The Issue Whether Responded violated Subsections 464.018(1)(n) and 464.204(1)(b), Florida Statutes (2002), and, if so, what discipline should be imposed.
Findings Of Fact The Department is the state agency charged with the responsibility of regulating the practice of certified nursing assistants pursuant to Section 20.43 and Chapters 456 and 464, Florida Statutes (2004). Bonhomme is a certified nursing assistant (C.N.A.) licensed by the Department under Certificate No. CX 1100000012785. The incident at issue in this proceeding took place on April 21, 2003, when Bonhomme was employed as a C.N.A. at Imperial Health Care Center (Imperial), where E.O. was a resident. Nicole Joseph (Joseph), a C.N.A., was assigned to care for E.O. E.O. spends a good deal of her time sitting in a wheelchair at the nurses' station in "A" Hall. E.O. speaks very little English, and communicates mostly in German. When she needs to go to the restroom, she will usually yell, "Hello," and the C.N.A. will come and get her, take her to the restroom, and assist her in using the facilities. On April 21, 2003, E.O. indicated that she needed to use the restroom, and a nurse paged Joseph to come and get E.O. Joseph was busy assisting another resident when the page was made, and Bonhomme took up the task of taking E.O. to the restroom. Bonhomme began to wheel E.O. down the hall towards E.O.'s room. Joseph came out of the other resident's room and followed Bonhomme and E.O. into E.O.'s room. While Bonhomme was taking E.O. to her room, Bonhomme would shake E.O.'s wheelchair from side to side, upsetting E.O. and causing her to scream in German. When they were inside E.O.'s room, Joseph began to remove the foot plates from the wheelchair so that E.O. could access the toilet from the wheelchair. E.O., still upset, began to kick Joseph. E.O. carries a small red pocketbook containing pens, pencils, and paper. She uses the writing materials to assist in communicating with others who do not speak German. E.O. becomes very upset when anyone touches her pocketbook. Joseph wheeled E.O. into the bathroom and placed E.O.'s pocketbook on top of the toilet. Bonhomme took the pocketbook and threw it on the floor. Her actions upset E.O., who began to scream. Joseph took the pocketbook and replaced it on the toilet tank top. Again Bonhomme took the pocketbook and threw it on the floor. Joseph picked up the pocketbook and placed it on E.O.'s bed within E.O.'s sight. After Joseph placed the pocketbook on the bed, E.O. began to calm down. Joseph got E.O. situated on the toilet and returned to another resident's room to assist that resident, leaving Bonhomme in the bathroom with E.O. Finemy Cange (Cange), a C.N.A. employed by Imperial, was caring for a resident in the room across the hall from E.O.'s room. Cange saw Bonhomme take E.O. into her room and later heard E.O. screaming in her bathroom. Cange went to the storage room to get a nightgown for a resident. On returning from the storage room, she continued to hear E.O. yelling. Cange, carrying the nightgown, and another C.N.A., Catherine George, went into E.O.'s room. Cange found Bonhomme standing in front of E.O. in the bathroom, making faces at E.O. This was upsetting to E.O. Bonhomme took a rubber glove that was in the bathroom, filled it with water, and bounced it on E.O.'s head. E.O., still seated on the toilet, became more upset and continued to yell. Cange told Bonhomme that placing the glove on E.O.'s head was not funny. Bonhomme quit bouncing the glove on E.O.'s head and placed the glove in the sink. Joseph, who was assisting another resident, heard E.O.'s continued screaming. She left the other resident and returned to E.O.'s room. She saw Bonhomme with the water-filled glove, but did not know that Bonhomme had bounced it on E.O.'s head. Next Bonhomme took the nightgown from Cange, threw it on E.O.'s head and turned out the lights. Cange turned the lights back on. At this juncture, Joseph told Bonhomme to leave. Joseph got E.O. off the toilet, dressed her and returned her to the nurses' station, where she left her. E.O. was visibly upset. She was pointing to her head, crying, and talking in German. The nurse at the nurses' station contacted Suzanne Salyer (Salyer), the director of nursing at Imperial. Salyer questioned Bonhomme and Joseph, but they denied anything happened. Both C.N.A.'s were suspended pending an investigation. The following morning Joseph went to Salyer and told her what happened. Salyer is a registered nurse and is qualified as an expert in nursing and the duties and responsibilities of C.N.A.'s. It is her expert opinion that C.N.A.'s should take care of the residents as if they were family and that placing a nightgown on a resident's head, placing a water-filled glove on a resident's head, and turning off the light after placing the nightgown on the resident's head are actions which fall below the minimal standards of acceptable and prevailing nursing practices. Bonhomme was aware that the actions were prohibited. When she began working at Imperial, she signed a Resident's Rights Agreement that provided that a resident has the right "[t]o be free from verbal, physical or mental abuse, corporal punishment and involuntary seclusion." Bonhomme has not had her certificate disciplined prior to this proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Louvedor Bonhomme violated Subsection 464.204(1)(b), Florida Statutes (2002), by violating Subsection 464.018(1)(n), Florida Statutes (2002); imposing an administrative fine of $100; requiring Louvedor to attend continuing education classes as specified by the Board of Nursing; and placing Respondent on probation for two years under conditions as specified by the Board of Nursing. DONE AND ENTERED this 6th day of December, 2004, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 December, 2004.
