STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LAURENCE ARTHUR BAIRD, )

)

Petitioner, )

)

vs. ) CASE NO. 93-4844

)

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

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Michael M. Parrish, conducted a formal hearing in this case on October 22, 1993, at Fort Lauderdale, Florida. Appearances for the parties were as follows:

APPEARANCES

For Petitioner: Karen L. Goldsmith, Esquire

Goldsmith & Grout, P.A. 2709 West Fairbanks Avenue Post Office Box 2011

Winter Park, Florida 32790-2011

For Respondent: Arthur R. Wiedinger, Esquire

Assistant Attorney General Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUE

The basic issue in this case is whether the Petitioner, Laurence Arthur Baird, is entitled to be licensed by endorsement as a Nursing Home Administrator.

PRELIMINARY STATEMENT

At the formal hearing in this case, the Petitioner testified on his own behalf and the Respondent presented the testimony of Marjorie Walsh by deposition. The parties also offered joint exhibits 1 through 3, which were received in evidence. Official recognition was also requested and granted with regard to various statutory and rule provisions from other states. The parties also stipulated to several facts.

No transcript was ordered in this proceeding. The parties requested, and were granted, seven days within which to file their proposed recommended orders. Both parties filed timely proposed recommended orders containing proposed findings of fact and conclusions of law. Specific rulings on all proposed findings of fact submitted by all parties are contained in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. On March 3, 1993, the Petitioner, Laurence Arthur Baird, filed his application for licensure by endorsement to sit for the Nursing Home Administrators examination and subsequently to be licensed as a Nursing Home Administrator by the Board of Nursing Home Administrators. The application was complete and was timely filed. The appropriate fee was paid.

   
   

2. Mr. Baird holds current active licenses to practice as a Nursing Home Administrator in Georgia and Illinois.

   
   

3. Mr. Baird has a high school diploma. In addition, Mr. Baird completed over four semesters at Milliken University. He has also secured additional hours at Jacksonville University, has received CLEP credit in five course areas, and has secured a number of continuing education hours in areas relative to nursing home administration. He has spent over 600 hours in continuing education since his initial licensure. He also passed the GMAT examination which is a prerequisite to admission to many M.B.A. programs.

   
   

4. The University of Alabama considered Mr. Baird's undergraduate career, his CLEP scores, his GMAT score, and his life experiences and concluded that Mr. Baird was qualified for graduate studies in its M.B.A. program. Mr. Baird completed 42 hours toward an M.B.A. degree.

   
   

5. Mr. Baird has formal education in the following areas:

   
   

   1. Nursing Home Administration; including planning, organization, operations and services, resource development, supervision of staff, and control and evaluation of facility performance.

   2. Personnel Management; including managing people for the specific needs of the long-term care facility, recruitment and selection, orientation, training and development of employees, development of employee appraisal programs, communications, wage and salary administration, union procedures and

      employee-management relations, discipline and morale.

   3. Accounting and Financial Management; including basic accounting, adjustment of accounts, preparation of financial statements, financial management planning, effective use

      of resources, financial performance evaluation, cost analysis, reimbursement from the United States Department of Health and Human Services under Medicare and Medicaid, and budgeting.

   4. Social Gerontology; including biology of aging, psychology of aging, changing social roles of aging, personal adjustment to aging,

      programs for health improvement and rehabilitation, financial aspects of aging, retirement, independency and dependency of aging persons, societal disengagement, impact of living arrangements and interaction between the needs of the institution and the needs of the patients.

      
      

6. Mr. Baird has practiced as a Nursing Home Administrator since 1970. Mr. Baird has attained many years of experience in all of the areas mentioned immediately above. A review of Mr. Baird's work experience includes the following details:

   
   

   1. In 1970 Mr. Baird participated in and fully completed an AIT program. He then became assistant administrator at a facility in Decatur, Georgia.

   2. From 1970 to 1972 he was administrator of a 102-bed facility in Champaign, Illinois.

   3. From 1972 to 1977 Mr. Baird was administrator of a 165-bed facility. During that time the company built a second 65-bed facility and Mr. Baird oversaw both.

   4. From 1977 to 1988 Mr. Baird was administrator of a 209-bed facility. In 1979 Mr. Baird purchased a 65-bed facility and, until its sale in 1987, oversaw both of them.

   5. In 1988, Mr. Baird took the position of Director of Operations at Pruitt Corporation. Initially, he was responsible for the operation of 17 nursing home facilities. He was promoted to Vice President of Operations and, later, to Senior Vice President of Operations. At the time he left Pruitt,

      he was responsible for 30 facilities.

