02-000049 The Healthcare Center Of Naples, D/B/A The Aristocrat vs. Agency For Health Care Administration Status: Closed Recommended Order on Wednesday, August 14, 2002.

Summary: Agency failed to prove that nursing facility failed to adequately assess and develop a plan of care to maintain acceptable nutritional parameters for resident. Weight loss was the result of decrease in resident`s edema and was unavoidable.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THE HEALTHCARE CENTER OF )

NAPLES, d/b/a THE ARISTOCRAT, )

)

Petitioner, )

)

vs. ) Case N o. 02 - 0049

)

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing in this case was held

on March 28 and 29, 2002, in Naples, Florida, before Carolyn S.

Holifield, a duly - designated Administrative Law Judge, of the

Division of Administrative Hea rings.

APPEARANCES

For Petitioner: Michael S. Howard, Esquire

Gallagher & Howard, P.A.

Post Office Box 2722

Tampa, Florida 33602 - 4935

For Respondent: Dennis L. Godfrey, Esquire

Agency for Health Care Administration

525 Mirror Lake Drive, North

Suite 310L

St. Petersburg, Florida 33701

STATEMENT OF THE ISSUE

The issue in this case is whet her the alleged deficiency

cited in the October 2001 survey report existed and, if so,

whether the deficiency is sufficient to support the change in

the Aristocrat's licensure status from standard to conditional.

PRELIMINARY STATEMENT

By letter dated October 23, 2001, the Agency for Health

Care Administration (Agency) advised The Health Care Center of

Naples, d/b/a The Aristocrat (The Aristocrat) that its licensure

rating was changed to conditional, effective October 10, 2001,

as a result of the survey completed on October 10, 2001.

According to the letter, the basis for the change in licensure

status was that, during the survey, The Aristocrat was cited for

two Class II deficiencies. Only one of those deficiencies is

the subject of this proceeding. With regard to that deficiency,

the Agency alleged that the deficiency was the result of The

Aristocrat’s “fail[ing] to adequately assess and develop a plan

of care to maintain acceptable nutritional parameters for a

resident resulting in significant weigh t loss.” The Aristocrat

challenged the conditional rating and timely filed a Petition

for Formal Administrative Hearing. On December 27, 2001, the

Agency referred the matter to the Division of Administrative

Hearings for assignment of an Administrative L aw Judge to

conduct the final hearing.

Prior to the hearing, on March 22, 2002, the Agency filed

an Unopposed Motion for Leave to Serve Administrative Complaint

(Unopposed Motion). The Unopposed Motion was granted pursuant

to the Order issued March 2 6, 2002. In the one - count

Administrative Complaint, the Agency, again, alleges that The

Aristocrat “failed to ensure that a resident maintain[ed]

acceptable parameters of nutritional status” in violation of

Rule 59A - 4.1288, Florida Administrative Code, wh ich adopts by

reference 42 C.F.R. 483.25(i)(1). The Administrative Complaint

also seeks to assess The Aristocrat for costs related to the

investigation and prosecution of this case pursuant to

Subsection 400.121(10), Florida Statutes.

At hearing, the Agency presented the testimony of Timothy

Elias, an Agency health facility evaluator and survey team

coordinator, and Lori H. Riddle, a registered dietician and a

public health nutrition consultant with the Agency. The Agency

submitted 24 exhibits, which were received into evidence. The

Aristocrat presented the testimony of John Patrick Lewis, M.D.,

and Janet F. McKee, a registered and licensed dietician, who was

accepted as an expert in dietetics. The Aristocrat submitted

three exhibits, which were rec eived into evidence.

At the conclusion of the hearing, the time for filing

proposed recommended orders was set for 10 days after the

transcript of the hearing was filed. A Transcript of the

proceedings was filed on April 29, 2002. Upon the request o f

the Agency, the time for filing proposed recommended orders was

extended to May 20, 2002. Both parties timely filed Proposed

Recommended Orders.

FINDINGS OF FACT

1. The Agency is the state agency responsible for

licensing and regulating nursing f acilities in the State of

Florida under Part II, Chapter 400, Florida Statutes.

2. The Aristocrat (The Aristocrat or facility) is a nursing

home located at 10949 Parnu Street, in Naples, Florida, licensed

by and subject to regulation by the Agency pursuan t to Part II,

Chapter 400, Florida Statutes.

3. The Agency conducted an annual survey of The Aristocrat

from October 8 through 10, 2001. The results of the survey are

summarized in a report known as the 2567 report.

