02-001420 Integrated Health Services Of Port Charlotte vs. Agency For Health Care Administration Status: Closed Recommended Order on Thursday, October 10, 2002.

Summary: Class II deficiency proven by agency, where excess protein in tube feeding was the likely cause of elevated blood urea nitrogen (BUN) level, and facility failed to monitor BUN level despite resident`s history of azotemia.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

INTEGRATED HEALTH SERVICES OF )

PORT CHARLOTTE, )

)

Petitioner, )

)

vs. ) Case No. 02 - 1420

)

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this

case on June 20, 2002, in Port Charlotte, Florida, before

Lawrence P. Stevenson, a duly - designated Administrative Law

Judge of the Division of Administrative Hearings.

APP EARANCES

For Petitioner: Jonathan S. Grout, Esquire

Goldsmith & Grout, P.A.

2180 North Park Avenue, Suite 100

Post Office Box 2011

Winter Park, Florida 32790 - 2011

For Respondent: Michael P. Sasso, Esquire

Agency for Health Care Administration

525 Mirror Lake Drive, North

Suite 310 - G

St. Petersburg, Florida 33701

STATEMENT OF THE ISSUE

Whether Petitioner's licensure status should be reduced

from standard to conditional.

PRELIMINARY S TATEMENT

By letter dated February 22, 2002, Integrated Health

Services of Port Charlotte ("IHS") was notified by the Agency

for Health Care Administration ("AHCA") that its Skilled Nursing

Facility license had been subjected to a rating change from

"stand ard" to "conditional" as a result of one Class II

deficiency found in a licensure and certification survey

completed on February 7, 2002. IHS timely filed a Petition for

Formal Administrative Hearing on March 20, 2002, disputing the

allegations of fact an d contesting the proposed Agency action.

On April 10, 2002, AHCA forwarded the Petition to the Division

of Administrative Hearings for assignment of an Administrative

Law Judge and conduct of a formal hearing.

On May 2, 2002, AHCA filed a consented Mot ion for Leave to

Serve an Administrative Complaint, which sought to provide IHS

with particular notice of the alleged violations. The Motion

was granted by Order entered on May 7, 2002.

The case was set for hearing on June 20, 2002. The final

hearing to ok place on that date.

At the formal hearing, AHCA presented the testimony of

Cynthia Lehman, a public health nutrition consultant for the

Agency; Laurie Anne Pettigrew, a laboratory surveyor for the

Agency and expert in laboratory technology; Mary Malon ey, a

health services and facilities consultant for the Agency and

expert dietician; and Carol Mackey, a public health nutrition

consultant for the Agency and expert dietician. AHCA's Exhibits

1 through 15 were accepted into evidence.

IHS offered the t estimony of Carol Gathy, a registered and

expert dietician at IHS; Chrisanna Harrington, a clinical and

expert dietician at IHS; and Jane Cornwell, a registered nurse

employed as director of nursing at IHS and an expert in long -

term care nursing. IHS' Exh ibits 1 through 3 were admitted into

evidence.

By stipulation of the parties, IHS was granted leave to

submit the late - filed deposition testimony of the attending

physician. By notice filed on July 19, 2002, IHS informed the

undersigned and opposing coun sel that the deposition would not

be submitted.

A Transcript of the proceeding was filed at the Division of

Administrative Hearings on July 31, 2002. On August 7, 2002,

the parties filed a Motion for Extension of Time, requesting

that the deadline for s ubmitting proposed recommended orders be

extended to August 23, 2002. The undersigned granted the Motion

ore tenus on the date it was filed. Both parties filed Proposed

Recommended Orders on August 23, 2002.

FINDINGS OF FACT

Based on the oral and d ocumentary evidence adduced at the

final hearing, and the entire record in this proceeding, the

following findings of fact are made:

1. AHCA is the state Agency responsible for licensure and

regulation of nursing homes operating in the State of Florida.

Chapter 400, Part II, Florida Statutes.

2. IHS operates a licensed nursing home at 4033 Beaver

Lane, Port Charlotte, Florida.

