STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 82-1631

)

Y & S PARTNERSHIP, d/b/a ) MANHATTAN CONVALESCENT CENTER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was conducted in this matter on January 11, 1983, in Tampa, Florida. The following appearances were entered: Janice Sortor, Tampa, Florida, appeared on behalf of the Petitioner, Department of Health and Rehabilitative Services; and Edward P. de la Parte, Jr., Tampa, Florida, and Mara Beth Sommers, Miami, Florida, appeared on behalf of the Respondent, Y & S Partnership, d/b/a Manhattan Convalescent Center.

On or about May 3, 1982, the Department of Health and Rehabilitative Services issued an Administrative Complaint against the Respondent, charging various violations of statutory provisions and the Department's rules relating to the operation of the Manhattan Convalescent Center. The Respondent requested a formal hearing, and the matter was forwarded to the office of the Division of Administrative Hearings for the assignment of a Hearing Officer and the scheduling of a hearing. The final hearing was scheduled to be conducted as set out above by notice dated August 17, 1982.

At the hearing, the Department called the following witnesses: Carole King, the Area Supervisor of the Department's Tampa Office of Licensure and Certification; and Frank W. Reynolds, a hospital consultant employed in the Department's Office of Licensure and Certification. The Respondent called the following witnesses: John L. Ricco, a maintenance consultant who was formerly employed by the Respondent; and Willard Roth, the administrator of Manhattan Convalescent Center.

The parties have submitted post-hearing legal memoranda. The memoranda include proposed findings of fact and conclusions of law. The proposed findings and conclusions have been adopted only to the extent that they are expressly set out in the Findings of Fact and Conclusions of Law which follow. They have been otherwise rejected as not supported by the evidence, contrary to the better weight of the evidence, irrelevant to the issues, or legally erroneous.

ISSUES

The ultimate issues to be resolved in this proceeding are whether the Respondent has committed violations of Florida Statutes and rules of the Department of Health and Rehabilitative Services relating to the operation of

nursing homes and, if so, what penalty should be imposed. The Department is proposing to impose $1,600 as an administrative fine for the various violations alleged in the Administrative Complaint. The Respondent denies the allegations of the complaint, contends that it committed no violations of the provisions of statutes or the Department's rules, and contends that no administrative fine or other penalty is appropriate.

FINDINGS OF FACT

1. Y & S Partnership has been licensed at all pertinent times by the Department of Health and Rehabilitative Services to operate Manhattan Convalescent Center, 4610 South Manhattan Avenue, Tampa, Florida, as a nursing home.

   
   

2. On or about June 2 and 3, 1981; September 3, 1981; September 30, 1981; and November 23, 1981, the Department through its authorized representatives conducted inspections of the Manhattan Convalescent Center, in accordance with the Department's responsibility to regulate nursing home facilities. The Administrative Complaint was filed as a result of the inspections.

   
   

3. Manhattan Convalescent Center is a single building. It has a center core and four wings. It is approximately 70,000 square feet in size. There are

   81 patient rooms with supporting activity rooms, storage rooms, and the like. On November 23, 1981, there were between 160 and 165 patients at the facility.

   During 1981, Manhattan Convalescent Center had a maintenance plan in effect that required the building to be kept in good repair. A different plan has been put in effect since that time. The plan that was in effect required daily, weekly, monthly, quarterly, and yearly maintenance projects. There was a maintenance slip system provided so that employees at the facility could report problems with lighting, air conditioning units, plumbing, and the like. The plan provided for periodic pest control service. There was a full-time maintenance man on the staff, kitchen employees, and outside maintenance workers to do electrical and plumbing work. The facility also retained a maintenance consultant to oversee its maintenance system.

