STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 81-2036

) MARY LEE DEPUGH NURSING HOME ) ASSOCIATION, INC., d/b/a MARY ) LEE DEPUGH NURSING HOME, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in the above case by the Division of Administrative Hearings before its duly designated Hearing Officer, DONALD R. ALEXANDER, on November 4, 1981, in Orlando, Florida.

APPEARANCES

For Petitioner: Douglas Whitney, Esquire

400 West Robinson Street, Suite 912 Orlando, Florida 32801

For Respondent: N. Lee Sasser, Jr., Esquire

Post Office Box 1328

Winter Park, Florida 32790 BACKGROUND

By Administrative Complaint dated July 8, 1981, Petitioner, Department of Health and Rehabilitative Services, has charged that Respondent, Mary Lee DePugh Nursing Home Association, Inc., d/b/a Mary Lee DePugh Nursing Home, violated Sections 400.022(1)(k) and 400.141, Florida Statutes (Supp. 1980) and Rule 100- 29.33(4), Florida Administrative Code, for which a $500 administrative fine should be imposed. In summary form it is charged that a complaint investigation conducted by Petitioner revealed that in March, 1981, Respondent involuntarily transferred a patient to a county medical clinic for admission to a hospital; that the patient's medical records did not substantiate a medical emergency for transfer to a hospital; that Respondent refused to readmit the patient after the clinic determined that hospitalization was not required; that the patient's

next-of-kin was not notified by Respondent of said transfer; and that the foregoing acts constituted a violation of Sections 400.022(1)(k) and 400.141 and Rule 10D-29.33(4), supra.

Respondent disputed the allegations contained in the Administrative Complaint and requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes. The matter was transferred to the Division of Administrative Hearings by Petitioner on August 12, 1981, with a request that a Hearing Officer

be assigned to conduct a hearing. By Notice of Hearing dated September 17, 1981, the final hearing was scheduled for October 21, 1981, in Orlando, Florida. At the request of the petitioner and without objection by Respondent, the matter was rescheduled to November 3, 1981, at the same location.

At the final hearing Petitioner presented the testimony of Kerk Kuyper, Dr. Evelyn Dayoe, Wanda Hand, John Dowless and Daphne Dunn, and offered Petitioner's Exhibits 1-5; all were received into evidence except Exhibit 5 upon which a ruling was reserved. Respondent presented the testimony of Bertha L. Wade and Dr. L. Paul Foster. By stipulation of the parties, the nurse's notes for patient Gladys Odoseswere received into evidence as Hearing Officer Exhibit 1.

Proposed findings of fact and conclusions of law were filed by Respondent and Petitioner on November 17 and 19, 1981, respectively, and have been considered by the undersigned in the preparation of this order. Findings of fact not included in this order were not considered relevant, were not supported by competent and substantial evidence, or were considered immaterial to the results reached.

The issue herein is whether Respondent violated Sections 400.022(1)(k) and

400.141 and Rule 100-29.33(4), supra, as alleged in the Administrative Complaint thereby justifying the imposition of a $500 administrative fine by Respondent.

Based upon all the evidence, the following findings of fact are determined: FINDINGS OF FACT

1. Respondent, Mary Lee DePugh Nursing Home Association, Inc., operates the Mary Lee DePugh Nursing Home at 550 West Morse Boulevard, Winter Park, Florida, and is subject to the regulatory jurisdiction of Petitioner, Department of Health and Rehabilitative Services. It is a skilled nursing care home providing skilled nursing services to its patients.

   
   

2. In December, 1980, Gladys Odomes, a 65 year-old female, was admitted to Respondent's facility as a patient where she remained until March 18, 1981. Odomes was suffering from cancer of the left breast and required skilled nursing care. During her stay at the nursing home, Odomes' overall condition deteriorated, particularly during the month of March, 1981. Her condition was aggravated by a poor appetite and decreased consumption of liquids during the latter part of her stay.

