98-005174 Agency For Health Care Administration vs. Beverly Health And Rehabilitation Center-Coral Trace Status: Closed Recommended Order on Tuesday, June 15, 1999.

Summary: Agency for Health Care Administration failed to prove by preponderance of the evidence any grounds for downgrading Assisted Living Facility license from standard to conditional.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) Case No. 98-5174

)

BEVERLY HEALTH AND )

REHABILITATION CENTER-CORAL )

TRACE, )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of

Administrative Hearings, conducted the final hearing in Fort

Myers, Florida, on March 16, 1999.

APPEARANCES

For Petitioner: Karel Baarslag

Senior Attorney

Agency for Health Care

Administration

State Regional Service Center

Post Office Box 60127

Fort Myers, Florida 33906-0127

For Respondent: R. David Thomas, Jr.

Qualified Representative

Broad and Cassell

Post Office Dra wer 11300

Tallahassee, Florida 32302-1300

STATEMENT OF THE ISSUE

The issue is whether Petitioner lawfully issued Respondent a

conditional skilled nursing facility license.

PRELIMINARY STATEMENT

Based upon the results of an annual survey completed on

October 1, 1998, Petitioner issued Respondent a conditional

license, effective October 1, 1998, for its skilled nursing

facility. Petitioner issued a revised survey on December 28,

1998. The 38-page survey contains numerous issues of law, which

are entitled, "tags," and findings of fact, but Petitioner, in

its proposed recommended order, relies on only two tags that

comprise six findings of fact.

At the hearing, Petitioner called two witnesses and offered

into evidence one exhibit, which was excluded and proffered.

Respondent called two witnesses and offered into evidence nine

exhibits, which were admitted.

The court reporter filed the Transcript on April 27, 1999.

FINDINGS OF FACT

1. Respondent owns and operates a skilled nursing facility

known as Coral Trace in Cape Coral. Petitioner has issued

Respondent a skilled nursing facility license to operate the

facility.

2. Based on the findings from a survey completed on

October 1, 1998, Petitioner downgraded Respondent's license from

standard to conditional, effective October 1, 1998. Based on the

findings from a survey completed on March 15, 1999, Petitioner

raised Respondent's license from conditional to standard,

effective March 15, 1999. In this case, Petitioner attempts to

prove the bases for the downgraded license between October 1,

1998, and March 15, 1999.

3. Tag F 224, Finding of Fact 2, asserts that Respondent

failed to implement its policy prohibiting neglect of its

residents when staffpersons failed to respond timely to one

resident's request for a straw to drink her water.

4. On September 30, 1998, one of Petitioner's surveyors saw

Resident Number 16 awaken from a nap at about 3:45 PM. The

surveyor entered the resident's room to speak to her. The

resident said that she was thirsty, so the surveyor gave her the

cup next to her bed. The resident said that she could not drink

without a straw.

5. The surveyor turned on the call light to summon a

staffperson. A few minutes later, when no one had responded to

the light, the surveyor left the room and approached a

staffperson and relayed the request of Resident Number 16. About

ten minutes later, a staffperson entered the room and turned off

the call light.

6. At 4:15 PM, Resident Number 16, seated in her wheelchair

in her doorway, asked the surveyor, "Please help me, I'm so

thirsty." A staffperson was in the hallway, heard the resident's

call, approached the resident, and told her, "Let me finish what

I'm doing, and I'll get back to you." This staffperson returned

shortly with a straw, and the resident drank from the cup using

the straw. The record does not reveal, directly or by inference,

that the staffperson failed to help Resident Number 16 take a

drink of water.

7. The care plan for Resident Number 16 required that staff

monitor her for dehydration, but she was not dehydrated on the

day in question.

8. The evidence fails to establish that Respondent

neglected Resident Number 16 in connection with her need for

fluids. She had drunk eight ounces of milk at 3:00 PM. It is

possible that the staffperson who entered the room to turn off

the call light gave Resident Number 16 a quick drink of water

from the cup; with assistance, Resident Number 16 could drink

from the cup without a straw.

9. Even if the staffperson did not give Resident Number 16

a drink while in her room, no more than 30 or 35 minutes passed

from when Resident Number 16 awoke from her nap thirsty to when

she got a drink of water. Under the circumstances, this does not

constitute neglect.

10. Tag F 224, Finding of Fact 11, asserts that Respondent

failed to implement its policy prohibiting neglect of its

residents when residents complained about neglect in the form of

showering, answering call lights, and not being walked.

