00-001976 Gulf Coast Convalescent Center vs. Agency For Health Care Administration Status: Closed Recommended Order on Wednesday, December 27, 2000.

Summary: Nursing home license was changed to Conditional because of alleged unavoidable pressure sores in four residents. Pressure sores were found to be avoidable. Recommend that agency change license to Standard.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GULF COAST CONVALESCENT CENTER, )

)

Petitioner, )

)

vs. ) Case No. 00-1976

)

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was provided, and a formal hearing was held on

October 13, 2000, at the Bay County Courthouse, in Panama City,

Florida, and conducted by Harry L. Hooper, Administrative Law

Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Donna H. Stinson, Esquire

Broad and Cassel

Post Office Box 11300

Tallahassee, Florida 32302

For Respondent: Christine T. Messana, Esquire

Agency for Health Care

Administration

2727 Mahan Drive, Suite 3431

Fort Knox Building III

Tallahassee, Florida 32308-5403

STATEMENT OF THE ISSUE

Whether the Agency for Health Care Administration (AHCA or

Agency) was entitled to change the rating of Gulf Coast

Convalescent Center (Gulf Coast) from Standard to Conditional.

PRELIMINARY STATEMENT

On March 28, 2000, Respondent AHCA changed Gulf Coast’s

license rating from Standard to Conditional, effective March 15,

2000.

On April 11, 2000, a Petition for Formal Administrative

Hearing was filed with AHCA and was duly forwarded to the

Division of Administrative Hearings. After being set for

hearing and continued, a formal hearing was held on October 13,

2000.

AHCA's Exhibits 1, 3-19, 21, 22, and 24-30 were admitted

into evidence. The last page of AHCA's Exhibit 11 was not

considered because it was a blank form and not relevant to these

proceedings. Gulf Coast offered Exhibits A, B, and D through G,

which were admitted into evidence. Official notice was taken of

Chapter 59A-4, Florida Administrative Code, entitled "Minimum

Standards for Nursing Homes"; Section 400.022; Florida Statutes,

entitled "Resident's rights"; Section 400.141, Florida Statutes,

entitled "Administration and management of nursing homes";

Section 400.23 Florida Statutes, entitled "Rules; evaluation and

deficiencies; licensure status"; Part IX of Chapter 744, Florida

Statutes, The Public Guardianship Act; 42 Code of Federal

Regulations, Section 488.110, entitled Procedural guidelines; 42

Code of Federal Regulation, Section 483.15, entitled "Quality of

life"; and 42 Code of Federal Regulations, Section 483.25,

entitled "Quality of care."

AHCA presented the testimony of Ms. Bonnie Cile Baxter,

R.N.S.; Arlie Ellis (Bo) Gilliland, Jr., L.P.N.; Kimberly

Roland, Roger Strickland; and Vickie Abrams. Gulf Coast

presented the testimony of Sandra Odom, R.N., and Wendy Meinert,

R.N. Throughout the case, reference was made by various

witnesses and documents to pressure sores, pressure ulcers, and

pressure wounds. These terms describe the same medical

condition which is, generally, a lesion caused by unrelieved

pressure resulting in damage to underlying tissue.

Proposed Recommended Orders were timely filed by both

parties, subsequent to approval of an extension, and were duly

considered by the Administrative Law Judge.

FINDINGS OF FACT

1. Gulf Coast is a nursing home located in Panama City,

Florida, which is duly licensed under Chapter 400, Part II,

Florida Statutes.

2. AHCA is the state agency which licenses and regulates

nursing homes in the state. As such, it is required to evaluate

nursing homes in Florida, pursuant to Section 400.23(8), Florida

Statutes. AHCA evaluates all Florida nursing homes at least

every 15 months and assigns a rating of Standard or Conditional

to each licensee.

3. In addition to its regulatory duties under Florida law,

the Agency is the state "survey agency" which, on behalf of the

federal government, monitors nursing homes which receive

Medicaid or Medicare funds.

