The Issue The issue is whether Petitioner, Melvin Alston, is entitled to insurance coverage under the State of Florida Health Plan for services received at Miracle Hill Nursing Home.
Findings Of Fact Doris Alston, widow of Melvin Alston, is requesting payment for services rendered to Melvin Alston at Miracle Hill Nursing Home. Melvin Alston died on December 31, 1985. Melvin Alston, as a retired state employee, became eligible for coverage under the State Health Plan on July 1, 1985. He was a professor and dean at Florida A&M University from 1946 until 1969, when he retired. Thereafter he became a professor at Southern Illinois University, from which he retired in 1976. Alston was admitted to Tallahassee Memorial Regional Medical Center (TMRMC) in September, 1984, and was transferred to the extended care unit on September 20, 1984, because there were no available nursing home beds. On October 31, 1984, a bed became available at Goodwood Manor, a skilled nursing home facility, and Alston was admitted to Goodwood Manor from the TMRMC extended care unit. Alston remained at Goodwood Manor until August 22, 1985, when Mrs. Alston removed him and placed him at Miracle Hill Nursing Home. While at Goodwood Manor, Alston was receiving essentially custodial care. He had a routine diet and simply needed assistance with his activities of daily living, such as bathing and feeding. He was able to take his medications as they were given to him and he could leave the nursing home on a pass basis. While at Goodwood, Alston's medical orders were reviewed monthly and he was not seen daily by a physician. Alston received the same level of care at Miracle Hill Nursing Home. In skilled nursing facilities, the range of services needed and provided goes from skilled through intermediate levels to custodial. Skilled care includes such services as injections or intravenous medications on a daily basis which must be administered by a nurse. Dr. C. E. Richardson became Alston's physician at Miracle Hill Nursing Home. In the course of his deposition, Dr. Richardson testified that Alston received medical level care at Miracle Hill. However, Dr. Richardson stated several times that he did not know the level of care given to Alston under the definitions of the care levels available. He acknowledged that the levels of care ranged from skilled to custodial. Dr. Richardson also did not know the terms of the benefit document for the State Health Plan. Dr. Richardson only provided the medical care, which was the same no matter what level of nursing care he needed or received. According to Dr. Richardson, Alston was on a fairly routine diet, could engage in activities as tolerated, and could go out on a pass at will. One of Dr. Richardson's orders dated 11/27/85 shows that Dr. Richardson did not order a skilled level of care, but instead checked the level of care to be intermediate. Alston did not receive or need skilled nursing care at Miracle Hill. It is more appropriate to classify the level of care as custodial, as that term is defined in the State Health Plan Benefit Document. Alston's primary insurer was Blue Cross/Blue Shield of Illinois, based on coverage he had from his employment there. Blue Cross/Blue Shield of Illinois denied the claim for services at Miracle Hill because the services were custodial and were not covered by that plan. It also denied the claim because Miracle Hill's services did not fit its criteria for skilled nursing care. William Seaton is a State Benefits Analyst with the Department of Administration and his duties include assisting people who have a problem with the settlement of a claim with Blue Cross/Blue Shield of Florida, which administers the State Health Plan. After the claim was denied by Blue Cross/Blue Shield of Illinois, Mr. Seaton assisted Mrs. Alston by filing a claim under the State Health Plan. Blue Cross/Blue Shield of Florida concluded that no benefits were payable for facility charges at a nursing home and that an extended care or skilled nursing facilities would have limited coverage; however, because Alston was not transferred to Miracle Hill directly from an acute care hospital, no coverage existed. The pertinent provisions of the benefit document of the State Health Plan are as follows: I.G. "Custodial Care" means care which does not require skilled nursing care or rehabilitative services and is designed solely to assist the insured with the activities of daily living, such as: help in walking, getting in and out of bed, bathing, dressing, eating, and taking medications. * * * I.N. "Hospital", means a licensed institution engaged in providing medical care and treatment to a patient as a result of illness or accident on an inpatient/outpatient basis . . . and which fully meets all the tests set forth in ., 2., and 3. below: . . . In no event, however, shall such term include . . . an institution or part thereof which is used principally as a nursing home or rest for care and treatment of the aged. * * * I.AH. "Skilled Nursing Care" means care which is furnished . . . to achieve the medically desired result and to insure the insured's safety. Skilled nursing care may be the rendering of direct care, when the ability to provide the service requires specialized (professional) training; or observation and assessment of the insured's medical needs; or supervision of a medical treatment plan involving multiple services where specialized health care knowledge must be applied in order to attain the desired medical results. * * * I.AI. "Skilled Nursing Facility" means a licensed institution, or a distinct part of a hospital, primarily engaged in providing to inpatients: skilled nursing care . . . or rehabilitation services . . . and other medically necessary related health services. Such care or services shall not include: the type of care which is considered custodial . . . . * * * II.E. Covered Skilled Nursing Facility Services. On or after August 1, 1984, when an insured is transferred from a hospital to a skilled nursing facility, the Plan will pay 80% of the charge for skilled nursing care . . . subject to the following: The insured must have been hospital confined for three consecutive days prior to the day of discharge before being transferred to a skilled nursing facility; Transfer to a skilled nursing facility is because the insured requires skilled care for a condition . . . which was treated in the hospital; The insured must be admitted to the skilled nursing facility immediately following discharge from the hospital; A physician must certify the need for skilled nursing care . . . and the insured must receive such care or services on a daily basis; . . . 6. Payment of services and supplies is limited to sixty (60) days of confinement per calendar year. * * * VII. No payment shall be made under the Plan for the following: * * * L. Services and supplies provided by . . . a skilled nursing facility or an institution or part thereof which is used principally as a nursing home or rest facility for care and treatment of the aged. * * * N. any services in connection with custodial care . . . .
