02-001788 Agency For Health Care Administration vs. Healthpark Care Center, Inc., D/B/A Healthpark Care Center Status: Closed Recommended Order on Friday, September 6, 2002.

Summary: Evidence failed to substantiate allegations of Class II deficiencies relating to toileting and nutritional status of residents of long-term care facility.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) Case Nos. 02 - 0033

) 02 - 1788

HEALTHPARK CARE CENTER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in these

consolidated cases on June 11, 2002, via video teleconference in

Fort Myers and Tallahassee, Florida, before

Lawrence P. Stevenson, a duly - designated Administrative Law

Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Dennis L. Godfrey, Esquire

Agency for Health Care Administration

525 Mirror Lake Drive, North

Suite 310 - L

St. Petersburg, Florida 33701

For Respondent: Karen L. Goldsmith, Esquire

Goldsmith, Grout and Lewis, P.A.

2180 North Park Avenue, Suite 100

Post Office Box 2011

Winter Park, Florida 32790 - 2011

STATEMENT OF THE ISSUES

DOAH Case No. 02 - 0033: Whether Respondent's licensure

status should be reduced from standard to conditional.

DOAH Case No. 02 - 1788: Whether Respondent committed the

violations alleged in the Administrative Complaint dated

March 13, 2002 , and, if so, the penalty that should be imposed.

PRELIMINARY STATEMENT

By letter dated October 24, 2001, Healthpark Care Center

("Healthpark") was notified by the Agency for Health Care

Administration ("AHCA") that its Skilled Nursing Facility

license h ad been subjected to a rating change from "standard" to

"conditional" as a result of two Class II deficiencies found in

a licensure and certification survey completed on October 18,

2001. Healthpark timely filed an Election of Rights on

November 7, 2001, disputing the allegations of fact and

contesting the proposed Agency action. On January 2, 2002, AHCA

forwarded the matter to the Division of Administrative Hearings

("DOAH") for assignment of an Administrative Law Judge and

conduct of a formal hearing. This matter was assigned DOAH Case

No. 02 - 0033 and set for hearing on March 7, 2002. A joint

motion for continuance was granted and the hearing was

rescheduled for April 4, 2002. A second motion for continuance

was filed by Healthpark on March 21, 2002, in anticipation of a

challenge to the Administrative Complaint discussed in the next

paragraph. This motion was granted by order dated March 22,

2002.

By Administrative Complaint dated March 13, 2002, AHCA

notified Healthpark of its intent to impose a civil penalty of

$2,500 each for the two Class II deficiencies found in the

survey completed on October 18, 2001. Healthpark timely filed a

Request for Formal Hearing on April 8, 2002, contesting the

proposed Agency action. On May 8, 2002, AHCA forwarded the

matter to DOAH for assignment of an Administrative Law Judge and

conduct of a formal hearing. This matter was assigned DOAH Case

No. 02 - 1788. On May 14, 2002, Healthpark filed a Motion to

Consolidate, which was granted by order dated May 20, 2002. The

consolidated cases were set for hearing on June 11, 2002. The

final hearing took place on that date, via video teleconference

in Fort Myers and Tallahassee, Florida.

At the formal hearing, AHCA presented the testimony of

Diane Ashworth, a registered nurse ("RN") for the Agency and

expert in nursing practices and procedures; Maria Donohue, an RN

for the Agency and expert in nursing practices and procedures;

and Lori Riddle, a public health nutrition consultant for the

Agency and expert in dietetics an d nutrition. AHCA's Exhibits 1

through 29 were accepted into evidence.

Healthpark offered the testimony of Mona Joseph, a

certified nursing assistant ("CNA") at Healthpark; Caroline

Nicotra, a licensed practical nurse ("LPN") and supervisor of

the long - term care unit at Healthpark; Alexandria Antoni, a

registered dietician at Healthpark and expert in the field of

nutrition; and Carol Morris, an RN employed as Medicare clinical

coordinator at Healthpark and expert in geriatric nursing.

Healthpark's Exhi bits 1 through 9 were accepted into evidence.

These exhibits included the deposition testimony of Diane

Ashworth and Maria Donohue.

A Transcript of the proceeding was filed at the Division of

Administrative Hearings on July 22, 2002. Both parties time ly

filed Proposed Recommended Orders.

FINDINGS OF FACT

Based on the oral and documentary 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. Healthpark operates a licensed nursing home at 16131

Roserush Court, Fort Myers, 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 provides a summary of the violation,

specific factual allegations that the surveyors believe support

the violation, and two ratings which indicate the severity of

the deficien cy.

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

severity" rating, which is 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

num erical rating of I, II, or III, with I representing the most

severe deficiency and III representing the least severe

deficiency.

5. On October 15 through 18, 2001, AHCA conducted an

annual licensure and certification survey of Healthpark, to

evaluate the facility's compliance with state and federal

regulations governing the operation of nursing homes.

6. The survey team alleged three deficiencies during the

survey, two of which are at issue in these proceedings. At

issue are deficiencies identifie d as Tag F224 (violation of 42

C.F.R. Section 483.13(c)(1)(i), relating to neglect of

residents) and Tag F325 (violation of 42 C.F.R. Section

483.25(i)(l), relating to maintenance of acceptable parameters

of nutritional status).

7. Both of the deficiencie s alleged in the survey were

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 - being, as defined by an accurate

and comprehensive resident assessment, plan of care, and

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

8. Both of the deficiencies alleged in the surv ey were

cited at a federal scope and severity rating of G, meaning that

each deficiency was isolated, caused actual harm that is not

immediate jeopardy, and did not involve substandard quality of

care.

