14-000436 Agency For Health Care Administration vs. Tallahassee Facility Operations, Llc, D/B/A Consulate Health Care Of Tallahassee Status: Closed Recommended Order on Wednesday, December 31, 2014.

Summary: Agency demonstrated that skilled nursing facility committed one uncorrected Class III deficiency, meriting conditional licensure and $1,000 fine.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE

ADMINISTRATION ,

Petitioner,

Cas e No. 1 4 - 0436

vs.

TALLAHASSEE FACILITY

OPERATIONS, LLC, d/b/a

CONSULATE HEALTH CARE OF

TALLAHASSEE ,

Respondent.

/

RECOMMENDED ORDER

On March 25, 2014 , an administrative hearing in this case

was held in Tallahassee , Florida, before Lawrence P. Stevenson,

Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: John E. Bradley, Esquire

Agency for Health Care Administration

The Sebring Building, Suite 330

525 Mirror Lake Drive North

St. Petersburg, Florida 33701

For Respondent: George Huffman , Esquire

Consulate Health Care

5102 West Laurel Street , Suite 700

Tampa , Florida 3 3607

STATEMENT OF THE ISSUE S

The issue s in this case are: whether Respondent,

Tallahassee Facility Operations, LLC, d/b/a Consulate Health

Care of Tallahassee (ÐConsulateÑ), committed a Class III

deficiency at the time of a complaint survey conducted o n

July 2, 2013; whether Consulate committe d two further Class III

deficiencies at a revisit survey on August 12, 2013; and, if

Consulate did commit the alleged Class III deficiencies found

during the surveys on July 2 and August 12, 2013, whether the

latter deficiencies constituted Ðuncorrected de ficienciesÑ

meriting the imposition of a $1,000 fine and the issuance of a

conditional license to Consulate for the period August 13, 2013

through September 30, 2014.

PRELIMINARY STATEMENT

A two - count Administrative Complaint , dated November 6 ,

20 13 , was filed by Petitioner, Agency for Health Care

Administration ("AHCA"), against Consulate, notifying Consulate

that AHCA intended to impose an administrative fine in the

amount of $1,000 and conditional licensure status beginning on

August 13, 2013, based on one uncorrected Class III deficiency

discovered during a revisit survey inspection conducted on

August 12, 2013.

Consulate denied the allegations and timely requested a

formal hearing. The matter was forwarded to the Division of

Administrative Hearings ("DOAH") for hearing on January 27,

2014. The case was scheduled for hearing on March 25 and 26,

2014. The hearing was convened and completed on March 25, 2014 .

At the hearing, AHCA presented the testimony of three AHCA

employees: Susan Page , a register ed nurse specialist surveyor

accepted as an expert in nursing; Debra Ball, a registered nurse

specialist accepted as an expert in nursing ; and Patricia

McIntire, a registered nurse consultant supervisor. AHCA's

Exhibits 1 through 4, 6, 8, and 9 were accep ted into evidence by

stipulation of the parties. AHCAÓs Exhibits 5, 7, and 10 were

accepted into evidence through witnesses at the hearing.

Consulate presented the testimony of Barbara Stevens, its vice

president of clinical services for the district , in cluding the

Tallahassee facility in question. Consulate 's Exhibits 2 and 3

were admitted into evidence by stipulation of the parties .

A two - volume Transcript of the hearing was filed at DOAH on

April 1 7, 20 14 . RespondentÓs request for an extension of the

period within which to file Proposed Recomm ended Orders was

granted by an O rder dated April 24, 2014. The parties submitted

their Proposed Recommended Orders on May 13, 2014 , in compliance

with the April 24, 2014 , O rder.

FINDINGS OF FACT

1. AHCA is the state agency charged with licensing of

nursing homes in Florida under s ection 400.021(2), Florida

Statutes, and the assignment of a licensure status pursuant to

section 400.23(7), Florida Statutes. 1 / AHCA is charged with

evaluating nursing home facilities to determine their degree of

compliance with established rules as a basis for making the

required licensure assignment.

2. Pursuant to s ection 400.23(8), AHCA must classify

deficiencies according to the ir nature and scope when the

criteria established under s ection 400.23(2) are not met. The

classification of the deficiencies determines whether the

licensure status of a nursing home is "standard" or "conditional"

and the amount of the administrative fine that may be imposed, if

any.

