STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VICTOR CHADEE, )

)

Petitioner, )

)

vs. ) CASE NO. 84-2225

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF NURSING ) HOME ADMINISTRATORS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before William R. Cave, Hearing Officer with the Division of Administrative Hearings, on August 16, 1985 in St. Petersburg, Florida. The issue for determination is whether Respondent's application for licensure as a nursing home administrator should be denied.

APPEARANCES

For Petitioner: Douglas A. Mulligan, Esquire

1327 Ninth Street

St. Petersburg, Florida 33705

For Respondent: Deborah D. Hart, Esquire

Assistant Attorney General Tallahassee, Florida 32301

By letter dated May 31, 1984, Respondent denied Petitioner's application for licensure as a nursing home administrator and as grounds for such denial of licensure the Board of Nursing Home Administrators (Board) relied on the Petitioner's record as owner of Lakeview Manor Nursing Home and Royal Nursing Home to show that Petitioner was not of good character and that he had violated Section 468.175(g)(k)(m), Florida Statutes.

Petitioner testified on his own behalf and presented

the testimony of Fred Lane. Petitioner offered no exhibits. Respondent presented the testimony of Fred Lane, Melvin C. Rhodes, Carol E. King, Barbara DeLong, and Louise E. Simons. Respondent's exhibits 1-6 and 8-11 were received into evidence.

The parties have submitted posthearing Proposed Findings of Fact and Conclusions of Law. A ruling has been made on each proposed finding of fact as reflected in the Appendix attached to this Recommended Order.

FINDINGS OF FACT

1. Petitioner first applied for licensure as a nursing home administrator with the Board on September 21, 1978 and subsequently passed the Nursing Home

   Administrators Examination on December 12, 1980 but was denied licensure by letter from the Board on March 3, 1981. Upon denial of licensure by the Boards Petitioner timely requested a formal hearing in accordance with Section 120.57(1), Florida Statutes, but on April 23, 1981 Petitioner, by letter to the Hearing Officers withdrew his request for a formal hearing and the file was closed on April 28, 1981 by the Hearing Officer. Petitioner reapplied for licensure as a nursing home administrator on April 20, 1984 and the Board relying on Petitioner's previous passing score did not require Petitioner to retake the examination. The Board again denied Petitioner licensure and by letter dated May 31, 1984 stated as grounds for denial the Petitioner's record as owner of Lakeview Manor Nursing Home and Royal Nursing Home, as more specifically set out in the Board's letter of March 3, 1981. The Board concluded:

   
   

   1. You are not of good characters as required by Section 468.1685, F.S., and Rule 21Z-11.01, F.A.C.

   2. The consistent failure of Lakeview Nursing Home and Royal Nursing Home to show compliance with the law concerning patient trust funds is attributable to you, and is a violation of Section 468.1755(g)(k), and (m), F.S.

   3. The consistent pattern of late payment of bills of Royal Nursing Home and Lakeview Manor Nursing Home and the consequent narrow escapes from the termination of utility services and cessation of delivery of food and necessary supplies is attributable to you and is a violation of Section 468.1755(g), (k) and (m), F.S.

   4. The pattern of inadequate supplies of cleaning materials, food, and other supplies at Lakeview Nursing Home and Royal Nursing Home is attributable to you and constitutes a violation of Section 468.1755(g)(k) and (m), F.S.

   5. Instances of inadequate staffing of nurses at Royal Nursing Home are attributable to you and constitute violations of Section 468.1755(g)(k) and (m), F.S.

   6. The failure of Lakeview Manor Nursing Home and Royal Nursing Home to pay administrative fines levied by the Department of Health and Rehabilitative Services is attributable to you and constitutes a violation of Section 468.1755(m), F.S.

   7. The failure of Royal Nursing Home

      to pay unemployment taxes for over one year, which was not remedied until a suit seeking a hiring freeze was imminent, is attributable to you and constitutes a violation of Section 468.1755(g)(k) and (m), F.S.

2. Between the time of Petitioner's application on September 21, 1978 and passing the examination on December 12, 1980, Petitioner had provided the Board with documents and information sufficient for the Board to make a determination as to Petitioner's eligibility for licensure provided he had sufficient experience as a nursing home administrator. Apparently, required information on Petitioner's experience was furnished to the Board at a later date because neither the Board's denial of March 3, 1981 nor May 31, 1984 were based on lack of experience.

   
   

3. Background investigations of applicants are part of the application process conducted by the Board. In certifying an applicant for licensure, the Board must consider the applicant's good character and suitability to be an administrator, including ability in financial management and administration, in addition to the qualifications for examination set out in Section 468.1695, Florida Statutes. See Section 468.1685(1)(2)(3), Florida Statutes and Rule 21Z.11.01, Florida Administrative Code.

