02-004442 Presbyterian Retirement Communities, Inc., D/B/A Westminister Towers vs. Agency For Health Care Administration Status: Closed Recommended Order on Tuesday, July 15, 2003.

Summary: Respondent, Agency for Health Care Administration, failed to prove that Petitioner failed to provide appropriate treatment; Class II deficiency not proved. Standard license restored; no fine.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PRESBYTERIAN RETIREMENT )

COMMUNITIES, INC., d/b/a )

WESTMINISTER TOWERS, )

)

Petitioner, )

)

vs. ) Case No. 02 - 4442

)

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative

Hearings, by its duly - designated Administrative Law Judge,

Jeff B. Clark, held a formal administrative hearing in this case

on March 21, 2003, in Orla ndo, Florida.

APPEARANCES

For Petitioner: Alex Finch, Esquire

Goldsmith, Grout & Lewis, P.A.

2180 North Park Avenue, Suite 100

Post Office Box 2011

Winter Park, Florid a 32790 - 2011

For Respondent: Joanna Daniels, Esquire

Agency for Health Care Administration

2727 Mahan Drive, Mail Station 3

Tallahassee, Florida 32308

STATEMENT OF THE ISSUES

Whether Pe titioner, Presbyterian Retirement Communities,

Inc., d/b/a Westminster Towers: (1) should be given a

"conditional" or "standard" license effective June 17, 2002; and

(2) whether Petitioner is subject to an administrative fine of

$2,500.

PRELIMINARY STATEM ENT

On September 9, 2002, Respondent, Agency for Health Care

Administration, filed two Administrative Complaints alleging

that Petitioner, Presbyterian Retirement Communities, Inc.,

d/b/a Westminster Towers, warranted a conditional license and an

administr ative fine as a result of an annual re - certification

survey dated June 17, 2002.

On September 26, 2002, Petitioner filed a Petition for

Formal Administrative Hearing disputing issues of material fact

in the Administrative Complaints.

On November 18, 2002, the Division of Administrative

Hearings received Respondent's Notice requesting assignment of

an Administrative Law Judge to conduct proceedings and to submit

a recommended order.

On November 19, 2002, an Initial Order was sent to both

parties. On Decembe r 3, 2002, the case was scheduled for final

hearing in Orlando, Florida, on January 23, 2003. The date was

later changed to January 24, 2003, on a motion of Petitioner.

On January 23, 2003, Petitioner requested a continuance based on

an injury suffered b y counsel. The continuance was granted.

On February 6, 2003, the case was rescheduled for March 21,

2003. The hearing took place as rescheduled on March 21, 2003.

Respondent presented two witnesses and offered five exhibits

into evidence, which were rec eived and marked Respondent's

Exhibits 1 through 5. One of Respondent's witnesses, Munson

Cockayne, Jr., R.N., was accepted as an expert witness in

"nurses' practices and procedures." Petitioner presented three

witnesses. Two of these witnesses were acc epted as expert

witnesses; Gary G. Lehman, M.D., as an expert in geriatric

medicine, and Charles A. Illian, Jr., R.N., as an expert in

infectious disease control and identification.

On May 29, 2003, a Motion for Extension of Time to File the

Proposed Recom mended Order was filed by Respondent based on

counsel's emergency hospitalization. An Order Extending Time

for Filing Proposed Recommended Orders was entered extending the

time for filing until July 7, 2003; both parties timely filed

Proposed Recommended Orders.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing, the following findings of fact are made:

1. Petitioner is a long - term, skilled nursing facility

located in Orlando, Florida.

2. Respondent is a State of F lorida agency responsible for

surveying nursing homes to ensure compliance with applicable

state and federal requirements. An annual survey was conducted

by Respondent on Petitioner during June 17 through 20, 2002.

3. As a result of the survey, Responden t asserted that

Petitioner failed to adequately notify the attending physician

of Resident No. 13's urinary tract infection, resulting in a

delay in treatment of the infection.

4. This resulted in citing Petitioner for a Class II

deficiency, Tag F309, as follows: "Respondent failed to ensure

that each resident received the necessary care and services to

attain or maintain the highest practicable physical, mental, and

psychological well - being, in accordance with the comprehensive

assessment and plan of care ."

5. A federal scope and severity rating of level "G" was

assigned to this deficiency. "Scope and severity" levels are

identified by letters A through L. A level "G" rating requires

that "harm or pain has come to the resident," more specifically,

the r esident must "have more than minimal harm with discomfort."

If a level "G" scope and severity is assigned, a Class II

deficiency is cited.

