03-001969 Agency For Health Care Administration vs. Key West Convalescent Center, Inc., D/B/A Key West Convalescent Center Status: Closed Recommended Order on Thursday, March 11, 2004.

Summary: Respondent is guilty of a Class III deficiency for failing to follow treatment order. The minimum hours of direct care were provided.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) Case No. 03 - 1969

)

KEY WEST CONVALESCENT CENTER, )

INC., d/b/a KEY WEST )

CONVALESCENT CENTER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this

case on December 10, 2003, in Key West , Florida, before

Administrative Law Judge Claude B. Arrington of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Nelson E. Rodney, Esquire

Agency for Health Care Administration

Spokane Building, Suite 103

8350 Northwest 52nd Terrace

Miami, Florid a 33166

For Respondent: Alex Finch, Esquire

Goldsmith, Grout & Lewis, P.A.

2180 North Park Avenue, Suite 100

Post Office Box 2011

Winter Park, Florida 32790 - 20 11

STATEMENT OF THE ISSUES

Whether Respondent is guilty of the deficiencies alleged in

the Administrative Complaint and the penalties, if any, that

should be imposed.

PRELIMINARY STATEMENT

On April 23, 2003, Petitioner filed an Administrative

Compla int that alleged certain facts and, based on those facts,

alleged in two separate counts that Respondent was guilty of two

Class II deficiencies. Petitioner contended that Respondent

should be fined $2,500.00 for each deficiency and that the

status of its licensure should be downgraded from standard to

conditional.

Count I pertained to Respondent’s care of a patient who

will be referred to as A.V. Based on the factual allegations

pertaining to A.V.’s care, Petitioner alleged that Respondent:

. . . vio lated Section 483.25(c), Code of

Federal Regulations as incorporated by Rules

59A - 4.1288 and 59A - 4.106(2), Florida

Administrative Code, [which is] ...

classified as a Class II deficiency pursuant

to Section 400.23(8)(b), Florida Statutes,

[and] carries, in this case, a fine of

$2,500.00 and gives rise to a conditional

rating pursuant to Section 400.23(7),

Florida Statutes.[ 1 ]

Count II alleged that on certain dates Respondent failed to

provide the required amount of direct care staff for a 24 - hour

period. Count II further alleged that the failure to provide

the required amount of direct care staff compromised the

residents’ ability to maintain or reach his or her highest

practicable physical, mental, and psychosocial wellbeing. Based

on the factual alleg ations set forth in Count II, Petitioner

alleged that Respondent:

... violated Section 400.23(3)(a), Florida

Statutes, and/or Section 483.23(3)(a), Code

of Federal Regulations as incorporated by

Rules 59A - 4.1288 and 59A - 4.108, Florida

Administrative Code , [which is] ...

classified as a Class II deficiency pursuant

to Section 400.23(8)(b), Florida Statutes,

[and] carries, in this case, a fine of

$2,500.00 and gives rise to a conditional

rating pursuant to Section 400.23(7),

Florida Statutes.

Respondent denied the material allegations of the

Administrative Complaint, the matter was referred to the

Division of Administrative Hearings, and this proceeding

followed.

In response to the prehearing order entered in this

proceeding, the parties filed a Joint P rehearing Stipulation,

which contained certain factual stipulations. The stipulated

facts found to be relevant are included in this Recommended

Order.

At the final hearing, Petitioner presented the testimony of

Arlene Schweitzer, a registered nurse who conducted the survey

of Respondent’s facility. Petitioner presented four composite

exhibits, each of which was admitted into evidence. Respondent

presented the testimony of Michael Derouin, D.P.M. (a podiatric

physician); Christina Romine (Respondent’s d irector of social

services); Donna Rosado (a certified nursing assistant and

Respondent’s director of admissions); Jane Monti (a registered

nurse); and Robin Blier (a registered nurse and, as of

January 6, 2003, Respondent’s acting administrator). Respond ent

offered 11 sequentially numbered exhibits, each of which was

admitted into evidence.