3. The standard form used by AHCA to document survey

findings, titled "Statement of Deficiencies and Plan of

Correction," is commonly referred to as a "2567" form. The

individual deficiencies are noted on the form by way of

identifying numbers commonly called "Tags." A Tag identifies

the applicable regulatory standard that the surveyors believe

has been violated and provide s a summary of the violation,

specific factual allegations that the surveyors believe support

the violation, and two ratings which indicate the severity of

the deficiency.

4. One of the ratings identified in a Tag is a "scope and

severity" rating, which i s a letter rating from A to L with A

representing the least severe deficiency and L representing the

most severe. The second rating is a "class" rating, which is a

numerical rating of I, II, or III, with I representing the most

severe deficiency and III r epresenting the least severe

deficiency.

5. On February 4 through 7, 2002, AHCA conducted an

annual licensure and certification survey of IHS to evaluate the

facility's compliance with state and federal regulations

governing the operation of nursing homes.

6. The survey team alleged several deficiencies during the

survey, only one of which is at issue in these proceedings. At

issue is a deficiency identified as Tag F322 (violation of

42 C.F.R. Section 483.25(g)(2), relating to a facility's duty to

prevent aspiration pneumonia, diarrhea, vomiting, dehydration,

metabolic abnormalities, and nasal - pharyngeal ulcers in

residents who are fed via naso - gastric or gastrostomy tube ).

7. The deficiency alleged in the survey was classified as

Class II under the Florida classification system for nursing

homes. A Class II deficiency is "a deficiency that the agency

determines has compromised the resident's ability to maintain or

reach his or her highest practicable physical, mental, and

psychosocial well - bein g, as defined by an accurate and

comprehensive resident assessment, plan of care, and provision

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

8. The deficiency alleged in the survey was cited at a

federal scope and severity rating of G, meaning t hat the

deficiency was isolated and caused actual harm that is not

immediate jeopardy.

9. Based on the alleged Class II deficiency in Tag F322,

AHCA imposed a conditional license on IHS, effective February 7,

2002.

10. The survey found one instance in which IHS allegedly

failed to ensure appropriate treatment for a resident fed by a

naso - gastric or gastrostomy tube. The surveyor's observation on

Form 2567 concerned Resident No. 2:

Based on observation, review of resident

record and facility policy a nd procedure,

and interview with the nutrition and

administrative, and nursing staff, the

facility failed to notify the Registered

Dietician of a physician ordered consult

requested secondary to elevated laboratory

values and need for reassessment of

resid ent's nutritional and fluid needs;

failed to complete the physician ordered

dietary consult; failed to review physician

orders and review resident laboratory values

when completing the January 2002 tube

feeding review resulting in no reassessment

of the re sident's nutritional needs and no

readjustment in the resident's tube feeding

with the subsequent negative outcome of

metabolic abnormalities and dehydration

secondary to excessive protein intake for 1

(Resident No. 2) of 7 residents reviewed for

tube feed ing from a total sample of 22

active sampled residents.

The findings include:

1. Resident No. 2 was admitted to the

facility on 09/07/01 with diagnoses

including Type 2 Diabetes, Senile Dementia,

Chronic Bronchitis, Aspiration Pneumonia and

Depressio n. The resident had a gastronomy

tube for feeding and was receiving nothing

by mouth.

Review of the resident hospital laboratory

data dated 9/5/01, indicated that the

resident was admitted to the facility with

normal laboratory values except an elevate d

Glucose level of 195 (reference range 75 - 109

mg/dL). The resident's Blood Urea Nitrogen

(BUN) was within normal limits at 12 mg/dL

(reference range 5 - 25 mg/dL); Creatinine was

within normal limits at 1.2 mg/dL (reference

range 0.5 - 1.4 mg/dL); BUN/Creati nine Ratio

was 10:1 within normal limits of 10:1. The

resident's albumin level dated 9/1/01,

indicated a moderate depletion of protein

stores at 2.6 g/dL (reference range 3.4 - 5.0

g/dL). The resident had clear urine with a

normal urine specific gravity of 1.010

(reference range 1.001 - 1.030).

