STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT OF ) HEALTH AND REHABILITATIVE )

SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 80-548

) HOLLYWOOD HILLS NURSING HOME, )

)

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 June 13, 1980.

APPEARANCES

For Petitioner: Harold Braynon, Esquire

District X Legal Counsel Department of Health and

Rehabilitative Services

201 West Broward Boulevard

Fort Lauderdale, Florida 33301

For Respondent: Steve M. Raizin, M.H.A.

Administrator

Hollywood Hills Nursing Home 1220 North Thirty-Fifth Avenue Hollywood, Florida 33021

ISSUE

The issue posed herein is whether or not the Petitioner's imposition of a civil penalty upon Respondent in the amount of $750.00, based on conduct which is set forth hereinafter in detail, should be upheld.

FINDINGS OF FACT

1. Based on the testimony of the witnesses and their demeanor while testifying, the arguments of counsel and Respondent's representative, the documentary evidence received and the entire record compiled herein, the following relevant facts are found.

   
   

2. On October 2 and 3, 1979, Petitioner's inspection team led by Jules M. Gayle, Hospital Consultant, made a routine annual inspection of Hollywood Hills Nursing Home (herein sometimes called Respondent or the Home). Based on this

   inspection, Respondent was issued a list of deficiencies and allowed thru October 6, 1979 to correct same. The deficiencies cited were:

   
   

   1. A patient in Room #4 had oxygen in use with an improperly grounded electric lamp in use.

      
      

   2. A patient in Room #61 had oxygen tank in use not properly secured to a base pedestal and an electric clock located on a table next to tank was improperly grounded.

      
      

   3. The oxygen storage room on the second floor, opposite the elevator shaft, had one tank of oxygen not firmly secured on chain attachment; a prefilled humidifier attachment was left exposed to air, dust and possible bacteria contamination.

      
      

   4. A full oxygen tank stored within the first floor storage area exhibited a cannula attachment to a prefilled humidifier bottle not encased in any protective covering with the nasal apertures dangling from the tank and resting upon the dirty floor.

      
      

   5. Approximately 20-23 patients in wheelchairs were observed obstructing the first floor corridor passageway, and a similar situation existed on the second floor corridor, a hazard in the event of an emergency.

      
      

   6. Two psychiatric hospital or maximum security seclusion rooms, located within the nursing home proper, pose a potential hazard to nursing home patients and to staff.

      
      

   7. The toilet room ceiling in patient Room #65 was covered with a green mold fungus growth.

   
   

3. A follow-up inspection of the home on November 15, 1979 indicated that, with the exception of the mass assembly of patients in the corridor, the cited deficiencies were not corrected. (Testimony of Jules M. Gayle). Based on the results of the follow-up inspection, Respondent was noticed by Petitioner's Administrative Complaint dated February 21, 1980, that a $750.00 fine would be imposed.

   
   

4. The Home is a 200 bed facility which is licensed to care for 100 psychiatric and 100 regular patients in need of nursing care. All of the beds (psychiatric and general) are housed under one roof with a security door divider.

   
   

   RESPONDENT'S DEFENSE

   
   

5. Messr. Steve M. Raizin, Administrator for the Home related that the Home has a policy of correcting deficiencies as soon as practicable. As examples of this policy, the Administrator pointed out that a dietician was replaced when criticism arose respecting unsanitary conditions of the kitchen and the improper dispensing of food; a roof replacement at a cost of approximately $40,000 when the Home was cited and the purchase of a dumpster for trash and refuse at a cost to the Home of $10,000. The Home immediately removed the improperly grounded electrical lamp and radio from the patients room. The large congregation of patients in the corridor was a result of patients being transferred from the activity room to the cafeteria. The Administrator has attempted to convert the psychiatric seclusion rooms but has encountered resistence and opposition by the local Health Planning Council and the Courts.

   Finally Respondent has, according to the Administrator, taken steps (unspecified) to ensure the safety of all patients.

   
   

6. Even assuming that Respondent has taken the corrective actions set out above, there remains outstanding deficiencies which, as best as can be determined by the record, remain uncorrected. For example, it appears that the cited problem of an unsecured oxygen tank still exists. No mention was made by Respondent's Administrator as to what, if any, corrective action was taken to cover the exposed prefilled humidifier attachment and the fungus growth in the toilet of Room 65. That being the case, in view of the record evidence that these problems exist, it can only be concluded that the deficiencies remain (Petitioners Composite Exhibit #1 and Testimony of Jules M. Gayle). Any one of the above deficiencies amount to a violation of Section 400.141(4)(h), Florida Statutes, for which Respondent is subject to a civil penalty of not less than

   $500.00 and not more than $1,000.00 for each deficiency. I shall therefore recommend that Petitioner's imposition of a $750.00 civil penalty be upheld.

   
   

   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. The authority of the Petitioner is derived from Chapter 400, Part I, Florida Statutes and Chapter 10D-29, Florida Administrative Code.

   
   

10. Eased on the foregoing Findings of Fact and Conclusions, competent and substantial evidence was offered to establish that the Respondent breached his responsibility for compliance with the rules and regulations governing the health and safety of patients in violation of Rules 10D-29.33 (4), (6) and 10D- 29.50, Florida Administrative Code. As such the imposition of the $750.00 Civil Penalty is warranted pursuant to Chapter 400.23(4)(h), Florida Statutes (1979).

RECOMMENDATION

Based on the Foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED:

That the Petitioner's imposition of a civil penalty in the amount of

$750.00 be UPHELD.

RECOMMENDED this 21st day of July, 1980, in Tallahassee, Florida.

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings Room 101 Collins Building Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 21st day of July, 1980.

COPIES FURNISHED:

Harold Braynon, Esquire District X Legal Counsel Department of Health and

Rehabilitative Services

201 West Broward Boulevard

Fort Lauderdale, Florida 33301

Steve M. Raizin, M.H.A. Administrator

Hollywood Hills Nursing Home 1200 North Thirty-fifth Avenue Hollywood, Florida 33021

Docket for Case No: 80-000548

Orders for Case No: 80-000548