The Issue The issue in this case is whether the nursing home facility previously owned and operated by Beverly Health and Rehab Fort Pierce, and later owned and operated by Fort Pierce Health Care, ("Nursing Home") was entitled to a standard license during a period in which the Agency for Health Care Administration ("AHCA") assigned it a conditional license.
Findings Of Fact Stipulated and admitted facts Beverly Health and Rehab Fort Pierce operated a skilled nursing facility located at 611 S. 13th Street, Fort Pierce Florida, until November 30, 2001. Fort Pierce Health Care is an entity unrelated to Beverly Health and Rehab Fort Pierce that purchased the facility on November 30, 2001, and has operated it since that date. At all times material to this case, both Beverly Health and Rehab Fort Pierce and Fort Pierce Health Care have been licensed by the State of Florida to operate the subject nursing home pursuant to Chapter 400, Part II, Florida Statutes. The AHCA completed a survey of the nursing home on November 8, 2001. At the conclusion of the survey, the ACHA alleged, relevant to the matters at issue in this case, that there were three separate Class II violations of 42 Code of Federal Regulations Sections 483.15(e)(i), 483.20(k)(3)(i), and 483.25(c). The AHCA filed an Administrative Complaint in this matter which sets forth the factual allegations upon which the ACHA reached the conclusion that there were three Class II deficiencies. Based upon the identification of the Class II deficiencies, the AHCA issued a Notice of Intent to Change Beverly Health and Rehab Fort Pierce's licensure rating from Standard to Conditional, effective November 8, 2001. The AHCA issued Fort Pierce Health Care a Conditional license rating on November 30, 2001, when operation of the facility was transferred. Fort Pierce Health Care timely filed a petition challenging AHCA's intent to assign it a Conditional rating. AHCA changed Fort Pierce Health Care's Conditional licensure rating to Standard, effective December 13, 2001. Facts about call bells During the survey of the subject nursing home facility in November of 2001, a group interview of residents was held on November 6, 2001. Eleven residents participated in the group interview. Nine of the eleven residents participating in the group interview reported to the surveyors that sometimes it can take more than one hour for call bells to be answered. Five of the residents participating in the group interview said that on some occasions they had been incontinent because they could not wait an hour to be helped into the bathroom. One of the residents participating in the group interview has a roommate who has a colostomy. The bag sometimes breaks and comes away from the stoma. On such occasions both roommates will ring their call bells. On several occasions it has taken more than an hour for help to come. During that same group interview, nine of eleven residents participating in the interview stated that their call bells are often not in reach. This can be because the nursing home staff fails to put the call bells within reach, or because the call bells fall on the floor or fall behind the bed. During a tour of the nursing home facility on November 5, 2001, it was observed that the call bells were either on the floor, behind the bed, and/or out of reach of the residents in sixteen of the rooms inspected. Facts about long toenails During the survey of the subject facility during November of 2001, Resident 15 told one of the surveyors that upon admission to the subject facility the resident had requested the staff of the nursing home to arrange for a podiatrist to come cut the resident's toenails. The resident's toenails are all very long and needed to be cut. The resident's physical condition was such that he/she could not cut his/her toenails, and because the resident suffered from diabetes, it was necessary to have the toenails cut by a podiatrist. During the course of the survey the records of the facility did not document any effort to obtain the services of a podiatrist for Resident 15. At the time of the survey in November of 2001, all of Resident 15's toenails were thick, were approximately two inches long (measuring for where the nail changes color from pink to white), and were curving around the tips of the toes. The evidence was inconclusive as to whether the length and shape of the toenails interfered with Resident 15's ability to walk or to perform any other activities of daily life. Facts about order for oxygen On October 30, 2001, a physician wrote an order for oxygen to be delivered through a tracheal collar to Resident 23. On November 5, 2001, during the AHCA survey of the subject nursing home, one of the survey team members observed that for a period of approximately ten or fifteen minutes Resident 23 was not wearing his tracheal collar and, therefore, was not receiving the oxygen ordered by his physician. When the matter was brought to the attention of nursing home staff, the tracheal collar was placed on Resident 23 and he once again received the oxygen ordered by his physician. There is no persuasive evidence in the record as to whether Resident 23 did or did not suffer any harm as a result of not having his oxygen equipment in place during the time period observed by the survey team member. Similarly, there is no persuasive evidence in the record as to why Resident 23 was not wearing his tracheal collar when he was first observed by a member of the survey team. Facts about physician order for Foley catheter Resident 18 suffered from, among other things, urinary and bowel incontinence. Because of those conditions he wore incontinence briefs. On October 17, 2001, his physician wrote an order for a Foley catheter to be inserted in Resident 18. The purpose of the Foley catheter was preventative--to reduce the risks of infection and to prevent or reduce the likelihood of the development of pressure sores. At the time the order for the Foley catheter was written, Resident 18 did not have any pressure sores.3 Upon receipt of the physician's order for a Foley catheter for Resident 18, a facility nurse attempted to insert the catheter into Resident 18. The nurse was unsuccessful in her efforts because Resident 18 appeared to have an obstruction that made it impossible for her to complete the task. In that situation, good nursing practice requires the nurse to cease efforts to insert the catheter and to contact the Resident's physician, which she did. The physician then directed the nurse to schedule an appointment with a urologist so that the urologist could insert the Foley catheter. Following some delays due to the unavailability of the urologist originally suggested by the resident's physician, an appointment was made to have a urologist insert the Foley catheter in Resident 18. The urologist was unsuccessful the first time he saw Resident 18, but a few days later, on November 12, 2001, the urologist successful inserted the catheter. The physician who originally ordered the insertion of the catheter was kept advised of the status of efforts to accomplish what he had ordered. The physician clarified that the insertion of the Foley catheter was not an emergency matter and that there was no urgency in having the catheter inserted. The physician was satisfied with the action taken by the nursing home staff in response to his order regarding the catheter and was of the opinion that the action taken by the nursing home staff in that regard constituted a timely and appropriate response to what he had ordered. Resident 18 did not suffer any harm as a result of the delays in inserting the Foley catheter. Facts about pressure sores During the course of the survey of the nursing home facility in November of 2001, one of the survey team members observed that Resident 18 had what appeared to the survey team member to be pressure sores high on the back of each thigh, at about the area where the upper thighs meet the lower part of the buttocks. These sores were at approximately the location where the resident's upper thighs would rub against the edges of the incontinent briefs worn by the resident. Wound care notes maintained by the nursing home facility stated that Resident 18 developed a Stage II pressure sore on the right back thigh on October 24, 2001, and a Stage II pressure sore on the left back thigh on October 30, 2001. The wound care notes also indicated that Resident 18 did not have any similar wounds prior to October 24, 2001. The wound care nurse who prepared the notes regarding the two Stage II pressure sores has since had second thoughts about the matter. The wound care nurse is now of the view that the wounds she saw on October 24 and 30 of 2001 and described at that time as pressure sores were in fact bullous pemphigoid sores. At certain stages of the development of bullous pemphigoid sores and pressure sores, it is easy to mistake one for the other. The wound care nurse also clarified in her testimony that the two wounds she observed on the backs of Resident 18's thighs were not located over a bony prominence. Review of the clinical record for Resident 18 reveals that the resident was admitted to the facility with the following diagnoses: Alzheimer's Disease, hypertension, and bullous pemphigoid. Physician notes regarding Resident 18 prepared on October 17, 2001, note the presence of "decubitus ulcers to perineal groin and genital areas." The physician who prepared the notes regarding the "decubitus ulcers" also has since had second thoughts about the matter. The physician is now of the view that the wounds he saw on October 17, 2001, and described as "decubitus ulcers" were in fact bullous pemphigoid sores. The physician agrees with the wound care nurse that at certain stages of the development of bullous pemphigoid sores and pressure sores, it is easy to mistake one for the other. The physician also clarified in his testimony that the two wounds he observed on October 17, 2001, were not located over a bony prominence. The AHCA has prepared a manual to be used when its employees are conducting surveys of nursing home facilities. That manual includes the following definition: "Pressure sore" means ischemic ulceration and/or necrosis of tissue overlying a bony prominence that has been subjected to pressure, friction or shear. The staging system presented below is one method of describing the extent of tissue damage in the pressure sore.
Recommendation On the basis of the foregoing findings of fact and and conclusions of law, it is RECOMMENDED that the AHCA issue a Final Order in this case to the following effect: Concluding that the violations alleged in Count I regarding the location of and the responses to call bells have been proved by the preponderance of the competent substantial evidence and that those violations are Class II deficiencies; Concluding that the violation alleged in Count I regarding long toenails is, at most, a Class III deficiency; Concluding that the violation alleged in Count II regarding providing oxygen to a resident is, at most, a Class III deficiency; Concluding that the violation alleged in Count II regarding insertion of a Foley catheter should be dismissed for lack of persuasive competent substantial evidence; Concluding that the violation alleged in Count III regarding pressure sores on a resident should be dismissed for lack of persuasive competent substantial evidence; and Concluding that the violations described in subparagraph (a), above, provide a sufficient basis for the issuance of a Conditional license to the Nursing Home from November 8, 2001, until December 13, 2001. DONE AND ENTERED this 3rd day of March, 2003, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 3rd day of March, 2003.
The Issue Whether the Agency for Health Care Administration (AHCA or the Agency) should approve the application for certificate of need (CON) 7700 filed by Miami Beach Healthcare Group, LTD. d/b/a Miami Heart Institute (Miami Heart or MH).
