The Issue The issues are thus whether the acts and omissions charged occurred, whether they constitute violations of Section 400.022(1)(j) and 400.141, Florida Statutes, and related rules, and whether an administrative fine is appropriate pursuant to 400.102(c) and Section 400.121, Florida Statutes. Upon the commencement of the hearing, the petitioner moved to amend paragraph 8 of its Complaint, so that the date "March 4" would read March 14." The motion was granted on the basis that there was only a clerical error involved and paragraph 8 correctly alleges that there-was a nursing staff shortage from February 20 to March 14, 1980. Eight witnesses were called by the Petitioner, and two by the Respondent. Ten exhibits were adduced as evidence. The Respondent has submitted and requested rulings upon ninety-five proposed findings of fact. In that connection, all proposed findings, conclusions, and supporting arguments of the parties have been considered. To the extent that the proposed findings and conclusions submitted by the parties, and the arguments made by them, are in accordance with the findings, conclusions and views stated herein they have been accepted, and to the extent such proposed findings and conclusions of the parties, and such arguments made by the parties, are inconsistent therewith they have been rejected.
Findings Of Fact Manhattan Convalescent Center is a nursing home facility located in Tampa and licensed by the Department of Health and Rehabilitative Services. On January 22, February 20, February 25, March 3, March 6, and March 14, 1980, a number of Department employees representing the Department's medical review team, and the Office of Licensure and Certification, consisting of registered nurses, hospital consultants and Department surveillance team members, made inspections of the Respondent's facility for the purpose of ascertaining whether the premises, equipment and conduct of operations were safe and sanitary for the provision of adequate and appropriate health care consistent with the rules promulgated by the Department and whether minimum nursing service staff standards were being maintained. Thus, on January 22, 1980 a member of the medical review team, witness Maulden, observed a rat run across the floor in one of the wings of the nursing home facility. On February 20, Muriel Holzberger, a registered nurse and surveyor employed by the Petitioner, observed rodent droppings in one of the wings of the facility and on February 20, March 12 and March 14, 1980, numerous roaches were observed by various employees of the Department making inspections throughout the facility. On February 20, 1980 strong urine odors were present on the 200, 300 and 400 wings of the facility as well as in the lobby. The odor was caused by urine puddles under some patients' chairs in the hallway, wet sheets, and a spilled catheter. On February 20 and 25, 1980 the grounds were littered with debris and used equipment, the grass and weeds on the grounds needed cutting and there was a build up of organic material, food spills and wet spots on the floors. The Respondent's witness, Ann Killeen, as well as the Petitioner's hospital consultant, Joel Montgomery, agreed that a general state of disrepair existed at the Respondent's facility, consisting of torn screens, ill fitting exterior doors with inoperative or missing door closers and missing ceiling tile. Interior and exterior walls were in need of repair and repainting. Additionally, eleven bedside cords for the nurse paging system were cut, apparently by patients, and on February 25, 1980, a total of 36 nurse paging stations were inoperative. A substantial number of these cords were cut by a patient (or patients) with scissors without the knowledge of the Respondent and steps to correct the condition were immediately taken. On January 22, 1980 Petitioner's representatives, Mary Maulden and Alicia Alvarez, observed a patient at the Respondent's facility free himself from physical restraints, walk down the hall and leave the facility. A search for nursing staff was made but none were found on the wing. After three to five minutes the Assistant Director of Nurses was located and the patient was apprehended. Nurse Alvarez's testimony revealed that the Respondent's nursing staff was in and out of, and working in that wing all that morning except for that particular point in time when the patient shed his restraints and walked out of the facility. On March 3, 1980 Department employee, William Musgrove, as part of a surveillance team consisting of himself and nurse Muriel Holzberger, observed two patients restrained in the hall of the facility in chairs and Posey vests, which are designed to safely restrain unstable patients. The witness questioned the propriety of this procedure, but could not establish this as a violation of the Respondent's patient care policies required by Rule 10D-29.41, Florida Administrative Code. The witness reviewed the Respondent's written patient care policy required by that Rule and testified that their policy complied with it and that the policy did not forbid restraining a patient to a handrail