The Issue The issues are whether Respondent's operation of its nursing home was deficient and, if so, whether Petitioner should have imposed an already-lifted admissions moratorium, pursuant to Section 400.121(5)(a), Florida Statutes; and should impose a conditional license, pursuant to Section 400.23(7)(b), Florida Statutes; administrative fines of $95,000, pursuant to Section 400.19(8), Florida Statutes; a survey fee of $6000, pursuant to Section 400.19(3), Florida Statutes; and costs, pursuant to Section 400.121(10), Florida Statutes.
Findings Of Fact Respondent owns and operates Hallandale Rehabilitation Center (Hallandale), which is a 141-bed nursing home located at 2400 East Hallandale Beach in Hallandale. Licensed as a skilled nursing facility, Hallandale holds license number SNF11920961, effective April 25, 2001, through December 31, 2001. Petitioner's surveyors conducted an inspection of Hallandale on December 3 and 4, 2001. The inspection lasted four to five hours on the first day and twelve and one-half hours on the second day. As a result of the inspection, Petitioner found numerous deficiencies in resident care, as discussed below. At the time of the incident described below, Resident #1 was 84 years old. She had been admitted to Hallandale on September 11, 2001, having suffered a stroke with aphasia, hemiplagia, hypertension, and cardiac arrhythmia. She was totally dependent upon staff for all of her needs, which she was unable to communicate. On October 25, 2001, one of Respondent's staff discovered a large reddened area on the right anterior thigh of Resident #1. The area measured 14 cm by 8 cm and was raised and hard. A licensed practical nurse and registered nurse, both employed by Respondent, examined the wound. The registered nurse spoke to the certified nursing assistants to learn what she could about the wound, but no one was aware of its cause. Without delay, the nurse on duty contacted the advanced registered nurse practitioner, who was employed by the physician who supervised Resident #1's care. After listening to an accurate description of the wound, the advanced registered nurse practitioner opined that the reddened area might be cellulitis, possibly due to a bug bite. At 6:45 a.m., the advanced registered nurse practitioner ordered the application of warm compresses to the wound several times a day. Respondent's staff promptly implemented these orders. Respondent's staff also contacted Resident #1's husband and informed him of the situation. The wound quickly deteriorated. When Respondent's staff informed the advanced registered nurse practitioner later the same day that the reddened area had begun to blister and opened blisters had begun to seep clear fluids, the advanced registered nurse practitioner ordered that staff discontinue the warm compresses and clean the wound with saline solution, apply triple antibiotic ointment, and cover the wound with Telfa. Respondent's staff promptly implemented these orders. Respondent's staff initiated an investigation into the cause of Resident #1's wound and completed adverse incident reports. In retrospect, the most plausible explanation is that a heated metal plate warmer, which is under the food plate on which residents are served their food, may have somehow slipped out of its protective enclosure and burned Resident #1. But this explanation appears to have emerged later, partly due to the fact that the facility had never previously had a resident burned by a plate warmer and partly due to the belated identification of the wound as a burn. The day after the discovery of the wound, the advanced registered nurse practitioner visited the facility and intended to examine Resident #1's wound. However, Resident #1 was out of the facility at a neurologist's appointment, and the advanced registered nurse practitioner did not see her on that day. Four days after the discovery of the wound, the advanced registered nurse practitioner ordered the discontinuation of the triple antibiotic ointment and the application of Silvadene. It is unclear what prompted this change in orders. Six days after the discovery of the wound, the advanced registered nurse practitioner visited the facility and examined the wound, but was unable to conclude the source of the injury. Satisfied with the present treatment, the advanced registered nurse practitioner ordered the continuation of the Silvadene and a follow-up visit in one week. On November 2, which was eight days after the discovery of the wound, Respondent's staff notified the advanced registered nurse practitioner that the wound was not progressing. The advanced registered nurse practitioner ordered a consultation with a wound care physician, with whom an appointment was made for November 6. In the meantime, Respondent's staff continued to implement the orders of the advanced registered nurse practitioner. On November 4, the advanced registered nurse practitioner re-examined the wound and did not change the treatment order. Two days later, the wound care physician, who is a dermatologist, examined the wound and ordered Santal ointment, which is a debriding agent, and an outpatient debridement, but Resident #1's husband declined the surgical procedure on behalf of his wife. Eight days later, on November 14, a plastic surgeon examined Resident #1's wound. Testifying that he did not know who summoned him to the facility, the physician visited the facility and found that Resident #1's wound was actually a third-degree burn, which was now 16 cm by 9 cm and exhibiting areas of necrosis. Continuing the order for Santal, the plastic surgeon ordered a surgical debridement to remove the nonviable tissue that were impeding healing. Based on the plastic surgeon's testimony, the application of warm compresses, although contraindicated for a burn wound, did not exacerbate the injury because all of the damage was done at the moment of the initial incident. Also, the Silvadene, triple antibiotic, and Santal were appropriate treatments. From the moment of the initial incident, Resident #1 would have required surgical treatment regardless of the diagnosis and nonsurgical treatment of the wound. However, the passage of six days before a physician (or presumably an advanced registered nurse practitioner) examined the wound was unreasonable; at most, two days would be reasonable. On November 18, Resident #1 was admitted to the hospital for an unrelated condition. During this admission, on November 23, the plastic surgeon performed the debridement. The wound healed nicely after the procedure. The three allegations concerning Resident #1 involve