The Issue Whether Respondent committed deficient practices as alleged in violation of 42 C.F.R. Section 483.13(b) and 42 C.F.R. Section 483.13(c)(1)(ii), adopted by reference in Florida Administrative Code Rule 59A-4.1288; and if so, whether Petitioner should impose a civil penalty in the amount of $5,000 and issue a conditional license to Respondent.
Findings Of Fact Petitioner is the state agency charged with licensing and regulating nursing homes in Florida under state and federal statutes. Petitioner is charged with evaluating nursing homes facilities to determine their degree of compliance with established rules as a basis for making the required licensure assignment. Additionally, Petitioner is responsible for concluding federally-mandated surveys of those long-term care facilities receiving Medicare and Medicaid funds for compliance with federal statutory and rule requirements. These federal requirements are made applicable to Florida nursing home facilities. Pursuant to the statute, Petitioner must classify deficiencies according to the nature and scope of the deficiency when the criteria established under the statute are not met. The classification of any deficiencies discovered is determinative of whether the licensure status of a nursing home is "standard" or "conditional." Respondent is a 98-bed nursing home located at 1024 Willow Springs Drive, Winter Springs, Florida, and is licensed as a skilled nursing facility. On May 30, 2003, Petitioner's staff conducted an inspection, also known as a survey, at Respondent's facility. Upon completion of the survey, Petitioner issued a document entitled, Center for Medicare and Medicaid Services, CMS Form 2567L, also known as a "2567," which contains a statement of the alleged violations of regulatory requirements, also referred to as "deficiencies," titled "Statement of Deficiencies and Plan of Correction." The evaluation or survey of a facility includes a resident review and, depending upon the circumstances, may consist of a record, reviews, resident observations, and interviews with family and facility staff. Surveyors note their findings on the 2567 Form, and if violations of regulations are found, the violations are noted and referred to as "Tags." A tag identifies the applicable regulatory standard that the surveyors believe has been violated, provides a summary of the violation, sets forth specific factual allegations that they believe support the violation, and indicates the federal scope and severity of the noncompliance. Petitioner's surveyors use the "State Operations Manual," a document prepared by the United States Department of Health and Human Services, Center for Medicare and Medicaid Services, as guidance in determining whether a facility has violated 42 C.F.R. Chapter 483. Count I In Count I of the Administrative Complaint, Petitioner alleges that Respondent's staff subjected three residents (Resident Nos. 6, 13, and 18) to verbal and mental abuse in violation of 42 C.F.R. Section 483.13(b), which provides that a nursing home resident has the right to be free from verbal and mental abuse. As to Resident No. 6, Petitioner contends that this resident stated to a surveyor that the resident had "overheard" a certified nursing assistant (CNA) loudly tell another staff member that the resident was "going to the bathroom 25 times a day." Petitioner believes the CNA's statement, which was allegedly "overheard," occurred sometime during the month of March 2003, based upon nurses' notes which indicate Resident No. 6 had an episode of diarrhea during this time. However, the nurses notes also reveal that during this time Resident No. 6 was subject to confusion and nonsensical outbursts. Petitioner's belief that Resident No. 6 was a reliable historian is based on Petitioner's mistaken belief that Resident No. 6 was admitted about March 30, 2003, and was alert and oriented and not confused upon admission. Petitioner's staff exhibited a lack of understanding of the timing and significance of the Multiple Data Set (MDS) forms describing Resident No. 6's mental condition upon which they relied. In fact, Resident No. 6 was admitted in mid-February 2003 and exhibited confused and eccentric behavior. The "overheard" comment was not reported to Respondent until the survey. Therefore, the evidence that this incident occurred as described by Petitioner is unreliable hearsay. Surveyors reviewed Respondent's records, which contained a complaint from a family member of Resident No. 6 that the same CNA had noticed that the resident had a physical anomaly. The CNA called other CNAs to view this anomaly, which was located in Resident No. 6's genital area. Respondent learned of the allegations relating to Resident No. 6's physical anomaly on April 21, 2003, from a family member of Resident No. 6. Respondent immediately began an investigation, including an interview with and physical examination of Resident No. 6 and an interview with the CNA. The resident only stated that she did not want this CNA taking care of her any longer. The CNA denied the allegations. The CNA was suspended pending investigation and later terminated based upon directions from Respondent's corporate office based on additional, unrelated information. The incident was reported to the Department of Children and Families (DCF) Abuse Hot Line on April 22, 2003. Although Resident No. 6 and her family member had frequent contact and conversation with Respondent's director of nursing (DON), neither had ever complained about the CNA's conduct. Respondent's DON observed no mental distress on the part of Resident No. 6 after Respondent's DON learned of the allegations. Petitioner alleges that this CNA had observed the physical anomaly for the first time. If that is true, it would be expected that the CNA would consult other nursing staff to address potential nursing issues. As to Resident No. 13, Petitioner alleges verbal abuse based upon the allegation that Resident No. 13 reported to a surveyor that she found a male resident sitting on her bed in her room. When this was reported by Resident No. 13 to one of the Respondent's nurses, the resident alleged that the nurse "laughed at" the resident. This incident was reported by Resident No. 13 to Respondent's DON shortly after it happened. Respondent's DON interviewed the resident and the two nurses who were on duty at the time. The nurses reported that they assured Resident No. 13 that everything was okay, escorted the male resident to his room, and Resident No. 13 went to bed with no complaint or distress. This incident was reported by Resident No. 13 to Respondent's DON in a joking manner, as an event and not as a complaint. Although Respondent's DON was concerned that the nurses should respond appropriately and was also concerned that the wandering resident be identified, Respondent's DON did not believe that the incident constituted any form of abuse. Respondent's DON did not observe this incident to have any adverse impact on Resident No. 13. During the survey, Petitioner's surveyor advised Respondent that the incident should have been investigated and reported to the DCF Abuse Hot Line. Respondent's DON completed a written report and called the DCF Abuse Hot Line and related the incident. The incident did not meet the DCF guidelines for the reporting of abuse. On or about March 30, 2003, two surveyors observed Resident No. 18 in her wheelchair as she approached the nurse's station. One of Respondent's nursing staff spoke in a "curt, loud voice" to Resident No. 18. The resident had approached the nurses' station to ask for her medication, to which the nurse replied: "I told you I will give you your medicine." Resident No. 18 was hearing-impaired and was documented in her medical record as one to whom staff "must speak loudly." This resident did not wear any hearing assistance devices. Respondent's staff credibly described this resident as one to whom staff had to speak loudly and in clipped words for the resident to understand. Petitioner's surveyors did not speak to this resident after the alleged incident. There is no evidence that this incident had any effect on the resident or even that the resident heard the staff member. The incident does not rise to the level of verbal abuse of the resident. Count II Count II of the Administrative Complaint alleges a violation of 42 C.F.R. Section 483.13(c)(1)(ii), which provides that a nursing home must develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse; and that the nursing home must not employ individuals who have been found guilty of abuse or neglect or are listed in the state nursing aide registry with a finding of abuse, neglect, or mistreatment. Count II is based on the allegation that Respondent failed to report to Petitioner (the appropriate "state agency") the incidents involving Resident No. 13 and 18 and other allegations of abuse or neglect, which the surveyor allegedly identified in Respondent's log of grievances. Respondent has in place written policies and procedures regarding abuse and neglect and its staff receive regular training regarding these policies and procedures. Petitioner has offered no evidence that these written policies and procedures or the staff's knowledge of these policies and procedures is inadequate. With regard to Resident No. 13, when Respondent's DON learned of the incident from the resident, Respondent's DON made inquiries of nursing staff who were on duty at the time, in addition to interviewing the resident. Respondent's DON did not consider any aspect of the incident to constitute abuse or neglect. Later, after Petitioner alleged, during the survey, that the incident should have been reported to DCF, Respondent's DON prepared a written report of the incident and called and related the incident to the DCF Abuse Hot Line. Respondent's DON was advised by DCF that the incident did not meet DCF's requirements for reporting. Respondent is required to report all allegations of abuse and neglect to the DCF's Abuse Hot Line. Petitioner does not dispute this fact. Instead, Petitioner contends that Respondent is also required to report allegations of abuse and neglect to the "state agency" and that Respondent failed to do so. The "state agency" for the purpose of federal regulations