vs. ) Case No. 98-2149
Respondent. )
On July 9, 1998, a formal administrative hearing was held in this case in Largo, Florida, before J. Lawrence Johnston, Administrative Law Judge, Division of Administrative Hearings.
R. Davis Thomas, Jr. Broad & Cassel
rating for all or some of the time between February 26 and June 1, 1998, should be conditional or standard.
On February 24 through 26, 1998, the Agency for Health Care Administration (AHCA) surveyed Spanish Gardens Nursing & Convalescent Center (Spanish Gardens) in Dunedin, Florida, found an alleged Class II deficiency for violations of 42 Code of Federal Regulations (C.F.R.) Section 483.13(c)(1)(i), and replaced the facility's superior license with a license having a conditional rating from February 26 through May 31, 1998, when the license would expire and have to be renewed. Spanish Gardens requested a formal administrative hearing to have the license rating for that period of time made standard instead of conditional. The matter was referred to the Division of Administrative Hearings (DOAH) on May 6 and was scheduled for final hearing on July 9, 1998.
AHCA held an Informal Dispute Resolution (IDR) conference at the request of Spanish Gardens on April 24, 1998, but declined to rescind the facility's conditional license rating on the basis of the matters presented at the IDR.
On May 1, 1998, AHCA re-surveyed Spanish Gardens, and determined that the alleged deficiency had been corrected. AHCA renewed the facility's license with a standard rating effective June 1, 1998, through May 31, 1999.
At final hearing, AHCA called two witnesses and had AHCA Exhibits 1 through 6 admitted in evidence. Spanish Gardens
called two witnesses and had Petitioner's Exhibits 1 through 10 admitted in evidence. In addition, without objection, Spanish
Gardens was given permission to file the transcript of the post- hearing deposition of a third witness in lieu of live testimony.
The parties were given ten days from the filing of the transcript of the later of the final hearing or post-hearing deposition in which to file proposed recommended orders. The hearing transcript was filed on July 20, 1998; the post-hearing deposition transcript was filed on July 27, 1998. However, the Petitioner's agreed Motion for Extension of Time to File Proposed Recommended Order was granted, and the time to file proposed recommended orders was extended to August 17, 1988.
When surveyed by AHCA on February 24 through 26, 1998, Spanish Gardens had a license which would expire and have to be renewed on May 31, 1998. The facility had a license rating of superior. For the preceding year (from June 1, 1996, through May 31, 1997), the facility had a license rating of standard.
During the survey, a disabled resident told a surveyor that the resident recently had complained to a nurse at the facility that a certified nurse assistant (CNA) had roughly handled the resident while transferring her into her bed, causing redness on the resident's arm, but that the facility did nothing about it. The surveyor viewed the resident's arm to verify the alleged incident. The surveyor also found a nurse's note for February 18, 1998, which mentioned the resident's
complaint. On inquiring, the surveyor found that neither the administrator of the facility nor the director of nursing knew about the complaint
and that the facility had not telephoned the Central Abuse Registry Hotline (the abuse hotline.)
The "Guidance to Surveyors - Long Term Care Facilities" defined "abuse," in pertinent part, as "the willful infliction of injury . . . with resulting physical harm or pain." The surveyor decided to report the alleged incident to the facility's administration and to telephone the abuse hotline herself.
The nurse's note stated that the resident first alleged that incident occurred on February 16, 1998; when the CNA, who also was present at the time the complaint was made, stated that he was not working on that day, the resident alleged that the incident had occurred the following day or, directing her comment to the CNA, "whenever you were here." The nurse noted a small red area on the inside of the resident's arm. The resident denied having any complaint of pain. The resident then told the nurse, "I just wanted to tell on him (the CNA)," and laughed.
The survey team did not interview the nurse although she was on-duty during part of the time the survey team was at the facility. In fact, the nurse had made a professional judgment that the evidence before her did not give her reason to believe that any abuse had occurred.
