STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANGELL CARE OF HIALEAH, INC. ) d/b/a HIALEAH CONVALESCENT HOME )

)

Petitioner, )

)

vs. ) CASE NO. 86-0578

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

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a public hearing in the above-styled case on May 28-29, 1986, in Miami, Florida.

APPEARANCES

For Petitioner: Nancy Schleifer, Esquire

SHARBER, SHEVIN, SHAPO HEILBRONNER & BOOK, P.A.

30th Floor, AmeriFirst Building One Southeast Third Avenue Miami, Florida 33131

For Respondent: Dennis Berger, Esquire

Department of Health and Rehabilitative Services

5190 Northwest 167th Street Miami, Florida 33014

PRELIMINARY STATEMENT

Petitioner, Angell Care of Hialeah, Inc., d/b/a Hialeah Convalescent Home (Hialeah), contests the decision of the Department of Health and Rehabilitative Services (Department) to downgrade its license from standard to conditional and contends it is entitled to a superior license.

At hearing Hialeah called, as witnesses: Stephen Biondi, Diane Reiland, Howard Chastain (by deposition), Amy Jones (by deposition), Madeline Saivin, Sevilio Gomez, and Catherine Saretsky. Hialeah offered exhibits 1-5, 7, 9, 16, and 18-22, and they were received into evidence. The Department called, as witnesses: Diane Reiland, Martha Perez, Edith Elias, and Richard Pollack, but offered no exhibits.

The final volume of the transcript was filed July 3, 1986, and the parties were accorded 10 days within which to file proposed findings of fact and conclusions of law. By order of July 18, 1986, the time for filing proposed findings was extended to July 28, 1986.

Hialeah and the Department have submitted proposed findings of fact, and they have been reviewed and considered. The parties' proposed findings have been addressed in the appendix to this Recommended Order.

FINDINGS OF FACT

1. Petitioner, Angell Care of Hialeah, Inc., d/b/a Hialeah Convalescent Home (Hialeah), is a nursing home licensed under the authority of Chapter 400, Florida Statutes. On April 26, 1985, Hialeah submitted its license renewal application to the Department of Health and Rehabilitative Services (Department), to renew its nursing home license for license year August 1, 1985 to July 31, 1986.

   
   

2. The Department issued Hialeah Standard License No. 2134; however, by letter of September 30, 1985, the Department cancelled Hialeah's standard license, and replaced it with Conditional Rating License No. C-985. The Department's action was premised on its assertion that the results of a survey concluded by its Office of Licensure and Certification on August 1, 1985, established a conditional rating.

   
   

3. Hialeah filed a timely request for formal administrative review of the Department's action. Hialeah asserted that the Department's action downgrading its license from standard to conditional was unwarranted and that, as opposed to a standard rating, it was entitled to a superior rating. At hearing, the parties stipulated that if this de novo review of the Department's action, which was premised on the deficiencies found in the survey conducted by its Office of Licensure and Certification, resulted in a finding that Hialeah was qualified to receive a standard rating, as opposed to a conditional rating, then it should receive a superior rating. Accordingly, the issues in this case are resolved to the validity of the deficiencies noted by the Office of Licensure and Certification.

   
   

   Deficiencies noted by the Department:

   
   

4. Pertinent to these proceedings, 1/ the survey conducted by the Department's Office of Licensure and Certification classified the deficiencies noted at Hialeah into ten major categories, and listed the deficient nursing home licensure requirement number (NH) and applicable statutory or code provision violated, 2/ as follows:

   
   

   1. Administration and Management

      
      

      (1) NH 3 10D-29.104(1)(b), F.A.C.

      (2) NH 21 10D-29.104(5)(d)1g, F.A.C.

      (3) NH 25 10D-29.104(5)(d)4, F.A.C.

      (4) NH 26 10D-29.104(5)(d)5, F.A.C.

      
      

   2. Patient Care Policies

      
      

      NH 57 10D-29.106(2), F.A.C.

      
      

   3. Physician Services

      (1) NH 60 10D-29.107(2)C, F.A.C.

      
      

   4. Nursing Services

      
      

      (1) NH 77 10D-29.108(3)(c)16, F.A.C.

      (2) NH 80 10D-29.108(5)(b)6, 13, 15a & b, 16b

      & i, F.A.C.

      
      

   5. Dietary Services

      
      

      (1) NH 125 10D-29.110(3)(g)2; 10D-13.24(1)(4),

      F.A.C.

