The Issue DOAH Case No. 01-3148: Whether the Respondent's licensure status should be reduced from standard to conditional. DOAH Case No. 01-4649: Whether the Respondent committed the violations alleged in the Administrative Complaint dated October 15, 2001, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: AHCA is the state agency responsible for licensing and regulating the operation of nursing home facilities, including ensuring that nursing homes are in compliance with criteria established by Florida statute. Chapter 400, Part II, Florida Statutes (2001). AHCA is authorized in Section 400.23(8), Florida Statutes, to impose administrative fines on nursing home facilities that fail to meet the applicable criteria. Florence Treakle conducted surveys of Life Care on May 9, 2001, and June 12, 2001, as a result of complaints received by AHCA. Because the surveys were conducted as a result of complaints received by AHCA, Ms. Treakle was the only AHCA surveyor conducting the surveys. The results of the surveys were reported on a form identified as "HCFA-2567," which is generated by the federal Department of Health and Human Services, Health Care Financing Administration, and is commonly referred to as a "Form 2567." Several deficiencies were identified in the Form 2567s completed for the May 9, 2001, and June 12, 2001, surveys, which were each cited to a federal "tag number" designated as "F" tags,1 to the applicable provision of the Code of Federal Regulations, and to the applicable Florida administrative rule. Each deficiency was also classified under Florida law as either a Class II or a Class III deficiency, and a factual narrative was included to support each deficiency cited. May 9, 2001, survey.2 The Form 2567 for the May 9, 2001, survey included a citation for a Class III deficiency under F-279, "Resident Assessment," and Section 483.13(c), Code of Federal Regulations. This citation involved the care provided to residents L.D. and A.M. and was supported by the assertion that, "[b]ased on observation and record review[,] . . . the facility did not have comprehensive care plans in place for healing of the residents [sic] pressure sores." A care plan is a tool used by the nursing staff to ensure that the resident is getting consistent care and is compiled from data included in a resident's Comprehensive Assessment. An entry in a care plan includes the identification of a problem, a goal for resolving or improving the problem, and the approaches, or means, to be used to reach the goal. Resident L.D. L.D. came into Life Care with pressure ulcers, including a Stage IV pressure ulcer3 on his coccyx, which is located at the bottom of the backbone. L.D. was receiving wound care both at Life Care and at a wound care center pursuant to a physician's order dated April 4, 2001, which contained the following requirement: "[O]ffload[] all boni [sic] prominences as much as possible." In accordance with this order, L.D. was turned and repositioned in bed every two hours, and he was provided with a special, pressure-relieving mattress. L.D. was a very quiet person, but he had no cognitive impairment and was able to communicate his needs to staff. L.D.'s wife visited him every day; she usually arrived in mid-morning and left in mid-afternoon, and she returned for a few hours in the evening. Both L.D. and his wife made it clear to the Life Care staff that L.D. wanted to sit in a wheelchair as much as possible so that he could move around the facility, take walks outdoors with his wife, and have his meals sitting up. L.D. used a special, high-backed wheelchair that he provided for his use while he was a resident of Life Care. The chair reclined so that pressure on his coccyx could be relieved somewhat, and Life Care furnished him a gel cushion for his wheelchair, also to help relieve pressure on his coccyx. On May 9, 2001, Ms. Treakle observed L.D. sitting in his wheelchair for over two hours, from 10:20 a.m. until 1:00 p.m. She found nothing in L.D.'s Care Plan regarding the amount of time L.D. would be permitted to sit in a wheelchair. Resident A.M. A.M. entered Life Care with a Stage III pressure ulcer on his left buttock. A.M. was receiving wound care at Life Care in accordance with the approaches included in his Care Plan. A.M. was not cognitively impaired, and he could communicate his needs to staff. His granddaughter and one year-old great-grandson visited him every day, and he enjoyed sitting outside in a wheelchair with his great-grandson on his lap. A.M. also liked to spend most of his time outside his room, moving himself around the facility in a wheelchair. Life Care provided a gel cushion for his wheelchair to help relieve pressure on A.M.'s buttock. On May 9, 2001, Ms. Treakle observed A.M. sitting in a wheelchair from 2:00 p.m. until 3:30 p.m. A.M.'s Care Plan did not contain an entry establishing the amount of time A.M. would be permitted to sit in a wheelchair. Summary. AHCA has failed to establish by even the greater weight of the evidence that the Care Plans developed for L.D. and A.M. were deficient. AHCA failed to present credible evidence of the contents of L.D.'s Care Plan,4 but the evidence is uncontroverted that L.D.'s wound care orders contained approaches for healing his pressure sores. A.M.'s Care Plan included several