STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 81-991

)

MIRACLE HILL NURSING AND )

CONVALESCENT HOME, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on November 18, 1981, in Tallahassee, Florida.

The following appearance were entered: John L. Pearce, Esquire, Tallahassee, Florida, for the Petitioner, Department of Health and Rehabilitative Services; and Robert I. Scanlan, Esquire, and Henry C. Hunter, Esquire, Tallahassee, Florida, on behalf of Respondent, Miracle Hill Nursing and Convalescent Home, Inc.

Petitioner filed an Administrative Complaint against Respondent, Miracle Hill Nursing and Convalescent Home, Inc. (hereinafter "Miracle Hill"), alleging that Miracle Hill had violated Petitioner's nursing staff requirements and assessing against Miracle Hill an administrative fine of $2,500. Respondent timely requested a hearing on the allegations in that Administrative Complaint, denied any willful violation of Petitioner's regulations, and challenged the propriety of Petitioner's assessment of the maximum fine.

James L. Myrah and Dorothy Stratton testified on behalf of the Petitioner, and Freddie L. Franklin testified on behalf of the Respondent. Additionally, Petitioner's Exhibits 1 through 3 and Respondent`s Exhibits 1 and 2 were admitted in evidence.

Both parties have submitted post-hearing proposed findings of fact in the form of a recommended order. To the extent that any of those proposed findings of fact have not been adopted in this Recommended Order, they have been rejected as not having been supported by the evidence, as having been irrelevant to the issues under consideration herein, or as constituting unsupported argument of counsel or conclusions a law.

FINDINGS OF FACT

1. At all times material hereto, Miracle Hill was and is a skilled nursing home licensed by the Petitioner herein.

2. During the three-week period prior to November 10, 1980, three of the full-time registered nurses employed by Miracle Hill resigned in order to commence employment with the State of Florida, since the State had substantially increased pay for nurses employed by the State. On October 29, 1980, Mary Jane Fears, the regular registered nurse on the morning shift at Miracle Hill, submitted her resignation effective November 15, 1980. Accordingly, on November 1, 1980, Miracle Hill began advertising in the Tallahassee Democrat its registered nurse vacancies. Although the ad appeared on ten consecutive days, no response was received to the advertisement.

   
   

3. Nurse Fears was scheduled to work on November 10, 1980. On that morning, she called in to say she was ill and would not be coming to work. Bernardine Blackshear, the Director of Nursing at Miracle Hill, attempted to replace Nurse Fears but was unable to obtain the services of a substitute registered nurse. She did obtain a substitute licensed practical nurse for that morning shift. Nurse Blackshear maintains a list of substitute nurses for use in emergency situations. These persons were contacted in order to obtain sufficient staffing during November, but Miracle Hill was unable to locate enough substitute help to have a registered nurse on the morning shift each day. In addition to contacting all persons on the "substitute list" and advertising in the Tallahassee Democrat, the administrators at Miracle Hill also contacted Upjohn and Quality Care two nursing employment agencies, but the agencies were unable to obtain the services of anyone for Miracle Hill's morning shift. At the time, there was a severe nursing shortage in the Tallahassee area where Miracle Hill is located.

   
   

4. Despite the efforts made to avoid the situation, Miracle Hill had no registered nurse on duty on its morning shift on November 10, 18, 22, and 23, 1980. There were on duty, however, several licensed practical nurses. Additionally, Nurse Blackshear was on call at her home located one-and-a-half miles from Miracle Hill; and the two licensed physicians employed by Miracle Hill were also accessible.

