STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF NURSING ) HOME ADMINISTRATION, )
)
Petitioner, )
)
vs. ) Case No. 85-2478
)
MARGARET A. MARTIN )
)
Respondent. )
)
RECOMMENDED ORDER
Upon due notice, this cause came on for final formal hearing before the Division of Administrative Hearings by its duly assigned Hearing Officer, Ella Jane P. Davis on January 28, 1986 in Naples, Florida.
APPEARANCES
For Petitioner: Cecilia Bradley, Esquire
130 North Monroe Street Tallahassee, Florida 32301
For Respondent: John P. Cardillo, Esquire
3550 South Tamiami Trail Naples, Florida 33962-4999
ISSUE
Whether or not Respondent's nursing home administrator's license may be disciplined by reprimand, fine, restriction, suspension; or revocation for acts alleged in the administrative: complaint, specifically the alleged violations of Sections 400.022(1)(d), 400.162(1)and (2), 468.1755(1)(e), 468.1755(1)(g),
468.1755(I)(k), and 468.1755(1)(m) Florida Statutes (1983), and Rules 10D-29.104 and 10D-29.118(1) Florida Administrative Code.
INTRODUCTION
Petitioner presented the testimony of John Patrick, Jr., Ann Heusser, Susan Gentry, and Respondent. Petitioner also proffered the testimony of Eleanor Methot, a witness whose testimony was
excluded because she was not named and designated as a potential expert on the Pre-Hearing Stipulation (sic) timely filed by Petitioner. Petitioner subsequently filed an Amended Pre-Hearing Stipulation (which more accurately should have been captioned "Amended Unilateral Statement") with the Division of Administrative Hearings in Tallahassee, Florida after the hearing in Naples was already well under way. A copy of this pleading was admitted as part of Petitioner's proffer of Mrs. Methot's testimony and labelled H. O. Exhibit 1.(TR-126,132).Petitioner offered and had admitted in evidence Exhibits P-1, P-2, and P-1A. Pages one and three of Exhibit P-1 are separately numbered and are referred-to by those designations.
Respondent also testified on her own behalf and further presented the testimony of Ray Smith. Respondent offered four exhibits: all were admitted in evidence. At the conclusion of Petitioner's case in chief, Respondent moved ore tenus to dismiss the charges as unproved. A ruling was reserved on this motion pursuant to Rule 221-6.16(3) Florida Administrative Code.
The transcript was filed by Petitioner on February 11, 1986.
Respondent's February 19, 1986 Motion to Strike Pleadings or to Compel Disclosure of Evidence and Extend Time and Petitioner's response thereto were ruled on by order of March 11, 1986 and the proposed findings of fact and conclusions of law of each party have been considered. A ruling on each proposed finding of fact has been made in the appendix to this recommended order.
FINDINGS OF FACT
At all times relevant, Respondent held Florida nursing home administrator's license number 0001557. She is also a registered nurse. She has worked in a variety of positions at various institutions in Florida, Pennsylvania, and New Jersey since 1963, including head nurse, assistant director of nurses, director of nurses, research nurse supervisor, assistant supervisor medical review team, assistant administrator of a nursing home, and administrator of a nursing home. The date she acquired Florida licensure as a nursing home administrator was not established, but it is clear her license has never before been the subject of disciplinary action. Her reputation as a nursing home administrator is outstanding, and in this capacity, she had been the recipient of numerous awards and commendations both prior to and since the incidents giving rise to the administrative complaint herein. Petitioner's argument that the documents in support of Respondent's character and ability which were written in late 1984 and in 1985 are not credible because the writers did not know of the incidents giving rise to the administrative complaint is not persuasive, as it is apparent from the evidence as a whole that the events giving rise to the
administrative complaint were a topic of conversation in the community at least by October, 1984.
From January 1979 until October 1984, Respondent, who is 46, held the position of nursing home administrator at Heritage Health Care Center, Inc. (HHCC) in Naples, Florida. HHCC is a skilled nursing facility providing services to medicare, medicaid, and private pay patients.
Clarence Berylyoung was a 78 year old private pay patient admitted to HHCC on July 21, 1983. His medical records reveal he was hospitalized briefly in October 1983 with a diagnosis of a stroke of unknown severity and organic brain syndrome. Respondent helped transport him to the hospital and back to the nursing home. It is not clear whether Respondent's accompaniment of Berylyoung at that time was part of Respondent's duties as HHCC nursing home administrator or as a result of a close personal relationship which had grown up between Respondent and Berylyoung. According to Ann Heusser, HHCC's current Director of Nursing Services and formerly its Day Supervisor, Berylyoung became more forgetful and harder to deal with after his hospitalization than he had been before and was confused and forgetful immediately afterwards. However, the medical records indicate Berylyoung was alert and had a stronger gait at the time of discharge on January 23, 1984.
During his stay at HHCC, Berylyoung and Respondent did develop a close personal relationship; her part in which she described as "that of a good neighbor" or as providing companionship. She checked on his clothes daily. She talked to him when she saw him. At his request, she purchased beer and other items for him outside the facility. Because he had no family close by, she took him outside the facility occasionally at mealtimes and otherwise provided transportation for him to places he might wish to go.
It is not clear at what precise dates but apparently while Berylyoung was still a patient at HHCC, and therefore prior to January 23, 1984; Respondent transported Berylyoung to a local attorney's office. While there, but without Respondent's prior knowledge, Berylyoung named Respondent as a beneficiary in his will. At this visit, or perhaps earlier, Berylyoung signed a "power of attorney" permitting Respondent to handle his affairs. Neither the will nor the power of attorney was offered in evidence and no timeframe was established by which the execution of these documents can be related to Berylyoung's October 1983 stroke or his subsequent discharge. Further, there is no evidence whatsoever that Respondent entered the attorney's office, let alone that she influenced Berylyoung then or at any time to make these decisions.
