00-001996 Capital Health Care Center vs. Agency For Health Care Administration Status: Closed Recommended Order on Thursday, December 14, 2000.

Summary: It was appropriate for Agency for Health Care Administration to assign a conditional license to nursing home.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CAPITAL HEALTH CARE CENTER, )

)

Petitioner, )

)

vs. ) Case No. 00-1996

)

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Respondent. )

_____________________________)

RECOMMENDED ORDER

Notice was provided and on August 25, 2000, a formal hearing

was held in this case. The hearing location was 2727 East Mahan

Drive, Tallahassee, Florida. The authority for conducting the

hearing is set forth in Sections 120.569 and 120.57(1), Florida

Statutes. The hearing was conducted by Charles C. Adams,

Administrative Law Judge.

APPEARANCES

For Petitioner: Jay Adams, Esquire

Broad and Cassel

215 South Monroe Street, Suite 400

Post Office Box 11300

Tallahassee, Florida 32302

For Respondent: Christine T. Messana, Esquire

Agency for Health Care Administration

2727 Mahan Drive

Fort Knox Building 3, Suite 3431

Tallahassee, Florida 32308-5403

STATEMENT OF THE ISSUES

Should Respondent, Agency for Health Care Administration,

rate Petitioner, Capital Health Care Center's nursing home

facility license "conditional" for the period March 9, through

May 4, 2000? Section 400.23(7), Florida Statutes. In

particular, has Petitioner violated the requirements of Tag F324

as determined in Respondent's periodic survey concluded on

March 9, 2000? Is Tag F324 a "Class II" deficiency? Section

400.23(8)(b), Florida Statutes. In the event that Petitioner is

shown to have violated Tag F324 and the Tag is found to be a

Class II deficiency, the parties agree that Petitioner was

subject to a "conditional" license from March 9, through

April 10, 2000. Did the results of the Respondent's survey

concluded on March 9, 2000, reveal violations of Tags F371 and/or

F372, "Class III" deficiencies that were not corrected before

April 10, 2000, the date upon which Respondent resurveyed

Petitioner's nursing home facility? If the alleged violations of

Tags F371 and/or F372 were proven as of the survey that concluded

on March 9, 2000, and were not corrected by April 10, 2000, when

the facility was resurveyed, the parties agree that Petitioner

held a "conditional" license from April 10, 2000, until such time

as the last of Tag F371 of Tag F372 deficiencies were corrected.

Further, the parties agree that failing Petitioner's proof of the

date upon which the Tag F371 and/or Tag F372 deficiencies as

established were corrected, Petitioner's license was properly

rated as a "conditional" license until May 4, 2000, the date upon

which Respondent conducted a third survey in the series of

surveys directed to the Petitioner and found no further

violations?

PRELIMINARY STATEMENT

Respondent assigned Petitioner a "conditional" license for

the skilled nursing facility operated by Petitioner. The

beginning period for that license was March 9, 2000. The parties

agree that the concluding date was May 4, 2000. Petitioner

contested assignment of a "conditional" license for that period

by requesting a formal hearing to be conducted pursuant to

Sections 120.569 and 120.57(1), Florida Statutes. On May 11,

2000, the Division of Administrative Hearings was notified that

Petitioner desired a formal hearing. Respondent requested

assignment of an Administrative Law Judge to conduct proceedings

leading to a recommended order resolving the fact disputes and

recommending the legal outcome. The case was assigned and the

hearing ensued.

By stipulation the parties agreed that Respondent bore the

burden of proof in the proceeding to show that there was a basis

for imposing the "conditional" rating on Petitioner's license.

In support of that proof Respondent presented the witnesses

Christine Frazier, Wanda Sapp, Ethel Clinton, Edith Golden, Myra

Flores, and Anne McElreath. Respondent's Exhibits numbered 1

through 15 were admitted. In reference to Respondent's Exhibits

3 through 8, those exhibits have been sealed to avoid the

revelation of Resident 21's name, in that, although redacted, the

name can be seen on the exhibits. Petitioner presented Patricia

Johnson and Paul Kobary as its witnesses. Petitioner offered no

exhibits.

The parties filed a joint pre-hearing stipulation which has

been utilized in preparing the recommended order.