9. Based on the alleged Class II deficiencies in Tags F224

and F325, AHCA imposed a conditional license on Healthpark,

effective October 18, 2001. The license expiration date was

September 30, 2002.

I. Tag F224

10. The survey allegedly found violations of 42 C.F.R.

Section 483.13(c)(1)(i), which states:

( c) Staff treatment of residents. The

facility must develop and implement written

policies and procedures that prohibit

mistreatment, neglect, and abuse of

residents and misappropriation of resident

property.

(1) The facility must --

(i) Not use verb al, mental, sexual, or

physical abuse, corporal punishment, or

involuntary seclusion....

In the parlance of the federal Health Care Financing

Administration Form 2567 employed by AHCA to report its

findings, this requirement is referenced as "Tag F224." The

Agency's allegations in this case involved neglect of a resident

rather than any form of abusive treatment.

11. The Form 2567 listed two incidents under Tag F224,

both involving Resident 10, or "R - 10." The surveyor

observations read as follows:

Base d on observations, record review and

interviews with a resident and a Certified

Nursing Assistant (CNA), the facility failed

to provide toileting needs as care planned

for 1 (Resident #10) of 8 sampled residents

reviewed for incontinence and toileting

prog rams. The resident was not toileted for

more than 5 hours causing multiple creased

areas and redness to her left groin,

perineum and buttocks.

The findings include:

1. On 10/15/2001, Resident #10 was in her

room, #141, in bed A at 2:20 P.M. Resident

s tated she was wet. The call bell cord was

clipped to the sheet, but the bell mechanism

was off the side of the bed, out of the

resident's reach. Surveyor walked to the

North nurse's station and continued to

observe the resident's room entrance.

Record r eview revealed Resident #10's most

recent quarterly Minimum Data Set (MDS)

completed 8/27/2001, assessed her with

bladder incontinence at 3 (frequently

incontinent), bowel incontinence at 1 (less

than once weekly), activity is assessed as

bed mobility 3/3 (needs extensive assistance

to move in bed), and toilet use at 3/2

(needs extensive assistance).

At 4:15 P.M., the resident requested the

surveyor to get someone to change her as no

one had come in and the call bell was still

out of her reach. The reside nt's request

was given to the nurse at 4:20 P.M.

2. On 10/16/01, Resident #10 was observed

in her wheelchair in the hall outside her

room from 8:55 A.M. until 12:05 P.M., when

she was escorted to the main dining room.

At 2:20 P.M., resident was still si tting in

her wheelchair. After surveyor

intervention, the CNA put the resident to

bed at 2:30 P.M. When the adult diaper was

removed, it revealed the resident to be

incontinent of feces and urine. The odor of

urine was very strong in the room. The

resi dent's perineum and buttocks were red

and moist, with multiple creased areas. The

left groin was especially red.

During an interview with the CNA, she stated

the resident was last toileted before lunch

at approximately 11:00 A.M. This was during

the tim e of direct observation by the

surveyor of the resident in the hall outside

her room.

Review of the resident's Care Plan revealed

that she was to have the call bell in place

at all times and scheduled toileting.

12. Diane Ashworth was the survey team m ember who recorded

the observation of R - 10. Ms. Ashworth was assigned the task of

observing R - 10, and based her findings on a review of the

resident's medical records, observations and interviews.

13. R - 10 was a 96 - year - old diabetic female who had been

admitted to Healthpark on March 28, 2000. R - 10's most recent

Minimum Data Set ("MDS"), completed on August 27, 2001,

indicated that R - 10 had short and long - term memory difficulties

and moderately impaired decision making as to tasks of daily

life. R - 10 was generally confused as to place and time. She

could make herself understood, and had no difficulty

understanding what was said to her. She was easily angered and

could be physically abusive to staff.

14. R - 10 required extensive assistance to m ove, dress,

toilet, and maintain general hygiene. She was confined to her

bed or to a wheelchair, and required assistance to move the

wheelchair. R - 10's MDS indicated a loss of voluntary movement

in her hands, including her wrists and fingers.

15. T he MDS indicated that R - 10 experienced daily

incontinence of the bladder, and bowel incontinence once a week

on average. The nurse's notes for R - 10 indicated that she was

able to make her needs known and that she was encouraged by

staff to call for assist ance as needed.

16. The care plan for R - 10 stated that she should have

"scheduled toileting," but set forth no firm schedule.

Ms. Ashworth testified that she would have expected R - 10 to be

toileted before meals, before bed, and upon rising, at a

mi nimum.

17. Mona Joseph was the CNA who attended R - 10 on a daily

basis. Ms. Joseph testified that R - 10, like all residents who

wore adult diapers, was scheduled for toileting every two hours

and whenever necessary. In practice this meant that Ms. Jose ph

would inquire as to R - 10's need for toileting every two hours.

18. Ms. Joseph testified that R - 10 would ask her for

toileting at least twice a day, and that she never refused the

request. She always toileted R - 10 before lunch, and testified

that on O ctober 16 she toileted R - 10 at about 11 a.m. before

taking her to lunch.

19. Toileting R - 10 required the use of a Hoyer lift to

move the resident from her wheelchair to the bed. Ms. Joseph

estimated that the entire process of toileting R - 10 took seven

t o eight minutes.

20. Caroline Nicotra, the supervisor of the long - term care

unit in which R - 10 resided and Ms. Joseph's supervisor,

confirmed that Healthpark's CNAs were trained to make rounds

every two hours and ask those residents requiring assistance if

they needed to be toileted. R - 10 was capable of making that

decision, and her wishes regarding her need for toileting would

be respected by the CNA.

