STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SANDRA GLORIA KELLY, )

)

Petitioner, )

)

vs. ) CASE NO. 88-4923

)

BOARD OF NURSING HOME )

ADMINISTRATORS, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Tallahassee, Florida, before Robert T. Benton, II, Hearing Officer of the Division of Administrative Hearings, on December 21, 1988. The parties' proposed findings of fact are addressed by number in the attached appendix.

The petitioner appeared on her own behalf. Respondent appeared through counsel:

Edwin A. Bayo, Esquire Assistant Attorney General Department of Legal Affairs The Capitol

Tallahassee, Florida 32399-1050

On July 28, 1988, Mildred A. Gardner, the executive director of the Board of Nursing Home Administrators, wrote Ms. Kelly advising her "that the Board was unable to approve [he]r application for eligibility to take the [nursing home administrator licensure] exams in Florida." Subsequently, an official "NOTICE" filed September 8, 1988, and signed two days earlier by respondent's chairman, Emil L. Huber, assigned reasons:

Your application does not evidence a [sic]

2 years of practical experience in Nursing Home Administration as elaborated in Rule 21Z-11.008, F.A.C. Specifically, your position as Health Services Director did not

provide for overall responsibility, under the supervision of the licensed administrator, for the operation and control of the dietary, housekeeping, administration, maintenance and social services departments.

Disputing these assertions, petitioner made written request for a formal administrative hearing "pursuant to Section 120.57(1), Florida Statutes." In keeping with petitioner's request and the provisions of Section 120.57(1)(b)3., Florida Statutes (1987), respondent transmitted petitioner's request to the Division of Administrative Hearings.

ISSUE

Whether petitioner has two years' practical experience in nursing home administration within the meaning of Section 468.1695(2)(c)3., Florida Statutes (1987) and Rule 21Z-11.008, Florida Administrative Code?

FINDINGS OF FACT

1. Westminster Oaks, a "retirement village" or "continuing care facility" in Tallahassee, has a clinic, a 60-bed nursing home, an adult congregate living facility and 150 "independent living" units for older people, who are guaranteed nursing home beds, if needed, as their independence ebbs.

   
   

2. Before Donald Long began as Westminster Oaks' administrator on December 1, 1986, the position had gone unfilled for two years. By the time he arrived, petitioner Sandra Kelly, formerly director of nursing at Westminster Oaks, had become director of health care services, for the express purpose of gaining the experience necessary to sit for the nursing home administrator licensure examination.

   
   

3. She was following in the footsteps of Sue Reeder and five other trainees, of whom three -- all who have finished the program -- have been permitted to sit for the exam from which respondent proposes to bar her.

   
   

4. On August 1, 1986, Ms. Kelly assumed supervisory responsibility for the Health Center, which included the nursing home. As director of health care services, she was responsible not only for the nursing home, but also for the clinic and the adult congregate living facility with its 34 places. (All but six were filled at the time of hearing.) The clinic at Westminster Oaks monitors independent residents' blood pressures, and administers B-12 injections, but does not provide home health services.

   
   

5. After Sue Reeder left in January of 1988, she was also called upon as needed to manage the resident services department, along with operations of the business office, and the dietary and housekeeping department that related to residents of the independent living units. Even her work in marketing related to the nursing home.

   
   

6. Even when called upon to help in other areas, she was not relieved of responsibility for the nursing home, which she had effective charge of at least

   95 percent and perhaps 100 per cent of the time. (Testimony of Long) Besides having overall charge, she rotated through each department in the nursing home, managing it; or, as in the case of the housekeeping department which served not only the nursing home but also other facilities in the complex, managing operations as they related to the nursing home.

   
   

7. In addition to her nursing home duties, she spent 15 to 20 minutes a day at the adult congregate living facility, more on days when new residents were admitted. She made rounds at the adult congregate living facility quarterly, and accompanied inspectors from the Department of Health and Rehabilitative Services when they inspected. She also met with the clinic nurse three times weekly for fifteen minutes a visit.

   
   

8. As director of health care services, she has devoted the overwhelming majority of her time to the nursing home. She has had complete and uninterrupted charge of the nursing home's social services and activities

   departments, and personally hired the activities director. She also hired a medical records consultant, and oversaw putting the medical records in order for inspection by the Department of Health and Rehabilitative Services. Although she did not hire or fire otherwise, leaving that to department heads, she had the right to do so.

   
   

9. At the time of the hearing, she had spent more than 27 months as director of health care services. Although she also devoted some of her time to the adult congregate living facility, and to the clinic, she spent more than two "working years" on nursing home administration, aside from time devoted to the adult congregate living facility and the clinic. As de facto administrator of Westminster Oaks' nursing home, under Mr. Long's supervision, she planned for and helped organize, direct and control all nursing home departments, including social services, and, insofar as they pertained to the nursing home, the nursing, dietary, housekeeping, administration and maintenance departments.

   
   

   CONCLUSIONS OF LAW

   
   

10. The courts view it "as fundamental that an applicant for a license or permit carries `the ultimate burden of persuasion" of entitlement through all proceedings, of whatever nature, until such time as final action has been taken by the agency. Florida Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778, 787 (Fla. 1st DCA 1981); Zemour, Inc., v. State Division of Beverage, 347 So.2d 1102 (Fla. 1st DCA 1977)(lack of good moral character found "from evidence submitted by the applicant"). See generally Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977).

    
    

11. Here the applicant's burden is to demonstrate that she has "obtained 2 years of practical experience in nursing home administration." Section 468.1695(2)(c) 3., Florida Statutes (1987), which an agency rule has authoritatively defined, as follows:

Practical Experience in Nursing Home Administration. To fulfill two years of practical experience in nursing home administration pursuant to Section 468.1695(2)(c)3., an applicant must function as administrator, assistant administrator, or administrative assistant of the nursing home or other facility providing long term medical care. The applicant must have overall responsibility, under the supervision of the licensed administrator, for the operation and control of all departments of the facility, including nursing, dietary, housekeeping, administration, maintenance and social services. The applicant must show evidence of the performance and practical application of executive duties and management skills including planning, organizing, staffing, directing, and controlling in each department of the facility. The applicant shall provide a notarized statement documenting his experience, which shall be verified by his employer(s).

Rule 21Z-11.008, Florida Administrative Code.

Petitioner in the present case has amply demonstrated entitlement, under these provisions, to sit for the examination administered to applicants for nursing home administrators' licenses.

It is, accordingly, RECOMMENDED:

That the Board of Nursing Home Administrators admit Sandra Gloria Kelly to the licensure examination as soon as feasible.

DONE and ENTERED this 15th day of February, 1989, in Tallahassee, Leon County, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 15th day of February, 1989.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-4923

Petitioner's proposed findings of fact Nos. 1 through 8 have been adopted, insofar as material, as supported by the weight of the evidence.

Respondent's proposed findings of fact Nos. 1, 3,4,5,6,7 and 8 have been adopted, in substance, insofar as material.

Respondent's proposed findings of fact Nos. 2 and 10 relate to subordinate matters.

With respect to respondent's proposed finding of fact No. 9, Ms. Reeder left Westminster Oaks in January of 1988.

COPIES FURNISHED:

Edwin A. Bayo, Esquire Assistant Attorney General Department of Legal Affairs The Capitol

Tallahassee, Florida 32399-1050

Sandra Gloria Kelly 6986 Hanging Vine Way

Tallahassee, Florida 32301

Mildred Gardner Executive Director

Nursing Home Administrator Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Kenneth Easley, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 88-004923

Orders for Case No: 88-004923