4. The 2567 report identifi es each alleged deficiency by

reference to a tag number (“Tag”). Each Tag of the 2567 report

includes a narrative description of the alleged deficiency and

cites the relevant rule or regulation violated thereby.

5. The Tag at issue in this proceedi ng is Tag F 325.

6. Tag F 325 relates to quality of care and references

42 C.F.R. 483.25(i)(l), which requires that, “[b]ased on a

resident’s comprehensive assessment, the facility must ensure

that a resident maintains acceptable parameters of nutri tional

status, such as body weight and protein levels, unless the

resident’s clinical condition demonstrates that this is not

possible.”

7. The standard in 42 C.F.R. 483.25(i)(1) is made

applicable to nursing homes in Florida pursuant to Rule 59A -

4.1 288, Florida Administrative Code.

8. The Agency is required to rate the severity of any

deficiency pursuant to the classification system outlined in

Section 400.23(7), Florida Statutes. The Agency assigned a

Class II rating to the deficiency as well as “scope and

severity” of G pursuant to federal law. The state

classification is at issue in this case.

9. A Class II deficiency is one which “the agency

determines has compromised the resident's ability to maintain or

reach his or her highest pra cticable physical, mental, and

psychosocial well - being, as defined by an accurate and

comprehensive resident assessment, plan of care, and provision

of services." Section 400.23(8)(b), Florida Statutes.

10. When the Agency alleges that there is a Cl ass II

deficiency, as it did in this case, the Agency may change the

facility’s licensure rating from standard to conditional. In

accordance with its authority and discretion, based on the

alleged Tag F 325 deficiency, the Agency changed The

Aristocrat’s nursing home licensure rating from standard to

conditional, effective October 10, 2001.

11. During the October survey, an Agency surveyor reviewed

the clinical records of six residents at The Aristocrat. The

Tag F 325 deficiency was based on the Age ncy’s findings related

to the records of one of those six residents and on interviews

with facility staff.

12. In order to protect the privacy of the nursing home

resident who is the subject of the alleged deficiency, the

Administrative Complaint, th e 2567 report, and this Recommended

Order refer to the resident by number rather than by name.

13. As a result of the surveyors’ review of the records,

the Agency determined that one of the residents, Resident 1, had

a weight loss of 7.2 pounds betwe en July 30, 2001, and

August 11, 2001. The surveyors’ review of Resident 1’s records

further reflected that she had a total weight loss of 13.5

pounds between July 30, 2001, and August 25, 2001. According to

the resident’s weight records and nutritional assessment, which

listed the resident’s usual body weight as 136 pounds, the

surveyors considered the weight loss during the aforementioned

periods to be significant.

14. Once the surveyors concluded that Resident 1 had a

significant weight loss, th e surveyors had to determine whether

the resident’s weight loss was avoidable. In making this

determination, the surveyors had to determine whether the

facility assessed the resident adequately, developed a care

plan, implemented the care plan, and reeval uated the care plan.

15. Applying the Agency’s protocol set forth in the above

paragraph, the surveyors determined that the significant weight

loss experienced by Resident 1 was avoidable. The Agency

surveyors found that the facility failed to do th e following:

adequately assess and develop a plan of care to prevent Resident

1 from significant weight loss; assess and develop an adequate

care plan after the resident had a significant weight loss of

5.3 percent of her body weight in less than two week s; and

adequately assess, evaluate and revise the care plan to address

the resident’s significant weight loss of 9.9 percent of her

body weight in less than a month.

16. According to the 2567 report and the Administrative

Complaint, the nutritional parameter that the Agency alleges the

facility did not maintain for Resident 1 was weight loss. The

Agency was concerned that Resident 1’s weight dropped from

136 pounds on July 30, 2001, to 128.8 pounds on August 11, 2001,

which was a 5.3 percent loss o f her body weight, upon admission

to the facility. Also, the Agency was concerned that the

resident’s weight dropped from 136 pounds on July 30, 2001, to

122.5 pounds on August 25, 2001, a 9.9 percent loss of her body

weight, upon her admission to the fac ility. The Agency alleges

that the failure to assess and develop an adequate care plan to

address weight loss caused the referenced weight loss.

17. Resident 1, a 92 - year - old female, was admitted to The

Aristocrat on July 30, 2001, at about 3:00 p.m. H er diagnosis

included a left hip fracture, left shoulder fracture, atrial

fibrillation, esophageal reflux, depression, bipolar disorder,

hypertension, and chronic insomnia.