While Berylyoung was still a resident of the nursing home; Respondent used this power of attorney to transfer, at Berylyoung's request, approximately $25,000 to $30,000 of his funds from an Ohio bank to a Naples, Florida bank. She also used it to help him sell a trailer and a motor vehicle. There is no evidence that Respondent misused or mismanaged the funds or the sale or performed any act Berylyoung had not instructed her to do. No evidence established any timeframe by which these transactions can be accurately related to Berylyoung's stroke.
As a private pay patient at HHCC, Berylyoung received no state or federal funds toward his care. His bill was approximately $1800 to $2,000 per month during his stay. He became dissatisfied with HHCC and wished to move out. After several months, he persuaded Respondent that without her help he would have no chance of ever leaving HHCC. She agreed that he could temporarily move into her home with herself, her husband, her two children, and her mother-in-law.
Berylyoung was discharged on January 23, 1984. There is no evidence that the move was other than at Berylyoung's request or that Respondent persuaded, encouraged, or coerced Berylyoung to move from HHCC.
Berylyoung stayed at Respondent's home until approximately February 24 or 25, 1984; when she placed him temporarily in a motel. He stayed at the motel for approximately five days, where Respondent checked on him 3-4 times a day and others did likewise. Respondent then helped him find an apartment and get settled and thereafter did occasional grocery shopping and housekeeping for him and generally maintained the friendly relationship they had established until August 26, 1985. Despite speculation by HHCC's Director of Dietary Services, Susan Gentry, as to why the move to the motel may have been desired by Respondent, there is no direct credible evidence that Berylyoung's move to his own apartment was other than at Berylyoung's own request or by mutual agreement.
Respondent signed Berylyoung's name to a form indicating receipt of his medications (P-1A). This was done at the time of Berylyoung's discharge on January 23, 1984, at his request, and while Respondent still possessed the power of attorney to act for him. At the time it was signed, Berylyoung, with his medications, was moving into Respondent's home on a temporary basis. This falls short of establishing that Respondent had Berylyoung released into her custody.
HHCC also uses a document titled "Standard Admission Record and Agreement" (P-1, page 1). It is divided into two
parts. The top portion of a single page is filled out when a patient is admitted to HHCC. At the bottom of the page is a portion designed to elicit discharge information. In this bottom portion, under the date of discharge of 1-23-84, Respondent wrote, "Living by himself--no address." However, Respondent testified that she made this entry not on the date of discharge when she knew Berylyoung would be living with her for awhile but later in 1984 while Berylyoung was temporarily living in a motel with no permanent address, that her purpose in filling in this information at that time was to update the records; and that the statement was true when she wrote it. Neither Mrs. Heusser nor any other witness could state that this information was false when written by the Respondent or even when it was written by the Respondent.
Respondent also admits filling in the "agency referral" line at the bottom of a document titled, "Discharge Summary" and dated "1-23-84" at its top. (P-1; page 3). Respondent admits that on the agency referral line she wrote in, "Living by himself at his request. Will follow up as needed. Ann Martin." Respondent claims that despite the 1-23-84 date at the top of the page, this line was added by her as a follow-up after Mr. Berylyoung left her home. Respondent asserts, and Mrs. Heusser confirms, that standard operating procedure at HHCC is that these discharge summaries usually are signed after a patient has been discharged and after a patient has actually left the facility. Mrs. Heusser specifically did not know whether this information added by Respondent was accurate when Respondent wrote it but she did not find it odd or unusual that Respondent would add more to this page as much as 2 to 3 weeks after actual discharge of any patient.
Based on the testimony and evidence as a whole, Respondent's explanation that her notations on both the "Standard Admission Record and Agreement" and the "Discharge Summary" would normally be made, and in fact were actually made, by her after the patient's discharge and not on the date of discharge is entirely credible. Moreover, her adding her signature to the agency referral line of the Discharge Summary does not, under these circumstances, indicate an attempt to mislead; falsify, or defraud, so much as it suggests an attempt to indicate who had made this note and that she, Respondent, and not Berylyoung, had filled in this portion of the "Discharge Summary."
On May 7, 1984, Berylyoung's outstanding bill of
$1,386.90 was written off by HHCC. Attached to the write-off slip was a form collection letter dated February 29, 1984, (5 days after he had left Respondent's home), signed by Respondent on behalf of HHCC, and addressed to Berylyoung at Respondent's home address, 3101 Buena Vista Lane, Naples, Florida 33942. This
form collection letter was attached as support for the write-off. (Composite P-2). Typed on the write-off slip itself was the notation, "Funds depleted. Does not qualify for state aid due mobile trailer. Present address unknown. (Discharged due to lack of funds.)" The slip was prepared by someone other than Respondent and how the information concerning lack of funds appeared is not explained. However; it may be reasonably concluded that the notation concerning Berylyoung's unknown address resulted indirectly from the previous notations made by Respondent on the "Standard Admission Record and Agreement"; on the "Discharge Summary," and on her signature on the February 29 letter. Unlike the admission and discharge documents which either require a physician's signature or are otherwise part of a patient's medical chart and so may be classified as "medical records," the debt write-off slip is not a part of a patient's medical records as that term is normally understood. The write off slip is merely a financial or business record of HHCC. This finding is consistent with Rules lOD-29.104 and lOD-29.118(1) Florida Administrative Code.
Respondent signed and approved the write-off slip in her capacity as HHCC's nursing home administrator; and Respondent in fact knew where Berylyoung was living (in his own apartment) at the time she signed his financial write-off slip. Approval of these write-off slips is a routine duty and the Berylyoung slip was one of 18-20 such slips Respondent signed on the same day.
Upon the foregoing scenario and Respondent's acknowledgement that she is responsible for financial documents she signs in her professional capacity, it is found that Respondent knew the address of Berylyoung when she signed the financial write-off slip but still approved the write-off of his account at least partially on the ground that his present address was unknown.
While this falls short of fraud or falsification, it does constitute negligence and incompetence.
Respondent did not know until approximately May; 1984 that the Department of Professional Regulation viewed the holding of a power of attorney by an employee of a nursing home to be the type of conduct subject to license discipline. By that time, she had already turned over all of Berylyoung's money to him and torn up the power of attorney.