mistreatment and neglect, the failure to provide services meeting professional standards of quality, and the failure to provide the services necessary for Resident #1 to attain her highest practicable physical, mental, and psychosocial wellbeing. Petitioner has focused on Respondent's acts and omissions after discovering the wound and not on any acts or omissions possibly resulting in the wound. These issues turn on the failure of the physician or at least advanced registered nurse practitioner to examine the wound for six days. Ultimately, it is unimportant that the advanced registered nurse practitioner was at the facility the next day, but was unable to examine the injury due to the absence of the resident. The fact remains that Resident #1 was not examined by a physician or an advanced registered nurse practitioner for six days after the injury was discovered. However, when the advanced registered nurse practitioner examined Resident #1 on October 31, he did find that the condition of the wound demanded a change in treatment or immediate intervention. As noted by the plastic surgeon, the Silvadene then being administered was appropriate. The failure of the advanced registered nurse practitioner to diagnose Resident #1's burn would have been material, if timely diagnosis would have resulted in materially different treatment that could have obviated the need for surgical debridement. However, the plastic surgeon established that, from the moment of the burn, Resident #1 was destined to undergo a surgical debridement of the wound. Significantly, the wound healed shortly after the surgery. The failure of the advanced registered nurse practitioner to diagnose Resident #1's burn would also have been material, if a timely diagnosis would have materially shortened the healing process or materially reduced the amount of pain produced by the wound. However, the evidence describing Resident #1's reaction to the pain of the wound prior to debridement is scant. And no evidence suggests timely diagnosis would have meant that a surgical debridement would have taken place earlier than the one actually performed--about one month after the burn occurred. In general, the evidence fails to show that the delayed diagnosis materially affected Resident #1's physical, mental, or psychosocial wellbeing. The question whether Respondent mistreated or neglected Resident #1 requires an assessment of the reasonableness of its reliance upon the nonemployee health care professionals who cared for Resident #1 prior to the intervention of the plastic surgeon. Respondent timely notified these professionals, as well as Resident #1's husband, of the initial injury, as well as subsequent developments. Petitioner has not shown that any shortcomings in diagnosis and treatment by those professionals had a material bearing on the course or outcome of Resident #1's case. In general, Petitioner has not proved that Respondent's care for Resident #1 after discovery of the injury constitutes mistreatment or neglect, a failure to provide services meeting professional standards of quality, or a failure to provide the services necessary for Resident #1 to attain her highest practicable physical, mental, and psychosocial wellbeing. At the time of the incident described below, Resident #2 was 61 years old. He had been admitted to Hallandale on October 9, 2001, with a right-leg amputation below the knee a day or two prior to the admission to Hallandale, diabetes, cardiovascular disease, and dehydration, but not pressure sores. While at the facility, Resident #2 mostly remained in his room. Resident #2 had recently been living in a homeless shelter. When he used his wheelchair, Resident #2 propelled himself with his arms, not his foot. On October 31, about three weeks after his admission, Respondent's staff found a "stage II" open wound measuring 2 cm by 3 cm on the sole of Respondent's foot. Respondent contends that the wound was a vascular ulcer. This contention is supported by the diabetes, peripheral vascular disease, and recent amputation. On the other hand, Petitioner's surveyor examined the wound during the survey and found a stage II pressure sore the size of a quarter or half-dollar. Several facts support Petitioner's classification of the wound as a pressure sore; these include the fact that it healed later in December, that some of Respondent's records identify the wound as a pressure sore, various risk factors for pressure sores, and Respondent's haphazard maintenance of medical records for this resident-- featuring one admittedly incorrect record of the inception of the wound and treatment records that Respondent claims are missing. A stage II pressure sore is defined by the presence of opened area through the epidermis and possibly the dermis. A stage I pressure sore is defined by a reddened area. A stage III pressure sore is defined by the exposure of subcutaneous tissue, and a stage IV pressure sore is defined by the exposure of the fascia, muscle, or bone. A pressure sore results from pressure to an area over an extended period of time, so that an area loses blood circulation and suffers tissue breakdown. It is impossible to find sufficient factual bases for mistreatment or neglect of Resident #2 strictly in the development of the pressure sore. His various physical problems predisposed him to this condition. His means of movement in the wheelchair was his hands, not his foot, so that the source of pressure on the foot is not obvious. However, Respondent's response to the pressure sore was inadequate. First, Respondent provided Resident #2 no treatment for the pressure sore for the first three weeks after its discovery; under these circumstances, this absence of treatment was mistreatment and neglect and a failure to provide services meeting professional standards of quality. During this period, Respondent likewise failed to make the necessary revisions in any care plan that it maintained for Resident #2. On November 20, Respondent's staff applied duoderm to the pressure sore and continued to provide effective treatment, including hydrogel, that resulted in the speedy resolution of the condition. However, the period during which Resident #2 suffered with an untreated pressure sore on his foot occurred during a crucial period of his life, as he tried to recover from the amputation of part of his right leg. While his pressure sore remained symptomatic and untreated, Resident #2 suffered a decline in his level of participation in physical therapy. For instance, progress notes from the occupational therapist dated October 17 and 24 report "excellent