in the facility as was done in this instance. The witness was unable to testify whether patients were improperly restrained pursuant to medical orders for their own or other patients' protection. A hospital consultant for the Department, Bill Schmitz, and Marsha Winae, a public health nurse for the Department, made a survey of the Respondent's facility on March 12, 1980. On that day the extensive roach infestation was continuing as was the presence of liquids in the hallways. On February 20, 1980 witness Joel Montgomery observed a lawn mower stored in the facility's electrical panel room which is charged as a violation in paragraph 3 of the Administrative Complaint. The lawn mower was not shown to definitely contain gasoline however, nor does it constitute a bulk storage of volatile or flammable liquids. Nurse Holzberger who inspected the Respondent's nursing home on February 20, February 25, March 3 and March 6, 1980, corroborated the previously established roach infestation and the presence of strong urine odors throughout the facility including those emanating from puddles under some patients' chairs, the soaking of chair cushions and mattresses and an excess accumulation of soiled linen. Her testimony also corroborates the existence of 36 instances of inoperative nurse paging devices including the 11 nurse calling cords which had been cut by patients. This witness, who was accepted as an expert in the field of proper nursing care, established that an appropriate level of nursing care for the patients in this facility would dictate the requirement that those who are incontinent be cleaned and their linen changed more frequently and that floors be mopped and otherwise cleaned more frequently. Upon the second visit to the facility by this witness the nurse call system had 9 paging cords missing, 11 cords cut, and 15 of the nurse calling devices would not light up at the nurses' station. This situation is rendered more significant by the fact that more than half of the patients with inoperative nurse paging devices were bedridden. On her last visit of March 6, 1980 the problem of urine puddles standing on the floors, urine stains on bed linen, and resultant odor was the same or slightly worse than on the two previous visits. An effective housekeeping and patient care policy or practice would dictate relieving such incontinent patients every two hours and more frequent laundering of linen, as well as bowel and bladder training. On March 6, 1980 controlled drugs were resting on counters in all of the facility's four drug rooms instead of being stored in a locked compartment, although two of the drug rooms themselves were locked. The other two were unlocked, but with the Respondent's nurses present. Ms. Holzberger participated in the inspections of March 3 and March 6, 1980. On March 3, 1980 there were no more than 14 sheets available for changes on the 4:00 p.m. to midnight nursing shift. On March 6, 1980 there were only 68 absorbent underpads and 74 sheets available for changes for approximately 65 incontinent patients. The unrefuted expert testimony of Nurse Holzberger established that there should be available four sheets for each incontinent patient per shift. Thus, on these two dates there was an inadequate supply of bed linen to provide changes for the incontinent patients in the facility. On March 6, 1980 Nurse Holzberger and Nurse Carol King observed 12 patients who were lying on sheets previously wet with urine, unchanged, dried and rewet again. This condition is not compatible with generally recognized adequate and appropriate nursing care standards. Incontinent patients should be examined every two hours and a change of sheets made if indicated. If such patients remain on wet sheets for a longer period of time their health may be adversely affected. On March 6, 1980 these same employees of the Petitioner inspected a medical supply room and found no disposable gloves, no adhesive tape, no razor blades and one package of telfa pads. There was no testimony to establish what the medical supply requirements of this facility are based upon the types of patients it cares for and the types and amounts of medical supplies thus needed. The testimony of Robert Cole, the facility's employee, who was at that time in charge of dispensing medical supplies, establishes that in the medical supply room (as opposed to the nurses' stations on the wings) there were at least six rolls of tape per station, 50 razors, four boxes or 80 rolls, 300 telfa pads and 200 sterile gloves. Nurses Holzberger and King made an evaluation of the Respondent's nurse staffing patterns. Ms. Holzberger only noted a shortage of nursing staff on February 24, 1980. Her calculations, however, were based on an average census of skilled patients in the Respondent's facility over the period February 20 to March 4, 1980 and she did not know the actual number of skilled patients upon which the required number of nursing staff present must be calculated on that particular day, February 24, 1980. Further, her calculations were based upon the nurses' "sign in sheet" and did not include the Director of Nurses who