STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KRESTVIEW NURSING HOME, )

)

Petitioner, )

)

vs. ) CASE NO. 77-1603

) STATE OF FLORIDA, DEPARTMENT ) OF HEALTH AND REHABILITATIVE ) SERVICES, OFFICE OF LICENSURE ) AND CERTIFICATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on May 25, 1978, in Miami, Florida. Thereafter, the parties were allowed through July 25, 1978, to submit Memoranda of Law which were received and considered by me in preparation of this Recommended Order.

APPEARANCES

For Petitioner: R. Stuart Huff, Esquire

1200 First Federal Building One Southeast Third Avenue Miami, Florida 33131

For Respondent: Leonard Helfand, Esquire

2445 West Flagler Street Miami, Florida 33155

The issue herein is whether or not the Respondent, Department of Health and Rehabilitative Services, properly denied a variance and/or waiver of Federal Regulations 20 CFR Part 405.1134(e).

FINDINGS OF FACT

Based on the entire record compiled herein, including the arguments of counsel, the briefs and my observation of the demeanor of the witnesses while testifying, the following relevant facts are found.

1. During 1976 and 1977, Respondent cited Krestview Nursing Home (Krestview or Petitioner) for alleged noncompliance with Federal Regulations 20 CFR Part 405.1134(e), herein sometimes referred to as "1134(e)". Krestview's representatives Michael Weiner and Gerald Keller requested a waiver and a hearing on the issuance of a waiver as it relates to Section 1134(e) Krestview is an existing nursing home facility in Dade County, Florida, which was constructed approximately 1956. Since its construction, it has at all times been a public facility and a "provider" receiving compensation from public

   funds. When constructed and until approximately 1970, the requirement for square footage per bed in multi-bed rooms for skilled nursing facilities (SNF's) as 60 square feet per bed. At some point in the 1970's both the U.S. Department of Health, Education and Welfare (HEW) and the State of Florida adopted new legislation and/or regulations requiring new SNF's to provide 80 square feet per patient bed. Chapter 400, Florida Statutes, and Chapter 10D-29, Florida Administrative Code, and Chapter 45 CFR 405.1101(j) of the Federal Rules and Regulations.

   
   

2. At the outset of the hearing, the parties stipulated that: (1) Krestview was acknowledged to be an existing facility within the meaning both of the Florida Statutes pertaining thereto and within the meaning of the Federal Regulations; (2) Krestview acknowledged that it did not have 80 square feet per patient bed in multi-bed rooms; (3) Krestview was a skilled nursing facility within the meaning of Title XIX and had been certified by Respondent to so participate without conditions or contingencies in its new agreement which by its terms is effective November, 1977, through November, 1978; (4) Krestview and the Respondent executed a new annual provider agreement without conditions or contingencies on or about November 1, 1977, which, of course, was in effect at the time of the hearing; and (5) Respondent is single State Agency authorized to administer the applicable HEW programs in the State of Florida.

   
   

3. As stated, the parties stipulated that many of the bedrooms at Krestview Nursing Home do not meet the 80 square foot per bed minimum requirement. An examination of the documentary evidence reveals that of approximately 90 rooms, 84 do not meet the minimum square foot per bed requirement as set forth and contained in 1134(e) . However, there is a proviso in Section 1134(e) which provides in pertinent part that "... 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 Title XIX--may permit variations in individual cases where the facility demonstrates in writing that such variations are in accordance with particular needs of the patients and will not adversely affect their health and safety."

   
   

4. Variances under the foregoing rule were granted the Petitioner and other similar nursing facilities prior to January 30, 1976, when an interpretation of the Standards was addressed by the Director of the Office of Long-Term Care, Standards Enforcement, and sent to the office of the Regional Director (OLTCSE). All-State Letter No. 2-76. The subject of the communication was the development of waiver and variance criteria: CFR 405.1134, Standards (a), (c) and (e). The interpretation stemming from the All-State's letter seemed to indicate that a variance can only be granted for either the length of the agreement or for a shorter period, depending on the "needs of the affected patients". (See pipes letter dated January 30, 1976, and introduced as Respondent's Exhibit No. 1.) Another part of the same section, 405, which provides for the conditions of participation in Title XIX funding provides:

   
   

   "The skilled nursing facility is in com- pliance with Federal, State and Local laws and regulations.