approaches for healing his pressure sores, and AHCA has not alleged that the required wound care was not provided to either L.D. or A.M. Rather, AHCA's specific complaint regarding the Care Plans of L.D. and A.M. is that there was no approach specifying the amount of time L.D. and A.M. would be permitted to sit in their wheelchairs. This complaint is based exclusively on the expectations of Ms. Treakle. Ms. Treakle expected to find this approach in the Care Plans because, in her opinion, pressure on the coccyx and buttocks can never be completely relieved when a resident is sitting,5 and any pressure on a pressure ulcer impedes healing because it decreases blood flow to an area. Accordingly, Ms. Treakle "would expect good practice would [sic] be for the Care Plan to indicate how long the resident was going to sit on this pressure sore."6 AHCA did not, however, submit any evidence of a standard of care requiring that the duration of time a resident can sit in a wheelchair be included as an approach in the care plan of a resident with a pressure ulcer, especially when the resident is alert, mobile, and able to communicate with staff. June 12, 2001, survey. The Form 2567 for the June 12, 2001, survey cited Life Care for three deficiencies: A Class II deficiency was cited under F-224, "Staff Treatment of Residents," and Section 483.13(c)(1)(i), Code of Federal Regulations, involving the care provided to residents E.G. and N.D. and supported by the assertion that "[b]ased on observation, record review and interview[,] the facility did not monitor and supervise the delivery of care and services." A Class III deficiency was cited under F-279, "Resident Assessment," and Section 483.20(k), Code of Federal Regulations, supported by the assertion that, "[b]ased on review of the care plan for resident #1 [N.D.], . . . the facility did not complete a comprehensive care plan that was revised to reflect all fall risks." A Class II deficiency was cited under F-281, "Resident Assessment," and Section 483.20(k)(3)(i), Code of Federal Regulations, supported by the assertion that, "[b]ased on citations at F 224[,] F 279 and F 324[,] the facility nursing staff did not provide care that met professional standards for residents #1 [N.D.] and #2 [E.G.]." Resident E.G. Diabetes management. Pertinent to these proceedings, E.G. was diagnosed with insulin-dependent diabetes; his blood sugar generally ranged from 150 to 270, which is in the mid-range, although it once reached 348. E.G. was alert, oriented, self-ambulatory, and somewhat grouchy. E.G.'s brother visited him about three times each week, and E.G. often left the facility with his brother for a meal. He did not adhere strictly to his diet, but often ate fried foods when he went out with his brother, and he kept a supply of orange juice in the small refrigerator in his room. Both fried foods and orange juice are contraindicated for diabetics. Pursuant to physician's orders, E.G.'s blood sugar was to be monitored four times a day, before each meal and at bedtime,7 and insulin was to be administered on a sliding scale, in an amount to be determined based on his blood sugar level. This order was transcribed on E.G.'s Medication Record, which, for each day of the month, included spaces for the time, the blood sugar level, the insulin coverage (the dosage expressed in number of units administered), and the site of injection, together with the initials of the staff member providing the care. Life Care staff also maintained glucose monitoring sheets, which included spaces for the date, the time, the blood sugar level, the dosage of insulin administered, and the initials of the staff member providing the care. There is no documentation in E.G.'s Medication Records, his glucose monitoring sheets, or the Nurses Notes that his blood sugar was checked at 11:30 a.m. on June 7, 2001. When his blood sugar was checked at 4:30 p.m. on June 7, it was 317, which is substantially higher than usual. For the 6:30 a.m. checks on June 2, 3, and 8, 2001, E.G.'s blood sugar level was documented and there are notations that insulin was given, but the dosages and sites of injection were not noted; E.G.'s blood sugar at the 11:30 a.m. checks on these days was either virtually the same as, or less than, the levels noted at the 6:30 a.m. checks. For the 6:30 a.m. check on June 4, 2001, E.G.'s blood sugar level was documented, but there is no notation that insulin was given; E.G.'s blood sugar at the 11:30 a.m. check on June 4 was less than the level noted at the 6:30 a.m. check. Wound Care. On June 5, 2001, a dermatologist removed a lesion from the top of E.G.'s left hand. The dermatologist prescribed Bactroban ointment, which was to be applied to the wound twice a day. Wound care instructions were included with the prescription, which provided as follows: Leave bandage on for 24 hours only without getting wet. Remove bandage after 24 hours and then do not apply another bandage. Leave the area open and clean the wound twice daily with warm water. Pat the wound dry and then apply Bactroban Ointment. Bactroban Ointment is a topical antibiotic that can be purchased without a prescription. Continue to do this until the wound has healed. Normal bathing can be resumed after the bandage is removed. Some redness and swelling are normal in the