Findings Of Fact Venice Hospital, a general acute care hospital offering 342 medical/surgical beds and 30 bed's for general psychiatric care, services a population of approximately 110,000 people in Southern Sarasota and Northern Charlotte Counties. Approximately 80% of its patients are covered by Medicare. This figure being higher than average, puts it somewhere in the top 5% of Medicare providers in Florida. The hospital's services are concentrated on geriatric patients and it is developing several programs devoted to that type of patient. It has recently received approval for nursing home development and operates a home health agency. Missing from the geriatric spectrum of services is the hospital based skilled nursing facility, (SNF), which is the subject of this action. Sarasota County currently has four med/surg hospitals, including Petitioner which is the only hospital in the Venice area. Petitioner has a licensed psychiatric unit which operates under separate rules and which is licensed separately but within the hospital cycle. The patients which are treated in that unit are of a different demographic make up than those treated in the med/surg beds and the staff which treats them is different. Petitioner completed a study of the potential need for SNF beds in the hospital which led to the conclusion being drawn by it that this service should be established. Mr. Bebee's review of the applicable rules and statutes indicated to him that the hospital could elect to designate a special care unit within the hospital without even having to go through Certificate of Need, (CON), review. A letter was submitted by the hospital to the Department on February 8, 1990, asking for an exemption from CON review for that project. Because no response to that letter was forthcoming, and because the hospital review cycle was fast coming up, on February 22, 1990, Mr. Bebee submitted a LOI to the Department seeking to convert 42 med/surg beds to a hospital based SNF facility at a cost of $310,000.00. After the LOI was sent, on February 26, 1990, Ms. Gordon-Girvin, on behalf of the Department, responded by letter to Bebee's inquiry letter, indicating the CON review process was a necessary part of the process for Petitioner's facility, but that the LOI and application should be filed in the next nursing home batching cycle by April 30, 1990. Shortly thereafter, by letter dated March 13, 1990, Ms. Gordon-Girvin rejected the LOI which Petitioner had submitted in the hospital cycle since, according to the Department, it was properly "reviewable under the nursing home review cycle rather than the hospital review cycle." Notwithstanding that rejection, and understanding the Department's position as to which cycle was appropriate, on March 26, 1990, Petitioner submitted its CON application for this project, modified to seek only 36 beds. By undated letter, the envelope for which was postmarked April 16, 1990, Ms. Gordon-Girvin declined to accept that application for the same reason she had rejected the LOI. Petitioner has since filed a CON application for the same project in the current nursing home cycle, on a nursing home application form. It did this to keep its options open but considers that action as being without prejudice to the application at issue. Though numerical bed need is not in issue in this proceeding, a brief discussion of general need is pertinent to an understanding of why Petitioner has applied for approval of this project. Petitioner is of the opinion that SNF beds within the hospital setting will provide better care for the patients than could be provided in a nursing home. Many of the patients in issue are receiving intravenous applications of medicines; taking antibiotics; require orthopedic therapy; or are in respiratory distress calling for ventilator or other pulmonary procedures. These patients need a continuing level of nursing care on a 24 hour basis but no longer qualify for a hospital continued length of stay. Petitioner currently has and is taking care of such patients in the facility, but would like to do so in a more organized, systematic manner which could be accomplished in a hospital based SNF. In addition, reimbursement rules dictate that patients no longer needing full hospital care but who remain in the hospital, become, in part, a cost to the hospital because no meaningful reimbursement is received for thatlevel of care. They would qualify for Medicare reimbursement, however, if the unit were designated and certified as a SNF. Medicaid does not recognize these beds as reimbursable because they are in a hospital. Certification for the hospital based SNF would be through the Health Care Financing Administration, (HCFA), and the Medicare program. To secure this certification, the hospital based unit would have to be a distinct part of the facility and not merely consist of beds scattered throughout the facility. Once certified, the unit is not referred to as a nursing home by HCFA or Medicare, but is classified as a hospital based unit. Because Petitioner sees this as a hospital project - a service that the hospital would be providing under its license, it chose to file for the approval in the hospital cycle rather than in the nursing home cycle. Bebee is familiar with the certification process for both hospitals and nursing homes. The latter is a lengthier process and is substantially different from that used for hospitals. In his opinion, it does not give the hospital based applicant the opportunity to properly justify the approval of a hospital based SNF since it deals more with the requirements of a community based facility. The nursing home form is highly structured whereas the hospital form makes it easier to identify and supply the appropriate supporting information for the project applied for. Further, Bebee does not consider the hospital based SNF bed in the same context as a community nursing home bed. The type of patient is not the same nor are the resources required to treat that patient. Petitioner has purchased a CON to construct a 120 bed community nursing home within the Venice area which will have some SNF beds in it. Nonetheless, because of the basic difference between the services, it still plans to pursue the hospital based SNF. A Florida Hospital Association study concluded that SNF in hospitals are different and there is a lack of this type of service in the hospitals throughout the state. This study, dated May, 1989, at Page 5 reads: Conversion of hospital beds to nursing home beds could improve the financial viability of hospitals, reduce purchasers' and consumers' health costs, and improve access to care for patients requiring higher levels of nursing care, [if they are needed and meet quality care requirements]. Bebee also points out that if this project is considered in the nursing home cycle rather than in the hospital cycle, it would result in a hospital competing with nursing homes which are seeking a different type of bed - community versus SNF. Current community nursing home bed need is set at 0. Petitioner's nursing home cycle application was filed under the "not normal circumstances" provision, but there may still be substantial contest. This type of litigation, he believes, adds unreasonably and unnecessarily costs and is a resultant financial burden to the hospital. Mr. Balzano, a health care consultant and Petitioner's other expert, confirmed and amplified the substance of Mr. Bebee's thesis. He compared hospital based SNFs with those in community nursing homes and found notable differences aside from the statutes and rules governing each. Petitioner's current beds are controlled under Chapter 395, Florida Statutes, and Rule 10D- 28, F.A.C. If some were converted to SNF beds under the pending application, they would still fall under the purview of that statute and rule. On the other hand, community nursing home SNF beds would be controlled by the provisions of Chapter 400, Florida Statutes, and Rule 10D-29, F.A.C. There is a substantial difference between them. Other differences are: Patients in hospital based SNF beds generally have greater nursing requirements than those in SNF beds in community nursing homes. Staffing in hospital based SNF is generally higher than in free standing nursing homes. The average stay is shorter in a hospital based SNF. Patients are not there for continuing care but for restorative care. The size of a hospital based SNF unit is generally smaller than that in a free standing unit. Costs are usually greater in a hospital based SNF unit reflecting the greater needs of the patient. Therefore, reimbursement is generally higher. Health services in the different systems are different and a comparative review would be difficult. The questions in the different application forms reflect a different approach and in the nursing home application, relate to residential type care. This is not the case in the hospital form. Costs relating to the use of an existing facility would be cheaper for the hospital based unit when compared with building a new nursing home facility. However, the costs of hospital construction are usually higher than nursing home construction though the quality of construction is generally better. The operating costs for the more complex services provided in a hospital based unit are higher and Petitioner would have trouble competing if reimbursement were based on the classification as a nursing home. Higher staffing levels and higher staffing costs in a hospital based facility would act in disfavor of that facility. The state generally looks with greater favor on projects for Medicaid patients. Hospital based units are not oriented toward that group and would, therefore, not be given the same consideration, as would be a nursing home which catered to Medicaid patients. The type of patient, (residential vs. subacute) has an impact. The hospital based unit provides treatment to the more acutely ill patient. SNF patients who need that higher degree of care would get it better at a hospital based facility which has greater resources to meet patient needs. Mr. Balzano feels it is unfair to compare the two types of properties. The differences in the programs would have an impact on the issue of need when comparative review is done. A SNF in the hospital setting is different but would be compared, if the nursing home cycle were used, against the total pool of community nursing home beds even though the patients are different and their need for services are different. Need methodology looks at historical utilization. Hospital based SNF patients turn over more frequently than do community nursing home patients and the occupancy level is not as high in the hospital based setting. This would bring the average occupancy rate in an area down and could affect the need for community beds across the board. It is also noted that hospital based SNF beds would not be appropriate to house community nursing home patients who could not be accommodated in a nursing home, and vice-versa. SNF patients could normally not be appropriately treated in a community nursing home because of their greater needs. If compared in a batched review, however, they would be considered together without that distinction being made. Since all other hospital services are reviewed under the provisions of Chapter 395 parameters as hospitals, Balzano sees it as inconsistent to review hospital based SNF beds under the nursing home criteria. He can find no statutory or rule provision requiring this. The Department has drafted a proposed rule on the subject but that proposal is presently under challenge. Further, Medicare considers hospital based SNF beds and community nursing home based SNF beds as different entities with the hospital based beds earning a higher reimbursement ceiling due to the increased services and the different type of patient. According to Mr. Balzano, in Florida, hospital based SNF beds account for 1/2 of 1% of all hospital beds. Nationwide the figure is 4%. Balzano feels this is because in Florida there is no criteria to judge need against and therefore these beds are compared to all nursing home beds. He considers this wrong, especially in a state where there is such a high percentage of elderly patients. It is, in his opinion, poor health planning, and when compared against other nursing homes, the hospital based SNF unit will always be at a disadvantage. The testimony of Ms. Sharon Gordon-Girvin, Director of the Department's Office of Community Health Services and Facilities, reveals the Department's rationale in its rejection of the Petitioner's LOI for the instant project and the subsequent return of its application. The application was rejected because there was no underlying LOI for the project. The LOI was initially rejected as having been filed in an inappropriate cycle, (hospital). The Department's policy, calling for applications for all extended care or hospital based skilled nursing facility beds to be filed in a nursing home batching cycle has been in place for an extended period going back before 1984. The Department looks at extended care beds and SNF beds as somewhat equivalent but different. The designation of extended care facility beds initially used by HCFA, (Medicare), in hospital situations is no longer applicable. Now, Medicare recognizes SNF beds in hospitals, but does not distinguish them from other types of hospital based beds. The service is considered the same and the patients must meet identical admissions criteria. The reasons relied upon by the Department, from a health planning standpoint, for reviewing applications for hospital based SNF beds in the nursing home cycle are: Medicare conditions of service and admission criteria are the same, and The State nursing home formula rule projects a need for all nursing home beds, (SNF and ICF) , and does not differentiate between type. Providers compete for the beds, not where they will be used or under what conditions. The mere need for special treatment such as ventilators or intravenous