There was no evidence adduced at formal hearing that Respondent's actions resulted in HHCC being charged by the Department of Health and Rehabilitative Services with violations of Sections 400.022(1)(d) and 400.162(1) and (2) Florida Statutes and Rules lOD-29.104 and lOD-29.118(1) Florida Administrative Code as alleged in paragraph 6 of the administrative complaint. Without such proof, these allegations remain unproven and no harm to HHCC has been established except that it may be "out"
$1,386.90. Even that loss, if it occurred, was not established by clear and convincing evidence because it was never clearly established that Berylyoung, if located prior to May 7, 1984, could have paid the $1,386.90. His $25;000-30 000 in the bank plus the proceeds of the sale of his car and trailer, would seem to suggest that at some earlier point in time Berylyoung's finances would have permitted payment to HHCC but no accurate timeframe for these events was established at formal hearing.
There is no evidence of record that Berylyoung's health or safety were threatened or impaired by Respondent's influence or actions. Neither Mrs. Heusser, a nurse, nor Miss Gentry, a dietician, who were in the best position to have personally observed Berylyoung's condition, described a patient in danger. Ann Heusser described an elderly man who was alert most of the time, sometimes forgetful as to when he had had his last beer, sometimes belligerent, and who frequently threatened to leave HHCC because he was dissatisfied. All the nursing services did with respect to him is pass out his medication and keep a tight rein on his liquor. They reminded him to wear clean clothes and to feed himself but he could feed himself. He was on a regular diet according to Miss Gentry. His records indicate an intermediate level of care with the need to sometimes clean up loose stools. While he was in her home, Respondent prepared his meals and bathed the man, as did her mother-in-law and friend when Respondent was not there. Her activities with regard to Berylyoung's care at the motel and in his apartment are related supra. Respondent's testimony that Berylyoung was never harmed physically by his discharge is the only factual evidence of his condition after discharge. No other witness observed him after discharge.
Mr. John Patrick; Jr.; the current nursing home administrator of HHCC was qualified as an expert witness in nursing home administration and stated that for a nursing home administrator to deliberately falsify medical records of a patient is considered misconduct in the practice of nursing home administration: that falsification of a patient's billing information by the nursing home administrator is considered misconduct in the practice of nursing home administration; and that it is, in Mr. Patrick's personal opinion, misconduct in the practice of nursing home administration for the administrator to falsify information on a patient's write-off slip. He also testified that he knew of no negligence or incompetence of Respondent. This type of "expert" opinion testimony is of negligible value because it invades the province of the trier of fact, because it requires conclusions of law; and because it assumes that "falsification" has been established; which it has not. The undersigned specifically finds no falsification has been established by the evidence adduced at formal hearing. (See
findings of fact paragraphs 10-14 and legal determinations in the following conclusions of law concerning falsification versus negligence.) Moreover, with regard to Mr. Patrick's testimony as a whole, his misunderstanding of certain key elements of the allegations against Respondent and of much of the evidence adduced at formal hearing, his unfamiliarity with the statutes, rules, and standards of nursing home administration and what constitutes a medical record, his reluctance to specify "misconduct", his effort to substitute the word "inappropriate" for "misconduct", his desire to distinguish between his personal and professional opinions until after the Methot proffer, and his present close ties with HHCC greatly diminish the weight, credibility, and probative value of his testimony for establishing either existing standards of the profession of nursing home administration or any deviation by Respondent from such standards.
Respondent is presently the director of nursing at Bentley Retirement Village, Inc. It is apparent from the testimony of Ray Smith, Executive Director and Vice-President of Bentley Village and one who works with Respondent on a daily basis; that despite any cloud which may have attached to Respondent as a result of the events giving rise to the instant proceedings, Respondent's reputation in the community for being an efficient and responsible nursing home administrator and for personal veracity has not been impaired. Mr. Smith is not qualified as an expert in the standards of nursing home administration since he has no education, training, experience, or license in that profession. Indeed, he was not tendered as an expert on such standards, however, the undersigned has carefully observed the candor and demeanor of all witnesses in this cause and finds Mr. Smith's testimony as to reputation and character to be entirely credible. His admitted desire to appoint Respondent, due to her qualifications and abilities, to the post of nursing home administrator for Bentley's newly authorized addition does not diminish the value of his testimony for reputation, character, and mitigation purposes since he is fully aware of all the charges and their basis. Professional reputation and character testimony is admissible in mitigation. Indeed, as to reputation; Mr. Smith's opinion is entirely corroborated by Petitioner's expert witness, John Patrick, who recommended Respondent for a job as a new nursing home administrator in Cape Coral during the course of the events which led up to these proceedings and by letters of commendation received by Respondent after these events.
Respondent has never-acted as a trustee, conservator; or guardian for Clarence Berylyoung.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Section 120.57(1) Florida Statutes.
Respondent is charged with the following license violations of Section 468.1755 Florida Statutes:
(l) The following acts shall constitute grounds for which the disciplinary actions in subsection (2) may be taken:
* * *
(e) Making or filing a report or record which the licensee knows to be false, intentionally failing to file a report or record required by state or federal law, willfully impeding or obstructing such filing, or inducing another person to impede or obstruct such filing. Such reports or records shall include only those which are signed in the capacity of a licensed nursing home administrator
* * *
(g) Fraud or deceit, negligence, incompetence; or misconduct in the practice of nursing home administration.
(k) Repeatedly acting in a manner inconsistent with the health and safety of the patients of the facility in which he is the administrator.
* * *
(m) Has willfuly or repeatedly violated any of the provisions of the law, code or rules of the licensing or supervising authority or agency of the state or political subdivision thereof having jurisdiction of the operation and licensing of nursing homes.
* * *
The Florida Statutes define practice as a nursing home administrator. Section 468.1655(4) provides in pertinent part:
"Practice of nursing home administration" means any service requiring nursing home administration education, training, or experience and the application of such
to the planning, organizing, staffing, directing, and controlling of the total management of a nursing home. . . .
Section 468.1655(3) defines "nursing home administrator" as,
"a person who is licensed to engage in the practice of nursing home administration in this state under authority of this part."