immediate area of the wound. If the wound develops significant redness, tenderness or a yellow drainage, please contact this office immediately . . . . A physician's order dated June 5, 2001, was written for E.G. for "Bactroban oint to wound on L hand, 45gm." The order did not state how often the ointment was to be applied or include the other instructions accompanying the prescription. The order was transcribed on E.G.'s Treatment Record on June 5, 2001, but the entry provided only that Bactroban ointment was to be applied to the wound once a day. There is nothing in E.G.'s Care Plan, Treatment Record, or Medication Record to document that his wound was treated between June 5 and June 12, 2001, nor was there any indication in E.G.'s chart that anyone signed for the Bactroban ointment. Marion Neuhaus, the Director of Nursing at Life Care at the times pertinent to these proceedings, observed E.G.'s wound every day because E.G. came to her office to show her the wound and other bumps and scrapes he accumulated as he walked around the facility. Ms. Neuhaus noted that the wound was scabbed, that there was a pink area around the wound, and that there was no swelling or drainage. Treatment was begun on the wound on June 12, 2001, and it healed without any complications. Summary. AHCA has established clearly and convincingly that Life Care did not provide E.G. with the wound care that was ordered by his physician. AHCA has, however, failed to establish by even the greater weight of the evidence that the healing process of E.G.'s wound was compromised by this lack of treatment. Ms. Treakle observed E.G.'s wound on June 12, 2001, and noted that it was scabbed and red around the edges. Ms. Treakle concluded that this redness alone indicated that the wound was infected. This conclusion is undermined by the notation in the wound care instructions included with E.G.'s prescription from the Dermatology Center that "[s]ome redness and swelling are normal in the immediate area of the wound." Furthermore, Ms. Treakle did not follow E.G.'s wound after June 12, 2001, and the evidence presented by Life Care that E.G.'s wound healed in a timely manner is uncontroverted. AHCA has established clearly and convincingly that there are several omissions in the documentation of Life Care's monitoring of E.G.'s blood, but these omissions do not reasonably support the inference that Life Care failed to monitor E.G.'s blood sugar and administer insulin on these dates as required by the physician's orders; rather, Life Care's failure on these occasions was inadequate documentation, not inadequate care. AHCA has, however, established clearly and convincingly that Life Care did not monitor E.G.'s blood sugar as required by his physician's order at 11:30 a.m. on June 7, 2001; this inference may reasonably be drawn based on the lack of documentation and E.G.'s elevated blood sugar at the next check at 4:30 p.m. Ms. Treakle assumed that E.G. suffered actual harm as a result of this omission because, in her view, hyperglycemia, or elevated blood sugar, always causes damage to the body; Ms. Treakle could not, however, identify any specific harm to E.G. caused by this one omission. AHCA has failed to establish by even the greater weight of the evidence that E.G.'s physical well-being was compromised by Life Care's failure to monitor his blood sugar on this one occasion. Resident N.D. Fall from Shower Chair.8 At the times pertinent to these proceedings, N.D. was a 79 year-old woman who had been a resident of Life Care since October 26, 1999. According to the assessment of N.D. included in the Minimum Data Set completed on May 3, 2001, N.D. suffered from Alzheimer's disease, had long- and short-term memory problems, and was severely impaired and unable to make decisions; as of June 12, 2001, N.D. was almost entirely dependent on staff for all of the activities of daily living. N.D.'s Care Plan for November 6, 2000, which was updated with handwritten notes, reflects that she had poor safety awareness. The Interdisciplinary Notes maintained by Life Care reflect that, on June 5, 2001, a nurse observed N.D. leaning forward in her wheelchair at breakfast; this was the first mention of this behavior in N.D.'s chart. Dr. Gil, N.D.'s physician, included a notation in the Physician's Progress Notes for June 8, 2001, that he observed N.D. leaning forward but was unable to assess her abdomen because of her anxiety. The Interdisciplinary Notes reflect that Dr. Gil visited N.D. on Saturday, June 9, 2001, and that she was again leaning forward in her wheelchair, "almost falling out of [her] chair." Dr. Gil ordered an ultra-sound of N.D.'s abdomen and a "lap buddy while in w/c [wheelchair] to prevent falls." Dr. Gil's order was noted in the Interdisciplinary Notes for June 9, 2001, as well as on a physician's order form signed by Dr. Gil on June 10, 2001. According to Life Care's written policy, physician orders are to be transcribed into a patient's care plan, treatment plan, or medication administration record, depending on the nature of the order. Dr. Gil's order for a lap buddy had not been transcribed into N.D.'s November 6, 2000, Care Plan at the time Ms. Treakle conducted her survey on June 12, 2001.9 A lap buddy was used on N.D.'s wheelchair beginning on the morning of June 11, 2001. On