Petitioner failed to prove any neglect because it did not produce

any admissible evidence of these allegations of neglect.

11. Tag F 325, Finding of Fact 1, asserts that Respondent

failed to follow its policies requiring that Respondent not serve

house nutritional supplements to residents unless a physician has

ordered the supplement for a particular resident.

12. Petitioner's proposed recommended order discusses this

Finding of Fact, but Respondent's proposed recommended order

omits any discussion of this Finding of Fact. The Conclusions of

Law discuss the consequence of this omission from Respondent's

proposed recommended order and the larger issue of the omission

of any charging pleading in this case.

13. The evidence fails to establish that any failure on the

part of Respondent to ensure that it obtained a physician's order

prior to serving a resident a house nutritional supplement

presented an immediate threat to the health, safety, or security

of any resident in the facility. Nor does the evidence establish

that Respondent failed timely to correct any such deficiency.

14. Tag F 325, Finding of Fact 2, asserts that Respondent

failed to provide adequate nutrition to Resident 11, who

experienced a 14 percent weight loss, from 92 pounds to 79

pounds, over the eleven months preceding the inspection. This

Finding of Fact alleges that half of this weight loss took place

during the preceding three months, as the resident's weight

dropped from 85 pounds to 79 pounds, which is 63 percent of the

resident's desirable body weight of 125 pounds. Among other

allegations, this Finding of Fact asserts that, on two occasions,

a surveyor saw Resident 11 eating without assistance, playing

with her food, receiving 2 percent skim milk rather than whole

milk, failing to receive the nutritional shakes she was supposed

to receive, and sitting for 45-50 minutes without the cueing to

eat that she was supposed to receive from staff.

15. Resident 11 suffered from advanced senile dementia.

She was admitted to the facility in 1996 weighing 85 pounds.

While in the facility, her usual body weight ranged from 90-92

pounds, but, starting in January 1998, she began gradually to

lose weight, until she died in December 1998.

16. During this period, Respondent's dietician had

determined that Resident 11 required 1212 calories per day to

maintain a healthy body weight. Her base diet provided her 2231

calories per day. Fortified foods and a daily nutritional shake

added another 1335 calories per day. Even ignoring additional

nutritional shakes, which Petitioner's surveyors did not see

served, the caloric value of the nourishment served daily to

Resident 11 was three times what she required.

17. Most likely, the cause of Resident 11's weight loss and

death was senile dementia, not Respondent's nutritional policies

or implementation of these policies. The senile dementia also

impeded effective cueing from staff to get Resident 11 to eat

more of her food.

18. The evidence fails to establish that Respondent

provided inadequate nutrition to Resident 11.

19. Tag F 325, Finding of Fact 3, asserts that Respondent

failed to provide adequate nutrition to Resident 16. On June 19,

1998, Resident 16 had an albumin level of 2.9, which is below the

desirable range of 3.7 to 5.1. The Finding of Fact alleges that

a physician ordered, on June 26, 1998, a high-calorie cookie and

eight ounces of whole milk twice daily. The Finding of Fact

alleges that one surveyor saw the resident eat only a small part

of her special cookie at one serving.

20. Resident 16 has done well while residing at the

facility. She has received high-protein, not high-"calorie," as

alleged, cookies, but appears to maintain fairly low albumin

levels, which is not entirely atypical of frail, tiny elderly

persons.

21. The evidence fails to establish that Respondent

provided inadequate nutrition to Resident 16.

22. Tag F 325, Finding of Fact 4, asserts that Respondent

failed to provide adequate nutrition to Resident 17. Resident 17

allegedly lost 12.3 percent of her weight, from 110 pounds to

96.5 pounds, in the two-month period ending July 27, 1998.

Despite an order for three nutritional shakes per day,

Respondent's surveyor found, at 11:30 AM on September 29, 1998,

the 10:30 AM shakes for that and the prior day still in the

refrigerator.

23. Respondent's dietician determined in April 1998 that

Resident 17 required 1328 calories per day to maintain her body

weight of 109 pounds. The dietician established a diet that

provided her 3786 calories per day, exclusive of supplemental

nutritional shakes, of the type seen in the refrigerator during

the inspection.

24. When staff determined in June 1998 that Resident 17 had

lost nine pounds, Respondent's dietician added more supplements

and recommended monitoring and encouraging of Resident 17's

eating. It is more likely than not that a substantial portion of

Resident 17's weight loss was due to an upper respiratory

infection from which she suffered; after the infection cleared

up, Resident 17 regained weight.

