Judges: K. N. AYERS
Agency: Agency for Health Care Administration
Latest Update: Nov. 07, 1980
Summary: Respondent didn't correct staffing deficiency after warning, despite assurance that it would not mean administrative complaint. Recommend dismissal.
80-1443.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF HEALTH AND )
REHABILITATIVE SERVICES, )
)
Petitioner, )
)
vs. ) CASE NOS. 80-1443
) 80-1444
APALACHICOLA VALLEY NURSING ) CENTER, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly- designated Hearing Officer, K.N. Ayers, held a public hearing in the above- styled case on September 30, 1980, in Blountstown, Florida.
APPEARANCES
For Petitioner: John L. Pearce, Esquire
HRS District 2 Legal Office
2639 North Monroe Street, Suite 200-A Tallahassee, Florida 32303
For Respondent: Stephen D. Milbrath, Esquire
Dempsey & Slaughter
Suite 610, Eola Office Center 605 East Robinson Street Orlando, Florida 32801
By Administrative Complaints dated June 26, 1980, the Petitioner (HRS), seeks to impose $500.00 penalties on Respondent. As grounds therefor, it is alleged that Respondent failed to meet staffing requirements during the period of December 16, 1979 through March 25, 1980 and that after being notified of this Class III deficiency on January 8, 1980, Respondent failed to correct same on follow-up inspections conducted on February 21, 1980 and March 25, 1980. It is the failure to have the deficiency corrected at the two follow-up inspections that led to the two administrative complaints.
At the hearing, Petitioner withdrew that part of the Complaint relating to the shortage of a nurse's aide leaving only the shortage relating to a Licensed Practical Nurse. Thereafter, four witnesses were called by Petitioner, Respondent called ten witnesses and 13 exhibits were admitted into evidence.
There was no real dispute regarding the facts of this case. Proposed findings submitted by the parties, and not included below, were not supported by the evidence or were deemed immaterial to the results reached.
FINDINGS OF FACT
Respondent is a skilled nursing home facility located in Blountstown, Florida, and is licensed by HRS.
During a routine survey (inspection) of Apalachicola Valley Nursing Center on January 7-8, 1980, a staffing analysis revealed that for the three weeks prior to the survey, Respondent was short one licensed nurse on the night shift (11:00 p.m. to 7:00 a.m.) for this 21-day period.
During the entire period here involved, the adjusted average census of the Respondent was over 60 patients.
At the time of this survey, Petitioner's policy was not to cite staff shortages as deficiencies on HRS Form 553D unless they affected patient care or there was a deficiency in patient care to which a staff shortage could relate.
At all times here relevant, Mrs. Margaret Z. Brock was Administrator and part-owner of the Respondent.
Following the January 7-8, 1980 survey, the results were discussed with Mrs. Brock. The head of the survey team advised Mrs. Brock of HRS' policy on staff shortages which did not affect patient care.
As a result of unfavorable publicity regarding HRS' laxness in enforcing regulations involving medical facilities, by memorandum dated January 10, 1980 (Exhibit 2), HRS changed the policy on staff shortages which did not affect patient care. This change directed all staff shortages to be noted on the inspection report (Form 553D), which would thereby require action by the facility to correct. It further provided that all such shortages be corrected within 72 hours and if not corrected within the time specified, administrative action against the facility would be taken.
By letter dated January 15, 1980, Mrs. Brock was forwarded the survey report containing the deficiency relating to the shortage of one LPN on the night shift during the three-week period prior to the survey.
A follow-up visit was made to the Respondent on February 21, 1980, at which time it was noted that the LPN shortage on the night shift remained uncorrected. By letter dated February 27, 1980 (Exhibit 3), Mrs. Brock was advised of this finding and the accompanying Form 553D stated that the deficiency was referred for administrative action. This resulted in the Administrative Complaint in Docket No. 80-1443.
A second follow-up visit was made on March 25, 1980, at which time it was noted that the LPN shortage on the 11:00 p.m. to 7:00 a.m. shift was still uncorrected. By letter dated April 1, 1980 (Exhibit 4), Mrs. Brock was advised of this finding and the accompanying Form 553D indicates that the deficiency is again being referred for administrative action. This resulted in the Administrative Complaint in Docket No. 80-1444.
There is a shortage of nurses, both registered and licensed practical, nationwide, as well as in the panhandle of Florida. This shortage is worse in smaller towns and rural areas than in more metropolitan areas. Respondent is located in a rural area.
Respondent has encouraged and assisted potential employees to attend the LPN courses given in nearby technical schools. One of these enrollees is currently working for Respondent.