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Administration enter a Final Order denying the request for benefits for services rendered to Melvin Alston at Miracle Hill Nursing Home. DONE AND ENTERED this 24th day of May, 1988, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 1988. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 87-4674 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Melvin Alston 1 . Proposed findings of fact 1-3 and 5 are rejected as being subordinate to the facts actually found in this Recommended Order. Additionally, proposed findings of fact 3 and 5 contain argument which is rejected. 2. Proposed finding of fact 4 is irrelevant to the resolution of this matter. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Department of Administration Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 4(2); 5(2); 6(11); 8(11); 9(12); 10(3 & 4); 11(5); 12(4); 14(5); 15(7); 19- 21(8 & 9) 23(13); and 24(13). Proposed findings of fact 2, 3, and 16 are unnecessary. Proposed findings of fact 7, 13, 18, 26, and 27 are rejected as being irrelevant. Proposed findings of fact 17 and 22 are subordinate to the facts actually found in the Recommended Order. 2. Proposed finding of fact 25 is unsupported by the competent, substantial evidence. COPIES FURNISHED: James C. Mahorner Attorney-at-Law P. O. Box 682 Tallahassee, Florida 32301 Andrea Bateman Attorney-at-Law Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Adis Villa, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
The Issue The issue in this case is whether the nursing home facility previously owned and operated by Beverly Health and Rehab Fort Pierce, and later owned and operated by Fort Pierce Health Care, ("Nursing Home") was entitled to a standard license during a period in which the Agency for Health Care Administration ("AHCA") assigned it a conditional license.
Findings Of Fact Stipulated and admitted facts Beverly Health and Rehab Fort Pierce operated a skilled nursing facility located at 611 S. 13th Street, Fort Pierce Florida, until November 30, 2001. Fort Pierce Health Care is an entity unrelated to Beverly Health and Rehab Fort Pierce that purchased the facility on November 30, 2001, and has operated it since that date. At all times material to this case, both Beverly Health and Rehab Fort Pierce and Fort Pierce Health Care have been licensed by the State of Florida to operate the subject nursing home pursuant to Chapter 400, Part II, Florida Statutes. The AHCA completed a survey of the nursing home on November 8, 2001. At the conclusion of the survey, the ACHA alleged, relevant to the matters at issue in this case, that there were three separate Class II violations of 42 Code of Federal Regulations Sections 483.15(e)(i), 483.20(k)(3)(i), and 483.25(c). The AHCA filed an Administrative Complaint in this matter which sets forth the factual allegations upon which the ACHA reached the conclusion that there were three Class II deficiencies. Based upon the identification of the Class II deficiencies, the AHCA issued a Notice of Intent to Change Beverly Health and Rehab Fort Pierce's licensure rating from Standard to Conditional, effective November 8, 2001. The AHCA issued Fort Pierce Health Care a Conditional license rating on November 30, 2001, when operation of the facility was transferred. Fort Pierce Health Care timely filed a petition challenging AHCA's intent to assign it a Conditional rating. AHCA changed Fort Pierce Health Care's Conditional licensure rating to Standard, effective December 13, 2001. Facts about call bells During the survey of the subject nursing home facility in November of 2001, a group interview of residents was held on November 6, 2001. Eleven residents participated in the group interview. Nine of the eleven residents participating in the group interview reported to the surveyors that sometimes it can take more than one hour for call bells to be answered. Five of the residents participating in the group interview said that on some occasions they had been incontinent because they could not wait an hour to be helped into the bathroom. One of the residents participating in the group interview has a roommate who has a colostomy. The bag sometimes breaks and comes away from the stoma. On such occasions both roommates will ring their call bells. On several occasions it has taken more than an hour for help to come. During that same group interview, nine of eleven residents participating in the interview stated that their call bells are often not in reach. This can be because the nursing home staff fails to put the call bells within reach, or because the call bells fall on the floor or fall behind the bed. During a tour of the nursing home facility on November 5, 2001, it was observed that the call bells were either on the floor, behind the bed, and/or out of reach of the residents in sixteen of the rooms inspected. Facts about long toenails During the survey of the subject facility during November of 2001, Resident 15 told one of the surveyors that upon admission to the subject facility the resident had requested the staff of the nursing home to arrange for a podiatrist to come cut the resident's toenails. The resident's toenails are all very long and needed to be cut. The resident's physical condition was such that he/she could not cut his/her toenails, and because the resident suffered from diabetes, it was necessary to have the toenails cut by a podiatrist. During the course of the survey the records of the facility did not document any effort to obtain the services of a podiatrist for Resident 15. At the time of the survey in November of 2001, all of Resident 15's toenails were thick, were approximately two inches long (measuring for where the nail changes color from pink to white), and were curving around the tips of the toes. The evidence was inconclusive as to whether the length and shape of the toenails interfered with Resident 15's ability to walk or to perform any other