STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASES NO. 83-1827

) 83-2251

HILLHAVEN, INC., d/b/a HILLHAVEN ) CONVALESCENT CENTER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held in the above cases before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings, in Tallahassee, Florida, on October 7, 1983. The issue for consideration was whether Respondent should be fined or otherwise disciplined for its alleged repeated multiple violations of Florida Statutes (1981) and the Rules of the Department outlined in the Florida Administrative Code.

APPEARANCES

For Petitioner: Robert P. Daniti, Esquire

Department of Health and Rehabilitative Services

1323 Winewood Boulevard Building One, Room 406 Tallahassee, Florida 32301

For Respondent: Stephen H. Durant, Esquire

3000 Independent Square

Jacksonville, Florida 32202 BACKGROUND INFORMATION

On April 22, 1983, Jay Kassack, Petitioner's Director of Licensure and Certification, signed an administrative complaint in this case alleging that Respondent had violated a section of the Florida Statutes (1981) and the Rules of the Department of Health and Rehabilitative Services (HRS) by allowing its food service supervisor to be directly employed in food preparation for a substantial period of the workweek and indicating its intention to assess an administrative fine. Respondent submitted a request for formal hearing on May 20, 1983.

Before the case could be heard, however, on June 16, 1983, HRS filed an additional administrative complaint, based on a follow-up visit, in which it alleged not only that the previous violation had not been corrected, but also additional violations of the rules and the statute. Respondent filed its second request for formal hearing on July 6, 1983. Upon request of HRS for

consolidation of the cases dated August 3, 1983, the cases were consolidated on August 16, 1983.

At the hearing, the parties stipulated to all material issues of fact as alleged in the administrative complaint and indicated that the only issue for consideration was one of law; that is, does Respondent's action constitute a violation of the rule in question? A separate issue as to the appropriateness of proposed fines, in the event of finding of violation, was also argued.

Petitioner called Hardy C. Kinney and introduced Petitioner's Composite Exhibits 1 through 3.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, HRS had jurisdiction over Respondent, which lawfully operates Hillhaven Convalescent Center, a nursing home facility in Sarasota, Florida.

   
   

2. At all times pertinent hereto, the patient census at Hillhaven Convalescent Center exceeded 61.

   
   

3. During the period July 13 through 15, 1982, an inspector employed by HRS conducted a survey of Respondent's facility. Among several deficiencies found, all of but one of which were corrected, was one indicating that the duties of the individual hired by Respondent as food services supervisor regularly included food preparation. The individual in question spent 24 hours of a 40 hour workweek as a full time cook. This deficiency was noted on the inspection report and brought to the attention of the provider's representative.

   
   

4. A follow-up inspection of the facility was conducted by HRS representatives on February 15 through 17, 1983, at which time it was noted that the prior noticed deficiency had not been corrected. Though the number of hours the food services supervisor cooked had been reduced to 16 per 40 hour workweek, inspectors concluded this was still unsatisfactory and again cited the facility in the report for this as well as other deficiencies in the social services area.

   
   

5. In a follow-up inspection on April 7, 1983, the inspector again found that the dietary services supervisor was acting as a cook for 16 or more hours per week. This deficiency was in addition to the continuing social services deficiencies which Respondent admits also continued.

   
   

6. Hardy C. Kinney, a nutrition specialist with HRS and one of the individuals involved in the development of the agency's rules regarding food service which are allegedly violated here, indicated that as long as approximately six years ago, a committee was formulated within HRS to develop rules in the area of institutional food services such as here. The committee's concerns were to insure that the food service supervisor be a well trained individual whose job would be to consider the therapeutic nutritional needs of the patients--not to prepare and serve food. It was the feeling of the committee members, garnered from observations of other facilities where the supervisor does both, that when the food service supervisor is cooking and serving, he or she does not have the time to devote to proper patient care.

   
   

7. There is a close relationship between food and diet and the welfare of the patient. When a patient is admitted to the facility, the physician writes that patient's nutritional orders. There is some variance permitted for taste

   and texture changes in the diet to make the food more interesting to the patient. Experience has shown that when the food is more interesting and attractive, the patient takes it better and thereby benefits from eating. As a result, the supervisor needs to talk with patients to determine the patients' preferences as to what foods they like and how they like it cooked. He or she also needs to spend the available work time working out strategies to meet the nutritional needs of the patients and supervising the procuring, receiving and storing of food. In short, the intent of the committee was to minimize the number of distractions the supervisor had to deal with as a nutritionist so as to promote proper patient food care.

