STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT HEALTH AND )

REHABILITATIVE SERVICES, )

STATE OF FLORIDA, )

)

Petitioner, )

)

vs. ) CASE NO. 78-671

)

SWEETING NURSING HOME, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above-captioned matter, after due notice at Hollywood, Florida, on June 12, 1978, before the undersigned Hearing Officer.

APPEARANCES

For Petitioner: Harold L. Braynon

District X Legal Counsel Department of Health and

Rehabilitative Services

800 West Oakland Park Boulevard Ft. Lauderdale, Florida 33311

For Respondent: None

STATEMENT OF THE ISSUE

Whether an administrative fine should be imposed against Respondent for alleged violation of Sections 400.102(1)(b) and 400.162, Florida Statutes, as set forth in the letter of Joseph D. Dowless, Jr., dated March 16, 1978.

Representatives of Respondent Sweeting Nursing Home did not appear at the hearing and therefore the matter proceeded as uncontested pursuant to Rule 28- 5.25(5), Florida Administrative Code.

At the commencement of the hearing, the Hearing Officer inquired of Petitioner's counsel as to the accuracy of the charge of a violation of Section 400.102(1)(b), F.S., which involves misappropriation or conversion of the property of a resident of a nursing home facility, Petitioner's counsel announced that it wished to proceed under Section 400.102(1)(c) as a violation of provisions of Chapter 400 rather than on a conversion theory. In view of the fact that such an amendment involves an allegation of lesser severity than that originally alleged in the notice of charges and was fairly encompassed within such letter, the Hearing Officer permitted the amendment.

FINDINGS OF FACT

1. Sweeting Nursing Home, Fort Lauderdale, Florida, is a facility licensed by Petitioner under Chapter 400, Florida Statutes. As a result of an audit of the facility for the year ending March 31, 1976, Petitioner's hospital consultant with its Office of Licensure and Certification visited Petitioner's premises on March 10, 1978, to see if certain deficiencies existing in the patient trust fund, as indicated in the audit, had been corrected. The audit deficiencies were failure to reconcile patient trust fund account balances with the general ledger account balance on a regular basis, improper documentation to support fund receipts and disbursements, failure to reconcile patient trust fund account liability and patient trust fund cards, transfer of patient trust fund cards to the patient's file upon the patient's departure from the home, and inclusion of old balances in the liability account due to patients who are no longer at the facility. Petitioner's consultant found that inadequate records existed to properly audit the accounts and determined that the deficiencies cited in the audit had not been corrected. On the occasion of his visit, Respondent's administrator, Mrs. Marie Camacho, admitted that she was in violation of pertinent regulations regarding handling of patient trust funds and that such funds were frequently used to meet payroll expenses due to the fact that the home did not receive other regular funds from state sources on a timely basis. She stated, however, that trust fund monies were always returned to the trust fund account when the facility received Medicare or Medicaid payments. Petitioner's consultant also inquired as to the availability of bank statements of the trust fund accounts and was told that such records were at an accounting firm in Miami, Florida. No attempt was made, however, by the consultant to contact the accounting firm. (Testimony of Hanson)

   
   

2. Patient trust funds are derived from monies received by patients from governmental or private sources for personal expenses. In the case of Medicaid, patients receive $25.00 a month from their social security checks for this purpose. Deposits and withdrawals from these accounts are recorded on individual patient ledger cards. Normally, disbursements are made from a petty case account with a monthly withdrawal from the patient's trust fund bank account to equal the amount withdrawn within the period. Although there is a lag time of approximately three months from the time a patient is admitted in the nursing home until the government commences monthly payments for care, the nursing home is expected to be sufficiently solvent to meet its expenses pending receipt of such monies. (Testimony of Hanson)

   
   

   CONCLUSIONS OF LAW

   
   

3. Petitioner seeks to impose an administrative fine of $1,000 against Respondent based on Section 400.102(1)(c), Florida Statutes, by reason of a violation of Section 400.162, Florida Statutes. These provisions provide pertinently as follows:

   
   

   400.102 Action by department against facility; grounds. --

   (1) Any of the following conditions shall be grounds for action by the Department of Health and Rehabilitative Services against the facility;

   * * *

   (c) Violation of provisions of this chapter or of minimum standards, rules, or regulations promulgated pursuant thereto;

   400.162 Property and personal affairs of

   patients. --

   1. A facility shall keep complete and accurate records of all funds . . . of its residents received by it for safekeeping.

   2. Any funds or other property belonging to or due to a resident or expendable for his account which are received by a facility shall be trust funds, shall be kept separate from the funds and property of the facility and other residents or be specifically credited to such resident, and shall be used or otherwise expended only for

   the account of the resident.

   
   

4. The evidence established that Respondent committed violations of the above cited statutory provisions by failing to keep complete and accurate records of patient trust funds and using or otherwise expending such funds other than for the account of the patients. Although no documentary evidence was submitted at the hearing to establish the amounts of any such misuse of funds, the administrator of the nursing home admitted that such funds were used frequently to meet payroll expenses. It is therefore, considered that violations of Section 400.162(4) and (5) have been established. Such violations constitute a ground for disciplinary action under Section 400.102(1)(c), Florida Statutes.

   
   

5. Petitioner is authorized to impose an administrative fine for a violation of any provision of Section 400.102 pursuant to Section 400.121(1) and (8), F.S. The latter statutory subsection authorizes such a fine not to exceed

$500 for each violation. Inasmuch as Respondent has been determined to have committed two separate violations of Section 400.162, it is considered that a

$1,000 fine, as sought by Petitioner, is warranted.

RECOMMENDATION

That an administrative fine of $1,000 should be imposed against Respondent Sweeting Nursing Home for violation of Sections 400.162(4) and (5), Florida Statutes.

DONE and ENTERED this 7th day of July, 1978, in Tallahassee, Florida.

THOMAS C. OLDHAM, Hearing Officer Division of Administrative Hearings

530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675

COPIES FURNISHED:

Harold L. Braynon District X Legal Counsel Department of HRS

800 West Oakland Park Boulevard Fort Lauderdale, Florida 33311

Sweeting Nursing Home 2137 N.W. 4th Street

Fort Lauderdale, Florida 33311

Steven W. Huss Staff Attorney

Central Operations Services Department of HRS

1323 Winewood Boulevard

Tallahassee, Florida 32301

Philip H. Bergman Stephen W. Crair

9000 Southwest 87th Court Miami, Florida 33176

Docket for Case No: 78-000671

Orders for Case No: 78-000671