3. During the surv ey of a facility, if violations of

regulations are found, the violations are noted on the

prescribed form and referred to as "Tags." A tag identifies the

applicable regulatory standard that the surveyors believe has

been violated, provides a summary of th e violation, and sets

forth specific factual allegations that the surveyors believe

support the violation.

4. Consulate operates a 120 - bed nursing home at

1650 Phillips Road in Tallahassee and is licensed as a skilled

nursing facility.

July 2, 2013 , compl aint survey

5. Having received c omplaints alleging ConsulateÓs failure

to follow physician - ordered plans of care for residents, AHCA

sent a survey team to conduct a survey of the facility on July 2,

2013.

6. R egistered nurse specialist surveyor Susan Pag e was

specifically directed to examine the facilityÓs procedures

regarding activities of daily living (ÐADLsÑ) and its practices

in following physiciansÓ plans of care.

7. Ms. Page reviewed the records of Resident 1, a male

resident who had suffered a fra ctured pelvis in a fall at his

home. He had been fitted with an external fixation device to

stabilize the fracture and was admitted to Consulate for

rehabilitative care. The external fixation device was anchored

by metal pins that were inserted throug h t he skin and into the

bone. When the fixator was removed, a small wound remained at

the pin site on Resident 1Ós hip.

8. Resident 1 had been di scharged on June 27, 2013.

Ms. PageÓs review was thus limited to the facilityÓs records.

She looked at the gen eralized history of the resident, the

physician orders, the grievance log, the ADL treatment record,

care plan, and the Minimum Data Set information on Resident 1.

9. Ms. Page disco vered a written physician order dated

June 1, 2013, that directed Consulat e staff to clean the pin site

with Betadine then wash off the Betadine and cover the wound with

gauze twice a day for seven days, and afterwards to wash the

wound with soap and cover it d aily. The order directed a ten - day

course of Zyvox, an antibiotic. Finally, the physician order

stated, ÐMake sure [patient] showers daily.Ñ

10. Ms. Page testified that she reviewe d other physician

orders that showed chang es in pain medications and indicated that

Resident 1 was having issues with loose stool or diarrhea. He

was tested for the bacterium Claustridium difficile (Ð C. diff Ñ)

in his stool.

11. Ms. Page reviewed ConsulateÓs ADL Flow Record for

Resident 1 and discovered that during the period from June 1 to

June 27, the resident was given a shower on only seven days,

despite the physicianÓs order that he receive a daily shower. On

four days during that period, Resident 1 received no form of body

cleansing. On the remaining days, he was given bed baths.

12. M s. Page and Debra Ball, a registered nurse specialis t

who was part of the survey team , each testified that a bed bath

is not commensurate with a shower. A shower involves clean

water running over the entire body, allowing the body to be

clean s ed with soap and rinsed with clean water. A bed bath

involves a tub of soapy water and a tub of clean water. The

resident remains in the bed and the staff person wipes the

resident off as best she can. The resident is not immersed in

clean water.

1 3 . Ms. Page explained the significance of ConsulateÓs

failure to fol low physician orders for Resident 1. The

residentÓs recent surgery provided a portal of entry for

bacteria into the body, and the physicianÓs orders were designed

to work in combination to minimize the possibility of infection.

The daily shower was an es sential part of the physicianÓs plan

of care for Resident 1. A shower is invaluable in keeping low

the bacteria count on the residentÓs skin. The shower was

especially important in this situation because of the pin site

location on Resident 1Ós hip and h is noted problems with loose

stools and possible C. diff infection.

1 4 . Ms. Page, opining as an expert in nursing, testified

that the failure to follow the physician order in this case

potentially compromised Resident 1Ós ability to maintain or

reach h is highest practical mental, physical, or psychosocial

well - being. Ms. Page specifically testified that due to the

position of the wound site, the loose stools, and the fact that

the portal of entry led directly to the bone, Resident 1 had a

potential to contract cellulitis or osteomyelitis as a result of

the deficiency. Ms. Page conceded the efficacy of cleansing

with Betadine, but noted that the antibacterial cleansing was

prescribed for only seven days and that the failure to give

showers as prescribed occurred on consecutive days after the

Betadine prescription had expired.

1 5 . As a result of the failure to provide showers or to

note in the record any reason for that failure, the facility was

cited for violating Florida Administrative Code r ule 59A -

4 .107(5), which provides: Ð All physician orders shall be

followed as prescribed, and if not followed, the reason shall be

recorded on the residentÓs medical record during that shift.Ñ 2 /

The deficiency tag correlating to this violation is Tag N054.