is Petitioner. Petitioner's allegations are based upon its review of Respondent's grievance log, which Petitioner's surveyors say allegedly records 18 incidents of alleged abuse, none of which was reported to the state agency. At the time of the survey, Respondent was a part of the Mariner Corporation. It has since disassociated from that corporation and changed its name to Tuskawilla Nursing and Rehabilitation Center, effective October 1, 2003. At the time of the survey, all reporting of abuse allegations were done by the corporate regional risk management department, and it is not known if they reported any of the incidents cited by the surveyors to Petitioner. However, the document received in evidence, which has many more than 18 entries in summary style, is almost completely illegible. Petitioner's witness was unable to identify any entries on this document which could be identified as alleged abuse and which had not been properly reported. Understanding this document requires substantial explanation, which was never provided. Standing alone, this document is not probative of any fact. Petitioner offered no evidence that Respondent employed any individuals who had been found guilty of or who had been listed on the nurse aide registry of abusing, neglecting, or mistreating residents. Even if it is assumed that Respondent should have reported but did not report to Petitioner the 18 alleged incidents or the incident regarding Resident No. 13, Petitioner offered no evidence that reporting this information to DCF, but not to Petitioner, had any impact on any resident or prevented a resident from maintaining or achieving the resident's highest practicable physical, mental, or psychosocial well-being. Count III Since there is no proof of Class II deficiencies, there is no basis for imposing a conditional license status on Respondent for the period May 30, 2003, until July 8, 2003.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that a final order of dismissal of the Administrative Complaint be entered in this case. DONE AND ENTERED this 31st day of March, 2004, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 31st day of March, 2004. 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 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308
Findings Of Fact Petitioner, Angell Care of Hialeah, Inc., d/b/a Hialeah Convalescent Home (Hialeah), is a nursing home licensed under the authority of Chapter 400, Florida Statutes. On April 26, 1985, Hialeah submitted its license renewal application to the Department of Health and Rehabilitative Services (Department), to renew its nursing home license for license year August 1, 1985 to July 31, 1986. The Department issued Hialeah Standard License No. 2134; however, by letter of September 30, 1985, the Department cancelled Hialeah's standard license, and replaced it with Conditional Rating License No. C-985. The Department's action was premised on its assertion that the results of a survey concluded by its Office of Licensure and Certification on August 1, 1985, established a conditional rating. Hialeah filed a timely request for formal administrative review of the Department's action. Hialeah asserted that the Department's action downgrading its license from standard to conditional was unwarranted and that, as opposed to a standard rating, it was entitled to a superior rating. At hearing, the parties stipulated that if this de novo review of the Department's action, which was premised on the deficiencies found in the survey conducted by its Office of Licensure and Certification, resulted in a finding that Hialeah was qualified to receive a standard rating, as opposed to a conditional rating, then it should receive a superior rating. Accordingly, the issues in this case are resolved to the validity of the deficiencies noted by the Office of Licensure and Certification. Deficiencies noted by the Department: Pertinent to these proceedings, 1/ the survey conducted by the Department's Office of Licensure and Certification classified the deficiencies noted at Hialeah into ten major categories, and listed the deficient nursing home licensure requirement number (NH) and applicable statutory or code provision violated, 2/ as follows: Administration and Management (1) NH 3 10D-29.104(1)(b), F.A.C. (2) NH 21 10D-29.104(5)(d)1g, F.A.C. (3) NH 25 10D-29.104(5)(d)4, F.A.C. (4) NH 26 10D-29.104(5)(d)5, F.A.C. Patient Care Policies NH 57 10D-29.106(2), F.A.C. Physician Services (1) NH 60 10D-29.107(2)C, F.A.C. Nursing Services (1) NH 77 10D-29.108(3)(c)16, F.A.C. (2) NH 80 10D-29.108(5)(b)6, 13, 15a & b, 16b & i, F.A.C. Dietary Services (1) NH 125 10D-29.110(3)(g)2; 10D-13.24(1)(4), F.A.C. Maintenance (1) NH 352 10D-29.122(1)(a), F.A.C. (2) NH 357 10D-29.122(1)(f), F.A.C. Infection Control (1) NH 365 10D-29.123(3)(a), F.A.C. Disaster Preparedness (1) NH 404 10D-29.126(5), F.A.C. Statutory Requirements (1) NH 405 Section 400.165, Fla. Stat. Life-Safety (1) NH 241 10D-29.119, F.A.C. (2) NH 250 10D-29.119, F.A.C. (3) NH 251 10D-29.119, F.A.C. (4) NH 269 10D-29.119, F.A.C. (5) NH 273 10D-29.119, F.A.C. (6) NH 277 10D-29.119, F.A.C. (7) NH 295 10D-29.121(10)(e), F.A.C. With the exception of the deficiencies listed for NH 3 (administration and management), NH 60 (physician services), and NH 250, NH 251, NH 269, NH 277, and NH 295 (life safety), Hialeah concedes that the deficiencies noted by the Department were appropriate. 3/ Accordingly, resolution of the question of which rating should be accorded Hialeah is dependent upon the propriety of seven disputed deficiencies. The Administration and Management Deficiency: The deficiency noted as NH 3 found: The provision for the resident's rights to privacy during treatment and care was not routinely adhered to. On the morning of July 24, 1985, staff members were observed attending to residents in rooms 7 and 8 of the Center Court while other residents were in the rooms and without the use of the portable privacy curtains. Chapter 400, Part 1, F.S. 10D-29.104(1)(6), F.A.C. Section 400.022(1)(h), Florida Statutes, accords a nursing home resident a right to privacy during treatment and care. Hialeah's failure to use available portable privacy curtains while patients were being bathed violated their right to privacy, and NH 3 was properly cited. The Physician Services Deficiency: The deficiency noted as NH 60 found: There was no documented evidence to verify that staff incident reports were reviewed by the Medical Director. 10D-29.107(2)C, F.A.C. Rule 10D-29.107(2), F.A.C., provides in pertinent part: Responsibilities of the Medical Director . . . shall include, at a minimum, the following: * * * (c) Reviewing reports of all accidents or unusual incidents occurring on the premises and identifying to the facility Administrator hazards to health and safety . . . . The proof in this case established that the Medical Director did review all incident reports; Rule 10D-29.107(2), F.A.C., does not require documentation. Accordingly, deficiency NH 60 was not substantiated. The Life-safety Deficiencies: The life-safety surveyor noted the following disputed deficiencies: NH 250: One required-stairway from the second floor discharges internally at the first floor and is not enclosed or separated to provide exiting directly to the exterior. This is a repeat deficiency. Architectural plans must be submitted to Jacksonville Plans and Construction Section for approval, indicating physical changes required to this deficiency, prior to corrective action . . . . * * * NH 251: The southwest exit door to 27th Street was locked and exit lights were removed. This created a dead end area with only one means of exiting for the south portion of the center court. This is part of a repeat deficiency form (sic) 1984 survey. * * * NH 269: a storage closet in the activities office is not protected by the automatic sprinkler system. * * * NH 277: The following air conditioning deficiencies were found: 1. The heat sensor for the air conditioner unit located on the first floor at the dining room did not activate properly when tested. NH 295: Rooms where soiled linen is stored and soiled utility rooms are not exhausted to the exterior in accordance with Table II. 4/ Hialeah asserts that the Department has waived or deleted deficiency NH 250, or is estopped from counting it as a deficiency for rating purposes. Hialeah's assertion is unpersuasive. The record reveals that during the October 24, 1984 life-safety survey, Hialeah was cited for the same deficiency, NH 250/K32, that is subject matter of these proceedings. 5/ In response to Hialeah's request for a waiver of this deficiency, the Health Care Finance Administration (HCFA) advised Hialeah by letter of January 28, 1985: We have reviewed your request for a waiver of items K-32 . . . cited as deficiencies to you. Based on this review we concur with the State Agency's recommendation to deny this request. We expect you to submit an accept- able Plan of Correction to these deficiencies to the State Agency within 15 days of the date you receive this letter. We are notifying the State of this action. Notwithstanding the unequivocal denial of Hialeah's request for waiver, a life- safety follow-up inspection on April 17, 1985, revealed that the deficiency had not been addressed or corrected. As of April 26, 1985, the date Hialeah submitted its renewal application which is the subject matter of these proceedings, a plan of correction had still not been submitted nor had the deficiency been corrected. 6/ At this juncture, faced with an uncorrected deficiency from its last survey, Hialeah submitted its second request for waiver of NH 243/K 32. 