Review of the initial Nutritional

Assessment completed on 09/10/01, revealed

that the resident's estimated nutritional

needs were 1320 calories and 64 grams of

protein (1.5 grams/kg body weight) with

1290 cc of flu id (30 cc/kg body weight).

The resident's weight on admission was

94.4 pounds with an ideal body weight range

of 95 pounds - 10 percent. The resident's

weight in August 01 was documented as

96.8 pounds. Resident's height was

50 inches. The Registe red Dietician (RD)

recommended a change in the tube feeding to

Resource Diabetic at 60 cc per hour with

100 cc of water every shift (300 cc of

additional water) to provide 1440 calories,

90 grams of protein (2.1 grams of protein/kg

body weight) and 1509 c c of free water. The

RD documented that the resident had a need

for extra protein secondary to a low

albumin. (This tube feeding provided an

additional 120 calories and 26 grams of

protein a day beyond the resident's

estimated nutrient needs.)

Review of the Enteral Feeding Flow Sheet

revealed that the RD recommended increasing

the tube feeding further on 10/03/01,

secondary to weight loss to Resource

Diabetic at 75 cc per hour with no

recommendation to increase the fluid

flushes. It was documented tha t the

resident's weight decreased 3.2 percent

without a specified period of time. The

resident's current weight was documented as

93.8 pounds. The RD did not recalculate the

nutritional needs based on the current

weight. She documented that the increase in

tube feeding would provide 1800 calories

(41 grams/kg) with 113 grams of protein

(approximately 2.7 grams/kg body weight) and

1812 cc of free fluid plus 30 cc of fluids

with medications. (This tube feeding

provided an additional 480 calories and

49 additional grams of protein beyond the

resident's estimated nutrient needs.) The

note further documented that the resident's

blood sugars were ranging from 122 - 141

mg/dL, no other labs were documented or

requested.

Review of the Enteral Feeding Flow Sh eet

dated 11/20/01, revealed that the resident

remained on this tube feeding and water

flushes and gained an additional 4 pounds in

one month. The RD documented to continue

with the current Plan of Care. The resident

continued to receive an additional 48 0

calories (40 calories/kg) and 49 grams of

protein (approximately 2.5 grams/kg) from

this formula.

Review of the Enteral Feeding Flow Sheet

dated 12/07/01, revealed that the resident

continued on the tube feeding and flushes

and gained another 2 pounds .

Review of physician telephone orders dated

12/19/01, revealed that the physician

increased the water flushes to 150 cc every

6 hours to provide 600 cc of fluid per day

in addition to the tube feeding, an increase

of 300 cc per day.

Review of the physician's progress notes

dated 12/22/01 at 4:50 P.M., indicated that

the resident had an elevated BUN of 84 mg/dL

and an elevated glucose of 128. The

physician documented that the resident had

azotemia without increased sodium and

questioned a gastroint estinal bleed. He

further documented that the resident did not

look dehydrated clinically and that her Type

2 Diabetes was improved. The physician

ordered labs, check the stool for blood and

was receiving [sic] increased water through

the PEG tube (feedi ng tube in the stomach).

Review of nurses notes dated 12/22/01 at

1800, revealed the stools were checked for

blood with negative results.

Review of the resident's lab data dated

12/18/01, revealed that the resident had a

normal sodium and potassium l evel and an

elevated BUN of 84 mg/dL (reference range

6 - 28 mg/dL). The resident's creatinine

level was normal at 1.1 mg/dL (reference

range .2 - 1.5 mg/dL). Glucose was elevated

at 128 mg/dL (reference range 60 - 115 mg/dL).

The BUN/Creatinine Ration [sic] had

increased from normal to 76:1 and the

calculated serum osmolality was 323 mOsm/kg

H2O (normal values 285 - 295 mOsm/kg H2O).

(These lab values were indicative of

excessive protein intake and possible

dehydration).