A Transcript of the proceedings was filed on January 16,

2004. Each party filed a Proposed Recommended Order, which has

been duly - considered by the undersigned in th e preparation of

this Recommended Order.

FINDINGS OF FACT

1. Respondent is a licensed, skilled nursing home facility

located in Key West, Florida. Respondent was at all times

pertinent hereto a long - term Medicare provider; was licensed by

Petitioner; a nd was required to comply with Chapter 400 Part II,

Florida Statutes, Chapter 59A - 4, Florida Administrative Code,

and Title 42, Section 483, Code of Federal Regulations.

2. Petitioner is the agency of the State of Florida with

the responsibility to regul ate skilled nursing homes and to

administer the federal Medicaid and Medicare programs in

Florida.

3. Petitioner surveys nursing home facilities to evaluate

their compliance with established rules and conducts federally

mandated surveys of long - term care facilities receiving Medicare

and Medicaid to ensure compliance with federal statutory and

rule requirements. Petitioner classifies any deficiency noted

by a survey according to the nature and scope of the deficiency.

The severity of the deficiency dete rmines the amount of any

administrative fine and whether the licensure status of the

facility should be "standard" or "conditional."

4. A licensee’s failure to comply with an applicable

statute or rule is a deficiency. A survey results in a report,

com monly called a Form 2567, which lists each deficiency that is

found, identifies the applicable regulatory standard that the

surveyor believes has been violated, provides a factual basis

for the alleged violation, and indicates the scope and severity

of the deficiency.

5. Petitioner conducted a survey of Respondent during the

period January 20 - 24, 2003. Arlene Schweitzer, who is a

registered nurse and an experienced surveyor, conducted the

survey on behalf of Petitioner. The survey included a review of

the facility’s records, observation of residents, and interviews

of residents, their family members, and members of the

facility’s staff.

6. As a result of Nurse Schweitzer’s survey, Petitioner

filed the Administrative Complaint containing the allegati ons at

issue in this proceeding.

7. At the times material to this proceeding, A.V. was a

39 - year - old female who was afflicted with cancer that had

metastasized to multiple organs. A.V. was bedfast and her

condition was terminal. A.V.’s bed included an air mattress to

make her more comfortable and to protect against pressure sores.

8. At the times material to this proceeding, Dr. Michael

R. Derouin, Dr. Michael G. Simmons, and Dr. John J. Schoppe,

Jr., were physicians practicing in the same practic e group in

the specialty of podiatric medicine. All examinations conducted

by these doctors on A.V. were in her room at Respondent’s

facility.

9. In response to a request from Respondent’s staff,

Dr. Derouin examined A.V. on January 3, 2003. On that d ate,

Dr. Derouin observed that A.V. had a pressure sore on her left

heel. 2 Based on his observation, Dr. Derouin described the

pressure sore as being approximately one centimeter by one

centimeter (at hearing Dr. Derouin testified that the pressure

sore w as about the size of a dime). Dr. Derouin further

described the pressure sore as being superficial with no

clinical signs of infection.

10. On January 3, 2003, Dr. Derouin treated A.V. by

applying to the pressure sore antibiotic ointment followed a

no rmal saline wet to dry dressing. Dr. Derouin ordered

Respondent’s staff to continue that treatment on a daily basis.

In addition, Dr. Derouin ordered that a protective and pressure

relieving apparatus referred to as a waffle boot be applied to

A.V.’s lef t foot. He further ordered that Respondent’s staff

continue to elevate A.V.’s left foot off of her bedding.

11. In addition to the examination discussed above,

Dr. Derouin examined A.V. on January 6, 13, 20, and 27, and

February 3, 2003. Dr. Simmons e xamined A.V. on January 10 and

24 and February 7, 2003. Dr. Schoppe examined A.V. on

January 30, 2003.