7/ Hialeah's request for waiver, dated May 23, 1985, was forwarded by the Department's Miami office to the Director of its Office of Licensure and Certification on July 23, 1985, with a recommendation of denial predicated on HCFA's previous action. Before the Department acted, however, the results of the July 29 - August 1, 1985 survey were published and the same deficiency cited. On October 30, 1985, the Department responded to Hialeah's May 23, 1985 request for waiver, as well as the results of the July 29 - August 1, 1985 survey. That letter provided: A thorough review has been made of the citations found in OPLCM report of life safety deficiencies found during the survey conducted July 29 - August 1, 1985. As a result of that survey NH 250; NH 277 item #2, NH 282, and NH 219 will be deleted from the report . . . . Your letter of July 23, 1985 (sic) addressed to Alvin Delaney requesting waivers of items K 32 . . . cannot be granted and corrections must be made . . . . However, by letter of December 12, 1985, the Department advised Hialeah that: the indication . . . (in my letter of October 30) . . . that NH 250 citation related to a second floor stairway would be deleted as a deficiency was an error . . . and that deficiency must be corrected. Hialeah's assertion that NH 250 was waived or deleted by the Department is contrary to the evidence. Hialeah's assertion that the Department is estopped from raising that deficiency because of its delay in passing on Hialeah's "second" request for waiver is equally unpersuasive. Hialeah knew of the deficiency because of the October 24, 1984 survey, knew by letter of January 28, 1985, that the deficiency would not be waived, and took no action to correct the deficiency. The fact that the Department erroneously advised Hialeah that NH 250 was deleted did not prejudice Hialeah since such announcement was made after the current survey. Further, that letter affirmatively advised Hialeah that K 32 (the federal equivalent) could not be waived. In sum, NH 250 was properly cited as a deficiency. Hialeah asserts that NH 251 was improperly cited because it had complied with an "alternative plan of correction," approved by the Department, which allowed the 27th Street exit to remain locked so long as staff carried keys to the exit. The proof supports Hialeah's assertion. Since staff do carry keys, NH 251 was improperly cited. Hialeah's assertion that NH 269 was improperly cited because the closet in question measured less than 100 square feet is unfounded. The closet was created by erecting a partition in an existing room, and was used for the storage of activity supplies, including combustibles, for nursing home residents. The life-safety code required that the subject closet be sprinkled, and the Department had no policy which deviated from the code. Accordingly, NH 269 was properly cited. Hialeah's assertion that NH 277(1) was improperly cited because the heat sensor was not correctly tested is unfounded. At the time of inspection the heat sensor was properly tested and failed to function. Therefore, NH 277(1) was properly cited. Hialeah's assertion that NH 295 was improperly cited, because cited on a consultative visit, is not supported by the record. NH 295 was cited as a result of the July 29 - August 1, 1985 life-safety inspection, not a consultative visit, and its citation was proper. Conditional vs. Superior Rating: The parties have stipulated that if Hialeah meets the requirements for a standard rating that it is likewise entitled to a superior rating. To qualify for a standard rating Hialeah must have no more than 20 Class III deficiencies and no more than 5 Class III deficiencies in the specific areas delineated by Hialeah's Exhibit 20, Item 3. While each of the cited deficiencies are Class III, and the number of deficiencies correctly cited do not exceed 20, Hialeah amassed more than 5 deficiencies in the area designated by Rules 10D-29.119, 10D-29.121, 10D-29.123, and 10D-29.125. Accordingly, Hialeah does not qualify for a standard or superior rating but, rather a conditional rating.
The Issue Whether Respondent violated the duly promulgated rules of the Department of Health and Rehabilitative Services by designating and continuing to designate the same person as the Assistant Administrator and the Director of Nursing of the Bonifay Nursing Home, Inc., after having been cited for such deficiency and allowed sufficient time to correct the deficiency.
Findings Of Fact An Administrative Complaint was filed by Petitioner Department of Health and Rehabilitative Services on October 27, 1980 notifying Respondent Bonifay Nursing Home, Inc., a skilled nursing care home, that Petitioner intended to impose a civil penalty of $100 for violating duly promulgated rules by designating the same person to act as Assistant Administrator and Director of Nursing of the nursing home. At the formal administrative hearing the Administrator admitted that he served more than one health facility, that at all times pertinent to the hearing the acting Assistant Nursing Home Administrator was also designated as the Director of Nursing, and that she was the only registered nurse on duty. It was admitted that no change had been made after the inspector for the Petitioner Department had called attention to this alleged violation until after the time period allowed for correcting this situation had expired and after the Petitioner had informed Respondent it intended to impose a $100 civil penalty. In mitigation Respondent presented testimony and adduced evidence showing that as the owner and operator of the nursing home he had made an effort to employ registered nurses at the home and that on the date of hearing the nursing home was in compliance with the statutes, rules and regulations. It was evident to the Hearing Officer that the nursing home serves a need in the community and that the residents appreciate the service. Petitioner Department submitted proposed findings of fact, memorandum of law and a proposed recommended order, which were considered in the writing of this order. Respondent submitted a memorandum. To the extent the proposed findings of fact have not been adopted in or are inconsistent with factual findings in this order, they have been specifically rejected as being irrelevant or not having been supported by the evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that a final order be entered by the Petitioner assessing an administrative fine not to exceed $50. DONE and ORDERED this 10th day of February, 1982, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of February, 1982. COPIES FURNISHED: John L. Pearce, Esquire Department of Health and Rehabilitative Services 2639 North Monroe Street, Suite 200-A Tallahassee, Florida 32301 Mr. J. E. Speed, Administrator Bonifay Nursing Home 108 Wagner Road Bonifay, Florida 32425 David H. Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue The issue for determination is whether Respondent committed violations of Section 468.1755, Florida Statutes, as alleged in an Administrative Complaint dated October 7, 1988, and if so, what discipline should be taken against his nursing home administrator's license.
Findings Of Fact Respondent, Robert Allen Maurer, is a licensed nursing home administrator, holding State of Florida license number NH 0002026. He is currently employed by Central Park Lodges, Inc., as a corporate administrator out of the corporate offices in Sarasota, Florida. From July 19, 1985, until February 9, 1989, Robert Maurer was the administrator at Central Park Lodges' retirement center and nursing home facility, Central Park Village, in Orlando, Florida. On April 28, 29 and 30, 1986, Grace Merifield and other staff from the Department of Health and Rehabilitative Services (HRS) Office of Licensure and Certification conducted their first annual inspection of Central Park Village. Ms. Merifield is an RN Specialist and licensed registered nurse. Ms. Merifield found several licensing rule violations, including the following, and noted them on a deficiency report form: NURSING SERVICES NH127 3 of 3 bowel or bladder retraining program patients charts reviewed lacked documentation of a formal retraining program being provided. The documentation lacked progress or lack of progress towards the retraining goal, ie., in the care plan, nurses notes or the monthly summaries. 10D-29.l08(5)(b), FAC, Rehabilitative and Restorative Nursing Care. DIETARY SERVICES NH193 1) Stainless steel polish containing toxic material was observed in the dishwasher area. Bulk ice cream and cartons of frozen foods were stored directly on the floor in the walk-in freezer. 10D-29.110(3)(g)1, FAC, Sanitary Conditions INFECTION CONTROL NH448 Infection control committee had not insured acceptable performance in that the following was observed: After a dressing change the nurse failed to wash her hands; three nurses failed to cover the table they were working off, one nurse used the bedstand along with the syringe for a tube feeding resident and returned the supplies to medical cart or medical room, cross contaminating the supplies. Floors of utility rooms were observed with dead bugs unmopped for two days of the survey. Syringe unlabeled and undated. Urinals and graduates unlabeled. Clean linen placed in inappropriate areas and soiled linen on floors, laundry bucket overflowing being pushed down the hall. 10D-29.123(2), FAC, Infection Control Committee (Petitioner's Exhibit #3) During the survey, Robert Maurer, as Administrator, and other nursing home staff met with the inspection team, took partial tours with them and participated in exit interviews, wherein the deficiencies were cited and recommendations were made for corrections. The infection control deficiencies required immediate correction, the dietary services deficiencies required correction by May 5, 1986, and the other deficiencies were to be corrected by May 30, 1986. On July 14, 1986, Ms. Merifield returned to Central Park Village for reinspection and found that most of the violations had been corrected. These, however, still remained: Stainless steel polish containing toxic materials was found in the dishwashing area, a violation of Rule 10D-29.110(3)(g)(1), Florida Administrative Code; Bulk ice cream and frozen food was stored directly on the floor in the walk-in freezer, and one of the five gallon ice cream container lids was completely off, exposing the ice cream, a violation of Rule 10D-29.110(3)(g)(1), Florida Administrative Code; Three out of three bowel or bladder retraining program program charts of residents reviewed lacked documentation, from all shifts of nurses, of a formal retraining program where progress or a lack of progress should be documented, a violation of Rule 10D-29.108(5)(b), Florida Administrative Code; The infection control committee had not insured acceptable performance, a