The Issue Whether Respondent violated Subsection 456.072(1)(c), Florida Statutes (2002),1 and, if so, what discipline should be imposed.
Findings Of Fact The Department is the state agency charged with the responsibility of regulating the practice of nursing pursuant to Section 20.43 and Chapters 456 and 464, Florida Statutes. Ms. Stockford is a registered nurse, licensed by the Department. Her license number is 2164512. From 2000 to 2001, Ms. Stockford was employed by Pediatric Services of America (Pediatric Services), in their Visit Home Care Department. Her responsibilities included providing medical care to children in their homes. She was paid according to the number of visits she made to the patients. Ms. Stockford was required by her employer to submit timesheets and clinical notes, detailing each time she made a house call and the services provided to each patient. Pediatric Services would bill Medicaid for Ms. Stockford's visits based on the notes and timesheets submitted by Ms. Stockford. In March 2001, a case manager employed by Pediatric Services determined that information that Ms. Stockford had submitted on a patient was incorrect. This led to further investigation by Pediatric Services into the timesheets and clinical notes that Ms. Stockford had submitted. The investigation revealed that Ms. Stockford had submitted timesheets and clinical notes on several patients for visits that she did not make. On August 8, 2002, an Information was filed by the State Attorney for the Ninth Judicial District of Florida, charging Ms. Stockford with one count of grand theft third degree for knowingly obtaining by scheme or course of conduct over $5,000 from Pediatric Services and with 13 counts of Medicaid fraud by knowingly making or causing to be made or aiding and abetting in the making of false statements or false representations of a material fact, by commission or omission, in any claim for payment submitted to the Agency for Health Care Administration or its fiscal agent. On March 26, 2003, Ms. Stockford entered a plea of guilty to the count of grand theft and to three counts of Medicaid fraud. Adjudication was withheld. She was placed on supervised probation for five years, ordered to serve 200 hours of community service, ordered to pay restitution to Pediatric Services, and fined. The crimes to which Ms. Stockford pled guilty related to the practice of nursing. The theft of money from Pediatric Services was done through the falsification of timesheets for nursing services and through fabricated clinical notes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Penny T. Stockford guilty of a violation of Subsection 456.072(1)(c), Florida Statutes, imposing an administrative fine of $500, suspending her license for five years, and placing her on probation for three years after the suspension of her license. DONE AND ENTERED this 5th day of October, 2005, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of October, 2005.
The Issue The issues for determination are: (1) whether the deficiency alleged as a result of a Complaint Survey conducted on June 18, 2002, is appropriately classified as a Class I deficiency; (2) whether a fine in the amount of $10,000 is appropriate; (3) whether the "Conditional" licensure status, issued October 29, 2002, is warranted; and (4) whether the alleged violation constitutes grounds for a six-month survey requirement and $6,000 survey fee.
Findings Of Fact At all times material hereto, AHCA was the state agency responsible for evaluating nursing homes in Florida pursuant to Section 400.23(7), Florida Statutes. As such, in the instant case it is required to conduct a complaint evaluation of nursing homes in Florida in accordance with Section 400.23(8), Florida Statutes (2000). AHCA's evaluation of Florida nursing homes requires an assignment of a rating of standard or conditional to each licensee. In addition to its regulatory duties under Florida law, AHCA is the state "survey agency," which, on behalf of the federal government, monitors nursing homes that receive Medicaid or Medicare funds. Carrollwood Care Center is a nursing home located at 15002 Hutchinson Road, Tampa, Florida, and is duly-licensed under Chapter 400, Part II, Florida Statutes. On June 18, 2002, a complaint investigation survey was conducted at Carrollwood by Pamela Mraz, a surveyor for AHCA, who visited the Carrollwood facility to inquire into the death of Resident 1 that occurred on May 5, 2002. Ms. Mraz is a registered nurse (RN) with over 20 years of nursing experience, including having served as a director of nursing and having completed more than 100 surveys of long-term care facilities. She has been a surveyor for AHCA since September 2001. During the course of her complaint survey of the facility, Ms. Mraz examined the facility's records pertaining to Resident 1's death. Her review indicated that the death of Resident 1 constituted failure to meet the standards set-up under Tag F324, as identified on the Form 2567-L of the U.S. Department of Health and Human Services' Health Care Financing Administration. The parties refer to this form as the HCFA 2567-L or the "2567." The 2567 is the document used to charge nursing homes with deficiencies that violate applicable law. The 2567 identified each alleged deficiency by reference to a tag number. Each tag on the 2567 includes a narrative description of the allegations against Carrollwood and cites a provision of the relevant rule or rules in the Florida Administrative Code violated by the alleged deficiency. To protect the privacy of nursing home residents, the 2567 and this Recommended Order refer to the resident by a number (i.e., Resident 1) rather than by the name of the resident. AHCA must assign a class rating of I, II or III to any deficiency that it identifies during a survey. The rating reflects the severity of the identified deficiency, with Class I being the most severe and Class III being the least severe deficiency. There is one tag, Tag F324, at issue in the instant case, and, as a result of the complaint survey of June 18, 2002, AHCA assigned Tag F324 a Class I deficiency rating. Tag F324, reflecting the requirement of 42 C.F.R. Chapter 483.25(h)(2), requires