01-004649 Agency For Health Care Administration vs. Life Care Centers Of America, Inc., D/B/A Life Care Center Of Port Saint Lucie Status: Closed Recommended Order on Wednesday, May 15, 2002.

Summary: Agency proved by clear and convincing evidence that Life Care failed to provide proper care and supervision to resident, resulting in fall that caused injuries; established two Class II violations; conditional license sustained, $5,000 fine recommended.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) Case Nos. 01 - 3148

) 01 - 4649

LIFE CARE CENTER OF PORT )

SAINT LUCIE, )

)

Respondent. )

________________________________ _)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in these

consolidated cases on January 31, 2002, in Fort Pierce, Florida,

before Patricia Hart Malono, a duly - designated Administrative

Law Judge of the Division of Administrative Hearin gs.

APPEARANCES

For Petitioner: Luis M. Vissepo, III, Esquire

Agency for Health Care Administration

8355 Northwest 53rd Street

Miami, Florida 33166

For Respondent: R. Bruce Mc Kibben, Jr., Esquire

Post Office Box 1798

Tallahassee, Florida 32302 - 1798

STATEMENT OF THE ISSUES

DOAH Case No. 01 - 3148: Whether the Respondent's licensure

status should be reduced from standard to conditiona l.

DOAH Case No. 01 - 4649: Whether the Respondent committed

the violations alleged in the Administrative Complaint dated

October 15, 2001, and, if so, the penalty that should be

imposed.

PRELIMINARY STATEMENT

In a letter dated July 3, 2001, the Agency for Health Care

Administration ("AHCA") notified Life Care Center of Port Saint

Lucie ("Life Care") that, effective June 12, 2001, its licensure

status had been reduced to conditional as a result of a survey

of the facility completed on June 12, 2001. AHCA s tated in its

letter that a Class II deficiency was cited during the June 12,

2001, survey based on Life Care's failure to provide care and

services to two residents because it did not monitor the sugar

level of a diabetic resident and did not supervise ano ther

resident, resulting in a fall. Life Care timely disputed the

facts alleged in the letter and requested an administrative

hearing. AHCA forwarded the matter to the Division of

Administrative Hearings for assignment of an administrative law

judge. Th e case was assigned DOAH Case No. 01 - 3148.

On October 12, 2001, AHCA filed a formal three - count

Administrative Complaint in DOAH Case No. 01 - 3148, setting forth

allegations of fact to support its decision to reduce Life

Care's licensure status to condition al in accordance with its

authority under Section 400.23(7)(b), Florida Statutes. In the

Administrative Complaint, AHCA identified three deficiencies on

which it based the reduction of Life Care's licensure status:

(a) In Count I, AHCA alleges that Life Care had a Class II

deficiency on June 12, 2001, because it failed to provide care

to residents E.G. and N.D. "as needed and as ordered by the

physician," in violation of Section 400.022(1)(l), Florida

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

Section 483.13(c), Code of Federal Regulations.

(b) In Count II, AHCA alleges that Life Care had an

"uncorrected" Class III deficiency on June 12, 2001, because it

failed to complete a comprehensive Care Plan for resident N.D.

that "met her medical needs," in violation of Rules 59A - 4.109(2)

and 59A - 4.1288, Florida Administrative Code, and

Section 483.20(k), Code of Federal Regulations. The

classification of the violation as an "uncorrected" Class III

deficiency is based on a Class III deficiency cit ed during a

previous survey conducted on May 9, 2001.

(c) In Count III, AHCA alleges that Life Care had a

Class II deficiency on June 12, 2001, because it failed

to provide services to residents E.G. and N.D. that

"met professional standards of care," in violation of

Rule 59A - 4.1288, Florida Administrative Code, and

Section 483.20(k)(3)(i), Code of Federal Regulations.

AHCA subsequently transmitted to the Division of

Administrative Hearings Life Care's Petition for Formal

Administrative Hearing dated Oc tober 26, 2001. The petition was

filed in response to a three - count Administrative Complaint

dated October 15, 2001, in which AHCA stated its intention to

impose an administrative fine on Life Care in the amount of

$7,000.00, pursuant to Section 400.23(8) (b) and (c), Florida

Statutes. In its petition, Life Care disputed the facts set

forth in an Administrative Complaint, which contains allegations

identical to those contained in the Administrative Complaint

forming the basis for the proceeding in DOAH Cas e No. 01 - 3148.

This second case was assigned DOAH Case No. 01 - 4649.

Life Care filed an uncontested Motion to Consolidate the

two cases, which was granted in an order entered December 14,

2001. The final hearing in these cases was scheduled for

January 31 and February 1, 2002; the hearing was completed on

January 31, 2002.

At the hearing, AHCA presented the testimony of Florence

Treakle, a Registered Nurse Specialist employed by AHCA, and

Concettina Russo, a Nurse Consultant employed by AHCA.

Petitioner's Exhibits 1 through 4, 6 through 9, 11 through 16,

18 through 20, 25 through 28, 30, 31, 35, 36, and 39 were

offered and received into evidence; Petitioner's Exhibit 22 was

offered into evidence but rejected. Life Care presented the

testimony of the follo wing witnesses: Nova Coleman, formerly

employed by Life Care as a Certified Nursing Assistant ("CNA");

Michelle Meer, Executive Director of Life Care; and Marion

Neuhaus, formerly Life Care's Director of Nursing. Respondent's

Exhibits 12, 14, 16, 18, and 19 were offered and received into

evidence.

The two - volume transcript of the proceedings was filed with

the Division of Administrative Hearings on February 14, 2002,

and the parties timely submitted proposed findings of fact and

conclusions of law, which h ave been considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing and on the entire record of this proceeding, the

following findings of fact are made:

1. AHCA is the state agency responsible for licensing and

regulating the operation of nursing home facilities, including

ensuring that nursing homes are in compliance with criteria

established by Florida statute. Chapter 400, Part II, Florida

Statutes (2001). AHCA is authorized in Section 400.23(8),

Florida Statutes, to impose administrative fines on nursing home

facilities that fail to meet the applicable criteria.

