STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT ) OF HEALTH AND REHABILITATIVE ) SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 82-2430

) AMERICARE CORPORATION d/b/a ) CEDAR HILLS NURSING CENTER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings. This hearing was conducted on January 13, 1983, in the Richard P. Daniel Building, Jacksonville, Florida. 1/

APPEARANCES

For Petitioner: Reese A. Waters, Jr., Esquire

District Four, Department of HRS 5920 Arlington Expressway

Jacksonville, Florida 32231

For Respondent: Douglas D. Chunn, Esquire

2000 Independent Square

Jacksonville, Florida 32202 ISSUE

The issues presented here are as set forth in an Administrative Complaint brought by Petitioner against Respondent. Through the complaint, the Respondent is accused of violating various provisions of Chapter 400, Part I, Florida Statutes, and Chapter 10D-29, Florida Administrative Code, related to the availability of nurse call systems for patients in its nursing home and related to the presence of roaches in the facility. Petitioner attempts to impose fines against Respondent for the alleged violations. The stated authority for the fines would be as set forth in Chapter 400, Part I, Florida Statutes.

FINDINGS OF FACT

1. Respondent, Americare Corporation, is licensed by the State of Florida, Department of Health and Rehabilitative Services, to operate a nursing home facility in Jacksonville, Florida, known as Cedar Hills Nursing Center. This licensure is in accordance with Chapter 400, Part I, Florida Statutes, and Chapter 10D-29, Florida Administrative Code.

2. On October 27, 28 and 29, 1981, a license survey inspection was held at Respondent's licensed premises. The inspection was made by personnel from the Jacksonville office of the Department of Health and Rehabilitative Services, State of Florida. The purpose of the inspection was to determine compliance by the facility with the regulatory provisions of Chapter 400, Florida Statutes, and Chapter 10D-29, Florida Administrative Code.

   
   

3. One of the inspectors was Victor Raiser, whose position with Petitioner is that of Hospital Consultant. During the course of the inspection, Raiser noticed a number of roaches in the home. He saw approximately ten roaches, especially in the area of a bathroom near patient room 45 and in the area of the patients' visiting and social area. The number of roaches observed is an aggregate number, based upon observations over the three-day inspection which lasted an average of six to seven hours a day.

   
   

4. Following the survey in October, 1981, an exit conference was conducted with the nursing home administrator. The interview was held on October 29, 1981. The administrator at Cedar Hills is Billy Miles. At that time, Raiser told Miles of Raiser's concern about the roaches that had been seen. The presence of roaches was acknowledged by Miles.

   
   

5. Subsequent to the visit, Leroy C. Dykes, Supervisor, Area I, Office of Licensure and Certification, Department of Health and Rehabilitative Services, sent Miles his findings concerning the October, 1981, survey, together with a statement of deficiencies. The same form setting forth deficiencies has a section in which Respondent may offer plans of correction to be returned to Petitioner. See Petitioner's Exhibit 1, admitted into evidence. The letter of findings was dated November 4, 1981. The deficiencies form referred to observations of roaches in the October, 1981, inspection. It also referred to a prior citation for a roach problem on September 4, 1981, and characterized the situation in October, 1981, as being an "infestation."

   
   

6. The statement of deficiencies form was responded to by the facility. The stated plan of correction was to increase the pest control services to promote eradication of the roaches and to use caulking measures in the building and to remove unnecessary items such as food, suitcases, etc., from rooms within the facility. See Petitioner's Exhibit 1.

   
   

7. After receiving the statement of deficiencies, in addition to the form response setting out corrections related to roaches, Miles sent a letter to Dykes. This correspondence was dated November 16, 1981, a copy, of which may be found as Petitioner's Exhibit 4, admitted into evidence. In the correspondence, Miles took issue with the utilization of the term "roach infestation" and indicated the doubling of pest control services for November and December, 1981, to address the roach problem.

   
   

8. Bruce C. Baldwin, Regional Manager for Diversicare Corporation, a management corporation for Cedar Hills Nursing Center, wrote to Dykes on December 15, 1981, and again on January 13, 1982, explaining steps to be taken to deal with the roach problem. This included major extermination in January, 1982; the removal of contents of tables and closets in patient rooms; spraying furniture and baseboards and caulking of cracks and crevices in the building. It was also indicated that double visits would be made through April, 1982, to spray for roaches. Finally, Baldwin mentioned the intent of the Respondent to review insect control procedures. Copies of the pertinent portions of this correspondence may be found as Petitioner's Exhibit 7, admitted into evidence.

9. In keeping with the various statements of intent to address the roach problem, Respondent has carried out those plans.

   
   

10. In the October 27, 28 and 29, 1981, inspection, deficiencies were also noted on the subject of the nurse call system. Over the period of the visit, Raiser noted that cord and activator switches for call systems were not plugged into the wall jack in certain patient rooms. In other cases, he observed that the plug in the wall jack had been partially pulled out which rendered the cord and activator switch inoperable. The switches in the patient rooms which had been unplugged or partially unplugged were tested and found to be operable. Switches which had been partially pulled out on the first day were observed to be partially pulled out on the second day of the inspection, rendering them inoperable on that second day.

