The Issue The issue for determination is whether the Agency for Health Care Administration found deficiencies at Petitioner's nursing home sufficient to support the change in its licensure status to a conditional rating.
Findings Of Fact Petitioner, Glen Oaks, is a licensed nursing facility located in Clearwater Florida, licensed by and subject to regulation by the Agency pursuant to Chapter 400, Florida Statutes. The Agency is the licensing agency in the State of Florida responsible for regulating nursing facilities under Part II of Chapter 400, Florida Statutes. On February 2 and 3, 1998, the Agency conducted a complaint investigation at Glen Oaks in a matter unrelated to the issue that is the subject of this proceeding. As a result of that investigation, the Agency determined that the allegations in the underlying complaint were unfounded. While the Agency surveyor was at Glen Oaks investigating the complaint, she also performed a focused review at the facility. The focused review involved a matter unrelated to the complaint and came to the Agency surveyor's attention while she was touring the facility. During a tour of the facility, Claire R. Hoagland, R.N., the Agency surveyor, accompanied by Marlice Nix, R.N., an employee of Glen Oaks, entered the room of Resident No. 8. Once they were in the room, the resident complained to her primary care charge nurse, Marlice Nix, of soreness in the buttocks area. The charge nurse and the Agency surveyor, with the permission of the residence, looked at and noted redness on the resident's buttocks. This redness appeared to be excoriation associated with incontinence, rather than with any stages of pressure sores. In addition to the redness on the resident's buttocks, the surveyor and Ms. Nix identified an 0.5 centimeter linear shaped open area, equivalent in size to a pinpoint, measuring 0.1 centimeter in width with a zero depth located in the Resident No. 8's gluteal fold. Surveyor Hoagland believed that the red pinpoint size area on Resident No. 8 was a Stage II pressure sore. Upon review of the clinical record of Resident No. 8, Ms. Hoagland found no documentation that the facility had assessed the skin integrity of Resident No. 8 since December 20, 1997. Ms. Hoagland then spoke to the facility's administrator and its Director of Nursing. According to the administrator and Director of Nursing, the facility performed skin assessments on Resident No. 8, but had not documented all of the assessments. However, at the time of the Agency's visit to Glen Oaks, Resident No. 8's most recent annual "Minimum Data Set" (MDS), dated June 1997, documented the absence of any pressure sores. An MDS is a comprehensive assessment tool. During the April 1998, complaint investigation, the Agency surveyor learned that there were times when Resident No. 8 refused to be changed. For example, occasionally, when Resident No. 8 was watching her favorite television show, she asked not to be disturbed. The surveyor viewed this as "non-compliance" by Resident No. 8 and cited the facility because the resident's care plan did not specifically provide that staff would turn, re-position, or change the resident when her favorite television program was not on. Following the complaint investigation, the Agency cited Glen Oaks with an alleged failure to comply with the Omnibus Budget Reconciliation Act of 1987 (OBRA) regulatory requirements set forth at 42 C.F.R., Section 483.25 (c)(1). This requirement is also referred to on the Form 2567 as Federal Tag F-314 (the deficiency). According to that OBRA provision, the facility must ensure: (1) that a resident who enters the facility without pressure sores does not develop pressure sores unless they were unavoidable; and (2) that a resident with pressure sores receives the necessary treatment and services to promote healing, prevent infection, and prevent new sores from developing. The Agency alleged that Glen Oaks failed to comply with the above-cited OBRA provision in that (1) the facility did not document and/or perform weekly skin assessments on Resident No. 8, and that (2) Resident No. 8's care plan did not address her non-compliant behavior. Based on the facility's alleged deficiencies, it was the Agency's position that Resident No. 8 had developed a pressure sore that was avoidable. During the exit interview, the Agency Surveyor informed Glen Oaks that the deficiency would be classified as a Class III deficiency and would not affect Glen Oaks' superior licensure status. However, the Agency notified Glen Oaks on February 13, 1998, through the telephone call of its employee, Pat Silar, that its deficiency classification would be changed from a Class III to a Class II, resulting in a conditional rating for its nursing home license. By letter dated February 16, 1998, the Agency issued a Form 2567 setting forth the alleged deficiency; the findings supporting the deficiency; assessing the scope and severity of the deficiency at G; and classifying the deficiency as a Class II deficiency. In making her determination, Surveyor Hoagland used the surveyors' guidelines contained in the State Operating Manual (SOM). Appendix P of the SOM, entitled "Guidance to Surveyors," is the federal interpretative guideline to state surveyors regarding the OBRA regulations. Moreover, Surveyor Hoagland relied on the interpretive guidelines of F-314, including the booklet, Pressure Ulcers in Adults: Prediction and Prevention. There are two components to determining whether the development of an open area constitutes non-compliance with the OBRA requirement. First, the open area must, in fact, be a pressure sore. Second, if a pressure sore exists, the Agency must next determine if the development of the pressure sore was unavoidable. The SOM guideline corresponding to the OBRA Requirement governing pressure sores defines a pressure sore as an "ischemic ulceration and/or necrosis of tissues overlying a bony prominence that has been subjected to pressure, friction or sheer." The SOM defines a Stage II pressure ulcer or sore as "a partial thickness loss of skin layers either dermis or epidermis that presents clinically as an abrasion, blister, or shallow crater." Based on the definition in the SOM, a pressure sore is located over a bony prominence where the area would be subject to pressure. The pinpoint-size open area on Resident No. 8 was not located over a bony prominence, but rather in the gluteal fold. Also, the area was not the deep, dark, dusty red, with a purple center, that is associated with a Stage I or II pressure sore. Moreover, a Stage II pressure sore does not typically resolve in ten days as was the case with the area in Resident No. 8's gluteal fold. Due to the factors noted in paragraph 16 above, it is found that the pinpoint-size open area in Resident No. 8's gluteal fold was not a pressure sore. Even if it is assumed that the mark was a pressure sore, the Agency must next determine whether the pressure sore was unavoidable. In assessing whether a pressure sore was unavoidable, surveyors are to apply the "probes" set forth in the SOM. These probes are: Did the facility identify the resident as being at risk for pressure sores? Did the facility provide aggressive/appropriate preventative measures and care specific to addressing the resident's unique factors (e.g., if serum albumin is below 3.4 mg per dl, provide additional protein in daily snacks)? Was the preventative care plan implemented consistently? In the instant case, the answer to the first "probe" is yes. Resident No. 8 was admitted to Glen Oaks on March 4, 1994. At the time of admission, the resident had a Stage IV pressure sore which had healed by January, 1995, without surgical intervention. However, due to her medical history, Resident No. 8 was identified on the Resident Assessment Protocol as being at risk for the development of pressure sores. Because Resident No. 8 was identified as being at risk for developing pressure sores, the second "probe" requires that the Agency determine whether the facility provided aggressive appropriate preventative measures and care to the resident. Routine preventative care is defined by the SOM as turning and proper positioning; application of pressure reduction or relief devices; providing good skin care (i.e., keeping the skin clean, instituting measures to reduce excessive moisture); providing clean and dry bed linens; and maintaining adequate nutrition and hydration if possible. Resident No. 8's care plans dated June 1997, September 1997, and December 1997, were based on a comprehensive assessment of the resident; addressed the potential for alterations in skin integrity; and, provided for appropriate aggressive preventative measures and care. These preventative measures and care included turning and re-positioning at least every two hours; providing pressure relief mattress in both the Resident's bed and wheelchair; application of good skin care, including application of Vaseline care cream as a moisture barrier; and maintaining adequate nutrition and hydration, including the addition of the protein supplement Promod, and daily supplemental protein snacks and vitamins. These preventative skin care measures were also consistently implemented and effected the expedient healing of Resident No. 8's Stage IV pressure sore, present upon her admission to Glen Oaks in 1994. Furthermore, the consistent implementation of the prescribed preventative skin care measures prevented the development of any pressure sores for the period between January 1995 and February 1998, inclusive. The third probe requires a determination of whether the preventative care plan was implemented consistently. Here, Glen Oaks consistently implemented the preventative care plan measures listed in Resident No. 8's care plan. Thus, the third probe is answered in the affirmative. In the instant case, each of the inquiries or probes listed in paragraph 18 above is answered in the affirmative. Glen Oaks identified Resident No. 8 as being at risk for pressure sores; provided aggressive/appropriate preventative measures and care specific to address the residents unique risk factors; and, implemented the preventative care plan consistently. Accordingly, the development of the pinpoint-size open area in Resident No. 8's gluteal fold was unavoidable. Neither the applicable OBRA regulations governing pressure sores nor the SOM interpretative guidelines require weekly skin assessments for residents at risk for developing pressure sores. Thus, the failure to document all skin assessments does not constitute non-compliance with the OBRA requirements. Notwithstanding the Agency's findings to the contrary, Glen Oaks consistently implemented the care plan developed for Resident No. 8. However, Resident No. 8's care plan did not require a weekly skin assessment. Rather, the care plan required only that the Resident's skin be assessed for changes and that any changes be reported to the charge nurse/physician. Skin assessments were performed on Resident No. 8 more frequently than weekly. They were performed on Resident No. 8 several times a day during brief changes and twice a week during whirlpool baths performed by Charge Nurse Nix. However, because Resident No. 8's care plan did not so require, the benign assessments were not routinely documented. Typically, only changes or abnormal findings in a Resident's skin condition were documented in the resident's clinical records. Although the benign findings relative to skin assessments were not routinely recorded, the January 1998 Monthly Nursing Assessment for Resident No. 8 documented that the skin was intact; however, that report also noted the red area on the buttocks referred to in paragraph 4 above. On the other hand, two health care providers, charged with caring for Resident No. 8, observed no abnormal findings with regard to the resident's skin on January 30 and February 1, 1998. In the latter instances, the nursing staff did not record their findings that Resident No. 8's skin was intact. The Agency acknowledged that if skin assessments were performed on Resident No. 8 every day, there was no problem with the care provided. A care plan should address compliance only when a resident's non-compliance is frequent and becomes a habitual problem. Resident No. 8's non-compliance was not a habitual problem, and did not occur on a daily basis. Rather, Resident No. 8 was only "occasionally" non-compliant with regard to brief changes, turning and repositioning. In most cases, Resident No. 8's non-compliance required only that the charge nurse or Director of Nursing speak with the patient before the resident would comply. Occasionally, when Resident No. 8 was watching television, she refused to comply with the turning and re-positioning schedule and requested that the nursing staff come back when the television program was over. In these situations, the nurse complied with the resident's request, but would return soon thereafter to turn and re-position the resident. Resident No. 8's conduct cannot be deemed to be non- compliant and, therefore, there was no need to have the issue of non-compliance addressed in Resident 8's care plan.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED that the Agency for Health Care Administration enter a final order rescinding the conditional rating. DONE AND ENTERED this 14th day of December, 1998, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 14th day of December, 1998. COPIES FURNISHED: Karel Baarslag, Esquire Agency for Health Care Administration State Regional Service Center 2295 Victoria Avenue Fort Myers, Florida 33901 Rebekah N. Plowman, Esquire Long, Aldridge and Norman, LLP 303 Peachtree Street, Suite 5300 Atlanta, Georgia 30308 Sam Power, Agency Clerk Agency for Health Care Administration Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308 Paul J. Martin, General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308 Douglas M. Cook, Director Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308
Findings Of Fact Cilla McCray, is a resident of Gadsden County. The parties have stipulated that on December 3, 1977, she was admitted to the Tallahassee Memorial Hospital in an emergency medical condition, and that the treatment performed by the hospital was of an emergency nature. The parties have further stipulated that the Tallahassee Memorial Hospital is a regional referral hospital within the meaning of Section 154.304(4) , Florida Statutes (1977). Cilla McCray was admitted to the Tallahassee Memorial Hospital on December 3, 1977, and was discharged on January 9, 1978. The total bill for her services amounted to $8,753.80. The Hospital submitted a bill to Gadsden County in the amount of $1,521.48 for the services. This latter amount is the maximum allowed to be billed in accordance with the Florida Health Care Responsibility Act. Gadsden County has refused to pay the bill, contending that the patient was not indigent. The patient has not paid the bill. Cilla McCray is married to Lawrence McCray. They have three children but only two of them reside at home. The oldest child is not supported by his parents. During the six months preceding the hospitalization of Cilla McCray her husband had average earnings of $80.00 per week as a logger. Mrs. McCray had earned a total of $732.60 for employment during the six months prior to her hospitalization. The McCray's thus had average monthly earnings during that period in excess of $450.00 per month.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED: That a final order be entered rejecting the bill submitted by the Tallahassee Memorial Hospital for medical services performed for Cilla McCray. RECOMMENDED this 16th day of June, 1978, in Tallahassee, Florida. G. STEVEN PFEIFFER, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: John Shaw Curry, Esquire Post Office Box 706 Quincy, Florida 32351 John D. Buchanan, Jr., Esquire Post Office Drawer 1049 Tallahassee, Florida 32302 Chairman Board of County Commissioners Gadsden County Courthouse Quincy, Florida
The Issue The issue is whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what disciplinary action should be taken against her license to practice nursing in the state of Florida.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of facts are made: At all times material to this proceeding, Respondent was licensed by the State of Florida as a practical nurse, holding license number PN0876551. At all times material to this proceeding, Respondent was employed by Arch Creek Nursing Home (Arch Creek) where she worked as a practical nurse on the 11 p.m. to 7 a.m. shift. Her direct supervisor, Ms. McDonald, R.N., worked the 7 a.m. to 3 p.m. shift. The Arch Creek Director of Nursing, Jeanette Jaffe, R.N., also worked the day shift. At all times material to this proceeding, Respondent was assigned to provide nursing care to patient E. R., a seventy-seven (77) year old female. After suffering a stroke, E. R. was admitted to North Shore Medical Center (NSMC) on November 16, 1990. She was transferred from NSMC to Arch Creek on December 7, 1990. At that time, E. R. suffered hypertension and was partially paralyzed and aphasic. Because she was incontinent of bowel and bladder, a foley catheter was used for urine drainage. A gastrostomy tube was required for nutritional feeding. At the time of admission to Arch Creek, E. R. also had a stage II sacral decubitus ulcer on her buttocks which was one and one half (1 1/2) inches by one half (1/2) inches. The decubitus ulcer was not infected at that time. On December 7, 1990, Dr. Cottler, E. R.'s physician at Arch Creek, ordered that the decubitus ulcer be treated with a DuoDerm dressing, an occlusive "sealed" treatment, which was to be changed every three (3) days. He also ordered that E. R. be turned every two (2) hours to alleviate pressure in the sacral area. On December 9, 1990, a 3:00 p.m. nurse's note reflects that E. R. had two (2) open sores with a small necrotic area on her buttocks. Dr. Cottler examined E. R. on December 11, 1990. He did not describe the ulcer in his notes or change the orders for treatment. At that time, the wound was approximately 4" by 6" inches. On December 17, 1990, a 2:45 p.m. nurse's note reflects that E. R.'s decubitus ulcer was getting worse and needed to be evaluated. Nurses' notes are inherently reliable. The presence of these notes in E. R.'s chart should have alerted Respondent to the changes in E. R.'s condition. Respondent had the opportunity to observe whether the DuoDerm dressing was intact and clean when she performed her rounds on the night shift. This was especially important after a bowel movement to ensure that fecal matter did not contaminate the wound. On December 20 and 21 at 6:00 a.m., Respondent noted on E. R.'s chart that a treatment was done to the buttocks. On neither occasion did Respondent chart information relating to the size, color, odor, or drainage of the decubitus ulcer. All of these factors needed to be documented so that a record could be developed as to any changes in the patient's condition and to facilitate an ongoing assessment of the treatment. Respondent did not contact Dr. Cottler during the night shift of December 20-21. There is no persuasive record evidence that Respondent verbally reported E. R.'s condition to the registered nurse in charge on the mornings of December 20 and December 21. On December 21 at 4:00 p.m., a nurse noted in the chart that the skin around E. R.'s sacral area was black with a fowl odor and appeared not to be responding to treatment. This same nurse noted that Dr. Cottler's new orders required E. R.'s wound to be treated with twenty-five percent (25 percent) acetic acid and wet to dry dressings every eight (8) hours. A decubitus ulcer does not change to a fowl smelling necrotic ulcer in ten (10) hours. Therefore, it is likely that the signs of decay were present when the Respondent treated E. R.'s buttocks on the night shifts of December 19- 20 and 20-21. Around noon on December 23, E. R.'s temperature was 100.8 degrees. Respondent again provided nursing care to E. R. on the night shift of December 23-24. At 3:00 a.m., she observed that E. R. was slower to respond and short of breath. However, this assessment of E. R.'s condition was incomplete. Respondent did not record the patient's vital signs or note the condition of the decubitus ulcer. She also failed to alert Dr. Cottler of the change in E. R.'s condition. Evidence that Respondent made a verbal report regarding E. R.'s condition to the registered nurse at 7:00 a.m. on the morning of December 24 is not persuasive. Because E. R. was slower to respond and short of breath at 3:00 a.m. on December 24, Respondent should have recorded the patient's vital signs and documented other relevant information, including the condition of the decubitus ulcer. Armed with all the information for a total assessment, Respondent should have immediately alerted the doctor about E. R.'s condition. At 2:00 p.m. on December 24, a nurse's note reflects that E. R. was unresponsive and short of breath. The nurse informed Dr. Cottler, who ordered a chest x-ray and oxygen for E. R. Dr. Cottler subsequently authorized transfer of E. R. to NSMC. At the time of transfer, Dr. Cottler was under the impression that E. R. had aspirated. On admission to NSMC's emergency room, E. R. was unresponsive and acutely short of breath. Her vital signs were extremely beyond her normal range: temperature, 102.8; pulse, 130; respirations, 40; and blood pressure, Additionally, E. R.'s white blood cell count of 31,000 indicated the presence of infection. Dr. Kann took care of E. R. upon her admission to NSMC on December 24. Within twenty-four (24) hours, he observed that E. R.'s wound was roughly nine (9) inches by six (6) inches by three (3) inches deep; it had greatly increased in size and had deteriorated in condition during the seventeen (17) days that E. R. had been a resident at Arch Creek. On January 8, 1991, fifteen (15) days after E. R. was discharged from Arch Creek, Respondent charted a late entry on E. R.'s Weekly Decubitus or Treatment Sheet. This entry was dated December 13, 1990, and states: I, Catherine Evanoff, L.P.N., reviewed this patient on 12/13/90. Superficial decubitus area extends 6"-7" across both left & right buttocks (Coccycx area, necrotic tissue, is deeper in depth and surrounded by red soft, tender tissue. All decubitus area is soft, mushy w/strong foul odor & drainage present.) Respondent made this late entry at the request of Jeanette Jaffe, R.N., the Director of Nursing at Arch Creek. Ms. Jaffe asked Respondent to make the record because Ms. McDonald, the registered nurse in charge of the day shift and Respondent direct supervisor, no longer worked at Arch Creek. Respondent should not have made the late entry fifteen days after the care was provided. A late entry should be made only where such information continues to be relevant and pertinent to the care being provided to a patient. After emergency room treatment, E. R. was admitted to NSMC's intensive care unit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore recommended that the Board of Nursing enter a Final Order finding that Respondent violated Section 464.018(h), Florida Statutes (1989). Additionally, the Board of Nursing should: (1) reprimand Respondent's license; (2) place Respondent on probation for two (2) years with direct supervision; (3) require Respondent to take continuing education courses in decubitus care and charting in addition to her required continuing education credits; (4) require Respondent to pay an administrative fine in the amount of $1,000. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 28th day of November 1994. SUZANNE F. HOOD, Hearing Officer Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of November 1994.
The Issue The issue in this case is whether Petitioner's license should be classified as conditional, pursuant to Section 400.23(8)(b), Florida Statutes (1999), and Florida Administrative Code Rule 59A-4.1288. (All chapter and section references are to Florida Statutes (1999) unless otherwise stated. Unless otherwise stated, all references to rules are to the Florida Administrative Code in effect on the date of this Recommended Order).