Review of lab data obtained 12/24/0 1,

indicated that the resident's BUN remained

at 84 mg/dL, Glucose was normal at 90 mg/dL

and the resident had an elevated white blood

cell count indicative of infection. Serum

osmolality remained elevated at 316 mOsm/kg

H2O. BUN/Creatinine Ratio remaine d at 76:1,

indicative of excessive protein intake and

possible dehydration. The nurse had noted

on the lab work form that the resident had

tested negative for blood in her stool X 2

on 12/25/01 and the resident's whiteblood

cells had been normal in Septem ber 2001.

The labs were faxed to the physician on

12/26/01.

Further review of the physician's

telephone orders revealed that a dietary

consult was ordered on 12/28/02 [sic].

Review of the dietary progress notes and

Enteral Feeding Flow Sheets revealed that

the consult had not been completed. The

resident remained on the tube feeding at 75

cc per hour which provided 1800 calories,

113 grams of protein and 2112 cc of free

fluid. (480 additional calories: 40

calories/kg; 49 grams additional protein:

2 .5 grams/kg and approximately 35 cc of

fluid/kg per day).

The next documented nutritional review was

completed on 1/14/02. The RD reassessed the

resident's calorie needs to add 500 calories

for weight gain with a total of 1820

calories per day. Protei n needs were

reassessed at 72 grams per day (1.5 grams/kg

based on current weight). Fluid needs were

reassessed at 30 to 34 cc/kg body weight or

1440 to 1632 cc per day. The resident's

weight was documented at 106 pounds, a 6.4

pound weight gain (6.4 per cent) in one

month. There was no indication that the RD

addressed the consult ordered 12/28/01 or

the abnormal lab data from 12/18/01 and

12/24/01. Accuchecks (blood sugar levels)

were noted on the flow sheet an [sic]

ranging from 123 - 170 mg/dL. It was noted

that the resident was receiving

multivitamins with minerals. Review of the

progress note that accompanied the flow

sheet revealed that the RD documented on

01/14/ - 2, that the resident continued to

gain weight on the tube feeding, that the

accuchecks were elevated and "MD aware."

Her recommendation was to continue with the

current Plan of Care.

Observation of the resident on 02/04/02 at

11:32 A.M., revealed a petite, frail woman

sitting in a geri - chair propped up with

pillows and a splint on her l eft hand. The

resident's tube feeding was running at 75 cc

per hour. Skin appeared smooth with good

skin turgor, lips were dry. Resident had

mild temporal wasting. Observation of the

Foley catheter bag 02/05/02 at 11:15 A.M.,

revealed 125 cc of moderat ely yellow urine

in the bag with sediment in the tubing.

Interview on 02/04/02 at 2:05 P.M., with

the consultant RD, who had completed the

assessment on 01/14/02, revealed that she

had not reviewed the physician orders or lab

data when she completed the assessment. She

stated she did check the resident's daily

blood sugar levels. She stated the

resident's fluid needs were being met at the

time of the assessment and the resident was

gaining weight. She confirmed that she did

not assess the resident's p rotein intake

from the formula versus the resident's

estimated needs. The RD stated that the

Resource Diabetic is high in protein but

that is the only diabetic formula available

on the formulary. She stated that after

discussion with the surveyor, she wo uld

reassess the resident today and check with

the physician regarding the rate of the tube

feeding to provide less protein.

Further interview with the RD on 02/04/02

at 3:00 P.M., revealed that she had spoken

to the RD who covers the C wing and that RD

told her that she had been on vacation

during the time the RD consult was ordered.

The consultant RD confirmed that the

facility had not contacted her regarding the

consult during her visits to the facility.

She again stated that she was planning to

dec rease the protein in the tube feeding and

keep the fluid flushes at 150 cc every 6

hours. She further stated that it would be

difficult to decrease the protein to the

resident's estimated needs due to the need

for use of the diabetic formula.