    
    

11. Raiser also found operable call devices where the enunciators were not available to the patients, in that they had fallen behind the patient beds or were otherwise inaccessible to the patient. There were some patient rooms examined where the nurse call activator switch was wrapped and secured with rubber bands and placed behind patients' beds, preventing access to the device.

    
    

12. The aforementioned call device problems pertained to Patient room 12, 21, 25, 27, 36, 52, 54, 56, 58 and 34. It was not established what condition rendering the device inoperable or inaccessible pertained to which room.

    
    

13. In the October, 1981, inspection of the tub room adjacent to patient room 57, it was revealed that a chain was missing from the activator switch for the nurses call device. No proof was made of the necessity to have the chain available to operate the switch in the tub room.

    
    

14. These circumstances related to nurse call devices were alluded to in the findings letter of November 5, 1981, from Dykes to Miles and in the statement of deficiencies attachment to those findings. See Petitioner's Exhibit 1. In response to the statement of deficiencies, as found in Exhibit 1, the call bell systems were made accessible to the patients and damaged cords were replaced and missing cords installed. In addition, staff meetings were held with each shift concerning the inaccessibility of call devices for patients.

    
    

15. In the course of a further inspection of the Cedar Hills facility conducted on November 9 and 10, 1981, employees of Petitioner found the nurse call switch device was missing from a bed in patient rooms 21, 22, 54 and 56. They also found two of the nurse call devices were tied with rubber bands rendering them inaccessible in patient room 27. This is spoken to in the statement of deficiencies, a copy of which is found as Petitioner's Exhibit 6, admitted into evidence. Respondent responded to the statement of deficiencies of the November, 1981, appraisal by replacing the bell portion of the call devices in rooms 21, 22, 23, 54 and 56. Moreover, a staff meeting was held on November 10, 1981, with each employee work shift, to discuss the call device problem.

    
    

16. By further way of explanation, Claudette Bramer, Nursing Director at Cedar Hills, discussed the housekeeping procedures of the nursing home and the fact that during the course of those activities, call buttons are occasionally removed to conduct cleaning chores related to the patients' rooms. This is especially true when beds are made. Patients are out of their rooms when clean ups are being done. It is the policy of the nursing home to replace the plug on the call device after the clean up has been concluded. Additionally, Bramer is

    aware of instances in the nursing home in which the patients have pulled the call device plugs out of the wall, rendering them inoperable. In dealing with this circumstance, plugs are reinserted into the jacks when they are discovered to be inoperable.

    
    

17. The Administrative Complaint, which is the subject of this Recommended Order, pertains to the events of October 27, 28 and 29, 1981, related to roaches and nurse call devices.

    
    

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. See Section 120.57, Florida Statutes.

    
    

19. Rule 10D-29.33(4), Florida Administrative Code, which was in effect in October, 1981, required Respondent to comply with all provisions of Chapter 10D- 29, Florida Administrative Code. That Rule was repealed on January 27, 1982; however, it was substantially reenacted as Rule 10D-29.104(1)(e) , Florida Administrative Code, at that time.

    
    

20. Rule 10D-29.49(1)(f), Florida Administrative Code 2/ , which was in effect in October, 1981, required Respondent to keep the grounds and buildings of its facility free of insect breeding areas." That Rule was repealed on January 27, 1982, and substantially reenacted as Rule 10D-29.l22(1)(g), Florida Administrative Code 3/ , on that same date. The new Rule refers to vermin "breeding areas." Nonetheless, the term vermin would encompass roaches within its meaning as can be seen in Rule 10D-29.125(1) 4/ , Florida Administrative Code, effective January 27, 1982.

    
    

21. Both under the old Rule provision and current Rule provision, the requirement for the facility was to prevent "breeding areas" for roaches. Although roaches have been observed in the nursing home, those observations are not sufficient to indicate the existence of a "breeding area" on the grounds or in the building. Consequently, Petitioner has failed to prove a violation of the Rule concerning roaches in the facility, nor has it been shown that the Respondent failed to maintain the premises in a sanitary manner, in violation of Subsection 400.141(4), Florida Statutes, as alleged.

    
    

22. In accordance with Rule 10D-29.33(4), Florida Administrative Code, as substantially reenacted as Rule 10D- 29.104(1)(e), Florida Administrative Code, Respondent is accused of violating Rule 10D-29.49(1)(b), Florida Administrative Code 5/ , related to functionality of electrical equipment, in this instance the call devices. That Rule was repealed; however, it was substantially reenacted as Rule 10D-29.122(1)(d) Florida Administrative Code 6/ . The former Rule on functionality of electrical equipment existed in October, 1981. Its repeal and the enactment of the current rule occurred on January 27, 1982.

