95-002422 Agency For Health Care Administration vs. Convalescent Services, Inc., D/B/A Conway Lakes Nursing Center Status: Closed Recommended Order on Thursday, November 30, 1995.

Summary: Enter a Final Order finding Respondent not guilty of the allegations in the Administrative Complaint and reinstating a superior rating by November 1, 1994.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) CASE NOS. 95

) 95-3022

CONVALESCENT SERVICES, INC., )

d/b/a CONWAY LAKES NURSING CENTER, )

)

Respondent. )

____________________________________)

RECOMMENDED ORDER

A formal hearing was conducted in this proceeding before Daniel Manry, a

duly designated Hearing Officer of the Division of Administrative Hearings, on

July 25 and September 7, 1995, in Orlando, Florida.

APPEARANCES

For Petitioner: Linda L. Parkinson, Esquire

Division of Health Quality Assurance

Agency For Health Care Administration

400 West Robinson Street, Suite 309

Orlando, Florida 32801

For Respondent: Michael J. Cherniga, Esquire

Greenberg, Traurig, Hoffman, Lipoff,

Rosen & Quentel, P.A.

101 East College Avenue

Post Office Drawer 1838

Tallahassee, Florida 32302

STATEMENT OF THE ISSUES

The issues for determination in this proceeding are whether uncorrected

Class III deficiencies existed on January 30, 1995, when Petitioner conducted a

follow-up survey of Respondent's nursing home; and, if so, whether Petitioner

should impose a fine and change the rating of Respondent's license from superior

to conditional.

PRELIMINARY STATEMENT

Petitioner filed an Administrative Complaint against Respondent on March

30, 1995. The Administrative Complaint alleges that deficiencies in minimum

licensure standards existed during an annual survey conducted on October 6,

1994, and during a follow-up survey conducted on January 30, 1995. The

Administrative Complaint seeks to impose an administrative fine of $1,400 for

the alleged violations. Respondent timely requested a formal hearing.

By letter dated February 23, 1995, Petitioner advised Respondent that

Petitioner was changing Respondent's license rating from superior to

conditional. Respondent timely requested a formal hearing for the proposed

rating change to its license.

The separate matters were consolidated on July 18, 1995. They were heard

during a two-day formal hearing conducted on July 25 and September 7, 1995.

At the formal hearing, Petitioner presented the testimony of six witnesses

and submitted four exhibits for admission in evidence. Respondent presented the

testimony of six witnesses and submitted 21 exhibits for admission in evidence.

The identity of the witnesses and exhibits, and the rulings regarding each, are

set forth in the transcripts of the formal hearing filed on August 24 and

September 25, 1995.

Petitioner timely filed its proposed recommended order ("PRO") on October

5, 1995. Respondent timely filed its PRO on October 10, 1995. Proposed

findings of fact in Petitioner's PRO are addressed in the Appendix to this

Recommended Order. Proposed findings of fact in Respondent's PRO are accepted in

this Recommended Order.

FINDINGS OF FACT

1. Petitioner is the governmental agency responsible for inspecting

nursing homes and enforcing licensure requirements for nursing homes in

accordance with Chapter 400, Florida Statutes, 1/ and Florida Administrative

Code Rule 59A-4.128 (amended, July, 1987). 2/ Petitioner also rates nursing

home licenses as either superior, standard, or conditional. 3/

2. Respondent is licensed to operate a nursing home. Respondent operates a

120-bed nursing home as Conway Lakes Nursing Center ("Conway Lakes").

3. Respondent's license was due to expire on October 31, 1994.

Respondent's license was renewed. However, on November 4, 1994, its license

rating was change from superior to conditional.

1. The Initial Survey

4. On October 3-6, 1994, Petitioner conducted an inspection survey

at Conway Lakes (the "initial survey"). The initial survey was conducted by

seven team members. The team members spent 140 hours at Conway Lakes and

complied with applicable procedures, protocols, and guidelines in Appendix P of

HCFA's Transmittal No. 250 ("Transmittal 250").

ansmittal 250 prescribes a minimum sample size based upon resident

census and case mix. Case mix is divided into four categories: light care;

heavy care; non-interviewable light care; and non-interviewable heavy care.

6. Sample selection is made by consensus of the survey team members after

they have completed an orientation tour. The orientation tour is the principle

method of identifying residents who will be included in the sample.

7. After completing the orientation tour, the survey team correctly

selected a sample of 23 residents from a total population of 111. The team

members reviewed resident records to assure that residents in the sample

satisfied applicable requirements for case mix.

8. Team members prepared a resident roster on the appropriate HCFA form.

Team members identified residents by number on the form and recorded

observations for each numbered resident on the form.