   
   

3. On the morning of March 18, 1981, Bertha Wade, Administrator of the nursing home, contacted the Department's aging adult services supervisor for Orange County to obtain permission to transfer the patient to Orange County Medical Clinic (OCMC) and then to Orange County Regional Hospital. The request was made after receiving information from an on-duty nurse concerning the condition of Odomes. This request was denied by the Department representative. Wade then telephoned the supervisor of nurses at OCMC to advise her she was transferring Odomes to that facility. At the same time, a medical doctor on the Respondent's staff examined Odomes and agreed the patient's condition was such that she required immediate hospitalization. After the arrangements to move Odomes had been completed, Wade talked to the patient to advise her she was being transferred to a hospital. Odomes appeared to understand the nature of the conversation. The next-of-kin was also notified. There is no evidence that either Odomes or her next-of-kin objected to the transfer. After being transported to OCMC on the morning of March 18, Odomes was examined by an OCMC staff physician who recommended Odomes be transferred to another nursing home

   rather than being placed in a hospital. Odomes was eventually transferred to Florida Manor Nursing Home late that afternoon. On March 27, 1981, she was admitted to Orlando Regional Hospital from Florida Manor Nursing Home where she expired on April 2, 1981.

   
   

4. The Department attempted to interview Odomes at Florida Manor on March 26, 1981; however, the patient was "incoherent" and no interview was possible. She died less than a week later.

   
   

5. The paperwork for the transfer of Odomes was prepared by the nurse on the floor where Odomes was a patient. It failed to give adequate information as to the reason for transferring the patient or the medical condition of the patient A that precipitated the move. The Administrator blamed this on the fact that an inexperienced nurse had filled out the papers, and through oversight the entry had not been corrected.

   
   

6. According to the Department, there are "no set procedures" for dealing with transfers of patients. Rather, it must be worked out on a "step-by-step basis in an orderly and decent manner." It was the Department's position that the correct procedures were not followed in this particular case.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Bearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes (1979).

   
   

8. Subsection 400.022(1), Florida Statutes (Supp. 1980) requires that nursing home facilities adopt a statement of rights and responsibilities of patients residing in such facilities. It assures each patient certain rights, including:

   
   

   * * *

   (k) The right to be transferred or discharged only for medical reasons or for the welfare of other patients, and the right to be given reasonable advance notice of no less than 30 days of any involuntary transfer or discharge, except in the case of an emergency as determined by a licensed professional on the staff

   of the nursing home . . .

   
   

   Rule 10D-29.33(4), Florida Administrative Code, requires that the nursing facility:

   
   

   (4) Be responsible for compliance with all provisions of Chapter 400 F.S. and these rules.

   
   

9. Here the Department seeks to take disciplinary action against a licensee. Accordingly, because the proceeding is penal in nature, the evidence required to support conventional forms of regulatory action will not suffice; rather, the "critical matters in issue must be shown by evidence which is indubitably as 'substantial' as the consequences." Bowling v. Department of Insurance, 394 So.2d 165, 172 (Fla. 1st DCA 1981). That is to say, the proof

   must be commensurate with the potential penalty. Henderson Signs v. Florida Department of Transportation, 397 So.2d 769 (Fla. 1st DCA 1981).

   
   

10. In order to invoke the provisions of Subsection 400.022(1)(k), supra, it must be demonstrated by "substantial" evidence that (a) patient Odomes was involuntarily transferred from Respondent's facility, and (b) there was no emergency as determined by a licensed professional on the staff of the nursing home.

    
    

11. There is no substantial evidence to support either essential element. To begin with, no evidence was adduced to show that either Odomes or her next- of-kin objected to the transfer. Indeed, the record supports the conclusion that both Odomes and her next-of-kin were consulted, and gave their approval. The contention of Petitioner that no emergency situation existed to justify the transfer is unavailing. The transfer was made only after a licensed professional on the staff of Respondent's facility concluded that immediate hospitalization was required. It is true that an OCMC physican reached a different professional judgment, but the law requires that this determination be made by "a licensed professional on the staff of the nursing home." Subsection 400.022(1)(k) supra. Respondent having complied with the statutory requirements, and there being no "substantial" evidence to the contrary, the charge that the nursing home has violated Subsection 400.022(1)(k) should be dismissed. Bowling; Henderson Signs; supra.