   6. He resigned from Pruitt to move his family to Florida to take a position at Beacon Pointe in Sunrise.

   7. During the last five years he was with Pruitt, he acted in the capacity of administrator for at least two years.

      
      

7. Mr. Baird has distinguished himself as a Nursing Home Administrator by being nominated for Nursing Home Administrator of the year in 1976 in Georgia and by winning the equivalent award in Alabama in 1984. For five years Mr. Baird served on a board in the State of Alabama which advised the state on nursing home licensure matters. He chaired that board for one year. He also served three years on a Georgia advisory board on Medicaid.

   
   

8. Mr. Baird is a member of the American Academy of Nursing Home Administrators. He has been certified as an administrator by that body, after passing a rigorous two-day examination. He served as the regional governor of the American Academy of Nursing Home Administrators.

   
   

9. Mr. Baird has successfully completed a national examination which is substantially equivalent to the examination given by the department.

10. Mr. Baird has worked as a fully licensed Nursing Home Administrator for two years within the five year period immediately preceding the application by endorsement.

    
    

11. The Board's Order of Denial filed on July 9, 1993, included the following pertinent language:

    
    

    The Board of Nursing Home Administrators reviewed and considered your application for licensure by endorsement on May 14, 1993, in Miami, Florida and has determined that said

    licensure be denied, stating as grounds therefore:

    Your application and supporting documentation do not evidence that the licensure requirements for Georgia or Illinois are substantially equivalent to those in Florida.

    
    

12. In the State of Georgia the rules and regulations governing qualifications for licensure as a Nursing Home Administrator include the following:

    
    

    393-3-.01 Pre-Examination Requirements. Amended. A person who seeks licensure by examination as a nursing home administrator must show the following:

    1. be at least 21 years of age;

    2. be of reputable and responsible character; and

    3. meet one of the following education and experience requirements:

    1. Have earned a master's degree in Nursing Home Administration, in Health Care Administration or in a related health care administration field from an accredited institution of higher learning. If the master's degree did not include an Administrator-In-Training (AIT) program as provided in Rule 393-4-.04, the applicant must either have completed an AIT program as provided in Chapter 393-4 or the applicant must have attained two years of employment working in a nursing facility.

    2. Have earned a baccalaureate degree from an accredited institution of higher learning and have completed AIT program as provided in Chapter 393-4; or earned a baccalaureate degree from an accredited institution of higher learning and have attained two years of employment working in a nursing facility.

    3. With less than a baccalaureate degree, the applicant must have either:

    1. 3 years of college plus 2 years of full time work experience;

    2. 2 years of college plus 4 years of full time work experience;

    3. 1 year of college plus 6 years of full time work experience; or

    4. a High School Diploma or GED certificate plus 8 years of full time work experience; provided that:

    1. One year of college means 45 quarter hours or 24 semester hours of course work at

       an accredited institution of higher learning; and

    2. Full time work experience means a minimum of 35 hours per week in a licensed nursing facility.

    
    

13. In the State of Illinois the statutory provisions governing qualifications for licensure as a Nursing Home Administrator include the following:

    
    

    70/8. Qualifications

    Sec. 8. A person is qualified to receive a license as a nursing home administrator: (a) who is at least 21 years of age, (b) who has not engaged in conduct or behavior determined to be grounds for discipline under this Act,

    (c) who is in sound physical and mental health, (d) who is a citizen of the United States or lawfully admitted alien, (e) who is a graduate of a college or university deemed reputable and in good standing by the Department, or who has satisfactorily completed a course of instruction approved by the Department containing subjects embracing the laws governing the operation of nursing homes, the protection of the health and safety of patients in nursing homes and the elements of sound nursing home administration, or who presents evidence to the Department of education, training and experience deemed by the Department to be equivalent of either of the above, (f) who passes a written examination conducted by the Department to determine his fitness to receive a license as a nursing home

    administrator and (g) who pays the required fee.

    
    

14. The Illinois Administrative Code includes the following requirements at Section 1310.30(a)(2) regarding the contents of applications for licensure as a Nursing Home Administrator:

    
    

    (a) An applicant for a license as a nursing home administrator shall file an application on forms supplied by the Department . . . together with:

    (1) ***

    1. Certified records of any one of the following:

       1. Graduation from an accredited college or university with the minimum of a Baccalaureate Degree;

       2. Satisfactory completion of an approved course of instruction in nursing home administration as outlined in Section 1310.40; or

       3. Graduation from an accredited college or university with the minimum of an Associate Degree and an Employer's Affidavit certifying to the applicant's qualifying experience as described in Section 1310.50.