      
      

   6. Maintenance

      
      

      (1) NH 352 10D-29.122(1)(a), F.A.C.

      (2) NH 357 10D-29.122(1)(f), F.A.C.

      
      

   7. Infection Control

      
      

      (1) NH 365 10D-29.123(3)(a), F.A.C.

      
      

   8. Disaster Preparedness

      
      

      (1) NH 404 10D-29.126(5), F.A.C.

      
      

   9. Statutory Requirements

      
      

      (1) NH 405 Section 400.165, Fla. Stat.

      
      

   10. Life-Safety

       
       

       (1) NH 241 10D-29.119, F.A.C.

       (2) NH 250 10D-29.119, F.A.C.

       (3) NH 251 10D-29.119, F.A.C.

       (4) NH 269 10D-29.119, F.A.C.

       (5) NH 273 10D-29.119, F.A.C.

       (6) NH 277 10D-29.119, F.A.C.

       (7) NH 295 10D-29.121(10)(e), F.A.C.

       
       

       With the exception of the deficiencies listed for NH 3 (administration and management), NH 60 (physician services), and NH 250, NH 251, NH 269, NH 277, and NH 295 (life safety), Hialeah concedes that the deficiencies noted by the Department were appropriate. 3/ Accordingly, resolution of the question of which rating should be accorded Hialeah is dependent upon the propriety of seven disputed deficiencies. The Administration and Management Deficiency:

       
       

5. The deficiency noted as NH 3 found:

   
   

   The provision for the resident's rights to privacy during treatment and care was not routinely adhered to. On the morning of July 24, 1985, staff members were observed attending to residents in rooms 7 and 8 of the Center Court while other residents were in the rooms and without the use of the

   portable privacy curtains.

   Chapter 400, Part 1, F.S. 10D-29.104(1)(6), F.A.C.

   
   

6. Section 400.022(1)(h), Florida Statutes, accords a nursing home resident a right to privacy during treatment and care. Hialeah's failure to use available portable privacy curtains while patients were being bathed violated their right to privacy, and NH 3 was properly cited. The Physician Services Deficiency:

   
   

7. The deficiency noted as NH 60 found:

   
   

   There was no documented evidence to verify that staff incident reports were reviewed by the Medical Director. 10D-29.107(2)C, F.A.C.

8. Rule 10D-29.107(2), F.A.C., provides in pertinent part: Responsibilities of the Medical Director

   . . . shall include, at a minimum, the

   following:

   * * *

   (c) Reviewing reports of all accidents or unusual incidents occurring on the premises and identifying to the facility Administrator hazards to health and safety . . . .

   
   

   The proof in this case established that the Medical Director did review all incident reports; Rule 10D-29.107(2), F.A.C., does not require documentation. Accordingly, deficiency NH 60 was not substantiated. The Life-safety Deficiencies:

   
   

9. The life-safety surveyor noted the following disputed deficiencies:

   
   

   NH 250: One required-stairway from the second floor discharges internally at the first floor and is not enclosed or separated to provide exiting directly to the exterior.

   
   

   This is a repeat deficiency. Architectural plans must be submitted to Jacksonville Plans and Construction Section for approval, indicating physical changes required to

   this deficiency, prior to corrective action

   . . . .

   * * *

   NH 251: The southwest exit door to 27th Street was locked and exit lights were removed. This created a dead end area with only one means of exiting for the south portion of the center court. This is part of a repeat deficiency form (sic) 1984 survey.

   * * *

   NH 269: a storage closet in the activities office is not protected by the automatic sprinkler system.

   * * *

   NH 277: The following air conditioning deficiencies were found:

   1. The heat sensor for the air conditioner unit located on the first floor at the dining room did not activate properly when tested.

   
   

   NH 295: Rooms where soiled linen is stored and soiled utility rooms are not exhausted to the exterior in accordance with Table

   II. 4/

   
   

10. Hialeah asserts that the Department has waived or deleted deficiency NH 250, or is estopped from counting it as a deficiency for rating purposes. Hialeah's assertion is unpersuasive. The record reveals that during the October 24, 1984 life-safety survey, Hialeah was cited for the same deficiency, NH 250/K32, that is subject matter of these proceedings. 5/ In response to Hialeah's request for a waiver of this deficiency, the Health Care Finance Administration (HCFA) advised Hialeah by letter of January 28, 1985:

    
    

    We have reviewed your request for a waiver of items K-32 . . . cited as deficiencies to

    you. Based on this review we concur with the State Agency's recommendation to deny this request. We expect you to submit an accept- able Plan of Correction to these deficiencies to the State Agency within 15 days of the date you receive this letter. We are notifying the State of this action.