Findings Of Fact The Agency is the state agency charged with the responsibility of reviewing and taking action on CON applications pursuant to Chapter 408, Florida Statutes. The applicant, Miami Heart, operates a hospital facility known as Miami Heart Institute which, at the time of hearing, was comprised of a north campus (consisting of 273 licensed beds) and a south campus (consisting of 258 beds) in Miami, Florida. The two campuses operate under a single license which consolidated the operation of the two facilities. The consolidation of the license was approved by CON 7399 which was issued by the Agency prior to the hearing of this case. The Petitioner, Mount Sinai, is an existing health care facility doing business in the same service district. On February 4, 1994, AHCA published a fixed need pool of zero adult inpatient psychiatric beds for the planning horizon applicable to this batching cycle. The fixed need pool was not challenged. On February 18, 1994, Miami Heart submitted its letter of intent for the first hospital batching cycle of 1994, and sought to add twenty adult general inpatient psychiatric beds at the Miami Heart Institute south campus. Such facility is located in the Agency's district 11 and is approximately two (2) miles from the north campus. Notice of that letter was published in the March 11, 1994, Florida Administrative Weekly. Miami Heart's letter of intent provided, in pertinent part: By this letter, Miami Beach Healthcare Group, Ltd., d/b/a Miami Heart Institute announces its intent to file a Certificate of Need Application on or before March 23, 1994 for approval to establish 20 hospital inpatient general psychiatric beds for adults at Miami Heart Institute. Thus, the applicant seeks approval for this project pursuant to Sections 408.036(1)(h), Florida Statutes. The proposed capital expenditure for this project shall not exceed $1,000,000 and will include new construction and the renovation of existing space. Miami Heart Institute is located in Local Health Council District 11. There are no subsdistricts for Hospital Inpatient General Psychiatric Beds for Adults in District 11. The applicable need formula for Hospital General Psychiatric Beds for Adults is contained within Rule 59C-1.040(4)(c), F.A.C. The Agency published a fixed need of "0" for Hospital General Psychiatric Beds for Adults in District 11 for this batching cycle. However, "not normal" circumstances exist within District which justify approval of this project. These circumstances are that Miami Beach Community Hospital, which is also owned by Miami Beach Healthcare Group, Ltd., and which has an approved Certificate of Need Application to consol- idate its license with that of the Miami Heart Institute, has pending a Certificate of Need Application to delicense up to 20 hospital inpatient general psychiatric beds for adults. The effect of the application, which is the subject of this Letter of Intent, will be to relocate 20 of the delicensed adult psychiatric beds to the Miami Heart Institute. Because of the "not normal" circumstances alleged in the Miami Heart letter of intent, the Agency extended a grace period to allow competing letters of intent to be filed. No additional letters of intent were submitted during the grace period. On March 23, 1994, Miami Heart timely submitted its CON application for the project at issue, CON no. 7700. Notice of the application was published in the April 8, 1994, Florida Administrative Weekly. Such application was deemed complete by the Agency and was considered to be a companion to the delicensure of the north campus beds. On July 22, 1994, the Agency published in the Florida Administrative Weekly its preliminary decision to approve CON no. 7700. In the same batch as the instant case, Cedars Healthcare Group (Cedars), also in district 11, applied to add adult psychiatric beds to Cedars Medical Center through the delicensure of an equal number of adult psychiatric beds at Victoria Pavilion. Cedars holds a single license for the operation of both Cedars Medical Center and Victoria Pavilion. As in this case, the Agency gave notice of its intent to grant the CON application. Although this "transfer" was initially challenged, it was subsequently dismissed. Although filed at the same time (and, therefore, theoretically within the same batch), the Cedars CON application and the Miami Heart CON application were not comparatively reviewed by the Agency. The Agency determined the applicants were merely seeking to relocate their own licensed beds. Based upon that determination, MH's application was evaluated in the context of the statutory criteria, the adult psychiatric beds and services rule (Rule 59C-1.040, Florida Administrative Code), the district 11 local health plan, and the 1993 state health plan. Ms. Dudek also considered the utilization data for district 11 facilities. Mount Sinai timely filed a petition challenging the proposed approval of CON 7700 and, for purposes of this proceeding only, the parties stipulated that MS has standing to raise the issues remaining in this cause. Mount Sinai's existing psychiatric unit utilization is presently at or near full capacity, and MS' existing unit would not provide an adequate, available, or accessible alternative to Miami Heart's proposal, unless additional bed capacity were available to MS in the future through approval of additional beds or changes in existing utilization. Miami Heart's proposal to establish twenty adult general inpatient psychiatric beds at its Miami Heart Institute south campus was made in connection with its application to delicense twenty adult general inpatient psychiatric beds at its north campus. The Agency advised MH to submit two CON applications: one for the delicensure (CON no. 7474) and one for the establishment of the twenty beds at the south campus (CON no. 7700). The application to delicense the north campus beds was expeditiously approved and has not been challenged. As to the application to establish the twenty beds at the south campus, the following statutory criteria are not at issue: Section 408.035(1)(c), (e), (f), (g), (h), (i), (j), (k), (m), (n), (o) and (2)(b) and (e), Florida Statutes. The parties have stipulated that Miami Heart meets, at least minimally, those criteria. During 1993, Miami Heart made the business decision to cease operations at its north campus and to seek the Agency's approval to relocate beds and services from that facility to other facilities owned by MH, including the south campus. Miami Heart does not intend to delicense the twenty beds at the north campus until the twenty beds are licensed at the south campus. The goal is merely to transfer the existing program with its services to the south campus. Miami Heart did not seek beds from a fixed need pool. Since approximately April, 1993, the Miami Heart north campus has operated with the twenty bed adult psychiatric unit and with a limited number of obstetrical beds. The approval of CON no. 7700 will not change the overall total number of adult general inpatient psychiatric beds within the district. The adult psychiatric program at MH experiences the highest utilization of any program in district 11, with an average length of stay that is consistent with other adult programs around the state. Miami Heart's existing psychiatric program was instituted in 1978. Since 1984, there has been little change in nursing and other staff. The program provides a full continuum of care, with outpatient programs, aftercare, and support programs. Nearly ninety-nine percent of the program's inpatient patient days are attributable to patients diagnosed with serious mental disorders. The Miami Heart program specializes in a biological approach to psychiatric cases in the diagnosis and treatment of affective disorders, including a variety of mood disorders and related conditions. The Miami Heart program is distinctive from other psychiatric programs in the district. If the MH program were discontinued, the patients would have limited alternatives for access to the same diagnostic and treatment services in the district. There are no statutes or rules promulgated which specifically address the transfer of psychiatric beds or services from one facility owned by a health care entity to another facility also owned by the same entity. In reviewing the instant CON application, the Agency determined it has the discretion to evaluate each transfer case based upon the review criteria and to consider the appropriate weight factors should be given. Factors which may affect the review include the change of location, the utilization of the existing services, the quality of the existing programs and services, the financial feasibility, architectural issues, and any other factor critical to the review process. In this case, the weight given to the numeric need criteria was not significant. The Agency determined that because the transfer would not result in a change to the overall bed inventory, the calculated fixed need pool did not apply to the instant application. In effect, because the calculation of numeric need was inapplicable, this case must be considered "not normal" pursuant to Rule 59C-1.040(4)(a), Florida Administrative Code. The Agency determined that other criteria were to be given greater consideration. Such factors were the reasonableness of the proposal, the ability to afford access, the applicant's ability to provide a quality program, and the project's financial feasibility. The Agency determined that, on balance, this application should be approved as the statutory and other review criteria were met. Although put on notice of the other CON applications, Mount Sinai did not file an application for psychiatric beds at the same time as Miami Heart or Cedars. Mount Sinai did not claim that the proposed delicensures and transfers made beds available for competitive review. The Agency has interpreted Rule 59C-1.040, Florida Administrative Code, to mean that it will not normally approve an application for beds or services unless the statutory and rule criteria are met, including the need determination criteria. There is no list of circumstances which are routinely considered "not normal" by the Agency. In this case, the proposed transfer of beds was, in itself, considered "not normal." The approval of Miami Heart's application would allow an existing program to continue. As a result, the overhead to maintain two campuses would be reduced. Further, the relocation would allow the program to continue to provide access, both geographically and financially, to the same patient service area. And, since the program has the highest utilization rate of any adult program in the district, its continuation would be beneficial to the area. The program has an established referral base for admissions to the facility. The transfer is reasonable for providing access to the medically under-served. The quality of care, while not in issue, would be expected to continue at its existing level or improve. The transfer would allow better access to ancillary hospital departments and consulting specialists who may be needed even though the primary diagnosis is psychiatric. The cost of the transfer when compared to the costs to be incurred if the transfer is not approved make the approval a benefit to the service area. If the program is not relocated, Medicaid access could change if the hospital is reclassified from a general facility to a specialty facility. The proposed cost for the project does not exceed one million dollars. If the north campus must be renovated, a greater capital expenditure would be expected. The expected impact on competition for other providers is limited due to the high utilization for all programs in the vicinity. The subject proposal is consistent with the district and state health care plans and the need for health care facilities and services. The services being transferred is an existing program which is highly utilized and which is not creating "new beds." As such, the proposal complies with Section 408.035(1)(a), Florida Statutes. The availability, quality of care, efficiency, appropriateness, accessibility, extent of utilization, and adequacy of like and existing services in the district will not be adversely affected by the approval of the subject application. The proposed transfer is consistent with, and appropriate, in light of these criteria. Therefore, the proposal complies with Section 408.035(1)(b), Florida Statutes. The subject application demonstrates a full continuum of care with safeguards to assure that alternatives to inpatient care are fully utilized when appropriate. Therefore, the availability and adequacy of other services, such as outpatient care, has been demonstrated and would deter unnecessary utilization. Thus, Miami Heart has shown its application complies with Section 408.035(1)(d), Florida Statutes. Miami Heart has also demonstrated that the probable impact of its proposal is in compliance with Section 408.035(1)(l), Florida Statutes. The proposed transfer will not adversely impact the costs of providing services, the competition on the supply of services, or the improvements or innovations in the financing and delivery of services which foster competition, promote quality assurance, and cost-effectiveness. Miami Heart has taken an innovative approach to promote quality assurance and cost effectiveness. Its purpose, to close a facility and relocate beds (removing unnecessary acute care beds in the process), represents a departure from the traditional approach to providing health care services. By approving Miami Heart's application, overhead costs associated with the unnecessary facility will be eliminated. There is no less costly, more efficient alternative which would allow the continuation of the services and program Miami Heart has established at the north campus than the approval of transfer to the south campus. The MH proposal is most practical and readily available solution which will allow the north campus to close and the beds and services to remain available and accessible. The renovation of the medical surgical space at the south campus to afford a location for the psychiatric unit is the most practical and readily available solution which will allow the north campus to close and the beds and services to remain available and accessible. In totality, the circumstances of this case make the approval of Miami Heart's application for CON no. 7700 the most reasonable and practical solution given the "not normal" conditions of this application.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Agency for Health Care Administration enter a final order approving CON 7700 as recommended in the SAAR. DONE AND RECOMMENDED this 5th day of April, 1995, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of April, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-4755 Note: Proposed findings of fact are to contain one essential fact per numbered paragraph. Proposed findings of fact paragraphs containing multiple sentences with more than one statement of fact are difficult to review. In reviewing for this case, where all sentences were accurate and supported by the recorded cited, the paragraph has been accepted. If the paragraph contained mixed statements where one sentence was an accurate statement of fact but the others were not, the paragraph has been rejected. Similarly, if one sentence was editorial comment, argument, or an unsupported statement to a statement of fact, the paragraph has been rejected. Proposed findings of fact should not include argument, editorial comments, or statements of fact mixed with such comments. Rulings on the proposed findings of fact submitted by Petitioner, Mount Sinai: Paragraphs 1 through 13 were cited as stipulated facts. Paragraph 14 is rejected as irrelevant. With regard to paragraph 15 it is accepted that Miami Heart made the business decision to move the psychiatric beds beds from the north campus to the south campus. Any inference created by the remainder of the paragraph is rejected as irrelevant. Paragraph 16 is rejected as irrelevant. Paragraph 17 is rejected as irrelevant. Paragraph 18 is accepted. Paragraph 19 is rejected as irrelevant. Paragraph 20 is rejected as contrary to the weight of the credible evidence. Paragraph 21 is rejected as contrary to the weight of the credible evidence. Paragraph 22 is accepted. Paragraph 23 is rejected as irrelevant. Paragraph 24 is accepted. Paragraph 25 is rejected as repetitive, or immaterial, unnecessary to the resolution of the issues. Paragraph 26 is rejected as irrelevant or contrary to the weight of the credible evidence. Paragraph 27 is rejected as comment or conclusion of law, not fact. Paragraph 28 is accepted but not relevant. Paragraphs 29 and 30 are accepted. Paragraphs 31 through 33 are rejected as argument, comment or irrelevant. Paragraph 34 is rejected as comment or conclusion of law, not fact. Paragraph 35 is rejected as comment or conclusion of law, not fact, or irrelevant as the FNP was not in dispute. Paragraph 36 is rejected as irrelevant. Paragraph 37 is rejected as repetitive, or comment. Paragraph 38 is rejected as repetitive, comment or conclusion of law, not fact, or irrelevant. Paragraph 39 is rejected as argument or contrary to the weight of credible evidence. Paragraph 40 is accepted. Paragraph 41, 42, and 43 are rejected as contrary to the weight of the credible evidence and/or argument. Paragraph 44 is rejected as argument and comment on the testimony. Paragraph 45 is rejected as argument, irrelevant, and/or not supported by the weight of the credible evidence. Paragraph 46 is rejected as argument. Paragraph 47 is rejected as comment or conclusion of law, not fact. Paragraph 48 is rejected as comment, argument or irrelevant. Paragraph 49 is rejected as comment on testimony. It is accepted that the proposed relocation or transfer of beds is a "not normal" circumstance. Paragraph 50 is rejected as argument or irrelevant. Paragraph 51 is rejected as argument or contrary to the weight of credible evidence. Paragraph 52 is rejected as argument or contrary to the weight of credible evidence. Paragraph 53 is rejected as argument, comment or recitation of testimony, or contrary to the weight of credible evidence. Paragraph 54 is rejected as irrelevant or contrary to the weight of credible evidence. Paragraph 55 is rejected as irrelevant, comment, or contrary to the weight of credible evidence. Paragraph 56 is rejected as irrelevant or argument. Paragraph 57 is rejected as irrelevant or argument. Paragraph 58 is rejected as contrary to the weight of credible evidence. Paragraph 59 is rejected as irrelevant. Paragraph 60 is rejected as contrary to the weight of credible evidence. Paragraph 61 is rejected as argument or contrary to the weight of credible evidence. Paragraph 62 is rejected as argument or contrary to the weight of credible evidence. Paragraph 63 is accepted. Paragraph 64 is rejected as irrelevant. Mount Sinai could have filed in this batch given the not normal circumstances disclosed in the Miami Heart notice. Paragraph 65 is rejected as irrelevant. Paragraph 66 is rejected as comment or irrelevant. Paragraph 67 is rejected as argument or contrary to the weight of credible evidence. Paragraph 68 is rejected as argument or irrelevant. Paragraph 69 is rejected as argument, comment or irrelevant. Paragraph 70 is rejected as argument or contrary to the weight of credible evidence. Rulings on the proposed findings of fact submitted by the Respondent, Agency: Paragraphs 1 through 6 are accepted. With the deletion of the words "cardiac catheterization" and the inclusion of the word "psychiatric beds" in place, paragraph 7 is accepted. Cardiac catheterization is rejected as irrelevant. Paragraph 8 is accepted. The second sentence of paragraph 9 is rejected as contrary to the weight of credible evidence or an error of law, otherwise, the paragraph is accepted. Paragraph 10 is accepted. Paragraphs 11 through 17 are accepted. Paragraph 18 is rejected as conclusion of law, not fact. Paragraphs 19 and 20 are accepted. The first two sentences of paragraph 21 are accepted; the remainder rejected as conclusion of law, not fact. Paragraph 22 is rejected as comment or argument. Paragraph 23 is accepted. Paragraph 24 is rejected as argument, speculation, or irrelevant. Paragraph 25 is accepted. Rulings on the proposed findings of fact submitted by the Respondent, Miami Heart: Paragraphs 1 through 13 are accepted. The first sentence of paragraph 14 is accepted; the remainder is rejected as contrary to law or irrelevant since MS did not file in the batch when it could have. Paragraph 15 is accepted. Paragraph 16 is accepted as the Agency's statement of its authority or policy in this case, not fact. Paragraphs 17 through 20 are accepted. Paragraph 21 is rejected as irrelevant. Paragraph 22 is rejected as irrelevant. Paragraphs 23 through 35 are accepted. Paragraph 36 is rejected as repetitive. Paragraphs 37 through 40 are accepted. Paragraph 41 is rejected as contrary to the weight of the credible evidence to the extent that it concludes the distance to be one mile; evidence deemed credible placed the distance at two miles. Paragraphs 42 through 47 are accepted. Paragraph 48 is rejected as comment. Paragraphs 49 through 57 are accepted. COPIES FURNISHED: Tom Wallace, Assistant Director Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303 Sam Power, Agency Clerk Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303 R. Terry Rigsby Geoffrey D. Smith Wendy Delvecchio Blank, Rigsby & Meenan, P.A. 204 S. Monroe Street Tallahassee, Florida 32302 Lesley Mendelson Senior Attorney Agency for Health Care Administration 325 John Knox Road, Suite 301 Tallahassee, Florida 32303-4131 Stephen Ecenia Rutledge, Ecenia, Underwood, Purnell & Hoffman, P.A. 215 South Monroe Street Suite 420 Tallahassee, Florida 32302-0551
The Issue The issues are thus whether the acts and omissions charged occurred, whether they constitute violations of Section 400.022(1)(j) and 400.141, Florida Statutes, and related rules, and whether an administrative fine is appropriate pursuant to 400.102(c) and Section 400.121, Florida Statutes. Upon the commencement of the hearing, the petitioner moved to amend paragraph 8 of its Complaint, so that the date "March 4" would read March 14." The motion was granted on the basis that there was only a clerical error involved and paragraph 8 correctly alleges that there-was a nursing staff shortage from February 20 to March 14, 1980. Eight witnesses were called by the Petitioner, and two by the Respondent. Ten exhibits were adduced as evidence. The Respondent has submitted and requested rulings upon ninety-five proposed findings of fact. In that connection, all proposed findings, conclusions, and supporting arguments of the parties have been considered. To the extent that the proposed findings and conclusions submitted by the parties, and the arguments made by them, are in accordance with the findings, conclusions and views stated herein they have been accepted, and to the extent such proposed findings and conclusions of the parties, and such arguments made by the parties, are inconsistent therewith they have been rejected.