a facility to ensure that each resident receives adequate supervision and assistance devices to prevent accidents. AHCA's witness, Ms. Mraz, was asked her opinion only regarding the facility's compliance with the requirements of Tag F324. She opined that Carrollwood did not provide adequate supervision and assistance devices to prevent the accidental death of Resident 1. Resident 1's first admission to Carrollwood was on March 27, 2002. He was 89 years of age at the time of his admission, weighted 118 pounds and was 5'3" in height. He did not speak English. His initial screening assessment form reflected that he suffered with both short-term and long-term memory impairment, incontinency, decubitus ulcer, prostate cancer, malnutrition, heart problems, and was determined by Carrollwood's staff to be "bedfast" (in bed not less than 22 hours per day). Resident 1's range of motion was limited to his hands, arms and legs. Even though he could make occasional slight changes in body or extremity positions, he was unable to make frequent or significant body changes independently. Resident 1 was incapable of getting out of bed on his own, had no involuntary body movements, and required two persons to physically assist him in bed mobility. He could not use a wheel chair and experienced short periods of restlessness demonstrated by crying out in Spanish, his native language. Carrollwood's Fall Risk Assessment observation indicated that Resident 1 was virtually immobile and was, therefore, a minimum risk for falls. His assessment and care plan were adequate for his condition and comfort. Resident 1 was placed in a semi-private room with his wife. A curtain between the beds separated them. Viewed from the foot of Resident 1's bed, his wife's bed would be to the left of his bed. On the right side of his bed, an upper half side rail was placed as an enabler. On April 17, 2002, three weeks after his admission, Resident 1 was discharged to the hospital due to an increase in his temperature and congestion. On April 30, 2002, he returned from the hospital and was readmitted to Carrollwood. At this time, his second admission, he was assessed by Carrollwood's staff to be in a much weaker condition than at his initial admission, with additional diagnoses of sepsis, pneumonia, psychosis, anemia, depression and malnutrition. Upon his second admission to Carrollwood, his assessment determination changed, and Resident 1 was classified as "bed-bound," as opposed to the prior assessment of bedfast, and he required extensive assistance, at least two persons to physically assist in transferring and dressing him with use of the upper bed side rail as enablers. The doctors' notes made in conjunction with the second admission did not include the use of upper side rails as in-bed enablers. The Nurse Evaluation Assessment, dated May 1, 2002, reported that Resident 1 was completely dependent on staff for all his daily living activities, i.e., bathing, grooming, dressing, feeding, and toileting, because he could not do these functions for himself. His Resident Care Plan reflected that he had a "potential for falls due to decreased cognition and physical mobility." His bed was lowered, the head of his bed was elevated, a second mattress was added, and a pneumatic call bell was attached. With knowledge of his updated medical history and further weakened condition, the nursing staff made an independent decision to use one upper bed side rail on Resident 1's bed. The staff had received a Food and Drug Administration alert regarding potential dangers resulting from the use of side rails as recently as February 2002, and had participated in in- service training sessions concerning the use of side rails. AHCA presented no evidence of authoritative directives for "the care giver's use of side rails" in long-term care facilities. There was no evidence of statutory proscriptions, rules or accepted industry standards relating to the use of side rails in long-term care facilities. Therefore, each long-term care facility, including Carrollwood, may independently determine when, where, how and under what circumstances bed side rails will be used. Thus, AHCA's evidence of record affords no substantial basis to support its allegation that Carrollwood's decision to use an upper side rail on Resident 1's bed demonstrated a lack of adequate supervision that would cause or tend to cause immediate harm and/or death to Resident 1. Marie Gianan, RN and MDS Coordinator for Carrollwood, which included coordination of assessments and care planning since July 2000, determined that Resident 1's April 17, 2002, transfer to the hospital was a "complete discharge" from Carrollwood. According to Ms. Gianan, Carrollwood's policy, as she understands it, is that once a resident is completely discharged, his or her medical records go to medical storage. Thus, Resident 1's return on April 30, 2002, was considered and treated as a new admission requiring an original initial assessment, a new care plan and 30 days thereafter, preparation of a new MDS. The procedure, as understood by Ms. Gianan, was to not consider Resident 1's old medical records, old care plans, and old MDS, but rather to start anew based upon staff's observations, inquiries, and a check and review of current medical records and, thereafter, formulate an assessment and initial care plan within 24 hours of admission. The MDS would follow within 30 days after completion of the initial care plan. Resident 1's April 2, 2002, care plan and fall risk assessment, indicated the following: skin problems that required repositioning him in bed every two hours; bath to be given on shower day or twice weekly; dehydration requiring liquids every night; placing his bed in a low position to prevent falls due to his decreased physical mobility; providing a pneumatic call bell; and using one upper side rail as an enabler placed on his bed. The care plan for Resident 1 met all requirements and does not indicate nor support an allegation of lack of supervision or inadequate care. Ms. Gianan was adamant that Resident 1, although maybe weaker in body strength than before his discharge on May 8, 2002, was "mobile," per her interpretation of the