9. Team members assessed environmental quality, resident records, resident

rights, dietary services, medication, and quality of care. The quality of care

assessment is particularly complex and intensive. It involves comprehensive

review of medical records, care plans, and assessments; as well as interviews

and observations.

10. The quality of care assessment includes a dining room observation and

review. The dining room observation and review must comply with applicable

protocols for quality of care assessment. The team members complied with

protocols prescribed for the dining room observation and review. 4/

11. Petitioner issued a survey report alleging seven deficiencies. The

survey report classified each deficiency as a "Class III" deficiency within the

meaning of Section 400.23(9)(c). 5/ The report stated that each deficiency was

a violation of corresponding sections of Rule 59A-4.106 and 42 Code of Federal

Regulations 483 ("CFR"). 6/

2. The Follow-up Survey

12. After the initial survey, Respondent submitted a plan of correction

for its deficiencies. Petitioner conducted a follow-up survey on January 30,

1995. The follow-up survey was conducted by two team members (the "surveyors")

to determine whether Respondent had corrected the deficiencies noted in the

survey report.

13. With two exceptions, Petitioner found that Conway Lakes met all

requirements to continue a superior rating for Respondent's license. The two

exceptions were for uncorrected deficiencies Petitioner found in Respondent's

accommodation of needs for individual residents and in the environment at Conway

Lakes.

2.01 Accommodation Of Needs

14. One deficiency was for Respondent's alleged failure to assure that

residents receive reasonable accommodation of individual needs and preferences

within the meaning of 42 CFR 493.15(e) ("accommodation of needs"). The

surveyors found deficiencies in accommodation of needs during dining room

service and during in-room dining service. The surveyors also found a

deficiency pertaining to a sign posted over one resident's bed stating, "Cannot

feed self, she must be fed."

15. The surveyors concluded that staff did not accommodate the individual

needs of some residents in the dining room who needed assistance with their

food. The surveyors claimed that staff was "dashing" from one resident to

another offering only bits of food at a time.

16. The surveyors observed three residents in the dining room with their

plate guards in an allegedly incorrect position. One of the residents was

observed trying to scoop her food. The food was observed spilling over the edge

of the plate.

17. Another resident required assistance to spear a piece of bacon. One

of the surveyors observed that a staff member was verbally cuing the resident

regarding the location of the bacon. The resident was able to spear that piece

of bacon. However, the surveyor observed that the staff member did not return

for four or five minutes.

18. A staff member encouraged another resident to eat but did not return

to provide further assistance. The surveyor claimed that the resident left the

dining room after consuming only 10 percent of her food.

19. A surveyor noted that two residents were served a pitcher of water but

received no assistance in pouring the water into their glasses. One of the

residents attempted to pick up the pitcher but had to set it down because the

resident's hand started shaking.

20. One surveyor observed two residents in their rooms without any

assistance from staff. The surveyor classified both of these residents as

cognitively impaired and as requiring assistance with their meals.

21. One surveyor observed two residents in their rooms with their food

trays uncovered. No staff was observed assisting the residents for a period of

five minutes.

22. One surveyor observed a sign over a resident's bed stating that the

resident needed assistance in feeding. The surveyor did not observe the

resident receiving any assistance.

2.02 Environment

23. The second deficiency was for Respondent's alleged failure to provide

a safe, clean, comfortable, and homelike environment in which residents are

allowed to use personal belongings in accordance with 42 CFR 483.15(h)(1)

("environment"). 7/ The surveyors found deficiencies in the environment after

noting urine odors, two soiled intravenous ("IV") stands, and a soiled suction

apparatus in a resident's room.

24. The surveyors found a stale urine odor at the entry of Conway Lakes

and at the ends of the hall closest to the lobby area on both the east and west

wings of the facility. One observer found pervasive urine odors in Room 227 on

the west wing as well as in the hall in front of Room 227.

25. One surveyor found that the bases for two IV stands used to hang tube

feeding formulas were soiled with formula at the base of the stands. She also

found a soiled and uncovered suction apparatus in a room.

26. The cleaning tag on the apparatus indicated that the apparatus was

last cleaned on January 21, 1995. The surveyor asked the staff nurse if the

apparatus was last cleaned on January 21, 1995. The staff nurse confirmed that

the apparatus was last cleaned on January 21, 1995.

27. The bottle on the suction apparatus was one-third full of mucous. The

surveyor concluded that the mucous had been in the bottle since January 21,

1995.

