02-000596 Agency For Health Care Administration vs. Beverly Healthcare Evans Status: Closed Recommended Order on Friday, September 6, 2002.

Summary: Facility did not fail to provide proper nutritional care to three residents and should have standard license restored.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) Case No. 02 - 0596

)

BEVERLY HEALTHCARE EVANS, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Administrative Law Ju dge (ALJ) Daniel Manry conducted the

administrative hearing of this case on May 2, 2002, in Fort

Myers, Florida, on behalf of the Division of Administrative

Hearings (DOAH).

APPEARANCES

For Petitioner: Dennis Godfrey, Esquire

Ag ency for Health Care Administration

525 Mirror Lake Drive, North

Sebring Building, Room 310H

St. Petersburg, Florida 33701

For Respondent: R. Davis Thomas, Jr.

Qualified Representative

Broad and Cassel

215 South Monroe Street, Suite 400

Post Office Drawer 11300

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner should change

the rating of Respondent's license from standard to conditional.

PRELIMINARY STATEMENT

By letter dated August 27, 2001, Petitioner notified

Respondent that Petitioner had changed Respondent's license

rating from standard to conditional. Re spondent timely requested

an administrative hearing.

At the hearing, Petitioner presented the testimony of two

witnesses and submitted 33 exhibits for admission into evidence.

Respondent presented the testimony of one witness and submitted

no exhibits fo r admission into evidence. The identity of the

witnesses and exhibits and any attendant rulings are set forth in

the Transcript of hearing filed on June 5, 2002.

The style of the documents in the case denoted Beverly

Healthcare Evans (Beverly) as the Peti tioner and the Agency for

Health Care Administration (AHCA) as Respondent. That style,

however, misrepresented the burden of proof in this case. AHCA

has the burden of proof to substantiate the proposed agency

action and properly should appear as the pet itioner in the style

of the case. The ALJ amended the style of the case, nunc pro

tunc , to show AHCA as the Petitioner and to denote Beverly as

Respondent.

The ALJ ordered the parties to file their respective

Proposed Recommended Orders (PROs) within ten days of the date

that the Transcript is filed with DOAH. On June 10, 2002,

Petitioner filed an unopposed Motion to extend the time for

filing the PROs until July 15, 2002. The ALJ granted the motion

for extension of time. Thereafter, Beverly filed an un opposed

Motion to extend the time to file PROs until July 26, 2002.

Respondent timely filed its PRO on July 26, 2002. Petitioner

filed its PRO on July 29, 2002.

FINDINGS OF FACT

1. Petitioner is the state agency responsible for

evaluating nursing home s in Florida pursuant to Section

400.23(7), Florida Statutes (2001). Respondent operates a

licensed nursing home located in Ft. Myers, Florida (the

facility). (All chapter and section references are to Florida

Statutes (2001) unless otherwise noted.)

2. Petitioner conducted a survey of the facility on

August 16, 2001. Petitioner determined that Respondent violated

the standards of 42 Code of Federal Regulations (CFR) Section

483.25(i)(1) with respect to the dietary care of residents 20, 6,

and 8. Flor ida Administrative Code Rule 58A - 4.1288 makes the

federal standards applicable to nursing homes in the state.

Petitioner prepared a survey report that sets forth the basis for

the alleged violations under "Tag F325." F325 is a shorthand

reference to the regulatory standard of the CFR.

3. Petitioner assigned the deficiency in F325 a severity

rating of class "II." Section 400.23(8)(b) defines a class II

deficiency as one that has:

compromised the resident's ability to

maintain or reach his or her highes t

practicable physical, mental and psychosocial

well - being, as defined by an accurate and

comprehensive resident assessment, plan of

care, and provision of services.

The surveyors for Petitioner testified that a Class II rating was

appropriate because e ach of the cited residents experienced a

significant weight loss that the facility could have prevented

with better dietary care.

4. Petitioner changed the license rating for the facility

from Standard to Conditional within the meaning of Section

400.23(7 ). The change in license rating was effective August 16,

2001. The Conditional license rating continued until

September 18, 2001, when Petitioner changed Respondent's license

rating to Standard.

5. The regulatory standard of Tag F325 requires a nursing

home to:

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 is not possible.