word on his April 2, 2002, admission. She disagreed with the March 27, 2002, assessment of Resident 1 as being "immobile." Ms. Gianan has opined that, "immobile means you do not move in bed--you just stay in the position that you are put in--I do not agree with that evaluation." Carrollwood's policy permits its MDS Coordinator to independently evaluate, assess, interview and otherwise determine the status and condition of each resident. On May 5, 2002, the date of Resident 1's death, at approximately 6:45 a.m., Ann Nickerson, certified nursing assistant (CNA), entered Resident 1's room to empty his catheter. During this process, Resident 1 cried out in Spanish. His wife, awaken by the activity and Resident 1's cry, said to Ms. Nickerson "he is alright," and Ms. Nickerson completed her task and departed the room. An hour and one-half later, at approximately 8:15 a.m., Jermaine Martinez, CNA, entered Resident 1's room with his breakfast tray. Mr. Martinez found Resident 1 on the floor with his clothing pulled upward around his torso. His head was wedged between the bed's upper side rail and the mattress, with his chin resting upward against the upper side rail, thereby hyperextending his neck. Resident 1 had no pulse or respiration when found by Mr. Martinez. The Hillsborough County Medical Examiner, in an amended1 death certificate, listed Resident 1's cause of death as positional asphyxiation; the result of a lack of oxygen due to the position of his head wedged between the bed mattress and the upper side rail and hyperextension of his neck. Within a few minutes of the discovery of Resident 1 on the floor by the Mr. Martinez, Resident 1's family entered the facility for a visit and was stopped in the hall by the duty nurse who informed them of his death. During that brief period, and following the instructions given by the duty nurse, Mr. Martinez and Ms. Nickerson moved the body of Resident 1 from the floor and placed him back in his bed, pulling the cover up to his chin. Thereafter, staff contacted Carla Russo, director of nursing, for further instructions. Following instructions, staff called and released Resident 1's body to the funeral home without first notifying the Hillsborough County Medical Examiner. Because of this action, in violation of policy, no autopsy was performed on the body. It is undisputed that the facility's failure to immediately notify the Hillsborough County Medical Examiner of Resident 1's death constituted a violation of the facility's own policy and procedures regarding the death of residents at the facility. AHCA did not cite the facility for this particular facility policy violation. Therefore, there is no evidence to support an allegation of lack of supervision or inadequate care for this policy violation. Based upon the care plan, nurse's notes, and medical records, it is undisputed that staff visited Resident 1's room an average of every two and one-half hours, if not more often, to provide medications and to attend the personal needs for both Resident 1 and his wife, during each 24-hour period from April 2, 2002, to May 5, 2002. During those staff visits, while attending one occupant, staff would, could and did observe the other occupant. During those frequent room visits during the 24-hour period preceding Resident 1's demise, staff had not observed him to be restless or to independently move his body about in his bed. There is no evidence that Resident 1 was not under staff's observation, and, by implication, not under staff's supervision for any overly long period or an extended period of time of more than two and one-half hours during the April 2, 2002, through May 5, 2002, time period. The evidence does not indicate or support an allegation of lack of supervision or inadequate care by the facility. From all medical records in evidence, it is clear that during his residency in the facility, Resident 1 never exhibited the type of behaviors that would indicate to staff he was a risk for falls; he had no recorded prior history of falls at home, at the hospital or at Carrollwood, he did not use a wheelchair and he could not independently ambulate. He was never observed by staff attempting to get out of bed, and his only infrequent and occasional expressions of restlessness were "crying out" in Spanish. The evidence of record does not indicate or support an allegation of lack of supervision or inadequate care by the facility. AHCA presented no evidence of sufficient reliability to provide a plausible foundation upon which to conclude that the cause of Resident 1 moving from his bed-bound prone position to a sitting position on the floor with his neck wedged between the upper side rail and the bed mattress was due to a lack of supervision or inadequate care by the facility's staff. The evidence supports a plausible conclusion that Resident 1's demise, although inexplicable from the evidence of record, was nonetheless accidental.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order dismissing in its entirety the Administrative Complaints filed in this cause. DONE AND ENTERED this 27th day of March, 2003, in Tallahassee, Leon County, Florida. FRED L. BUCKINE 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 March, 2003.
The Issue The issues for determination are whether Respondent committed the offenses set forth in the Administrative Complaints and, if so, what penalty should be imposed; and whether Respondent should be issued a Standard or Conditional license rating.