    
    

    Notwithstanding the unequivocal denial of Hialeah's request for waiver, a life- safety follow-up inspection on April 17, 1985, revealed that the deficiency had not been addressed or corrected.

    
    

11. As of April 26, 1985, the date Hialeah submitted its renewal application which is the subject matter of these proceedings, a plan of correction had still not been submitted nor had the deficiency been corrected. 6/ At this juncture, faced with an uncorrected deficiency from its last survey, Hialeah submitted its second request for waiver of NH 243/K 32. 7/

    
    

12. Hialeah's request for waiver, dated May 23, 1985, was forwarded by the Department's Miami office to the Director of its Office of Licensure and Certification on July 23, 1985, with a recommendation of denial predicated on HCFA's previous action. Before the Department acted, however, the results of the July 29 - August 1, 1985 survey were published and the same deficiency cited.

    
    

13. On October 30, 1985, the Department responded to Hialeah's May 23, 1985 request for waiver, as well as the results of the July 29 - August 1, 1985 survey. That letter provided:

    
    

    A thorough review has been made of the citations found in OPLCM report of life safety deficiencies found during the survey conducted July 29 - August 1, 1985. As a result of that survey NH 250; NH 277 item #2,

    NH 282, and NH 219 will be deleted from the report . . . .

    
    

    Your letter of July 23, 1985 (sic) addressed to Alvin Delaney requesting waivers of items K 32 . . . cannot be granted and corrections must be made . . . .

    However, by letter of December 12, 1985, the Department advised Hialeah that: the indication . . . (in my letter of October

    30) . . . that NH 250 citation related to a second floor stairway would be deleted as a deficiency was an error . . . and that deficiency must be corrected.

    
    

14. Hialeah's assertion that NH 250 was waived or deleted by the Department is contrary to the evidence. Hialeah's assertion that the Department is estopped from raising that deficiency because of its delay in passing on Hialeah's "second" request for waiver is equally unpersuasive. Hialeah knew of the deficiency because of the October 24, 1984 survey, knew by letter of January 28, 1985, that the deficiency would not be waived, and took no action to correct the deficiency. The fact that the Department erroneously advised Hialeah that NH 250 was deleted did not prejudice Hialeah since such announcement was made after the current survey. Further, that letter affirmatively advised Hialeah that K 32 (the federal equivalent) could not be waived. In sum, NH 250 was properly cited as a deficiency.

    
    

15. Hialeah asserts that NH 251 was improperly cited because it had complied with an "alternative plan of correction," approved by the Department, which allowed the 27th Street exit to remain locked so long as staff carried keys to the exit. The proof supports Hialeah's assertion. Since staff do carry keys, NH 251 was improperly cited.

    
    

16. Hialeah's assertion that NH 269 was improperly cited because the closet in question measured less than 100 square feet is unfounded. The closet was created by erecting a partition in an existing room, and was used for the storage of activity supplies, including combustibles, for nursing home residents. The life-safety code required that the subject closet be sprinkled, and the Department had no policy which deviated from the code. Accordingly, NH

    269 was properly cited.

    
    

17. Hialeah's assertion that NH 277(1) was improperly cited because the heat sensor was not correctly tested is unfounded. At the time of inspection the heat sensor was properly tested and failed to function. Therefore, NH 277(1) was properly cited.

    
    

18. Hialeah's assertion that NH 295 was improperly cited, because cited on a consultative visit, is not supported by the record. NH 295 was cited as a result of the July 29 - August 1, 1985 life-safety inspection, not a consultative visit, and its citation was proper. Conditional vs. Superior Rating:

    
    

19. The parties have stipulated that if Hialeah meets the requirements for a standard rating that it is likewise entitled to a superior rating. To qualify for a standard rating Hialeah must have no more than 20 Class III deficiencies and no more than 5 Class III deficiencies in the specific areas delineated by

    Hialeah's Exhibit 20, Item 3. While each of the cited deficiencies are Class III, and the number of deficiencies correctly cited do not exceed 20, Hialeah amassed more than 5 deficiencies in the area designated by Rules 10D-29.119, 10D-29.121, 10D-29.123, and 10D-29.125. Accordingly, Hialeah does not qualify for a standard or superior rating but, rather a conditional rating.