2. Florence Treakle conducted surveys of Life Care on

May 9, 2001, and June 12, 2001, as a result of complaints

received by AHCA. Because the surveys were conducted as a

result of complaints received by AHCA, Ms. Treakle was the only

AHCA surveyor conducting the surveys. The results of the

surveys were reported on a form identified as "HCFA - 2567," whic h

is generated by the federal Department of Health and Human

Services, Health Care Financing Administration, and is commonly

referred to as a "Form 2567."

3. Several deficiencies were identified in the Form 2567s

completed for the May 9, 2001, and June 12 , 2001, surveys, which

were each cited to a federal "tag number" designated as

"F" tags, 1 to the applicable provision of the Code of Federal

Regulations, and to the applicable Florida administrative rule.

Each deficiency was also classified under Florida law as either

a Class II or a Class III deficiency, and a factual narrative

was included to support each deficiency cited.

May 9, 2001, surve y. 2

4. The Form 2567 for the May 9, 2001, survey included a

citation for a Class III deficiency under F - 279, "Res ident

Assessment," and Section 483.13(c), Code of Federal Regulations.

This citation involved the care provided to residents L.D. and

A.M. and was supported by the assertion that, "[b]ased on

observation and record review[,] . . . the facility did not hav e

comprehensive care plans in place for healing of the residents

[sic] pressure sores."

5. A care plan is a tool used by the nursing staff to

ensure that the resident is getting consistent care and is

compiled from data included in a resident's Comprehens ive

Assessment. An entry in a care plan includes the identification

of a problem, a goal for resolving or improving the problem, and

the approaches, or means, to be used to reach the goal.

Resident L.D.

6. L.D. came into Life Care with pressure ulcers,

i ncluding a Stage IV pressure ulcer 3 on his coccyx, which is

located at the bottom of the backbone. L.D. was receiving wound

care both at Life Care and at a wound care center pursuant to a

physician's order dated April 4, 2001, which contained the

followin g requirement: "[O]ffload[] all boni [sic] prominences

as much as possible." In accordance with this order, L.D. was

turned and repositioned in bed every two hours, and he was

provided with a special, pressure - relieving mattress.

7. L.D. was a very quie t person, but he had no cognitive

impairment and was able to communicate his needs to staff.

L.D.'s wife visited him every day; she usually arrived in

mid - morning and left in mid - afternoon, and she returned for a

few hours in the evening. Both L.D. and his wife made it clear

to the Life Care staff that L.D. wanted to sit in a wheelchair

as much as possible so that he could move around the facility,

take walks outdoors with his wife, and have his meals sitting

up.

8. L.D. used a special, high - backed whee lchair that he

provided for his use while he was a resident of Life Care. The

chair reclined so that pressure on his coccyx could be relieved

somewhat, and Life Care furnished him a gel cushion for his

wheelchair, also to help relieve pressure on his cocc yx.

9. On May 9, 2001, Ms. Treakle observed L.D. sitting in

his wheelchair for over two hours, from 10:20 a.m. until

1:00 p.m. She found nothing in L.D.'s Care Plan regarding the

amount of time L.D. would be permitted to sit in a wheelchair.

Resident A.M .

10. A.M. entered Life Care with a Stage III pressure ulcer

on his left buttock. A.M. was receiving wound care at Life Care

in accordance with the approaches included in his Care Plan.

11. A.M. was not cognitively impaired, and he could

communicate his needs to staff. His granddaughter and

one year - old great - grandson visited him every day, and he

enjoyed sitting outside in a wheelchair with his great - grandson

on his lap. A.M. also liked to spend most of his time outside

his room, moving himself aroun d the facility in a wheelchair.

12. Life Care provided a gel cushion for his wheelchair to

help relieve pressure on A.M.'s buttock.

13. On May 9, 2001, Ms. Treakle observed A.M. sitting in a

wheelchair from 2:00 p.m. until 3:30 p.m. A.M.'s Care Plan did

not contain an entry establishing the amount of time A.M. would

be permitted to sit in a wheelchair.

Summary .

14. AHCA has failed to establish by even the greater

weight of the evidence that the Care Plans developed for L.D.

and A.M. were deficient. AHC A failed to present credible

evidence of the contents of L.D.'s Care Plan, 4 but the evidence

is uncontroverted that L.D.'s wound care orders contained

approaches for healing his pressure sores. A.M.'s Care Plan

included several approaches for healing his pressure sores, and

AHCA has not alleged that the required wound care was not

provided to either L.D. or A.M.

15. Rather, AHCA's specific complaint regarding the Care

Plans of L.D. and A.M. is that there was no approach specifying

the amount of time L.D. and A.M. would be permitted to sit in

their wheelchairs. This complaint is based exclusively on the

expectations of Ms. Treakle. Ms. Treakle expected to find this

approach in the Care Plans because, in her opinion, pressure on

the coccyx and buttocks can never be completely relieved when a

resident is sitting, 5 and any pressure on a pressure ulcer

impedes healing because it decreases blood flow to an area.

Accordingly, Ms. Treakle "would expect good practice would [sic]

be for the Care Plan to indicate h ow long the resident was going

to sit on this pressure sore." 6 AHCA did not, however, submit

any evidence of a standard of care requiring that the duration

of time a resident can sit in a wheelchair be included as an

approach in the care plan of a residen t with a pressure ulcer,

especially when the resident is alert, mobile, and able to

communicate with staff.

June 12, 2001, survey .

