STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

J. G. and S. K. G., )

)

Petitioners, )

)

vs. ) CASE NO. 90-4691F

) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Respondent, )

)

FINAL ORDER

By stipulation of the parties, this case involving a request for attorney's fees was submitted for disposition on the record of the prior expungement proceeding in consolidated cases, number 89-4151C/89-6087C, there being no additional evidentiary matters in issue.

APPEARANCES

For Petitioner: Jonathan S. Grout, Esquire

Post Office Box 1017 Tallahassee, Florida 32302-1017

For Respondent: Linda L. Parkinson, Esquire

HRS-District 7 Legal Office South Tower, Suite S-827

400 West Robinson Street Orlando, Florida 32801

STATEMENT OF THE ISSUES

The parties have stipulated that Petitioner is a "prevailing small business party" as defined in Section 57.111, F.S., and that the attorney fees requested are reasonable, up to the $15,000.00 statutory limit. The issue remaining for resolution is whether the expungement proceeding had a "reasonable basis in law and fact at the time it was initiated by [the] state agency", as provided in Section 57.111, F.S.

PRELIMINARY STATEMENT

On July 27, 1990, Petitioners, J.G. and S.K.G., filed a timely motion for attorneys' fees and costs, pursuant to Section 57.111, F.S. and Rule 22I-6.035,

F.A.C. Basis for the request was a final order by the Respondent, Department of Health and Rehabilitative Services, granting their requests for expungement of reports of alleged neglect of residents in an adult congregate living facility (ACLF).

A prehearing conference was conducted on October 3, 1990, at which time the parties made the stipulation described above. The record of the underlying proceeding in cases number 89-4151C/89-6087C was furnished by the clerk of the agency.

The parties submitted proposed final orders on November 16, 1990. Rulings addressing their proposed findings of fact are found in the attached appendix.

FINDINGS OF FACT

The following findings are adduced from the record, consisting of the transcript and exhibits in cases number 89-4151C/89-6087C, from the stipulations of the parties, and from the final order of the agency adopting the recommended order of Hearing Officer, K.N. Ayers, dated March 20, 1990.

1. Petitioners are sole proprietors of Forest Haven, an unincorporated adult congregate living facility (ACLF) licensed by the State of Florida pursuant to Chapter 400, Part II, F.S., and located at 8207 Forest City Road, Orlando, Florida. Petitioners and Forest Haven have their principal office in Orlando, Florida and are domiciled in Orlando, Florida. They have less than 25 full-time employees and a net worth of less than $2 million.

   
   

2. On March 17, 1989, a Department of Health and Rehabilitative Services (HRS) survey team visited Forest Haven to conduct an annual survey of the facility. The survey team was comprised of 10 persons, enlarged due to a training exercise. Several of the team members were registered nurses; several members were Office of Licensure and Certification supervisors.

   
   

3. During the course of the visit and observations of the residents, members of the team determined that eight residents required a higher level of care than could be provided at the ACLF.

   
   

   As found in the recommended order adopted by the agency, the basis for this determination was,

   
   

   As to T.M., age 81, the need for a restraining vest, and the existence of bruises and gashes on the face and head;

   
   

   As to H.L., age 89, the presence of a foley catheter, total disorientation, low weight and poor skin turgor (brittle skin);

   
   

   As to F.W., age 72, the presence of a foley catheter, observation of fresh blood in the catheter bag, and low body weight;

   
   

   As to M.B., age 81, incontinence and nonambulatory status;

   
   

   As to R.T., age 84, a foley catheter and contraction of both legs;

   
   

   As to L.O., age 94, edema of lower extremities, contracture of both knees, low body weight, skin tear on left buttocks, and possible bed sore on right buttocks;

   As to P.B., age 88, incontinence, low body weight, and inability to transfer from wheelchair to bed without assistance; and

   
   

   As to F.H., age 89, one-half inch bed sore on coccyx, pitting edema of legs, incontinence and somewhat confused state.

