STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF HEALTH, )
BOARD OF NURSING HOME )
ADMINISTRATORS, )
)
Petitioner, )
)
vs. ) Case No. 00-2927PL
)
EUGENIA DEPONTE, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was held in this case on September 28, 2000, via video teleconference with the parties appearing in West Palm Beach, Florida, before Patricia Hart Malono, a duly-designated administrative law judge of the Division of Administrative Hearings, who was located in
Tallahassee, Florida.
APPEARANCES
For Petitioner: Mary Denise O'Brien, Esquire
Agency for Health Care Administration1 Post Office Box 14229
Mail Stop 39
Tallahassee, Florida 32317-4229
For Respondent: R. Bruce McKibben, Esquire
Post Office Box 1798 Tallahassee, Florida 32302-1798
STATEMENT OF THE ISSUE
Whether the Respondent committed the violations alleged in the Administrative Complaint dated May 28, 2000, and, if so, the penalty that should be imposed.
PRELIMINARY STATEMENT
In an Administrative Complaint dated May 28, 2000, the Department of Health ("Department") charged that Eugenia DePonte had violated Section 468.1755(1)(g), Florida Statutes, as a result of negligence, incompetence, or misconduct in the practice of nursing home administration.2 According to the allegations in the Administrative Complaint, Ms. DePonte was the administrator of a nursing home which was the subject of a "rectification survey" conducted by the Agency for Health Care Administration ("AHCA") on or about July 20 through 24, 1998, and which was found to be providing substandard care.
The Department seeks in the Administrative Complaint to discipline Ms. DePonte's nursing home administrator license because certain deficiencies were found to have existed in the nursing home at the time of the July 1998 survey. The deficiencies were set forth in the Administrative Complaint as including, "but not limited to,"3 the following:
The facility did not have recent standard survey results available for public review.
The facility did not implement procedures that prohibited neglect of residents.
The facility did not fully implement its "missing patient procedure."
The facility did not promote care for all its residents to maintain and enhance their dignity and respect.
The facility did not provide medically related social services to attain or maintain the highest practicable physical, mental and psychosocial well being of each resident.
Ms. DePonte timely disputed the factual allegations set forth in the Administrative Complaint and requested an administrative hearing. The Department transmitted the case to the Division of Administrative Hearings for the assignment of an administrative law judge. On August 28, 2000, Ms. DePonte filed a Motion for Summary Recommended Order Dismissing Administrative Complaint, which was denied in an order entered September 7, 2000. Pursuant to notice, the final hearing was held on September 28, 2000.
At the hearing, the Department presented the testimony of the following witnesses, all of whom are AHCA employees: Patricia Feeney; Judy Spirito; Susan McGorry; and Donna Foster. Petitioner's Exhibits P-1 through P-3 were offered and received into evidence; Petitioner's Exhibit P-3 consists of the transcript of the deposition of Gary West. Petitioner's Exhibit P-4, a copy of the results of the Department's October 1997 survey of Darcy Hall, was offered into evidence but rejected;
the Department did not proffer the exhibit. Ms. DePonte testified in her own behalf and presented the testimony of Robinson Rios and Anna Napalatono. Respondent's Exhibits R-4 through R-8 were offered and received into evidence; Respondent's Exhibit R-8 consists of the transcript of the deposition of Nathan Aaron Weyand.
Finally, the Petitioner filed a Request to Take Judicial Notice on September 26, 2000, which was granted at the hearing and resulted in the undersigned taking official recognition of the following: Chapter 468, Part II, Florida Statutes (1997); Chapter 400, Florida Statutes (1997); Title 42, Sections 483.10,
483.13, 483.15., 483.20, 483.25, 483.35, 483.60, 483.65, 483.70,
and 483.75, Code of Federal Regulations; Rule Chapter 64B-10, Florida Administrative Code; and Darcy Hall, Inc., d/b/a Darcy Hall of Life Care v. Agency for Health Care Administration, Case
No. 10-98-516NH (Final Order April 5, 2000).
The transcript of the proceedings was filed with the Division of Administrative Hearings on October 27, 2000. The parties timely submitted proposed findings of fact and conclusions of law, which have been duly considered.