Findings Of Fact At all times material hereto, Respondent was a licensed nursing home located in Pompano Beach, Florida. Petitioner is charged with, among other things, periodically evaluating nursing home facilities and making a determination as to the degree of compliance with applicable federal regulations, and state statutes and rules. The evaluation or survey of a facility includes a resident review or survey. A resident survey consists of record review, resident observation, and interviews with family and facility staff. Review of a clinical record includes the review of a document referred to as minimum data set or MDS Assessment. The MDS Assessment is a record, in summary fashion, of information or data that a facility gathers to prepare a care plan for a resident. During the survey of a facility, if violations of regulations are found, the violations are noted and referred to as "tags." Petitioner's surveyors document the tags on a form prepared by Petitioner. Petitioner's surveyors use the "State Operations' Manual" (SOM) as guidance in determining whether a facility has violated the federal regulation 42 CFR Chapter 483. The October 1998 Survey On October 8-9, 1998, Petitioner conducted an appraisal survey of Respondent, which is not a full survey. In an appraisal survey, Petitioner's focus is on quality of care issues, making sure that the quality of care standards are met. Petitioner used nursing home survey protocols prescribed by the federal government. Petitioner's surveyor performed a resident review of Resident No. 5. Tag F309 Tag F309 incorporates the requirement of federal regulation 42 CFR Subsection 483.25, which provides that "each resident must receive and the facility must provide the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with the comprehensive assessment and plan of care." The SOM provided, regarding 42 CFR Section 483.25, that a facility must ensure that its residents obtain optimal improvement or does not deteriorate. Therefore, the surveyor must first determine whether a resident has declined or optimally improved, and if the resident has suffered a decline or lack of improvement, determine whether the decline or lack of improvement was avoidable or unavoidable. A decline or failure to reach the highest practicable well-being is unavoidable only if: (1) the facility has an accurate and complete assessment; the facility has a care plan which is consistently implemented and based on the assessment; and (3) the facility has an evaluation of the results of the interventions and revising the interventions when necessary. Resident No. 5 was admitted to Respondent on July 9, 1998. The diagnosis for Resident No. 5 included dementia, but not severe because he could understand and follow directives, aggressive behavior, and agitated depression. He used a wheelchair and could ambulate with assistance. Respondent was required within 14 days, by July 23, 1998, to complete a MDS Assessment of Resident No. 5. Respondent assessed Resident No. 5 as being at risk for falls. Respondent was required within 21 days, by July 30, 1998, to develop a comprehensive care plan to address Resident No. 5's risk for falls. On July 29, 1998, Respondent completed and implemented the comprehensive care plan, containing interventions which included encouraging Resident No. 5 to use his call light; counseling him about his risk for falls and the need to request assistance in transfers; assisting him with transfers; instructing him about proper transfer techniques; using a night light; monitoring him for fatigue; and providing proper positioning while he was in bed or in a chair. Petitioner's surveyor reviewed, among other things, the nurses' notes and the care plan for Resident No. 5. The surveyor determined that Resident No. 5 had fallen seven times since his admission: July 18, July 23, August 7, August 14, August 17, September 26, and October 5, 1998. Two of Resident No. 5's falls occurred during the period for his MDS Assessment: July 18 and 23, 1998. Resident No. 5 suffered a skin tear to his elbow from the fall on August 14, 1998. On August 11, 1998, after his third fall on August 7, 1998, a wheelchair alarm was initiated to reduce the risk of falls. After Resident No. 5's fall on August 17, 1998, Respondent obtained an order for a lap tray. On September 28, 1998, after his sixth fall on September 26, 1998, a physical therapy screen was performed and a lap buddy was to be used in conjunction with the wheelchair alarm to reduce the risk of falls. The wheelchair alarm was to be used when the lap buddy was not in use. During the October survey, which was only three to four days after Resident No. 5's most recent fall, Petitioner's surveyor observed on two occasions that Resident No. 5 was without either a wheelchair alarm or a lap buddy. Before using the lap buddy, Resident No. 5 used a lap tray. He did not want to give-up the lap tray. Even when he was informed that the lap tray was restrictive, Resident No. 5 wanted to continue using the lap tray. A wheelchair alarm is a device, which attaches to a resident's wheelchair and is connected to the resident by a string. When the resident stands or otherwise moves from the wheelchair, the alarm sounds. The alarm's primary function is to alert the staff, not to ensure that falls will not occur, but the alarm's function is also an inhibitor and assists the staff to prevent the resident from causing himself or herself to fall. The wheelchair alarm is used only when there is a clearly demonstrated need. A lap buddy is much more restrictive than the wheelchair alarm. The lap buddy is a pillow-like device that rests in the resident's lap and discourages the resident from getting up, but the lap buddy can be removed by the resident. A more restrictive device than the lap buddy is the lap tray. The lap tray is a thin plywood board that is placed across the arms of the wheelchair and is secured to the wheelchair. The resident is capable of sliding underneath the lap tray and getting out of the wheelchair. In addition to the skin tear that Resident No. 5 suffered in his third fall on August 14, 1998, he experienced a decline in mobility requiring two people for assistance in walking instead of one person as he had before the many falls. Even though Resident No. 5 had a decline in his mental status as he had to begin taking a medication again that he stopped taking, the evidence does not demonstrate that the falls caused the decline in his mental status. Respondent failed to develop a care plan expeditiously and timely in order to address Resident No. 5's risk for falling. No evidence was presented to demonstrate that Resident No. 5 was resistant to using the interventions. Respondent had no documentation showing that the wheelchair alarm was sounding or in place at the time of Resident No. 5's fifth fall on August 17, 1998. Respondent had no documentation showing that the wheelchair alarm was in