99-001892 Heritage Healthcare And Rehabilitation Center-Naples vs. Agency For Health Care Administration Status: Closed Recommended Order on Friday, November 12, 1999.

Summary: A determination was made identifying no deficiencies at Heritage Health (Naples) sufficient to support the Agency for Health Care Administration`s issuance of a conditional license.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HERITAGE HEALTH CARE & )

REHAB CENTER - NAPLES )

)

Petitioner, )

)

vs. ) Case No. 99 - 1892

)

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Respondent. )

_________ _____________________)

RECOMMENDED ORDER

On August 23, 1999, a formal administrative hearing was

held in this case in Naples, Florida, before William R.

Pfeiffer, Administrative Law Judge, Division of Administrative

Hearings.

APPEARANCES

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

Donna Stinson, Esquire

Broad and Cassel

215 South Monroe, Suite 400

Post Office Drawer 11300

Tallahassee, Florida 3230 2

For Respondent: Karel L. Baarslag, Esquire

Agency for Health Care Administration

2295 Victoria Avenue, Room 309

Post Office Box 60127

Ft. Myers, Florida 33901 - 6177

STATEMENT OF THE ISSUE

Whether there were deficiencies at Naples sufficient to

support Agency for Health Care Administration’s (AHCA)

decisions to issue Heritage Health Care & Rehab Center -

Naples (Naples) a Conditional license on March 11, 1999, and

continue that rating until June 7, 1999.

PRELIMINARY STATEMENT

Prior to the hearing, the parties filed a Joint Pre -

Hearing Stipulation containing stipulations of fact and

applicable law. At the hearing, Petitioner presented the

testimony of two witnesses, and submitted four exhibits into

evidence. Respondent presented the testimony of two

witnesses, and submitted one exhibit into evidence. Two of

Petitioner’s exhibits and Respondent’s one exhibit were

deposition transcripts of witnesses who were unavailable to

testify at hearing. A Transcript of the proceeding was filed

on August 31, 1999.

FINDINGS OF FACT

Background

1. Naples is a nursing home located in Naples, Florida,

licensed by and subject to regulation by the Agency for Health

Care Administration. Each year, Naples is surveyed by AHCA to

determine whether the facility should receive a Superior,

Standard, or Conditional licensure rating. On March 11, 1999,

AHCA conducted an annual survey of Naples. After that survey

was completed, AHCA alleged that there were several

deficiencies at Naples which violated various regulatory

standards that are applicable to nursing homes. However, AHCA

agreed that the only deficiency relevant to the DOAH hearing

was its allegation that Naples violated the requirement,

contained in 42 CFR Section 483.13(c), that a nursing home

develop and implement policies that prohibit abuse and neglect

of residents. AHCA issued a survey report in which this

deficiency was identified and described under a "Tag" numbered

F224.

2. AHCA is requi red to assign a federal "scope and

severity" rating to each deficiency identified in the survey

report. AHCA assigned the Tag F224 deficiency identified in

the March survey report a federal scope and severity rating of

"G," which is a determination that the deficient practice was

isolated.

3. AHCA is also required to assign a state

classification rating to each deficiency identified in the

survey report. After the March 11th survey, AHCA assigned the

Tag F224 deficiency a state classification rating of C lass II

which, under AHCA’s own rule, is a determination that the

deficiency presented "an immediate threat to the health,

safety or security of the residents."

4. Because AHCA determined that there was a Class II

deficiency at Naples after the March 11th survey, it changed

Naples’s Standard licensure rating to Conditional, effective

March 11, 1999. By law, Naples was required to post the

Conditional license in a conspicuous place in the facility.

Naples was also required to submit a Plan of Correction ( the

"Plan") to AHCA. Although the plan did not admit the

allegations, it did provide steps that the facility would

implement to address the deficiencies cited in the survey

report. The Plan also represented that all corrective action

relating to the Tag F224 deficiency would be completed by

April 10, 1999.

5. AHCA returned to Naples on March 29, 1999, March 30,

1999, and April 22, 1999, and re - surveyed the facility. After

each survey, AHCA determined that there were deficiencies at

Naples, but stipulat ed prior to hearing that none of these

deficiencies were justification for the issuance or the

continuation of the Conditional license at issue in this case.

After the April 22, 1999, survey, AHCA determined that Naples

completed all corrective action with regard to the March 11,

1999, Tag F224 deficiency and complied with the requirements

of 42 CFR Section 483.13(c). After the June 7, 1999, survey,

AHCA determined that Naples was in substantial compliance with

all applicable regulations and issued Naples a Standard

license effective that date.

