02-000699 Beverly Healthcare Evans vs. Agency For Health Care Administration Status: Closed Recommended Order on Tuesday, October 8, 2002.

Summary: Petitioner failed to correct deficiencies within the specified period. Conditional rating was appropriate.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BEVERLY HEALTHCARE EVANS, )

)

Petitioner, )

)

vs. ) Case No. 02 - 0699

)

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Respondent. )

)

RECOMMENDED ORD ER

Notice was provided, and on May 22, 2002, a formal hearing

was held in this case. The hearing location was Fort Myers,

Florida. The authority for conducting the hearing is set forth

in Sections 120.569 and 120.57(1), Florida Statutes. The

hearing w as conducted by Fred L. Buckine, Administrative Law

Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: R. Davis Thomas, Jr.

Qualified Representative

Broad and Cassel

215 South Monroe Street, Suite 400

Post Office Drawer 11300

Tallahassee, Florida 32302

For Respondent: Dennis L. Godfrey, Esquire

Agency for Health Care Administration

525 Mirror Lake Drive, North

Room 310L

St. Petersburg, Florida 33701

STATEMENT OF THE ISSUES

Should Respondent, Agency for Health Care Administration,

rate Petitioner's, Beverly Healthcare Evans, nursing home

facility license "Conditional" for the 60 - day period of

January 8 through March 5, 2001, pursuant to Section 400.23(7),

Florida Statutes? In particular, did Petitioner commit the acts

or omissions alleged in Tags F281, F326, and F426 as dete rmined

in Respondent's periodic survey concluded on November 15, 2000?

Are Tags F281, F326, and F426 "Class III" deficiencies as

defined in Section 400.23(8)(b), Florida Statutes (2000)? Did

the results of Respondent's survey concluded on January 8, 2001 ,

reveal "Class III" deficiencies that were uncorrected on or

before February 8, 2001, the time specified by Respondent? If

so, was Petitioner's "Conditional" rating for the 60 - day period

of January 8 through March 5, 2001, appropriate?

PRELIMINARY STATEM ENT

Respondent (hereinafter AHCA) alleged that Petitioner

(hereinafter Evans) violated various provisions of the Florida

Statutes and the Florida Administrative Code, and provided

notice that Evans' licensure rating was changed from Standard to

Condit ional for the 60 - day period of January 8 through March 5,

2001. Evans contested assignment of a "Conditional" license for

that period by requesting a formal hearing to be conducted,

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

On Februar y 2, 2002, the Division of Administrative Hearings was

notified that Evans desired a formal hearing. Evans requested

assignment of an Administrative Law Judge to conduct proceedings

leading to a recommended order resolving the fact disputes and

recommendi ng the legal outcome. The case was assigned, and the

hearing ensued.

By stipulation, the parties agreed that AHCA bore the

burden of proof in this proceeding to show that there was a

basis for imposing the "Conditional" rating on Evans' license.

In sup port of that proof, AHCA presented the following

witnesses: Mary Maloney, Lori Riddle, Jim Marrione, Maria

Donohue, Christine Grushchke, and by agreement of the parties,

the deposition testimony of Norbert G. Smith. AHCA's 29

Exhibits were admitted. Eva ns presented the testimony of one

witness and submitted two Exhibits into evidence without

objection.

Official notice was taken of Rules 59A - 4.128(3)(b) and 59A -

4.1288, Florida Administrative Code; Sections 400.022, 400.141,

and 400.23, Florida Statutes; and 42 Code of Federal Regulations

(C.F.R.) Sections 483.20(k)(3)(i), 483.25(i)(2), and 483.60(a).

The identity of the witnesses, Exhibits, and any attendant

rulings are set forth in the two - volume Transcript of the

hearing filed on June 13, 2002.

The parties filed a joint pre - hearing stipulation that has

been utilized in preparing this Recommended Order. Proposed

recommended orders were scheduled to be filed not later than

20 days after the filing of the Transcript. Requests made for

additional time to file proposed recommended orders were

granted, extending the time for filing proposed recommended

orders. By these arrangements, the parties have waived the

requirement that the Recommended Order be entered within 30 days

of receipt of the hearing Tra nscript. Rule 28 - 106.216, Florida

Administrative Code. Proposed Recommended Orders were filed on

July 19 and 22, 2002, by AHCA and Evans, respectively, and have

been considered in rendering this Recommended Order.

FINDINGS OF FACT

1. Evans is a nursing home located at 5405 Babcock Street,

Northeast, Fort Myers, Florida, which is duly - licensed under

Chapter 400, Part II, Florida Statutes.

2. AHCA is the state agency responsible for evaluating

nursing homes in Florida pursuant to Section 400.23(7), Flori da

Statutes. As such, it is required to evaluate nursing homes in

Florida in accordance with Section 400.23(8), Florida Statutes.

