03-003319 Agency For Health Care Administration vs. Richmond Health Care, Inc., D/B/A Sunrise Health &Amp; Rehabilitation Center Status: Closed Recommended Order on Monday, May 17, 2004.

Summary: Respondent failed to correct a Class III deficiency within the prescribed time period. Recommended Conditional License and $1,000 fine.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE, )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) Case No. 03 - 3319

)

RICHMOND HEALTH CARE, INC., )

d/b/a SUNRISE HEALTH & )

REHABILITATION CENTER, )

)

Respondent. )

______________________________ __)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case

on January 14, 2004, in Fort Lauderdale, Florida, before

Errol H. Powell, a designated Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Nelson E. Rodney, Esquire

Agency for Health Care Administration

8355 Northwest 53rd Street, First Floor

Miami, Florida 33166

For Respondent: James B. Boone, Esquire

Post Of fice Box 451335

Sunrise, Florida 33345 - 1335

STATEMENT OF THE ISSUE

The issue for determination is whether Respondent committed

the offenses set forth in the Administrative Complaint and, if

so, what action should be taken.

PRELIMINARY ST ATEMENT

The Agency for Health Care Administration (AHCA) issued a

one - count Administrative Complaint against Richmond Health Care,

Inc., d/b/a Sunrise Health & Rehabilitation Center (Sunrise) on

July 23, 2003. 1 The Administrative Complaint charged Sunrise

with the failure to correct a Class III deficiency, as

classified pursuant to Section 400.23(8), Florida Statutes,

thereby violating 42 CFR Section 483.25(m), as incorporated by

Florida Administrative Code Rules 59A - 4.1288 and/or 59A - 4.112(1)

and/or 59A - 4 .107(5). Further, the Administrative Complaint sets

forth that the penalty for the alleged violation is a fine of

$1,000 and the assignment of a conditional license pursuant to

Section 400.23(7)(b), Florida Statutes. Sunrise disputed the

material allegat ions of fact in the Administrative Complaint and

requested a hearing. On September 16, 2003, this matter was

referred to the Division of Administrative Hearings.

At hearing, AHCA presented the testimony of two witnesses

and entered two exhibits (Petitione r’s Exhibits numbered 4 and

5) into evidence. Sunrise presented the testimony of two

witnesses and entered eight exhibits (Respondent's Exhibits

numbered 1 - 8) into evidence. Official recognition was taken and

copies were provided of Guidance to Surveyors - Long Term Care

Facilities, PP - 129 and PP - 135, referred to as the "Red Book"; 42

CFR Section 483.25(m); Section 400.23(7)(a) and (8)(a), Florida

Statutes; and Florida Administrative Code Rules 59A - 4.112 and

59A - 4.107(5).

A transcript of the hearing was o rdered. At the request of

the parties, the time for filing post - hearing submissions was

set for more than ten days following the filing of the

transcript. The Transcript, consisting of one volume, was filed

on January 27, 2004. An extension of time was granted for the

parties to file their post - hearing submissions. The parties

filed their post - hearing submissions, which have been considered

in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Sunrise operates as a skilled nursing facility at 4800

Nob Hill Road in the city of Sunrise, Florida. Sunrise is

licensed by the State of Florida pursuant Chapter 400, Part II,

Florida Statutes.

2. Sunrise has 325 beds. At all times material hereto,

Sunrise had approximately 275 to 285 residents.

3. AHCA conducted a Standard survey of Sunrise on April 14

through 17, 2003, to determine if Sunrise was "in compliance

with Federal participation requirements for nursing homes

participating in the Medicare and/or Medicaid programs." 2 AHCA

determined that Sunrise was not in "substantial compliance" with

the federal requirements in that, material hereto, Class III

deficiencies had occurred, citing (1) Tag F - 332, having a

medication error rate of five percent or greater and (2) Tag F -

333, having significant medication errors.

4. Further, the following Florida Administrative Code

Rules were cited for the Class III deficiencies: Tag F - 332,

59A - 4.112(1), 59A - 4.107(5), and 59A - 4.1288; and Tag F - 333, 59A -

4.1288.

5. As to Tag F - 332, two medication errors were fo und.

Resident PR received Sorbitol Solution without a physician's

order, instead of Lactulose, as ordered by the physician.

Resident GW did not receive Reglan prior to eating breakfast as

ordered by the physician. On the survey, Resident No. 31 is

Resid ent PR and Resident No. 32 is Resident GW.

