98-005471 Vista Manor vs. Agency For Health Care Administration Status: Closed Recommended Order on Tuesday, June 8, 1999.

Summary: Agency failed to prove that patients` falls were due to negligence, or that nursing home`s care plan was inadequate. Agency also failed to prove that four patients developed pressure sores. Change conditional rating to standard.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VISTA MANOR, )

)

Petitioner, )

)

vs. ) Case No: 98-5471

)

AGENCY FOR HEALTH CARE, )

ADMINISTRATION, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

A for mal hearing was held in this case by the Division of

Administrative Hearings, before Daniel M. Kilbride,

Administrative Law Judge, on March 3, 1999, in Melbourne,

Florida.

APPEARANCES

For Petitioner: R. Davis Thomas, Jr.

Qualified Representative

Donna H. Stinson, Esquire

Broad and Cassell

215 South Monroe Street, Suite 400

Post Office Drawer 11300

Tallahassee, Florida 32302

For Respondent: Thomas W. Caufman, Esquire

Senior Attorney

Agency for Health Care Admin istration

6800 North Dale Mabry Highway, Suite 200

Tampa, Florida 33614

STATEMENT OF THE ISSUE

Whether the Petitioner was properly issued a Conditional

license by Respondent on November 5, 1998.

PRELIMINARY STATEMENT

On November 30, 1998, Vista Manor filed a Petition for

Formal Administrative Hearing challenging the Agency's findings

of a November 1998 survey of its facility and the issuance of a

Conditional license. The Petition was referred to the Division

of Administrative Hearings and this matter was set for hearing.

Following discovery, a formal hearing was held on March 3,

1999. At the hearing, Petitioner presented the testimony of

three witnesses and three exhibits were admitted in evidence.

Respondent presented the testimony of four witnesses and

submitted one composite exhibit in evidence. The Transcript of

the proceeding was filed on March 17, 1999. Following an Order

granting the parties an extension of time to file their proposed

recommended orders, Respondent filed its proposals on May 7,

1999. Petitioner has not filed proposals as of the date of this

Recommended Order.

FINDINGS OF FACT

1. Vista Manor is a nursing home located in Titusville,

Florida, licensed by the Respondent, pursuant to Chapter 400,

Florida Statutes.

2. Each year, Vista Manor is surveyed by Respondent to

determine compliance with statutes and regulatory standards that

are established by the state, as well as the federal Medicare and

Medicaid programs. It then determines whether the facility

should receive a Superior, Standard, or Conditional license

rating.

3. On November 5, 1998, Respondent conducted its annual

survey of Vista Manor. The multi-disciplinary survey team met

with facility staff, then toured the facility to develop a sample

of residents on which to conduct an in-depth review.

4. After the survey was completed, Respondent issued a

survey report which set forth the factual findings made by the

surveyors.

5. Respondent alleged that the facility was not in

compliance with the regulatory standard dealing with quality of

care of residents. It described the deficiency under a "Tag,"

numbered F309. Respondent also claimed that Petitioner was not

in compliance with the regulatory standard dealing with the

prevention and treatment of pressure sores on residents, and

described that deficiency under Tag F314.

6. Respondent is required to rate the severity of any

deficiency identified during a survey with a State Classification

rating. Respondent assigned both the F309 and F314 deficiencies

a State Classification rating of II.

7. Respondent issues a nursing facility a Conditional

license anytime it finds a State Class I or II deficiency or

anytime it finds a Class III deficiency that is not corrected

within the time frame mandated by Respondent.

8. Under state law and Agency rule, a classification

rating of II represents an allegation that each deficiency

presented an immediate threat to the health, safety or security

of the residents.

9. Because Respondent determined that there were tw o Class

II deficiencies at Vista Manor after the November survey, it

changed Petitioner's Superior licensure rating to Conditional,

effective November 5, 1998.

10. By law, Petitioner was required to post the Conditional

license it received in a conspicuous place near the entrance to

the facility.

FALLS

11. Under Tag F309 of the survey report, Respondent alleged

that Petitioner violated the standard of service to attain for

its residents the highest practicable well-being because it

failed to adequately assess five residents and design care plans

to prevent them from falling.