The Issue Did Respondent, TR & SNF, Inc., d/b/a The Nursing Center at University Village (TR & SNF), violate requirements to demonstrate the financial ability to operate in accordance with statutes and rules? If so, what penalty should be imposed? (Count I) Did TR & SNF violate requirements to report changes in the administrator or manager of its licensed facility? If so, what penalty should be imposed? (Count II) Did TR & SNF, by committing the offenses charged in Counts I and II, commit violations that support revocation of its nursing home license? (Count III)
Findings Of Fact The Parties The Agency is the State regulatory authority responsible for licensing nursing homes and enforcing applicable federal regulations, state statutes, and rules governing skilled nursing facilities pursuant to the Omnibus Reconciliation Act of 1987, Title IV, Subtitle C (as amended), Chapters 400, Part II, and 408, Part II, Florida Statutes, and Florida Administrative Code Chapter 59A-4. At all times material to this proceeding, TR & SNF was a licensed nursing facility in Tampa, Florida, under the licensing authority of the Agency. TR & SNF does business as The Nursing Center at University Village. It is and was required to comply with all applicable rules and statutes. Reporting Changes in Management The ownership, control, and management of TR & SNF are intertwined with that of a 446-bed assisted living facility and 46 villas located on a campus with TR & SNF and the assisted living facility. The aggregate is sometimes called University Village and operated as a continuing care community. The shifting roles of various landlords of the properties and the management of them cloud the operations of TR & SNF and the related facilities. Westport Holdings, Tampa, LP, owns 446 assisted living units. Westport Holdings Tampa, II, LP, owns 46 villas. Westport Nursing, Tampa, LLC (Westport Nursing), owns the nursing home. BVM University Village, LLC, owns 40 percent of Westport Nursing. Compliance Concepts, LLC, is the managing member of BVM University Village, LLC. Rebecca Bartle, wife of John Bartle, is the sole member of Compliance Concepts, LLC, and the managing member of BVM University Village, LLC. TR & SNF leases the nursing home from Westport Nursing. BVM guarantees about $25,000,000 of Westport Nursing’s debt. John and Rebecca Bartle are key actors in all of these various companies and shift in and out of roles. For example, a March 15, 2015, letter from Mr. Bartle identified him as “John Bartle, Board Member, TR & SNF, Inc., Tampa.” The next day, Mr. Bartle sent the Agency an email identifying him as “Director, Senior Housing Division,” with an Indiana address and the website http://bvmmanagement.com. The April 9, 2015, letter transmitting a proof of financial ability filing identifies Mr. Bartle as Board Chairman, TR & SNF. On July 1, 2014, BVM Management, Inc., TR & SNF, Inc., and TALF, Inc. (the assisted living facility), signed a Corporate Administration Agreement with BVM Management, Inc. The agreement recites that TR & SNF and TALF, Inc., acquired University Village Inn and Health Center. It states that they wished to have BVM Management, Inc., provide corporate governance functions and that BVM Management had experienced personnel to provide the governance functions. The Agreement states that BVM Management shall provide the following services to University Village Inn and Health Center: Coordination and formulation of strategic plans and goals for the Owners, including making recommendations to the Board of Directors concerning changes in key personnel, vendors, and appropriate plans of action and responses to strategic opportunities and changes in the senior care industry; Review and an analysis of financial and operating information of each of the Owners’ properties, including preparing and reviewing financial statements, operating reports and other financial data of each of the Owners’ businesses; Periodic meetings with each representative Owner to review the performance of each of the Owners’ businesses, including financial and operational status of each facility; Visits to each facility on a regular basis; Periodic review of operations of each facility, employee staffing and quality of care and the maintenance and repair of each facility and communicate with the Owners as such observations are made regarding same; Review all operating and capital budgets proposed by Owners, discussing and negotiating same and communicating with Owners and others regarding same; Reviewing periodic “Statement of Deficiencies” and making recommendations for any “Plan of Correction” to be filed with state or federal agencies; Monitoring and overseeing each Owner’ compliance with covenants and financial obligations as set forth in various loan agreements; Coordination and implementation of consolidated programs involving each Owner dealing with workmen’s compensation, claims, other insurance as required and assisting in negotiation with current Collective Bargaining Agreement (CBA); Coordination of relationships with lenders and lenders’ agents that may request information from time to time; Assistance in the recruitment of key employees of the Owners business; Review of performance and outside professionals on behalf of Owners, including legal counsel, auditors