Findings Of Fact Respondent is the state agency responsible for evaluating nursing homes in Florida pursuant to Section 400.23(8). Petitioner is a licensed nursing home located in Titusville, Florida (the "facility"). Chapter 400 originally required Respondent to conduct a survey of each nursing home in Florida every 12 months. Each survey was commonly referred to as an annual survey. The legislature subsequently changed the survey interval to every 15 months, but each survey is still referred to as an annual survey. Respondent conducted an annual survey of the facility on November 17 through 19, 1999. The survey report is identified in the record as the "2567 Report." The parties agree that the 2567 Report is the charging document. The 2567 Report expressly determined that Petitioner failed to ensure that resident number four (the "resident") did not develop pressure sores on September 16, 1999, and that Petitioner failed to ensure that the resident received the necessary treatment and services to prevent pressure sores from developing. The parties stipulated that no other deficiency is at issue in this proceeding. The resident had developed pressure sores on June 18, 1999, but those sores had healed before September 16, 1999, and are not at issue in this proceeding. The 2567 Report determined that the alleged deficiency violates 42 Code of Federal Regulations ("CFR") Section 483.25(c). Rule 59A-4.1288 applies relevant federal regulations to Florida nursing homes. The 2567 Report identifies the standard of care at issue as Tag F314. Based on the Tag 314, Respondent issued Petitioner a nursing home operating license rated as "Conditional" for the period November 19, 1999, through December 23, 1999. The conditional license decreased the license rating for Petitioner from "Standard" to "Conditional" within the meaning of Section 400.23(8). On December 23, 1999, Respondent conducted a follow-up survey. Respondent determined that Petitioner had corrected the deficiencies in Tag F314 and issued a "Standard" license pursuant to Section 400.23(8)(a). Respondent rated the severity of alleged deficiency between November 19 and December 23, 1999, with a rating of "II". A severity rating of "II" means the deficiency presented an immediate threat to the health, safety, or security of residents in the facility. Respondent is also required to rate the deficiency under a federal classification system. Respondent assigned a scope and severity rating of "G" to the alleged deficiency between November 19 and December 23, 1999. A "G" rating means an isolated incident creates actual harm to a resident, but the resident is not in immediate jeopardy. Applicable law requires that Petitioner post the conditional license in a conspicuous place near the entrance of the facility. Petitioner did so and filed a Petition for Formal Administrative Hearing with Respondent. The Petition challenged the finding of the November survey that Petitioner committed a Class II deficiency and also challenged Respondent's decision to issue a conditional license to Petitioner. Respondent referred the Petition to DOAH and this proceeding ensued. Open Areas A threshold issue is whether the resident developed pressure sores or whether the open areas were reddened areas or friction blisters that did not satisfy the definition of pressure sores. A pressure sore is defined in 42 CFR Section 483.25(c) as: . . . ischemic ulceration and/or necrosis of tissues overlying a bony prominence that has been subjected to pressure, friction or shear. Neither of the open areas over the resident's left and right hips satisfied the definition of a pressure sore. Neither open area was located over a bony area. Both wounds were located over a fatty area of the resident's hips. The medical records describe the area over the right hip as having peeled-back skin, being small in size, and having yellow slough. That description is consistent with chafing and is not descriptive of a pressure sore. Unlike the two open areas over the resident's hips, the open area over the resident's coccyx was located over a bony area of the tailbone. However, the small size and rapid healing time of two weeks are consistent with contact dermatitis caused by diarrhea rather than a pressure sore. The open area did not have the deep tissue damage associated with a pressure sore. Pressure sores start deep in the muscle and work their way to the surface. They are caused by prolonged pressure to skin over a bony area and typically require a prolonged healing time. The open area over the resident's right hip had healed by December 23, 1999, when Respondent conducted the follow-up survey. However, the open area over the resident's left hip had not healed as of the date of administrative hearing on May 12, 2000. The long healing time for the open area over the resident's left hip is consistent with a pressure sore even though the area is not located over a bony area. Petitioner performed an MRI bone scan to determine why the open area over the resident's left hip was not healing. The scan revealed that the resident had a prosthetic hip and that the prosthesis had loosened. The MRI scan noted that the "skin wound shows no associated bone activity." The failure of the wound to heal, more likely than not, was caused by stress on the resident's skin from the interaction between the loose prosthesis and the contraction and relaxation of the resident's muscles. The resident's clinical condition demonstrates that the occurrence of the open area over the resident's left hip and its failure to heal were unavoidable. Petitioner did not fail to provide the treatment and services necessary to prevent the open area over the left hip from developing. The treatment measures used by Petitioner for the open area over the resident's left hip included debridement, or surgical cleaning. Surgical cleaning of the open area is appropriate for a friction blister as well as a pressure sore. Unlike Respondent's witness, both of the witnesses for Petitioner actually observed the resident. The Director of Nursing and the nurse that testified for Petitioner both concluded that the three open areas on the resident were not pressure sores. Their testimony was credible and persuasive. Petitioner listed the three open areas at issue on the Pressure Ulcer Report in the medical records because that is the only form available to document open wound and treatment areas. The medical records contain six references that describe the three open areas on the resident as ulcers or decubitis wounds. Hundreds of other references in the medical records describe each of the three open areas as a wound, blistered area, or red area. Notice Assuming arguendo that the three open areas on one resident were pressure sores, a second threshold issue is whether the 2567 Report provides adequate notice of the charges against Petitioner. The parties agree that the 2567 Report charged Petitioner with allowing a pressure sore to develop and with failing to ensure that the resident received the care and services needed to prevent pressure sores from developing. However, the parties dispute whether the 2567 Report charged that Petitioner failed to provide the services necessary to promote healing. Tag F314 in the charging document provides notice to Petitioner in the following manner. Tag F314 first states the "Requirement" for the quality of care of each resident, then states the basis for the conclusion that the "Requirement" was not met for the resident, and finally states the "Findings" that allegedly support the conclusion. In relevant part, Tag F314 states: F314 483(25(c) Requirement SS=G Quality of Care (emphasis supplied) Based on the comprehensive assessment of a resident, the facility must ensure that a resident who enters the facility without pressure sores does not develop pressure sores unless the individual's clinical condition demonstrates that they were unavoidable; and a resident having pressure sores receives necessary treatment and services to promote healing, prevent infection and prevent new sores from developing. (emphasis supplied) This requirement is not met as evidenced by: The facility did not ensure that [the resident] received the care and services to prevent pressure sores from developing. (emphasis supplied) Findings: Resident #4 was admitted 1/27/98 with diagnoses of dementia, bronchitis, thrombosis and embolism. Her MDS (Minimum Data Set) dated 6/18/99 indicated she had three (3) stage II pressure sores. These apparently healed because documentation in the nurses notes dated 9/10/99, noted "no open areas". Her care plan dated 9/20/99 noted open areas to the left hip, stage II, measuring 4 x 1.5 cm and right hip, unstageable, measuring 3 cm, and sacral area, stage II, measuring 2 cm. Documentation on 10/5/99 noted the coccyx was healed and on 10/12/99, left and right hips reddened stage I. On 9/16/99 at 10:55PM, documentation in the nurses notes indicated "3 x 3 red area left hip with 2 intact blisters below". The next note on 9/17/99 at 10:30 PM indicated "preventative skin care". The pressure ulcer reports noted that the pressure sore on left and right hips was first observed on 9/16/99 as stage I. On 9/20/99, four (4) days later, both pressure sores were noted as stage II, measuring 1 cm round with the left hip having serous drainage and the right hip having scant drainage. However, nurses notes documented on 9/20/99 that the pressure sore on right hip measured cm red with brown center, left hip measured cm red with 1.5 cm soft, open white/brown center, and sacral area 2 cm red open. By 9/24/99 documentation in the pressure ulcer report noted the left hip increased in size to 2.2 x 4 cm. Documentation noted right hip increased to 1.6 x 1.4 cm 10/21/99. Nurses notes dated 9/22/99 at 7:00 PM noted, "treatment orders received from doctor", six (6) days after the pressure sore was first observed and two days after the order was faxed to the physician. Interview with charge nurses on both units on 11/16/99, at 3:30 PM and 11/17/99 at 2:00 PM revealed they did not know why the resident had developed pressure sores. Observation of the pressure sore on 11/17/99 at 1:00 PM revealed the left hip measuring 1.5 x 2.5 cm with yellow slough and the right hip measuring 1.1 x 0.7 cm with a necrotic area on top. There was no way to determine what stage the pressure sore on the left hip was at this time since it was covered with slough. The charge nurse indicated that the pressure sores had become worse over the weekend. The resident was observed on 11/18/99 from 9:35 AM in bed, lying on her back and head of bed elevated 45 degrees, 10:20 AM, lying flat on her back in bed, 11:48 AM and 12:20 PM lying on her back flat in bed. The resident's position was changed at 1:30 PM when she was turned to her left side. During the course of the survey, the resident was never observed out of bed. Additionally, the resident had a 36 pound weight loss for one year and a 13 pound weight loss for six months. There was no documentation that the facility provided services necessary to ensure that this resident did not develop pressure sores and no documentation that the physician was notified promptly after the pressure sores were first observed. Documentation revealed that the facility notified the physician when the pressure sores on both hips were stage II and six days after they were first observed. (emphasis supplied) The express terms of Tag F314 do not charge that Petitioner failed to provide the resident with the necessary treatment and services to promote healing and prevent infection. Evidence of any alleged deficiency not contained in the express terms of the charging document are not relevant and material to the allegations in the charging document. Open Areas Were Unavoidable Assuming arguendo that one or more of the three open areas on the resident were pressure sores and that the 2567 support provided adequate notice of the charge that Petitioner's services failed to promote healing and prevent infection, two issues must be determined. One issue is whether the resident's clinical condition made the occurrence of the pressure sores unavoidable. The other issue is whether Petitioner failed to provide the treatment and services necessary to prevent the pressure sores. Respondent's witness did not evaluate whether the resident's open areas were avoidable. The witness did not offer an opinion on this issue. The resident was originally admitted to the facility in 1991. She has resided there since that time except for a number of brief trips to the hospital. She is a long-term resident of the facility whose needs are well known to facility staff. By 1999, the resident was a very sick woman. Her diagnoses included: Alzheimer's disease/dementia; low thyroid; psychosis; colostomy; artrial fibrillation; mitral valve prolapse; embolism; deep vein thrombosis; dysphagia; anorexia; bronchitis; urinary track infection; electrolyte and fluid imbalance; contractures; depression; intermittent edema; periodic diarrhea; chronic incontinence of bowel and bladder; and decreased tissue tolerance. The resident was routinely evaluated by Petitioner using a Minimum Data Set ("MDS") evaluation tool. The MDS assessment of April 14, 1999, identified the resident as being at risk for, among other things, the development of pressure sores and for weight loss. Petitioner developed a care plan to address these risks. The care plan for pressure sores included prompt cleaning and drying after each incidence of incontinence; regular monitoring of skin condition; a weekly skin assessment; encouraging the resident to maintain her nutrition and hydration; turning and repositioning the resident at least every two hours; and encouraging the resident to participate in movement oriented activities to relieve pressure points. When the resident's skin became compromised and reduced the turning surfaces, Petitioner brought in an air bed. In an effort to provide the resident with the best care possible, Petitioner upgraded the air bed several times without reimbursement. The parties agree that the resident's medical condition was highly compromised and that her condition deteriorated during 1999. She had numerous clinical comorbidities and became bedfast due to the development of contractures. The major problems that required constant monitoring and adjustment to the resident care plan included chronic incontinence of the bladder that resulted in excoriation and breakdown of the resident skin. Petitioner routinely used a Foley catheter for the resident to allow her skin to heal. Once the skin healed, the catheter was removed. Once the catheter was removed, the resident would suffer from renewed excoriation and breakdown of her skin. This cycle repeated itself throughout 1999. The resident also suffered from edema throughout 1999. This resulted in her being hospitalized on June 9, 1999. Whenever the resident experienced worsening of her edema, she would be put on Lasix. When her edema abated, Petitioner discontinued its Lasix. The resident experienced weight loss as her medical condition deteriorated. She weighed 162 pounds on January 15, 1999, and 121 pounds by August 15, 1999. Her weight stabilized in August, however, and never dropped below her ideal body weight. Petitioner tried numerous interventions to stabilize and increase the resident's weight. One intervention included dietary supplements. However, dietary supplements had to be discontinued because they caused diarrhea. The resident suffered from dysphagia that created difficulty in eating and swallowing. In an attempt to overcome this condition, Petitioner gave the resident speech therapy and put her on a pureed diet. Throughout 1999, Petitioner continued to evaluate the resident's condition and to provide her with the best possible care. Petitioner gave the resident MDS evaluations seven times between March and September, 1999. All of the resident's body functions, including skin integrity, were constantly on the verge of becoming dysfunctional. On September 12 and 13, 1999, the East Coast of Florida was threatened by Hurricane Floyd. Hurricane Floyd appeared to be heading straight for Titusville. The facility administrator monitored the national disaster center, the hurricane center, and the local weather information. The facility administrator decided that Petitioner should evacuate the facility to provide for the safety of the residents. The evacuation of a nursing home is a demanding task. All residents must be fed and have liquids during the transfer. The facility has to make sure that the residents' medications and medical devices and clothes will travel with the residents. Although Petitioner doesn't usually use adult diapers on its residents, it was necessary during transport from and back to the facility because there is no ability to change resident clothing during the trip. These tasks were made all the harder because Petitioner did not have its full complement of staff due to the hurricane. All in all, it took over five hours to load the residents onto the busses for evacuation. Petitioner evacuated the residents to three central Florida nursing homes that were also short-handed due to the hurricane. Petitioner sent the resident to Plantation Bay in Kissimmee, Florida. While she was there, it was impossible to implement every element of her care plan. Care focused primarily on feeding residents, seeing that they received their medications, and keeping them clean and dry. Petitioner transported the resident's air mattress to Plantation Bay. By September 15, 1999, Hurricane Floyd had passed, and the residents returned to the facility. This again necessitated packing the residents up, placing them in adult diapers, and transporting them back to the facility. When the staff and residents returned to the facility, they found that the electric power was out temporarily. The residents' clothes could not be washed immediately and the residents had to wear adult diapers until the power was restored. On September 16, 1999, the resident underwent a complete evaluation. At that time, it was noted that she had a 3 cm. X 3 cm. red area on her left hip with two small intact blisters below the reddened area. She did not have any open areas at that time. This area was examined again the next day. At that time, the facility was providing preventive skin care and was putting barrier cream on the left hip area. On September 19, 1999, the treating physician examined the resident, and did not note anything concerning her skin integrity. On September 20, 1999, the resident had open areas on her skin for the first time. The nurse's notes on that day describe three open areas as follows: On the right hip there is a 3 cm. open area with peeled skin and a 2 cm. brown center; on the left hip there is a 4 cm. red area with a 1.5 cm. open area with a white/brown center; and on the sacral area there is a 2 cm. open area. Facility staff notified the treating physician of this development and recommended that Allevyn bandages be prescribed for all three open areas. On September 22, 1999, the treating physician notified staff that he concurred with their recommendation. Within two weeks, the area of the coccyx/sacral area had healed completely. The right hip area was completely healed within two months. The left area still had not completely healed at the time of the Final Hearing and continues to be an area of concern and a focus of treatment. On November 15, 1999, before the state survey inspection started, Petitioner had a culture done on the resident's left hip to determine if that area was infected. The results of that laboratory test showed that the area was not infected. On November 23, 1999, Petitioner debrided, or surgically cleaned, the open area on the resident's left hip in an effort to promote healing. On December 23, 1999, Petitioner had a bone scan done to the area of the resident's left hip. The scan noted that there was a possible loosening of the resident's prosthesis and that the "skin wound shows no associated bone activity". Petitioner did everything reasonably possible to prevent the resident from developing pressure sores and to treat the open areas. Petitioner performed seven MDS assessments between March and September, 1999, four Braden assessments during that period, and a weekly head-to-toe skin assessment. Petitioner inspected for skin integrity during the resident's twice-weekly showers. Petitioner turned the resident and repositioned her at least every two hours. In addition, Petitioner turned and repositioned the resident every time she was treated for incontinence and after each meal. Petitioner made every effort to keep the resident dry and clean, even though she had chronic incontinence. Petitioner routinely placed the resident on a catheter to allow her skin to heal. Once her skin was intact, the catheter was removed. However, incontinence led to further skin breakdown that, in turn, led to the catheter being put back in place. Petitioner used a barrier cream in an effort to keep the resident skin dry and clean. When indicated, Petitioner put heel-protecting booties on the resident. When the resident turning surfaces became weakened, Petitioner obtained a pressure- relieving air mattress without reimbursement and upgraded the mattress several times. Proper Care Respondent contends that Petitioner failed to provide the resident with the necessary treatment and services to promote the healing of her pressure sores and that the result of this failure was the development of infections. The particular treatment and services that Respondent alleges Petitioner did not provide are turning and repositioning the resident; notifying the resident doctor in a timely manner after the development of the open areas; and failure to address weight loss. Turning and repositioning a resident who is at risk for the development of pressure sores, or who has developed pressure sores, is a standard intervention. It keeps a resident from having prolonged pressure over any one bony prominence. The standard protocol in the industry calls for a resident to be turned and repositioned at least every two hours. Respondent asserts two grounds for finding that the resident was not turned and repositioned every two hours. First, the nurse's notes do not always state that the resident was turned and repositioned. Of 720 possible opportunities to note turning and repositioning between March 24 and November 19, 1999, the nurses' notes contain 105 entries that refer to turning and repositioning. According to Respondent's expert witness, if turning and repositioning isn't in the chart, it didn't occur. The resident was extremely compromised and was at great risk for the development of pressure sores. If the resident had been turned and repositioned only 105 times of 720 opportunities, she would have developed serious pressure ulcers on all of her weight-bearing surfaces including her heels, knees, and ankles. She would have developed Stage IV ulcers on her heels and sacrum had she not been regularly turned and repositioned. The absence of pressure sores on the resident is persuasive evidence that Petitioner regularly turned and repositioned the resident. There is no requirement or nursing standard that routine care such as turning and repositioning must be charted. Routine care is sometimes charted by nurses out of habit, but charting turnings and repositionings is not mandatory. The resident's records show that charting of certain routine items was irregular. For example, the air mattress for the resident remained in place once it was put in place. The resident's chart notes the presence of an