violation of Rule 10D-29.123(2), Florida Administrative Code, in that: two nurses failed to properly cover the bedside table they were working from and cross contaminated dressing supplies; urinals and graduates were unlabeled; clean linen was placed in inappropriate areas, soiled linen was in the bathroom basin, and laundry buckets were overflowing with soiled linens in two utility rooms. After the survey in April, the facility was given a conditional license. That was changed to a standard license in October, 1986, when another inspection was conducted and no deficiencies were found. The following April, in 1987, the facility was given, and still maintains, a superior license. All of the deficiencies noted in April and July 1986 were class III, the least serious class of deficiencies, denoting an indirect or potential threat to health and safety. Deficiencies in Classes I and II are considered life-threatening or probably threatening. The number of deficiencies found at Central Park Village was not unusual. After the April inspection and before the July inspection, Robert Maurer took steps to remedy the deficiencies. Although the staff already had in-service training, additional training was given. Mr. Maurer met with the food service director and was told that a delivery had been made the morning of inspection, but that items had not been placed on the shelves by the stockman. Some of the food items had been left out to be discarded. Prior to the case at issue here, no discipline has been imposed against Robert Maurer's nursing home administrator's license.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED That a final order be entered finding Respondent guilty of a violation of Section 468.1755(1)(m), F.S., with a letter of guidance from the Probable Cause Panel of the Board. DONE AND RECOMMENDED this 11th day of October, 1989, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of October, 1989. APPENDIX The following constitute specific rulings on the findings of fact proposed by the parties: PETITIONER'S PROPOSED FINDINGS 1. and 2. Adopted in paragraph 1. Adopted in paragraph 2. Adopted in paragraph 3. Adopted in part in paragraph 5. Some of the deficiencies had to be corrected before the 30-day deadline. and 7. Adopted in paragraph 6. RESPONDENT'S PROPOSED FINDINGS Adopted in paragraph 1. Adopted in part in paragraph 1. Petitioner's exhibits #1 and #2 and Respondent's testimony at transcript, pages 54 and 55, establish that he was administrator from 1985-1989. Adopted in paragraph 2. Adopted in paragraph 6. Rejected as inconsistent with the evidence, including Respondent's testimony. Adopted in paragraph 6. Rejected as contrary to the evidence. Adopted in paragraph 9. through 11. Rejected as contrary to the weight of evidence. 12. and 13. Adopted or addressed in paragraph 8. 14. and 15. Adopted in paragraph 7. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Victoria Raughley, Esquire Dept. of Professional Regulation 1940 N. Monroe St., Suite 60 Tallahassee, FL 32399-0792 R. Bruce McKibben, Jr., Esquire P.O. Box 10651 Tallahassee, FL 32302 Mildred Gardner Executive Director Dept. of Professional Regulation Board of Nursing Home Administrators 1940 N. Monroe St., Suite 60 Tallahassee, FL 32399-0792 Kenneth E. Easley, General Counsel Dept. of Professional Regulation 1940 N. Monroe St., Suite 60 Tallahassee, FL 32399-0792
The Issue Whether Respondent’s nursing home license should be disciplined, and whether Respondent’s nursing home license should be changed from a Standard license to a Conditional license.
Findings Of Fact Bayside Manor is a licensed nursing home located in Pensacola, Florida. On June 14, 2003, Resident No. 4 climbed out of her bed without assistance to go to the bathroom. She fell to the floor and sustained a bruise to her forehead and lacerations to her cheek and chin. Her Foley catheter was pulled out with the bulb still inflated. The fall occurred shortly after Resident No. 4 had finished eating. No staff was in her room when she climbed out of her bed. She was found on her side on the floor by staff. According to the June 14 Bayside’s Nurses' notes, Resident No. 4 stated, "Oh, I was going to the bathroom." In the hour prior to her fall, Resident No. 4 was seen at least three times by nursing assistants, which was more than appropriate monitoring for Resident No. 4. On June 20, 2002, AHCA conducted a survey of Bayside Manor’s facility. In its survey, AHCA found one alleged deficiency relating to Resident No. 4. The surveyor believed that Resident No. 4 should have been reassessed for falls by the facility and, based upon that reassessment, offered additional assistive devices and/or increased supervision. The surveyor also believed that the certified nursing assistant had left Resident No. 4 alone with the side rails to her bed down. The deficiency was cited under Tag F-324. Tag F-324 requires a facility to ensure that “[e]ach resident receives adequate supervision and assistance devices to prevent accidents.” The deficiency was classified as a Class II deficiency. On October 9, 2001, and January 14, 2002, Bayside Manor assessed Resident No. 4 as having a high risk for falls, scoring 9 on a scale where scores of 10 or higher constitute a high risk. In addition to the June 14, 2002, fall noted above, Resident No. 4 had recent falls on November 30, 2001, April 19, 2002, and May 12, 2002. Resident No. 4's diagnoses included end-stage congestive heart failure and cognitive impairment. She had periods of confusion, refused to call for assistance, and had poor safety awareness. Resident No. 4 had been referred to hospice for palliative care. Because hospice care is given when a resident is close to death, care focuses on comfort of the resident rather than aggressive care. Additionally, the resident frequently asked to be toileted even though she had a catheter inserted. She frequently attempted to toilet herself without staff assistance, which in the past had led to her falls. Often her desire to urinate did not coincide with her actual need to urinate. She was capable of feeding herself and did not require assistance with feeding. Bayside Manor addressed Resident No. 4’s high risk of falls by providing medication which eliminated bladder spasms that might increase her desire to urinate and medication to alleviate her anxiety over her desire to urinate. She was placed on the facility’s falling stars program which alerts staff to her high risk for falls and requires that staff check on her every hour. The usual standard for supervision in a nursing home is to check on residents every two hours. The facility also provided Resident No. 4 with a variety of devices to reduce her risk of falling or any injuries sustained from a fall. These devices included a lap buddy, a criss-cross belt, a roll belt while in bed, a low bed, and a body alarm. Some of the devices were discontinued because they were inappropriate for Resident No. 4. In December 2001, the roll belt was discontinued after Resident No. 4, while attempting to get out of bed, became entangled in the roll belt and strangled herself with it. On May 6, 2002, the low bed and fall mat were discontinued for Resident No. 4. The doctor ordered Resident No. 4 be placed in a bed with full side rails. The doctor discontinued the low bed because it could not be raised to a position that would help alleviate fluid build-up in Resident No. 4’s lungs caused by Resident No. 4’s congestive heart failure. Discontinuance of the low bed was also requested by hospice staff and the resident’s daughter to afford the resident more comfort in a raised bed. The fact that placement in a regular raised bed potentially could result in an increase in the seriousness of injury from a fall from that bed was obvious to any reasonable person. The May 5, 2002, nurses’ notes indicate that there was a discussion with Resident No. 4’s daughter about returning the resident to a high bed for comfort. On balance, the placement of Resident No. 4 in a regular raised bed was medically warranted, as well as reasonable. The placement in a regular bed with side rails was not noted directly in the care plan but was contained in the doctor’s orders and was well known by all the facility’s staff. There was no evidence that directly mentioned the regular bed in the formal care plan was required or that the failure to do so had any consequence to Resident No. 4’s care. Even a lack of documentation clearly would not constitute a Class II deficiency. Moreover, the bed with side rails was not ordered to protect or prevent falls by Resident No. 4. The facility does not consider a bed with side rails of any sort to be a device which assists in the prevention of falls. Indeed rails often cause falls or increase the injury from a fall. In this case, the rails were ordered so that the resident could more easily position herself in the bed to maintain a comfortable position. Again, the decision to place Resident No. 4 in a regular raised bed with side rails was reasonable. The focus is on comfort as opposed to aggressive care for hospice residents. The evidence did not demonstrate that Bayside Manor failed to adequately supervise or provide assistive devices to Resident No. 4. There was no evidence that reassessment would have shown Resident No. 4 to be at any higher risk for falls, since she was already rated as a high risk for falls. Nor did the evidence show that reassessment would have changed any of the care given to Resident No. 4 or changed the type bed in which she was most comfortable.
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 restoring the Respondent’s licensure status to Standard and dismissing the Administrative Complaint. DONE AND ENTERED this 3rd day of June, 2003, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 June, 2003. COPIES FURNISHED: Joanna Daniels, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Donna H. Stinson, Esquire R. Davis Thomas, Jr., Esquire Broad & Cassel 215 South Monroe Street, Suite 400 Post Office Box 11300 Tallahassee, Florida 32302 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308
The Issue The issue is whether Respondent is guilty of discrimination in employment based on race, in violation of Section 760.10(1), Florida Statutes.
