Findings Of Fact Based upon the evidence admitted at hearing and the stipulations entered into by the parties, the Hearing Officer makes the following findings of fact: By the passage of Section 35 of Chapter 88-394, Laws of Florida, the 1988 Florida Legislature made the following changes to Section 381.703(3), Florida Statutes (underlined language reflects additions; language struck through indicates deletions): The legislature intends that the cost of local health councils and the Statewide Health Council be borne by application fees for certificates of need and by assessments on health care facilities subject to facility licensure by the department, including abortion clinics, adult congregate living facilities, adult day care centers, ambulatory surgical centers, birthing centers, clinical laboratories, crisis stabilization units, home health agencies, hospices, hospitals, intermediate care facilities for the mentally retarded, nursing homes, and multiphasic testing centers. A hospital licensed under chapter 395, a nursing home licensed under [chapter] 400, a home health agency licensed under chapter 400 shall be assessed an annual fee of $500. All other facilities listed in paragraph (a) shall each be assessed an annual fee of $150. Facilities operated by the Department of Health and Rehabilitative Services or the Department of Corrections are exempt from the fee required in this subsection. The department shall, by rule, establish a facility billing and collection process for the billing and collection of the health facility fees authorized by this subsection. A health facility which is assessed a fee under this subsection is subject to a fine of $100 per day for each day in which the facility is late in submitting its annual fee up to maximum of the annual fee owed by the facility. A facility which refuses to pay the fee or fine is subject to the forfeiture of its license. (e)(b) There is created in the State Treasury the Local and State Health Trust Fund. Moneys in the fund shall be appropriated only to the department for the purposes of this section. (f)(c) The department shall, on an ongoing basis, deposit 90 percent of all certificate- of-need application fees and 100 percent of health care facilities assessments assessed pursuant to s. 381.703(3) in the Local and State Health Trust Fund. Pursuant to Section 41 of Chapter 88-394, these changes were to "take effect October 1, 1988." Chapter 88-394 was approved by the Governor on July 6, 1988, and filed with the Secretary of State on the same date. Elfie Stamm is an employee of the Department of Health and Rehabilitative Services (HRS, Respondent) who works in its Office of Comprehensive Health Planning under the supervision of J. Robert Griffin, the Assistant Secretary for Regulation and Health Facilities. Stamm was assigned "lead responsibility" for the development of a rule to implement the provisions of Section 35 of Chapter 88-394. Stamm's efforts resulted in the following proposed rule, which was published in the Florida Administrative Weekly on August 26, 1988, after receiving Griffin's approval: 10-5.022 Health Care Facilities Fee Assessments and Fee Collection Procedures Health Care Facilities Subject to Fee Assessment. In accordance with subsection 381.703(3), Florida Statutes, the following health care facilities, licensed by the Department of Health and Rehabilitative Services, shall be subject to an annual fee assessment to be collected by the department: Abortion clinics licensed under Chapter 390, F.S. Adult Congregate Living Facilities licensed under Part II, Chapter 400, F.S. Adult Day Care Centers licensed under Part IV, Chapter 400, F.S. Ambulatory Surgical Centers licensed under Part I, Chapter 395, F.S. Birthing Centers licensed under Chapter 383, F.S. Clinical Laboratories licensed under Part I, Chapter 483, F.S. Crises Stabilization Units licensed under Chapter 394, F.S. Home Health Agencies licensed under Part III, Chapter 400, F.S. Hospices licensed under Part I, Chapter 400, F.S. Hospitals licensed under Part 1, Chapter 395, F.S. Intermediate Care Facilities for the Mentally Retarded licensed under Chapter 393, F. S. Nursing Homes licensed under Part I, Chapter 400, F.S. Multiphasic Testing Centers licensed under part II, Chapter 483, F.S. Facilities operated by the Department of Health and Rehabilitative Services or the Department of Corrections are exempted from the assessment fee. Billing and Collection Process. The department shall collect annually, by October 1, of each year, an assessment in the amount of $500 for all hospitals, home health agencies, and nursing homes licensed pursuant to subsection (1). All other health care facilities, as specified in subsection (1), shall pay an annual assessment fee of $150 by October 1 of each year. The first assessment fee shall be due October 1, 1988. The department shall notify each health care facility, in writing, at least 30 days prior to October 1, of each year, of the amount due to the department. Failure to receive notice from the department shall not relieve the provider of the responsibility to pay the assessment fee within the time frames specified by the department. Delinquent Account. The assessed fee is considered delinquent when the fee is not received by the department within 45 calendar days after October 1 of each year. Notification of Delinquency. The department shall notify the health care facility, in writing by certified mail, within 10 days after the delinquency date, that the fee has become delinquent. Penalties. In accordance with paragraph 381.703(3)(d), the department shall impose a fine of $100 per day, not to exceed the total annual assessment amount, after the assessment becomes delinquent as specified in subsection (3). A health care facility shall be subject to forfeiture of its license for failure to pay the annual assessment fee within the time frames specified by the department. Dishonored Checks. The department shall assess a service charge of $10 for returned checks. In developing the proposed rule, although she did not so indicate in writing in her files, Stamm weighed various alternatives to requiring that the fee be paid in full by October 1. She considered moving back the due date as well as allowing installment payments, but ultimately rejected these options in favor of the billing and collection procedure codified in the proposed rule. In so doing, Stamm considered the impact that the proposed rule would have on small business, as defined in Chapter 288, Florida Statutes. She determined that it would have no adverse impact on such businesses and so indicated in the economic impact statement she prepared in conjunction with the proposed rule. In view of this determination, written notice of the proposed rule was not sent to the Small and Minority Business Advocate, the Minority Business Enterprise Assistance