4. Ms. Bonnie Cile Baxter is employed by AHCA in the

Division of Managed Care and Health Quality Assurance, Area Two.

She is a registered nurse specialist and a graduate of the

Florida State University School of Nursing. She has been a

registered nurse for 27 years. She currently conducts surveys

of nursing homes as required by state and federal law in AHCA's

Area Two.

5. Ms. Baxter visited Gulf Coast while conducting a

licensure survey report. The survey began on March 13, 2000,

and ended on March 15, 2000. As a result of the survey, a

Statement of Deficiencies was issued on March 15, 2000. This

report is referred to as a TAG 314. The report alleged Class II

deficiencies. A Class II deficiency occurs when the outcome of

the resident care directly affects the health, safety, or

security of the resident.

6. The TAG 314, set forth on a "2567" form, entered into

evidence as Petitioner's Exhibit 1, is, in effect, the charging

document.

7. The residents to be checked were determined off-site by

AHCA, prior to the survey. The information used to make these

decisions was provided by the facility. The focus of the survey

was pressure sores and nutrition and the four residents who were

observed are referred to as Residents 16, 26, 22, and 15.

Resident 16

8. Resident 16 was approximately 75 years of age.

9. Ms. Baxter observed Resident 16 on March 13, 2000 at

9:00 a.m. Ms. Baxter observed that Resident 16 had a stage IV

pressure sore. Pressure sores are evaluated in stages,

beginning with stage I; a stage IV is the worst stage. A stage

IV pressure sore may be open or closed, and it involves more

than just the outer skin. A stage IV pressure sore involves

severe damage to tissue.

10. When evaluating the treatment of a resident with

pressure sores, the evaluator observes the assessment and care

plan and determines whether nutritional considerations have been

addressed. The plan is evaluated to determine if it is

sufficiently aggressive. What is implemented depends on the

resident's need and the resident's desire. If the resident is

incompetent to determine what care the resident wishes to

accept, then a guardian may make the determination.

11. Resident 16 was unable to make cognitive choices.

Kimberly Roland, the Special Services Director at Gulf Coast at

the time of the survey tried to contact Developmental Services

of the Department of Children and Family Services with regard to

a care plan for Resident 16 but the Agency asserted that it did

not get involved with medical decisions. Ms. Baxter also tried,

unsuccessfully, to determine who was authorized to make medical

decisions on behalf of Resident 16.

12. Resident 16 had been admitted to Gulf Coast on

September 16, 1999. Facility staff noted that Resident 16 was

first observed with a stage I pressure ulcer on February 1,

2000.

13. The care plan developed by the facility in the case of

Resident 16 did not facially address the pressure sore problem

because it lacked specificity.

14. Excellent nutrition serves to prevent pressure sores

and to promote their healing.

15. During the period subsequent to February 1, 2000,

Resident 16 was without dentures, and this negatively affected

her ability to ingest the type of foods which would address

Patient 16's nutritional needs.

16. There were discrepancies in Exhibit's 5, 7, and 8.

Exhibit 5, which memorialized a one-time visit with a physician

from Bay Psychiatric Services on February 12, 2000, indicated

that Resident 16 did not exhibit symptoms of tardive dyskinesia,

yet Exhibit 7 indicates that Resident 16 could not wear dentures

because of involuntary movements related to tarsive dyskenesia

on February 23, 2000. Exhibit 8, nurses' notes, indicate the

presence of tardive dyskenesia involving movements of the tongue

and body on January 27, 2000. Petitioner's Exhibit F

demonstrated that Resident 16 had tardive dyskenesia symptoms,

which resulted from long-time Mellaril use. The symptoms

reported included involuntary movements of the tongue, which

precluded the use of dentures. These involuntary movements were

present on September 19, 1999.

17. Mr. Gilliland, a licensed practical nurse with many

years' experience working in nursing homes, stated he noticed

that Resident 16 manifested involuntary movements of the tongue

and body in December, 1999. If a person has tardive dyskenesia,

it may preclude the utilization of dentures.