and insurance consultants; Review of performance of all duties of Owners [sic] business in order to insure that Owners are in compliance with all local, state and federal regulations. It also limits BVM Management’s responsibilities. The limits are: The Parties agree that the responsibility for the development, renovation, operation and management of the day-to-day business of the Owners is the responsibility of the Owners. Owners have employed qualified personnel, licensed in the state of Florida, in order for the Owners’ businesses to remain in compliance with local, state, and federal regulation. The Agreement says that BMV Management will be paid for its services. The Agreement does not say how much BMV Management will be paid or how payment will be determined. Mr. Bartle signed the agreement on behalf of TR & SNF. The Agency contends that the terms of the agreement effectively mean that officers and employees of BMV Management including Mr. Bartle, Robert Rinerd, Dana Huth, Jeffery Wendell, and Sandy Guion provided management and supervision to TR & SNF. The Agency argues that TR & SNF should therefore have reported their involvement. Karen Northover became the health facility administrator for TR & SNF on October 27, 2014. At some point in 2015, a company called NOVUM contracted to provide TR & SNF administrative services. A NOVUM partner, Janet Balsely, became the health facility administrator for TR & SNF. The Agency contends that TR & SNF did not report either change in health facility administrators to it. The Agency did not prove by clear and convincing evidence that TR & SNF did not give notice of management by Ms. Northover, Ms. Balsely, or the assorted BVM companies, officers, and employees. The closest it came was Mr. Hudson, unit manager for the Agency’s long-term care unit since 2008. When asked if he ever received notification from TR & SNF that it had changed management he stated: “No, I don’t believe so.” (TR- 37, lines 8-12). The record does not show that Mr. Hudson was the person who would receive notice or that he had reviewed records and determined that there were no notifications. The Agency contends, understandably, that Mr. Bartle’s involvement and shifting, uncertain roles make him a manager whose involvement should have been reported. The Agency failed to provide clear and convincing evidence showing TR & SNF did not advise the Agency that Mr. Bartle was a manager. The record on this issue has the same failings as described in paragraph 15. Similarly the Agency did not offer evidence tending to prove that TR & SNF had not reported employees or officers of BVM Management as managers of TR & SNF. The Agency’s proposed recommended order highlights this failure of proof. Paragraphs 20 and 30 of the Agency’s proposed recommended order proposed finding that TR & SNF had not reported to the Agency that it had contracted with a new management company. The proposed findings do not cite to the record. Proof of Financial Ability In early February of 2015, Florida’s Office of Insurance Regulation (Insurance Regulation) drew the Agency’s attention to University Village and the health care facilities that comprise it. Insurance Regulation employees told Bernard Hudson, manager of the Agency’s Long Term Care Unit, about information they had that raised concerns about the financial stability of TR & SNF. Mr. Hudson investigated the issue. Later, Insurance Regulation provided a copy of its Initial Order of Suspension in Case No. 168-243-15, issued February 13, 2015, suspending the Certificate of Authority for Westport Holdings, Tampa, LP, d/b/a University Village, to operate a continuing care community under chapter 651, Florida Statutes. The suspension order asserts that John Bartle exercised control over the management and operations of University Village, that John Bartle and Rebecca Bartle refused to allow investigators access to key employees, that University Village (which includes TR & SNF) had underfunded the required minimum financial reserves by $370,324, and that University Village had unlawfully encumbered the reserves that it did have. This was sufficient evidence of the financial instability of TR & SNF to support a decision to request proof of financial ability. The Agency sent Katherine Benjamin to survey TR & SNF on February 23, 2015. Ms. Benjamin conducted a thorough investigation, reviewed financial records and other documents, interviewed employees, inspected supplies, and interviewed employees. She returned with 87 pages of documents identified as aged accounts payable. The Agency did not offer evidence about when, how, or by whom these records were created, how current they were, the source of the information in them or the duties of the individuals creating the records. Before the survey, on February 17, 2015, Mr. Hudson, sent a certified letter addressed to the administrator of The Nursing Center at University Village (TR & SNF). The letter reminded TR & SNF of its duty to provide the Agency proof of financial ability to operate at any time if there was evidence of financial instability. The letter demanded that TR & SNF complete and return a “Proof of Financial Ability Form that includes a balance sheet and income and expense statement for the next 2 years of operation which provide evidence of having sufficient assets, credit, and projected revenues to cover liabilities and expenses.” It directed TR & SNF to forward the completed form no later than March 3, 2015. On March 3, 2015, Mr. Bartle sent Mr. Hudson a letter on TR & SNF, Inc., stationery stonewalling