00-002465 Agency For Health Care Administration vs. Beverly Savana Cay Manor, Inc., D/B/A Beverly Healthcare Lakeland Status: Closed Recommended Order on Thursday, March 22, 2001.

Summary: Evidence of record sufficient to show inadequate staffing and a failure to provide appropriate supervision and assistive devices.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION , )

)

Petitioner , )

vs. )

) Case No. 00-2465

BEVERLY SAVANA CAY MANOR, INC. , )

d/b/a BEVERLY HEALTHCARE )

LAKELAND , )

)

Respondent. )

___________________________________)

AGENCY FOR HEALTH CARE )

ADMINISTRATION , )

)

Petitioner , )

)

vs. ) Case No. 00-3497

)

BEVERLY ENTERPRISES-LAKELAND , )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

A hearing was held in this case in Lakeland, Florida, on

February 1, 2001, before Arnold H. Pollock, an Administrative

Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner : Christine T. Messana, Esquire

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

For Respondent : R. Davis Thomas, Jr.

Qualified Representative

Broad and Cassel

215 South Monroe Street, Suite 400

Post Office Box 11300

Tallahassee, Florida 32302-1300

STATEMENT OF THE ISSUES

The issues for consideration in these cases are: as to

Case Number 00-3497, whether the Agency for Health Care

Administration should impose an administrative fine against

the Respondent's license to operate Beverly Savana Cay Manor,

a nursing home in Lakeland; and, as to Case Number 00-2465,

whether the Agency should issue a conditional license to the

Respondent's facility effective April 28, 2000.

PRELIMINARY MATTERS

On April 28, 2000, after completion of a survey of

Respondent's skilled nursing facility, Beverly Savana Cay

Manor, Inc. ( Savana Cay ), located at 1010 Carpenter's Way in

Lakeland, Florida, the Agency for Health Care Administration

(Agency) issued a conditional license to operate the facility

to Beverly Savana Cay Manor, Inc., in lieu of the previously

held standard license. This action was taken because in that

survey the Agency determined that the facility had failed to

have sufficient staff to provide nursing and related services

to attain or maintain the highest practicable physical,

mental, and psychosocial well-being of each resident, as

determined by individual health care assessments as required

by the provisions of 42 CFR 483.30, a Class III deficiency.

That deficiency, initially identified in a survey of the

facility on August 31, 1999, and deemed corrected on October

13, 1999, was observed anew. The Agency also based its change

in license character on its finding that the facility failed

to insure that each resident received adequate supervision and

assistive devices to prevent accidents, a Class II deficiency.

Based on the alleged violation of 42 CFR 483.30 on April

28, 2000, the Agency also entered an Administrative Complaint

dated July 26, 2000, in which it seeks to impose an

administrative fine for that violation.

The Respondent challenged each Agency action and demanded

a formal hearing. Pursuant to Respondent's motion, the two

cases were consolidated for formal hearing, and this hearing

ensued.

At the hearing, Petitioner presented the testimony of

Patricia A. Mills, a surveyor of health care facilities for

the Agency; Patricia T. Gold, a health facilities evaluator

for the Agency; and Marie Todd Maisel, a registered nurse

specialist and a surveyor of minimum qualifications training

for the Agency. Petitioner also introduced Petitioner's

Exhibits 1 through 9, 14 through 16, 18, and 19.

Respondents presented the testimony of Theresa S.

Vogelspohl, a gerontological clinical nurse specialist and

consultant in the care of the elderly. Ms. Vogelspohl was

also qualified as an expert on falls in the care of the

elderly and nursing practices and standards in nursing homes.

Respondent also introduced Respondent's Exhibit A.

A Transcript of the proceeding was filed February 13,

2001. Subsequent to the receipt thereof, counsel for both

parties submitted matters in writing which were carefully

considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, the

Petitioner, Agency for Health Care Administration, was the

state agency in Florida responsible for the licensing of

nursing homes and the regulation of the nursing home industry

in this state. It is also the agency responsible for

conducting surveys to monitor the compliance of nursing homes

with the conditions of Medicare and Medicaid participation.

Respondents, Beverly Savana Cay Manor, Inc., d/b/a Beverly

Healthcare Lakeland, and Beverly

Enterprises - Lakeland, are licensed by the Agency to operate

a skilled nursing home at 1010 Carpenter's Way in Lakeland.