These definitions are applicable to nursing home administrators, the category in which Respondent falls. Therefore, two questions which must be answered are whether Respondent was acting as a nursing home administrator when she performed the acts of which she stands accused and whether Berylyoung was a patient at that time.
Petitioner asserts that Section 400.022(1)(d) and Sections 400.162(1) and (2) Florida Statutes and Rules lOD-29.104 and lOD-29.118(1) Florida Administrative Code establish the standards of care in the practice of nursing home administration and, specifically; that by managing and disposing of Berylyoung's property in violation of Section 400.162 Florida Statutes, Respondent has thereby violated Section 468.1755(1)(m). These "standards" provide as follows:
400.022 Residents' rights.
(1) All licensees of nursing home facilities shall adopt and make public a statement of the rights and responsibilities of the residents of such facilities and shall treat such residents in accordance with the provisions of that statement. The statement shall assure each resident the following:
* * *
(d) The right to manage his own financial affairs or to delegate such responsibility to the licensee, but only to the extent of the funds held in trust by the licensee for the resident. A quarterly accounting of any transactions made on behalf of the resident shall be furnished to the resident or the
person responsible for the resident. (Emphasis supplied)
and,
400.162 Property and personal affairs of residents.
The admission of a resident to a facility and presence therein shall not confer on the facility or owner, administrator, manager, supervisor, employees, or representatives any authority to manage, use, or dispose of any property of the resident; nor shall such admission or presence confer on any of the aforementioned persons any authority or responsibility for the personal affairs of the resident, except that which may be necessary for the safety and orderly management of the facility.
No licensee, owner, administrator, manager, supervisor, employee, or representative thereof shall
act as guardian, trustee, or conservator for any resident of the facility or any of such resident's property. (Emphasis supplied)
It is therefore necessary to answer third and fourth questions of whether or not Berylyoung qualified as a "resident" when Respondent performed any of the acts of which she stands accused and whether Respondent is covered in any way by the provisions of Chapter 400 Florida Statutes. Interestingly enough, neither Chapter 400 nor Chapter 468, Florida Statutes defines "resident" or "patient" of a nursing home. Neither does either chapter define "licensee," but Chapter 400.021(1) has its
own definition for "administrator," as follows:
"Administrator" means the licensed individual who has the general administrative charge of a facility.
This Chapter 400 definition of "administrator" comports sufficiently closely with the Chapter 468 definition, supra, so that one may conclude it applies to Respondent. However, since Chapter 400 consistently lists "licensees" and "administrators" separately one must also conclude they are not one in the same entity.
Rule lOD-29.104 F.A.C. is an especially lengthy rule, the portion of which setting forth the responsibilities of the facility administrator (as contemplated by Chapter 400 F.S.) is contained in lOD-29.104(5)(d). Of that also lengthy subsection, only the following paragraphs have any direct bearing on the instant case:
Responsibilities of the facility administrator shall include, but are not limited to, the following:
Maintaining or causing to be maintained the following written records and any
other records required by Chapter 400, Part I, F.S., and these rules. The records shall Be kept in a place, form, and system ordinarily employed in acceptable medical and business practices and available in the facility for inspection by the Department.
An admission and discharge register which shall list all patients admitted by date and name, identifying information about each, the place from which the patient was admitted, the name of the attending physician, and the date of discharge and the place to which the patient was released or transferred. The admission and discharge register shall be retained permanently in the facility
A census record which shall indicate the number of all patients currently residing in the facility and their level of care classification, and the number of ail admissions and discharges which occurred each day;
A composite record for each patient which shall include all details of referrals, non- medical correspondence and papers concerning the patient, copies of agreements, contracts, account records, a current inventory of personal property held in safekeeping, and specific records of admission not included in the medical record
* * *
h. Fiscal records in accordance with subsection (6):
Because of the reference to sub-section (6) within subsection (5), the relevant portions of (6) are here set out.
(6) Fiscal standards.
Each nursing home facility shall maintain fiscal records in accordance with the requirements of Chapter 400, Part I, F.S., and these rules.
An accrual or cash system of accounting shall be used to reflect transactions of the business. Records and accounts transactions, i.e., general ledgers, disbursement journals, etc., shall be posted no less often than quarterly and shall be available for review in accordance with paragraph (5)(d).
Rule lOD-29.118(1) deals with responsibility for medical records maintenance. It provides:
Each nursing home facility shall maintain medical records on all patients in accordance with accepted professional standards and practices.
Supervision of medical record services.
The administrator of each nursing home facility shall designate one (1) full-time employee as being responsible and accountable for the facility's medical record service.
Facilities designating a person who is not a qualified medical record practitioner as defined in section lOD-29.10(26), shall have the services of a qualified medical record practitioner on a consultant basis who shall provide consultation on a regularly scheduled basis and at appropriate times to meet the needs of the medical record service.
The medical record service shall have sufficient staff, facilities, and equipment to maintain medical records that are completely and accurately documented, readily accessible, protected against loss, destruction, or unauthorized uses, and systematically organized to facilitate retrieving and compiling information.
Medical record content.
Each medical record shall contain sufficient information to clearly identify
the patient, to justify the diagnosis and treatment, and to document the results accordingly.
The content of each medical record shall include, at a minimum, the following data:
Admission record (i.e., face sheet) which shall include, at a minimum, the following date:
a Patient's full name, usual address, sex, race, date of birth, marital status, and religion
The name, address, and telephone number of the patient's attending physician
and dentist
The name, address, and telephone number of the patient's nearest kin or responsible party:
Date and time admitted and place from where admitted
Admission diagnosis:
Demographic information, or a notation that such information is not available,
for the Florida Certificate of Death, which shall include, at a minimum:
Street address, city, county, and state of permanent residence
Usual occupation and kind of business or industry
Birthplace
Country of citizenship
Social Security Number and
Father's name and mother's maiden name
Name of the facility employee who completed the admission record information.
Documented evidence of assessment(s) of the needs of the patient, of establishment of an appropriate plan(s) of care and treatment, and of the care and services provided.