16. The Form 2567 for the June 12, 2001, survey cited Life

Care for three deficiencies:

a. A Class II deficiency was cited under F - 224, "Staff

Treatment of Residents," and Section 483.13(c)(1)(i), Code of

Federal Regulations, involving the care provided to residents

E.G. and N.D. and supported by the assertion that "[b]ased on

observation, record review and interview[,] the f acility did not

monitor and supervise the delivery of care and services."

b. A Class III deficiency was cited under F - 279, "Resident

Assessment," and Section 483.20(k), Code of Federal Regulations,

supported by the assertion that, "[b]ased on review of th e care

plan for resident #1 [N.D.], . . . the facility did not complete

a comprehensive care plan that was revised to reflect all fall

risks."

c. A Class II deficiency was cited under F - 281, "Resident

Assessment," and Section 483.20(k)(3)(i), Code of Fede ral

Regulations, supported by the assertion that, "[b]ased on

citations at F 224[,] F 279 and F 324[,] the facility nursing

staff did not provide care that met professional standards for

residents #1 [N.D.] and #2 [E.G.]."

Resident E.G.

Diabetes manag ement.

17. Pertinent to these proceedings, E.G. was diagnosed

with insulin - dependent diabetes; his blood sugar generally

ranged from 150 to 270, which is in the mid - range, although it

once reached 348.

18. E.G. was alert, oriented, self - ambulatory, and

s omewhat grouchy. E.G.'s brother visited him about three times

each week, and E.G. often left the facility with his brother for

a meal. He did not adhere strictly to his diet, but often ate

fried foods when he went out with his brother, and he kept a

supp ly of orange juice in the small refrigerator in his room.

Both fried foods and orange juice are contraindicated for

diabetics.

19. Pursuant to physician's orders, E.G.'s blood sugar was

to be monitored four times a day, before each meal and at

bedtime, 7 and insulin was to be administered on a sliding scale,

in an amount to be determined based on his blood sugar level.

This order was transcribed on E.G.'s Medication Record, which,

for each day of the month, included spaces for the time, the

blood sugar le vel, the insulin coverage (the dosage expressed in

number of units administered), and the site of injection,

together with the initials of the staff member providing the

care. Life Care staff also maintained glucose monitoring

sheets, which included space s for the date, the time, the blood

sugar level, the dosage of insulin administered, and the

initials of the staff member providing the care.

20. There is no documentation in E.G.'s Medication

Records, his glucose monitoring sheets, or the Nurses Notes th at

his blood sugar was checked at 11:30 a.m. on June 7, 2001. When

his blood sugar was checked at 4:30 p.m. on June 7, it was 317,

which is substantially higher than usual.

21. For the 6:30 a.m. checks on June 2, 3, and 8, 2001,

E.G.'s blood sugar level was documented and there are notations

that insulin was given, but the dosages and sites of injection

were not noted; E.G.'s blood sugar at the 11:30 a.m. checks on

these days was either virtually the same as, or less than, the

levels noted at the 6:30 a.m . checks. For the 6:30 a.m. check

on June 4, 2001, E.G.'s blood sugar level was documented, but

there is no notation that insulin was given; E.G.'s blood sugar

at the 11:30 a.m. check on June 4 was less than the level noted

at the 6:30 a.m. check.

W ound Care.

22. On June 5, 2001, a dermatologist removed a lesion from

the top of E.G.'s left hand. The dermatologist prescribed

Bactroban ointment, which was to be applied to the wound twice a

day. Wound care instructions were included with the

prescrip tion, which provided as follows:

Leave bandage on for 24 hours only without

getting wet.

Remove bandage after 24 hours and then do

not apply another bandage.

Leave the area open and clean the wound

twice daily with warm water.

Pat the wound dry and then ap ply Bactroban

Ointment. Bactroban Ointment is a topical

antibiotic that can be purchased without a

prescription.

Continue to do this until the wound has

healed.

Normal bathing can be resumed after the

bandage is removed.

Some redness and swelling are norm al in the

immediate area of the wound. If the wound

develops significant redness, tenderness or

a yellow drainage, please contact this

office immediately . . . .

23. A physician's order dated June 5, 2001, was written

for E.G. for "Bactroban oint to wou nd on L hand, 45gm." The

order did not state how often the ointment was to be applied or

include the other instructions accompanying the prescription.

The order was transcribed on E.G.'s Treatment Record on June 5,

2001, but the entry provided only that Bactroban ointment was to

be applied to the wound once a day.

24. There is nothing in E.G.'s Care Plan, Treatment

Record, or Medication Record to document that his wound was

treated between June 5 and June 12, 2001, nor was there any

indication in E.G.'s chart that anyone signed for the Bactroban

ointment.

25. Marion Neuhaus, the Director of Nursing at Life Care

at the times pertinent to these proceedings, observed E.G.'s

wound every day because E.G. came to her office to show her the

wound and other bum ps and scrapes he accumulated as he walked

around the facility. Ms. Neuhaus noted that the wound was

scabbed, that there was a pink area around the wound, and that

there was no swelling or drainageeatment was begun on the

wound on June 12, 2001, and it healed without any complications.

Summary .

26. AHCA has established clearly and convincingly that

Life Care did not provide E.G. with the wound care that was

ordered by his physician. AHCA has, however, failed to

establish by even the greater wei ght of the evidence that the

healing process of E.G.'s wound was compromised by this lack of

treatment. Ms. Treakle observed E.G.'s wound on June 12, 2001,

and noted that it was scabbed and red around the edges.

Ms. Treakle concluded that this redness al one indicated that the

wound was infected. This conclusion is undermined by the

notation in the wound care instructions included with E.G.'s

prescription from the Dermatology Center that "[s]ome redness

and swelling are normal in the immediate area of the wound."

Furthermore, Ms. Treakle did not follow E.G.'s wound after

June 12, 2001, and the evidence presented by Life Care that

E.G.'s wound healed in a timely manner is uncontroverted.

