The Issue Should Respondent, Agency for Health Care Administration, rate Petitioner, Capital Health Care Center's nursing home facility license "conditional" for the period March 9, through May 4, 2000? Section 400.23(7), Florida Statutes. In particular, has Petitioner violated the requirements of Tag F324 as determined in Respondent's periodic survey concluded on March 9, 2000? Is Tag F324 a "Class II" deficiency? Section 400.23(8)(b), Florida Statutes. In the event that Petitioner is shown to have violated Tag F324 and the Tag is found to be a Class II deficiency, the parties agree that Petitioner was subject to a "conditional" license from March 9, through April 10, 2000. Did the results of the Respondent's survey concluded on March 9, 2000, reveal violations of Tags F371 and/or F372, "Class III" deficiencies that were not corrected before April 10, 2000, the date upon which Respondent resurveyed Petitioner's nursing home facility? If the alleged violations of Tags F371 and/or F372 were proven as of the survey that concluded on March 9, 2000, and were not corrected by April 10, 2000, when the facility was resurveyed, the parties agree that Petitioner held a "conditional" license from April 10, 2000, until such time as the last of Tag F371 of Tag F372 deficiencies were corrected. Further, the parties agree that failing Petitioner's proof of the date upon which the Tag F371 and/or Tag F372 deficiencies as established were corrected, Petitioner's license was properly rated as a "conditional" license until May 4, 2000, the date upon which Respondent conducted a third survey in the series of surveys directed to the Petitioner and found no further violations?
Findings Of Fact Stipulated Facts Petitioner is a nursing home licensed by Respondent pursuant to the authority granted in Chapter 400, Florida Statutes. Petitioner is located at 3333 Capital Medical Boulevard, Tallahassee, Florida 32308. On March 6 through March 9, 2000, Respondent conducted a survey at Petitioner's facility. As a result of that survey, Respondent alleged that Petitioner was not in compliance with the requirements of Tag F203, Tag F324, Tag F371, and Tag F372. On April 10, 2000, Respondent conducted a revisit survey at Capital. As a result of that survey, Respondent determined that Petitioner had corrected the deficiencies alleged under Tag F203 and F324. Respondent alleged that Petitioner had failed to correct the deficiencies alleged under Tag F371 and Tag F372. On May 4, 2000, Respondent conducted another revisit survey at Capital and determined that all alleged deficiencies had been corrected. Tag F324 requires "the facility must ensure that each resident receives adequate supervision and assistance devices to prevent accidents." Respondent alleges that this requirement was not met during the March 6-9, 2000, survey, and that the deficiency had a scope and severity of "G" and constituted a Class II deficiency. Tag F371 requires "The facility must store, prepare, distribute, and serve food under sanitary conditions." Respondent alleges that this requirement was not met during the March 6-9, 2000, and the April 10, 2000, surveys and that the deficiency had a scope and severity of "F" during the March survey, a scope and severity of "D" during the April survey, and constituted a Class III deficiency at both surveys. Tag F372 requires "The facility must dispose of garbage and refuse properly." Respondent alleges that this requirement was not met during March 6-9, 2000, surveys and that the deficiency had a scope and severity of "D" and constituted a Class III deficiency at both surveys. Tag F324 At times relevant to the inquiry Resident 21 has lived in Petitioner's nursing home. On February 16, 2000, Resident 21 left the nursing home and visited her sister at the sister's home. To prepare the resident for her outing, two CNAs got Resident 21 up from her bed in the nursing home and placed her in a wheelchair. A lifting hoist was not used for this transfer. On this morning the two CNAs did not use the mechanical lift, being unable to locate the lift device. Therefore they opted to manually lift Resident 21 from the bed to the wheelchair. A sheet was used to lift Resident 21 into her wheelchair. At the time Resident 21 was paraplegic. She had had a knee cap removed and that leg was stiff. When referring to the one leg as stiff, it describes the fact that the leg will not bend at the knee. On February 16, 2000, once in the wheelchair, Resident 21 was transported to her sister's house by van or bus. Resident 21 remained seated in her wheelchair for her visit with her sister. Resident 21 was transported from the sister's home back to the nursing home by van or bus, again remaining in the wheelchair. Resident 21 was taken in and out of the van or bus during the trips to and from her sister's home by use of a lift in the vehicle. On February 16, 2000, while visiting with her sister Resident 21 offered no complaint about pain or discomfort in her legs. When Resident 21 returned to her room following her visit with her sister, two CNAs transferred her from the wheelchair to her bed. The two persons who made this transfer were not the same persons as had placed Resident 21 in the wheelchair earlier in the day. At the moment there was no lift pad under Resident 21 to facilitate the transfer by using the mechanical lift. The lift device attaches to the pad under the upper thigh of a resident, and with the use of the hoist elevates the resident from the wheelchair to the bed or from the bed to the wheelchair. One of the CNAs determined to manually transfer Resident 21 from the wheelchair to the bed. This followed the request of Resident 21 to be placed in her bed. Before Resident 21 was lifted from the wheelchair to the bed she complained that her legs hurt. At the time that the CNAs moved Resident 21 from the wheelchair to the bed there was a fitted sheet under Resident 21. When Resident 21 was returned to her bed from the wheelchair, one CNA grasped Resident 21's upper torso under her arms, while the other CNA lifted Resident 21 by grasping her in the area behind her knees. On this occasion in returning Resident 21 to her bed, the arm of her wheelchair was taken off and the foot rest adjusted. During the transfer from the wheelchair to the bed and after the resident was placed in the bed she offered no complaint about her condition. The CNAs in Petitioner's nursing home are trained to use the pad with the hoist or to have two CNAs pick a person in Resident 21's condition up by the upper torso and legs in making a transfer from the wheelchair to the bed. In the event the pad is not available, under Petitioner's policy, the CNAs may make a manual lift. The CNA who normally worked with Resident 21 looked for the lifting pad before seeking the assistance of the other CNA to make a manual lift. Having not located the pad, she determined to seek the assistance of the other CNA to conduct the manual lift from the wheelchair to the bed. On February 17, 2000, Resident 21 complained of leg pain. This led to an X-ray being performed revealing a fracture to the right ankle. As revealed in the nurses' notes for Resident 21 in explaining the physical condition, Resident 21 refers to her foot being caught under the CNA's arm when the transfer was made from the wheelchair to the bed. With this in mind, and the description by Resident 21 in the nurses' notes that an accident had taken place at that time, it is inferred that the fracture occurred to the resident's right ankle when being lifted from the wheelchair to the bed upon the return from her visit with her sister. Notwithstanding the attempt by the CNAs to use an appropriate technique in the manual lift from the wheelchair to the bed, the resident's foot was caught under the CNA's arm and sometime during the process the ankle was fractured. Results of in-service counseling provided to the CNAs who manually lifted Resident 21 on February 16, 2000, reveal Petitioner's intent to rely upon the use of mechanical lifting devices in contrast to manual lifts as a policy matter. During the March 6-9, 2000 licensing survey conducted by Respondent at Petitioner's facility, a Tag F324 citation Class II deficiency, was noted in relation to non-compliance with the facility expectation that the preferred patient transfer technique would be to employ a mechanical assist, not a manual assist when lifting residents. As described, the circumstances were different for Resident 21. According to the summary of deficiencies in survey Form 2567 executed during the survey, the subsequent lift from the wheelchair to the bed eventuated in a fracture to Resident 21's lower extremity. The referenced deficiency for Tag F324 corresponds to 42 C.F.R. Section 43.25(h)(2). Tag F371 Tag F371 is in relation to 42 C.F.R. Section 43.35(h)(2). This provision requires the nursing home facility to store, prepare, distribute, and serve food under sanitary conditions. During the March 2000 survey conducted by Respondent at Petitioner's facility, it was noted on the survey Form 2567 that Tag F371 alleged deficiencies were discovered in the facility kitchen. On March 7, 2000, it is alleged that six dessert bowls and two plates were dirty with food residue on the surfaces of those items. Ms. Myra Flores was a survey team member. She is a public health nutrition consultant for Respondent. She holds a bachelor of science degree in food and nutrition, a master of public health and nutrition and is a doctoral candidate. She is a registered dietitian licensed in the State of Florida. She had undergone the Surveyor Minimum Qualifications Test allowing her to evaluate complaints of health care facilities within federal regulations. In her inspection in March 2000, Ms. Flores found dessert bowls and plates that were stored, indicating that they had already been washed. Nonetheless the items had food residue on their surfaces. From her perspective as a public health nutritionist, contamination of utensils in facilities that house residents who have compromised immune capacity is a concern. There is an issue with food-borne illnesses. It can be inferred that a nursing home is a place in which residents have compromised immune capacity. Ms. Ann McElreath was assigned by Respondent to re- survey Petitioner's facility. That re-survey was conducted on April 10, 2000. Ms. McElreath holds an A.S. degree in nursing and a bachelor of science degree in psychology. Her observations concerning the re-survey were recorded on a Form 2567 dated April 10, 2000. That form notes an alleged repeat Class III deficiency Tag F371 pertaining to observation of pans in a drain rack with food particles on them. According to the report, discussion was had with staff members in which it was stated that the pans were items waiting to be re-washed. Inspection of other pans identified to be cleaned and ready for use again revealed two out of four having food particles on the surface, according to the report. When McElreath inspected the facility kitchen on April 10, 2000, she entered the kitchen and was standing by the dish-washing area where a staff member at the facility had just completed "doing the dishes" and there were aluminum-type banking pans draining. Ms. McElreath inquired of the attendant if those pans had been finished, to which the employee replied "yes." Ms. McElreath picked up the pans and examined them and some had food particles on them. This was pointed out to the employee. Mr. Paul Kobary, Petitioner's nursing home administrator, was in the kitchen at that time. In reference to those pans he stated that those were pans that were going to be re-washed. After a moment's hesitation, the other employee at the facility agreed with Mr. Kobary's comment concerning the re-wash. Ms. McElreath asked that the unnamed employee identify items that were clean. That woman pointed to a rack. Ms. McElreath pulled four additional pans identified as being clean and found two of the four to have food particles attached. Tag F372 Under 42 C.F.R. §483.25(h)(3) is the reference to Tag F372. This provision requires the nursing home facility to dispose of garbage and refuse properly. As noted in Form 2567 for the March 200 survey, Petitioner was alleged to have violated Tag F372. During the March 2000 survey Ms. Flores observed facility practices in connection with disposing of refuse. She observed a garbage bin being transported from the facility kitchen to the dumpsters that serve the facility. The material being transported was not covered. There was trash inside the bin being removed from the facility and boxes were piled on top of the bin. Petitioner's employee took the boxes and placed those in one of the dumpsters. The dumpster in which the boxes were placed through a side opening was then closed. An untied plastic container with garbage inside was then removed from the bin used for transport and then placed through a door on the side of another dumpster. After which the dumpster where the untied container of garbage was located was left partially open in that the door providing access to the dumpster was not completely closed. At hearing Ms. Flores expressed the concern that by leaving the side door opened to the dumpster in which the garbage bag had been placed invited the harborage and the feeding of pest and varmints because that dumpster contained food refuse from the kitchen. The dumpster was located outside of the facility in the vicinity of the woods and grass making the discarded food available to those pests. Based upon the incident in which the dumpster had been left open following the disposal of the garbage bag, a Tag F372 incident was recorded on Form 2567 corresponding to a Class III deficiency. In response Petitioner committed to a plan of correction to be concluded by April 8, 2000, concerning the maintenance of refuse in closed containers. This refers to closed dumpsters. Since that survey Mr. Paul Kobary the nursing home administrator checks twice a day to see that the dumpsters are closed. Other staff members are assigned to check throughout the day to assure that the dumpsters are closed. In the re-survey conducted on April 10, 2000, another alleged Class III deficiency was cited under Tag F372. This citation was made by Ms. McElreath based upon the fact that one of the dumpsters behind the facility allowed liquid substances within the dumpsters to leak out the bottom. Ms. McElreath was concerned that the substance that had leaked out under the dumpster and in the immediate vicinity might have been picked up on the wheels of wheelchairs. The wheelchairs were off to the side being washed down by the staff. Ms. McElreath worried that once the wheelchairs were returned to the facility the unidentified liquid attached to the wheels would be introduced into the facility proper. The problem with the leaking dumpster was reported as an uncorrected Class III deficiency associated with the problems experienced with the dumpster with uncovered garbage described in the March 2000 survey. Nursing Home Scope and Severity Chart The parties are bound by the Nursing Home Scope and Severity Chart which characterizes the severity of the alleged deficiencies. Respondent's Exhibit 15. Under this scheme a severity of "G" represents actual harm but not immediate jeopardy. Alleged deficiencies with a severity of "D" and "F" represent a potential for more than minimal harm.
Recommendation Upon consideration of the findings of facts and conclusions of law reached, it is RECOMMENDED: That a final order be entered in which Respondent assigns Petitioner a conditional license for the period March 9 through May 4, 2000. DONE AND ENTERED this 14th day of December, 2000, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS 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 14th day of December, 2000.
The Issue The issue in this case is whether Respondent committed the allegations in the notice of intent to assign a conditional license and, if so, whether Petitioner should have changed the rating of Respondent's license from standard to conditional for the period March 8 through May 30, 2001.
