98-004690 Wellington Specialty Care And Rehab Center (Vantage Healthcare Corp.) vs. Agency For Health Care Administration Status: Closed Recommended Order on Monday, May 17, 1999.

Summary: Agency failed to show that facility did not provide to residents adequate supervision and assistance devices to prevent accidents. Bruising on a resident does not prove a deficiency. Recommened that license be changed from conditional to standard.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WELLINGTON SPECIALTY CARE )

AND REHAB CENTER (VANTAGE )

HEALTHCARE CORP.), )

)

Petitioner, )

)

vs. ) Case No. 98-4690

)

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held on

February 17, 1999, by videoconference between Tampa and

Tallahassee, Florida, before Carolyn S. Holifield, Administrative

Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: R. Davis Thomas, Jr., Esquire

Qualified Representative

Broad and Cass el

215 South Monroe Street, Suite 400

Post Office Drawer 11300

Tallahassee, Florida 32302

For Respondent: Thomas Caufman, Esquire

Agency for Health Care Administration

6800 North Dale Mabry Highway

Suite 200

Tampa, Florida 33614

STATEMENT OF THE ISSUE

The issue for determination is whether the Agency for Health

Care Administration found deficiencies at Wellington Specialty

Care and Rehab Center sufficient to support the change in its

licensure status to a conditional rating.

PRELIMINARY STATEMENT

By letter dated September 27, 1998, the Agency for Health

Care Administration (Agency) advised Vantage Healthcare

Corporation, d/b/a Wellington Specialty Care and Rehab Center

(Wellington), that its licensure rating was changed to

"conditional" effective September 10, 1998. Wellington

challenged the conditional rating and, on October 6, 1998, filed

a Petition for Formal Hearing. On October 22, 1998, the Agency

referred the matter to the Division of Administrative Hearings

for assignment of an administrative law judge to conduct the

final hearing.

Prior to hearing, the parties stipulated to facts that

required no proof at hearing. At hearing, Petitioner,

Wellington, presented the testimony of two witnesses and

submitted one composite exhibit which was received into evidence.

Respondent, the Agency, presented the testimony of two witnesses

and submitted one exhibit into evidence. However, the Agency's

exhibit was withdrawn and replaced by Petitioner’s composite

exhibit.

A Transcript of the proceeding was filed on February 22,

1999. After the transcript was filed and upon request of both

parties, the time for filing proposed recommended orders was

extended. Petitioner timely filed a Proposed Recommended Order

under the extended timeframe. No post-hearing submittal was

filed by Respondent.

FINDINGS OF FACT

1. Wellington is a nursing home located in Tampa, Florida,

licensed by and subject to regulation by the Agency pursuant to

Chapter 400, Florida Statutes.

2. The Agency is the licensing agency in the State of

Florida responsible for regulating nursing facilities under Part

II of Chapter 400, Florida Statutes.

3. On September 10, 1998, the Agency conducted a complaint

investigation at Wellington in a matter unrelated to the issues

that are the subject of this proceeding. On that same date, the

Agency also conducted an appraisal survey that focused on six

areas of care for which Wellington had been cited as deficient in

past surveys. After the investigation and survey were completed,

the Agency determined that there was no basis for the complaint,

and further determined that Wellington was not deficient in any

of the six areas of care which were the subject of the appraisal

survey.

4. Notwithstanding its findings that the complaint against

Wellington was unfounded and that there were no deficiencies in

the targeted areas of care being reviewed, the Agency determined

that Wellington was deficient in an area not initially the

subject of the September 1998 survey. Specifically, the Agency

found that Wellington had failed to provide adequate supervision

and assistance devices to two residents at the facility in

violation of the regulatory standard contained in 42 C.F.R.

s. 483.25(h)(2). Based on its findings and conclusions, the

Agency issued a survey report in which this deficiency was

identified and described under a "Tag F324."

5. The basis for the Agency’s findings were related to

observations and investigations of two residents at the facility,

Resident 6 and Resident 8. During the September 1998 survey and

complaint investigation, the surveyors observed that Resident 6

had a bruise on her forehead and that Resident 8 had bruises on

the backs of both of her hands.

