STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 83-936

) V and C ENTERPRISES, INC., d/b/a ) LAKEVIEW MANOR NURSING HOME, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice on May 24, 1983, in Tampa, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case was presented upon an Administrative Complaint filed by the Department of Health and Rehabilitative Services against the Respondent which alleged that the Respondent violated specific provisions of the statutes and rules. As the case developed, it became clear that the Respondent did not controvert the factual allegations of the Administrative Complaint but asserted that the Department had not given the Respondent adequate notice of when the deficiencies were to be corrected.

APPEARANCES

For Petitioner: Carol M. Wind, Esquire

Department of Health and Rehabilitative Services

2255 East Bay Drive Clearwater, Florida 33518

For Respondent: Lawrence S. Kleinfield, Esquire

695 Central Avenue, Suite 207 St. Petersburg, Florida 33701

Both parties submitted post hearing proposed findings of fact in the form of a proposed recommended order. To the extent the proposed findings of fact have not been included in the factual findings in this order, they are specifically rejected as being irrelevant, not being based upon the most credible evidence, or not being a finding of fact.

FINDINGS OF FACT

1. The Respondent is licensed to operate Lakeview Manor Nursing Home, 815 Seventh Avenue South, St. Petersburg, Florida 33701, as a nursing home facility in compliance with Chapter 400, Part I, Florida Statutes, and Chapter 10D-29, Florida Administrative Code.

2. The Petitioner conducted a survey of Lakeview Manor on November 22-23, 1982, with a team of specialists. A registered nurse with public health experience conducted the portion of the inspection related to nursing, and the team was led by a hospital consultant of the Department.

   
   

3. During the inspection, the team's registered nurse observed that protective devices such as flotation mattresses, foam pads, sheepskins and/or heel pads were not provided for several patients with fragile skin conditions.

   
   

4. The team's registered nurse observed that a suction machine was not available for emergency use because the only such equipment available was being used by a patient, and a backup had not been provided. A system for providing a backup machine had not been developed.

   
   

5. During the inspection, the team's registered nurse also observed that tube-feeding equipment which was disposable was being used for as long as one week with only cursory cleaning between feedings.

   
   

6. The team's registered nurse also observed that clean and soiled functions were not separated in the utility, nourishment and linen storage areas. Clean and soiled functions were also not separated at the nursing station.

   
   

7. The team's registered nurse also observed that aseptic techniques were not used during the changing of dressings due to the lack of sterile gloves and improper technique with topical medications.

   
   

8. During the inspection, the team's registered nurse observed the procedures for storage of clean linen were inadequate because the linen was not removed from delivery packages prior to storage in linen closets. This required the staff to handle the linen several times while locating needed items, and packaging materials littered-the linen storage area.

   
   

9. At the exit interview, there was a departure from normal procedure because Lakeview Manor's nursing supervisor had to leave early. Therefore, the team's registered nurse briefed Lakeview's nursing administrator out of normal order and simultaneously with the team leader's briefing of Lakeview Manor's administrator. Lakeview's nursing administrator was advised of each of the deficiencies set out in paragraphs 3 through 8 above. Because so many deficiencies had been found, the team's leader recognized that all of the deficiencies could not be corrected immediately. Therefore, the team leader advised Lakeview Manor's administrator that he would have 30 to 60 days to correct the deficiencies, and that if the time frame for correcting the deficiencies had to be shortened the Department would notify Lakeview's administrator. No further communication occurred between the Department and the Respondent prior to December 10 and 13, 1982, when a follow-up inspection was made of the facility.

   
   

10. The follow-up inspection revealed that steps had 7 been taken to correct some of the deficiencies, but all of the conditions had not been fully corrected.

    
    

11. During the follow-up inspection, the inspection team's registered nurse observed that protective devices were available but were not being used in all cases for patients with fragile skin conditions.

12. During the follow-up inspection, the team's registered nurse observed that the patient who had been using Lakeview Manor's only suction machine had been discharged during the night, but the machine had not been cleaned. A system for providing a backup suction machine had not been developed.

    
    

13. During the follow-up inspection, the team's registered nurse observed that the disposable feeding syringes were being disposed of but the basins were still being used for one-week periods.

    
    

14. During the follow-up inspection, it was observed that the clean and soiled functions had not been completely separated in the utility, nourishment and linen storage areas, although steps had been taken to improve the situation. The deficiencies existing at the nursing station had been substantially corrected.