the evening of June 11, 2001, CNA Nova Coleman was caring for N.D. Ms. Coleman had been working for Life Care for only a short time, and N.D. was one of the first patients Ms. Coleman cared for after finishing her initial training. Ms. Coleman was, however, not an inexperienced CNA, having previously worked at another nursing home. At approximately 8:30 p.m., Ms. Coleman and another CNA had just finished showering N.D., and N.D. was sitting in a shower chair; her hair had been toweled dry, and she was dressed in her night clothes. The second CNA left the room, and Ms. Coleman, who had been standing in front of N.D., moved to the back of the shower chair so she could push N.D. out of the shower area. As she moved around the chair, N.D. pitched forward and fell face-first onto the floor. Ms. Coleman tried to grab N.D. to stop her from falling, but N.D. toppled over so quickly that Ms. Coleman could not reach her. N.D. suffered severe bruises to her face and a laceration on her lip as a result of the fall, but she did not break any bones. Ms. Coleman had not been advised prior to the fall of N.D.'s tendency to lean forward in her chair. N.D.'s tendency to lean forward in her wheelchair should have been entered in her Care Plan, together with the requirement that a lap buddy was to be used whenever she was in a wheelchair. In addition, Ms. Coleman should have been briefed on N.D.'s condition, including her tendency to lean forward, before Ms. Coleman was allowed to care for N.D. Although a lap buddy was not ordered for the shower chair and, in fact, could not appropriately have been used on a shower chair, the former Nursing Director of Life Care conceded that there were other means by which N.D.'s fall could have been prevented.10 The former Nursing Director also conceded that the failure to brief Ms. Coleman on N.D.'s condition probably contributed to the fall from the shower chair. Summary. AHCA has established clearly and convincingly that Life Care failed to provide N.D. with the services necessary to prevent her from falling from the shower chair and injuring herself, that Life Care failed to provide services that met professional standards, and that Life Care failed to revise N.D.'s Care Plan to include the risk of her falling forward while seated and the approaches Life Care would take to prevent her from injuring herself. Life Care conceded that the Care Plan should have included N.D.'s tendency to lean forward while seated and Dr. Gil's order of June 9, 2001, that N.D. be provided with a lap buddy when she was in the wheelchair. Life Care also conceded that the CNA should have been briefed on N.D.'s condition before she was assigned to care for N.D. Life Care further conceded that, even though Dr. Gil did not specifically prescribe a restraint to be used in the shower chair, measures could have been taken to ensure that N.D. did not fall out of the shower chair. AHCA has also established clearly and convincingly that Life Care's failure to provide proper care to N.D. resulted in her suffering significant injuries to her face. Although the injuries were to soft tissue and ultimately healed, N.D.'s physical well-being was adversely affected. In addition, AHCA has established clearly and convincingly that, even had N.D. not fallen and suffered injuries, the failure to include in N.D.'s Care Plan her tendency to lean forward and its failure to transcribe the physician's orders regarding the lap buddy into the Care Plan could have caused a lapse in the care provided to N.D. that could have possibly resulted in injury.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order Sustaining the reduction in the licensure status of Life Care Center of Port Saint Lucie to conditional for the period extending from June 12, 2001, to August 17, 2001; and Imposing an administrative fine in the amount of $5,000.00. DONE AND ENTERED this 15th day of May, 2002, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 15th day of May, 2002.
The Issue Whether or not Petitioner may impose an administrative fine on Respondent DOS of Crystal River, ALF, LLC d/b/a Crystal Gem ALF (Crystal Gem) in the amount of $2,000.00 based upon two cited State Class II deficiencies pursuant to Section 429.19(2)(b), Florida Statutes (2007).
Findings Of Fact Petitioner AHCA is the state agency responsible for licensing and evaluating assisted living facilities (ALFs), pursuant to Sections 408.802(14) and 429.07, Florida Statutes. Respondent Crystal Gem is an ALF located in Crystal River, Florida. Resident No. One, hereafter referred to as “the resident,” resided in Respondent ALF from April 5, 2007, to April 10, 2007. The resident had fallen in her bedroom in the home she shared with her daughter, son-in-law, and grandson at approximately 2:00 a.m. on the morning of April 4, 2007. By all accounts, prior to this accident, the resident was active, orally communicative, capable of performing all activities of daily living (ADLs), and contributed to the household by doing familial household work. She had suffered a single episode of dementia in the past. She was known to drink large quantities of water but did not eat a lot at any one meal. She loved to eat and regularly ate between meals. After the fall, the resident had gotten back into bed by herself, but had been in a lot