    
    

15. The types of courses that may be approved for satisfaction of the requirements of Section 1310.30(a)(2)(B), above, are described as follows at Section 1310.40 of the Illinois Administrative Code:

    
    

    The Department, upon the recommendation of the Nursing Home Administrators Licensing Board, shall approve courses of instruction in nursing home administration which include instruction in the following areas:

    1. Nursing Home Administration; including planning, organization, operations and services, resource development, supervision of staff, and control and evaluation of facility performance.

    2. Personnel Management; including managing people for the specific needs of the long- term care facility, recruitment and

       selection, orientation, training and development of employees, development of employee appraisal programs, communications, wage and salary administration, union procedures and employee-management relations, discipline and morale.

    3. Accounting and Financial Management; including basic accounting, adjustment of accounts, preparation of financial statements, financial management planning, effective use of resources, financial performance evaluation, cost analysis, reimbursement from the United States Department of Health and Human Services under Medicare and Medicaid, and budgeting.

    4. Social Gerontology; including biology of aging, psychology of aging, changing social roles of aging, personal adjustment to aging, programs for health improvement and rehabilitation, financial aspects of aging, retirement, independency and dependency of aging persons, societal disengagement, impact of living arrangements and interaction

       between the needs of the institution of [sic] the needs of the patients.

16. The types of qualifying experience that will satisfy the experience requirements of Section 1310.30(a)(2)(C) are described as follows in Section 1310.50 of the Illinois Administrative Code:

    
    

    Qualifying experience for applicants . . . shall include:

    1. One year of full time employment as a nursing home administrator in a licensed nursing home or two years of full time employment as an assistant nursing home administrator in a licensed nursing home with

       50 or more beds. Experience as a nursing home administrator or as the assistant nursing home administrator must have been completed within the 36 months immediately preceding date of application.

    2. Full time employment as an administrator of a related facility for two years or more. Related facilities include hospitals with long term care beds or other licensed long-term care facilities not having nursing care beds licensed by the Illinois Department of Public Health. Experience as an assistant administrator in such a facility shall not qualify.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

18. As provided in Section 468.1705(1)(a), Florida Statutes, an applicant for licensure by endorsement as a Nursing Home Administrator must either (a) hold a current active license in another state with current licensure requirements substantially equivalent to or more stringent than Florida's current requirements or (b) meet the requirements of Section 468.1695, Florida Statutes. Section 468.1695, Florida Statutes, requires, among other things, that an applicant have a baccalaureate degree. The parties agree that the Petitioner meets all of the Florida prerequisites for licensure by endorsement with the exception of the two alternative requirements mentioned in this paragraph.

    
    

19. Turning first to the relevant requirements of Section 468.1695, Florida Statutes, the Petitioner does not have a baccalaureate degree. He argues, however, that he has the "substantial equivalent" of a baccalaureate degree on the basis of such things as his extensive life experiences, his completion of numerous college courses, his success on the CLEP examinations, and his admission to graduate studies at the University of Alabama. The Petitioner's argument fails for two reasons. First, the record in this case is insufficient to support a finding that the Petitioner has, in the course of his numerous professional and academic activities, received the substantial equivalent of a baccalaureate degree. Such a finding would have to be based upon testimony by an expert in the field of higher education. No such expert

    witness testimony was offered. The evidence in this case goes no further than the observation in the April 20, 1993, letter from the Director of Graduate Studies at the University of Alabama in which he states:

    
    

    Mr. Baird was admitted to graduate school after a review of his undergraduate transcript, CLEP, the Graduate Management Admissions Test, and his life experiences. It was our determination that Mr. Baird qualified for graduate study and he was admitted to graduate school.

    
    

    While the above quoted statement of the Director of Graduate Studies is not necessarily inconsistent with a conclusion that the Petitioner has received the substantial equivalent of a baccalaureate degree, neither is it persuasive evidence of such a conclusion. For all that is shown in the record of this case, it may well have been that the Director of Graduate Studies felt that the Petitioner was qualified for graduate study in spite of the fact that he did not have the equivalent of a baccalaureate degree. The answer is simply not in the record of this case.

