10-004740 Agency For Health Care Administration vs. Sa-Pg--Sun City Center, Llc, D/B/A Palm Garden Of Sun City Status: Closed Recommended Order on Tuesday, December 21, 2010.

Summary: The Agency did not prove alleged deficiencies by clear and convincing evidence. The Administrative Complaint is dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION , )

)

Petitioner , )

)

vs. ) Ca se No. 10 - 4740

)

SA - PG SUN CITY CENTER, LLC, )

d/b/a PALM GARDEN OF SUN CITY , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to notice to all parties, a final hearing was

conducted in this case on September 16, 2010, in Bradenton,

Florida, before Administrative Law Judge R. Bruce McKibben of

the Division of Administrative Hearings

APPEARANCES

For Petitioner: James H. Harris, Esquire

Agency for Health Care Administration

Sebring Building, Suite 330D

525 Mirror Lake Drive North

St. Petersburg, Florida 33701 - 3242

For Respondent: R. Davis Thomas, Jr.,

Qualified Representative 1

SA - PG Sun City Center, LLC

Two North Palafox Street

Pensacola, Florida 32502

STATEMENT OF THE ISSUES

The issues in this case are whether Respondent, SA - PG Sun

City Center, LLC, d/b/a Palm Garde n of Sun City (hereinafter

"Palm Garden" or the "Facility") failed to follow established

and recognized practice standards regarding care to its

residents; and whether Respondent failed to comply with the

rules governing skilled nursing facilities adopted by

Petitioner, Agency for Health Care Administration (hereinafter

"AHCA" or the "Agency"). If the answer to those questions is in

the affirmative, then there is an issue as to what penalty

should be imposed on Respondent.

HOLDING: There is no competent a nd substantial evidence

that Palm Garden failed to follow established practice standards

that resulted in harm to its residents and fa iled to comply with

rules governing skilled nursing facilities, or that otherwise

warrants a fine or C onditional rating. Palm Garden was

marginally deficient in two minor areas concerning their own

policies, but neither violation is a Class II deficiency, nor

warrants imposition of a sanction.

PRELIMINARY STATEMENT

On or about June 17, 2010, AHCA filed an Administrative

Comp laint against Palm Garden, alleging certain violations

uncovered during a survey of the Facility. The complaint

notified Palm Garden of the intent to impose a fine in the

amount of $2,500.00 and to impose a Conditional license on the

Facility. Palm Garde n timely filed its Election of Rights,

seeking a formal administrative hearing. The request for

hearing was forwarded to the Division of Administrative

Hearings .

At the final hearing, AHCA called five witnesses: J.H.,

daughter of a resident; D.W., wife of a resident; Marilyn C.

Jones, health facility evaluator for AHCA; Vicki Hart,

registered nurse ("RN") surveyor; and Sandra Santiago, RN

s urveyor. J.H. was also called as a rebuttal witness.

Petitioner's Exhibits 1 through 5 were admitted into evidence .

Palm Garden called one witness, Andrea Cornwell, RN, director of

nursing. Respondent's Composite Exhibit 1 was admitted into

evidence.

A transcript of the final hearing was ordered by the

parties. The Transcript was filed at the Division of

Administra tive Hearings on October 5, 2010. By rule, parties

are allowed ten days to submit proposed recommended orders.

However, the parties requested and were given leave to submit

their post - hearing findings of fact and conclusions of law on

November 30, 2010. Each party timely submitted a P roposed

R ecommended O rder, and each was duly considered in the

preparation of this Recommended Order. Subsequent to the

Proposed Recommended Orders being filed, Palm Garden filed a

motion to strike portions of Petitioner's P roposed R ecommended

O rder. Petitioner filed a response to the motion. The motion

is adequately addressed in the Findings of Fact and Conclusions

of Law set forth herein.

