall down the steep, concrete stairs, and G. D. himself showed no external signs of injury except a skin tear on his arm. The evidence established that the incident occurred just prior to 8:00 p.m.; a time when staff were no longer present in the common areas, as they were putting residents to bed, and just before the front door alarm was activated for the night. From those facts, SeaView reasons that "the most likely means of exit would have been for G. D. to negotiate the elevator and exit through the front door of the facility." However, as SeaView concedes, there was no evidence that G. D. had ever used the elevator before; the idea that he was able to do so on this occasion taxes credulity, and in any event is also not supported by evidence. In charging SeaView with failing to adequately supervise G. D., AHCA denies that it is advancing a strict liability standard in cases where a patient is successful in exiting a building. Rather, AHCA contends that SeaView's failure to sufficiently supervise G. D. is proven by the fact that he was outside the building long enough to allow a fall from his wheelchair. The dispute may be one of semantics. AHCA concedes that escape is a known and common risk with dementia patients in nursing homes; that the law prohibits physical or medical restraint of residents; and there is no combination of interventions which are effective in all circumstances to prevent escape; and, most significantly, that there is no standard of practice which requires one-on-one supervision. AHCA alleged that SeaView was on notice that G. D. had escaped the facility on two prior occasions. This allegation was not supported by evidence, nor was there any evidence of prior incidents of escapes by other residents at SeaView. AHCA additionally charged that SeaView violated a duty of reporting by not calling the state's elder abuse registry to report G. D.'s escape. However, the evidence established that SeaView did in fact notify AHCA and filed required reports with the agency. Sea View's administration concluded that neglect did not exist, and thus there was no need to make the additional report to the registry. The decision was based upon the short time during which G. D. was out of view of staff, and the immediate attention given to finding him. Reasonable nursing home administrators might have erred on the side of reporting, but there is no evidence to suggest that the course followed by SeaView was outside the bounds of legitimate professional judgment. Immediately following the incident involving G. D., when SeaView's administration was of the view that he might have exited from the second floor door, SeaView had an additional alarm installed to ensure audibility. AHCA cited concerns regarding two additional patients, referred to by the parties as Residents number 3 and number 4, in the February 8 survey. As to these patients, AHCA charged deficient practice in that portions of their care plans directed to the possibility of escape did not contain a time frame for monitoring their whereabouts, and the monitoring was not documented. With respect to Resident number 3, AHCA also asserted that the approach of trying to redirect the resident was faulty, as the records reflected that often he did not respond to redirection. A surveyor also testified that she noted two times when Resident number 3 was unobserved by staff, but this testimony was effectively discredited upon cross- examination. The evidence failed to establish either the insufficiency of the patient care plans or the failure by SeaView to implement appropriate care plans. The inclusion of a time frame for monitoring does not ensure that a resident will be unable to elude staff. G. D.'s care plan, for example, contained a requirement that he be checked hourly. In practice, he was in contact with staff far more often. AHCA alleged that the monitoring of residents was not adequately documented. However, the evidence failed to establish the existence of a legal or industry standard which suggests that routine observation, or monitoring, of a resident should be documented. As a result of the February 8 survey, AHCA required SeaView to move all residents who might have been at risk for elopement to the first floor. Additionally, AHCA required SeaView to place monitors at all exits to the facility, whose sole purpose was to monitor the exit doors, all of which, except the front door, were alarmed and on a delay mechanism. AHCA also required SeaView to increase the delay mechanism from 15 to 30 seconds. SeaView implemented all these measures. However, SeaView was opposed to moving dementia and wandering residents from the second floor, which was more secluded and secure than the first floor. SeaView complied against its better judgment, because AHCA threatened to take action against the administrator’s professional license if he did not comply. At the February 21 follow-up survey visit, the surveyors originally concluded that SeaView had corrected all deficiencies. However, after SeaView’s Director of Nursing informed them that a resident referred to by the parties as Resident number 7, or A. D., had been found outside a doorway the previous day. AHCA changed its conclusion and again asserted that both deficiencies remained at a level warranting conditional licensing. On February 20 A. D. was noted to be just outside the staff entry door near the laundry room. He was outside no longer than five minutes, and the evidence suggests that the housekeeping director escorted him outside. No evidence was presented to explain why the housekeeping director escorted the resident outside, or how the facility addressed this