Findings Of Fact Respondent owns and operates Indian River Estates, which is an adult community in which residents live independently, in an assisted living facility, or in a medical/nursing facility, as their needs dictate at various times. At all material times, Petitioner, who is black, worked as a certified nursing assistant in the medical/nursing facility. The medical/nursing facility at Indian River Estates comprises three units: the East unit (also known as an acute unit), the Alzheimer's unit, and the South unit. The South unit contains a maximum of 24 beds. Petitioner was first employed at Indian River Estates in June 1999 as a per diem certified nursing assistant. In September 2000, she became a fulltime certified nursing assistant. At one point, Petitioner worked in the East unit, but asked for a transfer because she had felt that a supervising nurse had been "harassing" her. Petitioner provided no other details in support of this assertion. As a result of Petitioner's complaint, Respondent transferred her to the South unit. The record provides no basis for a finding of unlawful discrimination in the treatment that Petitioner received from her supervisor in the East unit. In June 2004, shortly after being transferred to the South unit, Petitioner began a medical leave of absence. She returned to work in January 2005. Because Petitioner was out of work considerably in excess of 12 weeks, Respondent filled her fulltime position with a new employee. Pursuant to its employee policies, which are consistent with the federal Family and Medical Leave Act, Respondent guarantees a person's job only when the employee takes no more than 12 weeks of leave within a 12-month period. When Petitioner was ready to return to work in January 2005, her old job was no longer available. However, Respondent re-hired her as a per diem certified nursing assistant and returned her to fulltime status when an opening occurred. Petitioner cites several other white employees whom, she claims, Respondent treated preferably when they took medical leave. However, each of their cases is distinguishable. One returned from medical leave within 12 weeks. Two were granted brief extensions of the 12 weeks, but never returned to work. The last was granted a three-week extension of the 12 weeks, but returned to work after the extension expired; however, he regained his old job because Respondent had not yet filled it. Although Petitioner has provided a little more detail concerning her return to work from medical leave than she did about her harassment claim, again, the record provides no basis for a finding of unlawful discrimination in the handling of her medical leave or the reassignment of job duties following her subsequent re-hiring. While working in the South unit, Petitioner served as one of two certified nursing assistants. A licensed practical nurse served as the immediate supervisor of the two certified nursing assistants. The licensed practical nurse reported directly to the director of nursing at Indian River Estates. On April 5-6, 2005, Petitioner worked the shift from 11 p.m. to 7 a.m. B. H. was an 88-year-old resident, who was new to the South unit. A former nurse herself, B. H. sometimes lived in the medical unit, when her condition required, but at other times lived in an apartment upstairs, when her condition permitted. B. H.'s diagnoses included a history of breast cancer and functional decline. B. H. was in hospice care as of April 6, 2005. Nurses Progress Notes on April 4, 2005, indicate that B. H. was resisting her prescribed medications, but would take them after repeated persuasion. At 6:00 p.m. on April 5, B. H. received her normal administration of Ativan, which is a mild tranquillizer, from the licensed practical nurse then on duty. When Petitioner and her coworkers started arriving around 10:30 p.m. for the next shift, they found B. H. in an agitated state. Petitioner and the other certified nursing assistant working the 11-7 shift informed Francine Scott, who was the licensed practical nurse for this shift, that B. H. was unsettled. Ms. Scott advised the certified nursing assistants to place the bed alarm so that they could monitor B. H. more easily. Despite repeated efforts of the two certified nursing assistants, B. H. remained agitated. On one occasion, one of the certified nursing assistants found B. H. had half climbed out of her bed and was at risk of injuring herself. The certified nursing assistants told Ms. Scott that they needed to do something more to settle down B. H., and Ms. Scott told them to bring her from her room to the desk. When she saw B. H., Ms. Scott observed that B. H. was bleeding from wounds to both lower legs, evidently from thrashing in her bed. Ms. Scott tried to apply a dressing to a leg wound, but B. H. declined treatment. Ms. Scott offered B. H. some Ativan orally, but B. H. refused to take it, so Ms. Scott left her alone at the front desk and returned to her work. About an hour later, Ms. Scott asked B. H. what had happened. B. H. responded by screaming, "don't touch me," "police," "help," and "I want to go home." Staff from the East unit came to the South unit to find out what was wrong. Ms. Scott directed a certified nursing assistant to take B. H. to a nearby activity room, from which B. H. would less likely disturb other residents. Ms. Scott telephoned B. H.'s physician and reported that B. H. was agitated and cut, but had refused wound treatment and Ativan. Ms. Scott told the physician that she needed help, and the physician ordered Ativan administered by injection. At about 3:00 a.m., Ms. Scott informed B. H. that her physician had ordered the Ativan to help her calm down. Ms. Scott administered Ativan intramuscularly to B. H. Due to the size of the needle, Ms. Scott had to administer two injections in order to administer the prescribed dosage. B. H. did not want to take the injections. While Ms. Scott was trying to administer the injections, B. H. swung her arms from side to side, while seated in her wheelchair. Ms. Scott directed Petitioner to restrain B. H., so Ms. Scott could administer the injections. At times standing and at times seated next to B. H., Petitioner pinned down B. H.'s arms, so they were folded across her chest, while Ms. Scott injected the Ativan. At one point, B. H. bit Petitioner on her left forearm, leaving bite marks. B. H. remained agitated through the rest of the night, but, by breakfast that day, she had calmed down, as her husband had come to the unit to help calm her. By the afternoon, B. H. was taking her Ativan voluntarily and allowed a hospice nurse to dress her leg wounds. Later on April 6 or the following day, B. H. complained about the treatment that she had received from Ms. Scott and Petitioner. Respondent initiated an investigation that resulted in the immediate suspension of Ms. Scott and Petitioner and their eventual termination for violating B. H.'s right to refuse treatment and other rights. At all material times, Respondent maintained a written policy enumerating residents' rights. Paragraph 6 recognizes: The right to be adequately informed of his/her medical condition and proposed treatment, unless otherwise indicated by the Resident's Physician; to participate in the planning of all medical treatment, including the right to refuse medication and treatment unless otherwise indicated by the Resident's Physician; and to know the consequences of such actions. Paragraph 9 recognizes: The right to be treated courteously, fairly, and with the fullest measure of dignity and to receive a written statement and an oral explanation of the services provided by the Licensee, including those required to be offered on an as-needed basis. Paragraph 10 recognizes: The right to be free from mental and physical abuse and from physical and chemical restraints, except those restraints authorized in writing by a Physician for a specified and limited period of time or as are necessitated by an emergency. In case of an emergency, restraints may be applied only by a qualified Licensed Nurse who shall be [sic] set forth in writing the circumstances requiring the use of restraints; and in the case of use of a chemical restraint, a Physician shall be consulted immediately thereafter. Restraints may not be used in lieu of staff supervision or merely for staff convenience, for punishment, or for reasons other than Resident protection or safety. It is doubtful that Respondent's statement of residents' rights prohibits the administration of Ativan without B. H.'s consent or the nonabusive touching of B. H. to administer the Ativan. Paragraph 6 is probably inapplicable because the physician, knowing that B. H. had refused the medication, directed the administration of Ativan. Paragraph 9 is probably inapplicable. Although Petitioner's handling of B. H. was rough-handed, B. H. had already injured herself while in her bed, had risked even greater injury while trying to climb out of her bed, and had disrupted the South unit and part of the East unit, so the administration of Ativan had acquired a degree of urgency for the welfare of B. H. and the welfare of other residents. Paragraph 10 appears to have required a prior written authorization from the physician for the use of Ativan, but not in an emergency, and the above-described scenario at least approached qualifying as an emergency. Paragraph 10 imposes a burden on the licensed practical nurse when using restraints--probably, physical restraints--to document the use and necessity. Paragraph 10 imposes a burden to consult a physician immediately after using a chemical restraint. It is unlikely that Petitioner violated this provision because: 1) Ms. Scott consulted with the physician before using a chemical restraint and 2) the burden of consultation falls on the person using the restraint--Ms. Scott--not her subordinate, who merely follows her direction. However, as noted in the Conclusions of Law, B. H. had a clear right to refuse the Ativan, regardless of the direction of her physician. And Ms. Scott and Petitioner violated that right. Likewise, B. H. obviously has a right not to be physically abused, and the marks that Petitioner left on B. H.'s arms at least raise a legitimate fact question of such abuse. Respondent undertook a prompt, fair, and reasonably thorough investigation. The Department of Children and Family Services was contacted about possible abuse. The agency investigator told Respondent's staff that B. H.'s rights had been violated. Respondent's staff reached the same conclusion. Finding that Petitioner had violated B. H.'s rights, Respondent had a legitimate reason to terminate Petitioner, as it did Ms. Scott. Petitioner failed to produce any evidence whatsoever of a racial motive and has thus failed to prove that the reason cited by Respondent is pretextual. Petitioner's scant effort to show preferential treatment to other similarly situated employees failed to provide a basis on which to infer race discrimination. Petitioner testified that she had heard of employees who had abandoned a patient, who then died, but Respondent never fired the employees. However, Petitioner offered no direct evidence of this event. Absent detailed evidence of this alleged incident, it is impossible to use this briefly mentioned incident for the purpose for which Petitioner offers it. As noted above, the record does not support Petitioner's allegations of racial discrimination in harassment from a supervisor on the East unit or in the reassignment of duties following her return from an extended leave of absence. Implicitly abandoning these claims, Petitioner testified that her sole claim of racial discrimination involves her termination for her role in the B. H. incident. Thus, Petitioner did not try to prove racial discrimination in Respondent's handling of the B. H. incident by proving other instances of racial discrimination by Respondent--she admitted that there was none. The record contains no evidence whatsoever of unlawful discrimination based on any illness of Petitioner.