Authentication of hospital diagnosis (discharge summary, report from attending physician, or transfer form).
Medical and nursing history, report(s) of physical examination(s, diagnostic and therapeutic orders, observations and progress notes, and reports of treatments and clinical findings.
Medication records, unless included in the nursing notes.
Consent forms.
Discharge summary, including final diagnosis and prognosis.
Medical record data for which the physician is responsible shall include, at a minimum, the following:
Diagnoses
Medical history and report(s) of physical examination(s):
Orders for medications, treatments, and diets
Rehabilitation potential
Progress notes
Related reports including significant clinical information relative to accidents or unusual incidents involving the patient and
Discharge summary.
Medical record data for which nursing services personnel are responsible
shall include, at a minimum, the following
Documentation of patient assessment(s)
Documentation of all medications, treatments, and services rendered
Description(s) regarding the patient's condition prior to "p.r.n. medication" and the patient's response to the medication:
Nursing evaluation(s) of the patient's condition
Pertinent clinical information following an accident or unusual incident involving the patient and
Nursing transfer or discharge summary.
A signed and dated original, or a signed and dated legible copy shall be required for each report, and all reports shall be filed in the medical record. Current medical records and those of discharged patients shall be completed as soon as possible consistent with good medical practice.
Medical records shall be retained for
a minimum of five (5) years from the date of discharge, or three(3) years after a minor patient becomes of age under State law.
Patient Index Cards shall be retained permanently.
Indexes.
Patient Index Cards shall be maintained, separated into active and inactive files, to facilitate acquisition of statistical medical
information and retrieval of medical records.
Patient Index Cards shall contain, at a minimum, the following information:
Patient's full name;
Home Address;
Date of birth;
Medical record number;
Diagnoses;
Admission date(s);
Discharge date(s), place(s) to where discharged, and the reason(s) for discharge.
Medical records shall be indexed according to name of patient and final diagnoses.
As the foregoing rules indicate, only the release of medications form, the Standard Admission Record and Agreement, and the Discharge Summary may be considered "medical records" in this case. The account write-off is not such a "medical record." At most, it is a financial record and the evidence presented is less than desireable for indicating whether it is a financial record required by the state or merely required by HHCC.
The medications release form was signed by Respondent, not as a nursing home administrator for HHCC, but at Berylyoung's request and on his behalf while she had his power of attorney to do so. There is, therefore, no falsification, fraud, deceit, negligence, or misconduct directed at either HHCC or Berylyoung in connection with her signing Berylyoung's name on the medications release form. She did not assume custody of Berylyoung as alleged in the administrative complaint. He was a temporary guest in her home.
Nor is there any falsification, fraud or deceit involved in the notations made by Respondent on the admission and discharge records in late February, 1984. These notations were made by her in her capacity as nursing home administrator with the apparent intent to effect substantial compliance with the applicable rules and statutes at a time when Berylyoung was living in the motel and had no permanent address. If anything, they exhibit an attempt to comply with the detailed rule and statute requirements and to indicate to what location or upon what status Berylyoung was discharged. Due to the internal procedure of HHCC, these notations were made sometime after the discharge date when they probably should technically have been made on the date of discharge, but Respondent's not indicating her home as Berylyoung's address in late February 1984 when she had not assumed custody or responsibility for him and when he in fact had moved out of her home to stay temporarily in a motel
does not bespeak a questionable or sinister motive. Her choice of language, "living by himself-no address" and "living by himself at his request" instead of "address unknown " and her signing her name to one form further suggest that there was no subterfuge involved. It should also be noted that Respondent's writing on at least these last two documents may have occurred while Respondent was administrator but occurred after Berylyoung ceased to be either a "patient" or a "resident" of HHCC.
Although the allegations of the administrative complaint do not specifically plead the notations on these three medical records, it is still not superfluous to analyze them here since Petitioner urges these are "falsifications" as a basis for its expert witness testimony and proffer on misconduct. Petitioner also presented them as means by which to infer that Respondent had Berylyoung released to her custody, upon which allegation the charge of "repeatedly acting in a manner inconsistent with the health and safety of patients of the facility in which [s] he is the administrator," is grounded. Petitioner further urges these same interpretations as grounds for aggravation of the proposed penalty of a six months' suspension, two years' probation, and $1,000 fine. Upon the foregoing findings of fact and legal conclusions, Respondent's acts do not amount to falsifying any medical record or to gaining release of Berylyoung into Respondent's custody. Consequently, they do not constitute falsifications, fraud, deceit, negligence, incompetence, or misconduct in the practice of nursing home administration. The record is in no way clear and convincing that Respondent endangered Berylyoung's health and safety, either.
The charge of signing an account write-off on May 7, 1984 stating Berylyoung's address was unknown when, in fact, Respondent had kept in contact with Berylyoung and knew his apartment address, presents a different situation. Under the facts as presented at hearing, the undersigned cannot conclude this write-off as one of 18-20 such routine write-offs prepared by someone else on a single day was either deliberate falsification under Section 468.1755(1)(e) or fraud, deceit, or misconduct under Section 468.1755(1)(g), each of which definitions requires a devious-and malicious intent. Such intent has never been established. Although Petitioner asserts the inference that Respondent benefited monetarily from her association with Berylyoung, that has never been proven. In fact, despite Respondent's admission that she was made a beneficiary of Berylyoung's will, it has not even been established that she inherited anything in that status.
Respondent's argument that the write-off was mere inadvertence is also rejected. Respondent's signing of the
write-off slip does constitute simple negligence and incompetence under Section 468.1755(1)(g). She performed this act in her capacity as a licensed nursing home administrator and Berylyoung's non-resident or non-patient status in the HHCC facility at the time of signing the write-off is immaterial to ameliorate or alter her responsibility to her employer with regard to the write-off slip. However, her acts with regard to the financial write-off slip do not establish any of the charges set out in Section 468.1755(1)(e),(k), or (m). Specifically, the entire scenario does not establish fraud, etc., willful and/or repeated violations, or endangering of Berylyoung's health or safety.