The survey team also interviewed a group of residents,
several of whom complained that the staff at Spanish Gardens was slow to answer the call button located in residents' rooms.
It was difficult if not impossible for Spanish Gardens to defend itself against the specific allegations that it had ignored residents' calls for assistance. AHCA never identified the residents who had made the complaints. However, AHCA presented no evidence that any resident was harmed or suffered medically in any way from staff's response time when called for assistance.
Slow response to calls for assistance is a common complaint in nursing homes and does not in itself prove neglect. There are a number of reasons why the speed of staff's response may not satisfy a resident. Often, unbeknownst to the resident, staff is attending to the call of another resident whose needs are judged to be a higher priority. Other times, again unbeknownst to the resident, the resident's call for non- emergency assistance may require the attention of a particular staff member who may not be available at the time.
The evidence was that Spanish Gardens responds reasonably quickly to residents' calls for assistance. Subject to higher priorities, the nearest staff member responds and assists when able; sometimes, another staff member with special expertise, knowledge, or skills must be summoned.
Spanish Gardens does not ignore residents' complaints
regarding staff response time. The evidence was that meetings have been held to allow residents to raise complaints of various kinds. Predictably, these included complaints regarding staff response time. Spanish Gardens has attempted to address these as well as the other complaints raised in these meetings.
The survey team could not find the abuse hotline telephone number posted anywhere in the facility.
When the survey team asked to see the facility's written policies on prevention of abuse and neglect, they were shown a document entitled "Suspected Abuse/Neglect of Residents." The document stated the facility's policy: "Any or suspected abuse/neglect of residents shall be referred immediately to the Administrator for investigation." It also stated the facility's procedures:
Any staff, family member, friend, who suspects possible abuse/neglect of a resident shall report to the Administrator and Director of Nursing Services immediately.
An incident report shall be completed to include all pertinent information of the alleged abuse/neglect. The Director of Nurses or the Administrator will notify the Abuse Hotline (1-800-96-ABUSE). An in house investigation with concerned parties and action to be taken will be conducted.
Since the facility is charged with the responsibility of protecting the resident it will be necessary to terminate employee(s) that may be involved if allegations are found to be substantiated. If it is found that it is a family member, or friend who is responsible for the abuse/neglect, such finding shall be turned over to area adult protection agency.
It may be necessary to report any substantiated abuse/neglect to appropriate regulatory agencies in accordance with their established policy regarding abuse/neglect.
The survey team was not satisfied with the written policy and procedure presented because it did not require staff
to report and call in all allegations or complaints of abuse or
neglect but rather only known abuse, "suspected" abuse, or "suspected possible" abuse.
In an attempt to satisfy the survey team, the facility produced a document entitled, "Adult Abuse Public Law No. 299 Policy," which related to a law prohibiting: battery; placing a dependent in danger to life or health; abandoning or cruelly confining a dependent; and exploiting a dependent by misuse of the dependent's resources. The facility also produced a document entitled, "Grievance Procedure," which informed residents and their family and friends to express concerns to the Charge Nurse, the Director of Nursing, the Department Supervisor, and the Executive Director. It also included two telephone numbers for the Ombudsman, neither of which was the abuse hotline telephone number.
The survey team did not review any employee or resident files for additional documentation; nor did the facility produce any for the survey team's review.
In accordance with normal procedure, the survey team reported the results of the survey on a federal Health Care Financing Administration (HCFA) form 2567 (the 2567). Under the Statement of Deficiencies "Tag" F224, the 2567 alleged violations of 42 C.F.R. Section 483.13(c)(1)(i) for failure to "develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse of residents and misappropriation of resident property" and for "use [of] verbal, mental, sexual, or physical abuse, corporal punishment, or
involuntary seclusion."
