STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ST. JUDE MANOR NURSING HOME, )

)

Petitioner, )

)

vs. ) CASE NO. 77-1390

)

STATE OF FLORIDA, )

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings, at the Conference Room, Suite 205, 6501 Arlington Expressway, Building "B", Jacksonville, Florida, at 9:00 a.m., February 22, 1978. (Consideration of the facts in this cause has been delayed pending the transmittal of the State of Florida, State Plan for Medical Assistance, under Title XIX of the Social Security Act, Revision MSA-PI- 75-3 August 20, 1974. This document was received by the undersigned on May 17, 1978 as transmitted by the Respondent State of Florida, Department of Health and Rehabilitative Services.)

APPEARANCES

For Petitioner: C. M. Knight, Administrator

St. Jude Manor Nursing Home 2802 Parental Home Road Jacksonville, Florida 32206

For Respondent: Robert M. Eisenberg, Esquire

Department of HRS District IV Counsel Post Office Box 2417F

Jacksonville, Florida 32231 ISSUES

1. Whether or not the Respondent, State of Florida, Department of Health and Rehabilitative Services, which purportedly was acting in accordance with the directives of John E. Pipes, Director, Office of Long Term Care Standards Enforcement, Region IV, Department of Health, Education and Welfare; may forever foreclose the right of the Petitioner to request a variance from the requirements of Section 405.1134(e), Code of Federal Regulations (CFR), once the patients in the seven-patient room of its skilled nursing facility, which exceed the four-patient limit in numbers, have been removed from that room. A collateral question to this issue is the ability of the State of Florida, Department of Health and Rehabilitative Services, to make its own judgment on the subject of the propriety of the variance as set forth in the above

   referenced Section 405.1134(e), Code of Federal Regulations (CFR), without the necessity to gain the approval from officials of the United States, Department of Health, Education and Welfare.

   
   

2. If the Petitioner may request variances after normal attrition of the three patients who would constitute numbers over the limit allowed by Section 405.1134(e), Code of Federal Regulations (CFR), has the Petitioner demonstrated a right to such a variance under the terms and conditions of the aforementioned section, on the subject of those patients who were currently in the seven-bed ward at the time of the hearing before the undersigned?

FINDINGS OF FACT

1. The Petitioner, St. Jude Manor Nursing Home, is a skilled nursing facility within the meaning of Title XIX of the Social Security Act. In the past, and as recently as October 14, 1976, the Petitioner has received permission for a variance in its seven-bed ward which exceeds the number of beds per ward specified by Section 405.1134(e), Code of Federal Regulations (CFR). The most recent permission for variance has been received from the State of Florida, Department of Health and Rehabilitative Services. The terms and conditions of that variance may be found in Petitioner's Exhibit No. 2 admitted into evidence. In particular, that variance was allowed with the proviso that as patients whose needs justified the type of occupancy in excess of the limit were discharged, the seven-bed ward would be reduced to four beds to achieve compliance with the terms of the Code of Federal Regulations. It was further indicated in the statement of permission that the Respondent expected the reduction to be completed by November 30, 1977.

   
   

2. The variance of October 14, 1976, came about after an inspection had been performed by the Respondent at the Petitioner's facility. Following that inspection a statement of deficiencies and plan of correction was made and one of the items, which is the sole item in dispute at this time, dealt with the seven-bed-ward. Out of the August 16-18, 1977, inspection performed by the Respondent, a request for waiver was made by the Petitioner that led to the permission found in the October 14, 1976, letter by the Respondent. (The statement of deficiencies and plan of correction which indicates this request may be found as Hearing Officer's Exhibit No. 1 admitted into evidence.) One of the items in support of the request for variance was a letter from Richard J. Wilhelm, M.D., which spoke to the criteria found in Section 405.1134(e), Code of Federal Regulations (CFR), and apparently this explanation and reason for requesting a variance was persuasive, due to the subsequent grant of the variance. (Dr. Wilhelm's letter may be found as Petitioner's Exhibit 3 admitted into evidence for limited purposes as set forth in the transcript of the hearing.)

   
   

3. It is not abundantly clear what transpired beyond the suspension date of the variance; however, the action of the parties beyond that time has led to the current hearing. In essence what has occurred is the fact that the Respondent has taken the position that no further variance may be granted beyond the period of the normal attrition of the three extra patients in the seven-bed ward, which patients were in excess of the four patients allowed in any given room under the terms of the aforementioned Code of Federal Regulations.