25. The evidence fails to establish that Respondent failed

to meet the nutritional needs of Resident 11, 16, or 17.

CONCLUSIONS OF LAW

26. The Division of Administrative Hearings has

jurisdiction over the subject matter. Section 120.57(1), Florida

Statutes. (All references to Sections are to Florida Statutes.

All references to Rules are to the Florida Administrative Code.)

27. Section 400.23(9) provides, in relevant part:

(9) The agency shall adopt rules to provide

that, when the criteria established under

subsection (2) are not met, such deficiencies

shall be classified according to the nature

of the deficiency. The agency shall indicate

the classification on the face of the notice

of deficiencies as follows:

(a) Class I deficiencies are those which

the agency determines present an imminent

danger to the residents or guests of the

nursing home facility or a substantial

probability that death or serious physical

harm would result therefrom. The condition

or practice constituting a class I violation

shall be abated or eliminated immediately,

unless a fixed period of time, as determined

by the agency, is required for correction.

Notwithstanding s. 400.121(2), a class I

deficiency is subject to a civil penalty in

an amount not less than $5,000 and not

exceeding $10,000 for each and every

deficiency. A fine may be levied

notwithstanding the correction of the

deficiency.

(b) Class II deficiencies are those which

the agency determines have a direct or

immediate relationship to the health, safety,

or security of the nursing home facility

residents, other than class I deficiencies.

A class II deficiency is subject to a civil

penalty in an amount not less than $1,000 and

not exceeding $5,000 for each and every

deficiency. A citation for a class II

deficiency shall specify the time within

which the deficiency is required to be

corrected. If a class II deficiency is

corrected within the time specified, no civil

penalty shall be imposed, unless it is a

repeated offense.

(c) Class III deficiencies are those which

the agency determines to have an indirect or

potential relationship to the health, safety,

or security of the nursing home facility

residents, other than class I or class II

deficiencies. A class III deficiency shall

be subject to a civil penalty of not less

than $500 and not exceeding $1,000 for each

and every deficiency. A citation for a class

III deficiency shall specify the time within

which the deficiency is required to be

corrected. If a class III deficiency is

corrected within the time specified, no civil

penalty shall be imposed, unless it is a

repeated offense.

28. Rule 59A-4.128 provides, in relevant part:

(3) The rating assigned to the nursing home

facility will be either conditional, standard

or superior. The rating is based on the

compliance with the standards contained in

this rule and the standards contained in the

OBRA regulations. Non-compliance will be

stated as deficiencies measured in terms of

severity. For rating purposes, the following

deficiencies are considered equal in

severity: Class I deficiencies; Class II

deficiencies; and those Substandard Quality

of Care deficiencies which constitute either

immediate jeopardy to resident health or

safety or a pattern of or widespread actual

harm that is not immediate jeopardy. Further

for rating purposes, the following

deficiencies are considered equal in

severity: Class III deficiencies; and those

Substandard Quality of Care deficiencies

which constitute a widespread potential for

more than minimal harm to resident health or

safety, but less than immediate jeopardy with

no actual harm.

(a) Class I deficiencies are those which

present either an imminent danger, a

substantial probability of death or serious

physical harm and require immediate

correction. 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.

Substandard Quality of Care deficiencies are

deficiencies which constitute either:

immediate jeopardy to resident health or

safety; a pattern of or widespread actual

harm that is not immediate jeopardy; or a

widespread potential for more than minimal

harm, but less than immediate jeopardy, with

no actual harm.

(b) Class III deficiencies are those which

present an indirect or potential relationship

to the health, safety, or security of the

nursing home facility residents, other than

Class I or Class II deficiencies.

(4) A conditional rating shall be assigned

to the facility:

(a) if at the time of relicensure survey,

the facility has one or more of the following

deficiencies: Class I; Class II; or

Substandard Quality of Care deficiencies

which constitute either immediate jeopardy to

resident health or safety or a pattern of or

widespread actual harm that is not immediate

jeopardy; or

(b) if at the time of the relicensure

survey, the facility has Class III

deficiencies, or Substandard Quality of Care

deficiencies which constitute a widespread

potential for more than minimal harm to

resident health or safety, but less than

immediate jeopardy, with no actual harm and

at the time of the follow-up survey, such

deficiencies are not substantially corrected

within the time frame specified by the agency

and continue to exist, or

(c) new class I or class II or Substandard

Quality of Care deficiencies which constitute

either immediate jeopardy to resident health

or safety or a pattern of or widespread

actual harm that is not immediate jeopardy

are found at the time of the follow-up

survey.