AHCA evaluates all Florida nursing homes at least every

15 months and assigns a rating of standard or conditional to

each l icensee. In addition to its regulatory duties under

Florida law, AHCA is the state "survey agency," which, on behalf

of the federal government, monitors nursing homes that receive

Medicaid or Medicare funds. This standard is made applicable to

nursing ho mes in Florida pursuant to Rule 59A - 4.1288, Florida

Administrative Code, which provides:

Nursing homes that participate in

Title XVIII or XIX must follow

certification rules and regulations

found in 42 C.F.R. 483, Requirements for

Long Term Care Faciliti es, September 26,

1991, which is incorporated by

reference. Non - certified facilities

must follow the contents of this rule

and the standards contained in the

Conditions of Participation found in 42

C.F.R. 483, Requirements for Long Term

Care Facilities, S eptember 26, 1991,

which is incorporated by reference with

respect to social services, dental

services, infection control, dietary and

the therapies.

3. AHCA conducted an annual survey of Evans on

November 15, 2000, and alleged that there were three

de ficiencies. These deficiencies were organized and described

in a survey report by "Tags," numbered F281, F326, and F426.

The results of the survey were noted on an AHCA form entitled

"Statement of Deficiencies and Plan of Correction." The parties

refer to this form as the HCFA 2567 - L or the "2567." AHCA

conducted a follow - up survey of Evans, which was completed on

January 8, 2001.

4. The 2567 is the document used to charge nursing homes

with deficiencies that violate applicable law. The 2567

identifi ed each alleged deficiency by reference to a Tag number.

Each Tag on the 2567 includes a narrative description of the

allegations against Evans and cites a provision of the relevant

rule or rules in the Florida Administrative Code violated by the

alleged deficiency. To protect the privacy of nursing home

residents, the 2567 and this Recommended Order refer to each

resident by a number (Resident 1, etc.) rather than by the name

of the resident.

5. AHCA must assign a class rating of I, II or III to any

de ficiency that it identifies during a survey. The ratings

reflect the severity of the identified deficiency, with Class I

being the most severe and Class III being the least severe

deficiency. There are three Tags (F281, F326, and F426) at

issue in the ca se at bar, and, as a result of the November 15,

2000, survey, AHCA assigned each Tag a Class III deficiency

rating.

6. Tag F281 generally alleged that Evans failed to meet

professional standards of quality, evidenced by examples of

three residents, in vi olation of 42 C.F.R. Section

483.20(k)(3)(i), which provides:

Comprehensive Care Plans

(3) The services provided or arranged by

the facility must ---

(i) Meet professional standards of

quality.

7. Tag F326 generally alleged that Evans failed to e nsure

that a resident received a therapeutic diet, when there was a

nutritional problem, in violation of 42 C.F.R. Section

483.25(i)(2), which provides, in pertinent part:

(i) Nutrition. Based on a resident's

comprehensive assessment, the facility must

ensure that a resident -- .

(2) Receives a therapeutic diet when

there is a nutritional problem.

8. Tag F426 generally alleged that Evans failed to provide

pharmaceutical services to meet the needs of the residents,

evidenced by examples of three resi dents, in violation of

42 C.F.R. Section 483.60(a), which provides:

(a) Procedures. A facility must provide

pharmaceutical services (including

procedures that assure the accurate

acquiring, receiving, dispensing, and

administering of all drugs and bio logicals)

to meet the needs of each resident.

9. The November 15, 2000, survey cites three Class III

deficiencies. AHCA's January 8, 2001, survey cites repeated (or

failure to correct the three) Class III tag violations cited in

the November 15, 2000, survey.

10. Effective January 8, 2001, AHCA changed the rating of

Evans' license from Standard to Conditional.

Tag F281 - NOVEMBER 15, 2000 - SURVEY

11. Tag F281, a Class III deficiency, generally alleged

that Evans failed to meet professional standard s of quality of

care regarding three residents in violation of 42 C.F.R. Section

483.20(k)(3)(i).

12. Glenn T. Boyles, a surveyor/pharmacist for AHCA and

qualified as an expert pharmacist, testified that a nurse for

Evans, on November 15, 2000, was obser ved not to have followed

the professional standards and quality in preparing and

administering medications for three residents.

13. Boyles observed the nurse preparing the drug Colace

for administration by removing the medications from the

manufacturer's bottle and placing the medications into her hand

before placing these medications into a soufflé cup.

14. Boyles also observed the same nurse pre - pour two doses

of Colace liquid for administration to two other residents.

Medications are not to be pre - p oured or touched with the fingers

except when opening a capsule to empty the medication into a

cup, which is not the case here. The correct number of tablets

or capsules are to be poured directly into the medication cup.

In a discussion with the Director of Nurses for Evans about the

above observations, the Director of Nurses substantially

acknowledged that the nurse's actions were an inappropriate

standard of practice.

15. Boyles opined that there was an increased risk of

contamination; there was a pot ential for subsequent infectious

conditions that would affect the resident; pre - pouring the

medication increased the opportunity for the dosages to be

contaminated by organisms of an infectious nature which could,

in turn, be transferred to the resident; a nd there was an

increased risk of administering the medications to the wrong

residents.

16. Evans' contention that hand washing by the nurse prior

to administering medications and the length of time the Colace

capsule was in contact with the nurse's hand s resulted in

minimizing the chance of actual contamination misses the mark of

no hands on the actual medication to be administered and no pre -

pouring as was the case here.

17. Based upon Findings of Fact 11 through 16 hereinabove,

AHCA has proved that E vans failed to follow policy and to meet

the professional standards of quality in preparing and

administering medications regarding the three residents who were

subjects of Tag F281 as to the November 15, 2000, survey.