Findings Of Fact Petitioner is the state agency responsible for licensing and regulating nursing homes inside the state. Respondent operates a licensed nursing home at 5405 Babcock Street, Northeast, in Palm Bay, Florida (the "facility"). Petitioner conducted an annual survey of the facility that Petitioner completed on March 8, 2001 (the "March survey"). Petitioner noted the results of the survey on a Health Care Federal Administration form entitled "Statement of Deficiencies and Plan of Correction." The parties refer to the form as the HCFA 2567-L or the "2567". Petitioner conducted a follow-up survey of the facility that Petitioner completed on April 17, 2001 (the "April survey"). The 2567 is the document used to charge nursing homes with deficiencies that violate applicable law. The 2567 identifies each alleged deficiency by reference to a tag number (the "tags"). Each tag on the 2567 includes a narrative description of the allegations against Respondent and cites a provision of the relevant rule or rules in the Florida Administrative Code violated by the alleged deficiency. In order to protect the privacy of nursing home residents, the 2567 and this Recommended Order refer to each resident by a number rather than by the name of the resident. There are five tags at issue in this proceeding. The March survey cites two Class II deficiencies and three Class III deficiencies. The April survey cites repeat violations of three Class III violations. In this case, Section 400.23(8)(b) and (c), Florida Statutes (2000) establishes the deficiency classifications referred to as Classes II and III. All statutory references in this Recommended Order are to Florida Statutes (2000) unless otherwise stated. Section 400.23(8)(b) defines Class II deficiencies as those: . . . which the agency determines have a direct or immediate relationship to the health, safety, or security of the nursing home facility resident. . . . Section 400.23(8)(c) defines Class III deficiencies as those: . . . which the agency determines to have an indirect or potential relationship to the health, safety, or security of the nursing home facility residents, other than class I or class II deficiencies. The March survey sets forth allegations against Respondent in Tags F224, F282, F314, F325, and F363. Petitioner classifies Tags F224 and F314 as class II deficiencies and Tags F282, F325, and F363 as class III deficiencies. Tag F224 in the March survey generally alleges that Respondent failed to implement policies and procedures to prevent abuse to a resident by another resident. Tag F314 generally alleges that Respondent failed to provide necessary assessment, treatment, and documentation for pressure sores for one resident. Tag F282 generally alleges that the facility failed to provide care and services in accordance with the plan of care for two residents. Tag F325 generally alleges that the facility failed to ensure that one resident maintained acceptable parameters of nutritional status, including body weight. Tag F363 generally alleges that the facility failed to provide menus that meet the nutritional needs of the residents by not following menus for pureed and dysphagia diets. The April survey sets forth allegations against Respondent in Tags F282, F325, and F363. Petitioner classifies each alleged violation as a Class III deficiency. Tag F282 in the April survey generally alleges that Respondent failed to follow a resident’s plan of care by failing to provide a weighted spoon and plate guard. Tag F325 generally alleges that the facility failed to ensure that a resident maintained acceptable parameters of nutritional status, including body weight. Tag F363 generally alleges that the facility failed to ensure that menus designed to meet the nutritional needs of the residents were prepared in advance and followed. Florida Administrative Code Rule 59A-4.1288 establishes the requirement for nursing home facilities licensed by the State of Florida to adhere to federal rules and regulations as found in Section 483 of the Code of Federal Regulations (CFR). In relevant part, the state rule provides: Nursing homes that participate in Title XVIII or XIX must follow certification rules and regulations found in 42 CFR 483, Requirements for Long Term Care Facilities, September 26, 1991, which is incorporated by reference. (All references to rules are to rules promulgated in the Florida Administrative Code in effect on the date of this Recommended Order). Applicable federal and state laws require Petitioner to assign to the deficiencies alleged in the 2567 a scope and severity rating required by federal regulations. In the March survey, Petitioner assigned a "G" rating to Tags F224 and F314, both of which are Class II deficiencies. A "G" rating means that the alleged deficiency was isolated, caused actual harm to one or more residents, but did not involve substandard quality of care. Petitioner assigned a "D" rating to the three Class III deficiencies alleged in Tags F282, F325, and F363 in the March survey. A "D" rating means that there is no actual harm but there is potential for more than minimal harm without actual jeopardy. Petitioner relies on two grounds for changing Respondent's license rating from standard to conditional. When Petitioner alleges two Class II deficiencies in the 2567, as Petitioner did in the March survey, applicable rules require Petitioner to change the rating of a facility's license. Applicable rules also authorize Petitioner to change a facility's license rating when the facility does not correct Class III deficiencies within the time prescribed by Petitioner. Petitioner alleges that Respondent failed to correct three Class III deficiencies alleged in Tags F282, F325, and F363 in the March survey by the time Petitioner conducted the April survey. Effective March 8, 2001, Petitioner changed the rating of the facility's license from standard to conditional. Effective May 31, 2001, Petitioner changed the rating of the facility's license from conditional to standard. The allegations in Tag F224 in the March survey pertain to two residents in the dementia unit of the facility who are identified individually as Resident 1 and Resident 13. Tag F224 in the March survey alleges that the facility failed to meet the requirements of 42 CFR Section 483.13(c). The federal regulation provides in relevant part: The facility must develop and implement written policies and procedures that prohibit mistreatment, neglect and abuse of residents and misappropriation of resident property. The facility must not use verbal, mental, sexual, or physical abuse, corporal punishment, or involuntary seclusion. The federal regulation is applicable to nursing homes in Florida pursuant to Rule 59A-4.1288. Tag F224 does not allege that the facility failed to develop the written policies required by 42 CFR Section 483.13(c) and Rule 59A-4.1288. Rather, Tag F224 alleges that Respondent failed to implement its policy. Tag F224 alleges that the facility failed to provide care and services to Resident 13 to prevent the resident from sexually intimidating a female resident identified as Resident 1. Tag F224 further alleges that Resident 13 had a past history of abusive and aggressive behavior to other residents but was not reassessed, "care planned," and monitored. The allegations in Tag F224 are based on observations of one of Petitioner's surveyors who participated in the March survey. On March 5, 2001, the surveyor observed Resident 13 in the dementia unit standing over Resident 1. The surveyor did not observe any overt sexual misconduct by Resident 13. Rather, the surveyor concluded that sexual misconduct occurred because she determined that Resident 13 was "invading [the female resident's] space," Resident 1 appeared "very anxious," "nervous," and "uncomfortable", and screamed for 15 minutes for Resident 13 to leave. The surveyor also relied on the history of Resident 13 to conclude that Resident 13 engaged in sexual misconduct on March 5, 2001. Resident 13 had, on two occasions, previously expressed a desire to have sex with female residents in the dementia unit and on other occasions had wandered into the rooms of female residents. Based on the inappropriate sexual statements by Resident 13 prior to March 5, 2001, the surveyor alleged in Tag F224 that Resident 13 engaged in sexual misconduct with Resident 1 on March 5, 2001. The preponderance of evidence does not show that Resident 13 engaged in sexual misconduct on March 5, 2001, by standing in front of Resident 1. Resident 13 did not engage in any overt sexual act or gesture. Resident 13 did not utter any inappropriate sexual comments. Resident 13 suffered from dementia and was elderly. He was mentally incapable of forming the requisite intent to sexually intimidate Resident 1 and was physically incapable of carrying out any such intent. In the absence of any overt sexual misconduct on March 5, 2001, the only evidence to support the allegation of sexual misconduct in F224 is the inference of the surveyor based on the gender difference between Residents 13 and 1 and the past history of inappropriate sexual statements by Resident 13. The inference of the observer does not satisfy the requirement for a preponderance of the evidence. The resident’s physician was qualified as an expert witness without objection. The physician testified that he was aware of Resident 13’s aggressive behavior, including the two occasions on which the resident expressed a desire to have sex with female residents. However, such incidents are typical of demented residents, do not reflect that Resident 13 was going to attack other residents in the dementia unit, and do not require any alteration to the care plan that was already in place. The only evidence that Petitioner provided to the contrary was the non-expert opinion of its surveyor. The non- expert opinion of the surveyor was insufficient to refute the physician’s expert opinion. Resident 13 suffered from severe cognitive impairment and was not physically or mentally capable of premeditating a plan to sexually intimidate Resident 1 and then carry out that plan. Resident 1 was paranoid of men. Her response to the encounter with Resident 13 was precipitated by her paranoia rather than by Resident 13's intent to sexually intimidate Resident 1. Although Resident 13 voiced a desire to have sex with other residents on two occasions during his stay at the facility, he never acted on those statements and was physically and mentally incapable of acting on them. On those two occasions, Respondent monitored Resident 13 closely but the resident did nothing to indicate that he would act on his stated desires or that he even remembered voicing them. Petitioner did not allege that Resident 13 engaged in any behavior on March 5, 2001, other than sexual misconduct. Even if Tag F224 were to have alleged that Resident 13 engaged in abuse other than sexual abuse, the preponderance of the evidence failed to show that Resident 13 engaged in non-sexual abuse. As a threshold matter, the evidence that the incident lasted for 15 minutes is not credible. It is implausible that a surveyor would allow apparent sexual intimidation to continue after she perceived the incident to be sexual intimidation, much less allow Resident 1 to endure such intimidation for 15 minutes. The surveyor testified that she could not locate a certified nursing assistant ("CNA") on the dementia unit when the incident occurred on March 5, 2001. The dementia unit is a locked unit comprised of resident rooms that open at regular intervals along a 60-foot hallway, and an activities room. There were two CNAs on duty at the time. One of those CNAs was in the hallway at the time of the alleged incident. The surveyor did not inform any member of the staff or administration at the facility that the incident had occurred before Petitioner provided Respondent with the allegations in the 2567 at the conclusion of the March survey. Resident 13’s primary behavior problem did not involve physical aggression toward other residents. Rather, the primary behavior problem was Resident 13's tendency to become aggressive with staff when they attempted to provide personal care, especially that care required for the resident's incontinence. Petitioner incorrectly concluded that the inappropriate behavior by Resident 13 indicated that he was a risk to assault or intimidate other residents. Resident 13’s historical experience at the facility did not involve aggression toward other residents. Instead, Resident 13 directed his aggressive behavior to situations with staff who were attempting to provide personal care for him. Irrespective of the proper characterization of Resident 13's behavior on March 5, 2001, the behavior did not occur because of any failure by the facility to assess Resident 13 or to develop and implement appropriate care plans to address the Resident 13's inappropriate behavior. Respondent acknowledged that Resident 13 wandered the hall, wandered into residents’ rooms, occasionally urinated in inappropriate places, and occasionally made inappropriate sexual remarks. However, those behaviors are typical of residents who suffer from dementia, and the inappropriate behavior cannot be eliminated through a care plan. Facility staff knew to monitor Resident 13 and to re- direct him if he engaged in inappropriate behavior that affected other residents. The chart for Resident 13 is replete with instances of staff consistently implementing those interventions. The care plan for Resident 13 directed staff to approach him calmly, let the resident choose the timing of his care, assess him for pain as a potential cause of agitation, and leave the resident alone and approach him later if the resident became upset during care. All of these interventions were appropriate for the identified behavior problem, and the record is replete with instances of the successful implementation of appropriate interventions. A physician saw Resident 13 and evaluated the resident almost weekly. The physician was aware of and assisted in the evaluation of the resident’s behavior. The physician considered several alternative interventions including the use of anti- anxiety medications to address the resident’s aggressiveness. The physician called in a psychiatric nurse practitioner to evaluate the resident and to recommend medications that might be effective in controlling aggressive episodes. At various times during the course of Resident 13’s stay at the facility, the physician prescribed Seraquil, Risperdal, BuSpar and Ativan for the resident. When aggressive incidents occurred, staff administered these medications with positive effects. Petitioner offered no specific evidence that any intervention used by the facility was not appropriate or that there was another intervention that the facility failed to identify and implement that would have changed any of the inappropriate behavior. Rather, the surveyor concluded that whatever the facility did was inappropriate because Resident 13’s behavioral problems did not subside or disappear while he was at the facility. The surveyor's conclusion fails to adequately understand dementia. The inappropriate behavior displayed by Resident 13 is typical of residents in a dementia unit and cannot be eliminated. Petitioner did not prove that Respondent failed to adequately reassess Resident 13. The resident’s medical record is replete with examples of efforts by the staff to continually re-evaluate the resident and to modify care plan approaches. The facility conducted quarterly re-assessments of the resident. The facility required staff to chart all incidents of inappropriate behavior in the resident’s medical record in an effort to identify any triggering events. The facility provided staff with in-service training for Resident 13 by the resident’s physician. The scope of the training encompassed the care of residents with dementia but focused in particular on the care that was required for Resident 13. The physician wanted to assure that Resident 13 would not become over-medicated and implemented frequent assessments and readjustments of the dosages of the resident's medications. Petitioner offered no evidence that Respondent failed to assess the resident in a timely manner or that any assessment performed by the facility was inappropriate. Petitioner did not allege in the March survey that the incident between Residents 13 and 1 was a result of Respondent's failure to consistently implement Respondent's policy regarding investigations of abuse. Therefore, any evidence relevant to such an allegation at the hearing is irrelevant to the allegations for which Petitioner provided adequate notice in the March survey. A contrary ruling would violate fundamental due process requirements for notice of the charges that substantially affect Respondent's license to operate the facility. Assuming arguendo that Petitioner can prove charges at the hearing that were not included in the allegations in the March survey, Petitioner's surveyor testified at the hearing that the incident she observed on March 5, 2001, occurred because the facility did not implement its policy and procedure regarding investigations of abuse of residents. As evidence of Respondent's failure to implement its policy, the surveyor contended that the facility did not properly investigate another incident described in nursing notes on January 31, 2001, before the March survey. In the January incident, the nursing notes indicated that Resident 13 made sexual advances to other residents. The implication is that the facility would have done something different with the resident had it properly investigated the January incident and would have, in turn, been able to prevent the occurrence of the incident the surveyor observed on March 5, 2001. Respondent maintains an adequate anti-abuse policy. Respondent’s anti-abuse policy requires its designated staff members to investigate and report to abuse agencies, if necessary, any suspected incidence of abuse of its residents. However, the facility did not fail to implement this policy with regard to Resident 13. Abuse is defined in Respondent's policy as the "willful infraction [sic] of injury . . . resulting in physical harm, pain or mental anguish." Due to Resident 13's dementia, he was not capable of willfully inflicting harm on anyone. No facility investigator could reasonably conclude that an incident involving Resident 13 constituted abuse within the meaning of the written policy of the facility. Even if the incident described in the January 31, 2001, nursing notes were relevant to the allegations in the March survey, Petitioner failed to show that the incident which the surveyor observed on March 5, 2001, was the product of any failure by Respondent to implement its policy on January 31, 2001. The facility’s director of nursing adequately investigated the incident described in the nursing notes on January 31, 2001, and determined that Resident 13 made no sexual advances to anyone and did not direct any inappropriate sexual comments to other residents. Rather, the investigation found that Resident 13 made inappropriate sexual comments to a CNA. Staff appropriately monitored Resident 13 after he made that statement to the CNA, and Resident 13 did nothing to act on the statement. The director of nursing notified Resident 13’s physician, and the physician determined there was no need to alter the resident’s care plan. Petitioner failed to show that the deficiency alleged in F224 was a Class II deficiency. Petitioner presented no evidence that the incident the surveyor observed on March 5, 2001, was anything other than an isolated incident or presented a threat of harm to other residents. Tag F314 alleges that Respondent violated 42 CFR Section 483.25(c). The federal regulation requires, in relevant part: Pressure Sores. Based on the comprehensive assessment of a resident, the facility must ensure that— A resident who enters the facility without pressure sores does not develop pressure sores unless the individual’s clinical condition demonstrates that they were unavoidable; and A resident having pressure sores receives necessary treatment and services to promote healing, prevent infection and prevent new sores from developing. The federal regulation is applicable to nursing homes in Florida pursuant to Rule 59A-4.1288. The March survey alleges in Tag F314 that the facility failed to provide required treatment and services to Resident 2. The surveyor determined the facility was out of compliance after she determined that Resident 2 had pressure sores. The surveyor based her findings on her observation of Resident 2 and a review of the records. In the nursing notes of February 22, 2001, the facility noted small open areas to the left thigh, back of scrotum, and buttocks. On March 5, 2001, the resident’s medical record indicated that the resident had two reddened areas on his buttocks. On March 6, 2001, the surveyor observed that the resident had two open areas on his right buttock and two on his scrotum. Petitioner charged in F314 in the March survey that these areas were pressure sores, and that the areas identified on March 6th were those which had been initially identified on February 22, 2001. Petitioner further charged that the facility failed to provide necessary treatment and services because staff failed to notify the resident’s physician and obtain a treatment order to the areas in accordance with the facility's policy relating to pressure sore care. A threshold issue is whether the reddened areas on Resident 2 were pressure sores or were reddened areas that did not satisfy Petitioner's definition of a pressure sore. If the areas were not pressure sores, Petitioner acknowledges that there