03-003320 Agency For Health Care Administration vs. Tampa Health Care Associates, Llc., D/B/A Habana Health Care Center Status: Closed Recommended Order on Tuesday, March 2, 2004.

Summary: Petitioner did not prove that the nursing home failed to provide one resident with adequate tracheal tube care and failed to provide another resident with the necessary treatment to prevent or cure avoidable pressure sores.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) Case Nos. 03-2114

) 03-3320

TAMPA HEALTHCARE ASSOCIATES, )

LLC, d/b/a HABANA HEALTH CARE )

CENTER, )

)

Respondent. )

)

CORRECTED RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the

administrative hearing of this case on December 8, 2003, in

Tampa, Florida, on behalf of the Division of Administrative

Hearings (DOAH).

APPEARANCES

For Petitioner: Gerald L. Pickett, Esquire

Agency for Health Care Administration

525 Mirror Lake Drive, North

Sebring Building, Room 330K

St. Petersburg, Florida 33701

For Respondent: R. Davis Thomas, Jr.

Qualified Representative

Broad and Cassel

215 South Monroe Street, Suite 400

Post Office Drawer 11300

Tallahassee, Florida 32302-1300

STATEMENT OF THE ISSUES

The issues for determination are whether Petitioner should

have changed the status of Respondent's license from standard to

conditional; and whether Petitioner should impose administrative

fines of $7,500 and recover costs for alleged deficiencies in

the care of four residents of a nursing home.

PRELIMINARY STATEMENT

On May 8, 2003, Petitioner issued an Administrative

Complaint alleging that Respondent committed certain violations

related to the death of a nursing home resident in Respondent's

care. On August 6, 2003, Petitioner issued a second

Administrative Complaint alleging that Respondent failed to

prevent or improve pressure sores of three nursing home

residents in Respondent's care. Each Administrative Complaint

notified Respondent that Petitioner had changed Respondent's

license rating from Standard to Conditional, that Petitioner

proposed administrative fines for the alleged violations, and

that Petitioner sought to recover costs incurred in its

investigation.

Respondent timely requested an administrative hearing for

each Administrative Complaint. Petitioner referred the matters

to DOAH to conduct the administrative hearings.

DOAH assigned Case Nos. 03-2114 and 03-3320, respectively,

to the cases related to the first and second Administrative

Complaints. On October 10, 2003, ALJ Carolyn S. Holifield

consolidated Case No. 03-3320 with Case No. 03-2114. DOAH

transferred the consolidated cases to the undersigned to conduct

the administrative hearing on December 8, 2003.

At the hearing, Petitioner presented the testimony of two

witnesses, one of whom appeared by telephone and the deposition

transcripts of two witnesses as exhibits in lieu of their live

appearance at hearing, and submitted five composite exhibits for

admission into evidence. Respondent presented the testimony of

two witnesses, and submitted one composite exhibit for admission

into evidence. The identity of the witnesses and exhibits and

any attendant rulings are set forth in the two-volume Transcript

of hearing filed on January 5, 2004.

At the conclusion of the hearing, the ALJ required the

parties to file their respective Proposed Recommended Orders

(PROs) on January 15, 2004. On January 12, 2004, the parties

jointly requested an extension of time to submit their PROs.

Petitioner and Respondent timely filed their respective PROs on

January 23 and 22, 2004.

FINDINGS OF FACT

1. Petitioner is the state agency responsible for

licensing and regulating nursing homes in Florida pursuant to

Section 400.23(7), Florida Statutes (2003). Respondent is

licensed to operate a 150-bed nursing home located at

2916 Habana Way, Tampa, Florida 33614 (the facility).

2. Respondent admitted Resident 1 to the facility on

March 9, 2001. The admitting diagnoses included tracheal

bronchitis, diabetes mellitus, morbid obesity, and acute

respiratory failure. From the time Resident 1 entered the

facility until her death, Resident 1 lived with a tracheal tube

in place.