18. The disappearance of Resident 16's dentures indicated

a deficiency in security procedures but even if Resident 16 had

dentures available, Resident 16 could not masticate hard food.

19. Resident 16 had been on a mechanical soft diet prior

to January 20, 2000. Subsequently, when Resident 16 no longer

had the ability to masticate food, Resident 16 was put on a

pureed diet.

20. Resident 16's condition was the subject of an "at

risk" meeting by the facility staff on February 15, 2000.

Subsequently, Resident 16's nutritional needs were addressed

with an enhanced diet. Resident 16 was provided with multi-

vitamins and milkshakes twice a day in addition to other food.

From February to March 2000, Resident 16 lost weight. The

facility staff's efforts to provide Resident 16 with proper

nutrition were appropriate under the circumstances.

21. The first pressure sore on Resident 16 was found on

February 1, 2000, and it was already a stage II without

drainage. On February 18, 2000, the sore had advanced to a

stage III and an additional pressure ulcer had formed on

Resident 16's hip. This latter ulcer was also a stage II. By

February 25, 2000, the ulcer on the hip changed to stage III and

there was some draining. Subsequent to the inception of the

ulcers, Resident 16 had been placed on a pressure reduction

mattress. On March 3, 2000, more frequent turning was ordered

by her attending physician.

22. Mr. Gilliland observed that Resident 16 was mentally

incapable of decision-making. Mr. Gilliland spent a lot of time

with Resident 16. He was emotionally attached to Resident 16

who, to him, ". . . was like a little child." He spent a lot of

time with Resident 16, kept Resident 16 clean and dry, and

turned her frequently.

23. At the time of the survey, the representatives of the

state insisted that Resident 16 be fed through a tube. Dr.

Haslam, Resident 16's physician, would not have ordered tube

feeding had not the surveyors insisted that it be done.

Resident 16 objected when Mr. Gilliland put the feeding tube in

her nose. Resident 16 removed the tube. Mr. Gilliland put the

tube in three or four times. Each time, Resident 16 removed it.

When Dr. Haslam was informed of this, he told Mr. Gilliland that

he could discontinue using the feeding tube.

24. Resident 16 ate until two days before she died.

25. When Resident 16 was admitted to Gulf Coast on

September 3, 1999, Resident 16 could ambulate with assistance

and was incontinent of bladder and bowel. By the time of the

survey, Resident 16 could not walk at all and was bladder and

bowel incontinent. At the time of the survey, and for several

months before the survey, Resident 16 was bowel and bladder

incontinent, had impaired mobility, and was an insulin-dependent

diabetic. Resident 16 had occlusion of the arteries and veins

of her lower extremities, which resulted in poor circulation.

These are high-risk conditions for pressure wounds.

Resident 26

26. Resident 26 was admitted to Gulf Coast on June 7,

1998. Resident 26 required extensive care with daily living

activities and was approximately 83 years old at the time of the

survey.

27. On August 14, 1999, a stage I pressure sore was

observed on the coccyx of Resident 26. By August 20, 1999, the

pressure sore had become a stage II. By October 1999, the

pressure sore on the coccyx had become a stage IV, and pressure

sores had developed on the Resident 26's knee and on the left

heel. Both of these sores were diagnosed as stage II. By

November 11, 1999, the pressure sore on the coccyx was causing

pain to Resident 26. It was determined on November 16, 1999,

that the wound on the coccyx was infected with methicellin-

resistant staphylococcus aureus (MRSA).

28. MRSA is a type of infection that is resistant to

antibiotics. It is communicable, and it is imperative that it

be controlled.

29. Vancomycin is the antibiotic of choice when treating

MRSA. Resident 26 was administered Vancomycin and procedures

were instituted to determine its effectiveness. The facility's

staff determined that it would be best if a PICC line was

installed in Resident 26. A PICC line is a method for

administering antibiotics intravenously. In the case of

Resident 26, records which tracked the status of the MRSA, were

inadequate. Resident 26 refused to allow the PICC line to be

placed. There is no indication whether Resident 26 refused

Vancomycin administered in some other manner.