6. Naples filed a Petition for Formal Administrative

Hearing with AHCA to challenge the findings of all of the

above - cited surveys, as well as AHCA’s decision to issue

Naples a Conditional license. That Petition was referred to

the Division of Administrative Hearings and a hearing was

conducted. At hearing, the parties were ordered to file their

proposed recommended orders on or before September 15, 1999.

Finding 1; Tag F224; March 11, 1999, Survey Report :

7. An unnamed resident at Naples who had fragile skin

and a history of skin tears sustained a skin tear to her arm

on March 8, 1999. Naples’ staff obtained a doctor’s order

for a dressing to be applied to the area and changed daily.

The dressing was applied as ordered except for an isolated

instance when it was not applied on March 9, 1999.

8. On March 10th, AHCA’s surveyor observed that the

dressing had not been changed on the previous day. She

interviewed the nurse who had obtained the order for the

dressing, and was told that the dressing had not been changed

on March 9, 1999, because the nurse forgot to print out the

order from the computer and place it in the Resident’s medical

record. The nurse immediately changed the Resident’s

dressing.

9. The surveyor did not observe the nurse changing the

dressing. Instead, she went back into the Resident’s room

after the dressing was changed and observed that the area

covered by the dressing was bleeding. The surveyor inferred

from that observation that the old dressing had stuck to the

Resident’s skin because of the failure to change the dressing

on March 9th. She also inferred that the nurse who changed

the old dressing had not moistened it prior to removing it so

as to cause it to bleed. The surveyor did not interview the

nurse to verify her suspicion that the nurse changed the

dressing incorrectly. Instead, she alleged that Naples

neglected the Resident because the nurse failed to change the

dressing pursuant to the doctor’s order, and because she

changed the dressing so as to cause the Resident to bleed.

10. Naples does not dispute that the Resident’s dressing

was not changed on the March 9th. However, the evidence was

undisputed that the failure to change a dressing for one day

presented no risk that the Resident’s skin tear would worsen

or become infected. In fact, the skin tear did not worsen as

a result of the facility’s failure to change the dressing on

March 9th. AHCA’s surveyor conceded that she had no evidence

that the skin tear worsene d and thus failed to provide any

evidence that the failure to change the dressing presented any

risk of harm to the Resident.

11. Moreover, AHCA’s surveyor erroneously concluded that

the nurse who changed the dressing caused it to bleed. The

nurse moistened the old dressing prior to removing it and

placed a new dressing on the area; the skin tear did not bleed

during that process. The evidence was clear that the old

dressing would not have stuck to the skin tear even if the

dressing had not been change d on March 9th because, on March

8th, she applied a triple antibiotic ointment that acted as a

barrier between the gauze dressing and the Resident’s skin.

Finally, the Resident’s skin was extremely fragile and, in the

past, the Resident had caused her own arm to bleed by

slighting bumping it.

Finding 2; Tag F224; March 11, 1999, Survey Report :

12. Resident 14 was issued a doctor’s order for a

dressing to a lesion on her back. It stated that the dressing

was to be changed daily. AHCA’s surveyor observ ed on March

10, 1999, that Resident 14 had a dressing that had not been

changed since March 8, 1999, covering the lesion. The

surveyor further observed that the dressing had become

displaced so that the tape used to secure the wound was

partially covering the wound. Despite this isolated failure

to change the dressing, the surveyor cited Naples for

neglecting Resident 14.

13. Naples conceded that the Resident 14's dressing had

not been changed on March 9th as ordered. However, as it did

with the unnam ed Resident in Finding 1, Naples demonstrated

that the failure to change Resident 14’s dressing was isolated

and did not present any risk that the Resident’s lesion might

worsen or become infected. Naples also showed that the lesion

did not, in fact, worsen. AHCA’s surveyor conceded that she

had no evidence that the failure to change the dressing was

repeated conduct, or that the lesion worsened, and thus failed

to present any evidence that the failure to change the

dressing presented any risk of harm to Resident 14.

Finding 3; Tag F224; March 11, 1999, Survey Report :

14. Resident 21 was a demented woman with a history of

anxiety, aggressive behavior toward others, and attention -

seeking behaviors. At approximately 1:00 a.m. on March 10th,

Resident 21 was found striking her forehead with a small

picture frame stating, "I’m going to kill myself, I’m tired of

all this." She was not hitting herself hard enough to inflict

any injury to herself, and did not damage the picture frame.

Nonetheless, a nurse stop ped the Resident and counseled the

Resident, who then stated, "I’ll stop and go to sleep." After

the nurse left the room, the Resident repeated her action.

