The Issue Whether Petitioner was legally justified in issuing a conditional license rating to Respondent.
Findings Of Fact Petitioner is the state agency responsible for licensing and regulating nursing homes in the State of Florida. Respondent operates a licensed nursing home at 13900 Northeast 3rd Court in Miami, Florida. At the time of the events giving rise to this case, Florence Lipinsky (Mrs. Lipinsky) was 78 years old, and had been living at Claridge House since 1997. Previously, Mrs. Lipinsky had lived in at least one other nursing home, Regents Park at Aventura (Aventura). At the time Mrs. Lipinsky resided at Aventura, that facility and Claridge House had no corporate relationship. However, at the time of the events giving rise to this case, Aventura and Claridge House were under the same ownership and management. At all times material to this case, Mrs. Lipinsky was a "vulnerable adult" within the meaning of Section 415.102(26). She suffered from extreme cognitive impairment, also known as dementia. She was unable to perform any of the tasks of daily living unassisted. For years prior to the events giving rise to this case, Mrs. Lipinsky was non-verbal, mostly bed bound, and able to take nutrition only through a feeding tube. She was generally unresponsive to visitors and caregivers. Simply put, she was helpless. Once her dementia became severe enough to require nursing home care, there was never any realistic expectation that Mrs. Lipinsky would ever be able to care for herself in any way, or to make health care decisions on her own behalf. The latter function had been taken over years before by her son and health care surrogate, Stuart Lipinsky (Lipinsky). Lipinsky also assumed financial responsibility for his mother's care. He regularly visited the nursing home administrative office to pay her bill, in cash. The entire time Mrs. Lipinsky resided at Claridge House, she was given the anti-anxiety medication Buspar. For a portion of the time that she resided at Claridge House, she was also given Risperdal, an anti-psychotic drug. Sound medical practice requires that a prescription drug not be administered unless a qualified physician has determined that the benefit to be obtained outweighs the risk of adverse side effects and/or drug interactions. This is especially true with powerful mood and behavior altering medications such as Buspar and Risperdal. The need for appropriate medical supervision is even more pronounced with a patient like Mrs. Lipinsky, who is unable to communicate meaningfully with doctors, and is dependent upon those who look after her to understand her needs based solely upon their observations of her behaviors over time. Mrs. Lipinsky was first prescribed Risperdal in early 2000. A consulting psychiatrist discontinued that medication on March, 12, 2001. In the summer of 2001, Lipinsky began to speak to the Administrator at Claridge House, Eddie Bursztyn, (Bursztyn) about his family situation. At that time, Bursztyn had served in the top position at Claridge House for a decade, and had recently, in addition to his Claridge House duties, taken over the top administrative position at Aventura. Lipinsky shared his personal, divorce-related problems with Bursztyn, and also shared that he was planning to remove his mother from Claridge House for a period of time. Eventually, he revealed to Bursztyn that he desired to transfer his mother to Aventura under an alias which would include a fake social security number. There was no medical purpose for such a transfer. All of the staff and services necessary to care for Mrs. Lipinsky were in place at Claridge House. Nothing which would improve her medical condition or otherwise enhance the quality of her life was offered at Aventura. Bursztyn, as well as the on-site administrator at Aventura, initially objected to transferring Mrs. Lipinsky under a false name. However, Bursztyn relented upon being informed that Mrs. Lipinsky's doctor, one Leonard Pianko (Pianko), was willing to cooperate with Lipinsky in falsifying patient records so as to facilitate the transfer. According to Bursztyn his "compassion took over" when he learned that Pianko was cooperating with Lipinsky. In addition, Bursztyn testified that he had no right or power to interfere with Lipinsky's plan to transfer his mother. This testimony is not credible. Bursztyn's demeanor under oath, viewed in the context of the entire record, compels the conclusion that Bursztyn abandoned his obligations to Mrs. Lipinsky and inappropriately adopted the view that the person paying the bill, in this case Mrs. Lipinsky's son, would be accommodated, whether or not he was acting in his mother's best interests. Bursztyn made no effort to determine what was motivating Lipinsky's scheme. Although he had years of administrative experience in what is a highly regulated industry, Bursztyn did not seek counsel or assistance from attorneys, regulators, or adult protective service workers with knowledge of how a nursing home resident can be assisted when her health care surrogate proposes a course of action which offers no discernable benefit to the resident. The need for further inquiry by Bursztyn was especially apparent here. For reasons discussed below, a change of residence posed serious risks to a cognitively impaired person such as Mrs. Lipinsky. The nature of those risks would be immediately apparent to any competent nursing home administrator, and were in fact apparent to Bursztyn. Nevertheless, Bursztyn actively facilitated the reckless and unethical behavior of the doctor and the health care surrogate by creating the false records necessary to effect the transfer. Bursztyn attempts to justify his conduct by asserting that Lipinsky, as health care surrogate, had the legal right to remove his mother from Claridge House. But Lipinsky did not have a legal right to demand that records be falsified. Nor could Lipinski have forced Bursztyn to admit his mother to a nursing home owned and operated by the owners of Claridge House. Bursztyn's participation in Lipinski's scheme was not born of respect for the law. Rather, it was a cynical bottom- line decision made for the sake of keeping the business of a cash customer. To that end, Bursztyn directed the preparation of transfer paperwork which falsely stated that Lipinsky was going home in the care of her son. He was further responsible for the preparation of documents identifying Mrs. Lipinsky as Marjorie Silver. A social security number was created for "Mrs. Silver," as well, and on October 1, 2001, she was sent by ambulance to Aventura under the alias. Medication orders for Mrs. Lipinsky were delivered to Aventura, also