6. Resident 6 suffered a stroke in May 1998 and had

left-side neglect, a condition that caused her to be unaware of

her left side and placed her at risk for falls. Moreover,

Resident 6's ability to recall events was impaired.

7. The Agency's investigation revealed that Resident 6

sustained the bruise on her forehead when she fell from the

toilet on August 31, 1998. The Agency determined that Resident 6

fell because she was left alone by the staff of the facility and

further concluded that Wellington was responsible for causing

this fall. The Agency believed that given Resident 6's left-side

neglect, the facility staff should have known not to leave the

resident unattended during her trips to the toilet. The Agency

suggested that Wellington should have provided constant

supervision to Resident 6, although it acknowledged that such

supervision may have created privacy violations.

8. In making its determination and reaching its

conclusions, the Agency relied exclusively on an interview with

Resident 6, notwithstanding the fact that her ability to recall

events was impaired.

9. Since Resident 6 was admitted to the facility in

May 1998, Wellington appropriately and adequately addressed her

susceptibility to falls, including falls from her toilet. After

Resident 6 was initially admitted to the facility in May 1998,

she received occupational therapy to improve her balance. In

late June 1998, following several weeks of occupational therapy,

Wellington’s occupational therapist evaluated Resident 6’s

ability to sit and to control the balance in the trunk of her

body and determined that the resident was capable of sitting

upright without support for up to 40 minutes. Based upon that

assessment, Resident 6 was discharged from occupational therapy

on June 25, 1998, and her caregivers were provided with

instructions on how to maintain her balance.

10. At the time Resident 6 was discharged from occupational

therapy, a care plan was devised for her which provided that the

facility staff would give her assistance in all of her activities

of daily living, but would only provide stand-by assistance to

Resident 6 while she was on the toilet, if such assistance was

requested. In light of the occupational therapist's June 1998

assessment of Resident 6, this care plan was adequate to address

her risk for falls, including her risk for falls while on the

toilet.

11. Wellington also provided Resident 6 with appropriate

assistance devices. In Resident 6's bathroom, Wellington

provided her with a right-side handrail and an armrest by her

toilet to use for support and balance, and also gave her a call

light to alert staff if she felt unsteady. These measures were

effective as demonstrated by the absence of any falls from the

toilet by Resident 6 over the course of June, July, and August

1998.

12. The Agency's surveyor who reviewed Resident 6’s medical

records was not aware of and did not consider the June 1998

Occupational Therapy Assessment of Resident 6 before citing the

facility for the deficiency.

13. Resident 8 was admitted to Wellington in February 1998

with a history of bruising and existing bruises on her body. At

all times relevant to this proceeding, Resident 8 was taking

Ticlid, a medication which could cause bruising and also had

osteopenia, a degenerative bone condition that could increase

Resident 8's risk for bruising, making it possible for her to

bruise herself with only a slight bump.

14. After observing the bruising on the backs of both of

Resident 8's hands during the September 1998 survey, the Agency

asked facility staff about the bruising and also reviewed the

resident’s medical records. Based on her interviews and record

review, the Agency surveyor found that these bruises had not been

ignored by Wellington. Rather, the Agency found that when

facility staff initially observed these bruises on Resident 8's

hands, (1) staff had immediately notified Resident 8's physician

of the bruises; and (2) the physician then ordered an X-ray of

Resident 8 to determine whether there was a fracture. The X-ray

determined that there was not a fracture but that there was

evidence of a bone loss or osteopenia, which indicated that

Resident 8 had an underlying structural problem which could

increase the resident's risk for bruising.

15. The Agency surveyor found nothing in Resident 8's

medical record to indicate that the facility had investigated the

bruising on the resident’s hands, identified the cause of the

bruising, or identified any means to prevent the bruising from

reoccurring. Based on the absence of this information in

Resident 8's records, the Agency cited the facility for a

deficiency under "Tag F324."

