STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDEAN NURSING HOME, )

)

Petitioner, )

)

vs. ) CASE NO. 77-1413

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on October 20, 1977, in Miami, Florida.

APPEARANCES

For Petitioner: Jack R. Rice, Jr., Esquire

Post Office Box 350838 Miami, Florida 33135

For Respondent: Leonard Helfand, Esquire

2445 West Flagler Street Miami, Florida 33135

This cause was initiated by an appeal filed by Floridean Nursing Home, (Petitioner herein), of the denial of waiver and/or variance criteria for the subject facility (Floridean Nursing Home) as set forth in Section 405.1134(e), Code of Federal Regulations (CFR). That section provides in relevant part that:

"Multi-patient's room provide a minimum of 80 square feet per patient. The secretary may permit variations in individual cases where the facility demonstrates in writing that such variations are in accordance with the particular needs of the patients and will not

adversely affect their health and safety. . ." 1/

Based upon my observation of the witnesses and their demeanor while testifying, the arguments of counsel, and the entire record compiled herein, I make the following:

FINDINGS OF FACT

1. The nursing home involved here is a licensed 55-bed skilled nursing home facility (SNF) which has been in continuous operation for approximately 32 years and since the inception of licensure requirements by the state, it has been licensed as such. Testimony introduced during the course of the hearing

   reveals that the facility has been continuously recognized as one of the few nursing homes in Florida giving exceptional care to individual patients. The State Department of health and Rehabilitative Services has recognized this factor in prior field examinations. Evidence reveals further that that facility took various safety precautions for patient inhabitants prior to mandatory requirements by law. Staff employees enjoy an excellent longevity record. For the most part, all employees have been retained until they reach retirement age. The facility has been operating under the same ownership and management for the past 32 years. Average patient age in the facility is 84 years and the average patient stay exceeds 17 years. The facility has operated on an approximate 98 percent occupancy rate since its inception. Various surveying teams and consultants testified as to the quality of the care provided by this facility, some of whom are involved in licensure and inspection by the Respondent and attest favorably to the quality of care provided. All of those testifying opined that any limitation in the square footage requirement would in no way interfere with the particular needs of the patients nor will it adversely affect the patients' safety and health care. (Testimony of doctors Gene Purdue, James

   J. Hudson and Janet Ryan, a Public Health Nurse and Consultant employed by Respondent's Licensure and Certification Division and Col. William Jones. Also see Petitioner's Composite Exhibit 2)

   
   

2. William "Bill" Dott, an employee of Respondent in charge of patient placement in comes for Dade County, testified that there were presently pending

   84 patients requesting beds as of Friday, October 14, 1977 and based on the County's recent survey, only six beds were available.

   
   

3. Based on stipulated statements respecting the testimony of Messrs. Kennedy, of the Dade County Fire Department and the Petitioner's accountant, it is concluded that the denial of the waiver to Petitioner would result in a decrease of approximately 15 beds leaving it in an uneconomically feasible position. A further examination of the code requirements of Dade County reveal that enlargements, renovations, damages by fire forcing repairs, alterations or improvements in excess of fifty (50) percent of a structure's then physical value before such damage and/or repair, shall be made to conform to each and every "new" requirement corresponding to the "existing" requirements with which the facility did not comply. Other repairs, additions, alterations etc., in amounts ranging between 25 but less than 50 percent of the then physical value of a nonconforming building requires a degree of compliance with the new requirements to be determined by the Department of Building and Inspection. The subject facility falls into the "nonconforming use" category.

   
   

4. The Department of Health, Education and Welfare's Regional Director issued an all state letter (No. 2-76) dated January 30, 1976 advising of the development of waiver and variance criteria pursuant to Section 405.1134(a), (c) and (e). That letter provided in pertinent part that standard (e) of 405.1134, Patient Room and Toilet Facilities, provides for the granting of a "variance" from the regulations. In the case of granting variations to this standard, "the secretary (or in the case of a facility participating as a skilled nursing facility under Title XIX, the survey agency may grant them (variances) only 'for the facility that demonstrates in writing that such variations are in accordance with the particular needs of the patients and will not adversely affect their health and safety.' Hardship is not a factor in granting a variance. The facility is responsible for documenting that having more than four patients to a room or having less than required footage is in the best interest of the individual patients in that room, and does not adversely affect their health and safety. . ."

