01-001606 Beverly Health And Rehabilitation Center-Coral Trace vs. Agency For Health Care Administration Status: Closed Recommended Order on Thursday, May 16, 2002.

Summary: Facility`s license should be changed to conditional where evidence established that two residents had avoidable pressure sores. Agency failed to establish that isolated act of missing physician`s order constituted neglect.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BEVERLY HEALTH AND )

REHABILITATION CENTER - CORAL )

TRACE, )

)

Petitioner, )

)

vs. ) Case No. 01 - 1606

)

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted before

the Division of Administrative Hearings, by its duly - designated

Administrative Law Judge Carolyn S. Holifield, on November 15

and 16, 2001, in Fort Myers, Flori da.

APPEARANCES

For Petitioner: Donna H. Stinson, Esquire

Broad and Cassel

215 South Monroe Street, Suite 400

P.O. Box 11300

Tallahassee, Florida 32302

For Respondent: Pury Lopez Santiago, Esquire

Agency for Health Ca re Administration

8355 Northwest 53rd Street

Koger Center, First Floor

Miami, Florida 33166

STATEMENT OF THE ISSUE

The issue for determination is whether Petitioner committed

the alleged deficiencies and, if s o, whether those deficiencies

constituted a basis to change Petitioner's licensure rating from

standard to conditional for the period of March 1, 2001 through

October 31, 2001.

PRELIMINARY STATEMENT

As a result of an annual survey completed on March 1, 20 01,

Respondent, the Agency for Health Care Administration (Agency),

advised Petitioner, Beverly Health and Rehabilitation Center

Coral Trace (Coral Trace), that its standard licensure rating

was being changed to conditional. Petitioner challenged the

cond itional licensure rating and timely requested an

administrative hearing.

On April 23, 2001, the matter was referred to the Division

of Administrative Hearings for assignment of an administrative

law judge to conduct the final hearing. The case was initial ly

set for hearing on July 18, 2001. However, prior to the

scheduled hearing date, on June 29, 2001, the parties filed a

Joint Motion for Continuance. An Order was issued on

July 2, 2001, granting the motion and rescheduling the hearing

for August 23 an d 24, 2001. Subsequently, on August 15, 2001,

and September 28, 2001, the parties filed joint motions

requesting that the scheduled final hearing be continued. Both

motions were granted and, by Order issued October 5, 2001, the

case was set for hearing o n November 15 and 16, 2001. An ore

tenus motion for continuance made by Respondent on November 13,

2001, was denied and the hearing was conducted as noticed.

Prior to hearing, on October 30, 2001, the Agency filed a

Motion for Leave to File an Administra tive Complaint (Motion),

setting forth with particularity, the basis for imposition of

the conditional license. By the terms of the Motion, the

purpose of filing the Administrative Complaint was "to provide

the licensee with notice with particularity" and to "allow the

Agency to explain its position before forcing the licensee to

defend itself." Based on those representations, the Motion was

granted, and the case proceeded based on the Administrative

Complaint and the survey report. However, the Administ rative

Complaint is not viewed by the undersigned to allow the

imposition of any penalty on the facility other than change of

its licensure status, should the allegations contained therein

be proven.

At the hearing, the Agency presented the testimony of s ix

witnesses and had seven exhibits admitted into evidence. Coral

Trace presented the testimony of three witnesses and had eight

exhibits admitted into evidence, two of which were depositions

submitted without objection in lieu of live testimony.

A Tra nscript of the hearing was filed on December 7, 2001.

