00-004710 Horizon Healthcare And Specialty Center vs. Agency For Health Care Administration Status: Closed Recommended Order on Tuesday, June 12, 2001.

Summary: Agency claimed nursing home allowed two residents to become dehydrated. Agency failed to prove by a preponderance of the evidence that residents were dehydrated.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HORIZON HEALTHCARE & SPECIALTY )

CENTER, )

)

Petitioner, )

)

vs. ) Case No. 00-4710

)

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was provided, and a formal hearing was held on

April 16, 2001, in Daytona Beach, Florida, and conducted by

Harry L. Hooper, Administrative Law Judge with the Division of

Administrative Hearings.

APPEARANCES

For Petitioner : Jonathan S. Grout, Esquire

Karen L. Goldsmith, Esquire

Goldsmith & Grout, P.A.

2180 North Park Avenue, Suite 100

Post Office Box 2011

Winter Park, Florida 32790-2011

For Respondent : Michael O. Mathis, Esquire

Agency for Health Care Administration

2727 Mahan Drive

Fort Knox Building Three, Suite 3431

Tallahassee, Florida 32308-5403

STATEMENT OF THE ISSUE

Was Petitioner properly cited for a Class III deficiency.

PRELIMINARY STATEMENT

By a letter dated October 12, 2000, Respondent notified

Petitioner that its license was being changed to Conditional

because Petitioner's facility was found to have a Class II

deficiency in that it did not maintain a resident's freedom from

the development of avoidable pressure sores. Petitioner, in a

response filed with Respondent on November 13, 2000, petitioned

for an administrative hearing to determine if the deficiencies

identified on the "2567L" were unfounded, or, in the

alternative, if the classification should be changed to Class

III.

The pleadings addressed claimed deficiencies with regard to

pressure sores and addressed the effect a finding of a Class II

deficiency would have on Petitioner's ability to be designated a

"Gold Seal" facility. However, at the hearing, the parties

agreed that the only issue to be resolved was whether or not

Residents 7 and 8 were allowed to become dehydrated. This was

alleged as a TAG 327 Class III deficiency.

The hearing was set for February 1, 2001. It was continued

until March 19, 2001. By order dated March 9, 2001, the case

was rescheduled for April 16, 2001, and was held as rescheduled.

Respondent presented the testimony of two witnesses.

Medical records were admitted into evidence as Respondent's

Exhibits 1-4. A Form 2567-L in the case of Petitioner was

admitted into evidence but was considered only as the charging

document and no matters contained therein were accepted as

proven facts. Petitioner presented the testimony of two

witnesses. A transcript was prepared and both parties timely

submitted Proposed Recommended Orders which were considered in

the preparation of this Recommended Order.

FINDINGS OF FACT

1. Horizon Healthcare & Specialty Center (Horizon), is an

84-bed nursing home located at 1350 South Nova Road, Daytona

Beach, Florida . It is licensed under Chapter 400, Part II,

Florida Statutes.

2. The Agency for Health Care Administration (AHCA) is the

state agency charged with licensing and regulating nursing homes

in Florida.

3. On August 14, 2000, AHCA conducted a survey of Horizon.

This was accomplished in part by Rose Dalton, a nurse. At the

hearing Ms. Dalton was determined to be an expert in nursing

care.

4. A report on a nursing home survey is made on a Form

2567- L which is approved by the U.S. Department of Health and

Human Services, Health Care Financing Administration. A Form

2567-L was generated as a result of Ms. Dalton's survey. It was

reported under the category Tag 327.

Resident 7 .

5. Ms. Dalton, in conjunction with the survey team

accompanying her, determined on August 17, 2000, that Resident 7

was dehydrated. This conclusion was reached because facility

records indicated that Patient 7 had a blood urea nitrogen (BUN)

of 57 on August 7, 2000, with normal being 6-26, and a high

normal creatinine of 1.6.

6. Another factor used in concluding that Resident 7 was

dehydrated was a report dated August 8, 2000, which revealed a

BUN of 34. On August 12, 2000, a report indicated a BUN of 43

and a creatinine of 1.9. The survey team was also aware that

Resident 7 was ingesting Levaquin, a powerful antibiotic which

requires that a patient remain well-hydrated.

7. Ms. Dalton and the survey team cited the facility with

a Class III deficiency, for state purposes, and a "G" on the

federal scale. The federal scale goes from "A", which is a

deficiency which causes no harm, to "J", which is harm which may

cause death. The "G" level meant that it was the team's opinion

that there was great potential for actual harm.