   
   

4. The Department conducted an annual survey of Manhattan Convalescent Center on June 2 and 3, 1981. At that time, four of the five water fountains in the facility were not properly functioning. One of the fountains did not work at all, and three others allowed too small a flow of water to be usable. Department employees conducted a follow-up visit on September 3, 1981, and the water fountain deficiencies had not been corrected. The Department conducted a surveillance survey on November 23, 1981, and three of the five water fountains were still not functioning adequately. After the November 23, 1981, surveillance visit by Department personnel, the Respondent took steps to repair the water fountains. By the end of January, 1982, they were all functioning. One of the fountains was difficult to repair because a part was difficult to obtain. While all of the water fountains were not operable, there is no evidence from which it could be concluded that patients were not provided an adequate supply of drinking water. Each patient was provided a carafe of water and a glass on a daily basis.

   
   

5. Despite the fact that the convalescent center had a maintenance plan, the building in numerous respects was not maintained in a clean and orderly manner. On November 23, 1981, storage rooms at the facility were cluttered and nearly inaccessible. One storage room, known as the "pink storage room," was filled with dirty wheelchairs. No aisle was left for access into the room. In another storage room, parts of beds and wheelchairs were lying about in disarray

   on the floor. In a room designated as the "activity storage room," a sink and a water closet had been taken off the wall and were lying on the floor. In the kitchen, there was dirt or soot behind the stove, on the hood above the stove, and on the walls and tables. Utensil and storage drawers were dirty and required cleaning. There was a considerable buildup of soot behind the washers and dryers in the laundry room. Ice chest containers throughout the facility were dirty and had no separate containers for the ice scoops. On Wing IV, there were cobwebs in the window of the men's shower.

   
   

6. There is no evidence from which it could be concluded that any of this disarray created a health or safety hazard to patients at Manhattan Convalescent Center. The facility's maintenance system was not operating, however, to effectively provide for cleaning of storage areas, the kitchen, the laundry room, and the ice chest containers. The cobwebs appear to be a problem of a minimal sort and simply could have been overlooked by the person who cleans the shower area.

   
   

7. Numerous lighting sources were not functioning at the time that the Department conducted its annual, follow-up, and surveillance visits to Manhattan Convalescent Center. In some cases, lights that were not functioning in June, 1981, were still not functioning by November 23, 1981. The emergency call lights for the men's and women's showers on Wing I of the facility were not functioning. The emergency call system was also not functioning in the women's bathroom on Wing II, the men's shower room on Wing III, and the men's bathroom on Wing IV. Numerous lights were not functioning at other locations around the facility at the time that the Department visited the facility in June, 1981; September, 1981; and November, 1981. It is to be anticipated that some lights would not be functioning at a facility the size of Manhattan Convalescent Center at any given time. It is evident, however, that the maintenance program was not functioning adequately during the period from June, 1981, through November, 1981, to observe and correct lighting problems. Deficiencies in the emergency call system are the most compelling lighting problems that were observed at the facility. It does not appear that steps were taken to correct these deficiencies until after the November 23, 1981, surveillance visit by the Department. The deficiencies have now been corrected.

   
   

8. On each of the three visits during 1981, various air conditioning units were not functioning. Manhattan Convalescent Center utilizes individual air conditioning units to cool and heat patient rooms and bathroom and shower facilities. It is to be expected that at any given time some of the air conditioning units will not be functioning properly. It does not appear that the facility's air conditioning deficiencies were in excess of those that are reasonably to be anticipated with a facility the size of the center. There was one room where the space for a window-unit air conditioner was boarded up. This was not, however, the result of a failure of the air conditioning unit in the room. Rather, the room was being used to repair other air conditioning units. A unit would be placed in the window, maintenance performed, then it would be placed back in operation. In the interim, a board was used to close the space.

   
   

9. Live roaches were observed at several locations in Manhattan Convalescent Center on November 23, 1981. This was not the result of an infestation at the facility. Regular periodic pest control service was performed at the facility on the day of the inspection. The number of roaches seen is consistent with a flushing out of roaches at the facility. It is to be anticipated that roaches will invade such a facility from the outside and that they will be flushed out by regular service. It appears that Manhattan

   Convalescent Center had an adequate program to prevent infestation of insects, such as roaches, and that there was no infestation.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Sections 120.57(1), 120.60, Florida Statutes.