under the false name. Mrs. Lipinsky would remain at Aventura for 63 days at which time she was again transported by ambulance to Claridge House. Upon her admission at Aventura, some members of its staff recalled Mrs. Lipinsky from her previous stay, which occurred at least four years prior to the 2001 admission. The evidence establishes that those employees who knew her called her by her right name. There is no competent evidence that anyone ever addressed her as Marjorie or Mrs. Silver. There is a risk inherent in any patient transfer by ambulance or other vehicle. No purpose beneficial to Mrs. Lipinsky was served by the two ambulance rides needed to effect her transfer from and readmission to Claridge House. For a geriatric patient suffering from dementia, the applicable standard of care precludes ambulance transport absent a legitimate benefit to be obtained by the patient at the destination to which she is to be transported. The change in physical surroundings and staffing which attends the transfer of a patient from one nursing home to another would be stressful even for a young person who is in possession of her faculties and merely suffers from a minor, temporary physical disability. The standard of care for geriatric patients who suffer from dementia acknowledges that such drastic changes in surroundings and daily routine can be traumatic to a person who is physically helpless and unable to give and receive meaningful communication. The decision by Claridge House officials to subject Mrs. Lipinsky to significant changes in her surroundings was not prompted by legitimate reason, medical or otherwise. When a patient is newly admitted to a nursing home, staff is required to prepare an extensive chart. This process is highly labor intensive. Personnel from all disciplines are involved, including nurses, dieticians, social services, activities counselors, etc. All must do observations and assessments, and conduct chart reviews and conferences, in order to develop an appropriate care plan. Because a person suffering with dementia cannot offer coherent assistance to staff, staff must discern for themselves, over time, what is normal behavior for the patient. This makes the process all the more expensive and time consuming for staff and stresses the patient, as well. It is, therefore, not to be done except for legitimate reasons relating to the delivery of appropriate patient care. Almost immediately upon arrival at Aventura, Mrs. Lipinsky began to exhibit symptoms of agitation and distress sufficient to warrant a psychiatric consultation. The psychiatrist ordered that she be medicated with the antipsychotic drug Risperdal. Had Mrs. Lipinsky remained in her familiar environment, Risperdal may, as Claridge House argues, needed to have been reintroduced in her care plan for reasons unrelated to the stresses related to the transfer. This can never be known. What is known is that the medically unjustifiable transfer led swiftly and directly to a determination at Aventura that her condition had deteriorated to the point that an antipsychotic was necessary. Claridge House acknowledges, as it must, the unanimous weight of professional opinion that cognitively impaired individuals should, whenever possible, be maintained in a familiar and stable environment. A change in surroundings and caregivers, even when appropriately done for the purpose of providing improved care, will often trigger agitation and restlessness, as it did here. Claridge House defends its conduct with the assertion that it did not have the authority to prevent the transfer. In the context of the facts of this case, this argument is disingenuous. As noted above, at a minimum, Claridge House had the right to not cooperate in Lipinsky's scheme. Instead, Claridge House embraced a course of conduct which put its resident at risk of distress that could, and in this case did, lead to the need for use of a powerful drug from which she had previously been weaned. Claridge House had the last and best chance to spare Mrs. Lipinsky the risks associated with a move. Instead, it actively embraced the scheme to assure that the income stream from Mrs. Lipinsky would continue uninterrupted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order finding that Claridge House's license rating is “conditional” for the period from December 14, 2001, through January 28, 2002, and assessing costs pursuant to Section 400.121. DONE AND ENTERED this 11th day of October, 2002, in Tallahassee, Leon County, Florida. FLORENCE SNYDER RIVAS 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 11th day of October, 2002.
Findings Of Fact In July 1985 Petitioner Health Quest Corporation (hereinafter "Health Quest") filed an application with Respondent Department of Health and Rehabilitative Services (hereinafter HRS") seeking a certificate of need (hereinafter "CON") for a 120-bed nursing home facility in Dade County, Florida. Petitioner's application, designated by HRS as CON Action No. 4207, was denied, and Petitioner timely filed a petition requesting a formal hearing on such denial, pursuant to Section 120.57(1), Florida Statutes. All other applicants for nursing home CONs in July 1985 either failed to request Section 120.57(1) hearings or dismissed their previously-consolidated Section 120.57(1) petitions prior to the final hearing. Health Quest is the only applicant, therefore, in the July 1985 "batching cycle" in Dade County The parties stipulated prior to the final hearing that "numeric need" is the only issue to be resolved in this proceeding. The term "numeric need" refers to need as calculated pursuant to Rule 10-5.011(1)(k), Florida Administrative Code. Petitioner's disagreement with Respondent concerning the proper calculations under Rule 10-5.011(1)(k), pursuant to a stipulation during the final hearing, is limited to only one variable: the correct number of "approved beds," i.e., beds which have not been licensed but which have been approved by issuance of a CON. The disagreement between the parties concerning the correct number of approved beds for purposes of calculations under Rule 10-5.O11(1)(k) concerns the applicability of Section 381.713(4), Florida Statutes (1987). The provisions of Section 381.713(4) require that certain CONs be excluded from the inventory of approved beds for purposes of calculations under Rule 10-5.011(1)(k) in certain cases. Petitioner contends that CON #2741 issued to Health Care and Retirement Corporation (hereinafter "HCR"), CON #2450 issued to Health Quest and CON #3024 issued to Florida Convalescent Center (hereinafter "FCC") should be excluded pursuant to Section 381.713(4) from the approved bed inventory