the request. The failure to comprehend that the Agency was different from the Insurance Regulation, the dismissive tone, and the intransigence of the letter make quoting it instructive. The Provider, The Nursing Center of University Village, is in receipt of your letter dated February 17, 2015. Please be advised this Provider operates under Florida Statute 651 [continuing care retirement community regulation by the Office of Insurance Regulation], and its certificate holder number is 88104. Recent communications with representatives of your office have shown that there exists over $5,900,000 in liquid reserves deposited in institutions pursuant to Florida Statute 651 and related sections. Additionally, representatives of AHCA provided an on-site visit in December 2014, alleging there were financial issues that would provide some concern for AHCA, however, those allegations were unsubstantiated and resulted in “no findings.” Your letter to the Provider refers to “a recent review of documents provided to the agency warrants a more thorough review of the facility’s financial ability to continue operations.” In an effort to clarify the agency’s concerns, please provide copies of the documents your agency believe are causing any degree of concern. The residents at the Provider’s location have not been deprived of any service or product that is specified under Florida statute 408.810(8). All services, supplies and other expenses necessary to provide “a basic level of service” has [sic] been provided to all residents of the Nursing Center at University Village. In an effort to expeditiously review “documents provided by the agency” please forward those documents to: Jeffrey Wendel, Controller, and P.O. Box 501188, Indianapolis, IN 46250. If there are any further questions regarding this certificate holder and the location of its minimum liquidity reserve (MLR) please direct those inquiries to Mr. Wendel as well. Thank you for your concern, hopefully after review of the certificate holder’s identification number your office will find the liquidity to be sufficient. Mr. Bartle signed the letter “Board Member, TR & SNF.” It shows copies to Jeffery Wendel, Controller, and Anna Small, Esquire. The letter does not request an extension of time to supply the requested information. Mr. Bartle denies writing the letter and any knowledge of it being sent. The next day Mr. Bartle sent Mr. Hudson an email saying he had just learned of the March 3 letter. Mr. Bartle’s email says he thinks a lawyer wrote it and someone, unknown to him, signed and sent it because they thought “that there was something ‘urgent’ about the March 3, 2015, date.” TR & SNF did not provide evidence showing who authored or signed the March 3 letter. The email goes on to say: “I did ‘not’ sign the letter, and do not agree with some of the statements made in that letter.” This careful, conditioned statement leaves open the likelihood that Mr. Bartle approved the letter and agrees with many of its statements. The email apologizes for the March 3, 2015, letter and states that Mr. Bartle had engaged an accounting firm to complete the form and provide the requested documents. The letter does not request an extension of time or say when TR & SNF would provide the completed form. The last sentence of the letter states: “I will confirm with you when CLA [the accounting firm] can turn over the PFA [proof of financial ability] to your Agency tomorrow.” There is no evidence that Mr. Bartle fulfilled that pledge. The email identifies Mr. Bartle, as “Director Senior Housing Division.” It has a website address of http://bvmmanagement.com. The letter and the email reveal Mr. Bartle’s view that deadlines established by regulatory authorities performing the duties imposed on them for the protection of the public by the Legislature are not significant. This disregard, if not disdain, for the statutes and rules governing nursing home services and the enforcement of them is patent in the letter and e-mail, Mr. Bartle’s dismissive testimony about the shifting relationships of the various entities, his demeanor when testifying, and his evasive manner of answering questions when testifying. For these reasons, Mr. Bartle’s denial of the March 3 letter and much of his uncorroborated testimony are not accepted as credible. On March 11, 2015, the Agency issued its Administrative Complaint. On April 1, 2015, TR & SNF requested a formal administrative hearing. TR & SNF submitted its proof of financial ability sometime after April 9, 2015. By the time TR & SNF provided the document, the Administrative Complaint had issued and TR & SNF had requested a hearing to challenge it. On April 23, 2015, Everett Broussard of the Agency sent Mr. Hudson an interoffice memorandum providing “staff requests [for] additional documentation and/or correction of errors and omissions to the initial response (listed below).” The memorandum does not identify Mr. Broussard’s position or provide any information about his qualifications to conduct financial reviews. The Agency chose not to offer testimony from Mr. Broussard or any other witness about an analysis of the document provided by TR & SNF. The Agency did not seek further information from TR & SNF.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Agency enter a final order imposing an administrative fine in the amount of $10,000 and revoking the license of TR & SNF, Inc. DONE AND ENTERED this 31st day of May, 2016, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of May, 2016.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that the Respondent, Nancy Drennen, receive a letter of reprimand. In making this recommendation, the Hearing Officer specifically considers the outstanding comments made about the Respondent by her Dr. Roberts and her coworkers, the fact that she has been employed as an OH nurse since January of 1979, performing her duties without complaint or incident, and the fact that the complaint was filed against her so long after the incident that it truly diminished the Respondent's ability to defend herself. DONE and ORDERED this 29th day of May, 1980, In Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