does not sign in when she reports for work. Therefore, it was established that on February 24 there would be one more registered nurse present than her figures reflect, i.e., the Director of Nurses. Nurse King, in describing alleged nursing staff shortages in the week of March 7 to March 13, 1980, was similarly unable to testify to the number of skilled patients present on each of those days which must be used as the basis for calculating required nursing staff. She rather used a similar average patient census for her calculations and testimony. Thus, neither witness for the Petitioner testifying regarding nursing staff shortages knew the actual number of patients present in the facility on the days nursing staff shortages were alleged. In response to the problem of the roach infestation, the Respondent's Administrator changed pest control companies on March 26, 1980. The previous pest control service was ineffective. It was also the practice of the Respondent, at that time, to fog one wing of the facility per week with pesticide in an attempt to control the roaches. Further, vacant lots on all sides, owned and controlled by others, were overgrown with weeds and debris, to which the witness ascribed the large roach population. The problem of urine odors in the facility was attributed to the exhaust fans for ventilating the facility which were inoperable in February, 1980. She had them repaired and, by the beginning of April, 1980 (after the subject inspections), had removed the urine odor problem. The witness took other stops to correct deficiencies by firing the previous Director of Nurses on March 14, 1980, and employing a new person in charge of linen supply and purchasing. A new supply of linen was purchased in February or March, 1980. The Respondent maintains written policies concerning patient care, including a provision for protection of patients from abuse or neglect. The Respondent's Administrator admitted existence of the torn screens, broken door locks, missing ceiling tiles and the roach infestation. She also admitted the fact of the cut and otherwise inoperable nurse paging cords in the patients' rooms, but indicated that these deficiencies had been repaired. The various structural repairs required have been accomplished. All correction efforts began after the inspections by the Petitioner's staff members, however.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the candor and demeanor of the witnesses, and the evidence in the record, it is RECOMMENDED that for the violations charged in Counts I, II, IV, VI, IX and X of the Administrative Complaint and found herein to be proven, the Respondent should be fined a total of $1,600.00. Counts III, V, VII and VIII of the Administrative Complaint should be dismissed. DONE AND ENTERED this 31st day of March, 1981 in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 1981. (904) 488-9675 COPIES FURNISHED: AMELIA PARK, ESQUIRE JANICE SORTER, ESQUIRE W. T. EDWARDS FACILITY 4000 WEST BUFFALO AVENUE, 4TH FLOOR TAMPA, FLORIDA 33614 KENNETH E. APGAR, ESQUIRE EDWARD P. DE LA PARTE, JR., ESQUIRE 403 NORTH MORGAN STREET, SUITE 102 TAMPA, FLORIDA 33602
Findings Of Fact FMCC's application is to provide a 102-bed long-term care nursing facility in Fort Myers, Florida, while AHC's and HSI's applications are to provide 120-bed long-term nursing care facilities. When each of these applications was presented to the south Central Florida Health Systems Council, Inc. (HSA), the application of FMCC was approved and forwarded to Respondent recommending approval and the other two applications were disapproved and so forwarded. The primary reason given by HSA for disapproving HSI's application was lack of firm financing and for disapproving AHC's application was cost of construction. Trained personnel to man the proposed facilities are in short supply in Lee County. Applicants' plans to import personnel, if necessary, from other parts of the country were supported by no evidence to indicate such personnel would be amenable to move to Lee County. All applications were disapproved by Respondent and each applicant requested a hearing which resulted in this consolidated hearing. At present there are 741 existing or approved long-term care nursing home beds in Lee County, Florida. A 120-bed facility at Cape Coral became operative in February, 1979 and a 60-bed addition to Beacon-Donegan Manor nursing home has also been approved. Prior to the opening of the newest 120-bed facility at Cape Coral, the occupancy rate for the other long-term care nursing homes was greater than 90 percent. Due to its recent opening, no evidence was presented as to the occupancy rate in Lee County following the opening of the Cape Coral facility. The population of Lee County in 1978 was 184,841 with 41,984 more than 65 years old, which is less than 23 percent of the population. This is in line with the population forecasts by the University of Florida and validates the estimated 1980 population figures which were used by all parties in submitting their applications. In 1978 Respondent proposed a State Health Plan which included a determination that the long-term