consistent use. Such documentation would have indicated that the care plan was being implemented. Respondent had no documentation showing that Resident No. 5 removed either the lap tray or lap buddy. When he fell on October 5, 1998, his seventh fall, the intervention for Resident No. 5 was the lap tray. The documentation showed that the lap tray had to be re-secured. An inference is drawn and a finding of fact is made that the lap tray was not in place when Resident No. 5 fell and that, therefore, the intervention was not consistently used. The evidence demonstrates that Respondent evaluated the results of the interventions which were used with Resident No. 5 and that Respondent revised the interventions as necessary. However, the evidence also demonstrates that the interventions were not consistently implemented. The evidence, in totality, demonstrates that Resident No. 5's decline was avoidable. Petitioner cited Respondent for committing a violation of Tag F309 and classified the violation as a Class II deficiency. Further, Petitioner assigned a federal scope and severity rating of "G" to the Tag F309 deficiency. Corrective Action After the October survey, Respondent was required to submit a plan of correction regarding Tag F309. Respondent submitted the plan of correction, indicating corrective action by October 10, 1998. The deficiency was corrected on October 10, 1998. Penalty Based upon the Class II deficiency of Tag F309, Petitioner imposed a fine of $5,000 upon Respondent. The April 1999 Survey On April 19-21, 1999, Petitioner conducted an annual survey of Respondent. An annual survey is performed at least once every 15 months. Again, the SOM was used by Petitioner's surveyors. Decisions, regarding violations, are made by the survey team. One surveyor is responsible for the resident review of a particular resident. Resident No. 3 Petitioner's resident surveyor reviewed documents and information, regarding Resident No. 3, including hospice care plan and social service notes; nurses' notes; physician orders; nurses' treatment notes; medication records; physician progress notes; comprehensive care plan, monthly summary comments; dietician's assessment; nutritional assessment; and the SOM for the pertinent tags. Petitioner's resident surveyor also made personal observations, interviewed staff, and had a consultation with a registered dietician, who was Petitioner's consultant. The survey team leader conducted the family interview. On December 10, 1998, Resident No. 3 was admitted to Respondent's facility from an acute care hospice facility. She was terminally ill and doctors were of the opinion that her clinical conditions would cause her death within six months. As a result, Resident No. 3 remained on hospice care at Respondent's facility. Resident No. 3 suffered from end-stage cardiovascular disease and congestive heart failure. She was incontinent with an indwelling Foley catheter and had contractures of the legs and Parkinson's disease. As a result of a stroke, Resident No. 3 was without speech. She was being fed through a PEG tube, which was inserted into her abdomen. Medication and hydration was also provided to her through the PEG tube. Resident No. 3 had several decubiti (pressure sores) at various stages of severity, including one at Stage IV and two at Stage III. She was receiving a continuous dose of morphine for pain caused by her compromising conditions. Resident No. 3 required total and complete assistance with all her activities of daily living (ADLs). She was completely dependent. The family of Resident No. 3 made the health care decisions for her, in particular, her son. Regarding the pressure sores, a Stage IV pressure sore had gone completely through the skin and muscle down to the bone, with nerve endings exposed. The pressure sore was open, raw, and very painful. Often the pain of such a pressure sore is described as being like very severe sun burns or almost like a bone racking kind of pain. In treating pressure sores, nutrition is one of the key components and one of the most important aspects of healing them. Development of pressure sores is related to malnutrition. During Resident No. 3's stay at the acute care hospice facility, before being admitted to Respondent's facility, Resident No. 3 experienced fluid build-up in her lungs, which was related to her end-stage cardiovascular disease and congestive heart failure. The hospice facility effectively eliminated the fluid build-up by reducing the amount of fluid intake to one can per day, which provided Resident No. 3 with 240 calories per day. For most healthy adults, 240 calories per day is insufficient to maintain body weight or promote healing of wounds or diseases. Resident No. 3's overall condition stabilized on the 240 calories per day. Upon admission to Respondent on December 10, 1998, a nutritional assessment of Resident No. 3's nutrition needs was performed by Respondent's dietician. A determination was made that, in order to meet her nutritional needs and promote weight gain and healing of her pressure sores, Resident No. 3 required 1,424 calories per day and between 37 and 56 grams of protein per day, in addition to multivitamins, vitamin C, zinc, and iron. In January 1999, Respondent's dietician reassessed Resident No. 3 for her nutritional needs. The dietician determined that no change existed in the nutritional needs for Resident No. 3, and recommended an additional, but slight, increase in the feeding amount. Around mid-January 1999, after the nutritional assessment, Resident No. 3 went into crisis care. While in crisis care, Resident No. 3's family expressed concern that she was receiving too much fluid through her feeding. Resident No. 3's physician ordered a reduction in her tube feeding to 720 calories (720 cc) per day, from six cans to three cans of formula per day. On January 25, 1999, Resident No. 3's family again expressed concern that she was receiving too much fluid through her tube feeding. The next day, Respondent's dietician and the hospice nurse met to discuss Resident No. 3's situation regarding the tube feeding. The hospice nurse informed Respondent's dietician that, during Resident No. 3's acute care at the hospice