Consul ate was cited with a Class III deficiency for this

violation.

1 6 . Ms. Page testified that the decision to classify the

July 2, 2013 , deficiency as Class III was rea ched by a consensus

of the four - person survey team, all registered nurses, and was

based on the facts of the case and the statutory definition set

forth in section 400.23(8)(c):

A class 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

h as the potential to compromise the

residentÓs 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.

1 7 . Ms. Ball agreed that Consulate should be cited for

violating rule 59A - 4.107(5) and that the violation should be

classified as Class III. Ms. Ball testified that in her

experience it is not unusual for a physician to direct the

manner in which the cl eansing of a post - operative patient should

occur. She noted that the pin siteÓs portal of entry went into

the bone and that bone infections have high morbidity and

mortality rates. Ms. Ball further noted the variety of

infections that could occur in a ca se such as Resident 1Ós:

osteomyelitis, enterococcus, candida, methicillin - resistant

staphylococcus aureus (ÐMRSAÑ), and the most common one,

staphylococcus. Some of these infections could be life

threatening.

1 8 . Ms. Ball, who was accepted as an expe rt in nursing,

offered the opinion that the failure to follow the physician

order for showers had the potential to cause a surgical site

infection, which in turn had the potential to compromise

Resident 1Ós ability to maintain or achieve his highest

practi cal physical well - being. Ms. Ball testified that an

infection is never the sort of Ðminor impactÑ contemplated by

the statutory definition of a Class IV deficiency. Ms. Ball

testified that each of the four registered nurses on the survey

team agreed that the failure to follow physician orders had the

potential to compromise Resident 1Ós health and that the

violation should be classified as Class III.

19 . Patricia McIntire is a registered nurse consultant

supervisor for AHCA. Her duties include reviewing cited

deficiencies and ensuring that the evidence cited by the survey

teams meets the requirements of the applicable statutes and

regulations. Ms. McIntire was the supervisor who reviewed the

July 2, 2013 , survey file. She agreed that the cited deficien cy

should be classified as a Class III deficiency.

2 0 . AHCAÓs citation gave Consulate until August 2, 2013,

to correct the deficiencies noted in the survey.

August 12, 2013 revisit survey

2 1 . Ms. Ball was sent to conduct a revisit survey of

Consulate on August 12, 2013 in order to determine whether the

previous def iciencies had been corrected. Ms. Ball was

specifically looking for ConsulateÓs compliance with physician

orders and the correction of the federal citation related to

ADLs.

2 2 . Ms. Ball want ed to survey a sample of residents that

would include both aspects of the corrections she sought. She

knew that residents receiving pain medications would have

physician orders for the medications. She therefore asked the

facility to provide the records of residents who were receiving

both pain medications and assistance with ADLs. Resident 1 and

Resident 3 met those criteria .

2 3 . Resident 1 , who was not the same person as the Resident

1 cited in the July 2 survey , h ad a physician order dated

July 2 6, 2013, to change her peripheral inserted central

catheter (ÐPICCÑ) dressing every seven days starting on August 1.

When Ms. Ball checked the PICC dressing on Resident 1, she saw a

notation on the dressing indicating that it had last been changed

on Augu st 3, nine days prior to the revisit.

2 4 . Ms. Ball testified as to her experience with PICC

dressing changes as follows:

IÓve done these dressing changes for years.

A central line dressing change, weÓre not

talking about a piece of gauze and a piece of

tape. You actually use an adherent Tegaderm

dressing. ItÓs like Saran Wrap. Picture

Saran Wrap and when you put it on something,

it sticks. Picture Saran Wrap with a sticky

surface, a sticky bottom. So you have this

clear 4 - by - 4 - inch, itÓs a standard size, a

clear sticky dressing of Tegaderm.

Within your dressing kits Ï because these

dressings have kits that you have to buy.

ItÓs a very involved, long, tedious process

to do a dressing change on a PICC. IÓve done

several. When you do this dressing ch ange,

which isnÓt just changing the dressing, it

includes a cleaning to disinfect and reduce

the number of microorganisms on your skin and

then some of them have like a little biofilm.