Office, or the Division of Economic Development of the Department of Commerce. A copy of the proposed rule was sent to the Joint Administrative Procedures Committee. Zane Leeper, a Legislative Analyst for the Committee, reviewed the proposed rule. In a letter he sent to Stamm on September 6, 1988, Leeper suggested that certain technical changes be made to the proposed rule. Among the provisions of the proposed rule addressed in Leeper's letter was that which provided that a "health care facility shall be subject to forfeiture of its license for failure to pay the annual assessment fee within the time frames specified by the department." Leeper recommended that this provision be made more definite and specific. During the 21-day period following the publication of the proposed rule in Florida Administrative Weekly, Stamm also received written materials from members of the public, including a suggestion from one Adult Congregate Living Facility (ACLF) proprietor. Petitioners, however, were not among those who submitted comments concerning the proposed rule within this time frame. By letter dated September 23, 1988, HRS apprised affected health care facility administrators of the amendments to Section 381.703(3), Florida Statutes, that had been made by the 1988 Florida Legislature and, in addition, advised them that the annual fee required by the statute, as amended, would be due on October 1 and become delinquent on November 15 of each year. In bold print at the bottom of the letter was the following warning: Failure to submit the fee by November 15, 1988 will result in a fine of $100.00 per day for each day the facility is late in submitting its annual fee up to a maximum fine of the annual fee owed by the facility. A facility which refuses to pay the fee or fine is subject to the forfeiture of its license. The letter made no mention of the proposed rule that had been published in Florida Administrative Weekly the previous month. Notwithstanding that the rule had not yet been finally adopted, HRS, needed to collect the assessments as soon as possible to be able to provide funding to the state and local health councils in a timely manner. Gary Schmitz is now, and has been since 1985, the co- owner/administrator of Golden Years Manor III, an ACLF licensed by HRS with four beds and one full-time employee. He previously owned two other ACLFs with licensed capacities of five and eight beds, respectively. He recently sold the net assets of these two businesses for approximately $50,000 each. Based on these recent transactions and his experience as a licensed real estate salesman specializing in the sale of ACLFs, Schmitz estimates that the net worth of his remaining ACLF is around $50,000. His gross revenues for the past year were less than $50, 000. Schmitz is the President of the Suncoast Adult Care Association, Inc. (SACA), an organization which represents 112 ACLFs licensed in the State of Florida. The bed capacities of these ACLFs range from four to 280. Approximately 85 of these facilities have 10 beds or less. The average 10-bed facility, according to Schmitz, generates $80,000 to $90,000 in gross revenues annually and has three full-time employees. During the time that Schmitz has been in the real estate business, he has never been involved in a sale where an ACLF with a capacity of 10 beds or less has been valued as having a net worth in excess of $300,000. On September 28, 1988, Schmitz received a copy of the September 23, 1988, letter HRS sent health care facility administrators. Other members of the SACA also received a copy of the letter. Many expressed their displeasure to Schmitz about having to pay the statutorily mandated $150 fee. The members of the SACA subsequently directed Schmitz to retain an attorney to challenge the proposed rule that Stamm had drafted to implement the amendments to Section 381.703(3), Florida Statutes. Schmitz hired William R. Hanley of the law firm of Papy, Weissenborn and Papy. On November 10, 1988, Hanley sent the following letter to HRS Secretary Gregory Coler: Please be advised by this correspondence that this office represents Mr. Gary Schmitz, individually and as President of the Suncoast Adult Care Association, Inc., of Pinellas County, Florida. Mr. Schmitz and his association are affected by the adoption of the above referenced rule, and are concerned that it is about to be signed and transmitted to the Secretary of State. It is our concern that this rule is in substantial noncompliance with sec. 120.54[2](a), F.S., requiring that your Department, prior to the adoption of the rule, consider the impact of the proposed action on small business as defined by sec. 288.702, F.S., the Florida Small and Minority Business Assistance Acts [of] 1985. Many of the licensees affected by the above referenced rule have one (1) employee and gross income well within the definition of the act. I enclose herewith a copy of the letter mailed to my client advising them that they are not obligated to pay the $150.00 assessment on or after October 1, 1988. It is clear that your Department cannot make a demand for payment of the assessment when the above referenced rule is not yet established. Please note sec. 381.703(3)(c), F.S., attached hereto. The above referenced rule should not be adopted without consideration of the effect it will have on the small businesses. Your district H.R.S. offices can confirm with you that many licensed A.C.L.F.'s have threatened that they will simply give up their license rather than pay the $150.00 assessment. Your agency has not complied with the requirement that it shall consider reducing the impact of the proposed rule on small business by establishing less stringent compliance schedules as contemplated by sec. 120.54[2](a)1, F.S. and sec. 120.54[2](a)2, F.S. Please accept this correspondence as a demand on behalf of Mr. Schmitz and his association that you withhold execution of this document pending compliance with the Florida Small and Minority Business Association Act of 1985. Stamm did not receive a copy of this letter. In response to Leeper's suggestions and written comments from the public received within the 21-day period following the August 26, 1988, publication of the proposed rule in the Florida Administrative Weekly, Stamm, with the approval of Griffin, made certain changes to the proposed rule. The prefatory language of subsection (1) was amended to read as follows: (1) Health Care Facilities Fee Assessments In accordance with subsection 381.703(3), Florida Statutes, the following health care facilities, licensed by the Department of Health and Rehabilitative Services, shall be assessed an annual fee to be collected by the department within the time frames specified in subsection (2): The remaining portions of subsection (1) were not changed. The only change to subsection (2) was the deletion of the last