FINDINGS OF FACT
Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made:
The Department is the state agency charged with regulating nursing home administrators licensed by the Board of Nursing Home Administrators to practice in Florida.
Chapters 455 and 468, Florida Statutes (1997).
AHCA is the state agency charged with licensing and regulating nursing homes in Florida. Chapter 400, Florida Statutes (1997). Among its duties, AHCA is required to inspect nursing homes every 15 months "to determine compliance by the licensee with statutes, and with rules promulgated under the provisions of those statutes, governing minimum standards of construction, quality and adequacy of care, and rights of residents." Section 400.19(2), Florida Statutes (1997). Recertification surveys are conducted each 9-to-15 months, are unannounced, and are conducted for both federal certification and Florida nursing home rating and licensure purposes. The surveys are conducted by a team of surveyors each of whom must pass an examination entitled the Surveyor's Minimum Qualification Test before being allowed to participate as an independent member of a survey team.
At all times material to this proceeding, Ms. DePonte was a Florida-licensed nursing home administrator, having been licensed in Florida for a period in excess of 28 years.
Ms. DePonte's license has never been suspended, revoked, or otherwise sanctioned.
Ms. DePonte was employed as the Executive Director/Administrator of Darcy Hall of Life Care ("Darcy Hall") in West Palm Beach, Florida, from July 1989 until September 4, 1998.
Darcy Hall is a 220-bed nursing home that was built in 1960 as a 160-bed nursing home; 60 beds were added in 1972, making Darcy Hall one of the oldest and largest nursing homes in Palm Beach County, Florida. Darcy Hall received superior ratings from AHCA for six of the nine years Ms. DePonte was the Executive Director/Administrator, and Darcy Hall received a deficiency-free recertification survey in 1996, during
Ms. DePonte's tenure.
From July 20 through 24, 1998, an unannounced recertification survey was conducted at Darcy Hall. The survey team identified a number of deficiencies, which deficiencies were itemized in the survey report, commonly referred to as a "Form 2567."4 In an action unrelated to the present proceeding, Darcy Hall challenged the results of the survey, and that challenge was resolved through a settlement agreement.5
The following were observed by the surveyors who inspected Darcy Hall during the July 1998 recertification survey:
Call lights were "out of reach" of several residents when the rooms in one wing of the facility were inspected in the pre-dawn hours of July 23, 1998.
A totally dependent middle-aged person with multiple schlerosis could not use the pneumatic call light she had been given, because it was not in her hand but was close to her arm, where she was unable to reach it. The nurses' station was located too far away from the resident's room for the resident to be heard at the station if she needed help.
An elderly female resident was sitting in a wheelchair outside the facility, about one-half hour after lunch. The resident was in the garden area, close to the nurse's station. The resident, who could understand but not express herself, had lost control of her bladder.
A totally dependent resident whose nose was draining was sitting in a wheelchair, with the call light, tissues, and water out of reach.
An elderly resident was wearing clothing with what appeared to be burn marks from a cigarette on the front.
Dust had accumulated on the filter of an oxygen concentrator.
Ceiling tiles were missing from several areas in the facility; some of the rooms contained chipped furniture; a baseboard under an air conditioner was loose; a ceiling tile in
a bathroom had a brownish stain; and dust had accumulated in the corners of a bathroom.
A geri-chair6 had peeling tape and a black-brown stain on the seat, which the surveyor attributed to a resident becoming incontinent at some point.
Approximately 50 ants were found in and around an empty juice cup sitting on a bedside table.
Two treatment carts were stained with dried liquid and had an accumulation of debris in the crevices.
Hand cranks were protruding from the foot of several beds.
Prescription medications were found in the bedside table of one resident; zinc oxide was found on the top of the bedside table of another resident; and a bottle of Caladryl was found on top of the bedside table of a third resident. No physician's orders for these medications were found in the residents' clinical records.
A cup left sitting on a bedside table in a room whose residents were cognitively impaired contained a white, thick, creamy ointment.
A supply room containing pump sets with pins, syringes, tubing, catheter tips, and special nutritional supplements was found unlocked at approximately 9:00 a.m. on July 22, 1998.
During a two-hour period one morning, a nurse dispensed medications to residents by opening the medication and putting the medicine in her bare hands before placing it into a cup and handing it to the resident.