   
   

4. An adult protective services investigator was summoned, as well as law enforcement personnel, and the above residents were removed from the facility on an emergency basis and were placed in a nursing home. They were evaluated at the nursing home the following day by Carolyn Lyons, a Registered Nurse Specialist with HRS, who found that intermediate or skilled nursing home services were required.

   
   

5. A ninth resident, C.K., was evaluated by a medical review team nurse and an adult protective services worker at the ACLF on March 20, 1989, and was removed from the facility and placed in a nursing home the same day. C.K., age 89, was found to be confused, incontinent, with bruises, a swollen foot, non- ambulatory, and with a red rash on the trunk of her body.

   
   

6. HRS obtained orders from the Circuit Court to provide protective services for seven of the above-mentioned residents. Of the remaining two, one was competent to consent to the nursing home placement and another was returned to his own home by relatives.

   
   

7. On March 22, 1989, HRS Protective Services worker, Annette Hair, classified the report in her investigation as "confirmed" medical neglect by

   S.G. and J.G. of the eight residents who had been removed from the ACLF. She relied on her own observations of the individuals, on the medical assessments performed by the survey team nurses at the ACLF, and the subsequent assessment of Carolyn Lyons, the HRS staff person responsible for making an evaluation of the level of care required for medicaid nursing home placement.

   
   

8. The narrative "investigative conclusion" of Ms. Hair's report provides, in pertinent part:

* * *

Based on the facts obtained during the course of this investigation this case is being classified as CONFIRMED. In accordance with

F.S. Section 415.102(4) it is clearly estab- lished that [S. and J.G.] were the caregivers of the eight alleged victims of this report as they had been entrusted with the care of said individuals. The allegation of neglect is verified for each of the eight alleged victims in that [S. and J.G.] failed to provide the care and service necessary to maintain the physical and mental health of an aged person that a prudent person would deem essential for the well-being of an aged person (F.S. Section 415.102(13)). Specifically each of the eight alleged victims has a medical condition which required twenty-four hour skilled nursing care and supervision which the caregivers, [S. and

J.G.] failed to provide for said individuals. Five of the eight alleged victims, [H.L., L.O., T.M., F.H. and P.B.] had Scabies (a highly contagious disease caused by parasitic mites that burrow under the skin. This disease is associated with unsanitary conditions and causes a painful itch).

[S. and J.G.] failed to provide the supervision necessary to detect this disease and in so doing jeopardized the health and well-being of the other residents in the facility. [H.L.] in addition to having Scabies, was semi-comatose, had bed sores on her buttocks and pelvic area and had a foley catheter. [T.M.] had open lacerations on her face, was extremely mentally confused and was known to wander and fall which required her to be physically restrained. [L.O.] had two open skin areas and Edema. [M.B.] has an excoriated area on her buttocks, Edema of the feet, and her right knee was swollen. [R.T.] had a cough of unknown origin, contraction of both legs, and an in-dwelling catheter. [F.W.] had an in-dwelling catheter which was draining bloody urine and appeared malnourished. [P.B.] appeared malnourished

and was incontinent of both bowels and bladder, was extremely confused, and had an open draining wound. [F.H.] had bed sores, and Pitting Edema in addition to Scabies.

[S. and J.G.], in addition to being negligent for failing to provide the care and services necessary to maintain the physical and mental health of the alleged victims, were in direct violation of F.S. Section 400.426(1) as they did not perform their responsibility of determining the appropriateness of residence of said individuals in their facility.

(Petitioner's exhibit 2, in cases number 89-4151C/89-6087C)

1. On April 4, 1989, HRS Protective Services worker, Kathleen C. Schirhman, classified the report in her investigation as "confirmed" medical neglect by S.G. and J.G. She relied on her own assessment of the resident, and on the medical assessments by Nurse Lyons, and by medical staff at the receiving nursing home, including a physician, Dr. Parsons.

