STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE ADMINISTRATION,

Petitioner,

vs.

GUARDIAN CARE, INC., d/b/a GUARDIAN CARE NURSING AND REHABILITATION CENTER,

Respondent.

)

)

)

)

)

) Case No. 02-4269

)

)

)

)

)

)

)

RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the administrative hearing of this case on February 6, 2003, in Orlando, Florida, on behalf of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Gerald L. Pickett, Esquire

Agency for Health Care Administration

525 Mirror Lake Drive Sebring Building, Suite 330L

St. Petersburg, Florida 33701-3219

For Respondent: George F. Indest III, Esquire

The Health Law Firm

220 East Central Parkway, Suite 2030 Altamonte Springs, Florida 32701

STATEMENT OF THE ISSUES

The issues for determination are whether Respondent admitted new residents in violation of Section 400.141(15)(d),

Florida Statutes (2001); and, if so, whether Petitioner should reclassify Respondent's license from standard to conditional, impose an administrative fine of $7,500, and impose costs pursuant to Sections 400.23(8)(b) and 400.419(10), Florida Statutes (2001). (References to chapters and statutes are to Florida Statutes (2001) unless otherwise stated.)

PRELIMINARY STATEMENT

Petitioner filed an Administrative Complaint against Respondent on September 27, 2002 (the Administrative Complaint). Respondent timely requested an administrative hearing. On November 1, 2002, Petitioner referred the matter to DOAH to conduct an administrative hearing.

At the administrative hearing, Petitioner presented the testimony of one witness and submitted one composite exhibit for admission into evidence. Respondent presented the testimony of two expert witnesses and submitted four exhibits for admission into evidence.

The identity of the witnesses and exhibits and any attendant rulings are set forth in the Transcript of the hearing filed on March 5, 2003. At the conclusion of the hearing, the ALJ required each party to file a proposed recommend order (PRO) no later than 10 days from the date that the Transcript was filed with DOAH. The ALJ granted the parties' stipulated motion

for extension of time to file their respective PROs on March 31, 2003. Each party timely filed its PRO.

FINDINGS OF FACT

1. Petitioner is the state agency responsible for regulating nursing homes in accordance with Chapter 400. Respondent is licensed as a skilled nursing facility pursuant to license number SNF 1186096, certificate number 8590. Respondent operates a 120-bed nursing home at 2500 West Church Street, Orlando, Florida 32805 as a non-profit facility (the facility).

2. From April 8 through 11, 2002, a four-member survey team assigned by Petitioner conducted an annual survey of the facility pursuant to Section 400.23(7). The survey team found that the facility violated Section 400.23(3)(a) by failing to maintain minimum staffing requirements for licensed nurses equal to one hour of direct care per resident per day (minimum staffing requirements) during a 14-day period from March 17 through March 30, 2002 (the relevant period).

3. Petitioner found that the facility failed to maintain minimum staffing requirements for 12 days during the relevant period, including two consecutive days on March 28 and 29, 2002. It is undisputed that the facility admitted new residents on March 17, 22, and 27, 2002.

4. The survey team based its finding on records provided by the facility. In particular, the survey team relied on a

   table submitted by the facility that compares the total number of licensed nurses, including LPNs and RNs, to the resident census (the original submission by the facility). The original submission by the facility is identified in the record as page nine of Petitioner's Exhibit One (P-1).

5. The original submission indicates the facility failed to maintain minimum staffing requirements on 12 days during the relevant period. The original submission indicates the facility complied with minimum staffing requirements on March 27

   and March 30, 2002.

   
   

6. During and after the survey, the facility submitted additional information in an attempt to explain the discrepancies in the original submission (subsequent submissions). The subsequent submissions are identified in the record as pages five and eight of P-1.

7. The subsequent submissions indicate that the facility failed to meet minimum staffing requirements on five days during the relevant period. However, the subsequent submissions identify different days in which the facility failed to meet minimum staffing requirements. The subsequent submission identified as page five of P-1 indicates the facility failed to meet minimum staffing requirements on March 18 through 20, March 24, and March 29, 2002. The subsequent submission identified as page eight of P-1, indicates the facility fell

   below minimum staffing requirements on March 19, 21, 24, and 28

   
   

   and 29, 2002.

