99-002745 Agency For Health Care Administration vs. Pinehurst Convalescent Center (Beverly Enterprises-Fla., Inc., D/B/A Beverly Gulf Coast-Florida) Status: Closed Recommended Order on Friday, June 30, 2000.

Summary: Respondent failed to have and maintained minimum standards of care which were Class II deficiencies. $2,500 fine in one case; $20,000 ($5,000 x 4 violations) in another. Conditional license for period of time that the deficiencies remained uncorrected.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) Case Nos. 99-2745

) 99-2746

PINEHURST CONVALESCENT CENTER ) 00-0049

(BEVERLY ENTERPRISES-FLA, INC., )

d/b/a BEVERLY GULF COAST- )

FLORIDA), )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in these

cases on January 13-14, 2000, in Fort Lauderdale, Florida, and

on January 27, 2000, by video teleconference at sites in

Tallahassee and Fort Lauderdale, Florida, before Errol H.

Powell, a designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Christine T. Messana, Esquire

Mark S. Thomas, Esquire

Agency for Health Care Administration

2727 Mahan Drive

Fort Knox Building Three, Suite 3431

Tallahassee, Florida 32308

For Respondent: R. Davis Thomas, Jr.

Qualified Representative

Broad and Cassel

215 South Monroe Street, Suite 400

Post Office Drawer 11300

Tallahasseee, Florida 32302

STATEMENT OF THE ISSUES

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.

PRELIMINARY STATEMENT

This cause involves three cases. On May 14, 1999, the

Agency for Health Care Administration (Petitioner) issued an

Administrative Complaint against Pinehurst Convalescent Center

(Beverly Enterprises- Fla, Inc., d/b/a Beverly Gulf Coast-

Florida) (Respondent), which is Case No. 99-2745. Petitioner

charged Respondent with failing to ensure that each resident

received the necessary care and services to attain or maintain

the highest practicable physical, mental, and psychosocial well-

being in accordance with the comprehensive care plan relative to

assessments of acute conditions through record review and staff

interview on October 9, 1998, thereby violating the minimum

standards, rules, and regulations promulgated by Petitioner

under Chapter 400, Part II, Florida Statutes.

On December 21, 1999, Petitioner filed an Administrative

Complaint against Respondent, charging Respondent with violating

the minimum standards, rules, and regulations for the operation

of a Nursing Home, which is Case No. 00-0049. Petitioner

specifically charged Respondent with the following:

(1) violating Subsections 400.022(1)(j), (k), and (l),

Florida Statutes, by failing to obtain informed consent, to

document that informed consent was obtained, and to provide

adequate and appropriate health care services, and violating

Rule 59A-4.106(4)(x), Florida Administrative Code, by failing to

maintain policies and procedures regarding informed consent; (2)

violating Rule 59A-4.106(4)(cc), Florida Administrative Code, by

failing to have policies and procedures for reporting accidents

and unusual incidents in one of 20 sampled residents; (3)

violating Subsections 400.022(1)(j), (k), and (l), Florida

Statutes, and Rule 59A-4.1288, Florida Administrative Code, by

failing to ensure that two residents in 20 in the sample

received necessary treatment and services to promote healing,

prevent infection, and prevent new sores from developing; and

(4) violating Subsection 400.022(1)(l), Florida Statutes, and

Rule 59A-4.109(2), Florida Administrative Code, by failing to

maintain the acceptable parameters of nutritional status for one

resident out of the sample of 20. Based on a survey completed,

forming the basis for the Administrative Complaint of December

21, 1999, Petitioner changed Respondent's license rating to

Conditional, effective April 21, 1999, through July 2, 1999,

which is Case No. 99-2746.

These matters were referred to the Division of

Administrative Hearings (DOAH) for hearing. By Orders dated

August 20, 1999, and Janury 11, 1999, these matters were

consolidated before DOAH.

The parties filed a Joint Pre-hearing Stipulation.

Furthermore, at hearing, Petitioner stated that for the

violation in Case No. 99-2745, it was relying only upon its

survey findings for Resident No. 5 in the Administrative

Complaint and that for the violations in Case No. 00-0049, it

was relying upon its survey findings for Resident Nos. 1 and 3

in the Administrative Complaint.

At hearing, Petitioner presented the testimony of five

witnesses 1/ and entered 24 exhibits (Petitioner's Exhibits

numbered 1-24) into evidence. Respondent presented the

testimony of three witnesses, 2/ entered three exhibits

(Respondent's Exhibits numbered 1, 3, and 5) into evidence, and

proffered one exhibit (Respondent's Exhibit numbered 4).