3. Resident 1 died on March 4, 2003, at 10:20 a.m. in the

emergency room at St. Joseph's Hospital in Tampa, Florida. The

tracheal tube of Resident 1 was completely occluded with

hardened secretions when Resident 1 arrived at the hospital.

4. The emergency room (ER) physician that treated

Resident 1 testified by deposition. The ER physician diagnosed

Resident 1 with respiratory arrest and death. However, the

diagnosis is merely a clinical impression and is not a medical

determination of the cause of death. No certain cause of death

could be determined without an autopsy, and no one performed an

autopsy on Resident 1.

5. The diagnosis made by the ER physician is a clinical

impression that is an educated guess. The respiratory arrest

suffered by Resident 1 could have been precipitated by various

causes including an occluded tracheal tube, a heart attack, or

acute respiratory failure. The ER physician did not determine

that the facility committed any negligence and found no evidence

of negligence.

6. The ER nurse who assisted the ER physician believed

that the facility had been negligent in clearing the tracheal

tube of Resident 1. The ER nurse suspected that secretions had

been accumulating in the tracheal tube for several days and that

the facility did not monitor or clean the tube because the tube

was completely occluded when Resident 1 arrived at the hospital.

The ER nurse notified Petitioner of her suspicions.

7. On March 11, 2003, Petitioner conducted a complaint

investigation of the facility in connection with the death of

Resident 1. Petitioner determined that Respondent either had

not assessed whether Resident 1 was capable of performing her

own tracheal tube care; or had not monitored the respiratory

status of Resident 1 between March 2 and March 4, 2003; or both.

8. Petitioner determined that the alleged failure to

assess and monitor Resident 1 violated 42 CFR Section

483.25(k)(4) and (5). Florida Administrative Code Rule 59A-

4.1288 applies the federal standard to nursing homes in Florida.

42 CFR Section 483.25(k)(4) and (5) requires Respondent to

"ensure that residents receive proper treatment and care

for . . . tracheostomy care (sic) . . . [and] tracheal

suctioning."

9. Petitioner assigned the charged deficiency a severity

rating of class "II." In relevant part, Section 400.23(8)(b),

Florida Statutes (2003), defines a Class II deficiency as one

that 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 assessment, plan

of care, and provision of services.

Petitioner determined that a Class II rating was appropriate

because the facility's alleged failure to provide Resident 1

with appropriate tracheal tube care harmed Resident 1.

10. Petitioner changed the license rating for the facility

from Standard to Conditional within the meaning of Section

400.23(7), Florida Statutes (2003). The change in license

rating was effective March 11, 2003, when Petitioner completed

the complaint survey of the facility. The Conditional rating

continued until April 10, 2003, when Petitioner changed the

rating to Standard. Petitioner also proposed an administrative

fine of $2500 pursuant to Section 400.23(8)(b), Florida Statutes

(2003).

11. The preponderance of evidence shows, by various

measures, that Respondent provided Resident 1 with proper

treatment and care for her tracheotomy tube within the meaning

of 42 CFR Section 483.25(k)(4) and (5). First, it is uncommon

for a person to cough up material in a tracheal tube and have

the material gradually accumulate until the tube closes. It is

more likely that secretions coughed up will block the tracheal

tube immediately. Second, the emergency medical team (EMT) that

treated Resident 1 in the facility did not find it necessary to

remove or replace the existing tracheal tube in order to obtain

an open airway. Rather, EMT personnel administered oxygen

through the existing tube. Third, Resident 1 had normal oxygen

saturation levels on March 2, 2003. Finally, Resident 1 was

experienced in maintaining her tracheal tube, was capable of

clearing her own tube, and asked members of the nursing staff to

clear the tube whenever Resident 1 needed assistance. On

March 4, 2003, Resident 1 complained of shortness of breath

rather than a blocked tracheal tube.

