STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT OF ) HEALTH AND REHABILITATIVE )

SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 80-097

) FOUR FREEDOMS MANOR NURSING HOME, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N.Ayers, held a public hearing in the above style case on 27 May 1980 at Miami, Florida.

APPEARANCES

For Petitioner: Leonard Helfand, Esquire

District XI Legal Counsel, HRS

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

For Respondent: Barry D. Schreiber, Esquire

Suite 301, County National Bank Building 801 Northwest 167th Street

North Miami Beach, Florida 33162

By letter dated January 11, 1980, Four Freedoms Manor Nursing Home, Respondent, appealed the issuance of a "C" rating to it by Petitioner and requested a hearing to contest the accuracy of that rating. At the hearing one witness was called by Petitioner, two witnesses were called by respondent and four exhibits were admitted into evidence. There was no dispute regarding the facts here involved.

FINDINGS OF FACT

1. Respondent is licensed by Petitioner and was so licensed at all times here relevant.

   
   

2. On 6-7 August 1979 Petitioner conducted a survey (inspection) of Respondent's facility and upon completion submitted HRS Form 553D (Exhibit 1). This report of inspection listed no Class I deficiency, one Class II deficiency and 19 class III deficiencies.

   
   

3. The Class II deficiency noted was that medications are being administered not in accordance with physician's orders. On Exhibits 1 and 2, five examples of this Class II deficiency are listed where specific drugs or

   other medications were not recorded, not administered in accordance with physician's orders. Or in which the incorrect dosage was administered and/or recorded as having been given.

   
   

4. At a follow-up inspection on or about September 27, 1979, the results of which are memorialized in HRS For 553E (Exhibit2), the Class II deficiency is noted as corrected.

   
   

5. By letter dated December 17, 1979 Petitioner notified Respondent that despite Respondent's representations made at an informal conference on 6 December 1979 the "C" rating would stand and advised Respondent of his right to appeal by requesting an administrative hearing within 30 days. Such a request was duly made which let to the instant proceedings.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.

   
   

7. Nursing homes are licensed and regulated pursuant to the provisions of Chapter 400, Florida Statutes. Section 400.23 establishes a legislative intent for the Department of Health and rehabilitative Services to prescribe and publish rules establishing standards by which a reasonable and consistent quality of patient care may be insured to those nursing home patients.

   
   

8. To insure these standards are met, Chapter 10C-54, Florida Administrative Code, provides for inspection of nursing homes and the quality of care to be provided. Rule 10D-29.54 provides in pertinent part:

   
   

   . . . The following procedures will be employed in the evaluation of nursing home facility deficiencies:

   1. Types of deficiencies are determined by the failure of nursing home facilities to meet standards . . . . The degree of the

      severity of the deficiency shall be categorized as Class I, Class II, or Class III as defined in Section 400.23, Florida Statutes.

      * * *

      1. Nursing home facilities will be assigned one (1) of two (2) ratings, "A" or "C" after each full inspection, or at least annually.

         * * *

         The rating assigned to a nursing facility shall be based upon the following criteria:

         1. 1. Class A Nursing Home Facility--To be assigned a rating of "A", a nursing home must be providing patient care, performance, service and/or facilities that meet minimum standards. Such a home must not be cited for any Class I, not more than three (3) Class II deficiencies, which are immediately correctable (within 72 hours, [sic] and have less than twenty-five (25) Class III deficiencies.

      2. Class C Nursing Home facilities--To be assigned a rating "C", a nursing home would be providing patient care, performance, service

      and/or facilities that are marginal in nature and in some instances do not meet established minimum standards. Such a home could have:

      Class I deficiencies immediately correctable; Class II deficiencies correctable in not more than ten (10) days; or twenty-five (25) or more Class III deficiencies correctable within a time frame established by the Department.

      
      

9. The only issue here is the interpretation of the regulations regarding Class II deficiencies that are correctable within 72 hours. The above-quoted provisions of these regulations clearly show Respondent eligible for a Class "A" rating unless the Class II deficiency noted is not correctable within 72 hours. Here there was but one Class II deficiency noted, i.e., failure to properly administer medication. Some five examples of this deficiency were provided on the inspection report.

   
   

10. Webster's New Collegiate Dictionary (1979) defines "--able" as "capable of, fit for, or worthy of being." This, correctable means capable of being corrected. Medication errs are normally personnel errors and personnel errs are normally immediately correctable. All that is required to correct errors in following doctor's order is a modicum of intelligence on the part of the person administering the medication coupled with a careful following of the doctor's orders establishing the medication, dosage, and frequency.

    
    

11. This type deficiency is not only correctable immediately but also it is subject to being committed any time medication is again administered to a patient or fails to be administered as ordered.

From the foregoing it is concluded that the Class II deficiency was correctable within 72 hours and was, in fact, corrected when brought to the attention of Respondent. Accordingly, Respondent was entitled to Class "A" rating. No evidence was presented regarding any other basis for denying the Class "A" rating. It is therefore

RECOMMENDED that Respondent be issued a Class "A" rating and the Class "C" rating issued be rescinded.

RECOMMENDATION

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 19th day of June 1980.

K. N. AYERS Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 19th day of June, 1980.

COPIES FURNISHED:

Leonard Helfand, Esquire District XI Legal Counsel, HRS

401 N.W. 2nd Avenue, Room 1040 Miami, Florida 33128

Barry D. Schrieber, Esquire

Suite 301, County National Bank Building 801 Northeast 167th Street

North Miami Beach, Florida 33162

Docket for Case No: 80-000097

Orders for Case No: 80-000097