Recommendation It is RECOMMENDED that the Florida Commission of Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 27th day of October, 2006, in Tallahassee, Leon County, Florida. S __ ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of October, 2006. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 David E. Block Scott S. Allen Jackson, Lewis, LLP One Biscayne Tower 2 South Biscayne Boulevard, Suite 3500 Miami, Florida 33131 Olivia Lewis 806 Mulberry Street Sebastian, Florida 32958
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Administrative Complaint against Respondent be DISMISSED. DONE and ENTERED this 23rd day of November, 1981, in Tallahassee, Florida. DONALD R. ALEXANDER 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 23rd day of November, 1981.
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
Findings Of Fact The Rule The full text of the proposed rule, as changed by the Notice of Change filed with the Department of State, is as follows: 59A-4.128 Evaluation of nursing homes and rating system. The agency shall, at least every 15 months, evaluate and assign a rating to every nursing home facility. The evaluation and rating shall be based on the facility's comp- liance with the requirements contained in sections 59A-4.100 through 59A-4.128, of this rule, Chapter 400, Part II and the require- ments contained in the regulations adopted under the Omnibus Budget Reconciliation Act (OBRA) of 1987 (Pub. L. No. 100-203) (December 22, 1987), Title IV (Medicare, Medi- caid, and Other Health Related Programs), Sub- title C (Nursing Home Reform), as amended and incorporated by reference. The evaluation shall be based on the most recent licensure survey report, investigations conducted by AHCA and those persons authorized to inspect nursing homes under Chapter 400, Part II, Florida Statutes. The rating assigned to the nursing home facility will be either conditional, standard or superior. The rating is based on the compliance with the standards contained in this rule and the standards contained in the OBRA regulations. Non-compliance will be stated as deficiencies measured in terms of severity. For rating purposes, the following deficiencies are considered equal in severity: Class I deficiencies; Class II deficiencies; and those Substandard Quality of Care deficiencies which constitute either immediate jeopardy to resident health or safety or a pattern of or widespread actual harm that is not immediate jeopardy. Further for rating purposes, the following defici- encies are considered equal in severity: Class III deficiencies; and those Substand- ard Quality of Care deficiencies which con- stitute a widespread potential for more than minimal harm to resident health or safety, but less than immediate jeopardy, with no actual harm. Class I deficiencies are those with either an imminent danger, a substantial probability of death or serious physical harm and require immediate correction. Class II deficiencies are those deficiencies that present an immediate threat to the health, safety, or security of the residents of the facility and the AHCA establishes a fixed period of time for the elimination and correction of the deficiency. Substandard Quality of Care deficiencies are deficiencies which constitute either: immediate jeopardy to resident health or safety; a pattern of or widespread actual harm that is not immedi- ate jeopardy; or a widespread potential for more than minimal harm, but less than immedi- ate jeopardy, with no actual harm. Class III deficiencies are those which present 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. A conditional rating shall be assigned to the facility: if at the time of relicensure survey, the facility has one or more of the following deficiencies: Class I; Class II; or Substan- dard Quality of Care deficiencies which con- stitute either immediate jeopardy to resident health or safety or a pattern of or wide- spread actual harm that is not immediate jeopardy; or, if at the time of the relicensure survey, the facility has Class III deficiencies, or Substandard Quality of Care deficiencies which constitute a widespread potential for more than minimal harm to resi- dent health or safety, but less than immedi- ate jeopardy, with no actual harm and at the time of the follow-up survey, such defici- encies are not substantially corrected with- in the time frame specified by the agency and continue to exist, or, new class I or class II deficiencies or Substandard Quality of Care deficiencies which constitute either immediate jeopardy to resident health or safety or a pattern of or widespread actual harm that is not immediate jeopardy are found at the time of the follow- up survey. A facility receiving a conditional rating at the time of the relicensure survey shall be eligible for a standard rating if: all Class I deficiencies, Class II deficiencies, and those Substandard Quality of Care deficiencies which constitute either immediate jeopardy to resident health or safety or a pattern of or widespread actual harm that is not immediate jeopardy are corrected within the time frame established by the AHCA and All class III deficiencies and and (sic) those Substandard Quality of Care deficiencies which constitute a widespread potential for more than minimal harm to resident health or safety, but less than immediate jeopardy, with no actual harm are substantially corrected at the time of the follow-up survey. A facility receiving a conditional rating at the time of the relicen- sure survey shall not be eligible for a superior rating until the next relicensure survey. A standard rating shall be assigned to a facility, if at the time of the relicen- sure survey, the facility has: No class I or class II deficiencies and no Substandard Quality of care defici- encies which constitute either immediate jeopardy to resident health or safety or a pattern of or widespread actual harm that is not immediate jeopardy, and Corrects all class III deficiencies and those Substandard Quality of Care deficiencies which constitute a widespread potential for more than minimal harm to resident health or safety, but less than immediate jeopardy, with no actual harm with- in the time frame established by the AHCA. A superior rating shall be assigned to a facility, if at the time of the relicen- sure survey, the facility has received a standard rating and meets criteria for a superior rating through enhanced programs and services as contained in (7) of this section. In order to qualify for a superior rating, the nursing facility must provide initiatives or services which encompass the following areas: Nursing services. Dietary or nutritional services. Physical environment. Housekeeping and maintenance. Restorative therapies and self help activities. Social Services. Activities and recreational therapy. In order to facilitate the development of facility wide initiatives and promote creativity, these areas may be grouped or addressed individually. In establishing the facility's qualification for a superior rating, the AHCA survey team will use the Rating Survey and Scoring Sheet, Form No AHCA 3110- 6007, June, 1995, incorporated by reference, and may be obtained from the Agency for Health Care Administration. Upon initial licensure, a licensee can receive no higher than a standard license. After six months of operation, the new licensee may request that the agency evalu- ate the facility to make a determination as to the degree of compliance with minimum requirements under Chapter 400, Part II, F.S., and this rule to determine if the facility can be assigned a higher rating. Nursing facilities will be surveyed on this section of the rule beginning March 1, 1995. Petitioner's Exhibit No. 3. The "specific authority" given for the rule by the agency is Section 400.23, Florida Statutes. The rule implements Sections 400.12, 400.19 and 400.23, Florida Statutes. The Parties Florida Health Care Association, Inc., is a trade association. Its members are Florida nursing homes and it represents the great majority of nursing homes in the state. The Agency for Health Care Administration is the licensing agency of the State of Florida responsible for regulating nursing homes under Part II of Chapter 400, Florida Statutes. Florida Unique Among the 50 States Federal regulations do not require the rating of nursing homes. As one might expect, therefore, states typically do not rate nursing homes. In fact, of the fifty states, Florida is the only state that rates nursing homes. Statutory Requirement for Nursing Home Rules Section 400.23, Florida Statutes, mandates the Agency, "in consultation with the Department of Health and Rehabilitative Services and the Department of Elderly Affairs, [to] adopt and enforce rules to implement," Part II of Chapter 400. Rules to be adopted by the Agency with regard to nursing homes "include reasonable and fair criteria in relation to ... the care, treatment, and maintenance of residents and measurement of the quality and adequacy thereof, based on rules developed under [Chapter 400, Part II, Florida Statutes,] and [OBRA,] the Omnibus Budget Reconciliation Act of 1987 (Pub. L. No. 100-203) (December 22, 1987), Title IV (Medicare, Medicaid, and Other Health-Related Programs), Subtitle C (Nursing Home Reform), as amended." (e.s.) Section 400.23, Florida Statutes. The Statutory Framework for the Evaluation and Rating of Florida Nursing Homes The Agency is not mandated just to adopt rules for measuring the quality and adequacy of the care, treatment and maintenance of nursing home residents. The Agency is also mandated to evaluate and rate the state's nursing homes. Section 400.23(8), F.S. Presumably, this rating process is intended to promote improvement of nursing homes, to enhance quality and adequacy of care of residents and to aid in selection of nursing homes by potential residents and their families. In any event, the Agency is required, "at least every 15 months, [to] evaluate all nursing home facilities and make a determination as to the degree of compliance by each licensee with the established rules ... as a basis for assigning a rating to that facility." Id. The various ratings Taking into consideration the most recent inspection report and other material deemed pertinent by statute, the Agency must