ItÓs a little patch that you put where the

catheterÓs going into the v essel. And that

biofilm is designed to ki n d of provide a

barrier for seven days. I think thatÓs

probably one of the reasons itÓs done every

seven days.

So youÓve got this clear dressing, this 4 - by -

4 - inch Saran - Wrap - appearing thing that has a

sticky to i t. And itÓs not easy to peel off.

Well, when you change a dressing, within your

kit, you also have this little label. It

measures about maybe 1 - by - 2 inches. It says

ÐdateÑ and Ðinitials.Ñ And what you do is

when you change that dressing, within your

k it, which has a lot of stuff in it, you take

the little label after youÓve sealed it, and

you put that other sticky label on top of

that Saran Wrap type dressing.

Well, picture taking a piece of adhesive tape

off a piece of Saran Wrap. I challenge you.

It canÓt be done. ItÓs going to tear it. So

there would be no reason for that dressing to

still bear that date of August the 3rd if it

had been changed since then.

2 5 . Ms. Ball testified that it is a basic standard - of - care,

established by the Centers for Disease Control (ÐCDCÑ) and many

other entities, that PICC - line dressings should be changed every

seven days. Ms. Ball testified that the primary risk associated

with failure to change PICC dressings as directed is CLABSI,

which is the CDCÓs acronym f or a central line associated blood

infection. She stated that 250 deaths a day are associated

with central line associated blood infections. Ms. Ball

testified that the potential harm is so great that the CDC has

developed initiatives for surgical site i nfections and central

line associated blood infections.

2 6 . Ms. Ball saw the date of August 9 scribbled on a white

label stuck to the dressing but she disregarded it because it was

not on the label provided in the PICC dressing kit. She spoke to

Consulat eÓs unit manager, who stated that the note on the white

label had been made by a Licensed Practical Nurse (ÐLPNÑ). The

unit manager confirmed that LPNs do not perform PICC dressing

changes but nonetheless told Ms. Ball that the dressing must have

been cha nged on August 9. However, the nurseÓs notes and other

medical records indicated no dates other than August 3 for a

PICC - dressing change for Resident 1.

2 7 . Ms. Ball asked Resident 1 when the PICC dressing was

last changed but the Resident could not sa y .

2 8 . ConsulateÓs medication log confirmed that the dressing

had not been changed since August 3. Ms. Ball testified that

she looked at the medication record, nurseÓs notes, and

treatment record and could not find any evidence in any record

kept by th e facility that the PICC dressing had been changed

since August 3. Ms. Ball was also unable to find any evidence

that the PICC dressing had been changed from July 26 to August 3,

2013.

29 . Ms. Ball concluded that the PICC dressing for Resident

1 had not been changed from August 3 to the date of the revisit

survey, August 12, 2013, a perio d of more than seven days.

Ms. Ball also concluded that the PICC dressing had not been

changed from July 26 to August 3, 2013, also a period of more

than seven days. Co nsulateÓs records gave no reason why the

physician order to change the dressing every seven days had not

been followed.

3 0 . The physician order required a PICC - dressing change on

August 1, 2013. Ms. Ball found no document ation of a PICC -

dressing change f or Resident 1 on August 1, 2013.

3 1 . After she encountered problems with Resident 1Ós

treatment, Ms. Ball reviewed the record of Resident 3, who had a

physician order dated July 23, 2013, to change her PICC dressing

every seven days. Ms. Ball could find no documentation showing

that a dressing change occurred from July 23 to August 2, 2013, a

period of more than seven days. The facilityÓs records also gave

no indication as to why the dressing change had not occurred.

3 2 . AHCAÓs July 2, 2013 , notice of d eficiency required

Consulate to complete all corrections by August 2, 2013 . The

failures to perform PICC - dressing changes for Residents 1 and 3

occurred on or after August 2 , the date by which all corrections

were to be completed .

3 3 . On August 12, 2013, Consulate was cited with an

uncorrected deficiency for again violating rule 59A - 4.107(5), by

failing to follow physician orders or to document reasons why the

orders were not followed.

3 4 . Ms. Ball testified as to the similarities between the

deficient p ractices found in the July 2 survey and the August 12

revisit survey . In both cases, Residents had orders for specific

types of treatment. Both cases involved residents with impaired

skin integrity that substantially increased the risk of

infection. In both cases, the facility failed to show it was

following physician orders.