At post-hearing, Respondent filed a Motion to Strike

Portions of Petitioner's Proposed Recommended Order. Petitioner

filed a Response to Respondent's Motion to Strike Portions of

Petitioner's Recommended Order and Request for Sanctions.

Respondent filed a Response to Petitioner's Motions for

Sanctions. The premises being considered, Respondent's Motion

to Strike and Petitioner's Motion for Sanctions are denied.

A transcript of the hearing was ordered. At the request of

the parties, the time for filing post-hearing submissions was

set for more than ten days following the filing of the

transcript.

The Transcript, consisting of four volumes, was filed on

March 20, 2000. The parties were granted an extension of time

to file their post-hearing submissions. The parties timely

filed their post-hearing submissions on April 26, 2000. The

parties' post-hearing submissions were considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times material hereto, Respondent was a licensed

nursing home located in Pompano Beach, Florida.

2. 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.

3. 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.

4. 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.

5. 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.

6. 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

7. 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.

8. Petitioner's surveyor performed a resident review of

Resident No. 5.

Tag F309

9. 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."

10. 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;

(2) 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.

11. 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.

12. 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.

13. 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.

14. 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.

15. 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.

16. 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.

17. 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.

18. 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.

19. 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.

20. 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.

21. 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.

22. Respondent failed to develop a care plan expeditiously

and timely in order to address Resident No. 5's risk for

falling.

23. No evidence was presented to demonstrate that Resident

No. 5 was resistant to using the interventions.

24. 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.

25. 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.

26. 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.

27. The evidence, in totality, demonstrates that Resident

No. 5's decline was avoidable.

28. 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

29. 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

30. Based upon the Class II deficiency of Tag F309,

Petitioner imposed a fine of $5,000 upon Respondent.

The April 1999 Survey

31. 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

32. 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.

33. Petitioner's resident surveyor also made personal

observations, interviewed staff, and had a consultation with a

registered dietician, who was Petitioner's consultant.

34. The survey team leader conducted the family interview.

35. 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.

36. 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.

37. Resident No. 3 required total and complete assistance

with all her activities of daily living ( ADLs). She was

completely dependent.

38. The family of Resident No. 3 made the health care

decisions for her, in particular, her son.

39. 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.

40. 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.

41. 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.

42. 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.

43. 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.

44. 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.

45. 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.

46. 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.

47. 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.

48. 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.

49. 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.

50. 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.

51. 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.

52. 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.

53. 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.

54. 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.

55. 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

56. 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."

57. Petitioner's survey team determined that Respondent

did not have procedures and policies in place to prevent the

"neglect" of Resident No. 3.

58. 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.

59. 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.

60. Whether Respondent provided Resident No. 3 the

necessary goods and care was indeterminable by the survey team.

61. 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.

62. 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

63. 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.

64. 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.

65. 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

66. 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."

67. 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.

68. 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.

69. 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.

70. The evidence is insufficient to demonstrate that

Respondent committed a violation of Tag F314.

Tag F325

71. 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."

72. 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.

73. Respondent failed to "ensure" that Resident No. 3's

nutritional status was maintained.

74. 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

75. 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.

76. 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.

77. 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.

78. 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

79. 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 . . . ."

80. 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.

81. 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.

82. 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

83. 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."

84. 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.

85. 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.

86. 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

87. 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.

88. 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.

89. On July 2, 1999, Petitioner re-surveyed Respondent.

Petitioner determined that Respondent had corrected all of the

deficiencies.

Conditional License

90. 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

91. 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.

CONCLUSIONS OF LAW

92. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and the

parties thereto pursuant to Section 120.569 and Subsection

120.57(1), Florida Statutes.

93. License revocation proceedings are penal in nature.

The burden of proof is on Petitioner to establish by clear and

convincing evidence the truthfulness of the allegations in the

Administrative Complaints. Department of Banking and Finance,

Division of Securities and Investor Protection v. Osborne Stern

and Company , 670 So. 2d 932 (Fla. 1996); and Ferris v.

Turlington , 510 So. 2d 292 (Fla. 1987).

94. Regarding the issue as to whether Respondent should be

issued a Conditional license, Petitioner has the burden of

establishing by a preponderance of evidence that Respondent

should be issued a Conditional license. Florida Department of

Transportation v. J.W.C. Company, Inc. , 396 So. 2d 778 (Fla. 1st

DCA 1981); Subsection 120.57(1), Florida Statutes.

95. A licensee is charged with knowing the practice act

that governs his/her license. Wallen v. Florida Department of

Professional Regulation, Division of Real Estate , 568 So. 2d 975

(Fla. 3d DCA 1990).