Certain hearsay statements are attributable to Resident 21

who resided in Petitioner's nursing home, when the initial survey

was conducted in March 2000. This refers to the alleged Tag F324

violation in which the Petitioner must ensure that Resident 21

receives adequate supervision and assistance devices to prevent

accidents. Respondent accuses the Petitioner through its

employees of improperly transferring Resident 21 from a

wheelchair to Resident 21's bed. It is alleged that two

Certified Nurses Assistants (CNAs) employed by Petitioner used an

improper means to lift Resident 21 resulting in a fracture in the

vicinity of the resident's ankle. Whether the hearsay statements

attributable to Resident 21 are exceptions recognized in Section

90.803(24), Florida Statutes, was unresolved at hearing. 1

A hearing transcript was filed on September 27, 2000.

Requests were made for additional time to file proposed

recommended orders. The most recent request was granted

extending the time for filing proposed recommended orders until

November 3, 2000. By these arrangements the parties have waived

the requirement that the recommended order be entered within 30

days of receipt of the hearing transcript. Rule 28-106.216,

Florida Administrative Code. Proposed recommended orders were

filed. They have been considered in preparing the recommended

order.

FINDINGS OF FACT

Stipulated Facts

1. Petitioner is a nursing home licensed by Respondent

pursuant to the authority granted in Chapter 400, Florida

Statutes. Petitioner is located at 3333 Capital Medical

Boulevard, Tallahassee, Florida 32308.

2. On March 6 through March 9, 2000, Respondent conducted a

survey at Petitioner's facility. As a result of that survey,

Respondent alleged that Petitioner was not in compliance with the

requirements of Tag F203, Tag F324, Tag F371, and Tag F372.

3. On April 10, 2000, Respondent conducted a revisit survey

at Capital. As a result of that survey, Respondent determined

that Petitioner had corrected the deficiencies alleged under Tag

F203 and F324. Respondent alleged that Petitioner had failed to

correct the deficiencies alleged under Tag F371 and Tag F372.

4. On May 4, 2000, Respondent conducted another revisit

survey at Capital and determined that all alleged deficiencies

had been corrected.

5. Tag F324 requires "the facility must ensure that each

resident receives adequate supervision and assistance devices to

prevent accidents." Respondent alleges that this requirement was

not met during the March 6-9, 2000, survey, and that the

deficiency had a scope and severity of "G" and constituted a

Class II deficiency.

6. Tag F371 requires "The facility must store, prepare,

distribute, and serve food under sanitary conditions."

Respondent alleges that this requirement was not met during the

March 6-9, 2000, and the April 10, 2000, surveys and that the

deficiency had a scope and severity of "F" during the March

survey, a scope and severity of "D" during the April survey, and

constituted a Class III deficiency at both surveys.

7. Tag F372 requires "The facility must dispose of garbage

and refuse properly." Respondent alleges that this requirement

was not met during March 6-9, 2000, surveys and that the

deficiency had a scope and severity of "D" and constituted a

Class III deficiency at both surveys.

Tag F324

8. At times relevant to the inquiry Resident 21 has lived

in Petitioner's nursing home.

9. On February 16, 2000, Resident 21 left the nursing home

and visited her sister at the sister's home. To prepare the

resident for her outing, two CNAs got Resident 21 up from her bed

in the nursing home and placed her in a wheelchair. A lifting

hoist was not used for this transfer. On this morning the two

CNAs did not use the mechanical lift, being unable to locate the

lift device. Therefore they opted to manually lift Resident 21

from the bed to the wheelchair. A sheet was used to lift

Resident 21 into her wheelchair.

10. At the time Resident 21 was paraplegic. She had had a

knee cap removed and that leg was stiff. When referring to the

one leg as stiff, it describes the fact that the leg will not

bend at the knee.

11. On February 16, 2000, once in the wheelchair,

Resident 21 was tra nsported to her sister's house by van or bus.

Resident 21 remained seated in her wheelchair for her visit with

her sister. Resident 21 was transported from the sister's home

back to the nursing home by van or bus, again remaining in the

wheelchair. Resident 21 was taken in and out of the van or bus

during the trips to and from her sister's home by use of a lift

in the vehicle.