for purposes of calculations under Rule 10-5.011(1)(k). Each of those CONs is for a 120-bed facility and, therefore, according to Petitioner, a total of 360 beds should be excluded from the approved bed inventory. HRS admits that exclusion of CON #2741 and CON #2450 from calculations under Rule 10-5.011(1)(k) would result in sufficient numeric need to approve Health Quest's application. Although HRS was not specifically asked the same question regarding CON #3024, the treatment of that CON is indistinguishable from the other two. Based upon the above stipulations of the parties, the only issue to be resolved herein is whether CON #2741, CON #2450, and CON #3024 are required under Section 381.713(4) to be excluded from calculations under Rule 10.5- 011(1)(k) for purposes of this case. SETTLEMENT OF DOAH CASE NO. 85-2991 CON #2741 was issued by HRS to HCR on June 7, 1985, for a 120-bed nursing home in Dade County. CON #2450 was issued to Health Quest on March 12, 1985, for a 120-bed nursing home in Dade County. CON #3024 was issued to FCC on February 4, 1985, for a 120-bed nursing home in Dade County. Forum Group, Inc. (hereinafter "Forum") applied in January 1985 for CON #3893 for nursing home beds in Dade County. Forum's application was denied, and Forum petitioned for a Section 120.57(1) hearing to dispute such denial. While the Section 120.57(1) proceeding on Forum's application for CON #3893 was pending, Forum filed a petition for a Section 120.57(1) hearing to dispute the issuance of the CONs referred to in the preceding paragraph, as well as others. HRS dismissed Forum's petition by final order on January 21, 1987. Forum appealed the Department's dismissal of its petition contesting the Dade County CONs. The appeal was designated by the First District court of Appeals (hereinafter "DCA") as Case No. BS-128. Forum filed a Notice of Voluntary Dismissal with the DCA in Case No. BS-128 on July 23, 1987. The Notice of Voluntary Dismissal states that the dismissal of the appeal is based upon the terms of the Stipulation and Settlement Agreement, which is dated July 14, 1987, providing for the award of a CON to Forum. The Stipulation and Settlement Agreement is attached as an exhibit to the Notice of Voluntary Dismissal. The Notice of Voluntary Dismissal also states that the basis for the settlement was the applicability of Section 381.713(4) to the CONs issued to Health Quest, HCR and FCC, which were the subject of Forum's challenge. The Stipulation and Settlement Agreement attached to Forum's Notice of Voluntary Dismissal is a settlement of DOAH Case No. 85-2991, the consolidated Section 120.57(1) proceeding involving three applicants for nursing home beds in Dade County in January 1985. The applicants other than Forum were Hillhaven Convalescent Center, Inc. (hereinafter "Hillhaven") and Manor Care, Inc. (hereinafter "Manor Care"). Hillhaven had applied for CON No. 3894; Manor Care had applied for CON No. 3900. The style of DOAH Case NO. 85-2991 is Hillhaven Convalescent Center, et al. v. DHRS. The Stipulation and Settlement Agreement in DOAH Case No. 85-2991, in part, states as follows: HRS . . . issued Certificate of Need Nos. 2450, 2741 and 3024 for a total of 360 beds in Dade County. A Petition seeking to contest the validity of these CONs, among others, was filed after February 14, 1986, by Forum. Section 381.713(4) . . . has recently become law. . . . The parties hereto agree that this provision is applicable to CON Nos. 2450, 2741 and 3024. The Stipulation and Settlement Agreement in DOAH Case No. 85-2991 was signed for HRS by John Rodriguez as counsel and by J. Robert Griffin, M.A., J.D., Deputy Assistant Secretary, Office of Regulation and Health Facilities. Griffin is the senior official in the HRS CON office. Paragraph 7 of the Stipulation and Settlement Agreement in DOAH Case No. 85-2991 provides that each signatory to the agreement represents "that he/she is vested with full power and authority to execute this Stipulation and Settlement Agreement on behalf of his/her client." DOAH Case No. 85-2991 was not settled on the basis of Rule 10- 5.011(1)(k)(2)(j), Florida Administrative Code. Factually, there was no basis for approval of CONs #3893, #3894 and #3900 under subsection (k)(2)(j). The HRS CON files for CONs #3893, #3894 and #3900 each contain an identical document referred to as a "Reconsideration Memorandum." A reconsideration memorandum is a document used to record HRS' re-review of an application based upon newly discovered facts. The Reconsideration Memorandum, dated June 25, 1987, is a memorandum from Elizabeth Dudek, a CON review supervisor, to Robert Griffin, HRS' senior CON official. The Reconsideration Memorandum refers to the CON applications filed by Hillhaven, Manor Care and Forum for Dade County in January 1985, noting that there was no numeric need and that no special circumstances were presented. The memorandum, however, recommends that CONs be issued to Hillhaven, Manor Care, and Forum based upon the applicability of Section 381.713(4) to CONs #2450, #2741 and #3024. The Reconsideration Memorandum was the basis for settlement of DOAH Case No. 85-2991, and the Reconsideration Memorandum in fact constituted the basis for HRS' approval of CON Nos. 3893, 3894 and 3900. Further, HRS acknowledged, through Mr. Griffin, that DOAH Case No. 85- 2991 was settled on the basis of Section 381.713(4). Therefore, it is clear that HRS is acknowledging that the $50,000 expenditure requirement of Section 381.713(4) was satisfied as to CONs 2450, 2741 and 3024, and that the beds authorized by those CONs were not licensed as of June 17, 1987, i.e., the effective date of Section 381.713(4). 