would be no deficiency and no violation of the facility's pressure sore policy. The guidelines promulgated by Petitioner to guide its surveyors in the interpretation of the standard applicable under Tag F314 define a pressure sore as: . . . ischemic ulceration and/or necrosis of tissues overlying a bony prominence that has been subjected to pressure, friction or sheer. The areas identified on February 22, 2001, were located on Resident 2’s buttocks, scrotum, and thigh. None of those areas were located over any bony prominence within the meaning of Petitioner's promulgated definition of a pressure sore. Additionally, the areas identified on February 22nd were healed the next day. Pressure sores do not typically heal overnight. A nurse practitioner examined the areas identified on March 5th and 6th during the survey. The nurse practitioner diagnosed those reddened areas as a rash. Petitioner relies on records that identify the reddened areas on forms that the facility uses for both pressure sores and reddened areas that are not located over a bony prominence. For convenience, the facility uses a single form to identify both reddened areas and pressure sores. Petitioner seeks to rely on the facility forms, including elements of the plan of care on such forms, as though they were admissions by the facility that define pressure sores and then attempt to require the facility to prove the areas are not pressure sores. Petitioner is bound by its own definition of a pressure sore, cannot deviate from that definition, and cannot rely on a different definition as a basis for disciplinary action against the licensee. Petitioner limits the definition of a pressure sore to those ischemic ulcerations and/or necrosis of tissues that overlie a bony prominence. Those ischemic ulcerations and/or necrosis of tissues that do not overlie a bony prominence are not pressure sores within the meaning of the definition adopted by the state agency. The use by the facility of pressure sore treatment forms and the use of the term pressure sore in the medical records does not create a bony prominence where none exists. The preponderance of evidence shows that the reddened areas at issue were not located over a bony prominence. Clearly, there is no bony prominence in the scrotum, thigh, or buttocks where the reddened areas were located on Resident 2. Assuming arguendo that the areas were pressure sores, Respondent provided all treatment and services to the areas necessary to promote their healing. The facility treated the areas identified on February 22, 2001, by cleansing and application of Lantiseptic, a skin protector. The effectiveness of the treatment is reflected by the complete healing of the areas on the next day. Facility staff properly notified the treating physician and treated the areas identified on March 5th with Lantiseptic. A physician’s assistant examined the areas identified in the March survey and confirmed the use of Lantiseptic on the areas. The surveyor found no record of any plan of care for the pressure sores alleged in the March survey. The facility subsequently produced a note by a nurse practitioner dated March 6, 2001, stating that Lantiseptic was applied to a rash on the buttocks and scrotum, a doctor’s order for treatment, and a care plan for pressure sores after the physician’s note of February 23, 2001. The surveyor testified that the additional documents did not alter her testimony that the areas were pressure sores and that the facility failed to provide an adequate plan of care. The testimony of the surveyor does not refute the preponderance of evidence at the hearing. The areas at issue did not overlay a bony prominence. In any event, Petitioner failed to show that the deficiency alleged in F314 in the March survey was a Class II deficiency. Even if the areas were pressure sores and it were determined that the facility failed to provide necessary treatment and services, the evidence does not demonstrate that the problem suffered by Resident 2 was systemic or likely to occur with other residents in the facility. At most, the evidence demonstrates a limited failure to provide care to one resident. Accordingly, Petitioner failed to prove that the identified deficiency presented an immediate threat to other residents in the facility. At the conclusion of Petitioner's case in chief, Respondent moved to dismiss the allegations in Tag F282 on the grounds that Tag F282 in the March and April surveys alleged different deficiencies and therefore were not relevant or material to a change in license that is based on uncorrected deficiencies. After hearing arguments from both parties, the ALJ granted the motion to dismiss with leave for Petitioner to revisit the issue in its PRO if Petitioner could provide legal authority to support its position. Petitioner argues in its PRO that the ALJ erred in granting the motion to dismiss. However, Petitioner does not cite any legal authority to support its argument. Tag F282 in the March and April surveys alleges that the facility failed to provide care and services in accordance with the plan of care for two residents in violation of 42 CFR Section 483.20(k)(ii). The federal regulation provides in relevant part: Comprehensive Care Plans. (3). The services provided or arranged by the facility must— (ii) Be provided by qualified persons in accordance with each resident’s written plan of care. The federal standard is applicable to nursing homes in Florida pursuant to Rule 59A-4.1288. In the March survey, Tag F282 did not allege that Respondent provided services to residents by unqualified staff. Instead, Tag F282 charged that Respondent's staff incorrectly fastened a clip belt in the back of Resident 21 while she was in her wheel chair and failed to toilet her once in accordance with a physician’s order. In addition, Tag F282 alleged that staff did not weigh Resident 3 weekly as required by his care plan. However, a preponderance of the evidence showed that the facility did not miss any required weights after January 13, 2001. In the April survey, Tag F282 did not allege that Respondent failed to correct the deficiencies alleged in the March survey regarding Residents 21 and 3. Nor did Tag F282 allege that Respondent failed to comply with the plan of corrections submitted by Respondent after the March survey. Rather, Tag F282 in the April survey alleged that Respondent failed to provide a plate guard and weighted spoon for Resident 7 in violation of a physician's order. Petitioner argues that the alleged deficiencies in Tag F282 in the March and April surveys, pertaining to Residents 21 and 7, respectively, involved the failure to comply with a physician's order and, therefore, represent uncorrected deficiencies. Even if Petitioner's definition of an "uncorrected deficiency" were accepted, it would not be dispositive of the issue. The evidence showed that the physician who ordered the weighted spoon and plate guard for Resident 7 terminated the order at the conclusion of the April survey. Even if Respondent failed to follow a physician's order for Residents 21 and 3 in the March survey, Respondent did not fail to follow a physician's order for Resident 7 during the April survey. Moreover, the termination of the physician's order evidences a medical determination that the failure to comply with the order did not cause any harm to Resident 7. In any event, the definition of an "uncorrected deficiency" asserted by Petitioner is not persuasive. Notwithstanding the request of the ALJ, Petitioner did not submit any legal authority to support its asserted definition of the phrase "uncorrected deficiency." In the absence of a technical definition established by statute, rule, or judicial precedent, the phrase "uncorrected deficiency" is properly construed in accordance with the plain and ordinary meaning of its terms. The allegations in Tag F282 in the March survey are rooted in a physician’s order that called for a clip belt to be placed around Resident 21 while she was in her wheelchair. The purpose of the order was to guard the safety of Resident 21. The order further directed staff to check the belt every thirty minutes and release it every two hours to toilet the resident. During the March survey, a surveyor observed that staff had placed the clip belt on Resident 21 improperly on one day, and further determined that the resident had not been taken to the toilet. Based upon that information, the surveyor charged that the facility failed to follow the doctor’s order for checking and releasing the belt. The surveyor’s observations established, at most, a single isolated instance of failure to follow the care plan for Resident 21. The surveyor's observations failed to establish a consistent failure to implement the care plan. The alleged deficiency presented no potential for harm to Resident 21. Resident 21 was cognitively alert and could notify staff if she needed to be toileted or needed her belt removed. At the time that the surveyor observed Resident 21, the resident was in a supervised setting with staff readily available to her in the event she needed attention. She was not shown to have experienced any incontinent episode or to have even requested that she be toileted or otherwise released from the belt. Petitioner acknowledges that any failure by staff to remove the resident’s belt during this time presented nothing more than a minimal risk of harm to the resident. Resident 3 was admitted to the facility on January 13, 2001, and had a care plan that called for the resident to be weighed weekly. Between the resident’s admission to the facility and the March survey, the facility weighed the resident in accordance with the care plan except for one omission in late February. This one instance of failing to do a weekly weight did not demonstrate a consistent failure to implement the care plan. Petitioner provided no evidence that this single instance of failing to weigh the resident caused the resident harm or presented even the potential for harm to the resident. After the March survey, Respondent submitted a plan of correction to address the alleged deficiencies relating to Tag F282. Applicable law precludes Respondent from arguing the validity of the alleged deficiencies in its plan of correction. In the plan of correction, Respondent indicated that it would focus on restraints and weekly weights to insure that the alleged deficiencies would not re-occur. Petitioner accepted the plan of correction and, in April, did not find that staff at the facility failed to properly apply restraints to residents, failed to do weekly weights for residents, or otherwise failed to implement the plan of correction. Petitioner charged that Respondent violated Tag F282 in April because the facility failed to provide a weighted spoon and plate guard to Resident 7 as required by a physician’s order. It is uncontroverted that the plan of correction adopted to address the March F282 deficiency pertaining to Residents 21 and 3 did not address the deficiency alleged in Tag F282 in the April survey with respect to Resident 7; and would not have prevented the deficiency alleged in the April survey pertaining to Resident 7. Accordingly, the deficiency alleged in Tag F282 in the April survey pertaining to Resident 7, even if true, did not represent an "uncorrected" deficiency. Instead, the deficiency alleged in Tag F282 in the April survey represented a new deficiency. In any event, Petitioner failed to demonstrate that the alleged failure of the facility to comply with any of the orders at issue denied residents any necessary care and treatment, or presented even the possibility that the residents would be harmed. The physician ordered the weighted spoon and plate guard for Resident 7 due to the loss of dexterity in the resident's hand needed to assist him in the consumption of his meals. Even though the plate guard and spoon were not provided to the resident after they were ordered for him, the resident had no trouble with meal consumption. His medical records reflected that he consistently consumed his meals and that he gained almost 20 pounds during the time period that the spoon and plate guard were ordered. The weight gain and food consumption are significant because the facility initially admitted the resident as a hospice resident. The absence of any medical necessity for the physician's order requiring the spoon and plate was confirmed when the facility contacted the doctor during the survey, and the doctor issued an order discontinuing the use of the plate guard and spoon. Tag F325 in the March and April surveys alleges that the facility failed to comply with the requirements of 42 CFR Section 483.25(i)(1). The federal regulation provides, in pertinent part: Nutrition. Based on a resident’s comprehensive assessment, the facility must ensure that a resident-- Maintains acceptable parameters of nutritional status, such as body weight and protein levels, unless the resident’s clinical condition demonstrates that this is not possible. . . . The federal regulation applies to nursing homes in Florida pursuant to Rule 59A-4.1288. Tag F325 alleges in the March survey that Respondent did not maintain acceptable parameters of body weight for Resident 4. Respondent does not dispute this charge. Tag F325 alleges in the April survey that Respondent did not maintain acceptable parameters of body weight for Resident 9. Resident 9 lost approximately 20 pounds between August of 2000 and April 8, 2001. However, Petitioner provided no evidence that the weight the resident lost was "unacceptable" or caused by inadequate nutritional care. Petitioner neither contended nor demonstrated that a 20-pound weight loss over seven or eight months violates any accepted dietary or health standard. Even if such a rate of weight loss were an "unacceptable nutritional parameter," Petitioner provided no evidence that Respondent failed to properly monitor Resident 9's weight, assess his dietary needs, provide the resident with an appropriate diet, or otherwise caused the weight loss. Rather, the resident’s medical records demonstrate on-going assessments of the resident by the dietary staff and numerous interventions to address the resident's weight. Petitioner alleges that Respondent failed to comply with several directives for supporting care for Resident 9. Facility staff had been directed to cue Resident 9 to use a "chin tuck" to address his risk of aspiration due to swallowing difficulties. Staff were directed to cue the resident to cough and tuck his chin anytime the staff determined that the resident's voice sounded wet. During the survey, the surveyor observed three meals in which the staff provided no cues to Resident 9. However, no cues were required of staff if the resident did not have a wet sounding voice, and the surveyor acknowledged that she did not hear the resident cough during any of her meal observations. Even if cues were required to be given to Resident 9 during the meals observed by the surveyor, the surveyor did not demonstrate that the failure to cue the resident had any negative impact either on the resident's ability to eat or on the resident's weight. Rather, the evidence shows that Resident 9 weighed 151.6 pounds on April 8, 2001, and weighed 160.2 pounds on April 20, 2001, the day after Petitioner completed the April survey. Thus, the failure of the staff to cue the resident during the observed meals did not violate a nutritional parameter. The surveyor testified that the facility failed to provide fortified foods to Resident 9 during the April survey in violation of the resident's dietary care plan. The allegations in Tag F325 in the April survey do not include the allegation of inadequate care to which the surveyor testified during the hearing. In the absence of adequate notice in the written allegations, the testimony of the surveyor cannot be used as a basis for any finding of deficiency. Even if the testimony were considered as a basis for a finding of fact, the failure to provide fortified foods did not violate any nutritional requirements. Resident 9's wife provided the resident with "home-cooked" meals to satisfy his food preferences. Petitioner acknowledges that the meals the wife supplied effectively precluded the resident from eating fortified foods provided by the facility. Moreover, Resident 9 gained weight between April 8 and 17, 2001. Tag F363 alleges in the March and April surveys that the facility failed to meet the requirements of 42 CFR Section 483.35(c)(1)-(3). The federal regulation provides in relevant part: (C) menus and nutritional adequacy. Menus must-- Meet the nutritional needs of residents in accordance with the recommended dietary allowances of the Food and Nutrition Board of the national Research Council, National Academy of Sciences; Be prepared in advance; and Be followed. The federal regulation applies to nursing homes in Florida pursuant to Rule 59A-4.1288. Tag F363 alleges that the facility’s menu for March 8, 2001, included cranberry sauce and that the facility did not serve cranberry sauce to 11 residents in the rehabilitation dining room. The surveyor who made this charge did not evaluate the meal actually provided to the residents for its nutritional adequacy. Rather, the surveyor cited the facility because the facility failed to comply with the literal terms of the printed menu. Respondent does not dispute that the facility did not serve cranberry sauce to 11 residents in its rehabilitation dining room on the day in question. The facility’s menu for March 8, 2001, consisted of roast turkey, poultry gravy, cornbread dressing, peas and carrots, mandarin oranges, bread, and cranberry sauce. The menu called for one-half tablespoon of cranberry sauce. The omission was not significant. The dietician did not include the cranberry sauce in calculating the nutritional content of the meal. The cranberry sauce was only a garnish to the plate. The remainder of the food items offered in the meal met all of the requirements for residents’ nutritional needs. Any failure by Respondent to provide the cranberry garnish presented no risk of harm to any resident. Tag F363 alleges in the April survey that Respondent provided a saltine cracker during one meal to a resident who required a pureed diet. Tag F363 also alleges that Respondent gave a bologna sandwich to a resident whose food preferences did not include bologna sandwiches. Petitioner provided no evidence that either of these residents received nutritionally inadequate meals. Petitioner’s apparent concern with the resident who was served the cracker was that she might attempt to eat it and choke on it because she required pureed foods and the cracker was not pureed. The surveyor who observed the resident acknowledged that the resident did not eat the cracker. She also acknowledged that there is a regulatory standard which requires a facility to provide a therapeutic diet to residents who require such a diet, and that a pureed diet is a therapeutic diet. Accordingly, this observation is, at most, a violation of that standard, not Tag F363, and presented nothing more than a minimal chance of harm to the resident. Petitioner failed to show that the resident who did not get the bologna sandwich was deprived of any required nutrition, or that placing a bologna sandwich in front of the resident created any risk of harm to the resident. The surveyor acknowledged that the sandwich did not remain in front of the resident for long and that the facility immediately corrected the situation by providing the resident with an acceptable substitute. Tag F363 also alleges that the facility posted for resident observation the same menu on Monday, April 17, 2001, that the facility posted on Sunday, April 16, 2001. The regulation at issue does not address how or even if menus must be posted in a nursing home. Petitioner failed to explain why posting the same menu on consecutive days would violate any regulation, rule, or statute. Respondent acknowledged that the Sunday menu was not removed on Monday, but demonstrated that different, nutritionally adequate meals were planned and served to residents on each of those days.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Agency for Health Care Administration enter a final order finding that Petitioner failed to show by a preponderance of the evidence that a factual basis existed upon which Petitioner should have issued a Conditional rating to Respondent on March 8, 2001, and revising the March 8 and April 16, 2001, 2567 reports by deleting the deficiencies described under Tags F224, F314, F282, F363 and F325 (April only); and issuing a Standard rating to Respondent to replace the previously issued Conditional rating that was in effect from March 8, 2001, until May 31, 2001. DONE AND ENTERED this 4th day of March, 2002, in Tallahassee, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of March, 2002. COPIES FURNISHED: Dennis L. Godfrey, Esquire Agency for Health Care Administration 525 Mirror Lake Drive, North, Room 310L St. Petersburg, Florida 33701 R. Davis Thomas, Qualified Representative Broad & Cassel 215 South Monroe Street, Suite 400 Tallahassee, Florida 32302 Diane Grubbs, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Suite 3431 Tallahassee, Florida 32308 William Roberts, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive Suite 3431 Tallahassee, Florida 32308
The Issue The issues are whether Respondent committed the violations alleged in the Administrative Complaint concerning three nursing home residents, whether Petitioner should impose a civil penalty of $2,500 for each violation, whether Petitioner should change the status of Respondent's license from standard to conditional, and whether Petitioner should recover investigative costs.