On December 18, 2001, the Agency filed an unopposed Motion for

Enlargement of Time to File Proposed Orders. The motion was

granted and the time for filing Proposed Recommended Orders was

extended to F ebruary 19, 2002. Prior to the date the proposed

orders were due, Petitioner filed an unopposed motion requesting

that the time for filing Proposed Recommended Orders be extended

to February 26, 2002. The motion was granted and the parties

timely filed P roposed Recommended Orders under the extended time

frame. The Proposed Recommended Orders have been duly

considered in preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner, Beverly Health and Rehabilitation Center -

Coral Trace (Coral Tra ce or facility), is a nursing facility

located at 216 Santa Barbara Boulevard in Cape Coral, Florida,

and is licensed by and subject to regulation by the Agency for

Health Care Administration pursuant to Chapter 400, Florida

Statutes.

2. Respondent, the A gency for Health Care Administration

(Agency), is the Agency in the State of Florida responsible for

licensing and regulating nursing facilities under Part II of

Chapter 400, Florida Statutes.

3. The Agency conducted a re - certification survey of Coral

Tra ce, which ended on March 1, 2001. As a result of that

survey, the Agency determined that certain deficiencies existed

at Coral Trace. The Agency noted the alleged deficiencies and

the findings which it believed supported each deficiency on a

standard sur vey form, the Health Care Federal Administration

Form 2567 - L (survey form). The survey form identified each

alleged deficiency by reference to a tag number. Each tag

includes a narrative description of the alleged deficiencies and

cites the relevant rule or regulation violated by the alleged

deficiency.

4. In the instant case, the Agency also filed an

Administrative Complaint that set forth the alleged deficiencies

noted in the survey form and at issue in this proceeding.

5. In order to protect the privacy of the residents at

Coral Trace, the survey form, the Administrative Complaint, and

this Recommended Order refer to each resident by a number rather

than by the name of the resident.

6. There are three tags at issue in this proceeding, Tag

F224, Tag F314, and Tag F490.

7. Tag F224, references 42 C.F.R. Subsection 483.13(c)(1),

which addresses staff treatment of residents and requires that

facilities develop and implement written policies and procedures

that prohibit mistreatment, neglect, an d abuse of residents and

misappropriation of resident property.

8. Tag 224 in the March survey alleges that Coral Trace

failed, refused, or neglected to: (1) perform physician ordered

laboratory monitoring tests on Resident 1, on at least five

separ ate occasions; (2) report signs of bleeding, relative to

Resident 1, to the physician, as ordered; and (3) implement a

system whereby the facility would review all physician orders to

make sure the orders were properly transcribed and entered into

the comp uter. The Agency alleged that by not implementing a

system to ensure that physician orders were properly transcribed

and entered in the computer, Coral Trace was “neglecting and

exposing at least one resident to a potential life threatening

situation and created a situation of possible imminent danger at

the facility for all residents whose doctors ordered tests to be

performed.”

9. During the March 2001 survey, the Agency reviewed the

quality of care provided to Resident 1. This resident was

admitt ed to Coral Trace on January 26, 2001, due to a hip

fracture. When Resident 1 was admitted to the facility, she was

bed bound and could not move herself. However, during the

course of her stay at Coral Trace, Resident 1 improved, met her

goals, and was d ischarged from Carol Trace a few days after the

survey to an assisted living facility where her husband resided.

10. While at Coral Trace, Resident 1 regained some of her

mobility and was able to transfer herself from bed to her

wheelchair. During her entire stay at Coral Trace, Resident 1

was fully alert and aware.

11. While Resident 1 was at Coral Trace, her physician was

Dr. Debra Roggow, who specializes in physical medicine and

rehabilitation for the elderly. Dr. Roggow's initial visit w ith

Resident 1 was on January 31, 2001. As part of the Resident 1's

treatment, Dr. Roggow prescribed Coumadin, a blood thinner, and

Celebrex, an anti - inflammatory drug. On that same day,

Dr. Roggow also ordered a blood test, a PT/INR, to be done every

M onday and Thursday to check blood thinness.

12. The PT/INR is a laboratory test which measures the

thinness of a person's blood and is usually administered to a

patient taking Coumadin.