   
   

8. Given the inconsistencies in the three submissions by the facility, identified in the record as pages 5, 8, and 9 of P-1, Petitioner relied on the original submission by the facility, identified as page 9 of P-1, for the factual allegations in the Administrative Complaint. In relevant part, the Administrative Complain alleges:

   1. . . . [T]he facility failed to maintain the minimum number of staff between

      March 17 . . . March 30, 2002. Nursing staffing records revealed that twelve days during the period were below minimum staffing.

      
      

   2. Further review of . . . [the] records revealed that it did not have six consecutive days during which it met the minimum required staffing.

      
      

   3. Interviews with the acting Director of Nursing . . . revealed that they were not aware of the staff shortages.

      
      

   4. Pursuant to [Section] 400.141(15)(d), Fla. Stat., [Respondent] is prohibited from accepting new admissions until it has achieved the minimum staffing requirements for a period of six consecutive days. [Respondent] admitted new residents on March 22 . . . [and] March 27, 2002.

      
      

9. The Administrative Complaint does not expressly allege that the facility failed to meet minimum staffing requirements for "two consecutive days." However, such an allegation is necessarily implied in the allegation that the facility failed

   to meet minimum staffing requirements for 12 of the 14 days in the relevant period.

10. The submissions by the facility, identified in the record as pages 5, 8, and 9 of P-1, were flawed for several reasons. First, the census count in each submission included bed holds for residents who were not present in the facility. The parties agree that bed holds should be excluded from the resident census and that the resident census should include only those residents that are physically present in the facility. Second, the submissions inadvertently excluded LPNs and RNs who were actually working during the relevant period, including contract nurses provided by outside agencies.

11. Turnover among key personnel at the facility was another reason for the flawed submissions by the facility. On or about March 22, 2002, the Administrator of the facility and the Director of Nursing resigned. The individuals who replaced them were inexperienced in reporting data to Petitioner and were confused over how to compute minimum staffing requirements, including the resident census.

12. The change in personnel also created confusion over whether to include clinical hours of nurses who also performed administrative functions. The minimum staffing requirements prescribed in Section 400.23(3)(a) provide, in relevant part,

    that the hours of a licensed nurse with dual job responsibilities cannot be counted twice.

13. When the Director of Nursing resigned, the Assistant Director of Nursing became the Acting Director of Nursing (DON). The position of Assistant Director of Nursing remained vacant because the facility did not have a resident population large enough to require an Assistant Director of Nursing.

14. The submissions by the facility did not include the clinical hours of nursing provided by the Assistant Director of Nursing before she became the DON. Nor did the submissions by the facility include the clinical hours of nursing provided by another licensed nurse identified in the record as the "MDS" Coordinator.

15. After Petitioner filed the Administrative Complaint, Respondent retained two experts to determine minimum staffing levels at the facility during the relevant period. Each expert determined minimum staffing levels at the facility for the relevant period independently of the other expert. One expert spent approximately 14 hours in making her determination, and the other expert spent between 15 and 16 hours making her determination. The minimum staffing level computed by the first expert agreed with that computed by the second expert.

16. Each expert relied on relevant facility records and interviewed facility personnel. Each expert calculated an

    adjusted census that excluded bed holds. Each expert reviewed time records of licensed nurses during the relevant period, including nurses provided by outside agencies. Each expert reviewed job descriptions for the Assistant Director of Nursing and the MDS Coordinator and interviewed the individuals who were the Assistant Director of Nursing and MDS Coordinator to determine the actual clinical hours of nursing each provided during the relevant period.

17. The experts also discovered that time records excluded time actually worked by some licensed nurses during lunch. The experts included the time actually worked by those nurses in computing minimum staffing levels during the relevant period.

18. The facility met or exceeded the minimum staffing requirements for licensed nurses on each day during the relevant period except March 19, 24, and 29, 2002. The facility did not fail to meet minimum staffing requirements on two consecutive days. If the time actually worked by licensed nurses but not included in the time records were disregarded, it would not result in understaffing for two consecutive days during the relevant period.

19. During cross-examination, each of Respondent's experts agreed that she would have cited the facility for failing to meet minimum staffing requirements for two consecutive days if the information contained in the original and subsequent

    submissions by the facility had been the only information available to the expert. That was the only information available to the witness called by Petitioner, and time constraints permitted the witness to spend only about two hours reviewing the flawed information.