activities of daily life. Facts about order for oxygen On October 30, 2001, a physician wrote an order for oxygen to be delivered through a tracheal collar to Resident 23. On November 5, 2001, during the AHCA survey of the subject nursing home, one of the survey team members observed that for a period of approximately ten or fifteen minutes Resident 23 was not wearing his tracheal collar and, therefore, was not receiving the oxygen ordered by his physician. When the matter was brought to the attention of nursing home staff, the tracheal collar was placed on Resident 23 and he once again received the oxygen ordered by his physician. There is no persuasive evidence in the record as to whether Resident 23 did or did not suffer any harm as a result of not having his oxygen equipment in place during the time period observed by the survey team member. Similarly, there is no persuasive evidence in the record as to why Resident 23 was not wearing his tracheal collar when he was first observed by a member of the survey team. Facts about physician order for Foley catheter Resident 18 suffered from, among other things, urinary and bowel incontinence. Because of those conditions he wore incontinence briefs. On October 17, 2001, his physician wrote an order for a Foley catheter to be inserted in Resident 18. The purpose of the Foley catheter was preventative--to reduce the risks of infection and to prevent or reduce the likelihood of the development of pressure sores. At the time the order for the Foley catheter was written, Resident 18 did not have any pressure sores.3 Upon receipt of the physician's order for a Foley catheter for Resident 18, a facility nurse attempted to insert the catheter into Resident 18. The nurse was unsuccessful in her efforts because Resident 18 appeared to have an obstruction that made it impossible for her to complete the task. In that situation, good nursing practice requires the nurse to cease efforts to insert the catheter and to contact the Resident's physician, which she did. The physician then directed the nurse to schedule an appointment with a urologist so that the urologist could insert the Foley catheter. Following some delays due to the unavailability of the urologist originally suggested by the resident's physician, an appointment was made to have a urologist insert the Foley catheter in Resident 18. The urologist was unsuccessful the first time he saw Resident 18, but a few days later, on November 12, 2001, the urologist successful inserted the catheter. The physician who originally ordered the insertion of the catheter was kept advised of the status of efforts to accomplish what he had ordered. The physician clarified that the insertion of the Foley catheter was not an emergency matter and that there was no urgency in having the catheter inserted. The physician was satisfied with the action taken by the nursing home staff in response to his order regarding the catheter and was of the opinion that the action taken by the nursing home staff in that regard constituted a timely and appropriate response to what he had ordered. Resident 18 did not suffer any harm as a result of the delays in inserting the Foley catheter. Facts about pressure sores During the course of the survey of the nursing home facility in November of 2001, one of the survey team members observed that Resident 18 had what appeared to the survey team member to be pressure sores high on the back of each thigh, at about the area where the upper thighs meet the lower part of the buttocks. These sores were at approximately the location where the resident's upper thighs would rub against the edges of the incontinent briefs worn by the resident. Wound care notes maintained by the nursing home facility stated that Resident 18 developed a Stage II pressure sore on the right back thigh on October 24, 2001, and a Stage II pressure sore on the left back thigh on October 30, 2001. The wound care notes also indicated that Resident 18 did not have any similar wounds prior to October 24, 2001. The wound care nurse who prepared the notes regarding the two Stage II pressure sores has since had second thoughts about the matter. The wound care nurse is now of the view that the wounds she saw on October 24 and 30 of 2001 and described at that time as pressure sores were in fact bullous pemphigoid sores. At certain stages of the development of bullous pemphigoid sores and pressure sores, it is easy to mistake one for the other. The wound care nurse also clarified in her testimony that the two wounds she observed on the backs of Resident 18's thighs were not located over a bony prominence. Review of the clinical record for Resident 18 reveals that the resident was admitted to the facility with the following diagnoses: Alzheimer's Disease, hypertension, and bullous pemphigoid. Physician notes regarding Resident 18 prepared on October 17, 2001, note the presence of "decubitus ulcers to perineal groin and genital areas." The physician who prepared the notes regarding the "decubitus ulcers" also has since had second thoughts about the matter. The physician is now of the view that the wounds he saw on October 17, 2001, and described as "decubitus ulcers" were in fact bullous pemphigoid sores. The physician agrees with the wound care nurse that at certain stages of the development of bullous pemphigoid sores and pressure sores, it is easy to mistake one for the other. The physician also clarified in his testimony that the two wounds he observed on October 17, 2001, were not located over a bony prominence. The AHCA has prepared a manual to be used when its employees are conducting surveys of nursing home facilities. That manual includes the following definition: "Pressure sore" means ischemic ulceration and/or necrosis of tissue overlying a bony prominence that has been subjected to pressure, friction or shear. The staging system presented below is one method of describing the extent of tissue damage in the pressure sore.