care nursing home bed needs were 27 per 1,000 population greater than 65 years old. This determination was unacceptable to the Department of Health, Education and Welfare (HEW) whose decision is binding on Respondent. In refusing to accept this standard, HEW reaffirmed the requirement that the formula contained in the Hill-Burton Act be utilized in determining certificates of need. Following the Hill-Burton formula results in no additional long-term care nursing home beds needed in Lee County. Modification of the results produced by use of the Hill-Burton formula when extenuating and mitigating circumstances exist is authorized by the Florida Medical Facilities Plan. Accordingly, when use of Hill-Burton formula produces results contrary to obvious facts, such as a showing of no need for additional facilities when occupancy rates are high and long waiting lists for admission exists, these extenuating circumstances are considered and a finding of need is made. The parties stipulated that extenuating circumstances, notably the greater than 90 percent occupancy rate in nursing homes in 1977 and most of 1978 and the existing waiting lists created need for 100 to 120 additional beds. No evidence was presented establishing a need for more than 100-120 additional long-term care nursing home beds in Lee County. In fact, no evidence was presented showing the current occupancy rate, current waiting lists, or any other information not previously submitted to the Health Systems Agency was here presented other than the latest Census Report, which merely confirmed the accuracy of the forecasts. Even if the 27 beds per 1,000 population greater than 65 which was proposed by the South Central Florida Health Systems Agency were used to establish the number of beds needed, their limitation, that no more than 50 percent be added in the two-year planning period, would preclude approving more than one additional nursing home at this time. Absent evidence showing a need for more than one additional nursing home, the only issue remaining is which of the applicants is best qualified to provide the best service at the lowest cost for the stipulated need. HSI submitted proposed construction costs and patient charges in line with those submitted by FMCC. However, although their application states, and the Health Systems Agency apparently accepted, their allegation that an option to lease had been obtained on the property on which the proposed facility was to be erected, testimony at the hearing disclosed that only an oral agreement to lease the property had been obtained by HSI. An oral agreement affecting a long-term lease of real property comes within the Statute of Frauds and is unenforceable. This fact alone renders all cost estimates submitted by HSI suspect. Further, the financing proposed by HSI to construct the facility shows less than $200,000 equity capital available and a requirement to borrow $1,300,000. One ground noted by the Health Systems Agency for disapproving this application was the inadequacy of their financing. No evidence presented at this hearing contradicted this Health System Agency's finding. AHC operates some 50 nursing homes in 14 states with two nursing homes in the Orlando area. A certificate of need has been obtained for a third nursing home in Jacksonville. Florida Living Care, Inc., the parent corporation of FMCC, manages some 44 nursing homes and owns 25. It has certificates of need for 6 nursing homes in Florida, one of which is completed and in operation, while 3 are under construction. AHC proposes to finance 87 percent of the cost of the 120-bed project, or $2,160,000, in a 40-year loan at 8.5 percent interest. FMCC proposes to finance 80 percent of the cost of a 102-bed project, or $1,000,000, in a 25-year loan at 9.5 percent interest. Although no testimony regarding the current status of mortgage money was presented, it is recognized that interest rates are at historically high levels and that FMCC is more likely to get financing on the terms it proposed than is AHC on the terms the latter proposed. HSI proposed costs and charges result in average costs of $30.16 per patient per day. FMCC proposed costs and charges result in average costs of $30.96 per patient per day. AHC proposed costs and charges result in average costs of $34.40 per patient per day. No significant difference exists in the services proposed by each of the applicants. Savings from combined purchasing can result when numerous facilities are operated. Both AHC and FMCC are in a better position in this regard than is HSI. Additional savings in group food purchasing can result when facilities are within 200 miles of each other. The facilities FMCC's parent corporation is opening in Sebring and Port Charlotte are close enough to Fort Myers to allow group food purchasing for these facilities. AHC's construction costs are approximately 50 percent higher per bed than are the costs submitted by FMCC and HSI. This factor must result in higher charges to amortize these higher construction costs.