Findings Of Fact The Respondent is a registered nurse who began her employment at South Lake Memorial Hospital on August 29, 1977, and was terminated on April 23, 1980. During her employment, the Respondent received four poor evaluations and/or warnings for her nursing practice. The first warning occurred on August 1, 1979. This warning involved allegations of poor nursing performance by the Respondent. These allegations included the Respondent leaving her unit, failing to properly organize her work, failing to properly restrain a patient, wasting time by running too many EGG strips instead of performing her assigned functions, failing to take vital signs timely when coming onto shift, becoming hostile with the Director of Nursing, and failing to obey the direct order of the Director of Nursing to leave the hospital and go home after an argument on July 12, 1979. Although there was no direct evidence as to most of the allegations, the Respondent admitted to late charting, failing to timely take vital signs, spending time working with ECG strips, and failing to obey a direct order to-go home given by the Director of Nursing. The next evaluation occurred on November 26, 1979. The deficiencies in Respondent's practice as alleged by the Director of Nursing were that the Respondent gave a patient whole blood instead of packed cells as ordered by the physician, failed to verify an error in transcription by the ward clerk which resulted in a patient's x-rays being delayed for a day, and improperly charting when the Respondent noted on the nursing notes that at 9:00 p.m. there was no significant change in a patient's condition, when in fact the patient had left the hospital at 8:30 p.m. The lack of direct evidence of these allegations was compensated for by the Respondent's admissions as she testified concerning the circumstances surrounding why the incidents occurred. The third warning occurred on March 19, 1980. The allegations in the warning concerned the Respondent having shouted at a supervisor, abandoning her patients, allowing two I.V.s to run dry, failing to carry out a doctor's orders, and failing to chart. Again, there was no direct evidence of the allegations, however, the Respondent admitted that she left her duty station because of sickness prior to relief arriving in the unit, failed to properly follow doctor's orders, and failed to chart for the time she was present in the unit prior to her reporting to the emergency room. The fourth and final warning, which resulted in termination, occurred on April 23, 1980. The allegations by the Director of Nursing were that the Respondent hung one-fourth percent normal saline solution rather than the one- half percent normal saline solution ordered by the physician, and that the Respondent failed to administer the 5:00 p.m. medication. Again, the allegations were admitted by the Respondent as she attempted to explain why they occurred. The Director of Nursing testified that during each of these warnings, the Respondent's attitude was that she had done nothing wrong and, therefore, could not improve on her performance. The testimony of the Department's nurse investigator was to the effect that the Respondent's actions failed to meet the minimal standard of acceptable and prevailing nursing practice. The investigator also testified that, in her opinion, a nurse with Respondent's poor attitude could be extremely dangerous in a hospital setting. After many years of difficult and stressful work, many nurses suffer from what is commonly referred to as "burn out" and are no longer useful, and can be dangerous in a high stress area of nursing. Respondent testified in her own behalf and offered an explanation for each allegation presented by Petitioner. Respondent testified that relative to the first warning, even though she only had two patients, she did not have adequate time to do her charting during her shift and, therefore, had to stay two hours late. Respondent further testified that on one occasion she had not timely taken her vital signs because the Director of Nursing had delayed her with a needless confrontation. Respondent testified that she did not leave the facility as ordered on August 12, 1979, because she was afraid that she would be abandoning her patients, and could lose her vacation and sick leave benefits. With respect to the November 26, 1979 evaluation, the Respondent testified that she gave whole blood instead of packed cells because the whole blood was incorrectly labeled as packed cells. Respondent further testified that she became aware of the error after the solution had infused, and that had she looked at the solution earlier she would have been able to see that it was an incorrect blood product, and would have been able to correct the problem. As to the incorrect transcription resulting in a patient's x-rays being delayed, the Respondent stated that it was the ward clerk's responsibility, not hers, to transcribe the doctor's orders. With respect