16. The Agency's surveyor made no determination and reached

no conclusion as to the cause of the bruising. However, she

considered that the bruising on Resident 8 may have been caused

by the underlying structural damage, medication, or external

forces. With regard to external forces, the surveyor speculated

that the bruising may have occurred when Resident 8 bumped her

hands against objects such as her chair or bed siderails.

17. During the September 1998 survey, when the Agency

surveyor expressed her concerns about the cause of the bruising

on Resident 8's hands, Wellington’s Director of Nursing suggested

to the surveyor that the bruising could have been the result of

the use of improper transfer techniques by either Resident 8’s

family or the facility staff, or Resident 8’s medications.

18. Despite the surveyor's speculation and suggestions by

the facility's Director of Nursing, the Agency surveyor saw

nothing that would indicate how the bruising occurred. In fact,

the Agency surveyor's observation of a staff member transferring

Resident 8 indicated that the staff member was using a proper

transfer technique that would not cause bruising to the

resident’s hands. The Agency surveyor made no other observations

and conducted no investigation of the potential causes of the

bruising on Resident 8's hands.

19. During the September 1998 survey, after the Agency

surveyor inquired as to the cause of the bruises on Resident 8's

hands, the facility conducted an investigation to try to identify

the potential causes for the bruising. The investigation was

conducted by the facility’s Care Plan Coordinator, a licensed

practical nurse who was also the Unit Manager for the unit on

which Resident 8 was located.

20. Included in the Care Plan Coordinator's investigation

was a thorough examination of the potential causes suggested by

the Agency's surveyor. The Agency surveyor’s speculation that

the bruising was caused when Resident 8 hit her hands against her

chair or bed siderails was ruled out as a cause for the bruises

because Resident 8 was unable to move around in her bed or chair.

More importantly, there were no bedrails on Resident 8's bed and

her chair was a heavily padded recliner. Also, as a part of her

investigation, the Care Plan Coordinator observed the transfer

techniques employed by both Resident 8's family members and

facility staff. During these observations, she did not see any

indication that the techniques used were improper or would

otherwise cause Resident 8 to bruise her hands.

21. Based upon her thorough investigation, the Case Plan

Coordinator determined that there were no identifiable causes of

the bruising and, thus, there were no care plan interventions

that the facility could have implemented then or in

September 1998 to prevent the bruising suffered by Resident 8.

Instead, the Care Plan Coordinator reasonably concluded that the

bruising was most likely an unavoidable result of Resident 8's

medications and her osteopenia.

22. The Agency is required to rate the severity of any

deficiency identified during a survey with two types of ratings.

One of these is "scope and severity" rating which is defined by

federal law, and the other rating is a state classification

rating which is defined by state law and rules promulgated

thereunder. As a result of the September 1998 survey, the Agency

assigned the Tag F324 deficiency a scope and severity rating of

"G" which, under federal regulations, is a determination that the

deficient practice was isolated. The Tag F324 deficiency was

also given a state classification rating of "II" which, under the

Agency’s rule, is a determination that the deficiency presented

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

residents."

23. Because the Agency determined that there was a Class II

deficiency at Wellington after the September 1998 survey, it

changed Wellington’s Standard licensure rating to Conditional,

effective September 10, 1998.

24. At the completion of the September 1998 survey, the

Agency assigned the Class II rating to the deficiency although

the surveyors failed to determine and did not believe that there

was an immediate threat of accidents to other residents at

Wellington. In fact, at the time of the September 1998 survey,

the number of falls at Wellington had declined since the last

survey.

25. The Agency returned to Wellington on November 6, 1998,

to determine if the facility had corrected the Tag F324

deficiency cited in the September 1998 survey report. After

completing that survey, the Agency determined that the deficiency

had been corrected and issued Wellington a Standard License

effective November 6, 1998.

CONCLUSIONS OF LAW

26. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this cause,

pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

27. The Agency is authorized to license nursing home

facilities in the State of Florida and, pursuant to Chapter 400,

Part II, Florida Statutes, is required to evaluate nursing home

facilities and assign ratings.

