Findings Of Fact Pauline J. Brown Larach, Respondent, is licensed by the Board of Nursing as a Registered Nurse, license No. 60268-2 and was so licensed at all times here relevant. Respondent was employed by Hollywood Memorial Hospital during the period July-October, 1981, in the Intensive Care Unit (ICU). At the time of her employment Respondent represented that she was qualified to work in the ICU. Hollywood Memorial Hospital sends all nurses employed through an orientation program of approximately one week before assigning them to a particular duty. Respondent went through this orientation program before she was assigned to ICU. Respondent was assigned the shift under the direct supervision of Shirley Scott, who was assistant head nurse of the ICU and was supervisor on the shift to which Respondent was assigned. Respondent's work was unsatisfactory and she was counselled several times by Scott. Specifically, Respondent was counselled about the manner in which she maintained her nurse's notes, her inability to schedule her time and duties, her inability to concentrate on a particular problem, her refusal to seek assistance when needed, and a penchant for ignoring serious problems. The following incidents gave rise to the concern about the type of care provided by Respondent to patients in the ICU: On about October 21, 1981, a neurological patient assigned to Respondent was on the drug Nipride to keep the blood pressure low. The patient had suffered intracranial hemorrhaging. The Nepride, which is considered a dangerous drug unless its administration is carefully monitored, was administered to this patient in much less than the time it should have taken for the Nipride to be infused and the patient's blood pressure dropped very low. The ICU supervising nurse discovered the patient in a severely hypertensive state and Respondent had placed the patient in a position with the head below the feet. This attitude would be correct for most patients whose blood pressure is low but was contraindicated for a neuro-patient or a patient with the history of intracranial bleeding. Although the head nurse's intervention possibly avoided further intracranial bleeding, no entry of blood pressure drop or of the emergency was placed in the nurse's notes kept by Respondent. On or about August, 1981, Respondent was observed by her shift supervisor (Scott) hiding her nurse's notes under a patient's mattress so Ms. Scott could not read them. During a "code" situation Respondent offered the doctor a cookie while he was resuscitating the patient. Respondent's nurse's notes are virtually illegible and replete with trivia and inappropriate items while failing to include pertinent information. Specifically, these nurse's notes were also found deficient in that Respondent did not chart complete systems before going to another system, but instead jumped around from items in one system to items in another and included trivia while omitting essential information about the patient. On one occasion when a patient was transferred from the emergency room to the ICU as a patient to be tended to by Respondent, who had accepted the patient by phone from the emergency room, upon arrival the patient was in dire distress and Respondent left the room. Another nurse declared a "code" emergency on this patient, but Respondent did not return to the room until after the "code" situation was ended. During a "code" situation involving one of Respondent's patients, it was discovered that she had incorrectly computed the infusion rate for the drug Dopamine, which drug is intended to raise blood pressure. Respondent's evaluations (Exhibit 1), which were prepared three months after Respondent commenced work at Hollywood Memorial Hospital, evaluated Respondent as unsatisfactory and far below the minimal standards required for acceptable nursing practices. This report followed numerous conferences with Respondent during this three-month period when the areas in which she was unsatisfactory were pointed out to her. All of the witnesses who worked with and observed Respondent in the ICU concurred that Respondent's professional competency, as observed by them, was far below minimal acceptable standards and that they would be unwilling to have Respondent assigned under them in an ICU. All expert witnesses opined that in the manner in which Respondent maintained nurse's notes, organized her work, provided care to patients, and, specifically, to react properly in an emergency situation, Respondent's performance as a nurse was far below minimal acceptable standards. At the expiration of Respondent's three-month period during which her evaluation was unsatisfactory, a conference was held between Respondent and hospital staff. At this meeting the evaluations were presented to Respondent and she was given the alternatives of voluntary resignation, transfer to a less critical area of the hospital, or termination. Respondent opted for voluntary resignation.
The Issue The issue in this case is whether the Petitioner's application for licensure by endorsement should be approved or denied.
Findings Of Fact In June of 1997, the Petitioner filed an application for nursing licensure, by means of which she seeks to be licensed as a registered nurse by endorsement. In support of her application, the Petitioner submitted, or caused to be submitted, evidence showing that she was licensed as a registered nurse in Quebec, Canada, and that she had such licensure status by passing an examination in 1976. The examination she passed in 1976 was the examination administered in French by the Ordre des Infirmieres et Infirmieres du Quebec ("OIIQ"). In 1976, the registered nurse licensure examination given by, or required by, the Florida Board of Nursing was the State Board Test Pool Examination, which was administered by the National Council of State Boards of Nursing. In addition to the licensure examination administered by OIIQ, the Canadian Nurses Association Testing Service ("CNATS") has also offered a registered nurse licensure examination in Canada for many years, including 1976. The Florida Board of Nursing has determined that the CNATS registered nurse licensure examinations administered from 1980 through 1995 are equivalent to the State Board Test Pool Examinations administered by the National Council of State Boards of Nursing. There has been no such determination for CNATS examinations administered before 1980 or after 1995. The evidence in this case is insufficient to determine whether the registered nursing licensure examinations administered in 1976 by either CNATS or OIIQ were substantially equivalent to, or more stringent than, the State Board Test Pool Examinations administered in 1976 by the National Council of State Boards of Nursing.5
Recommendation On the basis of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Nursing enter a final order denying the Petitioner's application for licensure by endorsement. DONE AND ENTERED this 27th day of July, 2000, 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 27th day of July, 2000.