    
    

11. Section 400.141, Florida Statutes, provides that nursing home facilities must comply with rules and regulations of the Department of Health and Rehabilitative Services and maintain their premises and equipment and conduct operations in a safe and sanitary manner. The Department has adopted rules that set maintenance and housekeeping requirements for nursing home facilities. The rules appear at Chapter 10D-29, Florida Administrative Code.

    
    

12. Rule 10D-29.49(1)(b), Florida Administrative Code, provides in pertinent part that nursing home facilities must have an adequate maintenance plan and necessary staff to keep all water supply systems in a safe and functioning condition. Manhattan Convalescent Center violated the provisions of the rule by allowing three of the five water fountains to remain inoperable from June, 1981, until November 23, 1981. By violating the Department's rule, the Respondent also violated the provisions of Section 400.141(4), Florida Statutes.

    
    

13. The Department's Rules 10D-29.49(1)(a) through (f) provide that nursing home facilities must have effective maintenance plans and necessary staff to keep buildings in good repair; keep mechanical systems operable; keep plumbing fixtures in good repair; maintain paint and the exterior of the building; keep furniture and furnishings attractive and in good repair; and keep grounds and buildings in a safe, sanitary, and presentable condition. The Respondent's failure to maintain good housekeeping practices, as set out in Paragraphs 5 and 6 of the Findings of Fact, constitute a violation of the provisions of the rules. Because the Respondent violated the provisions of the rules, it also violated the provisions of Section 400.141(4), Florida Statutes.

    
    

14. In the Administrative Complaint, the Respondent is charged with failing to provide adequate lighting as required in the Department's Rule 10D- 29.52(5)(g), Florida Administrative Code. This allegation has not been sustained by the evidence. While it appears that the Respondent failed to adequately maintain its lighting system and that this may have constituted a violation of Rule 10D-29.49(1), a violation of Rule 10D-29.52(5) has not been established. That rule provides for specific lighting standards to be maintained at nursing homes. There is no evidence from which it could be concluded whether other lighting sources might have complied with the provisions of the rule or not.

    
    

15. It is alleged in the Administrative Complaint that the Respondent failed to meet ventilation requirements set out at Rule 10D-29.52(5), Florida Administrative Code, by failing to properly maintain air conditioning and heating units. This allegation is not sustained by the evidence.

    
    

16. It is alleged in the Administrative Complaint that live roaches were observed and that the roaches establish a violation of Rule 10D-29.49, Florida Administrative Code. This allegation is not sustained by the evidence.

    
    

17. Section 400.102(1)(c), Florida Statutes, provides that violations of the provisions of the Department's rules constitute grounds for action by the

Department of Health and Rehabilitative Services against the nursing home facility. In accordance with Section 400.121, Florida Statutes, the Department is authorized to revoke or suspend a license or to impose an administrative fine within certain parameters. The Respondent's violations of the Department's rules, as set out in Paragraphs 3 and 4 of these Conclusions of Law, justify an administrative fine in the amount of $500.

RECOMMENDED ORDER

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

RECOMMENDED:

That the Department of Health and Rehabilitative Services enter a final order finding the Respondent guilty of violating the Department's rules, as set out in Paragraphs 3 and 4 of the Conclusions of Law herein, and imposing an administrative fine against the Respondent in the amount of $500.

RECOMMENDED this 24th day of March, 1983, in Tallahassee, Florida.

G. STEVEN PFEIFFER 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 24th day of March, 1983.

COPIES FURNISHED:

Janice Sortor, Esquire Department of Health and Rehabilitative Services 4000 West Buffalo Avenue Tampa, Florida 33614

Edward P. de la Parte, Jr., Esquire de la Parte & Gilbert, P.A.

705 East Kennedy Boulevard Tampa, Florida 33602

Mara Beth Sommers, Esquire Finley, Kumble, Wagner, Heine & Underberg

10th Floor, Flagship Center 777 Brickell Avenue

Miami, Florida 33131

Mr. David Pingree Secretary

Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 82-001631

Orders for Case No: 82-001631