12. Each of these doctors generated a report following his

examination of A.V. None of the reports describe the pressure

sore as being anything othe r than superficial, and none note the

presence of infection. On February 3, Dr. Derouin considered

the pressure sore to be healed.

13. Petitioner established that Respondent was dilatory in

obtaining a waffle boot for A.V. Although Respondent does not

s tock waffle boots as part of its inventory, waffle boots were

readily available from a hospital that is adjacent to

Respondent’s facility.

14. Dr. Derouin was aware that Respondent did not stock

waffle boots as part of its inventory. He noted on Janua ry 6,

13, and 20, that a waffle boot had been ordered and would be

applied when available. On January 27, Dr. Derouin noted that

the waffle boot had arrived and had been applied to A.V.’s left

foot. Dr. Derouin testified that he found it acceptable for

R espondent’s staff to elevate A.V.’s left foot by using a pillow

until the waffle boot arrived.

15. The facility failed to document that it complied with

Dr. Derouin’s order to treat A.V.’s pressure sore by applying

antibiotic ointment followed by a norm al saline wet to dry

dressing on January 4, 5, 6, 12, and 15. On all other dates,

Respondent’s staff documented that the wet to dry treatment was

administered. Dr. Derouin administered the wet to dry treatment

during his examination on January 6, which r elieved Respondent’s

staff of that responsibility on that date. Petitioner

established that Respondent’s staff failed to comply with

Dr. Derouin’s treatment order on January 4, 5, 12, and 15.

16. Petitioner did not establish that A.V. suffered an ill

e ffect from either the missed treatments or Respondent’s delay

in obtaining a waffle boot. 3 Respondent’s delay in obtaining a

waffle boot for A.V. and the fact that some treatments were

undocumented (and therefore found by the undersigned not to have

been performed) did not cause A.V.’s pressure sore to worsen. 4

17. Prior to January 1, 2003, each long - term care

facility, including Respondent, was required to have sufficient

certified nursing assistant staffing to provide 2.3 hours of

direct care per reside nt per day. Pursuant to Section

400.23(3)(a), Florida Statutes (2002), 5 the minimum direct care

staffing requirement increased from 2.3 hours per day to 2.6

hours per day on January 1, 2003.

18. At all times pertinent to this proceeding, a shortage

of certified nursing assistants existed in Key West. Since

approximately 1997, Respondent has used certified nursing

assistants plus registered nurses to meet the minimum direct

care staffing requirement. 6

19. For each of the four units in the facility,

R espondent’s staff posted an assignment list naming the

individuals who were responsible during a particular shift for

the direct care of the residents of the unit. Because there was

no requirement that such lists be retained, the lists were not

retained a nd were not available for Petitioner’s review.

20. There is no rule as to the type of records a facility

must keep to document the direct care staffing requirements set

forth in Section 400.23(3)(a), Florida Statutes. 7

21. At the times pertinent to this proceeding,

Respondent’s payroll records reflected that an employee had

worked a particular shift, but they did not reflect whether a

registered nurse or a salaried employee had performed direct

care to residents during that shift. Respondent pays a

registered nurse at his or her regular hourly rate (plus any

overtime) whether the registered nurse worked as a registered

nurse or as a direct care provider. Moreover, Respondent’s

payroll records do not document what duties a salaried employee

performe d during a particular shift.

22. Based on the documentation submitted during her

survey, Nurse Schweitzer calculated that Respondent had not met

the minimum direct care requirement on January 2, 4, 5, 6, 7, 9,

11, 12, and 15. Nurse Schweitzer testifi ed that she did not

receive payroll information for January 1 or January 8 and,

consequently, made no determination as to those two dates.

23. In making her calculations, Nurse Schweitzer

disallowed certain hours of direct care Respondent claimed were

per formed by salaried employees or registered nurses. In the

absence of definitive documentation and after talking with

certain members of Respondent’s staff, Nurse Schweitzer

concluded that the documentation was a sham. She believed that

the salaried emplo yees Respondent claimed were performing direct

care for patients were actually performing their usual non -

nursing duties. She also believed that the registered nurses

Respondent claimed were performing direct care for patients were

actually performing tra ditional nursing services.