For purposes of the 2567, the survey team gave the alleged deficiency a federal scope and severity rating of "G." The federal scope and severity ratings range from "A" (for the least serious) to "L" (for the most serious). A deficiency with a rating of "G" is not considered "substandard quality of care" under the federal scope and severity rating system.
For purposes of the 2567, the survey team also gave the alleged deficiency a state classification of Class II. The state classifications are from Class I (for the most serious) to Class III (for the least serious). See Conclusion of Law 28, infra.
Based on the 2567, AHCA replaced the facility's superior license with a license having a conditional rating from February 26 through May 31, 1998, when the license would expire and have to be renewed.
In response to the 2567 and conditional rating, Spanish Gardens requested a formal administrative hearing, as well as an informal dispute resolution (IDR) conference. At the IDR, the facility's new administrator informed the IDR panel that, since at least 1994, all employees (including himself when he began his employment, coincidentally, during the survey conducted February 24 through 26, 1998,) were required to sign an "Abuse, Neglect, and Exploitation Policy." It states:
It is the policy of this facility to protect it's [sic] residents from abuse, neglect, and exploitation by providing a safe and protected environment.
Any person who knows or has reasonable cause to suspect that a resident is an abused, neglected or exploited person shall immediately report such knowledge or suspicion to the Control Abuse Registry (Toll Free Telephone Number 1-800-342-9152) and to the Facility Administrator.
The statewide toll-free telephone number for the Control Abuse Registry shall be posted on the Facility Bulletin Board and in each Employee Lounge.
Employees who commit acts of abuse, neglect, and/or exploitation are subject to criminal prosecution and/or fines.
Employees who witness acts of abuse, neglect, and/or exploitation are required to report them immediately. Failure to report can also result in criminal prosecution and/or fines.
* * *
No employee of this facility will be subjected to reprisal for reporting abuse, neglect or exploitation. . . .
Any employee who has been reported for abuse, will be suspended from work until any and all investigations have been completed. If the investigation confirms the employee committed an act of abuse, neglect, or exploitation, that employee shall be terminated immediately. . . .
All employees of this facility will be inserviced on this policy and the consequences of abuse, neglect and exploitation during their initial
orientation and alt least once annually. A complete copy of the Florida law on Abuse, Neglect, and exploitation [sic](Section 415, Florida Statutes) [sic] is on file in the Administrator's office and available for inspection upon request.
Spanish Gardens also produced at the IDR conference a copy of a Resource Contact List that included a telephone number for the abuse hotline. The facility's administrator testified at final hearing that the list was given to all residents at the time of admission. However, he was not employed at the facility prior to the survey, and it is not clear from his testimony that the list was in use as described at the time of the survey.
Notwithstanding the additional information presented to it, the IDR panel declined to rescind the Petitioner's conditional rating. The panel did not believe that the "Abuse, Neglect, and Exploitation Policy" was in effect at the time of the survey; in fact, it was. The IDR panel also decided that, even if the policy had been in effect, it did not require employees to report and call in all allegations or complaints of abuse or neglect but rather only known abuse, reasonably suspected, or suspected abuse. Finally, the panel decided that, if construed to require employees to report and call in all allegations or complaints of abuse or neglect, the "Abuse, Neglect, and Exploitation Policy" was not being followed since the resident's complaint was not either reported to the facility's administration or telephoned to the abuse hotline.
The "Guidance to Surveyors - Long Term Care Facilities" states in part:
The intent of this regulation [42 C.F.R. § 483.13(1)(c)] is to assure that the facility has in place an effective system that regardless of the source (staff, other residents, visitors, etc), prevents mistreatment, neglect and abuse of residents, and misappropriation of resident's property.
Over the years, Spanish Gardens has reported eighteen incidents of suspected abuse or neglect to the abuse hotline. No abuse or neglect has been substantiated in any of these
incidents. Never before has Spanish Gardens been cited in a survey for any deficiency relating to abuse or neglect of residents.