antibiotics is not controlling. If the patient does not need the acute care provided to hospital acute care patients, since a "subacute" status is no longer recognized by the state, it is the Department's position that that patient should be in intermediate care status. This position is incorporated in the Departments proposed rule which is currently under challenge. It had been elucidated, however, in both the 1988 and 1990 editions of HRSM 235-1, relating to Certificates of Need, where at section 9-5 in both editions the text reads: 9-5 Skilled Nursing Unite in Hospitals. Beds in skilled nursing units located in hospitals will be counted in the nursing home bed inventory, even though they retain their licensure as general medical surgical beds. In addition, the Florida State Health Plan for 1989 and for each year since 1984, has counted hospital based SNF beds in the nursing home bed inventory. The parties stipulated to that point. Ms. Gordon-Girvin admits that it is sometimes difficult for an applicant to apply for hospital based SNF beds on a nursing home application for, but claims that is as it should be. She asserts that the patients are the same, (disputed), and since, she claims, a hospital cannot provide the same services that a full service nursing home could provide, the applicants should be differentiated on the basis of services rather than patient category to justify the additional cost inherent in the hospital based setting. In short, she believes the current situation is appropriate since it requires the applicant, a hospital, to look more carefully at the terms and conditions of the services to be provided. In so far as this results in health care cost savings, her position is accepted. She also contends that the Florida Hospital Association study relied upon by Petitioner to support its position that hospital based SNF bed applications for distinct units cannot compete fairly against nursing homes in a comparative CON review, is not pertinent here considering it was prepared to examine an excess of hospital bed inventory and possible alternative uses as income sources. Regardless of the purpose of the study, absent a showing that it is unreasonably slanted or biased, its conclusions have not been successfully rebutted. Ms. Gordon-Girvin also contends that the low percentage of hospital based SNF beds as compared to total hospital beds is a positive result of the state's efforts to reduce costly services in favor of less costly alternatives. The Department has the exclusive charter to determine which services are to be reviewed and how the review is to be conducted. Even if the proposed rule formalizing the procedure questioned here is stricken, the policy currently being utilized by the Department would still be valid and appropriate. Psychiatric, substance abuse, and rehabilitation beds in hospital inventories are considered distinct from acute care beds, but are still classified as hospital beds because there are no reasonable alternatives for treatment of those conditions. With regard to those patients using hospital based SNF beds, however, the Department claims there is an alternative, the community nursing home based SNF beds. In further support of the Department's position, Amy M. Jones, the Department's Assistant Secretary for Health Care Facilities and an expert in facility licensing and certification in Florida, pointed our that the Department treats hospital based SNF beds and community nursing home SNF beds the same because: conditions of participation are the same and the Department wants to look at and compare similar activities in the same cycle, and pertinent statutes and rules both provide for comparison of similar beds and similar services. Section 395.003(4), Florida Statutes, defines the various types of hospital beds as psychiatric, rehabilitative, and general medical/surgical acute care beds regardless of how they are used. The HCFA Conditions of Participation call for certification of SNF beds as either a distinct part of another facility or as a free standing facility. The agency regulations, as outlined in The Federal Register for February 2, 1989, outlines the requirement that SNF beds in a hospital be surveyed just as are community nursing home SNF beds. Taken as a whole, it would appear that both federal and state regulatory agencies look at SNF beds, regardless of where located, as an integral part of a nursing home operation as opposed to a hospital operation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered by the Department affirming its rejection of the Petitioner's Letter of Intent and CON application for the conversion of medical/surgical beds to SNF beds filed in the hospital batching cycle. RECOMMENDED this 30th day of August, 1990, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 30th day of August, 1990. APPENDIX TO RECOMMENDED ORDER IN CASES NOS. 90-2738 & 90-3575 The following constituted my specific rulings pursuant to S 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: Not a proper Finding of Fact. Accepted and incorporated herein as it relates to Petitioner's filing of the LOI and the CON application. The balance is background information and is not a proper Finding of Fact. 3.-6. Accepted and incorporated herein. Not a proper Finding of Fact but a statement of party position. Accepted and incorporated herein except for first sentence. Accepted and incorporated herein. Accepted. Accepted. &13. Accepted and incorporated herein. 14.&15. Accepted. Accepted and incorporated herein. Accepted and incorporated herein. 18.-21. Accepted. Not a Finding of Fact but merely a restatement of the testimony. Accepted and incorporated herein. Accepted and incorporated herein. &26. Accepted and incorporated herein. Accepted. &29. Not a Finding of Fact but argument and a restatement of testimony. Not a Finding of Fact but argument. Not a Finding of Fact but a comment on the evidence. Accepted. Recitation of the witnesses testimony is accurate, but the conclusion drawn does not necessarily follow. Frequency of use does not necesarily determine the finality of the policy. Not a Finding of Fact but a comment on the evidence. Accepted as a presentation of the contents of the document. Accepted. Accepted as represented. 38.-40. Accepted and incorporated herein. 41. Accepted as a restatement of testimony. 42.&43. Accepted. Accepted. &46. Accepted. Accepted. Accepted. FOR THE RESPONDENT: 1.&2. Accepted and incorporated herein. 3. Accepted. 4.-6. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. COPIES FURNISHED: Richard A. Patterson, Esquire Department of Health and Rehabilitative Services 2727 Mahan Drive - Suite 103 Tallahassee, Florida 32308 Jeffery A. Boone, Esquire Post Office Box 1596 Venice, Florida 34284 Linda K. HarSris General Counsel DHRS 1323 Winewood Blvd. Tallahassee, Florida 32399-0700 Sam Power Agency Clerk DHRS 1323 Winewood Blvd. Tallahassee, Florida 32399-0700
The Issue The issue is whether Petitioner, Melvin Alston, is entitled to insurance coverage under the State of Florida Health Plan for services received at Miracle Hill Nursing Home.
Findings Of Fact Doris Alston, widow of Melvin Alston, is requesting payment for services rendered to Melvin Alston at Miracle Hill Nursing Home. Melvin Alston died on December 31, 1985. Melvin Alston, as a retired state employee, became eligible for coverage under the State Health Plan on July 1, 1985. He was a professor and dean at Florida A&M University from 1946 until 1969, when he retired. Thereafter he became a professor at Southern Illinois University, from which he retired in 1976. Alston was admitted to Tallahassee Memorial Regional Medical Center (TMRMC) in September, 1984, and was transferred to the extended care unit on September 20, 1984, because there were no available nursing home beds. On October 31, 1984, a bed became available at Goodwood Manor, a skilled nursing home facility, and Alston was admitted to Goodwood Manor from the TMRMC extended care unit. Alston remained at Goodwood Manor until August 22, 1985, when Mrs. Alston removed him and placed him at Miracle Hill Nursing Home. While at Goodwood Manor, Alston was receiving essentially custodial care. He had a routine diet and simply needed assistance with his activities of daily living, such as bathing and feeding. He was able to take his medications as they were given to him and he could leave the nursing home on a pass basis. While at Goodwood, Alston's medical orders were reviewed monthly and he was not seen daily by a physician. Alston received the same level of care at Miracle Hill Nursing Home. In skilled nursing facilities, the range of services needed and provided goes from skilled through intermediate levels to custodial. Skilled care includes such services as injections or intravenous medications on a daily basis which must be administered by a nurse. Dr. C. E. Richardson became Alston's physician at Miracle Hill Nursing Home. In the course of his deposition, Dr. Richardson testified that Alston received medical level care at Miracle Hill. However, Dr. Richardson stated several times that he did not know the level of care given to Alston under the definitions of the care levels available. He acknowledged that the levels of care ranged from skilled to custodial. Dr. Richardson also did not know the terms of the benefit document for the State Health Plan. Dr. Richardson only provided the medical care, which was the same no matter what level of nursing care he needed or received. According to Dr. Richardson, Alston was on a fairly routine diet, could engage in activities as tolerated, and could go out on a pass at will. One of Dr. Richardson's orders dated 11/27/85 shows that Dr. Richardson did not order a skilled level of care, but instead checked the level of care to be intermediate. Alston did not receive or need skilled nursing care at Miracle Hill. It is more appropriate to classify the level of care as custodial, as that term is defined in the State Health Plan Benefit Document. Alston's primary insurer was Blue Cross/Blue Shield of Illinois, based on coverage he had from his employment there. Blue Cross/Blue Shield of Illinois denied the claim for services at Miracle Hill because the services were custodial and were not covered by that plan. It also denied the claim because Miracle Hill's services did not fit its criteria for skilled nursing care. William Seaton is a State Benefits Analyst with the Department of Administration and his duties include assisting people who have a problem with the settlement of a claim with Blue Cross/Blue Shield of Florida, which administers the State Health Plan. After the claim was denied by Blue Cross/Blue Shield of Illinois, Mr. Seaton assisted Mrs. Alston by filing a claim under the State Health Plan. Blue Cross/Blue Shield of Florida concluded that no benefits were payable for facility charges at a nursing home and that an extended care or skilled nursing facilities would have limited coverage; however, because Alston was not transferred to Miracle Hill directly from an acute care hospital, no coverage existed. The pertinent provisions of the benefit document of the State Health Plan are as follows: I.G. "Custodial Care" means care which does not require skilled nursing care or rehabilitative services and is designed solely to assist the insured with the activities of daily living, such as: help in walking, getting in and out of bed, bathing, dressing, eating, and taking medications. * * * I.N. "Hospital", means a licensed institution engaged in providing medical care and treatment to a patient as a result of illness or accident on an inpatient/outpatient basis . . . and which fully meets all the tests set forth in ., 2., and 3. below: . . . In no event, however, shall such term include . . . an institution or part thereof which is used principally as a nursing home or rest for care and treatment of the aged. * * * I.AH. "Skilled Nursing Care" means care which is furnished . . . to achieve the medically desired result and to insure the insured's safety. Skilled nursing care may be the rendering of direct care, when the ability to provide the service requires specialized (professional) training; or observation and assessment of the insured's medical needs; or supervision of a medical treatment plan involving multiple services where specialized health care knowledge must be applied in order to attain the desired medical results. * * * I.AI. "Skilled Nursing Facility" means a licensed institution, or a distinct part of a hospital, primarily engaged in providing to inpatients: skilled nursing care . . . or rehabilitation services . . . and other medically necessary related health services. Such care or services shall not include: the type of care which is considered custodial . . . . * * * II.E. Covered Skilled Nursing Facility Services. On or after August 1, 1984, when an insured is transferred from a hospital to a skilled nursing facility, the Plan will pay 80% of the charge for skilled nursing care . . . subject to the following: The insured must have been hospital confined for three consecutive days prior to the day of discharge before being transferred to a skilled nursing facility; Transfer to a skilled nursing facility is because the insured requires skilled care for a condition . . . which was treated in the hospital; The insured must be admitted to the skilled nursing facility immediately following discharge from the hospital; A physician must certify the need for skilled nursing care . . . and the insured must receive such care or services on a daily basis; . . . 6. Payment of services and supplies is limited to sixty (60) days of confinement per calendar year. * * * VII. No payment shall be made under the Plan for the following: * * * L. Services and supplies provided by . . . a skilled nursing facility or an institution or part thereof which is used principally as a nursing home or rest facility for care and treatment of the aged. * * * N. any services in connection with custodial care . . . .
