STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF HEALTH AND )
REHABILITATIVE SERVICES, )
)
Petitioner, )
)
vs. ) CASE NOS. 80-341
) 80-342
GOLDEN SHORES CONVALESCENT )
CENTER, INC., )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings by its designated Hearing Officer, Michael Pearce Dodson, held the final hearing in these cases on July 23-24, 1980, in Tampa, Florida. The following appearances were entered:
APPEARANCES
For Petitioner: Robert P. Daniti, Esquire
Department of Health and Rehabilitative Services 1323 Winewood Boulevard
Tallahassee, Florida 32301
For Respondent: Richard A. Gilbert, Esquire
403 North Morgan Street, Suite 102 Tampa, Florida 33602
PROCEDURAL BACKGROUND
These proceedings began on January 17, 1980, when the Petitioner, Department of Health and Rehabilitative Services (HRS) served an administrative complaint on Respondent, Golden Shores Convalescent Center (Golden Shores).1/ This complaint which was filed in Case No. 80-342 charged that Golden Shores had failed to provide adequate health care to one of its patients, Alice Lindablad. Shortly thereafter, on February 8, 1980, another administrative complaint was served on Golden Shores. It charged that the facility had refused to admit an office of Licensure and Certification (OLC) inspection team. Respondent requested an administrative hearing on the two complaints and moved that they be consolidated for hearing. The two cases were forwarded to the Division of Administrative Hearings on February 26, 1980, for the assignment of a Hearing Officer and the scheduling of a final hearing. By an Order dated March 5, 1980, the cases were consolidated for all further proceedings before the Division of Administrative Hearings.
Prior to the final hearing Respondent filed a Motion for Summary Final Order regarding Case No. 80-342. A ruling on the Motion was deferred until the
time noticed for the final hearing. At that time counsel were given an opportunity to orally argue the Motion. It was denied because it appeared that there remained material facts in issue between the parties and because it is doubtful that Hearing Officers have the power to grant summary relief. Cf Systems Management Associates, Inc. v. Department of Health and Rehabilitative Services, 391 So.2d 688 (Fla. 1st D.C.A. 1981)
At the final hearing Petitioner presented Mrs. Lorine Rowland, Dr. Charles
E. Aucremann, Ms. Carol King, Dr. Frederick Timmerman, Ms. Marcia Rockett, and Mr. Ernest Brown as its witnesses. Petitioner offered Exhibits 1-4, 6, 7, and 8 which were received into evidence. The reception of Exhibit 4 was limited to show only that the newspaper article was published. The contents of Exhibit 4 are not received as evidence. Exhibit 5 was not received into evidence because it is hearsay. Respondent offered as its witnesses Ms. Dorothy Poore, Dr. Victor J. Martinez, Ms. Janine N. Brunjes, Ms. Suzanne Davis, Ms. Barbara Bjornsted, and Ms. Patricia Gilbert. Respondent offered Exhibits A, B, C, E, F, G, and I which were received into evidence. Exhibit B was received solely for the purpose of showing at what time Golden Shores could have been on notice that HRS had any complaint about the nurses' charting of Mrs. Lindablad's medical records.
At the conclusion of the hearing the parties were given the opportunity to file proposed findings of fact and proposed recommended orders, within twenty
days after the transcript was completed and filed. Both parties prepared Recommended Orders which contained findings of fact.2/ To the extent that the proposed findings of fact submitted by the parties are not reflected in this Order, they are rejected as being either not supported by competent substantial evidence or as irrelevant and immaterial to the issues for determination here.
ISSUES
Did Golden Shores fail to provide adequate and appropriate nursing care for Mrs. Lindablad because maggots were found in a wound on her right hip and in the wall of her vagina between October 22, 1979 and October 24, 1979?
Did Golden Shores violate the terms of either Chapter 400, Part I, Florida Statutes, or Section 10D-29, Florida Administrative Code, by refusing to allow inspection of its facility by an OLC inspection team on January 25, 1980?
