Conclusions THE PARTIES resolved all disputed issues and executed a Settlement Agreement. The parties are directed to comply with the terms of the attached settlement agreement. Based on the foregoing, this file is CLOSED. DONE and ORDERED on this the 7™ day of Toverbes , 2011, in Tallahassee, Florida. LA. V4 fr ZABETH DUDEK, INTERIM SECRETARY Agency for Health Care Administration 1 Filed December 12, 2011 2:02 PM Division of Administrative Hearings A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. Copies furnished to: Andrew Sheeran, Esquire Agency for Health Care Administration (Interoffice Mail) Andrew S. Ittleman, Esquire Fuerst Ittleman, PL 1001 Brickell Bay Drive, 32™ Flr. Miami, Floria 33131 (U.S. Mail) Robert E. Meale Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 Mike Blackburn, Chief, Medicaid Program Integrity Finance and Accounting HQA CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to Ti ot Seve bs 20196 the above named addressees by U.S. Mail on this the {2 day of 20186 Agency Clerk State of Florida Agency for Health Care Administration 2727 Mahan Drive, Building #3 Tallahassee, Florida 32308-5403 (850) 412-3630
Conclusions Having reviewed the administrative complaint dated November 5, 2010, attached hereto and incorporated herein (Ex. 1), and all other matters of record, the Agency for Health Care Administration (“Agency”) has entered into a Settlement Agreement (Ex. 2) with the other party to these proceedings, and being otherwise well-advised in the premises, finds and concludes as follows: ORDERED: 1. The attached Settlement Agreement is approved and adopted as part of this Final Order, and the parties are directed to comply with the terms of the Settlement Agreement. 2. Respondent shali pay an administrative fine in the amount of $1,000.00. The administrative fine is due and payable within thirty (30) days of the date of rendition of this Order. 3. Checks should be made payable to the “Agency for Health Care Administration.” The check, along with a reference to this case number, should be sent directly to: Agency for Health Care Administration Office of Finance and Accounting Revenue Management Unit 2727 Mahan Drive, MS# 14 Tallahassee, Florida 32308 4. Unpaid amounts pursuant to this Order will be subject to statutory interest and may be collected by all methods legally available. 5. Each party shall bear its own costs and attorney’s fees. 6. The above-styled case is hereby closed. DONE and ORDERED this 74 day of May, ,20L/, in Tallahassee, Leon County, Florida. l Eliza rh Dude Secretary Agency for th Care Administration A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY, ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW OF PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. Copies furnished to: Tria Lawton-Russell Olivinne Williams Assistant General Counsel Olivinne’s In-Home Care, Inc. Agency for Health Care 3153 N.W. 114" Avenue Administration Coral Spring, Florida 33065 8333 NW 53 Street, Suite 300 (U. S. Mail) Miami, Florida 33166 (Interoffice Mail) Michael Tomlin, Esq. Attorney for Respondent Janice Mills DeMahy, Labrador, Drake, Agency for Health Care Payne & Cabeza Administration 150 Alhambra Circle 2727 Mahan Drive, MS #3 Coral Gables, Florida 33134 Tallahassee, Florida 32308 (U.S. Mail) (Interoffice Mail) Finance & Accounting Hon. Patricia M. Hart Agency for Health Care Administrative Law Judge Administration Division of Administrative Hearings Revenue Management Unit The DeSoto Building 2727 Mahan Drive, MS #14 1230 Apalachee Parkway Tallahassee, Florida 32308 Tallahassee, Florida 32399-3060 (Interoffice Mail) CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of this Final Order was served on the above-named person(s) and entities by U.S. Mail, or the method designated, on this the of Lt , 20¢/ . Agency for Health Care Administration 2727 Mahan Drive, Building #3 Tallahassee, Florida 32308-5403 (850) 412-3630
The Issue Whether, based upon a preponderance of the evidence, the Agency for Health Care Administration (AHCA) lawfully assigned conditional licensure status to Harbour Health Center for the period June 17, 2004, to June 29, 2004; whether, based upon clear and convincing evidence, Harbour Health Center violated 42 Code of Federal Regulations (C.F.R.) Section 483.25, as alleged by AHCA; and, if so, the amount of any fine based upon the determination of the scope and severity of the violation, as required by Subsection 400.23(8), Florida Statutes (2004).
Findings Of Fact Based upon stipulations, deposition, oral and documentary evidence presented at the final hearing, and the entire record of the proceeding, the following relevant findings of fact are made: At all times material hereto, AHCA was the state agency charged with licensing of nursing homes in Florida under Subsection 400.021(2), Florida Statutes (2004), and the assignment of a licensure status pursuant to Subsection 400.23(7), Florida Statutes (2004). AHCA is charged with the responsibility of evaluating nursing home facilities to determine their degree of compliance with established rules as a basis for making the required licensure assignment. Additionally, AHCA is 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. These federal requirements are made applicable to Florida nursing home facilities pursuant to Florida Administrative Code Rule 59A-4.1288, which states that "[n]ursing homes that participate in Title XVIII or XIX must follow certification rules and regulations found in 42 C.F.R. §483, Requirements for Long Term Care Facilities, September 26, 1991, which is incorporated by reference." The facility is a licensed nursing facility located in Port Charlotte, Charlotte County, Florida. Pursuant to Subsection 400.23(8), Florida Statutes (2004), AHCA must classify deficiencies according to the nature and scope of the deficiency when the criteria established under Subsection 400.23(2), Florida Statutes (2004), are not met. The classification of any deficiencies discovered is, also, determinative of whether the licensure status of a nursing home is "standard" or "conditional" and the amount of administrative fine that may be imposed, if any. Surveyors note their findings on a standard prescribed Center for Medicare and Medicaid Services (CMS) Form 2567, titled "Statement Deficiencies and Plan of Correction" and which is commonly referred to as a "2567" form. During the survey of a facility, if violations of regulations are found, the violations are noted and referred to as "Tags." A "Tag" identifies the applicable regulatory standard that the surveyors believe has been violated, provides a summary of the violation, sets forth specific factual allegations that they believe support the violation, and indicates the federal scope and severity of the noncompliance. To assist in identifying and interpreting deficient practices, surveyors use Guides for Information Analysis Deficiency Determination/Categorization Maps and Matrices. On, or about, June 14 through 17, 2004, AHCA conducted an annual recertification survey of the facility. As to federal compliance requirements, AHCA alleged, as a result of this survey, that the facility was not in compliance with 42 C.F.R. Section 483.25 (Tag F309) for failing to provide necessary care and services for three of 21 sampled residents to attain or maintain their respective highest practicable physical, mental, and psychosocial well-being. As to the state requirements of Subsections 400.23(7) and (8), Florida Statutes (2004), and by operation of Florida Administrative Code Rule 59A-4.1288, AHCA determined that the facility had failed to comply with state requirements and, under the Florida classification system, classified the Federal Tag F309 non-compliance as a state Class II deficiency. Should the facility be found to have committed any of the alleged deficient practices, the period of the conditional licensure status would extend from June 17, 2004, to June 29, 2004. Resident 8 Resident 8's attending physician ordered a protective device to protect the uninjured left ankle and lower leg from injury caused by abrasive contact with the casted right ankle and leg. Resident 8 repeatedly kicked off the protective device, leaving her uninjured ankle and leg exposed. A 2.5 cm abrasion was noted on the unprotected ankle. The surveyors noted finding the protective device in Resident 8's bed but removed from her ankle and leg. Resident 8 was an active patient and had unsupervised visits with her husband who resided in the same facility but who did not suffer from dementia. No direct evidence was received on the cause of the abrasion noted on Resident 8's ankle. Given Resident 8's demonstrated propensity to kick off the protective device, the facility should have utilized a method of affixing the protective device, which would have defeated Resident 8's inclination to remove it. The facility's failure to ensure that Resident 8 could not remove a protective device hardly rises to the level of a failure to maintain a standard of care which compromises the resident's ability to maintain or reach her highest practicable physical, mental or psychosocial well-being. The failure to ensure that the protective device could not be removed would result in no more than minimal discomfort. Resident 10 Resident 10 has terminal diagnoses which include end- stage coronary artery disease and progressive dementia and receives hospice services from a local Hospice and its staff. In the Hospice nurse's notes for Resident 10, on her weekly visit, on May 17, 2004, was the observation that the right eye has drainage consistent with a cold. On May 26, 2004, the same Hospice nurse saw Resident 10 and noted that the cold was gone. No eye drainage was noted. No eye drainage was noted between that date and June 2, 2004. On June 3, 2004, eye drainage was noted and, on June 4, 2004, a culture of the drainage was ordered. On June 7, 2004, the lab report was received and showed that Resident 10 had a bacterial eye infection with Methicillin Resistant Staphylococcus Aureus (MRSA) bacteria. On June 8, 2004, the attending physician, Dr. Brinson, referred the matter to a physician specializing in infectious disease, and Resident 10 was placed in contact isolation. The infectious disease specialist to whom Resident 10 was initially referred was not available, and, as a result, no treatment was undertaken until a second specialist prescribed Bactrim on June 14, 2004. From June 8, 2004, until June 14, 2004, Resident 10 did not demonstrate any outward manifestations of the diagnosed eye infection. A June 9, 2004, quarterly pain assessment failed to note any discomfort, eye drainage or discoloration. In addition to noting that neither infectious control specialist had seen Resident 10, the nurses notes for this period note an absence of symptoms of eye infection. Colonized MRSA is not uncommon in nursing homes. A significant percentage of nursing home employees test positive for MRSA. The lab results for Resident 10 noted "NO WBC'S SEEN," indicating that the infection was colonized or inactive. By placing Resident 10 in contact isolation on June 8, 2004, risk of the spread of the infection was reduced, in fact, no other reports of eye infection were noted during the relevant period. According to Dr. Brinson, Resident 10's attending physician, not treating Resident 10 for MRSA would have been appropriate. The infectious disease specialist, however, treated her with a bacterial static antibiotic. That is, an antibiotic which inhibits further growth, not a bactericide, which actively destroys bacteria. Had this been an active infectious process, a more aggressive treatment regimen would have been appropriate. Ann Sarantos, who testified as an expert witness in nursing, opined that there was a lack of communication and treatment coordination between the facility and Hospice and that the delay in treatment of Resident 10's MRSA presented an unacceptable risk to Resident 10 and the entire resident population. Hospice's Lynn Ann Lima, a registered nurse, testified with specificity as to the level of communication and treatment coordination between the facility and Hospice. She indicated a high level of communication and treatment coordination. Dr. Brinson, who, in addition to being Resident 10's attending physician, was the facility's medical director, opined that Resident 10 was treated appropriately. He pointed out that Resident 10 was a terminally-ill patient, not in acute pain or distress, and that no harm was done to her. The testimony of Hospice Nurse Lima and Dr. Brinson is more credible. Resident 16 Resident 16 was readmitted from the hospital to the facility on May 24, 2004, with a terminal diagnosis of chronic obstructive pulmonary disease and was receiving Hospice care. Roxanol, a morphine pain medication, had been prescribed for Resident 16 for pain on a pro re nata (p.r.n.), or as necessary, basis, based on the judgment of the registered nurse or attending physician. Roxanol was given to Resident 16 in May and on June 1 and 2, 2004. The observations of the surveyor took place on June 17, 2004. On June 17, 2004, at 9:30 a.m., Resident 16 underwent wound care treatment which required the removal of her sweater, transfer from sitting upright in a chair to the bed, and being placed on the left side for treatment. During the transfer and sweater removal, Resident 16 made noises which were variously described as "oohs and aahs" or "ows," depending on the particular witness. The noises were described as typical noises for Resident 16 or evidences of pain, depending on the observer. Nursing staff familiar with Resident 16 described that she would demonstrate pain by fidgeting with a blanket or stuffed animal, or that a tear would come to her eye, and that she would not necessarily have cried out. According to facility employees, Resident 16 did not demonstrate any of her typical behaviors indicating pain on this occasion, and she had never required pain medication for the wound cleansing procedure before. An order for pain medication available "p.r.n.," requires a formalized pain assessment by a registered nurse prior to administration. While pain assessments had been done on previous occasions, no formal pain assessment was done during the wound cleansing procedure. A pain assessment was to be performed in the late afternoon of the same day; however, Resident 16 was sleeping comfortably. The testimony on whether or not inquiry was made during the wound cleansing treatment as to whether Resident 16 was "in pain," "okay," or "comfortable," differs. Resident 16 did not receive any pain medication of any sort during the period of time she was observed by the surveyor. AHCA determined that Resident 16 had not received the requisite pain management, and, as a result, Resident 16’s pain went untreated, resulting in harm characterized as a State Class II deficiency. AHCA's determination is not supported by a preponderance of the evidence. In the context that the surveyor considered what she interpreted as Resident 16's apparent pain, deference should have been given to the caregivers who regularly administered to Resident 16 and were familiar with her observable indications of pain. Their interpretation of Resident 16's conduct and their explanation for not undertaking a formal pain assessment are logical and are credible.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding: The facility's failure to secure the protective device to Resident 8's lower leg is not a Class II deficiency, but a Class III deficiency. The facility's care and treatment of Residents 10 and 16 did not fall below the requisite standard. The imposition of a conditional license for the period of June 17 to June 29, 2004, is unwarranted. The facility should have its standard licensure status restored for this period. No administrative fine should be levied. DONE AND ENTERED this 3rd day of June, 2005, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of June, 2005. COPIES FURNISHED: Karen L. Goldsmith, Esquire Goldsmith, Grout & Lewis, P.A. 2180 North Park Avenue, Suite 100 Post Office Box 2011 Winter Park, Florida 32790-2011 Eric Bredemeyer, Esquire Agency for Health Care Administration 2295 Victoria Avenue, Room 346C Fort Myers, Florida 33901 Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308 William Roberts, Acting General Counsel Agency for Health Care Administration Fort Knox Building, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308