Recommendation On the basis of the foregoing findings of fact and and conclusions of law, it is RECOMMENDED that the AHCA issue a Final Order in this case to the following effect: Concluding that the violations alleged in Count I regarding the location of and the responses to call bells have been proved by the preponderance of the competent substantial evidence and that those violations are Class II deficiencies; Concluding that the violation alleged in Count I regarding long toenails is, at most, a Class III deficiency; Concluding that the violation alleged in Count II regarding providing oxygen to a resident is, at most, a Class III deficiency; Concluding that the violation alleged in Count II regarding insertion of a Foley catheter should be dismissed for lack of persuasive competent substantial evidence; Concluding that the violation alleged in Count III regarding pressure sores on a resident should be dismissed for lack of persuasive competent substantial evidence; and Concluding that the violations described in subparagraph (a), above, provide a sufficient basis for the issuance of a Conditional license to the Nursing Home from November 8, 2001, until December 13, 2001. DONE AND ENTERED this 3rd day of March, 2003, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of March, 2003.
The Issue Whether Respondent, a licensed practical nurse, committed the offenses alleged in the Administrative Complaint and, if so, the penalties that should be imposed.
Findings Of Fact Petitioner is the agency of the State of Florida charged with regulating the practice of nursing pursuant to Section 20.42, Chapter 455, and Chapter 464, Florida Statutes. Respondent is a licensed practical nurse in the State of Florida, having been issued license number PN 1091251. Laposada Convalescent Home, is a 54-bed nursing home located in Miami, Florida. At the times pertinent to this proceeding, Respondent was employed as a licensed practical nurse by Laposada, Teresita Garcia was a part owner and manager of Laposada, Angela Barba was the nursing home administrator for Laposada, and Prima Washington was employed as a certified nursing assistant by Laposada. Respondent expected to receive her first paycheck as an employee of Laposada on January 15, 1994. Respondent's understanding was that she was to be compensated at the rate of $11.75 per hour. Respondent tried to obtain her paycheck during the afternoon hours on January 15, 1994. She talked to Ms. Garcia by telephone twice that afternoon and made a special trip to the facility that afternoon with the expectation that her check would be ready for her to pick up. When she came to the facility, her check was not ready and Ms. Garcia was not on the premises. Respondent was told that her check would be ready for her when she came on duty. Respondent was assigned to the night shift that began at approximately 11:00 p.m. on Saturday, January 15, 1994, and ended at 7:00 a.m. on Sunday, January 16, 1994. Respondent was the only licensed nurse assigned to the night shift. The two other employees assigned to the night shift were Prima Washington and another certified nursing assistant. Respondent returned to the facility and clocked in for the night shift at approximately 10:45 p.m. on January 15, 1994. She arrived early to pick up her paycheck and to review the patient reports with staff from the outgoing shift. After she clocked in, she received her paycheck. Respondent's pay was calculated on a rate of $7.00 per hour, not on the rate of $11.75 per hour that she had expected. Respondent became upset when she discovered this discrepancy in pay and called Ms. Garcia at her home at approximately 10:50 p.m. Respondent advised Ms. Garcia that she wanted the discrepancy straightened out immediately. After Ms. Garcia stated that the matter could not be resolved until Monday, Respondent advised that she was quitting her employment and demanded that Ms. Garcia locate a replacement for her. Ms. Garcia made several telephone calls in an attempt to find a replacement for the Respondent, but she could not locate a qualified replacement for Respondent on that Saturday night. The nursing home administrator, Angela Barba, is Ms. Garcia's daughter and resides with Ms. Garcia. Ms. Barba was aware of the conversations Ms. Garcia had with Respondent. Their residence is near Laposada so that they could reach the facility in a matter of minutes. Ms. Garcia instructed Prima Washington by telephone to inform her immediately if Respondent left the facility. Respondent clocked out of the facility at 11:30 p.m. At the time she clocked out, there was no other qualified nurse at the facility. Some of the patients at Laposada were scheduled to take medication at midnight. After Respondent clocked out, there was no one at the facility authorized to administer medication to these patients at midnight. After she clocked out, Respondent called 911 and went outside of the building to await the arrival of the police. It is not clear what Respondent expected the police to do once they arrived. Respondent also attempted to contact the abuse registry to advise the Department of Health and Rehabilitative Services (DHRS) as to the situation at Laposada. It is not clear what Respondent expected to accomplish by contacting DHRS, but she received a recorded message to call back during work hours. There was no evidence that DHRS became involved in this incident. The door Respondent used to exit the facility locks automatically. Consequently, once Respondent went outside of the building, she was locked out of the facility. Prima Washington thought that Respondent had left the premises and gave that information to Ms. Garcia. Respondent remained on the premises, but outside of the building, until Ms. Garcia came to the facility at approximately 2:00 a.m. Ms. Garcia was accompanied by Ms. Barba and by Ms. Barba's husband. When Ms. Garcia and Ms. Barba arrived at the facility, the Respondent left the premises. There was no further communication between Respondent and either Ms. Garcia or Ms. Barba as to the wage dispute, as to the condition of the patients, or as to whether a replacement nurse had been located. Respondent did not perform any duties after she clocked out at 11:30 p.m. She did not file a report as to the condition of her patients before leaving the facility. The patients at Laposada were without a qualified nurse between 11:30 p.m. on January 15, 1994, and 6:00 a.m. on January 16, 1994, when a nurse reported early for the morning shift. Respondent left the facility at approximately 2:00 a.m. before a replacement arrived. The accepted standards of conduct in the nursing profession require that a nurse, who wants to leave patients assigned to her care, wait for a replacement to arrive at the facility, discharge her nursing duties to her patients until the replacement arrives, and report the condition of her patients to her replacement prior to leaving. Respondent failed to meet the foregoing standards of conduct in the nursing profession by abandoning her patients at Laposada. Exceptions to these standards may arise in emergency circumstances. The facts of this case do not establish an emergency that would justify deviation from the accepted standards of conduct. While Respondent may have a bona fide dispute with the management of Laposada as to the rate of compensation she was to receive, that dispute does not constitute an emergency circumstance and does not justify her action in abandoning her patients. There was no evidence that Respondent has been previously disciplined by the Petitioner. There was no evidence that any patient was harmed as a result of Respondent's actions.