18. John Patrick Lewis, M.D., was Resident 1’s treating

physician at the time of and throughout her three - month stay at

The Aristocrat. Upon Resident 1’s admission to the facility,

Dr. Lewis had “great concern” about the resident’s atrial

fibrillation because of her history of T.I.A.s (strokes). As a

result of this concern, Dr. Lewis consulted with and reviewed

the medical records of Dr. Drew, Resident 1’s primary physician.

19. Resident 1's weight dropped from 136 pounds on

July 30, 2001, to 134.8 pounds on July 31, 2001, to 133 pounds

on August 4, 2001, to 128.8 pounds on August 11, 2001. Resident

1’s weight began to level off on August 15 or 16, 2001, when

edema was no longer noted on her records. Thereafter, beginning

on August 19, 2001, the resident’s weight began to stabilize.

Resident 1 weighed 124.2 pounds on August 19, 2 001; 122.5 pounds

on August 25, 2001; 122.7 pounds on September 7, 2001; 121.2

pounds on September 14, 2001; 122.2 pounds on September 21,

2001; 121.6 pounds on September 28, 2001; and was 120.3 pounds

on October 6, 2001.

20. Resident 1 came to The A ristocrat days following major

surgery of her hip after she suffered a fracture of her hip and

shoulder. Resident 1 was hydrated with fluids prior to and/or

during the operation to ensure that she maintained a good blood

pressure. As a result thereof, at the time Resident 1 was

admitted to The Aristocrat, she had an increased amount of

fluids in her body and was over - hydrated.

21. The over - hydration caused Resident 1 to have swelling,

known as edema. Dr. Lewis testified that Resident 1's edema wa s

actually third space fluids, which are fluids that go

extravascularly into the soft tissues or into the peritoneal

cavity. It typically takes a period of 7 - 14 days for that fluid

to return to the intravascular compartment and then be urinated

away.

22. At the time of her admission at The Aristocrat and

throughout her stay there, Resident 1 was on a medication known

as Lasix, which is a diuretic that causes the body to urinate

excess fluids. Lasix was included in Resident 1’s discharge

orders from the hospital where she had surgery for her hip

fracture and was never discontinued. In Dr. Lewis’ opinion,

there was no need to discontinue the Lasix because the resident

was never dehydrated during her stay at The Aristocrat.

Moreover, Dr. Lewis is awar e that in addition to being a

diuretic, Lasix is sometimes prescribed for high blood pressure

and this may have been another reason Lasix was included in the

resident's discharge orders.

23. The presence of edema in Resident 1 was clearly noted

in h er chart by facility staff at or near the time she was

admitted to the facility. The reference to Resident 1's edema

is included in the nurse’s notes dated July 30, 2001, nurse’s

notes dated July 31, 2001, a registered dietician's note dated

August 1, 200 1, and a physical therapy note dated July 31, 2001.

The nurse’s notes dated July 30, 2001, the date Resident 1 was

admitted to the facility, state that “2 plus edema noted on left

upper extremity.” Another document in Resident 1's chart, dated

July 31, 2 001, states, “2 plus edema on left hip, incision

site.” The nutritional assessment dated August 1, 2001, two

days after Resident 1 was admitted to the facility, notes edema

in lower and upper extremities and “some weight loss expected.”

Finally, a dietar y note dated August 1, 2001, mentions

Resident 1’s edema, but does not mention the location of the

edema.

24. The Aristocrat staff did not note Resident 1’s edema

on her initial Minimum Data Set form (MDS) as preferred by the

Agency. However, the resident’s edema was charted in several

places in her records.

25. The Agency’s surveyor acknowledged that Dr. Lewis saw

Resident 1 on August 11, 2001, when her weight had dropped from

136 pounds to 128.8 pounds and did not instruct The Aristocrat’s

staff to alter their approach to providing adequate nutrition to

Resident 1. The reason Dr. Lewis did not order that any changes

be made for Resident 1 on August 11, 2001, was that he believed

that none were required or necessary in that “the majority of

this weight loss was to be expected.” According to Dr. Lewis,

“this weight loss [was] not unexpected due to her excessive

hydration and third space fluids.”

26. The Agency’s initial concern was Resident 1’s weight

loss, during the period of July 30, 2001, through August 11,

2001, when she lost 7.2 pounds, or 5.3 percent of her weight at

the time of her admission to the facility.