21. Ms. Ashworth's testimony was generally consistent with

her written findings. She met R - 10 on t he afternoon of

October 15. R - 10 was lying in bed, and told Ms. Ashworth that

she was wet. Ms. Ashworth noted that the call bell cord was

clipped to R - 10's bed, but that the bell mechanism itself was

not within R - 10's reach. Ms. Ashworth left the room and took a

position at the nurses' station, from which she could see the

door to R - 10's room. She watched to see if any staff person

from Healthpark went into R - 10's room. She saw no one enter the

room between 2:20 p.m. and 4:15 p.m., at which time she a sked a

CNA to toilet R - 10.

22. Ms. Ashworth returned at 8:55 a.m. on October 16, and

observed R - 10 sitting in her wheelchair in the hallway outside

her room. Ms. Ashworth took up her post at the nurses' station

and watched R - 10 until 12:05 p.m. At no t ime in the morning did

Ms. Ashworth see R - 10 being moved or taken for toileting, though

Ms. Joseph testified that she toileted R - 10 at about 11 a.m.

23. The evidence established that R - 10's room was at the

opposite end of a corridor from the nurses' stat ion. The

corridor was approximately 200 feet long from the nurses'

station to R - 10's room. The corridor was busy. Medications

were passed at 9:00 a.m., meaning that medication carts went up

and down the corridor. Staff carried breakfast trays in and ou t

of rooms. Housekeeping and treatment carts were in the hallway.

Given the distance of the nurses' station from R - 10's room and

the constant activity in the corridor, it is unlikely that Ms.

Ashworth's view of R - 10 was unobstructed at all times.

24. M oreover, the nurses' station itself was a hub of

activity. At the end of the nurses' station where Ms. Ashworth

stood was the fax machine. The fax machine was kept constantly

busy sending physicians' orders to the pharmacy. The unit

secretary was statio ned in this location. Nurses passed through

this area to retrieve forms from the filing cabinets or to go to

the medication room.

25. The likelihood that Ms. Ashworth was unable from her

vantage point to view R - 10 at all times makes credible

Ms. Joseph 's testimony that she regularly checked with R - 10 to

ask whether she required toileting. However, it is unlikely

that R - 10 was ever out of Ms. Ashworth's sight for the period of

seven to eight minutes necessary to actually toilet the

resident. Ms. Ashwor th's testimony that R - 10 was not toileted

at 11 a.m. on October 16 is therefore credited.

26. At 12:05 p.m., R - 10 was taken to the dining room for

lunch. Ms. Ashworth followed and observed R - 10 in the dining

room. After lunch, R - 10 was wheeled back t o the outside of her

room. Ms. Ashworth observed her from the nurses' station until

2:20 p.m. Ms. Ashworth did not see R - 10 being taken for

toileting between 12:05 and 2:20 p.m.

27. At 2:30 p.m. on October 16, Ms. Ashworth approached

Mona Joseph, the C NA responsible for R - 10, and asked her to put

R - 10 to bed so that Ms. Ashworth could examine her buttocks.

Ms. Ashworth asked another AHCA surveyor, Maria Donohue, to

accompany her to confirm her observations. There was some delay

while Ms. Joseph finish ed a task for another resident, but

eventually Ms. Joseph wheeled R - 10 into the room and placed her

into bed.

28. Ms. Joseph changed R - 10's adult brief in the presence

of Ms. Ashworth and Ms. Donohue. Ms. Ashworth testified that

there was a strong smell of urine in the room, even before the

brief was removed, though she noticed no smell of urine about R -

10 prior to entering the room. When Ms. Joseph removed the

adult brief, Ms. Ashworth noted that it was wet and that there

was a large amount of feces in the brief and on R - 10's buttocks.

29. Ms. Ashworth noted that the skin on R - 10's perineum

and buttocks was creased and red. The area of R - 10's left groin

was so red that Ms. Ashworth at first thought there was no skin.

Ms. Ashworth stated that this ki nd of redness is associated with

not being toileted as scheduled, though she conceded that such

redness can also result from pressure. Ms. Ashworth also

conceded that this was her first observation of R - 10's buttocks,

and thus that she had no baseline to judge how abnormal the

redness was at the time Ms. Joseph changed the adult brief.

30. Ms. Donohue also recalled a strong urine smell as soon

as they entered the room. She agreed that R - 10's buttocks were

red in some areas, but recalled no further detai ls. She could

not recall if there was feces in the adult brief, but did recall

that it was saturated with urine.

31. Mona Joseph, the CNA who changed R - 10's adult brief,

believed that the urine smell in the room came from the next

bed, because she had just changed the adult brief of the person

in that bed. Ms. Joseph smelled no odor of urine or feces about

R - 10. Ms. Joseph testified that R - 10's brief was dry, and that

she began having a bowel movement while being changed. She

noted no redness on R - 1 0's buttocks.

32. Caroline Nicotra was the supervisor of the long - term

care unit in which R - 10 resided. She knew R - 10, and stated that

R - 10 regularly used her call bell, and would call out for help

if she could not reach the call button clipped to her b ed. She

noted that all of the rooms to which Ms. Joseph was assigned

were in the same area of the corridor, so that Ms. Joseph would

always be able to hear R - 10 call out. There would also be

nurses in the area who could hear R - 10.

33. Ms. Nicotra kne w the surveyors had gone into R - 10's

room with Ms. Joseph, and she went into the room moments after

the surveyors left the room to ascertain whether anything had

occurred that she needed to address. Ms. Joseph told Ms.

Nicotra what had happened. Ms. Nico tra asked R - 10 for

permission to examine her body and R - 10 assented.

