STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRESTVIEW NURSING AND )

CONVALESCENT CENTER, )

)

Petitioner, )

)

vs. ) CASE NO. 93-0915

)

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Respondent. )

) THE BLUFFS, INC., d/b/a )

THE BLUFFS NURSING HOME, )

)

Petitioner, )

)

vs. ) CASE NO. 93-1542

)

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, P. Michael Ruff, in Pensacola, Florida.

APPEARANCES

For Petitioner: Jonathan S. Grout, Esquire

GOLDSMITH & GROUT, P.A.

307 West Park Avenue Post Office Box 1017

Tallahassee, Florida 32302-1017

For Respondent: Gordon B. Scott, Esquire

Agency for Health Care Administration 1317 Winewood Boulevard

Building Six, Room 271 Tallahassee, Florida 32399-0700

STATEMENT OF THE ISSUE

The issue to be resolved in this proceeding concerns whether the Petitioners may recover certain costs expended for hiring additional staff, related to patient care and operating changes allegedly made to comply with existing state or federal statutes or rules, by means of the requested interim rate increases.

PRELIMINARY STATEMENT

This action arose upon the filing of a request for interim rate increases with the Agency for Health Care Administration (AHCA), which were partially denied. Timely petitions for hearing to challenge the agency action which denied part of the rate increase request were filed on behalf of the above-named Petitioners (Crestview and The Bluffs). The petitions were duly transmitted to the Division of Administrative Hearings and came on for hearing before the undersigned Hearing Officer.

The cause came on for hearing as noticed. The Petitioners presented the testimony of Lois Petty, who was accepted as an expert in quality assurance for nursing homes, the provision of patient and nursing care, and nursing home administration. Ray Bolt testified for the Petitioners as an expert in medicare and medicaid reimbursement and nursing home accounting. The testimony of David Pagano was admitted by stipulation. The parties stipulated to the admissibility of 12 exhibits which were received into evidence, with the exception of the conclusions drawn in the "Sherrill letters," appearing in exhibits 1, 2, 8 and 9, which were not stipulated nor considered in evidence. The parties further stipulated that the Petitioners' requested changes in rates were at least

$5,000.00 in amount and that the changes would have caused a change of 1 percent or more in each of the Petitioners' current total "per diem rate" for medicaid reimbursement purposes.

The Respondent presented the testimony of Gloria Gonzales and Frank Hughes.

The Petitioner presented the testimony of Ray Bolt and Lois Petty on rebuttal, as well.

The parties ordered a transcript of the proceedings and with the granting of requested extensions by agreement of the parties, submitted timely proposed findings of fact and conclusions of law in the form of Proposed Recommended Orders. Those findings of fact are addressed and ruled upon in this Recommended Order and in the Appendix attached hereto and incorporated by reference herein.

FINDINGS OF FACT

1. The Respondent, Agency for Health Care Administration (AHCA), as successor-in-interest to the Department of Health and Rehabilitative Services, is the state agency responsible for administering the Florida medicaid program. The nursing home section of the medicaid cost reimbursement division is responsible for setting the rates for Florida nursing homes. That section is also responsible for granting or denying interim rate requests.

   
   

2. The office of licensure and certification (OLC), a division of the Agency for Health Care Administration, provides overall regulation for the nursing home industry in the State of Florida.

3. The Petitioners were licensed by the State of Florida as nursing homes and certified for participation in the Florida medicaid program at all pertinent times. The Petitioner, Crestview Nursing and Convalescent Center (Crestview), is a 180- bed nursing home certified to and participating in the Florida medicaid program. It is located in Crestview, Florida. The Petitioner, The Bluffs, Inc., d/b/a The Bluffs Nursing Home (The Bluffs), is a 120-bed nursing home certified to and participating in the Florida medicaid program. It is located in Pensacola, Florida.