Review of the dietary progress note

completed on 02/04/02, after surveyor

intervention, indicated that the resident

had increased to 107.2 pounds and was now

above ideal body weight. Recalculation of

the the [sic] resident's calorie needs was

estimated to be app roximately 1400 calories

per day. Protein was reestimated [sic] at

1.2 grams/kg body weight or 57.6 grams per

day. Fluid needs were calculated at 30 - 34

cc/kg body weight or 1440 to 1632 cc per

day. The RD recommended to decrease the

tube feeding to Reso urce Diabetic at 55 cc

per hour to provide 1399 calories with

83 grams of protein (1.6 to 1.7 grams/kg

body weight). Total free fluids provided

would be 1708 cc per day (approximately 35

cc/kg/body weight). The RD also recommended

lab data to assess hyd ration status and

visceral protein stores.

Review of the physician telephone orders

dated 2/4/02, revealed that the physician

approved the decreased [sic] in the tube

feeding.

Review of the lab data obtained 2/5/02,

revealed that the resident's BUN r emained

elevated at 71 g/dL. The Creatinine was 0.9

mg/dL with the BUN/Creatinine ratio

remaining elevated at 78:1. Calculation of

the serum osmolality was 318, indicative of

continued excessive protein intake and

possible dehydration. The resident seru m

albumin did improve to 3.2 grams/dL.

Further review of the dietary progress

notes written 02/06/02, revealed that the RD

recommended contacting the physician

regarding the abnormal labs. She

recommended increasing the fluid flushes to

150 cc every 4 hours which would provide an

additional 900 cc of free fluid per day.

The RD further documented that if the BUN

did not show improvement in one week with

the increased fluid flushes, a change in the

type of formula would be necessary. She

recommended Fib ersource that has a protein

level of 45 grams/1000 cc versus the

resident's current Resource Diabetic which

has 63 grams/1000 cc.

Interview on 02/06/02 at 2:30 P.M., with

the Administrator, Director of Nursing and

2 RD's confirmed that the RD's had not been

notified of the 12/28/01 consult, that they

do not get notified when lab data is

abnormal unless they are verbally told by

nursing. The full - time RD stated that she

had originally assessed the resident's

protein needs at 1.5 grams/kg body weight

sec ondary to the low albumin and the

resident's poor appetite. She stated that

she was providing the extra protein

secondary to having to use the diabetic tube

feeding formula that was available in the

formulary and meet the resident's calorie

needs. The Di rector of Nursing stated that

they had formulas from other companies in

the building and that the facility could get

a different diabetic formula if needed. The

RD's agreed that the resident needed to be

reassessed.

Interview with the Director of Nursi ng on

02/07/02 at 12:05 P.M., revealed that she

had reviewed the resident's record and had

nothing else to bring the surveyors after

reviewing the record and nothing else to

offer. She stated that she that [sic] there

were issues and that the facility wou ld work

on them.

11. Cynthia Lehman, a public health nutrition consultant,

was the survey team member who recorded the observation of

Resident No. 2. Ms. Lehman's findings were based on her

observations of Resident No. 2, a review of the resident's

med ical records and of the facility's policies and procedures,

and interviews with IHS staff. At the hearing, IHS did not

contest the accuracy of the factual findings set forth by

Ms. Lehman, though it did contest AHCA's conclusion that

Resident No. 2's ele vated BUN level was caused by excessive

protein intake.

12. Resident No. 2 was a 82 - year - old female first admitted

to IHS on August 15, 2001, after a hospital stay for intravenous

hydration. She had been admitted to the hospital with severe

dehydration with azotemia, which is the retention of excess

nitrogenous compounds in the blood caused by the failure of the

kidneys to remove urea from the blood. Azotemia is associated

with a high blood urea nitrogen ("BUN") level. Resident No. 2's

BUN level on Au gust 10, 2001, was 37 mg/dL. Normal limits of

BUN are 5 - 25 mg/dL.

13. Resident No. 2 was a small woman, 4'2" tall, and

weighed 96.8 pounds. She suffered from diabetes, chronic

obstructive pulmonary disease ("COPD"), chronic pancreatitis,

hypothyroidism and heart disease. Upon admission to IHS,

Resident No. 2 was bed - bound in a fetal

position, lethargic and uncommunicative. She had skin tears on

her heels and coccyx.