30. On November 19, 1999, Dr. Ernest Haslam was notified

of Resident 26’s refusal to allow installation of the PICC line.

This information was not available at the time of the survey.

At the time of the survey there were no documents indicating

that the infection was being properly tracked or that there was

an adequate treatment plan.

31. The care plan for the treatment of Resident 26's

pressure sores addressed providing proper nutrition, which

included dietary supplements and pressure-relieving devices.

Resident 26 was offered a feeding tube but Resident 26 declined.

The implementation of the feeding tube was discussed by Resident

26's doctor with Resident 26's family and together they decided

not to use it. The nutrition provided for Resident 26 was

acceptable under the circumstances.

32. Resident 26 was, at the time of the survey, and for

several months before the survey, incontinent of both bowel and

bladder. Resident 26's rheumatoid arthritis was so severe that

Resident 26 was required to ingest anti-neoplastic drugs, which

can kill cells. Resident 26 was admitted with a diagnosis of

failure to thrive. Resident 26 was required to take Prednisone,

which can contribute to the formation of pressure sores.

Resident 26's albumin level was high, and a high albumin level

promotes the formation of pressure sores. Resident 26 had a

living will and had provided instructions not to resuscitate and

resisted necessary treatment. These factors put Resident 26 at

a high risk for pressure sores.

Resident 22

33. Resident 22 was 67 years of age upon admission to Gulf

Coast on May 12, 1999. Resident 22 had an open surgical wound

on the hip upon admission, along with a fractured hip and

gastrointestinal bleeding. Resident 22 also was anemic and had

cardiovascular disease.

34. On July 7, 1999, Resident 22 had a stage II pressure

sore on the right heel, which had been present on admission. On

September 2, 1999, it was noted that the left hip was infected

and antibiotics were administered. On October 13, 1999, it was

noted that Resident 22 had a stage III pressure sore on the

right heel and a stage II open area on the right lateral foot.

Poor nutrition was not a contributing factor with regard to

Resident 22's pressure sores.

35. On May 29, 1999, bilateral profo boots were prescribed

for Resident 22, to be used for positioning of the feet while in

bed. Dr. Osama Elshazly ordered the use of the profo boots.

The use of profo boots was not included in the plan of care.

Dr. Elshazly discontinued the use of the boots on January 1,

2000. There was speculation among the facility staff that the

profo boots may have contributed to the pressure sores.

36. Resident 22, at the time of the survey, and for

several months before the survey, had pressure sore risk factors

of diabetes mellitus, end-stage renal disease, coronary artery

disease and arteriosclerosis obliterans. This latter condition

means that the circulation in Resident 22's lower extremities

was poor.

Resident 15

37. Resident 15 is 87 years of age. Resident 15 was

admitted to Gulf Coast on September 13, 1994. Upon admission,

Resident 15 had ingrown toenails, a deformed left hammer toe,

and other medical conditions involving the feet. Resident 15

required extensive assistance from staff in the activities of

daily living and received nutritional support in the form of

tube feeding.

38. On December 17, 1999, Resident 15 was admitted to the

Bay Medical Center due to a cerebrovascular accident, which is

commonly referred to as a "stroke."

39. Resident 15 was returned to Gulf Coast on December 23,

1999. After the cerebrovascular accident, Resident 15 was even

less mobile and suffered a decline both mentally and medically.

40. On March 1, 2000, Resident 15 was noted as having a

pressure sore on her left bunion. Staff informed Ms. Baxter

that they believed it occurred because Resident 15 had limited

mobility.

41. Resident 15, at the time of the survey and for several

months before the survey, had pressure sore risk factors of

bowel and bladder incontinence, congestive heart failure, and

peripheral vascular disease. Resident 15 was a noninsulin-

dependent diabetic.

CONCLUSIONS OF LAW

42. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

cause, pursuant to Sections 120.569(1) and 120.57(1), Florida

Statutes.

43. A nursing home is substantially affected by a

Conditional rating. A Conditional license must be prominently

displayed in the nursing home so it can be seen by the public.