   
   

4. The Florida medicaid Title XIX nursing home plan (reimbursement plan) is a prospective plan. Costs incurred in a cost-reporting period are submitted on a cost report. Medicaid reimbursement rates based upon such cost reports are then limited by a "target rate" which is facility specific. The target rate is based upon the previous semester's rate times 1.50 of the inflationary factor for that time period in the medicaid program- mandated formula. The nursing home then receives the lower of the costs actually incurred plus the true inflation factor or the nursing home target rate.

   
   

5. It happens on occasion that a nursing home may incur additional costs for patient care or operating changes in a particular reporting period, as a result of complying with existing state or federal laws or regulations. In order for the nursing home not to suffer financially due to these additional costs, the reimbursement plan has an allowance for an interim rate increase request. If the interim rate provision were not in the reimbursement plan, the nursing home would never be able to fully recover the increased costs because of the prospective nature of the reimbursement plan and the restrictions of the target rate calculation. Thus, if Crestview and the Bluffs were not permitted an interim rate increase, they would lose the cost coverage from the medicaid program for subsequent years because the reimbursement rates are based upon the previous years' costs and are limited by the target rate calculation. The parties have stipulated that Crestview and The Bluffs have met the threshold requirements set out for an interim rate increase since the costs for which reimbursement is requested are at least $5,000.00 of increase and because the requested rate change would be 1 percent or more of the provider's total per diem rates.

   
   

6. Crestview was cited by AHCA's OLC for repeat deficiencies in the areas of nutritional care and related weight loss by residents, decubitus care, and restraints utilization, in surveys conducted by that agency in July of 1991, November of 1991, and two surveys in February of 1992. These citations were for quality of care conditions recognized by the inspectors, as well as Lois Petty, director of nursing services for Crestview, as constituting violations of state and federal laws, rules and standards. Crestview maintains that it attempted to correct the cited violations by utilizing its existing staff, but was unsuccessful, and contends that it would not have been possible to come into compliance with the state and federal laws involved concerning quality of care without the costs of the additional staff that it hired and for which it seeks the interim rate increase. Scant evidence was presented to establish what the efforts to come into compliance using existing staff consisted of, however. There is no question that there were significant violations of relevant regulations in the areas found during the AHCA surveys concerning quality of patient care, referenced above.

   
   

7. It is significant to note, however, that in the years immediately prior to the year of the beginning of the relevant surveys (1991) or, in essence, from 1987 through 1990, the Crestview facility enjoyed a superior or standard rating with the same numerical staff complement. This indicates that a great deal of

   inadequacies in quality of patient care resulted from personnel management and operational management problems at the facility, rather than merely that the staff in the relevant nursing positions was numerically inadequate.

   Corollarily, it is equally noteworthy that no inadequacies in numbers of staff and the required staff positions was noted by the surveyors. Crestview, both before the surveys were made and during the surveys, was staffed with more than the minimal staffing requirements and staff positions provided for in Title 10D, Florida Administrative Code. It thus cannot be found that all of the staff members hired by Crestview in response to the surveys and deficiencies noted by AHCA were necessary to come into compliance with the state and federal laws involved. Some additional staffing was necessary for this purpose however, because of the recent increase in resident population.

   
   

8. After the November, 1991 survey by AHCA, Crestview added two licensed practical nurse (LPN) positions in response to the deficiencies cited by AHCA and based upon Ms. Petty's observations. The primary functions of one of the LPNs was to monitor and evaluate restraint use, and the other LPN position was created to address the nutritional status of the residents, including monitoring the dining room, meal intakes, and assuring that dietary supplements were given. These two positions were approved by the agency, as set forth in Mr. Hughes' letter of September 9, 1992. Mr. Hughes is the agency official charged with approving interim rate requests. These two positions were approved September 9, 1992.