Findings Of Fact Petitioner is the state agency responsible for licensing and regulating nursing homes in Florida. Respondent is licensed to operate an 87-bed nursing home located at 3250 12th Street, Sarasota, Florida (the facility). From February 9 through 11, 2004, Petitioner's staff inspected the facility pursuant to regulatory requirements for an annual survey of such facilities (the survey). At the conclusion of the survey, Petitioner issued a document identified in the record as CMS Form 2567L (the 2567 form). The 2567 form alleges violations of federal nursing home regulations that Petitioner has adopted by rule. The Administrative Complaint incorporates the factual allegations from the 2567 form and charges Respondent with committing four violations alleged to be Class II violations defined in Subsection 400.23(8)(b), Florida Statutes (2003). Counts I through III in the Administrative Complaint allege that facility staff committed acts involving residents identified in the record as Residents 14, 7, and 8. Count IV alleges that the allegations in Counts I through III show that Respondent administered the facility in a manner that violated relevant regulatory provisions. Counts I through IV propose an administrative fine of $2,500 for each alleged violation and the recovery of unspecified investigative costs. Count V alleges that the allegations in Counts I through III require Petitioner to change Respondent's license rating from standard to conditional while the alleged deficiencies remained uncorrected. Count I alleges that a staff nurse at the facility abused Resident 14, an elderly female. The substance of the allegation is that the nurse "intentionally caused pain" to Resident 14 by raising the resident's left hand above her head so the resident would open her mouth and allow the nurse to ensure the resident had swallowed her medication. Respondent admitted Resident 14 to the facility on January 31, 2000, with multiple health problems, including anxiety, paranoia, psychosis, delusions, and disorientation due to dementia. Resident 14 was not ambulatory and suffered poor wheel chair positioning for which she had been evaluated and received therapy. Resident 14 was non-verbal, angry, aggressive, combative with staff and other residents, displayed territorial aggression, and a tendency to strike out at others. Prior to admission, Resident 14 had suffered a fracture of the left arm resulting in a limited range of motion in her left shoulder of 60 degrees. At the time of the survey, Resident 14 was approximately 93 years old. Two surveyors observed a staff nurse administering medication to Resident 14 while the resident was sitting in her wheel chair in her room. Resident 14 did not respond to repeated cues from the nurse to open her mouth so the nurse could ensure the resident had swallowed her medication. The nurse continued to observe Resident 14 for some indication the resident had not swallowed her medication and offered pudding to the resident. Resident 14 remained unresponsive. The nurse directed a certified nurse assistant (CNA) to give Resident 14 breakfast and left to care for other residents. The surveyors asked the nurse to return to the room to ensure that Resident 14 had swallowed her medication. Resident 14 did not respond to additional cues from the staff nurse to open her mouth because the resident was distracted by the surveyors. The staff nurse attempted to redirect the attention of the resident to the nurse's cues to open her mouth by holding the resident's left hand and raising her hand and arm. Resident 14 opened her mouth, and the staff nurse observed no medication in the resident's mouth. The disputed factual issues call into question how quickly and how high the staff nurse raised the left hand of Resident 14, whether the resident suffered pain, and whether the staff nurse knew the action would cause pain. Although Resident 14 was non-verbal, Count I alleges, in relevant part, that Resident 14 cried "OW" when the staff nurse, without warning, raised the resident's hand over her head. A preponderance of evidence does not show that the staff nurse lifted the hand of Resident 14 in an abrupt manner. During cross-examination of the surveyor, counsel for Respondent conducted a reenactment of the alleged incident. The witness verified the manner in which the person acting as the staff nurse in the reenactment raised the left hand and arm of the person acting as Resident 14. The demonstration did not show the staff nurse acted abruptly. The reenactment showed that the description of the incident by the surveyor was less than persuasive. Petitioner admits in its PRO that a determination of whether the staff nurse raised the resident's hand gently or abruptly is a "matter of perspective." Petitioner argues unpersuasively at page 14 in its PRO that the surveyor's perception should be accepted because: Clearly, the surveyor would not have made comment if the resident had been treated in a gentle manner. Petitioner cites no evidence or law that precludes the written statement provided by the staff nurse during the facility's investigation of the incident from enjoying a presumption of credibility equivalent to that Petitioner claims for the report of the surveyor. The staff nurse had been a nurse at the facility for 19 years without any previous complaints or discipline and had ample experience with residents that suffered from dementia. The nurse had cared for Resident 14 for most of the four years that Resident 14 had been a resident at the facility. Irrespective of how fast and high the staff nurse raised the hand of Resident 14, a preponderance of evidence does not show that Resident 14 suffered an injury or harm that is essential to a finding of abuse. The surveyor asked Resident 14 if the resident had been in pain prior to the incident. Resident 14 was "unable to speak," according to the surveyor, but nodded affirmatively. Resident 14 did not indicate the source or location of any pain, and there is no evidence that the surveyor asked Resident 14 to indicate to the surveyor where the resident was experiencing pain. After the incident, the surveyors undertook no further inquiry or investigation, did not question the nurse or the resident further, and refused a request by facility administrators for a written statement describing the incident. The surveyors at the facility did not make a determination of whether the incident resulted in "harm" to Resident 14. Rather, the allegation of harm arises from Petitioner's employees who did not testify at the hearing. The determination of harm is uncorroborated hearsay, and the trier of fact has not relied on that determination for any finding of fact. Upon learning of the incident, Respondent's nursing staff immediately examined Resident 14 for injuries, had Resident 14 examined by her physician, and had Resident 14 x-rayed for possible injuries. No injury was found. Resident 14 did not complain of pain when her physician performed a range of motion examination on the suspect arm. Resident 14 was able to move both of her arms without pain. The medical records for Resident 14 and the testimony of her occupational therapist show that the resident had use of her left arm. Resident 14 frequently flailed both arms in an effort to strike others. Notes in the medical records show that Resident 14 "lashes out," "swings her arms," was "physically abusive to staff when attempting to provide care," and "refused to open mouth and became agitated and combative." The limited range of motion in the left shoulder of Resident 14 did not prevent Resident 14 from raising her left hand above her head while seated in a wheel chair. Resident 14 sat in a wheel chair with a forward pelvic thrust, causing her to slump with a lateral lean to the left. The wheel chair position effectively lowered the resident's head, reduced the distance between her head and left hand, and enabled the resident to raise her left hand above her head without pain. Count II alleges that Respondent failed to assist Resident 7 in "coping with changes in her living arrangements in a timely manner" after Resident 7 became upset that her guardian was selling her home. The allegation is not supported by a preponderance of evidence. Respondent admitted Resident 7 to the facility in September of 2003. Prior to admission, the circuit court for Sarasota County, Florida, entered an order appointing a guardian for Resident 7. In relevant part, the court order authorized the guardian to determine residency of Resident 7 and to manage her property. Prior to December 28, 2003, Resident 7 was reasonably content. Social service's notes in October 2003, show that Resident 7 was "alert with no mood or behaviors." Nurses notes in November 2003, show Resident 7 to be "pleasant" with a "sense of humor." On December 28, 2003, Resident 7 became angry when her guardian revealed plans to sell the resident's home. Resident 7 continued to exhibit anger for several weeks. On January 6, 2004, Respondent conducted a care plan conference with the guardian for Resident 7, discussed Resident 7's emotional state, and obtained the guardian's consent for counseling. Pursuant to the care plan, Respondent's social services staff met with Resident 7 regularly and provided psychological counseling twice a week. Facility staff did not undertake discharge planning for Resident 7. Staff provided other assistance to the resident, but that assistance was minimal and consisted mainly of giving Resident 7 telephone numbers to contact the Long Term Care Ombudsman in the area and the attorney for the guardian. The sufficiency of the other assistance provided by Respondent is not material because the court convened a second hearing to consider the objections of Resident 7 to her guardian and to consider a competency examination by another physician. On February 6, 2004, the court entered an order denying the resident's suggestion of capacity and authorizing the guardian to sell the residence. The allegation that Respondent should have undertaken discharge planning is not supported by a preponderance of the evidence. Pursuant to two court orders, Resident 7 continued to be in need of a nursing home level of care, and her expectations for discharge to a lower level of care were unrealistic. Count III alleges that a facility staff nurse failed to administer analgesic medication to Resident 8 causing "continued pain and emotional stress to the resident." Resident 8 experienced chronic pain from a joint disorder. A care plan for pain management, in relevant part, authorized Tylenol as needed. A preponderance of evidence does not show that Respondent failed to provide Tylenol to Resident 8 in accordance with the care plan. During the survey, a surveyor observed staff at the facility reinserting a catheter into a vein of Resident 8. The witness for Petitioner testified that the procedure did not cause Resident 8 to experience pain. It is undisputed that Resident 8 did not request pain medication and that no pain medication was medically required prior to the procedure. Respondent did provide Resident 8 with a prescription medication to calm the resident. The preponderance of evidence does not show that Respondent failed to ensure that Resident 8 obtained optimal improvement or that Resident 8 deteriorated. Petitioner submitted no evidence that Resident 8 experienced any lack of improvement or decline in functioning or well-being. Count IV in the Administrative Complaint alleges that the allegations in Counts I through III show that Respondent failed to administer the facility in a manner that enabled the facility to use its resources effectively and efficiently to maintain the highest practical well-being of Residents 14, 7, and 8. For reasons previously stated, the preponderance of evidence does not show that Respondent committed the acts alleged in Counts I through III. Without the violations charged in Counts I, II, or III, the charges in Count IV are moot. Assuming arguendo that the staff nurse abused Resident 14, a preponderance of evidence does not show that Respondent failed to take action that could have prevented such abuse. Petitioner's surveyor was unable to explain in her testimony how Respondent could have prevented the alleged abuse. The surveyor did not report the incident to management at the facility for approximately 1.5 hours. Management immediately suspended the staff nurse and undertook an investigation required by law. Petitioner's surveyors refused to provide written statements describing the incident. The staff nurse provided a written statement that Respondent included as part of its investigation and report to Petitioner. Respondent maintains adequate policies and procedures for background screening and regular training for its staff relating to abuse and neglect of residents. Respondent had accomplished all background screening and abuse training requirements for the staff nurse involved in the incident. Respondent had no information in the nurse's history that would have enabled the facility to predict any potential for this staff nurse to intentionally harm a resident. A preponderance of evidence does not show that Respondent failed to administer the facility in a manner that would ensure the highest practical well-being for Resident 7. Two court orders determined that Resident 7 was incompetent and authorized the guardian to sell the resident's real property. The opinion of a surveyor that Resident 7 was "clearly competent" does not eviscerate the findings of the court. A preponderance of evidence does not show that Respondent failed to administer the facility in a manner that would ensure the highest practical well-being for Resident 8. Respondent maintained an adequate pain management care plan for Resident 8 that included Tylenol as needed. It is undisputed that the care plan did not require Tylenol before or after the re-insertion of the catheter into the vein of Resident 8, that insertion of the catheter caused Resident 8 no pain, that Tylenol was not medically required before or after the procedure, and that Respondent provided Resident 8 with a stronger prescription medication for anxiety. Count V of the Administrative Complaint alleges that the allegations in Counts I through IV require Petitioner to change the status of Respondent's license from standard to conditional. In the absence of the violations charged in Counts I through IV, there is no factual basis to support the proposed change in the status of Respondent's license.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent not guilty of committing the violations charged in the Administrative Complaint. DONE AND ENTERED this 4th day of February, 2005, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 2005. COPIES FURNISHED: Alfred W. Clark, Esquire 117 South Gadsden Street, Suite 201 Post Office Box 623 Tallahassee, Florida 32302-0623 Gerald L. Pickett, Esquire Agency for Health Care Administration Sebring Building, Suite 330K 525 Mirror Lake Drive, North St. Petersburg, Florida 33701 Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration Fort Knox Building, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308 Alan Levine, Secretary Agency for Health Care Administration Fort Knox Building, Suite 3116 2727 Mahan Drive Tallahassee, Florida 32308
The Issue The issue in this case is whether the Board of Nursing should discipline the Respondent, Joyce Knowlton, on charges contained in the Amended Administrative Complaint, DPR Case No. 0111292.
Findings Of Fact The Respondent is a licensed practical nurse who was working as a nurse at Seminole Nursing Pavilion in Seminole, Florida, in January, 1989. She holds Florida license number PN13417. The evidence proved that the Respondent dispensed Mellaril to the patient, L. W., on the evenings of January 5, 6, 8, 9, 11-14, 18, 19, 22, 25 and 26, 1989. On the evenings of January 3, 4 and 28, 1989, another nurse dispensed Mellaril to the patient. On the other 15 evenings in January, 1989, the Respondent was not on duty, and Mellaril was not dispensed to the patient. The doctor's orders for the patient, L. W., were: "Mellaril concentrate 25 mg. give two (2) times daily as needed for agitation." The evidence proved that the Respondent dispensed Mellaril to the patient, L. W., on at least one occasion--on January 5, 1989--when the patient was not agitated and showed no sign of becoming agitated. The patient was "calm to the point of being almost placid." The Respondent went in and roused the patient to give her the medication. The Respondent explained to other witnesses that she dispensed Mellaril to the patient, L. W., without symptoms of agitation because the patient ate better and with less agitation at meal time after administration of Mellaril, and also because the patient's family favored this course. The evidence proved that it was below minimum standards of acceptable and prevailing practice of nursing for the Respondent to administer Mellaril to this particular patient, L. W., for the stated purpose. It is possible for a patient regularly to become agitated at about meal time. This is not uncommon with some nursing home patients; it is commonly referred to as "sundowner syndrome." In the case of "sundowner syndrome," administration of the medication just before meal time to prevent agitation, so that the patient would eat better and with less agitation, could be in compliance with the doctor's orders, as written, and not below minimum standards of acceptable and prevailing practice of nursing. But, in this case, the evidence proved that the patient did not have "sundowner syndrome." On only three of the 16 evenings in January, 1989, when the Respondent was not on duty did the on-duty nurse administer Mellaril for agitation. The Respondent has a history of recurring episodes of major depression. She was fired from her job at the Seminole Nursing Pavilion on or about January 27, 1989. She became angry and then deeply depressed. On or about February 28, 1989, the depression became so severe that the Respondent attempted to end her life, or at least made a suicidal gesture, by an overdose of valium and wine. Fortunately, she recovered and received treatment in various clinical settings through approximately April 24, 1989. She continued to receive therapy, particularly to deal with the stress of this proceeding. But by the time of the hearing, she was fairly stable, and her recurrent depression was in remission. She now is able to work and, in fact, has been working as a nurse without any apparent incapacity. The opinion testimony of the Department expert witness that the Respondent is now incapable, by reason of mental illness, to practice nursing with reasonable skill and safety to patients was not persuasive. The testimony was based solely on a review of the records in evidence as part of the Department's case in chief. The witness did not examine the Respondent and had no knowledge of the Respondent's employment history before about 1982 or after her employment at Seminole Pavilion ended.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Nursing enter a final order placing the Respondent, Joyce Knowlton, on probation for one year, during which time the Respondent's current mental condition can be evaluated and her practice closely monitored to insure that she is rehabilated enough to be able to continue to practice nursing safely. RECOMMENDED this 26th day of November, 1990, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 26th day of November, 1990. APPENDIX TO RECOMMENDED ORDER To comply with the requirements of Section 120.59(2), Florida Statutes (1989), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1.-3. Accepted and incorporated to the extent not subordinate or unnecessary. 4. Rejected as not proven that agitation necessarily results in harm to the patient or others. Agitation could result only in what is called resistance to care. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. 5.-13. Accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not proven. The Respondent believed that the patient ate better and with less agitation after being given Mellaril, not that the Mellaril "made the patient eat better" in the sense that it increased her appetite. Accepted but subordinate and unnecessary. Rejected as not proven. The evidence suggested that the family approved of the use of Mellaril to counteract anticipated agitation; it did not prove that the family asked the Respondent to keep the patient sedated, as implied by this proposed finding. 17.-20. Accepted and incorporated to the extent not subordinate or unnecessary. 21. Accepted and incorporated. 22.-25. Without testimony to explain the records on which these proposed findings are based, it is difficult to decipher what they say, and no findings are based solely on them except as may be found in the Findings of Fact. Accepted and incorporated. Accepted but subordinate and unnecessary. Rejected. See 22-25, above. 29.-33. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted but subordinate and unnecessary. Rejected as not proven. See 22-25, above. Accepted and incorporated. First clause, accepted. However, the same records indicate that the Respondent's major depression is in remission. The Respondent's history is that her major depression alternately recurs and goes into remission depending on what is happening in her life and what kind of treatment she gets. Therefore, to the extent that it is inconsistent with the Findings, the rest is rejected as not proven. 38.-41. Generally accepted but unnecessary. These are vague generalities; no specifics were proven. The only relevance of these facts in this case would be to prove the Respondent's mental condition and the effects on her ability to practice nursing. But the evidence did not relate any of these facts to the Respondent's mental condition or to its effect on her ability to practice nursing. 42.-43. Rejected as not proven. 44.-46. The Respondent was not charged with untruthfulness. The only relevance of these facts in this case would be to prove the Respondent's mental condition and the effects on her ability to practice nursing. But the evidence did not relate any of these facts to the Respondent's mental condition or to its effect on her ability to practice nursing. 47.-50. The Respondent was not charged with breach of a contractual agreement. The only relevance of these facts in this case would be to prove the Respondent's mental condition and the effects on her ability to practice nursing. But the evidence did not relate any of these facts to the Respondent's mental condition or to its effect on her ability to practice nursing. Proposed finding 50 is based strictly on inadmissible hearsay. 51.-52. Rejected as based strictly on inadmissible hearsay. 53.-57. Subordinate to facts found and unnecessary. 58.-60. The Respondent was charged with only one med pass error--dispensing Mellaril to the patient, L.W. The only relevance of these facts in this case would be to prove the Respondent's mental condition and the effects on her ability to practice nursing. But the evidence did not relate any of these facts to the Respondent's mental condition or to its effect on her ability to practice nursing. 61. Rejected as not proven. 62.-72. Rejected as not proven. Without testimony to explain the records on which these proposed findings are based, it is difficult to decipher what they say, and no findings are based solely on them except as may be found in the Findings of Fact. Accepted and incorporated. Rejected as not proven. Nursing has some unique stresses. It has more stress than some jobs and less stress than other. Accepted but subordinate to facts found. Respondent's Proposed Findings of Fact. 1.-12. Accepted and incorporated to the extent not subordinate or unnecessary. Rejected contrary to facts found and to the greater weight of the evidence. As found, the evidence did not prove that the Respondent is now unable, by reason of her mental condition, to practice nursing safely. However, the Respondent's evidence on this point consisted only of medical records and progress notes created by the Respondent's therapist. Without any testimony to explain these records, the evidence did not prove that the Respondent was more than "fairly stable" at the time of the hearing. On the other hand, the evidence did prove that the Respondent has a history of recurrent major depression, a legitimate concern to the Board of Nursing after the February 28, 1989, suicide attempt. Rejected as contrary to facts found and to the greater weight of the evidence. COPIES FURNISHED: Lois B. Lepp, Esquire Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Christina M. Ippolito, Esquire Gulfcoast Legal Services, Inc. 6 South Ft. Harrison Avenue Clearwater, Florida 34616 Judie Ritter, Executive Director Board of Nursing 504 Daniel Building 111 East Coastline Drive Jacksonville, Florida 32202 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue for determination is whether the Agency for Health Care Administration found deficiencies at Wellington Specialty Care and Rehab Center sufficient to support the change in its licensure status to a conditional rating.
