STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 82-2596

)

RED CARPET HEALTH CENTER, ) INC., d/b/a PASCO NURSING AND ) REHABILITATION CENTER, )

)

Respondent. )

) DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 82-3225

)

RED CARPET HEALTH CENTER, ) INC., d/b/a PASCO NURSING AND ) REHABILITATION 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 cases on 17 February 1983 at Dade City, Florida.

APPEARANCES

For Petitioner: Carol M. Wind, Esquire

Department of Health and Rehabilitative Services

2255 East Bay Drive Clearwater, Florida 33516

Gerald S. Struckhoff, Administrator, Pasco Nursing and Rehabilitation Center, presented evidence on behalf of Respondent.

By Administrative Complaint filed 8 August 1982, the Department of Health and Rehabilitative Services, Petitioner, seeks to assess a monetary penalty against Red Carpet Health Center, Inc., d/b/a Pasco Nursing and Rehabilitation Center, Respondent, in the amount of $1,300 and by Administrative Complaint filed 13 September 1982 Petitioner seeks to assess a monetary penalty against Respondent in the amount of $600. As grounds for the $1,300 penalty it is

alleged Respondent failed to correct three Class III violations upon reinspection some 30 days after the initial inspection; and, as grounds for the

$600 penalty, it is alleged that on a July 19, 1982, inspection certain pieces of patient room furniture was in need of refurbishing, vinyl molding was damaged or missing, and Respondent did not have a surety bond.

At the hearing two witnesses were called by Petitioner, two witnesses were called by Respondent, and 13 exhibits were admitted into evidence. Objections to some of these exhibits on grounds of relevancy and hearsay were overruled.

With respect to the hearsay nature of the objections, these exhibits have been considered only insofar as they supplement competent evidence. Respondent admitted all of the alleged violations and most of the exhibits were submitted in mitigation of the proposed penalties.

FINDINGS OF FACT

1. On March 25, 1982, Pasco Nursing and Rehabilitation Center was inspected by representatives of Petitioner and Class III discrepancies were found which required correction by 25 April 1982. At the time of inspection this nursing home was in receivership and ownership was being transferred to Respondent on 1 April 1982. It was agreed between the former owner and Respondent that the former would be responsible for structural defects noted in inspections prior to 1 April 1982.

   
   

2. A follow-up inspection was conducted on 29 April 1982 and the deficiencies giving rise to the Administrative Complaint filed 8 August 1982 were noted as uncorrected. These were:

   
   

   1. Closet doors missing in Rooms 1 and 3 and door in Room 2 needed replacement; and call cords were missing or of inadequate length in Rooms 3, 11, and 15.

   2. Respondent did not have a surety bond filed with the Clerk of the Circuit Court or submit evidence of membership in an approved self-insurance pool.

   3. bean equipment was observed in "soiled" utility room and file cabinets, personal clothing and purses were observed in the clean utility and linen room.

   4. Appropriate in-service training had not been provided to all staff personnel.

      
      

3. Respondent did not contest the validity of these reported deficiencies on the 29 April 1982 inspection, but submitted evidence in mitigation. With respect to the replacement of doors in Rooms 1, 2, and 3, it was pointed out that the cost of the replacement doors was the responsibility of the owner of the building and that it had taken much longer than the 30 days allowed to get the owner of the building to agree to the need and to pay for these new doors. In fact, in order to get the job accomplished, it was necessary to install fireproof drapes since the company who manufactured the doors demanded up-front payment for the special-order doors that were required.

   
   

4. The nursing home had been in bankruptcy some 20 months prior to the March 25, 1982, inspection and insurance companies would not issue the required surety bond except upon receipt of a financial statement from the receivers,

   which they were reluctant to provide. Application for surety bond was submitted

   21 December 1981 (Exhibit 3), but the bond was not issued until July 16, 1982 (Exhibit 6)

   
   

5. The administrator of the facility suffered renal failure in April, 1982, and was not operating at peak efficiency. This contributed to the failure to correct the deficiencies noted on the March 25, 1982, inspection, particularly the in-service training for the nursing home staff.

   
   

6. At a subsequent inspection conducted July 19, 1982, the surety bond had not been received by the nursing home and could not be produced, although as noted in Finding 4 above, this surety bond was issued July 16, 1982. Other deficiencies noted at the July 19 inspection included chipped and scratched patient furniture and missing, loose, damaged, or paint-spattered molding.

   
   

7. Respondent acknowledged that at any given inspection patient furniture can be scratched or chipped because, even if repainted two days before the inspection, many of the patients run into the furniture with their wheelchairs, which causes scratches on the furniture. Respondent has established a routine maintenance program to repaint rooms and furniture, replace missing or broken call cords, and to replace tile molding. The original molding is old, brittle, and paint can be scratched off with a fingernail.

   
   

8. At the time of the 25 March 1981 inspection the staff at Respondent had routinely stored their personal gear in the linen room. After this deficiency was noted on that inspection, efforts were expended by Respondent to change these habits, with some, if not total, success. Photographs of this linen locker were admitted as Exhibit 10.

   
   

9. When Respondent took over the Pasco Nursing and Rehabilitation Center, its president agreed to correct all deficiencies from last licensure and Medicaid survey (Exhibit 13). While this effort has not been totally successful, it is apparent that considerable progress has been made.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

11. Respondent admitted all of the alleged violations. This is equivalent to a plea of guilty in a criminal trial and, like a jury verdict, is conclusive. Tolar v. State, 196 So.2d 1 (Fla. 4th DCA 1967).

    
    

12. The only issue to be resolved is the amount of the penalty to be imposed for these violations. Section 400.102, Florida Statutes, provides, inter alia, that violation of provisions of this chapter or of minimum standards, rules or regulations promulgated pursuant thereto shall be grounds for action by DHRS against a facility. Section 400.121 provides DHRS may deny, revoke, or suspend a license or impose an administrative fine, not to exceed

    $500 per violation per day for a violation of Section 400.102, Florida Statutes. Section 400.121(2), Florida Statutes, provides in pertinent part:

    
    

    (2) The department, as a part of any final order issued by it under the provisions of this chapter, may impose such fine as it deems proper, except that such fine shall not exceed $500 for each violation.

13. The penalties sought by Petitioner in these proceedings are the maximum provided by Petitioner's rules for each violation. Of the $1,900 in penalties sought by Petitioner, $1,000 result from the failure of Respondent to obtain the required bond. For the reasons noted above, this maximum fine appears inappropriate. It is also noted that Respondent has made some progress in restoring the Pasco Nursing and Rehabilitation Center to an acceptable state of cleanliness and financial stability to continue as an ongoing provider of health care.

    
    

14. From the foregoing it is concluded that the Pasco Nursing and Rehabilitation Center violated the statutes and rules as alleged. However, in view of the mitigating circumstances of the bankruptcy proceedings and Respondent1s efforts to correct the deficiencies, it is

RECOMMENDED that Pasco Nursing and Rehabilitation' Center be assessed a penalty in the amount of $500.

ENTERED this 18th day of March, 1983, at Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 18th day of March, 1983.

COPIES FURNISHED:

Carol M. Wind, Esquire Department of Health and

Rehabilitative Services 2255 East Bay Drive Clearwater, Florida 33516

Gerald A. Struckhoff, Administrator Pasco Nursing and Rehabilitation

Center

Post Office Box 1197

Dade City, Florida 33525

David H. Pingree, Secretary Department of Health and

Rehabilitative Services 1321 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 82-002596

Orders for Case No: 82-002596