02-003254 Agency For Health Care Administration vs. Avante At Leesburg, Inc., D/B/A Avante At Leesburg Status: Closed Recommended Order on Friday, December 13, 2002.

Summary: Agency did not meet its burden of proof in that it did not prove that a Class III deficiency was not corrected within the time frame established by the agency. Recommend dismissal of Administrative Complaint.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) Case Nos. 02 - 3254

) 02 - 3255

AVANTE AT LEESBURG, INC., )

d/b/a AVANTE AT LEESBURG, )

)

Respondent. )

_____________________ _____________)

RECOMMENDED ORDER

A hearing was held pursuant to notice on October 23, 2002,

by Barbara J. Staros, assigned Administrative Law Judge of the

Division of Administrative Hearings, in Leesburg, Flo rida.

APPEARANCES

For Petitioner: Jodi C. Page, Esquire

Agency for Health Care Administration

2727 Mahan Drive

Mail Station 3

Tallahassee, Florida 32308

For Respondent: Karen L. Goldsmith, Esquire

Jonathan S. Grout, Esquire

Goldsmith, Grout & Lewis

2180 North Park Avenue, Suite 100

Winter Park, Florida 32790 - 2011

S TATEMENT OF THE ISSUE

Whether Respondent committed the violations alleged in the

Administrative Complaints and, if so, what penalty should be

imposed.

PRELIMINARY STATEMENT

The Agency for Health Care Administration (AHCA) filed an

Administrative Complain t on July 12, 2002, for the imposition of

an administrative fine alleging an uncorrected Class III

deficiency. Specifically, the Administrative Complaint alleged

that Respondent failed to meet professional standards of quality

by its failure to properly f ollow and implement physician

orders. Avante at Leesburg, Inc. (Avante) requested a formal

administrative hearing, and AHCA forwarded the case to the

Division of Administrative Hearings on or about August 19, 2002.

AHCA filed a second Administrative Compl aint against Avante

on July 12, 2002. The second Administrative Complaint again

alleges an uncorrected Class III deficiency and seeks to assign

a conditional license. Specifically, the second Administrative

Complaint alleges that Avante was not in substa ntial compliance

with applicable laws and rules by failing to meet professional

standards of quality by its failure to properly follow and

implement physician orders. Avante requested a formal

administrative hearing and the case was forwarded to the

Divis ion of Administrative Hearings on or about August 19, 2002.

Respondent filed a Motion to Consolidate which was granted,

consolidating Case Nos. 02 - 3254 and 02 - 3255. A hearing was

scheduled for October 23, 2002, in Leesburg, Florida.

At hearing, Petitioner presented the testimony of two

witnesses, Stephen Burgin and Selena Beckett. Petitioner's

Exhibits numbered 1 through 10, 14 and 15 were admitted into

evidence. Respondent presented the testimony of Nancy Strake,

Theresa Miller, Vicki Cannon, and Alice Markhan. Respondent's

composite Exhibit numbered 1 was admitted into evidence.

A Transcript, consisting of one volume, was filed on

November 4, 2002. The parties requested more than ten days

after the filing of the Transcript in which to file proposed

recommended orders. That request was granted. The parties

timely filed Proposed Recommended Orders which have been

considered in the preparation of this recommended order.

FINDINGS OF FACT

Stipulated facts

1. AHCA is the agency responsible for the lic ensing and

regulation of skilled nursing facilities in Florida pursuant to

Chapter 400, Part II, Florida Statutes, and Chapter 59A - 4,

Florida Administrative Code.

2. At all times material hereto, Avante was licensed by

Petitioner as a skilled nursing faci lity. Avante operates a

116 - bed nursing home located in Leesburg, Florida.

3. On or about March 28, 2002, AHCA conducted a complaint

investigation at Avante.

4. Based on AHCA's findings during the March 28, 2002,

complaint investigation, federal tag F 281(D) was cited against

Avante.

5. On or about May 13, 2002, AHCA conducted a survey at

Avante.

6. Based on AHCA's findings during the May 13, 2002,

survey, federal tag F281(D) was cited against Avante.

7. Resident E.S. was admitted to Avante on March 11, 2002,

with diagnoses including e. coli sepsis, anemia, and

schizophrenia with an order for serum albumin levels to be

performed "now and yearly."

