98-003091 Heritage Healthcare And Rehab Center-Naples vs. Agency For Health Care Administration Status: Closed Recommended Order on Tuesday, April 6, 1999.

Summary: Petitioner failed to prove deficiencies cited in survey as basis for issuing a conditional license to a nursing home.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) Case No. 98-3091

)

HERITAGE HEALTHCARE AND )

REHABILITATION CENTER, )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of

Administrative Hearings, conducted the final hearing in Naples,

Florida, on February 10, 1999.

APPEARANCES

For Petitioner: Karel Baarslag

Senior Attorney

Agency for Health Care Administration

Post Office Box 60127

Fort Myers, Florida 33901-0127

For Respondent: R. David Thomas, Jr.

Qualified Representative

Broad and Cassel

Post Office Drawer 11300

Tallahassee, Florida 32302-1300

STATEMENT OF THE ISSUE

The issue is whether Petitioner properly reduced the rating

of Respondent's nursing home from Standard to Conditional.

PRELIMINARY STATEMENT

By License issued May 13, 1998, Petitioner reduced

Respondent's nursing home license from Standard to Conditional

following the completion of a periodic survey. By undated

Petition for Formal Administrative Hearing, Respondent requested

a formal hearing on this action.

At the hearing, Petitioner called three witnesses and

offered into evidence four exhibits. Respondent called four

witnesses and offered into evidence two exhibits. All exhibits

were admitted.

The court reporter filed the Transcript on March 25, 1999.

FINDINGS OF FACT

1. Respondent owns and operates a nursing home in Naples.

Petitioner conducts periodic surveys of the nursing home to

determine whether the licensee should receive a Superior,

Standard, or Conditional license rating.

2. Following a periodic survey, Petitioner determined that

three Class II deficiencies existed. A Class II deficiency poses

"an immediate threat to the health, safety or security of the

residents."

3. Consequently, effective May 13, 1998, Petitioner issued

a Conditional license. Immediately preceding this license,

Respondent had a Standard license. Effective July 13, 1998,

Petitioner issued Respondent a Standard license. This case

involves only whether Petitioner properly reduced Respondent's

license to Conditional for the two-month period starting May 13,

1998.

4. The survey that started May 13, 1998, extended over

three days. There is no charging document in this case. There

is a revised survey report, which contains 17 findings under four

tags. In its opening statement, Petitioner announced that it was

proceeding under three tags: F 224, F 225, and F 353. During

the hearing, Petitioner announced that it would offer no evidence

under findings 2, 3, and 4 of Tag F 224. Petitioner did not

present evidence under findings 1, 2, and 4 of Tag F 225, and

Petitioner did not present any evidence under Tag F 353 that was

not also under another tag.

5. The tags may refer to citations in a manual of

Petitioner. Under each tag noted in the survey report,

Petitioner cites the relevant legal provision, a summary of the

reasons why the legal requirement is unmet, and detailed findings

in numbered paragraphs. Next to each finding, Respondent

includes a correction plan.

6. Citing "[42 Code of Federal Regulations Section]

483.13(c)(1)(i)," Tag F 224 in the survey report states:

The facility must develop and implement

written policies and procedures that prohibit

mistreatment, neglect, and abuse of residents

and misappropriation of resident property.

The facility must not use verbal, mental,

sexual, or physical abuse, corporal

punishment, or involuntary seclusion.

7. Tag F 224 in the survey report alleges that "this

requirement" is not met because "the facility did not ensure that

each resident received the care and services to prevent neglect

for 2 (Residents #1 and #3) of 21 sampled residents and 3

residents interviewed."

8. Paragraph 1 of the findings under Tag F 224 in the

survey report alleges that staff were not ambulating Resident

Number 1; her care plan and records omitted the recommendation of

the physical therapist that staff ambulate Resident Number 1 to

meals; and staff failed to timely assist her in requested

transfers and thus left her with no choice but to urinate in her

bed or chair.

9. Resident Number 1 had undergone surgery for a hip

fracture and received physical therapy to improve her balance,

transfers, and gait. The physical therapist had discharged

Resident Number 1 on April 30, 1998, with instructions to the

nursing staff to walk her from her room to the dining room for

each of her meals. The physical therapist trained the nursing

staff, who were Certified Nursing Assistants, regarding ways to

help Resident Number 1 ambulate safely.

10. On two days, a volunteer took Resident Number 1 in a

wheelchair from an activity on the second floor to the first-

floor dining room for lunch. However, volunteers did not attempt

to ambulate residents who had difficulty walking.

11. One or more Certified Nursing Assistants walked

Resident Number 1 on the days in question the distance between

her room and the dining room. On at least one of the observed

days, the Certified Nursing Assistant walked Resident Number 1

from the dining room, where the volunteer had left her, to her

room, and then back to the dining room for lunch.

12. Petitioner's nurse surveyor testified that the issue in

Tag F 224 is whether Respondent implemented its policies

prohibiting the neglect of residents.