   
   

9. Crestview added a third nurse position to address the problem of decubitus or "pressure sores" experienced by many residents in the nursing home. This nurse was to monitor the new pressure sore prevention program instituted by Crestview, doing skin observation "rounds" and skin reports. The nursing home had been cited by AHCA for its high decubitus rate and lack of proper treatment of the pressure sores. Ms. Petty opined that the nurse position was needed in order to attend to the significant decubitus rate and to bring the facility into compliance with state and federal laws.

   
   

10. Crestview also hired seven certified nursing assistants (CNA). The Department, in granting interim rates, allowed for the equivalent of three of those positions at the cost that Crestview attributed to those positions, as set forth in Mr. Hughes' letter of September 9, 1992. That cost represents the cost for hiring such personnel at the contract nursing pool rate obtainable through the nursing home operation consulting firm which Crestview retained and paid and for which expense it also sought interim rate reimbursement increases. In fact, the amount allowed for three such positions and the two nurse positions by the agency, in its free-form decision by Mr. Hughes, would actually pay for all of the positions sought for rate approval by Crestview if they were paid at what Mr. Hughes established to be a reasonable cost level, meaning what a "prudent and cost- conscious buyer" seeking to hire such personnel in the nursing home industry would typically pay for such a given service. The seven CNA positions were created by Crestview to provide the resident care services and functions depicted in paragraphs 13-16 of the Petitioners' proposed findings of fact and shown by Ms. Petty's testimony. Crestview maintains that these positions were created so as to bring the facility into compliance with the state and federal laws addressing the various quality of care deficiencies for which the facility was cited by AHCA. It was not proven, however, for the reasons found above, that, indeed, all of those positions were necessary in order to bring the facility into such compliance.

11. It has not been demonstrated by a preponderance of the evidence that the five equivalent positions approved by the Department for Crestview would not have been sufficient to bring the facility into compliance with existing state or federal laws, rules or standards. In fact, sufficient evidence was not adduced to establish that proper performance by the director of nursing, in supervising personnel and operations of the facility, by the facility's administrator, and the entity owning and managing the facility, could not have brought the facility into compliance with pertinent laws and standards with little or no additional staff. The facility had enjoyed superior or standard ratings without the additional staff in the years immediately prior to the year in which the problems were found.

    
    

12. In any event, Mr. Hughes's testimony, and to some extent, that of Ms. Gonzales, as well as the testimony of the Petitioner's witnesses upon cross- examination, establish that the five position equivalencies approved by the Department would be sufficient to bring Crestview into compliance with pertinent laws and rules, especially in view of the testimony of Mr. Hughes, which is accepted, that the amount approved for the positions would, in reality, fund all ten positions requested if the nursing home hired them at ordinary, reasonable and accepted rates in the industry, rates commonly approved by the medicaid system and plan. Crestview contends that because of the isolated and small labor market for such nursing personnel in the Crestview vicinity, it had to resort to the nursing home consulting firm and "nursing pool" in order to obtain, at the contract costs proposed, the nursing personnel in question. The Petitioners' evidence does not establish that it made significant efforts to hire the personnel itself, at the rates which the Department showed are ordinary and reasonable, without resort to the greater cost attributable to obtaining personnel through the consulting firm and contract nursing labor pool. Consequently, a preponderance of the evidence establishes that the interim rate request approval level determined by the Department in the free-form stage of this dispute is, indeed, an appropriate level under the circumstances established by the evidence of record. This is particularly appropriate because of the finding by the agency, established in this record, that an across-the- board wage increase of over $100,000.00 had been granted its employees by Crestview in the summer of 1992, shortly before the interim rate increase request was submitted. The interim rate increase request was not submitted until Crestview also became liable for significantly-increased costs for contract pool labor, which began to increase in June and July of 1992.

    
    

13. In fact, all of the personnel contended by Crestview to be necessary had been hired and on the job since March of 1992 and yet the interim rate increase was not applied for until after the contract labor costs and the wage increases occurred. The agency thus granted an interim rate increase of some

    $223,000.00 out of approximately $500,000.00 requested, which was shown to cover the cost of ten regularly-compensated personnel of this type, based upon the reasonable cost basis for that kind of labor, as shown by the testimony of Mr.