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Administration enter a Final Order denying the request for benefits for services rendered to Melvin Alston at Miracle Hill Nursing Home. DONE AND ENTERED this 24th day of May, 1988, in Tallahassee, Florida. DIANE K. KIESLING 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 24th day of May, 1988. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 87-4674 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Melvin Alston 1 . Proposed findings of fact 1-3 and 5 are rejected as being subordinate to the facts actually found in this Recommended Order. Additionally, proposed findings of fact 3 and 5 contain argument which is rejected. 2. Proposed finding of fact 4 is irrelevant to the resolution of this matter. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Department of Administration Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 4(2); 5(2); 6(11); 8(11); 9(12); 10(3 & 4); 11(5); 12(4); 14(5); 15(7); 19- 21(8 & 9) 23(13); and 24(13). Proposed findings of fact 2, 3, and 16 are unnecessary. Proposed findings of fact 7, 13, 18, 26, and 27 are rejected as being irrelevant. Proposed findings of fact 17 and 22 are subordinate to the facts actually found in the Recommended Order. 2. Proposed finding of fact 25 is unsupported by the competent, substantial evidence. COPIES FURNISHED: James C. Mahorner Attorney-at-Law P. O. Box 682 Tallahassee, Florida 32301 Andrea Bateman Attorney-at-Law Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Adis Villa, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
The Issue The ultimate issue is whether proposed Rules 10-5.002, 10-5.0025, 10-5.003, 10-5.004, 10-5.005, 10-5.008, 10-5.0085, 10-5.010, 10-5.0105, 10-5.020, and 10- 5.024, published in Volume 16, Number 13, Florida Administrative Weekly, are invalid exercises of delegated legislative authority.
Findings Of Fact 10-5.002(1) Proposed Rule 10-5.002(1) defines the term "acquisition" to mean "the act of possessing or controlling, in any manner or by any means, a health care facility, major medical equipment, an institutional health service or medical office building as one's own." The proposed rule is HRS's attempt to clarify the term's meaning as used in Section 381.706, Florida Statutes. It is based on dictionary definitions, primarily, Webster's Dictionary, Ninth Edition, but also Black's Law Dictionary. Armond Balsano, an expert in health planning, did not believe the definition to be reasonable and thought it was unclear, ambiguous, and open ended. However his opinion in this regard was not persuasive. Proposed Rule 10-5.002(1) is reasonable and sufficiently clear to withstand this challenge. 10-5.002(13) and 10-5.008(2)(d)--Skilled Nursing Issues Proposed Rule 10-5.002(13) defines "community nursing home beds" as relevant to this proceeding to include "acute care beds licensed pursuant to Chapter 395, Part I, F.S., but designated as skilled nursing beds, which are reviewable pursuant to Rule 10-5.011(1)(k) [the nursing home bed need methodology]." Proposed Rule 10-5.008(2)(d) relates to fixed need pools and states: (d) Skilled Nursing Units in Hospitals. Beds in skilled nursing units which are a distinct part of a hospital will be counted in the nursing home bed inventory, even though they retain their licensure as acute care beds. Essentially, proposed Rule 10-5.008(2)(d) requires that skilled nursing beds in a distinct unit in a hospital be categorized as hospital "general" beds on the hospital license, but that they be carried at the same time on the inventory of community nursing home beds for purposes of projecting need under "pool" projections utilized by HRS for evaluating need for new beds. Proposed Rule 10-5.008(2)(d) attempts to codify what has been HRS's policy. This rule proposes that licensed acute care beds, which form a distinct part of a hospital-based skilled nursing unit, be counted in the nursing home bed inventory to project future need with respect to the nursing home bed need formula. Thus, these beds will no longer be counted or used in the acute care bed need formula to project the acute care bed need. From a health planning standpoint, several reasons exist for and against the inclusion of these hospital-based skilled nursing units within the nursing home bed inventory. A hospital cannot use its acute care beds as skilled nursing beds without a certificate of need. However, pursuant to this rule, to obtain these distinct unit beds a hospital is forced to compete with nursing home applicants for those beds. Skilled nursing beds in hospitals are "general" beds set up in a special category for which there is no specialty hospital bed methodology. Applications are reviewed under the nursing home bed methodology. A skilled nursing unit in a hospital is a unit, certified under the Health Care Finance Administration program, to identify a distinct part of the hospital as being a service in which there is 24-hour nursing with an RN nurse on the day shift. There also must be skilled nursing multi-disciplinary treatments and therapy services provided. The Health Care Finance Administration categorizes such beds as hospital beds, a distinct part of a hospital. Skilled nursing facility (SNF) beds in a hospital are used to treat acutely ill patients with an average length of stay of 20 days, who are different from the extended care patients found in community nursing homes, who have lengths of stay of one year or longer. Hospital skilled nursing patients are overwhelmingly Medicare patients, whereas community nursing home patients are overwhelmingly Medicaid patients. In Florida, Medicaid does not reimburse for care provided in the hospital-based skilled nursing unit. Hospital-based skilled nursing units are reimbursed by the Health Care Financing Administration (HCFA) on a cost-based method. This system of reimbursement is also used with respect to non-hospital-based skilled nursing facilities. Furthermore, this means that hospital-based units are no longer reimbursed under the DRG (Diagnosis Related Groups) system. Medicare limits the patient benefit period to 100 days, regardless of the patient setting. Except for hospitals having higher allowable costs, federal guidelines do not differentiate between hospital and non-hospital-based skilled nursing units. The level of staffing is higher in a hospital nursing unit than in any community nursing home. Specialized equipment and services are offered in the hospital skilled nursing unit which are not offered in the community nursing homes. There are different conceptual approaches to care in the skilled nursing unit in a hospital as compared to those provided in community nursing facilities. Acutely ill patients on intravenous feeding or hyperalimentation, and those with multiple diagnoses require the hospital level nursing care. These units are not intended to provide residential care. Hospital beds are licensed under Rule 10D-28, whereas nursing home beds are licensed under Rule 10D-29, Florida Administrative Code. Although the proposed rule requires skilled nursing beds in distinct units of hospitals to be comparatively and competitively reviewed with community nursing home applications, the two types of beds are not comparable. This creates an unfair comparison. As a matter of good health planning, these skilled units in hospitals should be reviewed differently and separately from regular community nursing home beds. By their nature, SNF beds in distinct units in hospitals are in fact "hospital" beds under Chapter 395 and not nursing home beds under Chapter 400, Florida Statutes. Hospital-based skilled nursing units are not considered special care units as defined in Rule 10D-28, Florida Administrative Code. Specifically, special care units deal with very specialized intensive care settings. However, pursuant to some federal guidelines and state licensing requirements, a skilled nursing unit is considered a custodial type setting. For example, special care units are surveyed about once every two years and skilled nursing facilities once every year. However, failure to conduct a survey is not a determinative factor for special care units continuing under the Medicaid/Medicare programs. Skilled nursing units are not as fortunate. In fact, failure to survey a skilled nursing unit leads to the expiration of its enrollment in the Medicaid/Medicare programs. Section 395.003(4), Florida Statutes, defines the various types of hospital beds and states that beds not covered under any specialty bed need methodology, which a skilled nursing unit is not, shall be considered general beds. This is why these hospital-based skilled nursing units are licensed as general acute care beds. The proposed rule amendments also present logistical problems. Hospitals and nursing homes are licensed under different chapters of the Florida Statues and the Florida Administrative Code, and those standards do not match. Their projects are in different planning cycles. HRS intends that hospitals apply for skilled nursing units on the nursing home application currently in use, but admits that the application does not really fit this type of project. The proposed rule amendments regarding skilled nursing units will be costly and burdensome. Although skilled nursing units offer valuable services and few currently exist, under the nursing home need rule it will be difficult to prove need for these projects. A hospital desiring to establish one will likely find itself having either to challenge the fixed need pool for nursing home beds or litigate the almost inevitable denial of its application for lack of need. Either course of action would involve time and expense over and above those usually encountered in the CON process, particularly because such an application would likely draw the opposition of existing nursing homes, even though their services are not really comparable. The proposed rule amendments do not comport with the basic health planning policy of reducing over-bedding by encouraging conversion to other services. It is unlikely a hospital could get a skilled nursing unit by showing a numeric need under the nursing home need methodology, and any attempt to show exceptional circumstances would be hampered by the lack of utilization data. Such beneficial conversions will probably also be chilled by the difficulty in converting a skilled nursing unit back to general acute care use, should it not be successful. Given the extreme acute care over-bedding which exists throughout the state, it is not anticipated that there will be any need for additional acute care beds for the foreseeable future. Since a skilled nursing unit would not be counted in the acute care bed inventory, the reconversion to acute care use would have to undergo CON review and would almost certainly be denied. 10-5.002(52) Proposed Rule 10-5.002(52) defines refinancing costs, which Rule 10- 5.004(2)(c) states are subject to expedited review under Section 381.706(2). The purpose of this definition is to provide guidance to applicants by identifying examples that are often encountered in either bond refunding or refinancing. The definition is straightforward in nature and encompasses the elements common in refinancing. Mr. Balsano, testifying for Adventist, readily acknowledged the preciseness of this definition, but faulted the definition for its absence of any discussion as to the potential benefit of refinancing. However, Mr. Balsano's concerns were misplaced. Distinctions exist between the benefits of refinancing and the meaning of refinancing. Indeed, the benefits of refinancing go to the merit of whether or not the certificate of need should be granted. Since every applicant is required to address the review criteria found in Section 381.705, Florida Statutes, the proper forum for addressing the benefits of refinancing is in the CON application itself. Proposed Rule 10- 5.002(52) is simply a definition. 10-5.004(2)(g)--Projects Subject to Expedited Review: Capital Expenditure Projects This proposed rule allows applicants who propose a capital expenditure project to improve, repair, or correct their existing facility to apply for a certificate of need on an expedited basis. This proposed rule is conducive to encouraging existing facilities to make needed improvements by seeking approval of the expenditure expeditiously and without the delays associated with batching cycles. It is important for a provider to make and complete corrections or improvements quickly in order to minimize the disruption of patient care. Some of the more common capital expenditures include expansion of emergency departments or emergency rooms and the renovation or expansion of other patient care areas. An application to relocate a hospital is also considered a capital expenditure. Under extreme circumstances of pervasive physical plant deficiencies, coupled with a lack of practical renovation options to overcome plant deficiencies, an existing health care facility might apply for a replacement facility. Only when such replacement facility would (1) involve no new beds or changed bed use (e.g., from general acute care to comprehensive medical rehabilitation beds), (2) involve no substantial change in services, and (3) involve no substantial change in service area would HRS consider such an application to be solely reviewable as a capital expenditure and thus entitled to expedited review under the proposed rule. HRS reviews replacement facility applications by carefully assessing the applicants' claims of pervasive physical plant problems. HRS sends a team of experts, including architects, to the existing facilities to independently judge whether the physical plant is in such a condition as would warrant replacement and whether renovations could serve as a practical alternative from a physical standpoint. HRS also performs an economic assessment to compare the alternatives of replacement versus renovation in order to determine the most cost-effective alternative. Replacement facility applications typically involve a determination not of whether dollars will be spent, but rather, how they are best spent--by replacement or by renovation. As such, HRS helps to contain health care costs without participation by competitors in these institution- specific decisions. Pursuant to Section 381.709(5)(b), Florida Statutes, competitors do not have standing to challenge a proposed capital expenditure and, therefore, there is no adequate reason to defer review of these projects until a future application cycle. Further, when a capital expenditure approval is sought to replace or relocate an existing facility, no one other than the applicant/existing facility can apply to spend or make those expenditures. An unrelated entity cannot compete to replace another entity's existing facility. Conducting a comparative review with respect to a capital expenditure project for the replacement of a hospital is illogical, unworkable, and futile. 