Findings Of Fact Manhattan Convalescent Center is a nursing home facility located in Tampa and licensed by the Department of Health and Rehabilitative Services. On January 22, February 20, February 25, March 3, March 6, and March 14, 1980, a number of Department employees representing the Department's medical review team, and the Office of Licensure and Certification, consisting of registered nurses, hospital consultants and Department surveillance team members, made inspections of the Respondent's facility for the purpose of ascertaining whether the premises, equipment and conduct of operations were safe and sanitary for the provision of adequate and appropriate health care consistent with the rules promulgated by the Department and whether minimum nursing service staff standards were being maintained. Thus, on January 22, 1980 a member of the medical review team, witness Maulden, observed a rat run across the floor in one of the wings of the nursing home facility. On February 20, Muriel Holzberger, a registered nurse and surveyor employed by the Petitioner, observed rodent droppings in one of the wings of the facility and on February 20, March 12 and March 14, 1980, numerous roaches were observed by various employees of the Department making inspections throughout the facility. On February 20, 1980 strong urine odors were present on the 200, 300 and 400 wings of the facility as well as in the lobby. The odor was caused by urine puddles under some patients' chairs in the hallway, wet sheets, and a spilled catheter. On February 20 and 25, 1980 the grounds were littered with debris and used equipment, the grass and weeds on the grounds needed cutting and there was a build up of organic material, food spills and wet spots on the floors. The Respondent's witness, Ann Killeen, as well as the Petitioner's hospital consultant, Joel Montgomery, agreed that a general state of disrepair existed at the Respondent's facility, consisting of torn screens, ill fitting exterior doors with inoperative or missing door closers and missing ceiling tile. Interior and exterior walls were in need of repair and repainting. Additionally, eleven bedside cords for the nurse paging system were cut, apparently by patients, and on February 25, 1980, a total of 36 nurse paging stations were inoperative. A substantial number of these cords were cut by a patient (or patients) with scissors without the knowledge of the Respondent and steps to correct the condition were immediately taken. On January 22, 1980 Petitioner's representatives, Mary Maulden and Alicia Alvarez, observed a patient at the Respondent's facility free himself from physical restraints, walk down the hall and leave the facility. A search for nursing staff was made but none were found on the wing. After three to five minutes the Assistant Director of Nurses was located and the patient was apprehended. Nurse Alvarez's testimony revealed that the Respondent's nursing staff was in and out of, and working in that wing all that morning except for that particular point in time when the patient shed his restraints and walked out of the facility. On March 3, 1980 Department employee, William Musgrove, as part of a surveillance team consisting of himself and nurse Muriel Holzberger, observed two patients restrained in the hall of the facility in chairs and Posey vests, which are designed to safely restrain unstable patients. The witness questioned the propriety of this procedure, but could not establish this as a violation of the Respondent's patient care policies required by Rule 10D-29.41, Florida Administrative Code. The witness reviewed the Respondent's written patient care policy required by that Rule and testified that their policy complied with it and that the policy did not forbid restraining a patient to a handrail in the facility as was done in this instance. The witness was unable to testify whether patients were improperly restrained pursuant to medical orders for their own or other patients' protection. A hospital consultant for the Department, Bill Schmitz, and Marsha Winae, a public health nurse for the Department, made a survey of the Respondent's facility on March 12, 1980. On that day the extensive roach infestation was continuing as was the presence of liquids in the hallways. On February 20, 1980 witness Joel Montgomery observed a lawn mower stored in the facility's electrical panel room which is charged as a violation in paragraph 3 of the Administrative Complaint. The lawn mower was not shown to definitely contain gasoline however, nor does it constitute a bulk storage of volatile or flammable liquids. Nurse Holzberger who inspected the Respondent's nursing home on February 20, February 25, March 3 and March 6, 1980, corroborated the previously established roach infestation and the presence of strong urine odors throughout the facility including those emanating from puddles under some patients' chairs, the soaking of chair cushions and mattresses and an excess accumulation of soiled linen. Her testimony also corroborates the existence of 36 instances of inoperative nurse paging devices including the 11 nurse calling cords which had been cut by patients. This witness, who was accepted as an expert in the field of proper nursing care, established that an appropriate level of nursing care for the patients in this facility would dictate the requirement that those who are incontinent be cleaned and their linen changed more frequently and that floors be mopped and otherwise cleaned more frequently. Upon the second visit to the facility by this witness the nurse call system had 9 paging cords missing, 11 cords cut, and 15 of the nurse calling devices would not light up at the nurses' station. This situation is rendered more significant by the fact that more than half of the patients with inoperative nurse paging devices were bedridden. On her last visit of March 6, 1980 the problem of urine puddles standing on the floors, urine stains on bed linen, and resultant odor was the same or slightly worse than on the two previous visits. An effective housekeeping and patient care policy or practice would dictate relieving such incontinent patients every two hours and more frequent laundering of linen, as well as bowel and bladder training. On March 6, 1980 controlled drugs were resting on counters in all of the facility's four drug rooms instead of being stored in a locked compartment, although two of the drug rooms themselves were locked. The other two were unlocked, but with the Respondent's nurses present. Ms. Holzberger participated in the inspections of March 3 and March 6, 1980. On March 3, 1980 there were no more than 14 sheets available for changes on the 4:00 p.m. to midnight nursing shift. On March 6, 1980 there were only 68 absorbent underpads and 74 sheets available for changes for approximately 65 incontinent patients. The unrefuted expert testimony of Nurse Holzberger established that there should be available four sheets for each incontinent patient per shift. Thus, on these two dates there was an inadequate supply of bed linen to provide changes for the incontinent patients in the facility. On March 6, 1980 Nurse Holzberger and Nurse Carol King observed 12 patients who were lying on sheets previously wet with urine, unchanged, dried and rewet again. This condition is not compatible with generally recognized adequate and appropriate nursing care standards. Incontinent patients should be examined every two hours and a change of sheets made if indicated. If such patients remain on wet sheets for a longer period of time their health may be adversely affected. On March 6, 1980 these same employees of the Petitioner inspected a medical supply room and found no disposable gloves, no adhesive tape, no razor blades and one package of telfa pads. There was no testimony to establish what the medical supply requirements of this facility are based upon the types of patients it cares for and the types and amounts of medical supplies thus needed. The testimony of Robert Cole, the facility's employee, who was at that time in charge of dispensing medical supplies, establishes that in the medical supply room (as opposed to the nurses' stations on the wings) there were at least six rolls of tape per station, 50 razors, four boxes or 80 rolls, 300 telfa pads and 200 sterile gloves. Nurses Holzberger and King made an evaluation of the Respondent's nurse staffing patterns. Ms. Holzberger only noted a shortage of nursing staff on February 24, 1980. Her calculations, however, were based on an average census of skilled patients in the Respondent's facility over the period February 20 to March 4, 1980 and she did not know the actual number of skilled patients upon which the required number of nursing staff present must be calculated on that particular day, February 24, 1980. Further, her calculations were based upon the nurses' "sign in sheet" and did not include the Director of Nurses who does not sign in when she reports for work. Therefore, it was established that on February 24 there would be one more registered nurse present than her figures reflect, i.e., the Director of Nurses. Nurse King, in describing alleged nursing staff shortages in the week of March 7 to March 13, 1980, was similarly unable to testify to the number of skilled patients present on each of those days which must be used as the basis for calculating required nursing staff. She rather used a similar average patient census for her calculations and testimony. Thus, neither witness for the Petitioner testifying regarding nursing staff shortages knew the actual number of patients present in the facility on the days nursing staff shortages were alleged. In response to the problem of the roach infestation, the Respondent's Administrator changed pest control companies on March 26, 1980. The previous pest control service was ineffective. It was also the practice of the Respondent, at that time, to fog one wing of the facility per week with pesticide in an attempt to control the roaches. Further, vacant lots on all sides, owned and controlled by others, were overgrown with weeds and debris, to which the witness ascribed the large roach population. The problem of urine odors in the facility was attributed to the exhaust fans for ventilating the facility which were inoperable in February, 1980. She had them repaired and, by the beginning of April, 1980 (after the subject inspections), had removed the urine odor problem. The witness took other stops to correct deficiencies by firing the previous Director of Nurses on March 14, 1980, and employing a new person in charge of linen supply and purchasing. A new supply of linen was purchased in February or March, 1980. The Respondent maintains written policies concerning patient care, including a provision for protection of patients from abuse or neglect. The Respondent's Administrator admitted existence of the torn screens, broken door locks, missing ceiling tiles and the roach infestation. She also admitted the fact of the cut and otherwise inoperable nurse paging cords in the patients' rooms, but indicated that these deficiencies had been repaired. The various structural repairs required have been accomplished. All correction efforts began after the inspections by the Petitioner's staff members, however.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the candor and demeanor of the witnesses, and the evidence in the record, it is RECOMMENDED that for the violations charged in Counts I, II, IV, VI, IX and X of the Administrative Complaint and found herein to be proven, the Respondent should be fined a total of $1,600.00. Counts III, V, VII and VIII of the Administrative Complaint should be dismissed. DONE AND ENTERED this 31st day of March, 1981 in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 1981. (904) 488-9675 COPIES FURNISHED: AMELIA PARK, ESQUIRE JANICE SORTER, ESQUIRE W. T. EDWARDS FACILITY 4000 WEST BUFFALO AVENUE, 4TH FLOOR TAMPA, FLORIDA 33614 KENNETH E. APGAR, ESQUIRE EDWARD P. DE LA PARTE, JR., ESQUIRE 403 NORTH MORGAN STREET, SUITE 102 TAMPA, FLORIDA 33602
Findings Of Fact At all times relevant hereto Respondent was licensed as a physician in the State of Florida having been issued license number ME0040318. Respondent completed a residency in internal medicine and later was a nephrology fellow at Mayo Clinic. He was recruited to Florida in 1952 by Humana. In 1984 he became associated with a Health Maintenance Organization (HMO) in an administrative position but took over treating patients when the owner became ill. This HMO was affiliated with IMC who assimilated it when the HMO had financial difficulties. At all times relevant hereto Respondent was a salaried employee of IMC and served as Assistant Medical DIRECTOR in charge of the South Pasadena Clinic. On October 17, 1985, Alexander Stroganow, an 84 year old Russian immigrant and former cossack, who spoke and understood only what English he wanted to, suffered a fall and was taken to the emergency Room at a nearby hospital. He was examined and released without being admitted for inpatient treatment. Later that evening his landlady thought Stroganow needed medical attention and again called the Emergency Medical Service. When the ambulance with EMS personnel arrived they examined Stroganow, and concluded Stroganow was no worse than earlier when he was transported to the emergency Room, and refused to again take Stroganow to the emergency Room. The landlady then called the HRS hotline to report abuse of the elderly. The following morning, October 18, 1985, an HRS case worker was dispatched to check on Stroganow. Upon arrival, she was admitted by the landlady and found an 84 year old man who was incontinent, incoherent, and apparently paralyzed from the waist down, with whom she could not engage in conversation to determine his condition. She called for a Cares Unit team to come and evaluate Stroganow. An HRS Cares Unit is a two person team consisting of a social worker and nurse whose primary function is to screen clients for admission to nursing homes and adult congregate living facilities (ACLF). The nurse on the team carries no medical equipment such as stethoscope, blood pressure cuff, or thermometer, but makes her evaluation on visual examination. Upon arrival of the Cares Unit, and, after examining Stroganow, both members of the team agreed he needed to be placed where he could be attended. A review of his personal effects produced by his landlady revealed his income to be above that for which he could qualify for medicaid placement in a nursing home; that he was a member of IMC's Gold-Plus HMO; his social security card; and several medications, some of which had been prescribed by Dr. Dayton, Respondent, a physician employed by IMC at the South Pasadena Clinic. The Cares team ruled out ACLF placement because Stroganow was not ambulatory, but felt he needed to be placed in a hospital or nursing home and not left alone with the weekend approaching. To accomplish this, they proceeded to the South Pasadena HMO clinic of IMC to lay the problem on Dr. Dayton, who was in charge of the South Pasadena Clinic, and, they thought, was Stroganow's doctor. Stroganow had been a client of the South Pasadena HMO for some time and was well known at the clinic as well as by EMS personnel. There were always two, and occasionally three, doctors on duty at South Pasadena Clinic between 8:00 and 5:00 daily and, unless the patient requested a specific doctor he was treated by the first available doctor. Stroganow had not specifically requested to be treated by Respondent. When the Cares unit met with Respondent they advised him that Stroganow had been taken to Metropolitan General Hospital Emergency Room the previous evening but did not advise Respondent that the EMS squad had refused to return Stroganow to the emergency Room when they were recalled for Stroganow the same evening. Respondent telephoned the Metropolitan General Emergency Room and had the emergency Room medical report on Stroganow read to him. With the information provided by the Cares unit and the hospital report, Respondent concluded that Stroganow needed emergency medical treatment and the quickest way to obtain such treatment would be to call the EMS and have Stroganow taken to an emergency Room for evaluation. When the Cares unit arrived, Respondent was treating patients at the clinic. A clinic, or doctors office, is not a desirable or practical place to have an incontinent, incoherent, and non-ambulatory patient brought to wait with other patients until a doctor is free to see him. Nor is the clinic equipped to perform certain procedures that may be required for emergency evaluation of an ill patient. At a hospital emergency Room such equipment is available. EMS squads usually arrive within minutes of a call being placed to 911 for emergency medical treatment and it was necessary that someone be with Stroganow when the EMS squad arrived. Accordingly, Respondent suggested that the Cares team return to Stroganow and call 911 to transport Stroganow to an emergency Room for an evaluation. Upon leaving the South Pasadena clinic the Cares team returned to Stroganow. Enroute they stopped to call a supervisor at HRS to report that the HMO had not solved their problem with Stroganow. The supervisor then called the Administrator at IMC Tampa Office to tell them that one of their Gold-Plus HMO patients had an emergency situation which was not being property handled. Respondent left the South Pasadena Clinic around noon and went to IMC's Tampa Office where he was available for the balance of the afternoon. There he spoke with Dr. Sanchez, the INC Regional Medical Director, but Stroganow was not deemed to be a continuing problem. By 2:00 p.m. when no ambulance had arrived the Cares Unit called 911 for EMS to take Stroganow to an emergency Room. Upon arrival shortly thereafter the EMS squad again refused to transport Stroganow. The Cares team communicated this to their supervisor who contacted IMC Regional Office to so advise. At this time Dr. Sanchez authorized the transportation of Stroganow to Lake Seminole Hospital for admission. Although neither Respondent nor Sanchez had privileges at Lake Seminole Hospital, IMC had contracted with Lake Seminole Hospital to have IMC patients admitted by a staff doctor at Lake Seminole Hospital. Subsequent to his meeting with the Cares team Respondent received no further information regarding Stroganow until well after Stroganow was admitted to Lake Seminole Hospital. No entry was made on Stroganow's medical record at IMC of the meeting between Respondent and the Cares Unit. Respondent was a salaried employee whose compensation was not affected by whether or not he admitted an IMC Gold-Plus patient to a hospital.