The Issue Whether Respondent violated the duly promulgated rules of the Department of Health and Rehabilitative Services by designating and continuing to designate the same person as the Assistant Administrator and the Director of Nursing of the Bonifay Nursing Home, Inc., after having been cited for such deficiency and allowed sufficient time to correct the deficiency.
Findings Of Fact An Administrative Complaint was filed by Petitioner Department of Health and Rehabilitative Services on October 27, 1980 notifying Respondent Bonifay Nursing Home, Inc., a skilled nursing care home, that Petitioner intended to impose a civil penalty of $100 for violating duly promulgated rules by designating the same person to act as Assistant Administrator and Director of Nursing of the nursing home. At the formal administrative hearing the Administrator admitted that he served more than one health facility, that at all times pertinent to the hearing the acting Assistant Nursing Home Administrator was also designated as the Director of Nursing, and that she was the only registered nurse on duty. It was admitted that no change had been made after the inspector for the Petitioner Department had called attention to this alleged violation until after the time period allowed for correcting this situation had expired and after the Petitioner had informed Respondent it intended to impose a $100 civil penalty. In mitigation Respondent presented testimony and adduced evidence showing that as the owner and operator of the nursing home he had made an effort to employ registered nurses at the home and that on the date of hearing the nursing home was in compliance with the statutes, rules and regulations. It was evident to the Hearing Officer that the nursing home serves a need in the community and that the residents appreciate the service. Petitioner Department submitted proposed findings of fact, memorandum of law and a proposed recommended order, which were considered in the writing of this order. Respondent submitted a memorandum. To the extent the proposed findings of fact have not been adopted in or are inconsistent with factual findings in this order, they have been specifically rejected as being irrelevant or not having been supported by the evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that a final order be entered by the Petitioner assessing an administrative fine not to exceed $50. DONE and ORDERED this 10th day of February, 1982, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of February, 1982. COPIES FURNISHED: John L. Pearce, Esquire Department of Health and Rehabilitative Services 2639 North Monroe Street, Suite 200-A Tallahassee, Florida 32301 Mr. J. E. Speed, Administrator Bonifay Nursing Home 108 Wagner Road Bonifay, Florida 32425 David H. Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue In their Prehearing Stipulation the original parties described the background and general nature of the controversy as follows: In January, 1985, HCR filed an application for certificate of need to develop a new 120 bed nursing home in Collier County, Florida. By notice dated June 28, 1985, HRS stated its intention to deny HCR's application. HCR timely filed a request for formal administrative proceeding, and the proceeding was forwarded to the Division of Administrative Hearings. By application supplement dated May 15, 1986, HCR has reduced this application to a 90-bed new nursing home. The nursing home will provide skilled nursing care to Alzheimer's patients and to patients discharged from hospitals in need of additional intensive nursing care, in addition to the typical nursing home patient. HRS has denied HCR's application because, pursuant to Rule 10-5.11(21), Florida Administrative Code there is insufficient need for the additional nursing home beds proposed by HCR. In the Prehearing Statement the Petitioner described its position as follows: HCR contends that there is an identifiable need for a nursing home in Collier County, Florida, to serve the needs of patients who suffer from Alzheimer's disease and similar disorders and patients who are discharged from hospitals with a continuing need for a high level of intensive care, often provided through sophisticated technical or mechanical means. Existing nursing homes in Collier County do not offer adequate facilities for such patients and refuse admission to such patients. These patients have experienced an inability to obtain such care in Collier County. HCR's proposed nursing home will provide needed care which is otherwise unavailable and inaccessible in Collier County. The application meets all criteria relevant to approval of a certificate of need. HCR further contends that the nursing home formula shows a need for additional nursing home beds in Collier County. Previously, in circumstances where a need for additional nursing home services has been identified, HRS has approved certificates of need even though the nursing home formula showed a need for zero additional beds or a small number of additional beds. In the Prehearing Statement the Respondent described its position as follows: HRS contends, pursuant to the formula contained in Rule 10-5.11(21), Florida Administrative Code, that there is insufficient need in