STATE OF FLORIDA L

AGENCY FOR HEALTH CARE ADMINISTRATION

BEVERLY ENTERPRISES - FLORIDA, INC. d/b/a BEVERLY HEALTH AND REHABILITATION CENTER - RIO PINAR,

Petitioner,

vs. CASE NO.: 97-2017

RENDITION NO.: AHCA-98-251-

STATE OF FLORIDA, AGENCY FOR FOF-OLC HEALTH CARE ADMINISTRATION,

Respondent.

/

FINAL ORDER

This cause came on before me for the purposes of issuing a final agency order. The Administrative Law Judge (ALJ) assigned by the Division of Administrative Hearings (DOAH) in the above- styled case submitted a Recommended Order to the Agency for Health Care Administration (AHCA). The Recommended Order entered April 29, 1998, by Administrative Law Judge Daniel M. Kilbride is incorporated by reference.

FINDINGS OF FACT

1. The agency hereby adopts and incorporates by reference the findings of fact set forth in the Recommended Order except for the second sentence of paragraph 32 as it is not supported by competent, substantial evidence. The Petitioner challenged the initial decision to give a conditional rating to its Rio Pinar facility. Rio Pinar had been rated as superior in the previous nine annual surveys. The basis for downgrading the rating was survey findings regarding falls by residents of the facility.1 A nursing home is obligated to provide adequate supervision and appropriate. devices to prevent falls. The ALJ concluded that the Petitioner met its obligation and recommends that Rio Pinar not be rated as conditional for the period at issue.

   
   

   CONCLUSIONS OF LAW

   
   

2. The agency hereby adopts and incorporates by reference the conclusions of law set forth in the Recommended Order. For a discussion of quality rating of nursing homes and the agency's interpretation of its statutory and rule authority see Beverly Enterprises - Florida. Inc. d/b/a Eastbrooke Health Care Center vs. A,enyfor Health Care Administration, 20 F.A.L.R 873 (AHCA 3/16/98).

   
   

3. Counsel for the agency excepts to the Recommended Order and at least implicitly would impose a standard of strict liability on a nursing home facility for any accidental fall by a resident. Taking a "damn the torpedoes, full speed ahead" approach, counsel took the position at hearing that one-on-one,

24 hour a day care must be provided by a nursing home to any resident prone to accidental falls. See paragraph 33. He cites with approval the ALJ's finding that this level of care would require doubling the staffing level with attendant tremendous increase in costs. See paragraph 34. It is worth noting that more than 50 percent of nursing home costs are borne by the state through the Medicaid program. Not challenged is the finding that the most common type of accident in nursing homes is falls by residents.2 See paragraph 7.

Counsel cites Beverly Enterprises - Florida. Inc. d/b/a Rosemont vs. Agency for Health Care Administration, Case Number 97-0017, (DOAH 10/7/97)3 as supporting his position. In Rosemont the agency prevailed at hearing where the factual basis for deficiencies was shown to be much more troubling than in the present case. The Rosemont residents reviewed for falls had experienced multiple falls, as many as 10, in short periods of time. In finding that Rosemont's staff failed to provide adequate supervision and devices to prevent falls, the presiding ALJ stated that ". . . it was the number of incidents and their severity as well as consideration of what the staff and facility had implemented which led to the classification of Rosemont's deficiencies . . ." The exceptions are denied.

Based upon the foregoing, it is

ADJUDGED, that Rio Pinar not be rated as condition&1 for the time period at issue.

DONE and ORDERED this 29th day of June, 1998, in Tallahassee, Florida.

STATE OF FLORIDA, AGENCY FOR

HEALTH CARE ADMINISTRATION

Douglas M. Cook, Director

ENDNOTES

1/ Regarding paragraph 31, see paragraphs 4, 5, and 9 through

13 of the Recommended Order in Daytona Manor Nursing Home vs. Agency for Health Care Administration, 97-2927 (DOAH 5/5/98) for the appropriate manner of conducting a survey and selecting the sample of resident files for review.

2/ The ALJ found that Rio Pinar experiences approximately 360 falls per year by residents. See paragraph 32.

3/ There was no Final Order on the merits as the challenge to the conditional rating was withdrawn.

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA AND A SECOND COPY, ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITH 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

COPIES FURNISHED TO:

Thomas W. Caufman, Esquire Senior Attorney, Agency for Health Care Administration 7827 North Dale Mabry Highway Tampa, Florida 33614

R Davis Thomas, Jr., Esquire Donna H. Stinson, Esquire Broad and Cassel

Post Office Box 11300 Tallahassee, Florida 32302-1300

Daniel M. Kilbride

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

Pat Hall (AHCA/HQA) Long Term Care Unit Fort Knox 1, Room 223

Tallahassee, Florida 32399

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing have been furnished to the above named people by U. S. Mail this 2nd day of July, 1998.

R S.POWER, Agency Clerk State of Florida, Agency for Health Care Administration 2727 Mahan Drive, Suite 3431 Fort Knox Building III Tallahassee, Florida 32308 850/922-5865

Docket for Case No: 97-002017

Orders for Case No: 97-002017