2. On August 31, 1999, the Agency conducted an

investigation into a complaint that Savana Cay had failed to

provide sufficient nursing service and related services to

allow residents to attain or maintain the highest practicable

physical, mental, and psychosocial well-being as required by

Federal rules governing Medicare and Medicaid. The Agency

surveyor, Patricia Mills, observed several residents who did

not have their call buttons within reach so that they could

summon help if needed. Ms. Mills also talked with residents

and family members and from these interviews determined that

even when the resident could reach the call button and summon

help, the response time was excessively long or, in some

instances, the call went unheeded. This sometimes resulted in

resident's suffering from the results of their incontinence

because the staff did not timely respond to the help calls.

3. Ms. Mills concluded, based on her extensive

experience in surveying nursing homes, that the number of

staff on duty was not sufficient to meet the residents' needs.

It did not allow for the best possible well-being of the

residents. Though the information related by Ms. Mills came

from her interviews with residents and their families and was

clearly hearsay testimony, it was admissible and considered as

corroborative of her direct observation. The parties

stipulated that a follow-up survey of the facility was

conducted on October 13, 1999, at which time the deficiency

described was deemed to have been timely corrected. The

Respondent, by stipulation, does not concede the validity of

this discrepancy on the August 19, 1999, survey, and the

Agency does not rely on it to support the administrative fine

sought to be imposed herein.

4. Another survey of the facilit y was conducted by the

Agency on April 26-28, 2000. On this occasion, surveyor

Patricia Gold interviewed residents regarding the everyday

life of the facility and reviewed resident council reports to

follow up on any resident or family concerns which did not

appear to have been addressed by the facility staff. During

the resident interviews, Ms. Gold was advised that call lights

were not answered in a timely fashion. In that connection,

early on the morning of April 28, 2000, Ms. Gold observed a

resident request a nurse to bring something to drink. The

nurse was overheard to tell the resident the request would

have to wait until she finished her report.

5. Ms. Gold also noted on April 28, 2000, that dirty

dishes were left uncollected over night in the facility common

corridor and that one resident had two dirty trays left in the

room. The dishes in the corridor were also seen by surveyors

Donna Edwards and Marie Maisel. Based on their observations,

the interviews, and the review of the council reports, the

surveyors concluded that the staff on duty were insufficient

in number.

6. Another surveyor, Joanne Stewart, reviewed the

resident files and medical reports of several of the residents

and determined that in several cases the facility had failed

to provide adequate supervision and assistive devices to

prevent falls and inconsistently applied the interventions

that were put in place. For example, Ms. Stewart observed

Resident 12 on the floor at 2:40 p.m. on April 27, 2000. This

resident, a cognitively impaired individual, had been placed

in the facility from the hospital after he had sustained a

fracture to his right hip and, at the time of the fall, still

had staples in his hip.

7. Ms. Stewart's review of the kardexes maintained by

the certified nursing assistant ( CNA) revealed there were no

entries thereon indicating a need for special care to prevent

this resident from falling. Although he was supposed to wear

a tab alarm at all times, the facility staff knew the resident

would periodically remove it, and when Ms. Stewart saw him

prior to the fall, he was not wearing it. No other

interventions, such as quick-release seat belts or Velcro

belts, had been implemented to prevent his falls. It was just

the kind of fall that he had which caused his placement in the

facility and which gave rise to the need for supervision

adequate to prevent further injury. He did not get the needed

supervision. In fact, though the resident sustained a skin

tear and bleeding of the arm as a result of the fall, the

nurse who came to the scene of the fall went back to her desk

and did some paperwork for between twenty and twenty-five

minutes before the resident was provided any treatment for his

injury. Ms. Stewart concluded the facility did not provide

adequate supervision and assistance to Resident 12, and it is

so found.

8. Due to a cognitive impairment and an inability to

ambulate due to an intracerebral hemorrhage, diabetes, and a

cardio-vascular accident, Resident 9 was assessed at high risk

for falls, and a determination was made that the resident

should wear a tab alarm while in bed and in the wheelchair.