    Hughes. The medicaid reimbursement plan only pays "allowable costs", which are those costs shown by Mr. Hughes, which should not exceed what a prudent and cost-conscious buyer would pay for a given service.

    
    

14. The Bluffs was cited by the OLC to be deficient under licensure regulations for failing to properly document injuries to various residents and for failing to document decubitus ulcers (pressure sores) and nutritional problems among the nursing home residents. The deficiencies cited did not include any determination by the surveyors that additional staff was needed. Although the deficiencies involved record-keeping errors, whereby The Bluffs was failing to document and track residents with decubitus ulcers and residents with

    weight-loss problems, if a nursing home is not adequately tracking and recording such problems, then it tends to overlook and fail to adequately treat them. The lack of proper records concerning decubitus ulcers and nutritional deficiency makes it difficult to institute and consistently follow a treatment regimen for the decubitus ulcers and the weight loss problems and a consistently-effective prevention program, involving "skin rounds" and regular "turning" of patients who are unable to turn over in bed. The Bluffs was not cited for failing to treat pressure sores but, rather, for failure to document their presence, which can make it difficult to consistently monitor and treat them.

    
    

15. Both before and after the citations, The Bluffs employed a director of nursing who is responsible for ascertaining that residents' injuries, weight loss, or decubitus ulcer problems are documented and that treatment therefor is obtained. Although The Bluffs was not directly cited for failing to maintain good nutritional status or because residents had pressure sores, the testimony of Ms. Petty establishes that the facility was not in compliance with existing state or federal laws, rules or standards in the area of maintaining good nutritional status and insuring that residents were receiving necessary treatment to promote healing and prevention of pressure sores.

    
    

16. In the belief that it was unable to correct the deficiencies with its existing staff, The Bluffs hired a registered nurse (RN), an LPN, and a CNA. The CNA position was created to obtain weights and to assist with the feeding, including supplements, to offer alternatives for nourishment to residents, as well as to assist with daily skin rounds and to assist with the "positioning program" in order to bring the facility into compliance in the view of The Bluffs, concerning deficiencies in nutritional care and decubitus care. An LPN position was created in order to take care of the nutritional status of the residents, to assess weight variances in residents, to monitor meal and nourishment intake and also to act as a dining room supervisor. This position was created, according to The Bluffs, in order to bring the facility into compliance with good nutritional status for the residents and to address the problem of pressure sores.

    
    

17. The Bluffs also created an RN position, responsible for the pressure sore prevention program and treating existing decubitus. This person makes daily skin rounds on all residents and is responsible for identifying those at risk of developing decubitus and assessing and evaluating the process of healing and notification of physicians if treatment alternatives are needed. This person is also responsible for monitoring the positioning program to make sure that the residents are placed in proper positions and that pressure-relieving devices are employed. This RN also does weekly assessments of pressure sores.

    
    

18. In response to the deficiencies cited and those observed by Ms. Petty, there was developed at The Bluffs and Crestview a pressure sore positioning program and a meal monitoring program. There is no doubt, as shown by the testimony of Ms. Petty, that there was a serious problem with the provision of patient and nursing care to the residents at each facility.

    
    

19. The Petitioners each were given conditional licenses after the initial inspection and notice of deficiencies. After the addition of the above- mentioned personnel and program corrections The Bluffs has brought its rating up to a standard rating. It will likely achieve a superior rating on its license this upcoming year. Crestview has moved from a conditional rating to a superior rating. The Petitioners maintain that the individuals hired at the facilities were hired prior to the request for an interim rate increase, have been maintained during the time of that increase request and are full-time positions.