14. During her first admission, Resident No. 2 ate poorly

and had difficulty swal lowing. The speech therapist at IHS

determined that she would require tube feeding to maintain

nutrition. Resident No. 2 was therefore readmitted to the

hospital for placement of a percutaneous endoscopic gastrostomy

tube, or "PEG tube." She was readmit ted to IHS on September 6,

2001. Her condition was the same as on her first admission,

with the exception of the PEG tube.

15. Laboratory values were taken of Resident No. 2 during

her second hospital stay. Of relevance to this proceeding, her

blood urea nitrogen ("BUN") level on September 5 was 12 mg/dL,

within normal limits of 5 - 25 mg/dL. She showed a moderate

protein deficiency. Her albumin level was 2.6 g/dL, below

normal limits of 3.4 - 5.0 g/dL.

16. The IHS dietician, Carol Gathy, assessed R esident

No. 2 upon her September 6 admission. She estimated that the

resident required 1,320 calories and 64 grams of protein per day

to maintain nutrition. Ms. Gathy noted that Resident No. 2 had

a history of poorly controlled diabetes and that her acc uchecks

(blood sugar monitoring tests) were high. Resident No. 2's

medical history indicated that she was prone to fall into

azotemia.

17. Ms. Gathy determined that the first priority was

bringing Resident No. 2's diabetes under control, and for that

re ason recommended a product called Resource Diabetic for her

tube feeding. Resource Diabetic is recommended for diabetics

because it has a lower ratio of simple sugars than other tube

feeding formulas. The tube feeding was initially provided at

60 cc/hou r, with water flushes of 300 cc/day. This provided

Resident No. 2 with 1,440 calories and 90 grams of protein per

day.

18. At the recommended levels, Resource Diabetic provided

calories and protein in excess of Resident No. 2's estimated

needs. Ms. Gathy thought this necessary to assist Resident

No. 2 in gaining weight and replenishing her protein stores.

The resident's thinness made her prone to pressure sores, as

indicated by the skin tears on her heels and coccyx. Ms. Gathy

thought that the ext ra protein would raise Resident No. 2's low

albumin levels and enable healing of the existing skin tears,

and that the extra calories would provide some "padding" to

prevent future skin tears.

19. On October 3, 2001, Ms. Gathy noted a three - pound

weight loss for Resident No. 2 and recommended that the tube

feeding be increased to 75 cc/hour. This increased Resident

No. 2's intake to 1800 calories and 113 grams of protein per

day.

20. From early October through November, IHS performed

daily accuchecks and determined that Resident No. 2's blood

sugar and glucose levels were normal. Resident No. 2 was

adjusting well to tube feeding and gaining weight. Her skin

tears had healed and her skin was intact. Aside from the

accuchecks, no other laboratory tes ts had been taken since her

admission to IHS on September 6, 2001.

21. The attending physician ordered lab work on

December 18, 2001. Resident No. 2's BUN level was 84 mg/dL,

well above the normal limits of 5 - 25 mg/dL. Evidence produced

at the hearing indicated that an elevated BUN level over a long

period of time can have negative effects, including renal

failure. A BUN level must reach 100 mg/dL to be considered

"critical," but a level of 84 mg/dL is considered abnormally

high. Because no lab work was performed between September 5 and

December 18, 2001, IHS did not know how long Resident No. 2's

BUN level had been elevated.

22. On December 19, 2001, the physician ordered an

increase in the water flush through the PEG tube in an effort to

bring dow n the BUN level. The "flush" is simply free water in

the tube feeding that hydrates the resident and flushes out some

of the excess protein.

23. On December 22, 2001, the physician diagnosed Resident

No. 2 with azotemia, due to the elevated BUN level. The

elevated BUN level could have several causes, including a

gastrointestinal ("GI") bleed, dehydration, infections, or

excess protein.

24. The physician ordered a stool culture to rule out a GI

bleed. The culture tested negative for blood in the s tool.