8. Resident E.S.'s resident chart failed to reflect that a

serum albumin test had been performed for Resi dent E.S. at any

time from the date of his admission on March 11, 2002, until

March 28, 2002. Avante failed to follow the orders of Resident

E.S.'s physician due to its failure to perform a serum albumin

test on Resident E.S. at any time between March 11, 2002, and

March 28, 2002.

9. Resident R.L. was admitted to Respondent's facility on

May 6, 2002 with diagnoses including gastrointestinal

hemorrhage, congestive heart failure, coronary artery disease,

A - fib, pneumonia, diverticulitis, gout, fracture of r ight arm,

and cancer of the prostate.

10. Resident R.L.'s resident chart reflects that Resident

R.L. was neither offered or administered Tylenol by Avante's

staff at any time between May 9, 2002, and May 13, 2002.

Facts Based Upon the Evidence of Record

11. The correction date given to Respondent for the

deficiency cited, Tag F281(D), as a result of the March 28,

2002, complaint investigation was April 28, 2002.

12. Respondent does not dispute the deficiency cited by

AHCA as a result of the March 28, 2 002, complaint investigation.

Thus, facts and circumstances surrounding the May 13, 2002,

survey visit to Avante is the source of this dispute.

13. The purpose of the May 13, 2002 survey visit to Avante

by AHCA was for annual certification or licensure. In an annual

license survey, a group of surveyors goes to a facility to

determine if the facility is in compliance with state and

federal requirements and regulations. Part of the process is to

tour the facility, meet residents, record reviews, and talk to

families and friends of the residents. During the licensure

visit on May 13, 2002, the records of 21 residents were

reviewed.

14. Stephen Burgin is a registered nurse and is employed

by AHCA as a registered nurse specialist. He has been employed

by A HCA for three years and has been licensed as a nurse for six

years. He also has experience working in a hospital ER staging

unit and in a hospital cardiology unit. Nurse Burgin has never

worked in a nursing home. Nurse Burgin conducted the complaint

inv estigation on March 28, 2002, and was team leader for the

licensure survey visit on May 13, 2002, at Avante. He was

accompanied on the May 13, 2002, visit by Selena Beckett, who is

employed by AHCA as a social worker. Both Nurse Burgin and

Ms. Beckett ar e Surveyor Minimum Qualification Test (SMQT)

certified.

15. During the course of the May 13, 2002, licensure

survey visit, Ms. Beckett interviewed Resident R.L. As a result

of this interview, Ms. Beckett examined Resident R.L.'s

medication administration record (MAR) to determine whether he

was receiving pain medication for his injured left elbow.

16. As a result of reviewing Resident R.L.'s record,

Ms. Beckett became aware of a fax cover sheet which related to

Resident R.L. The fax cover sheet was da ted May 8, 2002, from

Nancy Starke, who is a registered nurse employed by Avante as a

staff nurse, to Dr. Sarmiento, Resident R.L.'s attending

physician. The box labeled "Please comment" was checked and the

following was hand written in the section entitl ed "comments":

"Pt refused Augmentin 500 mg BID today states it causes him to

have hallucinations would like tyl for pain L elbow."

17. According to Nurse Starke, the fax to Dr. Sarmiento

addressed two concerns: Resident R.L.'s refusal to take

Augmenti n and a request for Tylenol for pain for Resident R.L.'s

left elbow. She faxed the cover sheet to Dr. Sarmiento during

the 3:00 p.m. to 11:00 p.m. shift on May 8, 2002. Despite her

fax to Dr. Sarmiento, which mentioned pain in R.L.'s left elbow,

her dail y nurse notes for May 8, 2002, reflect that Resident

R.L. was alert, easygoing, and happy. He was verbal on that day

meaning that he was able to make his needs known to her. Her

daily nurse notes for May 8, 2002 contain the notation: "Pt

refused augment in today. Dr. Sarmiento faxed." According to

Nurse Starke, she personally observed Resident R.L. and did not

observe any expression of pain on May 8, 2002, nor did Resident

R.L. request pain medication after she sent the fax to

Dr. Sarmiento.

18. The fa x cover sheet also contained the hand written

notation: "Document refused by PT. OK 5/9/02" with initials

which was recognized by nurses at Avante as that of

Dr. Sarmiento. The fax sheet has a transmission line which

indicates that it was faxed back to A vante the evening of May 9,

2002.

19. Nurse Starke also provided care to Resident R.L. on

May 11, 2002. According to Nurse Starke, Resident R.L. did not

complain of pain on May 11, 2002.