Findings Of Fact Wellington is a nursing home located in Tampa, 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 September 10, 1998, the Agency conducted a complaint investigation at Wellington in a matter unrelated to the issues that are the subject of this proceeding. On that same date, the Agency also conducted an appraisal survey that focused on six areas of care for which Wellington had been cited as deficient in past surveys. After the investigation and survey were completed, the Agency determined that there was no basis for the complaint, and further determined that Wellington was not deficient in any of the six areas of care which were the subject of the appraisal survey. Notwithstanding its findings that the complaint against Wellington was unfounded and that there were no deficiencies in the targeted areas of care being reviewed, the Agency determined that Wellington was deficient in an area not initially the subject of the September 1998 survey. Specifically, the Agency found that Wellington had failed to provide adequate supervision and assistance devices to two residents at the facility in violation of the regulatory standard contained in 42 C.F.R. s. 483.25(h)(2). Based on its findings and conclusions, the Agency issued a survey report in which this deficiency was identified and described under a "Tag F324." The basis for the Agency’s findings were related to observations and investigations of two residents at the facility, Resident 6 and Resident 8. During the September 1998 survey and complaint investigation, the surveyors observed that Resident 6 had a bruise on her forehead and that Resident 8 had bruises on the backs of both of her hands. Resident 6 suffered a stroke in May 1998 and had left-side neglect, a condition that caused her to be unaware of her left side and placed her at risk for falls. Moreover, Resident 6's ability to recall events was impaired. The Agency's investigation revealed that Resident 6 sustained the bruise on her forehead when she fell from the toilet on August 31, 1998. The Agency determined that Resident 6 fell because she was left alone by the staff of the facility and further concluded that Wellington was responsible for causing this fall. The Agency believed that given Resident 6's left-side neglect, the facility staff should have known not to leave the resident unattended during her trips to the toilet. The Agency suggested that Wellington should have provided constant supervision to Resident 6, although it acknowledged that such supervision may have created privacy violations. In making its determination and reaching its conclusions, the Agency relied exclusively on an interview with Resident 6, notwithstanding the fact that her ability to recall events was impaired. Since Resident 6 was admitted to the facility in May 1998, Wellington appropriately and adequately addressed her susceptibility to falls, including falls from her toilet. After Resident 6 was initially admitted to the facility in May 1998, she received occupational therapy to improve her balance. In late June 1998, following several weeks of occupational therapy, Wellington’s occupational therapist evaluated Resident 6’s ability to sit and to control the balance in the trunk of her body and determined that the resident was capable of sitting upright without support for up to 40 minutes. Based upon that assessment, Resident 6 was discharged from occupational therapy on June 25, 1998, and her caregivers were provided with instructions on how to maintain her balance. At the time Resident 6 was discharged from occupational therapy, a care plan was devised for her which provided that the facility staff would give her assistance in all of her activities of daily living, but would only provide stand-by assistance to Resident 6 while she was on the toilet, if such assistance was requested. In light of the occupational therapist's June 1998 assessment of Resident 6, this care plan was adequate to address her risk for falls, including her risk for falls while on the toilet. Wellington also provided Resident 6 with appropriate assistance devices. In Resident 6's bathroom, Wellington provided her with a right-side handrail and an armrest by her toilet to use for support and balance, and also gave her a call light to alert staff if she felt unsteady. These measures were effective as demonstrated by the absence of any falls from the toilet by Resident 6 over the course of June, July, and August 1998. The Agency's surveyor who reviewed Resident 6’s medical records was not aware of and did not consider the June 1998 Occupational Therapy Assessment of Resident 6 before citing the facility for the deficiency. Resident 8 was admitted to Wellington in February 1998 with a history of bruising and existing bruises on her body. At all times relevant to this proceeding, Resident 8 was taking Ticlid, a medication which could cause bruising and also had osteopenia, a degenerative bone condition that could increase Resident 8's risk for bruising, making it possible for her to bruise herself with only a slight bump. After observing the bruising on the backs of both of Resident 8's hands during the September 1998 survey, the Agency asked facility staff about the bruising and also reviewed the resident’s medical records. Based on her interviews and record review, the Agency surveyor found that these bruises had not been ignored by Wellington. Rather, the Agency found that when facility staff initially observed these bruises on Resident 8's hands, (1) staff had immediately notified Resident 8's physician of the bruises; and (2) the physician then ordered an X-ray of Resident 8 to determine whether there was a fracture. The X-ray determined that there was not a fracture but that there was evidence of a bone loss or osteopenia, which indicated that Resident 8 had an underlying structural problem which could increase the resident's risk for bruising. The Agency surveyor found nothing in Resident 8's medical record to indicate that the facility had investigated the bruising on the resident’s hands, identified the cause of the bruising, or identified any means to prevent the bruising from reoccurring. Based on the absence of this information in Resident 8's records, the Agency cited the facility for a deficiency under "Tag F324." The Agency's surveyor made no determination and reached no conclusion as to the cause of the bruising. However, she considered that the bruising on Resident 8 may have been caused by the underlying structural damage, medication, or external forces. With regard to external forces, the surveyor speculated that the bruising may have occurred when Resident 8 bumped her hands against objects such as her chair or bed siderails. During the September 1998 survey, when the Agency surveyor expressed her concerns about the cause of the bruising on Resident 8's hands, Wellington’s Director of Nursing suggested to the surveyor that the bruising could have been the result of the use of improper transfer techniques by either Resident 8’s family or the facility staff, or Resident 8’s medications. Despite the surveyor's speculation and suggestions by the facility's Director of Nursing, the Agency surveyor saw nothing that would indicate how the bruising occurred. In fact, the Agency surveyor's observation of a staff member transferring Resident 8 indicated that the staff member was using a proper transfer technique that would not cause bruising to the resident’s hands. The Agency surveyor made no other observations and conducted no investigation of the potential causes of the bruising on Resident 8's hands. During the September 1998 survey, after the Agency surveyor inquired as to the cause of the bruises on Resident 8's hands, the facility conducted an investigation to try to identify the potential causes for the bruising. The investigation was conducted by the facility’s Care Plan Coordinator, a licensed practical nurse who was also the Unit Manager for the unit on which Resident 8 was located. Included in the Care Plan Coordinator's investigation was a thorough examination of the potential causes suggested by the Agency's surveyor. The Agency surveyor’s speculation that the bruising was caused when Resident 8 hit her hands against her chair or bed siderails was ruled out as a cause for the bruises because Resident 8 was unable to move around in her bed or chair. More importantly, there were no bedrails on Resident 8's bed and her chair was a heavily padded recliner. Also, as a part of her investigation, the Care Plan Coordinator observed the transfer techniques employed by both Resident 8's family members and facility staff. During these observations, she did not see any indication that the techniques used were improper or would otherwise cause Resident 8 to bruise her hands. Based upon her thorough investigation, the Case Plan Coordinator determined that there were no identifiable causes of the bruising and, thus, there were no care plan interventions that the facility could have implemented then or in September 1998 to prevent the bruising suffered by Resident 8. Instead, the Care Plan Coordinator reasonably concluded that the bruising was most likely an unavoidable result of Resident 8's medications and her osteopenia. The Agency is required to rate the severity of any deficiency identified during a survey with two types of ratings. One of these is "scope and severity" rating which is defined by federal law, and the other rating is a state classification rating which is defined by state law and rules promulgated thereunder. As a result of the September 1998 survey, the Agency assigned the Tag F324 deficiency a scope and severity rating of "G" which, under federal regulations, is a determination that the deficient practice was isolated. The Tag F324 deficiency was also given a state classification rating of "II" which, under the Agency’s rule, is a determination that the deficiency presented "an immediate threat to the health, safety or security of the residents." Because the Agency determined that there was a Class II deficiency at Wellington after the September 1998 survey, it changed Wellington’s Standard licensure rating to Conditional, effective September 10, 1998. At the completion of the September 1998 survey, the Agency assigned the Class II rating to the deficiency although the surveyors failed to determine and did not believe that there was an immediate threat of accidents to other residents at Wellington. In fact, at the time of the September 1998 survey, the number of falls at Wellington had declined since the last survey. The Agency returned to Wellington on November 6, 1998, to determine if the facility had corrected the Tag F324 deficiency cited in the September 1998 survey report. After completing that survey, the Agency determined that the deficiency had been corrected and issued Wellington a Standard License effective November 6, 1998.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that the Agency for Health Care Administration enter a final order issuing a Standard rating to Wellington and rescinding the Conditional rating. DONE AND ENTERED this 17th day of May, 1999, 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 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of May, 1999. COPIES FURNISHED: R. Davis Thomas, Jr., Esquire Qualified Representative Broad and Cassel 215 South Monroe, Suite 400 Post Office Drawer 11300 Tallahassee, Florida 32302 Thomas Caufman, Esquire Agency for Health Care Administration 6800 North Dale Mabry Highway Suite 200 Tampa, Florida 33614 Sam Power, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308 Paul J. Martin, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308
The Issue The issue presented is whether Section V. B. 7. of the Florida Title XIX Long-Term Care Reimbursement Plan which is incorporated in Florida Administrative Code Rule 59G-6.010 is an invalid exercise of delegated legislative authority.
Findings Of Fact Petitioner, Manor Pines Convalescent Center, LLC, operates a skilled nursing home located in Ft. Lauderdale, Broward County, Florida, known as Manor Pines Convalescent Center. Manor Pines currently participates in the Medicaid program and has been issued provider number 25417700. Respondent, Agency for Health Care Administration, administers the Florida Title XIX Long-Term Care Reimbursement Plan (hereinafter "the Plan") which is incorporated by reference into Florida Administrative Code Rule 59G-6.010 and which establishes the methodology for determining reimbursement to nursing homes for the care provided to Medicaid beneficiaries. In accordance with the Plan, nursing homes participating in the Medicaid program are reimbursed by Medicaid on a per diem basis. The Medicaid per diem rate consists of four cost components: the operating costs component, the indirect patient care component, the direct patient care component, and a property component. Rates are calculated by following the provisions of the Plan and are cost-based in nature. Medicaid rates are normally set twice per year, once in January and again in July. The Plan contains numerous cost-saving mechanisms that are employed to limit a provider's actual costs. Examples of the cost-saving measures are class ceilings, cost ceilings, and targets. Each of those cost-saving measures uses a "lesser of" mechanism to ensure that a provider's Medicaid rate does not exceed the various mechanisms regardless of the actual costs to the provider. The class ceiling limits the amount that any facility in a particular class of providers can be reimbursed in an affected cost component. The class ceilings are based upon the size of the facility and the facility's geographic location. The cost ceiling caps the amount of costs that Medicaid will reimburse in any given component. The target limits check the amount of growth that Medicaid will reimburse a provider in any one component between rate semesters. Additionally, the Plan also contains a provision that is commonly referred to as the "low occupancy adjustment." According to Section V. B. 7. of the Plan, nursing homes are penalized in their reimbursement rates if they do not meet occupancy thresholds. In the version of the Plan in effect on January 1, 2006 (Version XXIX), the low occupancy adjustment provision reduced the reimbursement rate established for nursing homes for each of the reimbursement components (except the property component under the fair rental value system) that make up the nursing homes' Medicaid reimbursement rate. The Agency amended the low occupancy adjustment on July 1, 2006 (Version XXX). The effect of the amendment was that the adjustment no longer affected the direct patient care component and only affected the operating and indirect patient care components of the Medicaid per diem. The low occupancy adjustment is calculated by determining a low occupancy threshold and then reducing the established Medicaid per diem of any provider that does not meet that threshold. The low occupancy adjustment is a statement of general applicability that applies to all nursing homes in Florida that participate in the Medicaid program. In the January 1, 2006, rate-setting semester, Manor Pines' Medicaid per diem was limited by the low occupancy adjustment. Manor Pines was penalized $11.30 per patient day in the operating component, $25.40 per patient day in the direct patient care component, and $15.90 per patient day in the indirect patient care component. In the July 1, 2006, rate-setting semester, Manor Pines' Medicaid per diem was also limited by the low occupancy adjustment. At that time, Manor Pines was penalized $7.61 per patient day in the operating component and $10.23 per patient day in the indirect patient care component. It is illogical to adjust any component of the Medicaid nursing home per diem due to occupancy because the Medicaid per diem is determined based upon an allocation of costs that already factors Medicaid utilization in the methodology. Simply put, Medicaid's share of costs is limited in the per diem rate by a facility's Medicaid utilization. Further limiting those costs based upon occupancy creates a penalty that has no basis in law or fact. At the time of the final hearing in this cause, Manor Pines had been participating in the Medicaid program for four or five years after 35 years as a private-pay facility. Nearly two-thirds of all residents in nursing homes in Florida and in Broward County are Medicaid recipients. However, the low occupancy adjustment creates a disincentive to accept Medicaid residents because a nursing home affected by the adjustment loses reimbursement on each Medicaid resident in its facility. The low occupancy adjustment is illogical because it creates this disincentive to admit Medicaid residents. The adjustment is illogical because a facility attempting to increase its occupancy to escape the adjustment must admit two Medicaid-eligible individuals for every individual that is not Medicaid-eligible. Yet, each Medicaid-eligible patient causes the facility affected by this adjustment to lose more money. The effect, therefore, of this adjustment is that it actually and illogically hampers the facility's ability to increase its occupancy and ultimately escape the penalty. The Legislature has created five different diversion programs that are designed to divert people eligible for nursing home care from nursing homes to home- and community-based services. One of the major diversion projects has helped to reduce nursing home occupancies in Broward County. It has created a reduction in the overall need for nursing home beds in Broward County despite increasing population and, therefore, has created increased competition for nursing home residents among the nursing home community. The low occupancy adjustment forces nursing homes to recruit and retain residents in their facilities, contrary to the legislative intent enumerated in the various diversion statutes. The low occupancy adjustment illogically imposes a penalty based upon occupancy when the Legislature is actively creating programs designed to reduce nursing home occupancies. Nursing homes are required to provide minimum staffing hours to their residents. During the January 1 and the July 1, 2006, rate semesters, Manor Pines complied with those minimum staffing requirements. The costs, as stated in the direct care component of the January 1, 2006, rate sheets, accurately reflect the costs associated with complying with the minimum staffing requirements. The low occupancy adjustment has created a situation at Manor Pines where in order to meet the minimum staffing requirements, Manor Pines has had to reduce staff in other areas, has had to forego completing certain repairs brought on by recent hurricanes, and has cancelled numerous projects at the facility that were intended to improve and enhance the facility in the eyes of prospective nursing home residents, such as replacing crank beds with electric beds. The addition of new nursing home beds in Florida has been under a moratorium for years and will be for, minimally, four more years unless modified by law. Despite increasing population, there has been no corollary increase in nursing home residents. The statistics demonstrate the success of the legislative programs to divert residents from nursing homes, and they render the Agency's low occupancy adjustment a penalty, unsupported by reason.