12. The ER physician's testimony shows it is uncommon for

a person to cough up material in a tracheal tube and have the

material gradually accumulate until the tube closes. The ER

nurse that suspected secretions had been accumulating in the

tracheal tube of Resident 1 for several days had no experience

caring for nursing home residents with tracheal tubes.

13. Gradual accumulations of secretions in a tracheal tube

are generally associated with a productive cough from causes

such as infiltrated pneumonia. There is no evidence that

Resident 1 had such a condition. It is more likely that any

material Resident 1 coughed up would have occluded the tracheal

tube immediately rather than accumulating over time.

14. EMT personnel that treated Resident 1 in the facility

did not find it necessary to remove or replace the existing

tracheal tube in order to obtain an open airway. When EMT

personnel arrived at the facility, Resident 1 was non-

responsive. When confronted with a non-responsive patient,

standard protocol requires EMT personnel to ensure an open

airway. EMT personnel placed an oxygen "bag" over the existing

tube to provide Resident 1 with oxygen. EMT personnel then

transported Resident 1 to the hospital emergency room.

15. In the emergency room, the ER physician found the

tracheal tube of Resident 1 to be completely blocked with

hardened secretions. He removed the tube, replaced it with an

open tube, and unsuccessfully attempted to ventilate Resident 1.

16. It is likely the hardened secretions found in the

tracheal tube at the emergency room blocked the tube between the

time EMT personnel administered oxygen to Resident 1 at the

facility and the time the treating physician removed the

tracheal tube in the emergency room. A contrary finding would

require the trier of fact to speculate that EMT personnel found

the tracheal tube to be blocked and administered oxygen to a

closed tube; or incorrectly diagnosed Resident 1 with a clear

tracheal tube before administering oxygen. There is less than a

preponderance of evidence to support either finding.

17. Sudden deposits of hardened secretions in the tracheal

tube of Resident 1 are consistent with medical experience. A

person with a tracheal tube may develop calcified secretions in

their lung known as concretions that can be coughed into the

tube and cause it to become instantly blocked.

18. It is unlikely that the hardened secretions found in

the tracheal tube at the emergency room were present before

Resident 1 collapsed in the facility. Hardened secretions can

be cleared with a suctioning device or by coughing them through

the tube and out of the opening near the neck if the resident

has sufficient muscle strength.

19. Resident 1 was a cognitively alert, 40-year-old, and

physically capable of cleaning her own tracheal tube with a

suctioning device. Resident 1 also had sufficient muscle

strength to cough some secretions through the opening in her

tube. Whenever Resident 1 was unable to clear her tube through

the suctioning device or by coughing, she became anxious and

immediately notified a nurse, who would then suction the tube

and clear it for her.

20. On March 2, 2003, Resident 1 complained to a nurse

that she was experiencing shortness of breath. Significantly,

Resident 1 did not complain that her tracheal tube was blocked.

21. The nurse on duty at the facility notified the

treating physician of Resident 1's complaints, and the physician

ordered the nurse to measure the oxygen saturation levels of

Resident 1. The oxygen saturation levels were within normal

range, at 97 percent.

22. The treating physician then ordered bed rest for

Resident 1 and ordered the nurse to give Resident 1 a breathing

treatment. Resident 1 had no further problems on March 2, 2003.

23. On March 4, 2003, at approximately 9:30 a.m.,

Resident 1 summoned a nurse to come to her bedside and told the

nurse that she did not feel well. Resident 1 did not complain

that her tracheal tube was blocked. Her skin color was gray.

She then passed out and fell to the floor.

24. Nursing staff immediately called for EMT assistance,

and EMT personnel arrived at the facility at approximately

9:32 a.m. EMT personnel transported Resident 1 to the emergency

room at approximately 9:52 a.m.

25. Between March 2 and March 4, 2003, the preponderance

of evidence shows that the tracheal tube of Resident 1 was

clear. Nursing staff at the facility monitored Resident 1 three

times on March 3, 2003. Resident 1 had no breathing

difficulties and did not express any complaints or discomfort.