    It was not shown, however, that the positions added at The Bluffs actually were required to be hired in order for the facility to maintain compliance with state or federal laws, rules, and relevant standards. While there is no doubt that the addition of these personnel and the hiring of the quality assurance consulting firm, at $6,000.00 per year, helped bring the two facilities into compliance with existing laws and included the imposition of systems devised by the consulting firm designed to provide training for the staffs, it was not actually demonstrated to be required in order to bring the facilities into compliance. The record reveals, as was the case with Crestview, that The Bluffs enjoyed superior or standard ratings in the years immediately prior to the year when the deficiencies were noted in the survey. It was not demonstrated by preponderant evidence that the standards became significantly more stringent in the year when the deficiencies were found. There is evidence from which an inference can be drawn that the director of nursing and the administration of the nursing home at The Bluffs was not managing and operating the facility correctly and efficiently in terms of nutrition and prevention and treatment of decubitous ulcers. All of these duties, which were assigned to the three new personnel in order to remove the "cloud" on The Bluffs' license, were duties that existing staff were required to perform in the first place. The evidence reveals, given the prior superior ratings, with the same original amount of staff, that had The Bluffs' staff been managed and trained properly, the deficiencies would not have occurred. If there was a problem with individual staff members, including the director of nursing, then those people could be removed from the staff complement, moved to other positions or simply trained and admonished in how to perform their job correctly so as to prevent the referenced deficiencies. It was not shown that the additional staff to correct the deficiencies was actually necessary in order to bring the facility into compliance with relevant law. The additional staff no doubt had that effect; but the extra expense to alleviate the deficiencies by that method, including the fee paid to the consulting firm, was not justified. Consequently, the interim rate increase for The Bluffs should be denied.

    
    

    CONCLUSIONS OF LAW

    
    

20. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

    
    

21. The burden of proof in an administrative proceeding is on the party asserting the affirmative of the issue before the Hearing Officer or other tribunal. See, Department of Transportation v. JWC Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981); Balino v. Department of Health and Rehabilitative Services,

    348 So.2d 349 (Fla. 1st DCA 1977). The burden of proof in this proceeding is thus on the Petitioners to establish their entitlement to the interim rate increases. The Petitioners have not met that burden.

    
    

22. Pursuant to the Respondent's statutory authority, Rule 10C-7.0482, Florida Administrative Code, was adopted, incorporating by reference the "Title XIX Long Term Care Reimbursement Plan," which states in pertinent part:

    
    

    Interim rate changes reflecting increased costs occur as a result of patient care or operating changes should be considered only if such changes were made to comply with existing state or federal rules, laws or standards. If a change in cost to the provider is at least

    $5,000.00, it would cause a change of 1 per- cent or more in the provider's current total per diem rate.

    
    

    Interim rate requests . . . must be submitted within 60 days after the costs are

    incurred. . . .

    
    

23. The parties have stipulated that the Petitioners' requested rate changes meet the above threshold amounts. Therefore, at issue is the requirement that the rate request be based upon additional costs for patient care incurred "to comply with existing state or federal rules, laws or standards. "

    
    

24. The interim rate increase will be considered and granted if the increased costs upon which it is based are attributable to patient care and needed to bring the facility into legal compliance. The Bluffs was cited for failing to document residents' conditions and technically not for failing to provide appropriate care. Thus, the Department maintains that the increased costs represented by the rate increase are not attributable to patient care because the citations for deficiencies only related to record-keeping and not patient care itself. The Department's position begs the question, however. There is no question that both The Bluffs and Crestview had substantial problems with patient care in the areas of nutrition and decubitus ulcers. There is no question that both nursing homes and their administration quite responsibly added the staff involved in the rate increase costs in order to improve patient care and that that patient care level did improve in the areas underlying the noted record-keeping deficiencies at The Bluffs and the care deficiencies noted at Crestview. However, as noted in the above Findings of Fact, although the additional staff and the performance of their duties did apparently improve patient care, bringing The Bluffs into compliance with state and federal law concerning the quality of care, the additional staff members were not shown to be other than a convenient way to address the problems involved in the survey and the quality of care level at The Bluffs. It was established that The Bluffs, as well as Crestview, was not minimally staffed at the time the surveys were made and deficiencies noted. Moreover, with the staff level prevailing at that point, both facilities had earned superior or standard ratings in the years immediately past. There was no showing in the record that the standards for patient care or quality had changed markedly in the year of the survey, so that that could be, itself, a basis for the two facilities not measuring up to appropriate quality of care standards with the same original staff complement.