27. Surveyors are instructed to use a resident’s “usual

body weight” to make weight loss calculations. When calculat ing

weight loss, the usual body weight is determined by considering

the person’s weight through adult life. According to the

state’s guidelines, an analysis of weight loss or gain should be

examined in light of the individual’s former life style, as well

as current diagnosis.

28. The medical records of Dr. Drew, Resident 1’s primary

physician, indicate that Resident 1 weighed 127 pounds on

January 31, 2001, and weighed 125 pounds on June 8, 2001. In

light of the undisputed fact that Resident 1 was o ver - hydrated

at the time she weighed 136 pounds, it is reasonable to assume

that her weight in the months and weeks prior to surgery would

be more appropriate figures to use as the resident's usual body

weight.

29. Based on her 5'0" height, Resident 1's ideal weight

was 100 pounds, the midpoint between the ideal weight range of

90 to 110 pounds for someone five feet tall. In fact, were 136

pounds Resident 1's true weight, she would be considered

clinically obese.

30. The Agency surveyor based his ca lculations that

Resident 1 had a significant weight loss on the assumption that

the resident’s usual body weight was 136 pounds. The surveyor

obtained the 136 - pound weight as the resident’s usual body

weight from the facility’s nutritional assessment.

3 1. The Aristocrat incorrectly listed the resident’s

weight upon admission, 136 pounds, as her usual body weight.

Even if it is assumed that the Agency reasonably relied on the

facility’s records that note Resident 1’s usual weight as

136 pounds, the cal culations using this weight are flawed

because that is not Resident 1’s usual body weight.

32. Had the Agency based its calculations relative to the

resident’s weight loss on her usual body weight of 125 pounds, a

drop in weight from 125 pounds to any of Resident 1's charted

weights would not be “significant” according to surveyor

guidelines.

33. One can lose 10 pounds of water weight in just a

couple of days but one must burn calories to lose body weight.

There are 3,500 calories in a pound. Therefore, in order lose

one pound of body mass, a person would need to burn 3,500

calories.

34. Resident 1 lost one pound each day for the first three

days she was at The Aristocrat. In order to lose three pounds

of body mass, Resident 1 would need to burn 10,50 0 calories. At

the time of her admission to The Aristocrat, Resident 1 was 92

years old and, for the first two weeks she was at the facility,

was bed - bound, with a fractured hip and shoulder. Given

Resident 1’s condition, it is reasonable to assume that she

burned minimal calories.

35. It was physiologically impossible for Resident 1 to

lose true body weights in the amounts quoted in the 2567 report.

Resident 1 dropped from 136 pounds down to 134.8 pounds the next

day and then down to 133 pounds the fol lowing day. Because it

is impossible to lose a pound of actual body weight in one day,

the recorded weight loss for Resident 1 was too rapid to be true

weight loss. Rather, the resident's initial weight loss was the

result of a decrease in her edema.

36. In determining that Resident 1 had a significant

weight loss during the period of July 30 and August 11, 2001,

the Agency surveyors based their calculations on an inaccurate

usual body weight for the resident. Moreover, the Agency did

not consider that the resident had edema and was taking Lasix, a

diuretic, and that part of the weight loss could have been water

weight. In fact, the 2567 report does not mention that the

resident’s chart or records indicate that Resident 1 had edema

and that a weight los s could be expected as the edema decreases.

The Agency’s explanation for not doing so was that the

facility’s records did not indicate or assess the amount of

edema Resident 1 had upon her admission.

37. Even though Resident 1 was edematous, the facility

staff appropriately addressed her weight issues and immediately

began implementing nutritional interventions.

38. There are a number of complex factors at play in the

selection and timing of appropriate interventions for a given

resident. For example, t here is a "warm - up time" to see how a

new resident will adjust to the facility. It is not unusual for

new residents to experience problems as a result of being in a

new environment. However, after a couple of weeks, many of the

new residents resolve thei r relocation issues and adjust to

their new environment.

39. During the period of July 30 through August 11, 2001,

The Aristocrat’s staff engaged in numerous activities, which

assessed Resident 1 from a nutritional standpoint, and

immediately implemented interventions to enable her to maintain

as much weight as possible.

40. On July 31, 2001, the day after Resident 1 was

admitted to the facility, the occupationa1 therapy staff

evaluated Resident 1 to determine the level of supervision and

set up assistanc e she needed while eating.