Resident 1 took her scheduled medications and meals on March 3,

2003.

26. The nurse on duty during the 11 p.m. to 7 a.m. shift

for March 4, 2003, provided oxygen and suctioning, "as needed,"

to Resident 1. This action would have cleared secretions, if

any, that would have been "accumulating" in the tracheal tube of

Resident 1.

27. Resident 1 placed her finger over the opening to her

tracheal tube when she spoke to the nurse about not feeling well

on March 4, 2003. Resident 1 covered her tracheal tube to force

air around her vocal cords so that the nurse could hear

Resident 1. It would not have been necessary for Resident 1 to

cover her tracheal tube if the tube were occluded.

28. The findings in paragraphs 25 through 27 are based on

notes prepared by the unit manager on March 4, 2003, in response

to the directive of the facility's risk manager. The risk

manager was responsible for investigating the incident and

required all nurses who had contact with Resident 1 on March 3

and 4, 2003, to document their experiences with Resident 1. The

unit manager then placed the accounts in the medical record.

29. Petitioner questions the credibility of the unit

manager notes because they are late-filed entries in the medical

records. The trier of fact finds the unit manager and her notes

to be credible and persuasive.

30. The testimony and notes of the unit manager are

consistent with the apparent determination by EMT personnel that

the tracheal tube was clear. In addition, the Medication

Administration Record for March 4, 2003, indicates that

Resident 1 received a dose of an ordered medication at 6:00 a.m.

and did not complain of not feeling well until some time later.

31. If the notes and testimony of the unit manager were

disregarded, the trier of fact cannot ignore the administration

of oxygen by EMT personnel. The preponderance of evidence shows

that the tracheal tube of Resident 1 was clear when EMT

personnel administered oxygen.

32. If it were determined that the tracheal tube of

Resident 1 were fully occluded at the facility before Resident 1

collapsed on March 4, 2003, such a finding would not alter the

outcome of this case. Petitioner failed to show by a

preponderance of evidence that an occlusion occurred as a

consequence of inadequate assessment or monitoring.

33. Resident 1 had normal oxygen saturation levels on

March 2, 2003. The preponderance of evidence does not show that

facility staff had reason to believe that the tracheal tube of

Resident 1 was occluded after March 2, 2003, and failed to take

action to clean the tube prior to the time Resident 1 collapsed

on March 4, 2003.

34. There is no preprinted or accepted assessment form for

nursing homes to use to assess and monitor the ability of

Resident 1 to clean her own tracheal tube. The parties agree

that the process involves nothing more than a simple observation

of Resident 1 to confirm that she understood and could clean the

tracheal tube either by suctioning or coughing.

35. Resident 1 was capable of cleaning her tracheal tube.

Relevant orders from the treating physician did not require

cleaning to be performed by facility staff. One physician's

order indicated that Resident 1 could participate in her own

self-care. Another physician's order indicated that Resident 1

was to have "trach care" three times a day, but did not describe

the nature and scope of the care or designate who was to provide

such care. Another physician's order indicated that Resident 1

was to receive oxygen through her tracheal collar while in bed

and "suction trach as needed." However, nothing in the order

indicated who was to provide those services.

36. Resident 1 had her tracheal tube for more than a year

prior to March 4, 2003. Facility staff routinely observed

Resident 1 successfully suctioning and otherwise cleaning her

own tracheal tube. Resident 1 also routinely notified staff

when she could not remove a blockage in her tube.

37. Facility staff appropriately determined that Resident

1 was capable of performing self-care on her tracheal tube. It

was appropriate for facility staff to rely on Resident 1 to

inform them if Resident 1 were unable to clean the tube. Her

transfer to the hospital on March 4th and her subsequent death

were not the product of any inadequate or erroneous assessment

or monitoring of Resident 1.