During the course of her survey, Ms. Stewart observed this

resident on several occasions without the tab alarm when she

should have been wearing it. The resident had previously

sustained falls, one of which occurred while the resident was

on leave, on March 31 and April 1, 2000, but the only caveat

on the CNA kardex for the resident was the caution not to

leave her on the toilet alone. Ms. Stewart did not consider

the supervision and assistance rendered Resident 9 to be

adequate. It is so found.

9. Ms. Edwards focused her review on the records of

Resident 22 who was not at the facility at the time of the

survey. The records indicated the resident had been assessed

at a high risk for falls at the time of her admission and a

tab alarm was used. However, according to the nurse's notes,

on April 10, 2000, the alarm went off causing the resident to

lose her balance and fall while in the merry walker. She

lacerated her scalp and sustained a large swelling in the

occipital area. The only fall assessment of this resident was

done when she was admitted to the facility. The evidence does

not indicate when this was, but presumably, it was not done

timely. There is a requirement that fall assessments be done

quarterly, but it cannot be determined when it was done here.

Even when, on April 11, 2000, the day after the fall, the

physical therapy staff re-screened this resident for a merry

walker, no change in care notation was noted in her record or

implemented.

10. Resident 22 sustained another fall on April 16,

2000. On this occasion, the resident was found on the floor

of the day room, out of the merry walker. There was no

indication she was being supervised or monitored at the time

of her fall. This time she sustained another head injury just

above the old one. After this fall, the facility staff

ordered a new merry walker even though there was no indication

a different one would provide additional protection.

11. The resident sustained a third fall on April 18,

2000, sustaining another injury to the head which resulted in

substantial blood loss. As a result of this fall, she was

taken to the hospital. Because of this, she was not present

when the survey was done, but based on her review of the

resident records, Ms. Edwards concluded that the facility did

not provide sufficient supervision or assistive devices to

this resident.

12. During the period of the survey, Ms. Gold observed

Resident 3 on five separate occasions. On none of them was

the resident wearing a Tabs alarm even though the facility's

care plan called for one to be used. A falls assessment had

been started on the resident but not completed. The record

also revealed that the resident fell on March 29, 2000,

resulting in a skin tear to the right arm. Based on the

above, Ms. Gold concluded that the resident was not provided

with adequate care and assistive devices.

13. Resident 10 was a resident with a history of falls

both before and after admission to the facility. The

resident's care plan called for chair alarms, a merry walker,

a safety seat belt, a low bed, and a bike horn. Though Ms.

Maisel, the surveyor, observed that the resident had a chair

alarm, she did not see that any of the other interventions

called for in the plan were provided. She did not ever see

the resident with a merry walker, and on at least two

occasions, she saw the resident when the chair alarm was not

in use. In her opinion, the use of one intervention does not

make the use of other interventions unnecessary, and she

considers the facility's supervision and assistive device

provision to be inadequate.

14. Resident 4 was an individual who had sustained a hip

fracture, was senile, and was taking pain medications. The

resident required help in getting out of bed or a chair. The

care plan for the resident called for the use of a Tabs alarm,

but on none of the occasions that Ms. Stewart observed this

resident was the tabs alarm in use. She considered the

supervision and assistive devices provided by the facility to

this resident to be inadequate.

15. Respondent does not contest that the incidents cited

by the Agency took place. Rather, it contends that the

interventions implemented by it were sufficient. It also

disputes the effectiveness of some interventions called for,

specifically the Tabs alarms, suggesting that the alarm does

not prevent falls and often contributes to them by startling

the wearer. There is some evidence to support that claim.

16. Re spondent further contends that the safety provided

by the use of an intervention device, such as the Tabs alarm,

straps, bed rails, or the merry walker, restrictive as they

are, must be weighed and evaluated against the loss of dignity

of the resident caused by their use.

17. It is also urged by the facility that the use of

certain interventions such as Tabs alarms is made unnecessary

when the resident is immobile and safety is provided by the

use of other interventions such as bed rails, which are more

pertinent to the condition of the resident. In the case of

Resident 9, the failure to provide for the use of a Tabs alarm

when the resident was on leave with her husband was off-set by

the one-on-one supervision she received during that period.