41. On August 1, 2001, two days after Resident 1 was

admitted to The Aristocrat, the facility’s registered dietician

assessed Resident 1 and, as noted in paragraph 23, above,

indicated that some weight loss would be expected as her edema

decreased. That same day, the facility’s registered dietician

reviewed some of the resident’s lab values that had been taken

at the hospital from which Resident 1 had been released and also

ordered a multi - vitamin for the resident.

42. On Augus t 2, 2001, the day after the registered

dietician completed a nutritional assessment of Resident 1, the

facility’s dietary manager met with Resident 1 to assess her

food preferences and find out her likes and dislikes. During

this meeting, the dietary man ager learned that Resident 1 wanted

coffee, with four packs of sugar, with all of her meals and a

danish at breakfast. The danish is considered a specialty food

and is not one usually provided on a daily basis to residents in

nursing home facilities such as The Aristocrat. However, upon

learning of Resident 1’s food preferences, the facility

immediately began providing her with a danish with her breakfast

each morning and coffee with four sugars with each meal. The

facility’s providing Resident 1 with th e foods she requested was

an appropriate intervention that honored her preferences.

43. The assessment described in paragraph 42 is consistent

with the acceptable industry standard concerning nutritional

issues of new residents. That standard requires fa cilities to

analyze the resident for a number of days, determine their food

preferences, and see if their nutritional and/or caloric needs

can be met through food first. As such, using specialty foods

such as a danish and coffee with sugar are appropriate

interventions, which honored the resident's preferences.

44. Two additional assessments were performed within a

week of Resident 1’s admission to the facility. First, on

August 5, 2001, a restorative assessment was completed which

addressed Resident 1's ability to use utensils and open her

food. The next day, the speech therapy unit of the facility

completed a swallowing screening that assessed Resident 1's

dysphagia and ability to swallow.

45. Throughout the month of August, including August 11,

2001, and prior thereto, nurse’s notes regularly included

information concerning Resident 1’s appetite, food intake,

necessary and/or recommended interventions, and other

nutritional issues. For example, prior to August 12, 2001, at

least two nurse’s notes ind icated that Resident 1’s appetite was

fair and another nurse’s note indicated that her appetite was

poor. Two of the nurse’s notes for this time period indicated

that that the resident needed encouragement with oral intake.

46. In addition to the aforeme ntioned interventions

implemented by The Aristocrat’s staff during August 2001,

Dr. Lewis intervened numerous times with Resident 1. Because

Resident 1's room was near the front of the facility, every time

Dr. Lewis went into the facility he walked by her room and

encouraged her to eat. Dr. Lewis also had numerous

conversations with Resident 1's family to have them bring home

cooked food that she would enjoy eating.

47. To the extent that Resident 1 did not maintain

“acceptable” parameters of nutritional status, the weight loss

was attributable to Resident 1's clinical condition and not any

failure on the part of The Aristocrat’s staff. In addition to

Resident 1's having edema, she had other clinical issues that

may have contributed to her weight loss. These clinical

conditions involve the resident's behavioral and emotional

problems and certain medication that the resident was taking to

relieve the pain she was experiencing following her surgery.

48. A person's behavior and emotional problems can have a

considerable impact on the resident’s appetite and eating

patterns. For example, a person, such as Resident 1, who

suffered from depression and a bipolar disorder, may have a low

appetite. In this case, Resident 1 suffered from depression and

a bipolar disorder. These conditions may likely have been

exacerbated by the resident's having to leave the assisted

living facility in which she had lived prior to her surgery,

going to a hospital for surgery, and, after being released from

the hospital, having t o be admitted to yet another nursing

facility, The Aristocrat.

49. Resident 1 exhibited behavior problems from the

beginning of her stay at The Aristocrat, as documented in her

records.

50. During the first two weeks that Resident 1 was at the

facility, staff of The Aristocrat documented some of the

behaviors that the resident was exhibiting. The resident's MDS

dated August 8, 2001, and the MDS dated August 13, 2001,

indicate that Resident 1 was experiencing mood and behavior

problems, on a daily basis, as reflected in her verbal

expressions.

51. Resident 1's August 5, 2001, Social Work Assessment

Report indicated that Resident 1 made negative statements almost

daily and wanted to return to the assisted living facility. The

Social Work Assessment Report described the resident's medical

conditions that interfered with her relationship skills as "sad

mood, melancholy, anxieties, fear, [and] relocation issues."

With regard to the resident's relationship involvement patterns,

the report indicates that Resid ent 1 prefers solitude.