Petitioner contends that in using Berylyoung's power of attorney to manage his financial affairs, including transferring monies between banks and selling Berylyoung's vehicle and trailer, Respondent managed and disposed of Berylyoung's property in violation of Sections 400.022(1)(d) and 400.162, thereby violating Section 468.1755(1)(m) Florida Statutes.
The power of attorney was granted to Respondent by Berylyoung both while he was a resident and patient at HHCC and while she was its nursing home administrator and she performed the transfer of funds and the vehicle and trailer sale while both of them maintained these statuses. Section 400.162(1) is intended to preclude nursing home owners, administrators, managers, supervisors or representatives from controlling the property of a resident in their care simply by virtue of that representative's position within the nursing home; without some additional authority or against a resident's will. Here, Respondent was given some additional authority by Berylyoung. Apparently upon independent advice of his attorney, Berylyoung gave Respondent, without her ever seeking it, a power of attorney as an individual to manage Berylyoung's affairs.
Section 400.162(2) provides:
"No licensee; owner, administrator, manager, supervisor, employee, or representative thereof shall act as guardian, trustee, or conservator for any resident of the facility or any such resident's property.
"(Emphasis supplied.)
The terms, "guardian," "trustee", and "conservator" are legal terms of art. In selecting specific legal terms of art, it must be presumed that the legislative drafters knew what they meant to say and meant to include only these terms while excluding all others. It is a general principle of statutory construction that the mention of one thing implies the exclusion of another.
Hence, expressio unius est exclusio alterius. See 49 Fla. Jur 2d Section 126 and cases cited therein.
Here, we may presume that the drafters did not intend to specifically preclude an administrator's holding a power of attorney because if they had intended to do so they would have specifically enumerated this type of legal vehicle also. This interpretation is buttressed by the fact that elsewhere in Chapter 400, particularly Part II Section 400.427, pertaining to the property and personal affairs of residents of Adult Congregate Living Facilities, the drafters set out specific standards for administrators who have been granted powers of attorney by ACLF residents. Further, a power of attorney is a very different legal vehicle than those specifically precluded by Section 400.162(2) in that it may usually be revoked at will by the one granting it and thereby any abuses by undue influence are minimized.
Section 400.022 comprises a bill of rights for residents of nursing homes; which facilities are governed by Part I of Chapter 400, Florida Statutes. As such, this bill of rights is designed to provide assurances of certain minimum standards of protection for the resident. As noted previously, neither Chapter 400 or Chapter 468 define "licensee," but sub-section 400.022(1)(d) assures a resident of the right to manage his own financial affairs or to delegate such responsibility to the licensee, but only to the extent of the funds held in trust by the LICENSEE for the resident (Emphasis supplied). As previously noted, in this statutory context, "licensee" clearly refers to the nursing home facility or one acting on or in behalf of the nursing home facility as an entity licensed by the Department of Health and Rehabilitative Services pursuant to Section 400.162(1) Florida Statutes. The interpretation that Chapter 400 contemplates that a "licensee" and an "administrator" are separate entities is further butteressed by their being listed separately within subsections of the statute and by provisions within Chapter lOD-F.A.C. providing that licensees may designate which state-imposed responsibilities are to be performed by which administrators.
Although Respondent, while employed as a nursing home administrator, accepted and used a power of attorney for funds beyond those held in trust by the licensee for a resident, she was not acting on behalf of the licensee (HHCC). She received the power of attorney as an individual by and on behalf of a patient/resident with whom she had developed a close personal relationship. There has been no showing she influenced Berylyoung to execute the power of attorney, that she mismanaged Berylyoung's funds in any way, that she used the power of attorney for her own profit, or that she had any evil or abusive
scheme or design upon Berylyoung or his property. The Legislature may wish to prevent such private arrangements between patient/residents and nursing home administrators because these relationships clearly can lead to abuses, but this statute does not show that clear intent. Here, fortunately, there was no abuse and strict construction precludes a broader application of the statutory language in a penal proceeding. Accordingly, no violations of rule or statute as currently enacted can be determined upon the exercise by Respondent of Berylyoung's power of attorney.
Upon the foregoing findings of fact and conclusions of law it is RECOMMENDED that the Board of Nursing Home Administration enter a final order finding Respondent guilty of simple negligence and incompetence within Section 468.1755(1)(g) in signing the write-off slip, reprimanding her therefor, and dismissing all other charges.
DONE and ORDERED this 26th day of March, 1986, in Tallahassee, Florida.
ELLA JANE DAVIS, 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 26th day of March, 1986.
ENDNOTES
1/ Respondent asserts in her proposals that without introduction of these documents no proof of their existence has been made, but the record is clear that Respondent admitted existence of both documents and admitted exercise of the power of attorney and its destruction by her as set out below.
2/ This document was altered by someone to read, "did not" instead of "does not". No evidence was presented to show that the alteration was made by Respondent or when that alteration was made.
3/ Petitioner's proffer directed its main thrust to this element of the charges and it is noted that upon this point all of Eleanor Methot's proffered testimony was based only on having read a portion of Berylyoung's medical records and hearing the live testimony, and was couched in terms of "possibility it might have interfered with safety," "could have caused safety and health problems," and "definitely would have had the potential for causing him a problem. "(Emphasis supplied).
Although in its proposals, Petitioner argues that this line of questioning with Mr. Patrick was truncated by the undersigned upon grounds it was repetitious and cumulative when such was not the case (Petitioner's proposed finding of fact paragraphs 26-27) it is noted that the question asked also assumed facts not established by the evidence and was without adequate predicate.
See discussion of Mr. Patrick's testimony infra.
COPIES FURNISHED:
Cecilia Bradley, Esquire
130 North Monroe Street Tallahassee, Florida 32301
John P. Cardillo, Esquire 3550 South Tamiami Trail Naples, Florida 33962-4999
Fred Roche, Secretary
130 North Monroe Street Tallahassee, Florida 32301
Salvatore A. Carpino General Counsel
130 North Monroe Street Tallahassee, Florida 32301
Mildred Gardner Executive Director
Nursing Home Administrators
130 North Monroe Street Tallahassee, Florida 32301
APPENDIX
Petitioner's Proposed Findings of Fact
Covered in finding of fact 1.