sentence. No modification was made to subsection (3). Subsections (4), (5) and (6) were modified to read as follows: Notification of Delinquency. The department shall send, by certified mail, delinquency notices, not later than 10 days prior to the delinquency date, indicating when the assessment will become delinquent. Penalties. In accordance with paragraph 381.703(3)(d), the department shall impose a fine of $100 per day, not to exceed the total assessment amount of $150 and $500, after the assessment becomes delinquent as specified in subsection (3). Refusal by a health care facility to pay the annual assessment fee shall result in forfeiture of its license. Refusal of payment is defined as non-payment by the provider of the assessment within 60 days of receipt of the delinquency notice. Dishonored Checks. The department shall assess a service charge of $10 for each returned check. The proposed rule, as amended, was adopted and filed with the Secretary of State on November 17, 1988. It was published in the Florida Administrative Weekly on December 2, 1988, and became effective on December 7, 1988. On or around December 16, 1988, Assistant Secretary Griffin sent a letter to those health care facilities which had not paid their annual fee assessment. In the letter, Griffin stated: Payment of the fee assessment is due January 15, 1989 at 5 p.m. Failure to submit payment will be taken as refusal to pay. Pursuant to Section 381.703(3)(d), F.S., "A facility which refuses to pay the fee is subject to the forfeiture of its license." As of the date of hearing, 87 ACLFs, including Schmitz', had not paid the $150 fee assessment. None of these ACLFs had been fined or had suffered the loss of their license as a result of their failure to pay the assessment.
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
Findings Of Fact The Agency issued a Notice of Intent to Impose Fine stating the intent to impose an administrative fine in the sum of five thousand dollars ($5,000.00) against the Respondent, Diplomat Home Care, Inc. (hereinafter "Respondent"), a home health agency. The Notice of Intent to Impose Fine charged that Respondent failed to timely submit a quarterly report for the quarter ending June 30, 2009, violating Section 400.474(6)(f), Florida Statutes (2008). The cause was properly referred to the Division of Administrative Filed February 12, 2010 12:47 PM Division of Administrative Hearings. Hearings for proceedings according to law, See, Section 120.57(1), Florida Statutes (2009). By Orders dated December 21, 2009, the Division of Administrative Hearings determined that no material issue of fact remained in dispute and relinquished jurisdiction to the Agency for Health Care Administration, copies of which are attached hereto and incorporated herein (Comp. Ex. 2). The facts, as alleged and found, establish that Respondent failed to timely submit a quarterly report for the quarter ending June 30, 2009, violating Section 400.474(6)(f), Florida Statutes (2008). The fine imposed is five thousand dollars ($5,000.00).
Conclusions Having reviewed the Notice of Intent to Impose Fine dated September 17, 2009, attached hereto and incorporated herein (Ex. 1), and all other matters of record, the Agency for Health Care Administration (hereinafter "Agency") finds and concludes as follows:
The Issue DOAH Case No. 02-4795: Whether the licensure status of The Moorings, Inc., d/b/a The Chateau at Moorings Park ("The Chateau") should be reduced from standard to conditional for the period from July 18, 2002, to August 21, 2002. DOAH Case No. 02-4796: Whether The Moorings committed the violations alleged in the Administrative Complaint dated November 12, 2002, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made: AHCA is the state Agency responsible for licensure and regulation of nursing homes operating in the State of Florida. Chapter 400, Part II, Florida Statutes; Chapter 59A-4, Florida Administrative Code. The Moorings, Inc. is a Florida corporation with its principal address at 120 Moorings Park Drive, Naples, Florida. It is a not-for-profit organization governed by a local board of directors. Moorings Park is a continuing care retirement community. The Chateau is the long-term care facility at Moorings Park. It is a 106-bed skilled nursing facility located at 130 Moorings Park Drive, Naples, Florida. The standard form used by AHCA to document survey findings, titled "Statement of Deficiencies and Plan of Correction," is commonly referred to as a "2567" form. The individual deficiencies are noted on the form by way of identifying numbers commonly called "Tags." A Tag identifies the applicable regulatory standard that the surveyors believe has been violated and provides a summary of the violation, specific factual allegations that the surveyors believe support the violation, and two ratings which indicate the severity of the deficiency. One of the ratings identified in a Tag is a "scope and severity" rating, which is a letter rating from A to L with A representing the least severe deficiency and L representing the most severe. The second rating is a "class" rating, which is a numerical rating of I, II, or III, with I representing the most severe deficiency and IV representing the least severe deficiency. On July 15 through 18, 2002, AHCA conducted an annual licensure and certification survey of The Chateau to evaluate the facility's compliance with state and federal regulations governing the operation of nursing homes. The survey team alleged several deficiencies during the survey, only one of which is at issue in these proceedings. At issue is the deficiency identified as Tag F324 (violation of 42 C.F.R. Section 483.25(h)(2), relating to ensuring that each resident receives adequate supervision and assistive devices to prevent accidents). The deficiency alleged in the survey was classified as Class II under the Florida classification system for nursing homes. A Class II deficiency is "a deficiency that the agency determines has compromised the resident's ability to maintain or reach his or her highest practicable physical, mental, and psychosocial well-being, as defined by an accurate and comprehensive resident assessment, plan of care, and provision of services." Section 400.23(8)(b), Florida Statutes. The deficiency alleged in the survey was cited as a federal scope and severity rating of G, meaning that the deficiency was isolated, caused actual harm that is not immediate jeopardy, and did not involve substandard quality of care. Based on the alleged Class II deficiency in Tag F324, AHCA imposed a conditional license on The Chateau, effective July 18, 2002. The Chateau submitted a plan of correction, and AHCA performed a follow-up survey indicating that the facility had addressed AHCA's concerns. The Chateau's standard license was restored, effective August 21, 2002. The Chateau's submission