   
   

8. Mr. Kinney indicated the idea of the committee which developed the rule in question was not to block totally the participation of the supervisor from food preparation in emergency situations. However, it was most definitely the intent of the rule drafters that the food preparation and service was not to be even a minuscule portion of the supervisor's duties, except for emergencies. According to Mr. Kinney, even if a food services supervisor works one hour per week in a nonemergency situation, if this requirement is written into the job description, or is accomplished as a routine task on a recurring basis, the agency considers it a primary duty which is prohibited by the rule in question.

   
   

9. It is pertinent to note here that in the instant case, the inspectors were not in any way contending that the rule violation resulted in a diminishment of patient care. To the contrary, Mr. Mitchell, the then incumbent food services supervisor, had, in general, done all that was required. He was not able to accomplish it all in the normal work time, however. His work schedule during the period December 10, 1982, to February 24, 1983, was as follows:

   
   

   Dec. 10-16: 24 hrs. cook; 16 hrs. off; 16 hrs. supervise = 60 percent cook

   
   

   Dec. 17-23: 24 hrs. cook; 16 hrs. off; 16 hrs. supervise = 60 percent cook

   
   

   Dec. 24-30: 16 hrs. cook; 16 hrs. off; 16 hrs. supervise = 50 percent cook

   
   

   Dec. 31-Jan. 6: 16 hrs. cook; 24 hrs. off; 16

   hrs. supervise = 50 percent cook

   
   

   Jan. 7-13: 24 hrs. cook; 16 hrs. off; 16 hrs. supervise = 60 percent cook

   
   

   Jan. 26-27: 8 hrs. cook; 8 hrs. supervise =

   50 percent cook

   
   

   Jan. 28-Feb. 3: 24 hrs. cook; 16 hrs. off; 16

   hrs. supervise = 60 percent cook

   
   

   Feb. 4-10: 32 hrs. cook; 8 hrs. off; 16 hrs. supervise = 66 percent cook

   
   

   Feb. 11-17: 24 hrs. cook; 16 hrs. off; 16 hrs. supervise = 60 percent cook

   Feb. 18-24: 32 hrs. cook; 8 hrs. off; 16 hrs. supervise = 66 percent cook

   
   

   From the above, it can readily be seen that during the period in question, prior to and just subsequent to the first inspection, the food services supervisor spent between 50 and 66 percent of his time in food preparation and service.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of the proceedings.

    
    

11. In Paragraphs (3)(c) and (d) of the administrative complaint in Case No. 83-2251, the Respondent is alleged to have failed to identify and provide required social services [(c)] and failed to assess the emotional needs of the patients, develop an appropriate plan, review and modify that plan as required and properly document patient social services [(d)]. Respondent admits it was in violation of these provisions and is thereby subject to penalty under Section 400.141, Florida Statutes (1981).

    
    

12. Respondent also admits it is in violation of Rule 10D-29.110(3)(c), Florida Administrative Code, by failing to employ a sufficient number of dietary services personnel to provide coverage without the supervisor having to regularly serve as a cook. This also violates Section 400.141, Florida Statutes (1981).

    
    

13. The main point of controversy here is whether Mr. Mitchell's working

    50 to 66 percent of the time on food preparation or service prior to February, 1983, and 40 percent of the time thereafter in that capacity constitutes a violation of Rule 10D-29.110(3)(b)3, Florida Administrative Code, which states:

    
    

    Persons designated as Dietary Services Supervisor shall be employed full time in the dietary services program. In a facility with a census of sixty one (61) or more patients, the primary duties of the Dietary Services Supervisor shall not include food preparation or service.

    
    

14. Petitioner notes in passing that Respondent has not challenged the rule in question pursuant to Section 120.56, Florida Statutes (1981). Respondent still does not contest the validity of the rule--only its meaning. The question here is, simply, given that Respondent falls within the purview of the rule is subject to it, what does the term "primary duties" mean?

    
    

15. The term "primary" is defined in Black's Law Dictionary (5th Ed. 1979) as "First; principal; chief; leading. First in order of time, or development, or in intention."