FINDINGS OF FACT

1. AHCA is the state agency responsible for licensing and

monitor ing skilled nursing facilities in Florida. Part and

parcel of its duties is the inspection of all facilities on an

approximately annual basis. Further, AHCA may conduct a survey

of a facility upon receipt of a complaint from a third party

about operation s or conditions at a specific facility.

2. Palm Garden is a 120 - bed skilled nursing facility

located in Sun City, Florida. The Facility provides services to

private pay residents and is also certified to provide services

for residents under the Medicai d and Medicare reimbursement

programs. At all times relevant hereto, Palm Garden was

operating under a Standard nursing home license.

3. On April 26 through 30, 2010, AHCA conducted an annual

survey at the Facility. During the course of the survey, AHCA

surveyors made findings concerning two allegedly deficient

practices by the Facility. The deficiencies are identified as

follows: (1) One resident, identified herein as Resident 68,

complained of burning on urination and said no treatment was

offered to relieve the pain ; and (2) One resident, identified

herein as Resident 138, had wounds on his skin that his family

believes were not properly treated.

4. During the survey, Resident 68 purportedly complained

to a surveyor that she was currently having pai n when she

urinated and was not being treated for the condition. The

surveyor reviewed the resident's chart and determined that

Resident 68 had previously complained of urination pain on

April 10, 2010. In response to her complaint, a Diascreen test

was performed on that same date. The test came back negative

for urine infection. The test was normal in all regards, except

for glucose level. The resident was at 250 mg/dL (milligrams

per deciliter) of glucose when the normal range is between

50 and 150 m g/dL. The Agency expert opined that the glucose

level discrepancy renders the test result less reliable. In her

opinion, the report would be inconclusive as to whether a

urinary tract infection ("URI") existed. There are, as the

Facility's expert opined , other conditions, including diabetes,

which can cause a high glucose rating. Resident 68 suffered

from diabetes at the time the test was done. On balance, it

appears that the test was viable.

5. On the date the Diascreen test was performed, a

checklis t for potential URI was placed in the resident's

medication administration record. That checklist set forth a

protocol to follow over the next 72 hours in order to better

assess the resident's condition. There is no evidence the

protocol was followed. T he Facility's infection control nurse,

Sue Fuller, admitted that sometimes it is difficult to get all

nurses to strictly follow established procedures. However,

Resident 68 was receiving 24 - hour care by the Facility and was

monitored regularly as part of that care.

6. The resident's chart does not indicate any further

problems concerning urination pain until April 27, 2010, i.e. ,

day two of the annual survey. On that date, there is a doctor's

note indicating dysuria, i.e. , painful urination condition. T he

doctor prescribed Pyridium, a urinary antiseptic (not an

antibiotic) for treatment s . The physician did not order any

additional tests or other treatment. It is apparent a physician

was involved in Resident 68's care, but he did not diagnose

a UTI.

7. AHCA concluded from its investigation that Resident 68

suffered actual harm between April 10 and April 27, 2010,

because there is no documentation that the resident's pain was

being addressed. However, Palm Garden charts by exception,

meaning that they o nly place into the chart events which are

abnormal or negative. Ignoring the issue of whether that is the

best way to chart a resident's care, the absence of chart

notations relating to URI or painful urination means, from the

Facility's perspective, that there was no complaint of pain on

the days it was not mentioned. The resident was visited by a

physician on April 16 and 22, 2010, but the doctor's notes do

not indicate a complaint concerning pain when urinating. The

resident's chart does indicate that Resident 68's activities of

daily living, meal consumption, and therapy records reflect

normal activity without any notable exceptions. It is unlikely

an elderly person with an untreated UTI would be able to pursue

normal activities.

