02-003850 Agency For Health Care Administration vs. Genesis Eldercare National Centers, Inc., D/B/A Oakwood Center Status: Closed Recommended Order on Friday, March 21, 2003.

Summary: Agency did not meet burden of proving that skilled nursing facility failed to have due diligence taken to prevent, subsequently detect if the condition could not be prevented, and provide appropriate care and treatment for alleged condition of resident.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH )

CARE ADMINISTRATION, )

)

Petitioner, )

)

vs. ) Case Nos. 02 - 3849

) 02 - 3850

GENESIS ELDERCARE NATIONAL )

CENTERS, INC., )

d/b/a OAKWOOD CENTER, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held pursuant to notice on January 14, 2003,

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

Division of Administrative Hearings, in Leesburg, Florida.

APPEARAN CES

For Petitioner: Jodi C. Page, Esquire

Agency for Health Care Administration

2727 Mahan Drive

Mail Station 3

Tallahassee, Florida 32308

For Responden t: Alfred W. Clark, Esquire

Post Office Box 623 (32302)

117 South Gadsden Street

Tallahassee, Florida 32301

STATEMENT 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 Complaint on August 15, 2002, seeking to assign a

conditional license alleging a Class II deficiency.

Specifically, the Administrative Complaint alleged that

Respondent, Genesis Eldercare National Centers, Inc., d/b/a

Oakwood Center (Oakwood) failed to have due diligence taken to

prevent, subsequently detect if the condition could not be

p revented, and then provide appropriate care and treatment for

avoidable bilateral pressure ulcers that developed on both of a

resident's heels. Oakwood requested a formal administrative

hearing, and AHCA forwarded the case to the Division of

Administrativ e Hearings on or about October 2, 2002.

AHCA filed a second Administrative Complaint against

Oakwood on August 15, 2002. The second Administrative Complaint

again alleges a Class II deficiency and seeks to impose an

administrative fine. Specifically, the second Administrative

Complaint alleges that Oakwood failed to have due diligence

taken to prevent, subsequently detect if the condition could not

be prevented, and then provide appropriate care and treatment

for avoidable bilateral pressure ulcers that d eveloped on both

of a resident's heels. Oakwood requested a formal

administrative hearing and the case was forwarded to the

Division of Administrative Hearings on or about October 2, 2002.

Respondent filed an Agreed Motion to Consolidate which was

granted , consolidating Case Nos. 02 - 3849 and 02 - 3850. A hearing

was scheduled for January 14 and 15, 2003, in Tavares, Florida.

At hearing, Petitioner did not present the testimony of any

witness. By agreement of the parties, Petitioner presented the

testimony of one witness, Dorothea Mueller, by a deposition

taken on January 24, 2003. Petitioner's Exhibits numbered

1 through 3, 5, 8 and 9 were admitted into evidence.

Petitioner's Exhibit 4 was withdrawn. Petitioner's Exhibits

numbered 6, 7 and 10 were offere d during Ms. Mueller's

deposition. Respondent objected to the introduction of

Petitioner's 6, 7, and 10 as hearsay. Petitioner's Exhibit 6 is

admitted under Section 120.569(1)(g), Florida Statutes.

However, Petitioner's Exhibit 6 is hearsay, contains he arsay

within hearsay, and is not sufficient in itself to support a

finding of fact as contemplated by Section 120.57(1)(c), Florida

Statutes. Petitioner's assertion that Exhibit 6 constitutes an

exception to hearsay under Section 90.803(8), Florida Statut es,

is rejected. Petitioner's Exhibit 7 is admitted. However, the

portions of Petitioner's Exhibit 7 which contain uncorroborated

hearsay are not sufficient to support a finding of fact as

contemplated by Section 120.57(1)(c), Florida Statutes.

Petition er's Exhibit 10 is admitted under Section 120.569(1)(g),

Florida Statutes. However, Petitioner's Exhibit 10 is hearsay,

contains hearsay within hearsay, and is not sufficient in itself

to support a finding of fact as contemplated by Section

120.57(1)(c), Florida Statutes.

Respondent presented the testimony of Wendy Stoutjesdijk;

Nancy Mitchell, an expert in nursing care with a specialty in

gerontology; Dorothy Gilbert, an expert in nursing care and long

term care nursing; Cynthia Burbey; Charles Bird; Lea

Buffenbarger; Ethel Young; Fay Hill; Carol Taylor; and Emma

Maria Centeno (formerly Emma Stubbits). Respondent's Exhibits

numbered 1 through 4 were admitted into evidence.

