STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF NURSING ) HOME ADMINISTRATORS, )

)

Petitioner, )

)

vs. ) CASE NO. 88-6233

)

RALPH L. STACEY, JR., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, J. Stephen Menton, held a formal hearing in the above-styled case on September 26, 1989, in Miami, Florida.

APPEARANCES

For Petitioner: Charles F. Tunnicliff

Chief Attorney

Department of Professional Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

For Respondent: Kenneth S. Handmaker, Esquire

Middleton & Reutlinger

2500 Brown & Williamson Tower Louisville, Kentucky 40402

STATEMENT OF THE ISSUES

Whether Respondent's license as a nursing home administrator in the State of Florida should be suspended, revoked, or otherwise disciplined for the alleged violation of Chapter 468, Florida Statutes, as set forth in the Administrative Complaint filed October 10, 1988. The Administrative Complaint charges Respondent with violating Section 468.1755(1)(g), Florida Statutes, because of alleged negligence, incompetence or misconduct in the practice of nursing home administration, and Section 468.1755(1)(m), Florida Statutes, as a result of willfully or repeatedly violating any of the provisions of the law, code or rules of the licensing or supervising authority or agency of the state having jurisdiction of the operation and licensing of nursing homes. The charges are based on the allegation that Respondent was the Administrator in charge of a nursing home in Miami, Florida while also acting in the capacity of Administrator at another facility without having a qualified Assistant Administrator to act in his absence.

This case was originally scheduled for hearing on March 26, 1989. That hearing was continued while the parties attempted to finalize a settlement agreement. On April 25, 1989, the Petitioner, Department of Professional Regulation, Board of Nursing Home Administrators entered a Final Order imposing a reprimand on Respondent. Respondent objected to the Final Order and contended that it was not in accordance with the settlement negotiations that took place. A Notice of Appeal was filed in connection with the Final Order. Subsequently, the parties agreed that the appeal should be dismissed and the case was remanded to the Division of Administrative Hearings to conduct a formal administrative hearing.

At the hearing, Petitioner called two witnesses: James W. Bavetta, an inspector with the Department of Health and Rehabilitative Services, Office of Licensure and Certification and William Carl Wheatley, Jr., a licensed Nursing Home Administrator in the State of Florida, who was accepted as an expert in the field of nursing home administration. The Petitioner offered three exhibits into evidence all of which were accepted. The Respondent testified on his own behalf and had fourteen exhibits marked, all of which were accepted into evidence except Respondent's Exhibit 2 which was not offered.

At the conclusion of the hearing, the parties requested and were granted an opportunity to brief certain legal issues raised during the hearing in order to obtain a ruling on those issues prior to submitting proposed recommended orders. However, the parties subsequently withdrew this request and by Agreed Order dated December 29, 1989, the parties were granted until January 29, 1990 to file their proposed recommended orders. The parties were also granted fifteen days after submission of proposed recommended orders to file a reply memoranda to the legal issues raised in the proposals. Both parties filed proposed recommended orders. In addition, Respondent filed a Memorandum Brief regarding certain legal issues raised. The Petitioner did not file a separate brief on the legal issues. The Petitioner's proposed recommended order was filed on January 30, 1990. By notice filed on February 5, 1990, the Respondent waived any objection to the late filing of Petitioner's Recommended Order. All submittals have been reviewed and considered in the preparation of this Recommended Order. A ruling on each of the parties' proposed findings of fact is included in the Appendix to this Recommended Order.

Prior to the hearing, Respondent had filed a Motion to Compel Complete Response to Respondent's Request for Production of Documents. That Motion was related to the purported failure by the Department of Health and Rehabilitative Services to produce documents requested pursuant to subpoena Duces Tecum issued August 16, 1989. The Department of Health and Rehabilitative Services ("HRS") is not a party to this action, but it filed a Response to Motion to Compel indicating that HRS's records were not kept in a manner which would allow the agency to isolate the documents requested without going through every licensure file kept by the agency. HRS offered the Respondent an opportunity to undertake such an investigation. At the commencement of the hearing, the Respondent advised that he was prepared to go forward with the hearing without a ruling on the Motion to Compel. However, counsel for Respondent requested the opportunity to revisit this issue, if necessary, at the conclusion of the hearing. During the hearing, an investigator from HRS testified and produced certain documents relating to Respondent's Florida facility. In addition, the HRS investigator testified regarding certain HRS policies and procedures. Based upon the evidence adduced at the hearing, the Motion to Compel appears moot and Respondent has not addressed this issue in his proposed recommended order.