   
   

4. Prior to moving to Florida, Petitioner owned and operated nursing homes in Canada but was not required to be licensed as a nursing home administrator.

   
   

5. From 1978 until sometime after filing his application on April 20, 1984, Petitioner was President of V & C Enterprises, Inc. (V&C) which owned and operated Lakeview Manor Nursing Home (Lakeview) during this entire period. V & C was wholly owned by Rose Chadee, Petitioner's mother. V & C surrendered its license to operate Lakeview in early 1985.

   
   

6. Petitioner was president and majority stockholder (90 percent) of V & L Nursing Home Services, Inc. (V & L) which owned and operated Royal Nursing Home, a/k/a Palms Nursing Home (Royal/Palms) during 1980-82 but ceased operations of Royal/Palms in 1982 because of financial difficulties.

   
   

7. Pursuant to Chapter 400, Florida Statutes and Rules 10D-29, Florida Administrative Code the Department of Health and Rehabilitative Services (HRS) licenses facilities to operate as nursing homes. Such a license is issued to the owner of the home. In accordance with its licensing function, HRS conducts an annual survey of each facility, to determine compliance with Chapter 400, Florida Statutes and Rule 10D-29, Florida Administrative Code. As a total process, HRS looks at: (a) the financial ability of the facility to operate,

   (b) direct nursing care, (c) dietary, (d) patient's diets (e) supplies needed to meet the needs of the patients, (f) physical plant, (g) housekeeping, (h) maintenance, (i) linens, and (j) infection control practices in the nursing home.

   
   

8. At other times, HRS visits the facilities to investigate complaints, for appraisal units based on other agencies' reports, and for other surveillance visits.

   
   

9. When deficiencies are noted on any visit, the facility is given an opportunity to correct the deficiency but if the correction is not timely made then the facility is subject to sanctions in the form of an administrative fine, moratorium on admissions or revocation of license.

   
   

10. The performance at Lakeview prior to October, 1982 resulted in an increase in the number of visits by HRS to Lakeview and from October 1982 until January 1985 HRS inspected Lakeview weekly to biweekly because of the continuing lack of compliance with HRS rules. As a result of these visits, Lakeview was

    often cited by HRS for deficiencies during this period. Petitioner was present at Lakeview during some of these visits, and was aware of Lakeview's noncompliance.

    
    

11. During 1980-81 administrative complaints were filed against the license of V & L which V & L failed to answer and in at least two (2) instances fines were imposed but never paid. The types of deficiencies cited during the surveys, and which formed the basis of the administrative complaints and sanctions, included problems relating to patient care, maintenance of adequate supplies, infection control procedures, and violations of regulations governing control and accounting of patient trusts funds.

    
    

12. During Petitioner's service as president of V & C and V & L there was a great deal of turnover in nursing home administrators of the facilities. There were at least ten administrators within the two year period of 1979 to 1981. As president, Petitioner had the authority to hire and fire

    administrators. Petitioner sought to control his business. Administrators were "disciplined accordingly" for failure to manage the homes in accordance with how Petitioner felt it should be run.

    
    

13. Much of the difficulty encountered by V & C and V & L in the operations of Lakeview and Royal/Palms related to financial management and the availability of funds to adequately operate the homes. There were significant problems relating to the timely payment of creditors. Amounts owing to Peoples Gas System were in a constant arrears status during 1980 and part of 1981. At Lakeview, supplies had to be obtained on a C.O.D. basis. At Royal/Palms, it was the usual situation to have a shortage of supplies and linens and a restricted food service department because of financial constraints.

    
    

14. Administrators did not have access to funds to administer the home without the intervention of the corporation and its president, the Petitioner. V & L did not pay unemployment taxes to the State of Florida for the period of October 1979 to December 1980, until February 1981.

    
    

15. Other examples of poor financial management are: (a) Patient trust funds were not adequately maintained or accounted for, (b) Payments of Petitioner's personal expenses were made with corporate funds, some of which were included in a cost report of the Royal/Palms for purposes of Medicaid reimbursement.

    
    

16. As a result of these financial difficulties- Royal/Palms and Lakeview each ceased operations.

    
    

17. Melvin C. Rhodes, a former Administrator of Lakeview found 62 deficiencies assessed against Lakeview when he became administrator in November 1978 but 58 were corrected within 3 weeks and petitioner was credited by Rhodes with hiring him and cooporating with him to correct the deficiencies.