20. Based on flawed information available to Petitioner prior to the administrative hearing, Petitioner correctly proposed to take final agency action to fine Respondent and to change Respondent's license status from standard to conditional. However, an administrative hearing conducted pursuant to Section 120.57(1) is not a review of proposed agency action that has been taken preliminarily. An administrative hearing conducted pursuant to Section 120.57(1) is a de novo hearing that is undertaken to formulate final agency action rather than to review proposed agency action taken preliminarily.

21. A de novo hearing is not limited to information available to the agency at the time the agency proposes final agency action. The scope of a de novo hearing includes any relevant and material evidence admitted through the date of the hearing. The weight to be accorded that evidence is the sole province of the trier of fact.

    CONCLUSIONS OF LAW

    
    

22. DOAH has jurisdiction over the parties and subject matter in this proceeding. Sections 120.569 and 120.57(1).

    DOAH provided the parties with adequate notice of the administrative hearing.

23. Petitioner has the burden of proof. Petitioner must show by a preponderance of the evidence that Respondent committed a Class II deficiency for which a change in Respondent's license from standard to conditional is authorized and appropriate. Petitioner must show by clear and convincing evidence that Respondent committed the acts and omissions alleged in the Administrative Complaint for which an administrative fine is authorized. Department of Banking and

    Finance v. Osborne Stern, 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

24. Petitioner failed to satisfy its burden of proof. In relevant part, Section 400.141(15)(d) provides:

    A nursing home that has failed to comply with state minimum-staffing requirements for

    2 consecutive days is prohibited from accepting new admissions until the facility has achieved the minimum staffing requirements for a period of 6 consecutive days. . . . Failure to impose such an admissions moratorium constitutes a class II deficiency.

    
    

25. Petitioner did not show by a preponderance of the evidence that Respondent failed to comply with minimum staffing requirements for two consecutive days. The only grounds alleged in the Administrative Complaint to support the proposed change in Respondent's license status is the alleged violation of

    Section 400.141(15)(d). Evidence of other grounds included in the statutory definition of a Class II deficiency in

    Section 400.23(8)(b), if any, is not relevant to any factual ground alleged in the Administrative Complaint.

26. The Administrative Complaint charges that the failure to impose a moratorium on new admissions is a widespread violation for which Section 400.23(8)(b) authorizes a fine of

    $7,500. Section 400.23(8) defines a widespread violation to mean:

    . . . a deficiency in which the problems causing the deficiency are pervasive in the facility or represent systemic failure that has affected or the potential to affect a large portion of the facility's residents.

    
    

27. The Administrative Complaint does not allege factual grounds that satisfy the statutory elements of a widespread deficiency. The ALJ sustained Respondent's objection to evidence of facts purporting to establish the elements of a widespread violation because the Administrative Complaint does not allege those facts. Petitioner proffered the evidence while the ALJ was outside of the hearing room, the court reporter sealed that part of the Transcript pertaining to the proffer.

28. The Administrative Complaint must specifically allege factual grounds that support the charged violation of a widespread deficiency. An agency cannot find a licensee guilty of a charged violation based on evidence of grounds not

    specifically alleged in the administrative complaint. Ghani v. Department of Health, 714 So. 2d 1113 (Fla. 1st DCA 1998); Cotrill v. Department of Insurance, 685 So. 2d 1371 (Fla. 1st DCA 1996).

29. In Cotrill, the administrative complaint referred to Sections 627.4085(1) and 627.8405 but did not plead any act or omission that constituted a violation of the statutes. The court reversed a finding that the licensee violated the statutes referred to in the administrative complaint. Judge Benton explained:

    Predicating disciplinary action against a licensee on conduct never alleged in an administrative complaint . . . violates the Administrative Procedure Act. To countenance such a procedure would render nugatory the right to a formal administrative proceeding to contest the allegations of an administrative complaint.

    
    

    Cotrill, 685 So. 2d at 1372.