13. Dr. Roggow made rounds at Coral Trace once a week,

d uring which she saw all her patients. She was accompanied on

these rounds by a nurse from her office as well as nurses and

other staff from Coral Trace. It was Dr. Roggow's routine to

have her own nurse transcribe her progress notes and her orders.

The progress notes typically contain the physician's impressions

and the order sheet indicates the physician's orders for the

residents.

14. After Dr. Roggow's orders and notes were transcribed,

staff at Coral Trace would then put Dr. Roggow's orders int o the

computer system, which would print out three copies. One of the

computer - generated copies was for the resident's medication

administration record and one was for the resident's treatment

administration record.

15. With regard to Resident 1, th e January 31, 2001,

physician's order for the PT/INR was placed on the order sheet,

but the order for Coumadin was placed on the progress notes. As

a result, only the order for PT/INR was put in the computer

system.

16. On or about February 6, 200 1, Coral Trace staff

reviewed the order reflecting that Resident 1 was to have a

PT/INR test on Mondays and Thursdays. However, because the

order form did not include the order for Coumadin, the nurse

questioned the need for the lab value derived from the PT/INR.

Documentation reflects that the facility's unit nurse then

called Dr. Roggow's office and, based on a conversation with the

doctor's assistant, the PT/INR was discontinued. The following

day, the order for Coumadin was discovered, apparently in the

Resident 1's progress notes, and was then put on the order

sheet, along with the PT/INR. Consistent with the practice of

Coral Trace, the physician's order for Coumadin was put in the

computer. However, the order for the PT/INR, which also should

hav e been entered in the computer system was not put in the

system.

17. Based on the survey form completed by the Agency,

during the survey, twenty - three residents were observed by the

surveyors. The survey form also indicates that the records of

these twe nty - three residents along with three additional records

were reviewed by Agency surveyors. Except for the missing order

for Resident 1, there is no evidence or indication that a

physician's order for any other resident was missed by staff of

Coral Trace.

18. Given the totality of the circumstances surrounding

the physician's orders for Coumadin and the PT/INR, it appears

that the failure to enter the order for the PT/INR in the

computer system was due to an inadvertent omission, mistake, or

simply, h uman error. Regardless of the reason the order for the

PT/INR was missed, as a result thereof, Resident No. 1 did not

have the PT/INR laboratory tests administered to her for two and

a - half weeks.

19. The missed order for the PT/INR was found by an Agency

surveyor who reviewed Resident 1’s records during the survey.

When the "missed" order was brought to the attention of Coral

Trace staff, Resident 1's physician was called immediately, and

the PT/INR test was performed on the evening of February 26,

2001.

20. The results reflected that Resident 1 had an INR level

of 6.5, which the laboratory sheet designated at the “critical”

level or outside the therapeutic range.

21. Dr. Roggow testified credibly that, with regard to the

PT/INR, the ben chmark that doctors like to see is between two

and three. However, Dr. Roggow indicated that although,

Resident 1's level of 6.5 was "too high" and required some type

of intervention, it was "not outrageous." According to Dr.

Roggow, even with an INR lev el of 6.5 on February 26, 2001,

Resident 1 was not likely to suffer serious injury or death and

was not in immediate jeopardy for her life.

22. After being notified of the laboratory results of

Resident 1's PT/INR, Dr. Roggow ordered that the Coumadi n be

held and that Resident 1 be monitored for signs of bleeding

which may occur if the blood is too thin. Signs of bleeding may

be bruises, blood in stool or urine, or the appearance of

capillaries at the skin.

23. During the two and a - half week pe riod when the PT/INR

lab tests were not being performed on Resident 1, she was seen

each week by Dr. Roggow.

24. On March 1, 2001, three days after the February 26,

2001, PT/INR, another PT/INR was administered to Resident 1.

The results of the Marc h 1, 2001, lab test indicated that

Resident 1's INR level was at the high - end of normal and was

coming down appropriately.