Findings Of Fact THE PROPOSAL PROCESS Prior to 1986, all HMOs had to be federally qualified to do business with the State of Florida. That requirement was subsequently changed by the Secretary of Administration who decided that any state licensed HMO could enroll state employees. As a result, the number of HMOs participating in state enrollment jumped from 21 to 64 and there was no one in DOA to oversee this increase. It became obvious that some limitation had to be imposed on the number of HMOs with whom state enrolled employees could do business. As a result, in 1987, the Department of Administration proposed to the Florida Legislature that the method for choosing health care providers for state employees be changed. At the time, approximately 115,000 state employees were enrolled in the State Health Plan. Of that number, approximately 27,000 were enrolled in HMO's leaving 98,000 in indemnity plans. Many of these latter employees had no option to select HMO coverage since in 40 counties in the state, no HMO option was available. DOA proposed to the Legislature to go to a competitive bid process for this service with the goal in mind of reducing the overall cost of health care both to the State and to the employee. The competitive bid, by reducing the number of HMOs providing the service, would help achieve that goal. Another long-term goal was to get all health care programs, including the indemnity plans, into a managed system. This would not, however, include a preferred provider program (PPO). The Legislature enacted Chapter 87-156, Laws of Florida, effective October 1, 1987, which amended Section 110.123(3)(d), Florida Statutes, to add: "2. Effective January 1, 1988, the Department of Administration shall, by rule, contract with health maintenance organizations to participate in the state group health insurance plan through the competitive bid process based on cost, service area, plan benefits, and accessibility. Effective January 1, 1988, all employees participating in the state group health insurance plan, irrespective of whether or not the member participates in a health maintenance organization, shall be subject to the same total premium, regardless of the state or employee's share." DOA thereafter contracted with the Frank B. Hall Co., a consultant firm, which produced the first draft of the Request for Proposal, (RFP), in July, 1987. The Department staff thereafter changed and added to the draft, and after consulting with and securing input from some HMOs, otherwise unidentified, came up with a final draft which was approved by the Secretary. Consistent therewith, on July 31, 1987, DOA issued "Bid No. 88-05", a Request For Proposals For Health Maintenance Organization Coverage. The RFP indicated a pre-submission conference would be held on August 12, 1987, and proposals must be received no later than August 28, 1987. The contemplated date of award was September 14, 1987, and the contract was anticipated to be effective January 1, 1988. Objectives of the procurement, as seen by DOA, generally to meet the benefit objections of the department and to provide high quality benefits and services to state employees, were specifically indicated in Section II of the RFP as: "A proactive approach to cost containment, including an emphasis on aggressive claims management, utilization review and superior statistical reporting. Quality medical care which encourages health promotion, disease prevention, early diagnosis and treatment. Stability in the financial structure of offered health plans. Professional, high quality service in all administrative areas, including claims processing, enrollment, membership services, grievances, and communications. Competitive premium rates which take into account the demographics and, if appropriate, the claims experience of State employees. as well as to: Have each county or contiguous group of counties be considered one service area. Award no more than two contracts per service area; however, the awards will be based on the HMO's ability to respond to the needs of employees and on accessibility by employees. Have reciprocal agreements between locations if an HMO has multiple service areas. For example, an employee covered dependent living in Gainesville, should be provided similar services. Enter into a two year, non-experience rated contract. A provision will be included tying renewal action at each of the two renewals to the Consumer Price Index (CPI) for medical care services. This will become part of the contract." A proposer was defined as "qualified" under Section III if it was licensed by the Department of Insurance pursuant to Part II of Chapter 641, Florida Statutes. Under subsection C, each proposer was required to submit: Form PUR 7033, properly completed and signed. The completed Questionnaires Requirement Section (with questions answered in the same order as appearing on the form). The completed cost proposal forms. The completed Statement of Compliance on P47. Documentation in support of the above." In subsection N, the department provided: "Proposals are to be submitted only on the forms and formats provided in this RFP. All exhibits requested must be submitted with your proposal along with answers to all questions contained in this RFP. In Section IV of the RFP, the department provided the award would be in the form of a 24 month contract to be effective January 1, 1988 and the department reserved the right to renew the contract subject to the same terms and conditions of the original contract for two additional one year periods. Evaluation criteria were outlined in Section IX of the RFP and included: Premium cost. Extensiveness of Service Areas - by county and/or contiguous counties. NOTE: The State's objective is to award no more than two contracts per services area; however, the awards will be based on the HMO's ability to respond to the needs of employees and on accessibility by employees. Plan Benefits as follows: Covered services Limitations and exclusions Co-payments, deductible and coinsurance features Range of providers including specialists and number of hospitals Out of service area coverage Grievance procedures Accessibility as follows: Reciprocal agreements - Provider locations Number of primary care physicians and specialists, in relation to membership. Completeness of proposals. No information was provided in the RFP as to the relative importance of price and other evaluation criteria, as required by Section 287.012(11), Florida Statutes." Section VI of the RFP listed the minimum benefits that must be provided, and also required a complete list of all other services intended to be provided for each service area. Section X posed forty-nine questions including such items as the proposer's license status, corporate structure, reserving practices, reinsurance contracts, service area, employee membership and staff, hospital affiliations and other care facilities, physician lists, management information, and statistical information. There was also a request for the submittal of audited financial statements for the two prior fiscal years and the 1st quarter of 1987. By an undated addendum to the RFP, a fiftieth question requested brochure comparison information on specified proposed services and copayments or deductibles to be used by the various HMOs. Cost proposals submitted in a specific format were called for in Section XI. At the pre-bid conference for representatives of the various proposer HMOs, held on August 12, 1987, Mr. Nye informed them that the two criteria of cost and benefits would be weighed on an equal basis. However, Mr. Nye and his staff changed the weights for several categories thereafter. He instructed the proposers to quote a specific rate for the first year of the multi-year conract, as described above, and a percentage of increase or decrease for each of the succeeding years, but noted that the state would evaluate cost solely on the basis of the first year premium. Mr. Nye also indicated an award would be made to two HMOs per service area, based on the receipt of the highest number of points awarded on the bid evaluation. In response to a specific inquiry, Mr. Nye clearly stated benefits and costs would be weighted higher than other factors. At that point in time, no decision had been made as to how to award actual points for each category, however. THE PROPOSERS Eleven proposals were submitted prior to the August 28, 1987 deadline. Proposers included Tampa Bay, Petitioner herein; Humana, Health Alliance, Pru- Care, and Health Options, all intervenors herein; and Florida 1st Health Plan, Physician's Health Plan of Florida, AV-MED Health Plan, Cigna Health Plan of Florida, Healthwin, Inc., and MetLife Healthcare Network, all of whom either failed to take part herein or withdrew after filing. Tampa Bay is a state licensed and federally qualified HMO which was purchased by Equicor in December, 1986. Equicor is a joint venture between Equitable Life Assurance and Hospital Corporation of America. Its service area includes Hillsborough, Pinellas, Pasco, and Hernando counties in which it claims 47,229 members, of whom 2,175 are state employees, retirees or dependents. Health Options, which submitted two proposals, is a for-profit subsidiary of Blue Cross/Blue Shield of Florida, operating as an HMO since 1984. Its service area includes Hillsborough, Pinellas, and Pasco counties in which it claims 6,734 members, of whom 335 are state employees. It is an IPA model HMO which contracts with individual physicians on a pre- negotiated fee schedule. The member's designated primary care physician directs the patient's care and refers to specialists when necessary. Humana Health Plan is a subsidiary of Humana, Inc., which got its Florida and federal licenses on June 1, 1987. Its service area includes Hillsborough, Pinellas, and Pasco counties in which it claims 21,564 members, of whom 286 are state employees. It is an IPA model HMO similar to Health Options. Pru-Care being involved herein for the limited purpose of protesting the award and not in support of its own candidacy, particulars pertinent to its makeup, service area, and membership are not now relevant. THE EVALUATION PROCESS According to the procedure drawn up by Mr. Nye and his staff, a team of three evaluators would evaluate each proposal for a service area and submit his or her evaluation forms to Mr. Nye who would enter the data into the computer. While the law requires each proposal be evaluated by three separate evaluators, it does not say how the evaluation is to be done. Some evaluators used in this case were Donna Yates, a personnel technician III, Kathy Gilbert, a personnel aide, and Nancy M. Rabess, who participated in the second evaluation. The others were not mentioned. Mr. Nye, assisted by Ms. Marie Walker, an HMO administrator in Mr. Nye's office, trained all the evaluators for the seven service areas in a seminar designed to instruct them on how they would assess points. They were advised to assign a raw point score to each section of every response and to make notes as to why they were assigning points as they did. After the evaluation, Mr. Nye could not and did not overrule the evaluations. He only recorded scores assigned by the evaluators and corrected math errors prior to entering the results in the computer along with the weights to be given each factor. These weights were not discussed with either the secretary or Mr. Hall. Mr. Nye, who decided upon the weights, discussed them only with his staff. He was familiar with the program and was comfortable with it. He believes it resulted in a good weighting analysis. The first evaluation and its resultant computer rankings was completed by September 11, 1987, and the results were sent by memo to the department's counsel that day for legal review. At this point, with the analysis done and the rankings reached, the contract could have been let upon the approval of the Secretary, prior to September 14, 1987. However, for reasons unknown to Mr. Nye, no action was taken until late in September, 1987. In the interim, Mr. Nye advised the secretary several times that the award was late. When all the evaluation was done, the weights assigned, and the computer applications run, the rankings of the Proposers for the Tampa Bay Area were: #1 - Health Options Plan 5 - 67.015 pts. #2 - Tampa Bay Health Plan - 65.49 pts. #3 - Pru-Care - 62.23 pts. #4 - Health Options Plan 4 - 59.08 pts. #5 - Av-Med - 59.04 pts. #6 - Humana Hillsborough - 55.945 pts. #7 - Humana Pinellas - 55.915 pts. #8 - Cigna Low - 54.25 pts. #9 - Humana Pasco - 54.235 pts. These scores are, according to Nye, close, when compared with evaluations done in the other service areas. Errors, then, become more critical the closer the scores are. Finally, at a meeting held in late September, 1987, the Secretary advised Mr. Nye that the initial evaluations were too subjective and needed to be corrected to make them more objective. Advice to this effect may have come from the Assistant General Counsel who indicated that in the first evaluation there were no guidelines as to how many points would be awarded for any one area and the individual evaluators had all come up with different point totals. In addition, the Secretary was concerned about the financial soundness of some HMO proposers and whether they