12. Surveyors utilize the State Operations' Manual (the

"SOM") as a guideline for determining if a facility has complied

with the federal regulations. The SOM directs surveyors to first

determine if a resident has suffered a decline and, if so, to

then determine if the decline was unavoidable.

13. A decline is unavoidable only where a facility has

assessed a resident, developed a care plan based upon that

assessment, consistently implemented the care plan, and routinely

re-evaluated the care plan.

14. At Petitioner's facility, each resident is assessed for

his or her risk for falls upon admission to the facility, and an

interim plan of care is developed for residents that need such

care. Subsequently, each resident is given a more comprehensive

assessment which evaluates a resident's risk for falls.

Additionally, the facility's Physical and Occupational Therapists

evaluate each resident for factors that contribute to falls. A

final comprehensive care plan is then developed for at-risk

residents by an interdisciplinary team.

15. Any resident who falls at the facility has his or her

fall examined and documented by a nurse. That information is

then forwarded to the facility's Safety Committee for review.

16. The Safety Committee is comprised of representatives

from the various disciplines at the facility, including the

Director and Assistant Director of Nursing, the Care Plan

Coordinator, the Activities' Director and the Social Services'

Director.

17. The Committee reviews all falls to see if a cause can

be determined. Where appropriate, it recommends new

interventions for the resident's plan of care. Residents who

have fallen are reviewed weekly by the Committee until they have

gone without falling for four weeks.

18. Each of the five residents, cited by Respondent in the

survey report under Tag F309, was assessed for his or her risk

for falls using the above-described assessments, and each

resident had one or more care plans developed to address that

risk. Each resident who fell also had his or her fall assessed

by the facility's Safety Committee.

19. Any decline experienced by any of the cited residents

was unavoidable under the guidelines of the SOM.

RESIDENT 1

20. Resident 1 was assessed by Petitioner as being at risk

for falls due to her past history of falling, her aggressive

behavior toward others, her tendency to wander, and her

incontinence.

21. Like many of the residents cited in the survey report,

Resident 1 was unsteady but independent in her ambulatory

abilities, and had dementia. Resident 1's care plans were

typical of the common-sense interventions used by a facility to

try and limit the falls experienced by a resident who has poor

safety awareness but can independently ambulate: scheduled

toileting based upon an incontinence pattern, prompt incontinence

care after episodes; provision of a body alarm, a wander guard, a

walker, use of non-skid footwear, a hazard-free and well-lit

environment, eyeglasses, monitoring of her aggressive behaviors;

and encouragement of her participation in activities.

22. On October 13, 1998, Resident 1 was found on the floor

of her room by her door. She suffered a fracture of her leg and

told the investigating nurse that the injury occurred while she

was "on her way to work." The Resident removed her body alarm

before climbing out of bed and suffering her injury. She had

never previously removed her body alarm and her removal of it

prevented the staff from being aware that she was getting out of

bed and attending to her.

23. The Safety Committee reviewed Resident 1's fall and

determined that the fall was a product of the Resident's unsteady

gait and confusion. No new care plan interventions were

implemented at that time because the Resident left the facility

for the hospital, and upon return, was not at risk to get up and

out of her bed due to her immobility. When the Resident's

fractured leg healed and her mobility improved, the facility

provided Resident 1 with a more restrictive sensor alarm to

replace the body alarm that she had previously removed.

24. The Resident had a care plan which required the nursing

staff to ambulate her daily to activities and meals and the

Resident also ambulated herself daily.

25. In the early morning hours of October 13, 1998, her

dementia caused Resident 1 to believe that she should get up and

go to work. The facility placed a body alarm on the Resident to

alert its staff when the Resident might get up. They could not

have known that the Resident was getting up in this situation

because she removed that alarm. If it had been aware that the

Resident might remove her alarm, the facility might have used a

sensor alarm, which is not placed on the Resident and is

triggered by any movement by the Resident. However, sensor

alarms are more restrictive to a resident than body alarms and

the facility's approach to fall prevention is to use the least

restrictive device first. This decision was appropriate in this

instance because Resident 1 had never previously removed her body

alarm and thus did not give the facility any reason to believe

that a more restrictive alarm was needed.