34. Ms. Nicotra removed R - 10's adult brief and inspected

R - 10's buttocks. She observed no creasing or redness of the

perineum or the buttocks. R - 10's skin was intact and no

different than Ms. Nicotra had seen it on other occasions. R - 10

told Ms. Nicotra that she was not experiencing pain or

discomfort in her buttocks area.

35. Ms. Nicotra stated that R - 10 weighed about 180 pounds,

and that the creasing and redness observed by the s urveyors

could have been caused by the pressure of sitting in her

wheelchair for a long time.

36. Ms. Nicotra examined the adult brief that had been

removed from R - 10. She observed that it was slightly damp,

which she attributed to sweat, and that it c ontained a smear of

bowel movement. It did not smell strongly of urine.

37. Viewing the evidence in its entirety, and crediting

the honesty of the testimony of each witness, it is found that

AHCA failed to prove the elements of Tag F224 by a preponderan ce

of the evidence. Ms. Ashworth did not observe R - 10 being

toileted. However, Ms. Ashworth's observation does not

establish that R - 10 required toileting or that the facility was

negligent in not toileting the resident. After the first

meeting on Octobe r 15, Ms. Ashworth did not ask R - 10 whether she

needed to be toileted. Ms. Joseph inquired as to R - 10's

toileting needs every two hours. R - 10 was able to make her

needs known to facility staff, and she did so on a daily basis.

If her call bell was out o f reach, she would call out to staff.

Ms. Joseph's testimony that the adult brief was dry of urine and

contained only a slight amount of fecal material is supported by

that of Ms. Nicotra, the only other witness who actually handled

the adult brief, and i s therefore credited.

38. The only harm alleged by AHCA was the irritation to R -

10's bottom, claimed to be the result of R - 10's sitting in a

soiled adult brief for an extended period of time. The

surveyors' testimony that R - 10's perineum, buttocks, an d left

groin were creased and red at the time of changing is credited.

Also credited, however, is Ms. Nicotra's testimony that R - 10's

perineum, buttocks and left groin were no longer creased or red

a few minutes after the changing. Ms. Nicotra's testimon y

indicates that the creasing and redness were caused, not by

irritation from urine and/or feces in the adult brief, but by an

extended period of sitting in her wheelchair. The evidence

indicates no neglect of R - 10, and that R - 10 suffered no harm

during t he sequence of events described in the Form 2567.

II. Tag F325

39. The survey allegedly found a violation of 42 C.F.R.

Section 483.25(i)(1), which states:

(i) Nutrition. Based on a resident's

comprehensive assessment, the facility must

ensure that a r esident --

(1) 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....

This requirement is referenced on Form 2567 as "Tag F325."

40. The survey found one instance in which Healthpark

allegedly failed to ensure that a resident maintained acceptable

parameters of nutritional status. The surveyor's observation on

Form 2567 concerned Resident 17, or "R - 17":

Based on record review and staff (Unit

Manager and Registered Dietician)

interviews, the facility failed to

adequately assess and revise the care plan

to address the significant weight loss of 1

(Resident #17) of 15 from a sample of 21

residents reviewed for nutritional concerns.

T his is evidenced by: 1) After Resident #17

had a significant weight loss of 6.8% in 4

weeks, the facility did not have an adequate

nutritional assessment and did not revise

the care plan to prevent the resident from

further weight loss.

The findings incl ude:

1. Resident #17 was admitted to the

facility on 9/6/01 with diagnoses that

include Sepsis, S/P Incision and Drainage

(I&D) of the Right Knee and GI Bleed. The

resident has a history of Coronary Artery

Disease (CAD). During the clinical record

revi ew, it revealed [sic] that the

resident's physician ordered Ancef

(antibiotic) 2 grams every 8 hours on

9/6/01, to be given for 25 days.

During the review of the resident's initial

MDS (Minimum Data Set) completed on 9/19/01,

it revealed [sic] he weighed 185 lbs

(pounds) and is 72 inches tall. Review of

the MDS also revealed the resident is

independent with his cognitive skills for

daily decision making. Further review of

the MDS also revealed he requires set up and

supervision during meals. He requires

extensive assistance with dressing, bathing,

and ambulation.

Review of the nutritional assessment

revealed the RD assessed the resident on

9/10/01. The assessment stated, "Resident

has decreased appetite which may be R/T

(related to) current meds (medic ations);

Resident's wife feels he has lost wt

(weight) but wt is increased due to edema in

feet. Resident's current diet meets

assessed needs. Will include food

preferences to increase intake." Under

"Ethnic/Religious Food Preferences" it

stated, "No cu ltural preferences stated."

The nutritional assessment completed by the

RD on 9/10/01, stated that the resident

weighs 185 lbs. His UBW (usual body weight)

is 182 lbs.

During an interview with the Unit Manager

and Registered Dietician (RD) on 10/18/01 a t

approximately 11:00 AM, they stated that the

resident's weight of 185 lbs., which is

documented in the initial MDS, was

inaccurate. The resident's accurate weight

on admission was 175 lbs.

During the review of the weight record, it

revealed [sic] the r esident remained 175

lbs. on 9/11/01. On 9/18/01, the resident

weighed 168 lbs., indicating a weight loss

of 7 lbs. in 7 days.

During the review of the Resident Assessment

Protocol (RAP) completed on 9/19/01, it

revealed [sic] she [sic] triggered for

"N utritional Status." The care plan

developed on 9/19/01 stated, "Res.