air mattress on June 6, 8, 11, and 17. There is no mention of the air mattress in the nurses' notes of June 9, 10, 13, 14, 15, 18, 19, or 20. There are multiple nurses' notes on June 12, 21, 24, 26 and 30, wherein one of the notes mentions the air bed and others do not. Similarly, the charts note that the resident had open areas to her skin for September 16, 20, 30, and October 4 and 5, 1999. The nurses' notes for September 17, 22, 24, 29, and October 7 and 8, 1999, do not mention the resident's skin condition. The surveyor noted in relevant part: The resident was observed on 11/18/99, from 9:30 AM in bed, lying on her back and the head of bed elevated 45 degrees, 10:20 AM, lying on her back flat in bed, 11:48 AM and 12:20 PM lying on her back flat in bed. The resident's position was changed at 1:30 PM when she was turned to her left side. From this recitation, Respondent infers that the resident was not turned and repositioned for a four-hour period on November 18, 1999, and was not, therefore, regularly turned and repositioned. The resident had severe contractures that resulted in her left leg being pulled way up and across her body. Due to this condition, the resident could appear to be lying flat on her back when she was either on her back or when she was actually on her right side. The surveyor did not enter the resident's room when the surveyor made the observations contained in the survey report. The surveyor merely observed the resident briefly from the hallway. The surveyor mistakenly believed the resident was on her back when she was actually on her right side. The Director of Nursing was aware that the resident was a focus of the survey. The Director directed her CNA's, her wing managers, and her Assistant Director of Nursing to be sure that the resident was regularly turned and repositioned. The Director personally checked to confirm that the resident was regularly repositioned. She knew of her own knowledge that the resident was turned and repositioned at least every two hours and identified the person who physically did the turning. Respondent asserts that Petitioner was deficient because it did not notify the resident's doctor of her skin condition for a period of six days. Respondent bases this allegation on the fact that the first red area on the resident was observed on September 16, 1999, and the doctor's concurrence of staff's recommended treatment was not received until September 22, 1999. The resident's treating physician visited her at the facility on September 19, 1999. He did not determine that additional treatment orders were needed at that time. Facility staff first noted open areas on the resident on September 20, 1999, and notified the treating physician on that day. In the notification, staff requested that the physician approve a treatment plan that called for "cleanse w/ N/S then apply Requesting Allevyn Islands for all three. Change every three days & prn." The physician was out of town, but approved the recommendation when he returned on September 22, 1999. The resident's physician visited her after the red area was observed on her left hip, but before it became open. Petitioner notified the physician immediately upon noting the open areas. The two-day delay in getting confirmation of the recommended treatment was caused by the physician's absence and not by Petitioner. Respondent's witness testified that the resident's weight loss "was a factor that influenced the clinical outcome of the pressure ulcer," that it "was a tangible manifestation of some type of physiological symptom failure," and that the weight loss indicated that the resident was at risk for developing pressure sores. However, Petitioner knew that the resident was at risk for developing pressure sores. Petitioner prepared and implemented numerous care plans to deal with this risk. Respondent did not allege that the nutritional services provided to the resident were inadequate. The resident never dropped below her ideal body weight. The resident stabilized in August 1999, approximately 123 pounds. Petitioner provided the resident with speech therapy for dysphagia and difficulty with swallowing and digestion. Petitioner provided the resident with dietary supplements to increase her caloric intake. The supplements were discontinued because they caused diarrhea. Petitioner placed the resident on a pureed diet in an effort to make her food easier to eat. A dietitian evaluated the resident 23 times between May 27 and December 8, 1999. Respondent did not identify any dietary or nutritional intervention that Petitioner should have taken, or any ill- advised nutritional treatment that Petitioner did provide. Petitioner was aware of the resident's weight loss, constantly evaluated and reevaluated her nutritional needs and strategies for meeting them, and successfully halted her weight loss while she was still within her ideal body weight and before she suffered any breakdown of her skin. No nutritional deficiency was shown. Respondent infers that the resident's wound to her left hip became infected because it was noted at one time in the nurse's notes to have a foul odor and pus. As a part of the treatment of the resident's left hip, Petitioner applied Hydrogel directly on the wound and Polyskin over that. The dressing remained in place for three days. The dressing created a foul odor as it disintegrated over the three days it was in place. As the serous drainage of the wound mixes with the medication, it creates the appearance of pus. Petitioner had a culture done to test for infection. The culture test was ordered before the survey inspection. The test demonstrated that the resident did not have an infection. In addition, the resident's physician never prescribed an antibiotic for infection. At the time of the inspection, the resident census at the facility was 113. Of those, at least 50 percent were identified as being at risk for the development of pressure sores. Based on the national average of a 7-9 percent incidence of pressure sores on nursing home residents, one would expect that the facility would have 8 to 10 residents at any one time with pressure sores. The resident was the only resident Respondent alleged to have pressure sores. Class II Rating Assuming arguendo that the resident did actually develop three pressure sores, the greater weight of the evidence suggests that she was turned and repositioned on a regular basis at least every two hours; that her physician was properly kept abreast of changes in her condition; that her nutritional status was regularly evaluated and every effort was made to maintain her weight; and that her wounds did not become infected and were superficial and relatively mild. As such, it was not proven that the alleged deficiencies had more than an indirect or potential relationship to the health, safety, or security of the resident. The alleged deficiencies should have therefore been classified as no more than Class III deficiencies, and Petitioner should not have been issued a Conditional license.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order finding Respondent not guilty of the alleged deficiency and reinstating Respondent's license rating to standard for the period between November 19 and December 23, 2000. DONE AND ENTERED this 27th day of September, 2000, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of September, 2000. COPIES FURNISHED: Mark S. Thomas, Esquire Michael Hope, Esquire Agency for Health Care Administration Fort Knox Building 3 2727 Mahan Drive Tallahassee, Florida 32308-0543 R. Davis Thomas, Jr., Qualified Representative Jay Adams, Esquire Broad and Cassel 215 South Monroe Street, Suite 400 Tallahassee, Florida 32301 Sam Power, Agency Clerk Agency for Health Care Administration Fort Knox Building 3 2727 Mahan Drive, Suite 3431 Tallahassee, Florida 32308 Paul J. Martin, General Counsel Agency for Health Care Administration Fort Knox Building 3 2727 Mahan Drive, Suite 3431 Tallahassee, Florida 32308-5403
The Issue Whether Respondent committed the violations alleged in the Administrative Complaints? If so, what disciplinary action should be taken against him?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The Parties The Agency is a state government licensing and regulatory agency. Respondent is now, and has been since August 27, 1971, a physician licensed to practice medicine in the State of Florida. He holds license number ME 0018306. Respondent previously faced charges of professional misconduct in DPR Case No. 89-0925. In that case, Respondent was charged with practicing medicine with an inactive license from on or about January 1, 1984, until on or about November 22, 1989. The matter was resolved by the parties entering into a settlement stipulation, which was approved by the Board of Medicine in a final order entered August 13, 1990. Under the terms of the agreement, Respondent, without admitting his guilt, agreed to pay a $500.00 administrative fine and not to "in the future violate Chapters 455, 458 and 893, Florida Statutes, or the rules promulgated pursuant thereto." Facts Relating to Case No. 93-2640/Administrative Complaint #1 From on or about February 8, 1991, to March 24, 1991, patient R.D., a 43 year old male who had tested positive for the Human Immunodeficiency Virus (HIV), was hospitalized at North Florida Reception Medical Center Hospital (hereinafter referred to as "MCH"). During his hospitalization, R.D. received treatment for advanced Acquired Immunodeficiency Syndrome (AIDS) and related complications. Elizabeth Mutch, M.D., was R.D.'s attending physician at MCH. R.D. was experiencing difficulty in swallowing oral medications due to multiple ulcerations in his mouth secondary to an uncontrolled Herpes Virus. On or about March 16, 1991, Dr. Mutch determined that R.D. would benefit from intravenous medications through a central venous line. She therefore wrote an order for "central venous line placement Monday 3/18." In another written order, she directed that "IV fluids [be held] until central venous line in place." Both orders were dated March 16, 1991. In her progress notes for March 16, 1991, Dr. Mutch indicated "Central line ASAP." In the middle of March of 1991, Respondent was the acting medical director of MCH. In addition to his duties as acting medical director, he was on the staff of the hospital's internal medicine department. Respondent was the only internist on staff at the hospital with any significant experience in central line placements of the type ordered by Dr. Mutch, although there was a surgeon affiliated with the hospital, a Dr. Capliwski, who had such experience and in fact performed most of the placements needed by patients at the hospital. Sometime after she wrote the order for central venous line placement for R.D., Dr. Mutch verbally requested Respondent to attempt such placement at his earliest possible convenience. On March 18, 1991, Respondent made approximately five unsuccessful attempts to place a subclavian venous line in R.D., the first of which yielded air, indicating that R.D.'s lung had been punctured. Following these unsuccessful placement attempts, Respondent ordered a chest x-ray for R.D. The x-ray taken revealed no evidence of pulmonary distress. Respondent's progress notes for March 18, 1991, do not reflect that he ordered a surgical consultation that day after his placement attempts failed. The next two or three days Respondent was out of town on hospital business in his capacity as the hospital's acting medical director. Respondent reasonably assumed that, in his absence from the hospital, Dr. Mutch would ask Dr. Capliwski to try to perform the central venous line placement that she had initially requested Respondent to attempt. Upon his return to the hospital, Respondent learned that no such attempt had been made. Respondent therefore again made several attempts at central venous line placement. Placement was attempted via R.D.'s jugular vein. While the approach was different, the results were the same. Respondent was unable to accomplish his objective. Following this second series of unsuccessful placement attempts, Respondent ordered another chest x-ray for R.D. On March 24, 1991, at approximately 1:00 a.m., R.D. began to have difficulty breathing. He also had a rapid heart rate, a pulse rate of 140, a respiratory rate of 30, and a temperature of 103.3. degrees. Respondent was the "on call" physician. He was at home, approximately 35 miles away from the hospital. The duty nurse telephoned Respondent and spoke with him about R.D. 3/ Respondent instructed the nurse to give R.D. Tylenol and to make sure that he was receiving oxygen. He did not suggest that R.D. be seen by Dr. Chandler, the physician manning MCH's emergency room. By 9:15 p.m. that same day, R.D.'s condition had further deteriorated. His respiratory rate had increased to 40. The duty nurse again telephoned Respondent at home and informed him of R.D.'s deteriorating condition. This time Respondent directed that R.D. be immediately evaluated by Dr. Chandler. In accordance with Respondent's directive, Dr. Chandler was contacted. He ordered a chest x-ray for R.D. The x-ray revealed a 50 percent pneumothorax with right mediastinal shift. Dr. Chandler therefore performed an emergency thoracotomy. Arrangements were then made to transfer R.D. to Lake Shore Hospital. At approximately 10:10 p.m. on March 24, 1991, shortly after he was placed in the ambulance that was to transport him to Lake Shore Hospital, R.D. experienced respiratory arrest and expired. An autopsy was performed by Carolyn Hopkins, M.D., of the local Medical Examiner's Office. The autopsy report prepared by Dr. Hopkins lists "complications of acquire[d] immunodeficiency syndrome" as the cause of death. More specifically, Respondent died as a result of a tension pneumothorax. Facts Relating to Case No. 93-2683/Administrative Complaint #2 Counts 1 and 2 Respondent's license to practice medicine in the State of Florida was inactive due to non-renewal from on or about December 31, 1983, until approximately November of 1989. Respondent engaged in the practice of medicine at Cypress Medical and Professional Centre (hereinafter referred to as the "Centre") in Winter Haven, Florida, during a portion of the period that his medical license was inactive. On or about September 12, 1989, Respondent entered a plea of nolo contendere to the criminal offense of referring a patient to a business entity without disclosure of financial interest, in violation of Section 458.327(2)(c), Florida Statutes (1989). It was stipulated by Respondent and the prosecutor at the time of the entry of the plea that the crime to which Respondent pled was a lesser included offense of the crime of practicing medicine without a license. On or about October 25, 1989, adjudication of guilt was withheld and Respondent was ordered to pay a $500.00 fine. Counts 3, 4 and 5 On January 20, 1989, patient M.L. went to the Centre complaining, among other things, of chronic headaches. M.L. was first seen by a chiropractor at the Centre, who referred her "to M.D. for complete detailed neurologic-orthopedic exam." On January 24, 1989, M.L. was examined by Respondent at the Centre. The records maintained at the Centre reflect that, during this initial examination, Respondent explored the history and possible etiology of M.L.'s chronic headaches. The entries made on the Progress Notes and Patient Control Sheet maintained at the Centre (11 of which apparently were made by, or at the direction of, Respondent) reflect that M.L. visited the Centre on 21 different occasions. Bills from the Centre for 20 of these 21 visits were signed by Respondent. 4/ The Progress Notes and Patient Control Sheet do not reflect that Respondent saw M.L. on all 20 visits covered by these bills. Facts Relating to Case No. 94-0234/Administrative Complaint #3 On November 22, 1989, patient A.M.D., a 40-year old female, presented to the emergency room at Polk General Hospital (hereinafter referred to as "PGH") in Bartow, Florida, with complaints of a high fever, abdominal pain, vomiting and coughing. An examination revealed that she had rapid pulse and respiration rates. It was further observed that she had a flushed face and epigastric tenderness. A.M.D. was treated in the PGH emergency room with, among other things, an antibiotic, vibramyacin, for which she was also given a prescription. She was then discharged. A.M.D. returned to the PGH emergency room on November 23, 1989, with symptoms similar to those with which she had presented the previous day. She was again treated and discharged. Records of these two emergency room visits were made and kept by the hospital. A.M.D. paid a third visit to the PGH emergency room on November 24, 1989, with symptoms similar to those she had exhibited during her first two visits. On this occasion, she was admitted to PGH in the care of Respondent. She remained in Respondent's care throughout her entire stay at the hospital. As her attending physician, it was incumbent upon Respondent to review the records of A.M.D.'s prior two emergency room visits. Upon A.M.D.'s admission to the hospital, Respondent failed to order multiple blood cultures, notwithstanding that, as Respondent should have known, Respondent was already on an antibiotic. A single blood culture is insufficient to properly diagnose the condition of such a patient. Respondent's initial diagnosis of A.M.D., made without the benefit of results of multiple blood cultures, was undetermined gastrointestinal problems. A.M.D. was treated with, among other things, antibiotics. Although A.M.D. still had a high fever following the first several days of her hospitalization and the diagnosis of her condition remained obscure, Respondent did not attempt to obtain a consultation with an infectious disease specialist, 5/ nor did he order that A.M.D.'s treatment plan be modified to include intravenous administration of high dosages of at least two different broad spectrum, latest generation antibiotics. A.M.D. continued to run a fever until December 4, 1989, after which her condition slightly improved. Even though a blood culture had indicated that A.M.D. had a staphylococcal infection, Respondent nonetheless ordered that the intravenous administration of antibiotics be discontinued because A.M.B. had been afebrile for a few days. Thereafter, A.M.D.'s condition quickly deteriorated. She suffered congestive hear failure, but Respondent did not seek to obtain a consultation with a cardiologist. On December 11, 1989, 17 days after she had been admitted to the hospital, A.M.D. expired. At the time of her death she was not on antibiotics. This was a factor which contributed to her demise. Respondent's final primary diagnosis of A.M.D. was toxemic shock, protracted. His secondary diagnoses included: staphylococcal septicemia, acute; cholelithiasis, chronic; and pneumonitis, subacute, staphylococcal. In not doing the following while A.M.D. was hospitalized at PGH and under his care, Respondent failed to practice medicine with that level of care, skill and treatment that, in light of the surrounding circumstances, a reasonably prudent internist would have recognized as being acceptable and appropriate at the time: ordering multiple blood cultures upon A.M.D.'s admission to the hospital in order to properly assess her condition; attempting to seek a consultation with an infectious disease specialist and ordering that A.M.D.'s treatment plan be modified to include intravenous administration of high dosages of at least two different broad spectrum, latest generation antibiotics when A.M.D. still had a high fever following the first several days of her hospitalization and the diagnosis of her condition remained obscure; seeking to obtain a consultation with a cardiologist when A.M.D. suffered congestive heart failure; and appropriately treating A.M.D. with antibiotics throughout the time she was under his care, including the period following the brief improvement in her condition and reduction of her temperature to normal. Facts Relating to Case No. 94-0235/Administrative Complaint #4 On or about August 17, 1992, patient A.A., a 69 year old male, presented to Respondent at Preferred Quality Medical Care in Plantation, Florida with complaints of shortness of breath and nocturia (two to three times a night). A.A. provided Respondent with a written medical history, which revealed, among other things, that he was a heavy smoker. During his physical examination of A.A., Respondent observed and noted in his written record of the examination, among other things, inspiratory wheezes, prolonged expiration, shortness of breath and that A.A. gave the appearance of being chronically ill. Respondent diagnosed A.A.'s condition as C.O.P.D. (chronic obstructive pulmonary disease) and what Respondent termed "tobaccism," which is a nonstandard diagnosis. Respondent ordered an EKG, spirometry, urinalysis and blood tests. He failed to order a chest x-ray, notwithstanding that A.A. had indicated he was a heavy smoker and that Respondent's examination had revealed that A.A. had shortness of breath and that he had the appearance of someone who was chronically ill. Under such circumstances, it was quite possible that A.A. was suffering from C.O.P.D., as Respondent had opined. There were other possibilities, however, such as cancer, 6/ tuberculosis, pneumonia and congestive heart failure. In order to fully investigate these other possibilities, it was necessary for Respondent to order a chest x-ray. On or about September 11, 1992, A.A. returned to Respondent complaining of intermittent coughing spells. Respondent examined A.A. and observed prolonged wheezing. Respondent diagnosed A.A.'s condition as C.O.P.D. and hypertensive disease and treated him with bronchodilators. Although a diagnosis of hypertensive disease requires a baseline chest x-ray as part of the initial evaluation, Respondent made his diagnosis without the benefit of such an x-ray. A.A. next visited Respondent on October 19, 1992, complaining of extreme nervousness and inability to sleep. Respondent found that A.A. was expectorating large amounts of mucus. Respondent treated A.A. with Sinequan, which is an antidepressant that helps with sleep. Once again Respondent failed to order a chest x-ray. A.A. returned to Respondent on November 23, 1992, complaining of shortness of breath and nocturia. Respondent examined A.A. and discovered a soft mass in the supraclavicular area. He also noted that A.A. had a heart murmur. Respondent finally ordered a chest x-ray. The x-ray revealed pleural effusion. Subsequent testing detected inoperable cancer, which led to A.A.'s death on May 9, 1993. In waiting until A.A.'s fourth visit before ordering a chest x-ray and, as a result, not making an earlier diagnosis of A.A.'s cancer, Respondent failed to practice medicine with that level of care, skill and treatment that, in light of the surrounding circumstances, a reasonably prudent internist would have recognized as being acceptable and appropriate at the time.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Board enter a final order finding Respondent guilty of the violations of subsection (1) of Section 458.331, Florida Statutes, noted above, dismissing the remaining allegations against him and disciplining him for the violations he committed by suspending his license for a period of eighteen months, placing him on probation for the following five years, and imposing an administrative fine in the amount of $4,000.00. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 15th day of November, 1994. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of November, 1994.