could continue to provide appropriate service throughout the contract term. As a result, each HMO which submitted a proposal was furnished with the process and format for approval of its rates by the Department of Insurance. Mr. Nye also checked with the Department of Insurance to determine the financial soundness of the proposers and had their rates evaluated for soundness by an actuary there. Results indicated that most providers have shown net operational losses for the last few years, but this appears to be symptomatic of conditions in the HMO field in Florida during the period. All of the rates were certified by the actuary at the Department of Insurance. Mr. Nye was instructed by the Secretary to have second evaluations conducted, which was done. At this point, Mr. Nye made a unilateral decision to increase the weight factor on costs from 2.5 (which it had been in the first evaluation) to 3.5, while leaving the weight factor on benefits at 2.5. This decision was not communicated to any of the proposers or to the Secretary prior to the second evaluation and analysis. However, the Secretary was made aware of the change after she was presented with the analysis of the second evaluation and prior to her making her decision on the award. This was sometime after September 23, 1987. The training given to the evaluators for the second evaluation was also scanty. Several of the original evaluators were replaced because of unavailability. They were told to look at what was proposed and establish, if possible, what information was factual. Points were to be awarded only on those items which were factually established. Though this may appear nebulous, Mr. Nye is convinced it did away with any dispute. Points were also awarded for completeness. If the question was answered, it received full points. No evaluation was made of the detail of the answer. When the second evaluation was completed, Mr. Nye again checked the math, ran the information through the computer for rankings, and forwarded the results to the Secretary on October 6, 1987. The package was reviewed by the General Counsel, his assistant, and the Secretary, all of whom indicated they felt the evaluation was fair. Even after this, however, there were several meetings and discussions regarding the reasons for and legal ramifications of Mr. Nye's recommendations, and the Secretary made her decision based on the information presented by Nye. This did not include any new or additional facts relative to proposers. The Secretary's selection was made on November 9, 1987. Mr. Nye emphasizes that the second evaluations were made of the original submissions without supplementation, and that no additional information was requested of or submitted by the proposers. Any discussions he had with the Secretary or her staff regarding the procurement dealt with the number of HMOs which could be awarded a contract, not with who the selectee should be. When the results of the second evaluation were scrutinized, it appeared that several errors had been made in the process as regards the submission of Health Options, Pru-Care, and Humana. Health Options did not receive the correct number of points for the hospital deductible, receiving 10 points instead of the appropriate 8. Humana received 5 more points than it should have because of its outpatient deductible, and Pru-Care was penalized 2 points because the wrong information was picked up in one area. When these errors were corrected the scores were changed as follows: Humana (combined) went from 69.315 pts. to 69.214 pts. Health Options went from 67.015 pts. to 66.952 pts. Pru-Care went from 62.23 pts. to 62.30 pts. Tampa Bay's points remained constant at 65.49. The first points cited as to each proposer refer to its original points on the second evaluation, not the first. In light of the above, even after the correction, the change was slight and had no effect on the rankings of the HMOs in question. Mr. Nye contends, supported by Ms. Walker, that the individuals selected to do the evaluations were fully qualified to do so and were trained sufficiently to do the job. He asserts they had ample time to carefully do the job, and while it was a priority project, no deadline was set for completion. No one expressed to them any feelings of being rushed. The testimony of some evaluators reflects a somewhat different story, however. Ms. Donna Yates, a Personnel Technician III for DOA, was contacted for the first time in August, 1987 to attend a meeting of selected evaluators, others of whom she recognized to be personnel technicians as well. At this meeting, they were given copies of the evaluation form, instructed to carefully examine it, and told to utilize one form for each bidder. Ms. Yates was assigned to the Tampa Bay Area. Ms. Yates had no prior experience in HMO evaluation though she had one prior experience in bid evaluation, and did not feel qualified to do the job even after the minimal instructions she received. However, after reviewing the first proposal, she felt more comfortable with the process. Nonetheless, her unfamiliarity with the process and the subject matter is apparent from her discussion of the term, "additional benefits", an area of evaluation. She indicated she would have awarded an additional 10 points for each service provided beyond the list of required services, as opposed to a total of 10 points for any additional service. She did not, however, have the list of required benefits available to her at the time of the evaluation, so her award of points in that area must be suspect. In addition, she does not know what the statutory requirements were for exclusion of and limitations on organ transplants and cannot recall if she was even told what they were. She also cannot recall what, if anything, she was told about the completeness of the proposals, nor does she recall any discussions about it. During the first evaluation, each evaluator worked independent of the others, arriving at his or her own point assessment, and no opportunity was given to compare results. Ms. Yates felt somewhat rushed. When completed, each evaluator's forms were taken to the supervisor's office and turned in. During the second evaluation, for which she was again called, the three evaluators worked together, discussing the proposal answers, and arriving at a resolution of questions by joint re- reference to the proposal. She received no instructions from anyone that the three evaluators in a service area should arrive at the same answers. In the group in which she worked, any disagreements were usually resolved through discussion and unanimous agreement reached. The second evaluations were on new forms which made no reference to the first evaluation. She did not go back and check her work for errors before turning the forms in to Mr. Nye though she completed the evaluation forms for the three service areas to which she was assigned, (Tampa Bay, Orlando, and Pensacola), in one day. By her own admission, though she did not feel rushed in the second evaluation, Ms. Yates, by this time, was sick of the process and completed it as quickly as possible. Ms. Gilbert and Ms. Rabess confirm Ms. Yates' testimony. Ms. Gilbert participated in only the first evaluation and Ms. Rabess in only the second. Ms. Gilbert received some instructions prior to her evaluation, but not much. She did, however, feel qualified to do the job and did not feel rushed. Ms. Rabess relates she received a considerable amount of instruction from Mr. Nye at an hour-long meeting before her evaluations but cannot remember what it included. Having never done a bid evaluation before, she nonetheless felt qualified to do it this time and was comforted by the fact she could ask Ms. Yates or Ms. Gilbert, with whom she was working as a team, if she had any questions. When asked at the hearing how an HMO works, however, she could not say nor could she describe the main benefits of such an organization. It is obvious that this witness, who served as an evaluator, was totally unable to understand the RFP or what she was doing. She could not do the calculations of premium costs nor could she remember, less than four months later, what she or the others did, and can state little more than that they all worked together. From the above, it becomes clear that while the method of evaluation may have been well thought out, it's implementation through the use of totally unqualified and untrained personnel was faulty and could not help but result in a flawed evaluation both times it was done. The form used in the second evaluation was designed to evaluate the four basic categories required by law to be considered. The first is premium cost and the evaluator was to insert this figure from the cost sheet provided by each HMO in its response to the RFP which provided that the family rate could not exceed 2.5 times the individual rate. The evaluator was to perform the calculation to insure that requirement was met. The evaluator next assigned a point score to the proposal in that area. The Department provided the evaluator with a mean value which was assigned a point score of 5. Rates above or below the mean were assigned points from 0 to 10 depending on how far above or below the mean the rate was. If below the mean, the proposer got a higher point assignment and vice-versa. Retiree rates, affected somewhat by Medicare, were also considered with DOA providing the mean cost. The second section of the form dealt with service area and called for the HMO to get 1 point for each full county served. In the third section, plan benefits were examined. Sub- section (a), dealt with minimum coverage and the evaluator was referred to page 12, paragraph 2 of the RFP which listed the required services and asked the proposer to list any additional services offered. Sub-Section (b) referred to limitations and exclusions, one of which related to organ transplants. Here the evaluator was referred to that portion of the proposal/RFP where the HMO was to state its position on organ transplants. The evaluator was to award 10 points if organ transplants were done and to deduct 2 points for each limitation or exclusion. As to co-payments and coinsurance, the latter is usually expressed in a percentage of total cost of a service or group of services. A deductible requires a patient to pay a certain amount before any charges are paid by the carrier. A co-payment is the amount the patient pays each time he or she sees a doctor. Coinsurance is usually capped by a stop-loss; a deductible is automatic; and a co-payment can be capped several ways, such as percent of premium, set figure, or the like. In this procurement, the HMOs were to provide a list of deductibles and co-payments and the evaluator was to look at the co- payment for physician visit and ER visit and add or subtract points to or from the 5 point mean of $25.00 co-payment. As to hospital co- payments, the evaluator was to initially award 10 points and subtract 2 points for each $100.00 of co-payment. In the case of Health Options, for example, the providers had a $100.00 per day co-payment not to exceed $500.00. This limit, in Nye's opinion, was the same as a $100.00 co- payment and the provider should have lost only 2 points. In evaluating the co-payment for prescription drugs of $3.00 per prescription, even if 4 prescriptions were filled the same day, the evaluator should have treated that as being one co-payment deduction. The evaluators were also to look at the hospitals provided by the HMO and identify them as either "full service" or "other". As to skilled nursing benefits, either they were offered or they were not. If offered, the proposer was awarded 10 points. If not, it received none. The proposer was also to receive one point for each type of physician provided. Out of area coverage is self-explanatory. If the patient would be covered outside his or her own service area in an emergency, the evaluator was instructed to determine how quickly the service charge would be reimbursed either to the patient or the provider. Accessibility, the ability of the employee to receive service, was considered. Evaluators looked at regional agreements to see if the patient could be covered outside his service area in other than emergencies. Provider locations were examined to see if the provider had a site in each county in its service area, and the HMO got 2 points for each specialty offered in each county and one point for each doctor in each county. When the scores had been awarded as to each question, those not on the 10 point basis were converted to it by use of a formula which developed a matrix for measuring the difference between points awarded in a particular area (cost, benefits, accessibility, etc.). This conversion was not done by the evaluators, however, but by Mr. Nye. No doubt Mr. Nye knew what he was doing and so did Ms. Walker, the HMO administrator in DOA. In this award process she initially reviewed the proposals and commented on them in some cases, and she participated as an evaluator in the second evaluation. She was, as well, deeply involved in writing the recommendations submitted to the Secretary upon completion of the evaluations. In her opinion, the difference between the first and second evaluations was one of methodology. Whereas the first left room for evaluator discretion, the second, while still requiring judgement on the part of the evaluator, was more objective. She felt the evaluators used were equipped to use that judgement, and some may have been. However, it is clear those who testified at this hearing were not sufficiently familiar with the subject matter to appropriately apply even objective standards. Ms. Walker also established that changes in the second evaluation had a substantial effect on the way the proposers were looked at. For example, benefits and accessibility were now grouped together and viewed against costs, and co-payments were considered an important benefit. In the Tampa Bay Service Area, Humana received the greatest number of points (69.13) on its combined bid for Pasco, Pinellas, and Hillsborough Counties derived from the aforementioned matrix and the score sheets of the evaluators. In his memo of October 6, 1987 to the Secretary, Mr. Nye recommended that four HMOs, (Tampa Bay Health Plan, Health Alliance, Health Options and Humana) be awarded contracts because he included Polk and Hernando Counties to be in this service area. Tampa Bay Health Plan was included because it was the only HMO to propose to provide service in Hernando County, and Health Alliance agreed to provide service in Polk County. Neither Health Options nor Humana proposed service in those two counties. However, a decision was made to award contracts to Humana and Health Options for the three county service area previously described and to enter separate negotiations with the other two for Polk and Hernando Counties.