23. On September 4, 1987, R. Terry Rigsby, counsel for Forum in DOAH Case No. 85-2991, wrote to John Rodriguez, counsel for HRS in both that case and this case. The letter is stamped as having been received by HRS Legal Services on September 8, 1987. The letter refers to DOAH Case No. 85-2991 and states: Per your request I have revised the Stipulation and Settlement Agreement previously entered into among all parties to this proceeding in order to delete the reference to the Health Quest language passed during the 1987 session. I am enclosing a copy for you and . forwarding the original to Joe Bianculli for his signature. The reference in the letter to "the Health Quest language", means Section 381.713(4), which is common referred to as the "Health Quest amendment." The parties in DOAH Case No. 85-2991, at some date after September 8, 1987, entered into a new Stipulation and Settlement Agreement. The agreement identifies no basis for the settlement other than the bare assertion that compliance with statutory and rule criteria has been demonstrated. The new agreement is falsely dated July 14, 1987, i.e., purports to have been executed in July although in fact it was not executed until September. Although the second agreement is attached to the final order entered by HRS in DOAH Case No. 85-2991, the first agreement executed in July is the basis on which DOAH Case No. 85-2991 was settled, not the second agreement. HRS' counsel in the case involving the January 1987 batching cycle in Pinellas County, Lee Elzie, stated during that case, in the presence of the Hearing Officer, that Section 381.713(4) had been applied in settlement in Dade County. HRS in fact settled Case No. 85-2991 on the basis of the applicability of Section 381.713(4) to CONs #2450, #2741 and #3024. SETTLEMENT OF DOAH CASE NO. 85-2639 On February 13, 1985, HRS issued CON #2379 to Beverly Enterprises- Florida, Inc., (hereinafter "Beverly") and CON #2976 to FCC; each CON authorized a 120-bed nursing home in Pinellas County. On February 13, 1985, HRS issued CON #2978 to Health Quest for a 120-bed nursing home in Pinellas County. In January of 1985, applications for nursing home CONs in Pinellas County were filed by HCR and various other applicants. Denial of those applications gave rise to the consolidated Section 120.57(1) proceeding styled as Imperial Palms Apartments, et al. v. DHRS, et al., DOAH Case No. 85-2639. In its Proposed Recommended Order submitted in DOAH Case No. 85-2639 on May 18, 1987, HRS contended that pursuant to Rule 10-5.011(1)(k) there was a need for only 159 beds for the Pinellas County January 1985 batching cycle. Diane D. Tremor, the Hearing Officer in DOAH Case No. 85-2639, issued a memorandum dated June 10, 1987, to the parties in DOAH Case No. 85-2639, asking counsel to advise her as to the applicability of Section 381.713(4). Lesley Mendelson, counsel for HRS in DOAH Case No. 85-2639, responded to Hearing Officer Tremor's memorandum by a letter dated June 12, 1987, stating that Section 381.713(4) was not applicable because "there were no proceedings initiated under the APA against the beds counted as approved in this case after February 14, 1986. . . . No one can contest that fact." On June 16, 1987, HCR filed a petition contesting the validity of CON #2379, #2976, and #2978, (as well as CON #2975, which is not material). Section 381.713(4) became law on June 17, 1987. By letter dated June 26, 1987, W. David Watkins, counsel for one of the applicants in DOAH Case No. 85-2639, wrote to Hearing Officer Tremor to advise that Section 381.713(4) required the exclusion of CON #2379, #2976, and #2978 from the approved bed inventory for purposes of calculations under Rule 10-5.011(1)(k) in the Imperial Palms case. Mr. Watkins attached to his letter a copy of the HCR petition and a copy of "a document obtained from the DHS Monitoring Office indicating the date of issuance of each CON as well as the amount of expenditures made by each applicant to date." The Watkins letter stated, and the HRS document represented, that more than $50,000 (exclusive of attorney fees) had been expended in reliance on CON #2379, #2976 and #2978. On July 13, 1987, Hearing Officer Tremor entered an Order to Counsel for the Department of Health and Rehabilitative Services to Show Cause in DOAH Case No. 85-2639 within seven days why HRS should not admit that the documents attached to the Watkins letter should be considered authentic and accurate, or, alternatively, why HRS should not admit (1) that CONs #2379, #2976, and #2978 were approved prior to February 14, 1986, but remained unlicensed as of June 17, 1987; and (2) that the holders of CONs #2379, #2976, and #2978 had each expended in excess of $50,000 in reliance upon their approvals. On July 28, 1987, Hearing Officer Tremor entered an order in DOAH Case No. 86-2639 reopening the record "for the receipt of evidence concerning the impact of new legislation upon the ultimate issue of numeric need . . . ." The Order provides that it would be necessary to determine whether the holders of CONs #2379, #2976 and #2979 had expended in excess of $50,000 in reliance upon their approvals, and orders counsel for all the parties to consult and agree, within 10 days, as to either a method of adducing such evidence without hearing or several acceptable dates for scheduling the reopening of the hearing. On September 11, 1987, the parties executed a Settlement Agreement in DOAH Case No. 85-2639. That Settlement Agreement was memorialized by HRS in its Final Order entered on November 2, 1987. The Settlement Agreement and the Final Order in DOAH Case No. 85-2639 identify no basis for the Department's action in settling that case. The Final Order in DOAH Case No. 85-2639 approves a total of 477 beds, notwithstanding HRS' position in that cause that only 159 beds were needed. Utilizing Rule 10-5.011(1)(k) for purposes of calculating bed need for the January 1985 batching cycle in Pinellas County, i.e., the calculations applicable to DOAH Case No. 85-2639, reveals that if the calculations specified by HRS in its proposed recommended order filed in that cause are modified by excluding CONs #2379, #2976 and #2978 from the inventory of approved beds, the numeric need under Rule 10-5.011(1)(k) is 483 beds. There is no method of calculating a bed need of approximately 477 beds for the January 1985 batching cycle in Pinellas County other than by excluding CONs #2379, #2976 and #2978 from the inventory of approved beds. HRS' settlement of DOAH Case No. 85-2639 was in fact based on recognition that Section 381.713(4) required exclusion of CONs #2379, #2976 and #2978 for purposes of need calculations under Rule 10-5.011(1)(k). SETTLEMENT OF DOAH CASE NO. 85-2931 HRS settled DOAH Case No. 85-2931 by issuance of two 60-bed CONs to HCR and Beverly Enterprises based on applications filed in January 1985 for Subdistrict 2 of HRS District IV, which subdistrict consisted of Baker County, Clay County, and Southwest Duval County. HCR had previously filed a petition contesting the issuance of CON #2696 issued earlier in that subdistrict. Based on the Department's established practices and policies for computing bed need under Rule 10-5.011(1)(k), there was no method by which a need for 120 beds could have been calculated in DOAH Case No. 85-2931 other than by exclusion of CON #2696 from the inventory of approved beds pursuant to Section 381.713(4). HRS in fact settled DOAH Case No. 85-2931 based on exclusion of CON #2696 from the approved bed inventory pursuant to Section 381.713(4). THE ISSUE OF TIMELINESS The enactment of Section 381.713(4) was due in large part to lobbying by Health