18. Respo ndent contends that falls will occur among

residents of the type in issue here regardless of the planning

to identify the risks of fall, the efforts made to prevent

them, and the implementation and use of interventions designed

to avoid them. While this may be so, the facility nonetheless

has a duty to provide necessary and adequate supervision and

assistive devices to minimize to the greatest extent possible,

the risk of injury as the result of falls. In some cases,

this was not done here.

19. In suppo rt of its position, Respondent presented the

testimony of Theresa Vogelspohl, a nursing home consultant and

an agreed expert on falls, issues of the elderly, issues of

care of the elderly, and nursing practices and standards in

nursing homes. Ms. Vogelspohl indicated that as a general

practice when patients are admitted to a nursing home they are

considered at risk for falls until the facility staff gets to

know them. Each facility sets its own standard as to the

length of the observation period, during which the residents

are studied for their gait and safety awareness. In addition,

the residents are evaluated for safety awareness by the staff

of the physical and occupational therapy departments.

20. Ordinarily, the assessment includes only the minimum

data set ( MDS) criteria, but increasingly during the last few

years, a separate falls assessment has become common. In

addition to the initial assessment, the attending nurses do an

independent admissions assessment, and Ms. Vogelspohl found

that such an assessment process was followed as to each of the

residents in issue here.

21. Ms. Vogelspohl found that an incomplete falls

assessment had been done on Resident 3. Based upon her own

review of the resident's records, however, had the full

assessment been completed, other than the fact that she was a

new resident, the resident would have been classified as a low

risk for falls. She opines that the failure to complete the

falls assessment did not deny the resident any care or a care

plan for falls. Ms. Vogelspohl determined that the facility

had opted, instead, for a more cautious approach to this

resident in the care plan which, in her opinion, was

appropriate for a new admission.

22. A care plan is a map for the staff to be made aware

of the care being provided and the specific interventions

pertinent to the resident. If the resident is at increased

risk for falls, the care plan would list the interventions

designed to decrease the risk of falls.

23. One of the most significant risk factors for fa lls

is increase in age. Others are disease conditions,

medications, cognitive functioning levels, eyesight, and other

impairments. The interventions available to a facility to

address the issue of risk of falls depend upon the condition

of the resident. The first consideration should be the need

to maintain a safe physical environment for the resident.

Appropriate footwear is important as is the availability of

assistive devices such as a cane or walker. If the resident

has a history of falls, consideration should be given to

changing those factors which were related to the prior falls.

Included in that is consideration of different seating or a

more frequent toileting schedule.

24. According to Ms. Vogelspohl, the last thing one

would want to do is to apply physical restraint, but, if all

else has failed, the least restrictive physical or chemical

restraint may be necessary to decrease the likelihood of

falls. Ms. Vogelspohl emphasizes that only the likelihood of

falls can be reduced. It is not possible to prevent all

falls. Room cleanliness is not something which should appear

in a care plan. It is a given, and nurses know to place

furniture in such a way and to reduce clutter to the extent

that the resident can safely navigate the room either with a

walker or a wheelchair. Obviously, in this case the survey

staff concluded the placement of the dirty trays in the

hallway and in the resident's room constituted a hazard.

25. In Ms. Vogelspohl's opinion, supervision and

monitoring of residents in a nursing home is a basic. That is

generally the reason for the resident's being admitted in the

first place. While they should be done on a routine basis,

supervision and monitoring are still sometimes placed in a

care plan, but the failure to have the requirements in black

and white is not a discrepancy so long as the appropriate

supervision and monitoring are accomplished.

26. The residents most at risk for falls, and those who

are the most difficult to manage, are those who have full

physical functioning yet who have almost nonexistent cognitive

functioning. Ms. Vogelspohl is of the opinion that for these

residents, the best intervention is the merry walker. This is

better than a regular walker because the resident cannot leave

it behind. If the resident is one who falls from bed, then a

low bed, with rails if appropriate, is the primary option. A

low bed was called for for Resident 10 but was not provided.

27. Ms. Vogelspohl does not have a high opinion of the

Tabs alarm because it can cause as many falls as it prevents.

It has a place with the cognitively aware resident who will

sit back down if she or he hears the alarm sound. More often

than not, however, the routine resident will automatically

react by trying to get away from the noise, and, thus, be more

likely to engage in rapid, impulsive behavior that can lead to

a fall.