progress"; the latter note reports "max[imum] motivation" and the therapist's expectation that Resident #2 will make "cont[inued] progress." By November 19, Resident #2 was refusing to participate in physical therapy, citing "drainage pain in foot." He refused physical therapy again the next day for the same reason. One week later, the physical therapist discontinued Resident #2's physical therapy due to his noncompliance. Interestingly, Resident #2's urinary continence also changed for the worse during the same period that his painful foot remained untreated. On October 22, Respondent completed a minimum data set for Resident #2 and determined that he was continent. However, the minimum data set that Respondent completed six weeks later revealed that he was now occasionally incontinent. The interdisciplinary care plan confirms declines during this time in behavior and continence. If Resident #2 reacted poorly to the untreated and painful pressure sore in his left foot, it can perhaps be explained by, not only the fact that this was his sole remaining foot, but also by the circumstances surrounding the loss of the right foot. A week prior to his admission to Hallandale, Resident #2 had been admitted to the hospital complaining of a draining ulcer at the base of his right foot, which resulted in the amputation of his right leg below the knee a few days later. Two other allegations involve Resident #2. One involves the discovery of the resident by a surveyor in a urine- soaked condition. The other involves the presence of excessively long toenails on Resident #2, suggestive of a lack of attention to his grooming needs. During the survey, a surveyor found Resident #2 in his bed soaked in urine up to his armpits. She found his sheets and clothing totally soaked in urine and the smell "unbelievabl[y] . . . strong." When the surveyor contacted the Director of Nursing, he told her that staff had last changed Resident #2's incontinence brief 12 hours ago. The evidence concerning the condition of Resident #2's toenails does not establish any deficiency. The surveyor who noted the condition of the toenails had to rely on her report, rather than an independent recollection. The evidence generally does not describe the circumstances surrounding this situation. Although Petitioner did not prove that Respondent unreasonably failed to avoid the development of the pressure sore, Petitioner proved that Respondent's failure to treat the pressure sore promptly was mistreatment and neglect and a failure to provide services meeting professional standards of quality. Similarly, Petitioner proved that Respondent failed to revise Resident #2's comprehensive care plan during this period of nontreatment. Although Petitioner did not prove that Respondent failed to promote care to maintain Resident #2's dignity in terms of any failure to timely trim his toenails, Petitioner proved that Respondent's failure to change Resident #2's briefs for 12 hours, at the end of which time he was totally soaked in urine, constituted a failure to provide those services necessary to maintain personal hygiene to a resident in need of assistance in his activities of daily living. The prompt healing of the pressure sore, once it was treated, is a mitigating factor. However, the effect of the delay in treatment upon Resident #2 is a serious aggravating factor. Having recently undergone the amputation of his lower right leg following a similar sore on his right foot, Resident #2 began the difficult transition period with a worrisome pressure sore on his remaining foot. The period during which Respondent failed to treat this pressure sore corresponds with the period during which Resident #2 suffered declines in urinary continence and therapeutic progress following the leg amputation. Allowing Resident #2 to lie in bed totally soaked in his own urine literally added insult to injury. At the time of the incident described below, Resident #3 was 45 years old. He was quadriplegic and incontinent. Due to decreased bed mobility and bowel incontinence, Resident #3 was at increased risk of developing pressure sores. The surveyor directed that staff remove dressings of wounds, so that she could examine the condition of the wounds. In removing a dressing covering a stage II pressure sore at the sacrum, a nurse either tore the epidermis at the distal end of Resident #3's buttock or a previously reddened area had been masked by the tape used to secure the dressing for the pressure sore at the sacrum. There is little evidence in the record concerning Resident #3. With respect to either of his pressure sores, Petitioner failed to prove any mistreatment or neglect or any failure to provide services meeting professional standards of care. At the time of the incident described below, Resident #4 was 77 years old. She was incontinent and dependent on staff for all of her needs. During the survey, a surveyor discovered a severe excoriation of the perineal area extending to Resident #4's groin and right upper thigh. At the time, Respondent's staff was treating the excoriated area with zinc oxide to provide a barrier between the skin and external moisture. The treatment was appropriate, and Respondent's standing orders duly authorized the use of zinc oxide for this condition without obtaining a physician's order to do so. Petitioner failed to prove any mistreatment or neglect or failure to meet professional standards of quality in Respondent's care of Resident #4. At the time of the incidents described below, Resident #5 was 87 years old and Resident #7 was 57 years old. Both residents had been admitted to Hallandale less than one month prior to the survey. During the survey, the surveyor noticed that each of these residents had stage II pressure sores without dressings. The Director of Nursing, who was pregnant at the time and unable to remove dressings herself, had directed staff to remove the dressings of a number of residents at the same time, shortly before the wound inspection, to facilitate the surveyor's examination of wounds. Staff did so with respect to Resident #5 and Resident #7, and the surveyor wrongly inferred that Respondent did not maintain the necessary dressings for these residents. As to Resident #5 and Resident #7, Petitioner failed to prove any mistreatment or neglect or any failure to meet professional standards of quality. At the time of the incident described below, Resident #6 was 90 years old. During the survey, the surveyor found a dressing on a wound on Resident #6's left lateral ankle. The date written on the dressing was two days prior to the date of the survey, but