    
    

23. It is further alleged that the problems related to call devices are in violation of Rule 10D-29.52(3)(b)1. and (4), Florida Administrative Code, with associated table of requirements No. 36 7/ . That provision existed in October, 1981, and was repealed on January 27, 1982, and replaced by substantial reenactment through Rule 10D-29.121(3)(b) and (4), Florida Administrative Code, with associated table of requirements No. 48 and Note 26 8/ . Both the former and present rules and tables of requirements provide for the necessity of operable and accessible nurse call systems in the bedrooms and bath areas of the nursing home.

24. It is further alleged that Respondent failed to maintain the call devices in a safe manner in violation of Subsection 400.141(1), Florida Statutes. Finally, it is alleged that the Respondent violated the rights of the patients in its facility, on the topic of the availability of operable call devices in October, 1981, in violation of Subsection 400.022(1)(g), Florida Statutes.

    
    

25. The quality and number of inoperable and inaccessible call devices in patients' rooms as observed in the October, 1981, visit, established violations of the aforementioned rules and statutory provisions referred to in the discussion of the call devices. This conclusion is reached notwithstanding the possible inoperability of certain of those devices related to house cleaning functions performed by the Respondent and actions by patients in removing those devices. These explanations and defenses do not satisfactorily respond to the high number of incidents observed in the course of the inspection.

    
    

26. There was an allegation related to a missing call chain on the activator switch in the tub room adjacent to A, Room 57. It was not established that the chain was a necessity in activating the switch and that accusation was not proven and no violation has been established of the various rules and statutory provisions related to that section.

    
    

27. The violations related to the call devices enable the Department to take action in keeping with Section 400.102, Florida Statutes, and to impose a fine pursuant to Subsection 400.121(1), Florida Statutes.

It is therefore, RECOMMENDED:

That a final order be entered which dismisses those allegations made against Respondent on the subject of roaches in the nursing home and the missing call chain in the tub room adjacent to Room 57, and imposes a fine in the amount of $250 for the violations of statutory and rule provisions related to the call devices in patients' rooms.

DONE and ENTERED this 7th day of February, 1983, in Tallahassee, Florida.

CHARLES C. ADAMS, 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 7th day of February, 1983.

ENDNOTES

1/ Respondent has offered a proposed recommended order. This proposal has been reviewed prior to the entry of the Recommended Order. To the extent that the proposal is consistent with the Recommended Order, it has been utilized. To the extent that it is inconsistent with the Recommended Order, it is rejected.

2/ (f) Keep the grounds and buildings in a safe, sanitary and presentable condition. Grounds and buildings shall be kept free from refuse and litter, as well as insect and rodent breeding areas.

3/ (g) The grounds and buildings shall be maintained in a safe, sanitary, and presentable condition and kept free from refuse, litter, and vermin breeding or harborage areas.

4/ (1) Each facility shall be kept free of all insects, rodents, and other vermin. Effective control methods shall be employed to protect against the entrance into the facility and the breeding or presence on the premises of flies, roaches, rodents, and other vermin.

5/ (b) Keep all heating, air conditioning, electrical, mechanical, water supply, fire protection and sewage disposal systems in a safe and functioning condition and current certification of regulations for these systems shall be maintained on file. Electrical wiring cords and appliances shall be maintained in a safe condition. Emergency generators shall be tested weekly.

6/ (d) All mechanical and electrical equipment shall be maintained in working order and accessible for cleaning and inspection;

7/ (3) Application of new and existing construction standards.

1. The "existing" construction standards shall apply as follows:

   1. Currently licensed facilities that comply with all code standards for "existing" buildings are deemed to be conforming and additions may be made thereto without change of the existing portion except for construction requirements outlined in paragraph 101.4 of Southern Standard Building Code 1969 Edition. The portion added must comply with the "new" requirements.

(4) The following table of requirements shall apply: Requirement 36: Requirement for nurse call system from bed, toilet, bath, shower to corridor and nursing station.

8/ (3)(b) Standards for existing construction.

(4) Each facility shall comply, as appropriate, with the standards in Tables I, II, and III attached to the end of this section.

Requirement No. 48: A nurse calling system shall be provided. Note 26: Except as provided in Note 27, each bed shall he provided with a call button. Two call buttons serving adjacent beds may be served by one calling station. The calls shall identify the room at the nursing station and shall actuate a visible signal in the corridor at the bedroom door. In rooms containing two or more calling stations, indicating lights shall be provided at each station. Nurse calling systems which provide two-way voice communication shall be equipped with an indicating light on each calling station which lights and remains lighted as long as the voice

circuit is operating. Except as provided in Note 27, distinctive signal nurse call emergency button shall be provided at each patient use toilet, bath, and shower room. Such a button shall be accessible to a collapsed patient lying on the floor (inclusion of a pullcord will satisfy this item)

COPIES FURNISHED:

Reese A. Waters, Jr., Esquire District Four, Department of HRS 5920 Arlington Expressway

Jacksonville, Florida 32231

Douglas D. Chunn, Esquire 2000 Independent Square

Jacksonville, Florida 32202

David Pingree, Secretary Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 82-002430

Orders for Case No: 82-002430