28. Ms. Vogelspohl considers the use of the Tabs alarm

as only one factor in assessing the degree of supervision

provided. She looks at the care plan to see if the Tabs alarm

even meets the needs of the resident. If the resident is

cognitively alert and at no risk of falls, a Tabs alarm is not

appropriate. There are other interventions which can be used

such as quick release, velcro seat belts which better prevent

falls because they provide a resistance when the resident

attempts to stand up.

29. To determine whether a care plan has been developed

and implemented, Ms. Vogelspohl reviews the record. She looks

at the nurse's notes and those of the social services

personnel. She evaluates the records of the physical,

occupational, and recreational therapy staff. Finally, she

reads the resident's chart to see what staff is actually doing

to implement the interventions called for in the care plan.

However, on the issue of supervision, she does not expect the

notes or the record to affirmatively reflect every incident of

supervision. There is no standard of nursing practice that

she is aware of that calls for that degree of record keeping.

What she would expect to see is a record of any kind of unsafe

behavior that was observed.

30. By the same token, Ms. Vogelspohl would not expect a

facility to document every time it placed an alarm unit on a

resident. The units are applied and removed several times a

day for bathing, clothing changes, incontinence care, and the

like, and it would be unreasonable, she opines, to expect each

change to be documented. Further, she considers it

inappropriate and insulting to the resident to require him or

her to wear an alarm when cognizant and not displaying any

unsafe behavior. If a resident who is not cognitively

impaired declines intervention, it would, in her opinion, be a

violation of that resident's rights to put one on. In that

regard, generally, interventions are noted in the resident

records when initiated. Usually, however, they are not

removed until the quarterly assessment, even though the

intervention may be discontinued shortly after implementation.

31. Ms. Vogelspohl took exception to Ms. Edwards'

finding fault with the facility for the three falls

experienced by Resident 22. The resident was under

observation when the first fall occurred, but the staff member

was not able to get to the resident quickly enough to catch

her when she stood up and immediately toppled over in her

merry walker. The resident had been properly assessed and

proper interventions had been called for in the care plan.

Ms. Vogelspohl attributes the fall to the resident's being

frightened by the Tabs alarm going off when she stood up and

believes she probably would not have fallen had she not had

the tab unit on. The second fall took place while the

resident got out of her marry walker in the day room. Though

the day room was visible to anyone out in the hallway, the

fall was not witnessed, but Ms. Vogelspohl is of the opinion

that it is not reasonably possible to keep every resident

under constant visual supervision unless an aide can be

assigned on a one-on-one basis to every resident.

32. On the third fall, which occurred at about 10 p. m.,

the staff had put the resident to bed and had put a Tabs unit

on her at that time, but the resident had detached the unit

and gotten out of bed. There was nothing the staff could do

to prevent that. The resident was able to remove the unit no

matter how it was affixed to her.

33. Taken together, the actions taken by the facility

with regard to this resident were, to Ms. Vogelspohl,

appropriate. Some things could have been done differently,

such as perhaps using a heavier merry walker, but she did not

consider these matters as defects in the care plan, in

assessment, in design, or in application. Further, she

concluded that the actions taken by the facility subsequent to

the first fall on April 10, 2000, wherein the resident's

medications were adjusted to compensate for their effect on

the resident, constituted a recognition of a change in the

resident's condition which was properly addressed.

34. Too much supervision becomes a dignity issue. There

is no formula for determining how much supervision is

adequate. It is a question of nursing discretion based on the

individual resident. An unofficial standard in place within

the industry calls for a resident to be checked on every two

hours, but rarely will this be documented. Staff, mostly

nurses and CNAs, are in and out of the residents' rooms on a

regular basis, administering medications and giving

treatments. Those visits are documented, but not every visit

to a resident's room is.

35. Resident 12, a relatively young man of 62 with

several severe medical problems, sustained a fall which

resulted in a fractured hip just two weeks after admission to

the facility and two weeks before the survey. He was far more

mobile than expected. According to the records, he was mostly

cognitive intact and had been assessed for falls. As a result

of this assessment, the facility developed a care plan to

address his risk for falls. Implementation of the plan was

difficult, however, because he was aware and could make up his

own mind as to what interventions he would accept.