27. AHCA has established clearly and convincingly that

there are sev eral omissions in the documentation of Life Care's

monitoring of E.G.'s blood, but these omissions do not

reasonably support the inference that Life Care failed to

monitor E.G.'s blood sugar and administer insulin on these dates

as required by the physicia n's orders; rather, Life Care's

failure on these occasions was inadequate documentation, not

inadequate care.

28. AHCA has, however, established clearly and

convincingly that Life Care did not monitor E.G.'s blood sugar

as required by his physician's orde r at 11:30 a.m. on June 7,

2001; this inference may reasonably be drawn based on the lack

of documentation and E.G.'s elevated blood sugar at the next

check at 4:30 p.m. Ms. Treakle assumed that E.G. suffered

actual harm as a result of this omission becau se, in her view,

hyperglycemia, or elevated blood sugar, always causes damage to

the body; Ms. Treakle could not, however, identify any specific

harm to E.G. caused by this one omission. AHCA has failed to

establish by even the greater weight of the evide nce that E.G.'s

physical well - being was compromised by Life Care's failure to

monitor his blood sugar on this one occasion.

Resident N.D.

Fall from Shower Chair . 8

29. At the times pertinent to these proceedings, N.D. was

a 79 year - old woman who had been a resident of Life Care since

October 26, 1999. According to the assessment of N.D. included

in the Minimum Data Set completed on May 3, 2001, N.D. suffered

from Alzheimer's disease, had long - and short - term memory

problems, and was severely impaired and unable to make

decisions; as of June 12, 2001, N.D. was almost entirely

dependent on staff for all of the activities of daily living.

N.D.'s Care Plan for November 6, 2000, which was updated with

handwritten notes, reflects that she had poor safety a wareness.

30. The Interdisciplinary Notes maintained by Life Care

reflect that, on June 5, 2001, a nurse observed N.D. leaning

forward in her wheelchair at breakfast; this was the first

mention of this behavior in N.D.'s chart. Dr. Gil, N.D.'s

physician, included a notation in the Physician's Progress Notes

for June 8, 2001, that he observed N.D. leaning forward but was

unable to assess her abdomen because of her anxiety. The

Interdisciplinary Notes reflect that Dr. Gil visited N.D. on

Saturday, June 9, 2001, and that she was again leaning forward

in her wheelchair, "almost falling out of [her] chair." Dr. Gil

ordered an ultra - sound of N.D.'s abdomen and a "lap buddy while

in w/c [wheelchair] to prevent falls." Dr. Gil's order was

noted in the Interdisc iplinary Notes for June 9, 2001, as well

as on a physician's order form signed by Dr. Gil on June 10,

2001.

31. According to Life Care's written policy, physician

orders are to be transcribed into a patient's care plan,

treatment plan, or medication admin istration record, depending

on the nature of the order. Dr. Gil's order for a lap buddy had

not been transcribed into N.D.'s November 6, 2000, Care Plan at

the time Ms. Treakle conducted her survey on June 12, 2001. 9

32. A lap buddy was used on N.D.'s wh eelchair beginning on

the morning of June 11, 2001.

33. On the evening of June 11, 2001, CNA Nova Coleman was

caring for N.D. Ms. Coleman had been working for Life Care for

only a short time, and N.D. was one of the first patients

Ms. Coleman cared for a fter finishing her initial training.

Ms. Coleman was, however, not an inexperienced CNA, having

previously worked at another nursing home.

34. At approximately 8:30 p.m., Ms. Coleman and another

CNA had just finished showering N.D., and N.D. was sitting in a

shower chair; her hair had been toweled dry, and she was dressed

in her night clothes. The second CNA left the room, and

Ms. Coleman, who had been standing in front of N.D., moved to

the back of the shower chair so she could push N.D. out of the

show er area. As she moved around the chair, N.D. pitched

forward and fell face - first onto the floor. Ms. Coleman tried

to grab N.D. to stop her from falling, but N.D. toppled over so

quickly that Ms. Coleman could not reach her. N.D. suffered

severe bruises to her face and a laceration on her lip as a

result of the fall, but she did not break any bones.

35. Ms. Coleman had not been advised prior to the fall of

N.D.'s tendency to lean forward in her chair.

36. N.D.'s tendency to lean forward in her wheelcha ir

should have been entered in her Care Plan, together with the

requirement that a lap buddy was to be used whenever she was in

a wheelchair. In addition, Ms. Coleman should have been briefed

on N.D.'s condition, including her tendency to lean forward,

be fore Ms. Coleman was allowed to care for N.D. Although a lap

buddy was not ordered for the shower chair and, in fact, could

not appropriately have been used on a shower chair, the former

Nursing Director of Life Care conceded that there were other

means b y which N.D.'s fall could have been prevented. 10 The

former Nursing Director also conceded that the failure to brief

Ms. Coleman on N.D.'s condition probably contributed to the fall

from the shower chair.

Summary .

37. AHCA has established clearly an d convincingly that

Life Care failed to provide N.D. with the services necessary to

prevent her from falling from the shower chair and injuring

herself, that Life Care failed to provide services that met

professional standards, and that Life Care failed to revise

N.D.'s Care Plan to include the risk of her falling forward

while seated and the approaches Life Care would take to prevent

her from injuring herself. Life Care conceded that the Care

Plan should have included N.D.'s tendency to lean forward while

seated and Dr. Gil's order of June 9, 2001, that N.D. be

provided with a lap buddy when she was in the wheelchair. Life

Care also conceded that the CNA should have been briefed on

N.D.'s condition before she was assigned to care for N.D. Life

Care furth er conceded that, even though Dr. Gil did not

specifically prescribe a restraint to be used in the shower

chair, measures could have been taken to ensure that N.D. did

not fall out of the shower chair.