As required, regardless whether a facility agrees with the Statement of Deficiencies in a 2567, Spanish Gardens submitted a Plan of Correction. The facility's Plan of Correction stated that it does not constitute an admission or agreement with the alleged deficiencies. The Plan of Correction reported that Adult Protective Services had investigated the alleged abuse called in by the surveyor on February 26, 1998, and had concluded that the allegation was unfounded. Otherwise, the Plan of Correction essentially stated that written policies for prevention of abuse, neglect, and exploitation were in place and that the facility's administration would conduct inservices with staff and conferences with residents and the Resident Council to ensure that the policies were understood and followed. The Plan of Correction also stated that it had again posted the abuse hotline telephone number in four different places, one behind the locked glass bulletin board. The Plan of Correction stated that it would be completed by March 26, 1998, and the evidence was that the Plan of Correction was completed by the time promised.
On May 1, 1998, a team from AHCA re-surveyed Spanish Gardens and satisfied itself that the Plan of Correction had been completed and that the alleged deficiency had been corrected. On May 13, 1998, AHCA notified Spanish Gardens of the results of the re-survey. However, AHCA took no action with
respect to the facility's license until June 1, 1998, when AHCA renewed the license with a standard rating for the period from June 1, 1998, through May 31, 1999.
Although the Petitioner's license rating had been superior, it only requests that its license rating for the period from February 26 through May 31, 1998, be made standard. See Petition for Formal Administrative Hearing and Proposed Recommended Order of Spanish Gardens.
CONCLUSIONS OF LAW
Statutory Rating Scheme
Section 400.23, Florida Statutes (1997), provides in pertinent part:
The agency shall, at least every 15 months, evaluate all nursing home facilities and make a determination as to the degree of compliance by each licensee with the established rules adopted under this part as a basis for assigning a rating to that facility. The agency shall base its evaluation on the most recent inspection report, taking into consideration findings from other official reports, surveys, interviews, investigations, and inspections. The agency shall assign one of the following ratings to each nursing home: standard, conditional, or superior.
* * *
(b) A conditional rating means that a facility, due to the presence of one or more class I or class II deficiencies, or class III deficiencies not corrected within the time established by the agency, is not in substantial compliance at the time of the survey with criteria established under this part, with rules adopted by the agency, or, if applicable, with rules adopted under the Omnibus Budget Reconciliation Act of 1987 (Pub.
L. No. 100-203) (December 22, 1987), Title IV (Medicare, Medicaid, and Other Health-Related Programs), Subtitle C (Nursing Home Reform), as amended. If the facility comes into substantial compliance at the time of the followup survey, a standard rating may be issued. A facility assigned a conditional rating at the time of the relicensure survey may not qualify for consideration for a superior rating until the time of the next subsequent relicensure survey.
* * *
The current rating of each facility must be indicated in bold print on the face of the license. A list of the deficiencies of the facility shall be posted in a prominent place that is in clear and unobstructed public view at or near the place where residents are being admitted to that facility. Licensees receiving a conditional rating for a facility shall prepare, within 10 working days after receiving notice of deficiencies, a plan for correction of all deficiencies and shall submit the plan to the agency for approval. Correction of all deficiencies, within the period approved by the agency, shall result in termination of the conditional rating. Failure to correct the deficiencies within a reasonable period approved by the agency shall be grounds for the imposition of sanctions pursuant to this part.
Each licensee shall post its license in a prominent place that is in clear and unobstructed public view at or near the place where residents are being admitted
to the facility. A licensee with a superior rating may advertise its rating in any nonpermanent medium and in accordance with rules adopted by the agency. A list of the facilities receiving a superior rating shall be distributed to the state and district ombudsman councils.