TAG F281 - JANUARY 8, 2001 - SURVEY

18. Tag F281, a Class III deficiency, generally alleges

that Evans failed to meet professional standards of quality of

care regarding Resident 2 and Resident 7.

Resident 2

19. Lori Riddle, AHCA's surveyor, during the January 8,

2001, follow - up survey of the November 15, 2000, survey,

conducted a survey involving Resident 2.

20. A review of Resident 2's medical records revealed

multiple diagnoses, one of which was convulsions, for which the

anti - convulsant medication Dilantin was prescribed to be taken

four times a day. The importance of taking the anti - convulsant

medication Dilantin as prescribed is to maintain a therapeutic

level of the drug in the body to prevent convulsions.

21. Resident 2's medical administration record (MAR)

reflected that the r esident refused medication, by spitting out

the Dilantin, on seven different occasions in December 2000 and

on five different occasions in January 2001. Resident 2 was not

taking the medication as prescribed, and there was no

documentation by Evans' staff that the physician had been

alerted to the fact that Resident 2 was not taking the

prescribed medication.

22. It was the responsibility of Evans' nursing staff to

inform the physician that Resident 2 was not taking the

prescribed medication, for whateve r reason. Evans had no

documentation or facility staff testimony evidencing the fact

that a nurse contacted the physician concerning Resident 2

spitting out the prescribed medication, Dilantin.

23. Dr. Dosani, resident physician, after completion of

th e January 8, 2001, survey, informed the surveyor that the

doctor had been notified that Resident 2 was spitting out the

prescribed medication, Dalantin.

24. Jim Marrione, expert in nursing practices and

procedures, opined that Evans failed to provide ser vices that

met professional standards of quality as to Resident 2 under the

facts and circumstances presented at the time.

25. Evans does not contest and, in fact, agreed that its

staff did not document Resident 2's repeated spitting out of the

Dalantin and, thus, was not in compliance of assuring the

accurate dosage of prescribed medication. Failure to document

Resident 2 spitting out the medication at the time it occurred,

when coupled with the failure to document advising the

resident's physician of the situation, resulted in Resident 2

not receiving medication four times a day.

26. AHCA has proved the allegations regarding Resident 2,

Tag F281 of the January 8, 2001, survey, regarding the failure

to properly medicate the resident with anti - convulsa nt

medication, Dilantin, four times a day.

Resident 7

27. Jim Marrione, a surveyor and an expert in nursing

practices and procedures, conducted a survey of Resident 7

during the survey of January 8, 2001. According to

Marrione, Resident 7 suffered pneu monia and chronic airway

obstruction and hypoxemia. In his opinion, Evans was out of

compliance with standards of practice for the following reasons:

(i) failure to document daily record of oxygen saturation rates

as ordered by the physician on October 2 3, 2000; (ii) failure to

document the monitoring of daily oxygen saturation on

December 25 and 26, 2000; and (iii) failure to document the

monitoring of daily oxygen saturation on January 3, 4, 5, and 6,

2001.

28. Daily monitoring of the oxygen saturati on rate

indicated that the doctor wanted to make sure that the

resident's saturation rate was maintained at an acceptable

level. The potential harm that results from the failure to

document the saturation rate is respiratory failure of the

resident. This failure to document the daily oxygen saturation

rate was beneath the professional standards of quality and in

violation of the Nursing Practice Act.

29. Evans' contention that other manifested physical

symptoms would be more observable indicators of res piratory

failure begs the question of quality care that is intended to

avoid and prevent, when possible, respiratory failure in

residents. The standard of care does not permit substitution of

more observable indicators of potential respiratory failure.

3 0. AHCA has proven Evans' failure to document the daily

record of oxygen saturation rates; failure to document the

monitoring of daily oxygen saturation on December 25 and 26,

2000; and failure to document the monitoring of daily oxygen

saturation on Janu ary 3, 4, 5, and 6, 2001.

TAG F326 - NOVEMBER 15, 2000 - SURVEY

31. Tag F326, a Class III deficiency, generally alleges

that Evans failed to ensure that Resident 6 received a

therapeutic diet, 1 when there was a nutritional problem, in

violation of 42 C.F .R. Section 483.25(i)(2).

Resident 6

32. Mary Maloney, an expert in nutrition, surveyed

Resident 6 who had multiple diagnoses, including being severely

underweight, chronic renal failure, diabetes, dysphagia

(difficulty in swallowing), and other conditio ns that caused him

to be much debilitated, bed bound and, therefore, requiring a

specialized tube feeding formula for diabetes and a gastrostomy

tube for the dysphagia.

33. According to Maloney, Resident 6's ideal body weight

(IBW) was 136 pounds; theref ore, the care plan goal for this

resident was weight increase. Evans' nutritional assessment for

Resident 6 dated September 19, 2000, revealed that the resident

weighed 122 pounds on September 9, 2000, and his caloric needs

were 1,706 per day. The nutrit ional assessment dated

September 25, 2000, assessed Resident 6's caloric needs at 1,6ll

calories; however, the resident was only receiving 1,380

calories. Evans' dietician recommended increasing the tube

feeding from 60ccs to 65ccs over a 23 - hour period, providing

1,495 calories over a 24 - hour period. The caloric increase

recommended by Evans' dietician, in Maloney's expert opinion,

did not meet Resident 6's caloric needs.