pain. Her family assisted her to walk out of the house to the family car. They took her to Citrus Memorial Hospital, where she walked, with assistance, into the emergency room. She was placed in a wheelchair and completed her own admission papers. Hospital records from April 4, 2007, indicate the resident was 84 years old; had a heart valve replacement; and had been fitted with a pacemaker. She weighed 91 pounds and was underweight. She was suffering from osteoporosis, arteriosclerosis, and chronic obstructive pulmonary disease (COPD). The hospital records noted abrasions and tenderness on her left back. X-rays were taken of her ribs. The preliminary report of the hospital’s diagnostic imaging department indicated non-displaced fractures to her left eighth and ninth ribs. The records do not indicate that any other x-rays were taken at that time. The resident’s right hip, where a fracture was later found (see Finding of Fact 56), was not x-rayed on April 4, 2007. The resident was sent home from the hospital with a prescription of the narcotic, Hydrocodone (a generic for Vicodin), for pain relief. The prescription was later filled. Exiting the emergency room on April 4, 2007, the resident walked, with assistance, back to the family car for transport home and walked into the family home the same way. The family had planned to leave on April 5, 2007, for an out-of-town family celebration. Due to the possibility that the resident’s ribs might break further and puncture her lungs, the hospital doctors had recommended that she not travel by car with her family. After consultation with the resident’s personal physician, weighing all options, a tour of the facility by the daughter, and upon good recommendations, the family elected, with the resident’s consent, to place the resident in Respondent’s ALF for respite care while they were out of town. By all accounts, the resident was in some discomfort, but functioned normally in the family home all of April 4, 2007, during which time she continued to do familial household chores, and on the morning of April 5, 2007, before departing for Respondent’s facility. On both days, she was not confused; was able to bathe herself; and had no diminished intake of either food or liquids. The resident’s daughter escorted her to Respondent facility on the morning of April 5, 2007. (Stipulated) The two women arrived at the facility about 10:00 a.m. on April 5, 2007, and during an extensive tour of the first floor (both inside and outside), the resident was able to ambulate and did not complain of pain. The facility’s Resident Assessment Data Collection Form, filled out upon her admission into the facility, stated the resident was ambulatory with one- person assist and full weight-bearing, with bruising and discomfort on the right side. It further noted that she needed assistance in transferring and in ambulating. The facility's Observation Log for that day described her as "extremely small and frail with poor balance and needs to be monitored closely during ambulation." The Observation Log is used by Respondent to record each resident's condition and activities as observed by staff. Upon the resident’s admission, Respondent facility was provided only with the resident’s April 4, 2007, hospital discharge instructions and hospital emergency department after- care instructions. These indicated “fall/rib fracture,” and did not specify which ribs were fractured. Nothing on them related to either hip. The hospital discharge instructions suggested the resident be checked by her own physician in two to three days and that she go to her doctor or the emergency room if pain or shortness of breath were getting worse, for persistent coughing, for fever or chills, or for abdominal pain, vomiting, severe weakness or fainting. They suggested she beware of falling again and report to her doctor if she experienced dizziness, severe weakness, inability to get up after a fall, abdominal pain, vomiting, diarrhea, passing black or bloody stools, headache, vision problems, or numbness or weakness in one arm or leg. It was anticipated by all concerned that the resident would only remain in Respondent’s facility for five days, and would only require personal observation as necessary, assistance with her ADLs, monitoring of her pain, and assistance taking her medications. However, the family had selected Respondent’s ALF, in part, because it was near a hospital in case the resident’s condition worsened or an emergency of some kind arose while they were out of town. In addition to the new prescription for Hydrocodone, the resident previously had been prescribed a number of medications unrelated to her fractured ribs. Among these were Lorazepam, Coumadin, Captopril, and Trazodone. Hydrocodone is a controlled substance, as is Lorazepam. The Lorazepam, an anti-anxiety drug like Activan, is a sedative. It had been prescribed to be taken twice a day, morning and evening. The Hydrocodone had been prescribed to be taken “eight hours prn,” or “every eight hours as needed.” Respondent is not a skilled nursing facility, so its personnel cannot legally administer prescription medications. Respondent’s written policy and procedures for facility personnel provide for them to assist residents with self-administration of drugs, including special procedures