The Issue By its Administrative Complaint, dated October 14, 1980, Use Petitioner seeks to impose an administrative fine in the amount of $1,500.00 upon the Y & S Partnership, Limited, d/b/a Manhattan Convalescent Center for alleged violations of Chapter 400, Part I, Florida Statutes, and Chapter 10D-29, Florida Administrative Code. Specifically, the Petitioner charges the Respondent with allegedly failing to provide patients in its nursing home with adequate care consistent with their right to receive adequate health care in accordance with the established and recognized practice standards in the community and with rules promulgated by the Department pursuant to Section 400.022 (1)(g), Florida Statutes. The Petitioner charges also that the Respondent failed to maintain its premises and equipment and conduct its operations in a safe and sanitary manner as required by Section 400.141(4), Florida Statutes. The Respondent is concomitantly charged with violations of Rules 10D-29.33(4) and 10D-29.38(1), and Rule 10D-29.52(4) Table (36), Florida Administrative Code, in the area of patient health care. A violation of Rule 10D-29.49(1), Florida Administrative Code is alleged on the ground that no effective maintenance plan was promulgated or implemented by the Respondent. The charges at issue relate to an August 22, 1980 complaint investigation and surveillance visit conducted by personnel from the Tampa Office of Licensure and Certification of Petitioner's Department. On that visit it is charged that the Petitioner's personnel observed a patient and her bed linens soiled with fecal material and another patient who had soil accumulations on the right hand and was in need of hand care. Additionally, the Petitioner's personnel allegedly observed nurse paging cords missing or not attached to beds in approximately twelve rooms and observed various fixtures and equipment in need of repair. The issues are thus whether the acts or omissions charged occurred, and whether they constitute violations of the above-cited legal authority and concomitantly, whether an administrative fine is appropriate pursuant to Section 400.102(c) and Section 400.121(2), Florida Statutes. Two witnesses were called by the petitioner and five by the Respondent. Ten exhibits were introduced into evidence. The Respondent moved to dismiss the Administrative Complaint. The Motion to Dismiss will be treated in the Conclusions of Law hereinbelow. The Respondent has filed 248 proposed findings of fact and has requested separate rulings upon each. In that regard, the Hearing Officer has considered all proposed findings of fact, conclusions and supporting arguments of the parties. To the extent that the proposed findings and conclusions submitted by the parties, and the arguments by them, are in accordance with the findings, conclusions and views stated herein they have been accepted, and to the extent that such proposed findings and conclusions of the parties, and such arguments made by the parties, are inconsistent therewith, they have been rejected. Certain proposed findings and conclusions have been omitted as not relevant, dispositive or as not necessary to a proper determination of the material issues presented. To the extent that the testimony of various witnesses is not in accord with the findings and conclusions herein, it is not credited.
Findings Of Fact The Y & S Partnership, Limited, d/b/a Manhattan Convalescent Center, operates a nursing home facility in Tampa, Florida. The Office of Licensure and Certification (OLC), of the Department of Health and Rehabilitative Services (HRS) is responsible for the investigation of complaints about the operation of nursing facilities such as that of the Respondent, which are licensed by HRS. On August 22, 1980 a complaint investigation and surveillance of the Respondent's facility was conducted by O.L.C. employees Joel Montgomery and Muriel Holzberger. These individuals performed an inspection tour of the Respondent's facility accompanied by staff members of the Respondent to generally observe the level of health care accorded patients and the effectiveness of maintenance and repair operations carried out by the Respondent on its facilities and equipment. Ms. Holzberger, a registered nurse and accepted as an expert in the area of proper nursing care standards, personally observed at least 90 percent of the 176 patients resident at the Respondent's facility. In that connection, witness Holzberger observed patient A. W. who was bedridden at the time. This witness observed a brown stain approximately the size of a half dollar on the top sheet of patient A. W.`s bed. The witness described the stain as appearing to be the color of fecal material and it apparently was dry. She did not touch it, but made a determination by its visual appearance only. The stain only consisted of a brown coloration and no fecal material was observed adhering to the stained area. The sheet of this patient was raised by Nurse Holzberger who thereupon observed wet excrement on the patient's buttocks and on a waterproof pad that had been placed under the patient. Ms. Holzberger opined that at this point and time at least, the patient had not been cleaned. No dried excrement material was observed on the patient or on the waterproof pad however. Patient A. W. had a medical history of constant fecal incontinence and other bowel problems consisting generally of frequent impactions, coupled with constant oozing of fecal matter. Proper nursing care for such a patient was established to consist of changing sheets and washing the patient frequently to avoid the danger of skin breakdown in the anal and coccyx area which can be caused by frequent contact with fecal material. This witness, however, was unable to testify that patient A. W. had not been cleaned frequently inasmuch as she had a constant oozing of fecal material due to her inability to achieve sphincter control. The witness was similarly unable to establish that the wet excrement observed on the patient's buttocks and the waterproof pad beneath her had not been disposited there immediately before her observation of the patient. It was not shown that the patient had remained in a soiled condition for a significant period of time and indeed the witness acknowledged that allowing such a patient to remain in a soiled condition for a short period of time would not, on one or two occasions, affect that patient's health and safety. It is inferred that the soiling could just as likely have occurred immediately prior to Ms. Holzberger's observation inasmuch as it was described to be wet. Ms. Holzberger's observed no patients in the nursing home exhibiting skin breakdown or other ill effects caused by contact with excrement. Nurse Holzberger also observed patient C. M. who had severe contractures of the hands. Ms. Holzberger maintained that she observed soil accumulations in the right hand and the fingernails were in need of trimming. This witness described generally accepted hand care for contractured hands as consisting of washing or soaking in warm water at least daily and that if the contracture is severe, causing pain to open the hand, a washcloth should be wrapped on a tongue blade and inserted into the hand to clean it in that fashion. Drying is accomplished in a similar manner followed by insertion of a soft hand roll at least one inch in diameter to prevent indentation of the nails into the hand and to prevent build up of perspiration and to allow air to circulate. The nails should be trimmed as short as possible. Ms. Holzberger concluded, based primarily on the observance of the soil or stain in the hand, that it had been several days since hand care had been performed on this patient. Nurse Holzberger admitted that she knew nothing of the medical history of the patient C. M., a 97-year-old lady who suffers from severe degenerative arthritis and osteoporosis in both hands. The hand in question is so severely contractured as to be "in a ball." The witness acknowledged that no patient at the facility, including patient C. M., had any wounds caused by long nails, and that patient C. M. did have a gauze pad inserted into her hand. Witness Holzberger acknowledged that the brown stain on the patient's hand could have been due to the use of betadine which is a form of disinfectant medication and indeed Nurses Campanillo and Groves who testified for the Respondent, and were similarly accepted as experts, confirmed that the stain on patient C. M.`s hand was not caused by soil accumulation, but rather the betadine medication applied the day before in the course of regular hand care. Witness Holzberger testified that such hand care should be performed once a day and that she did not know whether it had been performed on the day of the inspection or not. The Respondent's witnesses confirmed that it had not been performed on that day at the time of her inspection shortly after 11:00 a.m., but that within the regular schedule of care for patients, it should be and was performed before 12:30 that day. Witness Holzberger admitted that there was no danger to the health and safety of the patient even if the hand was allowed to remain unclean for a reasonable period of time, which it was not. The Respondent thus demonstrated that the hand care was performed daily and that this patient could not tolerate a hand roll under her fingers to retard perspiration and indentation of the nails into the palm because it was extremely painful to even slide a tongue depresser with a washcloth under her fingers. Consequently, hand care was adequately accomplished on a daily basis by inserting a four inch gauze pad beneath her fingers and against her palm soaked with betadine solution and keeping her nails trimmed as short as possible. Witness Joel Montgomery was the hospital consultant on the Department's inspection team. Witness Montgomery observed a leaking air conditioner unit, a broken water closet tank cover, a leaking faucet in a janitor's closet, an inoperative water fountain and a missing baseboard in two of the rooms, as well as the allegation that nurse call cords were missing or not attached to the beds in approximately 12 rooms. The witness conceded that this is a large nursing home and such deficiencies are not unusual for a nursing home of this size and type, and that the staff of this nursing home had made sincere and continuing efforts to make repairs. He has seen improvements in maintenance over conditions existing at previous inspections. The witness was unable to state how many nurse paging cords were severed or missing, but that most of the 12 were simply not attached to the patients' beds. His testimony was not clear as to the existence of a requirement for attaching the paging cords to the beds, but the general tenor of his testimony was that that was the accepted procedure required by the Petitioner in regulating and overseeing patient care in nursing homes. The witness could not recall which, if any, beds were occupied in the rooms where he noticed the call cords were not attached to the beds. The witness also acknowledged that some of the cords were reattached to the beds in his presence, but he did not recall how many. The Respondent has a policy of detaching the cords from the beds when the patients are not in bed in order to change the linen, move the beds or to better allow ingress or egress by the patient from the bed. This witness did not establish that that policy conflicts with any Department policy or rule or constitutes an adverse influence on health care. The Respondent adduced evidence which established that only two call cords were actually inoperative during the inspection and that those were repaired during the inspection. The Respondent's witness to this effect Ann Killeen, the Administrator of the facility, made the inspection tour in the company of witness Montgomery for the Petitioner and corroborated the fact that the cords were clipped to the wall when patients are out of the beds or beds were being changed in order to prevent cords from breaking when the beds are moved, and that she was unaware that this violated any minimum standard promulgated by the Petitioner. The broken toilet tank cover was corrected while the inspector was on the premises, the leaking faucet in the janitor's closet sink was a slight drip causing no standing water inasmuch as the leaking water went down the drain. The leaking air conditioner drip pan was the only one of 89 air conditioners with such a problem. The testimony of this witness, as well as Respondent's witness Robert Cole, the employee of the facility in charge of maintenance, establishes that the inoperative call cords as well as the loose baseboards, the inoperative water fountain and broken water closet tank cover were repaired on the day of the inspection while the inspector was still on the premises with the exception of the air conditioner which was repaired within one week after the inspection and the baseboards which were repaired the day after the inspection. The water fountain was the subject of regular maintenance and had been repaired a number of times and the plumber was summoned to repair it once again after its deficiency was noted by Mr. Montgomery. None of the deficiencies with regard to the nurse call cords, the condensation dripping from the air conditioner, the broken water closet tank cover, the leaking faucet, the inoperative water fountain and the loose baseboards were shown to have been a recurring problem or problem existing for any significant period of time. The Petitioner did not show when these conditions occurred or how long they had been allowed to exist, nor did it show any resultant effect on the health or safety of the patients. The Respondent called Earnest H. Brown as an adverse witness. Mr. Brown is the Supervisor of the Tampa area Office of Licensure and Certification for the Petitioner. This witness admitted that he recommended a fine with regard to witness Holzberger's observance of patient A. W., who was fecally incontinent, because he believed fecal material had been found dried upon that patient's bed sheet. He relied on witness Holzberger's professional judgment in reporting to him. Witness Holzberger's testimony at the hearing, however, does not establish that any dried fecal material was found on patient A. W.`s bed sheet. With regard to his decision to recommend a fine concerning the deficient nurse calling cords, the witness admitted that this was predicated on the other observances of deficient call cords at the Respondent's facility on past inspections. The witness could not recall how many call cords, if any, had been observed to be inoperative or otherwise used improperly on past inspections. It should be noted parenthetically that the Administrative Complaint contains no allegation of such past deficiencies as a predicate to the charge regarding call cords in the Administrative Complaint stemming from the inspection of August 22, 1980 and in support of the fine which the Petitioner seeks to impose for this condition.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence in the record, the candor and demeanor of the witnesses and the pleadings of the parties, it is RECOMMENDED that the Administrative Complaint filed against the Respondent in this cause should be dismissed. DONE AND ENTERED this 27th of April, 1981, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 1981. COPIES FURNISHED: Amelia M. Park, Esquire District VI Legal Counsel Department of Health and Rehabilitative Services 4000 West Buffalo Avenue Tampa, Florida 33614 Richard A. Gilbert, Esquire de la Parte & Butler, P.A. 403 Morgan Street, Suite 102 Tampa, Florida 33602 Steven R. Reininger, Esquire Tew, Critchlow, Sonberg, Traum & Friedbauer 10th Floor Flagship Center 777 Brickell Avenue Miami, Florida 33131
The Issue The issues under consideration are those associated with applications filed by the aforementioned private parties seeking certificates of need for skilled nursing home beds based on a fixed need pool of May, 1989, which identified 261 beds for the January, 1992 planning horizon. The beds are available in HRS District III. The applications are for: CON Action No. 5987 Inverness--20 beds; CON Action No. 5912 Suwannee--60 beds; CON Action No. 5913 McCoy-- 60 beds; CON Action No. 5962 Starke--120 or 60 beds; and CON Action N. 5905 Regency--120 beds.