FINDINGS OF FACT
The Golden Shores Convalescent Center, Inc. is a nursing home facility in Tampa, Florida. Ms. Patricia Gilbert is its Administrator.
The Office of Licensure and Certification (OLC) of HRS is responsible for the investigation of complaints about the operation of nursing facilities, such as Golden Shores, which are licensed by HRS.
Prior to the OLC investigation in issue the Office had received an anonymous complaint about housekeeping, urine odors, dietary preparation, and staffing at Golden Shores. The Office had also received a complaint from the Chairman of the Ombudsman Committee alleging that portions of the nurses call system were not functioning.
As the result of these complaints, Mr. Joel Montgomery, an HRS hospital consultant, Mrs. Dorothy Brown, a public health nurse, and Mrs. Emily Echols, a
nutrition consultant, arrived unannounced at Golden Shores on January 25, 1980, at 9:00 A.M. to conduct a complaint survey of the facility.
Two days prior to this visit the Tampa Tribune newspaper published a story, described by its author as "sensational", on the occurrence of maggots in a Golden Shores patient. The Golden Shores staff was very agitated about the bad publicity in the article. They felt betrayed by HRS whom they assumed to be the source of the story.3/ It was under these circumstances that the Administrator of Golden Shores, Mrs. Gilbert, refused to allow the inspection team to tour the facility.
When the OLC team arrived, Mrs. Gilbert placed a call to the facility's counsel and then informed her staff that the team was there for an inspection but she was seeking legal advice. After her conference with counsel she decided to refuse the team access that morning. She did not want to allow an inspection of the facility without counsel present. She was especially concerned that her staff would comment on the maggot case which she intended to later litigate with HRS.4/
While Mrs. Gilbert courteously offered to allow an inspection of the facility in the afternoon of January 25, 1980, that opportunity conflicted with the schedule of Mr. Montgomery, the inspection team leader.
A later inspection was subsequently arranged between the parties. It was satisfactorily conducted on January 31, 1980. In the interim between January 25, 1980 and January 30, 1980, HRS placed a moratorium on new admissions into Golden Shores. This was lifted when Golden Shores agreed to a second inspection. During this inspection it was discovered that except for the nurses call system problem the complaints were unfounded. While the allegations of the anonymous complaint proved to be untrue, the facts alleged in the complaint were directly related to the proper care and health of Golden Shores' patients.
On August 28, 1979, Mrs. Alice Lindablad was admitted to Golden Shores from Lykes Memorial Hospital in Brooksville, Florida for long term care. Mrs. Lindablad was in poor physical condition. She had been diagnosed as having arteriosclerotic heart disease, congestive heart failure, and multiple infected decubiti ulcers (bed sores). The ulcers which were present on the patient's legs, feet and hips contained necrotic (dead) tissues and oozed a green fluid. The skin around the ulcers was black. The patient also had a vascular insufficiency which caused her left foot to develop gangrene. The foot became necrotic, foul smelling, and turned black.
Dr. Perez was Mrs. Lindablad's attending physician. Because of the condition of her left foot, he transferred the patient on October 5, 1979, to St. Joseph's Hospital for a surgical evaluation. She was determined to be a poor surgery risk and therefore nothing was done toward amputating her left foot. She was returned to Golden Shores and remained there until her death on October 31, 1979.
During her care at Golden Shores, Dr. Perez prescribed the following treatment for the decubitus ulcers: wet to dry dressings over the ulcers, q-4 hours 5/; mechanical debridement of the wounds; and the administration of antibiotics.
After her return to Golden Shores, Mrs. Lindablad slowly deteriorated. The ulcers remained infected. She became lethargic and exhibited the symptoms of possible septicemia (a local infection spreading throughout the blood
stream). The most serious ulcer which was on her right hip was so deep that the bone could be seen. By October 19, 1979, her left foot was completely black.