42 CFR Section 483.25(i)(1).

6. The Stat e Operations Manual (SOM) sets forth agency

policy with respect to how surveyors are to interpret and apply

the regulatory standard of Tag F325. In determining if a

facility has maintained a resident's body weight at an acceptable

level, the SOM guideline s direct surveyors to evaluate the

significance of unplanned weight loss. A significant weight loss

occurs when a resident loses five percent or more of his or her

body weight in one month, 7.5 percent or more in three months, or

10 percent or more in six months. However, the guidelines

caution surveyors that ideal body weight charts have not been

validated for the elderly and that weight loss is only a guide in

determining nutritional status.

7. If a resident has experienced a significant weight loss,

the facility may nonetheless comply with the regulatory standard

of Tag F325, if the Resident has clinical conditions that

demonstrate that the maintenance of the Resident's weight at an

acceptable level is not possible. The SOM indicates that

clinical c onditions that demonstrate that the maintenance of

acceptable nutritional status may not be possible include

advanced diseases such as cancer and a Resident's refusal to eat.

Even in the absence of an identified disease process, the weight

loss is conside red unavoidable if the facility has properly

assessed the resident, developed a care plan for the resident,

consistently implemented that care plan and periodically re -

evaluated the care plan.

8. Resident 20 suffered from end - stage Alzheimer's disease

a nd cancer. Like many persons afflicted with end stage

Alzheimer's disease, Resident 20 began to refuse to eat food in

November 2000. Residents with end - stage Alzheimer's disease

refuse to eat because they no longer are aware of the need to eat

and do not recognize any hunger pangs. As a result, they

typically experience weight loss in their final months of life.

9. As early as October 2000, facility staff determined that

Resident 20 was refusing to eat and developed a care plan for

her. In November 2 000, the facility dietician placed Resident 20

on a high calorie diet that offered her almost 4000 calories a

day. The dietician also changed the consistency of Resident 20's

diet from pureed to liquid in an effort to get her to consume

more calories. Ho wever, Resident 20 continued to eat poorly.

10. Resident 20's weight dropped from 151.6 pounds to 147.2

pounds between November 15, 2000, and December 20, 2000. Between

December 20, 2000, and January 24, 2001, Resident 20 lost only

six tenths of a pound to 146.6 pounds. Resident 20's weight loss

during two months between November 2000 and January 2001 was only

three percent of her actual body weight. A three percent loss of

body weight is not a significant weight loss under the SOM

guidelines.

11. T he facility dietician did not recommend any changes to

Resident 20's dietary care plan for several reasons.

Resident 20's weight had stabilized. The dietician believed that

Resident 20's refusal to eat was a product of Alzheimer's disease

and could not b e reversed. Resident 20 had not experienced any

significant weight loss. The dietician's decision not to make

any revisions to the care plan was consistent with good dietary

practice and relevant regulatory standards.

12. Between January 24 and Februar y 28, 2001, Resident 20's

weight dropped to 134.2 pounds. The weight loss was 8.5 percent

of the resident's body weight. The parties stipulated that this

weight loss was significant within the meaning of the SOM.

13. The facility dietician reassessed Resident 20 and

concluded that the weight loss was attributable to a refusal to

eat caused by Alzheimer's disease. The dietician placed Resident

20 on weekly weight monitoring.

14. The facility dietician correctly determined that there

was no dietary i ntervention that would make Resident 20 consume

more food. Both parties acknowledged that an end - stage

Alzheimer's patient will progressively decline and that the

patient's consumption gets worse, not better, over time. The

dietician did not make any rec ommended changes to Resident 20's

dietary orders. Instead, the dietician recommended that staff

discuss with the physician and family members the possibility of

placing a feeding tube in Resident 20.

15. The facility arranged a meeting with the physician for

Resident 20 and family members in March 2001, to discuss the

possibility of a feeding tube for Resident 20. The family

refused to consent to the placement of the feeding tube in

Resident 20. Resident 20 had issued an Advance Directive which

prohibit ed that intervention. Resident 20 passed away on May 7,

2001.

16. The facility did not violate the requirements of Tag

F325 by failing to try or even consider new care plan

interventions to prevent Resident 20's weight loss between

March 1 and May 7, 20 01. The facility could have offered

Resident 20 smaller portions more frequently, instead of larger

portions three times a day, or could have changed the temperature

of the liquids offered to Resident 20. The facility could have

offered Resident 20 suppl ements between meals. However, there is

no evidence that the available interventions would have been

effective.