34. Maloney opined that the initial assessment documented

Resident 6 as underwei ght and did not include sufficient

additional calories to promote weight gain (the target weight of

136 pounds). Even with the additional tube feeding increase to

provide 1,495 calories, there was a deficit of 116 calories from

the initial assessment of 1 ,611 calories.

35. Inquiry was made of an Evans' dietician, Andrea, as to

why Resident 6 was not receiving the calorie amount assessed

(1,495 calories), to which she replied that Resident 6 had

hemoptysis (spitting up blood). Review of Resident 6's medi cal

records revealed only periodically excessive sputum and no

documented episodes specifically related to hemoptysis.

36. In the opinion of Maloney, not receiving enough

calories for this resident, who was underweight and suffering

with pressure sores, may have delayed healing of the pressure

sores and resulted in a continued weight loss. Further,

holistic consideration of Resident 6's debilitated condition,

with the addition of a failure to receive sufficient calories,

over time would not assist but w ould rather delay or defeat

Resident 6's efforts to reach the resident's highest practicable

condition.

37. AHCA has proven, by a preponderance of the evidence,

the allegations of failure of Evans to provide therapeutic diet

for the nutritional problems suffered by Resident 6, Tag F326 of

the November 15, 2000, survey.

TAG F326 - JANUARY 8, 2001 - SURVEY

Resident 7

38. AHCA surveyor, Jim Marrione, testified concerning

Resident 7. Evans stipulated to the factual allegations

contained in paragraph 2 of Ta g F326 of the survey report of

January 8, 2001, to wit: Based on the record review,

observations and interview with the Dietician and staff nurse

two (Resident 7 and Resident 10) of 13 active residents of the

facility were sampled.

39. Resident 7 was ad mitted to the facility with multiple

diagnoses, including dysphagia (difficulty in swallowing). The

medical orders on October 23, 2000, revealed that Resident 7 was

to receive thickened liquids, nectar consistency, that the

resident was capable of swallow ing. The nectar - thickened

liquids were a mechanically altered and therapeutic diet plan.

Evans was to protect the resident from receiving any thin

liquids that could cause him difficulty in swallowing. The

potential for harm to this resident could have been choking if

given non - thickened juices or water.

40. On January 7, 2001, the surveyor observed Resident 7

being given non - thickened orange juice, and on January 8, 2001,

again observed Resident 7 being given non - thickened water.

Resident 10

41. Sur veyor Norbert Smith's deposition testimony was

admitted in lieu of his personal appearance. Evans objected to

Smith's deposition testimony that was not related to and/or

specifically contained in the 2567 survey report dated

January 8, 2001.

42. Reside nt 10 was admitted to the facility on May 24,

2000, whose diagnoses included dysphagia (difficulty in

swallowing). The physician's order of September 23, 2000,

required a "pureed" NCS (No Concentrated Sweets) diet, and the

order of October 24, 2000, gives instruction to thicken all

liquids to honey consistency for all meals, med passes, and

activities.

43. Smith observed Resident 10 on January 7, 2001, in the

dining room, and at 12:40 p.m., observed the resident being

served prune juice thickened by Evan s' Quality Assurance

Director (QAD) to the consistency of Jell - O and served soup that

did not appear to be of honey consistency. The surveyor opined

that the Mighty Shake (milk shake) being served Resident 10 did

not appear to be honey - thickened. When Sm ith queried Evans'

nurse about the Mighty Shake's thickness, she replied, "This is

as close to honey thickened as they get."

44. Smith inquired of Evans' QAD if the Mighty Shake and

soup were honey thickened, and the QAD acknowledged she did not

know. E vans' dietician became involved in this issue and

confirmed that the soup served to Resident 10 was nectar -

thickened and the Mighty Shake had to be further thickened to be

considered honey - thickened.

45. In the afternoon of January 7, 2001, Smith entered

Resident 10's room and asked the staff nurse in the room at that

time to check if the water on Resident 10's bedside stand was

honey - thickened. Upon examination by the staff nurse, she

determined that the water was not honey - thickened.

46. Smith defined "dysphagia" as a condition where one's

windpipe does not cover when swallowing, as it should.

Therefore, when people suffering with dysphagia drink a liquid,

unless thickened, that person could choke or aspirate and

possibly die.

47. Evans' two contenti ons: (1) AHCA's November

allegation concerned "adequate diet to maintain acceptable

nutritional status," was purportedly corrected; and (2) AHCA's

January allegations of non - thickened liquids is different from

the November allegation or at best is de mini mus , are

inadequate.

48. AHCA has proven by a preponderance of evidence the

allegation that Evans failed to thicken all liquids to honey

consistency for all meals, med passes, and activities with

regard to Resident 10 and, therefore, did not ensure that the

resident received a therapeutic diet as ordered by the

physician.

TAG F426 - NOVEMBER 15, 2000 - SURVEY

49. Tag F426, a Class III deficiency, generally alleges

that Evans failed to provide pharmaceutical services (including

procedures that assure the accurate acquiring, receiving,

dispensing, and administering of all drugs and biologicals) to

meet the needs of the residents, in violation of 42 C.F.R.

Section 483.60(a).