During the 3:00 to 11:00 P.M. nursing shift on October 22, 1979, a nurses aide, Ms. Lorine Rowland and Ms. Dorothy Poore, the evening charge nurse, entered Mrs. Lindablad's room to change her dressings. Because more 4x4 dressings were needed, Ms. Poore left to obtain them. At the same time, as Ms. Rowland removed the dressing on the patient's right hip, she saw maggots in the sore. Ms. Rowland put the bandage back on and told what she saw to Ms. Poore who immediately called Dr. Perez. He responded to the message left with his answering service within five to seven minutes.
After Ms. Poore told him what she had seen, he said "good, we'll just cover that with a dry dressing and make sure it is well taped down". The maggots continued to be present in the patient's right hip ulcer until around 9:00 A.M. on October 24, 1979. At that time Ms. Brunjes, director of nursing services, examined the patient and found no evidence of maggots either on the patient's body or in her bed linen. Prior to Ms. Brunjes' examination maggots had been noted by Ms. Suzanne Davis, LPN, on the October 23, 1979, 11:00 P.M. to October 24, 1979, 7:00 A.M. shift in Ms. Lindablad's labia and her vagina.
The maggots' presence on Ms. Lindablad was a fortuitous occurrence. They were not purposely applied by either the nurses or by Dr. Perez. But once there, Dr. Perez decided to take advantage of their ability to debride necrotic tissue without damaging live tissue. Maggots are the larva of the common house fly. The presence of maggots indicates that at sometime while she was at Golden Shores a female fly must have landed on Mrs. Lindablad and laid eggs in her right hip ulcer. Flies are attracted to necrotic tissue as a place for them to lay eggs. Because of her numerous sores and rotting left gangrenous leg, Mrs. Lindablad was very attractive to flies.
Before the advent of modern antibiotics sterile maggots were used by the medical profession to debride wounds of dead tissue. While this practice is no longer common today, the medical community is still familiar with the use of maggots and their use is not necessarily poor health care. There was a calculated risk in allowing the maggots to remain in the patient here because they had not been raised in a sterile environment and they could spread unknown bacteria. It is not below community medical standards for Dr. Perez to have allowed the continued presence of maggots in Mrs. Lindablad's right hip ulcer and it is not poor health care for Golden Shores to have followed his orders to leave the maggots undisturbed.
There is no evidence that near the time of the occurrence of maggots on Mrs. Lindablad Golden Shores had a prevalence of flies in the patient care area, or in any other part of the facility. An occasional fly has however been observed in the wards. No flies were ever observed in Mrs. Lindablad's room. The record here is barren of any showing that Golden Shores either took extraordinary measures to prevent the occurrence of flies or that Golden Shores was careless about insect control.
Subsequent to the appearance of the maggots in Mrs. Lindablad's hip decubitus, they were noted around her vagina and in her bed linen. Maggots are attracted to the warm damp mucoid areas of the human body. Dr. Perez on being notified of the maggots initial appearance had ordered a dry dressing over the maggots to be well taped down. It is a reasonable inference that this taping was to prevent the possible migration of the maggots. Again there is no showing that the staff at Golden Shores were either extraordinarily careful about taking
measures to prevent the migration of the maggots on Mrs. Lindablad or that they were careless in not preventing the maggots migration. Once the maggots were discovered on the edge of the patient's labia and her vagina, they were washed away by Ms. Davis with a sterile solution and disposed of. The linen on the patient's bed was immediately changed. It is possible that the tape which held the dry dressing on Mrs. Lindablad's right hip became loose from the many times her body had to be turned. A paper tape, rather than ordinary adhesive tape, was used to secure the patient's dressings because her delicate skin could have been harmed by ordinary tape.
Mrs. Lindablad's death on October 31, 1979, was not in any way related to the occurance of maggots on her body or in her bed.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this case. Sections 120.57(1) and 120.65, Florida Statutes, and Section 10B-29.53, Florida Administrative Code.
By an administrative complaint in Case No. 80-341 served on February 8, 1980, the Department charged:
The Respondent has violated the provisions of Chapter 400, Part I, Florida Statutes and the provisions of Chapter 10D-29, Florida Administrative Code in that: On Friday, January 24, 1980, personnel from the Office of Licensure and Certification arrived at the facility to investigate a complaint.