   
   

5. As a result of an anonymous phone call, Petitioner sent one of its consultants, James L. Myrah, to Miracle Hill on November 25, 1980, to investigate the alleged nursing staff shortage. Upon speaking with Freddie L. Franklin, the licensed administrator of Miracle Hill, an upon reviewing Miracle Hill's records, Myrah determined that Miracle Hill had no registered nurse on duty at the facility on the four mornings in question. Additionally, Franklin told Myrah there might be a problem within the next few days since he had not been able to locate anyone willing to work Thanksgiving weekend. Subsequent to Myrah's visit to the facility, Miracle Hill hired Mary Jefferson, a registered nurse, to provide nursing coverage at the facility over the Thanksgiving weekend. Nurse Jefferson worked the morning shift on November 29, 1980, but called in on the morning of November 30 to say she would not work that day. Once again, Blackshear attempted to find a replacement registered nurse but was unable to do so. A licensed practical nurse was called in to replace the

   registered nurse. On December 1, 1980, Myrah revisited the facility to evaluate the registered nurse staffing over the Thanksgiving weekend. He, of course, discovered that no registered nurse was on duty during the morning shift on Sunday, November 30, 1980.

   
   

6. At Miracle Hill, the morning shift normally is staffed by three nurses and six nurse's aides. On the afternoon shifts, only four aides are on duty with two nurses, including a registered nurse.

7. Petitioner assessed a maximum fine of $500 per day against Miracle Hill for all five days on which no registered nurse was present at the facility during the morning shift, for a total administrative fine of $2,500. Dorothy Stratton, an employee in Petitioner's Jacksonville Office of Licensure & Certification, recommended to her superiors that the maximum fine be assessed since she considers it a serious deficiency for a nursing home to not have a registered nurse on duty in the morning. Although Stratton is aware that Miracle Hill is regarded by Petitioner as a model for nursing home operating procedures and usually obtains a perfect rating during inspections by the State, she has no knowledge regarding the circumstances causing Miracle Hill to violate the nursing requirements on the five days in question and has no interest in learning these circumstances. Stratton does not know who made the decision to assess the maximum fine allowable, and no testimony was presented by the Petitioner regarding who made that decision or regarding the circumstances considered in that decision. Petitioner has no written guidelines for determining whether a fine should be assessed or the severity of such a fine.

   
   

8. During the three-and-a-half years that Freddie Franklin has been the administrator at Miracle Hill, there have been no other citations for nursing staff shortage, except those which are the subject of this Administrative Complaint. Additionally, there have been no major violations of any of Petitioner's requirements during Franklin's tenure.

   
   

   CONCLUSIONS OF LAW

   
   

9. Section 400.102(1)(c), Florida Statutes, authorizes Petitioner to take action against a health care facility which violates minimum standards; and Section 400.121(2), Florida Statutes, authorizes the Department, in its discretion, to impose a fine not to exceed $500 or each day of each violation. Section 10D-29.39(1), Florida Administrative Code, contains the minimum nursing services staffing standards far skilled nursing care homes and requires that the

   A.M. shift be staffed by one licensed nurse to every forty patients. That section further requires that one of the licensed nurses an the A.M. shift be a registered nurse who shall be on duty seven days per week and in charge of the nursing services; however, there is no requirement that the licensed nurse an the P.M. shift or on the night shift be a registered nurse. In the case at bar, Respondent admits that although several licensed nurses were on duty during the five mornings in question, Respondent has committed a technical violation of minimum standards by failing to have a registered nurse on the premises during those five A.M. shifts. The thrust of Respondent's position is, essentially, that since it did not intend to violate the minimum standards, and since it could not avoid, under the circumstances of this case, violating the minimum standards, no fine should have been assessed, or, alternatively, Petitioner's assessment of the maximum fine is clearly erroneous.

   
   

10. As set forth above, the maximum fine Petitioner is authorized to assess is $500 for each violation, whether the violation be unavoidable, as in this case, or intentional and willful. Since Petitioner has established no guidelines for determining the imposition of an administrative fine or the amount of that fine, the propriety of such a fine must be established on a case- by-case basis. The law is well established that where an agency chooses to develop policy on a case-by-case basis, the basis for the agency's reasoning must be supported by record foundation. See, for example, Anheuser-Busch, Inc.

    v. Department of Business Regulation, 393 So.2d 1177 (1 DCA Fla. 1981). The record in this cause is devoid of any explanation for the fine assessed against Respondent herein. Petitioner failed to show not only how the fine was assessed, but also who assessed the fine. The only testimony regarding the

    assessment of the fine is that of Dorothy Stratton, who admits that she was unaware of any of the circumstances surrounding the violation; rather, she personally considers the subject violation to be "serious" whether or not it materially affects the health or safety of residents of the facility. Such minimal proof is insufficient to establish the requisite basis for the action proposed to be taken by the Petitioner, particularly where the assessment of an administrative fine is discretionary and not mandatory.