6. Resident No. 13 was a 108 - year - old female with a

history of urinary tract infections. She was alert, oriented

a nd articulate. She was capable of advising caregivers of her

wants, needs, and physical condition.

7. On May 27, 2002 Resident No. 13 complained of "some

burning upon urinating." Petitioner's staff called Resident

No. 13's attending physician by callin g the "on - call" physician.

The "on call" physician ordered a urinalysis and culture; a

urine sample was obtained by Petitioner's staff noting that the

urine was "cloudy." The laboratory that performs the testing is

at a remote location.

8. On May 28, 20 02, the urinalysis results were received

by Petitioner and transmitted by facsimile to the attending

physician's office on the same day. The culture results were

received by Petitioner on May 30, 2002, a Thursday, but were not

faxed to the attending physi cian's office until June 1, 2002, a

Saturday.

9. On May 29, 2002, the attending physician performed a

routine assessment and evaluation of Resident No. 13. His notes

of the examination read as follows:

No complaints. Feels well. Appetite is

adequat e. Otherwise, non - ROS. An extremely

elderly lady doing quite well. Will

continue to monitor and keep close tabs on

her.

10. On June 5, 2002, the nurses notes reflect that

Resident No. 13 stated, "it hurts when I urinate." Her urine

was discolored and was odiferous. Petitioner's staff notified

the attending physician's office.

11. The attending physician ordered the antibiotic,

oxacillin, on June 6th. This antibiotic was inappropriate for

Resident No. 13. On June 7, 2002, the attending physician

or dered a second antibiotic, dioxicillin; this was also

inappropriate, as there is no such antibiotic. Again, the

physician was notified, and on June 8, 2002, he ordered an

antibiotic, dicloxicillin, which was administered to Resident

No. 13 during the earl y morning hours of the following day,

June 9, 2002.

12. Notwithstanding the administration of dicloxicillin, a

broad spectrum antibiotic, the urinalysis and culture reports of

the specimen taken on May 28, 2002, indicated colonized,

saprophytic organisms and did not indicate pathologic organisms.

The administration of an antibiotic is an optional treatment.

13. The symptoms exhibited by Resident No. 13, burning

sensation on urination, odiferous urine and a change in urine

color can be caused by condition s other than urinary tract

infections. Burning sensations can be caused by atrophic

vaginitis and other non - pathogenic causes.

14. Typical symptoms of a geriatric patient suspected of

having a urinary tract infection are: fever, abdominal and

flank pain , change in mental status, and fatigue.

15. There is no indication in the records of Resident

No. 13, during the relevant period, of the presence of these

symptoms; the examination of the attending physician on May 28,

2002, does not indicate any sympt oms typical of a urinary tract

infection; in fact, he reports that Resident No. 13 is "doing

quite well."

16. Individuals familiar with Resident No. 13 observed no

changes in her physical or mental status during the period from

May 27 through June 8, 2002 .

CONCLUSIONS OF LAW

17. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this cause,

pursuant to Section 120.569 and Subsection 120.57(1), Florida

Statutes.

18. Respondent is the regulatory authority respo nsible for

licensure and enforcement of all applicable statutes and rules

governing nursing home facilities pursuant to Chapter 400, Part

II, Florida Statutes, and Chapter 59A - 4, Florida Administrative

Code. Pursuant to Subsection 400.23(7), Florida Statu tes,

Respondent is required to "at least every 15 months, evaluate

all nursing home facilities and make a determination as to the

degree of compliance . . . ." Petitioner must assign either a

standard or conditional licensure rating to each facility after

it is surveyed.

19. Rule 59A - 4.1288, Florida Administrative Code, reads,

in pertinent part, as follows:

Nursing homes that participate in Title

XVIII or XIX must follow certification rules

and regulations found in 42 CFR 483,

Requirements for Long Term Care Facilities,

September 26, 1991, which is incorporated by

reference.

20. A nursing home facility is substantially affected by a

conditional rating and/or an administrative fine. For example,

Section 408.035, Florida Statutes, governing certificates of

need, provides that an applicant's ability and record of

providing quality of care are among the criteria for competitive

review. Additionally, a facility cannot qualify for the Gold

Seal program if it has had a conditional rating within the

previous 30 months, Section 400.235, Florida Statutes. A

conditional rating can substantially affect the reputation of a

facility in the community and have a negative impact on staff

morale and recruiting. Spanish Gardens Nursing & Convalescent

Center (Beverly He alth & Rehab Svcs., Inc.) v. Agency for Health

Care Administration , 21 FALR 132 (AHCA, 1998).

21. Subsection 400.23(7)(b), Florida Statutes, provides:

[C]onditional 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 . . . . 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.