17. Resident 20's cognitive decline was so severe that it

is unlikely the available interventions would have had any

positive effect on Resi dent 20. No regulatory standard required

the facility to change the dietary care plan interventions for

Resident 20 prior to the significant weight loss in February

2001.

18. The facility provided Resident 20 with every reasonable

intervention for the resident's dietary care. Resident 20's diet

provided her with more than enough calories. Changing the amount

or frequency of food offerings would have had no positive impact

on Resident 20's consumption because of the resident's diminished

cognitive capa city.

19. The absence of physician's orders for supplements for

Resident 20 had no adverse effect. The facility's policy is to

offer supplements throughout the day to all residents on the unit

in which Resident 20 resided. The facility offered these

s upplements to Resident 20, but they did not improve her

consumption or otherwise stem her weight loss.

20. The facility provided adequate dietary care to

Resident 20. The facility offered Resident 20 fluids at three

different meal times in addition to su pplements throughout the

day. Resident 20's appetite and consumption did not improve.

The refusal to eat was not related to her distaste for the food

offered to her, the quantity of the food offered to her, or the

frequency of feeding. Rather, the refus al to eat was a product

of her inability to understand what food was and the need to eat.

It was thus appropriate for the surveyor to conclude that

additional interventions would not have been effective and should

not have been employed.

21. The signific ant weight loss experienced by Resident 20

was unavoidable due to clinical conditions. The SOM guidelines

acknowledge that weight loss should be expected in a resident who

has a terminal illness or whose diminished cognitive capacity

results in a refusal to eat. Resident 20 possessed both of these

clinical conditions.

22. The facility admitted Resident 8 in July 2001, for

rehabilitative care after surgery for a fractured femur. Upon

admission, Resident 8 weighed 106.8 pounds. Her ideal body

weight wa s approximately 98 pounds, and her usual body weight was

between 100 and 105 pounds. The admitting body weight may have

been high due to swelling in Resident 8's leg. The facility

measured and monitored Resident 8's weight weekly for four weeks

pursuant to the facility's protocol for all new admissions.

23. The facility dietician assessed Resident 8's food

preferences and nutritional needs at the time of admission. The

dietician designed a diet to meet Resident 8's needs and

preferences. Resident 8 was cognitively alert and physically

capable of feeding herself. Resident 8 did not require any

special assistance to consume her food other than for staff to

set up her feeding tray.

24. Resident 8 was at risk for weight loss due to poor

intake upon admiss ion. Facility staff decided not to develop a

dietary care plan for Resident 8 because the resident was above

both her ideal and usual body weights. The decision not to

develop a dietary care plan was within the sound discretion of

facility staff. The fa ilure to develop a dietary care plan for

Resident 8 did not violate the standard of Tag F325.

25. The dietary plan for Resident 8 maintained the

Resident's body weight at acceptable levels for the first three

weeks of her stay at the facility. Resident 8's weight on

July 25, 2001, was 104.2 pounds. On August 1, 2001, Resident 8's

weight was 106.2 pounds. On August 8, 2001, however,

Resident 8's weight dropped to 100.2 pounds. On August 9, 2001,

the resident's weight was 99.8 pounds. Resident 8's ide al body

weight was approximately 98 pounds. The facility discharged

Resident 8 on or about August 9, 2001, upon successful completion

of her rehabilitation before another weight could be measured.

26. A threshold issue that must be determined is whether

Resident 8 experienced a significant weight loss. Respondent

stipulated at the administrative hearing that Residents 20 and 6

experienced significant weight losses during their stays at the

facility, but refused to concede that point with regard to

Resid ent 8.

27. As noted earlier herein, SOM guidelines indicate that a

significant weight loss occurs if a resident loses 5 percent of

his or her body weight in the "interval" of one month. The SOM

guidelines prescribe a formula for determining the percenta ge of

weight loss. The formula requires usual weight to be reduced by

actual weight. The result is divided by usual weight, and that

result is multiplied by 100.

28. Resident 8's usual body weight ranged between 100 and

105 pounds when she was admitte d to the facility. Use of the

high - end of that range in the SOM formula would produce the

highest percentage of weight loss for Resident 8. The formula

for calculating the significance of the Resident's weight loss

produces a number that is less than the 5 percent weigh loss that

must be present to satisfy the test of significant weight loss,

e.g. : usual weight loss (105) less actual weight (99.9) equals

5.2. The result (5.2) is divided by usual weight (105). The

result (.0495) is multiplied by 100 to d etermine the percentage

of weight loss (4.95 percent).