50. Glenn T. Boyles, AHCA's surveyor/pharmacist, gave

testimony regarding allegati ons of paragraph 1 of Tag F426 of

the November 15, 2000, survey report. According to Boyles,

based upon his observations, record review and interviews with

staff, he determined that Evans did not provide pharmaceutical

services to meet the needs of three residents.

51. Boyles testified that in his opinion a nurse failed to

wait the federally prescribed amount of time (five minutes)

between administering eye drops, and did not properly measure

the prescribed amount of Abuterol solution (eye drops) for

admi nistration.

52. The above - observed deficiencies created the potential

for harm to the resident that would be more than minimal because

the physician had ordered the resident to receive the

medication's effect of two eye drops. The improper

administratio n caused the resident to receive the medication's

effect of only one eye drop. The improper administration also

created the potential for harm because the physician had ordered

a prescribed amount of solution to be used, and the nurse, when

preparing the medication, did not properly measure the amount

prescribed by the physician.

53. In paragraph 2 of Tag F426 of the survey report,

Boyles found two instances of non - compliance by Evans. First,

Evans stocked an expired tube of ointment and allowed the

exp ired medication to remain in the medication room. In doing

so, Evans did not take steps to limit the possibility that the

resident may receive a less than full potency antibiotic

ointment. An outdated and expired antibiotic would not be as

strong in comb ating the infection for which it was prescribed.

Second, Evans failed to return medications prescribed for a

resident who left the facility two months before the survey.

The failure to return medication violated Evans' policy that

states a medication for m must be completed within 15 days of

discharge (of a resident), and the policy sets out the procedure

to be taken (return or destroy) with medications based on the

class of the medication. In Boyles' opinion, the potential for

harm is that Evans did not preclude the diversion to a resident

or staff for whom the medications were not intended.

54. Evans did not dispute the above Findings of Fact

numbered 49 through 53, contending that the SOM guidelines

contained no directive to surveyors to cite medicati on

administration error as violations of the Tag, but rather

directed surveyors to determine whether Evans' system provides

that Evans' pharmaceutical services result in medication being

available to residents. The requirement is clear that Evans

must pro vide pharmaceutical services (including procedures that

ensure the accurate acquiring, receiving, dispensing, and

administering of all drugs and biologicals) to meet the needs of

each resident.

55. AHCA has proved by a preponderance of the evidence

that Evans failed to provide pharmaceutical services (including

procedures that ensure the accurate acquiring, receiving,

dispensing, and administering of all drugs and biologicals) to

meet the needs of the residents hereinabove cited.

56. In paragraph 3 of Ta g F426 of the survey report of

November 15, 2000, Boyles reported (subsection A) that Evans

failed to administer medications from September 20, 2000, to

October 28, 2000, to a resident on dialysis. In the opinion of

Boyles, this omission resulted from the failure of Evans' staff

to comply with the physician's instructions that they "may" omit

the resident's medications on days the resident underwent

dialysis treatment, i.e. Tuesday, Thursday, and Saturday.

57. Boyles further opined that Evans was to "hol d" (not

administer) these medications three days a week before the

dialysis treatments. Boyles opined that Evans' nurses

disregarded the physician's "hold" medication instructions and

gave the medication before dialysis treatment on the above days.

In Bo yles' opinion, the medication and its effect was

subsequently removed by the dialysis treatment. Further, Evan's

staff did not re - administer the medication after each dialysis

treatment, and thereby, did not ensure the accurate

administration of medicatio n as called for by 42 C.F.R. Section

483.60(a).

58. Regarding paragraph 3 of Tag F426 of the survey report

(subsection B) of November 15, 2000, Boyles reported that Evans

was non - compliant for its failure to ensure accurate

administration of drugs to Res ident 4. This resident's

physician prescribed the drugs Vasotec (for hypertension) and

Diflucan. Both drugs, after being administered, were removed by

the resident's dialysis treatment on Tuesdays, Thursdays, and

Saturdays. Boyles opined that Evans, kno wing the drugs were

removed by dialysis, should have given Resident 4 supplemental

doses of the prescribed drugs on Tuesdays, Thursdays, and

Saturdays, after dialysis treatment. Boyles opined that the

potential harm would be the negative effect that the a bsence of

the anti - hypertension medication would have on the resident's

ability to excrete urine, an added complication to the

resident's dialysis treatment.

59. As to paragraph 3 of Tag F426 (subsection A) Evans

contends that the physician's order state d "may" withhold

medications on dialysis days and that Boyles' opinion that Evans

should have withheld medication until after dialysis treatment

(or administered medication after dialysis treatment) would be

in violation of the physician's order. Evans po ints to the fact

that on October 28, 2000, the physician clarified the order to

indicate that Evans should "not" (with) hold administration of

medications on dialysis days.

60. Evans' position hereinabove does not address the

failure to ensure "accurate" administration of drugs to

Resident 4. Should Evans' nursing staff doubt, question or be

confused regarding the intent and meaning of the physician's

instructions or content of the order, they were under

professional obligation to seek clarification fro m the physician

so as to maintain the required standard to ensure accurate

administration of drugs on dialysis days.

61. Accordingly, AHCA has proven by a preponderance of

evidence that Evans failed to provide pharmaceutical services

(including procedures that assure the accurate acquiring,

receiving, dispensing, and administering of all drugs and

biologicals) to meet the needs of the residents in paragraphs 1,

2, and 3 of Tag F426.