Section 400.23(7)(d), Florida Statutes. This negatively affects

both the reputation and the business interests of a nursing

home. Moreover, a facility cannot qualify for a gold seal

rating if it has been rated Conditional within the preceding

thirty months. Section 400.235, Florida Statutes.

44. The burden of proof is on AHCA. The party seeking to

prove the affirmative of an issue has the burden of proof.

Florida Department of Transportation v. J.W.C Company, Inc. , 396

So. 2d 778 (Fla. 1st DCA 1981) and Balino v. Department of

Health and Rehabilitative Services , 348 So. 2d 349 (Fla. 1st DCA

1977).

45. AHCA also had the burden of going forward with the

evidence. Once the Respondent proved by a preponderance of the

evidence that pressure sores occurred subsequent to a person

being admitted to a nursing home, it then became incumbent on

the facility to go forward, in the nature of an affirmative

defense, with proof to demonstrate that the pressure sore was

unavoidable. Emerald Oaks v. Agency for Health Care

Administration , 2000 WL 1629354 (Fla. App. 2 Dist.).

46. Rule 59A-4.128(4), Florida Administrative Code,

provides that a Conditional rating shall be assigned to a

facility if, at the time of the survey, there is a Class II

deficiency.

47. The TAG 314 in this case alleges a Class II deficiency

with regard to Residents 16, 26, 22, and 15. Rule 59A-

4.128(3)(a), Florida Administrative Code, provides that, "Class

II deficiencies are those deficiencies that present an immediate

threat to the health, safety, or security of the residents of

the facility and the AHCA establishes a fixed period of time for

the elimination and correction of the deficiency."

48. In its effort to prove Class II deficiencies in this

case, ACHA alleged in the TAG 314, ". . . that the facility did

not prevent the skin breakdown of four of five residents sampled

who had acquired pressure sores in-house that were avoidable."

This standard essentially recites 42 Code of Federal Regulation,

Section 483.25(c)(1).

49. There are clinical conditions or diagnoses which would

predispose a person to development of pressure sores. If proper

care is provided and a pressure sore still develops, one can

consider the overall medical condition of the person and

conclude that pressure sores are unavoidable. Beverly

Enterprises-Florida v. Agency for Health Care Administration ,

745 So. 2d 1133 (Fla. 1st DCA 1999).

50. Each of the four residents alleged to have pressure

sores, had factors which tended to make the acquisition of

pressure sores highly likely and their treatment difficult. The

focus of the survey was poor nutrition and its connection to

pressure sores. Residents 16, 26, 22, and 15 were provided

adequate nutrition under the circumstances.

51. AHCA demonstrated by a preponderance of the evidence

that the pressure sores occurred subsequent to admission to the

facility. However, the evidence demonstrated by a preponderance

of the evidence that the pressure sores were unavoidable.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that Respondent enter a final order finding

Petitioner not guilty of the alleged deficiencies and

reinstating Petitioner's license rating to Standard as of

March 15, 2000.

DONE AND ENTERED this 27th day of December, 2000, in

Tallahassee, Leon County, Florida.

___________________________________

HARRY L. HOOPER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 27th day of December, 2000.

COPIES FURNISHED:

Christine T. Messana, Esquire

Agency for Health Care Administration

2727 Mahan Drive

Building 3, Suite 3431

Tallahassee, Florida 32308-5403

Donna H. Stinson, Esquire

Broad and Cassel

215 South Monroe Street, Suite 400

Post Office Box 11300

Tallahassee, Florida 32302

Sam Power, Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive

Building 3, Suite 3431

Tallahassee, Florida 32308

Julie Gallagher, General Counsel

Agency for Health Care Administration

2727 Mahan Drive

Building 3, Suite 3431

Tallahassee, Florida 32308

Ruben J. King-Shaw, Jr., Director

Agency for Health Care Administration

2727 Mahan Drive

Building 3, Suite 3116

Tallahassee, Florida 32308

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.