Recommendation Based on the Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Department of Administration issue a Final Order rejecting all proposals submitted to provide HMO service for the Tampa Bay service area and readvertise for new proposals, if appropriate. Recommended this 26th day of April, 1988, in Tallahassee, Florida. ARNOLD H. POLLOCK 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 26th day of April, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5524BID The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case: By the Petitioner: Tampa Bay Health Plan A - Accepted. B - Accepted. C - Accepted. D - Accepted. E - Accepted and incorporated herein. A - Accepted and incorporated herein. B - Accepted and incorporated herein. C - Accepted. - Accepted and incorporated herein. - Rejected as contra to the weight of the evidence. F - Rejected as contra to the weight of the evidence. G - Rejected as unproven. Rejected. Accepted and incorporated herein. Rejected as unidentified and unsupported. Accepted. By the Respondent: DHRS 1 - 3. Accepted and incorporated herein. 4 - 15. Accepted and incorporated herein. 16 - 19. Accepted and incorporated herein. 20 - 22. Accepted and incorporated herein. Accepted except for finding that second evaluation method "make it much simpler for evaluators to score the proposals. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. 27 - 28. Accepted and incorporated herein. 29. Accepted. (25) Accepted. (26) Accepted except for second sub-paragraph. (30) Accepted except for second sub-paragraph. (28) Accepted except for second sub-paragraph. (29) Accepted except for second sub-paragraph. (38) Accepted except for second sub-paragraph. For Intervenor: Health Options 1 - 6. Accepted and incorporated herein. 7 - 9. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. 12 - 19. Accepted and incorporated herein. Rejected as a restatement of evidence and conclusion in last two sentences, is not supported. Rejected. Unused. Accepted and incorporated herein. Accepted. Accepted. 26 - 27. Accepted and incorporated herein. Accepted. Accepted. For Intervenor: Humana 1. Accepted in that several errors were made. Accepted in that alternative methods of evaluating were available and used. Balance is rejected. For Intervenor: Pru-Care Health Plan 1 - 7. Accepted and incorporated herein. 8. Rejected as contra to the evidence (sentence two). 9 - 11. Accepted. 12. Accepted. 13 - 14. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted except for last sentence which is not a Finding of Fact. 20. Rejected as not being a Finding of Fact. 21. Accepted and incorporated herein. 22. Accepted and incorporated herein. 23 - 24. Accepted and incorporated herein. 25. Accepted and incorporated herein. 26 - 27. Accepted and incorporated herein. 28. Accepted and incorporated herein. 29 - 30. Accepted and incorporated herein. 31 - 34. Accepted and incorporated herein. 35. Accepted and incorporated herein. 36. Accepted. 37 - 38. Accepted and incorporated herein. 39. Accepted. COPIES FURNISHED: Robert C. Bissell, Esquire Director of Legal Affairs Tampa Bay Health Plan/Equicor 888 Executive Center Drive West Suite 200 St. Petersburg, Florida 33702 Augustus D. Aikens, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Jann Johnson, Esquire and Robert N. Clark, Jr., Esquire Ausley, McMullen, McGee, Carothers & Proctor Post Office Box 391 Tallahassee, Florida 32302 John R. Marks, III, Esquire Katz, Kutter, Haigler, Alderman, Eaton & Davis 315 South Calhoun Street 800 Barnett Bank Building Tallahassee, Florida 32301 Rhoda Smith Kibler, Esquire and J. Stanley Chapman, Esquire Ervin, Varn, Jacobs; Odom & Kitchen 305 South Gadsden Street Tallahassee, Florida 32301 John Buchanan, Esquire Buchanan, Henry, Mick & English 117 South Gadsden Street Tallahassee, Florida 32301 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
The Issue The issues for determination are: (1) whether the noncompliance as alleged during the August 30, 2001, survey and identified as Tags F324 and F242, were Class II deficiencies; (2) whether the "Conditional" licensure status, effective August 30, 2001, to September 30, 2001, based upon noncompliance is appropriate; and (3) whether a fine in the amount of $5,000 is appropriate for the cited noncompliance
Findings Of Fact Charlotte is a nursing home located at 5405 Babcock Street, Northeast, Fort Myers, Florida, with 180 residents and is duly licensed under Chapter 400, Part II, Florida Statutes. AHCA is the state agency responsible for evaluating nursing homes in Florida pursuant to Section 400.23(7), Florida Statutes. As such, in the instant case it is required to evaluate nursing homes in Florida in accordance with Section 400.23(8), Florida Statutes (2000). AHCA evaluates all Florida nursing homes at least every 15 months and assigns a rating of standard or conditional to each licensee. In addition to its regulatory duties under Florida law, AHCA is the state "survey agency," which, on behalf of the federal government, monitors nursing homes that receive Medicaid or Medicare funds. On August 27 through 30, 2001, AHCA conducted an annual survey of Charlotte's facility and alleged that there were deficiencies. These deficiencies were organized and described in a survey report by "Tags," numbered Tag F242 and Tag F324. The results of the survey were noted on an AHCA form entitled "Statement of Deficiencies and Plan of Correction." The parties refer to this form as the HCFA 2567-L or the "2567." The 2567 is the document used to charge nursing homes with deficiencies that violate applicable law. The 2567 identified each alleged deficiency by reference to a Tag number. Each Tag on the 2567 includes a narrative description of the allegations against Charlotte and cites a provision of the relevant rule or rules in the Florida Administrative Code violated by the alleged deficiency. To protect the privacy of nursing home residents, the 2567 and this Recommended Order refer to each resident by a number (i.e., Resident 24) rather than by the name of the resident. AHCA must assign a class rating of I, II or III to any deficiency that it identifies during a survey. The ratings reflect the severity of the identified deficiency, with Class I being the most severe and Class III being the least severe deficiency. There are two Tags, F242 and F324 at issue in the instant case, and, as a result of the August 2001 survey, AHCA assigned each Tag a Class II deficiency rating and issued Charlotte a "Conditional" license effective August 30, 2001. Tag F242 Tag F242 generally alleged that Charlotte failed to meet certain quality of life requirements for the residents, based on record review, group interviews, and staff interviews, and that Charlotte failed to adequately ensure that the residents have a right to choose activities that allow them to interact with members of the community outside the facility. On or about August 24, 2001, AHCA's surveyors conducted group interviews. During these interviews, 10 of 16 residents in attendance disclosed that they had previously been permitted to participate in various activities and interact with members of the community outside the facility. They were permitted to go shopping at malls, go to the movies, and go to restaurants. Amtrans transportation vans were used to transport the residents to and from their destinations. The cost of transportation was paid by Charlotte. An average of 17 to 20 residents participated in those weekly trips to dine out with other community members at the Olive Garden and other restaurants. During those trips, Charlotte would send one activity staff member for every four to six residents. The record contains no evidence that staff nurses accompanied those select few residents on their weekly outings. The outings were enjoyed by those participants; however, not every resident desired or was able to participate in this particular activity. Since 1985, outside-the-facility activities had been the facility's written policy. However, in August 2000, one year prior to the survey, Matthew Logue became Administrator of the facility and directed his newly appointed Activities Director, Debbie Francis, to discontinue facility sponsored activities outside the facility and in its stead to institute alternative activities which are all on-site functions. Those residents who requested continuation of the opportunity to go shopping at the mall or dine out with members of the community were denied their request and given the option to have food from a restaurant brought to the facility and served in-house. The alternative provided by the facility to those residents desiring to "interact with members of the community outside the facility" was for each resident to contact the social worker, activity staff member, friends or family who would agree to take them off the facility's premises. Otherwise, the facility would assist each resident to contact Dial-A-Ride, a transportation service, for their transportation. The facility's alternative resulted in a discontinuation of all its involvement in "scheduling group activities" beyond facility premises and a discontinuation of any "facility staff members" accompanying residents on any outing beyond the facility's premises. As described by its Activities Director, Charlotte's current activities policy is designed to provide for residents' "interaction with the community members outside the facility," by having facility chosen and facility scheduled activities such as: Hospice, yard sales, barbershop groups for men and beautician's day for women, musical entertainment, antique car shows, and Brownie and Girl Guides visits. These, and other similar activities, are conducted by "community residents" who are brought onto the facility premises. According to the Activities Director, Charlotte's outside activities with transportation provided by Amtrans buses were discontinued in October of 2000 because "two to three residents had been hurt while on the out trip, or on out-trips."1 Mr. Logue's stated reason for discontinuing outside activities was, "I no longer wanted to take every member of the activities department and send them with the resident group on an outing, thereby leaving the facility understaffed with activities department employees." The evidence of record does not support Mr. Logue's assumption that "every member of the facility's activities department accompanied the residents on any weekly group outings," as argued by Charlotte in its Proposed Recommended Order. Charlotte's Administrator further disclosed that financial savings for the facility was among the factors he considered when he instructed discontinuation of trips outside the facility. "The facility does not sponsor field trips and use facility money to take people outside and too many staff members were required to facilitate the outings." During a group meeting conducted by the Survey team, residents voiced their feelings and opinions about Charlotte's no longer sponsoring the field trips on a regular basis in terms of: "feels like you're in jail," "you look forward to going out," and being "hemmed in." AHCA's survey team determined, based upon the harm noted in the Federal noncompliance, that the noncompliance should be a State deficiency because the collective harm compromised resident's ability to reach or maintain their highest level of psychosocial well being, i.e. how the residents feel about themselves and their social relationships with members of the community. Charlotte's change in its activities policy in October of 2000 failed to afford each resident "self- determination and participation" and does not afford the residents the "right to choose activities and schedules" nor to "interact with members of the community outside the facility." AHCA has proved the allegations contained in Tag F242, that Charlotte failed to meet certain quality of life requirements for the residents' self-determination and participation. By the testimonies of witnesses for AHCA and Charlotte and the documentary evidence admitted, AHCA has proven by clear and convincing evidence that Charlotte denied residents the right to choose activities and schedules consistent with their interests and has failed to permit residents to interact with members of the community outside the facility. Tag F324 As to the Federal compliance requirements, AHCA alleged that Charlotte was not in compliance with certain of those requirements regarding Tag F324, for failing to ensure that each resident receives adequate supervision and assistance devices to prevent accidents. As to State licensure requirements of Sections 400.23(7) and (8), Florida Statutes (2000), and by operation of Florida Administrative Code, Rule 59A-4.1288, AHCA determined that Charlotte had failed to