   1. Standard: Licensure. The facility, in any state in which state or applicable local law provides for licensing of facilities of this nature."

      "(3) Except that a facility which formerly met fully such licensure requirements, but is currently determined not to meet fully

      all such requirements, may be recognized for a period specified by the state standard-setting authority."

      
      

      Without question, Krestview met fully licensure requirements in that when constructed, the facility met the existing requirement of 60 square feet or more per patient bed. Thus, by reading Section 405.1120 in para materia with Section 1134(e), it appears that the Respondent can grant an indefinite or definite term of waiver. Such a conclusion also appears to be in keeping with the mandate of Chapter 400.23(2)(a), Florida Statutes, and would dictate a certification by Respondent for Krestview and other similarly situated facilities. As an aside, it was noted that similar interpretations of the same provision (1134(e)) by other HEW regional directors have extended waivers to SNF's which met the existing requirement when constructed and otherwise met pertinent state certification regulations. The interpretation set forth in Respondent's Exhibit No. 1 also contained significant deviations in language from the actual regulation. For example, the regulation states,

      
      

      "...in accordance with the particular needs of the patients."

      
      

      while the Pipes letter states,

      
      

      "... in the best interest of the individual patients in that room. "

      
      

      At another point, Section 1134 reads, "...may permit variations. "

      while the pipes letter states,

      
      

      "...a variance will have to be reapproved

      at the beginning of each new agreement cycle."

      
      

      Given this conflict and an interpretation of Sections 405.1120 and 1134(e), a more reasonable conclusion appears to be that the Respondent, despite its position to the contrary, is authorized to grant waivers to existing facilities such as Krestview and based on the requests submitted, should have granted such waivers provided a written demonstration is provided to establish that such waivers are in accord with the patient needs and no adverse health and safety affects will result. For all of these reasons, including the fact that the new provider agreement executed by the parties herein was issued without conditions and is effective through October, 1978, I shall recommend that the Respondent withdraw its Notice of Citation to Krestview alleging noncompliance with Federal Regulations 20 CFR Part 405.1134(e).

      
      

      CONCLUSIONS OF LAW

      
      

5. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties to this action.

   
   

6. The parties were noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

   
   

7. The authority of the Respondent is derived from Chapter 400, Florida Statutes.

8. Competent and substantial evidence was offered to establish that the Respondent is authorized to grant waivers to facilities such as Krestview Nursing Home and other similarly situated nursing facilities in keeping with its authority to administer the applicable HEW programs in this State.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions, I hereby recommend that the Respondent withdraw its Notice of Noncompliance issued to Krestview Nursing Home respecting Federal Regulations 20 CFR Part 405.1134(e). In keeping with this recommendation, it is further recommended that the Respondent reexamine the waiver request and allow the Petitioner a reasonable length of time to document its waiver request.

RECOMMENDED this 14th day of September, 1978, in Tallahassee, Florida.

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings

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

COPIES FURNISHED:

Joseph D. Dowless, Jr., Director Office of Licensure and Certification

Department of Health and Rehabilitative Services Post Office Box 210

Jacksonville, Florida 32201

Leonard Helfand, Esquire 2445 West Flagler Street Miami, Florida 33155

Michael J. Weiner Krestview Nursing Home 775 Northwest 13th Avenue Miami, Florida 33125

1. Stuart Huff, Esquire 1400 First Federal Building One Southeast Third Avenue Miami, Florida 33131

   
   

   Gerald D. Keller, President B & R Investments, Inc. d/b/a Krestview Nursing Home 775 Northwest 13th Avenue Miami, Florida 33125

   
   

   ================================================================= AGENCY FINAL ORDER

   =================================================================

   
   

   STATE OF FLORIDA

   DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES

   
   

   KRESTVIEW NURSING HOME,

   
   

   Petitioner,

   
   

   vs. CASE NO. 77-1603

   
   

   STATE OF FLORIDA, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, OFFICE OF LICENSURE AND CERTIFICATION,

   
   

   Respondent.