to the 9:00 p.m. nursing notes when the patient had left the facility at 8:30 p.m., the Respondent's response was that she had been aware that the patient was gone, but was summarizing the patient's condition during the entire shift up to the point the patient left. Respondent acknowledge that the nursing notes may have been misleading. As to thee warning of termination on March 19, 1980, the Respondent admitted leaving her unit prior to relief arriving. Her explanation gas that she had been attempting for one hour to get assistance, to no avail. Upon questioning, she admitted that she was-only "a little dizzy" and had diarrhea. On that day she did not chart any nursing care given by her while on duty. The Respondent was caring for twelve patients at that time. With respect to the April 23, 1980 termination, Respondent admitted that she hung the incorrect percentage saline solution, but that she did so because a prior nurse obtained the incorrect solution from a supply room. The Respondent then also admitted failing to give out the 5:00 p.m. medication as ordered, but stated the reason for her failure to administer the medication was her inability to obtain help from her supervisor which was necessary because she was overworked. Respondent also testified that during this time period, she went on rounds with a doctor, and also went to dinner. The Respondent testified that she felt she was a good and qualified nurse. Respondent also testified that she had been fired previously from Leesburg General Hospital. The Respondent believes her attitude to be good and indicated that the hospital was overreacting to a few isolated incidents.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Respondent's license to practice nursing in the State of Florida, license number 39108-2, be suspended indefinitely. If the Respondent seeks reinstatement, it will be her responsibility to undergo counseling with a psychologist or psychiatrist, for an in-depth evaluation and treatment, the results of which shall be submitted to the Board of Nursing if and when the Respondent wishes to apply for reinstatement of her nursing license. If the Respondent applies for reinstatement of her license, it shall be her responsibility to demonstrate to the Board that she is able to engage in the practice of nursing in a safe, professional, proficient and legal manner. This demonstration shall include but not be limited to a report by her psychologist or psychiatrist, along with a recommendation from him that she be reinstated to the practice of nursing. 1/ DONE and ORDERED this 8th day of January, 1982, in Tallahassee, Florida. SHARYN L. SMITH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of January, 1982.
The Issue Whether Respondent committed the violations alleged in the Administrative Complaints and, if so, what penalty should be imposed.
Findings Of Fact Stipulated facts AHCA is the agency responsible for the licensing and regulation of skilled nursing facilities in Florida pursuant to Chapter 400, Part II, Florida Statutes, and Chapter 59A-4, Florida Administrative Code. At all times material hereto, Avante was licensed by Petitioner as a skilled nursing facility. Avante operates a 116-bed nursing home located in Leesburg, Florida. On or about March 28, 2002, AHCA conducted a complaint investigation at Avante. Based on AHCA's findings during the March 28, 2002, complaint investigation, federal tag F281(D) was cited against Avante. On or about May 13, 2002, AHCA conducted a survey at Avante. Based on AHCA's findings during the May 13, 2002, survey, federal tag F281(D) was cited against Avante. Resident E.S. was admitted to Avante on March 11, 2002, with diagnoses including e. coli sepsis, anemia, and schizophrenia with an order for serum albumin levels to be performed "now and yearly." Resident E.S.'s resident chart failed to reflect that a serum albumin test had been performed for Resident E.S. at any time from the date of his admission on March 11, 2002, until March 28, 2002. Avante failed to follow the orders of Resident E.S.'s physician due to its failure to perform a serum albumin test on Resident E.S. at any time between March 11, 2002, and March 28, 2002. Resident R.L. was admitted to Respondent's facility on May 6, 2002 with diagnoses including gastrointestinal hemorrhage, congestive heart failure, coronary artery disease, A-fib, pneumonia, diverticulitis, gout, fracture of right arm, and cancer of the prostate. Resident R.L.'s resident chart reflects that Resident R.L. was neither offered or administered Tylenol by Avante's staff at any time between May 9, 2002, and May 13, 2002. Facts Based Upon the Evidence of Record The correction date given to Respondent for the deficiency cited, Tag F281(D), as a result of the March 28, 2002, complaint investigation was April 28, 2002. Respondent does not dispute the deficiency cited by AHCA as a result of the March 28, 2002, complaint investigation. Thus, facts and circumstances surrounding the May 13, 2002, survey visit to Avante is the source of this dispute. The purpose of the May 13, 2002 survey visit to Avante by AHCA was for annual certification or licensure. In an annual license survey, a group of surveyors goes to a facility to determine if the facility is in compliance with state and federal requirements and regulations. Part of the process is to tour the facility, meet residents, record reviews, and talk to families and friends of the residents. During the licensure visit on May 13, 2002, the records of 21 residents were reviewed. Stephen Burgin is a registered