29. The parties stipulated at hearing that Resident 8 lost

6.5 percent of her body weight between July 18 and August 9,

2001. However, that percentage is based upon a comparison of her

actual body w eights rather than the usual - body - weight formula

prescribed in the SOM. Petitioner provided no evidence to

justify a deviation from the SOM formula generally used for

determining significant weight loss in this case.

30. Even if such a deviation were ju stified, Resident 8 did

not experience a significant weight loss within the meaning of

the SOM guidelines. The guidelines indicate that the minimum

interval for evaluating a resident's weight loss is one month.

Resident 8's actual weight loss occurred in the eight - day period

between August 1 and 9, 2001. That is less than the one - month

interval established in the SOM guidelines.

31. Even if July 18, 2001, were used as the beginning point

for evaluating Resident 8's weight loss, the one - month interval

for determining if a significant weight loss had occurred did not

expire and would not expire until August 18, 2001. The facility

discharged Resident 8 on or about August 9, 2001.

32. Petitioner's surveyor testified that if Resident 8 were

to have stay ed in the facility for 30 days and if her weight had

returned to that present before she began her weight loss, there

would have been no significant weight loss. Petitioner provided

no evidence that indicated that a resident's weight loss should

be evalua ted over some time period shorter than the one month

period established in the SOM guidelines.

33. Resident 8's case illustrates at least one reason why

the SOM guidelines caution surveyors against strict reliance on

the amount of a resident's weight los s to determine the

resident's nutritional status. Resident 8's body weight never

dropped below her ideal body weight while she was admitted to the

facility. A weight loss which occurs over a one - week period, and

which only results in the Resident droppin g to her ideal body

weight, does not indicate that the Resident is malnourished.

34. Assuming arguendo that Resident 8 experienced a

significant weight loss at the facility, the weight loss was not

caused by the failure of facility staff to develop a di etary care

plan. It is undisputed that facility staff assessed Resident 8

for her nutritional needs and provided her with an adequate diet

to meet those needs. It is also undisputed that, prior to the

Resident's weight being taken on August 8, 2001, the facility had

no reason to believe or know that the diet that it had prescribed

for Resident 8 or the Resident's consumption of that diet might

be inadequate. Resident 8's weight remained at or near its

admission level under the dietary regimen that the fa cility

prescribed for her for those three weeks.

35. Petitioner was unable to identify one intervention that

should have appeared in a dietary care plan that the facility did

not actually provide to Resident 8 or that would have prevented

the weight loss experienced by Resident 8. The surveyor who

developed the allegations regarding Resident 8 is a nurse and not

a dietician. The surveyor alleged that Resident 8 was anxious,

had been ill when she was admitted, and that the facility had not

appropriately a ssessed whether those factors would affect

Resident 8's appetite. Resident 8 did not express such problems

to the facility dietician. If it were determined that those

problems existed at the time of admission, they were not

significant because Resident 8 maintained her usual body weight

during the first three weeks of her stay at the facility.

36. When the Resident's weight loss was identified on

August 9th, the facility added fortified foods to her diet.

Fortified foods are the appropriate dietary resp onse to

Resident 8's identified weight loss. The facility provided

Resident 8 with all appropriate dietary care.

37. Resident 6 had been a resident at the facility since

November 29, 1999. Between May 9 and June 13, 2001, Resident 6

experienced a weigh t loss of 6.5 percent. The parties stipulated

that this loss was significant. However, Resident 6's weight of

152 pounds on June 13th remained above his ideal body weight of

144 pounds. During the period of weight loss, Resident 6

experienced a urinary tract infection for which he was receiving

anti - biotic therapy. It is not uncommon for a resident to lose

his or her appetite and to have a corresponding weight loss

during such treatment.

38. The surveyor for Petitioner who prepared the case

involving R esident 6 is not a dietician. The surveyor charged

that Resident 6's weight loss was avoidable because the facility

failed to assess Resident 6's protein needs after he developed

the urinary tract infection and because the facility did not

closely monitor Resident 6's food intake. Petitioner offered no

evidence to show what additional calorie or protein requirements

the facility did not provide to Resident 6. The facility

monitored the resident's low consumption levels and attributed

them to his antibiot ic therapy.

39. The facility dietician is a dietary expert. There is

no dietary standard that requires dieticians to reassess a

resident's nutritional needs when the resident has an infection.