10.5.008(1)(c)3 and 10-5.008(3)(b)--Capitalized Costs Proposed Rule 10-5.008(1)(c) requires that a letter of intent describe the proposal with specificity. Subsection (1)(c)3 sets forth the following requirement: 3. A proposed capital expenditure must be rounded to the nearest dollar . . . . If no capital expenditure is proposed, the applicant must so indicate. If the actual capital expenditure has already been incurred, either wholly or in part, and the project will account for such expenditures as capitalized costs, regardless of the purpose, then the total capital expenditure of the project shall be indicated. As related to this same subject, proposed Rule 10-5.008(3)(b) states: (b) Capital expenditures incurred for projects not originally subject to Certificate of Need review must be identified as a proposed expenditure when such expenditure will be capitalized in a project for which a Certificate of Need is required. HRS asserts that this proposed rule codifies HRS's existing policy and that the purpose of this provision is to develop consistency in how applicants treat an already incurred capital expenditure. It is also allegedly intended that this proposed rule give uniformity concerning how project costs are calculated and allocated. For example, if an applicant is going to convert space from one use to another, the value of the space must be included in the applicant's capital expenditure estimate. While Ms. Gordon-Girvin, HRS's health planning expert, opined that this proposed rule is consistent with current practices in the health care market place concerning how capital expenditures are treated and that it forms a common basis of comparison for comparing the applicants' treatment of capitalized costs, the greater weight of the credible evidence does not support these opinions. Actually, the effect of these proposed rules is that a certificate of need applicant, who has previously made capital expenditures and later pursues a certificate of need project utilizing such prior capitalized costs, must identify and include those prior capital expenditures as a portion of the certificate of need project, even though no actual incremental funds will be necessary or spent in connection with the project. One of the problems with proposed Rules 10-5.008(1)(c)3 and (3)(b) is that they both ignore a distinction between fixed costs and variable costs which is fundamental to a financial evaluation of any project. Specifically, it is inappropriate to require an applicant who will have no incremental costs in implementing a project to allocate a portion of prior capital expenditures, where such an application is measured against a competing application in which the entire outlay for capital costs will be necessary. This distorts the evaluation due to inappropriately comparing prior fixed costs to future variable costs. An example of the illogical result of the proposed rules provides guidance. If a hospital has already spent one million dollars to add a CON- exempt outpatient cardiac cath lab, and later seeks to establish an inpatient cardiac cath program, under these proposed provisions, that hospital would have to represent a cost of one million dollars in its application to convert the outpatient cardiac cath lab to an inpatient project. From a health planning and financial standpoint, this is inappropriate. Having to include capital costs which have already been incurred and viewing those costs in the context of the decision to approve or reject a CON project is misleading. Ultimately, the purpose and objective of the CON process is to minimize duplication of health care resources. The proposed rules work in conflict with that goal. Conversion of underutilized resources to resources that could be more beneficially utilized is a policy that is encouraged by HRS. This policy is encouraged in the various need methodologies. One of the reasons to encourage a conversion is that often zero dollars are involved to convert a project from one CON-approved use to another CON-approved use. Proposed Rules 10-5.008(1)(c)3 and (3)(b) would eliminate consideration of the minimal cost involved in a conversion project and are therefore unreasonable. Moreover, the proposed rules could end up creating excess resources in the system simply because they would eliminate the preference for conversion as opposed to new construction. With respect to allocating prior capital expenditures, the proposed rules, as alleged by HRS, are intended to codify existing HRS policy as well as provide uniformity to the process of ascertaining project costs. These proposed rules do neither. In point of fact, HRS has accepted, within the last three years, conversion projects indicating a zero project cost in the application. The proposed rules are thus inconsistent with current HRS policy of accepting and evaluating these applications and are contrary to HRS's stated intention in this proceeding. However, with respect to providing uniformity to the process of ascertaining project costs, the proposed rules provide no methodology by which prior capital cost allocations are to be determined. Indeed, there is no uniformity proposed regarding how a health care facility or applicant accounts for capital expenditures. Generally, a capital expenditure is one that is "material" and the useful life of the item capitalized exceeds one year. What is material to one applicant may be entirely different from that which would be material to another applicant. Thus, the uniformity of presentation of prior capitalized costs contained in CON applications submitted to HRS for review will not and cannot exist as envisioned by HRS in its proposed rules. 10-5.005(2)(e) Proposed Rule 10-5.005 relates to exemption from CON review and Subsection (2)(e) states as follows: (e) Failure to initiate the exemption within twelve months after it appears in the Florida Administrative Weekly will result in the notice of exemption being void. The alleged basis for this proposed rule is to protect those persons pursuing an exemption by ensuring that they are still eligible for it under the same facts and circumstances. Additionally, HRS has encountered problems in the past when entities have received a determination of exemption for a project but have failed to implement the project. In one case, HRS gave a nursing home an exemption to replace a facility on site. After discharging the patients, the nursing home took no further action. However, these beds are still licensed and are included in the bed inventory. Such a situation artificially suppresses the need for nursing home beds in that district for the planning horizon. The proposed rule is an attempted response to this problem. The laws implemented by the proposed rules are Section 381.706 and 381.713(1). Pursuant to these sections, HRS must grant an exemption if the applicant meets the statutory definitions. Further, if a project is exempt, it is not subject to review. Exemption requests may be made at any time and are not subject to batching requirements. Once a project is deemed to be exempt and not subject to review, HRS ceases to have jurisdiction over the project and HRS, accordingly, has no jurisdiction to void an exemption. 10-5.008(2)(f) Proposed Rule 10-5.008(2)(f) establishes a procedure for HRS and applicants to follow when a departmental need methodology does not exist for a proposed project. The proposed rule attempts to clarify for applicants how best to present themselves when applying for a project for which no methodology has been adopted in an existing rule. This is particularly useful to applicants in addressing the need component required by statute. Policy utilized but not yet adopted by HRS will be provided to applicants in addressing the need component required by statute; however, applicants are not bound by that policy and may tender their need calculations. This proposed rule gives credence to the fact that there may be different methodologies and allows applicants the opportunity to make all the necessary arguments to demonstrate the nature and extent of entitlement to a certificate of need. 10-5.0085(4) Proposed Rule 10-5.008(4) describes shared service arrangements and delineates the procedures applicants must follow to initiate or terminate a shared service. The part of the proposed rule challenged by FHA and the area on which it focused concerned the termination of a shared service arrangement. Proposed Rule 10-5.008(4) provides in pertinent part: (4)(a) The following factors are considered when reviewing applications for shared services where none of the applicants are currently authorized to provide the service: * * * Any of the parties providing a shared service may seek to dissolve the arrangement. This action is subject to review as a termination of service. If termination is approved by the department, all parties to the original shared service give up their rights to provide the service. Parties seeking to provide the service independently in the future must submit applications in the next applicable review cycle and compete for the service with all other applicants. * * * 6.b. The following factors are considered when reviewing applications for shared services when one of the applicants has the service: * * * e. Dissolution of a shared services contract is subject to review as a termination of service. * * * If termination is approved, the entity(ies) authorized to provide the service prior to the contract retains the right to continue the service. All other parties to the contract who seek to provide the service in their own right must request the service as a new health service and are subject to full Certificate of Need review as a new health service. (Emphasis added) The basis for requiring CON review for a termination of a shared service as delineated above is found in Section 381.706(2)(e), Florida Statutes (1989). If a shared service arrangement terminates, the party who originally had the service would retain the service. This is reasonable because the entity would have already been granted a certificate of need for the service, singularly offered. The party would be placed back in the same situation it was in prior to the shared service. Conversely, in situations where neither party originally had the service, the remaining parties would have to apply for the service in a batched review. This, too, is reasonable in that the service would no longer be shared and the ability to provide it singularly would be evaluated anew. Here, the party would also be placed back in the same situation it was in prior to the shared service. Additionally, a shared service arrangement (and approval of it) is based on certain benefits present within that arrangement. Upon termination the same benefits may not be present. The identity of the parties and their relationships to each other will have changed. Review at this point provides an applicant the opportunity to compete again to establish the service in its own right under a different set of circumstances, and it allows other providers to compete either for the service in their own right or through another shared arrangement. Such a policy is prudent because the very reason for the shared service was to produce benefits that were not otherwise obtainable singularly. Indeed, even FHA's own witness, Mr. Bebee, acknowledged that certain advantages to a shared services arrangement might not be present when such an arrangement terminates. 10-5.010(2) Proposed Rule 10-5.010(2) concerns what local health plan is to be used and addressed in a CON application, and it provides as follows: The applicable local health plan is the most current plan adopted by the appropriate local health council and which has been accepted and approved in writing by the Department at the time letters of intent are due or, if not accepted by the Department, as reviewed and commented on by the Department. The agency will provide to all prospective applicants those items of the local health plan which must be addressed in the application. HRS asserts that the purpose of this amendment to existing Rule 10- 5.010 is to assist applicants by identifying various components of the plan to which they should address their application and thereby maximize their time and effort and, ultimately, their chances for approval and that this proposed rule codifies current departmental practice of providing those items of the local health plan which must be addressed by the applicant. Contrary to HRS's assertion that this proposed rule is clarifying in nature, the rule in fact goes far beyond those parameters. "Reviewed and commented on by the Department" means that the local health council's adopted plan has been reviewed for consistency with existing need methodologies and has been commented on by HRS. HRS maintains that "commented on" does not mean verbal comments. The proposed rule does not, however, specify that only written comments were intended. Indeed, HRS admitted that the way the rule is drafted it takes into account oral as well as written comments. Statutorily, HRS is required to adopt as a rule the local health plans or portions thereof to be used in the CON review regulatory process. Local health plans generally contain allocation factors, preferences, and policies with respect to the particular district. Within the last several months, HRS has sought to adopt as a rule preferences and policies set forth in the various local health plans around the state of Florida. HRS withdrew those proposed rules. Proposed Rule 10-5.010(2) does not make reference to or account for the fact that the local health plans must be adopted as rules by HRS. HRS cannot circumvent statutory requirements by proposing that an applicant address "approved plans," nor can it require an applicant to address local health plans with which HRS is not in full agreement with the local health council as to whether the plan is consistent with statutory guidelines. Indeed, where HRS and the local health council are in disagreement, an applicant is pulled between HRS and the local council. This proposed rule allows HRS to simply reject the expressed wants of the local health council and to insert its own comments and views, thereby inserting itself into a province exclusively reserved to the local health councils. 10-5.020 Proposed Rule 10-5.020 involves addition of one sentence to the existing rule. The added language provides that HRS will issue a license to the CON holder in accordance with the CON and will not issue a license for fewer beds than the total on the CON. The proposed addition to this rule addresses a problem currently facing the Department, and it reflects a change in agency policy for HRS. Basically, the added language clarifies for an applicant or certificate of need holder that the Office of Licensure and Certification shall only issue a license consistent with the terms of the certificate of need. The proposed rule addition conforms to several health planning goals. First, it requires the implementation of a project in accordance with the certificate of need. Second, the language addresses HRS's current problem of need suppression by industry members. Third, it seeks to ensure uniform development of services. This proposed rule does not penalize hospitals who want to do phase-in type projects. On the contrary, the language seeks to ensure that needed beds and services will be implemented in the horizon year in accordance with the application and entitlement demonstrated by the applicant. Economic Impact Statement The Summary of the Estimate of the Economic Impact states in relevant part: The proposed amendments are expected to have no adverse impact either on existing and new applicants for certificate of need, or on small and minority businesses . . . . The Economic Impact Statement (EIS) addresses the cost to the agency of implementing the proposed rules, an estimate of the cost to persons directly affected by the proposed rules, an estimate of the impact of the proposed action on competition, a statement of the date and method used in making those estimates, and an analysis of the impact on small businesses as defined in the Florida Small and Minority Business Assistance Act of 1985. Specifically, the EIS states that the proposed rules "will have a minimal economic impact on current or future certificate of need applicants and the public at large." There is no competent, substantial evidence to establish with specificity the existence of any defects in the EIS which impaired the fairness of the rulemaking proceeding or the correctness of the agency actions related to the EIS.