A Transcript, consisting of one volume, was filed on

February 10, 2003. A Trans cript, consisting of one volume, of

Ms. Mueller's deposition was filed on January 21, 2003. The

parties timely filed Proposed Recommended Orders, which have

been considered in the preparation of this recommended order.

FINDINGS OF FACT

1. AHCA is the a gency responsible for the licensing 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, Oakwood was licensed by

Petiti oner as a skilled nursing facility. Oakwood operates a

120 - bed nursing home located in Eustis, Florida.

3. From June 19 through July 1, 2002, Dorothy Mueller, who

at the time was employed by AHCA as a Registered Nurse

Specialist, conducted a complaint in vestigation at Oakwood. She

received the complaint from Florida Protective Services of the

Department of Children and Family Services (DCFS). Ms. Mueller

is Surveyor Minimum Qualification Test (SMQT) qualified. She is

currently licensed as a registered nurse in Florida but retired

from AHCA in December 2002.

4. Ms. Mueller began the complaint investigation on

June 19, 2002. She announced her visit to the facility's

administrator, observed residents, interviewed staff, and

reviewed records. She request ed a sampling of residents'

records. The sample she reviewed included the record of

Resident D.R. During the course of the complaint investigation,

Ms. Mueller did not interview Resident D.R. as she had already

been discharged from the facility. Ms. Mue ller examined

Resident D.R.'s care plans, assessments, nursing notes, and

wound care.

5. Nurse Mueller was specifically looking for whether

anyone at Respondent's facility was actually looking at the skin

of Resident D.R.'s heels because Resident D.R. w as wearing TED

hose. Because Resident D.R. was at risk for developing pressure

sores, Ms. Mueller was concerned that she found no specific

preventative measures taken by the facility to help prevent the

development of pressure sores on Resident D.R.'s hee ls. 1/

6. In determining her findings, Ms. Mueller took into

consideration the findings of the person from DCFS who had filed

the complaint that caused AHCA to send Ms. Mueller to

investigate. Additionally, Ms. Mueller also took into

consideration notes from Resident D.R.'s family physician and

statements he made to her regarding the condition of Resident

D.R.'s heels two days after her discharge from Oakwood. 2/ Based

on Ms. Mueller's findings during this complaint investigation,

federal tag F224 was ci ted against Oakwood.

7. Resident D.R. was admitted to Oakwood on February 24,

2002, following a four - day hospitalization for hip surgery due

to a fall at her home which resulted in a hip fracture.

8. Resident D.R.'s hospital records reveal the developm ent

of a skin ulcer in her sacral area the morning of February 23,

2002, and that the ulcer worsened before Resident D.R.'s

discharge from the hospital on February 24, 2002.

9. Upon admission to Oakwood, Resident D.R. was assessed

by Dorothy Gilbert, a Re gistered Nurse employed by Oakwood.

Nurse Gilbert's full skin assessment of Resident D.R. noted two

skin ulcers on Resident D.R.'s sacral area with no other skin

breakdown. Nurse Gilbert noted that Resident D.R.'s heels were

"soft nonreddened." Accordin g to Nurse Gilbert, that notation

meant that the skin on Resident D.R.'s heels was normal, intact,

nonreddened and showed no deterioration.

10. The nurse's assessment form contains a diagram of a

person showing front and back with the following instructio n:

"Skin: Indicate on diagram below all body marks such as old or

recent scar, bruise, discoloration, laceration, amputation,

decubitus ulcer, and any other questionable marking(s)

considered other than normal." Nurse Gilbert made detailed

notations and drawings on the diagram indicating any and all

skin breakdown of Resident D.R. The foot area of the diagram

contained no notation or drawing indicating any skin breakdown

on Resident D.R.'s feet upon admission to Oakwood.

11. Another page of the nurse's assessment form is

entitled "Braden Scale - For Predicting Pressure Sore Risk."

Nurse Gilbert gave Resident D.R. a score of 14 which identified

her to be at moderate risk for pressure sores or ulcers. She

was at risk for skin breakdown over her entire bod y, not just

her heels, and her care plan accounted for this.