    
    

12. The Administrative Complaint charges Respondent with having failed to notify the next-of-kin that the transfer was being effected. Aside from the fact that the evidence belies this contention, Petitioner cited no rule or statute that imposes this requirement. This being so, the charge should be dismissed.

    
    

13. Petitioner also contends ". . . [t]he patient's medical record did not substantiate a medical emergency or medical reason for the transfer of the patient to the hospital." It was not disclosed whether this allegation underpins in part the charge that a violation of Subsection 400.022(1)(k) occurred, or relates to some other rule or statute. In any event, Respondent was not apprised with particularity as to what, if anything, it had violated, and in the absence of proper notice, the charge cannot be sustained. Robins v. Florida Real Estate Commission, 162 So.2d 535, 537 (Fla. 3rd DCA 1964). 1/

    
    

14. Finally, the Administrative Complaint alleges that a violation of Section 400.141, Florida Statutes (Supp. 1980) has occurred. This statute provides in part that "[e]very facility shall comply with all applicable standards, rules, and regulations of the Department..." It also contains seven subsections enumerating further requirements on the part of nursing homes; however, none were cited in the Complaint nor was clarification as to the nature of the offense subsequently provided. Accordingly, the undersigned must conclude that (a) insufficient notice of the alleged charges was afforded Respondent, Robins, supra, and (b) there was a lack of "substantial" evidence to support a conclusion that a "standard, rule, or regulation" was violated. Bowling; Henderson Signs; supra. The same must be concluded with respect to the alleged violation of Rule 10D-29.33(4), supra, which merely

    
    

15. Petitioner's Exhibit 5 is an Investigation of Complaint prepared by a Department field staff member. It is based largely upon interviews conducted by Department representatives with a number of persons, most of whom were not present at the final hearing, and a review of documentation of both Respondent and third parties not involved in this proceeding. Most if not all of it is

    hearsay, and founded upon conversations and documents which Respondent had no opportunity to confront and examine. Although the courts have characterized similar reports as being "hearsay-ladened", School Board of Leon County v.

    Hargis, 400 So.2d 103, 109 (Fla. 1st DCA 1981), and indeed it is, the report is nevertheless admitted as it was in the Hargis decision for such extremely "limited corroborative value as it had."

    
    

16. A ruling on Respondent's ore tenus Motion to Dismiss was reserved. In view of the result reached herein, the Motion is rendered moot and should be denied.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Administrative Complaint against Respondent be

DISMISSED.

DONE and ENTERED this 23rd day of November, 1981, in Tallahassee, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of November, 1981.

ENDNOTE

1/ Petitioner's witness Dunn testified that there are "no set procedures" for transferring a patient from a nursing home to a higher level care facility. In the absence of an explicit statute or rule, it is difficult to conclude that Respondent should have been aware of the steps required to satisfy the Department's concerns. If a specific policy were elucidated, Respondent and others would likely conform their practices to the agency standard. Anheuser- Busch, Inc. v. Dept. of Business Regulation, 393 So.2d 1177, 1181 (Fla. 1st DCA 1981); Bowling, supra at 172. However, this point is not determinative of the issues in this case, and need not be considered, particularly since the statutory criteria in Subsection 400.022(1)(k) were followed requires Respondent to be . . . responsible for compliance with all provisions of Chapter 400 F.S. and these rules. In light of the lack of specificity by Respondent, it is concluded that this charge should also be dismissed.

COPIES FURNISHED:

Douglas Whitney, Esquire

400 West Robinson Street, Suite 912 Orlando, Florida 32801

N. Lee Sasser, Jr., Esquire Post Office Box 1328

Winter Park, Florida 32790

Docket for Case No: 81-002036

Orders for Case No: 81-002036