    
    

    CONCLUSIONS OF LAW

    
    

20. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

21. Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a Final Order cancelling Hialeah's

Standard Rating License No. 2134 for license year August 1, 1985 to July 31,

1986, and substitute therefore Conditional Rating License No. C-98

DONE AND ENTERED this 26th day of August 1986, at Tallahassee, Florida.

WILLIAM J. KENDRICK

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

FILED with the Clerk of the Division of Administrative Hearings this 26th day of August 1986.

ENDNOTES

1/ Deficiencies NH 266, NH 277(2), NH 282, and NH 319, cited in the Department's survey, are not pertinent to this proceeding. NH 266 is duplicative, NH 277(2) was deleted, NH

282 was deleted, and NH 319 was waived.

2/ In addition to the applicable code provision, the Department also listed the applicable statutory provision violated.

3/ At the commencement of hearing, Hialeah agreed that it was not contesting deficiencies denoted as NH 21, NH 25, NH 26, NH 57, NH 77, NH 80, NH 125, NH

352, NH 357, NH 365, NH 404, NH 405, NH 241, and NH 273.

4/ NH 295 is not a life-safety deficiency but, rather, one of infection control.

5/ "NH" deficiencies refer to the state survey and "K" deficiencies relate to the federal survey. In the October 24, 1984 survey, Hialeah was cited as deficient in NH 243/K 32, and in the current survey as deficient in NH 250/K 32. NH 243, NH 250, and K 32 are the same deficiency.

6/ It was not until February 1986, that Hialeah began to formulate a plan of correction, and not until May 1986, that the plan was finalized.

7/ If anyone were to be barred from contesting this deficiency it would be Hialeah. See: Doheny v. Grove Isle, Ltd., 442 So.2d 966, reh. granted, 442 So.2d 977 (Fla. 1st DCA 1983).

APPENDIX

Hialeah's Proposed Findings of Fact are addressed as follows:

1. Addressed in paragraphs 1-3, or not a finding of fact. 2-3. Addressed in paragraph 3.

4. Addressed in paragraph 19. 5-6. Addressed in paragraph 3. 7-8. Not relevant.

1. Addressed in paragraph 3.

2. Not necessary to result reached.

11-13(e). To the extent relevant to these proceedings, addressed in paragraphs 4, 15, 16, and 18.

13(f). Addressed in paragraph 16. 13(g). Addressed in paragraph 4 & 17. 14.(a) Addressed in paragraphs 5-6.

14(b). Addressed in paragraphs 7-8.

15-18. To the extent relevant to these proceedings, addressed in paragraphs 4, 10-14.

19-20. Addressed in paragraph 17.

21. Addressed in paragraphs 4-19.

The Department's Proposed Findings of Fact are addressed as follows:

1. Addressed in paragraphs 1-3, or not a finding of fact. 2-3. Addressed in paragraph 3.

1. Addressed in paragraph 19.

2. Addressed in paragraph 3.

3. Not relevant.

4. Addressed in paragraph 3.

5. Not necessary to result reached.

6. To the extent relevant to these proceedings, addressed in paragraphs 4, 15, 16, and 18.

7. Addressed in paragraphs 5-6. 11-14. Addressed in paragraph 4.

15. Addressed in paragraphs 7-8. 16-20. Addressed in paragraph 4.

21. Addressed in paragraph 15. 22-24. Addressed in paragraph 4.

1. To the extent relevant, addressed in paragraph 4.

2. Addressed in paragraph 16.

3. Addressed in paragraphs 4 & 17.

4. Addressed in paragraph 4.

5. Addressed in paragraphs 10-14. 30-31. Addressed in paragraph 4.

32. Addressed in paragraph 18.

33-34. Addressed in paragraph 4 & 10-14.

COPIES FURNISHED:

Nancy Schleifer, Esquire SHARBER, SHEVIN, SHAPO,

HEILBRONNER & BOOK, P.A.

30th Floor AmeriFirst Building

One Southeast Third Avenue Miami, Florida 33131

Dennis Berger, Esquire Department of HRS

5190 N.W. 167th Street Miami, Florida 33014

William Page, Jr., Secretary Department of Health and Rehabilitative Services

1323 Winewood Boulevard

Tallahassee, Florida 32301

Steven W. Huss, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 86-000578

Orders for Case No: 86-000578