Therefore, the Motion to Compel is denied.

At Petitioner's request, official recognition has been taken of Rule 10D- 29.104(6)(c).

FINDINGS OF FACT

Based upon the testimony of the witnesses and documentary evidence received at the hearing and the entire record herein, I make the following findings of fact:

1. The Respondent, is a licensed Nursing Home Administrator in the State of Florida, license number NH 0001018. He has been duly licensed in Florida since 1974-1975.

   
   

2. At all times material hereto, the Respondent has been the nursing home administrator in charge at Riverside Care Center ("Riverside",) a nursing home located at 899 N.W. 4th Street, Miami Florida. Respondent has never been the designated nursing home administrator for any other facility licensed by or located in Florida.

   
   

3. At all times material hereto, Riverside held and continues to hold a superior rating issued by Florida HRS pursuant to Section 400.23, Florida Statutes.

   
   

4. At all times material hereto, Respondent has been a licensed nursing home administrator in the State of Kentucky, having been issued license number

420. Respondent has also been a licensed nursing home administrator in the State of Ohio since 1973. Other than the charges in this case, Respondent has never been the subject of disciplinary action or faced administrative charges in any of the states in which he is licensed.

1. At all times material hereto, Respondent has been the licensed nursing home administrator in charge of Garrard Convalescent Home, (`1Garrard") located at 425 Garrard Street, Covington, Kentucky 41011.

   
   

2. In December, 1985, as a part of the re-licensure process, Riverside filed DHRS Form 109 with MRS. The information contained on that form disclosed that Respondent served as an Administrator for Garrard which is a superior rated nursing home located in and licensed by the Commonwealth of Kentucky.

   
   

3. Prior to July 11, 1986, Riverside designated in writing, Richard Stacey and Riverside's Director of Nursing, as the persons in charge and responsible for the facility in the absence of Respondent from the facility.

   
   

4. On July 11, 1986, Richard Stacey, Respondent's brother, was a nursing home administrator licensed by Kentucky. Thus, he had passed the national examination. He had applied for an administrator's license by endorsement in Florida. Such license was issued to Mr. Stacey in 1986, but not until after July 11, 1986.

   
   

5. On July 11, 1986, Respondent was in Cincinnati, Ohio, at Riverside's central business office, working on payroll for the facility. Richard Stacey was physically present and in charge of Riverside on that date. However, he was not a licensed administrator in Florida at that time. Betty Ward, a licensed administrator, was physically present and in charge at Garrard.

6. On July 11, 1986, as the result of comments received from the HRS Medicaid Office, Audit Division, in Tallahassee, an MRS representative went to Riverside and determined that Respondent was not present at the facility.

   
   

7. During the inspection, Mr. Bavetta, the MRS representative, did not look for nor did he find any evidence that the residents were not being cared for or that their rights were not being protected.

   
   

8. As a result of the inspection, the HRS investigator issued a Recommendation for Sanctions against the facility for a purported violation of Florida Administrative Code Rule 10D-29.104(6)(c) and/or 10D-29.104(6)(d). A violation of either of those sections would generally constitute a Class III deficiency pursuant to Section 400.238(4), Florida Statutes. Class III deficiencies do not present a direct or immediate threat to the safety or welfare of the residents. The existence of a Class III deficiency or deficiencies does not automatically establish negligence, incompetence or misconduct on the part of the Administrator of the facility.

