STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 87-5025

) CONVALESCENT SERVICES OF VENICE, ) INC., d/b/a PINEBROOK PLACE )

HEALTH CARE CENTER, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Tampa, Florida, on March 14, 1988, before Arnold H. Pollock. The issue for consideration was whether Respondent's license to operate a nursing home in Florida should be disciplined because of the alleged misconduct outlined in the Administrative Complaint.

APPEARANCES

For Petitioner: Anthony DeLuccia, Esquire

District VIII Legal Counsel

Post Office Box 06085, Suite 110 Ft. Myers, Florida 33906

For Respondent: R. Bruce McKibben, Jr., Esquire

Post Office Box 10651 Tallahassee, Florida 32301

BACKGROUND INFORMATION

On October 15, 1987, the Director of Department of Health and Rehabilitative Services, (HRS) Office of Licensure and Certification executed an Administrative Complaint in this case alleging that the Respondent, Convalescent Services of Venice, Inc. at its Pinebrook Place Health Care Center in Venice, Florida, had violated Section 400.141, Florida Statutes, and Rule 10D- 29.104(6)(c), Florida Administrative Code, by failing to operate the facility in question with a required, full time, qualified Administrator, or Assistant Administrator during the period June 30, 1987 through July 12, 1987.

At the hearing Petitioner presented the testimony of Mr. Dowless, a surveyor with HRS's Office of Licensure and Certification. Respondent presented the testimony of Rick A. Winkler, Regional Director of Respondent, Convalescent Services of Venice; Pamela M. Cox, the Administrator of Respondent's facility in Naples, Florida; and Joan W. Spittal, a Community Resource Director at Respondent's Pinebrook facility in Venice, Florida. Respondent introduced Respondent's Exhibits 1 and 3 through 5. Respondent's Exhibit 2 for identification was withdrawn.

A transcript of the proceeding was furnished. Counsel for both parties submitted Proposed Findings of Fact which have been ruled upon in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. During the months of June and July, 1987, Respondent Convalescent Services of Venice, Inc., operated Pinebrook Place Health Care Center in Venice, Florida.

   
   

2. On or about June 19, 1987, Rev. Spittal, then the licensed Administrator of the facility, submitted his emergency resignation in order to assume administration of another facility to which he was obligated to give guidance. He immediately notified the Regional Director of the Respondent corporation, Mr. Rick Winkler, who was himself a licensed health care administrator in Florida. As Regional Director, with the responsibility for supervising five nursing homes and one retirement center, Mr. Winkler had his office in the Pinebrook Place facility.

   
   

3. Mr. Winkler's license was physically located at Respondent corporation's other facility, Lakeside Nursing Home in Naples, Florida. Mr. Winkler had been the Administrator of that facility prior to becoming Regional Director, and because the incumbent administrator, Ms. Harnish, was newly licensed, and because an administrator in training, Ms. Cox, was undergoing training at that facility, he left his license at the Lakeside facility when he moved to Pinebrook to become Regional Director.

   
   

4. Upon the departure of Rev. Spittal, Mr. Winkler immediately assumed administration of the Pinebrook facility, fulfilling all the functions of the administrator and advising the staff that he had done so. In addition, he immediately entered into a contract with Ms. Joyce A. Coleman, a licensed nursing home administrator, to assume the position of Administrator of Pinebrook Place effective July 13, 1987. Thereafter, between Rev. Spittal's departure on June 19 and Ms. Coleman's arrival on July 13, 1987, Mr. Winkler was the Administrator of Pinebrook Place Health Care Center. A licensed assistant administrator was not employed at Pinebrook during that period.

   
   

5. On June 30, 1987, Mr. Dowless, an investigator for HRS Office of Licensure and Certification, pursuant to a report filed by a discharged former employee at Pinebrook, visited the facility to determine if the allegation made that Pinebrook was operating without a licensed administrator was true. That day in question, Mr. Winkler was absent from the facility attending the opening of the Respondent corporation's newest facility. When Mr. Dowless arrived he spoke with the acting Administrator In Charge, the chief nurse to whom Mr. Winkler supposedly gave a letter of authority in writing to assume supervision in his absence, and after an inspection of the facility, concluded that the Respondent corporation was in violation of the law. This was because Mr. Winkler, though a licensed nursing home administrator, had his license physically located at Lakeside and he failed to have an Assistant Administrator under his supervision at the Pinebrook facility.

   
   

6. This information was telephonically reported to Mr. Winkler who called Mr. Dowless by telephone later that day. The discussion was somewhat heated. Because he was unable to convince Mr. Dowless of the fact that he was the administrator at that facility, Mr. Winkler placed a telephone call to Mr. Richard Reysen, a Deputy Director of the Office of Licensure and Certification.