12. On February 16, 2000, while visiting with her sister

Resident 21 offered no complaint about pain or discomfort in her

legs.

13. When Resident 21 returned to her room following her

visit with her sister, two CNAs transferred her from the

wheelchair to her bed. The two persons who made this transfer

were not the same persons as had placed Resident 21 in the

wheelchair earlier in the day. At the moment there was no lift

pad under Resident 21 to facilitate the transfer by using the

mechanical lift. The lift device attaches to the pad under the

upper thigh of a resident, and with the use of the hoist elevates

the resident from the wheelchair to the bed or from the bed to

the wheelchair. One of the CNAs determined to manually transfer

Resident 21 from the wheelchair to the bed. This followed the

request of Resident 21 to be placed in her bed. Before

Resident 21 was lifted fr om the wheelchair to the bed she

complained that her legs hurt.

14. At the time that the CNAs moved Resident 21 from the

wheelchair to the bed there was a fitted sheet under Resident 21.

15. When Resident 21 was returned to her bed from the

wheelchair, one CNA grasped Resident 21's upper torso under her

arms, while the other CNA lifted Resident 21 by grasping her in

the area behind her knees.

16. On this occasion in returning Resident 21 to her bed,

the arm of her wheelchair was taken off and the foot rest

adjusted. During the transfer from the wheelchair to the bed and

after the resident was placed in the bed she offered no complaint

about her condition.

17. The CNAs in Petitioner's nursing home are trained to

use the pad with the hoist or to have two CNAs pick a person in

Resident 21's condition up by the upper torso and legs in making

a transfer from the wheelchair to the bed.

18. In the event the pad is not available, under

Petitioner's policy, the CNAs may make a manual lift. The CNA

who normally worked with Resident 21 looked for the lifting pad

before seeking the assistance of the other CNA to make a manual

lift. Having not located the pad, she determined to seek the

assistance of the other CNA to conduct the manual lift from the

wheelchair to the bed.

19. On February 17, 2000, Resident 21 complained of leg

pain. This led to an X-ray being performed revealing a fracture

to the right ankle.

20. As revealed in the nurses' notes for Resident 21 in

explaining the physical condition, Resident 21 refers to her foot

being caught under the CNA's arm when the transfer was made from

the wheelchair to the bed. With this in mind, and the

description by Resident 21 in the nurses' notes that an accident

had taken place at that time, it is inferred that the fracture

occurred to the resident's right ankle when being lifted from the

wheelchair to the bed upon the return from her visit with her

sister.

21. Notwithstanding the attempt by the CNAs to use an

appropriate technique in the manual lift from the wheelchair to

the bed, the resident's foot was caught under the CNA's arm and

sometime during the process the ankle was fractured.

22. Results of in-service counseling provided to the CNAs

who manually lifted Resident 21 on February 16, 2000, reveal

Petitioner's intent to rely upon the use of mechanical lifting

devices in contrast to manual lifts as a policy matter.

23. During the March 6-9, 2000 licensing survey conducted

by Respondent at Petitioner's facility, a Tag F324 citation Class

II deficiency, was noted in relation to non-compliance with the

facility expectation that the preferred patient transfer

technique would be to employ a mechanical assist, not a manual

assist when lifting residents. As described, the circumstances

were different for Resident 21. According to the summary of

deficiencies in survey Form 2567 executed during the survey, the

subsequent lift from the wheelchair to the bed eventuated in a

fracture to Resident 21's lower extremity. The referenced

deficiency for Tag F324 corresponds to 42 C.F.R. Section

43.25(h)(2).

Tag F371

24. Tag F371 is in relation to 42 C.F.R. Section

43.35(h)(2). This provision requires the nursing home facility

to store, prepare, distribute, and serve food under sanitary

conditions.

25. During the March 2000 survey conducted by Respondent at

Petitioner's facility, it was noted on the survey Form 2567 that

Tag F371 alleged deficiencies were discovered in the facility

kitchen. On March 7, 2000, it is alleged that six dessert bowls

and two plates were dirty with food residue on the surfaces of

those items.