38. AHCA has also established clearly and convincingl y

that Life Care's failure to provide proper care to N.D. resulted

in her suffering significant injuries to her face. Although the

injuries were to soft tissue and ultimately healed, N.D.'s

physical well - being was adversely affected. In addition, AHCA

ha s established clearly and convincingly that, even had N.D. not

fallen and suffered injuries, the failure to include in N.D.'s

Care Plan her tendency to lean forward and its failure to

transcribe the physician's orders regarding the lap buddy into

the Care Plan could have caused a lapse in the care provided to

N.D. that could have possibly resulted in injury.

CONCLUSIONS OF LAW

39. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties thereto pursuant to Sections 120.569 and 120.57(1),

Florida Statutes (2001).

40. Section 400.19(1), Florida Statutes, grants AHCA the

authority to inspect a nursing home facility in response to a

complaint, and AHCA is directed in Section 400.23(2), Florida

Stat utes, to adopt rules that

include reasonable and fair criteria in

relation to:

* * *

(f) The care, treatment, and maintenance of

residents and measurement of the quality and

adequacy thereof, based on rules developed

under this chapter and the Omnibus B udget

Reconciliation Act of 1987 (Pub. L. No. 100 -

203)(December 22, 1987), Title IV (Medicare,

Medicaid, and Other Health - Related

Programs), Subtitle C (Nursing Home Reform),

as amended.

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

in perti nent part:

Nursing homes that participate in Title

XVIII or XIX must follow certification rules

and regulations found in 42 CFR 483,

Requirements for Long Term Care Facilities,

September 26, 1991, which is incorporated by

reference. . . . [ 11 ]

Therefore, fo r nursing home facilities certified to participate

in the federal Medicare and/or Medicaid programs, AHCA

classifies deficiencies with respect to the requirements of

Title 42, Sections 483.10 through .75, Code of Federal

Regulations, using federal tag numb ers to designate the nature

of the particular deficiencies. See Rule 59A - 4.128(1), Florida

Administrative Code.

42. AHCA also classifies deficiencies identified in a

facility survey in accordance with the criteria set forth in

Section 400.23(8), Florida Statutes, as Class I, Class II, or

Class III deficiencies. Relevant to the May 9, 2001, survey, a

Class III deficiency is defined in Section 400.23(8)(c), Florida

Statutes (2000), as one which has "an indirect or potential

relationship to the health, safe ty, or security of the nursing

home facility residents, other than Class I or Class II

deficiencies." 12 Relevant to the June 12, 2001, survey, a

Class II deficiency is defined in Section 400.23(8)(b), Florida

Statutes (2001), as one which "has compromised the resident's

ability to maintain or reach his or her highest practicable

physical, mental, and psychological well - being, as defined by an

accurate and comprehensive resident assessment, plan of care,

and provision of services"; a Class III deficiency is defined in

Section 400.23(8)(c), Florida Statutes (2001), as one which

"will result in no more than minimal physical, mental, or

psychosocial discomfort to the resident or has the potential to

compromise the resident's ability to maintain or reach his or

h er highest practicable physical, mental, and psychological

well - being, as defined by an accurate and comprehensive resident

assessment, plan of care, and provision of services."

Standards of Proof .

43. AHCA, as the party seeking to reduce Life Care's

lic ensure status and impose an administrative fine, bears the

burden of proof in both DOAH Case No. 01 - 3148 and DOAH Case

No. 01 - 4649. See Board of Trustees of the Northwest Florida

Community Hospital v. Department of Management Services,

Division of Retire ment , 651 So. 2d 170, 172 (Fla. 1st DCA

1995)(Burden of proof is on the party seeking to change the

status quo.)

44. In DOAH Case No. 01 - 3148, AHCA seeks to reduce Life

Care's licensure status from standard to conditional and,

therefore, bears the burden of proving the allegations in the

Administrative Complaint by a preponderance of the evidence.

See Section 120.57(1)(j), Florida Statutes (2001)("Findings of

fact shall be based upon a preponderance of the evidence, except

in penal or licensure disciplina ry proceedings or except as

otherwise provided by statute, . . ."); cf . Department of

Banking and Finance, Division of Securities and Investor

Protection v. Osborne Stern and Co. , 670 So. 2d 932

(Fla. 1996)(The "clear and convincing evidence" standard appl ies

when agency seeks to suspend or revoke a license.)

45. In DOAH Case No. 01 - 4649, AHCA seeks to impose an

administrative fine on Life Care, and, therefore, AHCA bears the

burden of proving the allegations in the Administrative

Complaint by clear and co nvincing evidence. See Osborne Stern ,

670 So. 2d at 932 - 33 (Fla. 1996)(The "clear and convincing

evidence" standard applies when agency seeks to impose an

administrative fine.)

Administrative Complaints .

46. The allegations in both of the Administrative

Complaints at issue herein are identical, with the only

difference in the two complaints being the remedy sought. It

is, therefore, not practical to deal separately with the factual

allegations supporting AHCA's proposed actions, and, in the

interest of efficiency, the allegations in the two

administrative complaints will be treated together. In

addition, applying different standards of proof in weighing the

sufficiency of the evidence presented herein is problematic.

Nonetheless, the quantity and the q uality of the evidence have

been carefully considered in determining whether AHCA has met

its differing burdens of proof in these cases.

Count I .

47. In Count I of the Administrative Complaints, AHCA

charged that, at the time of the June 12, 2001, survey , Life

Care had a Class II deficiency with respect to the care given

E.G. and N.D., based on alleged violations of Section 400.022(1)

and Section 483.13(c), Code of Federal Regulations. In the

Form 2567, these violations were grouped under the federal tag

number "F - 224."

48. Section 400.022(1)(l), Florida Statutes (2001),

provides that one of the rights of residents of nursing home

facilities is

[t]he right to receive adequate and

appropriate health care and protective and

support services, including soci al services;

mental health services, if available;

planned recreational activities; and

therapeutic and rehabilitative services

consistent with the resident care plan, with

established and recognized practice

standards within the community, and with

rules as adopted by the agency.