center, Resident No. 3 had experienced increased congestion and her tube feeding had been reduced to one can of formula per day and that, presently, Resident No. 3 was again experiencing increased congestion. Based upon Resident No. 3's prior experience at the hospice center with increased congestion and reduction in the amount of formula, upon the family's concern that three cans of formula per day was too much, and upon the dietician's opinion that Resident No. 3's comfort would be promoted by reducing the amount of the formula, the dietician decided to recommend reducing Resident No. 3's tube feeding. On January 26, 1999, the dietician recommended reducing the formula from three cans of formula per day to one can per day, from 720 calories (720 cc) to 240 calories (240 cc). No order was given that day by Resident No. 3's physician to reduce the tube feeding from 720 calories. The physician for Resident No. 3 was willing to reduce the formula or even discontinue it if the family of Resident No. 3 agreed. The family of Resident No. 3 were not willing to discontinue the tube feeding. Resident No. 3's physician did not order a reduction of the formula. On January 28, 1999, the physician diagnosed Resident No. 3 with pneumonia and recommended that the pneumonia be allowed to overcome her because of her terminal illness. Resident No. 3 improved and was taken off crisis care on February 3, 1999. Shortly thereafter, she began experiencing audible congestion. On February 12, 1999, Resident No. 3 was suffering from congestion, respiratory distress, and edema in her arms and thighs. On February 16, 1999, 13 days after Resident No. 3 was taken off crisis care, her physician ordered a reduction of the tube feeding to one can per day. Resident No. 3's respiratory problems became non-existent and she was removed from crisis care. Resident No. 3 remained on one can of formula, 240 calories, per day for a little over two months, from February 16, 1999, until the survey in April 1999. During that period of time, either the physician or his assistant reviewed Resident No. 3's condition and did not change her feeding order of one can per day. On February 26, 1999, Resident No. 3 was no longer congested. Her reduced feeding was not re-evaluated by Respondent to determine its necessity until the April survey. At the initial tour of Respondent by Petitioner survey team, the team member who was responsible for resident review of Resident No. 3 and who was a registered nurse observed Resident No. 3, who appeared to be a quite frail, thin and ill female, being tube fed. The feeding bag indicated that Resident No. 3 was receiving 240 calories (240 cc) per day. Resident No. 3's room had a strong odor, which the team member suspected was indicative of a skin infection, and a deodorizer can was on the floor next to Resident No. 3's bed. Respondent had no policy or procedure in place to monitor the continued necessity or advisability of such a condition as Resident No. 3's reduced feeding. The failure to have such a policy in place potentially put other residents at risk, which is a consideration of the surveyors when they make their decisions regarding the existence of a deficiency. The evidence fails to demonstrate that Respondent obtained informed consent from Resident No. 3's family for the reduced feeding. Respondent failed to fully inform the family of the effects or risks of reduced feeding on the healing of Resident No. 3's pressure sores. Respondent conducted planning meetings regarding Resident No. 3's care plan, but her health care surrogate, her son, was not invited to attend; whereas, if he was invited to attend, he would have had full knowledge of the effects or risks of the reduced feeding on the healing of her pressure sores. The evidence demonstrates that the reduced feeding in Resident No. 3's situation was not compatible with the standard of palliative care and was inconsistent with acceptable end-of- life care practices. Tag F224 Tag F224 incorporates federal regulation 42 CFR Section 483.13(c)(1)(i), which requires, in pertinent part, Respondent to "develop and implement written policies and procedures that prohibit mistreatment, neglect and abuse of residents." Neglect is defined by the SOM guidelines as "failure to provide goods and services necessary to avoid physical harm, mental anguish, or mental illness." The SOM guidelines further provide that, on an individual basis, neglect occurs "when a resident does not receive a lack of care in one or more areas (e.g., absence of frequent monitoring for a resident known to be incontinent, resulting in being left to lie in urine or feces)." The intent of the federal regulation is provided in the SOM guidelines, which provide, in pertinent part, that the intent is "to ensure that the facility has in place an effective system that regardless of the source (staff, other residents, visitors, etc.) prevents mistreatment, neglect, and abuse of residents . . . . However, such a system cannot guarantee that a resident will not be abused; it can only assure that the facility does whatever is within its control to prevent mistreatment, neglect, and abuse of residents." Petitioner's survey team determined that Respondent did not have procedures and policies in place to prevent the "neglect" of Resident No. 3. It was within Respondent's control to attempt to ascertain medically the causative agent of Resident No. 3's congestion. Respondent failed to seek a cause, medically, of the congestion but relied upon what was related to Respondent's staff as to what occurred at the hospice facility when the hospice facility was faced with Resident No. 3's congestion. Resident No. 3's tube feeding was drastically reduced based upon this reliance. It was within Respondent's control to fully inform Resident No. 3's health care surrogate of the effects of the drastically reduced tube feeding. The evidence failed to demonstrate that her health care surrogate was fully informed by Respondent regarding the effects of the reduced feeding on her pressure sores. Resident No. 3's physician indicated that he would agree with reducing the feeding if the family agreed to the reduction. The health care surrogate, not being