TAG F426 - JANUARY 8, 2001 - SURVEY

62. In the January 8, 2001, survey re port, Tag F426, ACHA

determined that Evans failed to provide pharmaceutical services

to meet the needs of the residents, in violation of 42 C.F.R.

Section 483.60(a).

63. It was alleged by AHCA that Evans failed to comply

with the regulations because Evan s did not ensure accurate

dispensing and administrating of drugs to meet the needs of each

resident. The surveyor observed expired drugs in the A Wing and

B Wing refrigerators. AHCA further alleged that Evans did not

ensure that residents received their medications within one hour

before and after the scheduled medication time.

64. Lori Riddle, surveyor, testified that Evans' nurse was

still passing out medications to residents at 12:00 noon. Evans

does not dispute that morning medication for the A Win g were to

be administered at 9:00 a.m. Mariana Yingling informed Riddle

that she was an "Evans" nurse, paid by Evans. She admitted that

even though the medications were not timely administered, she

signed off as having given the medications at 9:00 a.m. Nurse

Yingling acknowledged that as an Evans' nurse, she believed she

was to be held to the same standards of nursing as a regular

full - time employee responsible for ensuring compliance with

Evans' policy: to wit, medications are to be administered

withi n one hour before and one hour after the scheduled time,

which was 9:00 a.m. for the A Wing and the B Wing.

65. In Riddle's opinion, the potential for harm to

residents if the drugs were not timely administered would be

that the effectiveness of the drug s would be affected. If drugs

were administered too close in time, there would exist a

potential for toxicity and other related side effects.

66. It is undisputed that four residents did not receive

their medication in a timely fashion in violation of E vans' own

policy. AHCA has proven by a preponderance of the evidence that

Evans failed to provide pharmaceutical services (including

procedures that ensure the accurate acquiring, receiving,

dispensing, and administering of all drugs and biologicals) to

m eet the needs of the residents as alleged under Tag F426.

Evans does not dispute the above facts in Tag F426.

67. On January 8, 2001, Jim Marrione, a registered nurse

surveyor, saw medication in the medication room of the A Wing

that expired "after 12/2 1/00." Marrione was informed by an

Evans' nurse that the drug belonged to a resident who had died

"last week," confirming that the drug should have been discarded

as required by Evan's policy.

68. On the above date, Marrione looked in the refrigerator

o f the B Wing medication room and found that two bottles of Ri

Max, an over - the - counter antacid, were stored in the

refrigerator and had expired on "12/00."

69. Marrione opined that the potential for harm existed

with the expired medications because of th eir lost of potency,

which deprived the residents of the intended full benefits of

the medications. Evans did not dispute the allegations

regarding the expired medications in the refrigerators located

in the A Wing and in the B Wing of the facility.

70. Accordingly, AHCA proved, by a preponderance of the

evidence, that Evans failed to ensure the accurate acquiring,

receiving, dispensing, and administering of all drugs and

biologicals to meet the needs of each resident by Findings of

Fact 62 through 69 he reinabove.

CONCLUSIONS OF LAW

71. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties pursuant to

Sections 120.569 and 120.57(1), Florida Statutes.

72. Respondent licenses nursing homes in Florida in

accord ance with Chapter 400, Part II, Florida Statutes.

Petitioner is a nursing home licensed under that part.

73. Respondent evaluates nursing home facilities at least

every 15 months to determine the degree of compliance by the

licensee with regulatory rul es adopted under Chapter 400,

Florida Statutes, as a means to assign a license status to the

nursing home facility. Section 400.23(7), Florida Statutes.

74. The license status assigned to the nursing home

following the periodic evaluation is either a sta ndard license

or a conditional license.

75. Standard licensure status and conditional licensure

status are defined in Sections 400.23(7)(a) and (b), Florida

Statutes (2000), as:

(a) A standard licensure status means

that a facility has no class I o r class II

deficiencies, has corrected all class III

deficiencies within the time established by

the agency, and is in substantial compliance

at the time of the survey with criteria

established under this part, with rules

adopted by the agency . . . .

* * *

(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 agency, is not

in substantial complian ce at the time of the

survey with criteria established under this

part, with rules adopted by the agency,

. . . .

76. If deficiencies are found during the periodic

evaluation, they are classified in accordance with the

definitions at Sections 400.23(8) (a) through (c), Florida

Statutes (2000), which state as follows:

(a) Class I deficiencies are those which

the agency determines present an imminent

danger to the residents or guests of the

nursing home facility or a substantial

probability that death or serious physical

harm would result therefrom. . . .

(b) Class II deficiencies are those which

the agency determines have a direct or

immediate relationship to the health,

safety, or security of the nursing home

facility residents, other than class I

deficiencies. . . .

(c) Class III deficiencies are those

which the agency determines to have an

indirect or potential relationship to the

health, safety, or security of the nursing

home facility residents, other than class I

or class II deficienci es. . . .

77. Respondent has authority to adopt rules to classify

deficiencies. Sections 400.23(2) and (8), Florida Statutes.