5. As the variance in standard 405.1134(e), C.F.R. is based on the needs of the patients, the period of approval will depend on the situation remaining the same as when the variance was approved. The variance must be reapproved at the beginning of each new agreement cycle, and is not automatically granted for the full length of the agreement. (Respondent's Exhibit #1) By letter dated March 4, 1976, Messr. Joseph C. Thompson, Acting Chief of the Bureau of Health Facilities of the State Department of Health and Rehabilitative Services wrote Mr. John E. Pikes, Director, Office of Longterm Care Standards Enforcement of the Department of Health, Education and Welfare - Region 4, addressed the concern that the State had with respect to compliance with the directives contained in the above referred to all state letter no. 2-76. He stated therein that by not granting a "variance" to certain existing nursing homes with patient rooms containing more than four beds would create problems in view of the "badly needed patient care in this state." Messr. Thompson stated in pertinent part that variances had been granted in the past based on written documentation received from providers of health care when all other pertinent guidelines satisfied SNF and/or ICF Federal Regulations. In response thereto, by letter dated April 1, 1976, Messr. Pikes, while expressing his concern with the State's problem with respect to granting variances according to the regulations and the impact of the availability of SNF beds, stated that since the regulations are very clear, the standards enforcement office could not propose any changes in its all state letter no. 2-76.

   
   

   CONCLUSIONS

   
   

6. Based on my examination of the pertinent rules and regulations and the entire record compiled herein, I conclude that the subject facility is entitled to a variance pursuant to Section 405.1134(e), Code of Federal Regulations. The controlling provision of the above referenced statute provides in pertinent part that the secretary (or in the case of a facility participating as a skilled nursing facility under title IX only), or the survey agency may permit variations in individual cases where the facility demonstrates in writing that such variations are in accordance with the particular needs of the patients and will not adversely affect their health and safety. Turning to the record in this case, adequate evidence has been presented without any rebuttal that the granting of a variance to this facility is in accordance with the particular patient needs nor will it in any manner adversely affect their health and safety. Consideration was given to the fact that the nursing home Administrator, Mrs. Rice testified that approximately 50 percent of all of her patients were receiving medicaid; the numerous testimonial letters respecting the quality care provided by this facility including such recognition by the Respondent's licensure officials and the fact that the State has waived the strict requirements of the 80 square fee per bed requirement for those facilities not participating in the medicaid programs. Based on this record and in the absence of any rebuttal evidence by either the Department of Health Education and Welfare or the Respondent herein, I conclude that the Petitioner is entitled to a waiver and should be certified as a provider of skilled nursing home care under medicare provisions of the Social Security Act.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Chapter 120.57(1), Florida Statutes.

   
   

8. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

9. In view of the record evidence that the survey agency had ample evidence upon which a determination could be made that the facility involved herein was entitled to a waiver in accordance with the particular patient needs and further that no adversity would flow to patients' health and safety by the grant of such waiver; such waiver should have been granted to such facility pursuant to authority vested in the Respondent as the survey agency for the Department of Health, Education and Welfare.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, I hereby recommend that the Petitioner's appeal of the Respondent's denial of waiver and/or variance criteria for the subject facility pursuant to Section 405.1134(e), Code of Federal Regulations, be sustained.

RECOMMENDED this 22nd day of December, 1977, in Tallahassee, Florida.

JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

ENDNOTES

1/ The State of Florida has a similar rule which provides that skilled nursing homes in existence prior to 1970 are exempt from the provisions of the 80 square feet per patient requirement. (Chapter 10D-29.52, F.A.C. as modified by the errata sheet on page 66)

2/ There is no question here that the Respondent is the survey agency as provided in Section 249.33(a)(1)(i) of title XIX.

COPIES FURNISHED:

Leonard Helfand, Esquire 2445 West Flagler Street Miami, Florida 33135

Jack R. Rice, Jr., Esquire Post Office Box 350838 Miami, Florida 33135

Docket for Case No: 77-001413

Orders for Case No: 77-001413