24. Respondent’s witnesses established that the facility

had used registered nurses and salaried employees to meet the

direct care staffing requirements found in Section 400.23(3)(a),

Florida Statutes. Consequently, it is foun d that Nurse

Schweitzer should not have deleted the hours of direct care

provided by registered nurses and salaried employees.

25. Petitioner established that the records submitted to

Petitioner in response to the survey failed to document

compliance wi th the direct care staffing requirements.

Respondent established at the formal hearing that

notwithstanding its inadequate documentation, it had met or

exceeded those minimum direct care staffing requirements by

using registered nurses and salaried employ ees as direct care

providers.

CONCLUSIONS OF LAW

26. The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

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

Statutes.

27. The burden of proof in this case is on Petitioner.

See Beverly Enterprises - Florida v. Agency for Health Care

Administration , 745 So. 2d 1133 (Fla. 1st DCA 1999). The burden

of proof for the assignment of a licensure status is by a

preponderance of the evidence. Se e 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). The burden of

proof to impose an administrative fine is by clear and

convincing evidence. See Department of Banking and Finance v.

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

28. When Petitioner seeks to take punitive action against

a licensee, such action may be based only upon those offenses

specifi cally alleged in the administrative complaint. See

Cottrill v. Department of Insurance , 685 So. 2d 1371, 1372 (Fla.

1st DCA 1996); Chrysler v. Department of Professional

Regulation , 627 So. 2d 31 (Fla. 1st DCA 1993); Klein v.

Department of Business and Pr ofessional Regulation , 625 So. 2d

1237, 1238 - 39 (Fla. 2d DCA 1993); Arpayoglou v. Department of

Professional Regulation , 603 So. 2d 8 (Fla. 1st DCA 1992);

Willner v. Department of Professional Regulation, Board of

Medicine , 563 So. 2d 805, 806 (Fla. 1st DC A 1992); Celaya v.

Department of Professional Regulation, Board of Medicine , 560

So. 2d 383, 384 (Fla. 3d DCA 1990); Kinney v. Department of

State , 501 So. 2d 129, 133 (Fla. 5th DCA 1987); Sternberg v.

Department of Professional Regulation , 465 So. 2d 1324 , 1325

(Fla. 1st DCA 1985); Hunter v. Department of Professional

Regulation , 458 So. 2d 842, 844 (Fla. 2d DCA 1984).

29. Section 400.23(8), Florida Statutes, states in

relevant part:

(8) . . . deficiencies shall be

classified according to the nature an d the

scope of the deficiency. The scope shall be

cited as isolated, patterned, or widespread.

An isolated deficiency is a deficiency

affecting one or a very limited number of

residents, or involving one or a very

limited number of staff, or a situation that

occurred only occasionally or in a very

limited number of locations. A patterned

deficiency is a deficiency where more than a

very limited number of residents are

affected, or more than a very limited number

of staff are involved, or the situation ha s

occurred in several locations, or the same

resident or residents have been affected by

repeated occurrences of the same deficient

practice but the effect of the deficient

practice is not found to be pervasive

throughout the facility. A widespread

defici ency is a deficiency in which the

problems causing the deficiency are

pervasive in the facility or represent

systemic failure that has affected or has

the potential to affect a large portion of

the facility's residents. The agency shall

indicate the class ification on the face of

the notice of deficiencies as follows:

(a) A class I deficiency is a deficiency

that the agency determines presents a

situation in which immediate corrective

action is necessary because the facility's

noncompliance has caused, or is likely to

cause, serious injury, harm, impairment, or

death to a resident receiving care in a

facility. The condition or practice

constituting a class I violation shall be

abated or eliminated immediately, unless a

fixed period of time, as determine d by the

agency, is required for correction. A class

I deficiency is subject to a civil penalty

of $10,000 for an isolated deficiency,

$12,500 for a patterned deficiency, and

$15,000 for a widespread deficiency. . . .