(resident) leaves 25% or more of food

uneaten at most meals. Weight: 168 lbs; UBW

(usual body weight) 182 lbs." The goal

stated, "Res will maintain weight up or down

within 1 - 2 lbs. th rough next quarter:

10/17/01." The following approaches are

listed:

- "Diet as ordered."

- "Encourage fluids."

- "Monitor weights."

- "Food preferences and substitute for

uneaten foods."

- "Assist with tray set - ups, open all

packages."

Review of the phys ician's order dated

9/18/01 revealed the resident was started on

TwoCal HN (supplements) 60cc's four times a

day, ice cream everyday [sic] at 8:00 P.M.,

fruit everyday [sic] at 10:00 A.M. and

peanut butter, cracker, and juice everyday

[sic] at 2:00 P.M. D uring the review of the

Medication Administration Record (MAR) for

the months of 9/01 and 10/01, it confirmed

[sic] that this additional supplements were

given to the resident, however there is no

documentation to indicate the resident's

consumption of eac h supplement.

Interview with the Unit Manager on 10/18/01

at approximately 11:15 A.M. also confirmed

there is no documentation in the clinical

record to indicate the resident's

consumption of each snack.

Review of the CNA (Certified Nursing

Assistant) Ca re Plan for the month of 9/01

revealed no documentation being offered at

bedtime and no documentation for the month

of 10/01 that the resident received bedtime

snacks.

Further review of the resident's weight

record revealed the resident weighed 163 lbs

on 10/2/01. This indicates a significant

weight loss of 12 lbs or 6.8 percent of his

total body weight in 4 weeks. Review of the

nurses' notes revealed that this significant

weight loss had been identified on 9/26/01,

20 days after the resident's admission to

the facility. The nurse's notes dated

9/26/01 stated that the care plan to address

the risk for weight loss was reviewed.

Review of the care plan confirmed it was

reviewed on 9/26/01 and 10/6/01. The goal

stated, "Will lose no more weight, 11/6/01."

Added to approaches stated, "Nutritional

supplements as ordered." However, further

review of the clinical record and the care

plan revealed no documentation to indicate

that a comprehensive nutritional assessment

was done. There is no documentation in the

resident's clinical record to indicate that

the care plan was revised.

During an interview with the Unit Manager on

10/18/01 at approximately 2:15 P.M., she

confirmed that after the resident's

admission to the facility on 9/6/01, the

resident was refu sing to eat, but his

appetite improved in the beginning of 10/01.

He was consuming 75 percent - 100 percent of

his meals. She also stated that the

resident had "pedal (foot and ankle) edema"

on admission to the facility. There is no

documentation in the r esident's clinical

record to indicate that this edema was

monitored. There is no documentation in the

clinical record that the resident was on a

diuretic. She further stated that the final

report on the blood culture done on the

resident, dated 10/1/01, was positive for

Candida sp (yeast infection).

During the review of the clinical record, it

did not have [sic] documentation to indicate

that an assessment of the resident's protein

intake was assessed at this time. There is

no documentation in the resid ent's clinical

record to indicate that the resident's

albumin and protein levels were assessed.

During an interview with the Unit Manager on

10/18/01, at approximately 2:15 P.M., she

stated that the resident's family members

were encouraged to visit more often and

encourage to bring foods that he likes. She

stated that the resident liked Italian food.

This is in contrary to [sic] the RD's

nutritional assessment completed on 9/10/01.

She also stated that the facility staff

continued to honor resident's f ood

preferences and provided alternatives.

There is no documentation in the resident's

clinical record to indicate that an

assessment of the resident's nutritional

status, based on his current weight of 163

lbs. and current food intake was done.

Further review of the resident's weight

record revealed he weighed 158 lbs. on

10/9/01. This reveals a weight loss of 5

more lbs. in 12 days. During the interview

on 10/18/01 at approximately 2:15 P.M., she

did not have an explanation why the resident

continued to lose weight despite an

improvement in his appetite.

41. Maria Donohue was the survey team member who recorded

the observation of R - 17. This resident was initially assigned

to Ms. Ashworth, who briefly assessed R - 17 in his room and

commenced a revie w of his medical records. Ms. Ashworth noted

R - 17's weight loss and that his situation required further

investigation. Because Ms. Ashworth was busy with her

observations of R - 10, the survey team shifted responsibility for

R - 17 to Ms. Donohue. Ms. Donoh ue based her findings on a review

of the resident's medical records and interviews with Healthpark

staff. She did not speak to or observe R - 17. She did not

interview R - 17's physician, and could not recall speaking to R -

17's family.

42. R - 17 was an 84 - year - old male with a history of

coronary artery disease who was admitted to Healthpark from a

hospital. About a year and a half before his admission to

Healthpark, R - 17 had a total knee replacement. He was admitted

to the hospital because of a fever . A medical work - up revealed

that he was septic, with infection throughout his body. The

infection stemmed from his knee, and an incision and drainage

was performed.

43. The infection was severe, requiring the parenteral

administration of the cephalo sporin Ancef for a period of 25

days, beginning September 6, 2001. Anorexia is a known adverse

reaction to Ancef. Upon admission to Healthpark, R - 17 was

experiencing pain that was controlled by Percocet, an analgesic

with the potential to affect appetite . R - 17 was prescribed

Zanaflex, a muscle relaxant that can affect appetite. R - 17 was

also diagnosed as prone to constipation and took laxatives.

44. R - 17 also had swelling in his feet and ankles that

caused discomfort when he walked. On September 9, a n attending

nurse documented edema from his ankles to his feet. On

September 10, R - 17's physician prescribed T.E.D. hose

(compressive stockings) for the edema. R - 17 refused to wear

them. On the same date, R - 17's pain increased and his physician

ordered a low - dosage Duragesic patch in addition to his other

medications. The dosage was increased on September 12, when his

pain became so severe that he was screaming out and having

spasms.