* * *
The agency shall adopt rules to provide that, when the criteria established under subsection (2) are not met, such deficiencies shall be classified according to the nature of the deficiency. The agency shall indicate the classification on the face of the notice of deficiencies as follows:
* * *
Class II deficiencies are those which the agency determines have a direct or immediate relationship to the health, safety, or security of the nursing home facility residents, other than class I deficiencies. A class II deficiency is subject to a civil penalty in an amount not less than $1,000 and not exceeding
$5,000 for each and every deficiency. A citation for a class II deficiency shall specify the time within which the deficiency is required to be corrected. If a class II deficiency is corrected within the time specified, no civil penalty shall be imposed, unless it is a repeated offense.
Class III deficiencies are those which the agency determines to have an indirect or potential relationship to the health, safety, or security of the nursing home facility residents, other than class I or class II deficiencies. A class III
deficiency shall be subject to a civil penalty of not less than
$500 and not exceeding $1,000 for each and every deficiency. A citation for a class III deficiency shall specify the time within which the deficiency is required to be corrected. If a class III deficiency is corrected within the time specified, no civil penalty shall be imposed, unless it is a repeated offense.
(All statutory citations are to sections of the Florida Statutes (1997), unless otherwise indicated.)
Rating Not Yet Final Under APA
The Florida Administrative Procedure Act (APA) applies to the rating of licenses under Section 400.23. See Sections 120.52(1) (AHCA is an "agency"), 120.63 (setting out the process for obtaining an exemption, which AHCA has not done), and 120.80 and 120.81 (no exceptions or special requirements make the APA inapplicable to this proceeding).
Under Section 120.569, agency orders determining the substantial interests of a party are subject to formal or informal administrative proceedings if requested. No such agency order is final until entry of a written decision which results from the appropriate administrative proceeding. See
Section 120.52(7), defining "final order." As a result, notwithstanding AHCA's issuance of a license with a conditional rating, legally no change in the rating of the Petitioner's
license can become final until the final disposition of this proceeding. (AHCA did not attempt to issue either an emergency restriction or limitation on the Petitioner's license under Section 120.60(6) or an "immediate final order" under Section 120.569(2)(l)).
Proceeding Not Moot
While this case was pending, AHCA renewed the facility's license with a standard rating effective June 1, 1998. But it is concluded that the renewal of the facility's license with a standard rating did not moot this proceeding because AHCA still maintains that the rating should be considered conditional for the time period from February 26 through May 31, 1998. Notwithstanding license renewal with a standard rating, the rating of the Petitioner's license from February 26 through May 31, 1998, has significance under Section 408.035, which includes an applicant's ability and record of providing quality of care among the criteria for certificate of need comparative review. Cf. Recommended Order, Beverly Enterprises-Florida, Inc., d/b/a Beverly Health and
Rehabilitation Center-Rosemont, v. Agency for Health Care Administration, DOAH Case No. 97-0017, entered October 7, 1997 (the Rosemont RO). In addition, the rating of the Petitioner's license from February 26 through May 31, 1998, makes it impossible for Spanish Gardens to "qualify for consideration for
a superior rating until the time of the next subsequent relicensure survey." Section 400.23(8)(b). Cf. Recommended Order, Heritage Healthcare Center (Beverly Enterprises, Florida, Inc., d/b/a Beverly Gulf Coast v. Agency for Health Care Administration, DOAH Case No. 97-5847, entered July 7, 1998,
(the Heritage Healthcare RO).
Burden and Standard of Proof and Persuasion
It is concluded that AHCA, as the party asserting the affirmative of the issue (i.e., that there was a Class II deficiency at Spanish Gardens), has the burden of proof and burden of persuasion in this proceeding. See Florida Department of Transportation v. J.W.C. 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). This is not a license discipline case, and the standard of proof required is a preponderance of the evidence. Rosemont RO. See also Final Order, Beverly Enterprises-Florida, Inc., d/b/a Eastbrooke Health Care Center v. Agency for Health Care Administration, DOAH Case No. 97-0575, entered March 12, 1998 (proceedings under Section 400.23(8) are not penal in nature). Contrast Heritage Healthcare
RO (dicta suggesting that a different burden and standard of
proof and persuasion is appropriate).