6. As to Tag F - 333, two medication errors were found.

Resident MZ received Potassium Chloride Elixir in undiluted form

or without water, contrary to the instructions on the

medication. Resident GW did not have her Nitroglycerin Patch

removed the prior evening, as ordered by the physician. On the

survey, Resident No. 33 is Resident MZ.

7. Moreover, AHCA determined that the medication errors,

involving Potassium Chloride and Nitroglycerin, were significant

medic ation errors because Potassium Chloride and Nitroglycerin

are medications affecting the cardiovascular system.

8. Significant medication error is defined by the Guidance

to Surveyors - Long Term Care Facilities, in pertinent part, as

follows:

[O]ne which causes the resident discomfort

or jeopardizes his or her health and safety.

. . .Discomfort may be a subjective or

relative term used in different ways

depending on the individual situation.

9. The evidence presented was insufficient to show that an

ind ividual Resident experienced discomfort due to the medication

errors or to show that the medication errors had the potential

to cause an individual Resident discomfort.

10. The evidence presented was insufficient to show that

the medication errors jeopard ized an individual Resident's

health and safety. Nevertheless, the medication errors had the

potential to jeopardize the health and safety of the Residents.

11. Also, material hereto, Sunrise was not cited by AHCA

for failure to follow physicians' orde rs.

12. The percentage of errors is calculated by dividing the

number of medication errors by the total number of medication

opportunities.

13. In the survey of Sunrise, AHCA's surveyors used the

"Medication Pass Worksheet" (MPW). If one or more errors are

found, the MPW provides that another 20 to 25 opportunities

should be observed.

14. Four medication errors were observed. Sixty - two

medication opportunities were observed, which included the

additional opportunities observed by the surveyors. The

p ercentage of medication errors was 6.45 percent.

15. AHCA required Sunrise to correct the deficiencies

cited by May 17, 2003.

16. Further, a Plan of Correction (POC) was required to be

submitted by Sunrise to correct the deficiencies cited. Sunrise

subm itted a POC.

17. By certified letter dated, April 25, 2003, AHCA

notified Sunrise, among other things, that the survey found that

Sunrise was not in substantial compliance; that a POC was

required to be submitted by a time certain; that remedies would

be recommended if substantial compliance was not achieved by

May 17, 2003; that the recommended remedies would include a

mandatory denial of payment for new admissions being imposed on

July 17, 2003, if substantial compliance was not achieved by

that time; an d that AHCA may accept the POC as Sunrise's

allegation of compliance until substantiated by a revisit or

other means.

18. On May 22, 2003, a re - survey was conducted by AHCA.

AHCA determined that Sunrise was not in substantial compliance

with the federal requirements.

19. Material hereto, AHCA found Class III deficiencies

during the survey of May 22, 2003, citing (1) Tag 281, providing

or arranging services that fail to meet professional standards

of quality, including failing to follow physician's order s and

having significant medication errors, and (2) Tag F - 332, having

a medication error rate of five percent or greater.

20. Further, the following Florida Administrative Code

Rules were cited for the Class III deficiencies: Tag F - 281 and

Tag F - 332, 59A - 4.112(1), 59A - 4.107(5), and 59A - 4.1288.

21. As to Tag F - 281, pertinent hereto, Resident BC was

administered five medications prescribed for Resident HF. The

medications were Provera, Prednisone, Claritin, Multivitamin

with Mineral, and Flomax. On the s urvey, Resident No. 2 is

Resident BC and Resident No. 1 is Resident HF.

22. Also, as to Tag F - 281, pertinent hereto, Resident RP

was administered Thera M, a multiple vitamin with minerals, when

her prescription was for Theragram, a vitamin only. On the

s urvey, Resident No. 19 is Resident RP.

23. Further, as to Tag F - 281, pertinent hereto, Sunrise

was cited for failure to follow physicians' orders.

24. As to Tag F - 332, the same method for the calculation

of percentage errors was used. Six medication err ors were

observed. Fifty medication opportunities were observed, which

included the additional opportunities observed. The percentage

of medication errors was 12 percent.

25. AHCA required Sunrise to correct the deficiencies

cited by June 22, 2003.

26 . The evidence presented was insufficient to show that

an individual Resident experienced discomfort due to the

medication errors. However, the medication errors had the

potential to cause the Residents to experience discomfort.

27. The evidence present ed was insufficient to show that

the medication errors jeopardized an individual Resident's

health and safety. Nevertheless, the medication errors had the

potential to jeopardize the health and safety of the Residents.