Findings Of Fact In October 1978 Bonnie Ray Solomon Crawford, LPN was employed at the West Pasco Hospital, New Port Richey, Florida as a licensed practical nurse provided by Upjohn Company's rent-a-nurse program. On 7 October 1978 Respondent signed out at 10:00 a.m. and 2:00 p.m., and on 8 October 1973 at 8:00 a.m. and 1:00 p.m. for Demerol 75 mg for patient Kleinschmidt (Exhibit 2). Doctor's orders contained in Exhibit 4 shows that Demerol 50 mg was ordered by the doctor to be administered to patient Kleinschmidt as needed. Nurses Notes in Exhibit 4 for October 7, 1978 contains no entry of administration of Demerol at 10:00 a.m. and at 2:00 p.m. shows administration of 50 mg. and Phenergan 25 mg. Exhibit 3, Narcotic Record for Demerol 50 mg contains two entries at 8:15 a.m. on October 7, 1978 and one entry at 12:30 p.m. where Respondent signed out for Demerol 50 mg. for patients King, Zobrist and King in chronological order. Nurses Notes for King, Exhibit 6, and Zobrist, Exhibit 5, contain no entry that Demerol was administered to patient Zobrist at 8:15 a.m. or to patient King at 12:30 p.m. on 7 October 1978. In fact, the record for Zobrist shows that Zobrist was discharged from the hospital on October 5, 1978. Failure to chart the administration of narcotics constitutes a gross error in patient care and is not acceptable nursing practice. Similarly it is not acceptable nursing practice to withdraw narcotics not contained in doctors orders or administer medication not in doctors orders. When confronted by the Nursing Administrator at West Pasco Hospital with these discrepancies in the handling of Demerol, Respondent stated that she failed to check the identity of the patient before administering medication and that she didn't feel she should be giving medications any more. Following this confrontation with the hospital authorities, Respondent was fired for incompetency. No evidence was submitted regarding Respondent's 1975 disciplinary proceedings.
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner Marianna Convalescent Center's licensure rating should be changed from "Standard" to "Conditional" and whether an administrative fine in the proposed amount of $2500.00 should be imposed upon the Petitioner and its facility, based upon an alleged failure to timely consult with a resident's attending or treating physician when there was an alleged significant change in that resident's physical, mental or psycho-social status, etc.
Findings Of Fact The AHCA is the state Agency charged with licensure of nursing homes in Florida, pursuant to Section 400.021(2), Florida Statutes (2001), and the assignment of licensure status, pursuant to Section 400.102, Florida Statutes (2001). The Agency is also responsible for conducting federally-mandated surveys of those long-term care facilities receiving Medicare and Medicaid funds for compliance with federal, statutory and rule requirements. Marianna is a licensed nursing facility located in Marianna, Florida. On August 4, 2001, the Agency conducted an annual Medicare and Medicaid re-certification survey and a state licensure survey, noting its findings on a standard form titled "Statement Deficiencies and Plan of Correction" which is commonly referred to as a "2567" form. A "Tag" identifies the applicable regulatory standard that the surveyors believe has been violated, provides a summary of the violation and sets forth specific factual allegations that the surveyors believe support a violation. It also indicates the federal scope and severity of the non-compliance. The Agency alleged that Marianna was not in compliance with certain federal compliance requirements, one of which is significant in this proceeding: 42 C.F.R. Subsection 483.10(b)(11)(F-157)("Tag F-157"), for allegedly failing to immediately consult with a resident's physician when there was a significant change in the resident's physical, mental or psycho- social status. The Agency contends that this failure resulted in the potential for harm to Resident No. 3. Section 400.23(7) and (8), Florida Statutes, contain the state licensure requirements at issue and Rule 59A-4.1288, Florida Administrative Code, serves as the legal basis by which the AHCA made the initial determination that Marianna, in its view, had failed to comply with the Agency rules. In accordance with the Florida Classification System, the Agency classified the F-157 Non-compliance as a "Class II deficiency" because it compromised the resident's ability to maintain her highest practicable physical, mental and psycho-social well-being " . . . as defined by an accurate and comprehensive resident assessment, plan of care, and provision of services." Based upon the presence of the alleged Class II deficiency, according to the result of the survey, the Agency elected to assign a conditional licensure status to Marianna and impose the disputed administrative fine. The survey team believed it found a violation of 42 C.F.R. Subsections 483.10(b)(11)(i), which states that "a facility must immediately . . . consult with a resident's physician . . . when there is . . . a significant change in the resident's physical, mental or psycho-social status " On July 2, 2001, at approximately 12:45 a.m., a Certified Nursing Assistant (CNA) summoned Michael Laurie, a Licensed Practical Nurse (LPN) to observe Resident No. 3, a resident of the subject facility. Resident No. 3 had complained of some pain in the pubic area and her urine was dark in color and had a strong odor. Resident No. 3's temperature at that time was 104.5 degrees. In response to his observance of that condition, Nurse Laurie, accepted as an expert in the field of nursing, and a long-term care nurse of many years experience, administered Tylenol, pursuant to a pre-existing doctor's order for that patient. He also applied cool compresses to the groin area and to the armpits and continued to observe her. Resident No. 3's temperature was again taken at 3:00 a.m. and registered 101.2 degrees. The temperature registered 104 at 4:00 a.m. Mr. Laurie again applied cool compresses and at 4:30 a.m. administered Tylenol. Resident No. 3 was alert and did not complain of any discomfort after the occasion at 12:45 a.m. The resident's temperature at 6:00 a.m., was 100.4 degrees. Mr. Laurie continued with the cool compresses placed in the armpits and in the groin area. On the night of July 2, 2001, Resident No. 3 slept well exhibiting no signs or symptoms of pain or discomfort, other than the occasion at 12:45 a.m. The resident did not appear in any distress. In fact, Resident No. 3 affirmatively stated at 3:00 a.m. that she did not have any complaints. The nursing interventions referenced above appeared to be reducing the temperature and alleviating discomfort. The attending physician for Resident No. 3 was called by Sonja Sellers, an LPN, at 9:00 a.m., the next morning, July 2, 2001. Repeated attempts were made to contact the physician during that day to no avail, until Dr. Chin was finally contacted, or returned a call, at 2:00 p.m., on July 2, 2001, after being called several times by the nursing home staff. Dr. Chin was responsible for this resident since Dr. Arunakul, her attending physician, was on