   
   

4. The Respondent has come the conclusion that no further variance may be granted, premised upon its understanding that it is required to operate within the dictates and requirements and interpretations of the Code of Federal Regulations which have been placed by employees within the United States,

   Department of Health, Education and Welfare. The Respondent has come to this conclusion after receiving a January 30, 1976 communication from John E. Pipes, Director of the Office of Long Term Care Standards Enforcement, Region IV, United States, Department of Health, Education and Welfare, Atlanta, Georgia. A copy of this letter may be found as Respondent's Exhibit No. 1 admitted into evidence. Within the body of that correspondence Mr. Pipes states that Section 405.1134(e), Code of Federal Regulations (CFR), will only allow a variance to last for as long as the needs of the affected patients justify. Subsequent to that correspondence, officials with the Respondent wrote to Mr. Pipes on March 4, 1976, to try to clarify the status of those nursing homes in the state of Florida which had wards with more than four beds per room, and to try to emphasize to Mr. Pipes the potential loss of beds if the opinion of Mr. Pipes was allowed to go forth on the question of not allowing variances after the first attrition of the patients who were housed in the excess beds. (The full details of the March 4, 1976 letter may be found in a copy of that letter which is Respondent's Exhibit No. 3 admitted into evidence.

   
   

5. On April 1, 1976, Mr. Pipes responded to the March 4, 1976 letter and refused to change his position on the question of the variance letter. Henceforward, the Respondent has taken the position that Mr. Pipes' opinion of the meaning of Section 405.1134(e), Code of Federal Regulations (CFR), is dispositive of that issue and the Respondent, as the agent for the State of Florida; in the Respondent's opinion, may not use its independent judgment in determining whether a variance may be granted to a facility with more than four beds in a ward.

   
   

6. The position taken by the Respondent is contrary both to the language of Section 405.1134(e), Code of Federal Regulations (CFR), and the terms of the State Plan for Medical Assistance, under Title XIX of the Social Security Act, Revision MSA-PI-75-3 August 20, 1974. This conclusion is reached due to the unequivocal statement found within the referenced section of the Code and the written agreement by the State of Florida to take the responsibility for making determinations under the Code of Federal Regulations in matters pertaining to Title XIX of the Social Security Act, without the necessity of the permission of the United States, Department of Health, Education and Welfare or its officials. The efficacy of this conclusion may be seen by a reading of the portion of Section 405.1134(e), Code of Federal Regulations (CFR), which states:

   
   

   * * *

   "The Secretary (or in the case of a facility participating as a skilled nursing facility under Title XIX only, the survey agency - See Section 249.33(a)(1)(i) of this title) may permit variations in individual cases where the facility demonstrates in writing that such variations are in accordance with the particular needs of the patients and will

   not adversely affect their health and safety. Each room is equipped with or is conveniently located near, adequate toilet and bathing facilities. Each room has direct access to a corridor and outside exposure, with the floor at or above grade level.

   
   

7. The Petitioner is a facility participating as a skilled nursing facility under Title XIX and the State of Florida, Department of Health and Rehabilitative Services, under the terms of its contract with the United States,

   Department of Health, Education and Welfare, is the surveying agency, within the meaning of the above referenced provision. Moreover, when this is considered in conjunction with the terms and conditions of that contract, the only reasonable interpretation to be given this matter is that the Respondent not only has the power but has the duty to make determinations on various requests make by those skilled nursing facilities operating under Title XIX only, which are found in the state of Florida. (The after-filed exhibit which is the State Plan for Medical Assistance, under Title XIX of the Social Security Act, Revision MSA-PI- 75-3 August 20, 1974, is hereby made Hearing Officer's Exhibit No. 2 admitted into evidence.)