    
    

11. On the other hand, the record does contain substantial, competent evidence of mitigating factors. There is no evidence of any willful or intentional violation of the nursing standards. Miracle Hill took all reasonably available steps to provide for substitute nurses. The shortage was a temporary condition caused by a series of resignations beyond the control of Miracle Hill and by a general nursing shortage in the Tallahassee area. No other violations of the nursing services standards have been committed by Miracle Hill before or after the short time period in question, and Miracle Hill is held by Petitioner to be a model in nursing home operating procedures. In summary, Petitioner has failed its burden of proving its standards and reasons for imposing the fine in question, and Miracle Hill has presented substantial evidence in mitigation of any fine in this cause.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore,

RECOMMENDED THAT:

A final order be entered finding Respondent in violation of staffing requirements by failing to have a registered nurse on duty on the A.M. shift on November 10, 18, 22, 23, and 30, 1980, and further finding that the assessment of a fine for that violation to be unwarranted under the circumstances of this cause only.

RECOMMENDED this 18th day of December, 1981, in Tallahassee, Florida.

LINDA M. RIGOT

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 18th day of December, 1981.

COPIES FURNISHED:

John L. Pearce, Esquire Department of Health and Rehabilitative Services 2639 North Monroe Street Suite 200-A

Tallahassee, Florida 32303

Robert I. Scanlan, Esquire Post Office Box 10311 Tallahassee, Florida 32302

Henry C. Hunter, Esquire Suite 320

Lewis State Bank Building Tallahassee, Florida 32301

Mr. David Pingree, 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

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES,

Petitioner,

CASE NO.: 81-991

vs.

MIRACLE HILL NURSING AND CONVALESCENT HOME, INC.,

Respondent.

/

FINAL ORDER

The Department of Health and Rehabilitative Services having received a Recommended Order in this proceeding and having reviewed the complete record and being otherwise well advised in he premises decides as follows:

The findings of fact and conclusions of law of the recommended Order dated December 18, 1981 are adopted as a part of this Final Order with the following exception to the conclusions law. The paragraph on pages 5-6 of the conclusions of law is rejected to the extent that it concludes that guidelines for determining the imposition of an administrative fine or the amount of an administrative fine must be established or that in the alternative an explanation for the fine assessed must be demonstrated in the record. As long as the Department establishes facts in the record proving that a violation has occurred, the Department does not have to explain its rationale for the penalty. Florida Real state Com'n v. Webb, 367 So.2d 201 (Fla. 1979). Therefore, an administrative fine of $500 is imposed against the Respondent for its violation of nursing staff requirements and it is therefore

ORDERED and ADJUDGED that Respondent immediately remit to the Department an administrative fine of $500.

DONE and ORDERED this 15th day of February, 1982, in Tallahassee, Florida.

DAVID H. PINGREE

Secretary

Copies furnished:

John L. Pearce, Esquire District II Legal Counsel Department of Health and Rehabilitative Services 2639 North Monroe Street Suite 200-A

Tallahassee, Florida 32301

Robert I. Scanlan, Esquire Post Office Box 10311 Tallahassee, Florida 32302

Henry C. Hunter, Esquire Suite 320

Lewis State Bank Building Tallahassee, Florida 32301

Linda M. Rigot, Hearing Officer Division of Administrative Hearings Department of Administration

2009 Apalachee Parkway

Tallahassee, Florida 32301

Robert Daniti, Esquire Staff Attorney

Office of Licensure and Certification Department of Health and Rehabilitative Services

1323 Winewood Boulevard

Tallahassee, Florida 32301

Ms. Eleanor Beamer, Director

Office of Licensure and Certification Department of Health and Rehabilitative Services

1323 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 81-000991

Orders for Case No: 81-000991