of a plan of correction did not constitute an admission of the alleged deficiency. The survey allegedly found a violation of 42 C.F.R. Section 483.25(h)(2): 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. * * * Accidents. The facility must ensure that-- The resident environment remains as free of accident hazards as is possible; and Each resident receives adequate supervision and assistance devices to prevent accidents. (Emphasis added.) In the parlance of the federal Health Care Financing Administration Form 2567 employed by AHCA to report its findings, this requirement is referenced as "Tag F324." The Agency's allegations in this case involved accidental falls suffered by two residents at The Chateau. The Form 2567 listed two incidents under Tag F324, one involving Resident 7 and another involving Resident 12. The surveyor observations read as follows (unless otherwise noted, abbreviations and non-standard spellings are reproduced as they appear in the Form 2567): Based upon record review, observation, and interview the facility failed to ensure that 2 of 16 active sampled residents (#12 and #7) at risk for falls received adequate supervision and assistance to prevent the residents from falling and injuring themselves. This is evidenced by: 1. Resident #12 had a Cerebral Vascular Accident with Left Hemiparesis. The resident required supervision and assistance for Activities of Daily Living (ADL's) and was assessed to be at risk for falls. The resident was left unattended on the toilet on 7/9/02, fell off the toilet and sustained a fractured left rib. 2. Resident #7 was at risk for falls due to a Cerebral Vascular Accident and was further at risk for falling due to Parkinson Disease [sic]. The resident was left unattended in the bathroom on 5/31/02 and sustained a fractured left hip after tripping over his Foley catheter tubing and falling to the floor. Findings include: The medical record for Resident #7 was reviewed on 7/16-18/02. This resident was admitted to the facility on 3/25/02 with diagnoses including: diabetes mellitus, arthritis, cerebrovascular accident (stroke), and Parkinson's disease. A review of nursing notes dated 5/31/02 revealed the resident had fallen in his bathroom. The note stated the following: "0745 called to Rm CNA reported resident on the floor. Res was brushing his/her teeth @ sink in standing position-- fell backward. Full ROM. No obvious deformity noted. C/O L hip pain. Denies head or back pain. Had prev. fx R hip. Lifted to feet C/O L hip pain. Refused to go to hospital @ this time. Dr. notified of incident new orders received for [x-rays] notified nurse." "1400 Result from x-ray came back @ a Novitis placed L femoral intero chanteric fx. Dr. notified order to send Pt to the ER. Daughter notify agree to keep the Pt room while in the hospital call 911 have Pt sent to ER." The Hospital Consultation Document dated 5/31/02 was reviewed. It revealed: The chief complaint: "I slipped and fell." "History of Present Illness: Resident with multiple medical problems, followed by Dr., who today at the nursing home apparently fell and tripped over his Foley catheter while trying to go to lunch, and had a resultant trauma to his left hip and left shoulder, with resultant hip fracture." The Hospital Admission record dated 5/31/02 showed the diagnosis: "Left intratrochanteric hip fracture. The patient was admitted for opened reduction internal fixation of the left hip." According to facility records, the resident was readmitted on 6/05/02. Following the record review, an interview was conducted with the resident on 7/16/02 at approximately 1:30 PM. The resident stated he had fallen on 5/31/02. He stated he started to move away from the bathroom sink and tripped over the Foley catheter (indwelling urinary catheter) tubing that was on the floor. The staff member left him unattended, according to the resident, while the staff retrieved the resident's glasses on the bedside table. An interview was conducted with the facility's Risk Manager on 7/17/02 at approximately 3:30 PM who stated that no one had interviewed the resident following the accident. Review of the clinical record revealed a Minimum Data Set (MDS), completed on 4/22/02. This MDS showed the following: The resident was assessed as a 2 (2= Moderately Impaired-- decisions poor: cues/supervision required) for Cognitive skills for daily decision-making. Under section P, Special Treatment and procedures Alzheimer's/dementia special care unit was indicated. Interview with the facility Social Worker on 7/18/02 at approximately 9:30 AM revealed the resident's cognitive status had improved so that his capacity was being reviewed for increased cognitive functioning. Additionally, the resident was assessed for ability to walk in the room (How resident walks between locations in his/her room) as needing extensive assistance by one person. (coded 3/2. 3= Extensive Assistance 2= One person physical assist). Under section J, Health Conditions, "Unsteady gait" was indicated for the resident as well as accidents, "Fell in the past 30 days". The RAP summary for Falls had the following documentation: "Ambulating with extensive assist of two in PT room. Compromised safety awareness associated with cognitive impairment." The resident triggered for Falls and a plan of care dated 4/11/02 revealed the following goal: "Resident will not be injured in a fall. Staff are to assist in ambulation and transfer. Anticipate needs as much as possible and place items close at hand." The resident was assessed as at risk for falls, facility staff responsible for the care and supervision of the resident failed to implement the plan of care by not providing adequate supervision as needed. Resident #12 was admitted to the facility on 6/25/02 from the hospital. The admitting diagnosis included, but was not limited to: Cerebral Vascular Accident (CVA) with Left (L) Hemiparesis; Status Post fracture T-12 (Thoracic); Seizure Disorder; Systemic Lupus; severe Interstitial Lung Disease; Pulmonary Hypertension and Congestive Heart Failure (CHF). The facility initially care planned the resident for falls with a goal that the resident would not be injured in a fall. The approaches included: providing assistance in ambulation and transfer; reminding the resident to use call light for assistance; providing the resident with routine toileting per request of resident to decrease risk and personal protection device to bed and wheelchair. On 6/25/02 the resident had a physical therapy assessment completed in the facility. The facility physical therapist notes state, "Client is now presenting self with severe weakness of left extremities, decreased balance and poor endurance. Causing client to be functioning at a very limited activity level. Client also has complete foot drop on L side with mediolateral instability. Sensation/Proprioception: Noted loss