3. Procedural Deficiencies In Follow-Up Survey

28. A follow-up survey is conducted to re-evaluate the areas cited as

deficient during the initial survey in order to determine if the deficiencies

have been corrected. To assure consistency, the follow-up survey generally

should follow protocols prescribed in Transmittal 250 for the initial survey.

ansmittal 250 requires the sample size for the follow-up survey to

be 60 percent of the sample size selected for the initial survey. In selecting

the sample for the follow-up survey, the survey team should focus on residents

who are most likely to have those conditions, needs, or problems cited in the

initial survey. If possible, the survey team members should include some

residents identified as receiving substandard care during the initial survey.

30. Surveyors did not select residents who were most likely to have

problems cited in the initial survey. The surveyors made no effort to include

in the follow-up survey sample residents who were included in the initial survey

sample.

31. Surveyors did not review resident records to assure that residents in

the follow-up survey satisfied case mix requirements in Transmittal 250. The

surveyors did not review resident records, such as medical records, care plans,

and dining room records to distinguish between residents who required light care

or heavy care or to determine which residents were non- interviewable.

32. The surveyors did not prepare a resident roster on the appropriate

HCFA form, or otherwise. The surveyors randomly observed residents on an ad hoc

basis.

33. The follow-up survey was conducted by two team members who devoted

four hours each to the follow-up survey. They did not have time to conduct a

thorough survey. The surveyors did not comply with protocols prescribed in

Transmittal 250.

34. The two surveyors who observed the dining room service during the

follow-up survey did not observe the dining room service during the initial

survey. The surveyors in the follow- up survey had no baseline from which they

could assess any improvement or deterioration in dining room service after the

initial survey.

35. The surveyors did not observe the entire dining process. Their

observations were cursory, at best. Neither surveyor spent more than 15 minutes

in the dining room.

36. One surveyor did a loop through the dining room, paused in the back to

write some notes, and then returned to the front of the dining room. She stood

there for a few minutes and left at 12:40 p.m. The dining room process

continued until 1:40 p.m.

37. The other surveyor entered the dining room at 12:30 p.m., left at

12:35 p.m., reentered at 12:40 p.m., and left for the final time at about 12:50

p.m.

38. The objective of the dining observation review is to:

. . . observe the quality of life and the quality

of care associated with the dining experience

for residents included in the Standard Survey

sample who are triggered for a Dining Observation

review. This observation allows for integrating

information gained from an in-depth review of

residents' nutritional status and information on

meals and snacks from the Individual Resident's

Rights Interview, with your direct observation of

these residents dining.

A resident in the sample should be observed while

dining if at least one of the following is present:

Dining complaint during an interview;

Nutritional (protein/calorie) deficiencies;

Weight loss of more than 5 percent;

Therapeutic or mechanically altered diet;

Complaint of hunger or not being fed; or

Presence of a pressure sore.

Transmittal 250.

39. The surveyors did not consult resident records to measure such

outcomes as weight gain or loss for residents. Nor did the surveyors integrate

information gained from an in-depth review of residents' nutritional status with

direct observations.

4. Accommodation Of Needs

40. There is no deficiency in Respondent's accommodation of needs of

individual residents. Respondent accommodates the needs of individual residents

in dining room service, in-room service, and in posting signs over residents'

beds. Even if the alleged deficiencies exist, they are not Class III

deficiencies that are related to the health, safety, or security of residents.

4.01 Dining Room Service

41. Respondent provides residents in the dining room with reasonable and

appropriate accommodation of needs. Respondent utilizes a restorative dining

process in an attempt to restore the maximum self sufficiency possible for each

resident.

4.01(a) The Restorative Dining Process

42. The restorative dining process requires Respondent to assess the

individual needs and conditions of each resident. Respondent then develops a

plan to return the resident to independent eating and self sufficiency to the

fullest extent possible for each resident.

43. Respondent maintains written policies and procedures for its

restorative dining process. The policies and procedures provide guidelines for

implementing the restorative dining process.

44. Respondent uses outcome measurements to assure that the health and

nutritional needs of each resident are met in the restorative dining process.

The staff monitors food intake for every meal and assesses weight gain or loss

monthly.

4.01(b) Dashing About

45. The dining room at Conway Lakes is designed and operated to achieve

the goals of the restorative dining process. The dining room has a restaurant-

like atmosphere with individual dining tables and decor, chandeliers, and

wallpaper.

46. Residents are seated in standard dining room tables and chairs.

Wheelchair bound residents are transferred to these chairs when appropriate.

47. The staff serves each resident individually. A staff member brings

each resident's meal out of the kitchen on a tray with the resident's menu card.

The plates are then placed on the table.

48. Staff members verbally cue residents as needed in order to encourage

independence and self help. Verbal cuing is a valid and appropriate means of

encouraging self help and independence.

