STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 82-2828

) UNICARE-AMELIA ISLAND, INC., ) d/b/a REGENCY OAKS, )

)

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 24 February 1983 at Gainesville, Florida.

APPEARANCES

For Petitioner: James A. Sawyer, Jr., Esquire

Department of Health and Rehabilitative Services

2002 Northwest 13th Street Gainesville, Florida 32601

For Respondent: Roch Carter, Esquire

105 West Michigan Street Milwaukee, Wisconsin 53203

By Administrative Complaint filed 31 August 1982, the Department of Health and Rehabilitative Services (DHRS) Petitioner, seeks to impose an administrative fine in the amount of $1,050 against Unicare-Amelia Island, Inc., d/b/a Regency Oaks, Respondent. As grounds therefor it is alleged that during an appraisal visit and complaint investigation Respondent was found to be short one registered nurse on the day shift on June 5 and short one licensed practical nurse on June 6, June 12, and June 19, 1982.

At the hearing Petitioner called one witness, Respondent called one witness, and four exhibits were admitted into evidence. 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

1. On 22 June 1982 DHRS, Office of Licensure and Certification, conducted an inspection of Respondent's facility known as Regency Oaks at Gainesville, Florida. During this inspection the nurses' schedule was not produced and the inspector, with the assistance of Respondent's staff, attempted to reconstruct the nurses' schedule for the month of June, 1982, up to the date of the

   inspection. From the data received it was determined that on the 7:00 a.m. to 3:00 p.m. shift on June 5, 1982, Respondent was staffed with one registered nurse (RN) and three licensed practical nurses (LPN) on June 6 there were two RN's and two LPNs; on June 12 there were three RNs and one LPN; and on June 19 there were three RNs and one LPN.

   
   

2. Staffing requirements for nursing homes are determined by the shift and census of the nursing home. All of the shortages here involved the day shift. On each of the days of 5, 6, 12, and 19 June the regulations required two RNs and three LPNs on the day shift. The regulations also permit the substitution of an RN for an LPN. Accordingly, from the evidence gathered bv Petitioner's evaluation at the June 22 inspection, Respondent was short one RN on June 5 and one LPN on June 6, 12, and 19.

   
   

3. Respondent presented time cards for the periods here involved. These time cards, which were accepted in evidence as business records of Respondent, show that on June 12 Respondent had two RNs and three LPNs on duty on the day shift. Respondent's one witness admitted the nursing home was understaffed one RN on June 5 and one LPN on June 6 and 19.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

5. Petitioner's witness was unsure of the data she was provided by the nursing home from which she determined the staffing shortage alleged. On the other hand the time cards presented as Exhibit 4 are accepted as business records of the Respondent and, as such, have a high degree of credibility. These time cards confirm the alleged shortage on June 5, 6, and 19.

   
   

6. Petitioner has the burden of showing, by its preponderance of the evidence, that the alleged shortages in staffing in fact existed. With respect to June 12, 1982, Petitioner has failed to sustain that burden.

   
   

7. From the foregoing it is concluded that on June 5, 1982, Respondent was short one registered nurse on the day shift, and that on June 6 and June 19, 1982, Respondent was short one licensed practical nurse on the day shift. On June 12 Respondent was properly staffed. It is therefore

RECOMMENDED that the Secretary, Department of Health and Rehabilitative Services, enter a Final Order accepting the above findings and imposing on Unicare-Amelia Island, Inc., d/b/a Regency Oaks an administrative fine of three hundred dollars ($300) for the shortage of one registered nurse on June 5, 1982, and administrative fines of two hundred fifty dollars ($250) each for the shortages of one licensed practical nurse on June 6, 1982, and on June 19, 1982, for a total administrative fine of eight hundred dollars ($800).

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 28th day of March, 1983.

COPIES FURNISHED:

James A. Sawyer, Jr., Esquire Department of Health and

Rehabilitative Services 2002 Northwest 13th Street Gainesville, Florida 32601

Roch Carter, Esquire

105 West Michigan Street Milwaukee, Wisconsin 53203

David H. Pingree, Secretary Department of Health and

Rehabilitative Services 1321 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 82-002828

Orders for Case No: 82-002828