Rule 59A - 4.1288, Florida Administrative Code, refers to nursing

homes participating in Title XVIII or XIX and the need t o follow

certification rules and regulations found at 42 C.F.R. Chapter

483. Petitioner must comply with 42 C.F.R. Chapter 483.

78. The parties assert, and it is accepted, that

Petitioner is substantially affected by the issuance of the

Conditional license for the period in question. See Daytona

Manor Nursing Home v. AHCA , 21 FALR 119 (AHCA 1998). Thus,

Petitioner has standing to oppose Respondent's intent to rate

Petitioner's nursing home license as Conditional for the period

of January 8, 2001 th rough March 5, 2001. In this context,

Respondent bears the burden of proof of alleged deficiencies and

consequences for the deficiencies. Florida Department of

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

DCA 1981); and Balino v. Depa rtment of Health and Rehabilitative

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

in association with that burden are based upon a preponderance

of the evidence, failing a contrary instruction set forth in

Chapter 400, Part II, Florida S tatutes. Section 120.57(1)(j),

Florida Statutes.

79. A nursing home licensed in this state is given a

quality rating on the basis of its substantial compliance with

two independent bodies of law: state law and federal law. The

quality rating of nursing homes is unique to the State of

Florida. The pertinent state law is found in Sections

400.23(8)(a) through (c), Florida Statutes (2000). Under state

law by the terms of Section 400.23(8)(c), Florida Statutes

(2000), a nursing home is rated as conditiona l if it has a

"class I," a "class II," or an uncorrected "class III"

deficiency. Further, by the terms of Section 400.23(8)(b),

Florida Statutes (2000), a nursing home is rated as conditional

if it is not in substantial compliance with applicable federal

regulations. While federal law deficiencies, for purposes of

sanctions, may fall under any of the regulations in 42 C.F.R.

Part 483 (Requirements for States and Long - Term Care

Facilities), Rule 59A - 4.128, Florida Administrative Code,

effective October 13, 1996 through May 5, 2002, for rating

purposes, limits the consideration of federal deficiencies to

those federal deficiencies constituting "substandard quality of

care." "Substandard quality of care" is a federal law term of

art, and refers only to a cer tain level of non - compliance with

three particular sections of 42 C.F.R. Part 483: to wit,

483.13, 483.15, and 483.25. Florida Administrative Code Rule

59A - 4.128's use of "substandard quality of care" was added by

the amendment to the rule of October 13, 1996, and was

recognized in rule challenge proceedings as an appropriate

reference to federal law in Florida Health Care Association v.

Agency for Health Care Administration , 18 F.A.L.R. 3458, 3471

(DOAH 7/16/96).

80. The state "Class I," "Class II," and "Class III"

scheme of deficiencies is simply more broad than the federal

"substandard quality of care" scheme. See Sections 400.23(8)(a)

through (c), Florida Statutes (2000), for the definition of the

three classes of deficiencies. There is no indicatio n in

Chapter 400, Part II, Florida Statutes, that the legislature

intended for the statutory definitions to be limited by federal

law. Thus, under Rule 59A - 4.128(4), Florida Administrative

Code, effective October 13, 1996 through May 5, 2002, a nursing

ho me is rated as conditional if one of the state "class"

deficiencies is found, or if one of the federal "substandard

quality of care" deficiencies is found. In summary, a separate

inquiry into substantial compliance with (1) state law and (2)

federal law i s required to ascertain the proper quality rating

of a nursing home.

81. The purpose of the follow - up inspection is to

determine whether a deficient practice has been corrected.

However, if the alleged practice in question has been corrected

as to the r esidents sampled on the initial visit, but is

deficient as to other residents on the follow - up visit, then the

deficiency which was initially cited remains outstanding. It is

for this reason, and for an accurate determination of the

facility's quality of care, that a new sample of residents is

drawn upon on the follow - up visit. Absolutely no prejudice

results from this practice to a licensee whose facility meets

the prevailing standards of quality of care.

82. Under Tag F281 both the November 2000 and t he

January 2001 survey reports revealed similar problems evidencing

Petitioner's failure to meet professional standards of quality

care by its failure to ensure the accurate acquiring, receiving,

dispensing, and administering of all drugs and biologicals to

meet the needs of each resident. During the November survey,

Petitioner's nurses poured medication from a capsule into her

hand then into a soufflé cup before administering the medication

to the residents. During the resurvey in January 2001,

Petition er's staff failed to document and record that a resident

refused to take prescribed medication and spat out prescribed

medication. During the January resurvey, it was also noted that

Petitioner failed to properly adjust and document the daily

oxygen satur ation level for another resident.

83. As revealed in the January 2001 survey, Petitioner's

employees did not document that staff notify the assigned

physician that Resident 2 had refused to take and had spat out

the anticonvulsant medication as ordered by the physician. As

the result of the November 2000 survey report, Petitioner

established a correction policy, requiring the physician to be

notified by nurses of all residents refusing medications and to

review and update each such resident's MAR. Petiti oner's own

policy was not followed as reflected in the January 2001 survey

report. This deficiency has a direct and immediate relationship

to the resident's medical, nursing, and mental needs that are

identified in the comprehensive assessment plan of Res ident 2.