26. Respondent did not show that there was any other

intervention available to the facility that it could or should

have implemented prior to the incident to prevent the Resident

from thinking she had to go to work, to prevent her from getting

up, or to make its staff aware that she had gotten up.

RESIDENT 4

27. Resident 4 was a cognitively-impaired man who was

unsteady, independently mobile, and had poor safety awareness.

He was particularly headstrong about ambulating or transferring

himself when he wanted. He frequently ignored staff advice.

28. Resident 4 was care-planned by Petitioner for his risk

for falls with interventions that included implementing a

toileting program, monitoring the Resident for fatigue,

encouraging rest periods for the Resident, providing a

merrywalker, supervising ambulation to the dining room, a bed and

chair alarm, reminding to the resident to request assistance from

staff when attempting transfers, monitoring the Resident every 30

minutes, providing a hazard-free environment and restorative

physical therapy.

29. The facility also used physical restraints - a

roll-belt and side rails while the Resident was in bed, and

criss-cross belt while he was in his wheel chair - in an effort

to prevent the Resident from getting up and ambulating on his

own. These restraints were used only after less restrictive

measures had been attempted and only after appropriate assessment

for their use had been completed.

30. The Resident was also reviewed weekly by the facility's

Safety Committee for virtually all of 1998.

31. Resident 4 fell eight times between May 10, 1998, and

October 15, 1998.

32. The Safety committee notes described each of the eight

falls, and the Safety Committee assessed the falls and considered

various interventions for the Resident. Petitioner demonstrated

that its Safety Committee reviewed all of the falls experienced

by Resident 8 and that it implemented new interventions where

they could be identified and if they were appropriate. In

virtually all instances, the Committee could only re-emphasize

the interventions that were already in place in his care plan

because there was nothing more that could be done for the

Resident.

33. On May 10, 1998, Resident 4 fell in the dining room

while getting up out of his wheelchair after his restraint had

been removed. No preventative intervention could have affected a

fall that occurred in a dining room.

34. The Resi dent fell on May 25, 1998, because he attempted

to toilet himself without staff assistance and tipped over his

wheelchair in the bathroom. The Resident's risk of falling in

that manner was covered by the Resident's care plan. The

Resident was on a toileting program, had a belt on to prevent him

from getting up out of his chair, and received reminders from the

staff not to transfer himself without assistance. The Safety

Committee appropriately did not order new interventions for the

Resident, but did re-emphasize the importance of toileting the

Resident every two hours or as needed in order to prevent future

similar incidents.

35. The Committee did attempt other interventions when the

circumstances of a fall reflected a need for new or different

interventions. When the Resident 4 subsequently tipped over his

wheelchair under circumstances that did not involve his attempt

to go to the bathroom, the Committee addressed this problem by

ordering a therapy screen to determine if he might need another

type of wheelchair. Ultimately, the facility placed weights in

the back of his chair in an effort to reduce his ability to tip

it over.

RESIDENT 10

36. Resident 10 was a demented, non-ambulatory woman who

was admitted to petitioner's facility on July 22, 1998. Upon

admission, the facility observed her to see if she would attempt

to get out of bed on her own. She demonstrated no such tendency.

A care plan was devised to address her risk for falls that

included mostly common-sense interventions. Because she was non-

ambulatory and did not demonstrate any tendency to get out of her

bed on her own, the facility did not order an alarm for her.

37. On August 6, 1998, the Resident began to demonstrate a

tendency to try and get up on her own. She fell while trying to

get out of her wheelchair.

38. Prior to her fall, the facility reminded her not to get

up on her own; but she failed to heed that advice. The Safety

Committee reviewed the fall and developed a specific falls care

plan that included use of a body alarm to address the Resident's

tendency to get up on her own. It also began a three-day safety

observation to see if the Resident might remove the alarm.