   
   

8. Having resolved this issue in favor of the Petitioner, the question then becomes whether or not the Petitioner has sufficiently demonstrated a right to a variance on the merits of his claim as tendered at the time of the hearing. The principle witness in behalf of the Petitioner who appeared at the hearing for purposes of speaking to the substance of the request was Richard Wilhelm,

   M.D. Dr. Wilhelm attends the patients in the seven-patient ward and feels that the care that those patients are receiving in the seven-patient ward is equal to the care received by others in the four-patient or less wards. He felt that psychologically the patients in the seven-patient ward are progressing as well as patients in the other rooms and some patients who have been in the seven- patient ward have progressed to the point of being sent to intermediate care or home care. Overall, he is extremely impressed with the care and to cutback the number of beds from seven to four would not help the quality of that care. At present, according to Dr. Wilhelm, none of the original patients who were in the seven-bed ward at the time of the variance being granted in October, 1976, are still in that ward. This is born out by Petitioner's Exhibit No. 6 admitted into evidence, which Is a list of admissions in the seven-patient ward, beginning in August, 1976. through January 11, 1978.

   
   

9. C. M. Knight, the Petitioner's administrator, testified at the hearing to the effect that there is more staff participation in the seven-patient ward than in other patient rooms. He also indicated that the patients who were in semiprivate rooms and were subsequently moved to the seven-bed ward have improved. He further stated that patients who had been in the seven-bed ward and been moved to other wards had requested to return to the seven-bed ward.

   Mr. Knight also expressed some concern that removal of the three beds would hurt the ability of the city of Jacksonville, Florida to respond to the needs for skilled nursing care. He had no particular basis for this conclusion, but it does seem consistent with the fears expressed by Joseph C. Thompson, Acting Chief of the Bureau of Health Facilities, State of Florida, Department of Health and Rehabilitative Services, in his March 4, 1976, correspondence to Mr. Pipes, which is Respondent's Exhibit No. 3. As may be recalled, this letter indicated that at that time 144 beds were feared to be lost by a reduction of beds in the wards with more than four patients.

   
   

10. After full consideration of the testimony offered by the Petitioner on the question of a variance, it must be concluded that the variance should be rejected at this time, due to the failure of the Petitioner to sufficiently address the issue of safety, adequate toilet and bathing facilities, and access to the corridor and outside exposure, with floors at or above grade level, as required by Section 405.1134(e), Code of Federal Regulations (CFR). Should these areas of consideration be satisfactorily met, and should the excessive number of patients in the subject ward continue to be in accordance with the particular needs of the patients and not adversely affect their health; then the Respondent acting in its own discretion and not that of the United States

    Department of Health, Education and Welfare, may grant a variance on the number of patients in the seven-patient ward.

    
    

11. Notwithstanding any decision on the request for variance by the Petitioner that may be made in the future, the undersigned is absolutely convinced that the Respondent may not arbitrarily refuse to consider the merits of the variance request based upon its interpretation of the Pipes' correspondence which has been referred to in the course of this Recommended Order.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction in this cause.

    
    

13. Upon a thorough examination of the evidence in this cause, in view of Section 405.1134(e), Code of Federal Regulations (CFR), and the State Plan for Medical Assistance, under Title XIX of the Social Security Act, Revision MSA-PI- 75-3 August 20, 1974, it is concluded as a matter of law that the State of Florida, Department of Health and Rehabilitative Services, has the authority and the duty to make its own determination on any requested variances under the aforementioned section of the Code, independent of the United States, Department of Health, Education and Welfare.

    
    

14. Based upon a consideration of the evidence in this cause, it is concluded as a matter of law that the Petitioner has failed to demonstrate sufficient grounds for variance within the meaning of Section 405.1134(e), Code of Federal Regulations (CFR).

RECOMMENDATION

It is recommended that the Petitioner's request for variance under Section 405.1134(e), Code of Federal Regulations (CFR) be denied; however, future consideration of variance requests should be made when those requests are tendered and the request should be considered in keeping with the judgment of the Respondent, State of Florida, Department of Health and Rehabilitative Services.

DONE and ENTERED this 26th day of May, 1978, In Tallahassee, Florida.

CHARLES C. ADAMS

Hearing Officer

Division of Administrative Hearings

530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675

COPIES FURNISHED:

C. M. Knight, Administrator St. Jude Manor Nursing Home 2802 Parental Home Road Jacksonville, Florida 32206

Robert A. Eisenberg, Esquire Department of HRS

District IV Counsel Post Office Box 2417F

Jacksonville, Florida 32231

Joseph Dowless, Jr., Director Leonard Schaeffer, Esquire Office of Licensure and Certification Suite 1300, 1845 Walnut Department of HRS Philadelphia, Pa. 19103 Post Office Box 210

Jacksonville, Florida 32201

Docket for Case No: 77-001390

Orders for Case No: 77-001390