12. Resident D.R. was wearing TED hose at the time of

admission and wore them throughout her stay. TED hose are anti -

embolism stockings typically used following surgery to enhance

blood flow an d prevent clotting. Resident D.R. was a petite,

elderly woman weighing 83 pounds.

13. Appropriate assessments and interdisciplinary care

plans were developed for Resident D.R., including for her

existing skin ulcers also referred to as sores or wounds.

During Resident D.R.'s stay at Oakwood, one of her existing

sacral skin wounds improved and the other wound healed. She

received daily wound treatment by the nurses on duty and the

wound care nurse measured her ulcers and assessed her skin each

Thursday.

14. Cynthia Burbey is an Licensed Practical Nurse employed

by Oakwood. She observed Resident D.R.'s heel condition usually

every day when she gave her treatment for wound care on her

coccyx, and on her shower days which occurred twice a week.

While the Certified Nurses Assistants (CNAs) give showers to the

residents, the nurses follow the bathing of the resident with a

body check/body assessment. Nurse Burbey never saw any skin

deterioration on Resident D.R.'s heels, including the day

Resident D.R. was discharged. At the time of the discharge,

Nurse Burbey did a body assessment from head to toe of Resident

D.R. and did not observe any skin deterioration on Resident

D.R.'s heels.

15. The CNAs at Respondent's facility play a significant

role in observi ng skin condition and are to report any change in

skin condition to the nurses. In addition to their role in

observing skin condition at bath time, the CNAs repositioned

Resident D.R. every two hours and assisted her in and out of bed

each day. She was c ompletely dressed and undressed each day by

her attending CNAs who would remove her TED hose and change

them.

16. Pressure on skin over bony areas is a primary cause of

pressure ulcers or bed sores. Resident D.R. received a variety

of services and device s during her stay at Oakwood aimed at

reducing the likelihood of bed sores, including knee wedges for

both her bed and wheelchair, calf pads for her wheelchair, a

pressure reducing mattress, and physical therapy. Because of

her petite size, the knee wedge used for her bed resulted in

Resident D.R.'s heels being "floated" off her mattress.

17. Resident D.R., also received physical therapy services

including range of motion exercises while at Oakwood. The range

of motion exercises for her lower extremiti es would have

provided her therapists and restorative aids an opportunity to

detect evidence of skin breakdown on her heels, because her

heels were touched by the therapists or aides during these

exercises. While Resident D.R. wore socks for these therapi es,

the therapists and aides saw no evidence of staining on her

socks, which often happens from drainage from a heel wound, or

any evidence that their touching her heels resulted in any pain

to Resident D.R. The restorative aides provided Resident D.R.

wi th range of motion exercises six days a week, including the

day before her discharge from Respondent's facility.

18. The initial nursing assessment indicating "heel soft,

nonreddened" raised Ms. Mueller's concerns that there was no

care specifically direc ted toward Resident D.R.'s heels.

However, there is no competent evidence that Resident D.R. had

heel wounds either upon admission or which developed during her

stay at Oakwood. Accordingly, there was no reason for Oakwood

to have a skin care plan specif ically addressing Resident D.R.'s

heels, particularly in light of the fact that Oakwood had a skin

care plan in place for Resident D.R. which was followed.

Further, during cross examination, when asked whether the phrase

"heel soft nonreddened," was an in dicator that Resident D.R. had

a problem with her heel, she acknowledged, "I would have to

answer yes and no to that."

19. AHCA 's charge of failure to have due diligence taken

to prevent, subsequently detect if the condition could not be

prevented, and t hen provide appropriate care and treatment for

avoidable bilateral pressure ulcers is based solely on hearsay

evidence. AHCA's sole witness, the surveyor who conducted the

complaint investigation, never observed Resident D.R. at any

time, either in Respon dent's facility or after her discharge.

20. The evidence presented does not establish that Oakwood

failed to have due diligence to prevent, subsequently detect if

the condition could not be prevented, and then provide

appropriate care and treatment for bi lateral pressure sores.

There is no competent proof that any heel sore developed on

Resident D.R.'s heels while a resident at Oakwood. Moreover,

the evidence shows that the nursing staff appropriately

addressed the skin care needs of Resident D.R.

CONCLU SIONS OF LAW

21. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter in this case.

Sections 120.569 and 120.57, Florida Statutes.