25. As a result of the missed physician's order, the

Agency alleged that Coral Trace neglected to provide care to

Resident 1 as ordered by the resident's physician. However,

this incident was an isolated one and not a systemic problem at

the facility.

26. At the time of the survey, the facility had a

procedure to check to see if any orders were missed. On a daily

basis, nu rses would pass along information from shift to shift.

Also, every month the physician orders are printed out for the

physician to change. At that time, all medication

administration records, treatment administration records, and

orders are "checked with each other." In utilizing this system,

the facility did not find discrepancies in the orders, the

medication administration records, and the treatment

administration records.

27. The Agency did not specify a particular procedure that

the facility s hould use to verify or validate that all

physician's orders were entered in the computer system.

However, the Agency believed that any such system should require

that hard copies of all orders be retained even though it

provided no authority for this requ irement.

28. Notwithstanding the Agency's speculation that Coral

Trace did not retain such records, hard copies of the

physician's orders for Resident 1 were in the resident's records

at the facility.

29. Contrary to the Agency's assertion that the facility

had no policy in place to address the mistreatment, abuse, and

neglect of residents at the facility, Coral Trace did have such

a policy. However, the policy was not as broad as the Agency

apparently thought it should be because it did not ad dress the

issue of the facility's checking to validate that all

physicians' orders were properly entered in the computer system.

30. On February 26, 2001, in addition to ordering a PT/INR

for Resident 1, Dr. Roggow also ordered that the resident be

m onitored for signs of bleeding. The nurses assigned to

Resident 1 carried out that order. Irrespective of Dr. Roggow’s

order regarding such monitoring, all nurses are generally aware

that patients or residents who take Coumadin should be monitored

for bl eeding.

31. On February 27, 2001, there is a notation in the

nurse’s notes at 11:15 p.m. that “CNA [certified nurse's

assistant] . . . noted few petechiae at the back - made night

nurse aware.” Petechiae are small red spots which could be an

indication of bleeding. Shortly after the CNA examined

Resident 1, at 1:00 a.m. on February 28, 2001, the night nurse

examined the resident and found no petechiae, and no signs of

bleeding. Because the night nurse's examination of Resident 1

found no signs of bleedin g, no call was made to the physician.

In absence of any signs of bleeding, there was no need to call

the physician.

32. The day after the CNA identified certain spots on

Resident 1 as petechiae, on February 28, 2001, during her

rounds, Dr. Roggow examined Resident 1 and found no petechiae.

According to Dr. Roggow, the resident had freckles which might

have been mistaken for petechiae by the CNA. If the spots had

been petechiae, they likely would have been on the resident the

next day and identifi able to Dr. Roggow as such.

33. Another area addressed in the March 2001 survey was

Tag F490 which references 42 C.F.R. 483.75. That regulation

requires that a nursing home be "administered in a manner that

enables it to use its resources effectivel y and efficiently to

attain or maintain the highest practicable physical, mental, and

psychosocial well - being of each resident."

34. The same facts asserted by the Agency as the basis for

the deficiencies under Tag F224 are also asserted as the bas is

for the deficiency cited under Tag F490. Both tags involve the

resident identified as Resident 1.

35. The Agency alleged that Coral Trace neglected Resident

1 by its failure to implement the physician’s orders, to monitor

the resident's anticoagu lant blood levels, and to develop and/or

implement a policy or process for the validation and

reconciliation of written and verbal orders. It was further

alleged that these failures constituted a violation of

42 C.F.R. 483.75. Despite these assertions, t he Agency put

forth no evidence to support these claims. Because the record

does not support a finding that Coral Trace neglected Resident

1, the underlying factual basis for the

Tag F490 deficiency was not proven. Accordingly, the Agency

failed to esta blish that the facility is not administered in a

manner that enables it to use its resources effectively and

efficiently to attain or maintain the highest practicable

physical, mental, and psychosocial well - being of each resident.