Deficiency Allegations and Proof
As found, in this case, AHCA alleged under the Statement of Deficiencies "Tag" F224 in the 2567 violations of
42 C.F.R. Section 483.13(c)(1)(i) for failure to "develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse of residents and misappropriation of resident property" and for "use [of] verbal, mental, sexual, or physical abuse, corporal punishment, or involuntary seclusion."
42 C.F.R. Section 483.13(c) provides:
Staff treatment of residents. The facility must develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse of residents and misappropriation of resident property.
The facility must--
Not use verbal, mental, sexual, or physical abuse, corporal punishment, or involuntary seclusion;
Not employ individuals who have been--
Found guilty of abusing, neglecting, or mistreating residents by a court of law; or
Have had a finding entered into the State nurse aide registry concerning abuse, neglect, mistreatment of residents or misappropriation of their property; and
Report any knowledge it has of actions by a court of law against an employee, which would indicate unfitness for service as a nurse aide or other facility staff to the State nurse aide registry or licensing authorities.
The facility must ensure that all
alleged violations involving mistreatment, neglect, or abuse, including injuries of unknown source, and misappropriation of resident property are reported immediately to the administrator of the facility and to other officials in accordance with State law
through established procedures (including to the State survey and certification agency).
The facility must have evidence that all alleged violations are thoroughly investigated, and must prevent further potential abuse while the investigation is in progress.
The results of all investigations must be reported to the administrator or his designated representative and to other officials in accordance with State law (including to the State survey and certification agency) within 5 working days of the incident, and if the alleged violation is verified appropriate corrective action must be taken.
The evidence in this case did not prove a violation of
42 C.F.R. Section 483.13(c)(1)(i); the evidence did not prove that any resident was abused or neglected. Nor, for that matter, did the evidence prove a violation of any other part of 42 C.F.R. Section 483.13(c)(1).
Although not clearly alleged under Tag F224 in the 2567, it appears that AHCA also was attempting to alleged that Spanish Gardens was in violation of 42 C.F.R. Section 483.13(c)(2)-(3) for allegedly deficient written policies and procedures; in any event, they were tried by implied consent of the parties.
In some respects, the written policies and procedures in effect at Spanish Gardens on February 24 through 26, 1998, were deficient under 42 C.F.R. Section 483.13(c)(2)-(3). The written policies and procedures at Spanish Gardens did not
require "all alleged violations" to be reported immediately to the administrator; and, if not reported, such allegations could not be "thoroughly investigated" by the facility. In addition, Spanish Gardens did not have the abuse hotline posted in the facility at the time of the survey, and it is not clear that the residents were otherwise provided with the abuse hotline telephone number at the time of the survey.
Otherwise, the written policies and procedures in effect at Spanish Gardens at the time of the survey were not deficient under 42 C.F.R. Section 483.13(c)(2)-(3). Section 415.1034(1)(a) requires that nursing home staff "who knows or has reasonable cause to suspect, that a disabled adult or
elderly person has been or is being abused, neglected, or exploited shall immediately report such knowledge or suspicion to the central abuse registry and tracking system on the single statewide toll-free telephone number." (Emphasis added.) That is what the written policies and procedures provided.
The evidence also did not prove that the facility failed to follow its policies and procedures. The nurse who received the resident's complaint on February 18, 1998, used her professional judgment and determined that she had no reasonable cause to suspect that any abuse had occurred.
The nurse's judgment that no abuse had occurred was sound. Under Section 415.102(1), “abuse” is defined, in
pertinent part, as:
the nonaccidental infliction of physical or psychological injury or sexual abuse upon a disabled adult or an elderly person by a relative, caregiver, or household member, or an action by any of those persons which could reasonably be expected to result in physical or psychological injury, or sexual abuse of a disabled adult or an elderly person by any person. . .