the physician's order was to change the dressing and treat the wound daily. The treatment record documents that Respondent's staff changed the dressing on the day prior to the survey, even though this date was not noted on the dressing itself. Absent any evidence of harm to the resident, the evidence does not establish that Respondent's staff failed to change the dressing on the prior day. As to Resident #6, Petitioner has failed to prove any mistreatment or neglect or any failure to provide services meeting professional standards of quality. At the time of the incident described below, Resident #8 was 47 years old. He had been admitted to Hallandale with diagnoses of heart failure, HIV, neuropathy, and psychosis. Fortunately, Resident #8 required minimal assistance with his activities of daily living because he was intractably abusive toward staff, yelling insults and throwing furniture and dishes. During the survey, a surveyor noticed that Resident #8's fingernails were long and yellowed. The resident claimed that Respondent's staff ignored his frequent pleas that they trim his nails. According to Respondent's staff, Resident #8 refused to allow anyone to trim his fingernails. It is impossible to credit Resident #8's claims. Petitioner cited excessively long nails for only two of about 75 residents. The other situation was discussed above. The most likely explanation for Resident #8's long fingernails was his disruptive lack of cooperativeness and psychotic behavior. Petitioner failed to prove any failure to promote care to maintain Resident #8's dignity. There is little evidence concerning Resident #9, whom Petitioner alleges suffered from excoriated buttocks and delays in changing wet briefs. In its proposed recommended order, Petitioner did not mention the latter allegation, which consisted of hearsay in this record, but restated the observation of excoriated buttocks. There is also little evidence concerning Resident #10, whom Petitioner alleges suffered from delays in responses to her call bell to be assisted in toileting. In its proposed recommended order, Petitioner did not mention this allegation, which consisted of hearsay in this record. Absent evidence of the circumstances surrounding the excoriation or the other alleged deficiencies omitted from the proposed recommended order, Petitioner has failed to prove any failure to promote care to maintain either resident's dignity. As for Resident #11, Resident #12, and Resident #13, Respondent's staff double-diapered all of them at the time of the survey. Resident #11 and Resident #13 had requested double diapering. As to these residents, Petitioner failed to prove any failure to promote care to maintain their dignity. Resident #12 had not consented to double diapering. However, according to her minimum data set completed about three weeks before the survey, Resident #12 suffers from dementia, has a poor memory, and is completely incontinent of bladder and bowel. Absent additional evidence of Resident #12's response to the double diapering, it is impossible, on this record, to infer sufficient insight on her part as to justify a finding of loss of dignity in this otherwise-benign practice, as evidenced by the fact that some residents request double diapering. Although Respondent had reminded staff not to double diaper residents who had not requested such extra protection, language barriers likely contributed to the unrequested double diapering of Resident #12. As to Resident #12, Petitioner has failed to prove any failure to promote care to maintain her dignity. At the time of the incident described below, Resident #14 was 49 years old. She had been admitted to Hallandale on November 22, 2000, with diagnoses of acute respiratory failure, status--post subarachnoid hemorrhage, status--post cerebral aneurysm, seizure disorder, and percutaneous endoscopic gastrostomy tube and tracheostomy placement. Respondent was aware that Resident #14 repeatedly pulled at both tubes, without which she would expire. Respondent was aware that Resident #14 was agitated and restless. On January 16, 2001, Resident #14 succeeded in pulling out her tracheotomy tube, and, after onsite resuscitation, she was transported by ambulance to the hospital for treatment. Three days later, Resident #14 was readmitted to Hallandale with wrist restraints, pursuant to her physician's order. The order required that Respondent's staff check the restraints every 30 minutes to assure that they would effectively prevent Resident #14 from pulling out her tubes. The order required that Respondent's staff release the wrist restraints every two hours for ten minutes. Five hours after her readmission to Hallandale, Resident #14 was found with her wrists unrestrained, her tracheotomy tube removed, and not breathing. She was in a coma from which she never recovered, and Resident #14 later died. Petitioner cited Respondent for a class II deficiency in connection with this incident. On April 25, 2001, one of Petitioner's surveyors conducted a complaint-investigation survey concerning Respondent's care of Resident #14 and concluded that Respondent had failed to provide Resident #14 with adequate supervision. In its proposed recommended order, Respondent concedes that it was unable to demonstrate that the citation from this incident had been improperly issued. Petitioner has alleged that Respondent never developed a risk management plan or trained its staff in the management and prevention of risk. Although Petitioner alleges in the alternative that Respondent did not implement a presumably developed risk management plan, the amended Administrative Complaint cites only Section 400.147(1)(e), Florida Statutes, which is not the subsection covering implementation, but is the subsection covering the development of a plan and the training of staff in risk management and prevention. Although Respondent lacked a written risk management plan at the time of the survey, it maintained a program that included the reporting of all adverse incidents, investigation of all adverse incidents, development of plans to avoid the repetition of adverse incidents, and training of staff on avoiding adverse incidents. Additionally, Respondent conducted monthly quality assurance meetings and required the weekly assessment of wounds. Undoubtedly, Respondent's care for Resident #14 was gravely deficient, and its care for Resident #2 was seriously deficient. Resident #2 was not the only resident who was the victim of poor recordkeeping, although he seems to have been the only resident who was the victim of materially false recordkeeping. Respondent's