They were refused admission to the facility, thereby obstructing the Department in the performance of its duty to ensure that the patients were receiving adequate and appro- priate health care consistent with esta- blished and recognized practice standards.
This was an intentional act materially affecting the health and safety of the residents of the facility (Section 400.102(1)(a), Florida Statutes (1979). Further, this action was a violation of Chapter 400, Florida Statutes (Section 400.121(2), Florida Statutes (1979)).
Chapter 400, Part I, Florida Statutes (1979) which regulates nursing homes provides:
The department and any duly designated officer or employee thereof shall have the right to enter upon and into the premises of any facility licensed pursuant to this chapter at any reasonable time in order to determine the state of compliance with the provisions of this chapter and rules in force pursuant thereto. The right of entry and inspection shall also extend to any premises which the department has reason to believe is being operated or maintained as a facility without a
license, but no such entry or inspection of any premises shall be made without the per- mission of the owner or person in charge thereof, unless a warrant is first obtained from the circuit court authorizing same. Any application for a facility license or renewal thereof, made pursuant to this chapter, shall constitute permission for and complete acquiescence in any entry or inspection of the premises for which the license is sought, in order to facilitate verification of the information submitted on or in connection with the application.
The department shall annually conduct at least one unannounced inspection to deter- mine compliance by the nursing home facility with statutes, and with rules promulgated under the provisions of those statutes, governing minimum standards of construction, quality and adequacy of care, and rights of patients. The giving or causing to be given of advance notice of such unannounced inspections by an employee of the department to any unauthorized person shall constitute cause for suspension of not less than 5 working days according to the provisions of Chapter 110.
Section 400.19, Florida Statutes (1979).
The Department's right to make inspections is reiterated in Section 10D-29.84 Florida Administrative Code which states:
Any duly authorized officer or employee of the Department shall have the right to make such inspections and inves- tigations as are necessary to determine the status of compliance with the pro- visions of this Act and of rules or standards in force pursuant thereto.
Any duly authorized officer or employee of the Department shall be given access to all records and reports relevant to evaluation of the services as directed in the Act and related regulations.
The refusal by Golden Shores to admit the OLC Inspection team to the facility for an unannounced inspection was a violation of Section 400.19, Florida Statutes (1979) and Section 10D-29.84, Florida Administrative Code. There is no question that 9:00 A.M. Friday morning on January 25, 1980, was a reasonable time to conduct an inspection. It is perhaps unfortunate timing that the inspection came so soon after the Tampa Tribune article about the maggots. But there is no evidence that the inspection was linked to the maggot incident or that the inspection was being used as a subterfuge to collect information about the maggot complaint.
The offer of the administrator to allow an inspection in the afternoon of January 25, 1980, is not an adequate defense to the charge. Section 400.19, Florida Statutes (1979) makes it clear that inspections may occur at any reasonable time. Under the terms of the statute it is the Department which determines the time for inspections, not the nursing homes. If this were not true there would be little purpose to inspections. This fact is emphasized by the provision in Section 400.19 for at least one unannounced inspection of each facility per year by the Department.
Penalty
Action by the Department against Golden Shores is authorized by Section 400.12, Florida Statutes (1979) which provides:
Any of the following conditions shall be grounds for action by the Department of Health and Rehabilitative Services against a facility:
An intentional or negligent act materially affecting the health or safety of residents of the facility;
Misappropriation or conversion
of the property of a resident of the facility;
Violation of provisions of this chapter or of minimum standards, rules, or regulations promulgated pursuant thereto; and
Any act constituting a ground
upon which application for a license may be denied.
If the department has reasonable belief that any of the said conditions exist, it shall take the following action:
In the case of an applicant for original licensure, denial action as provided in Section 400.121;
In the case of an applicant for relicensure or a current licensee, admini- strative action as provided in Section 400.121, or injunctive action as authorized by Section 400.125; and
In the case of a facility operating without a license, injunctive action as authorized in Section 400.125.