of proprioception in left extremities, which along with present weakness cause client to have no functional use of left extremities at this time. Orientation forgetful at times. Transfers Sit to stand with extensive assist times 2 and verbal cues for posture. Client unable to maintain sitting balance on her own. Sitting posture is round shouldered, head forward position leaning to left side. Client unable to get any support from left lower extremity when standing. Client is at high risk for falls. Client has multifactorial balance problems due to weakness, decreased balance, decreased endurance, decreased vision, decreased proprioception. This was discussed with client and nursing." On 6/28/02 the facility completed a 5 day Medicare Minimum Data Set (MDS) for the resident which showed the following assessment: In Section G Physical Functioning and Structural Problems the resident was assessed in G1b as 3/3 (3= Extensive Assistance/ 3= Two+ person physical assist). In G1c and G1d-- Walk in Room and Walk in Corridor the resident was assessed 8/8 (Activity did not occur during entire 7 days). In G1i-- Toilet use was assessed as 4/2 (4= Total Dependence-- Full staff performance of activity during entire 7 days). In G3a Balance while Standing and G3b Balance while sitting-- position, trunk control the resident was assessed as 3/0 (3= Not able to attempt test without physical help and 0= Maintained position as required in test). In G6 Modes of transfer the resident was assessed in b as using bed rails for bed mobility or transfer, in c as requiring to be lifted manually, and in e as needing transfer aid (e.g. slide board, trapeze, cane, walker, brace). In Section J Health Conditions and in J4 Accidents the resident was assessed as having fell in past 31 to 180 days. In Section P Special Treatments and Procedures the resident was noted to be receiving Speech, Occupational and Physical therapy. Review of the nursing note for 6/29/02 revealed: "1100 hours max assist with all ADLs-- and transfers, alert-- noted to have slid to the floor in the bathroom with CNA in attendance-- lost grip on bar next to toilet, stated banged back of head left side." Further review of the nursing notes revealed: "Daughter notified that mother was with a CNA at the time and that the CNA was assisting her mother with pulling up her pants." Review of the physical therapy notes dated 7/2/02 revealed: "Left knee will tend to buckle easily if client not concentrating on what she is doing. Client does show severe loss of proprioception and severe neglect of left upper extremity, client encouraged to work on HEP on her own. Client remain at high risk for falls (had one fall this past week) will continue to use bed and wheelchair alarms for safety. Also noted much instability of pelvis when standing." Further review of nursing notes from 7/1/02 to 7/8/02 indicated the facility was providing 2 person assist with transfer and toileting. Review of the nursing note on 7/8/02 revealed: "assist of 2-- resident requested only one person transfer her-- educated on risks of this and reinforced that we will continue to use 2 people to transfer." Review of the nursing notes on 7/9/02 revealed: "1900-2400 Total assist with all ADL's. Two person transfer. CNA brought resident to bathroom and gave resident call light to pull when finished. Resident leaned to Left side and fell off toilet at 2130. Resident reports hitting top of head on cabinet/floor. No edema or hematoma noted to scalp.... Resident reports pain to Left rib cage. Resident does not want to go to ER (Emergency Room) and agreed to have X- rays of ribs at AM at facility. Between 2400 and 0700.... Still with c/o (complaints of) left rib pain. Interview with Risk Manager and Administrator on 6/18/02 at 10:30 AM revealed that the CNA left the resident alone in the bathroom on 7/9/02. On 7/9/02 the resident was X-rayed in the facility. Nursing note of 7/10/02 states "rib X-ray back. + (positive) for fx (fracture) Left anterior lat (lateral) approximately 10th rib." On 7/10/02 the facility received the following written interpretation from the Radiologist: "There is a definite acute fracture of left lower anterolateral rib, which appears to be the tenth rib." Impression: "Fracture of left anterolateral lower rib, probably the tenth rib. Cannot absolutely exclude fracture of left posterior fourth rib, although this is considered less likely." At the hearing, AHCA conceded that falls can happen, and that a facility is not required to be an absolute guarantor against falls. When a first fall for a resident occurs, AHCA generally deems it an accident and does not cite it as a violation. It is only a second fall for the same resident that is usually deemed an "incident" that may warrant a citation. AHCA employs a "Resident Assessment Protocol" or "RAP" for falls that provides a systematic approach to the evaluation of a fall and assists facility staff in identifying risk factors for falls and potential preventive interventions. The RAP's guidelines for resident care planning state that a major risk factor is the resident's history of falls. The guidelines note that "internal risk factors" involving the resident's underlying health problems should be addressed to prevent falls. The guidelines also list "external risk factors," including medications, appliances and devices, and environmental or situational hazards. The guidelines note that external risk factors can often be modified to reduce the resident's risk of falls. As to the external risk factor of "medications," the guidelines state: Certain drugs can produce falls by causing related problems (hypotension, muscle rigidity, impaired balance, other extrapyramidal side effects [e.g., tremors], and decreased alertness). These drugs include: antipsychotics, antianxiety/hypnotics, antidepressants, cardiovascular medications, and diuretics. Were these medications administered prior to or after the fall? If prior to the fall, how close to it were they first administered? Resident 7 was an 89-year-old male who had been admitted to The Chateau in March 2002. At the time of admission, Resident 7 suffered from several conditions: metabolic myopathy, early stage Parkinson's disease, adult-onset diabetes, hypertension, and failure to thrive. Upon admission, he could not walk or feed himself. As of April 22, 2002, Resident 7's balance was unsteady, but he was able to rebalance himself without the use of an assistive device. Resident 7's treatment plan for functional goals, dated March 12, 2002, noted that he was a "high fall risk." A preliminary fall assessment, also dated March 12, 2002, showed a score of 21, on a scale where a score of 10 or above indicated a risk of falling. Among the factors noted in this assessment was "loss of balance while standing." An assessment of Resident 7's activities of daily living ("ADL") functions, dated