29. Rule 59A-4.106 provides, in relevant part:

(2) Each nursing home shall adopt,

implement, and maintain written policies and

procedures governing all services provided

in the facility.

(3) All policies and procedures shall be

reviewed at least annually and revised as

needed with input from, at minimum, the

facility Administrator, Medical Director,

and Director of Nursing.

(4) Each facility shall maintain policies

and procedures in the following areas:

(h) Dietary services[.]

30. Petitioner declines to treat this type of case as a

license-renewal case with discretionary, rather than merely

ministerial, responsibilities assigned to the agency, so as to

impose the burden of proof on the Respondent. Petitioner thus

stipulates that it has the burden of proof.

31. Respondent contends that the standard of proof should

be clear and convincing evidence. Petitioner contends that the

standard of proof should be a preponderance of the evidence. The

standard of proof is not determinative in this case, so this

order uses the preponderance standard.

32. Petitioner has failed to prove the existence of any of

the alleged deficiencies, except that, as for Tag F 325, Finding

of Fact 2, Petitioner failed to prove that the deficiency could

serve as the basis of Petitioner's action downgrading

Respondent's license to conditional.

33. Lack of adequate notice is an alternative basis for a

finding adverse to Petitioner on Tag F 325, Finding of Fact 2.

Consistent with Petitioner's past practice in cases of this type,

it did not serve a charging pleading, but instead relied on the

survey report as the source of the legal and factual grounds in

support of the downgrading.

34. The problem in this case with Petitioner's approach to

pleading is that the survey report contains a massive amount of

information. When the agency intends to rely on only a few of

the issues contained in the report, the report inadequately

informs the licensee of the operative grounds for downgrading.

Although licensees could obtain more detailed information through

motion practice or discovery, it is the responsibility of

Petitioner, not the licensee, to identify the specific grounds

for agency action, because Petitioner has assumed the burden of

proof in this cases.

35. It is unfair to rely on a specific ground for

downgrading when Petitioner's failure to serve a focused charging

pleading reasonably results in prejudice to the licensee. In

this case, Respondent's proposed recommended order responds to

all of the alleged findings of fact except Finding of Fact 2

under Tag F 325. Respondent's omission is understandable due to

the scattergun approach that necessarily follows upon

Petitioner's reliance on a 38-page survey report to raise the six

issues of fact and law addressed in Petitioner's proposed

recommended order. Respondent's omission is prejudicial because,

even though Finding of Fact 2 under Tag F 325 arose during the

hearing, the absence of any post-hearing analysis of the laws and

facts concerning this Finding of Fact deprives the Administrative

Law Judge of an important source of guidance in preparing the

recommended order.

RECOMMENDATION

It is

RECOMMENDED that the Agency for Health Care Administration

enter a final order revising Respondent's license rating from

conditional to standard for the period from October 1, 1998,

through March 15, 1999.

DONE AND ENTERED this _____ day of June, 1999, in

Tallahassee, Leon County, Florida.

___________________________________

ROBERT E. MEALE

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 _____ day of June, 1999.

COPIES FURNISHED:

Karel Baarslag

Senior Attorney

Agency for Health Care

Administration

State Regional Service Center

Post Office Box 60127

Fort Myers, Florida 33906-0127

R. David Thomas, Jr.

Qualified Representative

Broad and Cassell

Post Office Drawer 11300

Tallahassee, Florida 32302-1300

Paul J. Martin, General Counsel

Agency for Health Care Administration

Fort Knox Building 3, Suite 3431

2727 Mahan Drive

Tallahassee, Florida 32308

Sam Power, Agency Clerk

Agency for Health Care Administration

Fort Knox Building 3, Suite 3431

2727 Mahan Drive

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 must be filed with the agency that will

issue the final order in this case.

KAREL L BAARSLAG

AGENCY FOR HEALTH CARE ADMINISTRATION

PO BOX 60127

FT MYERS FL 33906-0127

R DAVIS THOMAS JR

BROAD & CASSEL

PO BOX 11300

TALLAHASSEE FL 32302-1300

PAUL J MARTIN GENERAL COUNSEL

AGENCY FOR HEALTH CARE ADMINISTRATION

PO BOX 14229

TALLAHASSEE FL 32317-4229

SAM POWER AGENCY CLERK

AGENCY FOR HEALTH CARE ADMINISTRATION

PO BOX 14229

TALLAHASSEE FL 32317-4229