informed of the full ramifications, agreed to the reduction in the tube feeding. Whether Respondent provided Resident No. 3 the necessary goods and care was indeterminable by the survey team. Respondent failed to provide goods and services to Resident No. 3 necessary to avoid physical harm or mental anguish. Respondent failed to have written policies and procedures that would have prohibited neglect to Resident No. 3; however, in accordance with the SOM guidelines, the written policies and procedures could not have guaranteed that she would not have been neglected. Petitioner cited Respondent for committing a violation of Tag F224 and classified the violation as a Class II deficiency. Petitioner also assigned a federal scope and severity rating of "G" to the Tag F224 deficiency. Tag F280 Tag F280 incorporates the requirement under federal regulation 42 CFR 483.20(k)(2), which requires, in pertinent part, the development of a comprehensive care plan (Plan) within seven days of the completion of the comprehensive assessment; the Plan to be prepared by an "interdisciplinary team," which includes "the attending physician, a registered nurse with responsibility for the resident, and other appropriate staff in disciplines as determined by the resident's needs, and to the extent practicable, . . . the resident's family or . . . legal representative"; and periodic review and revision by a team of qualified persons after each assessment. Respondent failed to update or revise Resident No. 3's care plan to address the symptom of congestion, which led to the reduced feeding. Respondent failed to invite or include Resident No. 3's health care surrogate to participate in any planning of Resident No. 3's care or in any decisions regarding her nutritional needs. Petitioner cited Respondent for committing a violation of Tag F280 and classified the violation as a Class II deficiency. Petitioner also assigned a federal scope and severity rating of "G" to the Tag F280 deficiency. Tag F314 Tag F314 incorporates federal regulation 42 CFR Section 483.25(c), which requires, in pertinent part, a facility to 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 that a "resident having pressure sores receives necessary treatment and services to promote healing, prevent infection and prevent new sores from developing." The SOM guidelines define a pressure sore as "ischemic ulceration and/or necrosis of tissues overlying a bony prominence that has been subjected to pressure, friction or shear." Furthermore, the SOM guidelines provide a "staging system," which is one method of describing the extent of tissue damage, and which provides, in pertinent part, that "Stage III" is described as a "full thickness of skin is lost, exposing the subcutaneous tissues - presents as a deep crater with or without undermining adjacent tissue" and that "Stage IV" is described as a "full thickness of skin and subcutaneous tissue is lost, exposing muscle and/or bone." Pressure sores in a terminally ill patient are unavoidable. Resident No. 3's pressure sores were unavoidable due to her clinical conditions. For Resident No. 3, maintaining adequate nutrition and hydration was necessary to prevent her pressure sores from worsening, to promote healing, and to prevent infection and breakdown. Respondent drastically reduced Resident No. 3's tube feeding to 240 calories (240 cc) per day. One pressure sore had worsened from a Stage III to a Stage IV. The dead tissue in the Stage III pressure sore was removed, and as a consequence, the pressure sore enlarged to a Stage IV pressure sore. No clinical measurements were available to indicate whether the reduction in the tube feeding negatively affected Resident No. 3. Petitioner cited Respondent for committing a violation of Tag F314 and classified the violation as a Class II deficiency. Petitioner also assigned a federal scope and severity rating of "G" to the Tag F314 deficiency. The evidence is insufficient to demonstrate that Respondent committed a violation of Tag F314. Tag F325 Tag F325 incorporates federal regulation 42 CFR Section 4483.25(i), which, in pertinent part, requires a facility to ensure that a resident "maintains acceptable parameters of nutritional status, such as body weight and protein levels, unless the resident's clinical condition demonstrates that this is not possible." Resident No. 3's clinical condition had a great impact on her nutritional status. Her tube feeding was reduced drastically to 240 calories (240 cc) per day. Respondent failed to properly discuss with and fully inform Resident No. 3's health care surrogate of the impact or effects of such a reduction. Moreover, no periodic review of the reduction was performed by Respondent, which was responsible for a care plan for Resident No. 3. The periodic examination of Resident No. 3's physician or the physician's assistant is no substitute for Respondent's responsibility for periodic review and update or revision, if necessary, of Resident No. 3's care plan. Respondent failed to "ensure" that Resident No. 3's nutritional status was maintained. Petitioner cited Respondent for committing a violation of Tag F325 and classified the violation as a Class II deficiency. Petitioner also assigned a federal scope and severity rating of "G" to the Tag F325 deficiency. Resident No. 1 Resident No. 1 was admitted to Respondent in September 1998, with a Stage IV pressure sore. Full thickness of skin and subcutaneous tissue was lost, exposing muscle and/or bone in a Stage IV pressure sore. To aid the healing of the pressure sore, Resident No. 1's physician ordered a variety of interventions, including ordering that she be given a protein supplement, Promod, in her juice twice a day. Petitioner's registered dietician, who was a member of the survey team, personally observed Resident No. 1 during at least two meals in which Resident No. 1 did not ingest the Promod. Respondent had no system in place to track whether the physician's order was being implemented. Having no such system in place, Respondent was unable to inform the physician of the ineffectiveness of the treatment modality addressing the pressure sore to enable the physician to implement a more effective