49. Staff members provide full time assistance to those residents who need

it. Volunteers also assist with residents who need full time assistance.

50. The "dashing" about of staff in the dining room is not a deficiency in

the accommodation of needs of residents using the dining room. Staff members

are busy in the dining room serving food, cuing residents, assisting others, and

monitoring all residents in the dining room.

51. Even if "dashing" about is a deficiency, it is not a Class III

deficiency. There is no deficiency in the health or nutritional needs of

residents or in their safety or security.

4.01(c) Plateguards

52. Respondent provided reasonable and appropriate accommodation of needs

in positioning resident plateguards. Staff members did not position resident

plateguards incorrectly.

53. There is no standard position for a plateguard. The correct position

for a plateguard is determined by an assessment of the individual needs and

abilities of each resident.

54. The assessment of the individual needs of each resident is conducted

by staff members in nursing, occupational therapy, and speech therapy.

Respondent maintains written plateguard instructions in the dining room. The

surveyors did not review resident records to determine the proper position for

plateguards based on the individual needs of the residents observed.

55. Some residents scoop a plate from right to left or from left to right.

Others scoop from front to back or vice versa. One of the residents observed by

the surveyors did not require a plate guard because that resident receives a

sandwich at every meal and does not scoop food.

56. Plateguards may be incorrectly positioned by residents rather than

staff. Residents commonly reposition plateguards during the course of a meal.

57. Staff members constantly monitor plateguard positions during meals

and make adjustments appropriate for the individual resident. Appropriate

adjustments were made in every case observed by the surveyors. Surveyors were

not in the dining room long enough to know that staff members corrected any

plateguards that were in fact improperly positioned.

58. The surveyors noted that plateguards were placed on plastic plates

rather than china plates. Some china plates had recently been broken. Staff

members were using plastic plates while new china plates were on order.

59. The china plates were replaced within a short period after the follow-

up survey. However, the surveyors did not inquire about the order for new

plates or the expected delivery date.

4.01(d) The Bacon

60. Staff members at Conway Lakes provided the resident who attempted to

spear a piece of bacon with appropriate accommodation of needs. The bacon was

included as decoration and tenderizer for meatloaf. It was not a substantive

part of the meal.

61. That resident is very particular about her bacon. She demands that

her bacon be brown and crispy when she typically receives bacon during her

breakfast.

62. The resident ate 80 percent of the meal observed by the surveyor. She

normally eats only 70-75 percent of her meals.

63. The surveyor was not present in the dining room long enough to

determine the total amount of bacon or other food consumed by the resident. Nor

did the surveyor consult the resident's records for outcome measurements to

determine if the resident's nutritional needs were suffering.

64. Even if the incident was a deficiency, it was not a Class III

deficiency. It was not a deficiency in the health or nutritional needs of the

resident or in her safety, or security.

4.01(e) The Resident Who Ate Only 10 Percent Of Her Meal

65. The resident who left the dining room after eating only 10 percent of

her meal was very ill. She suffered from chronic gastro intestinal ("GI")

bleeding. Staff members encouraged the resident to go to the dining room to

increase the resident's social contact.

66. The resident was served a tuna sandwich. A tuna sandwich was not part

of the regular menu. Staff members decided that the resident should be given

anything she felt like eating in order to maintain an accurate percentage of

food intake. The resident ate the entire sandwich that she was served.

67. The surveyor did not inquire into the medical status of the resident.

Nor was the observer present in the dining room long enough to determine the

total amount of the meal consumed by that resident.

4.01(f) The Two Residents Who Were Served Water

68. Respondent provided the two residents who were served water with

reasonable and appropriate accommodation of their needs. Staff members provided

the two residents with adequate assistance in getting their water. The surveyor

was not in the dining room long enough to determine whether the residents

received assistance.

69. The resident whose hand shook when attempting to pour water from the

pitcher suffers from Parkinson's disease. It is not unusual for that resident

to try to help himself by picking up his own water pitcher.

4.02 In-Room Dining Service

70. Respondent provided reasonable and appropriate accommodation of the

needs of four residents observed eating in their rooms. The residents either

did not need assistance or received adequate assistance.

4.02(a) One Unattended Resident On The West Wing

71. One of the residents housed in the west wing of Conway Lakes is

cognitively impaired and needs assistance with her meals. Appropriate

assistance was provided by the resident's adult granddaughter. The

granddaughter routinely assists the resident with her meal.

72. Staff members were aware that the granddaughter was providing

appropriate assistance to the resident. The granddaughter fed the resident in

20 minutes, beginning at 12:10 p.m.

73. The resident did not complete her meal. That was consistent with the

resident's normal routine.