49. Section 483.13(c), Code of Federal Regulations,

contains a number of separate provisions, and AHCA did not

identify in the Administrative Complaints the provision that

Life Care had allegedly violated. However, in the Form 2567 for

the June 12, 2001, survey, AHCA specifically cited Life Care for

a violation of Section 483.13(c)(1)(i), Code of Federal

Regulations, which provides that "[t]he facility must develop

and implement written policies that prohibit mistreatment,

negle ct, and abuse of residents and misappropriation of resident

property."

50. Section 488.301, Code of Federal Regulations, defines

"neglect" as the "failure to provide goods and services

necessary to avoid physical harm, mental anguish, or mental

illness."

51. According to the Administrative Complaints, Life Care

failed to monitor and supervise the delivery of care and

services to E.G. with respect to wound care and blood sugar

monitoring and to N.D. with respect to care and supervision to

prevent falls. B ased on the findings of fact herein, AHCA has

proven by clear and convincing evidence that Life Care failed to

provide services to both E.G. and N.D. that were necessary to

avoid physical harm, and Life Care, therefore, violated

Section 483.13(c)(1)(i), Co de of Federal Regulations.

52. However, based on the findings of fact herein, AHCA

did not prove by even a preponderance of the evidence that

E.G.'s "ability to maintain or reach his . . . highest

practicable physical . . . well - being" was compromised bec ause

of Life Care's failure to treat the wound on his left hand, its

failure to monitor E.G.'s blood sugar on one occasion, and its

failure to document the insulin dosage administered and the site

of the injection on a few occasions. Life Care's violation with

respect to the care given E.G. should be classified as a

Class III deficiency under Section 400.23(8)(c), Florida

Statutes (2001).

53. On the other hand, based on the findings of fact

herein, AHCA has proven by clear and convincing evidence that

N.D .'s "ability to maintain . . . her highest practicable

physical . . . well - being" was compromised because N.D. suffered

significant, though transient, adverse effects as a result of

Life Care's failure to advise Ms. Coleman of N.D.'s tendency to

lean forwa rd in her chair and to provide services that would

have protected N.D. from falling from the shower chair. 13 Life

Care's violation with respect to the care given N.D. should be

classified as a Class II deficiency under Section 400.23(8)(b),

Florida Statute s (2001). Accordingly, because of the injuries

suffered by N.D., Life Care's violation of

Section 483.13(c)(1)(i), Code of Federal Regulations, is

properly classified overall as a Class II deficiency.

Count II .

54. In Count II of the Administrative Comp laints, AHCA

charged that, at the time of the June 12, 2001, survey, Life

Care had a Class III deficiency with respect to the care given

N.D., based on an alleged violation of Rule 59A - 4.109(2),

Florida Administrative Code, and of Section 483.20(k), Code o f

Federal Regulations. In the Form 2567, this violation was

identified under the federal tag number "F - 279."

55. Rule 59A - 4.109(2), Florida Administrative Code,

provides as follows:

(2) The facility is responsible to develop

a comprehensive care plan fo r each resident

that includes measurable objectives and

timetables to meet a resident's medical,

nursing, mental and psychosocial needs that

are identified in the comprehensive

assessment. The care plan must describe the

services that are to be furnished to attain

or maintain the resident's highest

practicable physical, mental and social

well - being. The care plan must be completed

within 7 days after completion of the

resident assessment.

The provisions of Section 483.20(k), Code of Federal

Regulations, are virtually identical to those of Rule 59A -

4.109(2), Florida Administrative Code.

56. According to the Administrative Complaints, Life Care

failed to satisfy this requirement because, pertinent to these

proceedings, "[b]ased on review of the care plan f or resident #1

[N.D.], . . . resident #1['s] [N.D.'s] care plan was not revised

to reflect all fall risks." Based on the findings of fact

herein, AHCA has proven by clear and convincing evidence that

Life Care failed to include in N.D.'s Care Plan informa tion

regarding her newly - acquired tendency to lean forward in her

wheelchair and the physician's order to use a lap buddy while

she was in the wheelchair, and Life Care, therefore, violated

Rule 59A - 4.109(2), Florida Administrative Code, and

Section 483.20 (k), Code of Federal Regulations. Because this

failure was one of documentation only and did not, of itself,

result in N.D.'s suffering injuries, Life Care's violation is

properly classified as a Class III deficiency under

Section 400.23(8)(c), Florida St atutes (2001).

Count III .

57. In Count III of the Administrative Complaints, AHCA

charged that, at the time of the June 12, 2001, survey, Life

Care had a Class II deficiency with respect to the care given

E.G. and N.D., based on alleged violations of

Sec tion 483.20(k)(3)(i), Code of Federal Regulations. In the

Form 2567, these violations were grouped under the federal tag

number "F - 281."

58. Section 483.20(k)(3)(i), Code of Federal Regulations,

provides that "[t]he services provided or arranged by the

f acility must meet professional standards of quality."

According to the Administrative Complaints, Life Care failed to

satisfy this requirement with respect to the care provided E.G.

and N.D. because "the nursing staff failed to provide wound care

and bloo d sugar monitoring as ordered by the physician for

resident #2 [E.G.]" and because "the nursing staff did not have

a comprehensive care plan, did not provide [an] assistive device

as ordered by the physician, and did not provide supervision

required to pre vent falls for resident #1 [N.D.]."

59. Based on the findings of fact herein, AHCA has proven

by clear and convincing evidence that, with respect to E.G.,

Life Care failed to provide wound care and monitor his blood

sugar as ordered and that, with respect to N.D., Life Care was

required by professional standards to advise Ms. Coleman that

N.D. had a tendency to lean forward in her wheelchair before

allowing Ms. Coleman to care for N.D. and to take some measures

to prevent N.D. from falling from the shower chair. Life Care,

therefore, violated Section 483.20(k)(3)(i), Code of Federal

Regulations.