36. During the Marc h 2001 survey, the Agency also cited

the facility with a Tag F314 deficiency, which incorporated 42

C.F.R. 483.25(c). According to Tag F314, a facility must ensure

that a resident who enters the facility without pressure sores

does not develop pressure s ores unless the individual's clinical

condition later demonstrates that they were unavoidable, and a

resident with pressure sores receives necessary treatment and

services to promote healing, prevent infection, and prevent new

sores.

37. A pressure ulcer or pressure sore is any lesion caused

by the unrelieved pressure resulting in damage of underlying

tissue. Pressure ulcers usually occur over bony prominences and

are graded or staged to classify the degree of tissue damage

observed. The Agency ba sed the Tag F314 citation on its

findings regarding the surveyors' observation of three residents

and review of those residents' records.

38. Resident 1 was admitted to the facility without any

pressure sores. However, on March 1, 2001, during the survey,

Resident 1 was discovered to have a small open area on the

coccyx. The area was identified as a pressure sore.

39. Resident 1 had a care plan for prevention of pressure

sores, which included turning and repositioning every two hours

as she had been determined to be at risk for developing pressure

sores on admission due to her immobility. These measures were

appropriate at the beginning of Resident 1's stay at Coral

Trace, when the resident was immobile. However, by the time of

the survey, Resident 1 could move herself in bed, from bed to

wheelchair, and around and outside the building.

40. The care plan for Resident 1 also required weekly skin

checks, reporting of red areas, and a dietary assessment. The

evidence demonstrated that these measures were taken.

41. The Agency suggested that once Resident 1 became

mobile, there should have been documentation that the resident

was given education about the need to reposition herself to

prevent pressure sores. However, a resident wh o is alert and

mobile generally does not need to be told to move herself; this

is done automatically, as it becomes uncomfortable to sit or lie

in one position for a long time. Moreover, there is no standard

suggesting that mobile residents be educated ab out the need to

move, nor was it a measure described in Resident 1’s care plan.

42. With regard to Resident 1, Coral Trace took all the

reasonable and appropriate measures to prevent the development

of pressure sores.

43. In 1998, when Reside nt 8 was initially admitted to the

facility, he had pressure sores on both of his heels. Once a

pressure sore develops, the skin in that area breaks down more

easily and, even after the sores have been successfully treated,

the person remains at risk for developing pressure sores.

44. Apparently, at some point after Resident 8's initial

admission to Coral Trace, the pressure sores healed. However,

the nurse's notes of February 4, 2001, indicated that the

resident had developed a pressure sore on his heel . A few days

later, on February 9, 2001, the open area on Resident 8’s right

lateral heel was documented to be a stage II pressure ulcer or

sore.

45. The records of Resident 8 included an order for the

daily treatment of pressure sores. The order requir ed that

every day the open area be cleaned with normal saline and that

Hydrogel and coverderm be applied to that area.

46. At the time of the survey, there was a bandage over

Resident 8’s heel. The surveyor had the nurse to remove the

bandage so she co uld observe the pressure sore and the dressing.

However, there was no date recorded that would allow the

surveyor to determine when the dressing and bandage were put on

the resident.

47. During the survey, a review of the Resident 8’s

treatment reco rds indicated that the treatment required by the

physician’s order had not been given on six days during the

month of February 2001.

48. There was also an order for Resident 8 to wear a heel

protector cover. During the survey, a surveyor observed th e

resident at about 8:30 a.m. and noted that he was not wearing a

heel protector cover. Upon mentioning this observation to a

facility staff member, the surveyor was told by the staff person

that Resident 8’s heel protector cover was being washed, but

tha t one would be provided to him. About four hours later, at

about 12:45 p.m. the same day, the surveyor again observed

Resident 8 and he still did not have on a heel protector cover.