26. Ms. Myra Flores was a survey team member. She is a

public health nutrition consultant for Respondent. She holds a

bachelor of science degree in food and nutrition, a master of

public health and nutrition and is a doctoral candidate. She is

a registered dietitian licensed in the State of Florida. She had

undergone the Surveyor Minimum Qualifications Test allowing her

to evaluate complaints of health care facilities within federal

regulations.

27. In her inspection in March 2000, Ms. Flores found

dessert bowls and plates that were stored, indicating that they

had already been washed. Nonetheless the items had food residue

on their surfaces. From her perspective as a public health

nutritionist, contamination of utensils in facilities that house

residents who have compromised immune capacity is a concern.

There is an issue with food-borne illnesses. It can be inferred

that a nursing home is a place in which residents have

compromised immune capacity.

28. Ms. Ann McElreath was assigned by Respondent to re-

survey Petitioner's facility. That re-survey was conducted on

April 10, 2000. Ms. McElreath holds an A.S. degree in nursing

and a bachelor of science degree in psychology. Her observations

concerning the re-survey were recorded on a Form 2567 dated

April 10, 2000. That form notes an alleged repeat Class III

deficiency Tag F371 pertaining to observation of pans in a drain

rack with food particles on them. According to the report,

discussion was had with staff members in which it was stated that

the pans were items waiting to be re-washed. Inspection of other

pans identified to be cleaned and ready for use again revealed

two out of four having food particles on the surface, according

to the report.

29. When McElreath inspected the facility kitchen on

April 10, 2000, she entered the kitchen and was standing by the

dish-washing area where a staff member at the facility had just

completed "doing the dishes" and there were aluminum-type banking

pans draining. Ms. McElreath inquired of the attendant if those

pans had been finished, to which the employee replied "yes."

Ms. McElreath picked up the pans and examined them and some had

food particles on them. This was pointed out to the employee.

Mr. Paul Kobary, Petitioner's nursing home administrator, was in

the kitchen at that time. In reference to those pans he stated

that those were pans that were going to be re-washed. After a

moment's hesitation, the other employee at the facility agreed

with Mr. Kobary's comment concerning the re-wash. Ms. McElreath

asked that the unnamed employee identify items that were clean.

That woman pointed to a rack. Ms. McElreath pulled four

additional pans identified as being clean and found two of the

four to have food particles attached.

Tag F372

30. Under 42 C.F.R. §483.25(h)(3) is the reference to Tag

F372. This provision requires the nursing home facility to

dispose of garbage and refuse properly.

31. As noted in Form 2567 for the March 200 survey,

Petitioner was alleged to have violated Tag F372.

32. During the March 2000 survey Ms. Flores observed

facility practices in connection with disposing of refuse. She

observed a garbage bin being transported from the facility

kitchen to the dumpsters that serve the facility. The material

being transported was not covered. There was trash inside the

bin being removed from the facility and boxes were piled on top

of the bin. Petitioner's employee took the boxes and placed

those in one of the dumpsters. The dumpster in which the boxes

were placed through a side opening was then closed. An untied

plastic container with garbage inside was then removed from the

bin used for transport and then placed through a door on the side

of another dumpster. After which the dumpster where the untied

container of garbage was located was left partially open in that

the door providing access to the dumpster was not completely

closed.

33. At hearing Ms. Flores expressed the concern that by

leaving the side door opened to the dumpster in which the garbage

bag had been placed invited the harborage and the feeding of pest

and varmints because that dumpster contained food refuse from the

kitchen. The dumpster was located outside of the facility in the

vicinity of the woods and grass making the discarded food

available to those pests.

34. Based upon the incident in which the dumpster had been

left open following the disposal of the garbage bag, a Tag F372

incident was recorded on Form 2567 corresponding to a Class III

deficiency. In response Petitioner committed to a plan of

correction to be concluded by April 8, 2000, concerning the

maintenance of refuse in closed containers. This refers to

closed dumpsters. Since that survey Mr. Paul Kobary the nursing

home administrator checks twice a day to see that the dumpsters

are closed. Other staff members are assigned to check throughout

the day to assure that the dumpsters are closed.