38. On May 12, 2003, Petitioner conducted another

complaint investigation of the facility. Petitioner determined

that Respondent failed to provide adequate care for pressure

sores for three residents identified in the record as Residents

1A, 4, and 5, in violation of 42 CFR Section 483.25(c). Florida

Administrative Code Rule 59A-4.1288 applies the federal

requirements for pressure sore care to nursing homes in Florida.

39. Petitioner assigned the charged deficiency a class II

rating. Petitioner determined that a Class II rating was

appropriate because actual harm or a negative outcome allegedly

occurred with each of the residents cited in the deficiency.

40. Petitioner changed the license rating for the facility

from Standard to Conditional within the meaning of Section

400.23(7), Florida Statutes (2003). The change in license

rating was effective May 12, 2003, and continued until June 16,

2003, when Petitioner changed the rating to Standard.

41. Petitioner also proposes a $5,000 fine against

Respondent. The fine is calculated by doubling the prescribed

fine of $2,500, based on the alleged deficiency in the survey

conducted on March 11, 2003, in accordance with Section

400.23(8)(b), Florida Statutes (2003).

42. For reasons stated in previous findings, Respondent

committed no violation in connection with the survey conducted

on March 11, 2003. The fine for the alleged deficiency found on

May 12, 2003, cannot exceed $2,500.

43. Petitioner alleges that the pressure sore care

provided by Respondent for Residents 1A, 4, and 5 violated 42

CFR Section 483.25(c). In relevant part, 42 CFR Section

483.25(c) requires a nursing home to ensure that:

[a] resident who enters the facility without

pressure sores does not develop pressure

sores unless the individual's clinical

condition demonstrates that they were

unavoidable; and a resident having pressure

sores receives necessary treatment and

services to promote healing, prevent

infection, and prevent new sores from

developing.

42 CFR Section 483.25(c)

44. Petitioner alleges that Respondent failed to provide

Resident 1A with necessary treatment and services to promote

healing of an existing pressure sore on the coccyx of

Resident 1A. Resident 1A acquired the pressure sore before

Respondent admitted Resident 1A to the facility. In April 2003,

Resident 1A had surgery to cover the pressure sore with a skin

graft taken from her thigh. The surgery required approximately

sixty staples to secure the graft.

45. The alleged improper care of Resident 1A is based on

several observations made by the surveyor on May 12, 2003. The

surveyor observed that the staples used in the surgical process

had not been removed even though a physician's order dated

April 16, 2003, directed staff to set up an appointment with the

plastic surgeon within two weeks of the date of the order. The

surveyor found no evidence that staff had scheduled an

appointment or taken any other steps to remove the staples. The

surveyor observed that the skin was reddened and growing over

some of the areas around the staples. The surveyor also

observed Resident 1A positioned on her back in bed in such a

manner that her weight was on her coccyx area.

46. The area in question was not a pressure sore.

Petitioner has adopted a written definition of a pressure sore

in the guidelines that Petitioner requires its surveyors to use

in interpreting the federal regulation at issue. In relevant

part, the guidelines define a pressure sore as:

. . . ischemic ulceration and/or necrosis of

tissues overlying a bony prominence that has

been subjected to pressure, friction or

sheer.

47. If the area of concern were the area over the coccyx

of Resident 1A, that area would have been over a "bony

prominence" within the meaning of definition of a pressure sore.

However, it is undisputed that the area of concern for

Resident 1A was located in the fleshy part of the buttocks where

staples were used to secure the skin flap to the skin. The area

of concern was a surgical wound site, rather than a pressure

sore because of its origin and location. The preponderance of

evidence shows that the area of concern failed to satisfy the

definition of a pressure sore adopted by Petitioner.

48. Section 120.68(7)(e), Florida Statutes (2003),

prohibits Petitioner from deviating from its officially stated

policy unless Petitioner explains the deviation. Petitioner

failed to provide any evidence to explicate legitimate reasons

for deviating from its written definition of a pressure sore in

this case.