49. Coral Trace failed to provide the required treatment

for Reside nt 8’s pressure sore or, with regard to the order

described in paragraph 45, if the treatment was provided, the

facility failed to document such treatment.

50. Based on the records provided by the Coral Trace

during the survey, the Agency properly de termined that the

facility failed to provide and/or consistently implement the

treatment or services to promote healing of Resident 8’s

pressure sores and/or to prevent new sores.

51. Resident 20 had a history of pressure sores. On

December 14, 2000 , the Coral Trace physician ordered treatment

for the pressure sores. The order required the application of

Hydrocolloid dressing on the pressure sores as needed. On

March 1, 2001, the surveyor saw a couple of open areas on the

resident. The surveyor al so observed that no dressing was

applied to the areas although the resident's records indicated

that dressing had been applied on February 27, 2002.

52. With regard to Resident 20, Coral Trace failed to

provide treatment and services to promote the healin g of and/or

to prevent the development of pressure sores.

53. Resident 8 and Resident 20 acquired in - house pressure

sores that were avoidable. The facility failed to provide the

treatment and services to prevent the development of new

pressure sores. In light of the facility's failure to

implement, fully and consistently, the required services and

treatment for the Resident 8 and Resident 20, and to document

the same, it is not possible to conclude that the pressure sores

on Resident 8 and Resident 20 we re unavoidable. Moreover, Coral

Trace failed to provide the treatment and services to promote

the healing of existing pressure sores.

54. The violations for which Coral Trace were cited in the

March 2001 survey were classified by the Agency as Class I and

Class II deficiencies. Tags F224 and F490 were deemed by the

Agency to be Class I deficiencies because it determined that

these deficiencies presented an imminent danger to the residents

of the nursing home. Tag F314 was deemed to be a Class II

de ficiency because of the harm caused to the residents. An

additional consideration of the Agency in making this

determination was that it found that the in - house pressure sores

were avoidable.

55. A single Class I violation or Class II violation or

u ncorrected Class III violation is a sufficient basis to warrant

issuance of a conditional license pursuant to Section 400.23,

Florida Statutes.

56. The Agency properly observed the residents in question

and considered all records that were available at the time of

the survey. Based on the surveyors' review of records and

observations, the Agency properly found that, with respect to

Resident 8 and Resident 20, Coral Trace failed to provide the

treatments and services to prevent the development of pres sure

sores and/or promote the healing of existing pressure sores.

CONCLUSIONS OF LAW

57. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and the

parties thereto. Section 120.569 and Subsection 120. 57(1),

Florida Statutes.

58. The Agency is authorized to license nursing home

facilities in the State of Florida, and pursuant to Chapter 400,

Part II, Florida Statutes, is required to evaluate nursing home

facilities and assign ratings. As the surv ey and conditional

license rating occurred in March, 2001, prior to the

implementation of amendments to Chapter 400 by the 2001

Legislature, Chapter 400, Florida Statutes (2000) is applicable.

59. Subsection 400.23(7), Florida Statutes (2000),

requir es the Agency to "at least every 15 months, evaluate all

nursing home facilities and make a determination as to the

degree of compliance by each licensee with the established rules

adopted under this part as a basis for assigning a licensure

status to the facility." That section further provides that the

Agency’s evaluation must be based on the most recent inspection

report, taking into consideration findings from other official

reports, surveys, interviews, investigations, and inspections.

60. Based on its findings and conclusions of deficiencies,

the Agency is required to assign a licensure status to the

facility. The relevant categories are defined in Section

400.23(7), Florida Statutes (2000), as follows:

(a) A standard rating means that a

fa cility has no class I or class II

deficiencies, has corrected all class III

deficiencies within the time established by

the agency and is in substantial compliance

at the time of the survey with criteria

established in this part, with rules adopted

by the agency, and, if applicable, with

rules adopted under the Omnibus Budget

Reconciliation Act of 1987. . . Title IV

(Medicare, Medicaid, and Other Health -

Related Programs), Subtitle C (Nursing Home

Reform), as amended.