    
    

30. In Ghani, the administrative complaint charged a physician with violating Section 458.331 by failing to practice medicine with the requisite standard of care. As grounds for the charged violation, the administrative complaint alleged that the licensee attempted to treat the patient's supraventricular tachycardia in the licensee's office before transporting the patient to the hospital. Once the licensee's attempts proved unsuccessful, the licensee elected to transport the patient to

    the hospital. The final order found the licensee guilty of the charged violation on the ground that the licensee failed to arrange for ambulance transport to the hospital.

31. The court reversed the finding of guilt based on the ground that the physician in Ghani failed to call for an ambulance. The administrative complaint did not allege that the licensee allowed the patient's wife to transport the patient in her husband's car rather than by ambulance. The court rejected the agency's argument that the private-transport decision could be broadly characterized as one of the substandard decisions alleged in the administrative complaint. The court held that the plain language of the complaint addressed only the licensee's initial decision to care for his patient in the licensee's office. Ghani, 714 So. 2d at 1114.

32. An agency cannot find a licensee guilty of a statutory violation charged in a Notice of Intent when the Notice of Intent fails to make specific factual allegations concerning the charges. Hamilton v. Department of Business and Professional

    Regulation, 764 So. 2d 778 (Fla. 1st DCA 2000). An agency cannot find a licensee guilty of a charge that he failed to advise the Board of Medicine of his new address on the ground that the licensee failed to notify his patients of his new address. Arpayoglou v. Department of Professional Regulation, 603 So. 2d 8 (Fla. 1st DCA 1992). The Board of Trustees cannot

    withdraw a previously issued "consent to use" on grounds not stated in the written notice of withdrawal. Board of Trustees

    of the Internal Improvement Trust Fund of the State of Florida v. Barnett, 533 So. 2d 1202, 1206 (Fla. 3d DCA 1988). Evidence of a criminal matter in another jurisdiction is inadmissible under the judicial notice statute in the absence of adequate notice. Kunen v. Department of Business and Professional Regulation, 642 So. 2d 60 (Fla. 3d DCA 1994). Cf., Maddox v. Department of Professional Regulation, 592 So. 2d 717, 720 (Fla. 1st DCA 1991)(use of generalized terms in a recommended order is sufficiently specific when administrative complaint states specific behavior and criteria that forms basis of finding).

33. An agency cannot find that a licensee did not practice medicine in accordance with the applicable standard of care by failing to comply with a Professional Recovery Network (PRN) contract when the administrative complaint does not allege the act or omission as a ground for the charged violation. Lusskin v. State of Florida Agency for Health Care Administration, Board

    of Medicine, 731 So. 2d 67, 68 (Fla. 4th DCA 1999). An agency cannot charge that a licensee violated a statute by performing three unnecessary tests and find the licensee guilty of violating the statute by performing a fourth test not alleged in the administrative complaint. Sternberg v. Department of

    Professional Regulation, Board of Medical Examiners, 465 So. 2d 1324, 1325 (Fla. 1st DCA 1985).

34. The charges against Respondent in a penal proceeding must be specific. Any ambiguities in the charging documents must be construed against the prosecuting agency. Ghani, 714 So. 2d at 1115; Davis v. Department of Professional Regulation,

457 So. 2d 1074, 1078 (Fla. 1st DCA 1984); Lester v. Department of Professional Regulation, 348 So. 2d 923, 925 (Fla. 1st DCA 1977).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that Petitioner enter a Final Order finding Respondent not guilty of the acts and omissions alleged in the Administrative Complaint and restoring Respondent's previous license rating nunc pro tunc.

DONE AND ENTERED this 5th day of June, 2002, in Tallahassee, Leon County, Florida.

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 5th day of June, 2002.

COPIES FURNISHED:

Gerald L. Pickett, Esquire

Agency for Health Care Administration

525 Mirror Lake Drive Sebring Building, Suite 330L

St. Petersburg, Florida 33701-3219

George F. Indest III, Esquire The Health Law Firm

220 East Central Parkway, Suite 2030 Altamonte Springs, Florida 32701

Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

Valda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive

Fort Knox Building, Suite 3431 Tallahassee, Florida 32308

Rhonda M. Medows, M.D., Secretary Agency for Health Care Administration 2727 Mahan Drive

Fort Knox Building, Suite 3116 Tallahassee, Florida 32308

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

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.

Docket for Case No: 02-004269

Orders for Case No: 02-004269