   
   

2. The narrative "investigative conclusion" of Ms. Schirhman's report provides:

   
   

   Based upon the facts obtained during the course of this investigation, both alle- gations of medical neglect and other neglect were determined to be verified, and the case is being classified as CONFIRMED.

   [J.G. and S.G.] assumed the responsibility of care for [C.K.] and, therefore, became her caregivers. They did not provide the care and services necessary to maintain the physical and mental health of [C.K.] that a prudent

   person would deem essential for her well-being. She required medical services and nursing supervision in a skilled nursing facility.

   Pursuant to F.S. 400.426 "the owner or Admini- strator of a facility is responsible for determining the appropriateness of admission

   of an individual to the facility and for deter- mining the continued appropriateness of resi- dence of an individual in the facility." The assessment by the CARES nurse determined that [C.K.] was being medically neglected, because she required 24 hour nursing care, which she was not receiving. She had Scabies, for which she was not being treated.

   
   

   The CARES nurse believed that the alleged victim was at risk and requiring immediate nursing home placement. Allegation of "other neglect" was added to the original report. [C.K.] was being neglected, because she was a total transfer patient, who required restraints, which were not used and cannot be used in an ACLF. Furthermore, the potential for harm to her was great: She was blind, confused, and unable to self-preserve.

   
   

   (Petitioner's exhibit number 1 in cases number 89-4151C/89-6087C)

   
   

3. S.G. and J.G. requested expungement of the reports but the request was denied on July 10, 1989. Thereafter, through counsel, they made a timely request for a formal evidentiary hearing.

   
   

4. The hearing was conducted on February 14 and 15, 1990, by DOAH Hearing Officer, K.N. Ayers. Depositions of David J. Parsons, M.D. and Gideon Lewis,

   M.D. were filed after the hearing, by leave of the Hearing Officer.

   
   

5. In his recommended order issued on March 20, 1990, Hearing Officer Ayers found that the HRS investigators did not contact the physicians who had signed the admissions forms when each of the residents at issue had been admitted to the ACLF. Nor did the HRS staff obtain records from the home health agency which, at the treating physicians' direction, was providing, or had provided, home health care to most of the residents at Forest Haven.

   
   

6. Skin lesions (decubitus) and scabies were found to be frequently present in nursing home and ACLF residents. Edema and underweight conditions are also common in these residents.

   Dr. Lewis, the treating physician for most of the residents at Forest Haven, had ordered the vest restraint for T.M.'s protection. He had also written to HRS about a year prior to the survey, recommending that efforts be made to relocate

   H.L. to a skilled nursing facility.

   
   

7. The recommended order found that no evidence of exploitation or neglect, other than medical neglect, was presented at the hearing. The order also found that evidence of medical neglect by S.G. and J.G. was not presented, but rather, "[t]o the contrary, the evidence was unrebutted that Respondents [Petitioners in this proceeding] promptly reported to the resident's physician all changes in the resident's physical condition."

   
   

8. The agency's final order was filed on May 29, 1990, adopting the findings of fact and conclusions of law recommended by Hearing Officer Ayers, and granting J.G. and S.G.'s requests for expungement. The Final Order addressed the department's exceptions to the recommended order, as follows:

   
   

   RULING ON EXCEPTIONS FILED BY THE DEPARTMENT

   
   

   The dispositive issue is whether retention of a resident (or residents) in an ACLF whose medical condition is more serious than the established criteria for residence in an ACLF (see Section 10A-5.0181, Florida Administra- tive Code for the criteria) constitutes per se neglect under Chapter 415. Inappropriate retention of a resident may constitute grounds for disciplinary sanctions under the licensure rules, but it does not automatically consti- tute abuse under Chapter 415. See State vs.