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED: 1. Proposed Rules 10-5.002(1) and (52), 10-5.004(2)(g), 10-5.008(2)(f), 10-5.0085(4), and 10-5.020 are valid. 2. Proposed Rules 10-5.002(13); 10-5.008(1)(c)3, (2)(d), and (3)(b); 10- 5.005(2)(e); and 10-5.010(2) are invalid exercises of delegated legislative authority. DONE and ORDERED this 10th day of October, 1990, in Tallahassee, Florida. DIANE K. KIESLING, 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 10th day of October, 1990. APPENDIX TO THE FINAL ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in these cases. Specific Rulings on Proposed Findings of Fact Submitted by Petitioners Venice Hospital and Adventist Each of the following proposed findings of fact is adopted in substance as modified in the Final Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 4(3); 5(5); 6(6); 10(14); 12(15 and 16); 15-17(25-27); and 19(28). Proposed findings of fact 1, 3, 7-9, 11, 13, 18, 21, 22, 24, and 25 are subordinate to the facts actually found in this Final Order. Proposed finding of fact 2 is unnecessary. Proposed findings of fact 14, 20, 23, and 26 are unsupported by the credible, competent, and substantial evidence. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner FHA Each of the following proposed findings of fact is adopted in substance as modified in the Final Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 4(7); 5(10); 6(11); 8-12(12- 16); and 13-17(19-23). Proposed findings of fact 2, 3, 18, 19, and 21-24 are subordinate to the facts actually found in this Final Order Proposed finding of fact 7 is unnecessary. Proposed finding of fact 20 is unsupported by the credible, competent, substantial evidence. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner Humana Each of the following proposed findings of fact is adopted in substance as modified in the Final Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 6(34, 35, and 38). Proposed findings of fact 2, 5, and 7-13 are subordinate to the facts actually found in this Final Order. Proposed findings of fact 1, 3, 4, and 14-19 are unnecessary. Specific Rulings on Proposed Findings of Fact Submitted by Petitioners NME and PIA Each of the following proposed findings of fact is adopted in substance as modified in the Final Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 2(34, 35, and 38); 3-6(39- 42); 8(53); and 9(54 and 55). Proposed findings of fact 1 and 7 are subordinate to the facts actually found in this Final Order. Proposed findings of fact 10 and 11 are irrelevant because these Petitioners dismissed their challenge to the EIS in the Stipulation of the parties admitted as Joint Exhibit 2. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner Sarasota Proposed findings of fact 1-4, 6, 7, and 13 are subordinate to the facts actually found in this Final Order. Proposed finding of fact 5 is unnecessary. Proposed findings of fact 17, 18, and 20 are unsupported by the credible, competent, and substantial evidence. Proposed findings of fact 8-12, 14-16, and 19 are irrelevant. Specific Rulings on Proposed Findings of Fact Submitted by Respondent HRS Each of the following proposed findings of fact is adopted in substance as modified in the Final Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1 and 2); 2(28); 3(46); 4(47-49); 5(51); 7(29); 8(32 and 33); 9(33); 11(8); 13(17); 14(18); 15(23); 16(23 and 24); 17(36); 19(37); 21(57); and 22(58). Proposed findings of fact unnumbered paragraph re: 10-5.005(2)(e); 10; 12; 18; 20; and unnumbered paragraph re: Economic Impact Statement are subordinate to the facts actually found in this Final Order. Proposed findings of fact 1A and 6 are unnecessary. Specific Rulings on Proposed Findings of Fact Submitted by Intervenor HCA DOCTORS Each of the following proposed findings of fact is adopted in substance as modified in the Final Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 6(30) and 7(31). Proposed findings of fact 2-5 are subordinate to the facts actually found in this Final Order. Proposed findings of fact 1 and 9-11 are unnecessary. Proposed findings of fact 8 is irrelevant. *NOTE: THIS RECOMMENDED ORDER'S EXHIBIT "A" [RULE 10-5.002, 10-5.004(2), 10-5.005(2), 10-2.008(1)(n), 10-5.008(5)(h), 10-5.010(2), 10-5.020] IS AVAILABLE FOR REVIEW IN THE DIVISION'S CLERK'S OFFICE. COPIES FURNISHED: Jeffery A. Boone, Attorney at Law Robert P. Mudge, Attorney at Law 1001 Avenida del Circo Post Office Box 1596 Venice, FL 34284 Kenneth F. Hoffman, Attorney at Law 2700 Blair Stone Road Post Office Box 6507 Tallahassee, FL 32314-6507 James C. Hauser, Attorney at Law 204-B South Monroe Street Tallahassee, FL 32301 C. Gary Williams, Attorney at Law Stephen C. Emmanuel, Attorney at Law Post Office Box 391 Tallahassee, FL 32302 Theodore C. Eastmoore, Attorney at Law 1550 Ringling Boulevard Post Office Box 3258 Sarasota, FL 34230 Robert A. Weiss, Attorney at Law John M. Knight, Attorney at Law The Perkins House, Suite 101 118 North Gadsden Street Tallahassee, FL 32301 Thomas R. Cooper, Attorney at Law Edward G. Labrador, Attorney at Law Department of Health and Rehabilitative Services 2727 Mahan Drive, Suite 103 Tallahassee, FL 32399-0700 John Radey, Attorney at Law Elizabeth W. McArthur, Attorney at Law Suite 1000, Monroe-Park Tower 101 North Monroe Street Post Office Drawer 11307 Tallahassee, Florida 32302 Donna H. Stinson Moyle, Flanigan, Katz, FitzGerald & Sheehan, P.A. The Perkins House--Suite 100 118 North Gadsden Street Tallahassee, Florida 32301 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Linda K. Harris Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Liz Cloud, Chief Bureau of Administrative Code Room 1802, The Capitol Tallahassee, Florida 32399-0250 Carroll Webb, Executive Director Administrative Procedures Committee Room 120, Holland Building Tallahassee, Florida 32399-1300
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
The Issue The issues under consideration concern the request by Petitioner, Brookwood-Jackson County Convalescent Center (Brookwood) to be granted a certificate of need for dual certification of skilled and immediate care nursing home beds associated with the second review cycle in 1987. See Section 381.494, Florida Statutes (1985) and Rule 10-5.011(1)(k) , Florida Administrative Code.
Findings Of Fact On October 5, 1987 Brookwood filed an application with HRS seeking to expand its facility in Graceville, Jackson County, Florida, one with 120 licensed beds and 30 beds approved effective June 12, 1986, to one with 30 additional beds for a total of 180 beds. Beds being sought in this instance were upon dual certification as skilled and intermediate nursing home beds. The nursing home is located in Subdistrict A to District II which is constituted of Gadsden, Holmes, Jackson and Washington counties. This applicant is associated with Brookwood, Investments, a Georgia corporation qualified to do business and registered in the State of Florida and other states in the southeastern United States. That corporation has as its principal function the development and operation of nursing homes and other forms of residential placement of the elderly. The actual ownership of the applicant nursing home is through a general partnership. Kenneth Gummels is one of two partners who own the facility. The Brookwood group has a number of nursing home facilities which it operates in the southeastern United States. Florida facilities that it operates are found in DeFuniak Springs, Walton County, Florida; Panama City, Bay County, Florida; Chipley, Washington County, Florida; Homestead, Dade County, Florida; Hialeah Gardens, Dade County, Florida, as well as the present applicant's facility. The applicant as to the beds which it now operates, serves Medicare, Medicaid, Veteran Administration, private pay and other third party pay patients. The number of Medicaid patients in the 120 licensed beds is well in excess of 90 percent. The ratio of Medicaid patients with the advent of the 30 approved beds was diminished. As to those beds, 75 percent were attributed to Medicaid. If the 30 beds now sought were approved, the projection is for 87 percent private pay and 13 percent Medicaid for those new beds. The nursing home administration feels that the new beds must be vied for under those ratios in order for it to continue to be able to serve a high number of Medicaid patients, an observation which has not been refuted by the Respondent. Nonetheless, if these beds are approved the percentage of Medicaid patients would be reduced to the neighborhood of 80 percent within the facility which compares to the approximately 81 percent experience of Medicaid beds within the district at present and the approximately 88 percent of Medicaid beds within the subdistrict at present. The cost of the addition of the 30 beds in question would be $495,000. Financial feasibility of this project has been stipulated to by the parties assuming that need is found for the addition of those beds. The basic area within the Florida panhandle wherein the applicant facility may be found, together with other facilities in the Florida panhandle is depicted in a map found at page 101 of Petitioner's Exhibit 1 admitted into evidence. This map also shows that a second licensed nursing home facility is located in Jackson County in Marianna, Florida, known as Marianna Convalescent Center. The applicant facility is directly below the Alabama-Florida border, immediately south of Dothan, Alabama, a metropolitan community. The significance of the relative location of the applicant's facility to Dothan, Alabama concerns the fact that since 1984 roughly 50 percent of its nursing home patients have been from out-of-state, the majority of those out-of-state patients coming from Alabama. Alabama is a state which has had a moratorium on the approval of new nursing home beds for eight years. The proximity of one of that state's relatively high population areas, Dothan, Alabama, has caused its patients to seek nursing home care in other places such as the subject facility. The applicant has encouraged that arrangement by its business practices. Among the services provided by the nursing home facility are physical therapy, physical examination and treatment, dietary services, laundry, medical records, recreational activity programs and, by the use of third party consultants, occupational and social therapy and barber and beauty services, as well as sub-acute care. The facility is adjacent to the Campbellton-Graceville Hospital in Graceville, Florida. The nursing home was developed sometime in 1978 or 1979 with an original complement of 90 beds expanding to 120 beds around 1983 or 1984. The Chamber of Commerce of Marianna, Florida had held the certificate of need upon the expectation that grant funds might be available to conclude the project. When that did not materialize, the County Commissioners of Jackson County, Florida sought the assistance of Brookwood Investments and that organization took over the development of the 90 beds. The original certificate holder voluntarily terminated and the Brookwood partnership then took over after receiving a certificate of need for Brookwood-Jackson County Convalescent Center. The nursing home in Marianna, Florida which is located about 16 miles from Graceville has 180 beds having undergone a 60 bed expansion several years ago. Concerning the Brookwood organization's nursing home beds in Florida, the Walton County Convalescent Center was a 100 bed facility that expanded to 120 beds at a later date and has received permission to expand by another 32 beds approved in the same review cycle associated with the present applicant. Gulf Coast Convalescent Center in Panama City, is a 120 bed facility of Brookwood. Brookwood also has the Washington County Convalescent Center in Washington County, in particular in Chipley, Florida which has 180 beds. That facility was expanded by 60 beds as licensed in October, 1987 and those additional beds have been occupied by patients. Brookwood has a 120 bed facility in Homestead and a 180 bed facility in Hialeah Gardens. With the exception of its two South Florida facilities in Homestead and Hialeah Gardens, recent acquisitions under joint ownership, the Brookwood group has earned a superior performance rating in its Florida facilities. No attempt has been made by this applicant to utilize the 30 beds which were approved, effective June 12, 1986. Its management prefers to await the outcome in this dispute before determining its next action concerning the 30 approved beds. The applicant asserted that the 30 beds that had been approved would be quickly occupied based upon experience in nursing home facilities within Subdistrict A to District II following the advent of nursing home bed approval. That surmise is much less valuable than the real life experience and does not lend effective support for the grant of the certificate of need in this instance. The waiting list for the 120 licensed beds in the facility has been reduced to five names. This was done in recognition of the fact that there is very limited patient turnover within the facility. Therefore, to maintain a significant number of people on the waiting list would tend to frustrate the sponsors for those patients and social workers who assist in placement if too many names were carried on the waiting list. At the point in time when the hearing was conducted, the facility was not in a position to accept any patients into its 120 licensed facility. This condition of virtually 100 percent occupancy has been present since about 1984 or 1985. The applicant has transfer agreements with Campbellton-Graceville Hospital and with two hospitals in Dothan, Alabama, they are Flower's Hospital and Southeast Alabama Medical Center. The applicant also has a transfer agreement with the Marianna Community Hospital in Marianna, Florida. The referral arrangements with the Alabama hospitals were made by the applicant in recognition of the proximity of those hospitals to the nursing home facility and the belief in the need to conduct its business, which is the provision of nursing home care, without regard for the patient origin. Early on in its history with the nursing home, Brookwood promised and attempted in some fashion to primarily serve the needs of