60. For the reasons stated in paragraph 52 above, Life

Care's violation with respect to the care given E.G. should be

classified as a Class III deficiency under S ection 400.23(8)(b),

Florida Statutes (2001). However, for the reasons stated in

paragraph 53 above, Life Care's violation with respect to the

care given to N.D. should be classified as a Class II deficiency

under Section 400.23(8)(b), Florida Statutes (2 001).

Accordingly, because of the injuries suffered by N.D., Life

Care's violation of Section 483.20(k)(3)(i), Code of Federal

Regulations, is properly classified overall as a Class II

deficiency.

Licensure reduction .

61. In DOAH Case No. 01 - 3148, base d on the results of the

June 12, 2001, survey, AHCA issued a conditional license to Life

Care, effective from June 12, 2001, to August 17, 2001. 14

Pursuant to Section 400.23(7)(b), Florida Statutes (2001),

[a] conditional licensure status means that

a faci lity, 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

pa rt or with rules adopted by the agency.

If the facility has no class I, class II, or

class III deficiencies at the time of the

followup survey, a standard license may be

assigned.

62. Because Life Care had two Class II deficiencies cited

as a result of the June 12, 2001, survey, its licensure status

was properly reduced from standard to conditional for the period

extending from June 12, 2001, to August 17, 2001.

Administrative fine .

63. In DOAH Case No. 01 - 4649, AHCA seeks to impose an

administrative f ine on Life Care in the amount of $7,000.00,

based on the results of the June 12, 2001, survey.

Section 400.23(8), Florida Statutes (2001), provides in

pertinent part:

b) . . . A class II deficiency is subject

to a civil penalty of $2,500 for an isolated

deficiency, $5,000 for a patterned

deficiency, and $7,500 for a widespread

deficiency. The fine amount shall be

doubled for each deficiency if the facility

was previously cited for one or more class I

or class II deficiencies during the last

annual inspe ction or any inspection or

complaint investigation since the last

annual inspection. A fine shall be levied

notwithstanding the correction of the

deficiency.

(c) . . . A class III deficiency is subject

to a civil penalty of $1,000 for an isolated

defici ency, $2,000 for a patterned

deficiency, and $3,000 for a widespread

deficiency. The fine amount shall be

doubled for each deficiency if the facility

was previously cited for one or more class I

or class II deficiencies during the last

annual inspection o r any inspection or

complaint investigation since the last

annual inspection. A citation for a

class III deficiency must specify the time

within which the deficiency is required to

be corrected. If a class III deficiency is

corrected within the time spec ified, no

civil penalty shall be imposed.

64. The amendment to Section 400.23, Florida Statutes,

effective May 15, 2001, also provides in Section 400.23(8) as

follows:

The agency shall adopt rules to provide

that, when the criteria established under

subs ection (2) are not met, such

deficiencies shall be classified according

to the nature and the scope of the

deficiency. The scope shall be cited as

isolated, patterned, or widespread. An

isolated deficiency is a deficiency

affecting one or a very limited number of

residents, or involving one or a very

limited number of staff, or a situation that

occurred only occasionally or in a very

limited number of locations. A patterned

deficiency is a deficiency where more than a

very limited number of residents are

affected, or more than a very limited number

of staff are involved, or the situation has

occurred in several locations, or the same

resident or residents have been affected by

repeated occurrences of the same deficient

practice but the effect of the defic ient

practice is not found to be pervasive

throughout the facility. A widespread

deficiency is a deficiency in which the

problems causing the deficiency are

pervasive in the facility or represent

systemic failure that has affected or has

the potential t o affect a large portion of

the facility's residents.

65. There is no indication of the scope of the

deficiencies cited in the Form 2567 for the June 12, 2001,

survey. Based on the findings of fact herein, however, it is

clear that the deficiencies invo lving the care given to E.G. and

N.D. were isolated and not patterned or widespread.

66. Because Life Care had two isolated Class II

deficiencies at the time of the June 12, 2001, survey, an

administrative fine of $2,500.00 for each Class II deficiency is

appropriate pursuant to Section 400.23(8)(b), Florida Statutes

(2001).

67. AHCA also seeks to impose an administrative fine on

Life Care for the allegedly "uncorrected" Class III deficiency

derived from Life Care's violation of Rule 59A - 4.109(2), Florida

Administrative Code, and Section 483.20(k), Code of Federal

Regulations, relating to N.D.'s Care Plan, which was identified

under F - 279. AHCA asserts in the Administrative Complaint that

this Class III deficiency is "uncorrected" because Life Care was

ci ted in the May 9, 2001, survey for a Class III deficiency

identified under F - 279 and based on a violation of the same

requirements.

68. In the May 9, 2001, survey, AHCA cited Life Care for a

Class III deficiency because it did not include in the Care

Plan s of L.D. and A.M. any mention of the amount of time they

would be permitted to sit in a wheelchair. However, based on

the findings of fact herein, AHCA has failed to prove by clear

and convincing evidence that Life Care violated

Rule 59A - 4.109(2), Flori da Administrative Code, and

Section 483.20(k), Code of Federal Regulations, with respect to

these omissions in L.D.'s and A.M.'s Care Plans.

69. Accordingly, the Class III deficiency cited as a

result of the June 12, 2001, survey is not an "uncorrected"

C lass III deficiency, and AHCA cannot impose an administrative

fine on Life Care for this deficiency because, pursuant to

Section 400.23(8)(c), Florida Statutes (2001), an administrative

fine for a Class III deficiency can only be imposed if the

deficiency is not corrected within the time specified by AHCA. 15

70. Finally, AHCA has requested an award of "reasonable

attorney's fees, expenses, and costs pursuant to 400.121(10),

Fla. Stat." The section provides that AHCA may assess certain

specified costs "in a ny final order that imposes sanctions." No

proof was submitted with respect to costs, and, even if such

proof had been submitted, it does not appear that the Division

of Administrative Hearings has jurisdiction to recommend such an

award. Accordingly, no recommendation is included herein with

respect to this request.