for assistance with controlled substances. Under these procedures, controlled substances remain under lock and key and are to be listed on a separate drug inventory sheet called a “Controlled Substance Countdown Record” (CSCR), and the actual pills are to be counted before and after each shift. Patty Clair, a Patient Care Advisor at Respondent’s facility, testified that she knew that facility personnel could “assist” a resident in taking his/her medications by bringing the medicine to the resident and placing that resident’s pills on the resident’s hand, but that the resident was responsible for actually moving the pill to his/her mouth. Respondent facility also maintains a Medication Observation Record (MOR), which must be updated immediately each time a resident takes any medication or refuses a medication. Petitioner Agency specifies by rule the information that the MOR must contain. At Respondent’s facility, the Coumadin was incorrectly charted to eliminate the Sunday, April 8, 2007, dosage, and the Hydrocodone was incorrectly transcribed on the MOR as “every eight hours,” instead of “eight hours prn.” Review of the resident's MOR reveals that there is no documentation that the following medications were taken or refused by the resident as prescribed on the respective dates: Coumadin, two tablets on Sunday, April 8, 2007. Captopril, one tablet on Thursday, April 5, 2007, and two tablets on Friday, April 6, 2007. Trazodone, two tablets on Thursday, April 5, 2007, and two tablets on Friday, April 6, 2007. (Stipulated) During the period April 5, through April 10, 2007, the CSCR for Hydrocodone indicates that five tablets were taken from the resident's supply of Hydrocodone, but the MOR only documents self-administration of three tablets. (Stipulated) During the period April 5, 2007, through April 10, 2007, the CSCR for Lorazepam indicates that nine tablets were taken from the resident's supply of Lorazepam. The MOR for that same period documents the self-administration of nine tablets, but does not document self-administration at 8:00 p.m. on April 8, 2007, or 8:00 a.m. on April 9, 2007. It does indicate self-administration on April 10, 2007, at 8:00 a.m. and 8:00 p.m. (Stipulated) Other than the Lorazepam, there is no documentation that the resident self-administered any other medication on the morning of April 10, 2007, which is the day she left the facility. (Stipulated) Patty Clair did not make any writing on the CSCR, even though her name appears on the CSCR for assisting the resident with Lorazepam, on April 6, 7, and 10. (Stipulated) At hearing, Ms. Clair acknowledged assisting the resident with self-administration of her Lorazepam on April 6, 7, and 9, 2007. Ms. Clair initialed the MOR showing that she had helped the resident take her Lorazepam on April 6, 7, and 9, 2007. However, Ms. Clair did not sign the CSCR for April 6, or 7, 2007, even though her name and initials appear on the CSCR for April 6, and her name appears on the CSCR for April 7, 2007. At no time did Ms. Clair give anyone permission to place her initials on the CSCR for the Lorazepam. Ms. Clair did not sign the CSCR for assisting the resident with her Lorazepam on April 10, 2007, at 8:00 a.m. because she did not even work at the facility on April 10, 2007. The resident was discharged from Respondent facility during the morning of April 10, 2007, between 8:30 a.m. and 9:00 a.m. (Stipulated) Because the resident left the facility between 8:30 a.m. and 9:00 a.m. on April 10, 2007, it would have been impossible for the resident to have self-administered the Lorazepam at 8:00 p.m. that day, as was indicated on the CSCR. Also, by that hour, she had been hospitalized. See, infra. Christine Erick, the facility’s resident care coordinator, testified that because the CSCR sheet was not consistent with the actual countdown of the medication, she went back to the MOR to find out who had assisted the resident with her medication, and finding it had been Patty Clair, signed Ms. Clair’s name on the CSCR, with her own initials. Her actions in this regard were contrary to the facility’s record- keeping procedure. Ms. Erick speculated that the dates apparently got “messed up” so that the resident had actually received her last Lorazepam at the facility on April 9, 2007, at 8:00 p.m. Mr. Booker, Agency surveyor and expert nurse, conceded that one explanation that fits with the number of missing Lorazepam tablets (nine), and the number of signed self-administrations of Lorazepam (nine), is that the resident got all her Lorazepam doses but the wrong dates went on the records. He further stated that because the two types of records did not match, no one can be sure what happened. With regard to the Lorazepam, he testified that there were no more missing doses than the doses which were indicated to have been given, and that the doses which were indicated to have been given to the resident to self- administer were in accordance with her prescription. According to Mr. Brooker, all that can be said, based on Respondent facility’s records for Hydrocodone is that something was not given but not that too much was given. The facility’s written record in no way indicated an overdose of Hydrocodone. It is Respondent facility’s protocol that if a resident falls, the incident must be documented