lapse. This gap in the evidence is troubling, but what is known about the incident does not support a finding of inadequate supervision inasmuch as the exit apparently took place with the assistance of staff, and was promptly remedied. The only direct evidence concerning what supervision A. D. received came from an AHCA surveyor, who testified that while she observed A. D., and he was up and about, staff would take his hand and redirect him when he approached doorways. AHCA asserted that the care plans for A. D. and a person referred to by the parties as Resident number 2 were deficient because, while there was a direction to monitor the residents, the care plans did not include the “type, frequency, and duration” of such monitoring. Again, the evidence established that monitoring involves visual or auditory contact by staff sufficient to assure that the patient's whereabouts are accounted for at reasonable intervals appropriate to the individual's circumstances. There is no regulation, and AHCA cited to no standard, which would require such information in a care plan. Significantly, similar care plans have been reviewed and approved by AHCA in subsequent surveys at SeaView.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the AHCA enter a final order dismissing the Amended Administrative Complaint with prejudice. DONE AND ENTERED this 23rd day of October, 2002, in Tallahassee, Leon County, Florida. ___ FLORENCE SNYDER RIVAS 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 23rd day of October, 2002. COPIES FURNISHED: Lealand McCharen, Agency Clerk Agency for Healthcare Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Healthcare Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308 Catherine B. Parks, Esquire Quintairos, McCumber, Prieto & Wood, P.A. 9200 South Dadeland Boulevard Miami, Florida 33156 Alba Rodriguez, Esquire Agency for Health Care Administration 8355 Northwest 53rd Street Miami, Florida 33166 Donna H. Stinson, Esquire Broad and Cassel 215 South Monroe Street, Suite 400 Post Office Drawer 11300 Tallahassee, Florida 32302
Findings Of Fact Petitioner is a nursing home facility located at 1900 Mercy Drive, Orlando, Florida. It is licensed by Respondent and certified to participate in the Medicaid Program. Prior to the rating at issue in this case, Petitioner was rated a "superior" nursing home by Respondent. The "standard" rating at issue in this case was for the period November 30, 1984 to February 28, 1986. The most recent rating for Petitioner, for the period after February 28, 1986, is "superior." Petitioner was deprived of increased Medicaid reimbursement due to its "standard" rating during the period in question. Additionally, Petitioner was deprived of the ability to hold itself out to the public as a "superior" nursing home for the period in question. The parties stipulated that Petitioner was qualified for a "superior" rating for the period in question, except for the factors considered by Robert Maryanski, former Director of the Office of Licensure and Certification, when he made the decision to give Petitioner a "standard" rating, effective November 30, 1984 until February 28, 1986. The factors considered by Maryanski which formed the basis of his decision were: a rating sheet and results of a survey conducted of Petitioner's facility on November 5 through 7, 1984, as well as follow-up visits on January 15 and February 1, 1985: a report of a complaint or surveillance visit conducted on February 1, 1985; a memo dated March 14, 1985 from Robert W. Smith, Area Supervisor of the Office of Licensure and Certification: concerns of the Long-Term Care Ombudsman Council as expressed by letter dated November 15, 1984 and concerns of Paul Snead, Jr., Respondent's District Administrator as expressed by memo dated November 26, 1984. In conducting its annual survey of Petitioner's facility, Respondent's surveyors, George Farrar and June Monaghan, identified seven Class III deficiencies which were corrected by the time follow-up visits were conducted on January 15 and February l, 1985. However, in conjunction with the February 1, 1985 follow-up visit, Respondent's surveyors also conducted an unannounced complaint or surveillance visit which identified eight additional deficiencies. No exit interview was conducted following this complaint or surveillance visit, and Petitioner was not informed of these additional deficiencies, or the fact they could affect their annual rating, until approximately a week later. Neither Farrar nor Monaghan, the surveyors who conducted the February 1 complaint or surveillance visit and who are still employed by Respondent, testified at the hearing. The only witnesses testifying at the hearing who were present during all or a portion of the February 1 visit were Charlotte Uhrig, Administrator of Petitioner's facility, Kathleen Wingard, Director of Operations for Petitioner's management company, and Linda Anderson, a licensed practical nurse employed by Petitioner. Uhrig and Anderson offered credible testimony to explain the deficiencies found during the complaint or surveillance visit, and their unrebutted testimony precludes any finding that the deficiencies reported by Farrar and Monaghan actually existed. To the contrary, based on the evidence presented, it is specifically found that during this visit on February 1, 1985: Petitioner did not violate a patient's right to privacy in treatment since only the patient's heel and back of the leg were exposed at the request of the surveyor; Petitioner took prompt action in terminating a Director of Nursing who violated its policies by allowing aides to do and chart dressings and