   /

   
   

   FINAL ORDER

   
   

   This proceeding concerns whether the Petitioner is in noncompliance with 42 CFR Section 405.1134(e) (formerly 20 CFR Section 405.1134(e)). The Department of Health and Rehabilitative Services, having considered the entire record in this proceeding including the Recommended Order, transcript, exhibits, exceptions, and being otherwise well advised in the premises, decides as follows:

   
   

   1. The Department hereby adopts and incorporates by reference the findings of fact and conclusions of law contained in the Recommended Order of Hearing Officer James E. Bradwell dated September 14, 1978, with the following exceptions:

      
      

      1. There is no substantial competent evidence in the record to support the Hearing Officer's finding that similar interpretations of the same provision, 42 CFR Section 405.1134(e), by other HEW regional directors have extended waivers to skilled nursing facilities which met the existing licensing requirement when constructed and otherwise met other pertinent state certification regulations.

         
         

      2. 42 CFR Section 405.1120 (formerly 20 CFR Section 405.1120) relates solely to state licensure requirements and is not properly read in para materia with 42 CFR Section 405.1134(e). There is no substantial competent evidence to support, and no legal basis for, a waiver from the requirements of 42 CFR Section 405.1134(e). Any grandfather or waiver provision of the nursing home licensing statute, Chapter 400, F.S., and regulations, Florida Administrative Code 10D-29, are not applicable to certification as a Medicaid provider for federal financial participation. Licensing and certification are separate and distinct.

      3. State licensure requirements are not an issue in this proceeding and any discussion of Section 400.23(2)(a), F.S., is inappropriate.

         
         

      4. A variation for space requirements for a nursing home participating as a skilled nursing facility under Title XIX of the Social Security Act may only be granted in accordance with conditions promulgated by the Secretary of HEW.

         42 CFR Section 449.33(a)(1)(i). One of the conditions of participation under Title XIX relates to the physical environment. 42 CFR Section 405.1134. The standards contained in that Section as to patient rooms and toilet facilities may be varied, but not waived, in individual cases here 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. This is the only provision for a variance. The Petitioner presented no witness to demonstrate compliance with this requirement and there is no substantial competent evidence in the record to support the conditions for thee granting of a variance under 42 CFR Section 405.1134(e).

         
         

      5. Once a variance is granted pursuant to 42 CFR Section 405.1134(e), it only remains valid as long as it is in accordance with the particular needs of the patients and does not adversely affect their health and safety.

         
         

      6. The authority of the Respondent is derived from its agreement with HEW and specifically Chapter 400, F.S., and Section 20.19, F.S.

         
         

   2. The Department has previously ruled in other final orders that in order to receive a variance from the requirements of 42 CFR Section 405.1134(e) a facility must specifically meet the variance requirement of that Section. Economic hardship, waivers and other factors may not be considered. See Treasure Isle Convalescent Home vs. HRS, Case No. 77-1388; Hialeah Convalescent Home vs. HRS, Case No. 77-2025; St. Jude Manor Nursing Home vs. HRS, Case No.

77-1390; Floridian Nursing Home vs. HRS, Case No. 77-1413.

WHEREFORE, it is hereby ORDERED that the petitioner's request for a waiver or variance under 42 CFR Section 405.1134(e) is denied and the Department's notice of noncompliance concerning that regulation is valid, without prejudice to Petitioner making requests for variations in the future.

DONE and ORDERED this 8 day of October, 1978, in Tallahassee, Florida.

EMMETT S. ROBERTS, Secretary Department of Health and Rehabilitative Services

COPIES FURNISHED:

Joseph D. Dowless, Jr., Director Gerald D. Feller, President Office of Licensure and B & R Investments, Inc.

Certification, DHRS d/b/a Krestview Nursing Home

Post Office Box 210 775 Northwest 13th Avenue Jacksonville, Florida 32201 Miami, Florida 33125

Leonard Helfand, Esquire James E. Bradwell

District XI - DHRS Hearing Officer

New State Office Building Division of Administrative

401 N.W. 2nd Ave, Room 1040 Hearings

Miami, Florida 33128 530 Carlton Building

Tallahassee, Florida 32304

Michael J. Weiner Krestview Nursing Home 775 Northwest 13th Avenue Miami, Florida 33125

R. Stuart Huff, Esquire 1400 First Federal Building One Southeast Third Avenue Miami, Florida 33131

Docket for Case No: 77-001603

Orders for Case No: 77-001603