The temperature in the medication storage refrigerator was six degrees below the minimum acceptable temperature.
The staff member washing pots in the facility's three pot sink obtained from the chemical storeroom a gallon jug of what he thought was dish sanitizer; the chemical was actually Sysco Fry and Grill Cleaner. The fry and grill cleaner was used in the sink in place of sanitizer from 9:00 a.m. on July 22, 1998, until approximately 1:00 p.m. that day, when the error was discovered by a surveyor. All of the pots, pans, and cooking and storage wares were re-washed and sanitized. The residents were monitored for 24 hours, and only one resident had intestinal distress, the source of which was undetermined.
During the time that all of the pots and pans were being re-washed and sanitized, a cook washed a pot so that she could begin cooking the soup for the evening meal. She failed to sanitize the pot.
Cold food on the tray line in the dining room was not maintained at 41 degrees Fahrenheit or below; applesauce was at
51 degrees, pear halves were at 66.2 degrees, whole milk was at
55.5 degrees, chocolate milk was at 42.8 degrees, and cranberry juice was at 55.2 degrees.
All of the items noted in paragraph 7 were identified in the Form 2567 as Class III deficiencies, except for the deficiencies cited regarding the incontinent resident who was sitting outside in the garden area after lunch and the resident who was wearing clothing with cigarette burns on the front, which were designated Class II deficiencies. A Class II deficiency is one that the agency determines has "a direct or immediate relationship to the health, safety, or security of the nursing home facility residents." Section 400.23(9)(b), Florida Statutes (1997). A Class III deficiency is one that the agency determines has "an indirect or potential relationship to the health, safety, or security of the nursing home facility residents." Section 400.23(9)(b), Florida Statutes (1997).
As the Executive Director/Administrator of Darcy Hall, Ms. DePonte was responsible for overseeing all operations of the facility, for hiring and firing employees, and for ensuring compliance with all government regulations.
At the time of the survey, Darcy Hall employed a dietician, a dietary technician, and a certified dietary manager on staff, who were responsible for running the dietary department. A trained head of maintenance and environmental services, who supervised several full-time employees, and a head
of housekeeping services were on staff. Darcy Hall employed two social workers, who were supervised by a director of social services. Darcy Hall was also staffed with a full complement of trained registered nurses, licensed nurses, and certified nurse assistants, who were supervised by a Director of Nursing and Assistant Director of Nursing. It was Ms. DePonte's practice at Darcy Hall not to use nurses provided on a temporary basis by a registry, and all of the nurses employed at Darcy Hall during her time there were employees of the facility.
Darcy Hall had written policies and procedures governing the operation of the facility, which were kept both in Ms. DePonte's office and at each unit on the floor.
Darcy Hall employed a full-time in-service training coordinator, and Ms. DePonte arranged for outside consultants to conduct in-service training seminars for the staff. Ms. DePonte also made sure that the staff was apprised of any changes in state law and regulations. In-service training was also scheduled whenever Ms. DePonte became aware of an on-going problem.
Ms. DePonte personally monitored the facility regularly. Each morning, the first thing she did was visit each nurses' station to determine the staffing levels for the day. She stopped and spoke with residents and family members in the hall, and she entered some of the residents' rooms. She spoke
daily with the professional staff of the dietary department and checked with housekeeping and maintenance to make sure there was adequate staff. She also would let the maintenance department know of any problems she found during her morning rounds and would follow up each day to make sure the problems had been corrected. Each afternoon, around 3:30 p.m. or 4:00 p.m., after the change of shift, Ms. DePonte would again visit each nurses' station to follow-up on any issues that had arisen during the
day.
In addition to personally monitoring the floor twice
each day, Ms. DePonte assigned responsibility for monitoring a particular area of the facility to each department head. The department heads were expected to go through their assigned areas at least twice a day to make sure, among other things, that the residents' needs were being met, that call bells were answered timely, that call bells were within reach of residents, and that bed cranks were underneath the beds. Any maintenance problems were also noted. Any problems observed by the department heads were to be reported. Ms. DePonte's policy was to see that problems were addressed within 24 hours.
It was the policy at Darcy Hall to discipline staff members who were observed violating an established policy or procedure in accordance with the three-point disciplinary program in place at Darcy Hall.