45. By September 13, R - 17's spasms were abating. On

September 14, t he pain had lessened and he was able to move

about, though he continued to voice complaints about the pain.

On September 18, R - 17 was weighed and it was noted that he had

lost seven pounds in the week since his admission. This weight

loss was attributed to his pain and the combination of drugs R -

17 was taking, as well as some subsidence of the edema.

46. Healthpark's nursing staff reported the weight loss to

R - 17's physician, who ordered the snacks and the TwoCal protein

drinks described in Ms. Donohoe' s observation. The physician

visited on September 24 because R - 17's pain level had increased

and he was again experiencing constipation. The physician

ordered blood cultures and Methotrexate for his pain.

47. The physician was making continued effort s to

determine the cause of R - 17's pain. After the blood cultures

were performed, R - 17 was referred to a rheumotologist. The

blood cultures revealed the presence of another organism in

R - 17's system besides that being treated with Ancef. On

Octobe r 2, R - 17 was also seen by an infectious disease

specialist.

48. R - 17's condition improved for about a week. By

October 10, the physician was preparing to order his discharge

from Healthpark. However, in the early morning hours of

October 11, R - 17 b ecame confused, incontinent, and had greatly

increased pain. His physician ordered new lab work, including a

total protein array and electrolyte tests. The record shows

that on October 12, R - 17 was screaming out in pain and his

appetite, which had shown some improvement in early October, was

very poor.

49. Though R - 17's condition and appetite showed some

improvement over the next few days, on October 16 his physician

decided to admit him to a hospital to determine the cause of

R - 17's weight loss and why his pain could not be controlled.

50. Ms. Donohue explained the protocol followed by AHCA

surveyors assessing a resident's nutritional status. First, the

surveyor determines whether the resident has been assessed

comprehensively, adequately, and accurately. If the assessment

found that the resident was at risk for nutritional problems,

then the facility must determine the interventions necessary to

prevent the problems.

51. The surveyor next assesses how the facility

implemented the intervent ions. If the interventions do not

work, the facility must show that it has re - evaluated the

interventions and reassessed the resident to determine why the

interventions failed. The facility must demonstrate that it has

looked at all relevant factors, inc luding intake of food and

supplements and the resident's underlying medical condition.

This re - evaluation and reassessment should lead to revisions in

the interventions.

52. The essential allegation under Tag F325 was that

Healthpark failed to make a nutritional reassessment after

finding that R - 17 experienced a significant weight loss over a

period of four weeks.

53. Ms. Donohue's testimony at the hearing essentially

confirmed her observation on the Form 2567, quoted above. R - 17

was weighed weekly, and his weight record confirmed that between

September 11, 2001 and October 9, 2001, R - 17's weight dropped

from 175 to 158 pounds.

54. Lori Riddle, AHCA's expert in dietetics and nutrition,

was also involved in the decision to cite R - 17's treatment as a

deficiency. Her review of the records led her to conclude that

Healthpark was aware of R - 17's weight loss and put in place

approaches to counter that weight loss, but that these

approaches were not well planned. Healthpark did not adequately

monitor R - 17's nutritional intake, such that the record

indicated amount of food that was offered but not how much R - 17

actually consumed.

55. Ms. Riddle found that Healthpark's approaches were

"fairly generic." Healthpark added snacks and nutritional

supplemen ts to R - 17's diet, but did not indicate in its written

care plan whether or how these would meet R - 17's nutritional

needs. After the initial nutritional assessment on September

10, Healthpark did not formally reassess R - 17's caloric needs,

even after he b egan losing weight. Ms. Riddle saw indications

in the record that Healthpark recognized the weight loss and

stated a goal of maintaining R - 17's weight, but saw no

recalculation of how many calories would be needed to maintain

his weight.

56. Alexandria Antoni was the registered dietician at

Healthpark and an expert in the field of nutrition. Ms. Antoni

performed the initial nutritional assessment of R - 17 and

monitored his status throughout the relevant period. She

testified as to her relationship with R - 17 and her efforts to

maintain his food intake. R - 17 was very alert and oriented, but

had adjustment problems because he had always been an

independent, relatively healthy person and had never been in a

facility like Healthpark. As a result, R - 17 was n ot receptive

to staff's offering food. He did not want to be in the facility

at all and resented being bothered by staff.

57. Ms. Antoni noted that R - 17 was in much pain and had a

hard time dealing with it. The pain affected his ability to sit

up or be mobile, and he was on many medications for his pain and

infection, any or all of which could have affected his appetite.

On her initial visit, Ms. Antoni brought R - 17 a copy of the

Healthpark menu and reviewed it with him and his family.

Ms. Antoni credibly testified that R - 17 stated no ethnic food

preferences at this initial meeting, though he did tell her that

he liked soup at lunch, prune juice in the morning, and a banana

on his breakfast tray.

58. Ms. Antoni's initial strategy was to increas e R - 17's

intake by offering foods he liked to eat. His family was there

with him every day, and she encouraged them to bring in foods

that R - 17 liked. Ms. Antoni saw R - 17 daily. He would wait for

her in the hallway and ask her to come in and tell him wh at was

on the menu. R - 17 would often directly phone the kitchen staff

to discuss his meal preferences.

59. Ms. Antoni disagreed that R - 17's caloric needs were

not properly documented. In her initial nutritional assessment,

she calculated his caloric ne eds, based on his height, weight

and medical condition, at 1,900 to 2,300 calories per day. She

relied on the nursing admission assessment, which listed R - 17's

weight at 185 pounds, rather than his accurate weight of 175

pounds.