74. Even if the incident was a deficiency, it was not a Class III

deficiency. It does not relate to the health, safety, or security of the

resident.

75. The resident does not experience any weight loss problem. She eats

appropriate portions from her food tray. The observer did not consult the

resident's records to assess the resident's accommodation of needs on the basis

of outcome measurements.

4.02(b) The Other Unattended Resident On The West Wing

76. The other west wing resident is not cognitively impaired. She is

alert and oriented.

77. The resident is capable of independent eating. She does not require

assistance with meals except for set up.

78. Set up includes cutting meat and pouring liquids. The resident

received adequate assistance appropriate to her individual needs.

79. This resident is hearing impaired. She can not be interviewed orally.

80. The resident did not respond to the observer's verbal inquiries

because she is hearing impaired. The observer did not consult the resident's

medical records and erroneously classified the resident as "non-interviewable."

4.02(c) The Two Residents On The East Wing

81. Both residents on the east wing of Conway Lakes who were allegedly

unattended received reasonable and appropriate accommodation of their needs.

Both residents require only set up assistance with their meals. Otherwise, each

resident is able to eat independently.

82. One of the residents refuses to eat in front of other people. She is

embarrassed about her eating. She would not eat as long as she was being

observed.

83. Both residents received assistance appropriate to their individual

needs. Both residents ate appropriate portions of their noon meals.

84. Even if the incidents were deficiencies, they are not Class III

deficiencies. Neither resident suffers from any weight loss or nutritional

problems.

85. The surveyors did not review resident records to assess the residents'

accommodation of needs based on outcome measurements. Nor did the surveyors

consult resident records to determine the level of assistance required by each

resident or to distinguish between residents who were hearing impaired and those

who were cognitively impaired.

4.02(d) The Posted Sign

86. A sign was posted over one resident's bed stating that the resident

can not feed herself and must be fed. The sign was posted by members of the

resident's family.

87. Respondent provides this resident with reasonable and appropriate

accommodation of needs. Even if the incident were a deficiency, it is not a

Class III deficiency. The resident eats appropriate portions at each meal and

does not suffer any weight loss problems.

4.03 Environment

88. Respondent provides a safe and clean environment at Conway Lakes.

Respondent is not deficient in the environment it maintains at Conway Lakes.

Even if the problems observed by the surveyors are deficiencies in the

environment, they are not Class III deficiencies that relate to the health,

safety, or security of residents.

4.03(a) The Urine Odors

89. Respondent has implemented reasonable measures to maintain an odor

free environment at Conway Lakes. Respondent adequately assessed the cause of

the urine odors at Conway Lakes and is making all reasonable efforts to deal

with the source of the problems. The problems are adequately noted and

discussed in the care plans of the individual residents who cause urine odors at

the facility.

90. The surveyors failed to review records and care plans of individual

residents to understand the cause of the urine odors at Conway Lakes. The

surveyors also failed to familiarize themselves with the specific care needs of

the individual residents in order to evaluate the impact of the residents' needs

on their environment.

91. One resident in the east wing is incontinent. Her room is located

very close to the front entry of Conway Lakes.

92. The resident attempts to wash her own under garments. She then stuffs

the still-soiled garments into air conditioning vents, underneath her pillow,

under the mattress, on the closet shelves, and in between clean clothes.

93. The odors generated by this resident are not confined to her room.

They permeate through the door and can be detected in other parts of the

facility.

94. Respondent has implemented reasonable measures to maintain an odor

free environment for this resident. Nursing and housekeeping staff pay close

attention to this resident. They are constantly alert to find misplaced and

soiled garments.

95. Respondent has replaced the carpet in this resident's room with tile.

Respondent provides this resident with three changes of clothes at each shift;

making it easier for staff members to track soiled clothes. Staff members mop

this resident's room once each shift. Staff members give this resident one to

two showers a day.

96. The problems with this resident are well documented in her resident

records, including her individual care plan. The surveyors did not review those

records.

97. Another resident in Room 227 is very alert and oriented. However, he

purposefully urinates on the floor, his books, and his furniture.

98. The odor permeates other areas of the facility. It is not limited to

his room.

99. Respondent has provided behavior modification treatment to this

resident. Respondent had the resident evaluated for alternative

placement by the state agency responsible for determining an appropriate

placement in a long term care facility as a means of preventing inappropriate

Medicaid expenditures.

100. The agency determined that this resident should remain in a nursing

home because of physician orders and concern over a mental health diagnosis.

Respondent has made every reasonable effort to address this problem.