39. On August 18, 1998, Resident 10 fell again trying to

walk to her bathroom to toilet herself. Her body alarm was

sounding when she was found by staff. However, the Resident

attempted to go to the bathroom and fell before staff could

respond to the alarm.

40. The Safety Committee reviewed this fall and re-

emphasized the existing care plan approaches because they already

addressed the Resident's risk for falls under the circumstances

presented in the August 16, 1998, fall.

RESIDENT 15

41. Resident 15 was a demented, ambulatory woman who

manifested some problems with aggression at the facility.

Between June 20 and October 10, 1998, she experienced seven

incidents in which she fell or was found on the floor. One of

those incidents occurred when the Resident charged another

resident in the building and was pushed to the floor by that

resident. Another occurred when the Resident was dancing. Four

of the incidents were alleged to have occurred in the facility

day room or activity room.

42. The Safety Committee reviewed every incident involving

Resident 15 that was cited in the survey report.

43. The evidence was insufficient to establish that the

facility failed to provide appropriate care to Resident 15. The

Resident wandered through the facility and Petitioner monitored

her whereabouts appropriately.

44. The facility did not fail to appropriately address the

Resident's behaviors that contributed to her falls. The

Resident's care plan had several provisions to address her

behaviors including re-approaching her if she became agitated,

monitoring her for aggressiveness, fatigue or unsteadiness;

encouraging rest; escorting her away from aggressive peers; and

monitoring her anti-depressant medications. She was also under

the care of a psychiatrist.

RESIDENT 16

45. Resident 16 was found on the floor by her bed on

August 31, 1998, and September 9, 1998. These incidents occurred

despite a care plan that provided her a lowered bed, a bed and

chair alarm, and side rails for safety.

46. Respondent failed to show that the interventions that

the facility had in place on August 31, 1998, were not adequate

to address the Resident's risk for falling out of her bed.

PRESSURE SORES

47. Respondent alleged under Tag F314 of the survey report

that Petitioner failed to provide necessary care to Residents 3,

6, 13 and 19 to prevent the development of pressure sores, and

failed to provide necessary care to promote healing of Resident

3's pressure sores.

48. A pressure sore is a loss of skin integrity, usually

over a bony prominence, that is caused by unrelieved, prolonged

pressure. When a pressure sore appears on a resident, a nursing

home will describe it in the resident's medical record by one of

four stages. A stage I area is one in which the skin is unbroken

but has nonblanchable redness. A stage II area is a very shallow

wound that may present itself as a blister or a small crater. A

stage III wound is a deeper wound that penetrates subcutaneous

tissue, while a stage IV wound is one which reaches muscles,

tendons or bone.

49. Identifying and staging pressure sores is not an exact

science, and errors in identifying violations of skin integrity

on residents frequently occur. It is not uncommon for a nurse to

describe any reddened area or blister that appears on a resident

as a pressure sore; however, the presence of a reddened area or a

blister on a resident does not always mean that the resident has

a stage I or stage II pressure sore.

50. Reddened areas or blisters can only be considered

pressure sores where there is corresponding deep tissue damage.

A true stage I or stage II pressure sore appears as a deep, dark,

dusty red area with a purple center. Because true pressure sores

involve deep tissue damage, they do not heal quickly after they

appear.

51. A standard program to prevent pressure sore development

focuses on removal of pressure from pressure points on a

resident's body. A two-hour turning and repositioning program

for residents is typical. Devices such as pressure-relieving

mattresses to help relieve pressure on a resident are utilized.

A standard preventative program includes ensuring that a resident

receives an adequate diet and adequate hydration.

52. Petitioner has a comprehensive program to identify and

address its residents who are at risk for pressure sore

development. A Braden Scale assessment is performed on each

resident upon admission to the facility. Those residents who

meet the qualifying score of 17 have a twenty-four-hour care plan

implemented to address that risk. The assessment is later

performed to further evaluate a resident's risk for skin

breakdown.

53. Petitioner implements a variety of interventions to

address residents who are at risk for pressure sore development.

Weekly skin assessments are performed by the nursing staff and

biweekly skin assessments are done during showers by the

Certified Nursing Assistants (CNA). Reidents are given pressure-

relieving mattresses and heel protectors, and are turned and

repositioned every two hours. Incontinence care is provided

where needed using barrier creams for skin protection.