8. AHCA did not in dependently ascertain whether

Resident 68 experienced pain during the period between April 10

and April 27, 2010. The Agency's conclusion in that regard is

based on pure speculation by the surveyor. There is no

competent evidence that there was harm to t he resident. 2 The

resident purportedly told the surveyor that she (resident) had

experienced pain during that time, but the clinical records do

not support that claim. 3

9. During the survey, Resident 138 was noted to have two

skin wounds on his buttocks. The r esident's wife had complained

to surveyors about the wounds because she did not believe

appropriate treatment was being provided by the Facility. A

surveyor contacted the Facility's wound nurse to inquire about

the wounds, which the surveyor believ ed to be pressure sores.

No measurements had been taken of the wounds, a deficient

practice from the surveyor's perspective. The surveyor stated,

"And they were Stage II pressure ulcers. I mean, she was saying

they were excoriations, but they were on th e bony prominence.

It was a Stage II. It wasn't very deep when I saw it. The one

on the left buttocks was irregular, and the one on the right

buttocks was smaller. I didn't see any drainage and there was

no odor and it was actually superficial. It wou ld be a Stage II

pressure ulcer." (See Transcript, page 84.)

10. In fact, the wounds were considered excoriations,

rather than pressure sores by the Facility. The Facility's

director of n ursing, who was very familiar with Resident 138 and

had examined hi m prior to and during the survey, described the

wounds as excoriations based on the way they were healing.

Excoriations are not normally measured because they change

rapidly and tend to heal quickly. Conversely, pressure sores

must be measured as a par t of their on - going treatment because

they heal slowly and must be monitored. The surveyors found the

wounds to be very small and superficial. If they were pressure

sores, they would have been Stage I sore s . Stage I pressure

sores do not blanch. To bla nch means that if pressure is

applied to the area, blood would rush back after the pressure is

released. The wounds on Resident 138 were personally blanched

by the Facility's director of nursing. 4

11. There are other wounds that look like pressure sores,

but actually come about due to other causes. For example, a

sore may occur when a person lies in urine, thus, agitating the

skin. Sores may be caused by frequent contact with liquids and

by residents being moved in their beds.

12. There is no mention i n Resident 138's medical chart of

pressure sores. Rather, the doctor's notes refer to the

resident's wounds as open sores or excoriation. At one point

the Wound Treatment Evaluation Record for the resident listed a

Type I and a Type II for wound type and pressure ulcer stage.

However, that notation was later indicated as an error by the

wound nurse. There is no competent medical evidence that

Resident 138's wounds on his buttocks were pressure sores.

13. Nonetheless, the surveyors observed nursing staff

treating Resident 138's wounds and found some deficient

practices. A treating nurse put on gloves after setting up her

treatment table. The nurse then reached back and closed the

curtain around the resident's bed (a proper practice), but did

so with her gloved hand. That action would desterilize the

glove. She then began treating the resident without re - washing

her hands or re - gloving. The nurse then discarded the wound

dressing and changed gloves. However, she did not wash her

hands before changing gloves. She then poured saline on the

wounds as required. The surveyor at this point noted what she

believed were two wounds, neither of which was draining or had

an odor. The wounds were superficial, not deep, according to

the surveyor. At that point , the nurse cleaned both wounds

using the same piece of gauze. She then applied dressing to the

wounds, completing her treatment.

14. The surveyor found that touching the curtain with a

gloved hand was an infection control violation. So too was the

cleani ng of two wounds using the same piece of gauze. The

Facility opines that the treatment process was not a sterile

situation, until such time as the wound had been cleaned and

dressed. Touching the curtain before that process and changing

gloves without wa shing would not necessarily be deemed infection

control issues, although transferring germs from the curtain to

the wound area was a possibility. The wound area was not a

pressure sore, thus did not contain infection. It was,

therefore, proper to wash th e wound area with the same gauze

without violating infection control procedures.

15. It is the opinion of the AHCA surveyor that

Resident 138 had two wounds. She believed one wound was smaller

than the other and that neither of them were open or had odor,

but that each of them was a Stage II decubitus ulcer. It is the

opinion of the Facility that there were no decubitus ulcers on

the resident. Rather, the resident had an area of excoriation

that was treated pursuant to the doctor's orders. Based on the

greater degree of personal involvement with the resident and the

confirmation of their opinion by the treating physician, the

Facility's perception is given greater weight.