care for Resident #1 was marginally adequate. Notwithstanding obvious shortcomings in staff competence, the record in this case does not portray a facility replete with care problems--from which an inference of risk management deficiencies would be easier. Respondent's nontreatment of Resident #14 and mistreatment of Resident #2 seem isolated, Respondent's treatment of Resident #1--although not without its flaws--reflects a dogged persistence to obtain competent care for her wound, and Respondent's handling of the other residents is either adequate or not materially inadequate. Petitioner has failed to prove any failure to develop a risk management program or to train staff in risk management and prevention. Petitioner has sought a $6000 survey fee, based on the existence of a class I deficiency. Ignoring Petitioner's argument that the citation alone of a class I deficiency satisfies the statutory requirement, as discussed in the Conclusions of Law below, it is necessary to consider the status of the matters proved as to Resident #2. As to Resident #2, Petitioner cited Respondent for an isolated class I deficiency with respect to the following: mistreatment or neglect and a failure to provide services meeting professional standards of quality. The remaining citations were for isolated class II deficiencies. However, in its proposed recommended order, Petitioner refers to the mistreatment or neglect as a class II deficiency. Assuming that this is a typographical error, it remains necessary to consider all aspects of Respondent's mishandling of the care of Resident #2 to determine if it constitutes a class I deficiency. As discussed above, Respondent's mistreatment or neglect of Resident #2 and failure to provide him with services meeting professional standards of quality interfered with his ability to rehabilitate following the amputation of part of his right leg. As such, these deficiencies are class II deficiencies. These deficiencies were not so grave as to meet the class I criterion of causing, or likely to cause, serious injury, harm, impairment, or death. Petitioner has failed to prove that Respondent committed a class I deficiency during the December 2001 survey and thus has failed to prove that Respondent is liable for the $6000 statutory survey fee. The amount of the fines is based on the classification of the deficiencies and whether they are isolated or widespread. As already noted, the deficiencies of mistreatment or neglect and failure to provide services meeting professional standards of quality are class II deficiencies, not class I deficiencies as alleged. The failure to revise the comprehensive care plan and the failure to provide services in the form of changing urine-soaked sheets and clothes to maintain personal hygiene are also class II deficiencies, as alleged. The care plan relates closely to the other deficiencies concerning the delayed treatment of the pressure sore, and the failure to alleviate Resident #2's urine-soaked condition compromised his ability to maintain or reach his highest psychosocial wellbeing. As alleged, these deficiencies are isolated because they affect only one resident. In calculating the amount of fines, it is necessary to treat the mistreatment or neglect and failure to provide services meeting professional standards of quality as a single deficiency because they are proved by the same facts. However, the failure to revise the care plan is a separate deficiency, as is obviously the failure to provide services to maintain personal hygiene. The fine for each isolated class II deficiency is $2500 for a total of $7500. However, the citation six months earlier of a class II deficiency in the failure to supervise Resident #14 requires the doubling of the fine to $15,000. On December 11, 2001, Petitioner issued a moratorium on admissions, which Petitioner lifted eight days later. Respondent's mistreatment and neglect of Resident #2 following its recent citation in connection with the death of Resident #14 constitute adequate grounds for Petitioner to have found, at the time of the December 2001 survey, or even a few days later, that the care provided by Hallandale was so inadequate as to present a threat to the health, safety, or welfare of its residents. Based on the facts then known or presently found in this recommended order, an eight-day admissions moratorium was a prudent action. Based on the findings of class I and II deficiencies, Petitioner, by letter dated December 14, 2001, imposed upon Respondent a conditional license, effective December 4, 2001. This license expired on December 31, 2001. Lastly, Petitioner seeks the costs related to the investigation and prosecution of this case, pursuant to Section 400.121(10), Florida Statutes. Absent evidence of such costs, the Administrative Law Judge shall retain jurisdiction of the case solely for the purpose of entering a supplemental recommended order awarding these costs, if the parties cannot agree to such costs within a reasonable time. The Administrative Law Judge will set a hearing for this purpose on the request of either party.
Recommendation It is RECOMMENDED that the Agency for Health Care Administration enter a final order finding Respondent guilty of three separate, isolated class II deficiencies with respect to Resident #2, imposing a fine of $7500 for these violations, doubling the fine to $15,000 due to the existence of a class II deficiency in the preceding complaint investigation, imposing a conditional license, sustaining the already-lifted admissions moratorium, and imposing costs for the investigation and prosecution (if the parties can agree on an amount; if not, remanding the issue of costs to the Administrative Law Judge for the issuance of a supplemental recommended order on the amount of these costs). It is further RECOMMENDED that the Agency for Health Care Administration enter a final order dismissing the remainder of the amended Administrative Complaint. DONE AND ENTERED this 11th day of December, 2002, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of December, 2002. COPIES FURNISHED: Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop No. 3 Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308 Lori C. Desnick Agency for Health Care Administration 2727 Mahan Drive, Suite 3431 Fort Knox Building No. 3 Tallahassee, Florida 32308 Jay Adams Jay Adams, P.A. Broad and Cassel 215 South Monroe Street, Suite 400 Post Office Drawer 11300 Tallahassee, Florida 32302
The Issue The issue for determination is whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what action should be taken.