25. The physician ordered further lab work on December 24,

2001. Resident No. 2's BUN level remained at 84 mg/dL. Her

creatinine and hematocrit (red blood cell) levels were within

normal limits. These labs caused the physician to focus on

excess protein as the cause of the elevated BUN level. On

December 28, 2001, he ordered a dietary consultation regarding

Resident No. 2's protein intake.

26. Staff of IHS did not perform the dietary consultation.

Ms. Gathy was on vacation during this period, and no one at IHS

informed the consulting dietician on duty, Chrisanna Harrington,

that the consultation had been ordered. Resident No. 2

continued to receive the Resource Diabetic feedings at

75 cc/hour.

27. Ms. Harrington performed a nutritional ass essment of

Resdient No. 2 on January 14, 2002. She documented a

significant unplanned weight gain of 6.4 pounds by Resident

No. 2, from 99.6 to 106 pounds in one month. She recalculated

the resident's caloric and protein needs upward, from 1320 to

1820 calories per day and from 64 to 72 grams of protein per

day. Ms. Harrington recommended continuing the Resource

Diabetic feedings at 75 cc/hour and otherwise continuing with

the existing care plan.

28. When she performed her assessment on January 14 , 2002,

Ms. Harrington was unaware that the physician had ordered a

dietary consult. She was also unaware of the laboratory tests

performed the previous December. She did not know that Resident

No. 2's BUN levels were elevated. Ms. Harrington only learn ed

of the physician's orders and the lab tests when the agency

surveyor, Ms. Lehman, informed her of them on February 4, 2002.

29. Ms. Harrington then performed a weight review of

Resident No. 2 that showed her weight increased to 107.2 pounds.

She reca lculated the residents caloric and protein needs

downward to 1400 calories and 57.6 grams of protein. She

recommended reducing the tube feeding to 55 cc/hour, and

recommended further laboratory testing. The labs performed on

February 5, 2002, indicated t hat Resident No. 2's BUN level was

at 71 mg/dL, reduced but still well above normal limits.

30. At the hearing, IHS contended that Resident No. 2's

elevated BUN level was not necessarily caused by excessive

protein intake. The resident suffered a urinar y tract infection

in early December. Infections can increase the BUN level.

Throughout her stay at IHS, the resident was receiving Prinivil,

a beta - blocker for hypertension that has a potential side effect

of increasing the BUN level. In October 2001, t he resident

received Levaquin, an anti - infective drug, that could have

influenced her BUN level.

31. The weight of the evidence made it clear that, while

these other causes were possibilities, the excessive protein was

the most likely cause. The steps taken by the physician showed

that he believed excessive protein was the most likely cause of

the elevated BUN level, once he ruled out a GI bleed.

Ms. Harrington, too, acted immediately to reduce Resident No.

2's protein intake as soon as she was inform ed of the elevated

BUN level.

32. In any event, the cause of the elevated BUN level is

less important than the fact that the facility's care ensured

that the resident's BUN level would not be tested for a period

of three and one - half months. Resident No . 2 was an elderly

diabetic with a history of azotemia, and was being provided a

diet with a level of protein well in excess of her assessed

need, yet no laboratory blood levels were taken between

September 5 and December 18, 2001. Even after the attendin g

physician began to suspect excess protein as the culprit and

ordered a dietary consultation, the facility failed to act on

the order.

33. In summary, the evidence presented at the hearing

demonstrated that IHS provided an excessive amount of protein in

the tube feeding of this elderly diabetic resident, failed to

monitor the resident's laboratory values, including BUN levels,

despite a documented history of azotemia, and failed to follow

physician orders calling for a dietary consultation. All of

these factors placed Resident No. 2 in unnecessary jeopardy of

sustaining kidney damage. That she displayed no outward

physical signs of kidney damage was fortuitous, not the result

of the care provided by IHS.

34. The evidence demonstrated that IHS compromi sed

Resident No. 2's ability to maintain or reach 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.