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order that finds the Respondent guilty of unprofessional conduct in the provision of nursing services as alleged in the Administrative Complaint. It is further recommended that the Petitioner impose an Administrative Fine against Respondent in the amount of $250.00 and place her licensure on probation for a period of one year. The conditions of her probation should require that she complete an appropriate continuing education course dealing with her professional responsibilities for the care of patients. DONE AND ENTERED this 29th day of June, 1995, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 1995. COPIES FURNISHED: Natalie Duguid, Esquire Agency For Health Care Administration 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Cornelius Shiver, Esquire Post Office Box 1542 Miami, Florida 33233 Judie Ritter, Executive Director Board of Nursing Daniel Building, Room 50 111 East Coastline Drive Jacksonville, Florida 32202 Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32309
Findings Of Fact Respondent is a skilled nursing home facility located in Blountstown, Florida, and is licensed by HRS. During a routine survey (inspection) of Apalachicola Valley Nursing Center on January 7-8, 1980, a staffing analysis revealed that for the three weeks prior to the survey, Respondent was short one licensed nurse on the night shift (11:00 p.m. to 7:00 a.m.) for this 21-day period. During the entire period here involved, the adjusted average census of the Respondent was over 60 patients. At the time of this survey, Petitioner's policy was not to cite staff shortages as deficiencies on HRS Form 553D unless they affected patient care or there was a deficiency in patient care to which a staff shortage could relate. At all times here relevant, Mrs. Margaret Z. Brock was Administrator and part-owner of the Respondent. Following the January 7-8, 1980 survey, the results were discussed with Mrs. Brock. The head of the survey team advised Mrs. Brock of HRS' policy on staff shortages which did not affect patient care. As a result of unfavorable publicity regarding HRS' laxness in enforcing regulations involving medical facilities, by memorandum dated January 10, 1980 (Exhibit 2), HRS changed the policy on staff shortages which did not affect patient care. This change directed all staff shortages to be noted on the inspection report (Form 553D), which would thereby require action by the facility to correct. It further provided that all such shortages be corrected within 72 hours and if not corrected within the time specified, administrative action against the facility would be taken. By letter dated January 15, 1980, Mrs. Brock was forwarded the survey report containing the deficiency relating to the shortage of one LPN on the night shift during the three-week period prior to the survey. A follow-up visit was made to the Respondent on February 21, 1980, at which time it was noted that the LPN shortage on the night shift remained uncorrected. By letter dated February 27, 1980 (Exhibit 3), Mrs. Brock was advised of this finding and the accompanying Form 553D stated that the deficiency was referred for administrative action. This resulted in the Administrative Complaint in Docket No. 80-1443. A second follow-up visit was made on March 25, 1980, at which time it was noted that the LPN shortage on the 11:00 p.m. to 7:00 a.m. shift was still uncorrected. By letter dated April 1, 1980 (Exhibit 4), Mrs. Brock was advised of this finding and the accompanying Form 553D indicates that the deficiency is again being referred for administrative action. This resulted in the Administrative Complaint in Docket No. 80-1444. There is a shortage of nurses, both registered and licensed practical, nationwide, as well as in the panhandle of Florida. This shortage is worse in smaller towns and rural areas than in more metropolitan areas. Respondent is located in a rural area. Respondent has encouraged and assisted potential employees to attend the LPN courses given in nearby technical schools. One of these enrollees is currently working for Respondent. Respondent has advertised in newspapers for additional nursing personnel and has offered bonuses to present employees if they can recruit a nurse to work for Respondent. Other hospitals and nursing homes in the panhandle experience difficulties in hiring the number of nurses they would like to have on their staff. All of those medical facilities, whose representatives testified in these proceedings, have difficulty employing as many nurses as they feel they need. The LPN shortage is worse than the RN shortage. None of these medical facilities, whose representatives testified to the nurse shortage, except Respondent, was unable to meet the minimum staffing requirements of HRS although they sometimes had to shift schedules to meet the prescribed staffing. Respondent has found it more difficult to keep nurses on the 11:00 p.m. to 7:00 a.m. shift than other shifts, particularly if these employees are married or have families. Because of this staffing shortage, on July 18, 1980, a moratorium was placed on Respondent's admitting additional patients. This moratorium was lifted presumably after Respondent met the prescribed staffing requirements by employing a second nurse for the 11:00 p.m. to 7:00 a.m. shift. Failure to meet minimum staffing requirements is considered by Petitioner to constitute a Class III deficiency.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Administrative Complaint in Docket No. 80-1443 be dismissed. It is further recommended that for failure to comply with the minimum staffing requirements after February 21, 1980, Respondent be fined $500.00. DONE and ENTERED this 7th day of November, 1980, at Tallahassee, Florida. K. N. AYERS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of November, 1980. COPIES FURNISHED: John L. Pearce, Esquire HRS District 2 Legal Office Suite 200-A 2639 North Monroe Street Tallahassee, FL 32303 Stephen D. Milbrath, Esquire Dempsey & Slaughter Suite 610, Eola Office Center 605 E. Robinson Street Orlando, FL 32801
The Issue Whether Respondent committed the violations alleged in the Administrative Complaints and, if so, what penalty should be imposed.