49. Assuming arguendo the staples around the wound site

were a pressure sore, the preponderance of evidence shows that

Respondent provided necessary treatment to promote healing.

Respondent turned and repositioned Resident 1A every two hours

in accordance with standard protocol. That schedule included a

period during which Resident 1A was on her back in bed, with the

head of her bed elevated. The single observation by the

surveyor of Resident 1A on her back in bed did not show that

Respondent failed to properly turn and reposition Resident 1A.

50. The failure to timely comply with the physician's

order for Resident 1A to consult with a plastic surgeon did not

deprive Resident 1A of the care necessary to promote healing of

a pressure sore. The removal of staples from a skin flap is not

an element of required care for a pressure sore. Rather,

removal of staples is part of the established care for a

surgical wound site. The failure to timely provide a consult

was not a violation of the requirements for care of pressure

sores.

51. If the removal of staples were required for treatment

of pressure sores, the failure to timely obtain a consult and

the failure to timely remove the staples did not cause harm to

Resident 1A. The undisputed purpose of the physician's order to

see a plastic surgeon was to evaluate whether the staples should

be removed from the wound site. Respondent removed the staples

from the wound site shortly after the survey with no

complications to the resident. The surgical wound site healed

in a timely and complete manner. The absence of harm to

Resident 1A precludes a rating as a Class II deficiency.

52. Petitioner alleges that Respondent allowed avoidable

pressure sores to develop on Resident 4 and failed to provide

necessary treatment after the pressure sores developed. During

the survey, the surveyor and a nurse, who was a clinical

consultant to the facility, twice observed Resident 4 lying on a

special air mattress that was not inflated. After the second

observation, the surveyor and consultant examined Resident 4 and

observed what each determined to be two stage II pressure sores

on each of the outer heels of Resident 4, a stage IV pressure

sore on the right toe, two stage II areas on her left side above

her rib cage, and a stage II area under her left breast.

53. The surveyor and the nurse-consultant found nothing in

the medical record to indicate that these areas had been

previously identified by facility staff. Nor did they find any

treatment orders for the areas of concern.

54. The areas of concern were not pressure sores. It is

undisputed that pressure sores involve deep tissue damage, do

not heal quickly, and would have been present a few days later

during examination.

55. The director of nursing and the wound care nurse for

the facility examined Resident 4 on May 13, 2003, and found no

evidence of the areas that caused concern to the surveyor and

nurse-consultant on May 12, 2003. The director of nursing asked

the treating physician to examine Resident 4 to confirm the

director's observations. On May 19, 2003, the treating

physician examined Resident 4 and found no areas of concern on

Resident 4.

56. Resident 4 had no conditions that placed her at risk

for developing pressure sores. The failure to inflate the

special air mattress under Resident 4 did not create any risk

for pressure sores. The mattress had not been ordered for

Resident 4 and was not necessary for her care because Resident 4

was not at risk for developing pressure sores. Resident 4 was

on the mattress because she had moved into a new room, and

facility staff had not yet removed the mattress from the bed in

the room that was used by the previous occupant.

57. Petitioner alleges that Respondent failed to provide

necessary treatment to promote healing of existing pressure

sores on Resident 5. Resident 5 had three open areas on his

skin: one on each hip and one over the coccyx.

58. The areas on each hip were surgical wounds from hip

surgeries prior to admission to the facility. For reasons

stated in previous findings, these areas were surgical wound

sites and were not pressure sores.

59. It is undisputed that the remaining area on Resident 5

was a stage II pressure sore over the coccyx that was present

upon admission to the facility. During the survey, the surveyor

and the nurse-consultant observed Resident 5 on a specialty air

mattress that contained a number of air chambers. Two of the

chambers were not inflated. The surveyor and nurse-consultant

determined that the area over the coccyx had worsened to a stage

IV pressure sore. Petitioner alleges that Respondent failed to

provide necessary care to Resident 5 by failing to properly

inflate his specialty air mattress during the survey.