the January, 1988 planning horizon demonstrated for additional nursing home beds in Collier County to warrant approval of a-new nursing home. Therefore, HRS contends that the HCR application should be denied. Further in its original application, HCR did not identify services proposed specially for Alzheimer's disease patients or "sub-acute" patients. HCR did not and has not complied with provision of Chapter 10-5.11(21)(b 10., Florida Administrative Code, regarding mitigated circumstances. The Respondent also identified the following as an issue of fact to be litigated. "HRS contends that it should be determined whether HCR's supplement dated May 15, 1986, is a significant change in scope for which the application was originally submitted." Because of its late intervention into this case, the Intervenor's position is not described in the Prehearing Statement. In general, the Intervenor urges denial of the application on the same grounds as those advanced by the Respondent. The Intervenor did not attempt to become a party to this case until the morning of the second day of the formal hearing. Respondent had no objection to the Petition To Intervene. The original Petitioner objected on the grounds that the effort at intervention was untimely and that the Intervenor was without standing. The objection to intervention was overruled and the Intervenor was granted party status subject to taking the case as it found it. Accordingly, intervention having been granted at the conclusion of the evidentiary presentation of the other parties, the Intervenor was not permitted to call any witnesses or offer any exhibits. Intervenor's participation before the Division of Administrative Hearings was limited to an opportunity to file proposed findings of fact and conclusions of law. Following the hearing a transcript of proceedings was filed on July 8, 1986. Thereafter, all parties filed Proposed Recommended Orders containing proposed findings of fact. Careful consideration has been given to all of the Proposed Recommended Orders in the formulation of this Recommended Order. A specific ruling on all proposed findings of fact proposed by all parties is contained in the Appendix which is attached to and incorporated into this Recommended Order. The Petitioner also filed an unopposed post-hearing motion requesting that its name be corrected in the style of this case. The motion is granted.
Findings Of Fact Based on the stipulations of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at the hearing, I make the following findings of fact. Findings based on admitted facts The parties agree that HCR properly filed a letter of intent and application for certificate of need for a new nursing home to be located in Collier County. The application was reviewed by HRS in the ordinary course of its activities, and HRS initially denied the application. HRS continues to oppose issuance of a CON because (a) there is an insufficient need, pursuant to Rule 10-5.11(21), Florida Administrative Code, for additional nursing home beds to warrant approval of a new nursing home [Section 381.494(6)(c)1., Florida Statutes]; (b) the long term financial feasibility and economic impact of the proposal is questionable because of low occupancy being experienced by existing nursing homes "Section 381.494(6)(c)9., Florida Statutes]. HRS proposes no other basis for denial of the application. The parties agree that HCR meets all criteria for a certificate of need, with the exception of those two criteria listed in the immediately foregoing paragraph relating to need and financial feasibility/economic impact (relevant to low occupancy), which HRS contends have not been met. The parties agree that HCR would provide good quality care to patients, that the project would be financially feasible if the occupancy projections asserted by HCR were obtained, that the costs and methods of proposed construction are appropriate and reasonable, and that the proposed facility would be adequately available to underserved population groups. The rest of the findings In January 1985, HCR filed an application for a certificate of need to develop a new 120-bed nursing home facility in Collier County, Florida. The original application described a traditional approach to nursing home care. By notice dated June 28, 1985, HRS stated its intention to deny HCR's application. HCR timely filed a request for formal administrative proceedings and this proceeding ensued. By application supplement dated May 15, 1986, HCR made certain changes to its original application. These changes included reducing the size of the proposed nursing home from 120 to go beds and changing the-concept of the nursing home from a traditional nursing home to one specifically designed to address the treatment of Alzheimer's disease patients and sub-acute care patients. The supplement specifically provided that 30 of the 90 proposed beds would be "set aside to offer a therapeutic environment for patients with Alzheimer's or similar disorders." The project description in the original application contained no such provision. HCR's proposed facility would consist of 90 nursing home