STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 89-1862

)

ROBERT A. MAURER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Mary Clark, held a formal hearing in the above- styled case on September 12, 1989, in Kissimmee, Florida.

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

and

Victoria Raughley, Esquire

Department of Professional Regulation 1940 N. Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

For Respondent: R. Bruce McKibben, Jr., Esquire

Dempsey & Goldsmith

P.O. Box 10651 Tallahassee, Florida 32302

STATEMENT OF THE ISSUES

The issue for determination is whether Respondent committed violations of Section 468.1755, Florida Statutes, as alleged in an Administrative Complaint dated October 7, 1988, and if so, what discipline should be taken against his nursing home administrator's license.

PRELIMINARY STATEMENT

The administrative complaint giving rise to this proceeding alleges that the Respondent violated certain provisions of Section 468.1755, Florida Statutes, governing the practice of nursing home administration, when the nursing home facility which he administered failed to correct class III license code deficiencies identified by the Department of Health and Rehabilitative Services (HRS).

Respondent requested a formal hearing in response to the complaint.

At the hearing, Petitioner presented the testimony of HRS Investigator, Grace Merifield and submitted three exhibits, all received without objection.

Respondent testified in his own behalf and submitted a single exhibit, also received without objection.

A transcript was prepared and filed and both parties submitted proposed recommended orders. These have been considered in the preparation of this order and the proposed findings of fact are addressed in the attached appendix.

FINDINGS OF FACT

1. Respondent, Robert Allen Maurer, is a licensed nursing home administrator, holding State of Florida license number NH 0002026.

   
   

   He is currently employed by Central Park Lodges, Inc., as a corporate administrator out of the corporate offices in Sarasota, Florida.

   
   

   From July 19, 1985, until February 9, 1989, Robert Maurer was the administrator at Central Park Lodges' retirement center and nursing home facility, Central Park Village, in Orlando, Florida.

   
   

2. On April 28, 29 and 30, 1986, Grace Merifield and other staff from the Department of Health and Rehabilitative Services (HRS) Office of Licensure and Certification conducted their first annual inspection of Central Park Village. Ms. Merifield is an RN Specialist and licensed registered nurse.

   
   

3. Ms. Merifield found several licensing rule violations, including the following, and noted them on a deficiency report form:

   
   

   NURSING SERVICES

   
   

   NH127 3 of 3 bowel or bladder retraining program patients charts reviewed lacked documentation of a formal retraining program being provided.

   The documentation lacked progress or lack of progress towards the retraining goal, ie., in the care plan, nurses notes or the monthly summaries.

   10D-29.l08(5)(b), FAC, Rehabilitative and Restorative Nursing

   Care.

   
   

   DIETARY SERVICES

   
   

   NH193 1) Stainless steel polish containing toxic material was observed in the dishwasher area.

   1. Bulk ice cream and cartons of frozen foods were stored directly on the floor in the walk-in freezer.

      10D-29.110(3)(g)1, FAC, Sanitary Conditions INFECTION CONTROL

      NH448 Infection control committee had not insured acceptable performance in that the following was observed:

      1. After a dressing change the nurse failed to wash her hands; three nurses failed to cover the table they were working off,

         one nurse used the bedstand along with the syringe for a tube feeding resident and returned the supplies to medical cart or medical room, cross contaminating the supplies.

      2. Floors of utility rooms were observed with dead bugs unmopped for two days of the survey.

      3. Syringe unlabeled and undated.

      4. Urinals and graduates unlabeled.

      5. Clean linen placed in inappropriate areas and soiled linen on floors, laundry bucket overflowing being pushed down the hall.

         10D-29.123(2), FAC, Infection Control Committee

         
         

         (Petitioner's Exhibit #3)

         
         

4. During the survey, Robert Maurer, as Administrator, and other nursing home staff met with the inspection team, took partial tours with them and participated in exit interviews, wherein the deficiencies were cited and recommendations were made for corrections.