Ms. DePonte had in place at Darcy Hall policies and procedures implementing the requirement that call lights be accessible to residents. The policy required that call lights be positioned within reach of the residents when they were in bed, and the staff was trained to place the call light in accordance with the policy. In addition, Ms. DePonte had every wheelchair equipped with a bell so that the resident could ring the bell if the resident needed help and the call light was out of reach, and there were call lights in all of the residents' bathrooms. As Ms. DePonte made her rounds, she would check the rooms of certain residents to make sure their call lights were accessible. It is not, however, possible to ensure that call lights are within arm's reach of each resident at all times.
Ms. DePonte had in place policies and procedures at Darcy Hall regarding the need for staff to recognize and respect the dignity of its residents. Staff training was on-going, and the staff were continually made aware of the residents' rights.
Darcy Hall had in place policies and procedures regarding the placement of hand cranks for the residents' beds that required that the staff put away any bed crank they saw sticking out from a bed. Protruding hand cranks were on-going problems because often residents and/or family members would adjust the beds and fail to remove the cranks and place them under the beds.
A cleaning schedule was in place for oxygen concentrators and other equipment used in the facility, and cleaning was to be done on a routine basis.
Darcy Hall had an on-going program to replace old and worn materials and equipment. Some of the equipment was stained but this did not mean the equipment was not clean.
Pursuant to the policy and procedure in place at Darcy Hall during Ms. DePonte's tenure as administrator, nurses were not allowed to dispense medications by placing the pills into their bare hands prior to giving them to residents.
Much of the chipped furniture noted in the Form 2567 was furniture belonging to the residents and not furniture owned by Darcy Hall.
Because Darcy Hall is an older facility, much needed to be done to maintain the facility. The number of ceiling tiles that were stained constituted a very small percentage of the total number of ceiling tiles in the facility, and ceiling tiles were missing in some places because a new roof was being installed. The baseboard that was coming apart from the wall was located behind an air conditioning unit that was being repaired at the time of the survey. Replacement of ceiling tiles and baseboards was on-going at Darcy Hall.
Darcy Hall had a regular extermination service and, if insects were found in the facility, the exterminator would be called immediately and would take care of the problem.
The deficiencies identified in the Form 2567 prepared after the July 1998 recertification survey were corrected by September 1, 1998, the time specified by AHCA in the Form 2567. Ms. DePonte left Darcy Hall on September 4, 1998, to take a job as administrator at another nursing home.
The evidence presented by the Department is not sufficient to establish with the requisite degree of certainty that the "deficiencies" at Darcy Hall identified by its witnesses in this proceeding were attributable to the negligence, incompetence, or misconduct of Ms. DePonte.7 The position reiterated by the Department's witnesses is that a nursing home administrator is strictly liable for all deficiencies cited on a Form 2567 and that her license is subject to discipline simply because deficiencies were found. The Department has failed to present evidence to establish with the requisite degree of certainty any lack of competence, misconduct, or act or omission on Ms. DePonte's part that caused the deficiencies. Indeed, the Department did not controvert the evidence presented by Ms. DePonte that there were policies and procedures governing the day-to-day operation of Darcy Hall in place, that in-service training was provided to the staff with
respect to the policies and procedures on a regular and an as- needed basis, or that Ms. DePonte and her department heads regularly monitored the performance of the staff and their adherence to the policies and procedures.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to Sections 120.569 and 120.57(1), Florida Statutes (1999).
In its Administrative Complaint, the Department seeks to impose penalties against Ms. DePonte that include suspension or revocation of her license and/or the imposition of an administrative fine. Therefore, it has the burden of proving by clear and convincing evidence that Ms. DePonte committed the violations alleged in the Administrative Complaint. Department
of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996); and Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).
As the Florida Supreme Court recently explained in Osborne Stern, clear and convincing evidence is the proper standard in license revocation proceedings because they are penal in nature and implicate significant property rights. 670 So. 2d at 935; see also Walker v. Florida Department of
Business and Professional Regulation, 705 So. 2d 652, 655 (Fla.
5th DCA 1998)(Sharp, J., dissenting).