4.03(b) The Soiled IV Stands

101. One of the IV stands was soiled because the resident for which it was

used was being discharged. Staff members were teaching the resident's husband

how to administer tube feeding utilizing the IV stand.

102. During the training, formula spilled on the base of the IV stand.

The spilled formula was cleaned up as soon as practicable.

103. The other soiled IV stand also involved ordinary splatter after use.

The splatter was cleaned up upon discovery by the unit manager.

4.03(c) The Suction Apparatus

104. The suction apparatus was also being used to train the husband of the

resident who was discharged on the day of the follow-up survey. The suction

apparatus had just been used in training. The mucous was not present in the

bottle for nine days.

105. The tag on the apparatus showing January 21, 1995, as the last date

of cleaning showed the date that the entire machine was last cleaned. Each

machine is thoroughly cleaned before going back into central supply. It is then

given a new tag and stored in central supply until it is needed by another

resident.

CONCLUSIONS OF LAW

106. The Division of Administrative Hearings has jurisdiction over the

subject matter of this proceeding and the parties thereto. The parties were

duly noticed for the formal hearing.

107. Petitioner has the burden of proof in this proceeding. Petitioner

must show by a preponderance of evidence that uncorrected Class III deficiencies

existed on January 30, 1995, when Petitioner conducted its follow-up survey of

Conway Lakes; and that Respondent's license rating should be changed from

superior to conditional. Young v. State, Department of Community Affairs, 567

So.2d 2 (Fla. 3d DCA 1990); Florida Department of Transportation v. J.W.C.

Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981); Balino v. Department of Health

and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977).

108. Petitioner failed to satisfy its burden of proof. Respondent

corrected all of the deficiencies found in the initial survey. No uncorrected

Class III deficiencies existed at the time of the follow-up survey.

109. The deficiencies observed by the surveyors during the follow-up

survey, if any, were not Class III deficiencies. They did not have an indirect

or potential relationship to the health, safety, or security of the residents.

110. Petitioner claims that Rule 59A-4.1288 requires both Class III and

Level B deficiencies to be corrected at the time of the follow-up survey in

order to obtain a superior rating. However, Rule 59A-4.1288 applies to surveys

conducted after March 1, 1995, for the first time. It does not apply to follow-

up surveys conducted on Conway Lakes on January 30, 1995.

111. Even if Rule 59A-4.1288 did apply to this proceeding, it would not

change the findings and conclusions in this Recommended Order. Petitioner

failed to show by a preponderance of the evidence that an uncorrected Level B

deficiency existed at the time of the follow-up survey.

112. The surveyors failed to follow applicable procedures for the follow-

up survey. The observations and findings from such a survey are unreliable.

The testimony supporting their observations and findings was not credible and

was unpersuasive.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that Petitioner enter a Final Order finding Respondent not

guilty of allegations contained in the Administrative Complaint and reinstating

Respondent's superior rating effective November 1, 1994.

RECOMMENDED this 30th day of November, 1995, in Tallahassee, Florida.

___________________________________

DANIEL S. MANRY

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 30th day of November 1995.

ENDNOTES

1/ All chapter and section references are to Florida Statutes (1993) unless

otherwise stated.

2/ Unless otherwise stated, all references to rules are to rules promulgated in

the Florida Administrative Code, last amended in July, 1987. The current

version of Rule 59A-4.128 is applicable to nursing homes surveyed on or after

March 1, 1995.

3/ Petitioner rates a nursing license as conditional pursuant to Rule 59A-

4.128(4) if the nursing home fails to satisfy the requirements prescribed in

Rule 59A-4.128(5) for a standard rating. Petitioner rates a nursing home

license as superior pursuant to Rule 59A-4.128(6) if the nursing home exceeds

the requirements in Rule 59A-4.128(5) for a standard rating.

4/ Paras. 38a.-m., 39, and 40a.-d. in Respondent's proposed findings of fact

question the credibility of the observations made by the survey team during the

initial survey. However, any defects in the initial survey are irrelevant and

immaterial because the issue for determination in this proceeding is whether any

of the deficiencies noted by the survey team during the initial survey were

uncorrected at the time of the follow-up survey.

5/ Sec. 400.23(9)(c) defines Class III deficiencies as those:

. . . which . . . have an indirect or potential relationship to the health,

safety, or security of the . . . residents. . . .

6/ In designating deficiencies in accommodation of needs as a Class III

deficiencies, Petitioner erroneously cited Rule 59A- 4.106(3)(r), (x), and (cc)

which requires Respondent to maintain written policies and procedures in the

respective areas of nursing services, resident's rights, and incident reporting.