28. Section 400.23(9), Florida Statutes, provides that when

minimum standards are not met, then such deficiencies shall be

classified according to the nature of the deficiency. That

section delineates and defines the various categories of

deficiencies, with a Class III deficiency being the least severe

and a Class I deficiency being the most severe.

29. Class I deficiencies "are those which the agency

determines present an imminent danger to the residents or guests

of the nursing home facility or a substantial probability that

death or serious physical harm would result therefrom." Class II

deficiencies "are those which the agency determines have a direct

or immediate relationship to the health, safety, or security of

nursing home facility residents, other than Class I

deficiencies." Class III deficiencies are those which "the

agency determines to have an indirect or potential relationship

to the health, safety, or security of the nursing home facility

residents, other than Class I or Class II deficiencies." Section

400.23(9), Florida Statutes.

30. Based on its findings and conclusions of deficiencies,

the Agency is required to assign one of the following ratings to

the facility: standard, conditional, or superior. These three

categories of ratings for facilities are defined in Section

400.23(8), Florida Statutes, as follows:

(a) A standard rating means that a facility

has no class I or class II deficiencies, has

corrected all class III deficiencies within

the time established by the agency and is in

substantial compliance at the time of the

survey with criteria established in this part

with rules adopted by the agency, or, if

applicable, with rules adopted by the Omnibus

Budget Reconciliation Act of 1987 (Pub.L.

No. 100-203) . . . as amended.

(b) A conditional rating means that a

facility, due to the presence of one or more

class I or class II deficiencies, or class

III deficiencies not corrected within the

time established by the agency, is not in

substantial compliance at the time of the

survey with criteria established under this

part with rules adopted by the agency, or, if

applicable, with rules adopted by the Omnibus

Budget Reconciliation Act of 1987 (Pub.L.

No. 100-203) . . . as amended. If the

facility comes into substantial compliance at

the time of the follow-up survey, a standard

rating may be issued. A facility assigned a

conditional rating at the time of the

relicensure survey may not qualify for

consideration for a superior rating until the

time of the next subsequent relicensure

survey.

(c) A superior rating means that facility

has no class I or class II deficiencies and

has corrected all class III deficiencies

within the time established by the agency and

is in substantial compliance with the

criteria established by the agency and is in

substantial compliance with the criteria

established under this part with rules

adopted by the agency, or, if applicable,

with rules adopted by the Omnibus Budget

Reconciliation Act of 1987 (Pub.L. No. 100-

203) . . . as amended; and the facility

exceeds the criteria for a standard rating

through enhanced programs and services in

[seven designated areas]. . . .

31. According to Section 400.23(8)(b), Florida Statutes,

quoted above, the Agency may issue to a facility a Conditional

license when, after a survey, a facility has one or more Class I

or Class II deficiencies, or Class III deficiencies not corrected

within the time established by the agency.

32. In the instant case, the Agency issued a Conditional

License to Wellington from September 10, 1998, to November 6,

1998. The Agency alleges that it was proper to issue Wellington

a Conditional License for that time period because the facility

had a Class II deficiency at the time of the Agency's September

1998 investigation and appraisal.

33. The regulation at issue in this case and the one which

the Agency alleged Wellington has violated is 42 C.F.R. s.

483.25(h)(2). That section provides:

The facility must ensure that each resident

receives adequate supervision and assistance

devices to prevent accidents.

34. The Agency has the burden of proof in this proceeding

and must show by a preponderance of evidence that there existed a

basis for imposing a Conditional rating on Wellington’s license.

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).

Accordingly, it is the Agency’s burden to (1) establish that the

deficiency cited in Agency September 1998 survey report existed;

and (2) that the deficiency was appropriately classified as a

Class II deficiency. If that burden is met, the Agency must then

demonstrate that Wellington did not achieve substantial

compliance with applicable regulatory standards until November 6,

1998.