3 5 . Ms. Ball testified that the July 2 deficiency involved

the potential for infection to the bone, a Ðvery complex, very

devastatingÑ type of infection. She noted that the August 12

deficiencies involved central lines going directly to the

residentsÓ hearts. She stated, ÐThey both have potential for

serious harm or a potential to keep you from getting well or

increasing your stay or possibly killing you. Ultimately, you

could di e from either one.Ñ

3 6 . Ms. Ball testified that in her opinion, ConsulateÓs

failure to follow physician orders for Residents 1 and 3

potentially compromised their ability to maintain or reach their

highest practical, mental, or psychological well - being.

Ms. Ball testified that AHCA does not assign a specific

classification for all deficiencies related to failure to follow

physician orders. Each deficiency is assigned a classification

based on an application of the statutory definitions to the facts

of th e specific case under consideration. In this case, Ms. Ball

had no doubt that ConsulateÓs failure to follow physician orders

constituted a Class III deficiency.

3 7 . Ms. McIntyre testified that she reviewed the facts

related to the August 12, 2013, revisi t survey. She agreed that

Consulate failed to follow physician orders in accordance with

r ule 59A - 4.107(5), that ConsulateÓs failure s to follow physician

orders w ere properly classified as Class III deficienc ies , and

that they constituted an uncorrected d eficiency from the July 2,

2013 , complaint survey .

The plan of correction

3 8 . Section 400.23(8)(c) provides in part: ÐA citation for

a class III deficiency must specify the time within which the

deficiency is required to be corrected. If a class III

def iciency is corrected within the time specified, a civil

penalty may not be imposed.Ñ Section 408.811(4) provides that a

deficiency must be corrected within 30 calendar days after the

provider is notified of inspection results unless an alternative

timefra me is required or approved by the agency. Section

408.811(5) provides: Ð The agency may require an applicant or

licensee to submit a plan of correction for deficiencies. If

required, the plan of correction must be filed with the agency

within 10 calendar days after notification unless an alternative

timeframe is required. Ñ

39 . After the July 2, 2013 , complaint survey, AHCA sent to

Consulate a letter dated July 12, 2013, stating that

ÐDeficiencies must be corrected no later than August 2, 2013,Ñ

and requ iring Consulate to file a plan of correction within ten

days. The letter provided that the plan must contain the

following:

* What corrective action(s) will be

accomplished for those residents found to

have been affected by the deficient

practice;

* Ho w you will identify other residents

having potential to be affected by the same

deficient practice and what corrective

action will be taken;

* What measures will be put into place or

what systematic changes you will make to

ensure that the deficient prac tice does not

recur; and,

* How the corrective action(s) will be

monitored to ensure the deficient practice

will not recur, i.e., what quality assurance

program will be put into place.

4 0 . On July 21, 2013, Consulate submitted a plan of

correction that provided as follows as pertai ns to T ag N054,

failure to follow physician orders:

* Resident #1 has been discharged from the

facility on 6/27/2013.

* An audit has been conducted for current

residents shower preferences and an audit

has been conducted of current resident ADL

sheets.

* Re - inservice staff on giving showers per

shower schedule. Shower sheets will be

reviewed 5 times weekly in the clinical

meeting for completion. [CNAs] will

complete shower sheets daily and the nurse

will verify that a sh ower has been given.

* Findings will be reviewed at the monthly

QA/PI committee meeting to ensure

substantial compliance.

4 1 . On July 24, 2013, AHCA sent a fax to Consulate stating

that its plan of correction had been approved on June 18, 2003.

4 2 . Ba rbara Stevens, ConsulateÓs vice president of

clinical services , testified that Consulate completed the

corrective work proposed in the plan of correction on or before

August 2, 2013.

4 3 . Consulate contends that AHCAÓs approval of its plan of

correction , without requiring additional conditions or actions,

effectively preempts AHCA from finding that the August 12

deficiencies are uncorrected deficiencies from the July 2

survey. AHCA accepted the proposed plan , Consulate performed

the plan , and no deficien cies involving showers or other ADLs

were a part of the August 12 deficiency findings. In other

words, the failure to follow physician orders deficiencies found

in the August 12 survey should not be considered ÐuncorrectedÑ

because they were unlike the fa ilure to follow physician orders

deficiency found in the July 2 survey.