(b) A conditional rating 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, or,

if applicable, with rules adopted by the

Omnibus Reconciliation Act of 1987. . .

Title IV (Medicare, Medicaid, and Other

Health - Related Programs, Subtitle C (Nursing

Home Reform), as amended. . . .

61. Se ction 400.23(8), Florida Statutes (2000), provides

that when minimum standards are not met, the deficiencies shall

be classified according to the nature of the deficiency. That

section delineates and defines the various categories of

deficiencies, with a Class I deficiency being the most severe.

62. 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 w ould result therefrom." Class

II deficiencies "are those which the agency determines have a

direct or immediate relationship to the health, safety, or

security of nursing home facility residents, other than Class I

deficiencies.” Section 400.23(8), Flori da Statutes (2000).

63. The categories of deficiencies are further defined in

Rule 59A - 4.128(3), Florida Administrative Code, as follows:

(a) Class I deficiencies are those which

present either an imminent danger, a

substantial probability of deat h or serious

physical harm and require immediate

correction. Class II deficiencies are those

deficiencies that present an immediate

threat to the health, safety, or security of

the residents of the facility and the AHCA

establishes a fixed period of time for the

elimination and correction of the

deficiency. . . .

64. The Agency alleges that the violations for which Coral

Trace was cited are Class I and Class II violations and seeks to

change the licensure status of Coral Trace from standard to

condi tional. Accordingly, the Agency has the burden of proof in

this proceeding.

65. In order to prevail, the Agency must establish by a

preponderance of evidence the existence of the alleged

deficiencies and that such deficiencies justify changing the

f acility's license from a standard to conditional rating.

Department of Transportation v. J. W.C., Company, Inc. , 396 So.

2d 778 (Fla. 1st DCA 1981); Balino v. Department of Health and

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

66. The regulations found in 42 C.F.R. 483 and the

requirements therein have been incorporated by reference into

Rules 59A - 4.128 and 59A - 4.1288, Florida Administrative Code.

67. Tag F224 incorporates the requirements of 42 C.F.R.

483.13(c)(1), which prov ides that the facility “must develop and

implement written policies and procedures that prohibit

mistreatment, neglect, and abuse of residents and

misappropriation of resident property.”

68. The Agency failed to prove that Coral Trace violated

42 C.F .R. 483.13(c).

69. The evidence did not establish that Coral Trace failed

to develop and implement the policies contemplated and required

by 42 C.F.R. 483.23(13(c). Rather, the evidence established

that the facility did have such a policy. Moreover, wit h regard

to validating physicians' orders, the evidence established that

the facility had a procedure by which it checked, on a monthly

basis, physicians' orders against the residents' medication

administration records and treatment administration records.

70. Although one physician's order was missed for one

resident, the Agency failed to prove that the deficiency was the

result of any overall systems failure, or that there was any

imminent danger or immediate jeopardy to Resident 1 or any other

resident at Coral Trace. Furthermore, the Agency failed to

establish that there was an imminent danger or substantial

probability of death or serious physical harm, because of this

isolated occurrence. Contrary to the assertion of the Agency,

the evidence establi shed that Resident 1 suffered no harm and

was discharged from the facility shortly after the survey.

71. The evidence presented at hearing does not support the

Agency's allegation that the one missed physician's order

constitutes neglect. Even if the mis sed order constitutes the

"neglect" of Resident 1, a single act of neglect does not

demonstrate a failure to develop and/or implement policies.

(See decisions of federal agency responsible for enforcing the

regulations set forth in 42 C.F.R. 483, Beverly Health and

Rehabilitation v. Health Care Financing Administration ,

Department of Health and Human Services, Departmental Appeals

Board, Decision No. CR533 (1998) and Life Care Center of

Hendersonville v. Health Care Financing Administration ,

Department of Health and Human Services, Departmental Appeals

Board, Decision No. CR542 (1998), which provide that "evidence

of an isolated act of neglect is not prima facie proof of a

failure by a long - term care facility to implement a policy or

procedure to prevent ne glect. Here, the evidence established

that the missed order was an isolated occurrence which resulted

in no harm to the resident.