   E. N. G., Case Number 89-3306C (HRS 2/13/90).

   
   

   The evidence of medical neglect was based on the inappropriate retention of certain resi- dents. The Hearing Officer's finding that these residents were not medically neglected is based on competent, substantial evidence; therefore, the department is obligated to accept this finding. Johnson vs. Department of Professional Regulation, 456 So2d 939 (Fla. 1st DCA 1981), B. B. vs. Department of Health and Rehabilitative Services, 542 So2d 1362 (Fla. 3rd DCA 1989).

   
   

9. In pursuing expungement, Petitioners incurred fees, costs and interest in the total amount of $22,772.49. The amount of interest included in that total is $1,000.91. As stipulated, the fees, up to the $15,000.00 statutory maximum, are reasonable.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to Subsection 57.111(4)(d), F.S.

11. Subsection 57.111(4)(a), F.S. provides,

    
    

    "Unless otherwise provided by law, an award of attorney's fees and costs shall be made to a prevailing small business party in any adjudicatory proceeding or administrative proceeding pursuant to Chapter 120 initiated by a state agency, unless the actions of the

    agency were substantially justified or special circumstances exist which would make the award unjust."

    
    

12. A proceeding is "substantially justified" if it had a reasonable basis in law and fact at the time it was initiated by a state agency. Subsection 57.111(3)(e), F.S.

    
    

13. The maximum award is $15,000.00, pursuant to Subsection 57.111(4)(d)2., F.S.

    
    

14. Petitioners in this proceeding are a "prevailing small business party".

    
    

15. Sections 415.101-.113, F.S., "The Adult Protective Services Act", establishes HRS' responsibility with regard to the investigation and maintenance of reports of abuse, neglect, or exploitation of disabled adults and aged persons.

    
    

16. "Neglect" is defined in Section 415.102(13), F.S. as

    
    

    ...the failure or omission on the part of the caregiver or aged person or disabled adult to provide the care and services necessary to maintain the physical and mental health of an aged person or disabled adult, including, but not limited to, food, clothing, medicine, shelter, supervision, and medical services, that a prudent person would deem essential for the well-being of an aged person or disabled adult.

    
    

17. Upon receipt of a report of alleged abuse, neglect or exploitation, the agency has 24 hours to commence its investigation and to determine the services necessary to safeguard the well-being of an alleged victim. Section 415.104(1), F.S. The investigation must be completed within 30 days with a determination that the report is "confirmed", "indicated" or "unfounded". Section 415.104(2), F.S. At the time relevant to this proceeding, a "confirmed" report was the appropriate classification when an adult protective services investigation determined that abuse, neglect or exploitation had occurred and the perpetrator was identified. Section 415.102(5), F.S. (1989).

    
    

18. A confirmed report will bar licensure of a facility in the absence of an exemption, as described in Section 415.107(5)(b), F.S.

    
    

19. The perpetrator identified in the confirmed report has the right to request expunction and, upon the agency's refusal, has the right to a Chapter

    120 administrative hearing where the agency must prove by a preponderance of the evidence that the perpetrator committed the abuse, neglect or exploitation.

    Section 415.103(3)(d), F.S. (1989). [In 1990, the law was changed to provide an administrative remedy prior to classification of a report as "confirmed". See Chapter 90-50, Laws of Florida]

    
    

20. From the above description of the process, it is apparent that the proceeding was "initiated" by the agency for the purposes of Section 57.111, F.S., not when the investigation began, but rather at the end of the investigation when the report was "confirmed" and administrative remedies were available.

    
    

21. It is this point at which it must be determined that the agency had a "reasonable basis in law or fact" to proceed. The agency has the burden of proving that defense, once the threshold issue of whether Petitioner is a "prevailing small business party" is affirmatively addressed. Department of Professional Regulation, Division of Real Estate v. Toledo Realty, Inc., 549 So2d 715 (Fla. 1st DCA 1989).