7/ In designating the deficiencies in environment as a Class III deficiencies,

Petitioner erroneously cited Rule 59A- 4.106(3)(k) which requires Respondent to

maintain written policies and procedures for housekeeping. Petitioner also

classified the deficiencies as "Level B" deficiencies under the federal

classification system.

APPENDIX TO RECOMMENDED ORDER, CASE NOS. 95-2422 AND 95-3022

Petitioner's Proposed Findings Of Fact.

1.-5. Accepted in substance

6.-7. Rejected as irrelevant and immaterial (relates to the

initial survey)

8. Accepted as to the observations, but the proposed

finding that Respondent failed to accommodate the needs

of the residents is rejected in as not supported by

credible and persuasive evidence

9. Accepted in substance

Respondents' Proposed Findings Of Fact.

Respondent's proposed findings of fact are accepted in this Recommended

Order.

COPIES FURNISHED:

Douglas Cook, Director

Agency For Health Care Administration

2727 Mahan Drive

Tallahassee, Florida 32308

Jerome Hoffman, Esquire

General Counsel

Agency For Health Care Administration

2727 Mahan Drive

Tallahassee, Florida 32308

Linda L. Parkinson, Esquire

Division of Health Quality Assurance

Agency For Health Care Administration

400 West Robinson Street, Suite 309

Orlando, Florida 32801

Michael J. Cherniga, Esquire

Greenberg, Traurig, Hoffman, Lipoff,

Rosen & Quentel, P.A.

101 East College Avenue

Post Office Drawer 1838

Tallahassee, Florida 32302

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended

Order. All agencies allow each party at least 10 days in which to submit

written exceptions. Some agencies allow a larger period within which to submit

written exceptions. You should contact the agency that will issue the final

order in this case concerning agency rules on the deadline for filing exceptions

to this Recommended Order. Any exceptions to this Recommended Order should be

filed with the agency that will issue the final order in this case.

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

AGENCY FOR HEALTH CARE ADMINISTRATION

STATE OF FLORIDA, AGENCY FOR

HEALTH CARE ADMINISTRATION,

DOAH Case No. 95-2422

Petitioner, 95-3022

AHCA No. 7-95-598-NH

vs. 7-95-612-NH

RENDITION No. AHCA-96-181-FOF-OLC

CONVALESCENT SERVICES, INC.,

d/b/a CONWAY LAKES NURSING

CENTER,

Respondent.

_____________________________/

FINAL ORDER

This cause came on before me for the purpose of issuing a final agency

order. The Hearing Officer assigned by the Division of Administrative Hearings

(DOAH) in the above-styled case submitted a Recommended Order to the Agency for

Health Care Administration (AHCA). The Recommended Order entered November

30,1995, by Hearing Officer Daniel Manry is incorporated by reference.

RULING ON EXCEPTIONS

FILED BY AHCA

Counsel excepts to the hearing officer's conclusion stated as a finding of

fact that the violations charged by the agency do not constitute Class III

deficiencies. The administrative complaint charges two violations: one,

failure to reasonably accommodate the individual needs of impaired residents

with eating meals, and two, failure to provide a clean, comfortable, and

homelike environment in that persistent urine odors were present at the entrance

of the facility and at the ends of the halls in both wings.

Class Ill deficiencies are defined as . . those which the agency

determines to have an indirect or potential relationship to the health, safety,

or security of the nursing home facility residents . . .", Section 400.23(9),

Florida Statutes (emphasis added). The record supports the conclusion that

persistent foul odors adversely affect the health, including mental health, of

nursing home residents. The classification of violations is a policy function

which is the responsibility of the agency. Killearn vs. Department of Community

Affairs, 623 So2d 771, 776 (Fla. 1st DCA 1993)(findings infused with policy

considerations). The charged violations are properly classified as Class III

deficiencies. The exception is granted.

Counsel excepts to the conclusion that Conway Lakes is not guilty of

failure to reasonably accommodate the individual needs of impaired residents

with eating meals. Conflicting evidence was presented regarding this violation.

It is the function of the hearing officer to resolve such conflicts; therefore,

the exception is denied. Heifetz vs. Department of Business Regulation, 475

So2d 1277, 1281(Fla. 1st DCA 1985).

Counsel excepts to the hearing officer's conclusion that the persistent and

pervasive urine odors do not constitute a violation because of Conway Lakes'

effort to control the odors. The exception is granted. See the conclusions of

law herein for discussion.

FINDINGS OF FACT

The agency hereby adopts and incorporates by reference the findings of fact

set forth in the Recommended Order except where inconsistent with the rulings on

the exceptions. The findings and conclusions of this Final Order are made after

a review of the complete record. Conway Lakes, a nursing home, challenges the

agency's intent to impose fines for two Class III violations. Also at issue is

whether Conway Lakes should lose its superior rating based on the violations.