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

1. Sustaining the reducti on in the licensure status of

Life Care Center of Port Saint Lucie to conditional for the

period extending from June 12, 2001, to August 17, 2001; and

2. Imposing an administrative fine in the amount of

$5,000.00.

DONE AND ENTERED this 15th day of May, 20 02, in

Tallahassee, Leon County, Florida.

___________________________________

PATRICIA HART MALONO

Administrative Law Judge

Division of Admi nistrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 15th day of May, 2002.

ENDNOTES

1 / The federal "tag numbers" correspond to specific provisions

of the regulations found in Title 42, Chapter 483, Code of

Federal Regulations, which are incorporated into the Florida

standards for the "care, treatment, and maintenance of residents

and measurements of the quality and adequacy thereof" in

Section 400.23(2)(f), Florida Statutes (2001).

2 / The results of the May 9, 2001, survey are relevant to these

pro ceedings only insofar as AHCA seeks to impose an

administrative fine on Life Care for an alleged "uncorrected"

Class III deficiency in the June 12, 2001, survey.

3 / Pressure ulcers are rated according to their seriousness,

with Stage IV being the most se rious.

4 / The only evidence of the contents of L.D.'s Care Plan offered

by AHCA was a set of notes prepared by Ms. Treakle during her

May 9, 2001, survey. The notes included what purported to be

the approaches in L.D.'s Care Plan for healing his pressur e

sores. A hearsay objection was made to the admission of these

notes into evidence; the notes were received as Petitioner's

Exhibit 39, subject to the limitations on the use of hearsay in

Section 120.57(1)(c), Florida Statutes. No additional evidence

wa s submitted to establish the contents of L.D.'s Care Plan, and

the notes made by Ms. Treakle cannot provide the basis for a

finding of fact as to its contents.

5 / The federal standard on which Ms. Treakle relies provides

that, if the pressure on a pressu re ulcer can be totally

relieved, a resident can sit up for a limited time.

6 / Transcript at page 75.

7 / The Medication Record included a schedule for monitoring

E.G.'s blood sugar at 6:30 a.m., 11:30 a.m., 4:30 p.m., and 9:00

p.m.

8 / In the Administr ative Complaints, AHCA included as grounds

for the deficiencies cited under F - 224, F - 279, and F - 281 the

presence of minor skin tears and bruises on N.D.'s arms and

legs. At the final hearing, counsel for AHCA stated that AHCA

was "not using the findings [ in the Form 2567] on the skin tears

on N[] to support Tag 224. It was included in the

administrative complaint, but I believe that we did not present

evidence as to that and we are not going to." No evidence was

presented by AHCA with respect to the skin tears and bruises,

and no mention of skin tears and bruises was made in AHCA's

Proposed Recommended Order. Accordingly, it is concluded that

AHCA abandoned the skin tears and bruises as an additional

factual basis to support F - 224, F - 279, and F - 281.

9 / The typed portion of the Care Plan is dated November 6, 2000,

but it is updated with hand - written notes, as necessary. The

entry requiring a lap buddy on N.D.'s wheelchair was added on

June 12, 2001.

10 / Such means would not include a gate belt as sugge sted by

Ms. Treakle. A gate belt is buckled around a resident's body

and is used by staff to assist in transferring residents and to

assist them in ambulating; its purpose is to provide something

for the staff person and the resident to hold onto. Had N. D.

been secured to the shower chair by a gate belt, she would have

toppled forward and would also have pulled the shower chair over

on top of her.

11 / Although there is no proof in the record that Life Care

participates in the Medicare and Medicaid progra ms, the parties

proceeded on the assumption that the provisions of Title 42,

Chapter 483, Code of Federal Regulations, were applicable in

these cases.

12 / Chapter 400, Part II, Florida Statutes, was amended

effective May 15, 2001. The results of the May 9, 2001, survey

are governed by Chapter 400, Part II, Florida Statutes (2000),

and the results of the June 12, 2001, survey are governed by

Chapter 400, Part II, Florida Statutes (2001).

13 / Life Care argues that, because the injuries to N.D.'s face

event ually healed and had no permanent effect on her physical

well - being, the deficient practice had only a limited

consequence and should, therefore, not be classified as a

Class II deficiency. This argument is rejected: The provision

of the federal Survey P rocedures for Long Term Care Facilities

on which Life Care relies for this argument, Section V.B.3. in

Respondent's Exhibit 12, makes it clear that the "limited

consequence" exception applies only when the harm to the

resident is minimal or the harm is pot ential and not yet

realized; the harm to N.D. was realized and was substantially

more than minimal.

14 / The parties did not introduce any evidence at the hearing to

establish the duration of the conditional licensure status. The

duration is, however, inc luded in the conditional license issued

to Life Care, a copy of which was attached to the Motion for

Leave to Serve Administrative Complaint filed by AHCA on

October 9, 2001.

15 / AHCA did not present any evidence to establish that the

Class III deficiency cited in the June 12, 2001, survey was not

corrected timely.

COPIES FURNISHED:

Luis M. Vissepo, III, Esquire

Agency for Health Care Administration

8355 Northwest 53rd Street

Miami, Florida 33166

R. Bruce McKibben, Jr., Esquire

Post Office Box 1798

Tallahassee, Florida 32302 - 1798

Wi lliam Roberts, Acting General Counsel

Agency for Health Care Administration

2727 Mahan Drive

Fort Knox Building, Suite 3431

Tallahassee, Florida 32308

Virginia A. Daire, Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive

Fort Knox Buildi ng, 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 wit h the agency that

will issue the final order in this case.