96. Section 400.23, Florida Statutes ( Supp. 1998),

provides in pertinent par:

(8) The agency shall, at least every 15

months, evaluate all nursing home facilities

and make a determination as to the degree of

compliance by each licensee with the

established rules adopted under this part as

a basis for assigning a rating to that

facility. The agency shall base its

evaluation on the most recent inspection

report, taking into consideration findings

from other official reports, surveys,

interviews, investigations, and inspections.

. . .

97. Rule 59A-4.1288, Florida Administrative Code, provides

in pertinent part:

Nursing homes that participate in Title

XVIII or XIX must follow certification rules

and regulations found in 42 CFR 483,

Requirements for Long Term Care Facilities,

September 26, 1991, which is incorporated by

reference. . .

98. Section 400.121, Florida Statutes ( Supp. 1998),

provides in pertinent part:

(1) The agency may deny, revoke, or suspend

a license or impose an administrative fine,

not to exceed $500 per violation per day,

for a violation of any provision of s.

400.102(1) . . . .

(2) The agency, as a part of any final

order issued by it under this part, may

impose such fine as it deems proper, except

that such fine may not exceed $500 for each

violation. Each day a violation of this part

occurs constitutes a separate violation and

is subject to a separate fine, but in no

event may any fine aggregate more than

$5,000. A fine may be levied pursuant to

this section in lieu of and notwithstanding

the provisions of s. 400.23. Fines paid by

any nursing home facility licensee under

this subsection shall be deposited in the

Resident Protection Trust Fund and expended

as provided in s. 400.063.

[Emphasis added]

99. Section 400.102, Florida Statutes (1997), provides in

pertinent part:

(1) Any of the following conditions shall

be grounds for action by the agency against

a licensee:

(a) An intentional or negligent act

materially affecting the health or safety of

residents of the facility;

* * *

(d) Violation of provisions of this part or

rules adopted under this part; or

* * *

(2) If the agency has reasonable belief

that any of such conditions exist, it shall

take the following action:

* * *

(b) In the case of an applicant for

relicensure or a current licensee,

administrative action as provided in s.

400.121 or injunctive action as authorized

by s. 400.125.

100. Section 400.23, Florida Statutes ( Supp. 1998),

provides further in pertinent 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.

(Emphasis added)

(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.

The October 1998 Survey

101. Regarding the October 1998 survey, Petitioner

demonstrated that Respondent committed a violation of Tag F309

and that the violation was a Class II deficiency.

102. Section 400.22, Florida Statutes (1997), provides in

pertinent part:

(1) All licensees of nursing home

facilities shall adopt and make public a

statement of the rights and responsibilities

of the residents of such facilities and

shall treat such residents in accordance

with the provisions of that statement. The

statement shall assure each resident the

following:

* * *

(j) The right to be adequately informed of

his or her medical condition and proposed

treatment, unless the resident is determined

to be unable to provide informed consent

under Florida law, or the right to be fully

informed in advance of any nonemergency

changes in care or treatment that may affect

the resident's well-being; and, except with

respect to a resident adjudged incompetent,

the right to participate in the planning of

all medical treatment, including the right

to refuse medication and treatment, unless

otherwise indicated by the resident's

physician; and to know the consequences of

such actions.

(k) The right to refuse medication or

treatment and to be informed of the

consequences of such decisions, unless

determined unable to provide informed

consent under state law. When the resident

refuses medication or treatment, the nursing

home facility must notify the resident or

the resident's legal representative of the

consequences of such decision and must

document the resident's decision in his or

her medical record. The nursing home

facility must continue to provide other

services the resident agrees to in

accordance with the resident's care plan.

(l) The right to receive adequate and

appropriate health care and protective and

support services, including social services;

mental health services, if available;

planned recreational activities; and

therapeutic and rehabilitative services

consistent with the resident care plan, with

established and recognized practice

standards within the community, and with

rules as adopted by the agency.

103. Rule 59A-4.106, Florida Administrative Code, provides

in pertinent part:

(4) Each facility shall maintain policies

and procedures in the following areas:

* * *

(x) Resident's rights;

* * *

(cc) The reporting of accidents or unusual

incidents involving any resident, staff

member, volunteer or visitor. This policy

shall include reporting within the facility

and to the AHCA.

104. Rule 59A-4.109, Florida Administrative Code, provides

in pertinent part:

(2) The facility is responsible to develop

a comprehensive care plan for each resident

that includes measurable objectives and

timetables to meet a resident's medical,

nursing, mental and psychosocial needs that

are identified in the comprehensive

assessment. The care plan must describe the

services that are to be furnished to attain

or maintain the resident's highest

practicable physical, mental and social

well-being. The care plan must be completed

within 7 days after completion of the

resident assessment.