comply with State established rules, and under the Florida classification system, classified Tag F324 noncompliance as a Class II deficiency. Based upon Charlotte's patient record reviews and staff interviews, AHCA concluded that Charlotte had failed to adequately assess, develop and implement a plan of care to prevent Resident 24 from repeated falls and injuries. Resident 24 was admitted to Charlotte on April 10, 2001, at age 93, and died August 6, 2001, before AHCA's survey. He had a history of falls while living with his son before his admission. Resident 24's initial diagnoses upon admission included, among other findings, Coronary Artery Disease and generalized weakness, senile dementia, and contusion of the right hip. On April 11, 2001, Charlotte staff had Resident 24 evaluated by its occupational therapist. The evaluation included a basic standing assessment and a lower body assessment. Resident 24, at that time, was in a wheelchair due to his pre-admission right hip contusion injury. On April 12, 2001, two days after his admission, Resident 24 was found by staff on the floor, the result of an unobserved fall, and thus, no details of the fall are available. On April 23, 2001, Resident 24 was transferred to the "secured unit" of the facility. The Survey Team's review of Resident 24's Minimum Data Set, completed April 23, 2001, revealed that Resident 24 required limited assistance to transfer and to ambulate and its review of Resident 24's Resident Assessment Protocols (RAPs), completed on April 23, 2001, revealed that Resident 24 was "triggered" for falls. Charlotte's RAP stated that his risk for falls was primarily due to: (1) a history of falls within the past 30 days prior to his admission; (2) his unsteady gait; (3) his highly impaired vision; and (4) his senile dementia. On April 26, 2001, Charlotte developed a care plan for Resident 24 with the stated goal that the "[r]esident will have no falls with significant injury thru [sic] July 25, 2001," and identified those approaches Charlotte would take to ensure that Resident 24 would not continue falling. Resident 24's care plan included: (1) place a call light within his reach; (2) do a falls risk assessment; (3) monitor for hazards such as clutter and furniture in his path; (4) use of a "Merry Walker" for independent ambulation; (5) placing personal items within easy reach; (6) assistance with all transfers; and (7) give Resident 24 short and simple instructions. Charlotte's approach to achieving its goal was to use tab monitors at all times, to monitor him for unsafe behavior, to obtain physical and occupational therapy for strengthening, and to keep his room free from clutter. All factors considered, Charlotte's care plan was reasonable and comprehensive and contained those standard fall prevention measures normally employed for residents who have a history of falling. However, Resident 24's medical history and his repeated episodes of falling imposed upon Charlotte a requirement to document his records and to offer other assistance or assistive devices in an attempt to prevent future falls by this 93-year-old, senile resident who was known to be "triggered" for falls. Charlotte's care plan for Resident 24, considering the knowledge and experience they had with Resident 24's several falling episodes, failed to meet its stated goal. Charlotte's documentation revealed that Resident 24 did not use the call light provided to him, and he frequently refused to use the "Merry Walker" in his attempts of unaided ambulation. On June 28, 2001, his physician, Dr. Janick, ordered discontinuation of the "Merry Walker" due to his refusal to use it and the cost involved. A mobility monitor was ordered by his physician to assist in monitoring his movements. Charlotte's documentation did not indicate whether the monitor was actually placed on Resident 24 at any time or whether it had been discontinued. Notwithstanding Resident 24's refusal to cooperatively participate in his care plan activities, Charlotte conducted separate fall risk assessments after each of the three falls, which occurred on April 12, May 12, and June 17, 2001. In each of the three risk assessments conducted by Charlotte, Resident 24 scored above 17, which placed him in a Level II, high risk for falls category. After AHCA's surveyors reviewed the risk assessment form instruction requiring Charlotte to "[d]etermine risk category and initiate the appropriate care plan immediately," and considered that Resident 24's clinical record contained no notations that his initial care plan of April 23, 2001, had been revised, AHCA concluded that Charlotte was deficient. On May 13, 2001, Dr. Janick visited with Resident 24 and determined that "there was no reason for staff to change their approach to the care of Resident 24." Notwithstanding the motion monitors, on June 17, 2001, Resident 24 fell while walking unaided down a corridor. A staff member observed this incident and reported that while Resident 24 was walking (unaided by staff) he simply tripped over his own feet, fell and broke his hip. Charlotte should have provided "other assistance devices," or "one-on-one supervision," or "other (nonspecific) aids to prevent further falls," for a 93-year-old resident who had a residential history of falls and suffered with senile dementia. Charlotte did not document other assistive alternatives that could have been utilized for a person in the condition of Resident 24. AHCA has carried its burden of proof by clear and convincing evidence regarding the allegations contained in Tag F324.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Agency enter a final order upholding the assignment of the Conditional licensure status for the period of August 30, 2001 through September 30, 2001, and impose an administrative fine in the amount of $2,500 for each of the two Class II deficiencies for a total administrative fine in the amount of $5,000. DONE AND ENTERED this 13th day of February, 2003, in Tallahassee, Leon County, Florida. FRED L. BUCKINE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of February, 2003.
The Issue The issues for determination are whether Respondent committed the offenses set forth in the Administrative Complaints and, if so, what penalty should be imposed; and whether Respondent should be issued a Standard or Conditional license rating.
Findings Of Fact At all times material hereto, Respondent was a licensed nursing home located in Pompano Beach, Florida. Petitioner is charged with, among other things, periodically evaluating nursing home facilities and making a determination as to the degree of compliance with applicable federal regulations, and state statutes and rules. The evaluation or survey of a facility includes a resident review or survey. A resident survey consists of record review, resident observation, and interviews with family and facility staff. Review of a clinical record includes the review of a document referred to as minimum data set or MDS Assessment. The MDS Assessment is a record, in summary fashion, of information or data that a facility gathers to prepare a care plan for a resident. During the survey of a facility, if violations of regulations are found, the violations are noted and referred to as "tags." Petitioner's surveyors document the tags on a form prepared by Petitioner. Petitioner's surveyors use the "State Operations' Manual" (SOM) as guidance in determining whether a facility has violated the federal regulation 42 CFR Chapter 483. The October 1998 Survey On October 8-9, 1998, Petitioner conducted an appraisal survey of Respondent, which is not a full survey. In an appraisal survey, Petitioner's focus is on quality of care issues, making sure that the quality of care standards are met. Petitioner used nursing home survey protocols prescribed by the federal government. Petitioner's surveyor performed a resident review of Resident No. 5. Tag F309 Tag F309 incorporates the requirement of federal regulation 42 CFR Subsection 483.25, which provides that "each resident must receive and the facility must provide the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with the comprehensive assessment and plan of care." The SOM provided, regarding 42 CFR Section 483.25, that a facility must ensure that its residents obtain optimal improvement or does not deteriorate. Therefore, the surveyor must first determine whether a resident has declined or optimally improved, and if the resident has suffered a decline or lack of improvement, determine whether the decline or lack of improvement was avoidable or unavoidable. A decline or failure to reach the highest practicable well-being is unavoidable only if: (1) the facility has an accurate and complete assessment; the facility has a care plan which is consistently implemented and based on the assessment; and (3) the facility has an evaluation of the results of the interventions and revising the interventions when necessary. Resident No. 5 was admitted to Respondent on July 9, 1998. The diagnosis for Resident No. 5 included dementia, but not severe because he could understand and follow directives, aggressive behavior, and agitated depression. He used a wheelchair and could ambulate with assistance. Respondent was required within 14 days, by July 23, 1998, to complete a MDS Assessment of Resident No. 5. Respondent assessed Resident No. 5 as being at risk for falls. Respondent was required within 21 days, by July 30, 1998, to develop a comprehensive care plan to address Resident No. 5's risk for falls. On July 29, 1998, Respondent completed and implemented the comprehensive care plan, containing interventions which included encouraging Resident No. 5 to use his call light; counseling him about his risk for falls and the need to request assistance in transfers; assisting him with transfers; instructing him about proper transfer techniques; using a night light; monitoring him for fatigue; and providing proper positioning while he was in bed or in a chair. Petitioner's surveyor reviewed, among other things, the nurses' notes and the care plan for Resident No. 5. The surveyor determined that Resident No. 5 had fallen seven times since his admission: July 18, July 23, August 7, August 14, August 17, September 26, and October 5, 1998. Two of Resident No. 5's falls occurred during the period for his MDS Assessment: July 18 and 23, 1998. Resident No. 5 suffered a skin tear to his elbow from the fall on August 14, 1998. On August 11, 1998, after his third fall on August 7, 1998, a wheelchair alarm was initiated to reduce the risk of falls. After Resident No. 5's fall on August 17, 1998, Respondent obtained an order for a lap tray. On September 28, 1998, after his sixth fall on September 26, 1998, a physical therapy screen was performed and a lap buddy was to be used in conjunction with the wheelchair alarm to reduce the risk of falls. The wheelchair alarm was to be used when the lap buddy was not in use. During the October survey, which was only three to four days after Resident No. 5's most recent fall, Petitioner's surveyor observed on two occasions that Resident No. 5 was without either a wheelchair alarm or a lap buddy. Before using the lap buddy, Resident No. 5 used a lap tray. He did not want to give-up the lap tray. Even when he was informed that the lap tray was restrictive, Resident No. 5 wanted to continue using the lap tray. A wheelchair alarm is a device, which attaches to a resident's wheelchair and is connected to the resident by a string. When the resident stands or otherwise moves from the wheelchair, the alarm sounds. The alarm's primary function is to alert the staff, not to ensure that falls will not occur, but the alarm's function is also an inhibitor and assists the staff to prevent the resident from causing himself or herself to fall. The wheelchair alarm is used only when there is a clearly demonstrated need. A lap buddy is much more restrictive than the wheelchair alarm. The lap buddy is a pillow-like device that rests in the resident's lap and discourages the resident from getting up, but the lap buddy can be removed by the resident. A more restrictive device than the lap buddy is the lap tray. The lap tray is a thin plywood board that is placed across the arms of the wheelchair and is secured to the wheelchair. The resident is capable of sliding underneath the lap tray and getting out of the wheelchair. In addition to the skin tear that Resident No. 5 suffered in his third fall on August 14, 1998, he experienced a decline in mobility requiring two people for assistance in walking instead of one person as he had before the many falls. Even though Resident No. 5 had a decline in his mental status as he had to begin taking a medication again that he stopped taking, the evidence does not demonstrate that the falls caused