13. There is no credible evidence that Respondent neglected

Resident Number 1, or that the care provided by staff following

her hip surgery in any way contributed to a decline in the health

or ability to ambulate of Resident Number 1. To the contrary,

although Resident Number 1 could never regain her ability to walk

without assistance, she did increase the distance that she could

walk with assistance in the six weeks following the survey.

14. There is no evidence of a failure of staff to respond

promptly to requests by Resident Number 1 for assistance in

toileting.

15. Petitioner has failed to prove that, as to Resident

Number 1, Respondent failed to implement its policies prohibiting

neglect.

16. Paragraph 2 of the findings under Tag F 224 in the

survey report alleges that Resident Number 3 was admitted on

March 25, 1998, and was coughing up formula on March 26 at

1:00 a.m. During the afternoon of March 27, Resident Number 3

allegedly had a temperature of 100.8 degrees. The next day, the

temperature was allegedly 100.7 degrees. On the afternoon of

March 29, Resident Number 3 had a moist, productive cough and a

temperature of 102 degrees. A nurse administered Tylenol. Seven

hours later, that evening, Resident Number 3 had a temperature of

103.8 degrees, which, after another administration of Tylenol,

dropped to 101.9 degrees one hour later and then 99.1 degrees,

although he was having trouble breathing. At 1:00 a.m. on March

30, Resident Number 3 allegedly suffered from uneven breathing,

at times labored, and, by 6 a.m., his temperature was 101

degrees. Paragraph 2 alleges that staff did not notify the

physician of Resident Number 3 of these temperatures and symptoms

until 3:00 p.m. on March 30, at which time the physician of

Resident Number 3 arrived and examined Resident Number 3; a chest

x-ray revealed pneumonia.

17. The facts are as alleged, except that the physician

visited Resident Number 3 on the morning of March 30. There is

no credible evidence that Respondent's staff cared for Resident

Number 3 improperly or should have contacted his physician at an

earlier point than the morning of March 30.

18. Petitioner has failed to prove that, as to Resident

Number 3, Respondent failed to implement its policies prohibiting

neglect.

19. Citing "[42 Code of Federal Regulations Section]

483.13(c)(1)(ii)," Tag F 225 in the survey report states:

The facility must not employ individuals who

have been found guilty of abusing,

neglecting, or mistreating residents by a

court of law; or have had a finding entered

into the State nurse aide registry concerning

abuse, neglect, mistreatment of residents or

misappropriation of their property; and

[must] report any knowledge it has of actions

by a court of law against an employee, which

would indicate unfitness for service as a

nurse aide or other facility staff to the

State nurse aide registry of licensing

authorities.

The facility must ensure that all alleged

violations involving mistreatment, neglect,

or abuse, including injuries of unknown

source and misappropriation of resident

property[,] are reported immediately to the

administrator of the facility and to other

officials in accordance with State law

through established procedures (including to

the State survey and certification agency).

The facility must have evidence that all

alleged violations are thoroughly

investigated, and must prevent further

potential abuse while the investigation is in

progress.

The results of all investigations must be

reported to the administrator or his

designated representative and to other

officials in accordance with State law

(including to the State survey and

certification agency) within 5 working days

of the incident, and if the alleged violation

is verified appropriate corrective action

must be taken.

20. Tag F 225 in the survey report alleges that "this

requirement" is not met because the facility "did not thoroughly

investigate injuries of unknown origin for 1 (Resident #14) of 21

residents sampled, 3 residents from group interview, 1 resident

observed and 1 resident based on family interview."

21. Paragraph 3 of the findings under Tag F 225 in the

survey report alleges that the nurses' notes on Resident

Number 14 revealed skin tears of unknown origin on November 17,

1997, and January 19, May 5, and May 10, 1998, and a bruised and

swollen great and fourth toes of the right foot on February 11,

1998. The staff allegedly failed to investigate these incidents.

22. Nurses' notes document four skin tears, as alleged, but

not the bruised and swollen toes, to which Petitioner produced no

admissible evidence.

23. Respondent's policy is for anyone who sees an incident

or injury to report it to a nurse, who documents the report, and

forwards the information to the Director of Nursing, who is a

Registered Nurse. The Director of Nursing investigates the

matter and reports her findings to Respondent's Executive

Director.

24. The Director of Nursing investigated each incident of a

tear of the skin of Resident Number 14. She determined that

Resident Number 14 had fragile skin, and her wheelchair sometimes

injured her feet. She reasonably concluded each time that there

was no indication of abuse or neglect.

25. Petitioner has failed to prove that Respondent did not

investigate possible incidents of abuse or neglect concerning

Resident Number 14.

26. Citing "[42 Code of Federal Regulations Section]

483.30(a)(1) and (2)," Tag F 353 in the survey report states:

The facility must have sufficient nursing

staff to provide nursing and related services

to attain or maintain the highest practicable

physical, mental, and psychosocial well-being

of each resident, as determined by resident

assessments and individual plans of care.

The facility must provide services by

sufficient numbers of each of the following

types of personnel on a 24-hour basis to

provide nursing care to all residents in

accordance with resident care plans:

Except when waived under paragraph (c) of

this section, licensed nurses; and other

nursing personnel.