35. In the re-survey conducted on April 10, 2000, another

alleged Class III deficiency was cited under Tag F372. This

citation was made by Ms. McElreath based upon the fact that one

of the dumpsters behind the facility allowed liquid substances

within the dumpsters to leak out the bottom. Ms. McElreath was

concerned that the substance that had leaked out under the

dumpster and in the immediate vicinity might have been picked up

on the wheels of wheelchairs. The wheelchairs were off to the

side being washed down by the staff. Ms. McElreath worried that

once the wheelchairs were returned to the facility the

unidentified liquid attached to the wheels would be introduced

into the facility proper.

36. The problem with the leaking dumpster was reported as

an uncorrected Class III deficiency associated with the problems

experienced with the dumpster with uncovered garbage described in

the March 2000 survey.

Nursing Home Scope and Severity Chart

37. The parties are bound by the Nursing Home Scope and

Severity Chart which characterizes the severity of the alleged

deficiencies. Respondent's Exhibit 15. Under this scheme a

severity of "G" represents actual harm but not immediate

jeopardy. Alleged deficiencies with a severity of "D" and "F"

represent a potential for more than minimal harm.

CONCLUSIONS OF LAW

38. The Division of Administr ative Hearings has

jurisdiction over the subject matter and the parties pursuant to

Sections 120.569 and 120.57(1), Florida Statutes.

39. Respondent licenses nursing homes in Florida in

accordance with Chapter 400, Part II, Florida Statutes.

Petitioner is a nursing home licensed under that part.

40. Respondent evaluates nursing home facilities at least

every 15 months to determine the degree of compliance by the

licensee with regulatory rules adopted under Chapter 400, as a

means to assign a license status to the nursing home facility.

Section 400.23(7), Florida Statutes.

41. The license status assigned to the nursing home

following the periodic evaluation is either a standard license or

a conditional license.

42. Standard licensure status and conditional licensure

status are defined in Section 400.23(7)(a) and (b), Florida

Statutes, as:

(a) A standard licensure status means that

a facility has no class I or class II

deficiencies, has corrected all class III

deficiencies within the time specified by the

agency, and is in substantial compliance at

the time of the survey with criteria

established under this part, with rules

adopted . . .

* * *

(b) A conditional licensure status means

that a facility, due to the presence of one

or more class I or class II deficiencies, or

class III deficiencies not corrected within

the time established by the agency, is not in

substantial compliance at the time of the

survey with criteria established under this

part, with rules adopted by the agency, . . . .

* * *

43. If deficiencies are found during the periodic

evaluation, they are classified in accordance with the

definitions at Section 400.23(8)(a) through (c), Florida

Statutes, which state 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. . . .

(b) Class II deficiencies are those which

the agency determines have a direct immediate

relationship to the health, safety, or

security of the nursing home facility

residents, other than class I deficiencies.

. . .

(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. . . .

44. Respondent has authority to adopt rules to

classify deficiencies. Section 400.23(2) and (8),

Florida Statutes.

45. In performing the periodic evaluation resort is made to

Rule 59A-4.1288, Florida Administrative Code. That rule refers

to nursing homes participating in Title XVIII or XIX and the need

to follow certification rules and regulations found at 42 C.F.R.

483. Petitioner must comply with 42 C.F.R. 483.

46. The evaluation process uses a Nursing Home Scope and

Severity Chart which states:

NURSING HOME SCOPE AND SEVERITY CHART

_______________________________________________________

Severity

Immediate J K L

Jeopardy SQC SQC SQC

________________________________________________________

Actual Harm G H I

Not IJ SQC SQC

________________________________________________________

Potential for

more than D E F

Minimal Harm SQC

________________________________________________________

Potential for

Minimal Harm A B C

No remedies

Commitment to

Correct Not on

HCFA 2567

_________________________________________________________

Scope Isolated Pattern Widespread

_________________________________________________________

_________________________________________________________

A, B, & C = Substantial Compliance

SQC = Substandard Quality Care, Section 483.13, 483.15,

and 483.25

__________________________________________________________

47. From March 6 through 9, 2000, Respondent performed a

licensure evaluation at Petitioner's nursing home facility for

purposes of assigning a licensure status. Respondent cited

Petitioner for an alleged Class II and two Class III

deficiencies. By virtue of the Class III deficiencies, the time

was established by Respondent for Petitioner to complete

correction of the alleged Class III deficiencies. A further

evaluation was performed on April 10, 2000, to ascertain

compliance with the need to correct the alleged Class III

deficiencies and it was determined the corrections were not made.