assign one of three ratings to a nursing home under evaluation: standard, conditional or superior. A standard rating means, that a facility has no class I or class II deficiencies, has corrected all class III deficiencies within the time established by the agency, and is in substantial compliance at the time of the survey with criteria established under this part, with [agency rules] ... , and, if applicable, with rules adopted under [OBRA] ... as amended. (e.s.) Section 400.23(8)(a), F.S. A conditional rating means, that a facility, due to the presence of one or more class I or class II deficiencies, or class III deficiencies not corrected within the time established by the agency, is not in substantial compliance at the time of the survey with criteria established under this part, [agency rules] ..., or, if applicable with rules adopted under [OBRA] ... as amended. ... (e.s.) Section 400.23(8)(b), F.S. A superior rating means that a facility meets the criteria for a standard rating and exceeds those criteria through enhanced programs and services in seven areas: 1. nursing service; 2. dietary or nutritional services; 3. physical environment; 4. housekeeping and maintenance; 5. restorative therapies and self-help activities; 6. social services; and, 7. activities and recreational therapy, (the "seven statutory areas of enhancement.") Section 400.23(8)(c), F.S. In order to achieve a superior rating, a facility may group the seven areas of enhancement within single programs or address each individually. If a facility chooses to group any within a program or initiative, however, the facility will not qualify for a superior rating "if fewer than three programs or initiatives are developed to encompass the required areas." Section 400.23(8)(d), F.S. ii. Rules with regard to Ratings. The Agency is responsible for establishing the rules under which most of the evaluation and rating process takes place. The Agency was charged with establishing uniform procedures by January 1, 1994, for evaluating nursing homes including the provision of criteria in the seven statutory areas of enhancement. Section 400.23(8)(h), F.S. Under the proposed rules, the rating is tied to classification of deficiencies, which must be "according to the nature of the deficiency." Section 400.23(9), F.S. OBRA Regulations and their Applicability Compliance by a nursing home with OBRA regulation, if applicable, is part of the evaluation of nursing homes and is one aspect used to determine which rating, (conditional, standard or superior,) is to be given a nursing home. Section 400.32(8)(a),(b) and (c), F.S. Effective July 1, 1995, the U.S. Department of Health and Human Services amended its rules regarding the survey, Medicare-certification and enforcement of regulations for nursing homes. The new rules implemented certain provisions of the federal Omnibus Budget Reconciliation Act of 1987 ("OBRA '87,") as amended. Changes were thereby made in the process of surveying skilled nursing facilities under Medicare and nursing facilities under Medicaid and in the process for certifying that such facilities meet the federal requirements for participation in Medicare and Medicaid programs. The agency considers federal OBRA regulations in place after the amendments made under OBRA 87 to be applicable, including those adopted with an effective date of July 1, 1995. No evidence was introduced in this proceeding to contradict the agency's opinion that OBRA regulations are applicable to Florida nursing home ratings and evaluations. The OBRA regulations effective in July of 1995 include a "matrix" made up of twelve boxes. The matrix, to be referred to in determining whether a nursing home is in "substantial compliance" with federal regulations and whether a deficiency constitutes "substandard quality of care," or not, was published by the federal Health Care Financing Administration in the Department of Health and Human Services as a pamphlet entitled "Public Reference Guide." The pamphlet states as part of its "Background" section, "[t]his regulation becomes effective on July 1, 1995. The matrix (see Appendix "B", a copy of the matrix admitted into evidence as Petitioner's Exhibit No. 1) contains four levels of severity of federal deficiencies in bands stacked horizontally one on top of the other, described in descending order to the left of the matrix: "Immediate Jeopardy to Resident Health or Safety"; "Actual Harm that is not Immediate Jeopardy",; "No Actual Harm with Potential for More than Minimal Harm that is not Immediate Jeopardy"; and, "No Actual Harm with Potential for More than Minimal Harm". The matrix is divided into three columns at its base describing the scope of the deficiency in ascending order from left to right: "Isolated," "Pattern," and "Widespread." The intersections of the four bands of severity and the three columns of scope produce the twelve boxes. The boxes are labeled "A" through "L." The A box, the least intense in severity, is denominated "No Actual Harm with Potential for Minimal Harm" and is the most confined in scope, that is, "Isolated." The antipode of the "A" box is the "L" box, where severity is most intense, denominated "Immediate Jeopardy to Resident Health and Safety," and scope is the broadest, that is, "Widespread." The pamphlet is coded to indicate deficiencies which do not defeat substantial compliance. These are all the deficiencies which fall into the A, B and C boxes; that is, the least severe deficiencies no matter what their scope. Deficiencies falling into the remainder of the boxes indicate a facility's failure to achieve substantial compliance. The pamphlet is also coded to indicate deficiencies which constitute substandard quality of care. These are all of the categories of most severe deficiencies, ("Immediate Jeopardy to Resident Health or Safety"), that is, the J, K and L boxes; the two of the next most severe category of deficiencies, ("Actual Harm that is not Immediate Jeopardy") that are broadest in scope, ("Pattern" and "Widespread"), that is, the H and I boxes; the broadest in scope ("Widespread") of the third level in descending order of categories of severity, ("No Actual Harm with Potential for More than Minimal Harm that is not Immediate Jeopardy,") that is, the F box; and none of the least severe category of deficiencies. Left as not indicating substandard quality of care are deficiencies which fall into Boxes A through E and Box G. One would be disappointed if holding the expectation that deficiencies which would indicate a facility culpable of substandard of care would be divided somewhere neatly in the progression from the A box to the L box so that every box lettered higher in the alphabet and above this division would contain deficiencies constituting substandard care and every box below this line and lower in the alphabet would contain deficiencies not constituting substandard care. This is because the expectation fails with the F and G boxes. Every box higher than G, (H through L) contain categories of deficiencies constituting substandard of care and every box lower than F, (A through E,) contain categories free of substandard of care. But there is a reversal when it comes to the F and G boxes. The G box, with the next to the most intense severity, ("Actual Harm that is not Immediate Jeopardy") and the narrowest scope, ("Isolated,") does not contain deficiencies constituting substandard quality of care. In contrast, deficiencies which fall into the F box, a box with lower severity than the G box, that is, the next to the least intense severity, ("No Actual Harm with Potential for More than Minimal Harm that is not Immediate Jeopardy,") do indicate substandard quality of care because the scope of the F box is the greatest, that is, "widespread." The code "key," which appears in the federal pamphlet and is part of the federal regulation, appears just below the matrix on the pamphlet. With regard to any box coded as "substandard quality of care," the key contains the following stipulation: Substandard quality of care: any deficiency in s. 483.13, Resident Behavior and facility Practices, s. 483.15 Quality of Life, or in S. 483.25, Quality of Care that constitutes: [deficiencies that fall in the F box, or boxes H through L.] Respondent's Exhibit No. 2. The Challenge to the Proposed Rule The Association's challenge to the proposed rule has two parts: the first is to the text of the rule; the second, to Form No. AHCA 3110-6007, a "superior rating" form incorporated into the rule by reference. The Text Omission of Federal Limitations The proposed rule contains definitions of Class I, II and III deficiencies as well as definitions of "substandard quality of care" deficiencies. The definitions of the Class I, II and III deficiencies come directly from Section 400.23 of the Florida Statutes. In contrast, the definition of "substandard quality of care" deficiencies, while established by regulations adopted under the Omnibus Reconciliation Act (OBRA) of 1987 (Pub. L. No. 100-203), as discussed above, are not the same in the proposed rule as in the federal regulations. This is because the federal regulations limit the definition in ways the proposed rule does not. The federal regulations furnish the following definition: Substandard Quality of Care means one or more deficiencies related to participation require- ments under [s.] 483.13, Resident behavior and facility practices, [s.] 483.15, Quality of life, or [s.] 483.25, Quality of care of this chapter, which constitute either immediate jeopardy to resident health or safety; a pattern of or widespread actual harm that is not immediate jeopardy; or a widespread potential for more than minimal harm, but less than immediate jeopardy, with no actual harm. 42 CFR 488.301. This provision of OBRA regulation limits the definition of "substandard quality of care," to deficiencies related to participation requirements under three sections of Chapter 42 in the Code of Federal Regulations: s. 483.13, governing resident behavior and facility practices; s. 483.15, governing quality of life; and s. 483.25, governing quality of care. The proposed rule, by comparison, defines "Substandard Quality of Care" deficiencies as those which constitute either: "immediate jeopardy to resident health or safety; a