Instead, good dietary practice allows the infection and

anti biotic treatments to run their course. Thereafter, the

dietician should monitor the resident's consumption and weight to

see if he or she returns to normal.

40. The facility dietician assessed Resident 6 after the

infection cleared and after the antibio tic treatment had been

completed. The dietician determined that Resident 6's

consumption was good. The weight loss Resident 6 experienced was

attributable to his decreased appetite while on antibiotic

therapy. Resident 6's weight remained stable after h is infection

cleared, and his treatment was completed. Resident 6's ideal

body weight is 144 pounds. The facility determined to maintain

Resident 6's weight at 150 pounds.

41. The significant weight loss experienced by Resident 6

was the unavoidable consequence of clinical conditions in the

form of the illness he experienced and the treatments he received

for that illness. The weight loss was not caused by inadequate

dietary care by the facility. Moreover, Resident 6 remained

above his ideal body w eight and, therefore, did not experience

any harm.

42. On or about July 12, 2001, the facility obtained an

albumin level for Resident 6 of 2.9, which was below the

suggested normal laboratory range of 3.5 to 5.0. The surveyor

for Petitioner charged th at the facility did nothing to address

this low lab value but conceded that Resident 6 did not

experience any harm as a result of that failure.

43. The SOM guidelines indicate that surveyors should not

expect normal lab values for all residents they rev iew because

abnormal values are to be expected with certain disease

processes. Resident 6 was severely compromised by cardiac

problems, dementia, a prior stroke, diabetes, prostate cancer,

and Alzheimer's disease. He died shortly after the survey in

this case. His albumin level of 2.9 was indicative of his

diseased condition rather than his nutritional status.

Accordingly, the facility did not violate any standard of good

dietary practice when it did not consider or implement dietary

interventions for t he low albumin level.

CONCLUSIONS OF LAW

44. DOAH has jurisdiction over the parties and subject

matter of this cause. Section 120.57(1). The parties received

adequate notice of the administrative hearing.

45. Petitioner alleges that there was a defici ency at

facility under Tag F325. Tag F325 encompasses the regulatory

standard contained in 42 CFR Section 483.25(i)(1). 42 CFR

Section 483.25(i)(1) provides, in relevant part:

Based on a resident's comprehensive

assessment, the facility must ensure that a

resident maintains (1) acceptable parameters

of nutritional status, such as body weight

and protein levels, unless the resident's

clinical condition demonstrates that this is

not possible . . . .

46. Petitioner failed to show by a preponderance of

evi dence that Resident 8 experienced any significant weight loss.

Petitioner also failed to show that the weight loss experienced

by Residents 20, 6, and 8 was caused by inadequate dietary care

by facility staff. Thus, the preponderance of evidence failed t o

establish any violation of Tag F325.

47. A standard rating is defined in Section 400.23(7)(a),

in relevant part, to mean:

. . . a facility has no class I or II

deficiencies and has corrected all class III

deficiencies within the time established by

the Agency.

48. Petitioner failed to prove that there was a class I or

II deficiency or an uncorrected class III deficiency at the

facility on August 16, 2001. It was inappropriate for Petitioner

to issue a conditional rating to the facility on that date.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of

law, it is

RECOMMENDED that Petitioner enter a Final Order finding no

basis to issue a Conditional rating to the facility on August 16,

2001; deleting the deficiency described unde r Tag F325; and

issuing a Standard rating to the facility to replace the

previously issued Conditional rating.

DONE AND ENTERED this 6th day of September, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

DANIEL M ANRY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doa h.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 6th day of September, 2002.

COPIES FURNISHED:

R. Davis Thomas, Jr.

Qualified Representative

Broad and Cassel

215 South Monroe Street, Suite 400

Post O ffice Drawer 11300

Tallahassee, Florida 32302

Dennis Godfrey, Esquire

Agency for Health Care Administration

525 Mirror Lake Drive, North

Sebring Building, Suite 310

St. Petersburg, Florida 33701

Lealand McCharen, Agency Clerk

Agency for Health Care Admi nistration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

William Roberts, Acting General Counsel

Agency for Health Care Administration

2727 Mahan Drive

Fort Knox Building, Suite 3431

Tallahassee, Florida 32308

Rhonda M. Medows, M.D., Secreta ry

Agency for Health Care Administration

2727 Mahan Drive

Fort Knox Building, Suite 3116

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 Recomm ended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.