48. The alleged Class I deficiency identified in the report

Form 2567 was referred to as Tag F324. Tag F324 in identifying

the protections to be afforded residents in Petitioner's nursing

home is designed to make certain that:

Each resident receives adequate supervision

and assistance devices to prevent accidents.

49. Tag F324 is taken from 42 C.F.R. Section 483.25(h)(2).

50. 42 C.F.R. Section 483.25(h)(2) has as its intent:

That the facility identifies each resident

at risk for accidents and/or falls, and

adequately plans care and implements

procedures to prevent accidents.

An 'accident' is an unexpected, unintended

event that can cause a resident bodily

injury. It does not include an adverse

outcomes associated as a direct consequence

of treatment or care, (eg., drugs side

effects or reactions).

51. The alleged Class III deficiency associated with Tag

F371 discovered in the March 2000 evaluation and alleged to be

uncorrected on April 10, 2000, relates the obligation to "store,

prepare, distribute and serve food under sanitary conditions."

Tag F371 is taken from 42 C.F.R. Section 483.35(h)(2). The

statement of guidance to the surveyors describing guidelines for

42 C.F.R. Section 483.35(h)(2), defines "sanitary conditions" as

"storing, preparing, distributing, and serving food properly to

prevent food-borne illness."

52. The Tag F372 item, an alleged Class III deficiency,

discovered in the March 2000 evaluation and allegedly uncorrected

before April 10, 2000, as noted in the re-inspection refers the

need to "dispose of garbage and refuse properly." Tag F372 is

taken from 42 C.F.R. Section 483.35(h)(3). The statement of

guidance to the surveyors pertaining to 42 C.F.R. Section

483.35(h)(3), reiterates that the intent is to assure that

garbage and refuse is properly disposed.

53. The parties assert, and it is accepted, that Petitioner

is substantially affected by the issuance of the conditional

license for the period in question. See Daytona Manor Nursing

Home v. AHCA , 21 FALR 119 (AHCA 1998). Thus, Petitioner has

standing to oppose the Respondent's intent to rate Petitioner's

nursing home license as conditional for the period March 9

through May 4, 2000. In this context, Respondent bears the

burden of proof of alleged deficiencies and consequences for the

deficiencies. Florida Department of Transportation v. J.W.C.

Company, Inc. , 396 So. 2d 778 (Fla. 1stDCA 1981); and Balino v.

Department of Health and Rehabilitative Services , 348 So. 2d 349

(Fla. 1stDCA 1977). Findings of facts in association with that

burden are based upon a preponderance of the evidence. Section

120.57(1)(j), Florida Statutes, failing a contrary instruction

set forth in Chapter 400 Part II, Florida Statutes.

54. As revealed in the March 2000 survey, Petitioner

through its employees did not utilize the normal assistance

device, the lift, in transferring Resident 21 from her wheelchair

to her bed. Resident 21 was a person who was at risk for an

accident. The facility through its employees failed to implement

the procedure of using the lift as a means to prevent the

accidental fracture in the area of the ankle when that transfer

was made. This deficiency had a direct and immediate

relationship to the health and safety of Resident 21. The

failure to employ the lift constituted a Class II deficiency.

Given actual harm caused by using a manual lift in lieu of the

normal procedure to use the mechanical lift, the incident was

measured in its scope and severity as "G" on the nursing Home

Scope and Severity Chart.

55. Under Tag F371 in both March and April 2000, the

surveys revealed a similar problem with the storage of unsanitary

food implements used for serving residents. These were Class III

deficiencies representing an indirect or potential relationship

to the health of the nursing facility residents.

56. The scope and severity associated with the problem of

the storage of unsanitary food implements in March and April 2000

corresponds to "F" and "D" respectively, based upon the Nursing

Home Scope and Severity Chart.

57. Following the April 10, 2000 re-survey no proof was

presented by Petitioner concerning the date upon which

corrections were made to the problem with food particles on the

implements in the kitchen. It was stipulated that that problem

had been alleviated on May 4, 2000, when the third survey was

conducted at Petitioner's facility.