    
    

16. The term "primary purpose," which may be most closely compared with "primary duty," contains in its definition, by that same authority, the terms "That which is first in intention; which is fundamental."

    
    

17. There is little doubt here as to what the framers of the rule intended and that is that the food services supervisor expend most of his or her energies and thought on those duties within his job other than food preparation and service. Notwithstanding Mr. Kinney's testimony as to his recollection of the

    mind set of the drafting committee, the rule does not, as drafted, require that degree of exclusivity in performance that HRS applies to it.

    
    

18. Petitioner urges that the interpretation to be given to this rule should be that applied by the agency which drafted it and has the responsibility to enforce it. Barker v. Board of Medical Examiners, Department of Professional Regulation, 428 So.2d 720 (1 DCA Fla. 1983). This is true when there is any reasonable doubt as to the meaning of the rule in question by virtue of its terminology. Here, however, the rule is stated in simple and readily understandable language. The problem word "primary" is not a word of art or one peculiar to this agency. It is a common word, well understood and easily capable of definition.

    
    

19. Generally, words in a statute should be given their plain and ordinary meaning. Pederson v. Green, 105 So.2d 1 (Fla. 1958); American Bankers Life Assurance Company of Florida v. Williams, 212 So.2d 777 (1 DCA Fla. 1968); Graham v. State, 362 So.2d 924 (Fla. 1978). Here, the term in question, "primary," has a meaning which is readily apparent to a person of common understanding; it is simple enough and contains no inherent complexities or ambiguities, and the common definition is sufficient to advise the average man of the scope of the requirement. American Bankers Life Assurance Company of Florida v. Williams, supra; State v. Rou, 366 So.2d 385 (Fla. 1978).

    
    

20. In light of the above, therefore, the work schedule of Mr. Mitchell during the period alleged in the first administrative complaint reflecting that he worked between 50 and 66 percent of the time in food preparation and service is a clear violation of the rule and, therefore, Section 400.141, Florida Statutes (1981).

    
    

21. As to the second period, after the first inspection and before the second, the stipulation reflects Mr. Mitchell's hours spent in the actual preparation and service of food declined considerably to a point less than half the workweek. Here, in light of the duties outlined for a dietary services supervisor in Rule 10D-29.110(3)(b)4a-1, it is difficult to see how, if the function is properly performed (and there is evidence it was), cooking two full days per week or even a part of every day could constitute the primary duty of the individual from either a theoretical or practical standpoint. Of course, review of Rule 10D-29.110(3)(b)4a-1 reflects there are 12 separate tasks to be performed in carrying out the functions of a dietary services supervisor. It well may be that these 12 items individually may be less significant than 16 hours of cooking, in which case even the 16 hours would be the primary duty. However, there is no evidence on this point; and in the absence of any evidence or regulatory guidelines as how to consider these factors, they are best lumped together as "supervisory duties," vis-a-vis the nonsupervisory duties of food preparation and service.

    
    

22. Therefore, it is concluded that, considering the terms used by Petitioner in its rule in a reasonable and commonly accepted sense, Respondent did not violate the rule in question when Mr. Mitchell was cooking less than 50 percent of the time during the period from February 17, 1983, to April 7, 1983. In light of the maximum penalties provided by law, the fines proposed by HRS are not excessive.

    
    

23. The parties have submitted memoranda of law which 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 above. They have been otherwise

rejected as contrary to the better weight of the evidence, not supported by the evidence, irrelevant to the issues, or legally erroneous.

RECOMMENDATION

Based on the foregoing, it is, therefore, RECOMMENDED:

That Respondent be fined $100 for the violation alleged in the administrative complaint dated April 22, 1983, and $100 each for the violations alleged in Paragraphs (3)(b), (c) and (d) in the administrative complaint dated June 16, 1983, for a total of $400.

RECOMMENDED this 3rd day of November, 1983, in Tallahassee, Florida.

ARNOLD H. POLLOCK, 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 3rd day of November, 1983.

COPIES FURNISHED:

Robert P. Daniti, Esquire Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Building 1, Room 406

Tallahassee, Florida 32301

Stephen H. Durant, Esquire 3000 Independent Square

Jacksonville, Florida 32202

Mr. David Pingree Secretary

Department of Health and Rehabilitative Services

1323 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 83-001827

Orders for Case No: 83-001827