(3) At the resident's option, every effort

shall be made to include the resident and

family or responsible party, including

private duty nurse or nursing assistant, in

the development, implementation, maintenance

and evaluation of the resident plan of care.

105. Rule 59A-4.128, Florida Administrative Code, further

provides in pertinent 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. . . .

The April 1999 Survey

Resident No. 3

106. As to Tag F224, Petitioner demonstrated that

Respondent committed a violation of the said Tag. Further,

Petitioner demonstrated that the deficiency was a Class II

deficiency.

107. Regarding Tag F280, Petitioner demonstrated that

Respondent committed a violation of the said Tag. In addition,

Petitioner demonstrated that the deficiency was a Class II

deficiency.

108. As to Tag F314, Petitioner failed to demonstrate that

Respondent committed a violation of the said Tag. Because no

violation was found, it is not necessary to determine whether

the alleged violation was a Class II deficiency.

109. Regarding Tag F325, Petitioner demonstrated that

Respondent committed a violation of the said Tag. In addition,

Petitioner demonstrated that the deficiency was a Class II

deficiency.

Resident No. 1

110. As to Tag F225, Petitioner demonstrated that

Respondent committed a violation of the said Tag. Further,

Petitioner demonstrated that the deficiency was a Class II

deficiency.

111. Regarding Tag F314, Petitioner demonstrated that

Respondent committed a violation of the said Tag. In addition,

Petitioner demonstrated that the deficiency was a Class II

deficiency.

Penalty

112. As to the October 1998 survey, in which Respondent

committed a violation of Tag F309, a Class II deficiency,

Respondent corrected the deficiency by the day after the survey,

October 10, 1998.

113. Regarding the April 1999 survey in which Respondent

committed violations of Tags F224, F225, F280, F314, and F325,

all Class II deficiencies, Petitioner's imposition of a $20,000

was based upon its determination that Respondent had Class II

deficiencies of Tags F224, F225, F314, and F325, excluding F280.

When Petitioner conducted a re-visit to Respondent to determine

the status of the said deficiencies, the deficiencies had not

been corrected. The undersigned has determined that Respondent

did not commit a violation of Tag F314 as the violation relates

to Resident No. 3, but that Respondent did commit a violation of

Tag F314 as it relates to Resident No. 1.

114. Furthermore, a Class II deficiency is subject to a

fine from $1,000 to $5,000 for each deficiency even though

Petitioner "may" impose a fine of $500 per day.

115. Additionally, for rating purposes a Class II

deficiency is equal in severity to a Class I deficiency.

116. Petitioner demonstrated that changing Respondent's

license to a Conditional license, as a result of the April 1999

survey, was warranted. Petitioner further demonstrated that

designating the effective date from April 21, 1999, which was

the day of the survey, through July 2, 1999, which was the date

that Petitioner observed that all of the deficiencies were

corrected, was appropriate and warranted.

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:

1. 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).

2. 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.

3. Find that, as to the April 1999 survey, Pinehurst

Convalescent Center (Beverly Enterprises- Fla, Inc., d/b/a

Beverly Gulf Coast-Florida):

a. 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.

b. 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.

c. 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.

d. 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.

4. Impose a penalty of $2,500 for the violation committed

as to the October 1998 survey.

5. Impose a penalty of $5,000 per violation for the four

violations committed as to the April 1999 survey, totaling

$20,000.

6. 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

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 30th day of June, 2000.

ENDNOTES

1/ Considering the proof required, this Administrative Law Judge

found the opinions of Petitioner's expert to be more credible

than those of Respondent's experts. Realizing that, as to the

October 1998 survey, only Respondent had an expert, this

Administrative Law Judge did not find the expert's opinions

credible.

2/ Ibid.

COPIES FURNISHED:

Christine T. Messana, Esquire

Mark S. Thomas, Esquire

Agency for Health Care Administration

2727 Mahan Drive

Fort Knox Building Three, Suite 3431

Tallahassee, Florida 32308

R. Davis Thomas, Jr., Qualified Representative

Broad and Cassel

215 South Monroe Street, Suite 400

Post Office Drawer 11300

Tallahassee, Florida 32302

Sam Power, Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive

Fort Knox Building Three, Suite 3431

Tallahassee, Florida 32308

Julie Gallagher, General Counsel

Agency for Health Care Administration

2727 Mahan Drive

Fort Knox Building Three, Suite 3431

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.