the decline in his mental status. Respondent failed to develop a care plan expeditiously and timely in order to address Resident No. 5's risk for falling. No evidence was presented to demonstrate that Resident No. 5 was resistant to using the interventions. Respondent had no documentation showing that the wheelchair alarm was sounding or in place at the time of Resident No. 5's fifth fall on August 17, 1998. Respondent had no documentation showing that the wheelchair alarm was in consistent use. Such documentation would have indicated that the care plan was being implemented. Respondent had no documentation showing that Resident No. 5 removed either the lap tray or lap buddy. When he fell on October 5, 1998, his seventh fall, the intervention for Resident No. 5 was the lap tray. The documentation showed that the lap tray had to be re-secured. An inference is drawn and a finding of fact is made that the lap tray was not in place when Resident No. 5 fell and that, therefore, the intervention was not consistently used. The evidence demonstrates that Respondent evaluated the results of the interventions which were used with Resident No. 5 and that Respondent revised the interventions as necessary. However, the evidence also demonstrates that the interventions were not consistently implemented. The evidence, in totality, demonstrates that Resident No. 5's decline was avoidable. Petitioner cited Respondent for committing a violation of Tag F309 and classified the violation as a Class II deficiency. Further, Petitioner assigned a federal scope and severity rating of "G" to the Tag F309 deficiency. Corrective Action After the October survey, Respondent was required to submit a plan of correction regarding Tag F309. Respondent submitted the plan of correction, indicating corrective action by October 10, 1998. The deficiency was corrected on October 10, 1998. Penalty Based upon the Class II deficiency of Tag F309, Petitioner imposed a fine of $5,000 upon Respondent. The April 1999 Survey On April 19-21, 1999, Petitioner conducted an annual survey of Respondent. An annual survey is performed at least once every 15 months. Again, the SOM was used by Petitioner's surveyors. Decisions, regarding violations, are made by the survey team. One surveyor is responsible for the resident review of a particular resident. Resident No. 3 Petitioner's resident surveyor reviewed documents and information, regarding Resident No. 3, including hospice care plan and social service notes; nurses' notes; physician orders; nurses' treatment notes; medication records; physician progress notes; comprehensive care plan, monthly summary comments; dietician's assessment; nutritional assessment; and the SOM for the pertinent tags. Petitioner's resident surveyor also made personal observations, interviewed staff, and had a consultation with a registered dietician, who was Petitioner's consultant. The survey team leader conducted the family interview. On December 10, 1998, Resident No. 3 was admitted to Respondent's facility from an acute care hospice facility. She was terminally ill and doctors were of the opinion that her clinical conditions would cause her death within six months. As a result, Resident No. 3 remained on hospice care at Respondent's facility. Resident No. 3 suffered from end-stage cardiovascular disease and congestive heart failure. She was incontinent with an indwelling Foley catheter and had contractures of the legs and Parkinson's disease. As a result of a stroke, Resident No. 3 was without speech. She was being fed through a PEG tube, which was inserted into her abdomen. Medication and hydration was also provided to her through the PEG tube. Resident No. 3 had several decubiti (pressure sores) at various stages of severity, including one at Stage IV and two at Stage III. She was receiving a continuous dose of morphine for pain caused by her compromising conditions. Resident No. 3 required total and complete assistance with all her activities of daily living (ADLs). She was completely dependent. The family of Resident No. 3 made the health care decisions for her, in particular, her son. Regarding the pressure sores, a Stage IV pressure sore had gone completely through the skin and muscle down to the bone, with nerve endings exposed. The pressure sore was open, raw, and very painful. Often the pain of such a pressure sore is described as being like very severe sun burns or almost like a bone racking kind of pain. In treating pressure sores, nutrition is one of the key components and one of the most important aspects of healing them. Development of pressure sores is related to malnutrition. During Resident No. 3's stay at the acute care hospice facility, before being admitted to Respondent's facility, Resident No. 3 experienced fluid build-up in her lungs, which was related to her end-stage cardiovascular disease and congestive heart failure. The hospice facility effectively eliminated the fluid build-up by reducing the amount of fluid intake to one can per day, which provided Resident No. 3 with 240 calories per day. For most healthy adults, 240 calories per day is insufficient to maintain body weight or promote healing of wounds or diseases. Resident No. 3's overall condition stabilized on the 240 calories per day. Upon admission to Respondent on December 10, 1998, a nutritional assessment of Resident No. 3's nutrition needs was performed by Respondent's dietician. A determination was made that, in order to meet her nutritional needs and promote weight gain and healing of her pressure sores, Resident No. 3 required 1,424 calories per day and between 37 and 56 grams of protein per day, in addition to multivitamins, vitamin C, zinc, and iron. In January 1999, Respondent's dietician reassessed Resident No. 3 for her nutritional needs. The dietician determined that no change existed in the nutritional needs for Resident No. 3, and recommended an additional, but slight, increase in the feeding amount. Around mid-January 1999, after the nutritional assessment, Resident No. 3 went into crisis care. While in crisis care, Resident No. 3's family expressed concern that she was receiving too much fluid through her feeding. Resident No. 3's physician ordered a reduction in her tube feeding to 720 calories (720 cc) per day, from six cans to three cans of formula per day. On January 25, 1999, Resident No. 3's family again expressed concern that she was receiving too much fluid through her tube feeding. The next day, Respondent's dietician and the hospice nurse met to discuss Resident No. 3's situation regarding the tube feeding. The hospice nurse informed Respondent's dietician that, during Resident No. 3's acute care at the hospice center, Resident No. 3 had experienced increased congestion and her tube feeding had been reduced to one can of formula per day and that, presently, Resident No. 3 was again experiencing increased congestion. Based upon Resident No. 3's prior experience at the hospice center with increased congestion and reduction in the amount of formula, upon the family's concern that three cans of formula per day was too much, and upon the dietician's opinion that Resident No. 3's comfort would be promoted by reducing the amount of the formula, the dietician decided to recommend reducing Resident No. 3's tube feeding. On January 26, 1999, the dietician recommended reducing the formula from three cans of formula per day to one can per day, from 720 calories (720 cc) to 240 calories (240 cc). No order was given that day by Resident No. 3's physician to reduce the tube feeding from 720 calories. The physician for Resident No. 3 was willing to reduce the formula or even discontinue it if the family of Resident No. 3 agreed. The family of Resident No. 3 were not willing to discontinue the tube feeding. Resident No. 3's physician did not order a reduction of the formula. On January 28, 1999, the physician diagnosed Resident No. 3 with pneumonia and recommended that the pneumonia be allowed to overcome her because of her terminal illness. Resident No. 3 improved and was taken off crisis care on February 3, 1999. Shortly thereafter, she began experiencing audible congestion. On February 12, 1999, Resident No. 3 was suffering from congestion, respiratory distress, and edema in her arms and thighs. On February 16, 1999, 13 days after Resident No. 3 was taken off crisis care, her physician ordered a reduction of the tube feeding to one can per day. Resident No. 3's respiratory problems became non-existent and she was removed from crisis care. Resident No. 3 remained on one can of formula, 240 calories, per day for a little over two months, from February 16, 1999, until the survey in April 1999. During that period of time, either the physician or his assistant reviewed Resident No. 3's condition and did not change her feeding order of one can per day. On February 26, 1999, Resident No. 3 was no longer congested. Her reduced feeding was not re-evaluated by Respondent to determine its necessity until the April survey. At the initial tour of Respondent by Petitioner survey team, the team member who was responsible for resident review of Resident No. 3 and who was a registered nurse observed Resident No. 3, who appeared to be a quite frail, thin and ill female, being tube fed. The feeding bag indicated that Resident No. 3 was receiving 240 calories (240 cc) per day. Resident No. 3's room had a strong odor, which the team member suspected was indicative of a skin infection, and a deodorizer can was on the floor next to Resident No. 3's bed. Respondent had no policy or procedure in place to monitor the continued necessity or advisability of such a condition as Resident No. 3's reduced feeding. The failure to have such a policy in place potentially put other residents at risk, which is a consideration of the surveyors when they make their decisions regarding the existence of a deficiency. The evidence fails to demonstrate that Respondent obtained informed consent from Resident No. 3's family for the reduced feeding. Respondent failed to fully inform the family of the effects or risks of reduced feeding on the healing of Resident No. 3's pressure sores. Respondent conducted planning meetings regarding Resident No. 3's care plan, but her health care surrogate, her son, was not invited to attend; whereas, if he was invited to attend, he would have had full knowledge of the effects or risks of the reduced feeding on the healing of her pressure sores. The evidence demonstrates that the reduced feeding in Resident No. 3's situation was not compatible with the standard of palliative care and was inconsistent with acceptable end-of- life care practices. Tag F224 Tag F224 incorporates federal regulation 42 CFR Section 483.13(c)(1)(i), which requires, in pertinent part, Respondent to "develop and implement written policies and procedures that prohibit mistreatment, neglect and abuse of residents." Neglect is defined by the SOM guidelines as "failure to provide goods and services necessary to avoid physical harm, mental anguish, or mental illness." The SOM guidelines further provide that, on an individual basis, neglect occurs "when a resident does not receive a lack of care in one or more areas (e.g., absence of frequent monitoring for a resident known to be incontinent, resulting in being left to lie in urine or feces)." The intent of the federal regulation is provided in the SOM guidelines, which provide, in pertinent part, that the intent is "to ensure that the facility has in place an effective system that regardless of the source (staff, other residents, visitors, etc.) prevents mistreatment, neglect, and abuse of residents . . . . However, such a system cannot guarantee that a resident will not be abused; it can only assure that the facility does whatever is within its control to prevent mistreatment, neglect, and abuse of residents." Petitioner's survey team determined that Respondent did not have procedures and policies in place to prevent the "neglect" of Resident No. 3. It was within Respondent's control to attempt to ascertain medically the causative agent of Resident No. 3's congestion. Respondent failed to seek a cause, medically, of the congestion but relied upon what was related to Respondent's staff as to what occurred at the hospice facility when the hospice facility was faced with Resident No. 3's congestion. Resident No. 3's tube feeding was drastically reduced based upon this reliance. It was within Respondent's control to fully inform Resident No. 3's health care surrogate of the effects of the drastically reduced tube feeding. The evidence failed to demonstrate that her health care surrogate was fully informed by Respondent regarding the effects of the reduced feeding on her pressure sores. Resident No. 3's physician indicated that he