4 4 . Ms. Ball testified that when AHCA conducts a revisit

survey, it is not looking for compliance with a facilityÓs plan

of correction ; it is looking for compliance with statutes and

regulations. She noted that T ag N054 specifically addresses

failure to follow physician orders, not failure to shower a

resident. ConsulateÓs plan entirely neglected to address what

it intended to do going forward to assure that physician orders

woul d be followed. She noted that virtually the same plan of

correction was submitted for T ag F312, the federal ADL

violation, and further noted that it should have been obvious

that different actions would be required to correct a failure to

provide ADLs and to correct a failure to follow physician

orders.

4 5 . Ms. Ball testified that AHCA cannot lead a facility by

the nose and tell it how to come into compliance. The facility

is expected to know and follow the statutes and rules and to

understand what it ne eds to do to come into compliance. She

conceded that nothing in the plan of correction would hav e

prevented the subsequent PICC - dressing violations, but opined

that this was a flaw in the plan , not with AHCAÓs determination

that the PICC - dressing issue co nstituted an uncorrected

deficiency. Consulate Ðmissed the boatÑ by failing to address

physician orders in its plan and paid the price during the

August 12 revisit survey .

4 6 . Ms. McIntire testified that ConsulateÓs plan of

correction touched on some of the subjects of its July 2

deficiencies, namely ADLs, but that AHCA expects the facility to

correct everything cited in the notice of deficiency. AHCA

expected Consulate to look holistically at all physician orders,

not merely those related to ADLs. Ms. McIntire testified that

when a facility is cited under the physician order tag, the

facility will typically look at its entire resident population

and establish a mechanism for determining whether staff is

following physician orders. The facility is expec ted to

implement whatever corrective actions are necessary to bring it

back into compliance, not just for the few residents sampled in

the survey but for all of them. It is up to the facility to

decide what tool or mechanism it will use to correct the

def icient practice.

4 7 . Ms. McIntire testified that AHCA cannot reject a plan of

correction on the assumption that the facility did not intend to

address physician orders. She stated that AHCA accepted

ConsulateÓs plan because it did address some of the def icient

practices that were identified, but that Consulate was

nevertheless expected to correct every area in which it was found

out of compliance.

4 8 . Ms. McIntire stated that f ollowing the plan of

correction does not bring the facility into compliance be cause

AHCA surveys for compliance with the regulat ions, not the plan of

correction . Ms. McIntire stated tha t ConsulateÓs plan of

correction included nothing that would have prevented the

defic iency found on August 12 under T ag N054, but that the plan

did correct T ag F312.

49 . Ms. McIntire testified that the plan of correction is a

Ðjumping off pointÑ for AHCA. The agency wants to see how

comprehensively the facility is looking at deficient practices.

AHCA proceeds on a good faith assumption that the fac ility is

going to look at all of its residents who could have been

affected by the deficient practice and make the proper

corrections.

Substantial compliance

5 0 . Consulate contended that it should not have been

required to file a plan of correction at a ll because AHCA erred

in finding the July 2 , T ag N054 , deficiency a Class III

deficiency. Consulate argues that the deficiency should have

been classified as Class IV because it had merely Ðthe potential

for causing no more than a minor negative impact on the

resident.Ñ Section 400.23(8)(d) provides that no plan of

correction is required for an isolated Class IV deficiency. If

the July 2 deficiency was Class IV, then the August 12

deficiencies cannot be considered Ðuncorrected.Ñ

5 1 . ConsulateÓs argument rests essentially on the

proposition that it substantially complied with the June 1,

2013 , physician order for Resident 1. The pin site was cleaned

with Betadine as prescribed. The wound was cleaned and gauzed

as prescribed. The antibiotic was administ ered. The resident

received a bath or shower on all but four days during the period

from June 1 to June 27, and on some days he was washed more than

once. Consulate argues that AHCA failed to establish how a

failure to give Resident 1 a bath and/or showe r on four days

during the month of June presented a potential for physical,

mental, or psychosocial discomfort to the resident or the

potential to compromise the resident Ó s ability to maintain or

reach his highest practical physical, mental, or psychosocia l

well - being. 3 /

5 2 . ConsulateÓs argument is at odds with the evidence.

The testimony of AHCAÓs witnesses established the potential

physical, mental, or psychosocial discomfort to the resident or

the potential to compromise the resident Ó s ability to maint ain or

reach his highest practical physical, mental, or psychosocial

well - being. The potential for infection was real, and the

physicianÓs orders were fashioned to maximize Resident 1Ós

protection from any potential infection.