    
    

25. It appears likely, especially in the case of The Bluffs, that the quality of care problems stemmed not from the existing staff being of inadequate size but, rather, that the staff was failing to adequately perform its duties, in terms of detecting and securing treatment for decubitus ulcers and insuring that proper nutrition was maintained. The problems at The Bluffs were shown largely to be the responsibility of the director of nursing and her supervisor. It was her responsibility to see that records were properly documented and maintained. Her failure to keep the records, which was proven, or to supervise the keeping of records, led to the deficiency citations themselves and the lack of efficiency with which her job, and that of those reporting to her, was conducted led to the quality of care lapses concerning the residents involved, to which the record-keeping deficiencies were related. Thus it was not shown, in the case of The Bluffs, that additional staff members needed to be hired to correct the problems prevailing at the facility at the time of the survey. Rather, replacement of staff members who were not adequately performing, re-

    training or closer monitoring of the performance of their duties by their supervisors, given the past good record of the facility with the same number of staff members, would likely have alleviated the deficiencies, without the increased cost of adding the staff members discussed in the above Findings of Fact. Thus, it cannot be concluded that the staff members were added necessarily in order to comply with the existing state or federal laws and standards concerning quality of care, so as to justify an interim rate increase for The Bluffs.

    
    

26. Crestview, as noted in the above Findings of Fact, requested an interim rate increase to cover the cost of additional staff, as well. Because it was cited for numerous quality of care deficiencies, it claimed the additional staff of three LPNs and seven CNAs was necessary to bring the nursing home into compliance with existing state or federal rules, laws or standards. The additional staff was in place by the end of March of 1992 at Crestview. However, Crestview did not request an interim rate increase until August, which is more than 60 days from when it incurred the cost of the additional staffing. The Florida Title XIX Long Term Care Reimbursement Plan provides that interim rate increase requests must be submitted within 60 days after the costs are incurred. The agency takes the position, however, that some of the funds for the additional staffing are necessary and acceptable for the reason of bringing the facility into compliance with relevant state or federal law and has essentially waived objection to the non-timeliness of the rate request filing by Crestview.

    
    

27. Crestview had granted an across-the-board wage increase in the amount of over $100,000.00 for its staff members, immediately prior to seeking the subject interim rate request in August of 1992. The Crestview data submitted with the rate increase also showed that there were cost increases for approved contract nursing labor which were incurred during the months of June and July of 1992. However, neither of those items of increased costs are attributable to increased costs for patient care incurred to bring the facility into compliance with existing state and federal law. The evidence showed that Crestview did require some additional staff because of the high acuity of many patients and the recent increase in patient population. The Department takes the position that some additional staff is properly the subject of an interim rate increase for those staff members hired by the end of March, as described in the findings of fact.

    
    

28. Through Mr. Hughes, the agency established that a rate increase should only cover the cost of an additional ten regularly-compensated people (or the five referenced above, if at the requested cost rate). It was not shown to be necessary or required, in order to bring the facility into compliance with state or federal law, concerning patient care, that the nursing home resort to higher priced contract pool labor and that it grant the across-the-board wage increase and seek to recover it in increased rates for ten such staff positions, as well as the consulting firm fee. It was not shown by the Petitioner Crestview that those interim increases, because of those increased costs, were incurred simply to comply with existing state or federal laws, rules or standards.

