STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ORLANDO CARE CENTERS, INC., ) d/b/a ORLANDO CARE CENTER, )

)

Petitioner, )

)

vs. ) Case No. 85-2345

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

A final hearing was held in this case on January 10, 1986 in Orlando, Florida before Donald D. Conn, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented by:

Petitioner: Karen Goldsmith, Esquire

Jonathan S. Grout, Esquire Suite 500, Day Building 605 East Robinson Street Post Office Box 1980 Orlando, Florida 32802

Respondent: Douglas Whitney, Esquire

400 West Robinson Street Orlando, Florida 32801

The issue in this case is whether Orlando Care Centers, Inc., d/b/a Orlando Care Center, Petitioner, should be given a "superior" rating by the Department of Health and Rehabilitative Services, Respondent, for the period November 30, 1984 until February 28, 1986. At the hearing each party introduced five (5) exhibits, Petitioner called eight (8) witnesses and Respondent called six (6). A transcript of the hearing was filed on February 19, 1986.

The parties requested and were allowed additional time until March 20, 1986 to submit posthearing proposed findings of fact pursuant to Section 120.57(1)(b)4, Florida Statutes, and a ruling on Petitioner's proposed findings has been included in the

Appendix to this Recommended Order. Respondent did not timely file proposed findings of fact.

FINDINGS OF FACT

1. Petitioner is a nursing home facility located at 1900 Mercy Drive, Orlando, Florida. It is licensed by Respondent and certified to participate in the Medicaid Program.

   
   

2. Prior to the rating at issue in this case, Petitioner was rated a "superior" nursing home by Respondent. The "standard" rating at issue in this case was for the period November 30, 1984 to February 28, 1986. The most recent rating for Petitioner, for the period after February 28, 1986, is "superior."

   
   

3. Petitioner was deprived of increased Medicaid reimbursement due to its "standard" rating during the period in question. Additionally, Petitioner was deprived of the ability to hold itself out to the public as a "superior" nursing home for the period in question.

   
   

4. The parties stipulated that Petitioner was qualified for a "superior" rating for the period in question, except for the factors considered by Robert Maryanski, former Director of the Office of Licensure and Certification, when he made the decision to give Petitioner a "standard" rating, effective November 30, 1984 until February 28, 1986.

   
   

5. The factors considered by Maryanski which formed the basis of his decision were: a rating sheet and results of a survey conducted of Petitioner's facility on November 5 through 7, 1984, as well as follow-up visits on January 15 and February 1, 1985: a report of a complaint or surveillance visit conducted on February 1, 1985; a memo dated March 14, 1985 from Robert W. Smith, Area Supervisor of the Office of Licensure and Certification: concerns of the Long-Term Care Ombudsman Council as expressed by letter dated November 15, 1984 and concerns of Paul Snead, Jr., Respondent's District Administrator as expressed by memo dated November 26, 1984.

   
   

6. In conducting its annual survey of Petitioner's facility, Respondent's surveyors, George Farrar and June Monaghan, identified seven Class III deficiencies which were corrected by the time follow-up visits were conducted on January

   15 and February l, 1985. However, in conjunction with the February 1, 1985 follow-up visit, Respondent's surveyors also conducted an unannounced complaint or surveillance visit which identified eight additional deficiencies. No exit interview was conducted following this complaint or surveillance visit, and

   Petitioner was not informed of these additional deficiencies, or the fact they could affect their annual rating, until approximately a week later.

   
   

7. Neither Farrar nor Monaghan, the surveyors who conducted the February 1 complaint or surveillance visit and who are still employed by Respondent, testified at the hearing. The only witnesses testifying at the hearing who were present during all or a portion of the February 1 visit were Charlotte Uhrig, Administrator of Petitioner's facility, Kathleen Wingard, Director of Operations for Petitioner's management company, and Linda Anderson, a licensed practical nurse employed by Petitioner. Uhrig and Anderson offered credible testimony to explain the deficiencies found during the complaint or surveillance visit, and their unrebutted testimony precludes any finding that the deficiencies reported by Farrar and Monaghan actually existed. To the contrary, based on the evidence presented, it is specifically found that during this visit on February 1, 1985:

   
   

   1. Petitioner did not violate a patient's right to privacy in treatment since only the patient's heel and back of the leg were exposed at the request of the surveyor;

      
      

   2. Petitioner took prompt action in terminating a Director of Nursing who violated its policies by allowing aides to do and chart dressings and treatments;

      
      

   3. Anderson's actions in attempting to give a patient two pills were reasonable and in accordance with proper nursing practice. The fact that the patient did not swallow the pills and the surveyor found them in a glass of water does not indicate any failure on the part of Petitioner to adhere to required nursing home procedures;

      
      

   4. The lock on a treatment cart was only broken for a couple of hours and was repaired as soon as possible. During the time the lock was broken, the cart was in the nurse's station and observable by nurses on duty;

      
      

   5. Stains on the walls were fully explained as the result of roof leaks which had recently been repaired and Petitioner was simply waiting for a good rain to insure the leak was fixed before repainting;

   6. There was no dust or soap residue on chair lifts, but rather a small amount of powder used on patients was identified by the surveyors;

      
      

   7. In-service training was promptly given to all aides about washing their hands after treating each patient;

      
      

   8. An unidentified cart noticed in the new linen room was simply the cart used to carry new linen to the laundry for washing before use;

      
      

   9. An unidentified, undated bottle of liquid on the medication cart was apple juice given to patients to assist them in taking their medication;

      
      

   10. The door to the janitor's closet was not left open, but rather the door had been closed but the lock had not engaged;

       
       

   11. In service training was promptly given to aides concerning leaving unattended bottles of germicide and cups of liquid soap in patients' bathrooms.

       
       

8. In his memo dated March 14, 1985, Robert W. Smith recommended that Petitioner be given a "superior" rating for the time in question. Smith supervised nursing home surveyors including Farrar and Monaghan. Robert Maryanski was Smith's superior and had the final authority on rating decisions.

   
   

9. Yvonne Opfell, Vice Chairperson of the Long-Term Care Ombudsman Council, testified that one-fourth of all

   complaints in the Orlando area the Council received in 1984 involved Petitioner's facility. The Council investigates every complaint received and found most complaints against Petitioner to be "not substantiated." However, several were found to be "substantiated" including one which was substantiated by Adult Protective Services involving an incident in August, 1984 in which a patient was allegedly dropped and suffered a broken arm. Henry McLaulin investigated this incident for Adult Protective Services and testified that Petitioner was less than cooperative with him in this investigation. However, based on the evidence received, including the testimony of Uhrig and Karen Skadering, a physical therapist who worked with this patient in August, 1984, it has not been proven that aides dropped the patient causing a

   broken arm. The patient was very weak and dependent, with brittle bones, and according to David Parsons, M.D., a patient in this condition could break a bone simply by turning over in bed through no fault of Petitioner's staff.

   
   

10. As District Administrator of Respondent, Paul Snead, Jr. expressed his concerns about Petitioner's rating in a memo dated November 26, 1984. Snead testified at the hearing about these concerns and his feeling that Petitioner-should not be given a "superior" rating. He also admitted he has never visited Petitioner's facility. In addition to the incident in August, 1984 involving a patient's broken bone discussed above in Finding of Fact 9, Snead reported complaints about scabies at Petitioner's facility during 1984.

    
    

11. Based upon the testimony of Charlotte Uhrig, Petitioner's Administrator, Bob Duncan, a pharmacist, Ruth E. Laughlin, senior community health nurse, and David Parsons, M.D., it is found that scabies did exist on several occasions during 1984 at Petitioner's facility. However, scabies is frequently found in nursing homes, even those rated "superior". It is a highly communicable parasitic condition which can be introduced into a nursing home by patients, family and staff. When the condition was diagnosed, Petitioner took action to eradicate the problem, but due to the lengthy three to six week incubation period and highly contagious nature of this condition, it did take repeated efforts to remove it from the nursing home. Petitioner's efforts were successful, and there is no evidence that the condition continued to exist after November, 1984.