36. As to the resident's April 27, 2000 fall, the only

evidence in the file shows that he was found on the floor of

his room in front of a straight chair, having sustained a

small skin tear in addition to the fracture. From Ms.

Vogelspohl's review of the record she could find no indication

that the facility had failed to do something that it should

have done to prevent the fall. The staff had put a Tabs alarm

on the resident, and he removed it. They tried to keep his

wheel chair as close to him as possible. They tried to

restrict his water intake by giving him thickened liquids to

reduce his trips to the rest room. He would pour out the

thickened fluids and replace them with water. Because of this

resident's mobility, Ms. Vogelspohl does not accept the

surveyor's conclusion that the facility did not use Tabs

alarms. He was able to get out of them by himself and

frequently did. She is also of the opinion, in light of the

way the resident behaved, that the blank kardex observed by

the surveyor in no way contributed to the resident's fall.

The CNA's were aware that the Tabs units were supposed to be

used, and Ms. Vogelspohl has concluded that there were no more

aggressive interventions that could have been used with this

resident. To attempt the use of restraints, either belt or

vest, would have been futile because he could have gotten out

of them easily. The only other thing Ms. Vogelspohl feels

could have been done was to put him in a geriatric psychiatric

unit, and this was ultimately done, but not in the Respondent

facility.

37. Ms. Vogelpohl also addressed the surveyors' write-

ups as they related to Residents 9, 4, 3, and 10. Resident 4

was bed-ridden as a result of Parkinson's Disease and did not

need a Tabs alarm, the deficiency cited, while in bed. When

seated in a wheel chair, his postural deficits were

compensated for by lateral supports and a padded cushion, and

she was of the opinion that a Tabs alarm was not required.

She opines its absence would not have addressed his risk for

falls. His January 2000 fall apparently did not relate to the

failure to use a Tabs unit.

38. Resident 3, also the subject of a write-up for

failure to use a Tabs alarm, was not, in Ms. Vogelspohl's

opinion, at risk for falls because she did not move around a

lot due to her physical condition. Nonetheless, she

experienced a fall in late March 2000 and shortly thereafter,

the facility placed a Tabs alarm on her and made the

appropriate entry in her care plan.

39. Resident 9 was ambulatory only with assistance and

had a special seating device to keep her in her wheel chair.

After the resident sustained two falls close together, a Tabs

alarm was placed on her, and from that time until the time of

the survey she had no further falls. Ms. Vogelspohl contends

that it was an appropriate nursing decision not to place a

Tabs unit on her. The rationale for this position is not at

all clear.

40. The care plan for Resident 10, also one of the

residents observed without a Tabs alarm in place, was

described as "somewhat cluttered." It showed multiple

interventions initiated as early as April 1999 . The initial

care plan was crossed through and a new one substituted in

September 1999 with the family's concurrence. Nonetheless,

Ms. Vogelspohl did not find it too cluttered to be understood.

The evidence shows that the resident's chair was outfitted

with a soft seat belt and a pressure-sensitive alarm, both of

which are considered to be more effective than the Tabs alarm.

41. Ms. Vogelspohl contends that the facility did not

ignore the requirement to assess the residents for falls or

the requirement to address that issue in care planning. She

admits that in some cases, the plan addressing falls

prevention was covered in another assessment than the one

wherein it might most likely be expected, but it is her

contention that if the subject is properly and thoroughly

addressed somewhere in the resident's care record, that is

sufficient. She considers placing it in several areas to be a

redundancy and though it is frequently done so, it is done to

meet a paper compliance without having any impact on the

quality of care provided.

CONCLUSIONS OF LAW

42. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding. See Section 120.57(1), Florida Statutes.

43. The Agency is required, by the terms of Section

400.23(7), Florida Statutes, to evaluate all nursing home

facilities in the state at least every fifteen months, and to

make a determination as to the facility's degree of compliance

with state and federal rules and regulations. The Agency's

evaluation must be based on the most recent inspection report

and take into consideration findings from other official

reports, surveys, interviews, investigations, and inspections.

Upon completion of the evaluation, the Agency must assign

either a Standard or a Conditional license rating to the

facility.