Count one of the administrative complaint charges failure to reasonably

accommodate the individual needs of impaired residents with eating meals; count

two charges failure to provide a clean, comfortable, and homelike environment in

that persistent urine odors were present at the entrance of the facility and at

the ends of the halls in both wings. As to count one, the hearing officer

weighed conflicting evidence and concluded that Conway Lakes did provide

reasonable assistance to residents with eating meals. As to count two, Conway

Lakes did not challenge the existence of the urine odors, but offered the

defense that two difficult residents caused the odors and that facility staff

made reasonable efforts to control the odor. The hearing officer accepted the

"reasonable efforts" defense. The hearing officer recommends that Conway Lakes

be found not guilty of both counts, and that Conway Lakes be rated as a superior

facility.

CONCLUSIONS OF LAW

The agency hereby adopts and incorporates by reference the conclusions of

law set forth in the Recommended Order except where inconsistent with this Final

Order. The issue of overriding importance in this case is whether a nursing

home with pervasive and persistent urine odor should be given the State's

highest quality rating, "superior". 1/ Conway Lakes' license is not at stake

here, but the credibility of the State's quality rating is. This is an

important consumer issue. Based on uncontroverted expert opinion evidence, I

conclude that a well-run nursing home should not have lingering offensive odors.

As noted by the expert, every nursing home will experience odor problems from

time to time, but the key to a quality, homelike environment is the response

time to the cause of an offensive odor. 2/, 3/

At hearing, Conway Lakes did not challenge the existence of persistent

urine odors, but offered in defense the problems it encountered with two

difficult residents. See paragraphs 89 through 100 of the Recommended Order.

Keeping in mind that the paramount question to be decided here is Conway Lakes'

quality rating, the dispositive factual issue is the existence of persistent,

pervasive urine odors, not the cause of such odors nor reasonable efforts to

control the odors. 4/ Thus, a violation of the requirement that the facility

maintain a clean, homelike environment has been established. The violation is a

Class III deficiency in that it poses an indirect or potential threat to the

health, including mental health, of the facility's residents. See Section

400.23(9)(c), Florida Statutes. As such, Conway Lakes is not entitled to a

superior rating. The findings regarding the difficult residents and Conway

Lake's efforts to control the odor are relevant in mitigation and I conclude

that no fine should be imposed.

Based upon the foregoing, it is

ADJUDGED, that Convalescent Services, Incorporated, doing business as

Conway Lakes Nursing Center be rated as conditional and that no fine be imposed.

DONE and ORDERED this 13th day of February, 1996, in Tallahassee, Florida,

STATE OF FLORIDA, AGENCY FOR

HEALTH CARE ADMINISTRATION

____________________________

Douglas M. Cook, Director

ENDNOTES

1/ Nursing homes are evaluated periodically by the agency and given a quality

rating of superior, standard, or conditional. Section 400.23(8), Florida

Statutes.

2/ See the testimony of Carol Wittig, transcript of proceedings of July 25,

1995, pages 42 and 43.

3/ It is noted that my conclusion and the supporting expert opinion are

consistent with the findings and conclusions of the respected consumer journal,

Consumer Reports. See Consumer Reports, Nursing Homes When A Loved One Needs

Care, August 1995, page 518, High-quality [nursing] homes have no lingering

stench. Yet at 90 percent of the homes we visited, strong urine odors or the

thick scent of air freshener used to mask them greet visitors at the front door

Accidents happen in every nursing home, but how fast they are cleaned up is a

key to quality care.", page 523.

4/ The hearing officer sustained Conway Lakes' objection to testimony that the

facility had a long- standing problem with urine odor. See transcript of

proceedings of September 7,1995, page 40. With the benefit of hindsight,

evidence of a history of such problems would have been relevant in rebuttal.

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:

Linda Parkinson, Esquire

Senior Attorney, Agency for

Health Care Administration

400 West Robinson Street

Suite 5-309

Orlando, Florida 32801-1976

Michael J. Cherniga, Esquire

GREENBERG, TRAURIG, HOFFMAN,

LIPOFF, ROSEN & QUENTEL, P. A.

101 East College Avenue

Post Office Drawer 1838

Tallahassee, Florida 32302

Daniel Manry

Hearing Officer

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been

furnished to the above named addresses by U.S. Mail this 16th day of February,

1996.

________________________________

R. S. Power, Agency Clerk

State of Florida, Agency for

Health Care Administration

2727 Mahan Drive

Fort Knox 3, Suite 3431

Tallahassee, Florida 32308-5403

[phone]