   During this conversation, Mr. Winkler explained his licensure situation and was led to believe that the situation was acceptable so long as he would have his license physically removed from Lakeside to Pinebrook. He did this and took no further action. Considering the matter closed, he was somewhat surprised when a citation was subsequently issued by Petitioner levying a fine of $1300. The fine was $100 per day for each day of the alleged violation.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding.

   
   

8. Under the provisions of Subparagraph 6 Rule 10D-29.104:

   
   

   1. The licensee of each facility shall designate one qualified person as administrator who shall be responsible and accountable for the overall management of the facility.

      
      

   2. Persons designated as administrator of nursing home facilities shall be duly licensed by the Board of Examiners of Nursing Home Administrators.

      
      

   3. The designated person for nursing home facilities may serve as the administrator for a maximum of three facilities. When the administrator serves more than one facility, each facility shall have a full time qualified assistant administrator, duly licensed by the Board of Examiners of Nursing Home Administrators, designated in writing to act in the administrators absence at each facility. Persons designated as assistant administrator shall serve only one nursing home facility. No administrator or assistant administrator shall accept employment in violation of this Rule.

      
      

   4. The facility administrator shall designate in writing a person responsible for the facility when the administrator is to be absent from the facility for a period of 24 hours. This person is not required to be a licensed administrator and this position shall not be extended to the point of being a full time job under normally accepted employment standards.

      
      

9. Mr. Winkler had been designated as the Administrator of Lakeside Nursing Home, and upon the resignation of Mr. Spittal, since he was the District Supervisor of both facilities, assumed responsibility and accountability for the overall management of the Pinebrook facility as well. He was, therefore, serving as Administrator as is called for in Subsection (a) of Paragraph 6. He was at all times a licensed nursing home administrator, licensed by the Board of Examiners of Nursing Home Administrators as is required by Subparagraph (b).

10. Under the rule, a nursing home administrator may serve as such for three facilities. Consequently, even if Mr. Winkler had retained the position of Administrator of the Lakeside facility, it was permissible for him to assume responsibility for the administration of Pinebrook as well. When he physically moved his office from Lakeside to Pinebrook, he left as acting Administrator an assistant, Ms. Harness, herself a licensed nursing home administrator, who had officially assumed the position of Assistant Administrator on March 20, 1987. Since Mr. Winkler was physically supervising the Pinebrook facility, it was not necessary for him to have an Assistant Administrator there. However, when he left for Tallahassee on June 29, to be gone through June 30, he left in charge his Director of Nursing, who had been designated in writing in accordance with the provisions of Subparagragh (d). It would make no sense to require the Administrator to have a licensed assistant and also leave an unlicensed substitute in charge in his absence.

    
    

11. In light of the above it would appear that the Respondent was in compliance with the requirements of Rule 10D- 29.104(6) and disciplinary action is inappropriate.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of laws it is therefore:

RECOMMENDED that the Administrative Complaint filed in this case against the Respondent, Convalescent Services of Venice, Inc. d/b/a Pinebrook Place Health Care Center be DISMISSED.

RECOMMENDED in Tallahassee this 16th day of June, 1988.

ARNOLD H. POLLOCK

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 16th day of June, 1988.

APPENDIX TO RECOMMENDED ORDER

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.

By the Petitioner

1 - 2. Accepted.

1. Accepted and incorporated herein.

2. Irrelevant. Respondent is not cited for this alleged

   violation.

3. Accepted and incorporated herein.

6 - 10. Accepted and incorporated herein.

11. Irrelevant.

12 - 13. Accepted and incorporated herein.

By the Respondent

1. Accepted and incorporated herein.

2. Accepted and incorporated herein.

3. Accepted and Incorporated herein.

4 - 5. Accepted and incorporated herein.

1. Accepted and incorporated herein.

2. Rejected as a synopsis of testimony, not a finding of fact.

3. Irrelevant.

COPIES FURNISHED:

ANTHONY DELUCCIA, ESQUIRE DISTRICT VIII LEGAL COUNSEL

P. O. BOX 06085, SUITE 110 FT. MYERS, FLORIDA 33906

R. BRUCE MCKIBBEN, JR., ESQUIRE

P. O. BOX 10651 TALLAHASSEE, FLORIDA 32302

GREGORY L. COLER, SECRETARY DEPARTMENT OF HEALTH AND

REHABILITATIVE SERVICES 1323 WINEWOOD BOULEVARD

TALLAHASSEE, FLORIDA 32399-0700

R. S. POWER, AGENCY CLERK DEPARTMENT OF HEALTH AND

REHABILITATIVE SERVICES 1323 WINEWOOD BOULEVARD

TALLAHASSEE, FLORIDA 32399-0700

Docket for Case No: 87-005025

Orders for Case No: 87-005025