Findings Of Fact Related to the May, 1989 batching cycle HRS has identified a need for 261 nursing home beds in District III. The applicants accept that determination of the pool of beds, that is to say no applicant has sought beds over and above the 261 beds identified by HRS. Further, the parties have expressed their agreement to allow Regency to be granted CON 5905 to construct a new nursing home facility in Lake County, Florida, which will have 120 beds. The written stipulation sets out the parties belief that all applicable criteria for obtaining a certificate of need as set out in Section 381.705, Florida Statutes, have been met. That stipulation is accepted, provided the following conditions are met in issuing the certificate of need: The annual resident population of the facility shall include at least 62% of Medicaid patient days. Two beds shall be dedicated to the care of Alzheimer and respite care residents. The facility shall be a one story design consisting of 43,000 square feet in size. Likewise, the parties have agreed to allow the issuance of CON 5987 to Inverness to add 20 community nursing beds to its existing facility in Inverness, Florida. That written stipulation points out the agreement by the parties concerning the Inverness compliance with all applicable criteria set out in Section 381.705, Florida Statutes as well as any implementing rules set forth in Chapter 10-5, Florida Administrative Code. The arrangement is one by which existing ACLF beds are converted to nursing home beds. That stipulation is accepted, upon condition that Inverness commit to provide a minimum of 75.2% of total patient days for Medicaid patients. The Inverness stipulation which reiterates Inverness' lack of opposition to the grant of a certificate of need to Regency also withdraws its opposition to McCoy, Starke and Suwannee. By the terms of the stipulation's 140 of the 261 beds in the pool are spoken for. This leaves for consideration the applications of Suwannee, Starke and McCoy. In the absence of subdistricting, District III is divided into seven planning areas. The planning areas are as established by the North Central Florida Health Planning Council, Inc. Planning Area l is constituted of Hamilton, Suwannee, Lafayette, Columbia, Union and Bradford counties. Suwannee intends to place its facility in Suwannee County. Starke intends to place its facility in Columbia County. The expansion of the McCoy facility would occur in Marion County which is the sole county in Planning Area 4. By resort to the North Central Florida Health Planning Council District III Health Plan preferences can be seen concerning the allocation of beds among the applicants within the various planning areas. A copy of that plan is HRS Exhibit No. 2. Under this scheme the McCoy application to add 60 additional nursing home beds to its existing facility in Marion County, Florida, is considered a third priority. A third priority would allow the addition of at least 60 beds and no more than 120 beds. The Suwannee and Starke applications are a fourth priority under the local plan which allows for an addition of up to 60 beds. The McCoy application as presented at hearing responds adequately to all applicable criteria set out in Section 381.705, Florida Statutes, to include the State Health Plan and District III Health Plan. McCoy holds a superior license rating at present and has a proposed capital expenditure for this project of $1,568,000. Taking into consideration the proposed allocation of beds set forth in the local health plan, the distance between the McCoy facility and the proposed facilities in Suwannee and Columbia counties by the applicants Suwannee and Starke and absent proof which clearly identifies that Suwannee and Starke are meaningful competitors against McCoy and its attempt to gain a certificate of need calling for expansion of its facility, the McCoy application should be granted. That grant should be conditioned upon a willingness to serve Alzheimer patients in the proposed 14 bed unit and the commitment to provide Medicaid at a 60% level as a minimum commitment. This arrangement would bring the total number of nursing home beds at McCoy to 120, a desirable number when considering economies of scale. What must be resolved by comparative analysis of the applications of Suwannee and Starke, is which of those competitors for 60 beds out of the 61 beds remaining in the pool should be granted a certificate of need, if any. Starke had noticed its intention to apply for 120 beds and made application for 120 beds and in the alternative for 60 beds. The decision to notice its intent to apply for 120 beds was not misleading nor inconsistent with HRS policy in a circumstance where the application was stated in the alternative for 120 beds or 60 beds. The significant point is that Starke explained its alternatives of 120 beds or 60 beds in detail in the course of the application. HRS perceives that the 120 bed notice of intent took into account a lesser number of beds being applied for on the due date for applications and that perception is reasonable. Suwannee noticed the intent to apply for 60 beds and applied for that many. Both Suwannee and Starke met all procedural requirements for consideration of their applications for nursing home beds. In determining the disposition of the 60 nursing home beds needed for Planning Area l within District III, it is noted that Suwannee and Columbia counties are contiguous. Columbia is east of Suwannee. While the main emphasis by these applicants is to serve the needs of residents within the two counties where the facilities would be located, given their contiguity there is a potential for either applicant to serve needs within both counties. Columbia county is the more populous county. However, in the two counties the age cohorts in the 65 and over group and 75 and over group are similar, especially in the 75 and over group. Occupancy rates in the existing nursing homes within the two counties are also similar. The J. Ralph Smith Health Center in Suwannee County has 107 existing beds and 54 beds approved. Those additional 54 beds were designated for residents of the Advent Christian Village exclusively; however, the residents of that village constitute part of the population base in Suwannee county. Therefore this limited utilization of that resource still benefits citizens within Suwannee county. Surrey Place in Suwannee county has 60 beds and the Suwannee Health Care Center has 120 beds with 60 more approved. The 60 additional beds may not be constructed in that the applicant failed to proceed to construction in the time contemplated by CON 3746 and may lose the beds. Columbia County has Tanglewood Care Center with 95 beds. It has Lake City Medical Center with 5 beds associated with a hospital. Palm Garden of Columbia has approval for 60 beds. On balance there would not appear to be an advantage to placing the 60 beds at issue in either Suwannee or Columbia counties when considering the population to be served, present occupancy rates for existing nursing bomes and geographic accessibility to the proposed nursing homes. Suwannee is a wholly owned subsidiary of Santa Fe Health Care, Inc. The parent corporation filed the application with the permission of Suwannee. The 60 bed nursing home facility is part of an overall project which includes the replacement of an existing 60 bed acute care hospital with a 30 bed acute care hospital. If the proposals are accepted the hospital and 60 bed nursing home would be located on a common parcel. HRS has granted CON 6179 to decertify 30 beds. The approved cost of the delicensure and establishment of the new hospital is $6,752,824. The nursing home component of this project is stated to cost $3,408,100 in the way of capital expenditures with an operating equity in the amount of $300,000. The overall health care delivery system contemplated in the hospital and nursing home project includes the replacement hospital, the new nursing home, an out patient diagnostic center, home health care, hospice and adult day care services. Suwannee has the financial backing of its parent corporation which owns a number of health care facilities including six hospitals, two health maintenance organizations and six other health related corporations. Both Suwannee and the parent corporation Santa Fe Health Care, Inc. are not for profit. The Santa Fe operations are in Florida and its hospital holdings include other rural hospitals in addition to Suwannee which is a rural hospital. Before filing the application for the 60 bed nursing home neither Suwannee nor the Santa Fe parent corporation had any involvement in long term health care delivery. Suwannee intends to serve the needs of Alzheimer patients and to provide services to persons needing subacute care. In its present hospital facility in Suwannee County it has 24 swing beds with which it serves patients needing subacute care and which beds are seen as an alternative to nursing home beds. That alternative has limited utility. Although swing beds may serve nursing home patients they are not an alternative for long term care in lieu of community nursing home beds. To the extent that Suwannee Hospital has tried to place patients in nursing homes needing a high level of skilled care, described as subacute care, it has experienced problems. Existing nursing homes in Suwannee County have not accepted the placement of those patients. It is unclear from the record what portion of subacute care needed in the service area will continue to be met in the hospital proper with the advent of delicensure of 30 beds. There was testimony to the affect that the hospital has the option to request swing beds in its remaining 30 bed hospital facility, but it has not been shown that the hospital will avail itself of that opportunity and through the use of the swing beds be able to render subacute care. The description by Suwannee of the subacute patients that it is contemplating serving through its nursing home are those who require a shorter stay in nursing facilities, who are said to have fragile medical condition and require intensive licensed nursing care. In the application, it states that the Medicare patients contemplated as being served by this prospective nursing home would be the principal users of the subacute care. There patients would have an average length of stay of 15 days with 12 patients per month being served. The Medicare per diem charge of $130 for the first year of operation is said to include the cost of care given to these patients who are said to be heavy users of subacute care. That per diem charge reflects ancillaries such as the various therapies as well. Having considered the explanation of this application, it is less than apparent what the difference would be between the subacute care services now being provided by the hospital in its swing beds and those contemplated by its nursing home application. In a similar vein, it is unclear what the distinction would be between the subacute care rendered in the proposed nursing home when contrasted with the subacute care being provided in swing beds that might be available in the 30 bed replacement hospital. If granted a certificate of need Suwannee is committed to serving AIDS patients. Suwannee intends to serve Medicaid patients and it projects a percentage of patient days attributable to Medicaid patients in the first two years of operation to approximate 73%. This is contrasted with experience statewide of 62%, within District III of 75% and within the planning area of 81%. Projected per diem rate for Medicaid reimbursement within the first year of operation is $68. The financial expert presented by Suwannee said that the applicant could charge as much as $10 to $12 more, making the Medicaid rate $78 to $80 per day. This increase contemplates raising the present caps on reimbursement. The record does not support increases in the caps of $10 to $12 in the relevant planning period. In the first year of operation the private room, private pay per diem rate at Suwannee reflects $97 as the charge and $80 as the charge for semiprivate room, private pay. This is as compared to $130 for Medicare per diem. Although it is unacceptable to charge more for Medicare than private pay, Schedule 12 within the application shows the inclusion of ancillaries for the Medicare patient and the exclusion of ancillaries for private pay. Under the circumstances it is difficult to tell whether the Medicare per diem charges exceed the private pay per diem charges as has been contended by Starke. The inclusion of the therapies as ancillary costs is shown on page 39 at Schedule 12 of the application of Suwannee. On Schedule 17 in the first operating year the therapies as ancillary costs are not broken out as individual items such as physical therapy, speech therapy and occupational therapy separate and apart from routine services. Instead an aggregate figure is given. That precludes an understanding of what portion of the per diem charge for Medicare patients is attributable to those ancillary costs. The circumstance is made more bewildering in that the financial expert presented by Suwannee stated that the $130 per diem charge had application to residents who were receiving subacute care. What portion of the per diem charge for Medicare residents is attributable to the subacute care component is not revealed in the application. Neither, is it explained in the testimony. Notwithstanding the assurance of the Suwannee financial planner that the Medicare rate projected for the first year of operation is in keeping with the Hospital Cost Containment Board's data on the average rate structure, that comment and his other explanations failed to establish the reasonableness of that charge. This is especially true when considering the fact that the Medicaid charges, even accepting an adjusted rate of $80 per day, are also indicated at Schedule 12 as including therapies and are far less than the Medicare per diem. Schedule 17 shows the Medicaid without reference to the therapies as an aggregate item in the same fashion as described with the Medicare category of reimbursement. Further, evidence of the fact that private room, private pay, does not exceed the Medicare per diem charge is related at Schedule 12 where it describes the subacute private room, private pay patient as paying $150 and the semiprivate, room private pay as paying $130. Again, in the Suwannee application in the first year of operation for both Medicaid and Medicare therapies are said to be included in the basic charges of $68 and $130 respectively shown at Schedule 12 and carried forward in the aggregate on Schedule 17. From the explanations stated by the financial planner, the projected costs for therapies by those two categories of patients is not reflected in the ancillary cost centers for physical therapy, speech therapy and occupational therapy found at lines 11-13 of Schedule 18. Instead, they are reflected at line 39 under other costs centers in the amount of $80,900. Moreover the $80,900 is said to include subacute services as well as the therapies. Having considered Schedules 12, 17 and 18 for the first operating year, together with the other evidence presented in the course of the hearing, the estimate at line 39 of Schedule 18 of $80,900 is