Findings Of Fact Sunrise operates as a skilled nursing facility at 4800 Nob Hill Road in the city of Sunrise, Florida. Sunrise is licensed by the State of Florida pursuant Chapter 400, Part II, Florida Statutes. Sunrise has 325 beds. At all times material hereto, Sunrise had approximately 275 to 285 residents. AHCA conducted a Standard survey of Sunrise on April 14 through 17, 2003, to determine if Sunrise was "in compliance with Federal participation requirements for nursing homes participating in the Medicare and/or Medicaid programs."2 AHCA determined that Sunrise was not in "substantial compliance" with the federal requirements in that, material hereto, Class III deficiencies had occurred, citing (1) Tag F-332, having a medication error rate of five percent or greater and (2) Tag F- 333, having significant medication errors. Further, the following Florida Administrative Code Rules were cited for the Class III deficiencies: Tag F-332, 59A-4.112(1), 59A-4.107(5), and 59A-4.1288; and Tag F-333, 59A- 4.1288. As to Tag F-332, two medication errors were found. Resident PR received Sorbitol Solution without a physician's order, instead of Lactulose, as ordered by the physician. Resident GW did not receive Reglan prior to eating breakfast as ordered by the physician. On the survey, Resident No. 31 is Resident PR and Resident No. 32 is Resident GW. As to Tag F-333, two medication errors were found. Resident MZ received Potassium Chloride Elixir in undiluted form or without water, contrary to the instructions on the medication. Resident GW did not have her Nitroglycerin Patch removed the prior evening, as ordered by the physician. On the survey, Resident No. 33 is Resident MZ. Moreover, AHCA determined that the medication errors, involving Potassium Chloride and Nitroglycerin, were significant medication errors because Potassium Chloride and Nitroglycerin are medications affecting the cardiovascular system. Significant medication error is defined by the Guidance to Surveyors - Long Term Care Facilities, in pertinent part, as follows: [O]ne which causes the resident discomfort or jeopardizes his or her health and safety. . . .Discomfort may be a subjective or relative term used in different ways depending on the individual situation. The evidence presented was insufficient to show that an individual Resident experienced discomfort due to the medication errors or to show that the medication errors had the potential to cause an individual Resident discomfort. The evidence presented was insufficient to show that the medication errors jeopardized an individual Resident's health and safety. Nevertheless, the medication errors had the potential to jeopardize the health and safety of the Residents. Also, material hereto, Sunrise was not cited by AHCA for failure to follow physicians' orders. The percentage of errors is calculated by dividing the number of medication errors by the total number of medication opportunities. In the survey of Sunrise, AHCA's surveyors used the "Medication Pass Worksheet" (MPW). If one or more errors are found, the MPW provides that another 20 to 25 opportunities should be observed. Four medication errors were observed. Sixty-two medication opportunities were observed, which included the additional opportunities observed by the surveyors. The percentage of medication errors was 6.45 percent. AHCA required Sunrise to correct the deficiencies cited by May 17, 2003. Further, a Plan of Correction (POC) was required to be submitted by Sunrise to correct the deficiencies cited. Sunrise submitted a POC. By certified letter dated, April 25, 2003, AHCA notified Sunrise, among other things, that the survey found that Sunrise was not in substantial compliance; that a POC was required to be submitted by a time certain; that remedies would be recommended if substantial compliance was not achieved by May 17, 2003; that the recommended remedies would include a mandatory denial of payment for new admissions being imposed on July 17, 2003, if substantial compliance was not achieved by that time; and that AHCA may accept the POC as Sunrise's allegation of compliance until substantiated by a revisit or other means. On May 22, 2003, a re-survey was conducted by AHCA. AHCA determined that Sunrise was not in substantial compliance with the federal requirements. Material hereto, AHCA found Class III deficiencies during the survey of May 22, 2003, citing (1) Tag 281, providing or arranging services that fail to meet professional standards of quality, including failing to follow physician's orders and having significant medication errors, and (2) Tag F-332, having a medication error rate of five percent or greater. Further, the following Florida Administrative Code Rules were cited for the Class III deficiencies: Tag F-281 and Tag F-332, 59A-4.112(1), 59A-4.107(5), and 59A-4.1288. As to Tag F-281, pertinent hereto, Resident BC was administered five medications prescribed for Resident HF. The medications were Provera, Prednisone, Claritin, Multivitamin with Mineral, and Flomax. On the survey, Resident No. 2 is Resident BC and Resident No. 1 is Resident HF. Also, as to Tag F-281, pertinent hereto, Resident RP was administered Thera M, a multiple vitamin with minerals, when her prescription was for Theragram, a vitamin only. On the survey, Resident No. 19 is Resident RP. Further, as to Tag F-281, pertinent hereto, Sunrise was cited for failure to follow physicians' orders. As to Tag F-332, the same method for the calculation of percentage errors was used. Six medication errors were observed. Fifty medication opportunities were observed, which included the additional opportunities observed. The percentage of medication errors was 12 percent. AHCA required Sunrise to correct the deficiencies cited by June 22, 2003. The evidence presented was insufficient to show that an individual Resident experienced discomfort due to the medication errors. However, the medication errors had the potential to cause the Residents to experience discomfort. The evidence presented was insufficient to show that the medication errors jeopardized an individual Resident's health and safety. Nevertheless, the medication errors had the potential to jeopardize the health and safety of the Residents. By certified letter dated May 30, 2003, AHCA notified Sunrise, among other things, that, based on the survey conducted on May 22, 2003, Sunrise was not in substantial compliance due to Tag F-281 and Tag F-332 being found; that the investigative survey was still ongoing; and that the recommendation would be made to impose the same remedies recommended in the letter dated April 25, 2003. By letter dated July 23, 2003, AHCA notified Sunrise, among other things, that, as a result of a second follow-up visit completed on July 14, 2003, Sunrise was in substantial compliance as of July 15, 2003. Sunrise was issued a conditional license by AHCA effective May 22, 2003 and expiring September 30, 2003. At the expiration of the conditional license, Sunrise was issued a standard license.