Except when waived under paragraph (c) of

this section, the facility must designate a

licensed nurse to serve as a charge nurse on

each tour of duty.

27. Tag F 353 alleges that "this requirement" is not met

because the facility did not provide sufficient nursing staff to

meet the needs of the residents.

28. There are three paragraphs of findings under Tag F 353

in the survey report. None identifies a resident by number.

Paragraph 1 states that family members witnessed two Certified

Nursing Assistants, and presumably no one else, serving 33

residents, whose unmet needs resulted in urination in

incontinence for some. Paragraph 1 states that several residents

complained that staff do not timely answer call lights due to

short-staffing. Paragraph 2 alleges that one resident complained

that staff replied to his requests for assistance in getting out

of bed by saying that they would "do it when they have the time"

and that they "can't be bothered." Paragraph 2 alleges that one

resident was not ambulated three times daily to her meal.

Paragraph 3 alleges that several residents complained of untimely

assistance resulting in incontinence and "rough handling" due to

untrained or insufficient staff.

29. At all times, Respondent maintained the minimum

required staff at the facility.

30. If this tag is merely a reallegation of the ambulatory

issue regarding Resident Number 1, Petitioner has failed to prove

a deficiency in her care. If Petitioner intended to raise other

issues with this tag, there is no evidence in support of such

allegations.

31. Petitioner has failed to prove that Respondent failed

to maintain sufficient nursing or other staff.

CONCLUSIONS OF LAW

32. The Division of Administrative Hearings has

jurisdiction over the subject matter. Section 120.57(1), Florida

Statutes. (All references to Sections are to Florida Statutes,

except where references are explicitly to the Code of Federal

Regulations. All references to Rules are to the Florida

Administrative Code.)

33. Title 42, Code of Federal Regulations, Section

483.13(c)(1)(i) and (ii) provides:

(c) Staff treatment of residents. The

facility must develop and implement written

policies and procedures that prohibit

mistreatment, neglect, and abuse of residents

and misappropriation of resident property.

(1) The facility must--

(i) Not use verbal, mental, sexual, or

physical abuse, corporal punishment, or

involuntary seclusion;

(ii) Not employ individuals who have

been--

(A) Found guilty of abusing,

neglecting, or mistreating residents by a

court of law; or

(B) Have had a finding entered into

the State nurse aide registry concerning

abuse, neglect, mistreatment of residents or

misappropriation of their property[.]

34. Title 42, Code of Federal Regulations, Section

483.30(a)(1) and (2) provides:

The facility must have sufficient nursing

staff to provide nursing and related services

to attain or maintain the highest practicable

physical, mental, and psychosocial well-being

of each resident, as determined by resident

assessments and individual plans of care.

(a) Sufficient staff.

(1) The facility must provide services by

sufficient numbers of each of the following

types of personnel on a 24-hour basis to

provide nursing care to all residents in

accordance with resident care plans:

(i) Except when waived under paragraph

(c) of this section, licensed nurses; and

(ii) Other nursing personnel.

(2) Except when waived under paragraph

(c) of this section, the facility must

designate a licensed nurse to serve as a

charge nurse on each tour of duty.

35. Pursuant to Rule 59A-4.128, Petitioner rates nursing

homes as Superior, Standard, or Conditional based on surveys

conducted every 15 months. Pursuant to Rule 59A-4.1288,

Respondent's facility is subject to 42 Code of Federal

Regulations Chapter 483.

36. Relying on Department of Banking and Finance v. Osborne

Stern and Company , 670 So. 2d 932, 935 (Fla. 1996), and Latham v.

Florida Commission on Ethics , 694 So. 2d 83 (Fla. 1st DCA 1997),

Respondent argues persuasively that the standard of proof should

be clear and convincing.

37. The parties agree that Petitioner has the burden of

proof. In this case, it is unnecessary to determine the standard

of proof because Petitioner failed to prove the material

allegations under even the preponderance standard.

RECOMMENDATION

It is

RECOMMENDED that the Agency for Health Care Administration

reissue the subject license as Standard.

DONE AND ENTERED this 6th day of April, 1999, in

Tallahassee, Leon County, Florida.

___________________________________

ROBERT E. MEALE

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 6th day of April, 1999.

COPIES FURNISHED:

Karel Baarslag, Senior Attorney

Agency for Health Care Administration

Post Office Box 60127

Fort Myers, Florida 33901-0127

R. David Thomas, Jr.

Qualified Representative

Broad and Cassel

Post Office Drawer 11300

Tallahassee, Florida 32302-1300

Ruben J. King-Shaw, Jr., Director

Agency for Health Care Administration

Post Office Box 14229

Tallahassee, Florida 32317-4229

Paul J. Martin, General Counsel

Agency for Health Care Administration

Post Office Box 14229

Tallahassee, Florida 32317-4229

Sam Power, Agency Clerk

Agency for Health Care Administration

Post Office Box 14229

Tallahassee, Florida 32317-4229

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 must be filed with the agency that will

issue the final order in this case.