52. The Social Work Assessment Report of August 27, 2001,

confirmed that Resident 1 made negative statements almost daily

and was anxious and angry. The assessment report also noted

that Resident 1 was in an unpleasant mood in the morning almost

daily, that Resident 1 withdrew from activities almost daily and

exhibited reduced social interaction almost daily. The same

document indicated that Resident 1 preferred solitude, and

demonstrated a sad mood, melancholy, anxieties, fear, a nd

relocation issues.

53. The Behavior/Intervention Monthly Flow Chart Record

for August 15 through August 31, 2001, indicates that Resident 1

yelled at staff and was uncooperative.

54. Finally, the care plan priority document for

Resident 1 dated Augus t 30, 2001, indicated that her anxiety may

be secondary to anger, that her anger was persistent, and that

she was verbally abusive to staff.

55. Undoubtedly, Resident 1's behavior and mood could have

likely affected and inhibited her appetite, and, thus,

contributed to some of the resident's weight loss. Yet, despite

the facility’s documentation concerning the resident's

behavioral issues, the Agency apparently did not consider either

the documentation or the statements by facility staff during the

survey that Resident 1's behaviors interfered with some of the

attempted nutritional interventions.

56. Another factor that may have contributed to the amount

of food Resident 1 ate while at the facility was the medication

she was taking. Resident 1 was on a r egimen of Darvocet, a

narcotic and pain medication, prescribed to help manage the pain

she was experiencing as a result of the surgery and/or the hip

and left shoulder fracture. Darvocet is a medication that

inhibits a person's appetite. In this case, Re sident 1 took

approximately 30 doses of the narcotic pain reliever Darvocet

during the first 10 or 12 days she was at The Aristocrat.

Therefore, it is very likely that as a result of Resident 1's

taking Darvocet, her appetite was inhibited and she ate les s

food than she may otherwise have eaten.

57. The Aristocrat’s staff provided numerous interventions

for Resident 1 during her first 21 days in the nursing home.

They analyzed her weight and food intake through the dietary and

nursing units. They offere d to assist her with intake and

encouraged her to eat.

58. For example, CNA flow sheets for the month of August

indicate that food and fluid were offered to Resident 1

approximately 10 times per day, usually five times during the

7 - 3 shift and five times during the 3 - 11 shift, every day. This

was in addition to her regular meals, specialty foods such as

coffee and danish and nutritional supplements. The snacks

offered to Resident 1 were foods such as crackers and juice.

59. Staff continually assessed R esident 1's needs and

added interventions throughout her stay. A "significant change"

MDS was completed on August 13, 2001, which related to

Resident 1's percentage of meals eaten and weight loss. On

August 14, 2001, The Aristocrat’s staff completed a b ehavior

flow record that addressed Resident 1's uncooperativeness.

60. On or about August 15, 2001, the facility developed a

care plan for Resident 1 that included concerns about her weight

loss after the initial weight loss due to resident’s loss of

"water weight." The nutritional care plan included numerous

approaches such as providing increased calories and encouraging

intake of diet supplements and fluid. A nursing note of

August 16, 2001, indicated that Resident 1's appetite was fair

but impro ved to quite good while a note dated August 20, 2001,

indicated that Resident 1 felt she was not getting good food.

61. Staff discussed Resident 1's many dietary dislikes at

a weight meeting on August 22, 2001. In order to increase the

resident’s calor ic intake, the dietary manager added ice cream

to Resident 1’s diet at lunch and dinner.

62. On or about August 23, 2001, Dr. Lewis ordered

Medpass, a nutritional supplement, for Resident 1. Pursuant to

the order, the resident had two 120cc of the supple ment daily.

Each 120cc of Medpass has 240 calories. Five days later, on

August 28, 2001, Dr. Lewis increased the amount of Medpass

Resident 1 was to receive from two 120cc of Medpass to four

120cc of Medpass each day. This order was immediately

implemen ted.

63. The goal of the nursing home is to provide

2,000 calories per day to a resident through food. After the

first two weeks Resident 1 was at the facility, she consumed an

average of 50 percent of her meals, which equaled approximately

1,000 calori es per day. In addition, Resident 1 received

300 calories from her daily danish, 240 calories from her coffee

with sugar, 300 calories from her daily ice cream, and 480 from

Medpass, a nutritional supplement. This equaled an additional

1,020 calories fr om the “non - diet” portion of her food

consumption and exceeded the 1,600 to 1,800 calories per day

that Agency believed Resident 1 needed. The number of calories

was increased an additional 480 calories, on or about August 28,

2001, after Resident 1 began receiving four 120cc of Medpass.