would agree with reducing the feeding if the family agreed to the reduction. The health care surrogate, not being informed of the full ramifications, agreed to the reduction in the tube feeding. Whether Respondent provided Resident No. 3 the necessary goods and care was indeterminable by the survey team. Respondent failed to provide goods and services to Resident No. 3 necessary to avoid physical harm or mental anguish. Respondent failed to have written policies and procedures that would have prohibited neglect to Resident No. 3; however, in accordance with the SOM guidelines, the written policies and procedures could not have guaranteed that she would not have been neglected. Petitioner cited Respondent for committing a violation of Tag F224 and classified the violation as a Class II deficiency. Petitioner also assigned a federal scope and severity rating of "G" to the Tag F224 deficiency. Tag F280 Tag F280 incorporates the requirement under federal regulation 42 CFR 483.20(k)(2), which requires, in pertinent part, the development of a comprehensive care plan (Plan) within seven days of the completion of the comprehensive assessment; the Plan to be prepared by an "interdisciplinary team," which includes "the attending physician, a registered nurse with responsibility for the resident, and other appropriate staff in disciplines as determined by the resident's needs, and to the extent practicable, . . . the resident's family or . . . legal representative"; and periodic review and revision by a team of qualified persons after each assessment. Respondent failed to update or revise Resident No. 3's care plan to address the symptom of congestion, which led to the reduced feeding. Respondent failed to invite or include Resident No. 3's health care surrogate to participate in any planning of Resident No. 3's care or in any decisions regarding her nutritional needs. Petitioner cited Respondent for committing a violation of Tag F280 and classified the violation as a Class II deficiency. Petitioner also assigned a federal scope and severity rating of "G" to the Tag F280 deficiency. Tag F314 Tag F314 incorporates federal regulation 42 CFR Section 483.25(c), which requires, in pertinent part, a facility to ensure that a "resident who enters the facility without pressure sores does not develop pressure sores unless the individual's clinical condition demonstrates that they were unavoidable" and that a "resident having pressure sores receives necessary treatment and services to promote healing, prevent infection and prevent new sores from developing." The SOM guidelines define a pressure sore as "ischemic ulceration and/or necrosis of tissues overlying a bony prominence that has been subjected to pressure, friction or shear." Furthermore, the SOM guidelines provide a "staging system," which is one method of describing the extent of tissue damage, and which provides, in pertinent part, that "Stage III" is described as a "full thickness of skin is lost, exposing the subcutaneous tissues - presents as a deep crater with or without undermining adjacent tissue" and that "Stage IV" is described as a "full thickness of skin and subcutaneous tissue is lost, exposing muscle and/or bone." Pressure sores in a terminally ill patient are unavoidable. Resident No. 3's pressure sores were unavoidable due to her clinical conditions. For Resident No. 3, maintaining adequate nutrition and hydration was necessary to prevent her pressure sores from worsening, to promote healing, and to prevent infection and breakdown. Respondent drastically reduced Resident No. 3's tube feeding to 240 calories (240 cc) per day. One pressure sore had worsened from a Stage III to a Stage IV. The dead tissue in the Stage III pressure sore was removed, and as a consequence, the pressure sore enlarged to a Stage IV pressure sore. No clinical measurements were available to indicate whether the reduction in the tube feeding negatively affected Resident No. 3. Petitioner cited Respondent for committing a violation of Tag F314 and classified the violation as a Class II deficiency. Petitioner also assigned a federal scope and severity rating of "G" to the Tag F314 deficiency. The evidence is insufficient to demonstrate that Respondent committed a violation of Tag F314. Tag F325 Tag F325 incorporates federal regulation 42 CFR Section 4483.25(i), which, in pertinent part, requires a facility to ensure that a resident "maintains acceptable parameters of nutritional status, such as body weight and protein levels, unless the resident's clinical condition demonstrates that this is not possible." Resident No. 3's clinical condition had a great impact on her nutritional status. Her tube feeding was reduced drastically to 240 calories (240 cc) per day. Respondent failed to properly discuss with and fully inform Resident No. 3's health care surrogate of the impact or effects of such a reduction. Moreover, no periodic review of the reduction was performed by Respondent, which was responsible for a care plan for Resident No. 3. The periodic examination of Resident No. 3's physician or the physician's assistant is no substitute for Respondent's responsibility for periodic review and update or revision, if necessary, of Resident No. 3's care plan. Respondent failed to "ensure" that Resident No. 3's nutritional status was maintained. Petitioner cited Respondent for committing a violation of Tag F325 and classified the violation as a Class II deficiency. Petitioner also assigned a federal scope and severity rating of "G" to the Tag F325 deficiency. Resident No. 1 Resident No. 1 was admitted to Respondent in September 1998, with a Stage IV pressure sore. Full thickness of skin and subcutaneous tissue was lost, exposing muscle and/or bone in a Stage IV pressure sore. To aid the healing of the pressure sore, Resident No. 1's physician ordered a variety of interventions, including ordering that she be given a protein supplement, Promod, in her juice twice a day. Petitioner's registered dietician, who was a member of the survey team, personally observed Resident No. 1 during at least two meals in which Resident No. 1 did not ingest the Promod. Respondent had no system in place to track whether the physician's order was being implemented. Having no such system in place, Respondent was unable to inform the physician of the ineffectiveness of the treatment modality addressing the pressure sore to enable the physician to implement a more effective alternative. During the initial tour of the facility, Petitioner's dietician noticed that Resident No. 1 had a large bruise on the left side of his forehead. The bruise was approximately the size of a quarter to a half-dollar and was a recent bruise that could have been sustained minutes or hours prior to its discovery by Petitioner's dietician. Resident No. 1 was confused and could not inform Petitioner's dietician how his forehead sustained the bruise. Respondent was unaware of the bruise until Petitioner's dietician brought the bruise to Respondent's attention. Respondent had no documentation or information on the bruise. An unknown injury report was completed after Petitioner's dietician brought the bruise to Respondent's attention. Tag F225 Tag F225 incorporates federal regulation 42 CFR 483.13(c), which provides, in pertinent part, that the facility "must have evidence that all alleged violations are thoroughly investigated, and must prevent further potential abuse while the investigation is in progress; and that the "results of all investigations must be reported to the administrator or his designated representative and to officials in accordance with state law " Respondent should have been aware of the bruise prior to the bruise being brought to Respondent's attention by Petitioner's dietician. The bruise was quite obvious and not hidden. Respondent failed to investigate the bruise, an injury of unknown origin. When Respondent failed to investigate the bruise, a potential risk of continued harm to Resident No. 1 and of harm to other residents existed. After Petitioner's dietician, a member of the Petitioner's survey team, reported the bruise to Respondent, an investigation by Respondent ensued. Afterward, the requirements for the investigation and reporting were complied with and adhered to. Petitioner cited Respondent for committing a violation of Tag F225 and classified the violation as a Class II deficiency. Petitioner also assigned a federal scope and severity rating of "G" to the Tag F225 deficiency. Tag F314 Tag F314 incorporates federal regulation 42 CFR Section 483.25(c), which requires, in pertinent part, a facility to ensure that a "resident who enters the facility without pressure sores does not develop pressure sores unless the individual's clinical condition demonstrates that they were unavoidable" and that a "resident having pressure sores receives necessary treatment and services to promote healing, prevent infection and prevent new sores from developing." Resident No. 1's physician ordered the ingestion of Promod. Respondent failed to ensure that Resident No. 1 ingested the Promod in accordance with the physician's order. Further, Respondent had no system in place to track whether the physician's order was being implemented, and, therefore, the physician was unable to determine the type of intervention needed, if any. Petitioner cited Respondent for committing a violation of Tag F314 and classified the violation as a Class II deficiency. Petitioner also assigned a federal scope and severity rating of "G" to the Tag F314 deficiency. Corrective Action Respondent received Petitioner's survey report on April 29, 1999. The survey report contained the date by which Respondent had to correct the deficiencies, which was by April 27, 1999. The time period for Respondent to correct the deficiencies had elapsed before Respondent was notified of the date for correcting the deficiencies. Respondent submitted a plan of action to correct the deficiencies. On April 27, 1999, Petitioner visited Respondent to determine the status of the Class II deficiencies. All of the deficiencies were not corrected, but, as a result of the visit, Petitioner changed Tags F224, F225, and F280 to Class III deficiencies. On July 2, 1999, Petitioner re-surveyed Respondent. Petitioner determined that Respondent had corrected all of the deficiencies. Conditional License Based upon the Class II deficiencies of the April 1999 survey, Petitioner issued Respondent a Conditional license, effective April 21, 1999, through July 2, 1999, from the date of the survey to the date the deficiencies were corrected. Penalty Based upon the Class II deficiencies of Tags F224, F225, F314, and F325, cited as a result of the April 1999 survey, Petitioner imposed a fine of $20,000 upon Respondent.
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 and therein: Dismiss the charge, as it relates to Resident No. 3 of the April 1999 survey, that Pinehurst Convalescent Center (Beverly Enterprises-Fla, Inc., d/b/a Beverly Gulf Coast- Florida) violated Tag F314, which incorporates federal regulation 42 CFR Section 483.25(c). Find that, as to the October 1998 survey, Pinehurst Convalescent Center (Beverly Enterprises-Fla, Inc., d/b/a Beverly Gulf Coast-Florida) violated Tag F309, which incorporates federal regulation 42 CFR Section 483.25, and Rule 59A-4.1288, Florida Administrative Code; and that the violation is a Class II deficiency. Find that, as to the April 1999 survey, Pinehurst Convalescent Center (Beverly Enterprises-Fla, Inc., d/b/a Beverly Gulf Coast-Florida): Violated Tag F224, which incorporates federal regulation 42 CFR Section 483.13(c)(1)(i), Subsections 400.022(1)(j), (k), and (l), Florida Statutes, and Rule 59A- 4.106(4)(x), Florida Administrative Code. Violated Tag F225, which incorporates federal regulation 42 CFR Section 483.13(c)(1)(ii), and Rule 59A- 4.106(4)(cc), Florida Administrative Code. Violated Tag F314, which incorporates federal regulation 42 CFR Section 483.25(c), Subsections 400.022(1)(j), (k), and (l), Florida Statutes, and Rule 59A-4.1288, Florida Administrative Code. Violated Tag F325, which incorporates federal regulation 42 CFR Section 483.25(i)(1), Subsection 400.022(1)(l), Florida Statutes, and Rule 59A-4.109(2), Florida Administrative Code. Impose a penalty of $2,500 for the violation committed as to the October 1998 survey. Impose a penalty of $5,000 per violation for the four violations committed as to the April 1999 survey, totaling $20,000. Uphold the change in the license rating of Pinehurst Convalescent Center (Beverly Enterprises-Fla, Inc., d/b/a Beverly Gulf Coast-Florida) to a Conditional license, effective April 21, 1999, through July 2, 1999. DONE AND ENTERED this 30th day of June, 2000, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 2000.