(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 assessment, plan of care, a nd

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. . . .

(c) A class III deficiency is a

deficiency that the age ncy determines will

result in no more than minimal physical,

mental, or psychosocial discomfort to the

resident or has the potential to compromise

the resident's ability to maintain or reach

his or her highest practical physical,

mental, or psychosocial we ll - being, as

defined by an accurate and comprehensive

resident assessment, plan of care, and

provision of services. A class III

deficiency is subject to a civil penalty of

$1,000 for an isolated deficiency, $2,000

for a patterned deficiency, and $3,000 fo r a

widespread deficiency. . . . If a class III

deficiency is corrected within the time

specified, no civil penalty shall be

imposed.

(d) A class IV deficiency is a deficiency

that the agency determines has the potential

for causing no more than a mino r negative

impact on the resident. If the class IV

deficiency is isolated, no plan of

correction is required.

30. Section 400.23(7), Florida Statutes, provides, in

pertinent part, as follows:

(7) . . . The agency shall assign a

licensure status of standard or conditional

to each nursing home.

(a) A standard licensure status means

that a facility has no class I or class II

deficiencies and has corrected all class III

deficiencies within the time established by

the agency.

(b) A conditional l icensure 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 c riteria 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

follow - up survey, a standard licensure

status may be assigned.

31. Petitioner established th at Respondent’s staff failed

to comply with Dr. Derouin’s treatment orders for A.V. on

January 4, 5, 12, and 15, 2003, as alleged in Count I of the

Administrative Complaint. However, Petitioner failed to

establish that Respondent’s treatment of A.V. const ituted a

Class II deficiency as defined by Section 400.23(8)(b), Florida

Statutes, because there was no harm to the patient and the

resident's ability to maintain or reach her highest practicable

physical, mental, and psychosocial well - being was not

compro mised.

32. Although no harm was caused to A.V. by Respondent’s

failure to follow Dr. Derouin’s treatment orders for A.V., the

failure had the potential to cause harm to the patient and

should be viewed as an isolated, Class III deficiency pursuant

to Se ction 400.23(8), Florida Statutes.

33. Petitioner charged in Count II of the Administrative

Complaint that Respondent failed to provide the required amount

of direct care staffing required by Section 400.23(3)(a),

Florida Statutes, for certain dates in J anuary. Count II

further charged that the failure to provide the required amount

of direct care staff compromised the residents’ ability to

maintain or reach his or her highest practicable physical,

mental, and psychosocial wellbeing. Petitioner failed t o

establish the alleged violation since Respondent proved that it

had met or exceeded the minimum direct care staffing requirement

by using registered nurses and salaried employees as direct care

providers.

34. At the final hearing, Petitioner establish ed that

Respondent failed to provide the surveyor at the time of the

survey adequate documentation of its compliance with the minimum

direct care standard set forth in Section 400.23(3)(a), Florida

Statutes. That deficiency was not alleged by the Administ rative

Complaint and, consequently, no penalty may be imposed for that

deficiency.

35. Petitioner failed to establish either of the Class II

deficiencies alleged in the Administrative Complaint and,

consequently, failed to establish that Respondent’s li censure

should be downgraded from standard to conditional.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that Petitioner enter a final order

adopting the Findings of Facts and Conclusions of Law set fort h

herein. It is further RECOMMENDED that Petitioner find

Respondent guilty of an isolated, Class III deficiency based on

Count I of the Administrative Complaint and that Petitioner find

Respondent not guilty of the violation alleged in Count II of

the Adm inistrative Complaint. It is further RECOMMENDED that

Petitioner assess an administrative fine against Respondent in

the amount of $1,000.00 for the Class III deficiency found in

Count I of the Administrative Complaint. It is further

RECOMMENDED that Pet itioner make no change to the status of

Respondent’s licensure.