    
    

18. During the period in which Lakeview was being closely monitored by HRS, similar inspections were being conducted by the Pinellas County Health Departments Nursing Home Section (PCHD). A Pinellas County ordinance charges the PCHD with the duty to inspect nursing homes for compliance, using HRS standards found in Rule 10D-29, Florida Administrative Code. Like HRS, PCHD cites deficiencies and sets time limits for correction. In the event of a

    continuing lack of compliance, the administrator or owner is asked to appear at an informal conference to determine guidelines and methods of compliance.

    Continued failure to comply results in action before the County Health Permit Board, for revocation of the permit.

    
    

19. Lakeview and Royal/Palms were inspected on almost a daily basis because of failure to correct deficiencies. The types of deficiencies cited included shortage of necessary supplies, poor housekeeping, shortage of life- saving supplies, and failure to maintain a seven-day emergency food supply. Petitioner attended one such conference as a representative of the management of Lakeview. Petitioner was the person "in charge", to the understanding of the PCHD.

    
    

    CONCLUSIONS OF LAW

    
    

20. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding. Section 120.57(1), Florida Statutes (1983).

    
    

21. Section 468.1685(1)(2)(3), Florida Statutes, wherein is found the powers and duties of the Board and the Department, provides:

    
    

    It is the function and duty of the board, as required by 42 U.S.C. s. 1396g(a),(b), and (c), and any of its legislative successors, together with the department to:

    1. Make such rules not inconsistent with law as may be necessary to carry out the duties and authority conferred upon the board by this part and as may be necessary to protect the health, safety, and welfare of the public.

    2. Develop, impose, and enforce specific standards within the scope of the general qualifications established by this part which must be met by individuals in order to receive licenses as nursing home administrators. These standards shall be designed to ensure that nursing home administrators are individuals of good character and otherwise suitable and, by training or experience in the field of institutional administration, qualified to serve as nursing home administrators.

    3. Develop by appropriate techniques, including examinations and investigations, a method for determining whether an individual meets such standards. (Emphasis supplied.)

       
       

22. Section 468.1695(2), Florida Statutes sets out certain qualifications and requirements that must be met before an applicant can take the examination to be licensed as a nursing home administrator and provides:

    
    

    (2) The department shall examine each applicant who the board certifies has completed the application form and remitted an examination fee set by the board not to

    exceed $250 and who:

    1. Is 18 years of age or over;

    2. Is a high school graduate or equivalent; and

    3. 1. Has fulfilled the requirements of a 1-year nursing home administrator-in- training program which may be developed by rule of the board;

    1. Has completed 2 years of college level studies which would prepare the applicant for health administration, to be further defined by rule;

    2. Has obtained 2 years of practical experience in nursing home administration; or

    3. Has 4 years of practical experience in a related health administration area.

    
    

23. In accordance with Section 468.1685, Florida Statutes, and to implement Section 468.1695(2), Florida Statutes the Board promulgated Rule 21Z- 11.01, Florida Administrative Code which provides:

    
    

    1. Any person desiring to be licensed as a nursing home administrator shall apply

       to the Department of Professional Regulation to take the licensure examination. The application shall be made on a form prepared and furnished by the Department.

    2. The Board shall certify to the department as eligible to take the examination only those applicants who have completed the Department's application form, remitted an examination fee to the Department in the amount of two hundred dollars ($200.00), as established by Rule 21Z-12.02, and who have demonstrated to the Board that they:

       1. are at least eighteen (18) years of age;

       2. are a high school graduate or equivalent;

       3. 1. have fulfilled the requirements of a one (1) year nursing home administrator- in-training program, as described in Rule 21Z-11.05; or

          1. have completed two (2) years of college level studies which would prepare the applicant for health administration, as described by Rule 21Z-11.07; or

          2. have two (2) years of practical experience in nursing home administration, as such is defined in Rule 21Z-11.08; or

          3. have four (4) years of practical experience in a related health administration area, as such is defined in mule 21Z-11.09;

       4. are of good character.

    3. The Board shall determine if an applicant has two (2) years of practical experience in nursing home administration or four (4) years of practical experience in a related health administration based on the application and a supporting affidavit of the applicant documenting his practical experience. (Emphasis supplied.)

       
       

24. When the Board certifies an applicant to the Department as having met the requirements of Section 468.1695(2), Florida Statutes or Rule 21Z-11.01(2), Florida Administrative Code after the rule's effective date of December 26, 1979, then Section 468.1695(3), Florida Statutes places a mandatory duty on the Department to "issue a license to practice nursing home administration to any applicant who successfully completes the examination. "

    
    

25. In February, 1979 when the Board certified the Petitioner to the Department as being eligible to take the examination, its rule, which required a determination of "good character" by the Board before the Board's certification of examination eligibility, was not in effect and Section 468.1695(2), Florida Statutes did not then, nor does it now, require the Board to make a determination of "good character" before the Board certifies the applicant's eligibility for examination.