54. Residents who develop pressure sores are followed by

the facility's Wound Committee. That Committee, which includes a

physical therapist, does walking rounds each week to evaluate and

treat any resident who has developed a pressure sore. The Wound

Committee also measures and describes every pressure sore that is

identified on a resident.

55. The facility census at the time of the survey was 114

residents. Four were identified as developing pressure sores.

Accordingly, only 3.5 percent of the population at Vista Manor

had in-house acquired pressure sores. The national average for

in-house acquired pressure sores in nursing homes is between 7-9

percent.

56. With regard to the residents who were cited under Tag

F314, Respondent failed to prove that the areas that developed on

these residents were actually pressure sores.

57. Re sident 6 was alleged to have developed a stage II

pressure sore on his right posterior thigh on July 29, 1998.

That area is not one where pressure is applied. The sore was

caused by friction from the resident's wheelchair, did not have

any depth associated with it, and healed within seven days after

it appeared.

58. Resident 19 was alleged to have developed a stage II

pressure sore on hers left inner thigh on October 23, 1998.

However, the nursing staff never described the area as a pressure

sore, but instead described it as a popped blister with no

redness noted. The area did not appear over a bony prominence or

in a place where pressure is applied to the body. The area was

caused by the resident's incontinence and briefs, and had

virtually healed by October 27.

59. Resident 13 was alleged to have developed a stage I

pressure sore on his sacral area that was identified by the

surveyors during the survey. The resident was not at risk for

the development of pressure sores and the area the surveyors

identified was actually located in the resident's rectum, which

is not an area where pressure is applied to the body. The area

was also described as blanchable redness, which is not consistent

with a pressure sore. It was treated with Balmex cream and

disappeared the next day. The area was not caused by pressure

but instead was caused by poor toileting habits of the resident.

60. Respondent alleged that a stage II area developed on

the Resident 3's left foot on August 20, 1998. However, the area

was not described as a pressure sore on the wound reports. It

was initially described as an intact blister.

61. Petitioner's expert on pressure sore care opined

without contradiction that the area was not a pressure sore, but

instead was excessive skin growth that sometimes occurs in the

elderly. The surveyor mistakenly assessed it as a pressure sore.

62. Respondent alleged that Resident 3 also developed

pressure sores on her right foot and right inner ankle on

October 13, 1998, and a stage II area on her coccyx on

October 20, 1998. The area on her right foot was described

initially as a blood blister and was not located in an area where

pressure is applied to a resident's foot. Seven days later it

was described as discolored but intact, which is not consistent

with a pressure sore.

63. The area on her right inner ankle was never open and

never had a blister, but instead was an area of discoloration

that occurs in dark-skinned individuals due to a collection of

melanin deposits. The area on her coccyx was a skin tear which

healed in seven days.

64. Respondent also alleged that Petitioner did not

adequately treat the identified pressure sores on Resident 3.

One cited example was that the facility did not act on a

Dietician's September 8, 1998, Recommendation to add a Vitamin C

supplement to the resident's diet until November 2, 1998.

However, the resident was already receiving Vitamin C from a

multi-vitamin supplement in addition to that which was provided

to her from her diet.

65. Respondent did not demonstrate that the Vitamin C the

resident was receiving was inadequate to meet her needs or that

the wounds identified on Resident 3 did not timely heal because

of the facility's failure to provide the recommended additional

Vitamin C to Resident 3.

66. Another example of alleged inadequate care to promote

healing alleged by Respondent was the failure to place large

booties on Resident 3 prior to the survey.

67. Booties are devices which are placed over a resident's

feet, presumably to protect them but there is no evidence that

they effectively promote pressure sore healing. In some

instances, they can cause pressure sores or friction areas to

develop. Petitioner placed booties on the resident after

August 20, 1998, when area on her left foot was identified, but

Respondent did not demonstrate that these booties were inadequate

to promote healing of any area she developed, or that larger

booties would have caused any area to heal faster than it did.