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: Upholding the issuance of a conditional license to Richmond Health Care, Inc., d/b/a Sunrise Health & Rehabilitation Center. Imposing a fine of $1,000 upon Richmond Health Care, Inc., d/b/a Sunrise Health & Rehabilitation Center. DONE AND ENTERED this 17th day of May 2004, in Tallahassee, Leon County, Florida. S 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 17th day of May, 2004.
The Issue The issues to be resolved in this proceeding concern whether the Respondent should be accorded a "Conditional" or "Standard" rating as to its licensure and whether it should be subjected to an administrative fine and, if so, in what amount.
Findings Of Fact The Petitioner is an Agency of the State of Florida which conducts licensure surveys of nursing homes on an annual basis to ensure compliance with the state licensure requirements and federal certification requirements that the Petitioner Agency is statutorily charged with enforcing. A survey results in a report called a "Form 2567," which lists the deficiencies and their factual basis. A federal scope and severity classification, identified by the letters A-L, and a State classification scale or system identified by I-IV are assigned to any deficiency. The Respondent is a licensed, skilled nursing home facility located at 1001 Mar Drive, Fort Walton Beach, Florida 32548. The Respondent at all times pertinent hereto was a long- term Medicare provider and subject to Title 42, Code of Federal Regulation (CFR) Section 483. When a deficiency is determined to exist, changes in a facility licensure rating or status are determined by the level or scope and severity of such deficiencies, as determined under the state classification provided for in the statutory authority cited and discussed below. Fines are also based on the scope and severity and state classification of deficiencies. Between June 25-27, 2001, an annual re-certification survey (survey) was conducted of Westwood by the Petitioner Agency. Pursuant to that survey the Petitioner cited the Respondent for a "Class II " deficiency "FTag 324," as to which it was alleged that the Respondent had failed to provide adequate supervision and assistive devices to prevent resident number two from suffering falls. FTag 324 was cited under the federal scope and severity matrix or scale as a Level "G" deficiency. A level "G" deficiency equates to a Class II state deficiency severity level. The Agency cited Westwood under Section 400.23(8)(b), Florida Statutes (2001), for failure to provide the necessary care and services, thereby compromising Resident two's ability to attain or maintain her highest practicable physical, mental and psychosocial well-being, in accordance with a resident assessment and plan of care. The deficiency was originally cited by the four licensed surveyors on the survey team as being a Class III deficiency, but was later changed to a Class II deficiency (more severe) after the completion of an informal dispute resolution (IDR) process. In that dispute resolution process the Respondent was allowed to participate, but was not allowed to argue the scope and severity of the alleged deficiency and was not accorded the right to counsel. The Agency at hearing presented the testimony of Ms. Jackie Klug, a licensed surveyor who is trained and is registered as dietician. She was a surveyor responsible for the clinical record review, as to Resident two, and for interview of the staff at the Westwood facility, relating to the care provided to Resident two. She performed a limited clinical review of the records of Resident two. Ms. Klug is not a licensed nurse and does not have nursing training. The Agency also presented the testimony of Ms. Susan Acker, who is the Agency representative responsible for supervision of the long-term care, quality monitoring program and who is responsible for determining compliance of facilities receiving Medicare and Medicaid funding. She was qualified as an expert in nursing practice, surveying and survey practices. She was the Agency representative responsible for making the final determination as to the federal scope and severity of any potential deficiency and therefore the appropriate state classification of the deficiency. Ms. Acker performed a limited record review of portions of Resident two's records supplied by facility representatives after an informal dispute resolution hearing. Ms. Acker did not perform an independent clinical review of the resident, but relied upon the records gathered by Ms. Klug. After reviewing the documents provided to her after the IDR hearing, Ms. Acker determined that a federal scope and severity level of "G" existed, which equates to a state Class II deficiency or violation. State surveyors apply a Long-Term Care Facility Enforcement Grid to determine the scope and severity of a potential deficiency. After the scope and severity is determined under the federal scale, a corresponding state classification is assessed. There is not a separate state classification determination apart from the federal scope and severity determination. When a level "G" federal scope and severity is determined, a state classification of Class II deficiency is automatically applied. Under the Long-Term Care Facility Enforcement Grid and the state classification system, the alleged deficient practice must result in more than actual minimal harm and more than minimal discomfort in order to support a Class II designation. Resident two was admitted to the facility on November 10, 2000. She was admitted to the facility with the diagnoses of tardive dyskinesia, Alzheimer's disease and an unsteady gait. Within 11 days of being admitted to the facility, Resident two was assessed, which triggered a resident assessment plan or profile, and was determined to be at risk for falls. Resident two experienced approximately five falls starting on April 30, 2001, through June 23, 2001. Resident two suffered no physical injuries after any of the falls except for the fall on June 23, 2001. She suffered minor injuries in that fall, consisting of a bruised chin and abrasion in the area of her eye and a small skin tear to her right wrist. The injuries were minimal in nature and required only basic first aid normally associated with common minor skin abrasions. Resident two suffered no discomfort as a result of any fall other than the fall of June 23, 2001. Resident two was able to communicate pain or discomfort and had done so to the facility staff on a number of occasions. The records of Resident two contain no indication of any complaints of pain or discomfort resulting from any of the falls, and Resident two denied experiencing discomfort or pain as a result of any of the falls, including the fall of June 23, 2001. The facility documents and the testimony of