March 25, 2002, showed that he required "total care" for eating, "extensive assistance" for dressing and grooming, and assistance in transfers. A RAP summary, dated March 29, 2002, stated that the family reported that Resident 7 had fallen at home within the last 30 days. The RAP stated that Resident 7 required extensive assistance from two people to ambulate in the physical therapy room. In addition to his physical limitations, Resident 7 displayed some mental confusion at the time of his admission to The Chateau. On March 19, 2002, Nancy Lockner, a social worker at The Chateau, administered a mental status examination on which Resident 7 scored 20 out of a possible 30 points. Ms. Lockner testified that a score below 25 on this "mini- mental" exam triggers a finding of incompetency as regards medical decisions. The resident's physician signs a statement of incompetency empowering a designated health care surrogate to make medical decisions for the resident. This procedure was followed with Resident 7. The RAP of March 29, 2002, noted that Resident 7 exhibited "[c]ompromised safety awareness associated with cognitive impairment." Resident 7's care plan, dated April 11, 2002, confirmed that he was at risk for falls, stated a goal that he would not be injured in a fall, and set forth the following among the means to be used to prevent falls: "Anticipate needs as much as possible and place items close at hand. Ask [Resident 7] if he needs anything before leaving room." By May 31, 2002, the date of his fall, Resident 7's overall condition had improved dramatically. His metabolic myopathy had cleared and the failure to thrive had been reversed. By the time of the fall, Resident 7's mental confusion had cleared considerably. He was able to understand what was said to him, and was able to make his wishes known to the staff. The staff persons who worked with Resident 7 believed they could depend on him to follow instructions. On June 6, 2002, a few days after his fall, Resident 7 scored 26 out of 30 points on a second "mini-mental" exam, indicating competency. Resident 7 had initially been placed in the facility's secure unit for his safety, but by late May had improved such that The Chateau's staff was trying to convince him to move off the unit. Resident 7 was functioning at a higher level than the other residents on the secure unit, but wished to stay there because he had become attached to the staff people on the unit. By May 31, 2002, Resident 7 was able to balance himself and to ambulate up to 300 feet without direct physical assistance. His minimum data set ("MDS") of April 22, 2002, coded him as requiring "extensive assistance" for both transfers and walking, with physical assistance from one person. "Extensive assistance" means that the resident is able to perform part of a given activity, but also needs weight-bearing support and/or full staff performance of the activity on occasion. In practice, staff provided Resident 7 with close supervision but no hands-on assistance when he walked. Resident 7 used a walker, which is a recognized safety device. He was counseled as to the danger of walking without supervision by a staff person. Prior to May 31, 2002, Resident 7 had not fallen during his stay at The Chateau. Mondy Sataille was an experienced CNA who worked regularly with Resident 7. Regina Dreisbach, the executive director of Moorings Park, described Ms. Sataille as one of the reasons why Resident 7 insisted on staying in the secure unit. At times, Ms. Sataille allowed Resident 7 to stand with his walker in the room while she gathered his clothes or other items for him, without incident. On the morning of May 31, 2002, Resident 7 called Ms. Sataille into his room. He told her that he wanted to get dressed and go to the bathroom before going out for breakfast. Ms. Sataille asked Resident 7 if he wanted to use his wheelchair, because he was sometimes weak in the morning. Resident 7 declined the wheelchair. Ms. Sataille brought him his walker, then watched him get dressed. After dressing, Resident 7 went to the bathroom while Ms. Sataille waited at the door. After brushing his teeth, he started to walk out of the bathroom and asked Ms. Sataille where his glasses were. Ms. Sataille told him they were lying at the end of his bed, between six and seven feet away from where they were standing. Resident 7 asked Ms. Sataille to get the glasses for him. Ms. Sataille hesitated, because getting the glasses would require her to leave his side. She suggested they wait until they both reached the bed, when he could pick up the glasses for himself. Resident 7 insisted that Ms. Sataille get the glasses. Ms. Sataille agreed to get the glasses. She told Resident 7 that he would have to stand still while she did so, that he should not attempt to walk until she returned to his side. As she took her second step toward the bed and reached for the glasses, Ms. Sataille heard a noise. She turned back and saw Resident 7 on the floor. Resident 7 told Ms. Sataille that he tripped over the tubing from his Foley catheter. The tubing ran from inside his pants to a collection bag, which was attached to his walker. Ms. Sataille reported the resident's statement, though she did not believe that he could have tripped over the tubing, given its short length and the fact that it remained attached to the standing walker even after Resident 7 fell. The evidence is insufficient to find that the tubing from the Foley catheter caused Resident 7's fall. It is at least as plausible that he fell while attempting to walk alone, or that he simply lost his balance. On the date of his fall, Resident 7 was sent to the emergency room of a NCH Healthcare System hospital in Naples, where he was diagnosed with a left intratrochanteric hip fracture. An orthopedic surgeon performed an open reduction internal fixation of the left hip with a DHS compression screw. At the hearing, Ms. Sataille testified that she was "not exactly" aware that Resident 7 was at risk for falls. She knew that he was at risk when he was admitted to the facility, but said she was later told by the physical therapist that "he's okay to use his walker," which led her to believe she did not need to supervise him so closely as she did prior to therapy. Her belief was reinforced by the fact that she had left him standing alone holding onto his walker on prior occasions to no ill effect. However, Ms. Sataille's statements are undercut by her initial hesitation to leave the side of Resident 7 when he asked her to retrieve his glasses and her admonition that he stand still while she was away from his side. These actions make it apparent Ms. Sataille knew that leaving Resident 7 unattended for even a few seconds was risky, despite her testimony that she had done so on prior occasions. Based upon all the facts presented, it is found that Resident 7's fall could have