treatments; Anderson's actions in attempting to give a patient two pills were reasonable and in accordance with proper nursing practice. The fact that the patient did not swallow the pills and the surveyor found them in a glass of water does not indicate any failure on the part of Petitioner to adhere to required nursing home procedures; The lock on a treatment cart was only broken for a couple of hours and was repaired as soon as possible. During the time the lock was broken, the cart was in the nurse's station and observable by nurses on duty; Stains on the walls were fully explained as the result of roof leaks which had recently been repaired and Petitioner was simply waiting for a good rain to insure the leak was fixed before repainting; There was no dust or soap residue on chair lifts, but rather a small amount of powder used on patients was identified by the surveyors; In-service training was promptly given to all aides about washing their hands after treating each patient; An unidentified cart noticed in the new linen room was simply the cart used to carry new linen to the laundry for washing before use; An unidentified, undated bottle of liquid on the medication cart was apple juice given to patients to assist them in taking their medication; The door to the janitor's closet was not left open, but rather the door had been closed but the lock had not engaged; In service training was promptly given to aides concerning leaving unattended bottles of germicide and cups of liquid soap in patients' bathrooms. In his memo dated March 14, 1985, Robert W. Smith recommended that Petitioner be given a "superior" rating for the time in question. Smith supervised nursing home surveyors including Farrar and Monaghan. Robert Maryanski was Smith's superior and had the final authority on rating decisions. Yvonne Opfell, Vice Chairperson of the Long-Term Care Ombudsman Council, testified that one-fourth of all complaints in the Orlando area the Council received in 1984 involved Petitioner's facility. The Council investigates every complaint received and found most complaints against Petitioner to be "not substantiated." However, several were found to be "substantiated" including one which was substantiated by Adult Protective Services involving an incident in August, 1984 in which a patient was allegedly dropped and suffered a broken arm. Henry McLaulin investigated this incident for Adult Protective Services and testified that Petitioner was less than cooperative with him in this investigation. However, based on the evidence received, including the testimony of Uhrig and Karen Skadering, a physical therapist who worked with this patient in August, 1984, it has not been proven that aides dropped the patient causing a broken arm. The patient was very weak and dependent, with brittle bones, and according to David Parsons, M.D., a patient in this condition could break a bone simply by turning over in bed through no fault of Petitioner's staff. As District Administrator of Respondent, Paul Snead, Jr. expressed his concerns about Petitioner's rating in a memo dated November 26, 1984. Snead testified at the hearing about these concerns and his feeling that Petitioner-should not be given a "superior" rating. He also admitted he has never visited Petitioner's facility. In addition to the incident in August, 1984 involving a patient's broken bone discussed above in Finding of Fact 9, Snead reported complaints about scabies at Petitioner's facility during 1984. Based upon the testimony of Charlotte Uhrig, Petitioner's Administrator, Bob Duncan, a pharmacist, Ruth E. Laughlin, senior community health nurse, and David Parsons, M.D., it is found that scabies did exist on several occasions during 1984 at Petitioner's facility. However, scabies is frequently found in nursing homes, even those rated "superior". It is a highly communicable parasitic condition which can be introduced into a nursing home by patients, family and staff. When the condition was diagnosed, Petitioner took action to eradicate the problem, but due to the lengthy three to six week incubation period and highly contagious nature of this condition, it did take repeated efforts to remove it from the nursing home. Petitioner's efforts were successful, and there is no evidence that the condition continued to exist after November, 1984.
Recommendation Based upon the foregoing it is recommended that Respondent enter a Final Order granting Petitioner a "superior" rating for the period November 30, 1984 to February 28, 1986. DONE and ENTERED this 14th day of April, 1986, at Tallahassee, Florida. DONALD D. CONN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of April, 1986. COPIES FURNISHED: Karen Goldsmith, Esquire Jonathan S. Grout, Esquire Suite 500, Day Building 605 East Robinson Street Orlando, Florida 32802 Douglas Whitney, Esquire 400 West Robinson Street Suite 912 Orlando, Florida 32801 William Page, Jr., Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 APPENDIX Rulings on Petitioner's Proposed Findings of Fact: Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Adopted in Finding of Fact 5. Adopted in Finding of Fact 6. Adopted in Finding of Fact 6. Adopted in part in Findings of Fact 4, 5. Adopted in part in Findings of Fact 5, 7. Rejected as irrelevant and unnecessary. Adopted in Findings of Fact 5, 9, 10, 11. Adopted in part in Findings of Fact 5, 9, but otherwise rejected as irrelevant and unnecessary. Rejected as cumulative and also as a conclusion of law rather than a finding of fact. Adopted in Finding of Fact 8. Rejected as a conclusion of law rather than a finding of fact.
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