   
   

9. As a matter of general policy, HRS does not seek administrative sanctions if a Class III deficiency is corrected within the prescribed time. In this case, no time to correct the deficiency was prescribed and HRS sought administrative sanctions against the facility.

   
   

10. Within six (6) days of receipt of the notice by Riverside of the alleged violations of Florida Administrative Code Rule 10D-29.104(6), a licensed assistant administrator was hired by Riverside.

    
    

11. The decision not to hire a licensed assistant administrator at Riverside prior to July 11, 1986 was based upon the advice of Respondent's attorney that such was not a requirement under Florida law.

    
    

12. For the period January 1, 1985 through September 21, 1989, Petitioner has not filed charges against any other licensed nursing home administrator in the State of Florida except Respondent for an alleged violation of Florida Administrative Code Rule 10D-29.104(6)(c) or 10D-29.104(6)(d).

    
    

13. Respondent's conduct of nursing home administration at Riverside was in conformity with the standard of practice utilized by a normal, prudent, responsible nursing home administrator in Florida.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Section 120.57, Florida Statutes (1987).

    
    

15. Since this case involves disciplinary action against a licensee, the Petitioner has the burden of proving the charges set forth in the Administrative Complaint by clear and convincing evidence. Ferris v. Turlinqton, 510 So.2d 392. (Fla. 1987)

    
    

16. The Department of Health and Rehabilitative Services (HRS) has jurisdiction over the licensing, certification and operation of and is the regulating authority over nursing home facilities in Florida, pursuant to Chapter 400, Part I, Florida Statutes.

17. The Petitioner has charged Respondent with violating Section 468.1755(1)(g), Florida Statutes, due to negligence, incompetence or misconduct in the practice of nursing home administration, and Section 468.1755(1)(m), Florida Statutes, as a result of willfully or repeatedly violating the provisions of the law, code or rules of the licensing or supervising authority or agency of the state having jurisdiction of the operation and licensing of nursing homes.

    
    

18. The charges in this case are based upon Petitioner's contention that Respondent violated Rule 10D-29.104(6)(c) by not having a licensed assistant administrator on staff to act in his absence.

    
    

19. Rule 10D-29.104(6)(c), of the Florida Administrative Code states, in part:

    
    

    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 Administrator's absence at each facility...

    
    

20. The evidence established that Respondent sought legal advice as to the applicability of the relevant Florida law and rules and followed that advice. Respondent took immediate steps to abide by HRS' interpretation as soon as he learned of its contrary interpretation. Under these circumstances, Petitioner has failed to establish that Respondent willfully or repeatedly violated any statute or rule and, therefore, the charge under Section 468.1755(1)(m) should be dismissed.

    
    

21. Similarly, the charge under Section 468.1755(1)(g) should also be dismissed because there is no evidence Respondent was guilty of negligence, incompetence or misconduct in the practice of nursing home administration. While administrative charges were brought by HRS against the facility, it is questionable whether the existing statutes and rules should be interpreted to apply to a nursing home administrator who is in charge of one facility in Florida and another facility outside the State.

    
    

22. The evidence in this case established that Respondent designated a person, in writing, to operate the facility in his absence and the designee was not a licensed Assistant Administrator in Florida at the time. However, Rule 10D-29.104(6)(c), Florida Administrative Code does not specifically address the case of an administrator who is acting as such for one Florida facility and also acting as administrator at another facility outside the state.

    
    

23. Section 400.021(10), Florida Statutes, defines "nursing home facility" as a facility that is licensed to operate under Florida law in Florida.

    
    

24. Pursuant to Florida Administrative Code Rule 10D- 29.072(6), "Nursing Facility" means a facility that is licensed under Part I of Chapter 400, Florida Statutes. Thus, technically, Garrard does not fall within these definitions. Since Rule 10D-29.104(6)(c) does not specifically address out-of- state

    facilities, there is some ambiguity as to whether it is applicable to Respondent.

    
    

25. While Respondent did not seek a declaratory statement from the Board or HRS as to whether Rule 10D-29.104(6)(c), Florida Administrative Code applied to him and his situation, he did receive an opinion from his attorney that it did not.