72. Tag F490 incorporates 42 C.F.R. 483.75, which provides

the following:

A facility must be administered in a

manner that enables it to use its resources

effectively and efficiently to attain or

maintain the highest practicable physical,

mental and psychological well - being of each

resident.

73. The Tag F490 deficiency was based on the same factual

allegations tha t are the basis for the Tag F224 deficiency.

74. The Agency offered no evidence to establish how the

facility failed to use its resources to effectively and

efficiently attain or maintain the highest practicable physical,

mental, and psychological we ll - being of each resident.

75. The Tag F314 incorporates 42 C.F.R. 483.25(c), which

provides the following:

(c) Pressure sores. Based on the

comprehensive assessment of a resident, the

facility must ensure that -

(1) A resident who enters the facility

without pressure sores does not develop

pressure sores unless the individual's

clinical condition demonstrates that they

were unavoidable; and

(2) A resident having pressure sores

receives necessary treatment and services to

promote healing, prevent infection and

prevent new sores from developing.

76. The Agency failed to establish that the pressure sores

developed by Resident 1 were avoidable. The evidence

established that by virtue of the treatment and services

implemented by the fa cility and the resident's own control over

her actions, the pressure sore developed by Resident 1 was

unavoidable.

77. With regard to Resident 8 and Resident 20, cited under

Tag F314, the Agency established by a preponderance of evidence

that the pre ssure sores were avoidable. The Agency established

that the facility failed to consistently carry out orders and

necessary treatment and services to prevent the development of

pressure sores on Resident 8 and Resident 20 and/or to promote

the healing of e xisting pressure sores. Accordingly, in regard

to Tag F314 and as it relates to Resident 8 and Resident 20, the

Agency met its burden.

78. Finally, the evidence established that the Tag F314

deficiency had a direct or immediate relationship to the h ealth

of the residents in the facility and, thus, was properly

determined by the Agency to be Class II deficiency.

79. Based on the foregoing, the Agency established the

existence of one Class II deficiency at Coral Trace during the

March 2001 survey . As a result of this Class II deficiency, the

Agency is required to assign conditional licensure status to

Coral Trace, pursuant to Subsection 400.23 (7)(b), Florida

Statutes (2000).

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 revising the March 2001 survey report to

delete the deficiencies described under Tag F224 and Tag F490;

finding that Coral Trace was properly cited for the Class I I

deficiency listed under Tag F314 in the survey report; and

sustaining the conditional licensure rating for Coral Trace that

was in effect from March 1, 2001, until October 31, 2001.

DONE AND ENTERED this 16th day of May, 2002, in

Tallahassee, Leon County , Florida.

___________________________________

CAROLYN S. HOLIFIELD

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 (850) 9 21 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 16th day of May, 2002.

COPIES FURNISHED :

Louis M. Vissepo, III, Esquire

Pury Lopez Santiago, Esquire

Agency for Health Care Administration

8355 Northwe st 53rd Street

Koger Center, First Floor

Miami, Florida 33166

Donna H. Stinson, Esquire

R. Davis Thomas, Qualified Representative

Broad and Cassel

215 South Monroe Street, Suite 400

Post Office Box 11300

Tallahassee, Florida 32302

Virginia A. Daire, Ag ency Clerk

Agency for Health Care Administration

2727 Mahan Drive

Fort Knox Building, Suite 3431

Tallahassee, Florida 32308

William Roberts, Acting General Counsel

Agency for Health Care Administration

2727 Mahan Drive

Fort Knox Building, Suite 3431

Tall ahassee, 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

w ill issue the final order in this case.