CONCLUSIONS OF LAW

68. 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.

69. Section 120.569(1), Florida Statutes, applies in all

proceedings in which the substantial interests of a party are

determined by an agency. Section 120.57(1), Florida Statutes,

applies in those proceedings involving disputed issues of

material fact. Vista Manor is a facility is substantially

affected by a conditional rating.

70. The Respondent has the burden of proof in t his

proceeding and must show by a preponderance evidence that there

existed a basis for imposing a conditional rating on Petitioner'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).

71. Section 400.23(8), Florida Statutes, provides in

pertinent part:

(8) 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 rating to that

facility. The agency shall base its

evaluation on the most recent inspection

report, taking into consideration findings

from other official reports, surveys,

interviews, investigations and inspections.

The agency shall assign one of the following

ratings to each nursing home; standard,

conditional, or superior.

* * *

(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 under the

Omnibus Budget Reconciliation Act of 1987

(Pub.L.No. 100-203) (December 22, 1987),

Title IV (Medicare, Medicaid, and other

Health-Related Programs), Subtitle C (Nursing

Home Reform), 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.

72. The agency's Rule 59A-4.128, Florida Administrative

Code, describes the same requirements as the statute cited above

and adopt by reference the applicable federal regulations. With

one exception, not relevant here, Rule 59A-4.128, Florida

Administrative Code, was determined valid in Florida Health Care

Association, Inc., et al. v. Agency for Health Care

Administration (DOAH Case Nos. 96-4367RP and 95-4372RP, Order

entered July 16, 1996.)

73. The federal regulations at Title 42 C.F.R., Part 483,

Subsection B, provide in pertinent part:

Section 483.25 Quality of Care

Each resident must receive and the facility

must provide the necessary care and services

to attain or maintain the highest practicable

physical, mental, and psychosocial well-

being, in accordance with the comprehensive

assessment and plan of care.

* * *

(h) Accidents. The facility must ensure

that--

(1) The resident environment remains as free

of accident hazards as is possible; and

(2) each resident receives adequate

supervision and assistance devices to prevent

accidents.

74. Respondent may issue 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. Section 400.23(8)(b),

Florida Statutes. Respondent also claims it may issue a

Conditional license to a facility where a facility is not in

substantial compliance with rules adopted under the Omnibus

Budget Reconciliation Act.

75. Class II deficiencies are defined under state law as

those which have "a direct or immediate relationship to the

health, safety or security of the nursing home facility

residents." Section 400.23(9)(b), Florida Statutes. The Agency

has further defined Class II deficiencies to be those that

"present and immediate threat to the health, safety or security

of the residents of the facility." Rule 59A-4.128(3)(a), Florida

Administrative Code. Under both state law and the Agency's rule,

a Class II deficiency must be something more than an isolated

occurrences in the facility. The Respondent must show that the

deficiency presents an immediate threat the health, safety, or

security of residents throughout the facility. If the facility

presents only an indirect or potential threat to residents in the

facility, it must be classified as a Class III deficiency.

76. In the instant case, Respondent alleges that it was

proper to issue Petitioner a Conditional license, effective

November 4, 1998, because there were two Class II deficiencies

identified during the November survey of the facility.

Accordingly, it is Respondent's burden to establish by a

preponderance of evidence the existence of at least one of the

Class II deficiencies cited in the November survey report, and

that either of the deficiencies met the definition of a Class II

deficiency. If that burden is met, Respondent must then

demonstrate that this deficiency remained uncorrected until the

date on which Respondent terminated the Conditional rating.

Respondent failed to establish those elements in this case.

77. Respondent claimed that Petitioner failed to maintain

five residents' highest level of functioning because it allowed

them to suffer on-going falls. It chose to cite this as a

deficiency under Tag F309.

78. Respondent was then required to show that any fall

experienced by a resident was unavoidable. That burden, in turn,

required Respondent to show that a cited resident fell because

Petitioner failed to assess the care plans or periodically review

its care plans for fall prevention for that resident. Respondent

failed to meet its burden of proof.