Quest. One of Health Quest's purposes in lobbying for the bill, as known to legislators and HRS during the spring of 1987 when the bill was under consideration, was to protect the CONs challenged by Forum in DCA Case BS-128 from the risk presented by Forum's challenge. FCC, having been challenged by Forum as to the validity of CON #3024 in Dade County, also was very active in such lobbying. The bill was understood by lobbyists and legislators to provide protection for CONs against "late" challenges, i.e., challenges initiated after the CON-holder believed the CON to be safe from challenge. One of the considerations in the drafting of the bill was CON #3278 issued to Health Quest for Sarasota County in October of 1985. Health Quest's CON #3278 was challenged by later-batched applicants in April of 1986, approximately six months after the CON had been issued; despite such passage of time, the challenges to CON #3278 were held by Hearing Officer William C. Sherrill, Jr., in his Order on Consolidation and Comparative Review issued January 21, 1987, in DOAH Case No. 86-0050, not to be untimely. Section 381.713(4) was later acknowledged by HRS to require the exclusion of CON #3278 in calculating need under Rule 10-5.011(1)(k) for the July 1985 batching cycle in Sarasota County. The parties who challenged CON #3278 had actual notice that CON #3278 had been issued, but were held by Hearing Officer Sherrill not to have waived the right to contest the issuance of CON #3278 by failure to initiate proceedings within 30 days of receipt of such notice. At the time Section 381.713(4) was under consideration, there was substantial doubt in the health planning community whether a CON challenge such as that filed by Forum as to CONs #2450, #2741 and #3024 was barred by untimeliness. Eliminating the risk presented by such doubt, specifically with reference to Forum's petition in Dade County, was one of the purposes for which Section 381.713(4) was written and passed. Lee Elzie, counsel for HRS in the DOAH case involving the January 1987 batching cycle in Pinellas County, admitted during proceedings in that case, before Hearing Officer Diane D. Tremor, that Section 381.713(4) had been intended to apply to Dade County. No "notice of litigation" was published in the Florida Administrative Weekly concerning the DOAH proceedings involving the denial or approval of CONs #3450 and #2741. In the "Correction Notice" published in the Florida Administrative Weekly Vol. 11, No. 32, August 9, 1985, Page 3118, HRS advised that no party could challenge the issuance of CON #2741 since the CON had been issued in settlement of a DOAH case and therefore constituted final agency action. CON #2450 was also issued in settlement of a DOAH case.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered granting Petitioner's January 15, 1985 application for a certificate of need for a 120-bed nursing home in Dade County, Florida, bearing CON #4207. DONE and RECOMMENDED this 18th day of October, 1988, at Tallahassee, Florida. LINDA M. RIGOT, 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 18th day of October, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1351 Petitioner's proposed findings of fact numbered 1-16, 19-25, 30-41, 45, 48-50, and 56-71 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 17, 18, and 54 have been rejected as being unnecessary for determination of the issue herein. Petitioner's proposed findings of fact numbered 42-44, and 46 have been rejected as not being supported by the weight of the credible evidence in this cause. Petitioner's proposed findings of fact numbered 26-29, 47, 51-53, 55, and 72 have been rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitations of the testimony. Respondent's proposed findings of fact numbered 1, 2, and 8-11 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 3 and 4 have been rejected as being unnecessary for determination of the issue herein. Respondent's proposed finding of fact numbered 5 has been rejected as not being supported by the weight of the credible evidence in this cause. Respondent's proposed finding of fact numbered 6 has been rejected as being irrelevant to the issue under consideration herein. Respondent's proposed finding of fact numbered 7 has been rejected as not constituting a finding of fact but rather as constituting argument of counsel, a conclusion of law, or recitation of the testimony. COPIES FURNISHED: Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Charles M. Loeser, Esquire Health Quest corporation 315 West Jefferson Boulevard South Bend, IN 46601 Steve W. Huss, Esquire 1017 Thomasville Road Tallahassee, Florida 32303 John Rodriguez, Esquire Department of Health and Rehabilitative Services 2727 Mahan Drive Fort Knox Executive Center Tallahassee, Florida 32308 =================================================================
Conclusions Having reviewed the Notice of Return of Application issued on January 26, 2009, to the Petitioner, Sanderling LTAC, LLC ("Sanderling") requesting a transfer of CON #9893 for a 30-bed long term care hospital from Miami Jewish Home & Hospital for the Aged, Inc. (Exhibit 1), and all other matters or record, the Agency For Health Care Administration ("the Agency"), finds and concludes as follows: The date of termination for CON 9893 was December 28, 2008. On December 24, 2008, Sanderling filed a CON transfer application along with the application filing fee of $10,000.00. Sanderling's transfer application was issued CON Action Number 10046. On January 26, 2009, the Agency notified Sanderling that its transfer application could not be accepted as CON 9893 had expired on December 28, 2008. The Agency further informed Sanderling that it could file for a refund of the application fee. (Exhibit 1) Filed November 9, 2009 12:05 PM Division of Administrative Hearings. On March 12, 2009, Sanderling filed an Amended Petition for Formal Administrative Proceedings challenging the return of its transfer application for CON 9893. On October 12, 2009, Sanderling informed the Agency that it had received its fee refund check for the application filing and filed a Notice of Voluntary Dismissal. On October 13, 2009, the Administrative Law Judge entered an Order Closing File. It is therefore ORDERED: The Notice of Voluntary Dismissal is acknowledged and accepted. The Notice of the Return of Application is upheld. The above-styled case is hereby closed. DONE and ORDERED this i£_ day of f,}av k. inTallahassee, Florida. , 2009, Agency For Health Care Administration