5 3 . Further, the deficiency for which Consulate was cited

was not one with which it could ÐsubstantiallyÑ comply. Either

the physician orders are followed or they are not. Ms. Page

testified that facility staff may not pick and choose which

physician orders to follow. The physici an did not just pull the

order out of the air and instruct Consulate to give the resident

a daily shower. 4 / It was a prescribed treatment, a preventive

measure. Ms. Page observed that all of the prescribed measures

were intended to work together to preve nt infection.

5 4 . Ms. Ball stated that the order Ðwas obviously

infection control related. And he wouldnÓt have written an

order if he didnÓt want it done. ThatÓs why physicians write

orders. If they write an order, they expect you to do that,

hence, t he word Òorder . Ó Ñ

Summary findings

5 5 . Based on the foregoing, it is found that AHCA properly

cited C onsulate on July 2, 2013 under T ag N054 for violating

rule 59A - 4.107(5) and properly classified the violation as Class

III.

5 6 . Based on the foregoing , it is found that AHCA properly

cited Consulate on August 12, 2013 under T ag N054 for two

violations of rule 59A - 4.107(5) and properly classified the

violation s as Class III. Further, it is found that AHCA

properly cited Consulate for an uncorrected Clas s III violation

for repeated failure to follow physician orders .

CONCLUSIONS OF LAW

5 7 . The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding. § § 120.569 and 120.57(1), Fla. Stat .

5 8 . The burd en of proof is on AHCA. See Beverly

Enterprises - Fla v. Ag . for Health Care Admin . , 745 So. 2d 1133

(Fla. 1st DCA 1999). The burden of proof to impose an

administrative fine is by clear and convincing evidence. Dep Ó t

of Banking & Fin . v. Osborne Stern & Co. , 670 So. 2d 932 (Fla.

1996). The burden of proof for the assignment of licensure

status is by a preponderance of the evidence. 5 / See Florida

Dep Ó t of Transp . v. J.W.C. Co . , Inc. , 396 So. 2d 778 (Fla. 1st

DCA 1981); Balino v. Dep Ó t of H RS , 348 So. 2 d 349 (Fla. 1st DCA

1977).

59 . Section 400.23(7) provides as follows, in relevant

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,

in terviews, investigations, and inspections.

In addition to license categories authorized

under part II of chapter 408, 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 prese nce of one

or more class I or class II deficiencies, or

class III deficiencies not corrected within

the time established by the agency, is not

in substantial compliance at the time of the

survey with criteria established under this

part or with rules adopt ed by the agency.

If the facility has no class I, class II, or

class III deficiencies at the time of the

followup survey, a standard licensure status

may be assigned . . . .

6 0 . Section 400.23(8) provides as follows, in relevant

part:

(8) The agency shall adopt rules pursuant

to this part 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. 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 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 t he

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 facilityÓs residents. The agency shall

indicate the classification on the face of

the no tice of deficiencies as follows:

* * *

(c) A class 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 Ós 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 civ il 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 defic iencies during the last

licensure inspection or any inspection or

complaint investigation since the last

licensure 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, a civil

penalty may not be imposed.

(d) A class IV deficiency is a deficiency

that the agency determines has the potential

for causing no more than a minor negative

impact on the resident. If the class IV

deficiency is isolated, no plan of

correction is required.

6 1 . Florida Administrative Code Rule 59A - 4.107(5)

provides: Ð All physician orders shall be followed as

prescribed, and if not followed, the reason shall be recorded on

the residentÓs medical record during that shift. Ñ

6 2 . In this case, C onsulate was cited by AHCA for three

deficie ncies that combined to establish a n isolated uncorrected 6 /

Class III deficiency . AHCA seeks to impose a fine of $1,000 and

conditional licensure .

6 3 . Undisputed evidence provided by AHCAÓs witnesses

established that each of the three deficiencies alleg ed in the

Administrative Complaint met the statutory criteria for a Class

III deficiency. The undisputed evidence further established

that each of the three deficiencies was in violation of rule

59A - 4.107(5).

6 4 . Consulate argued that there was a relev ant distinction

to be drawn between failure to follow a physician order for

showering and failure to fo llow a physician order for PICC -

dressing changes. However, the common factor of failure to

follow physician orders overrides the attempted distinction.