In the Administrative Complaint, the Department specifically charged that Ms. DePonte, as administrator of Darcy Hall, had violated Section 468.1755(1)(g), Florida Statutes (1997),8 which provides that the license of a nursing home administrator can be disciplined if she is found guilty of "[f]raud or deceit, negligence, incompetence, or misconduct in the practice of nursing home administration." The Department did not allege in the Administrative Complaint that Ms. DePonte had committed fraud or deceit.
In Section 468.1655(4), Florida Statutes (1997), the "[p]ractice of nursing home administration" is defined in part as "planning, organizing, staffing, directing, and controlling of the total management of a nursing home."
A nursing home administrator is responsible "for the overall control and operation of the facility" and for the protection of the "health and well being of physically and often mentally infirm patients." Magnolia Nursing and Convalescent
Center v. Department of Health and Rehabilitative Services, Office of Licensure and Certification, 438 So. 2d 421, 425 (Fla. 1st DCA 1983). Nonetheless, a nursing home administrator cannot be found guilty of negligence, incompetence, or misconduct in the practice of nursing home administration in the absence of
proof that his or her conduct deviated from the standard of care which would be exercised in similar circumstances by nursing home administrators with the requisite training and experience. See Purvis v. Department of Business and Professional Regulation, Board of Veterinary Medicine, 421 So. 2d 134, 136
(Fla. 1st DCA 1984)("[T]he charge against Dr. Purvis [negligence and incompetence in the practice of veterinary medicine] necessarily required evidentiary proof of some standard of professional conduct as well as deviation therefrom.").
The Department could have presented expert testimony to establish the professional standard of care applicable to nursing home administrators and the ways in which Ms. DePonte's conduct deviated from this standard, or it could have identified a statute or rule setting forth the appropriate standard of care. See Purvis, 421 So. 2d at 136 ("Of greater importance,
however, is the fact that the Board never introduced any evidence at the administrative hearing to show the appropriate standard of care which it contends Dr. Purvis failed to meet. The Board introduced no expert testimony, no statute, no rule, nor any other type of evidence to establish the appropriate standard of care or that Dr. Purvis fell below that standard.").
The Department in this case failed to present any expert testimony establishing a standard of care for nursing home administrators or establishing the ways in which
Ms. DePonte failed to meet such a standard. The Department's witnesses who opined at hearing that Ms. DePonte should be held liable for all deficiencies found during the recertification survey consisted of three registered nurses and one dietician employed by AHCA. These witness are not qualified to render opinions as to the appropriate standard of care applicable to a nursing home administrator, and Mr. West, the Department's expert, did not offer an opinion regarding the appropriate standard of care. The Department also failed to cite any statute or rule which establishes a professional standard of care for nursing home administrators.9
Because the Department did not establish a standard of care applicable to nursing home administrators, it cannot be concluded that the deficiencies cited in the Form 2567 prepared as a result of the July 1998 recertification survey were the result of Ms. DePonte's failure to operate and manage Darcy Hall in a manner consistent with the way in which a nursing home administrator with the requisite training and experience would operate and manage a nursing home. Accordingly, the Department has failed to prove by clear and convincing evidence that
Ms. DePonte was negligent in carrying out her responsibilities as administrator of Darcy Hall at the time of the July 1998 recertification survey or that Ms. DePonte was incompetent or
engaged in misconduct with respect to carrying out her
responsibilities.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Nursing Home Administrators, enter a final order dismissing the Administrative Complaint against Eugenia DePonte.
DONE AND ENTERED this 30th day of November, 2000, in Tallahassee, Leon County, Florida.
PATRICIA HART MALONO
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 2000.
ENDNOTES
1/ Pursuant to Section 20.43(3)(g), Florida Statutes, the Department of Health has contracted with the Agency for Health Care Administration to provide consumer complaint, investigative, and prosecutorial services required by the various boards operating under the aegis of the Department of Health.
2/ There appears to be a typographical error in the Administrative Complaint with respect to the specific statutory section under which the Department has charged Ms. DePonte. The Administrative Complaint refers to "negligence, incompetence, or
misconduct." This language is found in Section 468.1755(1)(g), Florida Statutes (1997), rather than in Section 468.1755(1)(h), Florida Statutes, as cited in the Administrative Complaint. In its proposed conclusions of law, the Department has specifically referred to Section 468.1755(1)(g), Florida Statutes, as the statute under which Ms. DePonte has been charged.