Findings Of Fact Stipulated facts AHCA is the agency responsible for the licensing and regulation of skilled nursing facilities in Florida pursuant to Chapter 400, Part II, Florida Statutes, and Chapter 59A-4, Florida Administrative Code. At all times material hereto, Avante was licensed by Petitioner as a skilled nursing facility. Avante operates a 116-bed nursing home located in Leesburg, Florida. On or about March 28, 2002, AHCA conducted a complaint investigation at Avante. Based on AHCA's findings during the March 28, 2002, complaint investigation, federal tag F281(D) was cited against Avante. On or about May 13, 2002, AHCA conducted a survey at Avante. Based on AHCA's findings during the May 13, 2002, survey, federal tag F281(D) was cited against Avante. Resident E.S. was admitted to Avante on March 11, 2002, with diagnoses including e. coli sepsis, anemia, and schizophrenia with an order for serum albumin levels to be performed "now and yearly." Resident E.S.'s resident chart failed to reflect that a serum albumin test had been performed for Resident E.S. at any time from the date of his admission on March 11, 2002, until March 28, 2002. Avante failed to follow the orders of Resident E.S.'s physician due to its failure to perform a serum albumin test on Resident E.S. at any time between March 11, 2002, and March 28, 2002. Resident R.L. was admitted to Respondent's facility on May 6, 2002 with diagnoses including gastrointestinal hemorrhage, congestive heart failure, coronary artery disease, A-fib, pneumonia, diverticulitis, gout, fracture of right arm, and cancer of the prostate. Resident R.L.'s resident chart reflects that Resident R.L. was neither offered or administered Tylenol by Avante's staff at any time between May 9, 2002, and May 13, 2002. Facts Based Upon the Evidence of Record The correction date given to Respondent for the deficiency cited, Tag F281(D), as a result of the March 28, 2002, complaint investigation was April 28, 2002. Respondent does not dispute the deficiency cited by AHCA as a result of the March 28, 2002, complaint investigation. Thus, facts and circumstances surrounding the May 13, 2002, survey visit to Avante is the source of this dispute. The purpose of the May 13, 2002 survey visit to Avante by AHCA was for annual certification or licensure. In an annual license survey, a group of surveyors goes to a facility to determine if the facility is in compliance with state and federal requirements and regulations. Part of the process is to tour the facility, meet residents, record reviews, and talk to families and friends of the residents. During the licensure visit on May 13, 2002, the records of 21 residents were reviewed. Stephen Burgin is a registered nurse and is employed by AHCA as a registered nurse specialist. He has been employed by AHCA for three years and has been licensed as a nurse for six years. He also has experience working in a hospital ER staging unit and in a hospital cardiology unit. Nurse Burgin has never worked in a nursing home. Nurse Burgin conducted the complaint investigation on March 28, 2002, and was team leader for the licensure survey visit on May 13, 2002, at Avante. He was accompanied on the May 13, 2002, visit by Selena Beckett, who is employed by AHCA as a social worker. Both Nurse Burgin and Ms. Beckett are Surveyor Minimum Qualification Test (SMQT) certified. During the course of the May 13, 2002, licensure survey visit, Ms. Beckett interviewed Resident R.L. As a result of this interview, Ms. Beckett examined Resident R.L.'s medication administration record (MAR) to determine whether he was receiving pain medication for his injured left elbow. As a result of reviewing Resident R.L.'s record, Ms. Beckett became aware of a fax cover sheet which related to Resident R.L. The fax cover sheet was dated May 8, 2002, from Nancy Starke, who is a registered nurse employed by Avante as a staff nurse, to Dr. Sarmiento, Resident R.L.'s attending physician. The box labeled "Please comment" was checked and the following was hand written in the section entitled "comments": "Pt refused Augmentin 500 mg BID today states it causes him to have hallucinations would like tyl for pain L elbow." According to Nurse Starke, the fax to Dr. Sarmiento addressed two concerns: Resident R.L.'s refusal to take Augmentin and a request for Tylenol for pain for Resident R.L.'s left elbow. She faxed the cover sheet to Dr. Sarmiento during the 3:00 p.m. to 11:00 p.m. shift on May 8, 2002. Despite her fax to Dr. Sarmiento, which mentioned pain in R.L.'s left elbow, her daily nurse notes for May 8, 2002, reflect that Resident R.L. was alert, easygoing, and happy. He was verbal on that day meaning that he was able to make his needs known to her. Her daily nurse notes for May 8, 2002 contain the notation: "Pt refused augmentin today. Dr. Sarmiento faxed." According to Nurse Starke, she personally observed Resident R.L. and did not observe any expression of pain on May 8, 2002, nor did Resident R.L. request pain medication after she sent the fax to Dr. Sarmiento. The fax cover sheet also contained the hand written notation: "Document refused by PT. OK 