16. A number of treatments were used to address

Resident 138's wounds. An order f or hydrocolloid was entered,

followed by elimination of the hydrocolloid in favor of optase

jell, then discontinuance of the optase jell in favor of

methylex. The Facility properly followed the physician's

prescribed treatment for this resident. No persu asive, non -

hearsay evidence was presented as to the status of Resident

138's wounds as of the date of the final hearing, so there can

be no finding as to whether the wounds healed (an indication of

excoriation, rather than decubitus) or not (a contrary

ind ication).

CONCLUSIONS OF LAW

17. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

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

Florida Statutes (2010). 5

18. AHCA is asserting th e affirmative of the issue in this

case and, therefore, has the burden of proof. Inasmuch as the

fines proposed by AHCA are penal in nature, the standard of

proof is clear and convincing evidence. 6 Department of Banking

and Finance, Division of Securitie s and Investor Protection v.

Osbourne Stern & Co. , 670 So. 2d 932, 934 (Fla. 1996); see also

Young v. Department of Community Affairs , 625 So. 2d 831 (Fla.

1993).

19. Clear and convincing evidence has been described as

follows:

[C]lear and convincing ev idence requires

that the evidence must be found to be

credible; the facts to which the witnesses

testify must be distinctly remembered; the

testimony must be precise and explicit and

the witnesses must be lacking in confusion

as to the facts in issue. The evidence must

be of such weight that it produces in the

mind of the trier of fact a firm belief or

conviction, without hesitancy, as to the

truth of the allegations sought to be

established.

Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

2 0. AHCA has not proven by clear and convincing evidence

that the Facility failed to address Resident 68's dysuria or

that it failed to properly identify and treat Resident 138's

skin wounds. The evidence presented by AHCA does not have

sufficient weight t o produce a firm belief or conviction in the

mind of the Administrative Law Judge. Further, the testimony of

the Agency's expert was less credible than that of the

Facility's professional staff.

21. AHCA has proven by clear and convincing evidence that

th e Facility did not properly follow all the steps outlined on

its checklist for potential UTI concerns. However, there was no

persuasive evidence that the failure resulted in any harm to

Resident 68. Further, it is clear that Resident 68 continued to

rece ive daily care, even though the prescribed steps were not

followed.

22. AHCA has also proven by clear and convincing evidence

that a Facility nurse did not adequately follow all of the

proper infection control procedures. The process employed by

the wound care nurse could have been better. Again, however,

there is no evidence that the errors resulted in any harm to

Resident 138.

23. Section 400.022, Florida Statutes, says in pertinent

part:

(1) All licensees of nursing home

facilities shall adopt and m ake public a

statement of the rights and responsibilities

of the residents of such facilities and

shall treat such residents in accordance

with the provisions of that statement. The

statement shall assure each resident the

following:

* * *

( l) The right to receive adequate and

appropriate health care and protective and

support services, including social services;

mental health services, if available;

planned recreational activities; and

therapeutic and rehabilitative services

consistent with the resident care plan, with

established and recognized practice

standards within the community, and with

rules as adopted by the agency .

24. The Agency may suspend or revoke a license or impose

an administrative fine for failure to comply with the above

cit ed provision. Further, the Agency may impose sanctions in

accordance with Section 400.121, Florida Statutes, which states:

(1) The agency may deny an application,

revoke or suspend a license, and impose an

administrative fine, not to exceed $500 per

v iolation per day for the violation of any

provision of this part, part II of

chapter 408, or applicable rules, against

any applicant or licensee for the following

violations by the applicant, licensee, or

other controlling interest:

(a) A violation of any provision of this

part, part II of chapter 408, or applicable

rules; or

* * *

(2) Except as provided in s. 400.23(8), a

$500 fine shall be imposed for each

violation. Each day a violation of this

part or part II of chapter 408 occurs

consti tutes a separate violation and is

subject to a separate fine, but in no event

may any fine aggregate more than $5,000. A

fine may be levied pursuant to this section

in lieu of and notwithstanding the

provisions of s. 400.23. Fines paid shall

be deposited in the Health Care Trust Fund

and expended as provided in s. 400.063.