    
    

26. Whether Respondents' attorney was correct in advising that the State of Florida does not have authority to impose or apply its laws, rules or regulations to nursing home facilities located outside its geographical boundaries need not be decided in this case. Quite simply, Petitioner has failed to establish that Respondent was guilty of negligence, incompetence or misconduct in the practice of nursing home administration when he accepted his attorney's advice and failed to hire a licensed assistant administrator to act in his absence.

    
    

27. There is no indication that Respondent was attempting to circumvent the law or that he was attempting to hide his involvement with another facility. Respondent's connection with the nursing home in Kentucky was fully disclosed months prior to its "discovery" by HRS. There is no indication that the facility was not adequately staffed or managed. Indeed, one of the people designated as responsible for Riverside in Respondent's absence was licensed in another state and was trained to handle the facility. It is important to note that even if Respondent's facility violated Rule 10D-29.104(6)(c) by not having a licensed assistant administrator on staff to act in his absence, the health, safety and welfare of the residents was never threatened, and there were capable staff members on hand to run the facility at all times.

    
    

28. Florida law does not require a duly licensed nursing home administrator to be a resident of Florida.

    
    

29. Likewise, Florida law imposes no minimum requirements as to the number of hours or days that a duly licensed nursing home administrator must be physically present at the facility or actually engage in nursing home administration for that facility. Moreover, Florida law imposes no prohibition against a duly licensed nursing home administrator leaving the facility for any reason and there is no limitation regarding the period of time the administrator can be absent. In view of these provisions, any violation of Rule 10D- 29.104(g)(c) at Respondent's facility was technical in nature and did not reflect negligence, incompetence, or misconduct in nursing home administration by Respondent.

RECOMMENDATION

Based upon the foregoing facts and conclusions of law, it is RECOMMENDED that the Florida Board of Nursing Home Administrators enter a Final Order finding Ralph L. Stacey, Jr., not guilty of violating Section 468.1755(1)(g) and Section 468.1755(1)(m) Florida Statutes, and dismissing all the charges in the Administrative Complaint.

DONE and ORDERED this 4th day of April 1990, in Tallahassee, Florida.

J. STEVEN MENTON 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 12 day of April 1990.

APPENDIX TO RECOMMENDED ORDER CASE NO. 88-6233

Both the Petitioner and the Respondent submitted Proposed Recommended Orders which include proposed findings of fact and conclusions of law. The following rulings are directed towards the findings of fact contained in those proposals.

The Petitioner's Proposed Findings of Fact

Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order were Accepted

or Reason for Rejection.

1 Adopted in substance in Findings of Fact

1. Adopted in substance in Findings of Fact 2.

2. Adopted in substance in Findings of Fact 4.

3. Adopted in substance in Findings of Fact 5.

4. Adopted in substance in Findings of Fact 9.

5. Adopted in substance in Findings of Fact 14.

6. Adopted in substance in Findings of Fact 8.

The Respondent's Proposed Findings of Fact

Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order were

Accepted or Reason for Rejection.

1. Rejected as constituting a conclusion of law rather than a finding of fact.

2. Adopted in substance in Findings of Fact 11.

3. Adopted in substance in Findings of Fact 12.

4. Adopted in substance in Findings of Fact 13.

than a finding of fact.

19. Adopted in substance in Findings of Fact 18.

COPIES FURNISHED:

Charles F. Tunnicliff Chief Attorney

Department of Professional Regulation 1940 North Monroe Street

Suite 60

Tallahassee, Florida 32399-0792

Kenneth S. Handmaker, Esquire Middleton & Reutlinger

2500 Brown & Williamson Tower Louisville, Kentucky 40202

Judie Ritter Executive Director

504 Daniel Building

111 East Coastline Drive Jacksonville, Florida 32202

Kenneth E. Easely, Esquire

Department of Professional Regulation 1940 North Monroe Street

Suite 60

Tallahassee, Florida 32399-0792

Docket for Case No: 88-006233

Orders for Case No: 88-006233