vacation. Dr. Chin agreed to send Resident No. 3 to the hospital. The nursing expert who was the only witness able to directly observe the presenting symptoms of Resident No. 3, during the early morning hours of July 2, 2001, opined that the patient or resident was not in any particular distress during that night and made the nursing judgment, related in his testimony, that it was appropriate to call the doctor the following morning, which was done by 9:00 a.m. The nursing home staff made repeated attempts to contact the doctor during the morning after 9:00 a.m., and was unable to do so until 2:00 p.m. that day. Nurse Laurie's testimony is accepted at the most credible and as the best evidence, since Nurse Laurie is an expert in the field of long-term care nursing and actually observed the resident and rendered treatment or nursing intervention. The fact that Resident No. 3's urine was dark in color and odiferous does not necessarily mean that one observing that condition should opine or conclude that the resident was suffering from an infection such as urosepsis. There are medications or vitamins or other situations that can cause that color in the urine and make it smell differently. The resident did not appear in any particular distress after the complaint of 12:45 a.m., and indeed ate all of her breakfast the following morning, July 2, 2001. The doctor was called so the nursing home staff could inform the doctor that Resident No. 3 had run a fever during the night. It is the regular policy of Marianna to contact the attending physician if a resident exhibits elevated temperature during the night. It is significant also that Resident No. 3's temperature did not increase during the day on July 2, 2001, before she was transported to the hospital for examination, evaluation and diagnosis by the physician. "Tag F-157" states as a requirement that an attending physician of a resident should be contacted if the resident experiences a significant change in physical, mental or psycho- social status or well-being. Resident No. 3, although ill, did not experience a significant change in her physical, mental or psycho-social status during that night, such that an attending physician should have been called during the night. Dr. Arunakul, based on the resident's condition, opined that it would not be expected that a nurse call him or another physician during the night of July 2, 2001. In other words, his testimony reveals that calling the physician on an "immediate" basis as a requirement was satisfied by the nursing home making the call to the physician by 9:00 a.m. the following morning. A Class II deficiency is one where the resident's ability to maintain or reach the resident's highest practicable physical, mental, and psycho-social well being is compromised. Resident No. 3's ability to maintain her highest practicable physical well-being was not compromised by the nursing home staff's failure to contact the attending physician during the eleven to seven shift on July 1 and 2, 2001, but instead contacting the physician, or attempting to, by 9:00 a.m. on the morning of July 2, 2001 (the following shift). F-157 was classified by the agency in the case with a scope and severity of "G." According to the agency's policy and rules, a Level "G" identifies an isolated incident which involved actual harm. It was not demonstrated by the agency's evidence that Resident No. 3 was actually harmed by any action or inaction of Marianna. Indeed, the nursing interventions tried during the early morning hours from 12:45 a.m. through 9:00 a.m., actually reduced the temperature and discomfort of the patient. Beyond that, it was not shown that any permanent harm of any kind resulted to the patient and, in due course, albeit with delays caused by the doctor failing to contact the nursing home staff, after receiving the calls at his office, the patient was diagnosed and rendered appropriate treatment. No harm occasioned by an action or inaction of Marianna was shown to have occurred merely by the fact that the physician was not called (or the attempt made to reach the physician) until 9:00 a.m. on the morning of July 2, 2001.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be issued by the agency for Health Care Administration restoring the standard rating to the Marianna Convalescent Center and that the Administrative Complaint seeking to impose the administrative fine be dismissed. DONE AND ENTERED this 9th day of December, 2002, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with Clerk of the Division of Administrative Hearings this 9th day of December, 2002. COPIES FURNISHED: Jonathan S. Grout, Esquire Goldsmith, Grout & Lewis, P.A. 2180 North Park Avenue, Suite 100 Post Office Box 2011 Winter Park, Florida 32790-2011 Gerald L. Pickett, Esquire Agency for Health Care Administration 525 Mirror Lake Drive, North Sebring Building, Suite 310H St. Petersburg, Florida 33701 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
The Issue Whether Respondent violated Section 464.018(1)(h), Florida Statutes, as alleged in the Administrative Complaint? If so, what disciplinary action should be taken against her?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The Agency is a state government licensing and regulatory agency. Respondent is now, and has been since June 18, 1993, licensed as a practical nurse in the State of Florida. Her license number is PN 1113121. Respondent trained to be a practical nurse at the Sheridan Vocational School (hereinafter referred to as "Sheridan") in Hollywood, Florida. She graduated from Sheridan in January of 1993, the recipient of the Jeanette Lindsey Shirley Nursing Service Award. Respondent was employed by Aventura Hospital and Medical Center (hereinafter referred to as "Aventura") from approximately March of 1993, to January of 1994, when she was terminated as a result of the incident which led to the issuance of the Administrative Complaint that is the subject of the instant case. For the first three months of her employment at Aventura Respondent worked as a GPN (Graduate Practical Nurse). After receiving her nursing license in June of 1993, Respondent was promoted to an LPN (Licensed Practical Nurse) position. She held this LPN position until her termination in January of 1994. Throughout the period of her employment, Respondent was assigned to the hospital's mental health unit. Respondent was a dedicated and loyal employee who, as general rule, got along well with the patients under her care, as well as her coworkers. Not infrequently, she would voluntarily remain on the unit after the end of her shift to make sure that her patients received the care and attention their physicians had ordered. Prior to the incident that resulted in the termination of her employment, Respondent had an unblemished employment record at Aventura. The incident in question occurred on or about January 17, 1994. On the day of the incident Respondent was working the 12 midnight to 8:00 a.m. shift at the hospital. One of the patients under her care that day was B.H. B.H. was an elderly woman receiving treatment for depression. She required the nursing staff's assistance with Activities of Daily Living (ADLs), including