Jackson County, Florida residents, but the explanation of its more recent activities in this regard does not portray any meaningful distinction between service to the Jackson County residents and to those from other places, especially Alabama. This reflects the concern expressed by Kenneth Gummels, owner and principal with the applicant nursing home, who believes that under federal law the nursing home may not discriminate between citizens in Florida and Alabama when considering placement in the nursing home. In this connection, during 1987 the experience within the applicant nursing home was to the effect that for every patient admitted from Florida five Florida patients were turned away. By contrast, to deal with the idea of priority of placing patients some effort was made by Gummels to explain how priority is still given to Jackson County residents in the placement for nursing home care. Again, in the end analysis, there does not seem to be any meaningful difference in approach and this is evidenced by the fact that the level of out-of-state patients in the facility has remained relatively constant after 1984. If there was some meaningful differentiation in the placement of Florida patients and those from out-of-state, one would expect to see a change in the number of patients from out-of-state reflecting a downward trend. As described, historically the experience which Brookwood has had with the facility occupancy rates is one of high utilization except for brief periods of time when additional beds were added at the facility or in the Marianna Nursing Home. At time of the application the primary service area for the applicant was Jackson County with a secondary service area basically described as a 25 mile radius outside of Graceville extending into Alabama and portions of Washington and Holmes Counties. As stated, at present the occupancy rate is as high as it has ever been, essentially 100 percent, with that percentage only decreasing on those occasions where beds come empty based upon transfers between nursing homes or between the nursing home and a hospital or related to the death of a resident. Those vacancies are filled through the waiting list described or through recommendations of physicians who have a referral association with the facility. The patients who are in the facility at the place of consideration of this application were 50 percent from Florida and 50 percent from out-of-state, of which 56 of the 60 out-of-state patients were formerly from Alabama, with one patient being from Ohio and three others from Georgia. More specifically, related to the history of out-of-state patients coming to reside in the nursing home, in 1984 basically 25 percent patients were from Alabama, moving from there into 1985 at 47 percent of the patient population from Alabama, in 1986 50 percent from Alabama, in 1987 48 percent from Alabama and in 1988 the point of consideration of the case at hearing the figure was 47 percent of Alabama patients, of the 50 percent patients described in the preceding paragraph. Of the patients who are in the facility from Florida, the majority of those are believed to be from Jackson County. Those patients who come to Florida from Alabama, by history of placement, seem to be put in the applicant's facility in Graceville as a first choice because it is closest to the Dothan, Alabama area. The next preference appears to be Chipley and the Brookwood nursing home facility in Chipley, and thence to Bonifay and then to other places in the Florida panhandle, in particular Panama City. In the Brookwood-Washington County facility at Chipley, Florida 35 percent of the patients are from Alabama which tends to correspond to the observation that the Alabama placements as they come into Florida are highest in Graceville and decrease in other places. This is further borne out by the experience in the Brookwood-Walton County facility at DeFuniak Springs, Florida which has an Alabama patient percentage of approximately 10 to 12 percent. When the nursing home facilities in Chipley and Bonifay received 60 additional beds each in October, 1987, they began to experience rapid occupancy in those beds as depicted in the Petitioner's Exhibit 1 at pages 228 through 230. The other facility in Jackson County, namely Jackson County Convalescent Center, within the last six months has shown an occupancy rate in excess of 98 percent, thereby being unavailable to attend the needs of additional Jackson County patients who need placement and other patients within the subdistrict. This same basic circumstance has existed in other facilities within Subdistrict A to District II. When the applicant is unable to place patients in its facility it then attempts placement in Chipley, Bonifay, DeFuniak Springs, and Panama City, Florida, and from there to other places as nearby as possible. The proximity of the patient to family members and friends is important for therapeutic reasons in that the more remote the patient placement from family and friends, the more difficult it is for the family and friends to provide support which is a vital part of the therapy. Consequently, this is a significant issue. Notwithstanding problems in achieving a more desirable placement for some patients who must find space in outlying locales, there was no showing of the inability to place a patient who needed nursing home care. Most of the Alabama referrals are Medicaid referrals. Those patient referrals are treated like any other resident within the nursing home related to that payment class for services. Effectively, they are treated in the same way as patients who have come from locations within Florida to reside in the nursing home. Notwithstanding the management choice to delay its use of the 30 approved beds dating from June 12, 1986, which were challenged and which challenge was resolved in the fall, 1987, those beds may not be ignored in terms of their significance. They must be seen as available for patient placement. The fact that the experience in this service area has been such that beds fill up rapidly following construction does not change this reality. This circumstance becomes more significant when realizing that use of the needs formula for the project at issue reveals a surplus of 19 beds in Subdistrict A to District II for the planning horizon associated with July, 1990. See Rule 10-5.011(1)(k), Florida Administrative Code. The 19 bed surplus takes into account the 30 approved beds just described. Having recognized the inability to demonstrate need by resort to the formula which is found within the rule's provision referenced in the previous paragraph, the applicant sought to demonstrate its entitlement to a certificate through reference to what it calls "special circumstances." Those circumstances are variously described as: Patient wishing to be located in Jackson County. Lack of accessibility to currently approved CON beds. High rate of poverty, Medicaid utilization and occupancy. Jackson County Convalescent Center utilization by out-of- state patients. The applicant in asking for special relief relies upon the recommendation of the Big Bend Health Council, District II in its health plan and the Statewide Health Council remarks, whose suggestions would modify the basis for calculation of need found in the HRS rule with more emphasis being placed on the adjustment for poverty. Those suggestions for health planning are not controlling. The HRS rule takes precedence. Consequently, those suggestions not being available to substitute for the HRS rule, Petitioner is left to demonstrate the "special circumstances" or "exceptional circumstances" in the context of the HRS rule and Section 381.494(6), Florida Statutes (1985). Compliance per se with local and statewide planning ideas is required in the remaining instances where those precepts do not conflict with the HRS rule and statute concerning the need calculations by formula. Turning to the claim for an exception to the rule on need, the first argument is associated with the patient wishing to be located in Jackson County. This would be preferable but is not mandated. On the topic of this second reason for exceptions to the need formula, the matter is not so much a lack of accessibility to currently approved CON beds as it is an argument which is to the effect that there are no beds available be they licensed or approved. This theory is not convincing for reasons to be discussed, infra. Next, there is an extremely high rate of poverty in District II. It has the highest rate of poverty in the state. Moreover Subdistrict A to District II has an even greater degree of poverty and this equates to high Medicaid use and contributes to high occupancy. This coincides with the observation by the Big Bend Health Council when it takes issue with the HRS methodology rule concerning recognition of the significance of poverty within the HRS rule and the belief by the local health council that given the high poverty rates in District II some adjustments should be made to the need formula in the HRS rule. Under its theory, 161 additional beds would be needed at the planning horizon for July 1990 in Subdistrict A. Concerning the attempt by the applicant to make this rationalization its own, the record does not reflect reason to defer to the Big Bend Health Council theory as an exception to the normal poverty adjustment set forth in the HRS rule. When the applicant describes the effects of the out-of-state patients, in particularly those from Alabama in what some have described as in-migration, it argues that Rule 10-5.011(1)(k), Florida Administrative Code makes no allowance for those influences. The applicant chooses to describe these beds, the beds used by out-of-state residents, as unavailable or Inaccessible. This concept of inaccessibility is one which departs from the definition of inaccessibility set forth at Rule 10-5.011(1)(k)2.j., Florida Administrative Code. The specific exception to the requirement for compliance with the numeric need methodology in demonstration of a net need is set forth in that reference, and the proof presented did not show entitlement to the benefits of that exception. That leaves the applicant arguing in favor of recognition of its entitlement to a certificate of need premised upon a theory not specifically announced in that reference. This is the in-migration idea. It ties in the basic idea of poverty but does not depend on rigid adherence to the Big Bend Health Council idea of a substitute element in the HRS needs formula related to poverty. It also promotes the significance of problems which a number of physicians, who testified by deposition in this case, observed when attempting to place patients in the subject nursing home and other nursing homes in the surrounding area. They found high occupancy rates in the present facility and others within Subdistrict A to District II. These problems with placement as described by the physicians can have short term adverse effects on the patient and the family members, but they are not sufficient reason to grant the certification. In considering the formula for deriving need as promulgated by HRS, the proof does not seem to suggest that the nursing home residents themselves who came from out-of-state are excluded from the population census for Florida. On the other hand, unlike the situation in Florida in which the population at large is considered in trying to anticipate future nursing home bed needs, it make no assumptions concerning the Alabama population at large. Ultimately, it becomes a question of whether this unknown factor, given the history of migration of patients from Alabama into Florida and in particular into the subject nursing home, together with other relevant considerations, may properly form the basis for granting the certificate of need to the applicant. It is concluded that there is a fundamental difference in the situation found within this application compared to other planning areas within Florida which do not have to contend with the level of poverty, the proximity to Alabama and the advent of Alabama placements in this nursing home, the high occupancy rates in the subdistrict and the resulting difficulty in placement of patients near their homes. Posed against this troublesome circumstance is the fact that the applicant has failed to use its 30 approved beds or to make a decision for such use, that it had invited and continues to invite the placement of Alabama residents through the referral arrangements with the two Dothan, Alabama hospitals, realizing that such an arrangement tends to exclude opportunities for Florida residents to some extent, and the recognition that patients are being placed; that is patients are not going without nursing home care. The two Alabama hospitals with whom the applicant has referral agreements provide a substantial number of the patients who are admitted. This recount acknowledges what the ownership considers to be their obligation in law and morally to serve the interest of all patients without regard for their home of origin; however, the thrust of the certificate of need licensing process in Florida is to develop the apparatus necessary to service the needs of Florida residents, not Alabama residents. This does not include the necessity of trying to redress the circumstance which appears to exist in Alabama in which the government in that state is unable or unwilling to meet the needs of its citizens. On balance, the applicant has not demonstrated a sufficient reason to depart from the normal requirements of statute and rule, which departure would have as much benefit for Alabama residents as it would for Florida Residents. Contrary to the applicant's assertions it could legitimately de-emphasize its association with Alabama. It has chosen not to and should not be indulged In this choice in an enterprise which is not sufficiently related to the needs of Florida residents to condone the licensure of the beds sought, even when other factors described are taken into account. The applicant has also alluded to a certificate of need request made by Walton County Convalescent Center, a Brookwood facility in District I which sought a certificate of need in the same batch which pertains to the present applicant. The application and the review and comment by HRS may be found within Composite Exhibit 2 by the Petitioner admitted as evidence. Petitioner asserts that the Walton County experience in which 32 beds were granted is so similar to the present case that it would be inappropriate for the agency to act inconsistently in denying the present applicant after having granted a certificate of need to the Walton County applicant. Without making a line-by- line comparison, it suffices to say that in many respects these projects are similar. In other respects they are not. On the whole, it cannot be found that the agency is acting unfairly in denying the present applicant while granting a certificate to the applicant in the Walton County case. The differences are substantial enough to allow the agency to come to the conclusion that the present applicant should be denied and the applicant in Walton County should have its certificate granted. Likewise, no procedural impropriety on the part of HRS in its review function has been shown.