44. The Agency has recognized the impact that the award

of a Conditional rating to a facility can have on the

facility's ability to operate. In order to receive a

Certificate of Need, an applicant's ability and record of

providing quality care are among the criteria for competitive

review. An existing facility cannot qualify for the state's

Gold Seal program if it has received a Conditional rating

within the prior thirty months. Further, a Conditional rating

can substantially affect a facility's reputation in the

community and can have a negative impact on staff morale and

recruiting.

45. A Conditional lic ense will be issued to a facility

which the evaluation shows has, at the time of the survey, one

or more Class I or II operational deficiencies, or a Class III

deficiency which has not been corrected in the time

established for correction by the Agency.

4 6. The Agency has the burden of proving the basis for

changing the facility's license to Conditional and for

imposing an administrative fine. The standard of proof for

changing the nature of the operating to Condition is by a

preponderance of the evidence. Florida Department of

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

1st DCA 1981). The standard of proof required for imposition

of an administrative fine is by clear and convincing evidence.

47. Class II deficiencies, as defined by S ection

400.23(8)(b), Florida Statutes, 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. Class III

deficiencies, as defined by Section 400.23(8)(c), Florida

Statutes, 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.

48. The instant case relates to deficiencies identified

and described as Tag 353 and Tag 324 in the report of surveys

done by the Agency on August 31, 1999, and April 28, 2000.

49. As to Tag 353, Rule 59A-4.1288, Florida

Administrative Code, requires nursing homes of the category

involved herein, to follow certification rules and regulations

found in 42 CFR 483, Requirement for Long Term Care

Facilities, September 26, 1991. That regulation, 42 CFR

483.30, requires the facility to "have sufficient nursing

staff to provide nursing and related services to attain or

maintain the highest practicable physical, mental, and

psychosocial well-being of each resident, as determined by

resident assessments and individual plans of care." If

proven, Tag 353 would represent a Class III deficiency.

50. The key word for discussion in this matter is

"sufficient" as it describes the staff members required by the

regulation and rules. The parties agreed that, save for a

short period of less than one day at some time during the

covered period, the facility met the staffing requirements set

by Rule 59A-4.108(4), Florida Administrative Code. Instead,

the Agency argues, the staff on hand, though meeting rule

numerical requirements, was not sufficient to provide the

appropriate care to the residents who constituted the resident

census needing nursing care. In support of its contention,

the Agency cites the dirty dishes in the hallway outside the

dining facility and dirty trays from one or more meals in one

resident room, in conjunction with the complaints of slow

response times or unanswered call buttons and unprevented

resident falls. While these conditions, clearly established

by competent evidence of record, were not shown to be life

threatening or to have resulted in any of the falls shown to

have occurred, there is clearly a showing of a relationship

between the conditions of the nursing service provided as

described and a failure of the residents to attain the highest

practicable physical, mental, and psychosocial well-being.

For that reason, though the Agency's numerical standards were

met, Tag 353 is found to be supported by the evidence of

record.

51. Tag 324 relates to a violation of the requirements

set forth in 42 CFR 483.25(h)(2), calling for the facility to

ensure that each resident receives adequate supervision and

assistance devices to prevent accidents, as mandated by Rule

59A-4.1288, Florida Administrative Code. If established, Tag

324 would be a Class II deficiency.

52. The care provided to six individual residents,

Residents 3, 4, 9, 10, 12 and 22, as described by the Agency's

representatives, serve as the basis for its determination that

the facility failed to provide appropriate supervision and

assistive devices to prevent the falls these residents

sustained. The facility's expert contended, and the facility

adopted as its position, that the supervision provided to the

six residents in issue was adequate.

53. As to Resident 3, the facility's expert admitted

that an incomplete falls assessment of the resident had been

done but urged that even had a full assessment been done, the

resident would have been considered as a low risk candidate

for falls. That position is based on informed speculation,

however. The fact remains that a falls assessment is called

for by the rules governing the operation of nursing homes and

a complete assessment was not accomplished. Notwithstanding

this resident might have been considered a low falls risk, the

fact remains that on March 29, 2000, she was found on the

floor after a fall in which she sustained a skin tear to the

right arm. Even after the fall, during the April 2000 survey,

the surveyor observed this resident on five separate occasions

without a Tabs alarm in place.