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the subject matter and parties in this case. Section 120.57(1), Florida Statutes.

    
    

13. Respondent is responsible for conducting annual surveys to evaluate all nursing homes and determine their degree of compliance with minimum standards set forth in Respondent's rules. After considering the annual survey report, and considering findings from other official reports, surveys, interviews, investigations and inspections, Respondent makes its evaluation of all nursing homes, and assigns a rating to each facility. Section 400.23(3), Florida Statutes: Rule 10D- 29.128(3)(a), Florida Administrative Code.

    
    

14. There are three categories of ratings for nursing homes: superior, standard and conditional. Rule 10D- 29.128(3)(b). In order to qualify for a "standard" rating a facility must simply meet the minimum standards prescribed in

    Rule 10D-29.128(2)(a). In order to qualify for a "superior" rating a facility must exceed minimum standards as specified in Rule 10D-29.128(3)(b)1. A "conditional" rating is given when deficiencies present an imminent danger to residents or when deficiencies otherwise exceed acceptable levels and thereby adversely affect the health, safety or security of residents as specified in Rule 10D-29.128(3)(b)2.

    
    

15. The evidence in this case does not support Respondent's position that Petitioner's facility simply met minimum standards

    6 and was therefore only entitled to a "standard" rating. By stipulation, the parties agreed that Petitioner would have been rated "superior" for the time in question, except for the factors considered by Robert Maryanski and set forth in Finding of Fact 5, above. Respondent has not offered competent substantial evidence to rebut the evidence presented by Petitioner which refutes these factors considered by Maryanski.

    
    

16. Specifically, the evidence does not establish that conditions at Petitioner's facility presented an imminent danger or adversely affected the health, safety or security of its residents to warrant a "conditional" rating, nor does it establish that conditions simply met minimum standards to warrant a "standard" rating. Rather the record establishes that Petitioner is entitled to a "superior" rating since it has refuted the basis upon which it was denied that rating.

    
    

17. Indeed, all deficiencies found in the annual survey visit were corrected at the time of the follow up visits on January 15 and February 1, 1985, and alleged deficiencies found in the complaint or surveillance visit on February 1, 1985 are not supported by the evidence. Similarly, most complaints investigated by the Long-Term Care Ombudsman Council concerning Petitioner were found to be unsubstantiated, and the evidence presented at the hearing was not sufficient to support those complaints which the Council found to be substantiated. Unsubstantiated complaints and unspecified concerns which are wholly unsupported by competent substantial evidence are not a proper basis for denying Petitioner a "superior rating."

RECOMMENDATION

Based upon the foregoing it is recommended that Respondent enter a Final Order granting Petitioner a "superior" rating for the period November 30, 1984 to February 28, 1986.

DONE and ENTERED this 14th day of April, 1986, at Tallahassee, Florida.

DONALD D. CONN, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 14th day of April, 1986.

COPIES FURNISHED:

Karen Goldsmith, Esquire Jonathan S. Grout, Esquire Suite 500, Day Building 605 East Robinson Street Orlando, Florida 32802

Douglas Whitney, Esquire

400 West Robinson Street Suite 912

Orlando, Florida 32801

William Page, Jr., Secretary Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32301

APPENDIX

Rulings on Petitioner's Proposed Findings of Fact:

1. Adopted in Finding of Fact 1.

2. Adopted in Finding of Fact 2.

3. Adopted in Finding of Fact 5.

4. Adopted in Finding of Fact 6.

5. Adopted in Finding of Fact 6.

6. Adopted in part in Findings of Fact 4, 5.

7. Adopted in part in Findings of Fact 5, 7.

8. Rejected as irrelevant and unnecessary.

9. Adopted in Findings of Fact 5, 9, 10, 11.

10. Adopted in part in Findings of Fact 5, 9, but otherwise rejected as irrelevant and unnecessary.

11. Rejected as cumulative and also as a conclusion of law rather than a finding of fact.

12. Adopted in Finding of Fact 8.

13. Rejected as a conclusion of law rather than a finding of fact.

Docket for Case No: 85-002345

Orders for Case No: 85-002345