As found, the "Guidance to Surveyors" defined "abuse," in pertinent part, as "the willful infliction of injury . . . with resulting physical harm or pain." The nurse's judgment that no abuse had occurred was echoed by the Adult Protective Services investigation. Under those circumstances, there was no requirement under Florida law for the nurse or the facility to telephone the abuse hotline.
The allegations regarding staff's response to calls also did not prove a deficiency. Under Section 415.102(20) provides:
"Neglect" means the failure or omission on the part of the caregiver or disabled adult or elderly person to provide the care, supervision, and services necessary to maintain the physical and mental health of the disabled adult or elderly person, including, but not limited to, food, clothing, medicine, shelter, supervision, and medical services, that a prudent person would consider essential for the well-being of a disabled adult or an elderly person.
The term "neglect" also means the failure of a caregiver to make a reasonable effort to protect a disabled adult or an elderly person from abuse, neglect, or exploitation by others. "Neglect" is repeated conduct or a single incident of carelessness which produces or could reasonably be expected to result in serious physical or psychological injury or a substantial risk of death.
The evidence did not prove neglect; nor did it prove any circumstances requiring staff to report to either the facility's administration or the abuse hotline.
There was no other evidence that Spanish Gardens was not following its written policies and procedures regarding reporting abuse, neglect, or exploitation of residents, or that its written policies and procedures were deficient.
As found, the "Guidance to Surveyors - Long Term Care Facilities" states that the intent of 42 C.F.R. Section 483.13(c) is to "assure that the facility has in place an effective system that . . . prevents mistreatment, neglect and abuse of residents." The evidence was that Spanish Gardens has in place a system that has been effective in preventing abuse and neglect of its residents.
Deficiency Classification and Rating
The deficiency proven in this case essentially was that: (1) the facility's written policies and procedures did not require employees to report all allegations or complaints of abuse or neglect to administration, but rather only known or reasonable suspected abuse or neglect; and (2) the abuse hotline telephone number was not posted in the facility or, evidently, otherwise adequately made known to the residents. It is concluded that the proven deficiency does not have a "direct or immediate relationship to the health, safety, or security of the nursing home facility residents"; rather, the relationship is "indirect or potential." Under Section 400.23(9)(b)-(c), the correct classification of the proven deficiency was Class III.
See also Florida Administrative Code Rule 59A-4.128(4).
The facility's Class III deficiency was "corrected within the time established by the agency." Under Section 400.23(8)(b), the Petitioner's license should be rated standard for the period from February 26 through May 31, 1998, not conditional.
Even if the Petitioner's deficiency were a Class II deficiency, it still would be concluded that the Petitioner's license should be rated standard for the period from February 26 through May 31, 1998, not conditional. Notwithstanding such a Class II deficiency, Spanish Gardens was "in substantial compliance at the time of the survey with criteria established under this part [II of Chapter 400, Florida Statutes], with rules adopted by the agency, or, if applicable, with rules adopted under the Omnibus Budget Reconciliation Act of 1987 (Pub. L. No. 100-203) (December 22, 1987), Title IV (Medicare, Medicaid, and Other Health-Related Programs), Subtitle C (Nursing Home Reform), as amended." As such, the correct license rating under Section 400.23(8)(b) would have been standard. See also Florida Administrative Code Rule 59A- 4.128(4).
It also is noted that the scope and severity of the alleged deficiency under the federal scope and severity rating
federal rating system would support the conclusion that Spanish Gardens was in substantial compliance at the time of the survey.
RECOMMENDED that the Agency for Health Care Administration enter a final order finding a Class III deficiency and assigning a standard rating to the Petitioner's license for the time period from February 26 through May 31, 1998.
Tallahassee, Leon County, Florida.
J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative
R. Davis Thomas, Jr. Broad & Cassel
Jerome W. Hoffman, General Counsel Agency for Health Care Administration Fort Knox Building 3, Suite 3431
All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