Penalties against nursing homes are provided in Section 400.121, Florida Statutes (1979) which states in part:
The Department of Health and Rehabili- tative Services may deny, revoke, or suspend a license or impose an administrative fine, not to exceed $500 per violation per day, for a violation of any provision of Section 400.102(1)(a) or (d). All hearings shall be held within the county in which the licensee or applicant operates or applies for a license to operate a facility as defined herein.
The department, as a part of any final order issued by it under the provisions of this chapter, may impose such fine as it deems proper, except that such fine shall not exceed
$500 for each violation. Each day a violation of this chapter occurs shall constitute a separate violation and shall be subject to a separate fine, but in no event shall any fine aggregate more than $5,000. A fine may be levied pursuant to this section in lieu of and notwithstanding the provisions of Section 400.23.
Because HRS has proven only a "violation of provisions of this chapter [400] or of minimum standards, rules or regulations promulgated pursuant thereto"6/ it may not request a penalty given in the first paragraph of Section 400.121, Florida Statutes (1979). That paragraph does not encompass violations of Section 400.102(1)(c), Florida Statutes (1979).7/ A penalty under the second paragraph of Section 400.121, Florida Statutes (1979) may be sought here because it encompasses all violations enumerated in Section 400.102 including (1)(c).
Department of Health and Rehabilitative Services vs. Manhattan Convalescent Center, Case No. 80-1364, Division of Administrative Hearings, Recommended Order, March 31,1981. For these reasons the appropriate penalty is a fine of no more than $500 per violation.
Only one violation of Section 400.102 was proven. Respondent was willing to admit the inspection team in the afternoon of the day when the inspection was first sought. While not providing a defense to the violation, the circumstances at the Golden Shores on the day of the violation do provide for mitigation of the penalty. It is understandable that Mrs. Gilbert, the Administrator at Golden Shores, would be reluctant to allow the inspection for fear that the team would be collecting information for purposes of later litigating the maggot incident. Furthermore there is no indication that the inspection was refused with the intent of concealing any violation of the regulations governing nursing homes. For these reasons the appropriate fine is
$300.00.
Scope of the Complaint
in Case 80-342 (Maggot Incident)
Respondent and Petitioner disagree over the scope of the violations alleged by the Administrative Complaint filed in Case 80-342. It is attached to this Order as Appendix A. The Respondent argues that the complaint charges only the existence of the maggots in the patient's right hip, in her vagina wall, and in her bed. The Petitioner argues that since the complaint alleged a failure to provide adequate and appropriate health care that the following issues are encompassed within the complaint:
A failure of the nursing staff to timely notify the Director of Nurses about the presence of maggots,
A failure of the nursing staff to question Dr. Perez about his not ordering the maggots to be removed from the patient, and
A failure to properly chart the patient's condition and treatment.
The legal question raised by the parties is one of notice and due process. The law in Florida on the specificity required in an administrative complaint is strict. Lester v. Department of Professional and Occupational Regulation, 348 So.2d 923 (Fla. 1st D.C.A. 1977). The charging agency may not go outside the facts alleged in the complaint to support its case. Department of Professional Regulation v. Lerro, Division of Administrative Hearings, Case No. 80-1330, Recommended Order, January 2, 1981. The only specific facts contained in the instant complaint concerned the actual presence of maggots in the patient. No mention is made of a failure to question Dr. Perez. The complaint is similarly silent about the nurses' charting or about their communications with the Director of Nurses. The Department's conclusory allegations in the complaint about "failure to provide adequate and appropriate health care" is merely lawyer window dressing, particularly where those allegations are juxtaposed with the concise statements of fact about the occurance of maggots. The Department's case therefore is restricted to only the presence of the maggots in the patient, Mrs. Lindablad.
The Maggot Incident
The central question concerning the maggot incident is whether the presence of maggots in a nursing home patient requires a finding that the nursing home is guilty of either intentional or negligent acts affecting the health or safety of the patient.