The nurse immediately returned, removed the frame, and called

the Resident’s physician. The physician determined that

Resident 21 was not suicidal, and ordered Ativan (a medicine

given for anxiety) and a psychiatric consultation for the

Resident.

15. Twenty minutes after she was given the Ativan,

Resident 21 got up and sought additional attention by pushing

her wheelchair in the hallway. She was redirected to her bed

by a certified nursing assistant ("CNA") and, while being put

to bed, grabbed packets of air freshener and threatened to eat

them. The packets were immediately removed from the Resident

and taken from her room by the CNA.

16. Twenty minutes after being put to bed by the CNA,

Resident 21 arose and returned to the hallway and attempted to

enter other residents’ rooms. She was redirected by staff to

her room and bed, whereupon she stated to the staff that "The

nurse gave me water. I’m going to kill myself." Twenty

minutes after this incident, Resident 21 sought attention by

playing her radio loudly, and stated, "I’m going to kill

myself." Another dose of Ativan was given to her and shortly

thereafter, she went to sleep. Although staff routinely

checked on Resident 21, there were no further incidents.

17. The following morning, Resident 21 was seen by her

psychiatrist who determined that she was not suicidal.

Instead, he concluded th at Resident 21’s isolated actions

during the previous night were attention - seeking behavior

which did not indicate that she intended to kill herself. He

ordered additional medications for her and, as a precaution,

wrote an order in her record to "remove all dangerous objects

from her room and monitor resident closely."

18. When AHCA’s surveyors entered the facility on

March 10, 1999, picture frames and mirrors were present in

Resident 21's room. The surveyor asked the staff about the

level of monit oring for the Resident, and whether the facility

had a policy that defined and implemented precautions for

suicidal residents. The surveyor was not satisfied and cited

the facility for neglecting the Resident because it failed to

remove "dangerous objects" from her room, failed to adequately

monitor her, and failed to have a suicide precaution policy.

19. The surveyor’s conclusion that Naples neglected

Resident 21 was predicated on her belief that Resident 21 was

suicidal. However, the Resident's psych iatrist testified

unequivocally that the Resident was not suicidal. The

Resident did not strike herself hard, nor with the intent to

hurt herself, but was engaged in attention - seeking actions.

She demonstrated no intent to commit suicide. The

psychiatrist's diagnosis, and his (and her regular

physician’s) decision to treat her condition with medications

were effective. She exhibited no further similar behavior.

20. AHCA’s surveyor did not interview Resident 21’s

psychiatrist prior to making her allega tions of neglect, and

thus did not know that the psychiatrist had determined that

the Resident was not suicidal. At hearing, she acknowledged

that the psychiatrist’s conclusion would have presented "a

whole different story."

21. AHCA’s surveyor also erroneously concluded that the

Resident was not adequately monitored. The nursing notes

concerning Resident 21 contained over thirty entries between

March 10th and March 12th describing observations of the

Resident. These notations exceeded any applicable nu rsing

standard, and more than met the requirements contemplated by

the psychiatrist when he ordered the staff to monitor the

Resident closely.

22. The surveyor determined that the nurses’ notes

reflected inadequate observation of the Resident because the

notes did not reflect that the Resident was being observed

every fifteen minutes, and then hourly for twenty four hours.

However, the surveyor failed to offer any regulation or other

source to support her contention that monitoring the Resident

every fif teen minutes was the appropriate standard. To the

extent that the standard was based upon the surveyor’s

assumptions that Resident 21 was suicidal or because the

psychiatrist ordered that level of monitoring, Naples

demonstrated that those assumptions were incorrect.

23. AHCA’s surveyor also erroneously concluded that the

failure to remove picture frames and mirrors from Resident

21’s room was a violation of any doctor’s order or applicable

standard of care. The requirement that dangerous objects be

re moved from the Resident’s room came from the order of the

Resident’s psychiatrist, and he testified that he did not

intend for the facility to remove all picture frames or

mirrors from the Resident’s room. Instead, he only intended

his order to cover objects such as knives or letter openers.

He clarified this interpretation of his order to Naples’ staff

during the survey.

24. Naples is not required by any federal or state

regulation to have a suicide prevention policy. Indeed, such

a policy would never have an opportunity to be implemented

even if it existed. If a resident at Naples is determined to

be suicidal, the resident would be immediately transferred to

a psychiatric hospital for observation, evaluation and

treatment.