   
   

5. The infection control deficiencies required immediate correction, the dietary services deficiencies required correction by May 5, 1986, and the other deficiencies were to be corrected by May 30, 1986.

   
   

6. On July 14, 1986, Ms. Merifield returned to Central Park Village for reinspection and found that most of the violations had been corrected. These, however, still remained:

1. Stainless steel polish containing toxic materials was found in the dishwashing area, a violation of Rule 10D-29.110(3)(g)(1), Florida Administrative Code;

   
   

2. Bulk ice cream and frozen food was stored directly on the floor in the walk-in freezer, and one of the five gallon ice cream container lids was completely off, exposing the ice cream, a violation of Rule 10D-29.110(3)(g)(1), Florida Administrative Code;

   
   

3. Three out of three bowel or bladder retraining program program charts of residents reviewed lacked documentation, from all shifts of nurses, of a formal retraining program where progress or a lack of progress should be documented, a violation of Rule 10D-29.108(5)(b), Florida Administrative Code;

   
   

4. The infection control committee had not insured acceptable performance, a violation of Rule 10D-29.123(2), Florida Administrative Code, in that:

   
   

   1. two nurses failed to properly cover the bedside table they were working from and cross contaminated dressing supplies;

   2. urinals and graduates were unlabeled;

   3. clean linen was placed in inappropriate areas, soiled linen was in the bathroom basin,

and laundry buckets were overflowing with soiled linens in two utility rooms.

1. After the survey in April, the facility was given a conditional license. That was changed to a standard license in October, 1986, when another inspection was conducted and no deficiencies were found. The following April, in 1987, the facility was given, and still maintains, a superior license.

   
   

2. All of the deficiencies noted in April and July 1986 were class III, the least serious class of deficiencies, denoting an indirect or potential threat to health and safety. Deficiencies in Classes I and II are considered life-threatening or probably threatening.

   
   

   The number of deficiencies found at Central Park Village was not unusual.

   
   

3. After the April inspection and before the July inspection, Robert Maurer took steps to remedy the deficiencies. Although the staff already had in-service training, additional training was given. Mr. Maurer met with the food service director and was told that a delivery had been made the morning of inspection, but that items had not been placed on the shelves by the stockman. Some of the food items had been left out to be discarded.

   
   

4. Prior to the case at issue here, no discipline has been imposed against Robert Maurer's nursing home administrator's license.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding pursuant to Sections 120.57(1), Florida Statutes, and 455.225(4), Florida Statutes.

   
   

   Since this case involves disciplinary action against a licensee, the Petitioner has the burden of proving the charges set forth in the administrative complaint by clear and convincing evidence. Ferris v. Turlington, 510 So 2nd 292 (Fla. 1987).

   
   

6. The Department of Health and Rehabilitative Services is the licensing and regulatory authority over nursing homes in Florida pursuant to Section 400.062, Florida Statutes. The Department's rules governing that function are found at Chapter 10D-29, F.A.C.

   
   

7. Respondent is charged in the administrative complaint with violations described in Section 468.1755(1)(g), (k), and (m), Florida Statutes, as follows:

   
   

   468.1755 Disciplinary proceedings. -

   1. The following acts shall constitute grounds for which the disciplinary actions in subsection (2) may be taken:

      * * *

      (g) Fraud or deceit, negligence, incompetence, or misconduct in the practice of nursing home administration.

      * * *

      (k) Repeatedly acting in a manner inconsistent with the health, safety, or welfare of the patients of the facility in which he is the administrator.

      * * *

      (m) Has willfully or repeatedly violated [sic] any of the provisions of the law, code or rules of the licensing or supervising authority or agency of the state or political subdivision thereof having jurisdiction of the operation and licensing of nursing homes.

      * * *

      
      

8. The nursing home administrator is responsible for the overall planning, organizing, staffing, directing, and controlling the total management of a nursing home. See the definition of "practice of nursing home administration" at Section 468.1655(4), F.S.

   
   

   No nursing home in the state may operate without a licensed nursing home administrator. Section 468.1645(1), F.S.