Covered in finding of fact 2.
Covered in findings of fact 3 and 4.
Covered in finding of fact 4
Rejected because as stated with the word "obtained," it is contrary to the weight of the evidence see finding of fact paragraph 5.
Covered in finding of fact 5.
Rejected as contrary to the weight of the evidence; see finding of fact paragraphs 7, 8, 9 and 10.
Rejected as contrary to the weight of the evidence: see finding of fact paragraph 10.
Covered in finding of fact paragraphs 7, 8, 9, and 10. To the extent these findings of fact are worded differently than the proposed paragraph, the proposal is rejected as stated because as stated it is misleading from the weight of the credible, competent and substantial evidence in its entirety.
Covered and amplified in finding of fact 6 so as to accord with the greater weight of the evidence in its entirety.
Covered in finding of fact 15. To the extent it is rejected, the proposal does not comport with the testimony of the Respondent and creates a misleading timeframe contrary to the evidence.
Covered, clarified and amplified in finding of fact paragraph 9 to accord with the greater weight of the evidence.
Rejected upon the implications of the word "took." Covered, clarified and amplified in finding of fact paragraph 9 to accord with the greater weight of the evidence
Rejected as contrary to the weight of the direct credible competent substantial evidence of record: see findings of fact paragraphs 3, 9 and 17.
Covered, clarified, and amplified in finding of fact paragraphs 3 and 17 to accord with the greater weight of the evidence.
Covered in finding of fact 9.
Covered, clarified and amplified in finding of fact paragraphs 12-14 to accord with the greater weight of the evidence.
Rejected as stated because as stated the proposal is misleading based upon the weight of the direct, credible substantial evidence in its entirety; see finding of fact paragraphs 12-13.
Covered, clarified and amplified in finding of fact paragraphs 11-13 to accord with the greater weight of the direct, credible, competent substantial evidence in its entirety To the extent the proposal is rejected, it is rejected because as stated it is misleading upon the weight of the credible competent substantial evidence in its entirety.
Rejected as being unnecessary for a determination of the issues.
Covered partially in finding of facts paragraphs 17 and
18 (weight and credibility of Patrick's testimony) and 19 (recommendation for job): to the extent it is not accepted, the
proposal is rejected as unnecessary to a determination of the issues.
Covered in finding of fact paragraphs 17 and 18.
Not dispositive of any issue at bar and further rejected as set out in findings of fact 10-14, and 18.
Rejected as stated because it is misleading as to the true state of the direct, credible competent substantial evidence in its entirety and further rejected for the reasons set out in finding of fact 18.
Rejected as not dispositive of any issue at bar as set out in finding of fact paragraphs 10-14, and as further explained in 18.
Accepted but not dispositive of the issues at bar as covered in findings of fact 17 and 18, particularly footnote 3.
Accepted but not dispositive of the issue at bar as covered in findings of fact 17 and 18 particularly footnote 3.
Rejected as a proffer only. See also conclusions of law as to "falsification."
Rejected as a proffer only but the statements as to calling for conclusions of law based on "falsification" contained in finding of fact paragraphs 14 and 18 also apply.
Rejected as a proffer only but covered in paragraph 17 footnote 3.
Accepted but not dispositive of any issue at bar where the facts of falsification upon which ultimate opinion testimony is based have not been established.
Accepted as covered in finding of fact 19.
Rejected as covered in finding of fact 19.
Rejected as covered in findings of fact 1 and 19. Respondent's Proposed Findings of Fact:
Rejected as only a restatement of the administrative complaint and not a proposed finding of fact.
Rejected as only a restatement of the administrative complaint and not a proposed finding of fact.
Rejected as only a restatement of the administrative complaint and not a proposed finding of fact.
Sentence one is rejected as contrary to the greater weight of the evidence as set out more specifically in finding of fact 14 and the conclusions of law. The remainder is rejected as stated in finding of fact 5 particularly footnote 1 and finding of fact 15.
Covered in finding of fact 5.
Covered in finding of fact 5.
Covered in findings of fact 10-14.
All of paragraph 8 is merely a recitation of testimony but to the extent any of these partial sentences may constitute proposed findings of fact they are treated as follows:
8(a). Rejected as not dispositive of any issue at bar and as subordinate and unnecessary.
8(b). Covered in finding of fact 19. 8(c). Covered in finding of fact 18.
8(d). Rejected as covered in finding of fact 18. 8(e). Rejected as covered in finding of fact 18. 8(f). Covered in finding of fact 18.
Rejected as argument and not a proposed finding of fact but see finding of fact 18.
Accepted but not dispositive of any issue at bar, as unnecessary and as subordinate. This is not a finding of ultimate material fact but is a discussion of the quality of Mr. Patrick's testimony, the weight, credibility and probative value of which is covered in finding of fact 18.
Accepted but not dispositive of any issue at bar. To the extent it is not adopted, it is unnecessary and subordinate. This is not a finding of ultimate material fact but is a discussion of the quality of Mr. Patrick's testimony, the weight, credibility and probative value of which is covered in finding of fact 18.
This is a recitation of Mr. Patrick's testimony and not a proposal of ultimate material fact, and therefore requires no ruling, however it is covered as part of finding of fact paragraph 18.
This is a re-statement of Mr. Patrick's testimony and not a proposal of ultimate material fact and therefore requires no ruling, however it reflects on the quality of Mr. Patrick's testimony, the weight, credibility, and probative value of which testimony is covered in finding of fact 18.
Sentence 1 is accepted. It is not dispositive of any issue at bar but is a discussion of the quality of Mr. Patrick's testimony which is covered in finding of facts 14 and 18. Sentence 2 is rejected as argument and not a proposal of fact requiring a ruling.
Covered in finding of fact 17.
Covered in findings of fact 3 and 17.
Covered in finding of fact 17.