5/9/02" with initials which was recognized by nurses at Avante as that of Dr. Sarmiento. The fax sheet has a transmission line which indicates that it was faxed back to Avante the evening of May 9, 2002. Nurse Starke also provided care to Resident R.L. on May 11, 2002. According to Nurse Starke, Resident R.L. did not complain of pain on May 11, 2002. Theresa Miller is a registered nurse employed by Avante as a staff nurse. Nurse Miller provided care to Resident R.L. on May 9 and 10, 2002, during the 7:00 a.m. to 3:00 p.m. shift. Nurse Miller's nurses notes for May 9 and 10, 2002, reflect that she observed Resident R.L. to be alert, easygoing, and happy. Her notes also reflect that Resident R.L. was verbal on those dates, meaning that he was able to tell her if he needed anything. She did not observe Resident R.L. to have any expression of pain on those dates, nor did Resident R.L. express to her that he was in any pain. Vicki Cannon is a licensed practical nurse employed by Avante as a staff nurse. Nurse Cannon has been a licensed practical nurse and has worked in nursing homes since 1998. Nurse Cannon provided care to Resident R.L. on May 11 and 12, 2002, on the 7:00 a.m. to 3:00 p.m. shift. Her nurse's notes for May 11, 2002 reflect that Resident R.L. was sullen but alert and verbal. Resident R.L. had blood in his urine and some discomfort. Nurse Cannon contacted Dr. Sarmiento by telephone on May 11, 2002, to inform him of Resident R.L.'s symptoms that day. Nurse Cannon noted on Resident R.L.'s physician order sheet that she received a telephone order from Dr. Sarmiento to give Resident R.L. Ultram PRN and Levaquin, discontinue Augmentin, order BMP and CBC blood work, and a urology consult. Ultram is an anti-inflammatory and a pain medication. Ultram is stronger than Tylenol. The notation "PRN" means as requested by the patient for pain. Levaquin is an antibiotic. Nurse Cannon faxed the order to the pharmacy at Leesburg Regional Medical Center. By the time Nurse Cannon left Avante for the day on May 11, 2002, the Ultram had not arrived from the pharmacy. On May 12, 2002, Resident R.L. had edema of the legs and blood in his urine. Nurse Cannon notified Dr. Sarmiento of Resident R.L.'s symptoms. Resident R.L. was sent to the emergency room for evaluation based on Dr. Sarmiento's orders. Additionally, Nurse Cannon called the pharmacy on May 12, 2002, to inquire about the Ultram as it had not yet arrived at the facility. Resident R.L. returned to Avante the evening of May 12, 2002. Alice Markham is a registered nurse and is the Director of Nursing at Avante. She has been a nurse for more than 20 years and has been employed at Avante for a little over two years. She also has worked in acute care at a hospital. Nurse Markham is familiar with Resident R.L. She described Resident R.L. as alert until the period of time before he went to the hospital on May 12, 2002. She was not aware of any expressions of pain by Resident R.L. between May 9, 2002 until he went to the hospital on May 12, 2002. Nurse Markham meets frequently with her nursing staff regarding the facility's residents. During the licensure survey, Nurse Markham became aware of Ms. Beckett's concerns regarding Resident R.L. and whether he had received Tylenol. She called Dr. Sarmiento to request an order for Tylenol for R.L. The physician order sheet for R.L. contains a notation for a telephone order for Tylenol "PRN" on May 14, 2002, for joint pain and the notation, "try Tylenol before Ultram." The medical administration record for R.L. indicates that Resident R.L. received Ultram on May 13 and and began receiving Tylenol on May 15, 2002. AHCA 's charge of failure to meet professional standards of quality by failing to properly follow and implement physician orders is based on the "OK" notation by Dr. Sarmiento on the above-described fax and what AHCA perceives to be Avante's failure to follow and implement that "order" for Tylenol for Resident R.L. AHCA nurse and surveyor Burgin acknowledged that the "OK" on the fax cover sheet was not an order as it did not specify dosage or frequency. He also acknowledged that the nursing home could not administer Tylenol based on Dr. Sarmiento's "OK" on the fax cover sheet, that it would not be appropriate to forward the "OK" to the pharmacy, that it should not have been placed on the resident's medication administration record, and that it should not have been administered to the resident. However, Nurse Burgin is of the opinion that the standard practice of nursing is to clarify such an "order" and once clarified, administer the medication as ordered. He was of the opinion that Avante should have clarified Dr. Sarmiento's "OK" for Tylenol on May 9, 2002, rather than on May 14, 2002. Nurse Burgin also was of the opinion that it should have been reflected on the resident's medication administration record and treatment record or TAR. In Nurse Markham's opinion, "OK" from Dr. Sarmiento on the fax cover sheet does not constitute a physician's order for medication as it does not contain dosage or frequency of administration. Nurse Markham is also of the opinion that it should not have been