84. Under Tag F326, both the November 2000 and the January

2001 survey reports revealed similar problems evidencing

Petitioner's failure to ensure that the resident received a

therapeutic diet when there was a nutritional problem based upon

th e resident's comprehensive assessment. During the November

survey, it was observed that Resident 6 was to receive continuous

tube feeding of Glucerna at 65ccs per hour. The resident

developed a Stage II pressure area. Additionally, Petitioner's

nurse re ported that the resident's history of hemoptysis was the

reason for no increase in his protein intake. However, the

review of the resident's most recent hospitalization medical

records does not document episodes of hemoptysis. Petitioner had

no plan or r ecommendation to ensure that Resident 6's caloric

needs were met.

85. During the January 2001 resurvey, it was observed that

Resident 10's liquids were not thickened to honey consistency

for all meals, medical passes, and activities. The resident was

given non - thickened orange juice, non - thickened water, and a

non - thickened milk shake.

86. Under Tag F426, both the November 2000 and the January

2001 survey reports revealed similar problems evidencing

Petitioner's failure to ensure the accurate acqui ring,

receiving, dispensing, and administering of all drugs and

biologicals to meet the needs of each resident. During the

November survey, Petitioner's nurse was observed instilling two

eye drops of Artificial Tears in the resident's left eye and two

eye drops in the resident's right eye. The nurse did not wait

three to five minutes between administering the first and second

drops of solution in the resident's eyes as is required.

Additionally, during the November survey it was found that a

resident on dialysis treatment three days per week was

prescribed several medications to be administered daily. The

medications were administered on dialysis days of Tuesdays,

Thursdays, and Saturdays before the resident underwent dialysis

treatment. However, Petiti oner's employees did not readminister

medications after the dialysis treatment to replace the

medications removed by the dialysis treatment. This failure to

readminister the medications denied the resident the full

benefit of the medication prescribed by the physician.

87. During the January resurvey, two separate incidents

reflected Petitioner's failure to ensure the accurate acquiring,

receiving, dispensing, and administering of all drugs and

biologicals to meet the needs of each resident. During the

resurvey on January 8, 2001, Petitioner's registered nurse was

observed passing out medications in the A Wing of the facility

between the hours of 11:30 a.m. and 12:00 p.m. When the

surveyor made inquiry, the nurse admitted she began passing out

her "morn ing" medications at 7:40 a.m. but having to medicate 26

different residents caused some to receive their medications

after 10:00 a.m. Petitioner's nurse admitted she signed off all

medications as having been passed out and given to residents at

9:00 a.m. Petitioner's policy and procedures on medication

administration require "medications to be administered within

one hour before and one hour after the scheduled time, except

for orders relating to before, after, and during meal orders,

which are administer ed as ordered."

88. It was during the January 2001 resurvey that the

surveyor observed medication, in the medication room of the A

Wing, labeled "discard after 12/21/00." Inquiry of staff

revealed that the resident for whom the medication was

prescribed expired "last week" ( i.e. during the period of

December 26, 2000 through January 1, 2001). Likewise, in the

B Wing the surveyor observed two bottles of medication that

expired in December 2000.

89. The deficiencies practiced by Petitioner and cited

under Tags F281, F326, and F426 were properly classified as

Class III deficiencies in that they represented an indirect or

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

nursing home facility residents. In the case at bar, it is not

just a matter of failing to correct those initial deficiencies

cited under each tag hereinabove, it was the discovery of those

initial deficiencies as to other residents upon resurvey. Not

the former, but the latter reflects the failure of Petitioner to

ensu re adequate and appropriate healthcare standards of the

facility's residents.

90. The discovery of specific acts, omissions, or

deficiencies cited under Tags F281, F326, and F426 during the

survey conducted on November 15, 2000, coupled with discovery of

similar acts, omissions, or deficiencies cited during resurvey

on January 8, 2001, are "uncorrected Class III deficiencies" and

are "substandard quality of care deficiencies," and therefore,

constitute reason to assign Petitioner's facility a Conditional

l icensure status for the period of January 8, 2001 through

March 5, 2001.

RECOMMENDATION

Upon consideration of the Findings of Fact and Conclusions

of Law reached, it is

RECOMMENDED:

That a final order be entered in which Respondent assigns

Petitioner a Conditional license for the period of January 8,

2001 through March 5, 2001.

DONE AND ENTERED this 8th day of October, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

FRED L. BUCKINE

Administrative Law Judge

Division of Adm inistrative 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 8th day o f October, 2002.

ENDNOTE

1/ Therapeutic diet, under SOM guidelines, is defined as a

"diet ordered by a physician as part of treatment for a disease

or clinical condition, to eliminate or decrease certain

substances in the diet or to increase certain su bstances in the

diet or to provide food the resident is able to eat

[mechanically altered diet]."

COPIES FURNISHED :

Dennis L. Godfrey, Esquire

Agency for Health Care Administration

525 Mirror Lake Drive, North

Room 310L

St. Petersburg, Florida 33701

R . Davis Thomas, Jr.

Qualified Representative

Broad and Cassel

215 South Monroe Street, Suite 400

Post Office Drawer 11300

Tallahassee, Florida 32302

Lealand McCharen, Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallah assee, Florida 32308

Valda Clark Christian

Acting General Counsel

Agency for Health Care Administration

2727 Mahan Drive

Fort Knox Building, Suite 3431

Tallahassee, Florida 32308

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to subm it 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.