dressing. B.H. was a "very difficult" patient. She was generally uncooperative and frequently resisted, with physical force and violence, the nursing staff's efforts to provide her the help and assistance she needed with her ADLs. On the day in question B.H. had a scheduled, early morning appointment to see her attending physician, Dr. Greener. Dr. Greener had given explicit instructions to the nursing staff that B.H. be awakened and dressed before the scheduled appointment. Toward the end of her shift, Respondent went into B.H.'s room to get her ready for Dr. Greener. Respondent was able to awaken B.H., but B.H. refused to get out of bed. Respondent decided to leave B.H. and take care of the other tasks she needed to complete before the end of her shift. When Respondent returned to B.H.'s room it was after 8:00 a.m. Although her shift had ended, Respondent felt an obligation to remain at the hospital and follow through with her efforts to fully comply with the instructions that Dr. Greener had given concerning B.H. Dr. Greener had already arrived at the hospital and was ready to see Respondent. Respondent pleaded with B.H. to cooperate with her. B.H., however, ignored Respondent's pleas and remained in bed. Dr. Greener was a demanding physician who expected the nursing staff to timely comply with his every instruction. He expressed, in no uncertain terms, his disappointment when these expectations were not met. Respondent did not want to disappoint Dr. Greener. She therefore attempted to dress B.H. even though B.H. would not get out of bed. B.H. responded to Respondent's efforts to dress her by kicking, swinging her arms and spitting at Respondent. Despite receiving such resistance, Respondent continued to try to dress B.H. She did call for assistance, however. Todd Sussman, who was employed as a Mental Health Technician at the hospital, was on the unit that morning and responded to Respondent's call for help. When Sussman discovered the nature of the assistance Respondent required, he left B.H.'s room to obtain surgical gloves. Shortly thereafter, he returned to the room wearing such gloves. As Sussman walked back into the room, he saw Respondent, who was still struggling with B.H., slap B.H. in the face and pinch B.H.'s lips together in an effort to prevent B.H. from spitting at her. Sussman helped Respondent attempt to dress B.H. by holding B.H. by the arm. At one point, he let go of B.H. to allow Respondent to remove B.H.'s night shirt. Once her arm was free, B.H. swung it in Respondent's direction and hit Respondent in the face. Respondent reacted by slapping B.H. "fairly hard" on or slightly above the wrist, a reaction that was witnessed by Sussman, as well as another employee of the hospital, Barry Butler, an LPN who had entered the room shortly before B.H. had struck Respondent in the face. Both Sussman and Butler reported to their supervisor what they had observed take place in B.H.'s room that morning. Respondent's employment with the hospital was subsequently terminated based on the information Sussman and Butler had provided. At no time while struggling to dress B.H. on or about January 17, 1994, did Respondent intend to, nor did she actually, harm or injure B.H. Nonetheless, during the struggle (specifically when she purposefully slapped B.H. in the face and on or slightly above the wrist and pinched B.H.'s lips together), 2/ Respondent acted in an unprofessional manner that did not conform with the minimal standards of acceptable and prevailing nursing practice. 3/ The use of such physical force against B.H. was unnecessary and therefore inappropriate. 4/ There were other, safer (and therefore more appropriate) options (of which Respondent should have been aware in light of her training) that were available to Respondent to deal with the difficult situation she faced.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board of Nursing enter a final order finding Respondent guilty of the violation of subsection (1)(h) of Section 464.018, Florida Statutes, alleged in the Administrative Complaint and disciplining her for having committed this violation by fining her $250.00 and placing her on probation (of the type specified in subsection (1)(g) of Rule 59S-8.006, Florida Administrative Code: "[p]robation with specified continuing education courses in addition to the minimum conditions") for a period of eighteen months. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 4th day of January, 1996. STUART M. LERNER, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of January, 1996.
Findings Of Fact The Parties. University is a 180-bed skilled nursing home located in Gainesville, Florida. The facility was licensed by the Department and all 180 beds were Medicaid certified at all times relevant to this proceeding. University's facility is managed by Covenant Care Corporation. The Department is the State agency designated the responsibility for administering Florida's Medical Assistance (Medicaid) Program. Section 409.266, et. seq., Florida Statutes. The Office of Licensure and Certification is the office of the Department responsible for licensing and the certification of nursing homes in Florida. 1989 Annual Survey. The Office of Licensure and Certification (hereinafter referred to as "OLC"), conducted an annual survey of University's nursing home facility for 1989 from February 28, 1989, through March 3, 1989, to determine the extent of University's compliance with federal and state laws. At the conclusion of the 1989 annual survey the Department issued a Statement of Deficiencies and Plan of Correction, Form HCFA-2567 (10-84) (hereinafter referred to as the "Annual Survey Statement"). The Annual Survey Statement was provided to University. A number of deficiencies in the operation of University's facility were noted on the Annual Survey Statement. In relevant part, the deficiencies involved the need for University to improve the manner in which patient rehabilitation care was provided. The Annual Survey Statement did not indicate that University was required to add staff to its facility to correct the deficiencies. The Annual Survey Statement included space for University to indicate how it intended to correct the deficiencies noted by OLC. University completed this portion of the Annual Survey Statement noting how it intended to correct each deficiency and the date by which the deficiency would be corrected. University indicated on the Annual Survey Statement that it would correct the deficiencies by May 12, 1989. University did not indicate that it intended to add staff to its facility in order to correct any deficiency noted on the Annual Survey Statement. As part of its plan of correction, University drafted and adopted a Rehabilitative and Restorative Care Program (hereinafter referred to as the "Care Program"). The Care Program provided for the employment of a "Rehabilitative-Restorative Registered Nurse" and "Rehabilitative-Restorative Certified Nursing Assistant(s)". The Annual Survey Statement with the corrections University intended to make noted on it was submitted to OLC. A copy of University's Care Program was also provided to employees of the Department as part of University's