    
    

15. During the follow-up inspection, the team's registered nurse observed that aseptic techniques were not used during dressing changes, although the nursing personnel were using gloves. The primary cause of this deficiency was inadequate supplies of dressings that were large enough.

    
    

16. Although corrections had been made in the linen storage area, packaging materials were still stored in the area.

    
    

17. On December 15, 1982, the Petitioner notified Lakeview Manor in writing of the deficiencies it had discovered on both inspections.

    
    

    CONCLUSIONS OF LAW

    
    

18. The Department of Health and Rehabilitative Services has jurisdiction to discipline the Respondent pursuant to the provisions of Chapter 400, Part I, Florida Statutes. This Recommended Order is entered pursuant to the authority of Section 120.57(1), Florida Statutes.

    
    

19. The Respondent does not controvert the fact that deficiencies were discovered on the initial inspection by the Petitioner's representatives or that the deficiencies were not fully corrected on the Petitioner's second inspection. These conditions constitute violations of Rules 10D-29.104(1)(d) 10D- 29.108(5)(b)1, and 10D-29.122(1)(b) , Florida Administrative Code, and Section 400.141(4)., Florida Statutes.

    
    

20. The Respondent asserts that it was not advised to correct these deficiencies within a stated time and, in light of the instructions given by the inspection team, it was working to correct the deficiencies within a 30 to 60- day time frame. The Respondent asserts that the failure of the Petitioner to notify the Respondent in writing of the deficiencies and when they should be corrected precludes the Petitioner from levying a civil penalty because the Petitioner has not followed the provisions of Section 400.23(4)(b) and (c), Florida Statutes.

    
    

21. Both Subsections (b) and (c), supra, provide that a citation for a Class II or Class III deficiency shall specify the time within which the deficiency is required to be corrected. Both Subsections (b) and (c), supra, limit the imposition of a civil penalty to repeated violations.

    
    

22. The authority to assess civil penalties up to $1,000 for each and every deficiency is a powerful tool delegated by the Legislature to the Petitioner. This authority is limited with regard to Class II and Class III

    violations only by the requirement that the Petitioner cite the violation and state a time within which the deficiency is to be corrected. This requirement for a citation is the essential procedural difference between Class II and III violations and Class I violations. The word "citation" is defined by Webster's New Collegiate Dictionary as follows:

    
    

    1. an official summons to appear (as before a court) 2. an act of quoting, esp: the citing of a previously settled case at law . . . 3. . . . a formal statement of the achievements of a

person . . .

The use of the word "citation" would indicate that written notice of the violations and the time within which they are to be corrected is required. This was not provided. If, however, the Petitioner deems the exit conference sufficient to meet the requirements of the statute, then the verbal instructions received by Lakeview Manor's administrator indicated he had 30 to 60 days within which to correct the deficiencies. Because there was no written citation issued indicating a specific time within which to correct the deficiencies contrary to the verbal instructions given, the Petitioner is precluded from levying the fine because technically the violations were not repeated until the passage of the time for correcting the deficiencies. Reinspection occurred within 30 days.

22. Although the Petitioner cites rules which would require Class II violations to be corrected within 72 hours, said rules do not relieve the Petitioner of its obligation to adhere to the statutes. The wisdom of the statutory requirement is demonstrated by the factual situation presented in the instant case. It is impossible to argue lack of knowledge when written notice is given, and the date of delivery starts the time period for correcting deficiencies. Many inspectors for state agencies, including Petitioner, provide the persons inspected with written copies of their reports which state the time in which deficiencies are to be corrected. This seems a minimal step by an agency when establishing a predicate for levying civil penalties, which can range up to $1,000 for each and every deficiency.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Department of Health and Rehabilitative Services not levy the civil fines.

DONE and RECOMMENDED this 28th day of June, 1983, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN, 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 28th day of June, 1983.

COPIES FURNISHED:

Carol M. Wind, Esquire Department of Health and

Rehabilitative Services 2255 East Bay Drive Clearwater, Florida 33518

Lawrence S. Kleinfield, Esquire 695 Central Avenue, Suite 207 St. Petersburg, Florida 33701

David H. Pingree, Secretary Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 83-000936

Orders for Case No: 83-000936