60. Thus, Ms. Antoni's calculation resulted in R - 17's

getting more calories than his actual weight would have

indicated. In her later approaches to R - 17's situation, Ms.

Antoni kept in mind that R - 17 was already being offered more

calories than his weight required. She opined that i f R - 17 had

consumed what she calculated, his nutritional needs would have

been met and he should not have lost weight.

61. Ms. Antoni could not say why R - 17 was losing weight.

For the most part, he was eating 75 percent of his meals, which

provi ded between 1,800 and 2,000 calories per day. The TwoCal

supplement and the snacks ordered by the physician provided an

additional 1,000 calories per day, providing a total well in

excess of the 1,900 to 2,300 calorie range calculated by

Ms. Antoni.

62. Healthpark staff, including Ms. Antoni and R - 17's

physician, held meetings every week to discuss the residents'

weight status. At each of these weight meetings, Ms. Antoni

brought up the subject of R - 17's weight loss with his doctor.

63. Ms. Anto ni disagreed with AHCA's conclusion that no

reassessment was performed. She contended that reassessment

occurred at the weekly weight meetings. She followed R - 17's

caloric intake daily. She could think of nothing else she could

have done to increase R - 1 7's weight. Any further action, such

as ordering further laboratory tests or a feeding tube, would

have required a physician's order.

64. Carol Morris, an RN, was Medicare clinical coordinator

at Healthpark and an expert in geriatric nursing. She concur red

that the diet ordered for R - 17 was adequate to meet his needs.

He was cognitively aware, responsive, and could not be forced to

eat. Ms. Morris confirmed that Healthpark staff tried to

encourage R - 17 to eat. The staff gave nutritional advice to

R - 17's family members so that they could assist in offering him

foods that might help his appetite.

65. Ms. Morris noted that pain can be a factor in weight

loss. She also observed that the edema would have added to his

weight on admission, and its resolu tion would naturally cause

some weight loss. Resolution of his constipation also could

have affected his weight. Healthpark staff considered all these

factors in care planning to deal with R - 17's weight loss. Staff

communicated with R - 17's physician and with his family on a

daily basis. The nursing staff was following doctor's orders,

and expected to see R - 17's weight stabilize at some point.

66. Ms. Morris testified that Healthpark's assessment of

R - 17's weight loss took into account his edema, consti pation,

adjustment to the facility, disease process, and the amount he

was eating. She did not think there was anything else

Healthpark could have done, given that R - 17's physician was also

perplexed as to why he was losing weight.

67. Ms. Morris attribu ted the AHCA citation for failure to

document R - 17's caloric intake to a simple failure to understand

Healthpark's method of charting. The nurses did not explicitly

note the amount eaten by R - 17 at every meal or snack. The

nurse's initials indicated that R - 17 ate 100 percent of the meal

or snack. An amount was noted only when R - 17 ate less than 100

percent of the food offered. If R - 17 declined a meal or snack,

it was noted and his physician was informed.

68. Ms. Morris testified that R - 17's preference for

Italian food came up in a conversation with his family, after

the nutritional assessment was done. When Healthpark staff saw

that R - 17 was losing weight, they to the family about what he

might like to eat.

69. Viewing the evidence in its entirety, it is found that

AHCA failed to prove the elements of Tag F325 by a preponderance

of the evidence. It is unquestioned that R - 17 lost a

significant amount of weight during the four weeks from

September 11, 2001, to October 9, 2001. However, the evidence

doe s not demonstrate that R - 17's weight loss was caused by

Healthpark's failure to provide adequate nutrition. To the

contrary, the record indicates that R - 17 was provided more than

enough calories through meals to maintain his weight, and that

supplements w ere ordered by his physician when he began to lose

weight. While R - 17's appetite was diminished, he continued to

consume 75 percent of his meals on average and to take the

snacks and TwoCal supplement. Healthpark's staff and R - 17's

physician were perplex ed as to the reasons for his weight loss,

with the physician ultimately ordering R - 17 admitted to a

hospital for further testing as to both his persistent pain and

his weight loss.

70. AHCA correctly noted that Healthpark failed to perform

a nutritional r eassessment of R - 17, but the evidence indicates

that such a reassessment would merely have constituted a written

rendition of the actions the facility was taking. Healthpark

was fully aware of R - 17's weight loss and reacted in a

reasonable manner. Staff encouraged R - 17 to eat by offering him

dietary options and enlisting the aid of his family.

71. AHCA criticized Healthpark for failure to perform

follow - up laboratory tests or to consider a feeding tube for

R - 17. However, only R - 17's physician could have ordered

laboratory tests or a feeding tube. The record makes it

apparent the physician was concerned with the weight loss, but

that his primary concern was R - 17's multiple infections and his

unexplained and intractable pain.

72. R - 17's edema subsi ded during his stay at Healthpark,

which could account for some weight loss. His constipation was

resolved to some extent, which could also have had some effect

on his weight. R - 17 was taking multiple medications, including

powerful antibiotics and analg esics, that could affect his

appetite. R - 17 was having emotional difficulty adjusting to the

facility and to his physical condition. Finally, R - 17 was

cognitively alert and within his rights simply to refuse to eat.

Aside from the weight loss itself, R - 1 7 showed no indications of

a lack of proper nutrition. Healthpark took all these factors

into account in its treatment of R - 17. A formal nutritional

reassessment would have had no substantive effect on R - 17's

treatment. At most, Healthpark failed adequa tely to document

the steps it took in caring for R - 17 and addressing his weight

loss.