64. The Agency alleged at hearing that the facility failed

to ensure that Resident 1's estimated protein needs were being

met. In determining a person's estimated protein needs, it is

clinically appropriate to base such needs on the person's ideal

weight. In light of that approach, Resident 1 would have needed

approximately 59 grams of protein per day. The meal consumption

estimates do not reflect whether the resident ate only one food

item or a portion of each item. H owever, given that the

resident's diet had approximately 100 grams of protein and that

she consumed approximately 50 percent of her diet, it is

reasonable to conclude that her protein needs were met.

65. Most of the time Resident 1 was at the facility, sh e

was eating “fair” which is generally considered that she was

eating about 50 - 75 percent of her meals. Given Resident 1's

consumption of her 2,000 - calorie diet plus supplements, it is

reasonable to conclude that she maintained adequate parameters

of nutr itional status.

66. The Aristocrat’s staff began interventions for

Resident 1 from the day she was admitted to the facility. The

staff analyzed her needs and provided her with a supplementation

of calories by August 1, 2001. Staff continually assessed

Resident 1's needs and added additional interventions throughout

her stay at the facility. Two of the more aggressive

interventions included obtaining a psychological consultation

for Resident 1 and ordering an appetite stimulant for her.

67. The Agency indicated that The Aristocrat should have

implemented these more aggressive interventions much earlier

than it did in order prevent Resident 1 from losing weight.

Contrary to this position, it is not likely that these

interventions would have prevented th e resident’s initial weight

loss that occurred between July 30 and August 11, 2001, because

the weight loss was water weight.

68. Dr. Lewis waited until September 13, 2001, to order

Megace for Resident 1 because he wanted to give other

interventions a chance to work. Also, Megace is an appetite

stimulant that can cause liver toxicity. Because of the known

side effects of Megace, Dr. Lewis used this approach only as a

“last - ditch alternative.”

69. With regard to the psychological consultation, the

fac ility delayed this intervention although the staff was aware

of and had noted the resident’s behavior problems soon after she

was admitted. The consultation was appropriately delayed to

give the resident a chance to adjust to her new environment and

to fi rst attempt more conservative measures. Moreover, in this

case, Dr. Lewis testified that he recalled that, initially,

there may have been some opposition from Resident 1's family

regarding a psychological consultation.

70. Resident 1 maintained “adequate ” nutritional

parameters while at The Aristocrat. To the extent that she may

not have maintained "adequate" nutritional parameters during the

first almost two weeks at the facility, Resident 1's clinical

condition made her initial weight loss unavoidable.

71. Signs or symptoms that a person has been nutritionally

compromised include the development of pressure sores and

malnourishment, dehydration, dull eyes, and/or swollen lips. In

this case, Resident 1 did not exhibit any clinical signs of

malnourishme nt, dehydration, or pressure sores. Moreover,

Resident 1 suffered no harm as a result of the initial or

subsequent weight loss noted in the 2567 report.

72. The Agency’s reason for changing the facility's

licensure rating from standard to conditional is based on its

conclusion that the weight loss experienced by Resident 1 was

avoidable. The Agency's policy is that if there is an avoidable

weight loss, there is harm, with or without a determination that

there is actual harm to the resident.

73. The cred ible testimony of Dr. Lewis was that

Resident 1 recovered “very successfully from two major

fractures, even in the setting of depression and advanced age.”

At the end of Resident 1's stay at the facility she was

ambulating on her own with a walker and pe rforming some of her

own activities of daily living; and after approximately three

months in the facility, the resident returned to the assisted

living facility where she previously lived.

CONCLUSIONS OF LAW

74. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this cause

pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

75. The Agency is authorized to license nursing home

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

Part II, Fl orida Statutes, is required to evaluate nursing home

facilities and assign ratings.

76. Section 400.23, Florida Statutes, provides that when

minimum standards are not met, such deficiency shall be

classified according to the nature of the deficiency. Th at

section delineates and defines the various categories of

deficiencies, with a Class IV deficiency being the least severe

and a Class I begin the most severe.