Naples Policy Regarding Abuse and Neglect :

25. Naples has a written policy that prohibits abuse and

neglect of its residents. It also sets forth a process for

investigating incidents of suspected abuse and neglect that

includes suspending staff who might have been involved in any

incident while the investigation is pending. Additionally,

Naples implements policies required by federal regulations

that help to assure that its residents are not neglected. It

conducts background checks of employees, and only those who

have no history of abuse or neglect are hired to work at

Naples. Furthermore, employees are instructed and encouraged

to inform the administration about any incident which might be

considered abuse or neglect of a resident, and are provided

with seminars which address issues of abuse and neglect of

residents. Naples conducts random audits of its residents’

medical records to insure that residents are receiving their

required care. These policies have been successful.

26. Additionally, Naples demonstrated that it followed

its written policy with regard to the incidents cited under

Tag F224 of the March survey report. Pursuant to that policy,

the facility’s Director of Nursing investigated all of the

cited incidents in a timely manner and suspended one nurse

pending t hat investigation. The Director of Nursing

appropriately concluded that neglect of the residents cited in

the report had not occurred and did not call any investigative

agency regarding the incidents.

CONCLUSIONS OF LAW

27. 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.

28. Section 120.569(l), Florida Statutes, applies in all

proceedings in which the substantial interests of a pa rty are

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

applies in those proceedings involving disputed issues of

material fact.

29. A facility is substantially affected by a

conditional rating. For example, Section 408.35, Florida

Statutes, governing certificates of need, provides that an

applicant’s ability and record of providing quality of care

are among the criteria for competitive review. Additionally,

a facility cannot qualify for the Gold Seal program if it has

had a conditional r ating within the previous thirty months.

Section 400.235, Florida Statutes. Finally, a conditional

rating can substantially affect the reputation of a facility

in the community and have a negative impact on staff morale

and recruiting. See Spanish Gardens Nursing & Convalescent

Center (Beverly Health & Rehab Svcs., Inc.) v. Agency for

Health Care Administration , 21 FALR 132 (AHCA, 1998)

30. AHCA has the burden of proving the basis for

changing Naples’s licensure rating to Conditional. Florida

Departme nt 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); Spanish Gardens, supra . The Florida Supreme Court has

determined that, where fines are imposed, the burden of proof

must be by clear and convincing evidence, because a fine

"deprives the person fined of substantial rights in property."

Department of Banking & Finance v. Osborne Stern, 670 So. 2d

932, 935 (Fla. 1996) The requir ement of clear and

convincing evidence has also been applied to actions which

affect reputation and good name. In Latham v. Florida

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

Court dismissed arguments that the lack of a fine relieved the

Commission of its burden to prove its findings by clear and

convincing evidence. In looking "to the nature of the

proceedings and their consequences to determine the degree of

proof required" (citing Osborne Stern , supra ), the Court

determined that loss of a good name was equally as severe as a

monetary fine.

31. The imposition of a Conditional license adversely

affects the reputation of a nursing facility with the public,

and thus affects its ability to operate. Furthermore,

findings from a survey in which Class II deficiencies are

found can result in the imposition of monetary penalties or

even criminal charges. See , e.g. Section 400.23(9)(b) and

400.241(3), Florida Statutes. Clearly, the effect of an

adverse survey and the Conditional rating emanati ng therefrom

is penal in nature, and can deter consumers from doing

business with the facility. The nature of these proceedings,

and the consequences from them require AHCA to prove its case

by clear and convincing evidence.

32. AHCA may issue a facility a Conditional license

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

Class II deficiencies, or where it has a Class III deficiency

not corrected within the time established by the agency.

(§400.23(8)(b), Florida Statutes). In the instant ca se, AHCA

alleges that it was proper to issue Naples a Conditional

license from March 11, 1999, through June 7, 1999, because

there was one Class II deficiency at Naples at that time.

33. Accordingly it is AHCA’s burden to establish by

clear and convincing evidence, (1) the existence of the

deficiency cited under Tag F224 of the March survey report,

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

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

demonstrate that Naples did not achiev e substantial compliance

with applicable regulatory standards until June 7, 1999. AHCA

failed to meet its burden in this case.

AHCA Failed to Prove, and Naples Disproved, That There Was Any

Deficiency Under Tag F224 :

34. AHCA claims under Tag F224 of the March survey

report that Naples failed to meet the requirements of 42 CFR

§483.13(c), which provides:

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.

This standard is made applicable to nursing homes in Florida

pursuant to 59A - 4.1288, Florida Administrative Code.

35. Guidelines for determining whether a facility has

complied with the requirements of the regulation have been set

forth as follows:

The regulation requires a long - term care

facility to develop and implement written

policies and procedures that prohibi t

abuse, mistreatment or neglect of

residents. In evaluating a long - term care

facility’s compliance with the regulation,

the questions that must be answered are:

(1) has the facility developed written

polices and procedures that prohibit abuse,

mistreatment or neglect of residents; and

(2) have those policies been implemented?