58. Failing an explanation that the problem with food on

the pans observed on April 10, 2000, had been addressed prior to

the third inspection on May 4, 2000, the conditional license was

properly extended from the period March 9, 2000, through

April 10, 2000, until May 4, 2000.

59. While problems that existed in the nursing home with

the disposal of garbage under Tag F372 are properly classified as

Class III deficiencies, in that they represented an indirect or

potential relationship to the health of the facility residents,

the deficiencies were sufficiently different to lead to the

conclusion that Petitioner had not failed to correct the original

Class III deficiency within the time specified by Respondent.

The failure to keep the dumpster door closed can properly be

described as inviting harborage and feeding by pests and

varmints. The hole in the dumpster bottom provides some quality

of access for pests and varmints. On the other hand, the

underlying problem discovered in the March 2000 survey, the side

door to the dumpster not being adequately closed was attended by

having persons check to see that it was properly closed. The

discovery of the problem and its correction did not portend an

additional problem with the dumpster, an inadequate seal at the

bottom of the dumpster. It was not a matter of failing to

correct the initial problem, it was a matter of the discovery of

an additional problem. Class III deficiencies on both occasions

were properly identified by the Nursing Home Scope and Severity

Chart as "D". The separate Tag F372 discoveries do not

constitute reason to assign Petitioner's facility a conditional

licensure status. See Agency for Health Care Administration v.

Oak Terrace Specialty Care Center , 21 FALR 3143 (AHCA 1999).

RECOMMENDATION

Upon consideration of the findings of facts and conclusions

of law reached, it is

RECOMMENDED:

That a final order be entered in which Respondent assigns

Petitioner a conditional license for the period March 9 through

May 4, 2000.

DONE AND ENTERED this 14th day of December, 2000, in

Tallahassee, Leon County, Florida.

CHARLES C. ADAMS

Administrati ve 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 14th day of December, 2000.

ENDNOTE

1/ Section 90.803(24), Florida Statutes, states in pertinent

part:

(a) Unless the source of information or the

method or circumstances by which the

statement is reported indicated a lack of

trustworthiness, an out-of-court statement

made by an elderly person or disabled adult,

as defined in s. 825.101, describing any act

of abuse or neglect, any act of exploitation,

the offense battery or aggravated battery or

assault or aggravated assault or sexual

battery, or any other violent act of the

declarant elderly person or disabled adult,

not otherwise admissible, is admissible in

evidence in any civil or criminal proceeding

if:

1. The court finds in a hearing conducted

outside the presence of the jury that the

time, content, and circumstances of the

statement provide sufficient safeguards of

reliability. In making its determination,

the court may consider the mental or physical

age and maturity of the elderly person or

disabled adult, the nature and duration of

the abuse or offense, the relationship of the

victim to the offender, the reliability of

the assertion, the reliability of the elderly

person or disabled adult, and any other

factor deemed appropriate; and

2. The elderly person or disabled adult

either:

a. Testifies; or

b. Is unavailable as a witness, provided

that there is corroborative evidence of the

abuse or offense. Unavailability shall

include a finding by the court that the

elderly person's or disabled adult's

participation in the trial or proceeding

would result in a substantial likelihood of

severe emotional, mental, or physical harm,

in addition to findings pursuant to

s. 90.804(1).

* * *

(c) The court shall make specific findings

of act, on the record, as to the basis for

its ruling under this subsection.

On February 16, 2000, Christine Frazier and Wanda Sapp were

working at Capital Health Case Center as CNAs. They lifted

Resident 21 from her wheelchair to her bed in her room. One CNA

lifted Resident 21 by picking her up under her arms while the

other CNA lifted the resident under her knees.

Christine Frazier testified at hearing. In her testimony

she referred to the hearsay statement by Resident 21 to the

effect that her legs were hurting and that the CNAs should not

touch Resident 21's legs. This statement was made before the

CNAs picked Resident 21 up and placed her in her bed.

According to Wanda Sapp's hearing testimony, even before the

CNAs lifted Resident 21 and placed her in her bed, as Ms. Sapp

walked into the resident's room, Resident 21 said "Wanda my legs

hurt." As Ms. Sapp described it, she heard Resident 21 complain

that Resident 21 wanted to go to bed.