Other Judicial Opinions A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW, WHICH SHALL BE INSTITUTED BY FILING THE ORIGINAL NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A COPY ALONG WITH THE FILING FEE 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 WITHIN 30 DAYS OF THE RENDITION OF THE ORDER TO BE REVIEWED. 2 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been furnished by U.S. or interoffice mail to the persons named below on this ay of r ,2009. RICHARD J. SHOOP, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308 (850) 922-5873 Copies furnished to: Janice Mills Facilities Intake Agency for Health Care Admin. (Interoffice Mail) Richard Joseph Saliba, Esquire Assistant General Counsel Agency for Health Care Admin. (Interoffice Mail) David M. Maloney Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (Electronic Mail) W. David Watkins, Esquire Watkins and Associates, P A Post Office Box 15828 Tallahassee, Florida 32317-5828 (U.S. Mail) 3 A -17-2009 13:11 .,•·:. G - N-_;·.:'.;_-f.-... JCA/·- --- M.·I·N·:··.·; Mar 17 2009 12:59 , _ .i.Y.. ;. _ .. lo.mi _P. . , . \- . . l/£;i J, i,q"·.·' ..· . CHARLIE CRIST GOVERNOR N;iBC lH AllYI SECRETARY Setter He ith.Care for all Floridians HOLLY.BENSON CERTIFIED RRR January 26, 2009 Karl David Acuff, Esq. Watkins & Associates. P.A. AUorneys and Counselors at Law 3051 Highland Oaks Terrace, Suite D Post Office Box 16828 Tallahassee, Florida 32317-5828 Dear Mr. Acuff: RE: Certificate of Need (CON) Number 10046- Enclosed is the application on behalf of Sanderling LTAC, LLC to transfer CON #9893 for a 30- bed long-term care hospital from Miami Jewish Home & Hospital for the Aged, Inc. to your entity. The application cannot be accepted as CON #9893 expired on December 28, 2008. Enclosed is a refund form for the $10,000 filing fee. Please complete and return this form in order to obtain a refund. Also, enclosed is your election of rights form should you wish to appeal this decision. A request for administrative hearing, if any, must be made in writing and must be actually received within 21 days of your receipt of this notice pursuant to Chapter 120, Florida Statutes and Chapter 59C-1, Florida Administrative Code. Please note that should you prevail upon appeal, a new application fee and complete application will e required. If you have any questions. please call James Mclemore at (850) 922-0699. JNG/jbm cc: James 'Mclemore, Certificate of Need Justin Senior, Office of the General Counsel Lorraine Novak, Office of the General Counsel 2727 Mahan Drive, MS# 28 iallahusee, Florida 32308 Visit AHCA online al http://ahca.myflorlda.com EXHIBIT 1 Oct 12 09 ll:43a Dave IJatkins Oct 12 2009 11:47 8506712732 p.2
The Issue The issues for determination are whether Respondent admitted new residents in violation of Section 400.141(15)(d), Florida Statutes (2001); and, if so, whether Petitioner should reclassify Respondent's license from standard to conditional, impose an administrative fine of $7,500, and impose costs pursuant to Sections 400.23(8)(b) and 400.419(10), Florida Statutes (2001). (References to chapters and statutes are to Florida Statutes (2001) unless otherwise stated.)
Findings Of Fact Petitioner is the state agency responsible for regulating nursing homes in accordance with Chapter 400. Respondent is licensed as a skilled nursing facility pursuant to license number SNF 1186096, certificate number 8590. Respondent operates a 120-bed nursing home at 2500 West Church Street, Orlando, Florida 32805 as a non-profit facility (the facility). From April 8 through 11, 2002, a four-member survey team assigned by Petitioner conducted an annual survey of the facility pursuant to Section 400.23(7). The survey team found that the facility violated Section 400.23(3)(a) by failing to maintain minimum staffing requirements for licensed nurses equal to one hour of direct care per resident per day (minimum staffing requirements) during a 14-day period from March 17 through March 30, 2002 (the relevant period). Petitioner found that the facility failed to maintain minimum staffing requirements for 12 days during the relevant period, including two consecutive days on March 28 and 29, 2002. It is undisputed that the facility admitted new residents on March 17, 22, and 27, 2002. The survey team based its finding on records provided by the facility. In particular, the survey team relied on a table submitted by the facility that compares the total number of licensed nurses, including LPNs and RNs, to the resident census (the original submission by the facility). The original submission by the facility is identified in the record as page nine of Petitioner's Exhibit One (P-1). The original submission indicates the facility failed to maintain minimum staffing requirements on 12 days during the relevant period. The original submission indicates the facility complied with minimum staffing requirements on March 27 and March 30, 2002. During and after the survey, the facility submitted additional information in an attempt to explain the discrepancies in the original submission (subsequent submissions). The subsequent submissions are identified in the record as pages five and eight of P-1. The subsequent submissions indicate that the facility failed to meet minimum staffing requirements on five days during the relevant period. However, the subsequent submissions identify different days in which the facility failed to meet minimum staffing requirements. The subsequent submission identified as page five of P-1 indicates the facility failed to meet minimum staffing requirements on March 18 through 20, March 24, and March 29, 2002. The subsequent submission identified as page eight of P-1, indicates the facility fell below minimum staffing requirements on March 19, 21, 24, and 28 and 29, 2002. Given the inconsistencies in the three submissions by the facility, identified in the record as pages 5, 8, and 9 of P-1, Petitioner relied on the original submission by the facility, identified as page 9 of P-1, for the factual allegations in the Administrative Complaint. In relevant part, the Administrative Complain alleges: . . . [T]he facility failed to maintain the minimum number of staff between March 17 . . . March 30, 2002. Nursing staffing records revealed that twelve days during the period were below minimum staffing. Further review of . . . [the] records revealed that it did not have six consecutive days during which it met the minimum required staffing. Interviews with the acting Director of Nursing . . . revealed that they were not aware of the staff shortages. Pursuant to [Section] 400.141(15)(d), Fla. Stat., [Respondent] is prohibited from accepting new admissions until it has achieved the minimum staffing requirements for a period of six consecutive days. [Respondent] admitted new residents on