alternative. During the initial tour of the facility, Petitioner's dietician noticed that Resident No. 1 had a large bruise on the left side of his forehead. The bruise was approximately the size of a quarter to a half-dollar and was a recent bruise that could have been sustained minutes or hours prior to its discovery by Petitioner's dietician. Resident No. 1 was confused and could not inform Petitioner's dietician how his forehead sustained the bruise. Respondent was unaware of the bruise until Petitioner's dietician brought the bruise to Respondent's attention. Respondent had no documentation or information on the bruise. An unknown injury report was completed after Petitioner's dietician brought the bruise to Respondent's attention. Tag F225 Tag F225 incorporates federal regulation 42 CFR 483.13(c), which provides, in pertinent part, that the facility "must have evidence that all alleged violations are thoroughly investigated, and must prevent further potential abuse while the investigation is in progress; and that the "results of all investigations must be reported to the administrator or his designated representative and to officials in accordance with state law " Respondent should have been aware of the bruise prior to the bruise being brought to Respondent's attention by Petitioner's dietician. The bruise was quite obvious and not hidden. Respondent failed to investigate the bruise, an injury of unknown origin. When Respondent failed to investigate the bruise, a potential risk of continued harm to Resident No. 1 and of harm to other residents existed. After Petitioner's dietician, a member of the Petitioner's survey team, reported the bruise to Respondent, an investigation by Respondent ensued. Afterward, the requirements for the investigation and reporting were complied with and adhered to. Petitioner cited Respondent for committing a violation of Tag F225 and classified the violation as a Class II deficiency. Petitioner also assigned a federal scope and severity rating of "G" to the Tag F225 deficiency. Tag F314 Tag F314 incorporates federal regulation 42 CFR Section 483.25(c), which requires, in pertinent part, a facility to 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 that a "resident having pressure sores receives necessary treatment and services to promote healing, prevent infection and prevent new sores from developing." Resident No. 1's physician ordered the ingestion of Promod. Respondent failed to ensure that Resident No. 1 ingested the Promod in accordance with the physician's order. Further, Respondent had no system in place to track whether the physician's order was being implemented, and, therefore, the physician was unable to determine the type of intervention needed, if any. Petitioner cited Respondent for committing a violation of Tag F314 and classified the violation as a Class II deficiency. Petitioner also assigned a federal scope and severity rating of "G" to the Tag F314 deficiency. Corrective Action Respondent received Petitioner's survey report on April 29, 1999. The survey report contained the date by which Respondent had to correct the deficiencies, which was by April 27, 1999. The time period for Respondent to correct the deficiencies had elapsed before Respondent was notified of the date for correcting the deficiencies. Respondent submitted a plan of action to correct the deficiencies. On April 27, 1999, Petitioner visited Respondent to determine the status of the Class II deficiencies. All of the deficiencies were not corrected, but, as a result of the visit, Petitioner changed Tags F224, F225, and F280 to Class III deficiencies. On July 2, 1999, Petitioner re-surveyed Respondent. Petitioner determined that Respondent had corrected all of the deficiencies. Conditional License Based upon the Class II deficiencies of the April 1999 survey, Petitioner issued Respondent a Conditional license, effective April 21, 1999, through July 2, 1999, from the date of the survey to the date the deficiencies were corrected. Penalty Based upon the Class II deficiencies of Tags F224, F225, F314, and F325, cited as a result of the April 1999 survey, Petitioner imposed a fine of $20,000 upon Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order and therein: Dismiss the charge, as it relates to Resident No. 3 of the April 1999 survey, that Pinehurst Convalescent Center (Beverly Enterprises-Fla, Inc., d/b/a Beverly Gulf Coast- Florida) violated Tag F314, which incorporates federal regulation 42 CFR Section 483.25(c). Find that, as to the October 1998 survey, Pinehurst Convalescent Center (Beverly Enterprises-Fla, Inc., d/b/a Beverly Gulf Coast-Florida) violated Tag F309, which incorporates federal regulation 42 CFR Section 483.25, and Rule 59A-4.1288, Florida Administrative Code; and that the violation is a Class II deficiency. Find that, as to the April 1999 survey, Pinehurst Convalescent Center (Beverly Enterprises-Fla, Inc., d/b/a Beverly Gulf Coast-Florida): Violated Tag F224, which incorporates federal regulation 42 CFR Section 483.13(c)(1)(i), Subsections 400.022(1)(j), (k), and (l), Florida Statutes, and Rule 59A- 4.106(4)(x), Florida Administrative Code. Violated Tag F225, which incorporates federal regulation 42 CFR Section 483.13(c)(1)(ii), and Rule 59A- 4.106(4)(cc), Florida Administrative Code. Violated Tag F314, which incorporates federal regulation 42 CFR Section 483.25(c), Subsections 400.022(1)(j), (k), and (l), Florida Statutes, and Rule 59A-4.1288, Florida Administrative Code. Violated Tag F325, which incorporates federal regulation 42 CFR Section 483.25(i)(1), Subsection 400.022(1)(l), Florida Statutes, and Rule 59A-4.109(2), Florida Administrative Code. Impose a penalty of $2,500 for the violation committed as to the October 1998 survey. Impose a penalty of $5,000 per violation for the four violations committed as to the April 1999 survey, totaling $20,000. Uphold the change in the license rating of Pinehurst Convalescent Center (Beverly Enterprises-Fla, Inc., d/b/a Beverly Gulf Coast-Florida) to a Conditional license, effective April 21, 1999, through July 2, 1999. DONE AND ENTERED this 30th day of June, 2000, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 30th day of June, 2000.