The Issue As stated in the Prehearing Stipulation filed by the parties, the "issue to be litigated is whether Petitioner is entitled to a Superior or Standard rating on its license for the period September 1, 1986 through August 31, 1987"?
Findings Of Fact The Petitioner, The Magnolias Nursing and Convalescent Center, is a 210-bed nursing home located in a four-story building in Pensacola, Florida. It is licensed as a nursing home by the State of Florida pursuant to Chapter 400, Florida Statutes. Howard Bennett and his wife have been the owners of the Petitioner since it was built in 1978. On April 28-30, 1986, and May 1-2, 1986, the Department conducted an annual Licensure and Certification survey (hereinafter referred to as the "Annual Survey") of the Petitioner's nursing home as required by Section 400.23, Florida Statutes. Based upon the Annual Survey conducted by the Department, the Department determined that the Petitioner's facility failed to meet nursing home licensure requirement numbers (NH) 100 and 102, as identified on the Department's Nursing Home Licensure Survey Report, DHRS exhibit 2. The deficiencies found by the Department and which in fact existed during the Annual Survey relating to NH 100 and 102 were as follows: The charge nurse for each shift on each of the four floors of the facility is responsible, under direction from Director of Nursing, for the total nursing activities in the facility during each tour of duty. The charge nurses are thus responsible for ensuring that nursing personnel carry out the direct nursing care needs of specific patients and assist in carrying out these nursing care needs. This responsibility is not always met in that: On the day of the survey, there were urine odors noted on the halls, rooms of fourth and third floors, indicating lack of attention by nursing. Other instances of lack of personal attention by nursing on the above mentioned floor in that: One patient required oral hygiene. Fourteen residents required fingernail care, one resident's fingernails were long, thick, and black indicating a need for attention. Two residents had redden buttocks, three residents were wet, three residents needed shaving, three residents needed hair cuts. One resident needed colostomy bag changed. One resident had a small amount of feces on backside, and was not properly cleaned around the rectum and scrotum. Several residents had on clothing that was too tight, zippers open, buttons not fasten, soil wrinkled and threads hanging around the bottom. It is also noted, that there are 116 total care, and 17 self care residents in the facility indicating a need for constant intensive nursing care to the residents. Ref. 10D-29.108(3)(d)(1) Based upon the totality of these deficiencies, it was concluded that the Petitioner failed to comply with the standard of care to be provided by the charge nurse. The deficiencies cited by the Department during the Annual Survey were classified as Class III deficiencies. The Annual Survey was conducted by Christine Denson. Ms. Denson had conducted nine to ten annual surveys of the Petitioner prior to the survey which is the subject of this proceeding. During Ms. Denson's inspection of the Petitioner's nursing home, Ms. Denson pointed out the deficiencies which are noted above to the director of nursing who accompanied Ms. Denson during her inspection. Ms. Denson normally records in some manner the identity of a resident to whom a deficiency relates; by noting the room number or bed number. Ms. Denson did not follow this procedure during the Annual Survey. Ms. Denson met with Howard Bennett, the owner of the Petitioner, at the conclusion of the Annual Survey. After Ms. Denson had explained the deficiencies she had found during her inspection, Judge Bennett stated to Ms. Denson: "I know the place is going down hill. We are letting it slide. Judge Bennett did not ask Ms. Denson for any information concerning the identity of the residents to which deficiencies related. The Petitioner had policies in effect at the time of the Annual Survey which addressed each of the deficiencies cited by the Department. Those policies were not, however, followed. Ms. Denson did not know when the residents to which the deficiencies she found related had been admitted to the Petitioner, their medical condition, how long the fingernail problems had existed or how long the residents had resided at the Petitioner. Ms. Denson did not speak to the residents about the problems she noted, review their medical or dental records or talk to any residents' physician. Finally, Ms. Denson did not remember whether any of the residents were continent or incontinent. On August 13, 1986, a letter was issued by the Department informing the Petitioner that its license rating was being converted from a superior rating to a standard rating. The August 13, 1986, letter from the Department also indicated that the deficiencies noted in the Annual Survey had been corrected based upon a July 31, 1986, follow-up inspection conducted by the Department. The Petitioner requested an administrative hearing challenging the proposed rating of its license by letter dated September 24, 1986.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued assigning a standard rating on the Petitioner's license for the period September 1, 1986, through August 31, 1987. DONE and ENTERED this 19th day of October, 1988, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of October, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4182 The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Accentance or Reason for Rejection 1-3, 6-7, 81 These are matters included in the Prehearing Stipulation. They are hereby accepted. 4-5 Statement of the issue in this case 8 Not supported by the weight of the evidence. Ms. Denson testified at pages 48-49 of the transcript that whether a nursing home was considered to be out of compliance depended on the totality of the deficiencies and that she considered all of the deficiencies she found at the Petitioner's facility. 9 12. 10-11 10. 12-13 7. 14 Irrelevant. 15-16, 19-20, 22-23, 25, 29-31 10. 17 Hearsay. 18, 28, 33-34, 36-37, 39, 41-43, 45 Hereby accepted. 21, 24, 26-27, 32, 48, 54-66, 71, 73-77 These proposed findings of fact are generally true. They all involve, however, possible explanations for the deficiencies found at the Petitioner's facility. In order for these proposed findings of fact to be relevant it would have to be concluded that the Department had the burden of dispelling any and all possible explanations for the deficiencies. Such a conclusion would not be reasonable in this case. The Department presented testimony that the deficiencies cited existed and that, taken as a whole, they supported a conclusion that the Petitioner was not providing minimum nursing care. This evidence was credible and sufficient to meet the Department's burden of proof and to shift the burden to the Petitioner to provide proof of any explanations for the deficiencies. 35 9. 38, 40, 49-51, 53, 82-83, 86-87 Irrelevant and/or argument. 43-44 1. 46-47, 51, 56, 66-67, 71-71 These proposed findings of fact are true. They are not relevant to this proceeding, however, because they involve situations at the Petitioner's facility which may explain the deficiencies. The Petitioner failed to prove that they actually were the cause of any of the deficiencies. 70, 78-80, 84-85 Conclusions of law. The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 2-3. 2 11-12. 3 4 and 6. 4 4. 5-7 Irrelevant, summary of testimony, conclusion of law. 8 9. 9 8. 10 Irrelevant. 11 8. 12 Summary of testimony and facts relating to the weight of Ms. Mayo's testimony. 13-14 Hereby accepted. 15 Argument. 16-17 Conclusions of law. 18 4. 19-20 Conclusions of law, argument and irrelevant. COPIES FURNISHED: Jonathan S. Grout, Esquire Dempsey & Goldsmith, P.A. Post Office Box 10651 Tallahassee, Florida 32302 Michael O. Mathis Staff Attorney Office of Licensure and Certification Department of Health and Rehabilitative Services 2727 Mahan Drive Tallahassee, Florida 32308 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issues for consideration in these cases are: as to Case Number 00-3497, whether the Agency for Health Care Administration should impose an administrative fine against the Respondent's license to operate Beverly Savana Cay Manor, a nursing home in Lakeland; and, as to Case Number 00-2465, whether the Agency should issue a conditional license to the Respondent's facility effective April 28, 2000.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Agency for Health Care Administration, was the state agency in Florida responsible for the licensing of nursing homes and the regulation of the nursing home industry in this state. It is also the agency responsible for conducting surveys to monitor the compliance of nursing homes with the conditions of Medicare and Medicaid participation. Respondents, Beverly Savana Cay Manor, Inc., d/b/a Beverly Healthcare Lakeland, and Beverly Enterprises - Lakeland, are licensed by the Agency to operate a skilled nursing home at 1010 Carpenter's Way in Lakeland. On August 31, 1999, the Agency conducted an investigation into a complaint that Savana Cay had failed to provide sufficient nursing service and related services to allow residents to attain or maintain the highest practicable physical, mental, and psychosocial well-being as required by Federal rules governing Medicare and Medicaid. The Agency surveyor, Patricia Mills, observed several residents who did not have their call buttons within reach so that they could summon help if needed. Ms. Mills also talked with residents and family members and from these interviews determined that even when the resident could reach the call button and summon help, the response time was excessively long or, in some instances, the call went unheeded. This sometimes resulted in resident's suffering from the results of their incontinence because the staff did not timely respond to the help calls. Ms. Mills concluded, based on her extensive experience in surveying nursing homes, that the number of staff on duty was not sufficient to meet the residents' needs. It did not allow for the best possible well-being of the residents. Though the information related by Ms. Mills came from her interviews with residents and their families and was clearly hearsay testimony, it was admissible and considered as corroborative of her direct observation. The parties stipulated that a follow-up survey of the facility was conducted on October 13, 1999, at which time the deficiency described was deemed to have been timely corrected. The Respondent, by stipulation, does not concede the validity of this discrepancy on the August 19, 1999, survey, and the Agency does not rely on it to support the administrative fine sought to be imposed herein. Another survey of the facility was conducted by the Agency on April 26-28, 2000. On this occasion, surveyor Patricia Gold interviewed residents regarding the everyday life of the facility and reviewed resident council reports to follow up on any resident or family concerns which did not appear to have been addressed by the facility staff. During the resident interviews, Ms. Gold was advised that call lights were not answered in a timely fashion. In that connection, early on the morning of April 28, 2000, Ms. Gold observed a resident request a nurse to bring something to drink. The nurse was overheard to tell the resident the request would have to wait until she finished her report. Ms. Gold also noted on April 28, 2000, that dirty dishes were left uncollected over night in the facility common corridor and that one resident had two dirty trays left in the room. The dishes in the corridor were also seen by surveyors Donna Edwards and Marie Maisel. Based on their observations, the interviews, and the review of the council reports, the surveyors concluded that the staff on duty were insufficient in number. Another surveyor, Joanne Stewart, reviewed the resident files and medical reports of several of the residents and determined that in several cases the facility had failed to provide adequate supervision and assistive devices to prevent falls and inconsistently applied the interventions that were put in place. For example, Ms. Stewart observed Resident 12 on the floor at 2:40 p.m. on April 27, 2000. This resident, a cognitively impaired individual, had been placed in the facility from the hospital after he had sustained a fracture to his right hip and, at the time of the fall, still had staples in his hip. Ms. Stewart's review of the kardexes maintained by the certified nursing assistant (CNA) revealed there were no entries thereon indicating a need for special care to prevent this resident from falling. Although he was supposed to wear a tab alarm at all times, the facility staff knew the resident would periodically remove it, and when Ms. Stewart saw him prior to the fall, he was not wearing it. No other interventions, such as quick-release seat belts or Velcro belts, had been implemented to prevent his falls. It was just the kind of fall that he had which caused his placement in the facility and which gave rise to the need for supervision adequate to prevent further injury. He did not get the needed supervision. In fact, though the resident sustained a skin tear and bleeding of the arm as a result of the fall, the nurse who came to the scene of the fall went back to her desk and did some paperwork for between twenty and twenty-five minutes before the resident was provided any treatment for his injury. Ms. Stewart concluded the facility did not provide adequate supervision and assistance to Resident 12, and it is so found. Due to a cognitive impairment and an inability to ambulate due to an intracerebral hemorrhage, diabetes, and a cardio-vascular accident, Resident 9 was assessed at high risk for falls, and a determination was made that the resident should wear a tab alarm while in bed and in the wheelchair. During the course of her survey, Ms. Stewart observed this resident on several occasions without the tab alarm when she should have been wearing it. The resident had previously sustained falls, one of which occurred while the resident was on leave, on March 31 and April 1, 2000, but the only caveat on the CNA kardex for the resident was the caution not to leave her on the toilet alone. Ms. Stewart did not consider the supervision and assistance rendered Resident 9 to be adequate. It is so found. Ms. Edwards focused her review on the records of Resident 22 who was not at the facility at the time of the survey. The records indicated the resident had been assessed at a high risk for falls at the time of her admission and a tab alarm was used. However, according to the nurse's notes, on April 10, 2000, the alarm went off causing the resident to lose her balance and fall while in the merry walker. She lacerated her scalp and sustained a large swelling in the occipital area. The only fall assessment of this resident was done when she was admitted to the facility. The evidence does not indicate when this was, but presumably, it was not done timely. There is a requirement that fall assessments be done quarterly, but it cannot be determined when it was done here. Even when, on April 11, 2000, the day after the fall, the physical therapy staff re-screened this resident for a merry walker, no change in care notation was noted in her record or implemented. Resident 22 sustained another fall on April 16, 2000. On this occasion, the resident was found on the floor of the day room, out of the merry walker. There was no indication she was being supervised or monitored at the time of her fall. This time she sustained another head injury just above the old one. After this fall, the facility staff ordered a new merry walker even though there was no indication a different one would provide additional protection. The resident sustained a third fall on April 18, 2000, sustaining another injury to the head which resulted in substantial blood loss. As a result of this fall, she was taken to the hospital. Because of this, she was not present when the survey was done, but based on her review of the resident records, Ms. Edwards concluded that the facility did not provide sufficient supervision or assistive devices to this resident. During the period of the survey, Ms. Gold observed Resident 3 on five separate occasions. On none of them was the resident wearing a Tabs alarm even though the facility's care plan called for one to be used. A falls assessment had been started on the resident but not completed. The record also revealed that the resident fell on March 29, 2000, resulting in a skin tear to the right arm. Based on the above, Ms. Gold concluded that the resident was not provided with adequate care and assistive devices. Resident 10 was a resident with a history of falls both before and after admission to the facility. The resident's care plan called for chair alarms, a merry walker, a safety seat belt, a low bed, and a bike horn. Though Ms. Maisel, the surveyor, observed that the resident had a chair alarm, she did not see that any of the other interventions called for in the plan were provided. She did not ever see the resident with a merry walker, and on at least two occasions, she saw the resident when the chair alarm was not in use. In her opinion, the use of one intervention does not make the use of other interventions unnecessary, and she considers the facility's supervision and assistive device provision to be inadequate. Resident 4 was an individual who had sustained a hip