STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 81-1947

) BONIFAY NURSING HOME, INC., ) d/b/a BONIFAY NURSING HOME, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice an administrative hearing was held in Bonifay, Florida on December 9, 1981 before Delphene C. Strickland, Hearing Officer of the Division of Administrative Hearings, Department of Administration.

APPEARANCES

For Petitioner: John L. Pearce, Esquire

Department of Health and Rehabilitative Services

2639 North Monroe Street, Suite 200-A Tallahassee, Florida 32303

For Respondent: J. E. Speed, Administrator

Bonifay Nursing Home

108 Wagner Road Bonifay, Florida 32425

ISSUE

Whether Respondent violated the duly promulgated rules of the Department of Health and Rehabilitative Services by designating and continuing to designate the same person as the Assistant Administrator and the Director of Nursing of the Bonifay Nursing Home, Inc., after having been cited for such deficiency and allowed sufficient time to correct the deficiency.

PRELIMINARY STATEMENT

During a routine inspection of the Bonifay Nursing Home in the summer of 1980, the nursing home inspector of the Petitioner Department of Health and Rehabilitative Services found that the acting Assistant Nursing Home Administrator, a registered nurse, was also serving as the Director of Nursing. The inspector cited the Respondent home for an alleged violation of the Florida Administrative Code rules and allowed a period of time for the violation to be corrected. At the expiration of this time the Respondent nursing home had not employed a full-time Director of Nursing, and the one registered nurse was continuing to act both as Assistant Nursing Home Administrator and Director of

Nursing. An Administrative Complaint was filed, notifying Respondent that after thirty (30) days from receipt of the complaint the Department intended to impose a civil penalty of $100 on the Respondent nursing home. Respondent requested an administrative hearing.

Prior to commencement of the formal hearing Respondent's Administrator, J.

1. Speed, presented a statement from all officers, directors and owners of the Respondent nursing home corporation requesting Mr. Speed to represent them at the hearing. The Hearing Officer recognized him as qualified to represent the Respondent nursing home.

   
   

   FINDINGS OF FACT

   
   

   1. An Administrative Complaint was filed by Petitioner Department of Health and Rehabilitative Services on October 27, 1980 notifying Respondent Bonifay Nursing Home, Inc., a skilled nursing care home, that Petitioner intended to impose a civil penalty of $100 for violating duly promulgated rules by designating the same person to act as Assistant Administrator and Director of Nursing of the nursing home.

      
      

   2. At the formal administrative hearing the Administrator admitted that he served more than one health facility, that at all times pertinent to the hearing the acting Assistant Nursing Home Administrator was also designated as the Director of Nursing, and that she was the only registered nurse on duty. It was admitted that no change had been made after the inspector for the Petitioner Department had called attention to this alleged violation until after the time period allowed for correcting this situation had expired and after the Petitioner had informed Respondent it intended to impose a $100 civil penalty.

      
      

   3. In mitigation Respondent presented testimony and adduced evidence showing that as the owner and operator of the nursing home he had made an effort to employ registered nurses at the home and that on the date of hearing the nursing home was in compliance with the statutes, rules and regulations. It was evident to the Hearing Officer that the nursing home serves a need in the community and that the residents appreciate the service.

      
      

   4. Petitioner Department submitted proposed findings of fact, memorandum of law and a proposed recommended order, which were considered in the writing of this order. Respondent submitted a memorandum. To the extent the proposed findings of fact have not been adopted in or are inconsistent with factual findings in this order, they have been specifically rejected as being irrelevant or not having been supported by the evidence.

      
      

      CONCLUSIONS OF LAW

      
      

   5. The Division of Administrative Hearings has jurisdiction in this matter and of the parties thereto pursuant to Section 120.57, Florida Statutes.

      
      

   6. Rule 10D-29.37(1), Florida Administrative Code, Operational Standards for Nursing Homes, provides in part:

      
      

      Nursing homes will be licensed in the following categories and shall meet the following standards:

      1. . . . The registered nurse in charge of the nursing services shall not be the administrator and shall not act as the

         assistant administrator if the administrator serves more than one health facility.

         
         

   7. The registered nurse in charge of nursing at the Bonifay Nursing Home was also the acting or assistant administrator during the time the administrator served more than one facility, contrary to the foregoing rule.

      
      

   8. Section 400.141(1), Florida Statutes, Administration and management of nursing facilities.-- provides in part:

      
      

      Every facility shall comply with all applicable standards, rules, and regulations of the Department of Health and Rehabilitative Services and shall:

      1. Be under the administrative direction and charge of a licensed administrator, supervisor, or manager.

         
         

   9. It was conceded that the Respondent facility violated applicable rules and regulations of the Petitioner Department contrary to the foregoing statute.

      
      

   10. Section 400.102, Florida Statutes, Action by department against facility; grounds.-- provides in part:

       
       

       1. Any of the following conditions shall be grounds for action by the Department of Health and Rehabilitative Services against a facility:

          * * *

          (c) Violation of provisions of this chapter or of minimum standards, rules, or regulations promulgated pursuant

          thereto; . . .

          
          

   11. The Petitioner Department has grounds for action in this cause inasmuch as Respondent has violated a rule duly promulgated pursuant to Chapter 400, Florida Statutes, Nursing Homes and Related Health Care Facilities.

       
       

   12. Section 400.121(2), Florida Statutes, Denial, suspension, revocation of license; moratorium on admissions; administrative fines; procedure.-- provides in part:

(2) 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.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that a final order be entered by the Petitioner assessing an administrative fine not to exceed $50.

DONE and ORDERED this 10th day of February, 1982, in Tallahassee, Leon County, Florida.

DELPHENE C. STRICKLAND

Hearing Officer

Division of Administrative Hearings 2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 10th day of February, 1982.

COPIES FURNISHED:

John L. Pearce, Esquire Department of Health and

Rehabilitative Services 2639 North Monroe Street,

Suite 200-A

Tallahassee, Florida 32301

Mr. J. E. Speed, Administrator Bonifay Nursing Home

108 Wagner Road Bonifay, Florida 32425

David H. Pingree, Secretary Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 81-001947

Orders for Case No: 81-001947