    
    

20. The second reason for rejecting the Petitioner's arguments regarding the relevant portion of Section 468.1695, Florida Statutes, is that Section 468.1695, Florida Statutes, does not have a "substantially equivalent" clause that applies to the requirement that applicants have a baccalaureate degree. The statutory language simply requires the baccalaureate degree and makes no provision for substituting anything else in lieu of that requirement. Accordingly, even if it were to be concluded that the Petitioner's numerous professional and academic experiences were substantially equivalent to a baccalaureate degree, such a conclusion would be insufficient to satisfy the relevant requirements of Section 468.1695.

    
    

21. With regard to the statutory requirement that an applicant for licensure by endorsement must be licensed in another state with current licensure requirements substantially equivalent to or more stringent than Florida's current requirements, it is first noted that the term "substantially equivalent" is not defined in the subject statute. Where statutory terms are not defined or otherwise given some special meaning, they should normally be given their plain and ordinary meaning. See Harper v. State, 217 So.2d 591 (Fla. 4th DCA 1969); Gaulden v. Kirk, 47 So.2d 567 (Fla. 1950); Gasson v. Gay,

    49 So.2d 525 (Fla. 1950). The courts have a long tradition of looking to dictionaries to determine the plain and ordinary meaning of words. Webster's Third New International Dictionary (Unabridged), 1976 Edition, tells us at page 2280 that the word substantially means "in a substantial manner" or "so as to be substantial." On the same page is the information that the meaning of the word substantial includes "consisting of, relating to, sharing the nature of, or constituting substance," or "not seeming or imaginary: not illusive: real, true," or "being of moment: important, essential" or "being that specified to a large degree or in the main." As examples of the last meaning, the dictionary offers "a substantial victory" and "a substantial lie." Given the foregoing dictionary meanings, it would appear that the term "substantially equivalent" should be given a meaning consistent with that expressed by the words "very much equivalent" or "very closely equivalent."

22. Turning forward to page 769 of the same dictionary, we learn that the meanings of the word equivalent include "equal in force or amount," or "equal in area or volume," or "like in signification or import," or "equal in value," or "corresponding or virtually identical esp. in effect or function." Reading all of the foregoing dictionary definitions together leads to the conclusion that the plain and ordinary meaning of the term "substantially equivalent" as used in the subject statute contemplates regulatory provisions that are very nearly the same in effect or function; regulatory schemes that impose requirements that are not significantly different from the requirements with which they are being compared.

    
    

23. Here, while there are many similarities in many of the licensure requirements, there is also at least one significant difference between the licensure requirements of Florida and those of Georgia and Illinois. That significant difference is that the Florida requirements clearly require a baccalaureate degree and make no provision for any alternative to that degree, while both the Georgia and the Illinois requirements contain provisions allowing several alternatives to the baccalaureate degree requirement in the form of alternative educational or experience requirements. These alternatives constitute significant differences from the Florida licensure requirements. Licensure requirements that contain significant differences in their provisions cannot be said to be "substantially equivalent."

RECOMMENDATION

Based on all of the foregoing, it is RECOMMENDED that the Board of Nursing Home Administrators issue a Final Order in this case concluded that the Petitioner is not entitled to licensure by endorsement as a Nursing Home Administrator.

DONE AND ENTERED this 8th day of November 1993 in Tallahassee, Leon County, Florida.

MICHAEL M. PARRISH

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 8th day of November 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-4844

The following are the Hearing Officer's specific rulings on all proposed findings of fact submitted by all parties.

Proposed findings submitted by Petitioner:

Paragraph 1: Accepted.

Paragraph 2: Rejected as consisting primarily of subordinate and unnecessary background and procedural details.

Paragraph 3: Accepted.

Paragraph 4: Accepted in substance with the exception of the portion reading "which gave him more than the requisite number of hours necessary to secure an A.A. Degree." The quoted portion is rejected as irrelevant in the absence of evidence that the Petitioner's courses at Milliken satisfied the subject matter requirements for an Associate of Arts degree.

Paragraphs 5 through 12: Accepted in substance with the exception of a few repetitious observations.

Proposed findings submitted by Respondent:

All of the proposed findings of fact submitted by the Respondent have been accepted in whole or in substantial part.

COPIES FURNISHED:

Karen L. Goldsmith, Esquire Goldsmith & Grout, P.A.

2709 West Fairbanks Avenue Post Office Box 2011

Winter Park, Florida 32790-2011

Arthur R. Wiedinger, Esquire Assistant Attorney General Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050

Anna Polk, Executive Director

Board of Nursing Home Administrators Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0777

Jack McRay, Acting General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit 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: 93-004844

Orders for Case No: 93-004844