nurse and is employed by AHCA as a registered nurse specialist. He has been employed by AHCA for three years and has been licensed as a nurse for six years. He also has experience working in a hospital ER staging unit and in a hospital cardiology unit. Nurse Burgin has never worked in a nursing home. Nurse Burgin conducted the complaint investigation on March 28, 2002, and was team leader for the licensure survey visit on May 13, 2002, at Avante. He was accompanied on the May 13, 2002, visit by Selena Beckett, who is employed by AHCA as a social worker. Both Nurse Burgin and Ms. Beckett are Surveyor Minimum Qualification Test (SMQT) certified. During the course of the May 13, 2002, licensure survey visit, Ms. Beckett interviewed Resident R.L. As a result of this interview, Ms. Beckett examined Resident R.L.'s medication administration record (MAR) to determine whether he was receiving pain medication for his injured left elbow. As a result of reviewing Resident R.L.'s record, Ms. Beckett became aware of a fax cover sheet which related to Resident R.L. The fax cover sheet was dated May 8, 2002, from Nancy Starke, who is a registered nurse employed by Avante as a staff nurse, to Dr. Sarmiento, Resident R.L.'s attending physician. The box labeled "Please comment" was checked and the following was hand written in the section entitled "comments": "Pt refused Augmentin 500 mg BID today states it causes him to have hallucinations would like tyl for pain L elbow." According to Nurse Starke, the fax to Dr. Sarmiento addressed two concerns: Resident R.L.'s refusal to take Augmentin and a request for Tylenol for pain for Resident R.L.'s left elbow. She faxed the cover sheet to Dr. Sarmiento during the 3:00 p.m. to 11:00 p.m. shift on May 8, 2002. Despite her fax to Dr. Sarmiento, which mentioned pain in R.L.'s left elbow, her daily nurse notes for May 8, 2002, reflect that Resident R.L. was alert, easygoing, and happy. He was verbal on that day meaning that he was able to make his needs known to her. Her daily nurse notes for May 8, 2002 contain the notation: "Pt refused augmentin today. Dr. Sarmiento faxed." According to Nurse Starke, she personally observed Resident R.L. and did not observe any expression of pain on May 8, 2002, nor did Resident R.L. request pain medication after she sent the fax to Dr. Sarmiento. The fax cover sheet also contained the hand written notation: "Document refused by PT. OK 5/9/02" with initials which was recognized by nurses at Avante as that of Dr. Sarmiento. The fax sheet has a transmission line which indicates that it was faxed back to Avante the evening of May 9, 2002. Nurse Starke also provided care to Resident R.L. on May 11, 2002. According to Nurse Starke, Resident R.L. did not complain of pain on May 11, 2002. Theresa Miller is a registered nurse employed by Avante as a staff nurse. Nurse Miller provided care to Resident R.L. on May 9 and 10, 2002, during the 7:00 a.m. to 3:00 p.m. shift. Nurse Miller's nurses notes for May 9 and 10, 2002, reflect that she observed Resident R.L. to be alert, easygoing, and happy. Her notes also reflect that Resident R.L. was verbal on those dates, meaning that he was able to tell her if he needed anything. She did not observe Resident R.L. to have any expression of pain on those dates, nor did Resident R.L. express to her that he was in any pain. Vicki Cannon is a licensed practical nurse employed by Avante as a staff nurse. Nurse Cannon has been a licensed practical nurse and has worked in nursing homes since 1998. Nurse Cannon provided care to Resident R.L. on May 11 and 12, 2002, on the 7:00 a.m. to 3:00 p.m. shift. Her nurse's notes for May 11, 2002 reflect that Resident R.L. was sullen but alert and verbal. Resident R.L. had blood in his urine and some discomfort. Nurse Cannon contacted Dr. Sarmiento by telephone on May 11, 2002, to inform him of Resident R.L.'s symptoms that day. Nurse Cannon noted on Resident R.L.'s physician order sheet that she received a telephone order from Dr. Sarmiento to give Resident R.L. Ultram PRN and Levaquin, discontinue Augmentin, order BMP and CBC blood work, and a urology consult. Ultram is an anti-inflammatory and a pain medication. Ultram is stronger than Tylenol. The notation "PRN" means as requested by the patient for pain. Levaquin is an antibiotic. Nurse Cannon faxed the order to the pharmacy at Leesburg Regional Medical Center. By the time Nurse Cannon left Avante for the day on May 11, 2002, the Ultram had not arrived from the pharmacy. On May 12, 2002, Resident R.L. had edema of the legs and blood in his urine. Nurse Cannon notified Dr. Sarmiento of Resident R.L.'s symptoms. Resident R.L. was sent to the emergency room for evaluation based on Dr. Sarmiento's orders. Additionally, Nurse Cannon called the pharmacy on May 12, 2002, to inquire about the Ultram as it had not yet arrived at the facility. Resident R.L. returned to Avante the evening of May 12, 2002. Alice Markham is a registered nurse and is the Director of Nursing at Avante. She has been a nurse for more than 20 years and has been employed at Avante for a little over two years. She also has worked in acute care at a hospital. Nurse Markham is familiar with Resident R.L. She described Resident R.L. as alert until the period of time before he went to the hospital on May 12, 2002. She was not aware of any expressions of pain by Resident R.L. between May 9, 2002 until he went to the hospital on May 12, 2002. Nurse Markham meets frequently with her nursing staff regarding the facility's residents. During the licensure survey, Nurse