During the lift and following the placement in the bed

neither CNA reports hearing Resident 21 make further comment

concerning her wellbeing.

As of the March 2000 survey Resident 21 was diagnosed as

paraplegic, suffering from depressive disorder, hyper-tension,

neurogenic bladder, and diabetes mellitus. Resident 21 was

missing a knee cap which caused that leg to be stiff. Resident

21 could not feed herself and needed assistance in bathroom use.

Ms. Edith Golden who testified at the hearing, described a

conversation Ms. Golden held with Resident 21. Resident 21 is

Ms. Golden's aunt. This conversation concerned the February 16,

2000 incident in which Ms. Frazier and Ms. Sapp moved Resident 21

from the wheelchair to her bed. Resident 21 told Ms. Golden that

one CNA braced the Resident's foot under the CNA's arm to keep it

straight while she was moving Resident 21. When this occurred

Resident 21 told Ms. Golden that Resident 21 exclaimed "ouch,

that hurts."

According to the nurses' notes maintained on Resident 21 at

the Capital Health Care Center, Resident 21 commented on the

incident as "it was an accident, my foot got caught when they

were putting me back to bed." It is further indicated in the

nursing notes on February 18, 2000, concerning Resident 21, that

Resident 21 said that her foot was caught under a CNA's arm when

being transferred from W/C, taken to mean the wheelchair, to the

bed on February 16, 2000.

Ms. Myra Flores took part in the survey at Capital Health

Care Center in March 2000. Ms. Flores testified at hearing. In

her testimony she referred to an interview conducted with

Resident 21 on March 8, 2000. Ms. Flores testified that she had

inquired of Resident 21 concerning the details of when the

resident broke her foot. Resident 21 told Ms. Flores that on

February 16, 2000, she left the nursing home in the morning for a

visit with her sister. Resident 21 stated to Ms. Flores that two

CNAs transferred her from her bed to the wheelchair. This was a

manual transfer, according to the statement Resident 21 gave

Ms. Flores. No mechanical lift was used. Resident 21 denied

having any pain at that point in time. Resident 21 told

Ms. Flores that when she returned to the facility she was

transferred from the wheelchair to her bed by two other CNAs.

Resident 21 told Ms. Flores that one CNA took the resident under

her arms while the other CNA held the resident's legs behind the

calves. When the two CNAs lifted her simultaneously, Resident 21

told Ms. Flores that the resident heard something snap in the

vicinity of her ankle. Resident 21 denied crying out in pain.

Resident 21 told Ms. Flores she made a face. Resident 21 told

Ms. Flores that the two CNAs that moved her from the wheelchair

to the bed "slung her around to her bed funnily." Resident 21

told Ms. Flores that as the day progressed beyond that point in

time the resident felt pain in her ankle.

Resident 21 is an elderly person and disabled adult as

defined in Section 825.101, Florida Statutes. The hearsay

statements attributable to Resident 21 do not constitute

descriptions of acts of abuse or neglect, or exploitation, the

offense of battery, or aggravated battery, or assault, or

aggravated assault or any other form of activity recognized in

Section 90.803(24), Florida Statutes, as an exception to hearsay.

By contrast, the statements attributable to Resident 21

found within the nurses' notes that have been referred to are

exceptions to hearsay as statements for purposes of medical

diagnosis or treatment. Section 90.803, (4), Florida Statutes.

Finally, all statements attributable to Resident 21 may be

used to supplement or explain other competent evidence. Section

120.57(1)(c), Florida Statutes.

COPIES FURNISHED:

Christine T. Messana, Esquire

Agency for Health Care Administration

2727 Mahan Drive

Fort Knox Building 3, Suite 3431

Tallahassee, Florida 32308-5403

Jay Adams, Esquire

Broad and Cassel

215 South Monroe Street, Suite 400

Post Office Box 11300

Tallahassee, Florida 32302

Sam Power, Agency Clerk

Agency for Health Care Administration

Fort Knox Building 3, Suite 3431

2727 Mahan Drive

Tallahassee, Florida 32308

Julie Gallagher, General Counsel

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 should be filed with the agency that will

issue the final order in this case.