Rejected as only a restatement of the allegations of the administrative complaint and not a proposed finding of fact the subject matter is covered in finding of fact 4.
Covered in findings of fact 10-14.
Accepted but not dispositive of any issue at bar, and as unnecessary and subordinate.
Covered in findings of fact 10-14.
Accepted but not dispositive of any issue at bar, and as unnecessary and subordinate.
Accepted but as stated it is not dispositive of any issue at bar; the subject matter is covered in finding of fact 10.
Covered in finding of fact 10.
Accepted but unnecessary to resolution of any issue of fact subject matter covered in findings of fact 11-13.
Rejected as misleading as to the actual testimony of Miss Gentry as a whole in that what she related cannot be considered "admissions" of Respondent and her memory of this conversation is very sparse.
Covered in finding of fact 17.
Accepted as part of finding of fact paragraph 17 the remainder is rejected as unnecessary and subordinate.
This is only a restatement of testimony but is covered in finding of facts 1 and 19.
Covered in findings of fact 3 and 4.
Covered in finding of fact 4.
Covered in findings of fact 7 and 17.
Covered in finding of fact 17.
34 Covered in finding of fact 5 and footnote 1.
Sentence 1 is covered in finding of fact 6. Sentence 2 is rejected as not supported by the record.
Covered in finding of fact 9.
Covered in findings of fact 3, 7 and 9.
Covered in findings of fact 12-13.
Covered in finding of fact 13.
Rejected as set out in finding of fact 14 and the conclusions of law.
Covered in finding of fact 14.
Covered in finding of fact 14.
Covered in finding of fact 5.
Up to the comma of the second sentence, this proposal is covered in finding of fact 5. After the comma, the proposal is pure, uncorroborated speculation of the witness as to the state of mind of non-witnesses. As such, it may not be the foundation for a finding of fact and is rejected.
Covered in finding of fact 15.
Covered in a finding of fact 20.
Accepted in part and rejected in part as covered in finding of fact 10.
Covered in part and rejected in part as covered in finding of fact 17.
Accepted but cumulative; see finding of fact 18.
Accepted but cumulative; see finding of fact 18.
Accepted but cumulative: see finding of fact 18.
Covered in findings of fact 1, 2, 7 and 19.
Covered in finding of fact 1
Covered in finding of fact 1.
This is essentially argument as to the weight and burden of proof and so requires no ruling as a proposal of fact but the subject matter is covered in findings of fact 1 and 19.
Accepted but not dispositive of any issue at bar as covered in finding of fact 19.
Rejected as neither expert testimony nor as comporting with the greater weight of the evidence
Rejected as unnecessary and subordinate and as not dispositive of any issue at bar, but the subject matter of reputation is covered in findings of fact 1 and 19.
Rejected as unnecessary and subordinate and as not dispositive of any issue at bar, but the subject matter of reputation is covered in findings of fact 1 and 19.
Covered in finding of fact paragraph 6.
================================================================= AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF NURSING HOME ADMINISTRATORS
DEPARTMENT OF PROFESSIONAL REGULATION,
Petitioner,
vs. CASE NO. 0053387
DOAH CASE NO. 85-2478
MARGARET ANN MARTIN,
Respondent.
/
ORDER
Respondent, Margaret Ann Martin, holds Florida License No.
0001557 as a nursing home administrator. Petitioner filed an Administrative Complaint seeking revocation, suspension, or other disciplinary action against the license.
Respondent requested a formal hearing and one was held before the Division of Administrative Hearings. A Recommended Order has been forwarded to the Board pursuant to ยง120.57, Florida Statutes. A copy of the Recommended Order is attached to and by reference made a part of this Order.
The Board of Nursing Home Administrators met on May 8, 1986, in Miami, Florida, to take final agency action. The Board has reviewed the entire record in the case.
Petitioner filed exceptions to a conclusion of law contained in the Recommended Order. The Board rejects the exceptions as being without merit.
FINDINGS OF FACT
The Board accepts and adopts the Findings of Fact contained in the Recommended Order.
CONCLUSIONS OF LAW
The Board accepts and adopts the Conclusions of Law contained in the Recommended Order, except as specifically amended as set forth below.
The Board strikes that part of the first full paragraph on page 25 of the Recommended Order beginning with "The Legislature..." and ending with the end of the paragraph. The Board further strikes the second full paragraph on page 25, and substitutes the following:
The foregoing analysis notwithstanding, the Board finds that the acceptance and use of a power of attorney by a nursing home administrator from a patient or resident is improper and is misconduct in the practice of nursing home administration as prohibited by Section 46B.1755(1)(g), Florida Statutes.
Consequently, based on the Findings of Fact, Respondent is guilty of an additional violation of said section.
PENALTY
Based on the foregoing Findings of Fact and Conclusions of Law, the Board believes that the recommendation of the Hearing Officer is appropriate. It is therefore
ORDERED that the licensee is hereby REPRIMANDED for the conduct set forth in the Findings of Fact.
Pursuant to Section 120.59, Florida Statutes, the parties are hereby notified that they may appeal this final order by filing one copy of a notice of appeal with the clerk of the agency and by filing the filing fee and one copy of a notice of
appeal with the District Court of Appeal within thirty days of the date this order is filed.
This Order shall become effective upon filing with the clerk of the Department of Professional Regulation.
DONE and ORDERED this 4th day of June, 1986.
Marc Lichtman, Chairman Board of Nursing Home
Administrators
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Order has been sent to MARGARET ANN MARTIN, 3101 Buena Vista Lane, Naples, Florida 33942, and to JOHN P. CARDILLO, ESQUIRE, 3550 South Tamiami Trail, Naples, Florida 33962, by United States Mail, at or before 5:00 p.m., this 5th day of June, 1986.
Mildred Gardner Executive Director
| Issue Date | Proceedings |
|---|---|
| Mar. 26, 1986 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Jun. 05, 1986 | Agency Final Order | |
| Mar. 26, 1986 | Recommended Order | Respondent had a friendship with resident. She received power of attorney but never influenced him, mismanaged funds, profited or abused her power. Found guilty of simple negligence. |