March 22 . . . [and] March 27, 2002. The Administrative Complaint does not expressly allege that the facility failed to meet minimum staffing requirements for "two consecutive days." However, such an allegation is necessarily implied in the allegation that the facility failed to meet minimum staffing requirements for 12 of the 14 days in the relevant period. The submissions by the facility, identified in the record as pages 5, 8, and 9 of P-1, were flawed for several reasons. First, the census count in each submission included bed holds for residents who were not present in the facility. The parties agree that bed holds should be excluded from the resident census and that the resident census should include only those residents that are physically present in the facility. Second, the submissions inadvertently excluded LPNs and RNs who were actually working during the relevant period, including contract nurses provided by outside agencies. Turnover among key personnel at the facility was another reason for the flawed submissions by the facility. On or about March 22, 2002, the Administrator of the facility and the Director of Nursing resigned. The individuals who replaced them were inexperienced in reporting data to Petitioner and were confused over how to compute minimum staffing requirements, including the resident census. The change in personnel also created confusion over whether to include clinical hours of nurses who also performed administrative functions. The minimum staffing requirements prescribed in Section 400.23(3)(a) provide, in relevant part, that the hours of a licensed nurse with dual job responsibilities cannot be counted twice. When the Director of Nursing resigned, the Assistant Director of Nursing became the Acting Director of Nursing (DON). The position of Assistant Director of Nursing remained vacant because the facility did not have a resident population large enough to require an Assistant Director of Nursing. The submissions by the facility did not include the clinical hours of nursing provided by the Assistant Director of Nursing before she became the DON. Nor did the submissions by the facility include the clinical hours of nursing provided by another licensed nurse identified in the record as the "MDS" Coordinator. After Petitioner filed the Administrative Complaint, Respondent retained two experts to determine minimum staffing levels at the facility during the relevant period. Each expert determined minimum staffing levels at the facility for the relevant period independently of the other expert. One expert spent approximately 14 hours in making her determination, and the other expert spent between 15 and 16 hours making her determination. The minimum staffing level computed by the first expert agreed with that computed by the second expert. Each expert relied on relevant facility records and interviewed facility personnel. Each expert calculated an adjusted census that excluded bed holds. Each expert reviewed time records of licensed nurses during the relevant period, including nurses provided by outside agencies. Each expert reviewed job descriptions for the Assistant Director of Nursing and the MDS Coordinator and interviewed the individuals who were the Assistant Director of Nursing and MDS Coordinator to determine the actual clinical hours of nursing each provided during the relevant period. The experts also discovered that time records excluded time actually worked by some licensed nurses during lunch. The experts included the time actually worked by those nurses in computing minimum staffing levels during the relevant period. The facility met or exceeded the minimum staffing requirements for licensed nurses on each day during the relevant period except March 19, 24, and 29, 2002. The facility did not fail to meet minimum staffing requirements on two consecutive days. If the time actually worked by licensed nurses but not included in the time records were disregarded, it would not result in understaffing for two consecutive days during the relevant period. During cross-examination, each of Respondent's experts agreed that she would have cited the facility for failing to meet minimum staffing requirements for two consecutive days if the information contained in the original and subsequent submissions by the facility had been the only information available to the expert. That was the only information available to the witness called by Petitioner, and time constraints permitted the witness to spend only about two hours reviewing the flawed information. Based on flawed information available to Petitioner prior to the administrative hearing, Petitioner correctly proposed to take final agency action to fine Respondent and to change Respondent's license status from standard to conditional. However, an administrative hearing conducted pursuant to Section 120.57(1) is not a review of proposed agency action that has been taken preliminarily. An administrative hearing conducted pursuant to Section 120.57(1) is a de novo hearing that is undertaken to formulate final agency action rather than to review proposed agency action taken preliminarily. A de novo hearing is not limited to information available to the agency at the time the agency proposes final agency action. The scope of a de novo hearing includes any relevant and material evidence admitted through the date of the hearing. The weight to be accorded that evidence is the sole province of the trier of fact.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent not guilty of the acts and omissions alleged in the Administrative Complaint and restoring Respondent's previous license rating nunc pro tunc. DONE AND ENTERED this 5th day of June, 2002, in Tallahassee, Leon County, Florida. DANIEL MANRY 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 5th day of June, 2002. COPIES FURNISHED: Gerald L. Pickett, Esquire Agency for Health Care Administration 525 Mirror Lake Drive Sebring Building, Suite 330L St. Petersburg, Florida 33701-3219 George F. Indest III, Esquire The Health Law Firm 220 East Central Parkway, Suite 2030 Altamonte Springs, Florida 32701 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308 Rhonda M. Medows, M.D., Secretary Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3116 Tallahassee, Florida 32308
The Issue Whether one or more of the following penalties should be imposed on the Respondent: revocation or suspension of the Respondent's license as a registered nurse, restriction of the Respondent's practice, imposition of an administrative fine, issuance of a reprimand, placement of the Respondent on probation, and/or any other relief that the Board of Nursing deems appropriate?