unreliable. The Suwannee project contemplates a facility of approximately 24,370 square feet. The construction cost estimate is $62.44 per square foot. The total project cost per bed is $56,802. That far exceeds the caps for the property cost component related to Medicaid residents which is presently $30,350 per bed. Put another way, that translates to a differential of $11.64 per patient day above present reimbursement levels for Medicaid residents. That differential cannot be made up by resort to payments for ancillary services for that category of resident. The shortfall attributable to the costs per bed differential in the application of $56,802 compared to $30,350 per bed plus ancillaries is not expected to be made up by resort to other revenue sources within this proposal either, nor can it be properly be. This is particularly true when approximately 70% of the patient days are expected to be provided by Medicaid residents. Even if Suwannee were able to obtain reimbursement for the per bed cost of $56,802, this is much more than the Starke cost per bed which is approximately $30,000 as built. The cap that has been mentioned is the one effective July 1, 1990. Nothing in the testimony would suggest that the caps would approach $56,802 within the planning horizon for this review cycle. In summary, the financial feasibility of the Suwannee proposal has not been established. While the parent corporation, Santa Fe Health Care, Inc., is strong financially and able to sustain Suwannee in its nursing home operation in the short term, even with expected losses, the losses will be extraordinary and the long term feasibility has not been demonstrated either. Simply stated, too much money is being expended to establish this facility and it may not be recouped by resort to the reimbursement scheme identified in the application. Under the circumstances, the nursing home is not perceived as a means of promoting the financial well being of the overall project constituted of the nursing home, relocated hospital and associated services. It is not accepted that the manner and quality of care proposed to be delivered by Suwannee is so superior that it justifies the inordinate expense in delivering the care. In other particulars Suwannee has shown that it meets all applicable criteria for granting it a certificate of need, but the overall costs are so exorbitant that they preclude financial success in the project. In addition, even if the project met the criteria its costs compared to the Starke proposal are so much more that the Suwannee proposal should be rejected in favor of the Starke proposal. It is not accepted that a hospital based nursing home is superior to a freestanding nursing home as urged by the presentation made by Suwannee. Starke had applied for a 120 bed nursing home, with a separate request explaining its proposal to construct a 60 bed nursing home. It is that latter proposal that fits the need in Planning Area I of District III. The total capital expenditure for that alternative proposal is $1,882,713. The cost per square foot is approximately $60 in the 22,500 square foot facility. The per bed costs is in the neighborhood of $30,000. In the first year of operation the private room, private pay is $89; the semiprivate room, private pay rate is $79; the Medicaid rate is $69.50 and the Medicare rate is $69.50. These rates do not include ancillary charges for therapies. The Starke proposal will include a unit for Alzheimer, subacute care, adult day care and respite care. Starke will provide 80% of its patient days for Medicaid residents and 10% of its patient days for Medicare residents. The Medicaid performance exceeds that of Suwannee. That rate is consistent with the experience which Starke has in the operation of its Whispering Pines Care Center in Starke, Florida, a 120 bed nursing home facility which has held a superior license rating over the three years preceding the application. Starke as a corporation would own both the Starke, Florida facility and the proposed Lake City, Florida facility. The principals in that corporation with 50% ownership are J. D. Griffis and George R. Grosse, Jr. The subacute care that is to be provided is in patient rooms which are directly adjacent to the nursing station. It is the intention of the applicant to build these rooms to allow support for medical equipment needed in the treatment of those residents. Although some criticism has been directed to the architectural design of the proposed nursing home facility, Starke has committed itself to meet all applicable codes. Under the circumstances it does not appear that this application presents significant problems associated with resident safety or inordinate costs in making necessary adjustments to comply with applicable codes. The Starke application was prepared by Jerry L. Keach, the then administrator for University Nursing Care Center in Gainesville, Florida, operated by Covenant Care Corporation. By the comments found in the application it was contemplated that the Covenant Care group would manage the Starke facility in Lake City, Florida, which would do business as Lake City Care Center. No contract has been executed between Starke and Covenant Care Corporation to allow the latter entity to manage the Lake City facility assuming the grant of the certificate of need to that applicant. At hearing the principals for Starke indicated that Covenant Care together with other unnamed organizations would be considered as management for the nursing home in Lake City. Although this issue of management is unresolved, reservations about the project are overcome in recognition of the success of the Starke corporation in the operation of the Whispering Pines Care Center in Starke, Florida. That suffices as an indication that Starke is capable of installing appropriate personnel to operate the Lake City facility, and provide quality care. The assumptions concerning the various aspects of the proposals set forth in the Starke application are sufficiently explained in the course of the final hearing and those explanations are accepted. It is reasonable to expect that the nursing home could be constructed, staffed and operated in a manner consistent with the explanations found in the application and through testimony at hearing. A successful outcome is anticipated whether the Covenant Care Corporation is employed to operate the facility or not. The favorable impression of the Starke proposal is held notwithstanding the criticism directed to the financial feasibility by remarks offered by Suwannee. In particular the Suwannee Exhibit No. 11 admitted into evidence questioning the assumptions of the Starke applicant concerning income projections for the first two years have been taken into account. Whispering Pines Care Center presently offers care for Alzheimer patients and subacute services. Therefore problems are not anticipated in the provision of those services in the proposed facility. With due regard for the criticisms that have been directed to the financial ability of Starke to maintain its Whispering Pines Nursing Center and the proposed project in Lake City, Florida, it is found that the applicant has the ability to conduct those businesses. As with the matter of financial feasibility, Starke has satisfied all other applicable criteria for the grant of a certificate of need to construct the 60 bed nursing home.
Recommendation Based upon consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That a Final Order be entered which requires all CONs granted to be consistent with the applications and in keeping with that intention: Grants CON 5987 to Inverness for the addition of 20 community nursing home beds to its existing facility upon condition that those beds be constituted of a minimum of 75.2% total patient days for Medicaid patients; Grants CON 5962 to Starke for construction of a nursing home in Columbia County, Florida, constituted of a minimum of 80% total patient days for Medicaid patients, that provides Alzheimer services, subacute care, day care and respite care; Grants CON 5910 to McCoy for the addition of 60 beds upon condition that 60% of the patient days be devoted to Medicaid patients; Grants CON 5905 to Regency for construction of a 120 nursing home facility with 62% of its patient dads being devoted to Medicaid patients, 2 beds dedicated to Alzheimer patients, provision of respite care and that the facility shall be a one-story design consisting of 43,000 gross square feet in size; and Denies the application for a 60 bed nursing home in Suwannee County made by Suwannee under CON Action No. 5912. DONE and ENTERED this 19th day of September, 1990, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of September, 1990. APPENDIX CASE NOS. 90-0043 and 90-0045 The following discussion is given concerning the proposed facts of the parties: Inverness Paragraphs 1 through 3 are subordinate to facts found. Paragraph 4 is not necessary to the resolution of the dispute. Suwannee Paragraphs 1 through 7 are subordinate to facts found. Paragraph 8 is contrary to facts found in that the Starke application can be advanced without a resort to an affiliation with Covenant Care Corporation. Paragraph 9 is accepted; however, those facts do not cause the rejection of the Starke proposal. Paragraphs 10 and 11 are not necessary to the resolution of the dispute. Paragraph 12 is accepted as factually correct; however, this is not crucial in determining the outcome of this case. Concerning Paragraph 13, while the record reveals that Mr. Keach was responsible at a time moratorium had been placed on admissions into University Nursing Care Center in Gainesville, Florida, the record was not detailed enough to ascertain what influence that might have on his ability to act as an administrator at the Starke facility proposed in this instance or his competence in preparing the application. The representations found in Paragraph 14 do not preclude the consideration of the Starke application. Concerning Paragraph 15, the first sentence is rejected as fact. The second and third sentences are not necessary to the resolution of the dispute. Concerning Paragraph 16, those items which are mentioned did not cause the rejection of the Starke application in that Starke is committed to abide by all applicable codes to insure control over the patients. Paragraphs 17 through 21 are contrary to facts found. Concerning Paragraphs 22-24, the Starke proposal is found to be financially feasible. Paragraph 25-27 are subordinate to facts found. Concerning Paragraph 28, notwithstanding economies of scale they will not overcome the inherent extravagance in the costs associated with bringing the Suwannee project on line. Concerning Paragraph 29, while diversification for rural hospitals is desirable, the present attempt by Suwannee is unacceptable. Paragraph 30 is subordinate to facts found. Concerning Paragraph 31 see comment on Paragraph 29. Paragraph 32 is subordinate to facts found. Paragraph 33 is accepted; however, the principal service area would appear to be Suwannee County. The existence of service over to Hamilton, Madison, Lafayette and Columbia Counties does not change the perception of this case. Paragraph 34 is subordinate to facts found. Paragraph 35 is contrary to facts found as are Paragraphs 36 and 37. Concerning Paragraph 38, the affiliation of Suwannee with the Santa Fe Health Care system does not overcome the lack of financial feasibility. Paragraphs 39 and 40 are subordinate to facts found. Paragraph 41 is contrary to facts found. Paragraph 42 is not necessary to the resolution of the dispute. Paragraph 43 is contrary to facts found. Paragraphs 44 and 45 are subordinate to facts found. Paragraph 46 is contrary to facts found. Paragraphs 47-55 are subordinate to facts found. Paragraph 56 is not necessary to the resolution of the dispute. Paragraphs 57-60 are subordinate to facts found. Paragraph 61 is contrary to facts found. Paragraph 62 is subordinate to facts found. Paragraph 63 is contrary to facts found. Paragraph 64 is subordinate to facts found. Concerning Paragraph 65, notwithstanding these observations they do not justify the rate structure or per diem charges set out in the Suwannee application. Paragraph 66 is subordinate to facts found as are the first two sentences of Paragraph 67. The last sentence to Paragraph 67 is rejected. Paragraphs 68 and 69 are contrary to facts found. The first sentence of Paragraph 70 is subordinate to facts found. The second sentence is not relevant. Paragraphs 71 through the first sentence of Paragraph 73 is contrary to facts found. Concerning the last sentence of Paragraph 73, Starke is found to be financially feasible and Suwannee is not. Paragraph 74 is subordinate to facts found. Paragraphs 75 and 76 have been taken into account in deciding that there are no particular advantages to placing the 60 beds in Columbia County as opposed to Suwannee County. Paragraph 77 in all sentences save the last is accepted. The last sentence is contrary to facts found in that subacute care will be rendered in the Starke facility. Paragraphs 78 through 80 are contrary to facts found. Paragraph 81 is subordinate to facts found. Paragraph 82 is accepted in the premise, but use of Suwannee as the facility to serve this population is rejected based upon the lack of financial feasibility. Paragraph 83 is subordinate to facts found with the exception that the subacute patients would not be best placed with Suwannee. Paragraph 84 and 85 are subordinate to facts found. Paragraph 86 is contrary to facts found. Paragraphs 1-5 with the exception of the last sentence in Paragraph 5 are subordinate to facts found. Concerning that latter sentence it is clear that Suwannee would intend to build the nursing home facility together with the hospital or exclusive of the hospital project. Paragraphs 6-8 are not necessary to the resolution of the dispute. Paragraph 9 is subordinate to facts found. Paragraph 10 is accepted and it is acknowledged that the applicants can approximate that average. Paragraphs 11 and 12 are subordinate to facts found. Concerning Paragraph 13 Suwannee did establish its percentage of commitment to Medicaid through proof at hearing. Paragraphs 14 through 23 are subordinate to facts found. Paragraph 24 is contrary to facts found in that Starke offers no greater enhancement than Suwannee in terms of geographic accessibility and is not really a competitor in this criterion with McCoy. Paragraphs 25 through 27 are subordinate to facts found. Paragraph 28 is contrary to facts found in that Suwannee did identify the programs that it intends to offer. Paragraphs 29 through 36 are subordinate to facts found. Paragraph 37 in the first sentence is subordinate to facts found. The second sentence is not necessary to the resolution of the dispute. Paragraph 38 is subordinate to facts found. Paragraph 39 is not necessary to the resolution of the dispute. Concerning Paragraph 40 while it is agreed that swing beds are skilled level of nursing home care they do not constitute reasonable alternatives to long term care. Paragraph 41 is subordinate to facts found in the first sentence. The second sentence in its suggestion that there is no significance to the lack of provision of these types of services under subacute care in area nursing homes is