fracture, was senile, and was taking pain medications. The resident required help in getting out of bed or a chair. The care plan for the resident called for the use of a Tabs alarm, but on none of the occasions that Ms. Stewart observed this resident was the tabs alarm in use. She considered the supervision and assistive devices provided by the facility to this resident to be inadequate. Respondent does not contest that the incidents cited by the Agency took place. Rather, it contends that the interventions implemented by it were sufficient. It also disputes the effectiveness of some interventions called for, specifically the Tabs alarms, suggesting that the alarm does not prevent falls and often contributes to them by startling the wearer. There is some evidence to support that claim. Respondent further contends that the safety provided by the use of an intervention device, such as the Tabs alarm, straps, bed rails, or the merry walker, restrictive as they are, must be weighed and evaluated against the loss of dignity of the resident caused by their use. It is also urged by the facility that the use of certain interventions such as Tabs alarms is made unnecessary when the resident is immobile and safety is provided by the use of other interventions such as bed rails, which are more pertinent to the condition of the resident. In the case of Resident 9, the failure to provide for the use of a Tabs alarm when the resident was on leave with her husband was off-set by the one-on-one supervision she received during that period. Respondent contends that falls will occur among residents of the type in issue here regardless of the planning to identify the risks of fall, the efforts made to prevent them, and the implementation and use of interventions designed to avoid them. While this may be so, the facility nonetheless has a duty to provide necessary and adequate supervision and assistive devices to minimize to the greatest extent possible, the risk of injury as the result of falls. In some cases, this was not done here. In support of its position, Respondent presented the testimony of Theresa Vogelspohl, a nursing home consultant and an agreed expert on falls, issues of the elderly, issues of care of the elderly, and nursing practices and standards in nursing homes. Ms. Vogelspohl indicated that as a general practice when patients are admitted to a nursing home they are considered at risk for falls until the facility staff gets to know them. Each facility sets its own standard as to the length of the observation period, during which the residents are studied for their gait and safety awareness. In addition, the residents are evaluated for safety awareness by the staff of the physical and occupational therapy departments. Ordinarily, the assessment includes only the minimum data set (MDS) criteria, but increasingly during the last few years, a separate falls assessment has become common. In addition to the initial assessment, the attending nurses do an independent admissions assessment, and Ms. Vogelspohl found that such an assessment process was followed as to each of the residents in issue here. Ms. Vogelspohl found that an incomplete falls assessment had been done on Resident 3. Based upon her own review of the resident's records, however, had the full assessment been completed, other than the fact that she was a new resident, the resident would have been classified as a low risk for falls. She opines that the failure to complete the falls assessment did not deny the resident any care or a care plan for falls. Ms. Vogelspohl determined that the facility had opted, instead, for a more cautious approach to this resident in the care plan which, in her opinion, was appropriate for a new admission. A care plan is a map for the staff to be made aware of the care being provided and the specific interventions pertinent to the resident. If the resident is at increased risk for falls, the care plan would list the interventions designed to decrease the risk of falls. One of the most significant risk factors for falls is increase in age. Others are disease conditions, medications, cognitive functioning levels, eyesight, and other impairments. The interventions available to a facility to address the issue of risk of falls depend upon the condition of the resident. The first consideration should be the need to maintain a safe physical environment for the resident. Appropriate footwear is important as is the availability of assistive devices such as a cane or walker. If the resident has a history of falls, consideration should be given to changing those factors which were related to the prior falls. Included in that is consideration of different seating or a more frequent toileting schedule. According to Ms. Vogelspohl, the last thing one would want to do is to apply physical restraint, but, if all else has failed, the least restrictive physical or chemical restraint may be necessary to decrease the likelihood of falls. Ms. Vogelspohl emphasizes that only the likelihood of falls can be reduced. It is not possible to prevent all falls. Room cleanliness is not something which should appear in a care plan. It is a given, and nurses know to place furniture in such a way and to reduce clutter to the extent that the resident can safely navigate the room either with a walker or a wheelchair. Obviously, in this case the survey staff concluded the placement of the dirty trays in the hallway and in the resident's room constituted a hazard. In Ms. Vogelspohl's opinion, supervision and monitoring of residents in a nursing home is a basic. That is generally the reason for the resident's being admitted in the first place. While they should be done on a routine basis, supervision and monitoring are still sometimes placed in a care plan, but the failure to have the requirements in black and white is not a discrepancy so long as the appropriate supervision and monitoring are accomplished. The residents most at risk for falls, and those who are the most difficult to manage, are those who have full physical functioning yet who have almost nonexistent cognitive functioning. Ms. Vogelspohl is of the opinion that for these residents, the best intervention is the merry walker. This is better than a regular walker because the resident cannot leave it behind. If the resident is one who falls from bed, then a low bed, with rails if appropriate, is the primary option. A low bed was called for for Resident 10 but was not provided. Ms. Vogelspohl does not have a high opinion of the Tabs alarm because it can cause as many falls as it prevents. It has a place with the cognitively aware resident who will sit back down if she or he hears the alarm sound. More often than not, however, the routine resident will automatically react by trying to get away from the noise, and, thus, be more likely to engage in rapid, impulsive behavior that can lead to a fall. Ms. Vogelspohl considers the use of the Tabs alarm as only one factor in assessing the degree of supervision provided. She looks at the care plan to see if the Tabs alarm even meets the needs of the resident. If the resident is cognitively alert and at no risk of falls, a Tabs alarm is not appropriate. There are other interventions which can be used such as quick release, velcro seat belts which better prevent falls because they provide a resistance when the resident attempts to stand up. To determine whether a care plan has been developed and implemented, Ms. Vogelspohl reviews the record. She looks at the nurse's notes and those of the social services personnel. She evaluates the records of the physical, occupational, and recreational therapy staff. Finally, she reads the resident's chart to see what staff is actually doing to implement the interventions called for in the care plan. However, on the issue of supervision, she does not expect the notes or the record to affirmatively reflect every incident of supervision. There is no standard of nursing practice that she is aware of that calls for that degree of record keeping. What she would expect to see is a record of any kind of unsafe behavior that was observed. By the same token, Ms. Vogelspohl would not expect a facility to document every time it placed an alarm unit on a resident. The units are applied and removed several times a day for bathing, clothing changes, incontinence care, and the like, and it would be unreasonable, she opines, to expect each change to be documented. Further, she considers it inappropriate and insulting to the resident to require him or her to wear an alarm when cognizant and not displaying any unsafe behavior. If a resident who is not cognitively impaired declines intervention, it would, in her opinion, be a violation of that resident's rights to put one on. In that regard, generally, interventions are noted in the resident records when initiated. Usually, however, they are not removed until the quarterly assessment, even though the intervention may be discontinued shortly after implementation. Ms. Vogelspohl took exception to Ms. Edwards' finding fault with the facility for the three falls experienced by Resident 22. The resident was under observation when the first fall occurred, but the staff member was not able to get to the resident quickly enough to catch her when she stood up and immediately toppled over in her merry walker. The resident had been properly assessed and proper interventions had been called for in the care plan. Ms. Vogelspohl attributes the fall to the resident's being frightened by the Tabs alarm going off when she stood up and believes she probably would not have fallen had she not had the tab unit on. The second fall took place while the resident got out of her marry walker in the day room. Though the day room was visible to anyone out in the hallway, the fall was not witnessed, but Ms. Vogelspohl is of the opinion that it is not reasonably possible to keep every resident under constant visual supervision unless an aide can be assigned on a one-on-one basis to every resident. On the third fall, which occurred at about 10 p.m., the staff had put the resident to bed and had put a Tabs unit on her at that time, but the resident had detached the unit and gotten out of bed. There was nothing the staff could do to prevent that. The resident was able to remove the unit no matter how it was affixed to her. Taken together, the actions taken by the facility with regard to this resident were, to Ms. Vogelspohl, appropriate. Some things could have been done differently, such as perhaps using a heavier merry walker, but she did not consider these matters as defects in the care plan, in assessment, in design, or in application. Further, she concluded that the actions taken by the facility subsequent to the first fall on April 10, 2000, wherein the resident's medications were adjusted to compensate for their effect on the resident, constituted a recognition of a change in the resident's condition which was properly addressed. Too much supervision becomes a dignity issue. There is no formula for determining how much supervision is adequate. It is a question of nursing discretion based on the individual resident. An unofficial standard in place within the industry calls for a resident to be checked on every two hours, but rarely will this be documented. Staff, mostly nurses and CNAs, are in and out of the residents' rooms on a regular basis, administering medications and giving treatments. Those visits are documented, but not every visit to a resident's room is. Resident 12, a relatively young man of 62 with several severe medical problems, sustained a fall which resulted in a fractured hip just two weeks after admission to the facility and two weeks before the survey. He was far more mobile than expected. According to the records, he was mostly cognitive intact and had been assessed for falls. As a result of this assessment, the facility developed a care plan to address his risk for falls. Implementation of the plan was difficult, however, because he was aware and could make up his own mind as to what interventions he would accept. As to the resident's April 27, 2000 fall, the only evidence in the file shows that he was found on the floor of his room in front of a straight chair, having sustained a small skin tear in addition to the fracture. From Ms. Vogelspohl's review of the record she could find no indication that the facility had failed to do something that it should have done to prevent the fall. The staff had put a Tabs alarm on the resident, and he removed it. They tried to keep his wheel chair as close to him as possible. They tried to restrict his water intake by giving him thickened liquids to reduce his trips to the rest room. He would pour out the thickened fluids and replace them with water. Because of this resident's mobility, Ms. Vogelspohl does not accept the surveyor's conclusion that the facility did not use Tabs alarms. He was able to get out of them by himself and frequently did. She is also of the opinion, in light of the way the resident behaved, that the blank kardex observed by the surveyor in no way contributed to the resident's fall. The CNA's were aware that the Tabs units were supposed to be used, and Ms. Vogelspohl has concluded that there were no more aggressive interventions that could have been used with this resident. To attempt the use of restraints, either belt or vest, would have been futile because he could have gotten out of them easily. The only other thing Ms. Vogelspohl feels could have been done was to put him in a geriatric psychiatric unit, and this was ultimately done, but not in the Respondent facility. Ms. Vogelpohl also addressed the surveyors' write- ups as they related to Residents 9, 4, 3, and 10. Resident 4 was bed-ridden as a result of Parkinson's Disease and did not need a Tabs alarm, the deficiency cited, while in bed. When seated in a wheel chair, his postural deficits were compensated for by lateral supports and a padded cushion, and she was of the opinion that a Tabs alarm was not required. She opines its absence would not have addressed his risk for falls. His January 2000 fall apparently did not relate to the failure to use a Tabs unit. Resident 3, also the subject of a write-up for failure to use a Tabs alarm, was not, in Ms. Vogelspohl's opinion, at risk for falls because she did not move around a lot due to her physical condition. Nonetheless, she experienced a fall in late March 2000 and shortly thereafter, the facility placed a Tabs alarm on her and made the appropriate entry in her care plan. Resident 9 was ambulatory only with assistance and had a special seating device to keep her in her wheel chair. After the resident sustained two falls close together, a Tabs alarm was placed on her, and from that time until the time of the survey she had no further falls. Ms. Vogelspohl contends that it was an appropriate nursing decision not to place a Tabs unit on her. The rationale for this position is not at all clear. The care plan for Resident 10, also one of the residents observed without a Tabs alarm in place, was described as "somewhat cluttered." It showed multiple interventions initiated as early as April 1999. The initial care plan was crossed through and a new one substituted in September 1999 with the family's concurrence. Nonetheless, Ms. Vogelspohl did not find it too cluttered to be understood. The evidence shows that the resident's chair was outfitted with a soft seat belt and a pressure-sensitive alarm, both of which are considered to be more effective than the Tabs alarm. Ms. Vogelspohl contends that the facility did not ignore the requirement to assess the residents for falls or the requirement to address that issue in care planning. She admits that in some cases, the plan addressing falls prevention was covered in another assessment than the one wherein it might most likely be expected, but it is her contention that if the subject is properly and thoroughly addressed somewhere in the resident's care record, that is sufficient. She considers placing it in several areas to be a redundancy and though it is frequently done so, it is done to meet a paper compliance without having any impact on the quality of care provided.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Agency for Health Care Administration enter a final order sustaining the Conditional license for the Respondent effective April 28, 2000, and, based only on the conditions observed at the facility on that date, imposing an administrative fine of $700.00. DONE AND ENTERED this 22nd day of March, 2001, in Tallahassee, Leon County, Florida. ___________________________________ ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of March, 2001. COPIES FURNISHED: Christine T. Messana, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 R. Davis Thomas, Jr., Qualified Representative Broad and Cassel 215 South Monroe Street, Suite 400 Post office Box 11300 Tallahassee, Florida 32302-1300 Sam Power, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building Three, Suite 3431 Tallahassee, Florida 32308 Julie Gallagher, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building Three, Suite 3431 Tallahassee, Florida 32308
The Issue The issue in these cases is whether Respondent failed to provide appropriate emergency care for a nursing home resident in respiratory distress in violation of 42 Code of Federal Regulation (CFR) Section 483.25 and Florida Administrative Code Rule 59A-4.1288. (All references to rules are to rules promulgated in the Florida Administrative Code in effect as of the date of this Recommended Order.)