DONE AND ENTERED this 11th day of March, 2004, in

Tallahassee, Leon County, Florida.

S

___________________________________

CLAUDE B. ARRINGTON

Administrative Law Judge

Division of Administra tive 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 11th day of Mar ch, 2004.

ENDNOTES

1/ Unless otherwise indicated, all statutory references are to

Florida Statutes (2003).

2/ The reason the pressure sore developed was undetermined, but

there was no allegation and no evidence that Respondent was

deficient in permi tting the pressure sore to develop.

3/ Dr. Derouin testified, credibly, that A.V. would not have

had an ill effect from either the missed treatments or the delay

in applying the waffle boot to her foot. It is clear that

Dr. Derouin and his colleagues cl osely followed this patient and

approved the treatment that was being provided during the

healing process. It is also clear that the superficial pressure

sore healed in a timely manner.

4/ In making this finding, the undersigned has considered

Dr. Sim mons’s report dated January 10, which includes a notation

that the base of the pressure sore was necrotic and Respondent’s

pressure sore log entry on January 10, which reflects that the

pressure sore was upgraded from a Stage I to the more serious

rating o f Stage II. These entries were not explained at the

final hearing. Dr. Simmons did not testify and it was not clear

from his report the significance, if any, of the noted

observation. The person who upgraded the pressure sore rating

on January 10, 2003, also did not testify. The upgrading of the

severity of the pressure sore is inconsistent with the reports

of the treating physicians.

5/ Section 400.23(3)(a), Florida Statutes, provides in

pertinent part as follows:

(3)(a) The agency shall adopt r ules

providing for the minimum staffing

requirements for nursing homes. These

requirements shall include, for each nursing

home facility, a minimum certified nursing

assistant staffing of 2.3 hours of direct

care per resident per day beginning January

1, 2002, increasing to 2.6 hours of direct

care per resident per day beginning

January 1, 2003. . . . Each nursing home

must document compliance with staffing

standards as required under this paragraph

and post daily the names of staff on duty

for the benefi t of facility residents and

the public. The agency shall recognize the

use of licensed nurses for compliance with

minimum staffing requirements for certified

nursing assistants, provided that the

facility otherwise meets the minimum

staffing requirements for licensed nurses

and that the licensed nurses so recognized

are performing the duties of a certified

nursing assistant. Unless otherwise

approved by the agency, licensed nurses

counted towards the minimum staffing

requirements for certified nursing

ass istants must exclusively perform the

duties of a certified nursing assistant for

the entire shift and shall not also be

counted towards the minimum staffing

requirements for licensed nurses. . . .

6/ There is no dispute that a registered nurse can perfor m

direct care duties of a resident in compliance with this

requirement during a particular shift so long as the registered

nurse is not also performing the duties typically assigned to a

registered nurse.

7/ The Administrative Complaint charges Respond ent with failing

to meet the direct care minimum staffing standard. Respondent

was not charged with failing to document that it met that

standard.

COPIES FURNISHED :

Alex Finch, Esquire

Goldsmith, Grout & Lewis, P.A.

2180 North Park Avenue, Suite 100

Post Office Box 2011

Winter Park, Florida 32790 - 2011

Nelson E. Rodney, Esquire

Agency for Health Care Administration

Spokane Building, Suite 103

8350 Northwest 52nd Terrace

Miami, Florida 33166

Lealand McCharen, Agency Clerk

Agency for Health Care Adm inistration

2727 Mahan Drive, Mail Station 3

Tallahassee, Florida 32308

Valda Clark Christian, General Counsel

Agency for Health Care Administration

2727 Mahan Drive, Suite 3431

Tallahassee, Florida 32308

Rhonda M. Medows, M.D., Secretary

Agency for He alth Care Administration

2727 Mahan Drive, Suite 3116

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 thi s Recommended Order should be filed with the agency that

will issue the Final Order in this case.