CONCLUSIONS OF LAW

73. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this

proceeding pursuant to Sections 120.569 an d 120.57(1), Florida

Statutes.

74. AHCA is authorized to license nursing home facilities

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

Florida Statutes, is required to evaluate nursing home

facilities and assign ratings. Section 400.23(7 ), Florida

Statutes, requires AHCA to "at least every 15 months, evaluate

all nursing home facilities and make a determination as to the

degree of compliance." AHCA's evaluation must be based on the

most recent inspection report, taking into consideration

findings from official reports, surveys, interviews,

investigations, and inspections. AHCA must assign either a

standard or conditional rating to each facility after it surveys

the facility. Section 400.23(7), Florida Statutes.

75. The Agency has the burden to establish the allegations

that would warrant the imposition of a conditional license.

Beverly Enterprises - 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 Jacaranda Manor’s

license. Florida Department of Transportation v. J.W.C.

Company, Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981); Balino v.

Department of Health and Rehabilitative Services , 348 So . 2d 349

(Fla. 1st DCA 1977).

76. As to the allegations of the Administrative Complaint,

the standard of proof for imposition of an administrative fine

is clear and convincing evidence. Department of Banking and

Finance v. Osborne Stern and Co. , 670 S o. 2d 932, 935 (Fla.

1996).

77. Section 400.23, Florida Statutes, provides in

pertinent part:

(7) The agency shall, at least every 15

months, evaluate all nursing home facilities

and make a determination as to the degree of

compliance by each lice nsee with the

established rules adopted under this part as

a basis for assigning a licensure status to

that facility. The 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 conditional 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.

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

Class II deficiency as:

a deficiency that the agen cy 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

deficiency, and $7,500 for a widespread

deficiency. The fine amount shall be

doubled for each deficiency if the facility

was previously cit ed for one or more class I

or class II deficiencies during the last

annual inspection or any inspection or

complaint investigation since the last

annual inspection. A fine shall be levied

notwithstanding the correction of the

deficiency.

79. The Octobe r 2001 survey of Healthpark included

deficiencies identified as Tag F224 (violation of 42 C.F.R.

Section 483.13(c)(1)(i), relating to neglect of residents) and

Tag F325 (violation of 42 C.F.R. Section 483.25(i)(l), relating

to maintenance of acceptable par ameters of nutritional status).

These deficiencies were identified as Class II and thus

subjected the facility to conditional licensure. Because the

deficiencies were isolated, the agency seeks to impose a $2,500

fine for each of them.

80. The preponder ance of the evidence failed to establish

that either of the cited deficiencies occurred. As to Tag F224,

the evidence was ambiguous, largely because the surveyor stood

200 feet away from the resident for most of her observation on

the key date of October 16. She could not be certain the

Healthpark staff ignored the resident, though she implied such

in her findings. The surveyor failed to take the simple step of

asking the resident whether she needed toileting or whether

staff was ignoring her requests. The evidence failed to

demonstrate that the creasing or redness on the resident's

buttocks, perineum, and left groin were caused by the facility's

failure to toilet the resident.

81. As to Tag F325, the evidence presented at hearing

failed to establish t hat the resident's weight loss was not

fully addressed by the facility. While Healthpark's

documentation could have been clearer and more complete, the

evidence established that the actual care provided met the

standard of maintaining the resident's nut ritional status.

82. The burden of proof on AHCA as to the phase of the

proceeding involving the Administrative Complaint was to

demonstrate the truthfulness of the allegations in the complaint

by clear and convincing evidence. Osborne Stern ; Ferris v.

Turlington , 510 So. 2d 292 (Fla. 1987).

83. The "clear and convincing" standard requires:

[T]hat the evidence must be found to be

credible; the facts to which the witnesses

testify must be distinctly remembered; the

testimony must be precise and explicit and

the witnesses must be lacking in confusion

as to the facts in issue. The evidence must

be of such weight that it produces in the

mind of the trier of fact a firm belief or

conviction, without hesitancy, as to the

truth of the allegations sought to be

established.

Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

84. Given the conclusion that the Agency failed to

establish either of the deficiencies alleged in the October 2001

survey by a preponderance of the evidence, it must follow tha t

the more exacting standard of clear and convincing evidence has

not been met.

RECOMMENDATION

Upon the foregoing Findings of Fact and Conclusions of Law,

it is recommended that the Agency for Health Care Administration

enter a final order dismissing the Administrative Complaint in

DOAH Case No. 02 - 1788, and rescinding the notice of intent to

assign conditional licensure status to Healthpark Care Center in

Doah Case No. 02 - 0033 and reinstating the facility's standard

licensure status.

DONE AND ENTERED thi s 6th day of September, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

LAWRENCE P. STEVENSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 3239 9 - 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 6th day of September, 2002.

COPIES FURNISHED :

Lealand McCharen, Agency Clerk

Agency for Health c are Administration

2727 Mahan Drive

Fort Knox Building, Suite 3431

Tallahassee, Florida 32308

William Roberts, Acting General Counsel

Agency for Health Care Administration

2727 Mahan Drive

Fort Knox Building, Suite 3431

Tallahassee, Florida 32308

Karen L. Goldsmith, Esquire

Goldsmith, Grout & Lewis, P.A.

2180 North Park Avenue, Suite 100

Post Office Box 2011

Winter Park, Florida 32790 - 2011

Jodie C. Page, Esquire

Agency for Health Care Administration

2727 Mahan Drive, Mail Station 3

Tallahassee, Florid a 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 f inal order in this case.