35. Moreover, when applied to the Agency’s burden of proof

in this hearing, the plain terms of 42 C.F.R. s. 483.25(h)(2)

require the Agency to demonstrate that a resident suffered an

accident and that the accident was the result of inadequate

supervision by the facility or the facility’s failure to provide

the resident with assistance devices.

36. The Agency has failed to meet its burden in this case.

37. With regard to Resident 6, the Agency failed to provide

any substantial, competent evidence that Resident 6 suffered any

accident that was a result of inadequate supervision by

Wellington’s staff. Here, there was no evidence that Resident 6

fell off of her toilet or that she fell off because she was left

unattended. The Agency provided no evidence of that fact other

than Resident 6’s hearsay statement to the surveyors. Because

there was no evidence to corroborate Resident 6’s hearsay

statements that she fell or how she fell, the Agency failed to

prove that Resident 6 suffered a fall, or that such fall was

caused by a lack of supervision by Wellington’s staff. Kaye v.

State Department of Health and Rehabilitative Services , 654

So. 2d 298 (Fla. 1st DCA 1995)

38. Assuming arguendo that Resident 6 fell while she was

unattended on the toilet, there was no evidence that her fall was

the result of inadequate supervision by Wellington’s staff. To

support its allegation, the Agency asserted that Wellington staff

should have provided stand-by assistance to Resident 6 while she

was on the toilet. However, the evidence adduced at the hearing

does not support such a mandate. Absent any identified

intervention that should have been in place for Resident 6, there

can be no finding that the supervision of Resident 6 was

inadequate.

39. With regard to Resident 8, the Agency failed to prove

that she suffered any bruising as a result of inadequate

supervision by Wellington's staff. The Agency's claim of a

deficiency was based on the fact that Wellington had failed to

investigate the causes of the bruises on Resident 8's hands. The

evidence established that at the time of the survey, Wellington

had not investigated the bruising on Resident 8's hands.

However, the regulation that Wellington has allegedly violated

does not require the facility to investigate accidents. Instead,

it requires the Agency to identify care that a facility should

have given the resident that was not given. The Agency failed to

identify that in this instance.

40. The evidence established that the Agency surveyor

conducted no investigation to determine the causes of the bruises

on Resident 8's hands, that she only speculated as to how they

occurred, and that she saw evidence that disproved some of her

speculation. The Agency not only failed to determine the cause

of the bruising, but also failed to establish how the bruising

could be stopped in the future. Thus, the Agency failed to show

that Resident 8's bruising was the result of an accident and/or

that such accident was the product of any failure of care by

Wellington.

41. Contrary to the Agency surveyor’s speculations, the

evidence established that the bruises on Resident 8's hands were

not caused by the resident's hitting her hands on bed siderails

or her chair, or by the facility staff or family member

improperly transferring the resident. Likewise, there was no

evidence that Resident 8 should have had any intervention

implemented to address the potential for bruising on her hands.

Absent any identified intervention that should have been in place

for Resident 8, there can be no finding that the supervision of

Resident 8 was inadequate.

42. The Agency failed to establish the existence of the

alleged deficiency. Accordingly, there is no basis for the

Agency's changing Wellington's licensure rating from Standard to

Conditional.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of

law, it is recommended that the Agency for Health Care

Administration enter a final order issuing a Standard rating to

Wellington and rescinding the Conditional rating.

DONE AND ENTERED this 17th day of May, 1999, in Tallahassee,

Leon County, Florida.

___________________________________

CAROLYN S. HOLIFIELD

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3 060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 17th day of May, 1999.

COPIES FURNISHED:

R. Davis Thomas, Jr., Esquire

Qualified Representative

Broad and Cassel

215 South Monroe, Suite 400

Post Office Drawer 11300

Tallahassee, Florida 32302

Thomas Caufman, Esquire

Agency for Health Care Administration

6800 North Dale Mabry Highway

Suite 200

Tampa, Florida 33614

Sam Power, Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive

Fort Knox Building, Suite 3431

Tallahassee, Florida 32308

Paul J. Martin, General Counsel

Agency for Health Care Administration

2727 Mahan Drive

Fort Knox Building, Suite 3431

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.