The record here is devoid of any information about how the maggots actually got on Mrs. Lindablad. It is scientifically known that they must have come from a pregnant housefly. No one could, however, explain how the fly got access to the patient. That is the missing key to the Department's case. Without it there is no showing that Golden Shores acted in any way to adversely affect the patient's health. There is no showing that the home was careless about insect control, had poor sanitation practices, or did anything to create a causal relationship between Golden Shores and the female fly's presence in Mrs. Lindablad's room.
Was the continuing presence of maggots in Mrs. Lindablad's right hip dicubitus grounds for discipline? Once the maggots were discovered they were promptly reported to Dr. Perez, Mrs. Lindablad's attending physician. His advice only to cover the maggot infested wound with a dry dressing was unusual but the weight of the expert opinion at the hearing was that these instructions were not so extraordinary as to cause the nursing staff to disobey them or to question them.
It is a reasonable inference that the maggots found on the labia of the patient and in her bed came from the right hip area. Just as the maggot- laying fly should not have been in Mrs. Lindablad's room, so too the maggots should not have been in the patient's linens and genitals; but here too, the Department did not show that the migration of the maggots was due to any intentional or negligent act on the part of Golden Shores. There was no indication that the patient was not frequently attended to. Nothing showed that the dressing on her right hip was not secured as well as it could be on a patient with paper thin skin. As with the initial appearance of the maggots, there is no showing which makes a causal connection between the migration of the maggots and specific acts or omissions by Golden Shores.
It is concluded that with respect to the maggot incident, the Department has failed to meet its burden of proving that Golden Shores engaged
in any intentional or negligent act materially affecting the health of Mrs. Lindablad. Section 400.102(1)(a), Florida Statutes (1979). This conclusion is buttressed by the record here which is barren of any showing that the maggots had any adverse affect whatsoever on Mrs. Lindablad.
Based on the foregoing Findings of Fact and Conclusions of Law it is, RECOMMENDED:
That an administrative fine in the amount of $300.00 be imposed on Golden Shores Convalescent Center in Case No. 80-341. It is further RECOMMENDED that the complaint in Case No. 80-342 be dismissed.
DONE and RECOMMENDED this 10th day of April, 1981, in Tallahassee, Florida.
DELPHENE C. STRICKLAND
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 10th day of April, 1981.
ENDNOTES
1/ Now known as Wellington Manor.
2/ Counsel are commended for the fine Proposed Orders which they submitted. These Orders have been most helpful in preparing this Recommended Order.
3/ In fact, the article was the result of the reporter's persistence and not a bad motive of MRS.
4/ The Administrative Complaint in that case was served on January 17, 1980.
5/ That means the dressing would be wet during the first four-hour period, then changed to a dry one for the second four-hour period. If the dry dressing was sufficiently clean it would be wet in the next four-hour period with a saline solution.
6/ Section 400.102(1)(c), Florida Statutes (1979).
7/ In the 1980 Session the Legislature cured this anomaly and made the penalties in paragraph one applicable to the violations described in (1)(c) of Section 400.102, Florida Statutes also. See Section 7, Chapter 80-186 Laws of Florida (1980).
COPIES FURNISHED:
Richard A. Gilbert, Esquire
403 North Morgan Street Suite 102
Tampa, Florida 33602
Robert P. Daniti, Esquire Department of Health and
Rehabilitative Services 1323 Winewood Boulevard
Tallahassee, Florida 32301
================================================================= AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES
DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES,
Petitioner,
vs. CASE NO. 80-341
80-342
GOLDEN SHORES CONVALESCENT CENTER, INC.,
Respondent.
/
FINAL ORDER
The Department of Health and Rehabilitative Services, having received a Recommended Order dated April 10, 1981, from Hearing Officer Michael Pearce Dodson and having received Exceptions to Recommended Order from both Petitioner and Respondent and Proposed Findings of Fact and Conclusions of Law from the Respondent, and upon a review of the complete record and being otherwise well advised in the premises, decides as follows:
The findings of fact and conclusions of law contained in the Recommended Order dated April 10, 1981, are hereby adopted and incorporated as a part of this Final Order.
The penalty is increased from $300 to $500.