28. By certified letter dated May 3 0, 2003, AHCA notified

Sunrise, among other things, that, based on the survey conducted

on May 22, 2003, Sunrise was not in substantial compliance due

to Tag F - 281 and Tag F - 332 being found; that the investigative

survey was still ongoing; and that the rec ommendation would be

made to impose the same remedies recommended in the letter dated

April 25, 2003.

29. By letter dated July 23, 2003, AHCA notified Sunrise,

among other things, that, as a result of a second follow - up

visit completed on July 14, 2003, S unrise was in substantial

compliance as of July 15, 2003.

30. Sunrise was issued a conditional license by AHCA

effective May 22, 2003 and expiring September 30, 2003.

31. At the expiration of the conditional license, Sunrise

was issued a standard licens e.

CONCLUSIONS OF LAW

32. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and the

parties thereto pursuant to Sections 120.569 and 120.57(1),

Florida Statutes (2003).

33. AHCA has authority over Sunrise pursuant to Chapter

400, Part II, Florida Statutes (2002) and Florida Administrative

Code Chapter 59A - 4.

34. Sunrise, as a nursing home, must also be in compliance

with Title 42, Chapter 483, Code of Federal Regulations.

35. Section 400.23, Florida Stat utes (2002), 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 licensee 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.

(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 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 compli ance 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

follow - up survey, a standard licensure

status may be assig ned.

(c) In evaluating the overall quality of

care and services and determining whether

the facility will receive a conditional or

standard license, the agency shall consider

the needs and limitations of residents in

the facility and the results of inter views

and surveys of a representative sampling of

residents, families of residents, ombudsman

council members in the planning and service

area in which the facility is located,

guardians of residents, and staff of the

nursing home facility.

* * *

(f) The agency shall adopt rules that:

1. Establish uniform procedures for the

evaluation of facilities.

2. Provide criteria in the areas referenced

in paragraph (c).

3. Address other areas necessary for

carrying out the intent of this section.

(8) The agency shall adopt rules to provide

that, when the criteria established under

subsection (2) are not met, such

deficiencies shall be classified according

to the nature and the scope of the

deficiency. The scope shall be cited as

isolated, patterned, or wi despread. 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 has

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

deficiency 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 classification on the face of

the notice of deficiencies as follows:

* * *

(c) A cla ss III deficiency is a deficiency

that the agency 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 well - 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 for a widespread

deficiency. The fine amount shall be

doubled for each deficiency if the facility

was previously cited for one or more class I

or class II deficiencies during the last

annual inspection or any in spection or

complaint investigation since the last

annual inspection. A citation for a class

III deficiency must specify the time within

which the deficiency is required to be

corrected. If a class III deficiency is

corrected within the time specified, n o

civil penalty shall be imposed.

* * *

(9) Civil penalties paid by any licensee

under subsection (8) shall be deposited in

the Health Care Trust Fund and expended as

provided in s. 400.063.

36. Florida Administrative Code Rule 59A - 4.112, "Pharmac y

Services," provides in pertinent part:

(1) The facility shall adopt procedures

that assure the accurate acquiring,

receiving, dispensing, and administering of

all drugs and biologicals, to meet the needs

of each resident.

37. Florida Administrative Co de Rule 59A - 4.107, "Physician

Services," provides in pertinent part:

(5) All physician orders shall be followed

as prescribed, and if not followed, the

reason shall be recorded on the resident's

medical record during that shift.

38. Florida Administrati ve Code Rule 59A - 1288,

"Exception," provides in pertinent part:

Nursing homes that participate in Title

XVIII or XIX must follow certification rules

and regulations found in 42 C.F.R. 483,

Requirements for Long Term Care Facilities,

September 26, 1991, whi ch is incorporated by

reference. Non - certified facilities must

follow the contents of this rule and the

standards contained in the Conditions of

Participation found in 42 C.F.R. 483,

Requirements for Long Term Care Facilities,

September 26, 1991, which is incorporated by

reference with respect to social services,

dental services, infection control, dietary

and the therapies.

39. Sunrise is required to follow 42 CFR 483, "Quality of

Care," which provides in pertinent part:

(m) Medication Errors -- The faci lity must

ensure that --

(1) It is free of medication error rates of

five percent or greater; and

(2) Residents are free of any significant

medication errors.