79. The regulation at issue does not authorize Respondent

to base a deficiency solely on the fact that a resident fell once

or multiple times. To rule otherwise would be contradict an

unfortunate reality in the elderly. Falls for some residents--

particularly those that are demented and independently

ambulatory--are common and cannot be prevented. A facility

cannot be held liable for negligent care of those residents

unless there is a specific intervention that the facility should

have identified and could have provided to the resident to

prevent a fall.

80. Petitioner d emonstrated it had a comprehensive program

to address each of its residents' risks for falls. That program

included assessment, care planning and on-going reassessment of

its residents. It also demonstrated that the assessments, care

plans, and on-going evaluations for each of the cited residents

were more than adequate to address their risk for falls.

Accordingly, there was no deficiency established under Tag F309.

81. Under Tag F314, Respondent must prove that a pressure

sore developed on a resident while in the nursing home.

Respondent failed to meet that burden for any of the residents

cited under Tag F314.

82. Although Tag F314 of the survey report identified areas

on the cited residents as pressure sores, the residents' medical

records described those areas in terms that clearly showed that

they were not pressure sores. Instead, the areas were skin

discolorations, skin tears, skin growths, or blisters. Because

the cited residents did not have pressure sores, the facility

cannot be found negligent in its failure to prevent the

development of pressure sores.

83. In addition, pressure sores are unavoidable if a

facility can demonstrate that it identified a resident as being

at risk for pressure sore development; that it provided routine

preventative care to the resident; and that it implemented that

care plan consistently.

84. Petitioner showed that all of the cited residents were

assessed for their risk of pressure sore development. Of the

four residents cited in the survey report, only three of them

were determined at risk for pressure sore development, and each

of those residents had a routine preventative care plan. No

evidence was introduced which suggested that these care plans

were not consistently administered. Accordingly, to the extent

that pressure sores developed on the cited residents, they were

shown to be unavoidable.

85. As to Resident 3, Petitioner provided treatments to

promote healing of her sores, regardless of their nature.

86. Respondent alleged that Petitioner failed to place

large booties on Resident 3 and it failed to timely act on a

dietician's recommendation for more Vitamin C for the resident.

However, Respondent did not demonstrate that these interventions

were necessary; nor did it demonstrate that the areas that

developed on Resident 3 did not timely heal because of the

absence of those interventions. To the contrary, Petitioner

demonstrated that the areas healed quickly. Accordingly, there

was no basis for a deficiency regarding the absence of necessary

treatments to promote healing of pressure sores on residents at

Petitioner's facility.

87. In the instant case, Respondent failed to show that

residents at Petitioner's facility were in danger of an immediate

threat to their health or safety due to the deficiencies

described under either Tag F309 or Tag F314. Both deficiencies

were shown to be isolated practices.

88. The Respondent presented no evidence that the problems

at Vista Manor were systemic problems and that other residents in

the facility were likely to fall, contract pressure sores or

otherwise be harmed. To the contrary, Petitioner demonstrated

that it had effective systems in place to protect its residents

from falls and pressure sore development. With regard to

pressure sores, the systems in place at Vista Manor produced an

in-house acquisition rate of pressure sores that is half of the

national average.

89. The Respondent failed to meet its burden of proving

that Class II deficiencies and substandard quality of care

deficiencies existed at Petitioner at the time of the November

1998 survey. The Conditional rating was not appropriate.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Agency for Health Care Administration

enter its final order granting Petitioner's request to change its

Conditional license rating to the Standard rating for the period

contemplated by the November 1998 survey.

DONE AND ENTERED this 8th day of June, 1999, in Tallahassee,

Leon County, Florida.

___________________________________

DANIEL M. KILBRIDE

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 8th day of June 1999.

COPIES FURNISHED:

Thomas W. Caufman, Esquire

Senior Attorney

Agency for Health Care Administration

6800 North Dale Mabry Highway

Suite 220

Tampa, Florida 33614

R. Davis Thomas, Jr.

Qualified Representative

Donna H. Stinson, Esquire

Broad & Cassel

215 South Monroe Street, Suite 400

Post Office Box 11300

Tallahassee, Florida 32302

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.