3/ The Department cannot, by purporting to provide in an administrative complaint a non-exclusive listing of the factual bases underlying the charges, reserve to itself the right to present evidence at hearing with respect to facts not specifically alleged in the Administrative Complaint and then to base disciplinary action on such facts. See Hamilton v.
Department of Business and Professional Regulation, 764 So. 2d 778 (Fla. 1st DCA 2000); Marcellin v. Department of Business and Professional Regulation, 753 So. 2d 745 (Fla. 3d DCA 2000); Cottrill v. Department of Insurance, 685 So. 2d 1371 (Fla. 1st DCA 1996)(Even though an Administrative Complaint contains a reference to a particular statutory violation, facts or conduct warranting disciplinary action must be alleged in the Administrative Complaint; the fact that evidence was introduced that "might well support a violation" does not provide a basis for finding violation when the facts or conduct are not pled in the Administrative Complaint.); Sternberg v. Department of Professional Regulation, Board of Medical Examiners, 465 So. 2d 1324, 1325 (Fla. 1st DCA 1985). Cf. Maddox v. Department of Professional Regulation, 592 So. 2d 717, 720 (Fla. 1st DCA 1991)(Administrative Complaint contained sufficient allegations of the specific behavior and criteria charged to support violation).
4/ The survey team's report is written on an official form of the federal Health Care and Financing Administration identified as a "Statement of Deficiencies and Plan of Corrective Action," which is numbered as form 2567.
5/ Darcy Hall challenged the revised survey results. The challenge was finally resolved in a Settlement Agreement executed by Darcy Hall and AHCA on January 7, 2000, and the case was closed in a Final Order issued by AHCA on April 5, 2000. No factual findings were made with respect to the deficiencies identified in the July 20 through 24, 1998, survey, as revised, and Darcy Hall did not admit or deny the findings contained in the Form 2567.
6/ A geri-chair is a reclining chair used by residents who cannot sit up in a wheelchair.
7/ The testimony of the Department's expert witness, Gary West, has been considered. Mr. West's testimony attributing fault to Ms. DePonte for the deficiencies identified in the Form 2567 prepared after the July 1998 recertification survey is unpersuasive, and his conclusion to this effect is rejected.
It should also be noted that, in his report dated October 21, 1999, Mr. West found that, in his expert opinion, Ms. DePonte had violated only Section 468.1755(1)(k), Florida Statutes, which provides that the license of a nursing home administrator can be disciplined if she is found to be "[r]epeatedly acting in a manner inconsistent with the health,
safety, or welfare of the patients of the facility in which he or she is the administrator." Ms. DePonte has not been charged by the Department with having violated this statute.
8/ See footnote 2, supra.
9/ It is not clear from the proposed conclusions of law submitted by the Department whether it relies on
Section 415.102, Florida Statutes, to establish a standard of care for nursing home administrators. That statute defines "neglect" for purposes of the Adult Protective Services Act. That statute is totally unrelated to the issues presented in this case; Ms. DePonte has not been charged with neglect, nor does Section 415.102, Florida Statutes, purport to establish a professional standard of care for a nursing home administrator in carrying out his or her duties.
COPIES FURNISHED:
Mary Denise O'Brien, Esquire
Agency for Health Care Administration10 Post Office Box 14229
Mail Stop 39
Tallahassee, Florida 32317-4229
R. Bruce McKibben, Esquire Post Office Box 1798
Tallahassee, Florida 32302-1798
John Taylor, Executive Director Board of Nursing Home Administrators Department of Health
4052 Bald Cypress Way Tallahassee, Florida 32399-1701
Dr. Robert G. Brooks, Secretary Department of Health
4052 Bald Cypress Way Bin A00
Tallahassee, Florida 32399-1701
William W. Large, General Counsel Department of Health
4052 Bald Cypress Way Bin A00
Tallahassee, Florida 32399-1701
Theodore M. Henderson, Esquire Agency Clerk
Department of Health 4052 Bald Cypress Way Bin A02
Tallahassee, Florida 32399-1701
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within
15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
1 Pursuant to Section 20.43(3)(g), Florida Statutes, the Department of Health has contracted with the Agency for Health Care Administration to provide consumer complaint, investigative, and prosecutorial services required by the various boards operating under the aegis of the Department of Health.