The Issue The issue in this case is whether Respondent, Logan T. Lanham, R.N., committed the violations alleged in an Administrative Complaint issued by Petitioner, the Department of Health, and, if so, what disciplinary action should be taken against him.
Findings Of Fact The Parties. The Department is the agency in Florida responsible for regulating the practice of nurses pursuant to Chapters 20, 456, and 464, Florida Statutes (2004).1 Mr. Lanham is and has been at all times material hereto a licensed registered nurse in the State of Florida, having been issued license number 3221312. Mr. Lanham, at the times pertinent, was employed in his capacity as a registered nurse by Palm Gardens of Vero Beach (hereinafter referred to as "Palm Gardens"). Mr. Lanham was employed by Palm Gardens from approximately October 1998 until January 3, 2002. Palm Gardens. Palm Gardens was, at the times pertinent, a Florida licensed residential nursing home facility as defined in Section 400.021(13), Florida Statutes. Palm Gardens' facility included a wing, "A-Wing," which was devoted to the care of residents suffering from various forms of dementia, including Alzheimer's disease. While employed at Palm Gardens, Mr. Lanham was assigned to A-Wing. Due to the tendency of some patients on A-Wing to "wander," A-Wing doors leading to the outside were equipped with alarms which sounded whenever a patient attempted to open them. Whenever an alarm was triggered, employees, including nurses, had to check to ensure that a resident was not leaving the unit. Part of A-Wing consisted of a room which was used as a dining room and day room (hereinafter referred to as the "Day Room"). There were four, floor-to-ceiling, windows at one corner of the Day Room located near an open area of A-Wing, which included a nurses' station. There was a single, heavy, self-closing door providing access to the Day Room. This door was normally propped open. During the pertinent period of time involved in this case, the door to the Day Room was slightly larger at the one corner than the door jam, which caused the door to stick if closed. Although the door could be opened, it took some strength to do so. The condition of the door was known to employees of A-Wing, including Mr. Lanham. Patients M.S. and G.K. Among the patients on A-Wing were M.S. and G.K., both female residents. Both were elderly, suffered from dementia and Alzheimer's disease, and were in relatively poor physical and mental health. M.S., whose date of birth was February 3, 1920, and G.K., whose date of birth was March 21, 1915, were both totally dependant on the facility and employees of Palm Gardens for their care. Both residents were ambulatory, but not capable of providing the daily necessities of life, such as cleaning themselves or dressing. Neither resident was oriented as to time or place, and both lacked the capacity to consent. Both residents, but especially M.S., had a habit of wandering the halls of A-Wing and touching doors equipped with alarms, which would cause the alarms to sound. The Events of December 13, 2001. On December 13, 2001, Mr. Lanham was working the "swing shift" (from 3:00 p.m. to 11:00 p.m.) on A-Wing. During Mr. Lanham's shift, both M.S. and G.K. were wandering the wing, sometimes setting off door alarms. G.K. was agitated and had been found by Mr. Lanham in another resident's room eating food that had been left in the room. Neither M.S. nor G.K. was harming any other residents or causing any harm to themselves. Out of frustration over having to respond every time that M.S. or G.K. set off an alarm, Mr. Lanham took both residents and directed them into the Day Room, closing the door as he left. By closing the door to the Day Room, Mr. Lanham effectively locked M.S. and G.K. into the room. Mr. Lanham left both residents in the Day Room without any supervision; no one was in the Day Room with them and no one was watching them through the windows between the room and the hall. M.S. and G.K., for most of the time they were in the Day Room, were unsupervised by any employee of Palm Gardens. M.S., crying, attempted unsuccessfully to open the door of the Day Room. M.S. and G.K., however, were too weak to open the door. M.S. began to hit on the door when she couldn't open it. M.S. and G.K. were involuntarily confined to the Day Room. At some point after M.S. and G.K. had been placed in the Day Room, Sharon Sullivan, L.P.N., told Mr. Lanham that M.S. and G.K. had to be let out. He was reminded that the door was too difficult for them to open when fully closed, which he already knew. Mr. Lanham, after admitting that he had placed M.S. and G.K. in the Day Room and why, indicated that it was okay to leave them in there as long as he could see them. When Ms. Sullivan told Mr. Lanham that she disagreed, he left the unit. Mr. Lanham left A-Wing to go see Carrie Duprey, L.P.N., the House Supervisor. Mr. Lanham indicated to Ms. Duprey that he had a "hypothetical" question. He then asked Ms. Duprey whether it would be considered abuse if, in order to keep a resident occupied, he placed the resident in the Day Room, with the door closed but not locked, as long as a C.N.A. stayed with the resident.2 Ms. Duprey indicated she did not think that his hypothetical action would constitute abuse.3 Ms. Duprey's answer to Mr. Lanham's hypothetical question did not constitute, in any way, permission for him to either place M.S. and G.K. in the Day Room or to leave them there. Ms. Duprey was unaware that Mr. Lanham had already placed the residents in the Day Room or that he had placed them there unattended and unable to leave on their own. After speaking with Ms. Duprey, Mr. Lanham returned to A-Wing where he spoke to Ms. Sullivan again. Mr. Lanham again told Ms. Sullivan that placing M.S. and G.K. in the Day Room was okay. Ms. Sullivan continued to disagree. When Ms. Sullivan persisted, Mr. Lanham opened the door to the Day Room and allowed the residents to leave. M.S. and G.K. had been left in the Day Room with the door closed, unable to leave on their own and with no one else present in the room for somewhere between more than 20 minutes and less than an hour.4 While they were not actually injured, M.S. and G.K. could have been because they were unsupervised. Unprofessional Conduct. Mr. Lanham's conduct fell below the minimum standards of acceptable and prevailing nursing practice. By placing M.S. and G.K. in the Day Room, unsupervised and unable to leave without assistance, Mr. Lanham failed to protect the welfare and safety of those residents. Mr. Lanham's conduct constituted unprofessional conduct for a nurse. Involuntary Seclusion. Placing M.S. and G.K. in the Day Room, unsupervised and unable to leave without assistance, constituted involuntary seclusion. Based upon the length of time that Mr. Lanham left M.S. and G.K. in the Day Room constituted an "extended" involuntary seclusion. Mr. Lanham's Explanation. Mr. Lanham testified at hearing that he had directed a C.N.A. to stay with M.S. and G.K. when he left them in the Day Room. This testimony is not been credited. Mr. Lanham's version of events is inconsistent with other, more credible witnesses. Additionally, when first asked to give a written statement, Mr. Lanham failed to indicate that he had left anyone in the Day Room with the residents. It was not until he added an addendum to his statement a few days later that he first suggested that others were in the Day Room. Mr. Lanham's testimony at hearing as to whether he placed M.S. and/or G.K. in the Day Room, while not clear, is not credited to the extent that he stated that the did not place them in the Day Room. This testimony conflicts with his admission to Ms. Sullivan and his written statement.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department: Dismissing Count I of the Administrative Complaint; Finding that Logan T. Lanham, R.N., violated Section 464.018(1)(h), Florida Statutes, as alleged in Count II of the Administrative Complaint; and Imposing discipline as suggested in this Recommended Order. DONE AND ENTERED this 9th day of March, 2005, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of March, 2005.
Conclusions THE PARTIES resolved all disputed issues and executed a Settlement Agreement. The parties are directed to comply with the terms of the attached settlement agreement. Based on the foregoing, this file is CLOSED. DONE and ORDERED on this the Me™ sy of yp Encher_. 2013, in Tallahassee, Florida. ; Le . Ll. 4 lizabeth Dudek{Secret: Agency for Health Care Administration
Conclusions Having reviewed the administrative complaint dated June 26, 2009, attached hereto and incorporated herein (Exhibit 1), and all other matters of record, the Agency for Health Care Administration ("Agency") has entered into a Settlement Agreement (Exhibit 2) with the other party to these proceedings, and being otherwise well-advised in the premises, finds and concludes as follows: ORDERED: The attached Settlement Agreement is approved and adopted as part of this Final Order, and the parties are directed to comply with the terms of the Settlement Agreement. Filed November 9, 2009 12:00 PM Division of Administrative Hearings. Upon full execution of this Agreement, Respondent agrees to pay $1,875.00 in administrative fines to the Agency within thirty (30) days of the entry of the Final Order. Respondent accepts the assignment of conditional licensure status commencing March 5, 2009 and ending April 14, 2009. A check should be made payable to the "Agency for Health Care Administration." The check, along with a reference to these case numbers, should be sent directly to: Agency for Health Care Administration Office of Finance and Accounting Revenue Management Unit 2727 Mahan Drive, MS #14 Tallahassee, Florida 32308 Unpaid amounts pursuant to this Order will be subject to statutory interest and may be collected by all methods legally available. A conditional license is imposed commencing March 5, 2009 and ending April 14, 2009. Each party shall bear its own costs and attorney's fees. The above-styled cases are hereby closed. DONE and ORDERED this 4-ctay , 2009, in Tallahassee, Leon County, Florida. :a.:,ecretary ealth Care Administration A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A ., SECOND COPY, ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW OF PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. Copies furnished to: Donna Holshouser Stinson, Esq. Attorney for Respondent Broad and Cassel 215 South Monroe Street Suite 400 Tallahassee, Florida 32302 (U. S. Mail) Alba M. Rodriguez, Esq. Assistant General Counsel Agency for Health Care Administration 8350 N. W. 52 Terrace - Suite 103 Miami, Florida 33166 (Interoffice Mail) Finance & Accounting Agency for Health Care Administration 2727 Mahan Drive, MS #14 Tallahassee, Florida 32308 (Interoffice Mail) John G. Van Laningham Administrative Law Judge Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, Florida 32399 Jan Mills Agency for Health Care Administration 2727 Mahan Drive, Bldg #3, MS #3 Tallahassee, Florida 32308 (Interoffice Mail) .. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of this Final Order was served on the above-named person(s) and entities by U.S. Mail, or the method designated, on this the , day of /)yue,,,,--- , 2009. Richard J. Shoop Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Building #3 Tallahassee, Florida 32308 (850) 922-5873 STATE OF FLORIDA