40. AHCA has the burden of proof to show that Sunrise

committed the offense in the Administrat ive Complaint. To

impose a fine, AHCA's standard of proof is to show by clear and

convincing evidence that Sunrise committed a Class III

deficiency that was not corrected within the prescribed time

period. Department of Banking and Finance, Division of

S ecurities and Investor Protection v. Osborne Stern and Company ,

670 So. 2d 932 (Fla. 1996). To impose a conditional license,

AHCA's standard of proof is to show by a preponderance of the

evidence that a basis exists to impose the conditional license.

Flo rida Department of Transportation v. J.W.C. Company, Inc. ,

396 So. 2d 778 (Fla. 1st DCA 1981).

41. For the survey completed on April 17, 2003, the

evidence shows, pursuant to both standards of proof, that the

deficiencies cited were that Sunrise had medic ation errors of

five percent or greater and that it had significant medication

errors. The evidence fails to show, pursuant to both standards

of proof, that Sunrise was cited for a deficiency of failure to

ensure that physicians' orders were followed even though the

incidents noted in the survey described circumstances of

Sunrise's staff not following physicians' orders.

42. Moreover, AHCA demonstrated, pursuant to both

standards of proof, that the medication errors were five percent

or greater as to Tag T - 332; that the medication errors were

significant medication errors regarding Tag F - 333; and that the

deficiencies were Class III deficiencies as to both Tag F - 332

and Tag F - 333.

43. As to the re - survey conducted on May 22, 2003, the

evidence shows, purs uant to both standards of proof, that

medication errors were five percent or greater regarding Tag F -

332; that the medication errors were significant medication

errors; that the deficiency was a Class III deficiency; and that

Sunrise failed to correct the deficiency within the prescribed

time period. The evidence demonstrated that, at the time of the

re - survey, Sunrise was not in substantial compliance with

established criteria.

44. The undersigned is not persuaded by Sunrise's argument

that the surveyor who observed the medical error should observe

an additional 20 to 25 opportunities. 3 The additional 20 to 25

opportunities need not be observed by the same surveyor who

observed the medication error.

45. The evidence failed to demonstrate, pursuant to ei ther

standard of proof, that Sunrise failed to correct any other

Class III deficiency within the prescribed time period.

46. AHCA demonstrated by clear and convincing evidence

that a Class III deficiency occurred and that Sunrise failed to

correct the Cla ss III deficiency within the prescribed time

period. AHCA further demonstrated by clear and convincing

evidence that, pursuant to Section 400.23(8)(c), Florida

Statutes (2002), a fine of $1,000 should be imposed upon

Sunrise.

47. AHCA demonstrated by a p reponderance of the evidence

that a Class III deficiency occurred and was not corrected by

Sunrise within the prescribed time period and that Sunrise was,

therefore, not in substantial compliance at the time of the

survey with established federal and state criteria. AHCA

further demonstrated by a preponderance of the evidence,

pursuant to Section 400.23(7)(b), Florida Statutes (2002), that

Sunrise should receive a conditional license.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Agency for Health Care Administration

enter a final order:

1. Upholding the issuance of a conditional license to

Richmond Health Care, Inc., d/b/a Sunrise Health &

Rehabilitation Center.

2. Imposing a fine of $1,000 upo n Richmond Health Care,

Inc., d/b/a Sunrise Health & Rehabilitation Center.

DONE AND ENTERED this 17th day of May 2004, in Tallahassee,

Leon County, Florida.

S

___________________________________

ERROL H. POWELL

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahass ee, 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 17th day of May, 2004.

ENDNOTES

1/ The Administrative Complaint did not reflect when it was

filed.

2/ AHCA's certified letter, dated April 25, 2003, to Sunrise

regarding the Standard survey conducted April 19 through 17,

2003.

3/ Sunrise included a document attached to its Proposed

Recommended Order, which was not admitted into evidence at the

hearing, and included argument based upon this document in its

Proposed Recommended Order. Neither the document nor Sunrise's

argument based upon this document was considered.

COPIES FURNISHED:

Nelson E. Rodney, Esquire

Agency for Health Care Administration

8355 Northwest 53rd Street, First Floor

Miami, Florid a 33166

James B. Boone, Esquire

Post Office Box 451335

Sunrise, Florida 33345 - 1335

Rhonda M. Medows, M. D., Secretary

Agency for Health Care Administration

2727 Mahan Drive

Tallahassee, Florida 32308

Valda Clark Christian, General Counsel

Agency for Health Care Administration

Fort Knox Building, Suite 3441

2727 Mahan Drive

Tallahassee, Florida 32308

Leland McCharen, Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive, Mail Station 3

Tallahassee, Florida 32308

NOTICE OF RIGHT TO S UBMIT 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.