CONCLUSIONS OF LAW

35. The D ivision of Administrative Hearings has

jurisdiction over the parties and subject matter of this

proceeding pursuant to Sections 120.569 and 120.57(1), Florida

Statutes.

36. AHCA is authorized to license nursing home facilities

in the State of Florida, an d pursuant to Chapter 400, Part II,

Florida Statutes, is required to evaluate nursing home

facilities and assign ratings.

37. The Agency has the burden to establish the allegations

that would warrant the imposition of a conditional license.

Beverly Ent erprises - Florida v. Agency for Health Care

Administration , 745 So. 2d 1133 (Fla. 1st DCA 1999). AHCA must

show by a preponderance of the evidence that there existed a

basis for imposing a conditional rating on IHS’s license.

Florida Department of Transpo rtation 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).

38. Section 400.23, Florida Statutes, provides in

pertinent part:

(7) The agency sha ll, at least every 15

months, evaluate all nursing home facilities

and make a determination as to the degree of

compliance by each licensee with the

established rules adopted under this part as

a basis for assigning a licensure status to

that facility. Th e agency shall base its

evaluation on the most recent inspection

report, taking into consideration findings

from other official reports, surveys,

interviews, investigations, and inspections.

The agency shall assign a licensure status

of standard or condit ional to each nursing

home.

* * *

(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 compliance at the time of the

survey with criteria established under this

part or with rules adopted by the agency.

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

class III deficiencies at the time of the

followup survey, a standard licensure status

may be assigned.

39. Section 400.23(8)(b), Florida Statutes, defines a

Class II deficiency as:

a deficiency that the agency determines

has 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. A class II deficiency is subject

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

deficiency, $5,000 for a patterned

defici ency, and $7,500 for a widespread

deficiency. The fine amount shall be

doubled for each deficiency if the facility

was previously cited for one or more class I

or class II deficiencies during the last

annual inspection or any inspection or

complaint inves tigation since the last

annual inspection. A fine shall be levied

notwithstanding the correction of the

deficiency.

40. The survey of IHS included one deficiency identified

as Tag F322 (violation of 42 C.F.R. Section 483.25(g)(2),

relating to a facilit y's duty to prevent aspiration pneumonia,

diarrhea, vomiting, dehydration, metabolic abnormalities, and

nasal - pharyngeal ulcers in residents who are fed via naso -

gastric or gastronomy tube) . This deficiency was identified as

Class II and thus subjected th e facility to conditional

licensure.

41. The Agency established by a preponderance of the

evidence that the cited deficiency occurred. The evidence

presented at hearing established that IHS provided an excessive

amount of protein in the tube feeding of this elderly diabetic

resident, failed to monitor the resident's laboratory values,

including BUN levels, despite a documented history of azotemia,

and failed to follow physician orders calling for a dietary

consultation. Resident No. 2 suffered from an e levated BUN

level for an unknown period of time, placing her at unnecessary

risk of renal damage.

42. ACHA properly characterized this as a Class II

deficiency. IHS compromised Resident No. 2's ability to

maintain or reach her highest practicable physi cal, mental, and

psychosocial well - being as defined by an accurate and

comprehensive resident assessment, plan of care, and provision

of services.

RECOMMENDATION

Upon the foregoing Findings of Fact and Conclusions of Law,

it is recommended that the Age ncy for Health Care Administration

enter a final order upholding its notice of intent to assign

conditional licensure status to Integrated Health Services of

Port Charlotte.

DONE AND ENTERED this 10th day of October, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

LAWRENCE P. STEVENSON

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.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 10th day of October, 2002.

COPIES FURNISHED :

Jonathan S. Grout, Esquire

Goldsmith & Grout, P.A.

2180 North Park Avenue, S uite 100

Post Office Box 2011

Winter Park, Florida 32790 - 2011

Michael P. Sasso, Esquire

Agency for Health Care Administration

525 Mirror Lake Drive, North

Suite 310 - G

St. Petersburg, Florida 33701

Lealand McCharen, Agency Clerk

Agency for Health Care A dministration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

Valda Clark Christian, 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 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.