corrective plan. The Department, through OLC, accepted University's corrections and its Care Program. By "accepting" University's corrections and Care Program, OLC agreed that the corrections addressed the deficiencies noted in the Annual Survey Statement. OLC did not, however, inform University that it "approved" of the corrections University indicated it intended to make or the Care Program. May 31, 1989 Survey. On May 31, 1989, OLC personnel surveyed University's facility in response to a complaint the Department had received concerning alleged inadequate certified nursing assistants at University. Certified nursing assistants perform "hands on" rehabilitation work at skilled nursing homes. Rehabilitation work performed by certified nursing assistants includes assisting residents to walk, eat and with other activities of daily living. A Statement of Deficiencies and Plan of Correction (hereinafter referred to as the "May Survey Statement") was issued by OLC as a result of the May 31, 1989, survey. The May Survey Statement was provided to University. The May Survey Statement noted the following deficiencies: NH-106. Review of facility staffing for five of seven days selected at random revealed significant shortages of non-licensed nursing staff as evidenced by but not limited to: Insufficient staff to meet the personal care and hygiene needs of the residents. Insufficient staff to monitor the nutritional needs of the residents ([?] residents with significant weight loss). Insufficient staff to implement the restorative nursing program so as to maximize the optimal level of independence enjoyed by each resident. Ref: 405.1124(c)(B)3; 10D-29.108(4) The overall deficiency of University's facility noted in the May Survey Statement was based upon OLC's determination that, although University had sufficient certified nursing assistants scheduled to work during the seven shifts reviewed, an insufficient number of certified nursing assistants actually reported to work during five of those shifts. This determination formed the basis of OLC's determination that there was "insufficient staff" and not a determination that additional staff needed to be scheduled for work. University indicated in the May Survey Statement that it intended to take the following actions to correct the deficiencies noted by OLC: 5 bonus, recruitment and retention programs established along with the use of nursing pools (see attached). Seven new positions above the required standards established and filled (see attached staffing schedule). New assignment policy assures monitoring of feeding (3 meals a day) 7 days a week. New Rehab. R.N. and five restorative aides now assigned to restorative programs (see attached). The May Survey Statement with the corrections University intended to make noted on it was submitted to OLC. The Department, through OLC, accepted University's corrections. Again, by "accepting" University's corrections, OLC agreed that the corrections addressed the deficiencies noted in the May Survey Statement. OLC did not, however, inform University that it "approved" of the corrections University indicated it intended to make. June 5, 1989, Survey. On June 5, 1989, OLC personnel visited University's facility. As a result of this survey, a moratorium on admissions to University's facility was imposed. University was informed of the moratorium at the conclusion of the June 5, 1989, survey and in a letter from the Department dated June 6, 1989. In the letter of June 6, 1989, University was informed, in pertinent part: This moratorium is being imposed . . . because of the serious deficiencies identified by personnel from the Pensacola Office of Licensure and Certification during a survey conducted on June 5, 1989. These deficiencies include but are not limited to the following: Number of staff insufficient to meet minimum standards. Lack of adequate staff to meet resident needs. Lack of adequate monitoring of changes in residents' conditions. Lack of nutritional monitoring. [Emphasis added]. University and the Department ultimately entered into a Joint Stipulation resolving the issues which gave rise to the moratorium. Pursuant to the Joint Stipulation, the Department rescinded the moratorium effective June 29, 1989. Although the Joint Stipulation did not specifically require that University add staff to its facility, it did provide, in pertinent part, the following: 3. Effective upon signing this stipulation, Respondent [University] shall maintain the minimum staffing standards for licensed and non- licensed nursing personnel to meet the resident care needs. June 22-23, 1989, Survey. The Joint Stipulation called for interim visits to University's facility by OLC. An interim visit was conducted on June 22-23, 1989. A Statement of Deficiencies and Plan of Correction (hereinafter referred to as the "June Survey Statement") was issued by OLC as a result of the June 22-23, 1989, survey. Among other things, OLC noted in the June Survey Statement the following deficiency: NH-106 Progress has been made but "NOT CORRECTED" as evidenced by: Continued insufficient staff to monitor nutritional needs or residents (see F-181) implement restorative nursing program. Ref: 405.1124(c)(b)3 10D-29.108(4) Class III 7-23-89 The June Survey Statement was provided to University. University indicated in the June Survey Statement that it intended to take the following actions to correct the deficiency noted in finding of fact 29: Five Rehab. Aides (in addition to required number of certified aides) are monitoring all meals. In addition to Two new positions of Resident Care Supervisors whose duties include meal monitoring. The June Survey Statement with the corrections University intended to make noted on it was submitted to OLC and was "accepted" by OLC in the same manner that the Annual and May Survey Statements were accepted. Additional Staff at University's Facility. Between May, 1989, and August, 1989, University established the following positions and employed individuals for those positions: 1 Rehabilitation Coordinator 5 Rehabilitation Aides 7 Certified Nursing Assistants 4 Resident Care Supervisors University also employed the services of a nursing consultant and used pooled nursing staff. University incurred the following costs associated with the newly created positions, the pooled nursing staff and the nursing consultant: Rehabilitation Coordinator $ 26,817.78 Rehabilitation Aides -0- Certified Nursing Assistants 121,919.60 Nursing Consultant 25,000.00 Resident Care Supervisors 60,559.38 Pooled Nursing Staff 183,040.00 Total $417,336.76 The Rehabilitation Aide positions were filled with 5 employees who were serving as certified nursing assistants. Medicaid Reimbursement. The method by which Medicaid providers are reimbursed for their services is provided for in the Florida Title XIX Long-Term Care Reimbursement Plan (hereinafter referred to as the "Reimbursement Plan"). The Reimbursement Plan is a "cost-based prospective plan." The rate of reimbursement is determined by calculating a provider's historical costs for a specified reporting period and factoring in an inflation index to estimate the provider's future costs. The provider is then paid