The Issue Whether Respondent should be administratively fined a total of $3,350.00 for alleged violations of Chapter 400, Florida Statutes and Department of Health and Rehabilitative Services rules regulating the operation of nursing homes.
Findings Of Fact At all times pertinent to the charges, Respondent Y & S Partnership was licensed to operate Manhattan Convalescent Center, a nursing home located at 4610 South Manhattan Avenue, Tampa, Florida. I. Fiscal Discrepancies DHRS alleges that on March 29, 1982, an inspection of the nursing home revealed: (1) unexplained large debit and credit balances in the patient trust funds: (2) accounts receivable credit balances were not being set aside in interest bearing accounts for future disbursements; and (3) patient trust funds did not reconcile. The parties stipulate that applicable DHRS rules require nursing homes to use a recognized accounting system which accurately reflects details of the business, including patient trust funds. Nursing homes must also be administered on a sound financial basis consistent with good business practices, and the administrator must be responsible for compliance with Chapter 400, Florida Statutes, and DHRS rules. Sections 10D-29.33(4), 10D-29.48(1), Fla. Admin. Code. Section 400.162(4), Florida Statutes, requires nursing homes to keep complete and accurate records of all funds and property of its patients received for safekeeping and, in the event of a patient's death, all trust funds of the patient must be placed in an interest bearing account until disbursed. Section 400.141(7), requires fiscal records to be kept which are sufficient to provide information required by the statute. Patient trust funds are personal funds belonging to the patient, often consisting of the patient's social security allowance which the nursing home holds in trust for the patient. The nursing home maintained these funds in a local bank checking account and maintained separate accounting records for each patient. (Testimony of La Paz) Credit balances in patient trust fund accounts are, in effect, overdrafts by the patients on their accounts. This can occur when services are rendered to a patient without first determining that there are sufficient funds in the account to cover the charge. (Testimony of La Paz) On March 29, 1983, the nursing home had six patients with debit or credit balances in the patient trust fund account: (1) female patient A.B., received a permanent on June 6, 1980, and on November 26, 1980, later died or was discharged before the nursing home could collect this overdraft; (2) female patient E.H., received a haircut on October 21, 1980, but was discharged on January 5, 1981, before the nursing home could collect the overdraft; (3) female patient B.M., resided at the nursing home as patient No. 1552. Some deposits on her behalf were posted on the aged trial balance ledger, but not on the patient trust fund ledger. The aged trial balance, at all times, correctly reflected the status of this patient's funds held by the nursing home, and there was no overdraft after the patient died; (4) female patient P.T. died on April 21, 1982. But the federal government insisted that she died, instead, on March 26, 1982 and deducted from the nursing home's payment the difference in health care payments for the time in dispute. After failing to resolve the problem, the nursing home accepted this deduction as a business loss rather than carry on an extended dispute with the federal government; (5) no records could be found for patient W., but, apparently a small service was rendered and the patient was discharged before the $5.00 payment could be recovered. (Testimony of La Paz, Reynolds; R-2, R-3, R-5, R-6) The DHRS consultant who conducted the March 29, 1982 survey of the nursing home did not determine, and DHRS has not shown, whether, and to what extent, there were patient trust fund credit balances or account receivable credit balances which should have been, and were not, kept in interest bearing accounts. A comparison of the nursing home's patient trust fund ledgers with trust account records indicate that the trust funds ledger did not reconcile the bank account balance on November 30, 1981. There is, however, no evidence that this account did not reconcile on March 29, 1982, when the DHRS survey was conducted, and the violation is alleged to have occurred. (P-4) On or about April 12, 1982, the DHRS consultant met with various bookkeeping personnel of the nursing home and gave them until May 31, 1982, to update and correct the fiscal records. The evidence is insufficient to establish that the nursing home did not maintain reasonably accurate fiscal records in a recognized system of accounting, that it was not administered on a sound financial basis consisting with good business practices or that the trust account records were incomplete and inaccurate on March 29, 1982. The charge having not been sustained, no fine is warranted. II. Diet and Food Services DHRS alleges that on or about May 4, 1982, the nursing home failed to follow its own policies and procedures for serving diabetic diets because: (1) small servings listed on the diet tray cards received a regular serving of potato and bread; (2) large servings listed on a diet tray cards did not receive double portions; and (3) therapeutic or modified diets were not served as ordered in that ham was incorrectly served on low fat and no salt diets and a pureed large-serving diet received only one dessert. DHRS asserts that these are violations of DHRS rules describing the responsibilities of a dietary services supervisor and requiring that all diets shall be prescribed by the physician in the patient's medical record and shall be served as ordered. Sections 10D-29.110(3)(b)(4), and (e)(1), Fla. Admin. Code. Also, DHRS asserts a violation of Section 400.141(5), Florida Statutes, which requires nursing homes providing food service to furnish therapeutic diets as prescribed by attending physicians. On or about May 4, 1982, Emily Echols, a DHRS dietician, inspected the nursing home. She visited the kitchen and dining room, and observed meals being served. In accordance with the nursing home's policy and procedures, each patient has a diet card which accompanies the food service trays and specifies the type and amount of food to be served. The information on the tray card originates with the patient's attending physician. Miss Echols noted several discrepancies between the diet instructions on the food tray cards and the food actually served. Tray cards, based on doctors' orders, require that at least four patients--E.B., N.C., V.C., and M.M. (P-8, 9, 10, 11) receive large or double portions of food. These patients received, instead, no more food than the patients on regular diets. At least one patient, G.S. (P-7) was required to receive a small, low calorie diet but was served, instead, a regular size meal. (Testimony of Echols) Two patients, O.W. and L.R., were required to be served special or modified diets. One was to receive a low salt, pureed diet, the other, low fat. Instead, both patients received sliced ham as a main course, a food which complies with neither requirement. (Testimony or Echols, P-5, P-6) The evidence does not establish that any of the patients who received meals at variance with their food tray cards were diabetic and subject to the portion of the nursing home's policy and procedure manual relating to diabetic diets. Thus, DHRS has not proven that these food servings violated the nursing home's policy and procedure for serving diabetic diets. Violations of Section 400.141(5), Florida Statutes, and Rule 10D-29.110(3)(e)1, have, however, been established. DHRS' request that a $500.00 fine be imposed is reasonable and appropriate. III. Recording of Food and Fluid Intake DHRS alleges that on or about May 4, 1982, the food and fluid intake of patients in need of monitoring was sporadically recorded in that intake and output had been documented on only five shifts in February, 1982; and that on May 4, 1982, patients were observed with concentrated urine in catheter bags. DHRS asserts that this violates rules requiring nursing homes to provide nursing care which includes maintenance of adequate hydration and documentation of medications, treatments, and services rendered patients, Sections 10D-29.108(5)(b)3, 10D- 29.118(6)(b), Florida Administrative Code, and Sections 400.022(1)(q) and 400.141, Florida Statutes requiring that adequate and appropriate health care be provided and complete medical records maintained. Marcia Winne, a registered nurse employed by DHRS, surveyed the nursing home in February, March, and May, 1982. During the February and March surveys, she concluded that the intake and output of fluids of some patients were not properly recorded. With respect to the recording deficiencies noted in the February and March, 1982, surveys, Miss Winne testified about in- patient--C.K. She did not know whether daily worksheets had been kept on C.K. and could not say whether C.K. received adequate hydration during those two months. (Winne stip.) Patient C.K. was a renal (kidney) failure patient. Doctors' orders required the nursing staff to force her to drink 2,000 cc of liquid daily. But her medication administration file indicated that her fluid intake and output had been recorded on only five shifts in February. There were no 24-hour totals. Inaccurate recording of intake and output with a renal failure victim is a serious nursing omission. On March 29, 1982, Miss Winne again inspected patient C.K.'s medical file. Her intake and output was still not being documented consistently. (Winne stip.) There is no evidence that Miss Winne found that medical services were not being documented during her May 4, 1982, survey. She testified that, in her opinion, that the nursing home had corrected its problems in recording intake and output of fluids and now has a good working system for recording medical services rendered to patients. (Winne stip.) No evidence was presented concerning concentrated urine in catheter bags alledegly observed during the March 9, 1982 survey. Since the March, 1982, survey, there is no evidence that the nursing home failed to maintain adequate hydration for its patients. The medication record for C.K. documents all medications, treatments, and services rendered to her in April, 1982. (Haffner stip.; R-9) DHRS has convincingly established that in February and March, 1982, the nursing home violated Rule 10-D29.118(6)(b), Florida Administrative Code and Section 400.141(6), Florida Statutes by failing to fully document medical services rendered to patients. Such a deficiency may adversely affect the health and welfare of nursing home patients. DHRS' request that a $500.00 fine be levied is reasonable. IV. Asepetic Techiniques With Treatment Cart DHRS alleges that on May 4, 1982, aseptic techniques were not followed in that the treatment cart taken from room to room contained both clean and soiled items. This allegedly violates DHRS rules requiring that policies and procedures developed by nursing homes' infection and control committees include, at a minimum, methods for maintaining sanitary conditions with respect to patient care. Section 10D- 29.123(3)(a)8, Fla. Admin. Code. DHRS also asserts a violation of Section 400.141(4), Florida Statutes, requiring nursing homes to conduct their operations in a safe and sanitary manner. During her May 4, 1982, survey of the nursing home, nurse Winne observed a nurse change dressings on the wounds of two patients. She was critical of the manner in which the dressings were changed and believed that other patients were unnecessarily exposed to bacterial infection. Her testimony, however, does not establish that the nurse erred by using a treatment art which contained both clean and soiled items. (Winnie stip.) Prior to May, 1982, the nursing home's infection control committee had adopted policies and procedures governing methods for maintaining sanitary conditions in patient care practices. These policies covered the use of aseptic techniques in connection with utilization of treatment carts. (Haffner stip,; Roth stip.) There is no evidence that the nursing home staff failed to follow the policies and procedures governing the use of treatment carts. Neither has it been established that