25. Under Section 400.23, Florida Statutes, there is a

definition of a Class II deficiency. Subsection (8) of that

statute says:

(8) The agency shall adopt rules pursuant

to this p art and part II of chapter 408 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. . . .

* * *

(b) A class II deficiency is a deficiency

that the agency determines has compromised

the residentÓs 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 ca re, and

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. The fine amount

shall be doubled for each deficiency if th e

facility was previously cited for one or

more class I or class II deficiencies during

the last licensure inspection or any

inspection or complaint investigation since

the last licensure inspection. A fine shall

be levied notwithstanding the correction o f

the deficiency.

26. There is no competent and substantial evidence that

the actions of the Facility compromised either resident's

ability to maintain their highest practicable physical, mental

or psychological well - being. AHCA's expert stated that the

distinction between a Class II and Class III deficiency is that

with a Class II, there is actual harm to the resident. In the

case of the two residents at issue in this proceeding, there was

no showing of actual harm. 7

27. There is no persuasive, non - hear say evidence to

support the existence of actual harm to either resident as a

result of the Facility's actions.

28. There is no basis in law or fact warranting a fine or

imposition of a Conditional licensure rating for the Facility.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered by Petitioner,

Agency for Health Care Administration, denying the imposition of

a fine or a C onditional license against Respondent, SA - PG Sun

City Ce nter, LLC, d/b/a Palm Garden of Sun City, and dismissing

the Administrative Complaint.

DONE AND ENT ERED this 21st day of December , 2010 , in

Tallahassee, Leon County, Florida.

S

R. BRUCE MCKIBBEN

Administrative Law Judge

Division of Administrative Hearin gs

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 21st day of December , 2010 .

ENDNOTES

1/ Mr. Thomas is an attorney, but is not licensed to practice in

the state of Florida. He was accepted as a qualified

representative in this matter pursuant to Florida Administrative

Code Rule 28 - 106.106.

2/ It should be noted that much of the surveyor 's determinations

were allegedly based on the statements of residents, but there

was no persuasive non - hearsay evidence to support the surveyor's

findings.

3/ There would be no reason not to believe the testimony of the

resident had she testified, but re liance on hearsay

representations allegedly made by the resident are not

sufficient for making a finding of fact in this matter .

4/ Any decubitus ulcer beyond a Stage I would not be blanched.

Once a wou n d reached that level, there would be no need or

re ason to blanch it.

5/ Unless specifically stated otherwise herein, all references

to Florida Statutes shall be to the 2010 version.

6/ While it may be argued that the imposition of a Conditional

licensure rating may require a preponderance of the evi dence

standard, inasmuch as the elements to prove each allegation in

the Administrative Complaint are the same, the higher standard

of proof will apply.

7/ Actual harm is not technically an element of the Class II

(State) deficiency, but inasmuch as the senior nurse on the

survey team used the term in describing the alleged

deficiencies, it is addressed herein.

COPIES FURNISHED :

Thomas W. Arnold, Secretary

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308 - 5 403

Justin Senior, General Counsel

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308 - 5403

Richard J. Shoop, Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308 - 5403

James H. Harris, Esquire

Agency for Health Care Administration

Sebring Building, Suite 330D

525 Mirror Lake Drive North

St. Petersburg, Florida 33701 - 3242

R. Davis Thomas, Jr.

SA - PG Sun City Center, LLC

Two North Palafox Street

Pensacola, F lorida 32502

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.