a rate of Medicaid reimbursement based upon the projected future costs. In Florida, prospective rates are calculated January 1 and July 1 of each year. During a reimbursement period a providers' actual expenditures may be greater or less than the estimated costs for the period. If actual expenditures are less, the additional amount the provider receives may be kept. If actual expenditures are more, the provider must absorb the difference. The Reimbursement Plan allows providers to request and receive a rate change between reporting periods if certain exceptional circumstances are met. The rate change is referred to as an "interim rate change." The requested rate increase at issue in this case was a request for an interim rate change. Section IV, J.2. of the Reimbursement Plan provides the following concerning requests for interim rate changes: Interim rate changes reflecting increased costs occurring as a result of patient care or operating changes shall be considered only if such changes were made to comply with existing State or Federal rules, laws, or standards, and if the change in cost to the provider is at least $5000 and would cause a change of 1 percent or more in the provider's current total per diem rate. [Emphasis added]. The Department stipulated that the requirements of the Reimbursement Plan that interim rate changes involve a change in cost of at least $5,000.00 and cause a change of 1% or more have been met in this case. Interim Rate Increase. On August 23, 1989, the Controller of Covenant Care Corporation requested a Medicaid interim rate increase from the Department in University's Medicaid funding. This was the first time during 1989 that University requested an interim rate increase. University had not sought approval of an interim rate increase at any time while the surveys conducted during the first 8 months of 1989 were being conducted. Nor had the Department indicated that it would approve a rate increase as a result of its surveys, the deficiencies it found at University's facility or the acceptance of University's plan of correction. The request was reviewed by the Medicaid Cost Reimbursement Analysis section of the Department in consultation with OLC. University requested a rate increase for the $417,336.76 of additional costs incurred by University for additional staff during 1989. This resulted in an increase in per diem of $6.90 per patient day. The rate increase requested by University was very large. If approved, University would have the highest per diem patient care cost of all Medicaid approved nursing homes in the Department's District 3 where University is located. By letter dated October 19, 1989, the Department informed University that it would allow an increase in rate of $1.16 per patient day and that the additional requested increase of $5.74 was denied. The approved increase was effective August 12, 1989. The increase in rate approved by the Department was attributable to 7 new certified nursing assistant positions. The Department was confused during its review of the rate increase request and during the formal hearing of this case about the number of newly established certified nursing assistant positions and rehabilitation aide positions. The Department believed that there were only 7 new positions created. The evidence established that there were a total of 12 newly created positions: 5 rehabilitation aide positions (which were filled by 5 existing certified nursing assistants) and 7 new certified nursing assistant positions. The 7 new certified nursing assistant positions and the 5 certified nursing assistant positions which were vacated by employees filling the 5 new rehabilitation aide positions were filled by new employees. The amounts expended by University for these 5 new rehabilitation aide positions were included with the amounts expended for the 7 new certified nursing assistant positions. I. Standard Imposed by the Department. During the period of time at issue in this proceeding, University's facility met the nursing staff requirements of Rule 10D-29, Florida Administrative Code. The nursing staff requirements of Rule 10D-29, however, are minimum requirements. Nursing home facilities may have to provide nursing staff in excess of the requirements of Rule 10D-29 in order to provide proper resident care. The Department informed University, as a result of the surveys conducted by OLC during 1989, that residents at University's facility were not receiving adequate care. The Department indicated on a number of occasions that inadequate care was being provided because of "insufficient staff." The Department did not, however, inform University specifically that it needed to add staff positions at its facility. When used by OLC, the terms "insufficient staff" can mean that a facility has an insufficient number of employees assigned and hired to work on shifts. "Insufficient staff" may also mean that, although a sufficient number of employees have been assigned and hired to work on shifts, the employees are not properly carrying out their tasks. In the latter instance, required tasks may not be carried out because an insufficient number of the employees who were scheduled to be present were actually at work or because those present were simply not working adequately. When the Department uses the terms "insufficient staff" to mean that an insufficient number of employees were assigned and hired, then it would be appropriate to hire additional staff. When the Department uses the terms "insufficient staff" to mean that required tasks are not being carried out because an insufficient number of employees were present or because those employees present were simply not working adequately, then it would not be appropriate to hire additional staff. In this case the Department did not consistently inform University what it meant by "insufficient staff." In some instances (i.e., the May Survey Statement) the Department did clearly indicate that it meant that, although a sufficient number of employees were assigned and hired to work, an insufficient number of employees actually were at work. On other occasions, however, this was not the clearly expressed intent. The Department's determination that University needed to improve the quality of the care it was providing to its residents and its use of the terms "insufficient staff" were reasonably interpreted by University to mean that University had an insufficient number of employees scheduled to provide the care required by the Department. Therefore, it was reasonable for University to conclude that it needed to increase its staff to some extent to meet the standards imposed upon it by the Department. This finding of fact is consistent with the Department's determination that an interim rate increase based upon an additional 7 certified nursing assistant positions established at University's facility should be granted. The crucial determination in this case is a determination of the extent to which University should have reasonably added staff in response to the Department's surveys. Based upon the weight of the evidence, it was reasonable for University to establish the 5 new rehabilitation aide positions and the 7 new