    
    

22. The fact that the agency lost its case does not raise a presumption that its position was not substantially justified. Nor does the agency need to show that it had a substantial probability of prevailing at the outset. See Ashburn v. U.S., 740 F 2nd 843 (U.S. 11th Cir. 1984). Resort to federal authority is appropriate when, as here, the state law is closely patterned after a federal law. Gentele v. Department of Professional Regulation, Board of Optometry, 513 So2d 672 (Fla 1st DCA 1987).

    
    

23. In Gentele, supra, the court upheld denial of attorney's fees when the agency was found to have reasonably relied on the credibility of its investigator.

    
    

24. The situation here is similar. The agency plainly relied on the investigative work of its staff. That staff found nine out of 22 residents in an ACLF in need of nursing home care, a level of care higher or more sophisticated than that ordinarily provided in an ACLF.

    
    

25. The investigation did not thoroughly research the residents' existing medical records. Those records, and the testimony of the treating physician were obviously persuasive evidence that the residents were not medically neglected by the ACLF owners.

    
    

26. Even had the investigation included review of those records, which were not available at the ACLF and did not accompany the residents to the nursing home, the agency might still have proceeded in this case.

    
    

27. Inappropriate admission and continued placement of an individual is the responsibility of the owner or administrator of an ACLF. Both investigative reports referenced section 400.426, F.S., which establishes that responsibility.

    
    

28. State v. E. N. G., Case number 89-3306C, is cited in the final order in this case for the principle that inappropriate retention of a resident may constitute grounds for disciplinary sanctions under the licensure rules, but it does not automatically constitute abuse under Chapter 415, F.S. The recommended order in E.N.G. was issued on 12/28/89, and the final order was entered on February 16, 1990, near the same time as the formal hearing in this case.

    E.N.G. established an agency policy that something more than mere inappropriate placement would be required for a confirmation of neglect by a facility.

29. E.N.G. is also dissimilar to the instant case. E.N.G. involved one resident whose physician and relatives had affirmatively determined would be properly cared for in an ACLF with the assistance of a hospice nurse. That nurse, an RN with a hospice organization, provided weekly nursing care. The record is less specific with regard to the frequency and type of care provided to the multiple residents at Forest Haven.

    
    

30. The agency has met its burden of proving that it had a reasonable basis in law and fact at the time that it initiated the proceeding in Cases number 89-4151C/89-6087C.

ORDER

Based on the foregoing, it is hereby, ordered Petitioners' request for attorneys fees and costs is denied.

DONE AND ORDERED this 15th day of January, 1991, in Tallahassee, Leon County, Florida.

MARY CLARK

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 January, 1991.

APPENDIX TO FINAL ORDER, CASE NO. 90-4691F

The following constitute specific rulings on the findings of fact proposed by the parties.

Petitioners' Findings of Fact

Findings of Fact number 1-10 have been substantially adopted herein.

Findings number 11-56 address evidence in the record of the expungement proceeding. That evidence, in the form of findings by the Hearing Officer in that proceeding, is summarized in paragraph 3, or is otherwise determined unnecessary in this proceeding. Finding number 57, that the agency's action did not have a reasonable basis in law and fact at the time it was taken by HRS is specifically rejected as contrary to the law and facts.

Respondent's Findings of Fact

Findings of Fact number 1-4 have been substantially adopted herein.

Findings number 5-11 address evidence in the record of the expungement proceeding. That evidence is adopted in part in paragraph 3, or is otherwise determined unnecessary.

COPIES FURNISHED:

Linda L. Parkinson, Esquire HRS-District 7 Legal Office South Tower, Suite S-827

400 W. Robinson Street Orlando, FL 32801

Jonathan S. Grout, Esquire

P.O. Box 1017

Tallahassee, FL 32302-1017

R.S. Power, Agency Clerk HRS

1323 Winewood Blvd.

Tallahassee, FL 32399-0700

Linda K. Harris General Counsel HRS

1323 Winewood Blvd.

Tallahassee, FL 32399-0700

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULE OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

Docket for Case No: 90-004691F

Orders for Case No: 90-004691F