been avoided had facility staff simply provided the close supervision that The Chateau's own medical records indicated was required when the resident used his walker. Though this was Resident 7's first fall in the facility, the staff was aware that he had fallen at home and was at high risk for further falls. The fact that Ms. Sataille had left Resident 7 standing alone on previous occasions without his falling did not change the requirement of close supervision when he ambulated. Diane Gail Ross, The Chateau's director of nursing services and expert in long-term care nursing, opined that Resident 7 was being "supervised," even when Ms. Sataille was not in direct proximity to him. Ms. Ross' opinion begs the question of whether such supervision was adequate to the needs of Resident 7 as established in the medical record. The Chateau failed to provide adequate supervision to Resident 7, and this failure directly led to his fall and consequential injuries. Resident 12 was an 87-year-old female who had been admitted to The Chateau on June 25, 2002. Prior to admission, Resident 12 had suffered a stroke. Her underlying conditions included systemic lupus, seizure disorders, interstitial lung disease, and hypertension. Due to the stroke, her left side was extremely weak to the point of flaccidity, though her right arm had good strength and a full range of motion. Resident 12 was unable to walk and used a wheelchair to ambulate. Resident 12 had no cognitive impairment. She was administered a "mini-mental" exam on June 28, 2002, and scored 27 out of a possible 30 points, indicating that she was able to make her wishes known and was competent to make her own medical decisions. Resident 12's therapy treatment progress notes for June 25, 2002, indicated that she had "complete footdrop" on the left side with medial lateral instability. "Footdrop" refers to the inability to dorsiflex, or evert, the foot caused by damage to the common peroneal nerve. The notes also recorded a loss of proprioception in Resident 12's left extremities. In layman's terms, "proprioception" is the ability to sense one's whereabouts that allows the body to orient itself in space without visual clues. Resident 12 was noted as alert and oriented, but forgetful at times. The June 25, 2002, progress notes also recorded that Resident 12 required extensive assistance from two people to transfer from her bed to her wheelchair, and required verbal cues for posture. She was unable to maintain sitting balance on her own. Her sitting posture was round-shouldered, with her head in a forward position and leaning to the left. Her standing posture was round-shouldered, head forward, and bent heavily forward from the waist. Her left leg provided no support when she stood. Finally, the June 25, 2002, progress notes stated that Resident 12 was at high risk for falls, and that she would need bed and wheelchair alarms for safety. She had balance problems attributed to weakness, poor endurance, decreased vision, and decreased proprioception. Resident 12's MDS dated June 29, 2002, indicated a code of "3/3" for transfers, meaning that she required "extensive assistance" and support from at least two persons to transfer between surfaces. As to toilet use, Resident 12 was coded at "4/2", meaning "total dependence" (full staff performance) with support from one person. Contemporaneous nurses' notes indicate that, on some occasions, Resident 12 required two persons to assist her with toilet use. On the morning of June 29, 2002, Resident 12 slid to the bathroom floor while a CNA was assisting her in pulling up her pants. Resident 12 was standing when the incident occurred. The next set of weekly therapy treatment progress notes for Resident 12, dated July 2, 2002, noted the fall on June 29, 2002, and stated that she remained at high risk for falls. The progress notes indicated that Resident 12's sitting balance now showed a tendency for her to lose her balance backwards and to the left side. Similarly, her standing balance showed a tendency to lean backwards and to the left. During the first week of July 2002, the facility's ADL flowsheets showed that Resident 12 was able to use the toilet with the assistance of one person during the day, but required the assistance of two persons at night. However, the nurses' notes for the same period show that on at least some occasions Resident 12 required two persons to assist her in toilet use during the day. The next set of weekly therapy treatment progress notes for Resident 12, dated July 9, 2002, again showed that her tendency was to lose her balance backwards, both when sitting and standing. She was still at risk for falls and still needed bed and wheelchair alarms for safety. A second MDS for Resident 12 was completed on July 8, 2002. Resident 12's status for transfers was unchanged since the June 29 MDS. However, her status for toilet use was upgraded from "4/2" ("total dependence"/one person physical assist) to "3/2" ("extensive assistance"/one person physical assist). A RAP for Resident 12, dated July 8, 2002, noted that she had "[c]ompromised safety awareness. Resident feels she is capable of independence in tasks and lacks insight into limitations at times." As of July 9, 2002, Resident 12's only fall in The Chateau was her slide to the floor when having her pants pulled up in the bathroom. The facility had noted that she tended to fall backward when losing her balance, and in fact she had never fallen forward. She was able to sit in her wheelchair without falling. At approximately 9:30 p.m. on July 9, 2002, Resident 12 fell forward off the toilet. She hit the top of her head, either on the cabinet or the floor, and experienced pain in her left rib cage. Subsequent examination revealed that she suffered an acute fracture of a left anterolateral rib. The Chateau had a care plan in place for Resident 12's toileting, and devices in place to maintain her safety. The Chateau had outfitted Resident 12's toilet with a three-sided commode seat that had armrests on both sides and a bar in back. It was designed to support the resident as she sat on the toilet. The Chateau's records for Resident 12 indicated that she was able to maintain a sitting position for up to 30 minutes as of July 9, 2002. Thus, there was every reason to believe the commode seat would be adequate to support Resident 12 for the short time she sat on the commode. There was also a bar on the shower door within reach of the toilet, and a grab bar behind the commode. Resident 12 had adequate strength on her right side to pull herself with that arm. A call bell was within her reach as she sat on the commode. At the time of the fall, Resident 12 was being supervised by Oriaene Celestin, an experienced CNA who knew Resident 12 well. Ms. Celestin and another CNA had helped Resident 12 onto the toilet. Ms. Celestin then positioned herself outside