Conclusions DOAH No. 14-248 ACHA No. 2013006534 DOAH No. 14-528 ACHA No. 2013007612 DOAH No. 14-521 ACHA No. 2013010196 Having reviewed the Administrative Complaints and Notices of Intent to Deny, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency has jurisdiction over Senior Care Group, Inc. d/b/a Lakeshore Villas Health Care Center pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Administrative Complaints and Notices of Intent to Deny and Election of Rights forms to Senior Care Group, Inc. d/b/a Lakeshore Villas Health Care Center. (Ex. 1) The Election of Rights forms advised of the right to an administrative hearing. 3. The parties have since entered into the attached Settlement Agreement. (Ex. 2) Based upon the foregoing, it is ORDERED: 1. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 2. The Notice of Intent to Deny is superseded by this Agreement. 3. Senior Care Group, Inc. d/b/a Lakeshore Villas Health Care Center shall pay the Agency $25,500.00. If full payment has been made, the cancelled check acts as receipt of payment and no further payment is required. If full payment has not been made, payment is due within 30 days of the Final Order. Overdue amounts are subject to statutory interest and may be referred to collections. A check made payable to the “Agency for Health Care Administration” and containing the AHCA ten-digit case number should be sent to: Office of Finance and Accounting Revenue Management Unit Agency for Health Care Administration 2727 Mahan Drive, MS 14 Tallahassee, Florida 32308 4. Conditional licensure status is imposed on Senior Care Group, Inc. d/b/a Lakeshore Villas Health Care Center beginning on April 12, 2013. ORDERED at Tallahassee, Florida, on this 22 day of Marek 2014. Dg Agency for Health Care Administration
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I CERTIFY that a true and correct copy of this Final Order was served on the below-named persons by the method designated on this 3/4°—day of Mh re ‘A 2014. Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Finance & Accounting Facilities Intake Unit Revenue Management Unit (Electronic Mail) (Electronic Mail) Thomas J. Walsh II Office of the General Counsel Agency for Health Care Administration (Electronic Mail) Anna G. Small, Esq. Allen Dell, P.A. 202 South Rome Avenue Tampa, Florida 33606 (U.S. Mail) Linzie F. Bogan Administrative Law Judge Division of Administrative Hearings (Electronic Mail) Lynne A. Quimby-Pennock Administrative Law Judge Division of Administrative Hearings (Electronic Mail) aU DECOY T |} 7256 9006 F111 6922 4925 SENDERS RECORD FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION CovenNOR Better Health Care for all Floridians SEA ORETARY. EK May 22, 2013 ADMINISTRATOR “cre RECEIVED LAKESHORE VILLAS HEALTH CARE CENTER CLLIFY INTAKE UNFFLICENSE NUMBER: 1282096 16002 LAKESHORE VILLA DR . FILE NUMBER: 62921 TAMPA, FL 33613 MAY & 9 2013 CASE #: 2013005471 Agency for Health NOTICE Of INFENTEO. DENY Dear Ms. Johnson: It is the decision of this Agency that Lakeshore Villas Health Care Center’s license renewal application for a nursing home be DENIED. The specific basis for the Agency’s decision is based on the following grounds: e Pursuant to section 400.121(3)(d), F.S., the Agency shall revoke or deny a nursing home license for two class I deficiencies arising from separate surveys within a 30 month period. Lakeshore Villas Health Care Center was cited for Class I deficiencies on October 13, 2011 and November 14, 2012. ¢ = Section 408.815(1), F.S., states that in addition to the grounds provided in authorizing statutes, grounds that may be used by the agency for denying and revoking a license or change of ownership application include any of the following actions by a controlling interest: (a) a violation of this part, authorizing statutes, or applicable rules; and (d) a demonstrated pattern of deficient performance. EXPLANATION OF RIGHTS Pursuant to Section 120.569, F.S., you have the right to request an administrative hearing. In order to obtain a formal proceeding before the Division of Administrative Hearings under Section 120.57(1), F.S., your request for an administrative hearing must conform to the requirements in Section 28-106.201, Florida Administrative Code (F.A.C), and must state the material facts you dispute. SEE ATTACHED ELECTION AND EXPLANATION OF RIGHTS FORMS. for Adminjstraty (/C- Bernard E. Hudsds, Manager Long Term Care Unit Agen ce: Agency Clerk, Mail Stop 3 EXHIBIT 1 Visit AHCA online at ahca.myflorida.com 2727 Mahan Drive,MS#33 Tallahassee, Fiorida 32308 STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION RE: LAKESHORE VILLAS HEALTH CARE CENTER CASE NUMBER: 2013005471 ELECTION OF RIGHTS This Election of Rights form is attached to a proposed Notice of Intent to Deny of the Agency for Health Care Administration (AHCA). The title may be Notice of Intent to Impose a Fine, Administrative Complaint, or some other notice of intended action by AHCA. An Election of Rights must be returned by mail or by fax within twenty-one (21) days of the day you receive the attached Notice of Intent_to Impose_a Fine, Administrative Complaint or any other proposed action by AHCA. If an Election of Rights with your selected option is not received by AHCA within twenty- one (21) days from the date you received this notice of proposed action, you will have given up your right to contest the Agency’s proposed action and a final order will be issued. (Please reply using this Election of Rights form unless you, your attorney or your representative prefer to reply according to Chapter 120, Florida Statutes (2006) and Rule 28, Florida Administrative Code.) Please return your ELECTION OF RIGHTS to: Agency for Health Care Administration Attention: Agency Clerk 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308 Phone: (850) 412-3630 Fax: (850) 921-0158 PLEASE SELECT ONLY 1 OF THESE 3 OPTIONS: OPTION ONE (1) I admit to the allegations of facts and law contained in the Notice of Intent to Impose a Fine, Administrative Complaint, or other notice of intended action by AHCA and I waive my right to object and have a hearing. I understand that by giving up my right to a hearing, a final order will be issued that adopts the proposed agency action and imposes the proposed penalty, fine or action. OPTION TWO (2) __ I admit to the allegations of facts and law contained in the Notice of Intent to Impose a Fine, Administrative Complaint, or other proposed action by AHCA, but I wish to be heard at an informal proceeding (pursuant to Section 120.57(2), Florida Statutes) where I may submit testimony and written evidence to the Agency to show that the proposed administrative action is too severe or that the fine should be reduced. OPTION THREE (3)_____I dispute the allegations of facts and law contained in the Notice of Intent to Impose a Fine, Administrative Complaint, or other proposed action by AHCA, and I request a formal hearing (pursuant to Section 120.57(1), Florida Statutes) before an Administrative Law Judge appointed by the Division of Administrative Hearings. PLEASE NOTE: Choosing OPTION THREE (3), by itself, is NOT sufficient to obtain a formal hearing. You also must file a written petition in order to obtain a formal hearing before the Division of Administrative Hearings under Section 120.57(1), Florida Statutes. It must be received by the Agency Clerk at the address above within twenty-one (21) days of your receipt of this proposed administrative action. The request for formal hearing must conform to the requirements of Rule 28-106.2015, Florida Administrative Code, which requires that it contain: 1. Your name, address, and telephone number, and the name, address, and telephone number of your representative or lawyer, if any. 2. The file number of the proposed action. 3. A statement of when you received notice of the Agency’s proposed action. 4. A statement of all disputed issues of material fact. If there are none, you must state that there are none. Mediation under Section 120.573, Florida Statutes, may be available in this matter if the Agency agrees. License type: Nursing Home License number: 1282096 Applicant Name: SENIOR CARE GROUP INC. d/b/a LAKESHORE VILLAS HEALTH CARE CENTER Contact person: Name Title Address: Street and number City Zip Code Telephone No. ; Fax No. Email (optional) I hereby certify that I am duly authorized to submit this Notice of Election of Rights to the Agency for Health Care Administration on behalf of the licensee referred to above. Signed: ‘Date: Print Name: Title: STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, VS. Case Nos. 2013006534 SENIOR CARE GROUP, INC. d/b/a LAKESHORE VILLAS HEALTH CARE CENTER, Respondent. / ADMINISTRATIVE COMPLAINT COMES NOW the Agency for Health Care Administration (hereinafter “Agency”), by and through the undersigned counsel, and files this Administrative Complaint against Senior Care Group, Inc. d/b/a Lakeshore Villas Health Care Center (hereinafter “Respondent”), pursuant to §§120.569 and 120.57 Florida Statutes (2013), and alleges: NATURE OF THE ACTION This is an action to change Respondent’s licensure status from Standard to Conditional commencing June 4, 2013, and to impose administrative fines in the amount of two thousand five hundred dollars ($2,500.00), based upon Respondent being cited for one (1) isolated State Class II deficiency. JURISDICTION AND VENUE 1. The Agency has jurisdiction pursuant to §§ 120.60 and 400.062, Florida Statutes (2012). 2. Venue lies pursuant to Florida Administrative Code R. 28-106.207. PARTIES 3. The Agency is the regulatory authority responsible for licensure of nursing homes and enforcement of applicable federal regulations, state statutes and rules governing skilled nursing facilities pursuant to the Omnibus Reconciliation Act of 1987, Title IV, Subtitle C (as amended), EXHIBIT 1 Chapters 400, Part II, and 408, Part II, Florida Statutes, and Chapter 59A-4, Florida Administrative Code. 4. Respondent operates a one hundred seventy-nine (179) bed nursing home, located at 16002 Lakeshore Villa Drive, Tampa, Florida 33613, and is licensed as a skilled nursing facility license number 1282096. 5. Respondent was at all times material hereto, a licensed nursing facility under the licensing authority of the Agency, and was required to comply with all applicable rules, and statutes. COUNT I 6. The Agency re-alleges and incorporates paragraphs one (1) through five (5), as if fully set forth herein. 7. That pursuant to Florida law, all licensees of nursing homes facilities shall adopt and make public a statement of the rights and responsibilities of the residents of such facilities and shall treat such residents in accordance with the provisions of that statement. The statement shall assure each resident the right to receive adequate and appropriate health care and protective and Support services, including social services; mental health services, if available; planned recreational activities; and therapeutic and rehabilitative services consistent with the resident care plan, with established and recognized practice standards within the community, and with tules as adopted by the agency. § 400.022(1)(1), Fla. Stat. (2012). 8. That Florida law provides the following: “‘Practice of practical nursing’? means the performance of selected acts, including the administration of treatments and medications, in the care of the ill, injured, or infirm and the promotion of wellness, maintenance of health, and prevention of illness of others under the direction of a registered nurse, a licensed physician, a licensed osteopathic physician, a licensed podiatric physician, or a licensed dentist. A practical nurse is responsible and accountable for making decisions that are based upon the individual’s educational preparation and experience in nursing.” § 464.003(19), Fla. Stat. (2012). 9. That Florida law provides the following: “A complete, comprehensive, accurate and reproducible assessment of each resident’s functional capacity which is standardized in the facility, and is completed within 14 days of the resident’s admission to the facility and every twelve months, thereafter. The assessment shall be: 1. Reviewed no less than once every 3 months, 2. Reviewed promptly after a significant change in the resident’s physical or mental condition, 3. Revised as appropriate to assure the continued accuracy of the assessment.” Rule 59A-4.109(1)(c), Florida Administrative Code. 10. That Florida law provides “All physician orders shall be followed as prescribed and if not followed, the reason shall be recorded on the resident's medical record during that shift.” Rule 59A-4.107(5), Florida Administrative Code. 11. That Florida law provides the following: “Every licensed facility shall comply with all applicable standards and rules of the agency and shall ... Maintain the facility premises and equipment and conduct its operations in a safe and sanitary manner.” § 400.141(1)(h), Fla. Stat. (2012). 12. That on June 4, 2013, the Agency completed a re-visit to a complaint survey of Respondent’s facility. 13. That based upon the review of records and interview, Respondent failed to ensure residents receive adequate and appropriate health care and protective and support services, including social services; mental health services, if available; planned recreational activities; and therapeutic and rehabilitative services consistent with the resident care plan, with established and recognized practice standards within the community, and with rules as adopted by the agency, where, inter alia, Respondent failed to implement nutritional interventions for a resident and failed to ensure that provided wound care services for the treatment of pressure ulcers for two (2) of seven (7) sampled residents, said failure being contrary to community standards and Respondent’s policies and procedures, and the same being contrary to law. 14. That Petitioner’s representative observed resident number two hundred twenty-three (223) on May 31, 2013, at approximately 5:30 p.m. and noted a thin gentleman in a private room on a low bed with signs on the door/equipment which indicated the resident was on special infection control precautions. 15. That Petitioner’s representative reviewed Respondent’s records related to resident number two hundred twenty-three (223) during the survey and noted as follows: a. The face sheet identified the resident's original admission date as May 7, 2012, and a most recent admission date as March 4, 2013. b. The resident was documented as a male, fifty-nine (59) years of age, suffering from the following diagnosis: pressure ulcer, paralysis agitans, hypertension, diabetes mellitus, anxiety, dementia without behavioral disturbance, chronic kidney disorder, depression, esophageal reflux, and Alzheimer's disease. c. A care plan was developed on May 16, 2013 as follows: i. Problem of: Actual skin breakdown related to unstageable to coccyx debrided surgically May 3, 2013; May 3, 2013 Right outer ankle open area Stage II. ii. Relevant care plan approaches were as follows: Treatment to coccyx/wound vac as ordered; Right ankle treatment as ordered; Monitor site for signs and symptoms of infection. d. Physician's orders included the following: i. May 17, 2013 Telephone Order: Continue Medihoney to right lateral ii. iil. ankle, change dressing every other day and as _ needed soiling/dislodgement. May 17, 2013, Telephone Order: Discontinue Santyl to sacral wound, discontinue Acticoat Flex to sacral wound; Apply Silver Foam to sacral wound, for wound vac dressing. May 24, 2013, Telephone Order: Sacral wound: Apply collagen matrix to wound bed; then apply KCI wound vac. ,change dressing every Monday, Wednesday, and Friday and as needed (PRN) soiling/dislodgement. The resident’s May 2013 Treatment Administration Record (TAR) reflected as follows: i, ii. The May 17, 2013, treatment to the sacral area was documented to Apply silver foam to sacral wound. Then black foam then wound vac every Monday, Wed, and Friday and PRN. This treatment was not documented as administered on May 22, 2013, Wednesday, as ordered. A new treatment of May 24, 2013, to the sacral wound, was noted to be done on the 7:00 a.m. - 3:00 p.m. shift. On Friday May 31, 2013, at approximately 6:30 p.m., the treatment for that day had not yet been initialed as administered. Respondent’s unit manager for the resident on May 31, 2013, at 6:40 p.m. confirmed to Petitioner’s representative that this treatment should have been done by the day shift nurse. Weekly wound documentation signed by the resident's unit manager and dated May 30, 2013, documented the following wound measurements for May 30, 2013: Sacrum - 8.3 cm x 8.0 cm x 1.6 cm with undermining at 12:00 and 4.5 cm deep; Ankle - 0.5 cm x 0.4 cm x 0.2 cm. A progress note by the Wound Care Advanced Registered Nurse Practitioner dated May 24, 2013, documented the exact same measurements as the May 30, 2013 unit manager's weekly wound documentation. 16. That as a result of documentation in the record of resident number two hundred twenty- three (223), which was lacking documented care to the sacral wound on May 22 and 23, 2013, and the documented unchanged appearance of the wound for six (6) days, Petitioner’s representative requested the opportunity to observe wound care of the resident on May 31, 2013 commencing at approximately 6:45 p.m. and noted as follows: a. An isolation sign was on the door with Personal Protection Equipment (PPE) hanging from a yellow door container. Prior review of the infection control log revealed that the resident was receiving contact isolation precautions for C. Diff (Clostridium Difficile). Respondent’s staff nurse “A” was at the bedside and did not have an isolation gown covering his uniform. A wound vacuum machine was on the floor, resting on a floor mat on the right side near the head of the bed. The machine tubing was attached. It was not connected to the secondary tubing that attaches to the resident. An over bed table against the wall contained new wound care supplies including foam and 4x4s needed for wound care. The supplies were open and appeared ready to use. The over bed table had no clean barrier and also resting on the table were the following: a partial glass of cranberry juice with some partially dried areas of juice noted under the wound vacuum packaging, a covered Styrofoam cup of water, eye glasses, newspaper, and a crossword puzzle book. Against the right wall were two large isolation waste bins; a red and a yellow one, with a partially consumed dinner tray on top of the red bin. Nurse “A” stated he had not completed the wound care today, and that the wound vacuum came off the sacral wound "by itself” earlier today and he had covered the wound with a temporary covering. There was a clear dressing over the sacral wound. It was not dated. Respondent’s unit manager of the 200 hall came into the room to assist with positioning the resident. Nurse “A” washed his hands, gloved, and removed a small adhesive dressing covering the right lateral ankle. The unit manager began to measure the ankle wound using a stick end of a Q tip and comparing it to a paper ruler. She referred to the ankle wound as a Deep Tissue Injury (DTI). It is listed as a pressure ulcer on the wound care consult's document dated May 23, 2013. The ankle wound was an indented, round area in the middle of the wound with a yellow/pink base. The periwound area was red/pink and appeared inflamed and slightly edematous, extending about one inch past the open area boarder. The unit manager stated that the periwound discoloration was "not there before" and she would call the doctor. Staff nurse “A” stated he disagreed with the periwound being inflamed and stated when using the medication "Medihoney"” the wound might look "a little irritated." The unit manager stated this was a change from the observation of a couple of days ago and stated the treatment with Medihoney had been ongoing for "about one month." The right ankle wound remained uncovered for the duration of the wound care, lasting over one and one half hours, including incontinence care provided by two aides, that required the turning and positioning of the resident. Staff nurse “A” changed his gloves, used hand gel, and moved to the right side of the bed to care for the sacral wound. The nurse stated he "measured him on Wednesday and the wound was around 9 x 9 centimeters (cm.) with undermining.” He stated he was recently rehired by the facility and had returned several days ago. He was a Registered Nurse, listed on the employee list as the Wound Nurse. He removed the old undated dressing which contained a 4 x 4 gauze saturated with pink serous drainage. Continuing with the same gloves he measured the wound with a paper tape and found the following: length= 9.0 cm; width, 6.5 cm; depth 3.5 om. The base of the wound was visible with about 20% yellow slough and 80 % granulation tissue. Using the same gloves, the nurse picked up a small flashlight and visualized the wound, set the flashlight down, picked up a Q tip and used the cotton end to evaluate the inside of the wound. He stated there was tunneling in two areas; one area of 1.7-2.0 cm and a bb. cc. dd. ee. ff. gg. ii. ji- I. second "around 4 o'clock" measuring 3.5 cm. The nurse measured the wound on his knees, with his uniform against the bed at times. Per a facility lab report, dated April 20, 2013, a wound culture revealed heavy growth of two bacteria, Escheriachia Coli and Proteus Mirabilis. The resident was treated with a course of the antibiotic Cipro. The resident was shaking with a Parkinsonian type tremor of the upper extremities. He was on his left side. He was alert and oriented. He denied pain at about 7:10 p.m. At about 7:10 p.m., the unit manager observed the wound vacuum on the floor. She picked it up, removed the tubing and discarded it. She initially placed it back on the floor mat, picked it up again and hung it from the bed rail. Staff nurse “A” then was observed to re-glove without sanitizing his hands, touched a red garbage bag on the bed with the clean gloves, and turned to the over bed table and began assembling his supplies, including clean 4x4s, with the same gloves. He removed his gloves, did not sanitize his hands, re-gloved, sprayed a 4 x 4 gauze with wound cleanser, and placed the 4x4 into the base of the wound. The periwound skin was red and blotchy with the perimeter extending over one inch past the open wound. There was no odor present. He again removed his gloves, did not sanitize, and re-gloved. He then moved the juice and personal items off the table, and moved some wound care supplies from the bed to the table. oo, pp. qq. SS. uu. He did not clean up the spilled/dried juice on the table. The nurse noted that the resident was incontinent of a small amount of soft bowel movement. He stopped the wound care and asked for the assistance of nurse aides to help with the incontinence care. Around 7:25 p.m., two aides came into the room wearing isolation apparel including gowns, gloves and masks. Staff nurse “A” stepped away from the bed, removed his gloves, washed his hands and left the room, stating he was going to "get wipes to wipe down the pump." The sacral wound remained covered with a 4x4 saturated in wound cleanser. The ankle wound remained uncovered. One of the aides stated they needed to remove the two rubber backed incontinence pads under the resident as they were not to be used with the special mattress under the resident. They rolled the resident side to side to remove the pads and again to provide incontinence care. The sacral wound remained covered with the unsecured 4x4 and the ankle wound remained uncovered during the incontinence care. At 7:35 p.m., staff nurse “A” returned wearing an isolation gown over his uniform. He began to clean the wound vacuum machine with a solution marked "Virasept." A hand written note on the pump spray stated "C. Diff." and large black labeling down the side stated "EXP: November 2011.” XX. yy: ZZ. bbb. cece. ddd. cece. fff. gee. After he cleaned the machine this surveyor asked about the expiration date. The unit manager from another unit appeared at the door and initially stated that was the manufacturing date, but then agreed EXP was the universal label for expiration and left to obtain another bottle of cleanser. Staff nurse “A” resumed wound care after he re-gloved and moved to the window side of the bed, attempted to reposition the resident alone, stated it was "better from the other side," and moved the over bed table again to the door side of the bed. He handled the spray bottle, the resident, the plugs to an outlet, and the air mattress controls at the bottom of the bed with the same gloves. At 7:50 p.m., nurse “A” disposed of his gloves, used hand gel, re-gloved and repositioned the resident on his left side, toward the window. At this time, the unit manager from another unit was assisting with positioning the resident, asked the resident if he was okay, and the resident stated he needed a pain pill. The resident stated his pain was nine (9) of ten (10). The unit manager of the 200 hall was informed of the need for a pain pill. At 7:57 p.m., staff nurse “A” removed the 4x4 gauze from the sacral wound, removed the right glove, did not use hand sanitizer, re-gloved the right hand, and sprayed wound cleanser on a clean 4x4. He removed both gloves and re-gloved without using hand sanitizer. He cleaned the periwound area with the wound cleanser gauze, removed his gloves, did not sanitize his hands, and continued. No bone was visible, but the wound base showed outlines of boney prominences. (An X-ray of the sacrum and coccyx were done on April 26, 11 iii. I. 000. Ppp. qaqa. SSS. uuu. 2013, to rule out osteomyelitis. There was none detected at that time.) Nurse “A” removed his gloves, used hand sanitizer, re-gloved and used several packages of skin prep to the area surrounding the wound. He removed his gloves, did not sanitize his hands, and re-gloved. He used a two inch clear tape to, as he said, "picture frame” the wound in the periwound area, At 8:07 p.m. the unit manager returned with the pain pill. . The resident, alert and oriented, stated again that the pain was nine (9) of ten (10). The unit manager gave him the pill, crushed in applesauce, and left the room without washing her hands. At 8:10 p.m., nurse “A” prepared the wound supplies by cutting the black foam piece used with the wound vacuum. He removed the gauze in the sacral wound base and, using his right index finger, covered with a clean gloved finger, he probed the sacral wound areas of tunneling near the proximal edge of the wound, toward the spine. He removed his gloves, used hand gel, re-gloved, and placed small pieces of white foam wedges along the areas of wound tunneling. He then placed the large piece of black foam into the wound, covering the wound bed. He covered the entire wound with clear plastic wound covering. He then removed his gloves, did not sanitize his hands, re-gloved and cut a hole in the center of the clear plastic wound cover for the wound vacuum site. He created a "foam bridge" across the right buttocks for the tubing for the wound vacuum, again removed his gloves, did not sanitize, and re-gloved to complete the wound care. The surveyor left the resident bedside at 8:25 p.m., one hour and forty minutes after the beginning of wound care. 17. That Petitioner’s representative further reviewed Respondent’s records related to resident number two hundred twenty-three (223) during the survey and noted as follows: a. The resident had a history of Depressive Disorder and Parkinson's Disease (Paralysis Agitans), both of which could have contributed to his inability to express his anguish during this extended wound care experience. He was observed to be passive when asked if he was doing alright, until the time when he requested pain medication. The psychological overlay from this experience, outside the expectations for wound care of this type, are yet to be determined. The dependent state of this resident was clearly documented throughout the medical record. On May 14, 2013, the nurse practitioner wrote that the resident was "eating with staff assisting" and he "wants to go home." The nurse practitioner added that the resident was "more alert" but "slow to answer.” It is unknown whether the resident felt the degree of anguish or degradation others would feel in this situation. He seemed unable to express his feelings during this observation. The resident was fifty-four (54) years of age, seventy-two (72) inches tall, and had an admission weight of one hundred fifty-four (154) pounds. Weight change history for April to May 2013 reflected as follows: i. April 16, 2013 — one hundred forty-nine (149) pounds. vi. i. April 22, 2013 — one hundred forty-eight (148) pounds. iii. April 29, 2013 ~ one hundred forty-eight (148) pounds. May 13, 2013 — one hundred thirty-eight (138) pounds. May 27, 2013 — one hundred thirty-nine (139) pounds. May 30, 2013 — one hundred thirty-nine (139) pounds. Care plan dated May 17, 2013, provides as follows: i. iii. Problem: ...risk for alteration in nutrition/hydration related to texture modified diet. Cognitive impairment. - Relevant goal related to this nutrition concern: ...will not experience significant weight changes thru next review date of 8/13/13. Relevant approach was in place to assist with achieving this goal: Supplements as ordered. The registered dietitian's notes since development of this care plan revealed the following entries: i, May 17, 2013, 10:23 p.m. - Weight and Wound review: Weight down in past month, after having been stable for over a month -- now at 138 lbs, 78% of ideal body weight (IBW). This represents a significant weight loss of 7.5% in 30 days, likely r/t C-Diff. Skin: Stage II sacrum (This wound is actually a large stage 4 pressure ulcer). Labs: most recent from 5-11 indicate moderately depleted hemoglobin and hematocrit at 10.3/30/4; albumin from. 5-2 significantly depleted at 2.48. Diet: LCS Puree with nectar thick liquid--resident averages 50% - 100% at most meals. Also receives Med Pass 90 ml four times a day, Prostat 30 ml twice a day, and multi-vitamin (MVI) with minerals for extra nutrition support. 18, Recommend: (1) change Med Pass to 120 ml four times a day secondary to wound (2) change Prostat to 30 ml three times a day secondary to wound/C-Diff (3) clarification: MVI with minerals one daily by mouth secondary to wound (3) fortified foods three times a day with meals. ii. May 30, 2013, 7:29 p.m. - Weight/Wound review: Weight has stabilized in past 2 weeks--now at 139 Ibs, 81% of ideal body weight (IBW). This represents a significant weight loss of 6.1% in 30 days and 9.7% in 90 days--most recent loss likely related to C-Diff. Skin: Stage IV sacrum and open area right ankle. Labs: most recent from 5-11 indicate moderately depleted hemoglobin and hematocrit at 10.3/30.4; albumin from 5-2 significantly depleted at 2.48. Diet: LCS Puree with nectar thick liquids-- resident eats well at meals (50-100%). Also receives Med Pass 120 ml four times a day, Prostat 30 ml three times a day, MVI with minerals, and fortified foods for extra nutrition support. Recommend: (1) magic cup each day at lunch secondary to weight loss. j. A telephone physician order written on May 17, 2013 provided: 1. Change Med Pass to 120 ml four times a day; 2. Change Prostat to 30 ml three times a day. k. The resident’s May 2013 medication administration record (MAR) and treatment administration record (TAR) did not reflect the orders to increase the supplement of Med Pass and Prostat written on May 1, 2013, and therefore the supplements were not administered in accordance with the dietitian's recommendations or physician's orders. That Petitioner’s representative interviewed Respondent’ s registered dietitian on May 31, 2013 at 7:09 p.m. regarding resident number two hundred thirty-three (233) who indicated as follows when shown that the supplement orders from May 17, 2013, had not been implemented: "He needs everything we can give him and then some. I know the order was written to increase Med Pass and Prostat. I wrote it myself.” 19. That Petitioner’s representative interviewed Respondent’s director of nursing on June 1, 2013 at 10:30 a.m. advising of the infection control concerns noted during the observation the night before with staff nurse “A” and resident number two hundred thirty-three (233) to which the director responded that the nurse was recently rehired and was not, in fact, the wound nurse, and that nurse A, who was not in the building on this day, was to be monitoring wound healing and a desk nurse on the north wing. 20. That Petitioner’s representative requested an updated employee list as nurse “A” was listed as "wound nurse," and the second list recorded nurse “A” as a staff nurse. 21. That Petitioner’s representative reviewed Respondent’s records related to resident number seventy-three (73) during the survey and noted as follows a. The resident was readmitted on November 28, 2012, per the facility face sheet. b. Diagnoses listed on the Physician Order Sheet (POS) for June 2013 included dementia, cardiovascular accident (CVA), osteomyelitis and sacral decubitus. c. Weekly Wound Documentation forms dated January 4, through May 29, 2013, documented that the resident was receiving ongoing treatment for a Stage IV sacral pressure ulcer. d. Weekly Wound Documentation forms dated April 6 through May 30, 2013, showed additional treatment for an unstageable wound on the right ischium. e. Current wound orders per the June 2013 physician order sheet were as 16 follows: i, Sacrum - apply Medihoney, fill with Ca (calcium) alginate, cover with clear occlusive dressing. Change every Monday, Wednesday and Friday and PRN (as needed). ii. Right hip - apply silver hydrogel with collagen (wound size). Cover with ded (dry clean dressing). Change Monday, Wednesday and Friday and PRN. 22. That Petitioner’s representative requested the Opportunity to observe wound care of resident number seventy-three (73) on June 3, 2013 commencing at approximately 11:35 a.m. with Respondent’s employee “B,” the resident’s assigned nurse, and noted as follows: a. b. The resident was positioned on the left side. The nurse washed her hands, put on gloves and removed the existing dressing from the resident's right hip wound. A moderate amount of serous drainage was noted on the discarded dressing. Without washing hands or changing gloves, she removed and discarded the dressing from the sacral wound. No drainage was noted on the sacral dressing. The nurse then removed her gloves, washed her hands and put on clean gloves. She proceeded to clean the sacral wound with wound cleanser and discarded the soiled gauze. She then cleaned the right hip wound and discarded the soiled gauze. The nurse did not wash her hands and/or change gloves between cleaning the two separate wounds. i. The nurse continued the wound care as ordered by applying Medihoney and calcium alginate to the sacral wound which was then covered with a clear occlusive dressing. j. Without washing hands and/or changing gloves, the nurse completed the wound care for the right hip wound with silver hydrogel ointment and collagen. k. She covered the wound with a clean adhesive dressing. 1 She discarded the used supplies, removed her gloves and washed her hands. 23, That Petitioner’s representative interviewed Respondent’s employee “B” directly after the above described observation and the employee indicated as follows: a. When asked about facility policy and/or procedure regarding wound care for residents with multiple wounds, the nurse stated that it was "usually" the procedure to provide treatment to each wound area separately. b. She stated that, due to the resident's advanced age, she chose to dress the clean, dry sacral wound and proceed directly to the hip wound dressing, c. When asked about the possibility of cross contamination, she agreed that there was a potential for cross-contamination by not washing her hands and changing gloves between the two separate wound care treatments, 24. That Petitioner’s representative reviewed Respondent’s policy and procedure on wound care for dressing applications entitled “Skin and Wound Management, Dressings, Dry/Clean, Level III from the Nursing Services Policy and Procedure Manual, copyright 2001 MED-PASS, Inc. (Revised October 2010), and noted under a subheading titled “Steps in the Procedure” the following twenty-five (25) numbered items: a. Step one (1) - Clean a bedside stand and establish a clean field. b. Steps two (2) through six (6) - Provided additional instructions for assembling supplies and preparing the resident for the procedure. c. Step seven (7) - Wash and dry your hands thoroughly. d. Step eight (8) - Put on clean gloves. Loosen tape and remove soiled dressing. e. Step nine (9) - Pull glove over dressing and discard into plastic or biohazard bag. f. Step ten (10) - Wash and dry your hands thoroughly, g. Steps eleven (11) through thirteen (13) - Provided instructions for opening and arranging dressing supplies using clean technique. h. Step fourteen (14) - Put on clean gloves. i. Step fifteen (15) - Contained instructions for wound assessment. j. Step sixteen (16) - Cleanse the wound. Use a syringe for irrigation if ordered. If using gauze, use a clean gauze for each cleansing stroke. Clean from the least contaminated area to the most contaminated area (usually, from the center outward). k. Steps seventeen (17) through nineteen (19) - Provided instructions to complete the dressing application. L. Step twenty (20) - Remove disposable gloves and discard into designated container. Wash and dry your hands thoroughly. m. Steps twenty-one (21) through twenty-five (25) - Instructions to make the resident comfortable following completion of the procedure. 25. That Respondent’s employee “B” did not follow Respondent’s policy and procedure steps seven (7), eight (8), ten (10), and fourteen (14), where the employee failed to remove gloves, wash hands, and put on clean gloves between treating two separate wounds for resident 19 number seventy-three (73). 26. That on June 24, 2013 at 12:00 noon, Respondent’s nursing home administrator and director of nursing were again informed of the concerns with wound care for residents numbered two hundred twenty-three (223) and seventy-three (73). 27. That the above reflects Respondent’s failure to ensure residents receive adequate and appropriate health care and protective and support services, including social services; mental health services, if available; planned recreational activities; and therapeutic and rehabilitative services consistent with the resident care plan, with established and recognized practice standards within the community, and with rules as adopted by the agency, failed to follow physician orders, and failed to ensure that it maintained the facility premises and equipment and conduct its operations in a safe and sanitary manner including, but not limited to, the failure to follow Facility policy and procedure and community standards related to hand sanitation and glove use during wound care, the failure to implement contact procedures related to infection control, the failure to implement care planned interventions, and the failure to follow physician orders. 28. That the Agency determined that this deficient practice has compromised the resident’s ability to maintain or reach his or her highest practicable physical, mental, and psychosocial well-being, as defined by an accurate and comprehensive resident assessment, plan of care, and provision of services. A class II deficiency is subject to a civil penalty of $2,500 for an isolated deficiency, $5,000 for a patterned deficiency, and $7,500 for a widespread deficiency, 29. That Respondent was cited for an isolated Class II deficient practice. WHEREFORE, the Agency seeks to impose an administrative fine in the amount of two thousand five hundred dollars ($2,500.00) against Respondent, a skilled nursing facility in the State of Florida, pursuant to § 400.23(8)(b), Florida Statutes (2012). 20 COUNT II 30. The Agency re-alleges and incorporates paragraphs one (1) through five (5), and Count I as if fully set forth herein. 31. Based upon Respondent’s one (1) cited State Class I deficiency, it was not in substantial compliance at the time of the survey with criteria established under Part IT of Florida Statute 400, or the rules adopted by the Agency, a violation subjecting it to assignment of a conditional licensure status under § 400.23(7)(a), Florida Statutes (2012). WHEREFORE, the Agency intends to assign a conditional licensure status to Respondent, a skilled nursing facility in the State of Florida, pursuant to § 400.23(7), Florida Statutes (2012) commencing June 4, 2013. Respectfully submitted this 2 day of July, 2013. f eof THomas J. Walsh II, Esquire FI Bar No. 566365 Agency for Health Care Admin. 525 Mirror Lake Drive, 330G St. Petersburg, FL 33701 727.552.1947 (office) DISPLAY OF LICENSE Pursuant to § 400.23(7)(e), Fla. Stat. (2012), Respondent shall post the most current license in a prominent place that is in clear and unobstructed public view, at or near, the place where residents are being admitted to the facility. Respondent is notified that it has a right to request an administrative hearing pursuant to Section 120.569, Florida Statutes. Respondent has the ri ght to retain, and be represented by an attorney in this matter. Specific options for administrative action are set out in the attached Election of Rights. All requests for hearing shall be made to the attention of: 7, he Agency Clerk, Agency for Health Care Administration, 2727 Mahan Drive, Bldg #3, MS #3, Tallahassee, F Torida, 32308, (850) 412-3630. 21 RESPONDENT IS FURTHER NOTIFIED THAT A REQUEST FOR HEARING MUST BE RECEIVED WITHIN 21 DAYS OF RECEIPT OF THIS COMPLAINT OR WILL RESULT IN AN ADMISSION OF THE FACTS ALLEGED IN THE COMPLAINT AND THE ENTRY OF A FINAL ORDER BY THE AGENCY. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been served by US. Certified Mail, Return Receipt No: 7013 0600 0001 6664 8952 on July 2 & , 2013 to Jacqueline F. Hurt, Administrator, Senior Care Group, Inc. d/b/a Lakeshore Villas Health Care Center, 16002 Lakeshore Villa Drive, Tampa, Florida 33613, and by Regular U.S. Mail to David R. Vaughan, Registered Agent for Senior Care Group, Inc., 1240 Marbella Plaza Drive, Tampa, Florida 33619. a Phorfas J. Walsh, II, Esquire “A / Copies furnished to: Patricia R. Caufman, FOM Jonathon S. Grout, Esq. Counsel for Petitioner P.O. Box 875 Cape Canaveral, Florida 32931 22 STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION RE: Senior Care Group, Inc. CASE NO. 2013006534 d/b/a Lakeshore Villas Health Care Center ELECTION OF RIGHTS This Election of Rights form is attached to a proposed action by the Agency for Health Care Administration (AHCA). The title may be Notice of Intent to Impose a Late Fee, Notice of Intent to Impose a Late Fine or Administrative Complaint. Your Election of Rights must be returned by mail or by fax within 21 days of the day you receive the attached Notice of Intent to Impose a Late Fee, Notice of Intent to Impose a Late Fine or Administrative Complaint. If your Election of Rights with your selected option is not received by AHCA within twenty- one (21) days from the date you received this notice of proposed action by AHCA, you will have given up your right to contest the Agency’s proposed action and a final order will be issued. (Please use this form unless you, your attorney or your representative prefer to reply according to Chapter120, Florida Statutes (2006) and Rule 28, Florida Administrative Code.) PLEASE RETURN YOUR ELECTION OF RIGHTS TO THIS ADDRESS: Agency for Health Care Administration Attention: Agency Clerk 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308. Phone: 850-412-3630 Fax: 850-921-0158. PLEASE SELECT ONLY 1 OF THESE 3 OPTIONS OPTION ONE (1) I admit to the allegations of facts and law contained in the Notice of Intent to Impose a Late Fine or Fee, or Administrative Complaint and I waive my right to object and to have a hearing. I understand that by giving up my right to a hearing, a final order will be issued that adopts the proposed agency action and imposes the penalty, fine or action. OPTION TWO (2) I admit to the allegations of facts contained in the Notice of Intent to Impose a Late Fee, the Notice of Intent to Impose a Late Fine, or Administrative Complaint, but I wish to be heard at an informal proceeding (pursuant to Section 120.57(2), Florida Statutes) where I may submit testimony and written evidence to the Agency to show that the proposed administrative action is too severe or that the fine should be reduced. OPTION THREE (3)___—S—I dispute the allegations of fact contained in the Notice of Intent to Impose a Late Fee, the Notice of Intent to Impose a Late Fine, or Administrative Complaint, and I request a formal hearing (pursuant to Subsection 120.57(1), Florida Statutes) before an Administrative Law Judge appointed by the Division of Administrative Hearings. PLEASE NOTE: Choosing OPTION THREE (3), by itself, is NOT sufficient to obtain a formal hearing. You also must file a written petition in order to obtain a formal hearing before the Division of Administrative Hearings under Section 120.57(1), Florida Statutes. It must be received by the Agency Clerk at the address above within 21 days of your receipt of this proposed administrative action. The request for formal hearing must conform to the requirements of Rule 28-106.2015, Florida Administrative Code, which requires that it contain: 1. Your name, address, and telephone number, and the name, address, and telephone number of your representative or lawyer, if any. 2. The file number of the proposed action. 3. A statement of when you received notice of the Agency’s proposed action. 4. A statement of all disputed issues of material fact. If there are none, you must state that there are none. Mediation under Section 120.573, Florida Statutes, may be available in this matter if the Agency agrees. License type: (ALF? nursing home? medical equipment? Other type?) Licensee Name: License number: Contact person: Name Title Address: Street and number City Zip Code Telephone No. Fax No. Email(optional) I hereby certify that I am duly authorized to submit this Notice of Election of Rights to the Agency for Health Care Administration on behalf of the licensee referred to above. Signed: Date: Print Name: Title: Late fee/fine/AC FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION RICK SCOTT GOVERNOR July 8, 2013 LAKESHORE VILLAS HEALTH CARE CENTER 16002 LAKESHORE VILLA DR . TAMPA, FL 33613 Dear Administrator: ELIZABETH DUDEK SECRETARY RECEIVED GENERAL COUNSEL JUL 12 2013 Agency for Health Care Administration The attached license with Certificate #18248 is being issued for the operation of your facility. Please review it thoroughly to ensure that all information is correct and consistent with your records. If errors or omissions are noted, please make corrections on a copy and mail to: Agency for Health Care Administration Long Term Care Section, Mail Stop #33 2727 Mahan Drive, Building 3 Tallahassee, Florida 32308 Issued for status change to Conditional. Sincerely, SFracey Weatherspoan for Kathy Munn Agency for Health Care Administration Division of Health Quality Assurance Enclosure ce: Medicaid Contract Management 2727 Mahan Drive, MS#33 Tallahassee, Florida 32308 Visit AHCA online at ahca.myflorida.com gouvmssy fy NC) GBI] JO UOISIAT ch, Areyoroeg Ajndaq ; €102/67/90 ‘LV NOLLVUd Xa vr, nk je? y €10¢/P0/90 ‘ALVC AALLOGAAA > : HONVHD SOLVIS . Sdad 6LT “IVLOL E19EE Td “WdNV.L Ud VTUA JAYOHSHAVT cOO9T YaLNAD. wav) HLTVEH SV TIA AYOHSAAVT ‘SUIMOT[OJ oy} oye1odo : 0} pozoyINe st sasusoy] sy] se pure ‘soIMeEIS BPO “TT ued ‘OOP JaideyD ur pozoyne ‘uoneENsIUUIpy sed YIeOPT 10,4 Aouesw ‘epHopy Jo a1eig.atp Aq poidope suopeyndor pue sopnz.oy) yatm porfdurcs sey “NI “dMOUD TAVD YOINAS ky) wWaryuoo oF st sIL TIVNOILIGNOD HINOH ONISYON AONVUNSSY ALIIVND HLTVaH AO NOISIAIG NOILVULSININGV dav HLTVAH YO AONADV BPO] JO 3381S 960C87IANS ‘# ASNSOIT 8¥C8l -# ALVOIMLLYEO STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, . vs. Case Nos. 2013007612 SENIOR CARE GROUP, INC. d/b/a LAKESHORE VILLAS HEALTH CARE CENTER, Respondent. / ADMINISTRATIVE COMPLAINT COMES NOW the Agency for Health Care Administration (hereinafter “Agency”), by and through the undersigned counsel, and files this Administrative Complaint against Senior Care Group, Inc. d/b/a Lakeshore Villas Health Care Center (hereinafter “Respondent”), pursuant to §§120.569 and 120.57 Florida Statutes (2013), and alleges: NATURE OF THE ACTION This is an action to change Respondent’s licensure status from Standard to Conditional commencing July 11, 2013, and to impose administrative fines in the amount of five thousand dollars ($5,000.00), based upon Respondent being cited for one (1) isolated State Class II deficiency. JURISDICTION AND VENUE 1. The Agency has jurisdiction pursuant to §§ 120.60 and 400.062, Florida Statutes (2013). 