    
    

26. Petitioner successfully completed the examination for licensure on December 12, 1980 but the Board denied him licensure based on, among other things, the petitioner's lack of good character, a determination that was made after the Board had certified him to the Department as eligible to take the examination. The Petitioner requested a formal hearing on that denial but later withdrew that request and the file was closed. Petitioner reapplied for licensure on April 20, 1984 and was not required to retake the examination but was allowed to rely on the passing score received on December 12, 1980. At this juncture, the Board was not precluded from reconsidering its earlier determination that the Petitioner lacked good character and deny him licensure if, in fact, the Board determined that the Petitioner was not of good character.

    
    

27. The burden of proof is on the parties asserting the affirmative, Balino v. Department of HRS, 348 So.2d 347 (1 DCA Fla. 1977). The initial burden is on Petitioner to establish that he meets the qualifications prescribed in Section 468.1695(2), Florida Statutes and having accomplished that, then the burden shifts to thee Respondent to establish that Petitioner lacks the qualifications of good character as required by Section 468.1685(2), Florida Statutes and, therefore, is subject to denial of licensure. The evidence is clear that Petitioner met his burden of proof to show that he was qualified under Section 468.1695(2), Florida Statutes.

    
    

28. The evidence is equally clear that the Respondent has shown that Petitioner, as the president and chief executive officer of V & C and V & L, was responsible for the corporation failure, through its employees, to comply with the law and rules governing the administration of nursing homes which resulted in sanctions and administrative complaints being filed against the homes that were ignored by the Petitioner and eventually caused the homes to close. See 8 Fla. Jur. 2nd, Business Relationships Section 317. And, in this regard, Petitioner's actions reflect on his management abilities, his character and his suitability for licensure as a nursing home administrator.

29. Petitioner's acts and conduct in this situation would cause a reasonable man to have substantial doubts about the Petitioner's honesty, fairness, and respect for the rights of others and for the laws of the state governing nursing home administrators. See Florida Board of Bar Examiners, Re: G.W.L, 364 So.2d 454, 458 (Fla. 1978). The Respondent has shown that Petitioner lacks the good character and suitability necessary to qualify him as a nursing home administrator.

    
    

30. Respondent contends that Petitioner is guilty of certain violations under Section 468.1755(1), Florida Statutes. However, subsection (1) sets out grounds for disciplinary actions against nursing home administrators under Section 468.175(2), Florida Statutes. The Petitioner has never been licensed as a nursing home administrator and, therefore, would not be subject to any disciplinary action under Section 468.1755(1)(2)(a), Florida Statutes.

RECOMMENDATION

Based on the Findings of Fact and Conclusions of Law recited herein, it is RECOMMENDED that the Board enter a final order DENYING Petitioner licensure as a nursing home administrator.

Respectfully submitted and entered this 19th day of February, 1986, in Tallahassee, Leon County, Florida.

WILLIAM R. CAVE

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9673

Filed with the Clerk of the Division of Administrative Hearings this 19th day of February, 1986.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 84-2225

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.

Rulings on Proposed Findings of Fact Submitted by the Petitioner

Petitioner did not number the paragraphs in his Proposed Findings of Fact but for purposes of this Appendix a number has been assigned to each paragraph.

1. Adopted in Finding of Fact No. 1.

2. First sentence adopted in Finding of Fact 4. Second and third sentences adopted in Finding of Fact 5. Fourth and sixth sentences adopted in Finding of Fact

   6. Fifth sentence rejected as not supported by substantial competence evidence -- see Petitioner's testimony page 31, lines 16-17 and page 37, lines 11-15.

3. First, second and third sentences adopted in Finding of Fact 17 but clarified. The fourth sentence rejected as immaterial, irrelevant and unnecessary.

4. First and second sentences adopted in Finding of Fact

   2. The third and fourth sentences rejected as immaterial, irrelevant and unnecessary.

5. Rejected as not supported by substantial competent evidence.

Rulings On Proposed Findings of Fact Submitted by the Respondent

Respondent did not number the paragraphs in its Proposed Findings of Fact but for purposes of this Appendix a number has been assigned to each paragraph.