This is particularly the case where, as here, AHCA has

established that there is also a common factual aspect to the

physician orders, i.e., infection prevention.

6 5 . Consulate argued that the submission, acceptance and

completion of a plan of correction should be held to effectively

estop AHCA from finding that ConsulateÓs deficiencies were Ðnot

correctedÑ because the subsequent deficiencies could not have

been prevented by the plan of correction. AHCA established that

the flaw was in the misguided focu s of ConsulateÓs plan of

correction . Tag N054 related to following physician orders, not

showers. AHCA accepted ConsulateÓs plan because the plan

partially addressed the deficient practices found during the

July 2, 2013 , survey. AH C AÓs acceptance of the plan did not tie

the hands of its surveyors during the revisit survey and did not

absolve Consulate from its responsibility to correct every area

in which it was found out of compliance.

6 6 . AHCA demonstrated by clear and convincing evidence

that Consul ate committed the deficiency alleged under Tag N054

for violating rule 59A - 4.107(5) during the July 2, 2013 ,

complaint survey and that the cited deficiency was correctly

classified as Class III.

6 7 . AHCA demonstrated by clear and convincing evidence

that Consulate committed the deficiencies alleged under Tag N054

for violating rule 59A - 4.107(5) during the August 12, 2013 ,

revisit survey and that the cited deficiencies were correc tly

classified as Class III.

6 8 . AHCA demonstrated by clear and convincing ev idence

that Consulate committed a single uncorrected Class III

deficiency. Pursuant to section 400.23 (8)(c), an uncorrected

Class III deficiency is subject to a fine of $1,000. Pursuant

to section 400.23(7)(b), a facility with one or more Class III

defic iencies not corrected within the time established by the

agency is subject to conditional licensure.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Agency for Health Care Administration

enter a fi nal order imposing a fine of $1,000 and further

imposing conditional licensure on Respondent for the period from

August 13, 2013 through September 30, 2014.

DONE AND ENTERED this 31st day of December, 2014 , in

Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.sta te.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 31st day of December , 201 4 .

ENDNOTE S

1/ Unless otherwise noted, all references to the Florida

Statutes are to the 2013 edition.

2 / Consulate was also cited under federal T ag F312, which

follows the federal regulation governing the proper provision of

ADLs, 42 C.F.R. 483.25. Florida does not have a state citation

for failure to provide ADLs.

3 / Consulate also emphasized the conceded fact that AHCA did not

establish that a ny of the residents cited in the surveys were

shown to have suffered actual harm. Ms. Ball cogently observed

that the Class III classification covers potential harm. Any

actual harm to the residents would have likely resulted in a

classification of Class II.

4 / At the hearing, counsel for Consulate insinuated that

physicians generally do not write orders for showers and that

this order was likely written by the physician at Resident 1Ós

request. No evidence was presented to substantiate this

insinuat ion, and Ms. Ball directly testified that she has seen

other physician orders for showers following orthopedic surgery.

5/ The lesser burden for changing ConsulateÓs licensure status

is not an issue because AHCAÓs proof in this case met the clear

and co nvincing standard.

6 / The term ÐcorrectedÑ is not defined in part II of Chapter

400, Florida Statutes. ÐWhere a statute does not specifically

define words of common usage, such words must be given their

plain and ordinary meaning.Ñ Southeastern Fisheri es Ass'n, Inc.

v. DepÓt of Nat. Res. , 453 So. 2d 1351, 1353 (Fla. 1984), citing

State v. Hagan , 387 So. 2d 943 (Fla. 1980). In the instant

case, there is no question that ÐcorrectedÑ is a word of common

usage or that AHCA has applied the plain and ordinar y meaning of

the word in finding that ConsulateÓs Class III deficiency was

Ðnot corrected.Ñ

COPIES FURNISHED :

John E. Bradley, Esquire

Agency for Health Care Administration

The Sebring Building, Suite 330

525 Mirror Lake Drive North

S t. Petersburg, Florida 33701

(eServed)

Vilma Martinez, Esquire

Consulate Health Care

5102 West Laurel Street, Suite 700

Tampa, Florida 33607

(eServed)

George Huffman, Esquire

Consulate Health Care

5102 West Laurel Street, Suite 700

Tampa, Florida 3360 7

(eServed)

Richard J. Shoop, Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(eServed)

Stuart Williams, General Counsel

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(eServed)

Elizabeth Dudek, Secretary

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit writte n 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.