Findings Of Fact At all times relevant hereto, the Respondent was a registered nurse in the State of Florida. The Respondent holds State of Florida license number 16441472. From August, 1985, through July, 1986, the Respondent was employed as a registered nurse by Good Samaritan Home Health Services, Inc. (hereinafter referred to as "Good Samaritan"). The Respondent was fired for failure to make required patient visits. The Respondent was scheduled to visit Dot C. Laliberte, a patient of Good Samaritan, on July 12 and 14, 1986. The Respondent visited Ms. Laliberte on July 13, 1986, but did not visit her on July 12 and 14, 1986. The Respondent completed a lengthy report on July 12, 1986 and one on July 14, 1986, indicating that she had visited Ms. Laliberte on those dates. These reports were knowingly false and were submitted to Good Samaritan. The Respondent's conduct as described in findings of fact 3 and 4 constituted unprofessional conduct and was not within minimum standards of acceptable and prevailing nursing practice. The Respondent did visit Clara Brooker, another patient of Good Samaritan, but her visits did not exceed five minutes. It was not possible for the Respondent to provide the care she reported had been provided to Ms. Brooker during such a short visit. On at least one visit with Ms. Brooker, the Respondent failed to change dressings on the patient and left the patient soiled. Failure to change Ms. Brooker's dressing constituted unprofessional conduct and was not within minimum standards of acceptable and prevailing nursing practice. The Respondent failed to visit Elizabeth Hathaway, another patient of Good Samaritan, on July 14, 1986. Her failure constituted unprofessional conduct and was not within minimum standards of acceptable and prevailing nursing practice. The Respondent discharged Ms. Hathaway as a patient over the telephone. She knew that this was improper. Discharge of a patient by telephone was unprofessional conduct and not within the minimum standards of acceptable and prevailing nursing practice. The Respondent submitted a Home Health Supervisory Visit Report concerning Earl Hartfield, a Good Samaritan patient, on May 5, 1986, June 6, 1986, and June 20, 1986. Each of these reports were identical except for the alleged dates of the visits. The Respondent filled out one report, copied it and used it on the other occasions. The Respondent did not make all three of these visits. This conduct constituted unprofessional conduct and was not within minimal standards of acceptable and prevailing nursing practice. The Respondent admitted to the Petitioner's investigator that she did not make all required visits even though she knew it was against the rules and regulations of Good Samaritan. From August 5, 1985 until August 15, 1985, the Respondent was employed at Riverside Hospital in Jacksonville. The Respondent was fired from her employment at Riverside Hospital because it was believed that the Respondent had given inconsistent information on her employment application. The Respondent completed and signed an application for employment as a nurse with Good Samaritan on August 26, 1985. The Respondent declared that the information provided in the application was true and correct to the best of her knowledge. In the application the Respondent was requested to "give accurate, complete full-time and part-time employment record." The Respondent failed to include her employment at Riverside Hospital. The Respondent also indicated that she had been employed at Cardinal Nursing Home and that she had left because of "personal problems." The Respondent admitted to the Petitioner's investigator, however, that she had left Cardinal Nursing Home because she had made medication errors. The Respondent completed and signed an application for employment as a nurse with Medical Personnel Pool (in Jacksonville) on July 25, 1986. In the application the Respondent was requested to list "in order, last or present employer first" her work history. Only four spaces were provided for this information and she was not specifically requested to provide any more than her last four employers. In providing this information, the Respondent should have listed her employment at Good Samaritan, Riverside Hospital, Mayflower Nursing Home (or Kinsley Nursing Home) and Greensprings Manor, in that order, to be consistent with applications for employment filed at Good Samaritan and Riverside Hospital. Instead, the Respondent listed her employment at Good Samaritan, Kingsley Nursing Home, Greenspring Manor and Medical Personnel Pool (of Indiana). The Respondent also indicated that she left Good Samaritan for "personal" reasons and did not admit that she had been fired. The information concerning the Kinsley Nursing Home is similar to the information concerning the Mayflower Nursing Home, which was reported in her applications with Good Samaritan and Riverside Hospital. They appear to be the same entities. Dates of employment at these entities are inconsistent, however. The address of, and dates of employment at, Greenspring Manor are inconsistent with her application at Riverside Hospital. Finally, the dates of her employment with Medical Personnel Pool (in Indiana) are different from the dates she included on the applications at Riverside Hospital and Good Samaritan.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent be found guilty of having violated Sections 464.018(1)(d), (f) and (j), Florida Statutes (1986 Supp.). It is further RECOMMENDED that the Respondent's license as a registered nurse be revoked. DONE and ENTERED this 10th day of November, 1987, in Tallahassee Florida. LARRY J. SARTIN 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 10th day of November, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1612 The Petitioner has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Proposed Finding Paragraph Number in Recommended Order of Fact of Acceptance or Reason for Rejection A 1. B 2. C 3-4 and 8. The weight of the evidence did not prove that the Respondent failed to visit and treat a patient by the name of McInnis or a patient by the name of Guerin. The evidence concerning these patients was hearsay. 2. The second sentence is unnecessary. 8 and 11. F 3. 5 and 10. 6-7 and 9. The evidence did not prove that the Respondent "never" changed dressings of Ms. Brooker. I 13. J 14. The last sentence is irrelevant. COPIES FURNISHED: Judie Ritter, Executive Director - Nursing Room 504, 111 East Coastline Drive Jacksonville, Florida 32201 Tom Gallagher, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee Florida 32399-0750 William O'Neil General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee Florida 32399-0750 Albert H. Mickler, Esquire 5452 Arlington Expressway Jacksonville, Florida 32204 Lillian Poul, pro se 7114 Silver Lake Terrace Jacksonville Florida 32216