rejected. Paragraph 42 is rejected. Paragraph 43 is subordinate to facts found. Paragraph 44 is contrary to facts found. Paragraphs 45 through 52 are subordinate to facts found. Paragraph 53 is contrary to facts found. Paragraph 54 is subordinate to facts found with the exception that the reason that the Suwannee project is not found to be financially feasible does not include reference to a higher charge for Medicare patients than the charge to private pay patients. Paragraphs 55 through 60 with the exception of the last sentence in Paragraph 60 are subordinate to facts found. The nursing home is intended to be built whether the replacement hospital is built or not. Paragraphs 61 through 65 are subordinate to facts found. Starke Paragraphs 1 through 5 with the exception of the latter two sentences in Paragraph 5 are subordinate to facts found. Concerning the next to the last sentence, it was made clear that the intentions on the part of Suwannee were to build the nursing home. The last sentence to the extent that it is intended to suggest that this applicant is incapable of offering long term care services is rejected. Paragraphs 6 through 8 are not necessary to the resolution of the dispute. Paragraphs 9 through 11 are subordinate to facts found. Concerning Paragraph 12 to the extent that it suggests that Suwannee is not willing to provide services to Medicaid recipients, it is rejected. Paragraphs 13 through 21 are subordinate to facts found. Paragraph 22 is contrary to facts found in that Starke is not seen as enhancing geographic accessibility to a greater extent than Suwannee its true competitor. Paragraphs 23 and 24 are subordinate to facts found. Paragraph 25 is contrary to facts found ih that Suwannee has identified its special programs. Paragraphs 26 through 33 are subordinate to facts found. Paragraph 34 is subordinate to facts found in the first sentence. The second sentence is not necessary to the resolution of the dispute. Paragraph 35 is subordinate to facts found. Paragraph 36 is not necessary to the resolution of the dispute. Concerning Paragraph 37 while it is agreed that swing beds are skilled level of nursing home care they do not constitute reasonable alternatives to long term care. Paragraph 38 is subordinate to facts found in the first sentence. The second sentence in its suggestion than there is no significance to the lack of provision of these types of services under subacute care in area nursing homes is rejected. Paragraph 39 is rejected. Paragraphs 40 and 41 are subordinate to facts found. Paragraph 42 is contrary to facts found. Paragraphs 43 through 50 are subordinate to facts found. Paragraph 51 is contrary to facts found. Paragraph 52 is subordinate to facts found except as it suggests that the difference in rate between Medicaid patients and private pay patients in the Suwannee proposal forms the basis for the criticism that the Suwannee project is not financially sound. Paragraphs 53 through the first two sentence of Paragraph 59 are subordinate to facts found. Related to the latter sentences in Paragraph 59 it is clear that the schematic pertains to the basic design of the Suwannee facility whether attached to a new hospital or free standing. Paragraphs 60 through 64 are subordinate to facts found. McCoy Paragraph 1 is subordinate to facts found. Paragraphs 2 and 3 are not necessary to the resolution of the dispute. Paragraph 4 is subordinate to facts found. Paragraph 5 is not necessary to the resolution of the dispute. Paragraphs 6 through 83 are subordinate to facts found. Regency Paragraph 1 is subordinate to facts found. Paragraph 2 is not necessary to the resolution of the dispute. Paragraphs 3 through 5 are subordinate to facts found. COPIES FURNISHED: Sam Power, Department Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Elizabeth McArthur, Esquire Jeffrey Frehn, Esquire Aurell, Radey, Hinkle and Thomas 101 North Monroe Street, Suite 1000 Post Office Drawer 11307 Tallahassee, FL 32302 W. David Watkins, Esquire Oertel, Hoffman, Fernandez and Cole, P.A. Post Office Box 6507 2700 Blair Stone Road Tallahasee, FL 32314-6507 Leslie Mendelson, Esquire Department of Health and Rehabilitative Services 2727 Mahan Drive Fort Knox Executive Center Tallahassee, FL 32308 James C. Hauser, Esquire F. Phillip Blank, Esquire R. Terry Rigsby, Esquire Julie Gallagher, Esquire F. Philip Blank, P.A. 204-B South Monroe Street Tallahassee, FL 32301 Grafton B. Wilson, II, Esquire 711 North 23rd Avenue, Suite 4 Post Office Box 1292 Gainesville, FL 32602 R. Bruce McKibben, Esquire Dempsey and Goldsmith, P.A. 307 West Park Avenue Tallahassee, FL 32301
The Issue Whether petitioner should be granted a certificate of need to build a 120- bed nursing and extended care facility in West Palm Beach, Florida.
Recommendation Based on the foregoing, it is RECOMMENDED: That the application be denied for failure to meet licensing criteria contained in Rule 10-5.11(21), Florida Administrative Code. DONE and ENTERED this 8th day of December, 1983, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of December, 1983.
Findings Of Fact Introduction Petitioner, Leesburg Regional Medical Center ("Leesburg"), is a 132-bed acute care private, not-for-profit hospital located at 600 East Dixie Highway, Leesburg, Florida. It offers a full range of general medical services. The hospital sits on land owned by the City of Leesburg. It is operated by the Leesburg hospital Association, an organization made up of individuals who reside within the Northwest Taxing District. By application dated August 13, 1982 petitioner sought a certificate of need (CON) from respondent, Department of Health and Rehabilitative Services (HRS), to construct the following described project: This project includes the addition of 36 medical/surgical beds and 7 SICU beds in existing space and the leasing of a CT scanner (replacement). The addition of the medical/surgical beds is a cost effective way to add needed capacity to the hospital. Twenty-four (24) beds on the third floor will be established in space vacated by surgery and ancillary departments moving into newly constructed space in the current renovation project. A significant portion of this area used to be an obstetric unit in the past; and therefore, is already set up for patient care. The 7 bed SICU unit will be set up on the second floor, also in space vacated as a result of the renovation project. Twelve additional beds will be available on the third and fourth floors as a result of changing single rooms into double rooms. No renovation will be necessary to convert these rooms into double rooms. It is also proposed to replace the current TechniCare head scanner with GE8800 body scanner. Based on the high demand for head and body scans and the excessive amount of maintenance problems and downtime associated with the current scanner, Leesburg Regional needs a reliable, state-of-the-art CT scanner. The cost of the project was broken down as follows: The total project cost is $1,535,000. The construction/renovation portion of the project (24 medical/surgical and 7 SICU beds) is $533,000. Equipment costs will be approximately $200,000. Architectural fees and project development costs total $52,000. The CT scanner will be leased at a monthly cost of $16,222 per month for 5 years. The purchase price of the scanner is $750,000 and that amount is included in the total project cost. The receipt of the application was acknowledged by HRS by letter dated August 27, 1982. That letter requested Leesburg to submit additional information no later than October 10, 1982 in order to cure certain omissions. Such additional information was submitted by Leesburg on October 5, 1982. On November 29, 1982, the administrator for HRS's office of health planning and development issued proposed agency action in the form of a letter advising Leesburg its request to replace a head CT scanner (whole body) at a cost of $750,000 had been approved, but that the remainder of the application had been denied. The basis for the denial was as follows: There are currently 493 medical/surgical beds in the Lake/Sumter sub-district of HSA II. Based upon the HSP for HSA II, there was an actual utilization ratio of existing beds equivalent to 2.98/1,000 population. When this utilization ratio is applied to the 1987 projected population of 156,140 for Lake/Sumter counties, there is a need for 465 medical/surgical beds by 1987. Thus, there is an excess of 28 medical/surgical beds in the Lake/Sumter sub-district currently. This action prompted the instant proceeding. At the same time Leesburg's application was being partially denied, an application for a CON by intervenor-respondent, Lake Community Hospital (Lake), was being approved. That proposal involved an outlay of 4.1 million dollars and was generally described in the application as follows: The proposed project includes the renovations and upgrading of patient care areas. This will include improving the hospital's occupancy and staffing efficiencies by reducing Med-Surg Unit-A to 34 beds and eliminating all 3-bed wards. Also reducing Med-Surg Units B and C to 34 beds each and eliminating all 3-bed wards. This will necessitate the construction of a third floor on the A wing to house the present beds in private and semi-private rooms for a total of 34 beds. There is also an immediate need to develop back-to-back six bed ICU and a six-bed CCU for shared support services. This is being done to fulfill JCAH requirements and upgrade patient care by disease entity, patient and M.D. requests. Another need that is presented for consideration is the upgrading of Administrative areas to include a conference room and more Administrative and Business office space. However, the merits of HRS's decision on Lake's application are not at issue in this proceeding. In addition to Lake, there are two other hospitals located in Lake County which provide acute and general hospital service. They are South Lake Memorial Hospital, a 68-bed tax district facility in Clermont, Florida, and Waterman Memorial Hospital, which operates a 154-bed private, not-for-profit facility in Eustis, Florida. There are no hospitals in Sumter County, which lies adjacent to Lake County, and which also shares a subdistrict with that county. The facilities of Lake and Leesburg are less than two miles apart while the Waterman facility is approximately 12 to 14 miles away. South Lake Memorial is around 25 miles from petitioner's facility. Therefore, all three are no more than a 30 minute drive from Leesburg's facility. At the present time, there are 515 acute care beds licensed for Lake County. Of these, 493 are medical/surgical beds and 22 are obstetrical beds. None are designated as pediatric beds. The Proposed Rules Rules 10-16.001 through 10-16.012, Florida Administrative Code, were first noticed by HRS in the Florida Administrative Weekly on August 12, 1983. Notices of changes in these rules were published on September 23, 1983. Thereafter, they were filed with the Department of State on September 26, 1983 and became effective on October 16, 1983. Under new Rule 10-16.004 (1)(a), Florida Administrative Code, subdistrict 7 of district 3 consists of Lake and Sumter Counties. The rule also identifies a total acute care bed need for subdistrict 7 of 523 beds. When the final hearing was held, and evidence heard in this matter, the rules were merely recommendations of the various local health councils forwarded to HRS on June 27, 1983 for its consideration. They had not been adopted or even proposed for adoption at that point in time. Petitioner's Case In health care planning it is appropriate to use five year planning horizons with an overall occupancy rate of 80 percent. In this regard, Leesburg has sought to ascertain the projected acute care bed need in Lake County for the year 1988. Through various witnesses, it has projected this need using three different methodologies. The first methodology used by Leesburg may be characterized as the subdistrict need theory methodology. It employs the "guidelines for hospital care" adopted by the District III Local Health Council on June 27, 1983 and forwarded to HRS for promulgation as formal rules. Such suggestions were ultimately adopted by HRS as a part of Chapter 10-16 effective October 16, 1983. Under this approach, the overall acute care bed need for the entire sixteen county District III was found to be 44 additional beds in the year 1988 while the need within Subdistrict VII (Lake and Sumter Counties) was eight additional beds. 2/ The second approach utilized by Leesburg is the peak occupancy theory methodology. It is based upon the seasonal fluctuation in a hospital's occupancy rates, and used Leesburg's peak season bed need during the months of February and March to project future need. Instead of using the state suggested occupancy rate standard of 80 percent, the sponsoring witness used an 85 percent occupancy rate which produced distorted results. Under this approach, Leesburg calculated a need of 43 additional beds in 1988 in Subdistrict VII. However, this approach is inconsistent with the state-adopted methodology in Rule 10- 5.11(23), Florida Administrative Code, and used assumptions not contained in the rule. It also ignores the fact that HRS's rule already gives appropriate consideration to peak demand in determining bed need. The final methodology employed by Leesburg was characterized by Leesburg as the "alternative need methodology based on state need methodology" and was predicated upon the HRS adopted bed need approach in Rule 10-5.11(23) with certain variations. First, Leesburg made non-rule assumptions as to the inflow and outflow of patients. Secondly, it substituted the population by age group for Lake and Sumter Counties for the District population. With these variations, the methodology produced an acute care bed need of 103 additional beds within Lake and Sumter Counties. However, this calculation is inconsistent with the applicable HRS rule, makes assumptions not authorized under the rule, and is accordingly not recognized by HRS as a proper methodology. Leesburg experienced occupancy rates of 91 percent, 80 percent and 73 percent for the months of January, February and March, 1981, respectively. These rates changed to 86 percent, 95 percent and 98 percent during the same period in 1982, and in 1983 they increased to 101.6 percent, 100.1 percent and 95.1 percent. Leesburg's health service area is primarily Lake and Sumter Counties. This is established by the fact that 94.4 percent and 93.9 percent of its admissions in 1980 and 1981, respectively, were from Lake and Sumter Counties. Although South Lake Memorial and Waterman Memorial are acute care facilities, they do not compete with Leesburg for patients. The staff doctors of the three are not the same, and there is very little crossover, if any, of patients between Leesburg and the other two facilities. However, Lake and Leesburg serve the same patient base, and in 1982 more than 70 percent of their patients came from Lake County. The two compete with one another, and have comparable facilities. Leesburg has an established, well-publicized program for providing medical care to indigents. In this regard, it is a recipient of federal funds for such care, and, unlike Lake, accounts for such care by separate entry on its