forwarded to the pharmacy, transcribed to the medication administration record, or transcribed on the treatment administration record. According to Nurse Markham, doctor's orders are not recorded on the treatment administration record of a resident. Nurse Markham is of the opinion that the nursing staff at Avante did not deviate from the community standard for nursing in their care of Resident R.L. from May 8, 2002 to May 14, 2002. Nurse Cannon also is of the opinion that the "OK" by Dr. Sarmiento does not constitute a physician's order for medication. The Administrative Complaints cited Avante for failure to meet professional standards of quality by failing to properly follow and implement a physician's order. Having considered the opinions of Nurses Burgin, Markham, and Cannon, it is clear that the "OK" notation of Dr. Sarmiento on the fax cover sheet did not constitute a physician's order. Without Dr. Sarmiento's testimony, it is not entirely clear from a review of the fax cover sheet that the "OK" relates to the reference to Tylenol or the reference to Resident R.L.'s refusal of Augmentin. Accordingly, Avante did not fail to follow a physician's order in May 2002. As to AHCA's assertion that Avante failed to meet professional standards by not clarifying the "OK" from Dr. Sarmiento, this constitutes a different reason or ground than stated in the Administrative Complaints. Failure to clarify an order is not the equivalent of failure to follow an order. There is insufficient nexus between the deficiency cited on March 28, 2002 and the deficiency cited on May 13, 2002. Accordingly, Avante did not fail to correct a Class III deficiency within the time established by the agency or commit a repeat Class III violation. Moreover, the evidence shows that the nursing staff responded to the needs of Resident R.L. Resident R.L. expressed pain in his left elbow to Nurse Starke on May 8, 2002. Resident R.L. was alert and could make his needs known. He did not express pain or a need for pain medication to Nurse Miller on May 9 or 10, 2002 or to Nurse Cannon on May 11 or 12, 2002. Rather, Nurse Cannon noted a change in his condition, notified Dr. Sarmiento which resulted in Resident R.L. being sent to the emergency room. Resident R.L. returned to Avante the evening of May 12, 2002, and received Ultram for pain on May 13, 2002, when the medication reached Avante from the pharmacy. The evidence presented does not establish that Avante deviated from the community standard for nursing in its actions surrounding the "OK" from Dr. Sarmiento. In weighing the respective opinions of Nurses Burgin and Markham in relation to whether the community standard for nursing was met by the actions of Respondent, Nurse Markham's opinion is more persuasive.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Agency for Health Care Administration enter a final order dismissing the Administrative Complaints issued against Respondent, Avante at Leesburg. DONE AND ENTERED this 13th day of December, 2002, in Tallahassee, Leon County, Florida. BARBARA J. STAROS 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 13th day of December, 2002. COPIES FURNISHED: Jodi C. Page, Esquire Agency for Health Care Administration 2727 Mahan Drive Mail Station 3 Tallahassee, Florida 32308 Karen L. Goldsmith, Esquire Jonathan S. Grout, Esquire Goldsmith, Grout & Lewis 2180 Park Avenue North, Suite 100 Post Office Box 2011 Winter Park, Florida 32790-2011 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308-5403 Valinda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308-5403
Findings Of Fact On 22 June 1982 DHRS, Office of Licensure and Certification, conducted an inspection of Respondent's facility known as Regency Oaks at Gainesville, Florida. During this inspection the nurses' schedule was not produced and the inspector, with the assistance of Respondent's staff, attempted to reconstruct the nurses' schedule for the month of June, 1982, up to the date of the inspection. From the data received it was determined that on the 7:00 a.m. to 3:00 p.m. shift on June 5, 1982, Respondent was staffed with one registered nurse (RN) and three licensed practical nurses (LPN) on June 6 there were two RN's and two LPNs; on June 12 there were three RNs and one LPN; and on June 19 there were three RNs and one LPN. Staffing requirements for nursing homes are determined by the shift and census of the nursing home. All of the shortages here involved the day shift. On each of the days of 5, 6, 12, and 19 June the regulations required two RNs and three LPNs on the day shift. The regulations also permit the substitution of an RN for an LPN. Accordingly, from the evidence gathered bv Petitioner's evaluation at the June 22 inspection, Respondent was short one RN on June 5 and one LPN on June 6, 12, and 19. Respondent presented time cards for the periods here involved. These time cards, which were accepted in evidence as business records of Respondent, show that on June 12 Respondent had two RNs and three LPNs on duty on the day shift. Respondent's one witness admitted the nursing home was understaffed one RN on June 5 and one LPN on June 6 and 19.