77. Class I deficiencies are those which the Agency

determines present "a situation in which immediate corrective

action is necessary because the facility’s non - compliance has

caused, or is likely to cause, serious injury, harm, impairment

or death.” Class II deficiencies are those which “the [A]gency

determines [have] compromised the resident’s ability to maintain

or reach his or her highest practicable physical, mental and

psychosocial well - being, as defined by an accurate and

comprehensive resident assessment, plan of care, and provision

of services.” Class III deficiencies are those which “th e

[A]gency determines 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 her highest practical, physical, mental

or psychoso cial well - being, as defined by an accurate and

comprehensive resident assessment, plan of care, and provision

of services.” Class IV deficiencies are those which “the

[A]gency determines [have] the potential for causing no more

than a minor negative impac t on the resident.” Section 400.23

(8), Florida Statutes.

78. Based on its findings and conclusions of deficiencies,

the Agency is required to assign one of the following ratings to

the facility: standard or conditional. These categories of

ratings are defined in Subsection 400.23(7), Florida Statutes,

as follows:

(a) A standard licensure status means

that a facility has no class I or class II

deficiencies and has corrected all Class III

deficiencies within the time established by

the [A]gency.

(b) A conditional licensure status means

that a facility, due to the presence of one

or more class I or class II deficiencies, or

class III deficiencies not corrected within

the time established by the [A]gency, is not

in substantial compliance at the tim e of the

survey with criteria established under this

part with rules adopted by the [A]gency. If

the facility has no class I, class II or

class III deficiencies at the time of the

follow - up survey, a standard licensure

status may be assigned.

79. Acco rding to Section 400.23, Florida Statutes, quoted

above, the Agency may issue to a facility a conditional license

when, after a survey, a facility has one or more Class I or

Class II deficiencies, or Class III deficiencies not corrected

within the time est ablished by the Agency.

80. In the instant case, the Agency issued a conditional

license to The Aristocrat on October 10, 2001. The Agency

alleges that it was proper to issue The Aristocrat a conditional

license because the facility had a Class II defici ency at the

time of the Agency’s October 21, 2001, annual survey.

81. The regulation at issue in this case, and the one that

The Aristocrat allegedly violated is 42 C.F.R. 483.25(i)(1).

That section provides:

Based on a resident’s comprehensive

assessm ent, the facility must ensure that a

resident maintains acceptable parameters of

nutritional status such as body weight and

protein levels, unless the resident’s

clinical condition demonstrates that this

not possible.

82. The Agency has the burden of pr oof in this proceeding

and must show by a preponderance of evidence that there existed

a basis for imposing a conditional rating on The Aristocrat

based on a violation of Tag F 325. Florida 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). Accordingly, it

is the Agency’s burden to (1) establish that the deficiency

cited in the October 2001 survey report existed; and (2) t hat

the deficiency was appropriately classified as a Class II

deficiency.

83. Moreover, when applied to the Agency’s burden of proof

in this hearing, the plain terms of 42 C.F.R. 483.25(i)(1)

require the Agency to demonstrate that the resident did not

ma intain acceptable parameters of nutritional status and that

the resident’s clinical condition demonstrated that it was

possible to maintain acceptable parameters of nutritional

status.

84. The Agency has failed to meet its burden in this case.

85. Wit h regard to Resident 1, the Agency failed to

provide any substantial, competent evidence that Resident 1 did

not maintain acceptable parameters of nutritional status and

that her body weight deviated significantly below her usual

weight.

86. The evidence established that to the extent Resident 1

did not maintain acceptable parameters of nutritional status,

Resident 1's clinical condition did not allow her to maintain

her body weight of 136 pounds, her weight upon admission to the

facility on July 30, 2001. Also, the greater weight of the

evidence at hearing demonstrates that the weight loss was

expected due to the edema, substantial consumption of pain

medication, behavioral issues and a general lack of appetite due

to the surgeries.

RECOMMENDATION

Based o n the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Agency for Health Care

Administration enter a final order issuing a standard license

rating to The Aristocrat and rescinding the conditional license

rating.

DONE AND ENTERE D this 14th day of August, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

CAROLYN S. HOLIFIELD

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 3 2399 - 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 14th day of August, 2002.

COPIES FURNISHED :

Virginia A. Daire, Agency C lerk

Agency for Heal th 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

Tallahassee, Florida 32308

D ennis L. Godfrey, Esquire

Agency for Health Care Administration

525 Mirror Lake Drive, North

Room 310L

St. Petersburg, Florida 33701

Michael S. Howard, Esquire

Gallagher & Howard, P.A.

Post Office Box 2722

Tampa, Florida 33602 - 4935

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.