books. The evidence establishes that Leesburg has the ability to finance the proposed renovation. HRS's Case HRS's testimony was predicated on the assumption that Rule 10-16.004 was not in effect and had no application to this proceeding. Using the bed need methodology enunciated in Rule 10-5.11(23), its expert concluded the overall bed need for the entire District III to be 26 additional beds by the year 1988. This calculation was based upon and is consistent with the formula in the rule. Because there was no existing rule at the time of the final hearing concerning subdistrict need, the witness had no way to determine the bed need, if any, within Subdistrict VII alone. Lake's Case Lake is a 162-bed private for profit acute care facility owned by U.S. Health Corporation. It is located at 700 North Palmetto, Leesburg, Florida. Lake was recently granted a CON which authorized a 4.1 million dollar renovation project. After the renovation is completed all existing three-bed wards will be eliminated. These will be replaced with private and semi-private rooms with no change in overall bed capacity. This will improve the facility's patient utilization rate. The expansion program is currently underway. Like Leesburg, the expert from Lake utilized a methodology different from that adopted for use by HRS. Under this approach, the expert determined total admissions projected for the population, applied an average length of stay to that figure, and arrived at a projected patient day total for each hospital. That figure was then divided by bed complement and 365 days to arrive at a 1988 occupancy percentage. For Subdistrict VII, the 1988 occupancy percentage was 78.2, which, according to the expert, indicated a zero acute care bed need for that year. Lake also presented the testimony of the HRS administrator of the office of community affairs, an expert in health care planning. He corroborated the testimony of HRS's expert witness and concluded that only 26 additional acute care beds would be needed district-wide by the year 1988. This result was arrived at after using the state-adopted formula for determining bed need. During 1981, Lake's actual total dollar write-off for bad debt was around $700,000. This amount includes an undisclosed amount for charity or uncompensated care for indigent patients. Unlike Leesburg, Lake receives no federal funds for charity cases. Therefore, it has no specific accounting entry on its books for charity or indigent care. Although Leesburg rendered $276,484 in charity/uncompensated care during 1981, it is impossible to determine which facility rendered the most services for indigents due to the manner in which Lake maintains its books and records. In any event, there is no evidence that indigents in the Subdistrict have been denied access to hospital care at Lake or any other facility within the county. Lake opines that it will loose 2.6 million dollars in net revenues in the event the application is granted. If true, this in turn would cause an increase in patient charges and a falling behind in technological advances. For the year 1981, the average percent occupancy based on licensed beds for Leesburg, Lake, South Lake Memorial and Waterman Memorial was as follows: 71.5 percent, 58.7 percent, 63.8 percent and 65.7 percent. The highest utilization occurred in January (81 percent) while the low was in August (58 percent). In 1982, the utilization rate during the peak months for all four facilities was 78 percent. This figure dropped to 66.5 percent for the entire year. Therefore, there is ample excess capacity within the County even during the peak demand months.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of Leesburg Regional Medical Center for a certificate of need to add 43 acute care beds, and renovate certain areas of its facility to accommodate this addition, be DENIED. DONE and ENTERED this 15th day of December, 1983, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of December, 1983.
Findings Of Fact Petitioner, Health Quest Realty XII, filed an application with respondent, Department of Health and Rehabilitative Services (HRS), in November, 1982 seeking a certificate of need authorizing the construction of a 120-bed nursing home facility in Broward County, Florida. The original estimated cost of the project was $3,108,000; however, due to the passage of time since the original filing, petitioner now anticipates the cost to be $4,488,000. The proposal will be financially guaranteed by Health Quest Corporation, a corporation with principal offices in South Bend, Indiana. After reviewing the application, HRS issued its proposed agency action advising petitioner that it intended to deny the application. The proposed agency action was not introduced into evidence, but based on the stipulation of the parties, the denial was apparently predicated upon the lack of need for any additional beds in Broward County, Florida. The determination of need for nursing home beds is made pursuant to Rule 10-5.11(21), Florida Administrative Code. Under the formula contained in that rule, only 101 additional nursing home beds were needed in Broward County, Florida, at the time of final hearing. However, HRS recently granted this allocation of beds to Health Care and Retirement Corporation of America in DOAH Case No. 83-882, Final Order entered on April 4, 1984. Accordingly, no need for any additional beds exists at the present time under the rule. Petitioner principally contended that non-rule factors must be considered in evaluating its application because Broward County is not "normal" within the meaning of the rule. In this regard, it offered evidence to show that Broward County has the fewest beds per capita of the eleven service districts in the state, that the county has a relatively low use of nursing home services by its indigent population, and that the county has a greater number of Medicaid patients per 1,000 indigent elderly than other counties. From this, it concluded that Broward County is abnormal to the extent that more nursing home services must be made available to the elderly indigent. However, these factors are incorporated within the rule and accordingly taken into account when determining need.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of Health Quest Realty XII for a certificate of need to construct a 120-bed nursing home facility in Broward County, Florida, be DENIED. DONE and ENTERED this 17th day of April, 1984, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of April, 1984. COPIES FURNISHED: Charles M. Loeser, Esquire 315 West Jefferson Boulevard South Bend, Indiana 46601 Jay Adams, Esquire Department of Health and Rehabilitative Services Building One, Room 407 1323 Winewood Boulevard Tallahassee, Florida 32301 David H. Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 Alicia Jacobs, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES HEALTH QUEST REALTY XII, Petitioner, vs. CASE NO. 83-1892 DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Respondent. /
The Issue Whether Respondent, Guy Hendricks, III, R.Ph., is subject to discipline pursuant to Subsection 465.016(1)(e), Florida Statutes, for violating Rule 64B16-28.120(2), Florida Administrative Code.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of facts are made: Respondent, Guy R. Hendricks, III, R.Ph., is a Florida-licensed registered pharmacist, so licensed in 1972; he was licensed as a consultant pharmacist in 1974. Registered pharmacists typically dispense medications at a community pharmacy, for example, Eckerds and Walgreen's. Consulting pharmacists oversee a pharmaceutical distribution system in a long-term care nursing home facility with a Class I institutional permit. In addition to his employment at the Arbors in Orange Park (the Arbors), Respondent is engaged in the development of "cutting edge consultant computer programs" and "research and development in the field of software platforms which will lead to a fully integrated consultant software package." (Respondent's vita, Petitioner's Exhibit 2) On August 1, 1996, Respondent became the consulting pharmacist for the Arbors. The AHCA survey, which is the genesis of the allegations of the Amended Administrative Complaint in this case, was conducted later that same month. The Arbors is a sub-acute care facility which has a Class I institutional pharmacy permit. Florida Statutes and Florida Administrative Code rules restrict the type of medicinal drugs and drug preparations allowed in Class I institutional pharmacies. One of the consulting pharmacist's responsibilities is to see that the applicable Florida Statutes and Florida Administrative Code rules are followed within the Class I institutional pharmacies, subject to pharmacist's control. The Arbors utilized a Baxter SureMed Dispensing Machine (SureMed machine) which is a computerized dispensing machine that stores medications and allows the pharmacist to track when medications are taken from the machine, by whom they are taken, what dosage is dispensed, and to whom the medication is administered. It has a complete computerized tracking system. It is a "modern tool of pharmacy" used to provide a high level of pharmaceutical care for nursing home residents. Florida Statutes and Florida Administrative Code rules require that nursing homes, such as the Arbors, provide "reasonable and consistent quality of life for residents" and that "reasonable efforts be made to accommodate the needs and preferences of residents to enhance the quality of life in a nursing home." Florida Administrative Code rules allow the Arbors to adopt policies and procedures regarding drugs to meet the needs of residents and to maintain an Emergency Medical Kit(s), the contents of which shall be determined by the facility's medical director, director of nursing, and pharmacist, and "it (the medical kit) shall be in accordance with facility policy and procedures"; the "emergency medical kit" may contain medicinal drugs and drug preparations which are not otherwise allowed within Class I institutional pharmacies. Respondent testified that the SureMed machine was being used as one of the Emergency Medical Kits of the Arbors. The drugs contained in the SureMed machine were determined by the Arbors staff before Respondent was employed as consulting pharmacist. During the August 27-28, 1996, AHCA Survey, the surveyor concluded that the SureMed machine was being used inappropriately by the Arbors. The survey revealed that the SureMed dispensing unit was used as an emergency medication kit. Review of the SureMed Policy and Procedure stated "Medications stored in SureMed are intended for emergency stat orders, late admission first dose, new orders and missing doses" (part of Petitioner's Exhibit 5) contrary to the approved use of medicinal drugs used in facilities with a Class I Institutional Pharmacy Permit. An inventory list provided by the facility revealed in excess of 300 medications in the SureMed unit and this unit had been accessed 22 times in the 24 hours prior to surveyor review. Further review of the usage log revealed that an unsampled resident received Norixin from the SureMed unit on 8/26/96 at 23:04, 8/27/96 at 22:21 and 8/28/96 at 22:21 instead of receiving a resident specific labeled medication from the provider pharmacy. Respondent suggests that a "typographical error" may have occurred in the facility's SureMed policy and procedure in that, if the word "not" is inserted after the words "emergency stat orders," the policy and procedure would conform to the limitations proscribed for Class I institutional permitees. While this explanation is plausible, it is not accepted as credible. This portion of the Arbors' SureMed policy and procedure, referenced by the AHCA surveyor, does not follow Florida law. If the foregoing policy and procedure language is the only language considered, the surveyor's conclusions may be justified; however, the surveyor failed to note the following language which immediately follows the quote from the same SureMed policy and procedure. "SureMed is not intended to be a routine source of medication. The pharmacy must be informed of all new admissions, new orders, refill orders, and missing doses." When a nursing home resident is first admitted to the Arbors, the admittee does not bring medications but brings new prescription orders which must be filled by the provider or back-up pharmacy. Home Care Pharmacy in Orlando, Florida, provides medications to the Arbors; it is 140 miles from Orlando to Orange Park. Deliveries are made two times a day. There were occasions in 1996 when patients were out of medication or Home Care Pharmacy was not delivering as ordered. While the Arbors has only a Class I institutional permit which limits drugs readily available to residents, the facility accepts residents who are "sub-acute" care patients, for example, patients with chronic disease, post-surgical patients, and patients with "super" infections, all of whom require continuity of pharmaceutical therapy. Frank May, a registered pharmacist and certified HCFA surveyor for AHCA, testified that while the Arbors' SureMed policy and procedure were "out of compliance," nevertheless, it was appropriate to "take a drug out of the machine or out of the emergency medication kit if it cannot be provided by the provider pharmacy or if that provider pharmacy is a long way off or by a back-up pharmacy in a timely manner for the next dosage of that medication." May also testified that "there is nothing wrong" with utilizing the SureMed machine as an emergency medical kit or maintaining drugs, otherwise not permitted in a Class I institution permit, in the machine. May further testified that without examining each instance wherein the SureMed machine was accessed immediately prior to the AHCA survey, it would be impossible to determine whether or not an "emergency" existed warranting the use of the particular drug obtained from the SureMed machine. May testified that in 1996, the use of automated drug dispensing machines was becoming very prominent in nursing homes; and problems, such as addressed in this case, were "fairly prevalent." Respondent maintains that the facility's use of the SureMed machine was on a bona fide emergency basis only. The Arbors' SureMed policy and procedure were changed immediately following the August 1996 survey. Respondent sent AHCA a July 20, 1997, letter in response to the AHCA licensure investigation in which he identified the SureMed machine as a "computerized emergency system," a "modern tool of pharmacy," and "our only solution" "to treat our residents' sub acute conditions" when "some local pharmacies . . . could not provide medications." The SureMed machine was removed from the Arbors in November 1996.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the charges against Respondent in the Amended Administrative Complaint be dismissed. DONE AND ENTERED this 28th day of March, 2001, in Tallahassee, Leon County, Florida. JEFF B. CLARK 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 28th day of March, 2001. COPIES FURNISHED: Guy Hendericks, III Post Office Box 4173 Sebring, Florida 33871 Lawrence F. Kranert, Jr., Esquire Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 John Taylor, R.Ph., Executive Director Board of Pharmacy Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