Respondent has advertised in newspapers for additional nursing personnel and has offered bonuses to present employees if they can recruit a nurse to work for Respondent. Other hospitals and nursing homes in the panhandle experience difficulties in hiring the number of nurses they would like to have on their staff. All of those medical facilities, whose representatives testified in these proceedings, have difficulty employing as many nurses as they feel they need. The LPN shortage is worse than the RN shortage.
None of these medical facilities, whose representatives testified to the nurse shortage, except Respondent, was unable to meet the minimum staffing requirements of HRS although they sometimes had to shift schedules to meet the prescribed staffing.
Respondent has found it more difficult to keep nurses on the 11:00
p.m. to 7:00 a.m. shift than other shifts, particularly if these employees are married or have families.
Because of this staffing shortage, on July 18, 1980, a moratorium was placed on Respondent's admitting additional patients. This moratorium was lifted presumably after Respondent met the prescribed staffing requirements by employing a second nurse for the 11:00 p.m. to 7:00 a.m. shift.
Failure to meet minimum staffing requirements is considered by Petitioner to constitute a Class III deficiency.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.
Respondent offers skilled nursing care and Section 10D-29.39(1), Florida Administrative Code, provides that for such homes, there shall be one licensed nurse on the night shift to 60 patients.
Section 400.23, Florida Statutes, provides generally for the promulgation of rules and establishment of standards for nursing homes. Subparagraph (4)(c) thereof provides:
Class III deficiencies are those which the department determines to have an indirect or potential relationship to the health, safety, or security of the nursing home facility patients, other than class I or II deficiencies. A class III deficiency shall be subject to a civil penalty of not less than $100 and not exceeding $500 for each and every deficiency. A citation for a class III deficiency shall specify the
time within which the deficiency is required to be corrected. If a class III deficiency is corrected within the time specified,
no civil penalty shall be imposed, unless it is a repeated offense.
Considerable evidence was presented regarding the shortage of nursing personnel and the difficulties encountered by the various medical facilities in hiring those needed. However, it is significant that none of those witnesses who testified regarding this shortage also testified that the facility at which they were affiliated could not meet the minimum staffing requirements for their facility.
With respect to the Administrative Complaint in Docket No. 80-1443, it is noted that immediately following the survey during the exit interview, Respondent was assured that the staffing shortage would not result in a reported deficiency on Form 553D. Even when it did become a Form 553D deficiency, the letter accompanying this survey report did not explicitly contradict the earlier information which Respondent had received at the exit interview regarding the seriousness of this deficiency.
The follow-up visit of February 21, 1980, which revealed the staffing deficiency to be uncorrected, resulted in the Administrative Complaint in Docket No. 80-1443. In view of the previous assurance that, absent deficiencies affecting patient care, staffing shortages would not result in a reported deficiency, this Administrative Complaint should be dismissed.
With respect to the Administrative Complaint in Docket No. 80-1444, which was issued after the second follow-up visit on March 25, 1980, a different situation exists. At this time, Respondent was well aware that HRS had changed its policy respecting staffing shortages and that continued staffing shortages would result in action by Petitioner to correct this deficiency. Despite this knowledge, Respondent continued to rely upon the excuse that it was difficult to employ a nurse for the night shift for failing to comply with the prescribed staffing requirement. Only when Petitioner placed a moratorium on Respondent admitting additional patients did Respondent take the action necessary to meet the staffing requirement.
From the foregoing, it is concluded that for a period of time commencing on or before December 16, 1979 and extending after April 25, 1980, Respondent did not meet the minimum staffing requirement that two nurses be provided on the night shift. Certainly, on and after February 21, 1980, Respondent was aware that Petitioner's policy had changed and that staffing deficiencies would no longer be overlooked or tolerated. Nevertheless, Respondent continued to operate without regard to this requirement.
RECOMMENDATION
Upon the foregoing findings of fact and conclusions of law, it is recommended that the Administrative Complaint in Docket No. 80-1443 be dismissed. It is further recommended that for failure to comply with the minimum staffing requirements after February 21, 1980, Respondent be fined
$500.00.
DONE and ENTERED this 7th day of November, 1980, at Tallahassee, Florida.
K. N. AYERS, 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 7th day of November, 1980.
COPIES FURNISHED:
John L. Pearce, Esquire
HRS District 2 Legal Office Suite 200-A
2639 North Monroe Street Tallahassee, FL 32303
Stephen D. Milbrath, Esquire Dempsey & Slaughter
Suite 610, Eola Office Center 605 E. Robinson Street Orlando, FL 32801
Docket for Case No: 80-001443
Orders for Case No: 80-001443
| Issue Date |
Document |
Summary |
|
Nov. 07, 1980 |
Recommended Order
|
Respondent didn't correct staffing deficiency after warning, despite assurance that it would not mean administrative complaint. Recommend dismissal.
|
