STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SHEFFIELD CONVALARIUM, )

)

Petitioner, )

)

vs. ) CASE NO. 80-731

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

An administrative hearing was held on the above matter by Hearing Officer

1. E. Smithers on August 18, 1980, at Fort Lauderdale, Florida. Petitioner's Administrator, Dennis O'Leary, testified as a witness for the Petitioner, and the Respondent was represented by Harold L. Braynon.

   
   

   This action arose from a licensure survey by the Respondent on January 7 and 8, 1980, which resulted in a "C" or conditional rating for the facility operated as the Sheffield Convalarium; the Petitioner stipulated to the accuracy of the facts stated in Respondent's exhibits, but contends that the deficiencies did not justify the of a conditional license. The issue is whether or not the "C" rating was appropriate under the circumstances.

   
   

   The record consists of the testimony of Mr. O'Leary and Respondent's Exhibits 1 through 3.

   
   

   FINDINGS OF FACT

   
   

   1. Petitioner, Sheffield Convalarium, is a skilled nursing facility with

      118 beds in Fort Lauderdale. During the last licensing survey on January 7 and 8, 198' 0, the Respondent found six Class II deficiencies and sixteen Class III deficiencies; the former had a corrective date of January 11, 1980, and the latter, February 7, 1980. Presum- ably, all corrections were timely made, and the "C" rating and license were subsequently issued on March 13, 1980.

      
      

   2. The Class II deficiencies were concerned with inappropriate therapeutic menus (two) and patient medical care (four). While most of the Class III deficiencies were concerned with records, one dealt with food storage facilities, one with minor plumbing problems, and two with the handling of medication.

      
      

   3. In mitigation, Petitioner's witness points out that: the minimum standards or criteria and procedure had not been furnished prior to the survey; he has been the administrator of the facility for only one year and has made great strides in correcting known deficiencies; none of the deficiencies related to lack of patient care, unsanitary conditions, or other serious problems; and, that the Respondent's survey team head, who had evaluated the findings and assigned the rating, lacked the necessary experience.

      CONCLUSIONS OF LAW

      
      

   4. The law applicable to nursing homes [Section 400.23, Florida Statutes (1979) gave the Respondent the authority to adopt Section 10D-29.31-.54, Florida Administrative Code, which establishes the standards and procedure for rating and classifying deficiencies in nursing homes. Section 10D-29.54(3)(a) provides that a Class "A" home "must not be `cited for any Class 1, nor more than three

      (3) Class II deficiencies . . . and have less than twenty-five (25) Class III deficiencies." A Class "C" 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." Given these standards, obviously Petitioner had three more Class II deficiencies than were permitted; therefore, a Class "C" rating was appropriate.

      
      

   5. However, Respondent's rules provide that "[e]ach citation (for a deficiency) will indicate, where applicable, clearly the penalty to be imposed if correction of the cited deficiency is not completed within the time frame established." Section 10D-29.54(2), Florida Administrative Code. Impliedly, a second survey is conducted. Also, the rules provide for further appeal under the Administrative Procedure Act after an informal conference which results in the assigned rating being affirmed or modified. Section 10D-29.54(4), Florida Administrative Code. The Respondent did not follow either procedure in this case.

It is, therefore, RECOMMENDED:

That the Department of Health and Rehabilitative Services conduct another licensure survey of the Sheffield Convalarium and thereafter follow the approved procedure in establishing the final rating to be given Sheffield Convalarium.

ENTERED this 28th day of August, 1980, in Tallahassee, Florida.

HAROLD E. SMITHERS

Hearing Officer

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

(904) 488-9675

COPIES FURNISHED:

Mr. Dennis O'Leary, Administrator Sheffield Convalarium, Inc.

2675 North Andrews Road

Fort Lauderdale, Florida 33311

Harold L. Braynon, Esquire District X Legal Counsel Department of Health and

Rehabilitative Services

201 West Broward Boulevard

Fort Lauderdale, Florida 33301

Dr. James T. McGibony, Director Office of Licensure and Certification

Department of Health and Rehabilitative Services

Post Office Box 210 Jacksonville, Florida 32231

Mr. Alvin J. Taylor, Secretary Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32301

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

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

STATE OF FLORIDA

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES

SHEFFIELD CONVALARIUM,

Petitioner,

vs. CASE NO. 80-731

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES,

Respondent.

/

FINAL ORDER

The Department of Health and Rehabilitative Services has received and reviewed the Recommended Order of H. E. Smithers, Hearing Officer, dated August 28, 1980, and adopts the findings of fact arid the first paragraph of the conclusions of law as part of this final order. As additional conclusions of law the Department states:

The requirement in the last sentence of subsection 10D-29.54(2), Florida Administrative Code, that each citation indicates, where applicable, the penalty to be imposed if correction is not completed within the established time-frame, is not a prerequisite to the rating procedure set forth in subsection 10D- 29.54(3), Florida Administrative Code, and does not constitute grounds for setting aside the Class C" rating assigned to the Petitioner.

Although subsection 10D-29.54(4), Florida Administrative Code provides for an informal conference in which licensee can appeal the assigned rating, 10D-

29.54 (4)(f) , Florida Administrative Code makes clear that this informal conference in no way precludes or preconditions utilization of procedures in Chapter 120, Florida Statutes. Where Petitioner, Sheffield Convalarium, was correctly cited for six Class II deficiencies thereby justifying the Class C" rating assigned to it by Respondent under section 10D-29.54(3), Florida Administrative Code, Petitioner was not prejudiced by being afforded an administrative hearing under section 120.57(1), Florida Statutes, without a prior informal conference. Therefore, it is ORDERED that the Class "C" rating assigned to the Petitioner, Sheffield Convalarium1 is affirmed.

DONE and ORDERED at Tallahassee, Florida, this 25th day of November, 1980.

ALVIN J. TAYLOR

Secretary

Copies furnished:

H. E. Smithers, Hearing Officer Division of Administrative Hearings Department of Administration

Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-1777

Eleanor A. Beamer, Director Licensure and Certification, HRS

P. O. Box 210

Jacksonville, Florida 32231

Harold L. Braynon, Esquire District 10 Legal Counsel, HRS

201 West Broward Boulevard

Fort Lauderdale, Florida 33301

Dennis O'Leary, Administrator Sheffield Convalarium, Inc.

2675 North Andrews Road

Fort Lauderdale, Florida 33311

Docket for Case No: 80-000731

Orders for Case No: 80-000731