2. Venue lies pursuant to Florida Administrative Code R. 28-106.207. PARTIES 3. The Agency is the regulatory authority responsible for licensure of nursing homes and enforcement of applicable federal regulations, state statutes and rules governing skilled nursing facilities pursuant to the Omnibus Reconciliation Act of 1987, Title IV, Subtitle C (as amended), EXHIBIT 1 Chapters 400, Part Il, and 408, Part II, Florida Statutes, and Chapter 59A-4, Florida Administrative Code. 4. Respondent operates a one hundred seventy-nine (179) bed nursing home, located at 16002 Lakeshore Villa Drive, Tampa, Florida 33613, and is licensed as a skilled nursing facility license number 1282096. 5. Respondent was at all times material hereto, a licensed nursing facility under the licensing authority of the Agency, and was required to comply with all applicable rules, and statutes. COUNT I 6. The Agency re-alleges and incorporates paragraphs one (1) through five (5), as if fully set forth herein, 7. That pursuant to Florida law, all licensees of nursing homes facilities shall adopt and make public a statement of the rights and responsibilities of the residents of such facilities and shall treat such residents in accordance with the provisions of that statement. The statement shall assure each resident the right to receive adequate and appropriate health care and protective and support services, including social services; mental health services, if available; planned recreational activities; and therapeutic and rehabilitative services consistent with the resident care plan, with established and recognized practice standards within the community, and with rules as adopted by the agency. § 400.022(1)(J), Fla. Stat. (2013). 8. That Florida law provides the following: “‘Practice of practical nursing’ means the performance of selected acts, including the administration of treatments and medications, in the care of the ill, injured, or infirm and the promotion of wellness, maintenance of health, and prevention of illness of others under the direction of a registered nurse, a licensed physician, a licensed osteopathic physician, a licensed podiatric physician, or a licensed dentist. A practical nurse is responsible and accountable for making decisions that are based upon the individual’s educational preparation and experience in nursing.” § 464.003(19), Fla. Stat. (2013). 9. That Florida law provides the following: “A complete, comprehensive, accurate and reproducible assessment of each resident’s functional capacity which is standardized in the facility, and is completed within 14 days of the resident’s admission to the facility and every twelve months, thereafter. The assessment shall be: 1. Reviewed no less than once every 3 months, 2. Reviewed promptly after a significant change in the resident’s physical or mental condition, 3. Revised as appropriate to assure the continued accuracy of the assessment.” Rule 59A-4.109(1)(c), Florida Administrative Code. 10. That Florida law provides “Ail physician orders shall be followed as prescribed and if not followed, the reason shall be recorded on the resident's medical record during that shift.” Rule 59A-4,107(5), Florida Administrative Code. 11. That Florida law provides the following: “Every licensed facility shall comply with all applicable standards and rules of the agency and shall ... Maintain the facility premises and equipment and conduct its operations in a safe and sanitary manner.” § 400.141(1)(h), Fla. Stat. (2013). 12. That on July 11, 2013, the Agency completed a complaint survey of Respondent’s facility. 13. That based upon the review of records and interview, Respondent failed to ensure residents receive adequate and appropriate health care and protective and support services, including social services; mental health services, if available; planned recreational activities; and therapeutic and rehabilitative services consistent with the resident care plan, with established and recognized practice standards within the community, and with rules as adopted by the agency, where Respondent failed to, inter alia, ensure and provide appropriate interventions for bowel incontinence and a dislodged dressing to prevent fecal contamination of an open wound on a resident’s coccyx whose wound was then identified to be a stage II pressure ulcer that had tripled in size within one week from July 2 through 9, 2013, said failure being contrary to community standards and Respondent's policies and procedures, and the same being contrary to law. 14. That Petitioner’s representative reviewed Respondent’s records related to resident number one (1) during the survey and noted as follows: a. b. The resident was originally admitted to the facility on April 7, 2005. Medical diagnoses included osteoarthritis, depression, Alzheimer's disease, general muscle weakness, and dysphagia. The most recent minimum data set, dated June 10, 2013; included the following: i. Section G documented the resident was total dependent upon one person physical assistance for toileting and personal hygiene and bed mobility. ii. Section M documented the resident had two stage II pressure ulcers. A care plan, last updated June 12, 2013, documented under “Problem” that the resident had a stage II pressure ulcer to the resident's left buttock. A "Weekly Wound Documentation" sheet documented on June 11, 2013, that the coccyx wound was measured to be 1.7cmx1.7emx0.1cm, and documented the wound as being a stage II pressure ulcer. A weekly wound measurement of July 2, 2013 documented the wound measured to be 1.2cmx0.7cmx0.3cm. A weekly wound measurement of July 9, 2013 documented the wound measured to be 4.0cmx4.1cmx with "unstageable tissue damage." 15. That on July 11, 2013 commencing at approximately 10:20 am., Petitioner’s representative observed resident number one (1) and interacted with Respondent’s caregivers, and noted as follows: a. The resident was observed lying in bed. b. There was a strong odor of feces that was noted at first in the hall and persisted outside of the resident's room. c. Petitioner’s representative knocked on the door, and Respondent’s employee “A” opened the door and stated that she was the certified nurse assistant (CNA) that was assigned to the resident and was going to render incontinence care to the resident. d. The resident made no attempt to verbalize, with eyes were closed and both arms appearing contracted. e. The resident was lying on the left side to reveal a moderate amount of stool. f. Approximately one inch up from the stool, a soiled gauze dressing that was not attached to the resident's skin on the bottom was dangling, and had another piece of gauze protruding from underneath that appeared heavily soiled with drainage and brown discoloration on the edges. g. Employee “A” was observed to cleanse the stool using upward strokes, repeatedly using the same soiled cloth and cleansing upward from the resident's anal area toward the wound that was not protected by the dressing. h. After removing the stool, using the one soiled wash cloth, she then dried the area with a towel. 16. That Petitioner’s representative interviewed at approximately 10:45 am. on July 11, 2013, Respondent’s employee “B” regarding resident number one (1) and the employee indicated as follows: The certified nursing assistant did not tell her anything about the resident or any concerns that should have been reported to the nurse after she rendered incontinence care. Certified nursing assistants are expected to notify the nurse to "Check their skin" during incontinence care. 17. That on July 11, 2013 commencing at approximately 12:00 p.m., Petitioner’s representative observed resident number one (1) and interacted with Respondent’s caregivers, and noted as follows: a. Respondent’s Unit Manager assisted with re-positioning the resident onto the right side so that the surveyor could observe the resident's coccyx area. The unit manager stated that the nurse had gone on break, and that no one had told her about any problem with the resident's dressing. She washed her hands and gloved. The soiled, partially attached dressing remained in place, now one hour and forty minutes after Employee “A” was observed to give the resident incontinence care and had observed that the dressing to the pressure ulcer was no longer intact. The bottom half of the outer dressing remained unsecured to the skin, and a gauze dressing protruding underneath was saturated with yellow drainage, and dots of darker brown substance on the edges. The unit manager was asked to remove the dressing so the surveyor could view the wound. g. The top adhesive part of the dressing was attempted to be removed by the unit manager, but only came loose with difficulty, and then the skin underneath was noted to be bright red and very fragile. h. The unit manager stated that she would make the wound care nurse aware and the dressing would be changed. 18. That Petitioner’s representative interviewed at approximately 1:15 p.m. on July 11, 2013, Respondent’s wound care nurse regarding resident number one (1) and the employee indicated as follows: a. The unit. manager had informed her of the problem with the resident's dressing. b. She confirmed that the dressing should be maintained to be intact at all times, and if it becomes dislodged, then the nurse, or the treatment/wound care nurse should be notified immediately. c. She confirmed that exposing the wound to fecal contamination can cause delayed healing or worsening of the wound. d. She stated that she had created a larger dressing so that the adhesive would not be in contact to the fragile skin. e. She confirmed that she had re-measured the wound on July 9, 2013, and notified the physician and the family that the wound had tripled in size within one week's time. 19. That Petitioner’s representative interviewed at approximately 2:40 p.m. on July 11, 2013, Respondent’s employee “D” regarding resident number one (1) and the employee indicated as follows: a. He is employed by the facility as a nurse, and most recently he has been a treatment and wound care nurse, although he has taken resident assignments as well. b. When asked what his expectations would be if a certified nursing assistant performed bowel incontinence care and observed that a dressing had become open or dislodged within the area of the bowel incontinence, he replied "I would expect them to clean the resident and them come to me immediately and let me know. If the dressing is open then that makes the wound susceptible to cross contamination, and maybe infection, and worsening of the wound. If it is coming off, then it is not going to be an effective dressing. The dressing should be secured on all sides of the wound to protect it and allow healing.” c. He also stated that the certified nursing assistant should not be wiping the feces toward the open wound to avoid bacterial contamination that could cause infection, impair healing, and worsen the pressure ulcer. 20. That Petitioner’s representative reviewed during the survey Respondent’s policy and procedure entitled "Diarrhea and Fecal Incontinence," last revised 8/11, and noted the following provisions: a. Step 6: "Wipe feces from the resident's skin." b. Step 11. "When evaluating the condition of the resident's skin, note the following ... c. Pressure ulcers." 21. That the above reflects Respondent’s failure to ensure residents receive adequate and appropriate health care and protective and support services, including social services; mental health services, if available; planned recreational activities; and therapeutic and rehabilitative services consistent with the resident care plan, with established and recognized practice standards within the community, and with rules as adopted by the agency, failed to follow ensure that incontinent care was provided to assure that no contamination of wounds occurs, to ensure incontinent care includes checks for skin condition and prompt attention given to presented issues, such as loose and soiled bandages, and to ensure effective bandaging of wounds to minimize risk of infection or contamination. 22. That the Agency determined that this deficient practice has compromised the resident’s ability to maintain or reach his or her highest practicable physical, mental, and psychosocial well-being, as defined by an accurate and comprehensive resident assessment, plan of care, and provision of services. A class II deficiency is subject to a civil penalty of $2,500 for an isolated deficiency, $5,000 for a patterned deficiency, and $7,500 for a widespread deficiency, 23. That Respondent was cited for an isolated Class II deficient practice. 24, That the fine amount shall be doubled for each deficiency if the facility was previously cited for one or more class I or class II deficiencies during the last licensure inspection or any inspection or complaint investigation since the last licensure inspection. Section 400.23(8)*b), Florida Statutes (2013). 25. That Respondent was cited for a Class II deficient practice during a survey of June 4, 2013. See Attachment “A,” attached hereto and incorporated herein by reference. WHEREFORE, the Agency seeks to impose an administrative fine in the amount of five thousand dollars ($5,000.00) against Respondent, a skilled nursing facility in the State of Florida, pursuant to § 400.23(8)(b), Florida Statutes (2013). COUNT II 26. The Agency re-alleges and incorporates paragraphs one (1) through five (5), and Count I as if fully set forth herein. 27. Based upon Respondent’s one (1) cited State Class I deficiency, it was not in substantial compliance at the time of the survey with criteria established under Part II of Florida Statute 400, or the rules adopted by the Agency, a violation subjecting it to assignment of a conditional licensure status under § 400.23(7)(a), Florida Statutes (2013). WHEREFORE, the Agency intends to assign a conditional licensure status to Respondent, a skilled nursing facility in the State of Florida, pursuant to § 400.23(7), Florida Statutes (2012) commencing July 11, 2013. Respectfully submitted this t day of August, 2013. f J. Walsh IL, Esquire Flag Bar. No. 566365 Agency for Health Care Admin. 525 Mirror Lake Drive, 330G St. Petersburg, FL 33701 727.552.1947 (office) DISPLAY OF LICENSE Pursuant to § 400.23(7)(e), Fla. Stat. (2012), Respondent shall post the most current license in a prominent place that is in clear and unobstructed public view, at or near, the place where residents are being admitted to the facility. Respondent is notified that it has a right to request an administrative hearing pursuant to Section 120.569, Florida Statutes. Respondent has the right to retain, and be represented by an attorney in this matter. Specific options for administrative action are set out in the attached Election of Rights. All requests for hearing shall be made to the attention of: The Agency Clerk, Agency for Health Care Administration, 2727 Mahan Drive, Bldg #3, MS #3, Tallahassee, Florida, 32308, (850) 412-3630. RESPONDENT IS FURTHER NOTIFIED THAT A REQUEST FOR HEARING MUST BE RECEIVED WITHIN 21 DAYS OF RECEIPT OF THIS COMPLAINT OR WILL RESULT IN AN ADMISSION OF THE FACTS ALLEGED IN THE COMPLAINT AND THE ENTRY OF A FINAL ORDER BY THE AGENCY. 10 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been served by US. Certified Mail, Return Receipt No: 7013 0600 0001 6664 8990 on August » 2013 to Jacqueline F. Hurt, Administrator, Senior Care Group, Inc. d/b/a Lakeshore Villas Health Care Center, 16002 Lakeshore Villa Drive, Tampa, Florida 33613, and by Regular U.S. Mail to David R. Vaughan, Registered Agent for Senior Care Group, Inc., 1240 Marbella Plaza Drive, Tampa, Florida 33619. alsh, II, Esquire Copies furnished to: Patricia R. Caufman, FOM Jonathon S. Grout, Esq. Counsel for Petitioner P.O. Box 875 Cape Canaveral, Florida 32931 11 STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION RE: Senior Care Group, Inc. CASE NO. 2013007612 d/b/a Lakeshore Villas Health Care Center ELECTION OF RIGHTS This Election of Rights form is attached to a proposed action by the Agency for Health Care Administration (AHCA). The title may be Notice of Intent to Impose a Late Fee, Notice of Intent to Impose a Late Fine or Administrative Complaint. Your Election of Rights must be returned by mail or by fax within 21 days of the day you receive the attached Notice of Intent to Impose a Late Fee, Notice of Intent to Impose a Late Fine or Administrative Complaint. If your Election of Rights with your selected option is not received by AHCA within twenty- one (21) days from the date you received this notice of proposed action by AHCA, you will have given up your right to contest the Agency’s proposed action and a final order will be issued. (Please use this form unless you, your attorney or your representative prefer to reply according to Chapter120, Florida Statutes (2006) and Rule 28, Florida Administrative Code.) PLEASE RETURN YOUR ELECTION OF RIGHTS TO THIS ADDRESS: Agency for Health Care Administration Attention: Agency Clerk 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308. Phone: 850-412-3630 Fax: 850-921-0158. PLEASE SELECT ONLY 1 OF THESE 3 OPTIONS OPTION ONE (1) I admit to the allegations of facts and law contained in the Notice of Intent to Impose a Late Fine or Fee, or Administrative Complaint and I waive my right to object and to have a hearing. I understand that by giving up my right to a hearing, a final order will be issued that adopts the proposed agency action and imposes the penalty, fine or action. OPTION TWO (2) I admit to the allegations of facts contained in the Notice of Intent to Impose a Late Fee, the Notice of Intent to Impose a Late Fine, or Administrative Complaint, but I wish to be heard at an informal proceeding (pursuant to Section 120.57(2), Florida Statutes) where I may submit testimony and written evidence to the Agency to show that the proposed administrative action is too severe or that the fine should be reduced. OPTION THREE (3) ___—Ss— I dispute the allegations of fact contained in the Notice of Intent to Impose a Late Fee, the Notice of Intent to Impose a Late Fine, or Administrative Complaint, and I request a formal hearing (pursuant to Subsection 120.57(1), Florida Statutes) before an Administrative Law Judge appointed by the Division of Administrative Hearings. PLEASE NOTE: Choosing OPTION THREE (3), by itself, is NOT sufficient to obtain a formal hearing. You also must file a written petition in order to obtain a formal hearing before the Division of Administrative Hearings under Section 120.57(i), Florida Statutes. It must be received by the Agency Clerk at the address above within 21 days of your receipt of this proposed administrative action. The request for formal hearing must conform to the requirements of Rule 28-106.2015, Florida Administrative Code, which requires that it contain: 1. Your name, address, and telephone number, and the name, address, and telephone number of your representative or lawyer, if any. 2. The file number of the proposed action. 3. A statement of when you received notice of the Agency’s proposed action. 4. A statement of all disputed issues of material fact. If there are none, you must state that there are none. Mediation under Section 120.573, Florida Statutes, may be available in this matter if the Agency agrees, License type: (ALF? nursing home? medical equipment? Other type?) Licensee Name: License number: Contact person: Name Title Address: Street and number City Zip Code Telephone No. Fax No. Email(optional) Thereby certify that I am duly authorized to submit this Notice of Election of Rights to the Agency for Health Care Administration on behalf of the licensee referred to above. Signed: Date: Print Name: Title: Late fee/fine/AC STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, vs. ACHA No. 2013010196 License No. 1282096 SENIOR CARE GROUP, INC. d/b/a File No. 62921 _ LAKESHORE VILLAS HEALTH CARE CENTER, Provider Type: Nursing Home Respondent. / ADMINISTRATIVE COMPLAINT COMES NOW the Agency for Health Care Administration (hereinafter “Agency”), by and through the undersigned counsel, and files this Administrative Complaint against Senior Care Group, Inc. d/b/a Lakeshore Villas Health Care Center (hereinafter “Respondent”), pursuant to §§120.569 and 120.57 Florida Statutes (2013), and alleges: NATURE OF THE ACTION This is an action to impose administrative fines in the amount of $10,000.00, impose conditional licensure, and to impose survey fees of $6,000.00 with a 6 month survey cycle based upon Respondent being cited for one State Class I deficiency. PARTIES 1. The Agency is the licensing and regulatory authority that oversees skilled nursing facilities (also called nursing homes) and enforces the state statutes and rules governing such facilities. Ch. 408, Part I, Ch. 400, Part II, Fla. Stat; Ch. 59A-4, Fla. Admin. Code. The Agency is authorized to deny, suspend, or revoke a license, and impose administrative fines pursuant to sections 400.121, and 400.23, Florida Statutes, assign a conditional license pursuant to subsection 400.23(7), Florida Statutes, and assess costs related to the investigation and prosecution of this case pursuant to section 400.121, Florida Statutes EXHIBIT 1 2. The Respondent operates a one hundred seventy-nine (179) bed nursing home, located at 16002 Lakeshore Villa Drive, Tampa, Florida 33613, and is licensed as a skilled nursing facility license number 1282096. 3. Respondent was at all times material hereto, a licensed nursing facility under the licensing authority of the Agency, and was required to comply with all applicable rules, and statutes. COUNT I 4. Under Florida law, all licensees of nursing homes facilities shall adopt and make public a statement of the rights and responsibilities of the residents of such facilities and shall treat such residents in accordance with the provisions of that statement. The statement shall assure each resident the right to receive adequate and appropriate health care and protective and support services, including social services; mental health services, if available; planned recreational activities, and therapeutic and rehabilitative services consistent with the resident care plan, with established and recognized practice standards within the community, and with tules as adopted by the agency. § 400.022(1), Fla. Stat. (2013). 5. Under Florida law, every licensed facility shall comply with all applicable standards and rules of the agency and shall maintain the facility premises and equipment and conduct its operations in a safe and sanitary manner. § 400.141(1)(h), Fla. Stat. (2013). 