the open door of the bathroom, discreetly monitoring the resident. When Resident 12 fell, Ms. Celestin immediately went into the bathroom and called for assistance. Ms. Celestin testified that she did not go into the bathroom while Resident 12 used the toilet because Resident 12 had expressly told her that she wished to be alone in the bathroom. Ms. Celestin described Resident 12 as a very demanding person who did not hesitate to tell staff what she wanted. Regina Driesbach, executive director of Moorings Park, Diane Lanctot, an RN who worked with Resident 12, and Brian Kiedrowski, M.D., Resident 12's physician, all testified that Resident 12 was an outspoken, independent, strong-willed woman who insisted on making her own decisions even as her health declined. Ms. Lanctot confirmed that Resident 12 had asked to be alone in the bathroom. At the hearing, AHCA objected to the hearsay testimony as to Resident 12's expression of her desire to be alone in the bathroom. The Chateau contended that these statements should be admitted because they were not offered to prove the truth of the matter asserted, but to indicate the effect of Resident 12's utterances on Ms. Celestin in particular and of the staff of The Chateau in general. The undersigned overruled the objection and allowed the testimony as to Resident 12's stated desire to be alone in the bathroom, for the limited purpose stated by The Chateau. However, even if the out-of-court statements of Resident 12 were excluded from the record, the requirement that a facility respect the resident's dignity gives rise to a common-sense presumption that the resident should be left alone when using the toilet, unless safety concerns mandate the direct presence of facility staff. The relevant question is not whether Resident 12 asked to be left alone in the bathroom, but whether her safety in the bathroom could not be reasonably assured without Ms. Celestin's physical presence inside the bathroom. Christine Byrne, AHCA's expert in nursing in long-term care facilities, suggested several steps that The Chateau could have taken to make Resident 12 safer when using the bathroom. One of those proposed steps, having "someone standing outside of the bathroom door, which would facilitate resident privacy although asking the resident to crack the door a little bit," merely described what The Chateau in fact did. Ms. Byrne's other suggestions included soliciting safety ideas from the resident, putting a safety belt on the toilet, placing a wheelchair in front of the toilet, consulting with the physical therapist as to positioning the resident on the commode, assessing the physical environment in the bathroom, and re-evaluating the resident's medications in conjunction with the facility's pharmacist. Dr. Kiedrowski, an expert in geriatric medicine, testified that restraining Resident 12 on the toilet would be problematic because she was short and heavyset, and a safety belt could cause the entire commode to flip over if she fell forward. Aside from that practical problem, Dr. Kiedrowski testified that the entire issue of restraints is very sensitive in the long-term care setting, and that anything blocking a resident's movements should be employed only as a last resort. He did not believe that a safety belt on the commode or a wheelchair in front of it would be an acceptable restraint. Ms. Driesbach testified that she did not believe a safety belt could be attached to the three-sided seat on Resident 12's commode. Maher Moussa, director of rehabilitation services at Moorings Park and an expert in physical therapy, testified that the toilet seat was adequate and appropriate. As to medications, AHCA suggested at the hearing that Resident 12's fall might have been caused by her reaction to Ambien (zolpidem tartrate), a hypnotic agent prescribed to induce sleep, and phenobarbital, a barbiturate prescribed for seizure disorders that has a common side effect of drowsiness. On the evening of July 9, 2002, Resident 12 took a 5 mg tablet of Ambien at 8:30 p.m., and a 30 mg tablet of phenobarbital at 9:00 p.m. ACHA suggests that the facility failed to account for the possible effects of these medications, in derogation of the RAP guidelines set forth at Finding of Fact 16 above. While AHCA's suggestion is plausible, no firm evidence was offered to support it. Diane Lanctot was the RN who responded to Ms. Celestin's call for help after Resident 12 fell. She took Resident 12's vital signs and tested her range of motion. Ms. Lanctot testified that Resident 12 seemed alert, and was not confused or disoriented. Based on all the evidence, it is found that The Chateau took reasonable steps to ensure Resident 12's safety and dignity in light of the reasonably foreseeable risk of falls. Resident 12 had been sitting in a wheelchair since her admission and had never fallen forward. Her only previous fall was from a standing position. The only indication in the entire medical record of any tendency to fall forward was in the initial progress notes of June 25, 2002. Every subsequent notation mentioned Resident 12's tendency to fall backward and to the left when she lost her balance. The Chateau took sufficient precautions to prevent a backward fall off the toilet. Two CNAs assisted Resident 12 into the bathroom, as indicated by the MDS and the daily ADL flowsheets. Ms. Celestin did not remain in the bathroom while Resident 12 used the toilet, but remained at the open door keeping watch. There was no foreseeable reason for Ms. Celestin to compromise the resident's dignity by remaining in the bathroom while Resident 12 used the toilet. Under all the circumstances, The Chateau provided adequate supervision and appropriate assistive devices to prevent accidents in the case of Resident 12. In summary, based upon all the evidence adduced at the final hearing, AHCA's finding of a deficiency under Tag F324 was demonstrated by clear and convincing evidence as to the circumstances surrounding the fall of Resident 7. AHCA failed to demonstrate, by even a preponderance of the evidence, that the fall of Resident 12 was due to any act or omission on the part of The Chateau.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order upholding its notice of intent to assign conditional licensure status to The Moorings, Inc., d/b/a The Chateau at Moorings Park, for the period of July 18, 2002, through August 20, 2002, and imposing an administrative fine in the amount of $2,500. DONE AND ENTERED this 7th day of August, 2003, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 7th day of August, 2003. COPIES FURNISHED: Karen L. Goldsmith, Esquire Goldsmith, Grout & Lewis, P.A. 2180 North Park Avenue, Suite 100 Post Office Box 2011 Winter Park, Florida 32790-2011 Tom R. Moore, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308-5403 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308