20. Theresa Miller is a registered nurse employed by

Avante as a staff nurse. Nurse Miller provided care to Resident

R.L. on May 9 and 10, 2002, during the 7:00 a.m. to 3:00 p.m.

shift. Nurse Miller's nurses notes for May 9 and 10, 2002,

reflect that she observed Resident R.L. to be alert, easygoing,

and happy. Her notes also reflect that Resident R.L. was verbal

on those dates, meaning that he was able to tell her if he

needed anything. She did not observe Resident R.L. to have any

expression of pain on those dates, nor did Resident R.L. express

to her that he was in any pain.

21. Vicki Cannon is a licensed practical nurse employed by

Avante as a staff nurse. Nurse Cannon has been a licensed

practical nurse and has worked in nursing homes since 1998.

Nurse Cannon provided care to Resident R.L. on May 11 and 12 ,

2002, on the 7:00 a.m. to 3:00 p.m. shift. Her nurse's notes

for May 11, 2002 reflect that Resident R.L. was sullen but alert

and verbal. Resident R.L. had blood in his urine and some

discomfort. Nurse Cannon contacted Dr. Sarmiento by telephone

on Ma y 11, 2002, to inform him of Resident R.L.'s symptoms that

day. Nurse Cannon noted on Resident R.L.'s physician order

sheet that she received a telephone order from Dr. Sarmiento to

give Resident R.L. Ultram PRN and Levaquin, discontinue

Augmentin, order BMP and CBC blood work, and a urology consult.

Ultram is an anti - inflammatory and a pain medication. Ultram is

stronger than Tylenol. The notation "PRN" means as requested by

the patient for pain. Levaquin is an antibiotic.

22. Nurse Cannon faxed the order to the pharmacy at

Leesburg Regional Medical Center. By the time Nurse Cannon left

Avante for the day on May 11, 2002, the Ultram had not arrived

from the pharmacy.

23. On May 12, 2002, Resident R.L. had edema of the legs

and blood in his urine. Nurse Cannon notified Dr. Sarmiento of

Resident R.L.'s symptoms. Resident R.L. was sent to the

emergency room for evaluation based on Dr. Sarmiento's orders.

Additionally, Nurse Cannon called the pharmacy on May 12, 2002,

to inquire about the Ultram as it had not yet arrived at the

facility. Resident R.L. returned to Avante the evening of

May 12, 2002.

24. Alice Markham is a registered nurse and is the

Director of Nursing at Avante. She has been a nurse for more

than 20 years and has been employed at Avante for a little over

two years. She also has worked in acute care at a hospital.

Nurse Markham is familiar with Resident R.L. She described

Resident R.L. as alert until the period of time before he went

to the hospital on May 12, 2002. She was not aware of any

expressions of pain by Resident R.L. between May 9, 2002 until

he went to the hospital on May 12, 2002. Nurse Markham meets

frequently with her nursing staff regarding the facility's

residents.

25. During the licensure survey, Nurse Markham became

aware of Ms. Beckett's concerns regarding Resident R.L. and

whether he had received Tylenol. She called Dr. Sarmiento to

request an order for Tylenol for R.L. The physician order sheet

for R.L. contains a notation for a telephone order for Tylenol

"PRN" on May 14, 2002, for joint pain and the notation, "try

Tylenol before Ultram." The medical administration record for

R.L. indicates that Resident R.L. received Ultram on May 13 and

14 and began receiving Tylenol on May 15, 2002.

26. AHCA 's charge of failure to meet professional

standards of quality by failing to properly follow and implement

physician orders is based on the "OK" notation by Dr. Sarmiento

on the above - described fax and what AHCA perceives to be

Avante's failure to follow and implem ent that "order" for

Tylenol for Resident R.L.

27. AHCA nurse and surveyor Burgin acknowledged that the

"OK" on the fax cover sheet was not an order as it did not

specify dosage or frequency. He also acknowledged that the

nursing home could not administe r Tylenol based on

Dr. Sarmiento's "OK" on the fax cover sheet, that it would not

be appropriate to forward the "OK" to the pharmacy, that it

should not have been placed on the resident's medication

administration record, and that it should not have been

a dministered to the resident. However, Nurse Burgin is of the

opinion that the standard practice of nursing is to clarify such

an "order" and once clarified, administer the medication as

ordered. He was of the opinion that Avante should have

clarified Dr. Sarmiento's "OK" for Tylenol on May 9, 2002,

rather than on May 14, 2002. Nurse Burgin also was of the

opinion that it should have been reflected on the resident's

medication administration record and treatment record or TAR.