    
    

29. The above Findings of Fact, based upon the preponderance of evidence of record show that the nursing home did not establish sufficient efforts to hire regular staff members, at regular compensation levels, as opposed to contracting for them, nor that the consulting fees for the private consulting firm, which orchestrated the improvement in quality of care for the nursing home, was actually necessary in order to bring the facility into compliance with state and federal law. In summary, however, the testimony of Mr. Hughes and, to

some extent, the testimony of Ms. Petty, supports an additional allowance for labor costs for ten additional full-time employees only compensated at regular compensation rates which are allowable by medicaid being the costs a prudent and conscious buyer would pay for those services. The testimony of Mr. Hughes shows that the $233,000 cost allowance for Crestview is reasonable under these guidelines and standards and it was not rebutted by substantial, preponderant evidence by the Petitioners.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is

RECOMMENDED that a Final Order be entered denying the interim rate request by The Bluffs Nursing Home and granting a rate increase to Crestview Nursing and Convalescent Center in the amount and in the manner found and concluded above.

DONE AND ENTERED this 1st day of April, 1994, in Tallahassee, Florida.

P. MICHAEL RUFF Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 1st day of April, 1994.

APPENDIX TO RECOMMENDED ORDER, CASE NOS. 93-0915 AND 93-1542

Petitioners' Proposed Findings of Fact 1-8. Accepted.

1. Rejected, as subordinate to the Hearing Officer's findings of fact on

   this subject matter and as not supported by the preponderant evidence of record.

2. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter.

3. Accepted, to the extent that it depicts the duties of the additional nurse and Ms. Petty's view of the necessity but subordinate to the Hearing Officer's findings of fact on this subject matter.

4. Accepted, but not to the extent that it is a finding that all seven CNAs were necessary.

13-16. Accepted, to the extent that these findings of fact depict what the duties of the personnel hired were, but not to the extent that it establishes that all were necessary to bring the facility into legal compliance.

1. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and as not being supported by the preponderant evidence of record.

2. Accepted.

3. Rejected, as not being supported by the preponderant evidence of record.

20-24. Accepted, but not to the extent that it is found that the positions were actually necessary in order to bring the facility into legal compliance.

1. Rejected, as contrary to the preponderant weight of the evidence and the Hearing Officer's findings of fact on this subject matter.

2. Rejected, as contrary to the preponderant weight of the evidence and subordinate to the Hearing Officer's findings of fact on this subject matter.

3. Accepted, but not itself dispositive of any material issues. 28-30. Accepted.

31. Rejected, as not being in accordance with the preponderant weight of the evidence.

32-33. Accepted.

1. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and not entirely supported by the preponderant evidence of record.

2. Accepted, as to the motivation of the nursing home administration in terms of why the hiring was done but not to the extent that it is agreed by the Hearing Officer that the hiring was necessary.

3. Accepted.

4. Rejected, as contrary to the preponderant weight of the evidence and the Hearing Officer's findings of fact on this subject matter.

5. Rejected, as contrary to the preponderant weight of the evidence and subordinate to the Hearing Officer's findings of fact on this subject matter.

39-40. Accepted.

40-48. Accepted, but not necessarily as to the material import advanced by the Petitioners.

49. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter.

Respondent's Proposed Findings of Fact

1-22. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter.

23-33. Accepted.

COPIES FURNISHED:

Jonathan S. Grout, Esquire GOLDSMITH & GROUT, P.A.

307 West Park Avenue Post Office Box 1017

Tallahassee, Florida 32302-1017

Gordon B. Scott, Esquire

Agency for Health Care Administration 1317 Winewood Boulevard

Building Six, Room 271 Tallahassee, Florida 32399-0700

Sam Power, Agency Clerk

Agency for Health Care Administration The Atrium, Suite 301

325 John Knox Road Tallahassee, Florida 32303

Harold D. Lewis, Esquire General Counsel

Agency for Health Care Administration The Atrium, Suite 301

325 John Knox Road Tallahassee, Florida 32303

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the agency written exceptions to this Recommended Order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the Final Order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 93-000915

Orders for Case No: 93-000915