54. The care plan for Resident 4, a senile i ndividual

who suffered from Parkinson's Disease, a fractured hip, and

depression, called for a Tabs alarm to be used "at all times,"

whether the resident was in bed or reclined in a Broda Chair.

Notwithstanding this requirement, the surveyor observed the

resident on two separate days, once in bed and once in the

Broda chair, and on neither occasion was the Tabs alarm in

place. Ms. Vogelpohl strongly contended that the Tabs alarm

could contribute to falls by startling the resident when it

sounded. This may well be true in some cases, but with this

resident, who was mostly immobile, the likelihood of that

happening is remote.

55. Resident 9's mobility also was seriously impaired

and she was cognitively impaired. The use of a Tabs alarm was

provided for in her updated care plan, which was changed after

two falls, and was to be in place whether she was in bed or in

the wheel chair. Nonetheless, the surveyor found the alarm

was inconsistently applied, and the kardex used by the CNA

made no mention of the requirement for the Tabs alarm.

56. To be sure, the facility cannot be held accountable

for what happened to the resident while she was away from the

facility on leave. However, Ms. Vogelspohl's opinion that it

was an appropriate nursing decision not to use a Tabs alarm on

the resident prior to her falls is not supported by the

evidence, especially when it is seen that subsequent use of

the Tabs alarm after the two falls seems to have prevented

further falls.

57. A comprehensive falls plan was developed for

Resident 10 and numerous interventions called for. However,

notwithstanding the resident's history of repeated falls, both

before and after her entry into the facility, the surveyor

observed only a chair alarm which was not in use when seen.

The other interventions called for, including the merry

walker, the low bed, the bike horn, and the safety seat belts

were not in evidence. Ms. Vogelspohl contended the facility's

conduct here was not an actionable failure to supervise or

provide assistive devises, because it cannot be shown that the

omission caused the falls. This argument is without merit.

58. Resident 12 came to the facility from the hospital

to recuperate from a broken hip sustained in a fall. To be

sure this resident was a difficult patient who actively

resisted all efforts to restrain his activity. However, it is

this very tendency that requires an even higher degree of

supervision. Recognizing the need to balance the need for

restraint against the rights of the individual, where it is

seen that assistive devices are needed and the resident

resists or removes them, then other approaches, such as

transfer to a facility capable of a higher level of control,

are appropriate. This was ultimately done, and, under the

circumstances, it cannot reasonably be held that the facility

was below standards with regard to this resident.

59. Resident 22 sustained several falls while in the

facility. The first fall was from a merry walker while an

alarm was in place. The second fall was from a merry walker

while unsupervised in the day room. The third fall was after

the resident had removed her Tabs alarm and fell to the floor.

The care plan calls for the resident to be monitored when out

of the merry walker. Ms. Vogelspohl's analysis of this

resident's history, which exonerates the facility of

responsibility for each of the three falls, is reasonable and

appears supported by the evidence or record, except for the

second fall. Even in that case, there is a question of the

adequacy of supervision provided , though it is not

unreasonable to expect a staff member to be assigned to the

day room when it is occupied by residents. Under the

circumstances, the failure to have an attendant in the day

room when the resident fell while unsupervised falls below

standard.

60. The facility contends that falls will happen

regardless of planning and the degree of supervision, unless

that supervision is one-on-one. That argument is specious,

however. It implies an "accepted level of injury" which is

not consistent with applicable standards and is rejected. The

frequency of falls can be lessened by appropriate supervision

of those identified as at high risk for falls. The

intermittent failure to use an alarm is not sufficient to be

classified as inadequate. However, when, as here, the

supervision is found wanting again and again regarding the

same residents, it is clearly indicative of a lack of proper

supervision.

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 sustaining the Conditional

license for the Respondent effective April 28, 2000, and,

based only on the conditions observed at the facility on that

date, imposing an administrative fine of $700.00.

DONE AND ENTERED this 22nd day of March, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

ARNOLD H. POLLOCK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488- 9675 SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 22nd day of March, 2001.

COPIES FURNISHED:

Christine T. Messana, Esquire

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

R. Davis Thomas, Jr., Qualified Representative

Broad and Cassel

215 South Monroe Street, Suite 400

Post office Box 11300

Tallahassee, Florida 32302-1300

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.