28. In Nurse Markham's op inion, "OK" from Dr. Sarmiento on

the fax cover sheet does not constitute a physician's order for

medication as it does not contain dosage or frequency of

administration. Nurse Markham is also of the opinion that it

should not have been forwarded to the p harmacy, transcribed to

the medication administration record, or transcribed on the

treatment administration record. According to Nurse Markham,

doctor's orders are not recorded on the treatment administration

record of a resident. Nurse Markham is of th e opinion that the

nursing staff at Avante did not deviate from the community

standard for nursing in their care of Resident R.L. from May 8,

2002 to May 14, 2002.

29. Nurse Cannon also is of the opinion that the "OK" by

Dr. Sarmiento does not constitute a physician's order for

medication.

30. The Administrative Complaints cited Avante for failure

to meet professional standards of quality by failing to properly

follow and implement a physician's order. Having considered the

opinions of Nurses Burgin , Markham, and Cannon, it is clear that

the "OK" notation of Dr. Sarmiento on the fax cover sheet did

not constitute a physician's order. Without Dr. Sarmiento's

testimony, it is not entirely clear from a review of the fax

cover sheet that the "OK" relate s to the reference to Tylenol or

the reference to Resident R.L.'s refusal of Augmentin.

Accordingly, Avante did not fail to follow a physician's order

in May 2002.

31. As to AHCA's assertion that Avante failed to meet

professional standards by not clar ifying the "OK" from

Dr. Sarmiento, this constitutes a different reason or ground

than stated in the Administrative Complaints. Failure to

clarify an order is not the equivalent of failure to follow an

order. There is insufficient nexus between the defic iency cited

on March 28, 2002 and the deficiency cited on May 13, 2002.

Accordingly, Avante did not fail to correct a Class III

deficiency within the time established by the agency or commit a

repeat Class III violation.

32. Moreover, the evidence shows that the nursing staff

responded to the needs of Resident R.L. Resident R.L. expressed

pain in his left elbow to Nurse Starke on May 8, 2002.

Resident R.L. was alert and could make his needs known. He did

not express pain or a need for pain medicatio n to Nurse Miller

on May 9 or 10, 2002 or to Nurse Cannon on May 11 or 12, 2002.

Rather, Nurse Cannon noted a change in his condition, notified

Dr. Sarmiento which resulted in Resident R.L. being sent to the

emergency room. Resident R.L. returned to Avan te the evening of

May 12, 2002, and received Ultram for pain on May 13, 2002, when

the medication reached Avante from the pharmacy.

33. The evidence presented does not establish that Avante

deviated from the community standard for nursing in its actions

s urrounding the "OK" from Dr. Sarmiento. In weighing the

respective opinions of Nurses Burgin and Markham in relation to

whether the community standard for nursing was met by the

actions of Respondent, Nurse Markham's opinion is more

persuasive.

CONCLUSI ONS OF LAW

34. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter in this case.

Sections 120.569 and 120.57, Florida Statutes.

35. The Amended Administrative Complaint in Case No. 02 -

3254 seeks to i mpose a $1,000.00 administrative fine for failure

to meet professional standards of quality by its failure to

properly follow physician orders in violation of Rule 59A -

4.1288, Florida Administrative Code, and 42 CFR 483.20

(k)(3)(i). The Administrative Co mplaint specifies that this is

a Class III deficiency.

36. The Administrative Complaint in Case No. 02 - 3255 seeks

to assign a conditional licensure status to Respondent based

upon Petitioner's determination that Respondent was not in

substantial complianc e with applicable laws and rules due to

the presence of an uncorrected Class III deficiency at the

survey conducted on May 13, 2002. The Administrative Complaint

asserts that the Class III deficiency was first cited during a

complaint investigation conduc ted on March 28, 2002, and was

uncorrected at the time the survey was conducted on May 13,

2002.

37. Further, the Administrative Complaint in Case No. 02 -

3255 seeks to assess costs related to the investigation

pursuant to Section 400.121(10), Florida Statutes, in an

unspecified amount.