pattern of or widespread actual harm that is not immediate jeopardy; or a widespread potential for more than minimal harm, but less than immediate jeopardy, with no actual harm." Petitioner's Ex. No. 3, p. Unlike the federal regulations, the proposed rule does not limit the definition to deficiencies related to participation requirements under the three sections enumerated in the section defining "substandard quality of care," 42 CFR 488.301. It was the agency's intent that the proposed rule follow the definition of the federal regulations precisely. Nonetheless, the agency omitted from the proposed rule the limitations present in the federal regulations. The omission was attributed by the agency to oversight on its part. In the view of the agency, the absence in the proposed rule of the federal regulations' limitations makes the proposed rule "incomplete." (Tr. 339.) Lack of Definitions in OBRA Regulations The OBRA regulations do not define the terms used to describe scope: "isolated," "pattern," or "widespread." Neither do the statute or the proposed rule. With regard to severity, the term "immediate jeopardy" is defined in the OBRA regulations, but the terms "actual harm" and "minimal harm" are not defined. The terms "actual harm" and "minimal harm" are not defined by statute or the proposed rule. The lack of definitions creates a problem among surveyors. Left to themselves, surveyors define the terms differently. Differences as to definitions are found even among surveyors on the same agency survey team. Superior Rating with Substandard Quality of Care Deficiencies assigned the next to the lowest severity but the broadest scope, that is, those that fall into the F box, are considered substandard quality of care under the OBRA regulations and the proposed rule. Nonetheless, these deficiencies are equated with Class III deficiencies. A facility found to have rendered substandard quality of care equated with a Class III deficiency, therefore, is eligible still to receive a superior rating provided the deficiencies are corrected in a timely fashion. At present, under current law without the proposed rule being effective, it is possible for the most severe OBRA deficiencies to be classified by the state as Class I, II or III deficiencies. The proposed rule would change that so that the most severe OBRA deficiencies would not be classified as Class III deficiencies. Aside from any requirement of the statute, the agency's rationale for using the OBRA regulations with regard to substandard quality of care was to ensure that facilities which are found to be providing substandard quality of care not receive a superior rating. The Superior Rating Form The Rating Survey and Scoring Sheet, Form No. AHCA 3110-6007, (the "Superior Rating Form) used by agency surveyors since March 1, 1995, opens with a section of instructions to the agency's surveyors to be used in making the determination as to whether a nursing home should be rated "superior." In observance of the statute, the instructions caution the surveyors that a superior rating survey is to be conducted only on facilities which have achieved "a standard rating at the time of the relicensure survey." The instructions go on to state: Florida law provides that a superior rating may only be awarded to a facility that exceeds the criteria for a standard rating in the following areas: Nursing services. Dietary or nutritional services. Physical environment. Housekeeping and maintenance. Restorative therapies and self help activities. Social services. Activities and recreational therapy. Petitioner's Ex. No. 6. The instructions then state, "[a] facility will be deemed to have met the statutory requirements if it attains the score necessary for a superior rating under this survey instrument." Id. After further instructions, the form is divided into six sections, four of which are to be completed by the surveyor and two of which are to be completed by the facility. The two to be completed by the facility are titled, "Consumer Satisfaction Survey," and "Staffing Characteristics." Id. The remaining four (those to be completed by the surveyors) call for descriptions of: 1. the resident population; 2. any quality improvement programs; 3. training not required by regulation to staff; and, 4. types of adjunct or specialty positions consistently used to provide improved resident care. Scored Sections Of the six sections to be filled out by the surveyor or the facility, four are scored to determine whether a superior rating should be assigned. The four are "quality improvement," "training," "resident care," and "staffing characteristics." Each demands a minimum number of points in order for the facility to receive a superior rating. "Quality improvement" demands 14 points, "training" 5, "resident care" 16, and "staffing characteristics" 12. Staffing Characteristics As to "staffing characteristics," the section of the form awards points for the years of experience of various key personnel at the facility. Points are also awarded for the number of years those individuals who occupy key staff positions have been employed by the facility. Points are awarded neither on the basis of ability of staff nor for adequate performance. The staffing section is the one scored section completed by the facility rather than the surveyors. After completion, the information filled in by the facility is not reviewed by the agency. While common sense advances a nexus between longevity of service and quality of service, no hard data was presented that longevity of service of key staff members plays a role in a facility's ability to provide superior service. Furthermore, the form provides for points to be assigned for the credentials of the staff members but neither the form nor the rule identify which credentials should yield points. The agency has such a list of credentials but neither the form nor the rule makes reference to the list. Agency surveyors do not confirm or question the information the facility provides in the "staffing characteristics" section of the form. The other scored sections With regard to the other three scored sections of the form, most of the information and scoring relate to the seven areas of enhanced programs and services the statute lists as necessary to qualify for a superior rating. For example, under Section III., the "Quality Improvement" section, points are awarded for active involvement in the quality improvement program of the following department/disciplines: nursing, rehabilitative services, dietary, housekeeping, maintenance, activities, social services and administration/medical staff. These department/disciplines all relate to at least one of the seven statutory areas of disciplines. Involvement of the nursing staff in a quality improvement program, for example, clearly relates to enhanced services in the area of "nursing services." Likewise, the same may be said for involvement of housekeeping and maintenance in the quality improvement program vis-a-vis the statutory area of housekeeping and maintenance. Other areas of scoring, however, do not relate as directly to one of the seven statutory areas of enhancement. Under Section III., "Quality Improvement," for example, 2 points are awarded under the heading "Implementation plans," for each of "resolve problems identified thorough monitoring aspects of care," "resolve problems identified by consumers," and "resolve problems identified by staff and management." With regard to the resolution of problems identified by staff and management, there is nothing to connect the problems to the seven areas of enhancement. For instance, a staff member could identify a personal problem with a supervisor, the resolution of which would have no impact on enhancement in any of the seven statutory areas. This shortcoming of the Superior Rating Form, (lack of nexus, with regard to achievement of points, between scored information and the seven areas of enhancement, appears throughout the scored sections.) In sum, it is difficult to know for certain that when points are awarded in every instance there will be a relationship with one of the seven statutory areas of enhancement. At the same time, at least one of the areas of enhancement appears to be shortchanged in the form. The only place "physical environment" enhancement is awarded points is under Section V., "Resident Care," and then only when "the facility has enhanced the physical environment to meet the extraordinary needs of special population residents." Id., p. 7. Yet, the listing of "physical environment," in the statute as one of the seven areas of enhancement does not limit the applicability of the area to any segment of the resident population. "Physical environment," is an area of enhancement applicable without limitation to the entire resident population of a nursing home. Nor does there appear to be much in the Superior Rating Form that relates directly to the statutory area of enhancement, "Restorative therapies and self-help activities." The difficulty in relating the scored categories of the form to the seven statutory areas of enhancement sets up the possibility for a nursing home to receive a superior rating when it does not deserve one because it does not exceed the criteria for a standard rating through enhanced programs and services in all seven areas. The form also requires a minimum of 14, 5, 16 and 12 points in the form's scoring categories of "Quality Improvement," "Training," "Resident Care," and "Staffing Characteristics," respectively. These minimums set up the possibility that a nursing home deserves a superior rating and yet will not receive one because, although it has enhanced programs and services in all seven areas, it may still not receive enough points as required by the form. This is true particularly if it does not receive the minimum number of points, (twelve,) under "staffing characteristics." In such a case, a facility could have enhancements in all seven areas, yet be defeated because of key personnel not having been in the facility's employ long enough. AHCA Use of an Unpromulgated Rule With the exception of the agency's use of the Superior Rating Form, there was no evidence offered at hearing that AHCA is using an unpromulgated rule to evaluate and rate nursing homes.