22. The Administrative Complaint in DOAH Case No. 02 - 3850

seeks to im pose a $2,500.00 administrative fine for failure to

have due diligence taken to prevent, subsequently detect if the

condition could not be prevented, and then provide appropriate

care and treatment for avoidable bilateral pressure ulcers that

developed on both of a resident's feet in violation of Rule

59A - 4.1288, Florida Administrative Code, and 42 CFR 483.13(c).

The Administrative Complaint specifies that this is a Class II

deficiency.

23. The Administrative Complaint in DOAH Case No. 02 - 3849

seeks to assign a conditional licensure status to Respondent

failed to have due diligence taken to prevent, subsequently

detect if the condition could not be prevented, and then

provide appropriate care and treatment for avoidable bilateral

ulcers that developed on both of a resident's heels, in

violation of 42 CFR 483.13(c) via Rule 59A - 4.1288, Florida

Administrative Code. The Administrative Complaint asserts that

this constitutes a Class II deficiency.

24. Further, the Administrative Complaint in DOAH Case

No. 02 - 3850 seeks to assess costs related to the investigation

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

unspecified amount.

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

Agency. Because of the proposed penalty of an administrative

fine in DOAH Case No. 02 - 3850, the agency is required to prove

the allegations against Respondent by clear and convincing

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

Co ., 670 So. 2d 932 (Fla. 1996) . In DOAH Case No. 02 - 3849, the

Agenc y is required to prove the allegations against Respondent

by a preponderance of the evidence. Florida Department of

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

1st DCA 1981).

26. 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.

27. Secti on 400.419, Florida Statutes, defines a Class II

deficiency and sets forth the parameters of any administrative

fine to be imposed regarding such deficiency. Section 400.419,

Florida Statutes, reads in pertinent part as follows:

400.419 Violations; admini strative 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 no tice of the violation as

follows:

* * *

(c) Class 'II' violations are those

conditions or occurrences related to the

operation and maintenance of a facility or

to the personal care of residents which the

agency dete rmines directly threaten the

physical or emotional health, safety, or

security of facility residents, other than

class I violations. A class II violation is

subject to an administrative fine in an

amount not less than $1,000.00 and not

exceeding $5,000.00 for each violation. A

citation for a class II violation must

specify the time within which the violation

is required to be corrected.

* * *

(2) In determining if a penalty is to be

imposed and in fixing the amount of the

fine, the agency shall consid er 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 ext ent

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 financial benefit to the facility

o f committing or continuing the violation.

(e) The licensed capacity of the facility.

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

incorporates by reference certification rules and regulations

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

29. 42 CFR 483.13(c)(tag F224) provides,

(c) Staff treatment of residents. The

facility must develop and implement written

policies and procedures that prohibit

mistreatment, neglect, and abuse of

resi dents and misappropriation of resident

property.

30. AHCA has not met its burden of proof in regard to the

imposition of a fine in that it failed to prove that a Class II

deficiency existed at Oakwood.

31. AHCA has not met its burden of proof as to th e

imposition of a conditional license in that it did not prove

that a Class II deficiency existed at Oakwood.

RECOMMENDATION

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, Oakwood Center.

DONE AND ENTERED this 21st day of March, 2003, 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 21st day of March, 2003.

ENDNOTES

1/ Ms. Mueller's investigation report alleged that Oakwood

failed to obtain a physician's order for TED hose. How ever,

Ms. Mueller acknowledged at her deposition that the use of TED

hose for Resident D.R. was not being questioned.

2/ At Ms. Mueller's deposition, Respondent objected to

Ms. Mueller's testifying about any conversations Ms. Mueller had

with the DCFS in vestigator or the family physician as hearsay.

The agency's response that anything said by the physician for the

purpose of diagnosis and or treatment was an exception to hearsay

pursuant to Section 90.803(4), Florida Statutes, is rejected.

COPIES FURNISHED:

Jodi C. Page, Esquire

Michael O. Mathis, Esquire

Agency for Health Care Administration

2727 Mahan Drive, Mail Station 3

Tallahassee, Florida 32308

Alfred W. Clark, Esquire

Post Office Box 623

117 South Gadsden Street, Suite 201

Talla hassee, Florida 32301

Lealand McCharen, Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive

Fort Knox Building 3, Suite 3431

Tallahassee, Florida 32308 - 5403

Valinda 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 exception s to

this recommended order should be filed with the agency that will

issue the final order in this case.