1. Adopted in Finding of Fact No. 1.

2. First sentence adopted in Finding of Fact 4. The second and third sentences adopted in Finding of Fact

   5. Fourth sentence adopted in Finding of Fact 6.

3. First sentence adopted in Finding of Fact 6. Second sentence adopted in Finding of Fact 5.

4. Adopted in Finding of Fact No. 7.

5. Adopted in Findings of Fact No. 8 and 9.

6. Adopted in Finding of Fact 10.

7. Adopted in Findings of Fact 10 and 11.

8. Adopted in Finding of Fact 11.

9. Adopted in Finding of Fact 12.

10. Adopted in Finding of Fact 13.

11. Adopted in Finding of Fact 14.

12. Adopted in Finding of Fact 15.

13. First sentence adopted in Finding of Fact 16. Second sentence rejected as not supported by substantial competent evidence.

14. Adopted in Finding of Fact 18.

15. First sentence rejected as immaterial. Seconds third fifth and sixth sentences adopted in Finding of Fact 19.

    Fourth sentence rejected as not supported by substantial competent evidence.

16. Adopted in Finding of Fact 3 as clarified.

17. Adopted in Finding of Fact 3 as clarified.

COPIES FURNISHED:

Douglas A. Mulligan, Esquire 1327 Ninth Street

St. Petersburg, Florida 33705

Deborah D. Hart, Esquire Assistant Attorney General Suite 1601, The Capitol Tallahassee, Florida 32301

Salvatore A. Carpino, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Fred Roche, Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Mildred Gardner, Executive Director Board of Nursing Home Administrators Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF NURSING HOME ADMINISTRATORS

VICTOR CHADEE, )

)

Petitioner, )

)

vs. ) DOAH CASE NO. 84-2225

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF NURSING ) HOME ADMINISTRATORS, )

)

Respondent. )

)

ORDER

THIS CAUSE came before the Board of Nursing Home Administrators on May 8, 1986, in Miami, Florida, for final agency action. A Recommended Order was forwarded to the Board pursuant to Section 120.57, Florida Statutes, following formal hearing requested by Petitioner on the Board's denial of licensure as a nursing home administrator. A copy of the Recommended Order is attached to and by reference made a part of this Order.

Petitioner was duly notified of the hearing and was not present, either personally or through counsel.

Respondent filed exceptions to the conclusions of law of the Hearing Officer contained in the Recommended Order. The Board voted to accept the exceptions for the reasons set forth therein, as more specifically provided hereafter.

FINDINGS OF FACT

The Board adopts the Findings of Fact of the Recommended Order.

CONCLUSIONS OF LAW

The Board adopts the Conclusions of Law of the Recommended Order, except to the extent said conclusions conflict with the exceptions filed by Respondent.

Specifically, the Board rejects the conclusion contained in the first full paragraph on page 11 of the Recommended Order, and substitutes the following:

Section 468.1755(2), Florida Statutes, provides that the Board may deny an application for licensure upon a finding that any nursing home administrator is guilty of any of the grounds set forth in Section 468.1755(1), Florida Statutes.

In order to give effect to this section, the Board concludes that Section 468.1755, Florida Statutes, is applicable not only to licensed nursing home administrators, but also to unlicensed applicants for licensure.

Although sufficient grounds for denial have already been stated, the Board further concludes that Respondent has shown that Petitioner has violated Section 468.1755(1)(m), Florida Statutes. Based on its conclusion in the foregoing paragraph, the Board finds that said violation is ground for denial pursuant to Section 468.1755(2)(a), Florida Statutes.

RECOMMENDATION

Based on the Findings of Fact and Conclusions of Law, the Board accepts the Recommendation of the Hearing Officer. It is therefore

ORDERED that Petitioner's licensure as a nursing home administrator is hereby DENIED.

Pursuant to Section 120.59, Florida Statutes, the parties are hereby notified that they may appeal this final order by filing one copy of a notice of appeal with the clerk of the agency and by filing the filing fee and one copy of a notice of appeal with the District Court of Appeal, within thirty (30) days of the date this Order is filed.

This Order shall become effective upon filing with the Clerk of the Department of Professional Regulation.

DONE and ORDERED this 4th day of June , 1986.

Marc Lichtman, Chairman Board of Nursing Home Administrators

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the forgoing Order has been sent by U.S. Mail to VICTOR CHADEE, 815 Seventh Avenue South, St.

Petersburg, Florida; to WILLIAM R. CAVE, ESQUIRE, Division of Administrative Hearings, The Oakland Building, 2009 Apalachee Parkway, Tallahassee, Florida 32301; and to DOUGLAS A. MULLIGAN, ESQUIRE, 1327 Ninth Street, St. Petersburg, Florida 33705, this 5th day of June, 1986.

Mildred Gardner Executive Director

Docket for Case No: 84-002225

Orders for Case No: 84-002225