STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HIALEAH CONVALESCENT HOME, )

)

Petitioner, )

)

vs. ) CASE NO. 77-2025

) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Coral Gables, Florida, before the Division of Administrative Hearings, by its duly designated Hearing Officer, Robert T. Benton, II, on August 22, 1978. Accompanied by counsel for the parties, the Hearing Officer, on respondent's motion, visited petitioner's premises for a view. A transcript of the deposition of Ms. Ruth O'Kain, taken on September 5, 1978, was filed with the Division of Administrative Hearings on September 11, 1978, closing the record of proceedings. At the hearing, the parties were represented by counsel:

APPEARANCES

For Petitioner: Richard W. Bonehill, Jr., Esquire

7211 Southwest 62nd Avenue South Miami, Florida 33143

For Respondent: Leonard Helfand, Esquire

401 Northwest 2nd Avenue, Suite 1040 Miami, Florida 33128

After respondent's Office of Licensure and Certification surveyed petitioner's premises, the office sent petitioner a letter, dated November 8, 1977, stating, in pertinent part:

A review of the survey reveals you have more than four beds in the following rooms:

Rooms 2, 7, and 13, Center Court, 5 beds per room Room 5, Center Court, 6 beds per room

Room 15, Annex, 5 beds per room

Rooms 24 and 31, Manor II, 5 beds per room Rooms 7 and 13, Manor I, 5 beds per room

Please immediately indicate by letter the name of the patient and their date of admission by each room indicated above.

A variance will be granted only through the term of your present agreement. At

the expiration of the current agreement, provisions must be made to reduce the bed capacity to four in each room with the proviso that should any patient be dis- charged during this period another patient will not be admitted to the room which will exceed the total of four patients.

Even before this letter was written, petitioner had requested a hearing "for review and renewal of" a waiver alleged previously to have been granted pursuant to "Federal Register 405.1134(e)."

FINDINGS OF FACT

1. Petitioner owns and operates a skilled nursing facility in Dade County, Florida. The facility is divided into four or five sections, each of which is locked. Petitioner's facility is one of only two locked or "secure" nursing homes in Dade County. Particularly in the Center Court section of petitioner's facility, the patients tend to be disoriented and may suffer from organic brain syndrome. Eleanor Lieberman, a social worker, has arranged for patients to be placed in Center Court whom no other nursing hole would accept.

   
   

2. Three of the bedrooms in the Manor II section of petitioner's facility each have five beds, Nos. 24, 31 and 33. Room No. 15 in the Annex and Rooms Nos. 2, 7 and 13 in Center Court also have five beds each. Room No. 5 in Center Court has seven beds. Room No. 7 and Room No. 13 in Manor I each have only three beds.

   
   

3. The patients in Center Court are generally less oriented than the patients in other sections of the facility. Patients in Oliver House are bedridden or confined to chairs while awake. Patients in Manor I and II are ambulatory and in need of the least care of any of the patients in the facility. As a particular patient's condition improves or worsens, he may be transferred from one section to another. Within a given section, however, patients are assigned beds without regard to whether the beds are in rooms with more than four beds, rather than in rooms having only four beds.

   
   

4. In general, the more patients housed in a given room, the more often petitioner's employees are likely to enter the room. This has the advantage of increasing the "supervision" everybody in the ward receives. Since patients in the Annex, Center Court and Manor II sections of petitioner's facility mostly spend time in their beds trying to sleep at night, however, extra patients in a room and extra visits to the room have the disadvantage of increasing each patient's chances of being awakened. Particularly in Center Court, where there are no curtains separating beds, extra patients in a bedroom mean less privacy for each occupant. These considerations notwithstanding, the evidence as a whole tended to show that the care patients bedrooms with more than four beds receive does not differ appreciably from the care other patients at petitioner's facility receive.

   
   

   CONCLUSIONS OF LAW

   
   

5. The parties stipulated that 39 Fed. Reg. 405.1134(e) (1974) contains all of the substantive law applicable to the controversy between them and that no issue as to state licensing standards arises in the present case. Subsection e of 39 Fed. Reg. 405.1134 provides:

Standard: Patient rooms and toilet facilities. Patient rooms are designed and equipped for adequate nursing care and the comfort and privacy of patients, and have no more than four beds, except in facilities primarily for the care of the mentally ill and/or retarded where there shall be no more than 12 beds per room. (An institution primarily engaged in the care of the mentally retarded or

in the treatment of mental diseases cannot qualify as a participating skilled nursing facility under Medicare.) Single patient rooms measure at least 100 square feet, and multipatient rooms provide a minimum of 80 square feet per bed. The Secretary (or in the case of a facility participat- ing 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.

Petitioner established that more than four beds in a room "will not adversely affect . . . health and safety," but failed to demonstrate that allowing additional beds is "in accordance with the particular needs" either of the patients presently occupying the rooms in question or of the patients occupying those rooms on November 8, 1977. The evidence did not, indeed, establish the identity of the rooms' occupants as of November 9, 1977.

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That respondent permit petitioner no variation pursuant to 39 Fed. Reg.

405.1134(e) (1974), without prejudice to petitioner's making requests for variations in the future.

DONE and ENTERED this 27th day of September, 1978, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Leonard Helfand, Esquire

401 N. W. 2nd Avenue Suite 1040

Miami, Florida 33128

Richard W. Bonehill, Jr., Esquire 7211 S. W. 62nd Avenue

South Miami, Florida 33143

Docket for Case No: 77-002025

Orders for Case No: 77-002025