8. Resident 7 was admitted on August 3, 2000. Among other

ailments, Resident 7 was suffering from a femoral neck fracture

and renal insufficiency when admitted. The resident contracted

a urinary tract infection ( UTI), and was being administered

Levaquin, an antibiotic appropriate for UTI treatment. On

August 8, 2000, a physician's order requested that the patient

be encouraged to consume fluids.

9. It is Ms. Dalton's opinion that Resident 7 was not

provided proper fluid intake by the facility which could have

caused serious health consequences for Resident 7.

10. When Resident 7 was in the hospital, prior to being

admitted to Horizon, his BUN was 41 and his creatinine was 2.3,

which is consistent with Resident 7's chronic renal

insufficiency. The BUN of 43 and creatinine of 1.9 observed in

the facility on August 12, 2000, did not indicate Resident 7's

condition was worsening, and in fact, it was improving

marginally.

11. The values for a normal BUN might vary from laboratory

to laboratory but generally a normal BUN would be around 25 or

less. Because of Resident 7's underlying renal disease and

ischemic cardiomyopathy, it was unlikely that Resident 7 would

ever manifest a BUN which would be considered normal.

12. Dr. Elizabeth Ann Eads, D.O., an expert in the field

of geriatric medicine, reviewed the laboratory values and the

nursing notes in the case of Resident 7. It is her opinion,

based on that review, that the facility provided appropriate

care, that the patient improved during the stay at the facility,

and that there was nothing in the record which suggested any

actual harm to Resident 7. This opinion was accepted.

Resident 8 .

13. Ms. Dalton opined that, based on her personal

observation and a review of Resident 8's medical records, that

the facility failed to respond to the hydration needs of

Resident 8 and did not follow the care plan which was developed

for Resident 8.

14. Ms. Kala Fuhrmann was determined to be an expert in

the field of long-term care nursing. She noted that Resident 8

was admitted to the facility on August 1, 2000. Resident 8's

hospital records indicated that Resident 8 might be developing a

UTI based on a urinalysis performed on July 31, 2000, which

revealed blood and protein in the urine.

15. On August 3, 2000, Resident 8's doctor started an

antibiotic, Levaquin, and ordered another urinalysis. On

August 4, 2000, a culture determined that Resident 8 was

positive for a UTI, so the antibiotic treatment was continued.

16. On August 15, 2000, it was determined the UTI had been

cured.

17. During the course of the UTI, Resident 8 was

incontinent, which is often the case when elderly patients are

afflicted with UTI. By August 18, 2000, Resident 8 was

continent.

18. It is Ms. Fuhrmann's opinion that the care provided to

Resident 8 was appropriate and that there is nothing in the

record which demonstrates that anything less than adequate

hydration was provided to this resident. This opinion was

accepted.

CONCLUSIONS OF LAW

19. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

cause, pursuant to Sections 120.569(1) and 120.57(1), Florida

Statutes.

20. AHCA, the party seeking to prove the affirmative of

the issue, has the burden of proof. Florida Department of

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

DCA 1981) and Balino v. Department of Health and Rehabilitative

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

21. AHCA must prove its case by a preponderance of the

evidence. Section 120.57(1)(j), Florida Statutes.

22. Petitioner is licensed with AHCA pursuant to Chapter

400, Part II, Florida Statutes, and governed by Chapter 59A-4,

Florida Administrative Code, which incorporates by reference the

federal regulations found at 42 CFR 483, et seq .

23. The TAG 327 in this case alleges a Class III

deficiency with regard to Residents 7 and 8. Rule

59A-4.128(3)(b), Florida Administrative Code, provides that,

"Class III deficiencies are those which present an indirect or

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

nursing home facility residents, other than Class I or Class II

deficiencies."

24. Title 42, Section 483.25, Federal Regulations Code, is

entitled "Quality of care." Subsection (j) provides, "The

facility must provide each resident with sufficient fluid intake

to maintain proper hydration and health."

25. Respondent failed to proved by a preponderance of the

evidence that Horizon failed to provide Residents 7 and 8 with

sufficient fluid intake to maintain proper hydration and health.

Therefore, AHCA failed to prove that any Class III deficiency

existed.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law,

RECOMMENDED: That the Agency for Health Care

Administration enter a final order dismissing the allegations

set forth in relation to the TAG 327.

DONE AND ENTERED this 12th day of June, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

HARRY L. HOOPER

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 12th day of June, 2001.

COPIES FURNISHED:

Karen L. Goldsmith, Esquire

Goldsmith & Grout, P.A.

2180 North Park Avenue, Suite 100

Post Office Box 2011

Winter Park, Florida 32790-2011

Michael O. Mathis, Esquire

Agency for Health Care Administration

2727 Mahan Drive

Fort Knox Building Three, Suite 3431

Tallahassee, Florida 32308-5403

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.