2 There appears to be a typographical error in the Administrative Complaint with respect to the specific statutory section under which the Department has charged Ms. DePonte. The Administrative Complaint refers to "negligence, incompetence, or misconduct." This language is found in Section 468.1755(1)(g), Florida Statutes (1997), rather than in Section 468.1755(1)(h), Florida Statutes, as cited in the Administrative Complaint. In
its proposed conclusions of law, the Department has specifically referred to Section 468.1755(1)(g), Florida Statutes, as the statute under which Ms. DePonte has been charged.
3 The Department cannot, by purporting to provide in an administrative complaint a non-exclusive listing of the factual bases underlying the charges, reserve to itself the right to present evidence at hearing with respect to facts not specifically alleged in the Administrative Complaint and then to base disciplinary action on such facts. See Hamilton v. Department of Business and Professional Regulation, 764 So. 2d 778 (Fla. 1st DCA 2000); Marcellin v. Department of Business and Professional Regulation, 753 So. 2d 745 (Fla. 3d DCA 2000); Cottrill v. Department of Insurance, 685 So. 2d 1371 (Fla. 1st DCA 1996)(Even though an Administrative Complaint contains a reference to a particular statutory violation, facts or conduct warranting disciplinary action must be alleged in the Administrative Complaint; the fact that evidence was introduced that "might well support a violation" does not provide a basis for finding violation when the facts or conduct are not pled in the Administrative Complaint.); Sternberg v. Department of Professional Regulation, Board of Medical Examiners, 465 So. 2d 1324, 1325 (Fla. 1st DCA 1985). Cf. Maddox v. Department of Professional Regulation, 592 So. 2d 717, 720 (Fla. 1st DCA 1991)(Administrative Complaint contained sufficient allegations of the specific behavior and criteria charged to support violation).
4 The survey team's report is written on an official form of the federal Health Care and Financing Administration identified as a "Statement of Deficiencies and Plan of Corrective Action," which is numbered as form 2567.
5. Darcy Hall challenged the revised survey results. The challenge was finally resolved in a Settlement Agreement executed by Darcy Hall and AHCA on January 7, 2000, and the case was closed in a Final Order issued by AHCA on April 5, 2000. No factual findings were made with respect to the deficiencies identified in the July 20 through 24, 1998, survey, as revised, and Darcy Hall did not admit or deny the findings contained in the Form 2567.
6 A geri-chair is a reclining chair used by residents who cannot sit up in a wheelchair.
7 The testimony of the Department's expert witness, Gary West, has been considered. Mr. West's testimony attributing fault to Ms. DePonte for the deficiencies identified in the Form 2567 prepared after the July 1998 recertification survey is unpersuasive, and his conclusion to this effect is rejected.
It should also be noted that, in his report dated October 21, 1999, Mr. West found that, in his expert opinion, Ms. DePonte had violated only Section 468.1755(1)(k), Florida Statutes, which provides that the license of a nursing home administrator can be disciplined if she is found to be "[r]epeatedly acting in a manner inconsistent with the health,
safety, or welfare of the patients of the facility in which he or she is the administrator." Ms. DePonte has not been charged by the Department with having violated this statute.
8 See footnote 2, supra.
9 It is not clear from the proposed conclusions of law submitted by the Department whether it relies on Section 415.102, Florida Statutes, to establish a standard of care for nursing home administrators. That statute defines "neglect" for purposes of the Adult Protective Services Act. That statute is totally unrelated to the issues presented in this case; Ms. DePonte has not been charged with neglect, nor does Section 415.102, Florida Statutes, purport to establish a professional standard of care for a nursing home administrator in carrying out his or her duties.
10 Pursuant to Section 20.43(3)(g), Florida Statutes, the Department of Health has contracted with the Agency for Health Care Administration to provide consumer complaint, investigative, and prosecutorial services required by the various boards operating under the aegis of the Department of Health.
| Issue Date | Document | Summary |
|---|---|---|
| Mar. 05, 2001 | Agency Final Order | |
| Nov. 30, 2000 | Recommended Order | Agency failed to prove nursing home administrator was negligent, incompetent, or engaged in misconduct with respect to deficiencies cited in survey report. Agency did not present evidence to establish standard of care; complaint dismissed. |