   
   

   Respondent was the licensed nursing home administrator at Central Park Village and, as such, was responsible for the deficiencies cited by HRS in its April and July 1986 inspections.

   
   

9. No evidence was presented regarding standards of nursing home administration to prove that the relatively minor violations occurring at Respondent's facility could be attributed to his "fraud or deceit, negligence, incompetence or misconduct". Nor did the evidence establish that, as Administrator, he repeatedly acted in a manner inconsistent with the health, safety or welfare of the patients of his facility. Instead, his testimony is uncontroverted that steps were taken to remedy the deficiencies noted by HRS.

   
   

   However, those steps were insufficient and the violations were repeated.

   
   

10. The disciplinary guidelines of the Board of Nursing Home Administrators found at rule 21Z-14.004, F.A.C. include this provision related to violations of Section 468.1755(1)(m), F.S.:

(s) Willful or repeated violation of laws and

rules governing nursing homes (468.1755(1)(m), F.S.)

--Paperwork deficiencies which Letter of guidance have been corrected and no from the Probable harm to patients Cause Panel of the

Board

--Paperwork deficiencies From letter of which have not been corrected guidance from the

Probable Cause Panel of the Board to reprimand

--Patient care deficiencies From letter of which have been corrected guidance from

Probable Cause Panel of the Board to reprimand and

$500 fine

--Uncorrected patient care Suspension until deficiencies proof of

correction followed by probation

This rule not only establishes a disciplinary guide, but also evidences the Board's intent that the administrator be held responsible for deficiencies found at his facility.

Because certain deficiencies were found on a second inspection, Respondent is guilty of this violation. Because those deficiencies, both paperwork and patient care-related, have been corrected, and because this is a first offense for the licensee, the mildest discipline included in the guideline is recommended.

RECOMMENDATION

Based on the foregoing, it is hereby, RECOMMENDED

That a final order be entered finding Respondent guilty of a violation of Section 468.1755(1)(m), F.S., with a letter of guidance from the Probable Cause Panel of the Board.

DONE AND RECOMMENDED this 11th day of October, 1989, in Tallahassee, Leon County, Florida.

MARY CLARK

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 11th day of October, 1989.

APPENDIX

The following constitute specific rulings on the findings of fact proposed by the parties:

PETITIONER'S PROPOSED FINDINGS

1. and 2. Adopted in paragraph 1.

1. Adopted in paragraph 2.

2. Adopted in paragraph 3.

3. Adopted in part in paragraph 5. Some of the deficiencies had to be corrected before the 30-day deadline.

4. and 7. Adopted in paragraph 6.

RESPONDENT'S PROPOSED FINDINGS

1. Adopted in paragraph 1.

2. Adopted in part in paragraph 1. Petitioner's exhibits #1 and #2 and Respondent's testimony at transcript, pages 54 and 55, establish that he was administrator from 1985-1989.

3. Adopted in paragraph 2.

4. Adopted in paragraph 6.

5. Rejected as inconsistent with the evidence, including Respondent's testimony.

6. Adopted in paragraph 6.

7. Rejected as contrary to the evidence.

8. Adopted in paragraph 9.

9. through 11. Rejected as contrary to the weight of evidence.

12. and 13. Adopted or addressed in paragraph 8.

14. and 15. Adopted in paragraph 7.

COPIES FURNISHED:

Charles F. Tunnicliff, Esquire Victoria Raughley, Esquire

Dept. of Professional Regulation 1940 N. Monroe St., Suite 60

Tallahassee, FL 32399-0792

R. Bruce McKibben, Jr., Esquire

P.O. Box 10651 Tallahassee, FL 32302

Mildred Gardner Executive Director

Dept. of Professional Regulation Board of Nursing Home Administrators 1940 N. Monroe St., Suite 60

Tallahassee, FL 32399-0792

Kenneth E. Easley, General Counsel Dept. of Professional Regulation 1940 N. Monroe St., Suite 60

Tallahassee, FL 32399-0792

Docket for Case No: 89-001862

Orders for Case No: 89-001862