60. Respondent did not fail to properly inflate the air

mattress for Resident 5. The level of inflation of that

mattress is not determined or set by the facility. Rather, the

manufacturer calculates and sets the level of inflation for the

mattress.

61. The alleged failure to properly inflate the air

mattress did not cause harm to Resident 5. The director of

nursing observed the area of concern the day after the survey

and determined it to be a stage II, rather than a stage IV,

pressure sore. The clinical records that charted the size and

stage of the pressure sore for the month after the survey show

that the area was never more than a stage II pressure sore.

A stage IV pressure sore would not have improved to a stage II

sore within a month. Petitioner failed to show by a

preponderance of the evidence that the alleged improper

inflation of an air mattress caused the pressure sore on

Resident 5 to worsen from a Stage II to a Stage IV pressure

sore.

CONCLUSIONS OF LAW

62. DOAH has jurisdiction over the parties and subject

matter of this cause pursuant to Sections 120.569 and 120.57(1),

Florida Statutes (2003). The parties received adequate notice

of the administrative hearing.

63. Petitioner has the burden of proof in these

proceedings. The standard of proof, however, varies.

Petitioner must show by a preponderance of the evidence that

Respondent committed the deficiencies alleged as a basis for

changing Respondent's license rating from Standard to

Conditional. 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). Petitioner must show by clear and

convincing evidence that Respondent committed the deficiencies

alleged as a basis for the proposed administrative fines.

Department of Banking and Finance, Division of Securities and

Investor Protection v. Osborne Stern and Company , 670 So. 2d

932, 935 (Fla. 1996).

64. Petitioner failed to show by a preponderance of the

evidence that Respondent committed any of the alleged

deficiencies. In addition, Petitioner failed to show that the

alleged deficiencies caused harm to a resident. Beverly Health

Care v. Agency for Health Care Administration , 2004 WL 177018,

29 Fla. L. Weekly D316, (Fla. 5th DCA January 30, 2004).

65. The preponderance of evidence does not show the

existence of a Class I or II deficiency, or an uncorrected Class

III deficiency, within the meaning of Section 400.23(7)(a),

Florida Statutes (2003). Similarly, the preponderance of

evidence does not show a violation for which Section 400.23(8),

Florida Statutes (2003), authorizes Petitioner to impose a fine.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of

law, It is

RECOMMENDED that Petitioner enter a Final Order deleting

the disputed deficiencies from the survey reports for March 11

and May 12, 2003; replacing the Conditional ratings with

Standard ratings; and dismissing the proposed fines and

investigative costs with prejudice.

DONE AND ENTERED this 10th day of March, 2004, in

Tallahassee, Leon County, Florida.

S

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 10th day of March, 2004.

COPIES FURNISHED :

Gerald L. Pickett, Esquire

Agency for Health Care Administration

Sebring Building, Suite 330K

525 Mirror Lake Drive, North

St. Petersburg, Florida 33701

Donna Holshouser Stinson, Esquire

Broad and Cassel

215 South Monroe Street, Suite 400

Post Office Drawer 11300

Tallahassee, Florida 32302-1300

R. Davis Thomas, Jr.

Broad and Cassel

215 South Monroe Street, Suite 400

Post Office Box 11300

Tallahassee, Florida 32302-1300

Rhonda M. Medows, M.D., Secretary

Agency for Health Care Administration

Fort Knox Building, Suite 3116

2727 Mahan Drive

Tallahassee, Florida 32308

Valda Clark Christian, General Counsel

Agency for Health Care Administration

Fort Knox Building, Suite 3431

2727 Mahan Drive

Tallahassee, Florida 32308

Lealand McCharen, Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive, Mail Station 3

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 that

will issue the Final Order in this case.