and the facility administrator, the resident’s doctor (health care provider), and the resident’s family must be notified. A “follow-up” document is also required to be made out 24 hours later. Respondent’s protocol concerning any injury to a patient is similar, and if the fall/other injury is severe enough, the facility personnel must call 911 for medical aid and transport of the resident to a hospital. There is no reason for facility employees to fail to report a resident’s fall. This facility had all it needed to contact this resident's doctor. It was not established that the resident ever fell in Respondent’s facility. However, on the morning of Sunday, April 8, 2007, the resident was having difficulty walking. She was unsteady on her feet and complained of pain consistent with what the facility knew about her fractured ribs, that from her admission she had occasionally complained of discomfort or pain on her right side. (See Finding of Fact 13). She had decreased gait and balance and was brought to the facility’s dining room for breakfast in a wheelchair. These observations were recorded in the Observation Log by "C.E," Ms. Erick. On April 8, 2007, the resident ate only twenty-five per cent of her breakfast, but that was not unusual. There is no discernable pattern for her consumption of food while in the facility.3/ There is no evidence that the resident lost weight in Respondent’s facility. On April 8, 2007, Ms. Erick telephoned the resident’s daughter in Key West and notified her that her mother had suffered a change of ambulation and was having difficulty walking, with decreased gait and balance. Further content, duration, and sequence of the exchange during this telephone call are in dispute, particularly as to whether Ms. Erik told the daughter that the resident had right hip pain or informed her about the use of a wheelchair, and whether the daughter instructed the facility to take the resident to a hospital if necessary, but it is undisputed that ultimately, Ms. Erick suggested to the daughter, and the daughter agreed, that they give the pain medication, which the Observation Log states had been self-administered at breakfast-time, a chance to work and talk later in the day. The daughter did not request, and Ms. Erick did not offer, to put the resident on the phone at the time of this initial phone call so that the daughter could get the resident’s assessment of the situation. However, Ms. Erick and the daughter concur that the daughter called back that evening to inquire about her mother, and that during the daughter’s return phone call, Ms. Erick told the daughter that the resident had no current complaints of pain and the daughter said she would pick her mother up on Tuesday. On April 8, 2007, Ms. Erick initialed a single long comment in the Observation Log covering Findings of Fact 39 and 40. Following Ms. Erick's April 8, 2007, Observation Log entry, there is a later, April 8, 2007, entry in a different handwriting, signed by someone else. The entry includes that the resident complained of slight pain in the rib area and stated that she was a little stiff. It further states that the resident ate 75 per cent of her meal and received nourishment via a snack; that the daughter was told of pain; that the daughter stated she would be in “tomorrow” to pick up her mother, and that pain meds were again provided to the resident. Whether the person who signed this second notation for April 8, 2007, actually spoke with the daughter is unclear, because that writer did not testify, and both Ms. Erick and the daughter are clear that only two telephone conversations took place between them, but this later April 8, 2007, notation in the Observation Log does confirm that April 8, 2007, is the only day that the resident ingested two "pain" tablets of Hydrocodone. Based upon the evidence as a whole, including the candor, demeanor, and reasonableness of the respective testimony of Ms. Erick and the daughter, and particularly the contemporaneous Observation Log in its entirety, it is not credible that pain specifically in the right hip was complained- of by the resident on April 8. Also, the next day, April 9, 2007, the Observation Log shows a notation of no complaints of pain from the resident, only stiffness, and this notation is also signed by a staff member other than Ms. Erick. In summary, the Observation Log shows that "Hydrocodone prn for pain" is the pain medication, and that on April 5, one pain pill was given; on April 7, one pain pill was given; and on April 8, two pain pills were given. The CSCR shows two, and the MOR shows only one, Hydrocodone pill was given on April 8, 2007. Respondent did not contact the resident's health care provider during the period beginning when she entered the facility on April 5, 2007, and ending when she was discharged from the Crystal Gem facility on April 10, 2007. (Stipulated) Breakfast at the facility is served in the dining room at approximately 7:00 a.m. Residents are dressed before they go to the dining room, but the Observation Log for April 10, 2007, contains no entry concerning the resident's breakfast. On April 10, 2007, when the daughter arrived between 8:30 and 9:00 a.m., the resident was lying on her bed, fully clothed. Ms. Erick assisted the resident into a wheelchair, and the daughter