Life Care Center of Hendersonville v.

Health Care Financing Administration , DAB

CR 542 at 33 (1998); Beverly Health &

Rehabilitation - Springhill v. Health Care

Financing Administr ation , DAB CR 553 (1998)

36. There is no dispute in this case that Naples had

written and unwritten policies which were designed to prevent

neglect of its residents. The issue is whether Naples

properly implemented its policies that prohibited abuse,

mistreatment, and neglect of its residents. AHCA claims that

Naples failed to implement its policies because its surveyors

found three examples which they determined to be neglect of

residents at Naples. However, AHCA failed to show that any of

t he cited instances constituted neglect of the cited

residents.

37. Neglect is "the failure to provide goods and

services necessary to avoid physical harm, mental anguish and

mental illness." 42 C.F.R. Section 488.301. Determining

whether a facility neglected a resident under the regulation

requires AHCA to show that the facility withheld care to a

resident and that the care withheld was necessary to prevent

physical harm to a resident. See Springhill , supra .

38. With regard to the alleged failure of Naples to

change the dressings of the Residents cited under Findings 1

and 2 under Tag F224 of the survey report, the evidence was

undisputed that the facility only failed to change the

dressings on one day for each Resident, and the failure to

change a dressing for one day does not retard healing nor

present risk of infection or worsening of the wound. The

withheld care (i.e., the failure to change the dressings for

one day) was not "necessary" to prevent harm to the Residents.

See Springhill , supra .

39. With regard to Finding 3 under Tag F224 of the March

survey report, the surveyor determined that Resident 21

required constant monitoring and removal of picture frames

from her room because she believed the Resident was suicidal.

However, the expert evidence showed that Resident 21 was not

suicidal, and that she was not at risk of harming herself due

to the failure of staff to remove pictures or to monitor her

more frequently than every 30 minutes. The facility’s failure

to remove the frames or its f ailure to monitor her more

frequently was not "necessary" to prevent harm to the

Resident. See Springhill , supra .

AHCA Failed to Prove that the Deficiency Cited Under Tag

F224 was Properly Classified as a Class II Deficiency :

40. Although the evidence is insufficient to support a

finding of a deficiency under Tag F224 (which it is not), AHCA

failed to prove that any of the deficiencies were

appropriately classified as a Class II deficiency. Class II

deficiencies are defined under state law as thos e which "have

a direct or immediate relationship to the health, safety or

security of the nursing home facility residents."

400.23(9)(b), Florida Statutes. AHCA has further refined this

definition of Class II deficiencies to be those that "present

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

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

Administrative Code. Under the statute and AHCA’s

implementing rule, a Class II deficiency must be something

more than an isolated occurrence in t he facility and present

an immediate threat to residents in the facility at the time

of the survey. If the deficiency presents an indirect or

potential threat to residents in the facility, it must be

classified as a Class III deficiency. Rule 59A - 4.128(3),

Florida Administrative Code.

41. AHCA failed to show that the deficiency cited in

this case presented an immediate threat to "the nursing home

facility residents." The deficiency must be looked at for its

impact on all of the residents in the fac ility, and a Class II

rating can only be found where, at the time of the survey,

there is an immediate threat to general resident health or

safety due to the deficient practice. AHCA offered no

evidence which suggested that residents in the building were

in immediate threat of being neglected or abused. To the

contrary, it assigned the deficiency a federal scope and

severity rating of "G," which is an acknowledgement that the

deficient practice was isolated.

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 Naples and rescinding the Conditional rating.

DONE AND ENTERED this 12th day of November, 1999, in

Tallahassee, Leon County, Florida.

___________________________________

WILLIAM R. PFEIFFER

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.state.fl.us

Filed with the Clerk of the

Division of Administrative

Hearings

this 12th day of November, 1999.

COPIES FURNISHED:

R. Davis Thomas, Jr., Esquire

Donna Stinson, Esquire

Broad and Cassel

215 South Monroe, Suite 400

Post Office Drawer 11300

Tallahassee, Florida 32302

Karel L. Baarslag, Esquire

Agency for Health Care Administration

2295 Victoria Avenue, R oom 309

Post Office Box 60127

Ft. Myers, Florida 33901 - 6177

Julie Gallagher, General Counsel

Agency for Health Care Administration

Fort Knox Building 3, Suite 3431

2727 Mahan Drive

Tallahassee, Florida 32308

Sam Power, Agency Clerk

Agency for Health Care Administration

Fort Knox Building 3, Suite 3431

2727 Mahan Drive

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

exc eptions to this Recommended Order should be filed with the

agency that will issue the Final Order in this case.