certified nursing assistant positions in response to the Department's findings of deficiencies during its surveys of University's facility during 1989. These positions resulted in a total increased cost of $121,919.60 and a per diem increase of $2.02. Although it may have been good health planning to establish the rehabilitation coordinator position and the 4 resident care supervisor positions, and to hire a nursing consultant and use pooled nursing staff, it was not reasonable for University to conclude that it was being required to take these steps by the Department. Therefore, University did not incur the costs associated with these staffing changes in order to "comply with existing State or Federal rules, laws, or standards " University did not reasonably rely on the Department's findings of deficiencies or any comments or actions of Department employees during 1989, in establishing the rehabilitation coordinator position or the 4 resident care supervisor positions, or in employing the nursing consultant or pooled nursing staff. The $4.88 of increased per diem and the costs associated with these positions should not be reimbursed as part of an interim rate increase.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued by the Department granting University an interim rate increase of $2.02 and denying the remaining $4.88 of interim rate increase requested by University. DONE and ENTERED this 24th day of April, 1990, in Tallahassee, Florida. LARRY J. SARTIN 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 24th day of April, 1990. APPENDIX The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. University's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1. 2 3. 3 4. 4 5 and 7. 5 15 and 17-18. 6 20. 7 22. 8 Not relevant to this proceeding. 9 See 50-58. 10 24. 11 Hereby accepted. 12 27. 13 See 31. 14 See 50-58. 15 11 and 13-14. 16 Testimony is taken out of context. 17 Not supported by the weight of the evidence. 18 See 34. See 49. See 34 and hereby accepted. 21 41. 22 45 and 47. 23 34. 24-25 Hereby accepted. 26-31 Not totally supported by the weight of the evidence. See 50-58. 32 36-41. 33 Not totally supported by the weight of the evidence. See 50-58. The Department's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1-2. 2 3. 3 4-6 and 9. 4 5 and hereby accepted. 5 6-7. 6 7-8. 7 Hereby accepted. 8 9. 9 10. 10 12. 11 14. 12 15. 13 16. 14 11. 15 17-18. 16 18-19. 17 Hereby accepted. 18 20. 19 21-22. 20 43. 21 34 and hereby accepted. 22 23-24. 23 25. 24 25 and 43. 25 27 and 29. 26 42 and hereby accepted. 27 34 and 45. 28 36. 29 37. 30 38. 31 39. 32 Hereby accepted. 33 39. 34 40. 35 39. 36 41. 37-38 Hereby accepted. 39 44. 40-42 Hereby accepted. 43 18-19, 29 and 51-55. 44 47-48 and 55. 45 46. 46 See 51-58. See 57. Hereby accepted. 49 47-48. Copies Furnished To: Grafton B. Wilson, II, Esquire Post Office Box 1292 Gainesville, Florida 32609 Carl Bruce Morstadt, Esquire Chief Medicaid Counsel Department of Health and Rehabilitative Services 1317 Winewood Boulevard Building 6, Room 230 Tallahassee, Florida 32399-0700 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0500
The Issue The issue in this case is whether Respondent is guilty of violating Rule 59S-8.005(1)(e)2, Florida Administrative Code, for administering medications or treatments in a negligent manner and subject to discipline for unprofessional conduct under Section 464.018(1)(h), Florida Statutes. If so, another issue is what penalty should be imposed.
Findings Of Fact In June 1994 Respondent was licensed as a registered nurse, holding license number RN 2740932. Respondent had been licensed as a registered nurse since 1993 and as a licensed practical nurse since 1987. Respondent's license as a registered nurse became inactive June 21, 1995 after she failed to renew it. In the fall of 1993 East Pointe Hospital hired Respondent as a charge nurse in the transitional care unit, which had recently been started. Although Respondent had only recently become licensed as a registered nurse, the hospital hired her based partly on her current licensing and partly on her previous experience as a licensed practical nurse and respiratory therapist. During the weekend of June 24-26, 1994 Respondent worked the 7:00 pm to 7:00 am shift. As a charge nurse Respondent supervised several other nurses, typically licensed practical nurses. The charge nurse and nurses whom the charge nurse supervised sometimes divided up the patients in the unit, but the charge nurse retained supervisory authority over the other nurses and always remained directly responsible for patients with more complex problems. Patient C. P. had recently been transferred to the transitional care unit from the acute care unit. On the evenings in question, C.P. was among the patients for whom Respondent was directly responsible. Several IVs were being administered the evening of June 24 and early morning of June 25. One patient was having problems with an IV pump and his veins. Respondent asked another nurse, who was under Respondent's supervision, to do the accuchecks on the other patients, including C. P. Accuchecks are finger stick glucose monitors. As was the case with C. P., physicians typically order accuchecks every six hours for patients receiving their total nutrition intravenously. The purpose of the accucheck is to ensure that the patient receiving all his nutrition intravenously does not develop low or high blood sugar, which could have very serious implications. The other nurse failed to perform the accuchecks for midnight at the start of June 25 and 6:00 am on June 25. Respondent failed to follow up to ensure that they were done. Respondent's failure to perform the required accuchecks or to check to make sure that the other nurse performed them constitutes the negligent treatment of a patient. A physician had also ordered that C. P. receive antibiotics intravenously every eight hours, at about 6:00 am, 2:00 pm, and 10:00 pm. Petitioner alleges that Respondent failed to administer two consecutive doses. However, nothing in the nurses' notes documents what would have been a material omission, and no one on the nursing staff bothered to contact the physician who had ordered the antibiotics. There is also a reasonable possibility that IV bags bearing dates and times were mixed up so as to preclude a determination of which registered nurse failed to administer IV medication, if in fact two doses of antibiotics were missed. Respondent later admitted not performing the accuchecks, but never admitted failing to administer the IV antibiotics. Petitioner has failed to prove that Respondent failed to administer the IV medications as ordered. The hospital terminated Respondent's employment shortly after the incidents involving C. P. Respondent has since held two temporary nursing jobs and has applied unsuccessfully for 12 other nursing jobs. She now lives with her mother in Virginia where she earns $100-$200 weekly in employment unrelated to nursing. C. P. suffered no injury as a result of the failure to conduct ordered accuchecks and the failure, if any, to administer the prescribed IV. Respondent has not previously been disciplined as a licensed practical nurse or registered nurse.