took the resident to her car, later returning the wheelchair to the facility. The daughter was not assisted in this endeavor by any facility employee. The daughter testified that someone in the parking lot assisted her with getting the resident into her car. She described the resident as pale, weak, unresponsive, and confused during this period. Facility protocol calls for Ms. Erick to count out each of a resident’s medications with the family member who signs out the resident and to have the family member sign for the pills being returned. Although neither Ms. Erick nor the daughter has any memory of counting out the pills, there is a notation in the Observation Log by another staff person for that day, stating that medications were given to the daughter. Because of this contemporaneous notation, and because the daughter signed for the pills returned to her at the bottom of the CSCR, it is more likely than not that the pills were counted out by another staff member and the daughter, than that they were not counted out at all and were already bagged in the resident’s luggage, as testified-to by the daughter. This CSCR sign-out sheet shows that from April 5-10, 2007, five Hydrocodone tablets were used and nine Lorazepam tablets were used. (See Findings of Fact 25-26.) On April 10, 2007, during the 25-minute drive home from Respondent’s facility, the daughter was unable to converse with the resident, who was moaning and unresponsive. Upon arriving at the home, the daughter realized that she could not lift or carry the resident to the house. At approximately 11:00 a.m. April 10, 2007, the daughter appeared at the door of her next door neighbor’s home, asking for assistance. The neighbor is a registered nurse. The neighbor went with the daughter and found the resident sitting on the walkway between the car and the family home, several feet from the car. The resident was sleepy, difficult to move, and was unable to stand. The women moved the resident into her bedroom inside the house, using a rolling computer chair. The resident was put to bed. She was sleepy, but not comatose.4/ The daughter denied administering any medication to the resident that day. The nurse/neighbor stayed for about 30 minutes, comforting the daughter, and then left for work. She advised the daughter to wake the resident in about an hour, get her up and to the bathroom, and give her something to drink so as to prevent dehydration. At 1:49 p.m. on April 10, 2007, the daughter made a 911 call. A highly trained and skilled paramedic, who arrived by ambulance at 2:01 p.m., testified that the resident had no dehydration, had normal blood sugar, and indicated no pain, but her oxygen level was low. The resident was sleepy, but responsive to speech. The paramedic rated the resident as being 14 on the Glasgow coma scale, 15 being normal. Upon receiving information concerning the resident’s medications, it appeared to the paramedic that either Hydrocodone or Lorezepam was causing the resident to be over- sedated. The resident’s oxygen level began to drop en route to the hospital. Narcon is a drug used to counteract narcotics. Lorezapam does not respond to Narcon, but Hydrocodone does. The paramedic administered one Narcon “push,” without much result, at 2:29 p.m. A second Narcon “push” was administered at 2:37 p.m. At that point, the resident became alert and her "stats" went up. At no point did the paramedic ever conclude that the resident’s situation was “life threatening.” The resident was delivered to the hospital emergency room 40 minutes after leaving the family home. Hospital records for April 10, 2007, at 5:10 p.m., show the resident as "normotensive" (with normal blood pressure),5/ dehydrated, and with a right hip fracture. They further show that her blood had an abnormal level of Lorazepam by 510 nanograms per milliliter, a very low abnormality. The lab did not rate this Lorazepam level as "critical" or "high, but listed it only as "abnormal." Subsequent to surgery to correct the broken hip, the resident died at an unspecified date. On or about October 31-November 1, 2007, the daughter notified Petitioner Agency of suspicions she had concerning her mother’s care at Respondent facility April 5-10, 2007. The Agency sent Mr. Brooker to investigate. Mr. Brooker classified Respondent’s failure to notify the resident’s health care provider of her change of condition on April 8, 2007, as a Class II violation, because hospital records on April 10, 2007, showed a fractured hip. He classified the facility's record-keeping inaccuracies as a Class II violation, because Hydrocodone and Lorazepam were involved; because abnormal levels of Lorazepam were found in the resident’s blood on April 10, 2007; and because of the serious harm drugs such as Hydrocodone and Lorazepam can cause. His assessment is not contrary to the Agency’s charging pattern statewide.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order finding Respondent not guilty of a Class II deficiency under Count I of the Administrative Complaint and not guilty of a Class II deficiency under Count II of the Administrative Complaint. DONE AND ENTERED this 31st day of October, 2008, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS 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 31st day of October, 2008.