the Respondent's witnesses established that Resident two exhibited no sign of decreased or limited functioning subsequent to any recorded fall incidents. Resident two continued her daily social, mental and physical activities in the same manner as prior to any fall, after each of the falls she experienced. Resident two experienced no falls from the time of her admission on November 10, 2001, through April 29, 2002. The Respondent was cited by the Petitioner in the Form 2567 for failure to provide adequate supervision and adequate assistive devices to prevent falls. Neither of the Agency witnesses at hearing was able to testify as to the exact level of supervision provided Resident two by the facility staff, nor could either witness testify as to the manner of the supervision of Resident two by the facility. Neither Agency witness provided any concrete evidence or recommendation as to what might constitute adequate supervision sufficient to ensure fall prevention of a resident in Resident two's physical and mental status and condition. Neither the facility personnel nor the Agency personnel testifying were able to determine a cause or pattern for the falls of Resident two. Agency witnesses were unable to determine what, if any, facility action or inaction might have caused the falls. There is some indication in the evidence that Resident two may have experienced fluctuations in blood pressure which under certain circumstances can cause dizziness and, potentially, falling. Additionally, as to one of the falls, there is indication in the evidence that the resident's shoes or type of shoes and the edge or corner of a carpet may have caused her to trip. If it has not already done so, the Respondent should take all possible steps to ensure that areas where Resident two, or any other resident, may walk are free of hazards which might contribute to falling, should closely monitor blood pressure and take appropriate clinical steps to ensure, if possible, the stability of blood pressure to try to prevent falls. Similar steps should be taken as to any other medical or clinical condition which may contribute to falling. Tardive dyskinesia is a condition resulting from the long-term use of psychotropic drugs. Although tardive dyskinesia may contribute to falls, if motor skills are affected, not all people affected by tardive dyskinesia have symptoms affecting their gait or ambulation. Resident two did not exhibit physical dysfunction to gross motor skills, but rather exhibited "tongue thrusting" and "spitting." Ms. Acker, the Agency nursing expert testifying, indicated that tardive dyskinesia could not be determined within reasonable medical certainty to be the cause of any of Resident two's falls. Although Resident two suffered from fluctuating blood pressure, which can contribute to falls if attendant dizzy spells occur, Resident two did not exhibit blood pressure symptoms or complications which actually caused physical dysfunction to her motor skills. Ms. Ackers indicated that blood pressure symptoms could not definitely be determined to be the cause of Resident two's falls. While such a fluctuation in blood pressure could not be determined to be the cause, based upon the evidence offered by Ms. Ackers or otherwise at the hearing, blood pressure fluctuation as a possible cause of the falling cannot be ruled out. Resident two was subject to the facility's general falls policy and a special fall prevention program known as "falling leaves." The facility's fall prevention policies were in conformance with generally accepted nursing home standards and customary policies utilized within the skilled nursing community or industry. The representatives of the Agency did not review the fall prevention policies of the facility when determining the existence of a deficiency and were unaware of the content of the facility policies for fall prevention at the time of the hearing. The fall prevention policies of the Respondent's facility were applied to Resident two. The Respondent supervised Resident two by placing her at a nurses station, within four feet of a charge nurse, so that she could be closely monitored. The Respondent also provided assistive devices in the form of a walker, to assist Resident two in safely ambulating. The walker is intended and designed to prevent falling which might result from the unsteady gait of Resident two. Resident two suffered from Alzheimer's disease. She was thus unable to remember simple instructions or to use assistive devices provided to her by the facility on a consistent basis. This behavior is consistent with certain stages of Alzheimer's disease, where patients or residents are unable to remember even simple instructions for any period of time. The Respondent did provide memory assistive devices, such as tethered alarms and visual aids, on her walker to assist Resident two in remembering to use her walker. She would sometimes impulsively arise and walk on her own, without the protection of using a walker. Physical therapy training to assist Resident two in ambulation was not appropriate. Resident two was unable to assimilate, incorporate and remember such training in her daily activities because of her Alzheimer's condition. Ms. Watson, a trained physical therapist, testified that physical therapy would have been unavailing in regard to Resident two, essentially because she was unable to remember physical therapy instructions or training modalities. In fact, Resident two was physically able to quickly rise from a sitting position and to ambulate without any real notice to staff members. Although staff members were positioned in close proximity to Resident two on a frequent basis, Resident two could still begin to ambulate quickly, without notice in time for the staff to act to protect her in all circumstances. As a result of her Alzheimer's condition, restraints were an inappropriate measure to prevent unexpected ambulation. Prior to using restraints, a treating physician must provide a physician's order for such restraints. The treating physician for Resident two was aware of her falls, but still did not provide an order for restraints.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore recommended that the Agency for Health Care Administration enter a Final Order according a standard license to Westwood and imposing a fine in the amount of $500.00 for a Class III violation. DONE AND ENTERED this 9th day of July, 2003, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 9th day of July, 2003. COPIES FURNISHED: Ursula Eikman, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308 Alex Finch, Esquire Goldsmith, Grout & Lewis, P.A. Post Office Box 2011 Winter Park, Florida 32790 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration Fort Knox Building, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308