the policies developed by the infection control committee were deficient or failed to include, at a minimum, methods for maintaining sanitary conditions in patient care practices. The charges having not been proved, no fine is warranted. V. Forced Fresh Air Ventilation DHRS alleges that on May 4, 1982, ventilation--through individual units-- was not provided to all rooms and spaces in that five air conditioning units were inoperative. This allegedly violates Rule 10D-29.121(5)(e), requiring that forced fresh air ventilation be provided to all rooms and spaces, and Section 400.141(4), Florida Statutes, requiring nursing homes to maintain their equipment and conduct their operations in a safe and sanitary manner. On May 4, 1982, the nursing home had 92 window room air conditioning/heating units and individual units for each bathroom. There were two 7 central air conditioning units for the corridors, dining room, and T.V. room. Station One had a 4- ton unit, Station Two had a 3-ton unit, Station Three had a 4-ton unit, and Station Four had a 3-ton and a 4-ton unit. In addition, there were 12 roof ventilators. (Testimony of Rainey) Because of the open area in the nursing home, air flows freely between rooms and hallways and from one hallway to another. Because of this free air movement, fresh forced air is provided to all rooms and spaces in the nursing home. Even if an individual room air conditioning unit is inoperative or removed for repairs, the room received fresh forced air from the corridor and, ordinarily, remains comfortable. (Testimony of Rainey) The nursing home operates a regular maintenance program for its air conditioning units which includes a weekly check of every unit, and replacement of any unit which is inoperative. Repairs are made as quickly as possible and frequently used replacement parts are kept in stock. With this many individual air conditioning units, it is reasonable to expect a five percent failure rate. (Testimony of Rainey) On May 4, 1982, the nursing home either had no air conditioners or had inoperative air conditioners in the women's shower area, Wing One; the craft room; room 199, the isolation room; room 321, Wing Three; the shower room, Wing Four; room 426; and room 414. There is no evidence, however, that the temperature in these rooms was uncomfortable or that the temperature in these rooms was uncomfortable or that they did not receive forced fresh air ventilation. The evidence, therefore, does not substitute the charges and no fine is warranted. VI. Documentation of Intake and Output DHRS alleges that on May 7 and 9, 1982, eight of eleven medical records lacked documentation of intake and output during the 3:00 P.M. to 11:00 P.M. shift. This, DHRS contends, violates rules requiring that nursing care include maintenance of adequate hydration and documentation of all medications, treatment, and services rendered; and Sections 400.022(1)(g) and 400.141, Florida Statutes, which grant patients the right to receive adequate health care and support services and require the keeping of complete medical records. See, Sections 10D-29.108(5)(b)3; 10D-29.118(6)(b), Fla. Admin. Code. No evidence was presented establishing inadequate documentation of patient fluid intake and output on May 7, 1982. Patient records were reviewed only for May 8 and 9, 1982. While DHRS nurse Finger found approximately eight patient files which did not contain documentation of fluid intake and output, she did not review the physicians' orders in those cases and did not know whether documentation of these patients fluid intake and output was required. (Testimony of Finger, P-21) There is no evidence that any of these patients lacked adequate hydration. The charges having not been proven, no fine is warranted. VII. Aseptic Techniques Relating to Wound Dressings DHRS alleges that on May 10, 1982, effective aseptic techniques were not followed in that four patients were left with wet wound dressings from early morning baths or excessive draining--one until 11:00 A.M. and three until 12:30 P.M. It is also alleged that during one dressing change, a housekeeper entered the room mopping the floor. This DHRS contends, violates Rule 10D-29.108(5)(b)1, requiring that nursing care include personal hygiene to maintain healthy skin, promote patient comfort, and prevent infection; and violates Rule 10D- 29.123(3)(a)8, requiring that policies and procedures of an infection control committee include methods for maintaining sanitary conditions in patient care; and violates Section 400.022(1)(g) and 400.141, Florida Statutes, requiring that patients receive adequate health care, and that operations be conducted in a safe and sanitary manner. During her May 10, 1982, inspection of the nursing home, DHRS nurse Finger observed four patients receiving or about to receive decubitus care; their dressings appeared to be wet from early morning baths or excessive drainage. She was unaware, however, how long the dressings had been in that condition, but, she was told that patients would receive showers, then--later-- when time was available, dressings would be changed. During this inspection, nurse Finger also observed a housekeeper enter a room mopping the floor while a nearby patient's wound dressing was being changed. If dirty mop water was accidentally splashed on the wound, the risk of infection would be increased. (Testimony of Finger) Similarly, the failure to remove dressings prior to or immediately after the morning baths risked the spread of infection and contamination of the wounds. The infection control committee's policy and procedures required dressings to be changed immediately after morning showers. (Haffner stip, Testimony of Winne) On May 10, 1982, the nursing home experienced a staff shortage which may have contributed to the delay in changing the dressings. One nurse and four nurses aides did not report for work that morning. (Haffner stip) Although DHRS failed to prove that the infection control procedures did not include methods for maintaining sanitary conditions in patient care, it did prove that, at least in four instances on May 10, 1982, the nursing home violated Rule 10D-29.108(5)(b)1, and Sections 400.022(1)(g) and 400.141, Florida Statutes, by failing to provide nursing care which prevents and controls the spread of infection. This deficiency has a direct relationship to the health and welfare of nursing home patients. DHRS' assertion that a $500.00 fine should be imposed is both reasonable and appropriate. VIII. Patient Trust Funds DHRS alleges that the nursing home's patient trust funds were not reconcilable on June 7 and 8, 1982, and that they remained unreconcilable during a follow-up visit on July 9, 1982. This, it contends, violates rules requiring that fiscal records be maintained in accordance with the requirements of Chapter 400, Florida Statutes, and Chapter 10D-29, Florida Administrative Code; and requiring that the nursing home administrator be responsible for maintaining written records in a place, form, and system ordinarily employed in acceptable medical and business practices. These records must be available in the nursing home for inspection. Sections 10D-29.104(1)(e); 10D-29.105(5)(d), (h); 10D-29.104(6)(a), Fla. Admin. Code. DHRS also alleges a violation of Section 400.162(4), Florida Statutes, which required that nursing homes keep complete and adequate records of all funds and property of its residents received by it for safekeeping. On June 7 and 8, 1982, Jack Fullerton, a DHRS hospital consultant, reviewed the nursing home's patient trust fund accounts and found a cash overage: the bank trust account records did not reconcile with the fiscal records kept by the nursing home. He gave the nursing home until July 8, 1982, to correct this discrepancy in its records. (Testimony of Fullerton, P-15) When he returned on July 9, 1982, the deficiency was still not corrected. Although some alleged violations were not proven, DHRS did establish that Rule 10D-29.104(1)(e) and Section 400.162(4), Florida Statutes, were violated in that the nursing home did not keep complete and accurate records of all funds of its residents held by it for safekeeping. This deficiency continued beyond the time allowed for its correction. A fine of $150.00 is appropriate. IX. Patients' Right to Privacy DHRS alleges that on June 7 and 8, 1982, the patients' right to privacy was jeopardized by lack of adequate curtains in the shower rooms and lack of proper clothing for patients who periodically exposed themselves and that this deficiency was not corrected by the July 9, 1982, follow-up visit. This, allegedly, constitutes a violation of rules requiring nursing homes to operate in compliance with Chapter 400, Florida Statutes, and Chapter 10D-29, Florida Administrative Code, and requiring ceiling mounted tracks and cubicle curtains for privacy at each bed in multiple occupancy patient bedrooms. DHRS also alleges a violation of Section 400.022(1)(h), Florida Statutes, guaranteeing patients the right to privacy in treatment and care. During her June 7 and 8, 1992, survey, nurse Winne noted that there were no shower curtains on any of the shower stalls in the nursing home. These shower rooms were multi- purpose rooms, containing three or four showers, tubs, sinks, and toilets. Shower stalls were at the far end of the room; toilets and sinks were adjacent to the opposite wall. Without shower curtains, patients using toilets could observe exposed patients taking showers. (Winne stip.) Nurse Winne gave the nursing home until July 8, 1982, to install shower curtains. On her July 9, 1982, return visit, the shower curtains were not yet installed. Subsequently, on August 4, 1982, the nursing home received and installed the shower curtains. (Winne stip., Roth stip.) Of the various charges, DHRS proved only that the nursing home violated Rule 10D-29.104(1)(e) and Section 400.022(1)(h) which guarantees patients the right to privacy in treatment and care. A fine of $150.00 is appropriate. X. DHRS alleges that on June 7 and 8, 1982, the "aged" trial balance of accounts receivable as of May 31, 1982, indicated that refunds due patients were not made in a timely manner, and that by July 9, 1982, this deficiency had not been corrected. This allegedly constitutes a violation of rules requiring nursing homes to be responsible for operating in compliance with and maintaining fiscal records in accordance with Chapter 400, Florida Statutes, and Chapter 10D-29, Florida Administrative Code, and requiring nursing home administrators to be to be responsible for maintaining written records in a place, form, and system ordinarily employed in acceptable medical and business practices. Sections 10D-29.104(1)(e), 10D- 29.104(5)(d)(h), 10D-29-104(6)(a), Fla. Admin. Code. DHRS also contends that this violates Section 400.162(4), Florida Statutes, which requires nursing homes to keep complete and accurate records of its patient funds received for safekeeping. The nursing home's "aged" trial balance, as of May 31, 1982, indicated that approximately 44 discharged patients had not received refunds to which they were entitled; credit balances dated back to February 12, 1979. (Testimony of Fullerton, P-18, P-19, P-20) The nursing home's policy and admission contracts provided that refunds on unearned rental would be made only on request. The nursing home's records indicate that on each occasion a refund was requested, a refund was made. (Testimony of La Paz) In response to DHRS criticism, the nursing home prepared a letter dated July 29, 1982, which explained all refunds as of May 31, 1982. The nursing home subsequently made refunds to 25 patients, although these patients did not request them. As of July 29, 1982, DHRS was satisfied with the nursing home's correction of this perceived deficiency. (Testimony of La Paz, Fullerton, P-20) The alleged violations have not been substantiated by the evidence. No fine is therefore warranted.
Recommendation Based on the foregoing, it is RECOMMENDED: That Respondent be assessed an administrative fine of $1,800.00 for multiple violations of Chapter 400, Florida Statutes, and Chapter 10D-29, Florida Administrative Code. DONE AND ENTERED this 19th day of August, 1983, in Tallahassee, Florida. R. L. CALEEN, JR., 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 August, 1983.