Recommendation It is RECOMMENDED that the Board of Nursing enter a final order finding Respondent guilty of violating Rule 59S-8.005(1)(e), Florida Administrative Code, and Section 464.018(1)(h), Florida Statutes, for her failure to perform two accuchecks or make sure that another nurse had performed them and issuing a reprimand to Respondent. ENTERED on December 21, 1995, in Tallahassee, Florida. ROBERT E. MEALE 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 21st day of December, 1995. APPENDIX Rulings on Petitioner's Proposed Findings 1-4: adopted or adopted in substance. 5: rejected as irrelevant. 6-12 (first sentence): adopted or adopted in substance. 12 (second sentence): rejected as subordinate and irrelevant. 13-15: rejected as subordinate. 16: rejected as subordinate and irrelevant. 17-18: adopted or adopted in substance. 19-21: rejected as subordinate and recitation of testimony. 22-23: rejected as irrelevant and subordinate. 24: rejected as subordinate. 25: rejected as subordinate and irrelevant. 26-28: adopted or adopted in substance. 29: rejected as irrelevant. Rulings on Respondent's Proposed Findings 1-3 (first sentence): adopted or adopted in substance. 3 (first sentence)-4: rejected as subordinate and irrelevant. 5-6: adopted or adopted in substance, although not as to the identify of the other nurse. 7: adopted or adopted in substance, except that the failure either to perform the accuchecks or ensure that the other nurse did is negligence. 8-14: rejected as subordinate. 15-18: adopted or adopted in substance. COPIES FURNISHED: Laura P. Gaffney, Senior Attorney Agency for Health Care Administration General Counsel's Office Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Robert E. Tardif, Jr. Duncan & Tardif, P.A. P.O. Drawer 249 Ft. Myers, FL 33902 Linda Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Judie Ritter, Executive Director Board of Nursing Daniel Building, Room 50 111 East Coastline Drive Jacksonville, FL 32202
Findings Of Fact Having reviewed the entire record before it, the Board finds that the Findings of Fact as contained in the Hearing Officer's Recommended Order are adequately supported by competent, substantial evidence and hereby adopts those Findings of Fact as its own.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner's application for licensure by examination be GRANTED and that Ann Mary McKay be authorized to take the licensed practical nurse examination. DONE and ENTERED this 9th day of March, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER 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 9th day of March, 1982.
The Issue Whether the Respondent committed the offenses set forth in the Administrative Complaint and , if so, what disciplinary action should be taken.
Findings Of Fact Respondent, Dalia V. Gonzalez, was at all times material hereto, licensed as a registered nurse in the State of Florida, having been issued license number RN 88664-2. On August 16, 1988, Respondent was employed as a charge nurse for the skilled unit portion of a floor at Coral Gables Convalescent Center. The remaining portion of the floor was a long term intermediate care unit with a licensed practical nurse, Ms. Jane Reilly Perkins, serving as charge nurse for said unit. During the change of shifts and between 6:30 a.m. and 7:00 a.m. on August 16, 1988, a threatening argument, over the number of personnel assigned to each portion of the floor, arose between Respondent and Ms. Reilly who was accompanied by another licensed practical nurse. Ms. Reilly is a female of physically imposing stature; therefore, Respondent, reasonably fearing her safety, locked herself in her office and called her supervisor to ask for assistance. Respondent remained locked in her office for approximately two hours awaiting the arrival of her supervisor. During this time, Respondent was in constant contact with the other medical personnel on her floor. Although she was the only registered nurse present, her personal service as a registered nurse was not required at the time nor was she prohibited from giving it had the necessity arisen. When Respondent's supervisor, a registered nurse, arrived, they discussed the situation with Ms. Reilly. During this discussion, Respondent gave her first notice of intent to leave her position. After being informed that if she left, she would lose her position at Coral Gables Convalescent Center, Respondent handed her keys to her supervisor and left the facility not completing her assigned shift. While Respondent was available to her patients, although locked in her office during her shift, she did leave her nursing assignment without notifying her supervisor of her intent to leave within sufficient time to allow substitute arrangements to be made. Respondent's notice was improper Consequently, Respondent acted with unprofessional conduct.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED the a final order be entered reprimanding Petitioner. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 19 day of June 1989. JANE C. HAYMAN 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 Administrative Hearings this 19 day of June 1989. APPENDIX TO RECOMMENDED ORDER CASE NO. 89-325 Petitioner's proposed findings of fact are addressed as follows: Addressed in paragraph 1. Addressed in paragraph 1. Addressed in paragraph 2. Addressed in paragraph 2. Addressed in paragraph 3. Not necessary to result reached. Addressed in paragraph 2. Addressed in paragraph 3. Addressed in paragraph 3. To the extent supported by competent proof, addressed in paragraph 3. Addressed in paragraph 4. Subordinate to the result reached. Subordinate to the result reached. Addressed in paragraph 6. Not supported by competent and substantial evidence. Addressed in paragraph 5. Not supported by competent and substantial evidence. Not supported by competent and substantial evidence. Addressed in paragraph 6. Addressed in paragraph 6. Addressed in paragraph 5. Not supported by competent and substantial evidence. Not supported by competent and substantial evidence. Not supported by competent and substantial evidence. Addressed in paragraph 6. COPIES FURNISHED: Lisa M. Basset, Esquire Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0729 Santiago Pellegrini, Esquire 1570 Northwest Fourteenth Street Miami, Florida 33125 Judie Ritter Executive Director Board of Nursing 504 Daniel Building 111 East Coastline Drive Jacksonville, Florida 32201 Kenneth E. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0729 =================================================================