The Proposed Findings of Fact and Conclusions of Law submitted by the Respondent have already been considered in the adopted Recommended Order and the Department hereby addresses them as covered in the Recommended Order.
Respondent's Exceptions to the Hearing Officer's Recommended Order are addressed as follows:
Exceptions 2, 3 and 4 were specifically considered in the adopted Recommended Order and the Department hereby addresses them as covered in the Recommended Order.
With respect to Exception 1, the Hearing Officer did not err in concluding as a matter of law that the Department has an independent jurisdictional basis upon which to impose an administrative fine under Section 400.121(2), Florida Statutes. That section clearly specifies that the Department, as a part of any final order, may impose up to a $500 fine for each violation of Chapter 400 of the Florida Statutes. Respondent argues that the Department's administrative fine authority is limited by Section 400.121(1) which specifies that the Department may deny, revoke, or suspend or impose an administrative fine, not to exceed $500 per violation per day for a violation of any provision of Section 400.102(1)(a), (b), or (d). Thus, Respondent concludes that the Department has no authority under Section 400.121 to impose an administrative fine for a violation of Section 400.102(1)(c), Florida Statutes, or for any other violations of Chapter 400 of the Florida Statutes. However, the distinction between subsections (1) and (2) of Section 400.121 is that the violations listed in subsection (1) of Section 400.121 authorize the denial, revocation or suspension of a license in addition to any administrative fine, whereas the violations of any provisions of Chapter 400, Florida Statutes, which are referenced in subsection (2) of Section 400.121 only authorize the imposition of an administrative fine. Respondent further argues that the Department has in fact adopted Respondent's position in the case of Department of Health and Rehabilitative Services vs. Washington Manor Nursing and Rehabilitation Center, 3 FALR 304-A (February 23, 1981). In that case the Recommended Order which was adopted as a part of the Final Order did state that Section 400.121, Florida Statutes, limits the authority to levy fines to violations of Section 400.102(1)(a), (b) and (d). However, that portion of the order was in the nature of dicta in that the Hearing Officer concluded that there had been a violation of Section 400.102(1)(a). Therefore, it was unnecessary for that order to address the issue as to whether there was additional administrative fine authority under Section 400.121 other than that specified in Section 400.121(1). The Department has clearly elucidated why there is clear administrative fine authority in Section 400.121(2) in addition to that specified in Section 400.121(1).
The Department wishes to make it clear that it does not condone the use of maggots for the purpose of the debridement of unhealthy tissue but in light of the particular circumstances of this case, it believed the Hearing Officer's Order to be correct.
ORDERED and ADJUDGED that Respondent, Golden Shores Convalescent Center, Inc., immediately remit to the Department an administrative fine in the amount of $500 in Case No. 80-341, and that the Administrative Complaint in Case No. 80-342 be dismissed.
DONE and ORDERED this 10th day of June, 1981, in Tallahassee, Florida.
ALVIN J. TAYLOR
Secretary
COPIES FURNISHED:
Richard A. Gilbert, Esquire
403 North Morgan Street Suite 102
Tampa, Florida 33602
Robert P. Daniti, Esquire Department of Health and Rehabilitative Services 1323 Winewood Boulevard
Tallahassee, Florida 32301
Michael Pearce Dodson, Hearing Officer Division of Administrative Hearings Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
Millie Park, Esquire District VI Legal Counsel Department of Health and Rehabilitative Services
W. T. Edwards Facility
4000 W. Buffalo Ave., 4th Floor Tampa, Florida 33614
Ms. Ellen Beamer, Director
Office of Licensure and Certification Department of HRS
Daniel Building
111 Coastline Drive, East Jacksonville, Florida 32231
| Issue Date | Proceedings |
|---|---|
| Jun. 19, 1981 | Final Order filed. |
| Apr. 10, 1981 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Jun. 10, 1981 | Agency Final Order | |
| Apr. 10, 1981 | Recommended Order | Respondent is not negligent in allowing maggots to grow in patient when doctor okayed it. Fine $300 for refusing entry to inspection team. |