Findings Of Fact Petitioner is the state agency responsible for licensing and regulating nursing homes inside the State of Florida. Respondent operates a licensed nursing home at 830 West 29th Street, Orlando, Florida (the facility). Petitioner conducted a complaint survey of the facility on September 14, 2001. The survey cited the facility for a deficiency described in F309, and rated the deficiency with a scope and severity of "G" and Class II, respectively. The deficiency classifications authorized in Subsection 400.23(8) range from Class I through Class IV. Class I deficiencies are not relevant to this case. The statute defines the remaining classifications as follows: A Class II deficiency is a deficiency that the agency determines has compromised the resident's ability to maintain or reach his or her highest practicable physical, mental, and psychosocial well-being, as defined by an accurate and comprehensive resident assessment, plan of care, and provision of services. . . . A Class III deficiency is a deficiency that the agency determines will result in no more than minimal physical, mental or psychosocial discomfort to the resident or has the potential to compromise the resident's ability to maintain or reach his or her highest practicable physical, mental, or psychosocial well-being as defined. . . . A Class IV deficiency is a deficiency that the agency determines has the potential for causing no more than a minor negative impact on the resident. . . . Rule 59A-4.1288 requires nursing home facilities licensed by the state of Florida to adhere to federal regulations found in Section 483 of the Code of Federal Regulations (CFR). In relevant part, Rule 59A-4.1288 provides: Nursing homes that participate in Title XVIII or XIX must follow certification rules and regulations found in 42 CFR 483, Requirements for Long Term Care Facilities, September 26, 1991, which is incorporated by reference. The "G" rating adopted by Petitioner for the scope and severity rating of the deficiency alleged in F309 is a rating authorized in relevant federal regulations. A "G" rating means that the alleged deficiency was isolated. Applicable state law authorizes Petitioner to change a facility's licensure rating from standard to conditional whenever Petitioner alleges that a Class II deficiency exists. Petitioner alleged in the survey report that a Class II deficiency existed at the facility and assigned a conditional rating to the facility's license. The conditional rating was effective September 14, 2001, and continued until substantial compliance was achieved. When Petitioner proves that a Class II deficiency exists, applicable law authorizes Petitioner to impose a civil money penalty. Petitioner filed an Administrative Complaint against Respondent seeking to impose a fine of $2,500.00 and subsequently filed an Amended Administrative Complaint. The allegations on which both the change in license status to a conditional license and the proposed fine are based are set forth in F309. The deficiency alleged in F309 is set forth on CMS Form 2567, entitled "Statement of Deficiencies and Plan of Correction" (the 2567). The 2567 that Petitioner used to charge Respondent with the deficiency described in F309 involved only one resident. In order to protect this resident's privacy, the 2567, F309, the Transcript, and all pleadings refer to the resident as Resident 1. F309 alleges that the facility failed to satisfy the requirement of 42 C.F.R. Section 483.25. In relevant part, the federal regulation provides: Each resident must receive and the facility must provide the necessary care and services to attain or maintain the highest practicable physical, mental, or psychosocial well-being, in accordance with the comprehensive assessment and plan of care. Use F309 for quality of care deficiencies not covered by 483.25(a)-(m). F309 alleges that the facility failed to satisfy the requirement of 42 CFR Section 483.25 because: Based on interview and record review the facility neglected to provide appropriate emergency care for [Resident 1] in respiratory distress and failure. Petitioner promulgates an officially stated policy in written guidelines entitled the State Operations Manual (the Manual). The Manual states agency policy regarding the interpretation and application of the regulatory standards surveyors must enforce. The facility admitted Resident 1 to the pediatric long-term care unit on November 20, 2000. The admitting diagnosis was cerebral palsy, pneumonia and convulsions, a tracheostomy, and a gastrostomy. Resident 1 could breathe on her own and was being weaned from the trach. She could breathe through her nose at times. She was not on a ventilator but could breathe room air. At all times, Resident 1 was making respiratory effort. Resident 1 was on an apnea monitor. Resident 1 had three stomas. Stomas are the openings for the tracheostomy tube. Her throat structures were very frail. She had received numerous throat reconstructions. She had significant scar tissue and a granuloma at her stoma sites. A granuloma is a tumor-like growth. The granuloma was vascular, and the blood vessels were easily broken. Resident 1 was spastic as a result of her cerebral palsy. On September 7, 2001, at 2:50 a.m., Resident 1's apnea monitor alarm sounded. Staff immediately responded to find that Resident 1 had pulled out her tracheostomy tube and was bleeding profusely. Facility staff called 911 and notified the treating physician and the parents. An ambulance was dispatched to the facility at 2:51 a.m. on September 7, 2001. While awaiting the ambulance, the Registered Nurse on duty (RN) could not detect an apical or radial pulse. The RN did not administer CPR. Rather, the RN established an airway by successfully replacing the tracheostomy tube. Securing a patent airway was the first thing that the RN should have done for Resident 1 under the circumstances. No oxygen can be given without a patent airway. It was difficult for the RN to visualize the trach opening because of the profuse bleeding. The RN was able to tactilely reinsert the tube. Vital signs taken by the RN showed that Resident 1 was alive when EMT personnel arrived on the scene. CPR is not appropriate when vital signs are present. The ambulance and EMT personnel arrived shortly after the RN reinserted the trach tube. At 2:56 a.m., EMT personnel took over the care of Resident 1. EMT personnel worked on Resident 1 for 23 minutes before transporting her to the hospital. Resident 1 died at the hospital at 3:35 a.m., 38 minutes after the EMTs took responsibility for her care. EMT personnel generated EKG strips indicating that Resident 1's heart was beating at some point after they took over. Two sets of x-rays subsequently taken at the hospital substantiate that Resident 1 was alive when EMT personnel took over her care. EMT personnel removed the trach the nurse had inserted and replaced it with an endotracheal tube. Removing the trach eliminated the airway that the RN had established for Resident 1 before EMT personnel arrived. The endotracheal tube was 22 centimeters long and significantly longer and larger than the regular trach tube used for Resident 1. The physician's order for Resident 1 stated that nothing should go past 6 centimeters into Resident 1's trach. It took the EMTs three attempts to get the endotracheal tube placed. The EMTs should have hyperventilated Resident 1 before placing the endotracheal tube. They did not do so. The x-ray taken at 3:42 a.m. in the hospital, shows that the endotracheal tube was improperly positioned in Resident 1's lung. All steps taken by the RN were appropriate for Resident 1 under the circumstances. Petitioner failed to show a nexus between any act or omission by the facility and the harm to Resident 1. The care plan for Resident 1 called for suctioning of her tracheal tube. Care plans are to be followed under normal circumstances. Emergency procedures take precedence in critical situations. Suctioning for Resident 1 was appropriate under normal circumstances when she had a patent airway. If Resident 1 did not have an airway, the first priority is to establish an airway. The RN first established a patent airway for Resident 1. It would have been inappropriate for the RN to suction Resident 1 before establishing an airway because it would have sucked out the air remaining in Resident 1's lungs. Suctioning also could have caused a vasovagal response that could stop the heart and could have caused tissue damage. After the RN opened an airway for Resident 1, the next priority would have been for the RN to check for vital signs. The RN checked Resident 1's vital signs after opening an airway, and the vital signs showed that Resident 1 was alive when EMT personnel arrived on the scene. The presence of vital signs made it inappropriate for either the RN or EMT personnel to administer CPR. CPR is appropriate only in the absence of vital signs. When EMT personnel arrived, they continued the same procedure that the RN had followed. EMT first established an airway by removing the trach tube used by the RN and replaced it with an endotracheal tube. The resident had vital signs after placement of the trach and CPR was inappropriate. F282 relates to failure to implement a care plan. Respondent was not cited under F282. Petitioner stipulated in the Prehearing Stipulation that both the conditional license and fine were based on F309 alone.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent not guilty of the allegations in F309 and the Administrative Complaint, dismissing the Administrative Complaint, and changing Respondent's conditional license to a standard license effective September 4, 2001. DONE AND ENTERED this 6th day of September, 2002, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of September, 2002. COPIES FURNISHED: Michael P. Sasso, Esquire Agency for Health Care Administration 525 Mirror Lake Drive, Room 3106 St. Petersburg, Florida 33701 Karen L. Goldsmith, Esquire Goldsmith, Grout & Lewis, P.A. Post Office Box 2011 2180 Park Avenue, North Suite 100 Winter Park, Florida 32790-2011 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 William Roberts, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building Three, Suite 3431 Tallahassee, Florida 32308 Rhonda M. Medows, M.D., Secretary Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building Three, Suite 3116 Tallahassee, Florida 32308
The Issue The issue in this case is whether the nursing home facility previously owned and operated by Beverly Health and Rehab Fort Pierce, and later owned and operated by Fort Pierce Health Care, ("Nursing Home") was entitled to a standard license during a period in which the Agency for Health Care Administration ("AHCA") assigned it a conditional license.
Findings Of Fact Stipulated and admitted facts Beverly Health and Rehab Fort Pierce operated a skilled nursing facility located at 611 S. 13th Street, Fort Pierce Florida, until November 30, 2001. Fort Pierce Health Care is an entity unrelated to Beverly Health and Rehab Fort Pierce that purchased the facility on November 30, 2001, and has operated it since that date. At all times material to this case, both Beverly Health and Rehab Fort Pierce and Fort Pierce Health Care have been licensed by the State of Florida to operate the subject nursing home pursuant to Chapter 400, Part II, Florida Statutes. The AHCA completed a survey of the nursing home on November 8, 2001. At the conclusion of the survey, the ACHA alleged, relevant to the matters at issue in this case, that there were three separate Class II violations of 42 Code of Federal Regulations Sections 483.15(e)(i), 483.20(k)(3)(i), and 483.25(c). The AHCA filed an Administrative Complaint in this matter which sets forth the factual allegations upon which the ACHA reached the conclusion that there were three Class II deficiencies. Based upon the identification of the Class II deficiencies, the AHCA issued a Notice of Intent to Change Beverly Health and Rehab Fort Pierce's licensure rating from Standard to Conditional, effective November 8, 2001. The AHCA issued Fort Pierce Health Care a Conditional license rating on November 30, 2001, when operation of the facility was transferred. Fort Pierce Health Care timely filed a petition challenging AHCA's intent to assign it a Conditional rating. AHCA changed Fort Pierce Health Care's Conditional licensure rating to Standard, effective December 13, 2001. Facts about call bells During the survey of the subject nursing home facility in November of 2001, a group interview of residents was held on November 6, 2001. Eleven residents participated in the group interview. Nine of the eleven residents participating in the group interview reported to the surveyors that sometimes it can take more than one hour for call bells to be answered. Five of the residents participating in the group interview said that on some occasions they had been incontinent because they could not wait an hour to be helped into the bathroom. One of the residents participating in the group interview has a roommate who has a colostomy. The bag sometimes breaks and comes away from the stoma. On such occasions both roommates will ring their call bells. On several occasions it has taken more than an hour for help to come. During that same group interview, nine of eleven residents participating in the interview stated that their call bells are often not in reach. This can be because the nursing home staff fails to put the call bells within reach, or because the call bells fall on the floor or fall behind the bed. During a tour of the nursing home facility on November 5, 2001, it was observed that the call bells were either on the floor, behind the bed, and/or out of reach of the residents in sixteen of the rooms inspected. Facts about long toenails During the survey of the subject facility during November of 2001, Resident 15 told one of the surveyors that upon admission to the subject facility the resident had requested the staff of the nursing home to arrange for a podiatrist to come cut the resident's toenails. The resident's toenails are all very long and needed to be cut. The resident's physical condition was such that he/she could not cut his/her toenails, and because the resident suffered from diabetes, it was necessary to have the toenails cut by a podiatrist. During the course of the survey the records of the facility did not document any effort to obtain the services of a podiatrist for Resident 15. At the time of the survey in November of 2001, all of Resident 15's toenails were thick, were approximately two inches long (measuring for where the nail changes color from pink to white), and were curving around the tips of the toes. The evidence was inconclusive as to whether the length and shape of the toenails interfered with Resident 15's ability to walk or to perform any other activities of daily life. Facts about order for oxygen On October 30, 2001, a physician wrote an order for oxygen to be delivered through a tracheal collar to Resident 23. On November 5, 2001, during the AHCA survey of the subject nursing home, one of the survey team members observed that for a period of approximately ten or fifteen minutes Resident 23 was not wearing his tracheal collar and, therefore, was not receiving the oxygen ordered by his physician. When the matter was brought to the attention of nursing home staff, the tracheal collar was placed on Resident 23 and he once again received the oxygen ordered by his physician. There is no persuasive evidence in the record as to whether Resident 23 did or did not suffer any harm as a result of not having his oxygen equipment in place during the time period observed by the survey team member. Similarly, there is no persuasive evidence in the record as to why Resident 23 was not wearing his tracheal collar when he was first observed by a member of the survey team. Facts about physician order for Foley catheter Resident 18 suffered from, among other things, urinary and bowel incontinence. Because of those conditions he wore incontinence briefs. On October 17, 2001, his physician wrote an order for a Foley catheter to be inserted in Resident 18. The purpose of the Foley catheter was preventative--to reduce the risks of infection and to prevent or reduce the likelihood of the development of pressure sores. At the time the order for the Foley catheter was written, Resident 18 did not have any pressure sores.3 Upon receipt of the physician's order for a Foley catheter for Resident 18, a facility nurse attempted to insert the catheter into Resident 18. The nurse was unsuccessful in her efforts because Resident 18 appeared to have an obstruction that made it impossible for her to complete the task. In that situation, good nursing practice requires the nurse to cease efforts to insert the catheter and to contact the Resident's physician, which she did. The physician then directed the nurse to schedule an appointment with a urologist so that the urologist could insert the Foley catheter. Following some delays due to the unavailability of the urologist originally suggested by the resident's physician, an appointment was made to have a urologist insert the Foley catheter in Resident 18. The urologist was unsuccessful the first time he saw Resident 18, but a few days later, on November 12, 2001, the urologist successful inserted the catheter. The physician who originally ordered the insertion of the catheter was kept advised of the status of efforts to accomplish what he had ordered. The physician clarified that the insertion of the Foley catheter was not an emergency matter and that there was no urgency in having the catheter inserted. The physician was satisfied with the action taken by the nursing home staff in response to his order regarding the catheter and was of the opinion that the action taken by the nursing home staff in that regard constituted a timely and appropriate response to what he had ordered. Resident 18 did not suffer any harm as a result of the delays in inserting the Foley catheter. Facts about pressure sores During the course of the survey of the nursing home facility in November of 2001, one of the survey team members observed that Resident 18 had what appeared to the survey team member to be pressure sores high on the back of each thigh, at about the area where the upper thighs meet the lower part of the buttocks. These sores were at approximately the location where the resident's upper thighs would rub against the edges of the incontinent briefs worn by the resident. Wound care notes maintained by the nursing home facility stated that Resident 18 developed a Stage II pressure sore on the right back thigh on October 24, 2001, and a Stage II pressure sore on the left back thigh on October 30, 2001. The wound care notes also indicated that Resident 18 did not have any similar wounds prior to October 24, 2001. The wound care nurse who prepared the notes regarding the two Stage II pressure sores has since had second thoughts about the matter. The wound care nurse is now of the view that the wounds she saw on October 24 and 30 of 2001 and described at that time as pressure sores were in fact bullous pemphigoid sores. At certain stages of the development of bullous pemphigoid sores and pressure sores, it is easy to mistake one for the other. The wound care nurse also clarified in her testimony that the two wounds she observed on the backs of Resident 18's thighs were not located over a bony prominence. Review of the clinical record for Resident 18 reveals that the resident was admitted to the facility with the following diagnoses: Alzheimer's Disease, hypertension, and bullous pemphigoid. Physician notes regarding Resident 18 prepared on October 17, 2001, note the presence of "decubitus ulcers to perineal groin and genital areas." The physician who prepared the notes regarding the "decubitus ulcers" also has since had second thoughts about the matter. The physician is now of the view that the wounds he saw on October 17, 2001, and described as "decubitus ulcers" were in fact bullous pemphigoid sores. The physician agrees with the wound care nurse that at certain stages of the development of bullous pemphigoid sores and pressure sores, it is easy to mistake one for the other. The physician also clarified in his testimony that the two wounds he observed on October 17, 2001, were not located over a bony prominence. The AHCA has prepared a manual to be used when its employees are conducting surveys of nursing home facilities. That manual includes the following definition: "Pressure sore" means ischemic ulceration and/or necrosis of tissue overlying a bony prominence that has been subjected to pressure, friction or shear. The staging system presented below is one method of describing the extent of tissue damage in the pressure sore.
Recommendation On the basis of the foregoing findings of fact and and conclusions of law, it is RECOMMENDED that the AHCA issue a Final Order in this case to the following effect: Concluding that the violations alleged in Count I regarding the location of and the responses to call bells have been proved by the preponderance of the competent substantial evidence and that those violations are Class II deficiencies; Concluding that the violation alleged in Count I regarding long toenails is, at most, a Class III deficiency; Concluding that the violation alleged in Count II regarding providing oxygen to a resident is, at most, a Class III deficiency; Concluding that the violation alleged in Count II regarding insertion of a Foley catheter should be dismissed for lack of persuasive competent substantial evidence; Concluding that the violation alleged in Count III regarding pressure sores on a resident should be dismissed for lack of persuasive competent substantial evidence; and Concluding that the violations described in subparagraph (a), above, provide a sufficient basis for the issuance of a Conditional license to the Nursing Home from November 8, 2001, until December 13, 2001. DONE AND ENTERED this 3rd day of March, 2003, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 3rd day of March, 2003.