38. The burden of proof in this proceeding is on the

agency. Because of the proposed penalty of an administrative

fine in Case No. 02 - 3254, the agency is required to prove the

allegations against Respondent by clear an d convincing

evidence. Department of Banking and Finance v. Osborne Stern &

Co ., 670 So. 2d 932 (Fla. 1996) . In Case No. 02 - 3255, the

agency is required to prove the allegations against Respondent

by a preponderance of the evidence. Florida Department o f

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

1st DCA 1981).

39. Section 400.23(7)(b), Florida Statutes, provides that

a conditional rating means that the facility, due to the

presence of one or more Class I or Class II deficiencies, or a

Class III deficiency not corrected within the time established

by the agency, is not in compliance with established criteria.

40. Section 400.419, Florida Statutes, defines a Class III

deficiency and sets forth the parameters of any administrative

fi ne to be imposed regarding such deficiency. Section 400.419,

Florida Statutes, reads in pertinent part as follows:

400.419 Violations; administrative fines. --

(1) Each violation of this part and adopted

rules shall be classified according to the

nature of the violation and the gravity of

its probable effect on facility residents.

The agency shall indicate the classification

on the written notice of the violation as

follows:

* * *

(c) Class 'III' violations are th ose

conditions or occurrences related to the

operation and maintenance of a facility or

to the personal care of residents which the

agency determines indirectly or potentially

threaten the physical or emotional health,

safety, or security of facility resid ents,

other than class I or class II violations.

A class III violation is subject to an

administrative fine of not less then $500.00

and not exceeding $1,000.00 for each

violation. A citation for a class III

violation must specify the time within which

the violation is required to be corrected.

If a class III violation is corrected within

the time specified, no fine may be imposed,

unless it is a repeated offense.

* * *

(2) In determining if a penalty is to be

imposed and in fixing the amount of the

f ine, the agency shall consider the

following factors:

(a) The gravity of the violation, including

the probability that death or serious

physical or emotional harm to a resident

will result or has resulted, the severity of

the action or potential harm, and the extent

to which the provisions of the applicable

laws or rules were violated.

(b) Actions taken by the owner or

administrator to correct violations.

(c) Any previous violations.

(d) The financi al benefit to the facility

of committing or continuing the violation.

(e) The licensed capacity of the facility.

41. Rule 59A - 4.1288, Florida Administrative Code,

incorporates by reference certification rules a nd regulations

found in 42 CFR 483, Requirements for Long Term Care Facilities.

42. 42 CFR 483.20(k)(3)(i)(tag F281) provides, "The

services provided or arranged by the facility must meet

professional standards of quality."

43. AHCA has not met its burde n of proof in regard to the

imposition of a fine in that it failed to prove that Avante did

not correct a deficiency within the time specified or that it

committed a repeat offense of a Class III deficiency. AHCA's

assertion at hearing that Avante failed to meet professional

standards by not clarifying the "OK" from Dr. Sarmiento

constitutes a different reason or ground than stated in the

Administrative Complaints. There is insufficient nexus between

the deficiency cited on March 28, 2002, and the deficie ncy cited

on May 13, 2002. Accordingly, Avante did not fail to correct a

deficiency within the time specified and did not commit a repeat

Class III violation to support the imposition of a fine as

contemplated by Section 400.419(1)(c).

44. AHCA has not m et its burden of proof as to the

imposition of a conditional license in that it did not prove

that a Class III deficiency was not corrected within the time

frame established by the agency as contemplated by Section

400.23(7)(b), Florida Statutes.

RECOMME NDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law set forth herein, it is

RECOMMENDED:

That the Agency for Health Care Administration enter a

final order dismissing the Administrative Complaints issued

against Respondent, Avan te at Leesburg.

DONE AND ENTERED this 13th day of December, 2002, in

Tallahassee, Leon County, Florida.

BARBARA J. STAROS

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 13th day of December, 2002.

COPIES FURNISHED:

Jodi C. Page, Esquire

Agency for Health Care Administration

2727 Mahan Drive

Mail Station 3

Tallahassee, Florida 32308

Karen L. Goldsmith, Esquire

Jonathan S. Grout, Esquire

Goldsmith, Grout & Lewis

2180 Park Avenue North, Suite 100

Post Office Box 2011

Winter Park, Florida 32790 - 2011

Lealand McCharen, Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive

Fort Knox Building 3, Suite 3431

Tallahassee, Florida 32308 - 5403

Va linda Clark Christian, General Counsel

Agency for Health Care Administration

2727 Mahan Drive

Fort Knox Building 3, Suite 3431

Tallahassee, Florida 32308 - 5403

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.