Markham became aware of Ms. Beckett's concerns regarding Resident R.L. and whether he had received Tylenol. She called Dr. Sarmiento to request an order for Tylenol for R.L. The physician order sheet for R.L. contains a notation for a telephone order for Tylenol "PRN" on May 14, 2002, for joint pain and the notation, "try Tylenol before Ultram." The medical administration record for R.L. indicates that Resident R.L. received Ultram on May 13 and and began receiving Tylenol on May 15, 2002. AHCA 's charge of failure to meet professional standards of quality by failing to properly follow and implement physician orders is based on the "OK" notation by Dr. Sarmiento on the above-described fax and what AHCA perceives to be Avante's failure to follow and implement that "order" for Tylenol for Resident R.L. AHCA nurse and surveyor Burgin acknowledged that the "OK" on the fax cover sheet was not an order as it did not specify dosage or frequency. He also acknowledged that the nursing home could not administer Tylenol based on Dr. Sarmiento's "OK" on the fax cover sheet, that it would not be appropriate to forward the "OK" to the pharmacy, that it should not have been placed on the resident's medication administration record, and that it should not have been administered to the resident. However, Nurse Burgin is of the opinion that the standard practice of nursing is to clarify such an "order" and once clarified, administer the medication as ordered. He was of the opinion that Avante should have clarified Dr. Sarmiento's "OK" for Tylenol on May 9, 2002, rather than on May 14, 2002. Nurse Burgin also was of the opinion that it should have been reflected on the resident's medication administration record and treatment record or TAR. In Nurse Markham's opinion, "OK" from Dr. Sarmiento on the fax cover sheet does not constitute a physician's order for medication as it does not contain dosage or frequency of administration. Nurse Markham is also of the opinion that it should not have been forwarded to the pharmacy, transcribed to the medication administration record, or transcribed on the treatment administration record. According to Nurse Markham, doctor's orders are not recorded on the treatment administration record of a resident. Nurse Markham is of the opinion that the nursing staff at Avante did not deviate from the community standard for nursing in their care of Resident R.L. from May 8, 2002 to May 14, 2002. Nurse Cannon also is of the opinion that the "OK" by Dr. Sarmiento does not constitute a physician's order for medication. The Administrative Complaints cited Avante for failure to meet professional standards of quality by failing to properly follow and implement a physician's order. Having considered the opinions of Nurses Burgin, Markham, and Cannon, it is clear that the "OK" notation of Dr. Sarmiento on the fax cover sheet did not constitute a physician's order. Without Dr. Sarmiento's testimony, it is not entirely clear from a review of the fax cover sheet that the "OK" relates to the reference to Tylenol or the reference to Resident R.L.'s refusal of Augmentin. Accordingly, Avante did not fail to follow a physician's order in May 2002. As to AHCA's assertion that Avante failed to meet professional standards by not clarifying the "OK" from Dr. Sarmiento, this constitutes a different reason or ground than stated in the Administrative Complaints. Failure to clarify an order is not the equivalent of failure to follow an order. There is insufficient nexus between the deficiency cited on March 28, 2002 and the deficiency cited on May 13, 2002. Accordingly, Avante did not fail to correct a Class III deficiency within the time established by the agency or commit a repeat Class III violation. Moreover, the evidence shows that the nursing staff responded to the needs of Resident R.L. Resident R.L. expressed pain in his left elbow to Nurse Starke on May 8, 2002. Resident R.L. was alert and could make his needs known. He did not express pain or a need for pain medication to Nurse Miller on May 9 or 10, 2002 or to Nurse Cannon on May 11 or 12, 2002. Rather, Nurse Cannon noted a change in his condition, notified Dr. Sarmiento which resulted in Resident R.L. being sent to the emergency room. Resident R.L. returned to Avante the evening of May 12, 2002, and received Ultram for pain on May 13, 2002, when the medication reached Avante from the pharmacy. The evidence presented does not establish that Avante deviated from the community standard for nursing in its actions surrounding the "OK" from Dr. Sarmiento. In weighing the respective opinions of Nurses Burgin and Markham in relation to whether the community standard for nursing was met by the actions of Respondent, Nurse Markham's opinion is more persuasive.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Agency for Health Care Administration enter a final order dismissing the Administrative Complaints issued against Respondent, Avante at Leesburg. DONE AND ENTERED this 13th day of December, 2002, in Tallahassee, Leon County, Florida. BARBARA J. STAROS 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 13th day of December, 2002. COPIES FURNISHED: Jodi C. Page, Esquire Agency for Health Care Administration 2727 Mahan Drive Mail Station 3 Tallahassee, Florida 32308 Karen L. Goldsmith, Esquire Jonathan S. Grout, Esquire Goldsmith, Grout & Lewis 2180 Park Avenue North, Suite 100 Post Office Box 2011 Winter Park, Florida 32790-2011 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308-5403 Valinda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308-5403