6. Under Florida law, a complete, comprehensive, accurate and reproducible assessment of each resident’s functional capacity which is standardized in the facility, and is completed within 14 days of the resident’s admission to the facility and every twelve months, thereafter. The assessment shall be: 1) Reviewed no less than once every 3 months; 2) reviewed promptly after a significant change in the resident’s physical or mental condition; 3) revised as appropriate to assure the continued accuracy of the assessment. Rule 59A-4.109(1)(c), Florida Administrative Code. 7. The Agency re-alleges and incorporates paragraphs one (1) through three (3), and Count I of this Complaint as if fully recited herein. 8. On or about August 13, 2013, the Agency conducted a complaint survey of the Respondent. 9. That based upon observation, interviews, and the review of records, Respondent failed to ensure resident rights to dignity where Respondent failed to respect the right to a dignified transfer process and a dignified quality of life for a sole resident currently residing in a facility with revoked Medicaid and Medicare certification. 10. That resident number one (1) was transferred into the Respondent facility after the facility transferred out all prior residents under the supervision of the Agency. 11. That resident number one (1), who was eighty-nine (89) years old, was the sole resident living in the facility at the time of this investigation. 12. That Petitioner’s representative observed resident number one (1) on August 13, 2013, sleeping on a mattress on the floor, covered with a sheet in room 111, a private room. There were no signs of incontinence. 13. That resident number one (1) was the only resident in the entire facility and the entire 179 bed facility was dark with closed rooms and common areas, except the small area of the 100 hall where the resident was residing. 14. That there was one licensed practical nurse giving the resident medications, one aide caring for the resident, and the interim Director of Nursing was seated at the desk. 15. That there was no sign on the door and no specific personal protection equipment indicating a need for isolation requiring a private room. 16. That Petitioner’s representative interviewed Respondent’s corporate nursing home administrator who indicated the following related to resident number one (1): a. 17. The resident was receiving one-on-one care and the resident’s activities included fishing in the pond in the front of the facility. The resident was admitted from a “sister” facility when the resident lost funding for Medicaid. This facility offered to “forgo” the private pay fees. The facility planned to transfer the resident back to the prior facility in “about a month.” The facility was able to offer the resident a private room and the resident “needed” a private room, but was unable to explain why. That Petitioner’s representative reviewed Respondent’s records related to resident number one (1) during the survey and noted as follows: a The facility face sheet revealed the resident had an admitting diagnosis of senile dementia. Other diagnoses listed included: late effects of cardiovascular disease/dysphasia, hypertension, BPH (benign prostate hypertrophy), anxiety state, hyperlipidemia, osteoporosis, history of UTI (urinary tract infection), coronary artery obstruction with infarct, and a history of falls. The billing section of the facility face sheet documented the resident was private pay. Medicaid and Medicare numbers were listed. The responsible party listed an adult child. A primary physician was listed. Current physician’s telephone orders stated to give “high calorie shakes q (every) dinner.” h. The resident’s weight on admission was 134.0 pounds, and the resident was 67 inches tall. i. It was unknown if the resident had lost weight since the transfer to this facility one week prior. 18. That Petitioner’s representative reviewed Respondent’s policy entitled “Charity Care,” signed on August 5, 2013, after Respondent’s transfer and discharge of all prior residents, including eight (8) or more private pay residents, and noted as follows: a. Under the section “Eligibility”, the facility policy stated that an “unpaid account balance will be considered for write off as charity care or adjustment based on demonstrated need for financial assistance.” b. “Medicaid eligible residents who are currently eligible for benefits, but were not eligible at the time of service, will automatically qualify for charity care at the appropriate level”. 19. That Respondent admitted resident number one (1) on August 6, 2013, after it had successfully discharged all of the residents on August 2, 2013, including both publically funded (Medicaid and Medicare) and private pay residents. 20. That Petitioner’s representative observed resident number one (1) on August 13, 2013 commencing at 11:45 A.M. and noted as follows: a. The resident was brought into the dining room by the aide. b. The resident was served a regular diet consisting of: grilled cheese sandwich, soup, ice cream, cake, juice, and milk. c. The aide removed the crusts from the sandwich and placed it in front of the resident. 21, . The resident required verbal cues to take a bite, and refused the soup. . The resident did not consume much of the lunch, less than 50%. The aide said the resident had snacks earlier. . The resident said “hello” to the surveyor, but other responses were incoherent, though the resident did state that the resident was “not doing well,” but could not elaborate why. . The resident was seated in a wheelchair with bilateral leg splints on, covered with shoes, was clean and dry, and without evidence of incontinence. That Petitioner’s representative interviewed Respondent’s social worker related to resident number one (1) on August 13, 2013 at 11:40 A.M. and again at 2:00 P.M. and noted as follows: She had been the Business Office Manager at the sister facility, where the resident came from. . She knew the power of attorney for the resident from that position. She was promoted to social worker about one half years ago, and had worked for the corporation for about five (5) years. . When asked about the details of the transfer of the resident to this facility, the social worker stated that she received a call from the Corporate nursing home administrator and was asked to identify residents at the resident’s prior facility that were listed as either “Medicaid pending” or private pay. When asked to see if there was anyone interested in transferring to this facility,” she identified the resident because the resident’s Medicaid ended the end of July, 2013, and was pending for August, 2013. She did not recall the date of the call from the nursing home administrator, but thought it might have been August 5, 2013, three days after the discharge of all the residents on August 2, 2013. g. She did not know why the resident lost Medicaid benefits. h. She recalled that someone asked the state agency that processes benefits to please advise about the loss of benefits and she got a response that a Financial Release form was not received within sixty (60) days. i. She did not know who would have been responsible at the prior facility. j- The sister facility, where the resident had resided, had a social worker that was no longer there. k. She was now sending a list of forms to the adult child of the resident that were needed for Medicaid benefits to be reestablished. |. She thought the process took three (3) to four (4) weeks. m. When asked for a date when the process of reapplication started, she did not remember, but then stated an e-mail went out on August 5, 2013. n. When asked if the resident was the only one that fit the transfer criteria, she stated that there were others but resident number one (1) was the only one not receiving Skilled Services. o. When asked if there were plans to admit other residents to the facility, the social worker stated “no.” p. When asked what the facility transfer benefit to the resident was, the social worker stated she did not know. 22. That “Skilled Services” is a Medicare term used to define a specific group of medically necessary therapies that include physical therapy, occupational therapy, and speech therapy. 23. That Petitioner’s representative noted in the medical records of resident number one (1) a physician’s telephone order dated August 6, 2013 at 10:56 A.M., the day the resident was admitted to the facility, directing to discontinue physical therapy services, a skilled service. It was signed by an unknown provider. 24. That Petitioner’s representative reviewed a form provided to the surveyors and a copy of an email dated August 5, 2013, and noted as follows: a. 25. The email dated August 13, 2013 at 11:26 A.M. from an Adult Economic Services worker to the social worker stated to send encrypted emails only and contained an attached file and a link to access accounts. At the bottom of the printed email is another email dated August 5, 2013 from this social worker inquiring about the status of resident number one (1). A second page, stapled to the email trail, is a “Provider Inquiry Sheet”. Under client name, the entry included the first name and last initial of resident number one (1). The column titled “Main Inquiry Reason” contained and entry stating "Coverage Inquiry/SOC amount." The column titled "Provider Question" stated “The Business office has notified me that [resident number one (1)’s] coverage will end on July 31, 2013. Please advise why and if we can reapply for [gender pronoun] (not the gender of resident number one [1]) ICP Benefits [as] is Long Term Care resident requires custodial care.” The far right hand column stated “Please reapply as we didn’t get a recent financial release form within 60 days from the date of application (5/6/13).” That Petitioner’s representative telephonically interviewed the adult child of, and also the power of attorney for, resident number one (1) on August 13, 2013 at 1:05 P.M. and noted as follows: a. The adult child stated “nothing was said” about the billing during the transfer process from the resident’s prior facility. b. The adult child stated twice that the child had no concerns with care at the prior facility. c. The resident had no medical conditions that required a private room, and was in a three bed ward at the prior facility. d. The adult child was approached at the prior facility by the social worker, the same one that is at this facility, and asked about moving the resident to this facility. e. The adult child was told the resident would receive one-on-one staffing care, a private room, and was told the resident was the “only one there.” f. The adult child expected the resident to be in this facility “about one month” and then would go back to the prior facility. g. The resident was “in [] own world” (mentally) and went “up and down the halls” in the prior facility. h. The adult child was asked to bring in some documents today, August 13, 2013, for the Medicaid application. i. The adult child thought that the child had faxed in something a few months ago to the other facility and did not have any other information. j. There was no financial arrangement with this facility and the adult child was not expecting a bill. k. The facility asked for Social Security information today and the adult child was looking for it. 26. The adult child confirmed that the resident did not need a private room medically and was “just old,” about to turn 90 years old. . The adult child did not know if the resident had a different physician. The adult child did not know why the Medicaid was discontinued at the prior facility, had no Medicaid phone number, no workers name, and was unfamiliar with how to contact them. That Petitioner’s representative further reviewed Respondent’s records related to resident number one (1) during the survey and noted as follows: 27, a. b. The resident had a consent to treat form, dated August 6, 2013 at 11:45 am. Verbal permission was given by telephone from the resident’s adult child/ power of attorney. A “Do Not Resuscitate” form was dated November 27, 2012. A Statement of Incapacity was dated March 28, 2012. Power of attorney paperwork listed the adult child. A physician’s telephone order dated August 6, 2013 at 10:56 a.m., the day of the transfer, stated to discontinue Physical Therapy. There was no further information regarding why the resident was receiving these services. A telephone order dated August 8, 2013, stated to discontinue a Wanderguard that had been used related to elopement risk. There were no further details as to whether the elopement behaviors continued. An unsigned copy of the new physician’s orders was in the chart dated August 6, 2013 That the long term care unit, where resident number one (1) currently resided, was as follows: a. Two of the three hallways had rooms dark, doors closed, and hallway lights dimmed. b. Other areas of the facility, a large single story building with 179 beds, had darkened, cavernous hallways, and a rehabilitation dining area between two long term care units was dark, and contained plastic covered equipment on the tables. c. The building was clearly empty, other than this one resident and the three staff members on the unit for the resident in room 111. 28. ‘That later in the day on August 13, 2013, Respondent’s director of nursing stated that the new physician had not visited the resident at this facility; the physician at the prior facility did not come to this facility; and therefore the resident had to change physicians. 29. That on or about August 13, 2013, Petitioner’s representative reviewed a physician’s progress note, dated August 1, 2012, which revealed that resident number one qd) was unable to participate in the MMSE screening tool as the resident’s dementia was too far advanced 30. That Petitioner’s representative interviewed Respondent’s director of nursing and nursing home administrator regarding resident number one (1) on August 13, 2013 at 2:26 P.M. and noted as follows: a. When asked how the resident came to be admitted the facility, the administrator stated the last resident was discharged under Agency oversight on August 2, 2013, and she was on her way back to the corporate office when she received a call from corporate counsel that the facility could accept private pay residents. b. The administrator was notified that the facility would be accepting a private pay resident on August 5, 2013 from a sister facility. 31. The administrator indicated the resident had lost Medicaid and was moved to Medicaid pending as the family had not provided paperwork on time. . The administrator indicated that the corporation had the idea that as it litigated the license for this facility, it could assist this family with long term care costs, and assist this facility while it litigated its license. When asked if it was the facility's intention to have only one resident, the administrator stated that it would like to admit more, but it “took the one resident.” When asked if she felt it was an advantage to the facility during litigation to have a resident at the facility, the administrator shrugged and stated that she did not know. When asked if this facility was recruiting residents from external sources such as hospitals, the administrator stated “no.” When asked about the financial arrangements with the resident, the administrator they were preventing the resident’s discharge or the family incurring large debt. The administrator indicated that the charitable policy was not offered to other residents at the sister facility because they were able to fill the beds. The resident would have received a 30 day notice had the resident had stayed in the sister facility. . When asked if the administrator was aware if the sister facility provided services in a timely manner to maintain the resident’s Medicaid eligibility, the administrator stated that she was not aware of the responsibility of the sister facility staff related to the process. That Petitioner’s representative telephonically interviewed the physician of 12 resident number one (1) on August 13, 2013 at 2:45 P.M. and noted as follows: 32. a. b. He had not visited the resident since the resident’s admission on August 6, 2013. He made rounds on Wednesday and intended to see the resident on August 14, 2013. He was aware that the physician’s orders were not signed yet. The physician stated that the advanced registered nurse practitioner had seen the resident on an unknown date and they were trying to locate a progress note. That there was no note in the medical record of resident number one (1) which would indicate that the resident had been seen in this facility by either a Physician or a Nurse Practitioner. 33. That Petitioner’s representative observed resident number one (1) on August 13, 2013 commencing at 2:40 P.M. and noted as follows: 34, a. The resident was in the hallway of the resident’s room, near the dining room, scooting the wheelchair with feet. The resident was using the hand rail on the left side to assist. An aide was nearby. The resident was confused with a vacant look to the face and eyes and did not respond to the surveyor's questions. The resident was unable, due to confusion, to express any anxiety, a diagnosed disorder, anguish, or satisfaction that the resident felt related to the new surroundings, new staff, and isolation due to the lack of any peers nearby. That on or about August 16, 2013, the Agency received and reviewed an eighty- six (86) page faxed document from Respondent and noted that page thirty-nine (39) was from a Multiple Data Set document, dated August 14, 2013, which stated “Factors that can Exacerbate Behavior” that contained four items checked: "Sleep Disturbances; Frustration due to problem communicating discomfort or unmet needs; Frustration, agitation R/T (related to) needs to urinate or have BM; Recent change, such as new admission, new unit, new care staff, withdrawal from a treatment program; and need for repositioning". 35. Since the resident had been moved to a new facility, had new caregivers, new surroundings, and a new physician, any of these factors could contribute to an unexpected decline. 36. That the above reflects Respondent’s failure to ensure resident rights to dignity where, inter alia, Respondent failed to respect the right to a dignified transfer process and a dignified quality of life for one of the residents currently residing in a facility with revoked Medicaid and Medicare certification including but not limited to the absent of socialization with peers, the failure to provide skilled services, the failure to ensure timely physician transfer and evaluation, the failure to note and address care and services related to new surroundings, staff, and withdrawn treatments. 37, That under Florida law, a Class I deficiency is a deficiency that the agency determines presents a situation in which immediate corrective action is necessary because the facility’s noncompliance has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident receiving care in a facility. The condition or practice constituting a class I violation shall be abated or eliminated immediately, unless a fixed period of time, as determined by the agency, is required for correction. § 400.23(8)(a), Fla. Stat. (2013). 38. That a class I deficiency is subject to a civil penalty of $10,000 for an isolated deficiency, $12,500 for a patterned deficiency, and $15,000 for a widespread deficiency. The fine amount shall be doubled for each deficiency if the facility was previously cited for one or more class I or class II deficiencies during the last licensure inspection or any inspection or complaint investigation since the last licensure inspection. A fine must be levied notwithstanding the correction of the deficiency. § 400.23(8)(a), Fla. Stat. (2013). 39. The Respondents actions or inactions constituted an isolated Class I violation. 40. The Agency cited the Respondent for a class I violation. WHEREFORE, the Agency seeks to impose an administrative fine in the amount of ten thousand dollars ($10,000.00) against Respondent, a skilled nursing facility in the State of Florida, pursuant to § 400.23(8)(a), Florida Statutes (2013). COUNT II 41. The Agency re-alleges and incorporates paragraphs one (1) through three (3), and Count I of this Complaint as if fully recited herein. 42. That Respondent has been cited with one (1) State Class I deficiency and therefore is subject to a six (6) month survey cycle for a period of two years and a survey fee of six thousand dollars ($6,000) pursuant to Section 400.19(3), Florida Statutes (2013). WHEREFORE, the Agency intends to impose a six (6) month survey cycle for a period of two years and impose a survey fee in the amount of six thousand dollars ($6,000.00) against Respondent, a skilled nursing facility in the State of Florida, pursuant to Section 400.19(3), Florida Statutes (2013). COUNT Il 43. The Agency re-alleges and incorporates paragraphs one (1) through five (5), and Count I as if fully set forth herein. 44. Based upon Respondent’s one (1) cited State Class I deficiency, it was not in substantial compliance at the time of the survey with criteria established under Part II of Florida Statute 400, or the rules adopted by the Agency, a violation subjecting it to assignment of a conditional licensure status under § 400.23(7)(a), Florida Statutes (2012). 1S WHEREFORE, the Agency intends to assign a conditional licensure status to Respondent, a skilled nursing facility in the State of Florida, pursuant to § 400.23(7), Florida Statutes (2013). CLAIM FOR RELIEF WHEREFORE, the Petitioner, State of Florida, Agency for Health Care Administration, seeks a final order that: 1. Makes findings of fact and conclusions of law in favor of the Agency. 2. Imposes the relief sought in the Administrative Complaint. Respectfully submitted on this / / day of October, 2013. ; a ff a Thomag/J/Walsh Il, Esquire Florida Bat No. 566365 Office of the General Counsel Agency for Health Care Administration 525 Mirror Lake Drive, 330G St. Petersburg, FL 33701 Telephone: (727) 552-1525 Facsimile: (727) 552-1440 walsht@myflorida.ahca.com DISPLAY OF LICENSE Pursuant to § 400.23(7)(e), Fla. Stat. (2012), Respondent shall post the most current license in a prominent place that is in clear and unobstructed public view, at or near, the place where residents are being admitted to the facility. Respondent is notified that it has a right to request an administrative hearing pursuant to Section 120.569, Florida Statutes. Respondent has the ri ght to retain, and be represented by an attorney in this matter. Specific options for administrative action are set out in the attached Election of Rights. All requests for hearing shall be made to the attention of: The Agency Clerk, Agency for Health Care Administration, 2727 Mahan Drive, Bldg #3, MS #3, Tallahassee, Fi Torida, 32308, (850) 412-3630. RESPONDENT IS FURTHER NOTIFIED THAT A REQUEST FOR HEARING MUST BE RECEIVED WITHIN 21 DAYS OF RECEIPT OF THIS COMPLAINT OR WILL RESULT IN AN ADMISSION OF THE FACTS ALLEGED IN THE COMPLAINT AND THE ENTRY OF A FINAL ORDER BY THE AGENCY. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has be: ed by US. Certified Mail, Return Receipt No: 7013 0600 0001 6664 9133 on October / /__, 2013 to Counsel for Petitioner, Anna G. Small, Esq., Allen Deli, P.A., 202 South Rome Avenue, Tampa, Florida 33606. Thomas J. Walsh, Il, Esquire f ye Copies furnished to: Patricia R. Caufman, FOM 17 STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION RE: Senior Care Group, Inc. CASE NO. 2013010196 d/b/a Lakeshore Villas Health Care Center ELECTION OF RIGHTS This Election of Rights form is attached to a proposed action by the Agency for Health Care Administration (AHCA). The title may be Notice of Intent to Impose a Late Fee, Notice of Intent to Impose a Late Fine or Administrative Complaint. Your Election of Rights must be returned by mail or by fax within 21 days of the day you receive the attached Notice of Intent to Impose a Late Fee, Notice of Intent to Impose a Late Fine or Administrative Complaint. If your Election of Rights with your selected option is not received by AHCA within twenty- one (21) days from the date you received this notice of proposed action by AHCA, you will have given up your right to contest the Agency’s proposed action and a final order will be issued. (Please use this form unless you, your attorney or your representative prefer to reply according to Chapter120, Florida Statutes (2006) and Rule 28, Florida Administrative Code.) PLEASE RETURN YOUR ELECTION OF RIGHTS TO THIS ADDRESS: Agency for Health Care Administration Attention: Agency Clerk 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308. Phone: 850-412-3630 Fax: 850-921-0158. PLEASE SELECT ONLY 1 OF THESE 3 OPTIONS OPTION ONE (1) I admit to the allegations of facts and law contained in the Notice of Intent to Impose a Late Fine or Fee, or Administrative Complaint and I waive my right to object and to have a hearing. I understand that by giving up my right to a hearing, a final order will be issued that adopts the proposed agency action and imposes the penalty, fine or action. OPTION TWO (2) I admit to the allegations of facts contained in the Notice of Intent to Impose a Late Fee, the Notice of Intent to Impose a Late Fine, or Administrative Complaint, but I wish to be heard at an informal proceeding (pursuant to Section 120.57(2), Florida Statutes) where I may submit testimony and written evidence to the Agency to show that the proposed administrative action is too severe or that the fine should be reduced. OPTION THREE (3)__—S—I dispute the allegations of fact contained in the Notice of Intent to Impose a Late Fee, the Notice of Intent to Impose a Late Fine, or Administrative Complaint, and I request a formal hearing (pursuant to Subsection 120.57(1), Florida Statutes) before an Administrative Law Judge appointed by the Division of Administrative Hearings. PLEASE NOTE: Choosing OPTION THREE (3), by itself, is NOT sufficient to obtain a formal hearing. You also must file a written petition in order to obtain a formal hearing before the Division of Administrative Hearings under Section 120.57(1), Florida Statutes. It must be received by the Agency Clerk at the address above within 21 days of your receipt of this proposed administrative action. The request for formal hearing must conform to the requirements of Rule 28-106.2015, Florida Administrative Code, which requires that it contain: 1. Your name, address, and telephone number, and the name, address, and telephone number of your representative or lawyer, if any. 2. The file number of the proposed action. 3. A statement of when you received notice of the Agency’s proposed action. 4. A statement of all disputed issues of material fact. If there are none, you must state that there are none. Mediation under Section 120.573, Florida Statutes, may be available in this matter if the Agency agrees. License type: (ALF? nursing home? medical equipment? Other type?) Licensee Name: License number: Contact person: Name Title Address: Street and number City Zip Code Telephone No. Fax No. Email(optional) Thereby certify that I am duly authorized to submit this Notice of Election of Rights to the Agency for Health Care Administration on behalf of the licensee referred to above. Signed: Date: Print Name: Title: Late fee/fine/AC STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION LAKESHORE VILLAS HEALTH CARE CENTER, Petitioner, vs. STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION, Respondent. STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, vs. SENIOR CARE GROUP, INC. d/b/a LAKESHORE VILLAS HEALTH CARE CENTER, Respondent. a STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, vs. SENIOR CARE GROUP, INC. d/b/a LAKESHORE VILLAS HEALTH CARE CENTER, Respondent. Case No. 13-395PH AHCA No. 2013005471 ACHA No. 2013006461 ACHA No. 2013006462 EXHIBIT 2 STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, VS, SENIOR CARE GROUP, INC. d/b/a LAKESHORE VILLAS HEALTH CARE CENTER, Respondent, STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, VS. ; SENIOR CARE GROUP, INC. d/b/a LAKESHORE VILLAS HEALTH CARE CENTER, — Respondent. STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, vs. SENIOR CARE GROUP, INC, d/b/a LAKESHORE VILLAS HEAL TH CARE CENTER, Respondent. SETTLEMENT AGREEMENT DOAH No. 14-248 ACHA No. 2013006534 DOAH No. 14-528 ACHA No. 2013007612 DOAH No. 14-521 ACHA No. 2013010196 State of Florida, Agency for Health Care Administration (hereinafter the “Agency”), through its undersigned representatives, and Senior Care Group, Inc. d/b/a Lakeshore Villas Health Care Center (hereinafter “Lakeshore”), pursuant to Section 120.57(4), Florida Statutes, each individually, a “party,” collectively as “parties,” hereby enter into this Settlement Agreement (“Agreement”) and agree as follows: WHEREAS, Lakeshore is a nursing home licensed pursuant to Chapters 400, Part II, and 408, Part II, Florida Statutes, Section 20.42, Florida Statutes and Chapter 59A-4, Florida Administrative Code; and WHEREAS, the Agency has jurisdiction by virtue of being the regulatory and licensing authority over Lakeshore, pursuant to Chapters 400, Part II, and 408, Part II, Florida Statutes; and WHEREAS, the Agency served Lakeshore with a Notice of Intent to Deny dated May 22, 2013, in Agency case number 2013005471, notifying Lakeshore of the Agency's intent to deny the application for renewal of licensure for Lakeshore; and WHEREAS, the Agency completed a survey of Lakeshore and its Facility on or about April 12, 2013, (hereinafter “April Survey”), during which deficient practice was cited; and WHERMUAS the citation of the above referenced deficient practice subject Lakeshore to the imposition of administrative sanctions of one thousand dollars ($1,000.00) and the imposition of conditional licensure commencing April 12, 2013, in Case Number 2013006461; and WHEREAS, the Agency completed a survey of Lakeshore and its Facility on or about June 4, 2013, (hereinafter “June Survey”), during which deficient practice was cited; and WHEREAS the citation of the above referenced deficient practice subject Lakeshore to the imposition of administrative sanctions of one thousand dollars ($1,000.00) and the continued imposition of conditional licensure in Case Number 2013006462; and WHEREAS, the Agency served Lakeshore with an administrative complaint on or about July 26, 2013, in Agency case number 2013006534, notifying Lakeshore of the Agency’s intent to impose administrative sanctions of two thousand five hundred dollars ($2,500.00) and the continued imposition of conditional licensure; and WHEREAS, the Agency served Lakeshore with an administrative complaint on or about August 9; 2013, in Agency case number 2013007612, notifying Lakeshore of the Agency's intent to impose administrative sanctions of five thousand dollars ($5,000.00) and the continued imposition of conditional licensure; and WHEREAS, the Agency served Lakeshore with an administrative complaint on or about October 16, 2013, in Agency case number 2013010196, notifying Lakeshore of the Agency’s intent to impose administrative sanctions of ten thousand dollars ($10,000.00), the imposition of a six-month survey cycle and its six thousand dollar ($6,000.00) fee, and the continued imposition of conditional licensure; and WHEREAS, Lakeshore requested a formal administrative proceedings by selecting Option “3” on the Election of Rights form or by the filing of a Petition in Case Numbers 2013005471, 2013006534, 2013007612, and 2013010196; and WHEREAS, the parties have negotiated and agreed that the best interest of all the parties will be served by a settlement of this proceeding; and WHEREAS, Lakeshore has sought inactive licensure for its license, license number 1282096; and NOW THEREFORE, in consideration of the mutual promises and recitals herein, the parties intending to be legally bound, agree as follows: 1, All recitals herein ave true and correct and are expressly incorporated herein. 2. Both parties agree that the “whereas” clauses incorporated herein are binding findings of the parties. 3. Upon full execution of this Agreement, Lakeshore agrees to waive any and all appeals and proceedings to which it may be entitled including, but not limited {o, an informal proceeding under Subsection 120.57(2), Florida Statutes, a formal proceeding under Subsection 120,57(1), Florida Statutes, appeals under Section 120.68, Florida Statutes; and declaratory and all writs of relief in any court or quasi-court of competent jurisdiction; and agrees to waive compliance with the form of the Final Order (findings of fact and conclusions of law) to which they may be entitled, provided, however, that no agreement herein shall be deemed a waiver by the parties of their right to judicial enforcement of this Agreement. Lakeshore specifically waives the necessity of the drafting of or service of an Administrative Complaint(s) for the relief stipulated to in this Agreement as the same relates to the April Survey and June Survey. 4. Upon full execution of this Agreement, the parties agree as follows: a. Lakeshore shall pay nineteen thousand five hundred dollars ($19,500.00) in administrative fines and a survey fee of six thousand dollars ($6,000.00), for a total monetary assessment of twenty-five thousand five hundred dollars ($25,500.00) to the Agency within thirty (30) days of the entry of the Final Order. Respondent also accepts the imposition of a six-month survey cycle and conditional licensure status commencing April 12, 2013. b. Lakeshore shall ensure that, on or before October [, 2014, an independent purchaser not affiliated with Lakeshore shall file a “Change of Ownership” application seeking the licensure currently held by Lakeshore. Lakeshore shall ensure any such applicant possess, at a minimum, the following qualifications: i. The applicant, or a controlling interest’ of the applicant, shall have been licensed, or be a controlling interest in an entity or entities which has been licensed, to operate a nursing home in the State of Florida pursuant to the provisions of Chapters 400, Part II, and 408, Part II, Florida Statutes, and Chapter 59A-4, Florida Administrative Code, for a continuous period of at least three (3) years prior to the filing of the application. ii. The nursing home or nursing homes of the applicant, or the nursing home or nursing homes in which the controlling interest of applicant are licensed as nursing home(s) or in which the controlling interest of applicant holds a - controlling interest in the licensed nursing home(s), shall not have been subject to a Class | or a widespread Class II deficient practice” within a three (3) year period predating the filing of the application for “Change of Ownership” licensure. c. Effective at 5:00 p.m., December 31, 2014, the nursing home license of Lakeshore, license number 1282096, shall be deemed relinquished and cancelled, unless the Agency has issued a "Change of Ownership” license to another person or entity to operate the facility. This date may be extended in the sole discretion of the Agency. Absent such extension, the licensure of Lakeshore shall be deemed relinquished and ‘ “Controlling Interest,” as utilized herein, means as defined in Section 408.803(5), Florida Statutes (2013). 2 “Patterned and widespread Class 1 and Class Il deficient practices” are defined in Section 400,23(8), Florida Statutes (2013). cancelled without regard to the'status, substantive or legal, of any pending licensure application related to the license currently held by Lakeshore, 5. Venue for any action brought to enforce the terms of this Agreement or the Final Order entered pursuant hereto shall lie in Circuit Court in Leon County, Florida. 6. By executing this Agreement, Lakeshore denies, and the Agency asserts the validity of the allegations raised in the administrative complaints and the Surveys referenced herein. No agreement made herein shall preclude the Agency from imposing a penalty against Lakeshore for any deficiency/violation of statute or rule identified in a future survey of Lakeshore, pursuant to the provisions of Chapters 400, Part II, 408, Part II, Florida Statutes, and Chapter S9A-4, Florida Administrative Code. In said event, Lakeshore retains the right to challenge the factual allegations related to the deficient practices/ violations alleged in the instant cause. 7. Lakeshore acknowledges and agrees that this Agreement shall not preclude or estop any other federal, state, or local agency or office fiom pursuing any cause of action or taking any action, even if based on or arising from, in whole or in part, the facts raised in the administrative complaints or Surveys, This agreement does not prohibit the Agency from taking action regarding Lakeshore’s Medicaid provider status, conditions, requirements or contract. 8. Upon full execution of this Agreement, the Agency shail enter a Final Order adopting and incorporating the terms of this Agreement and closing the above-styled cases, 9. Each party shall bear its own costs and attorney’s fees. 10. This Agreement shall become effective on the date upon which it is fully executed by all the parties. 11. Lakeshore for itself and for Lakeshore’s related or resulting organizations, successors or transferees, attorneys, heirs, and executors or administrators, does hereby discharge the State of Florida, Agency for Health Care Administration, and its agents, representatives, and attorneys of and from all claims, demands, actions, causes of action, suits, damages, losses, and expenses, of any and every nature whatsoever, arising out of or in any way related to this matter and the Agency’s actions, including, but not limited to, any claims that were or may be asserted in any federal or state court or administrative foram, including any claims arising out of this agreement, by or on behalf of Lakeshore or related facilities. 12. This Agreement is binding upon all parties herein and those identified in paragraph eleven (11) of this Agreement. 13. In the event that Lakeshore was a Medicaid provider at the subject time of the occurrences alleged in the complaint herein, this settlement does not prevent the Agency from secking Medicaid overpayments related to the subject issues or from imposing any sanctions pursuant to Rule 59G-9,.070, Florida Administrative Code. 14, Lakeshore agrees that if any funds to be paid under this agreement to the Agency are not paid within thirty-one (31) days of entry of the Final Order in this matter, the Agency may deduct the amounts assessed against Lakeshore in the Final Order, or any portion thereof, owed by Lakeshore to the Agency from any present or future funds owed to Lakeshore by the Agency, and that the Agency shall hold a lien against present and future funds owed to Lakeshore by the Agency for said amounts until paid. 15. The undersigned have read and understand this Agreement and have the authority to bind their respective principals to it. 16. This Agreement contains and incorporates the entire understandings and agreements of the parties, 17, This Agreement supersedes any prior oral or written agreements between the parties, 18. This Agreement may not be amended except in writing. Any attempted assignment of this Agreement shall be void. 19. All parties agree that a facsimile signature suffices for an original signature. The following representatives hereby acknowledge that they are duly authorized to enter into this Agreement, Health Quality Assurance Agency for Health Care Administration 2727 Mahan Drive, Building #1 Tallahassee, Florida 32308 DATED: 3 [vs Im F, Williams, General Counsel Office of the General Counsel Agency for Health Care Administration 2727 Mahan Drive, MS 43 Tallahassee, Florida 32308 Florida Bar No, 670731 DATED: 2G Anna Small, Esquire Allen Dell Counsel for Respondent 202 South Rome Avemue, Suite 100 Tampa, FL 33606 Florida Bar No. 17064 DATED: x04 Title: Name: Katherine idle 7s) Senior Care Group, Inc. DATED: _.3//i fl ¢ 4 7 y ff Thomas J. Walsh IJ, Senior Attorney Office of the General Counsel Agency for Health Care Administration 525 Mirror Lake Drive North, Suite 330G St. Petersburg, Florida 33701 Florida Bar No. 566365 DATED: 5//Z, 7 !
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times material to this proceeding, the Respondent, Stacey Abo, was licensed in the State of Florida as a Registered Nurse (RN) holding license number 1457012. Presently, Respondent's license is in an inactive or lapsed status, having expired on March 31, 1987 without being renewed. Respondent was employed as a licensed RN at Memorial Hospital Memorial (Memorial) in Ormond Beach, Florida from May 1983 until her termination on July 5, 1985. During Respondent's tenure of employment at Memorial the Respondent: (a) was counseled on September 16, 1983 by Jackie Mirsky, Nursing Supervisor after it was reported to Mirsky by other nurses who did not testify at the hearing that they had smelled the odor of alcohol on Respondent's breath while she was on duty on September 6, 1983 and September 14, 1983; (b) was confronted by Sandra Peeples, charge nurse, on July 11, 1982 because Peeples suspected the odor of alcohol on Respondent's breath while she was on duty on June 11, 1984; (c) was terminated from her employment at Memorial on July 5, 1985, after it was reported to Johnette Vodenicker, Assistant Administrator, by another nurse, who did not testify at the hearing, that she had smelled the odor of alcohol on Respondent's breath on July 4, 1985 and, for having been counseled on September 16, 1983 and June 11, 1984 in the same regard. Peeples "thought" she smelled alcohol on Respondent's breath on June 11, 1984. Respondent admitted having "a beer" with lunch but there is insufficient evidence to show that Respondent had the odor of alcohol on her breath while on duty on September 6, 1983, September 14, 1983, July 4, 1985 or at any other time while she was on duty, other than June 11, 1984. The Respondent was employed as a licensed RN at Halifax Medical Center (Halifax) in Daytona Beach, Florida, from November, 1985 until her termination on October 8, 1986. Sometime in December, 1985, shortly after being employed at Halifax, the Respondent attempted suicide by ingesting several different drugs and, was hospitalized at Halifax for approximately two (2) weeks. Because of the suicide attempt, Respondent was referred to counseling. Respondent attended counselling session with Dr. Abed. It was understood that she could return to work on Dr. Abed's recommendation. Sometime around January 1, 1986 Respondent was allowed to return to work as a concentrated care unit nurse on the condition that Respondent continue counseling until released by Dr. Abed. There is insufficient evidence to establish how Halifax was to be notified of Respondent's continued counseling or the frequency of such notification. Halifax was never notified by Dr. Abed that Respondent had been released from treatment. Respondent's notification of her counseling with Dr. Abed was sporadic, however there was insufficient evidence to establish that such notice was not in accordance with the understanding between Halifax and the Respondent. There was insufficient evidence to establish the reason for Respondent's suicide attempt or that such suicide attempt resulted in Respondent being unable to practice nursing with reasonable skill and safety to patients except for the two (2) week period she underwent counseling with Dr. Abed. Respondent was reported to Judith Ann Clayton, nurse manager, intensive surgical center, Halifax Medical Center, for numerous errors which involved administering and monitoring "I.V's" to patients on May 15, 1986 (Petitioner's Exhibits No. 5- A) and May 19, 1986 (Petitioner's Exhibits 5-B through 5-E) by nurses who came on duty on the next shift immediately after Respondent`s shift. Somewhere around the time of the "I.V." incidents, Respondent was observed by Clayton as having the odor of alcohol on her breath while on duty. When confronted by Clayton, the Respondent admitted having had "a beer" with lunch. There is insufficient evidence to show if Respondent was ever counselled or disciplined by the hospital for this incident. As a result of these reported errors involving improper administration and monitoring of "I.V.`s" to patients and, having the odor of alcohol on her breath while on duty, Respondent was placed on medical leave of absence for two (2) months. During these two (2) months, Respondent was provided counseling by Halifax with the understanding that at the end of counseling Halifax would determine her status. During Respondent's medical leave of absence she attended counselling and was allowed to return to work with a limited work assignment on June 30, 1986 on the neurological surgical unit under the supervision of Jean R. Snodgrass. At the beginning, Respondent's duties did not include administering and monitoring "I.V.`s", administering other medication or signing off orders in the patient's chart. However, on October 8, 1986, Respondent was responsible for administering medication and administering and monitoring "I.V.`s". On October 8, 1986, Respondent, while fully responsible for fourteen (14) or fifteen (15) patients, left and did not return to her assigned station on the neurological surgical unit during her scheduled shift. Respondent failed to notify the proper authority or anyone else of her departure and without securing a replacement, thereby abandoning her patients. Due to Respondent's abandonment of her patients, Halifax terminated her employment on October 8, 1986. By abandoning her patients on October 8, 1986, Respondent failed to conform to minimum standards of acceptable and prevailing nursing practice and was not practicing nursing safely.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore RECOMMENDED that the Board of Nursing enter a Final Order finding the Respondent guilty of violating Section 464.018(1)(f), Florida Statutes and that Respondent's nursing license be suspended for a period of one (1) year, stay the suspension, place the Respondent on probation for a period of three (3) years under the condition that Respondent undergo psychological counseling and any other condition the Board may deem appropriate, and assess an administrative fine of $300.00 to be paid within ninety (90) days of the date of the Final Order. Respectfully submitted and entered this 16th day of October, 1987, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 16th day of October, 1987. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 87-2232 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the Petitioner in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. 3.-4. Adopted in Finding of Fact 3. 5.-6. Rejected as hearsay that is uncorroborated by any substantial competent evidence. Adopted in Finding of Fact 5. Adopted in Finding of Fact 11. Rejected as not supported by substantial competent evidence in the record. Adopted in Finding of Fact 6. Adopted in Finding of Fact 9 but clarified. Adopted in Finding of Fact 7 but clarified. The first sentence is rejected as not supported by substantial competent evidence. The second sentence is rejected as hearsay uncorroborated by any substantial competent evidence. The third sentence is adopted in Finding of Fact 7. 14.-15. Rejected as hearsay uncorroborated by any substantial competent evidence. Adopted in Finding of Fact 12 but clarified. Adopted in Finding of Fact 13 but clarified. Rejected as not supported by any substantial competent evidence. Additionally, it is rejected as not being relevant or material. Adopted in Finding of Fact 14. Adopted in Finding of Fact 15. Rejected as not supported by any substantial competent evidence. Rulings on Proposed Findings of Fact Submitted by the Respondent The Respondent did not submit any proposed findings of fact. COPIES FURNISHED: Lisa M. Bassett, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Stacey Abo 12 Riverdale Avenue R.R. No. 2 Ormond Beach, Florida 32074 Tom Gallagher, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Judie Ritter, Exec. Director Board of Nursing Department of Professional Regulation Room 504, 111 E. Coastline Dr. Jacksonville, Florida 32201