22. Petitioner has the burden of proving by a

preponderance of the evidence the basis of changing Respondent's

licensure rating from Standard t o Conditional. A different

quantum of proof, clear and convincing evidence, is required to

impose an administrative fine. Department of Banking and

Finance, Division of Securities and Investor Protection v.

Osborne Stern and Company , 670 So. 2d 932 (Fla. 1996); Ferris v.

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

23 . Petitioner is entitled to a succinct and

understandable statement of the charges against it. Lusskin v.

Agency for Health Care Administration , 731 So. 2d 67, 69 (Fla.

4th DCA 1999); Cottrill v. Department of Insurance , 685 So. 2d

1371, 1372 (Fla. 1st D CA 1996).

24. In the Administrative Complaint filed on September 9,

2002, Respondent alleges that between May 27 and June 9, 2002,

Resident No. 13 suffered from a urinary tract infection that

went untreated and, as a result, Petitioner violated 42 CFR

483 .25, which requires Petitioner to provide the necessary care

and services to attain or maintain the highest practicable

physical, mental, and psychosocial well - being, in accordance

with the comprehensive assessment and plan of care. Rule 59A -

4.1228, Flori da Administrative Code, implements Sections 400.12,

400.121, and 400.23, Florida Statutes, and incorporates by

reference 42 CFR 483.25. It is further alleged that Petitioner

violated Subsections 400.022(1)(l) and 400.022(3), Florida

Statutes, which requir e Petitioner to ensure the resident's

right to receive adequate and appropriate health care and

protective and support services, and therapeutic and

rehabilitative services consistent with the resident care plan,

with established and recognized practice st andards within the

community, and within rules as adopted by the agency.

25. In the instant case, Petitioner alleges that it was

proper to issue Respondent a Conditional License effective

June 17, 2002, because a Class II deficiency was cited.

According ly, it is Petitioner's burden to establish by at least

a preponderance of the evidence the existence and severity of

the deficiency cited in the survey of June 17 through 20, 2002.

26. Subsection 400.23(8)(b), Florida Statutes, reads as

follows:

(b) 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 as sessment, plan of care, and

provision of services.

27. In order for the single incident, as cited in the

survey and the Administrative Complaint, to be the basis for a

Class II deficiency, Respondent must prove by a preponderance of

the evidence that "ha rm or pain" has come to Resident No. 13,

more specifically, that Resident No. 13 must "have more than

minimal harm with discomfort." The evidence reveals that

Resident No. 13 complained of "burning" on urination on May 27,

2002, and that she was symptom f ree from that date until June 5,

2002, when she advised the nursing staff that "it hurts when I

urinate." Significantly, on May 29, 2002, the only time during

the relevant period that she was examined by a physician, no

symptoms are reported; in fact, she is reported as "doing quite

well." If, in fact, Resident No. 13 were suffering from a

urinary tract infection from May 27 to June 9, 2002, one would

reasonably expect her attending physician to observe some of the

symptoms during his May 29, 2002, examin ation.

28. In addition to the lack of clinical signs of a urinary

tract infection during the relevant period, credible evidence

was presented that the urinalysis and culture did not indicate a

pathogenic infection and a plausible explanation for Resident

No. 13's complaint of "burning." On each occasion that Resident

No. 13 complained of burning or pain, her complaint was

immediately reported to her personal physician.

29. Respondent has failed to demonstrate that Resident

No. 13 was harmed, suffered pa in, or that her ability to

maintain or reach her highest practicable physical, mental, and

psychosocial well being was compromised as a result of any

activity or inactivity of Petitioner.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusio ns of

Law, it is

Recommended that Respondent enter a final order determining

that the deficiency described under Tag F309 in the June 17

through 20, 2002, survey did not occur, issue a Standard

licensure rating to Petitioner, and that the Administrative

Co mplaint seeking a fine be dismissed.

DONE AND ENTERED this 15th day of July, 2003, in

Tallahassee, Leon County, Florida.

S

___________________________________

JEFF B. CLARK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

12 30 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 15th day of July, 2003.

COPIES FURNISHED :

Joanna D aniels, Esquire

Agency for Health Care Administration

2727 Mahan Drive, Mail Station 3

Tallahassee, Florida 32308

Alex Finch, Esquire

Goldsmith, Grout & Lewis, P.A.

2180 North Park Avenue, Suite 100

Post Office Box 2011

Winter Park, Florida 32790 - 2011

Lealand McCharen, Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

Valda Clark Christian, General Counsel

Agency for Health Care Administration

2727 Mahan Drive

Fort Knox Building III, Suite 3431

Tallahassee, Florida 32308

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency t hat

will issue the final order in this case.