beds, 30 assisted living beds, and an adult day care facility located adjacent to the nursing home portion of the facility. Those portions of the facility relating to assisted living and adult day care do not require certificate of need review. The estimated cost of the portion of the project which requires certificate of need review is $3.5 million. HCR estimates that approximately 33 1/3 per cent of the patients in the facility will be Medicaid reimbursed. It is proposed that 30 of the 90 nursing home beds be designed and staffed specifically to provide care and treatment necessary to meet the special needs of certain patients who suffer from Alzheimer's disease and dementia and exhibit need for care different from that found in the typical nursing home. It is proposed that another 30-bed wing be staffed and equipped to provide sub-acute, high-tech services such as ventilator, I.V. therapy, pulmonary aids, tube feeding, hyperalimentation and other forms of care more intensive than those commonly found in a nursing home and necessary for the care of patients discharged from hospitals and patients in the last stages of Alzheimer's disease. The remaining 30-bed wing would be devoted to traditional nursing home care. HRS has adopted a rule which establishes a methodology for estimating the numeric need for additional nursing home beds within the Department's districts or subdistricts. This methodology is set out in Rule 10-5.11(21), Florida Administrative Code. This rule determines historic bed rates and projects those bed rates to a three-year planning horizon. Allocation to a subdistrict such as Collier County is adjusted by existing occupancy in the subdistrict and the subdistrict's percentage of beds in relationship to the total number of beds in the district. Additional beds normally are not authorized if there is no need for beds as calculated under the rule. HRS calculated need utilizing current population estimates for January 1986 and projected need for the population estimated for January 1988, arriving at a need of approximately 16 additional nursing home beds for the January 1988 planning horizon. HCR projected need to the January 1989 planning horizon and projected a numeric need of approximately 38 additional nursing home beds. There are no applicants for additional nursing home beds in the January 1989 planning horizon (batching cycle). Alzheimer's disease is a primary degenerative disease of the central nervous system which results in a breakdown of the nerve cells in the brain. The disease is progressive, in that it begins subtly, often with forgetfulness or simple personality changes, and ultimately results in death following a phase in which the patient is bedridden and totally dependent upon others for survival. The cause of the disease is not known. The disease is much more common in the older age groups and is very common in the southwest Florida area. (However, nothing in the evidence in this case suggests that Alzheimer's disease is more common in southwest Florida than in other parts of the state.) There is no known cure for Alzheimer's disease. Alzheimer's disease patients are characterized by such symptoms as memory loss, communication problems, difficulty understanding, confusion, disorientation, inability to recognize care givers, waking at night, wandering, inability to socialize appropriately, and incontinence. The progress of the disease can be divided into stages. During the initial stage, the patients will display forgetfulness and subtle personality changes. As the disease progresses, the patients encounter increasing difficulty performing more than simple tasks, tend to be more emotional, become more confused, encounter difficulty with concentration and retaining thoughts, and often display poor judgment and a denial of the significance of their actions. In the next stage, the patients begin to require assistance to survive. Forgetfulness and disorientation increase and wandering patients are often unable to find their way. The patients become incontinent, experience sleep disturbances, become restless at night, and wander during the day, leading to considerable family distraction and difficulties for the care givers. The patients encounter difficulty recognizing family members and often become paranoid and fearful of those family members within the house. violence and aggressive outbursts may occur. Finally, the patients progress to a stage in which they are totally inattentive to their features physical needs, requiring total care. These Patients are totally incontinent, experience frequent falls, develop seizures, and eventually become bedridden, going into a fetal position and becoming totally unable to provide any care for themselves. Traditionally, most nursing homes offer no special programs for patients who suffer from Alzheimer's disease and mix these patients with other patients in the nursing home. There is no nursing home in Collier County which provides program specifically designed for the treatment of Alzheimer's disease patients. The nearest nursing home where such care can be found is in Venice, some 92 miles from Naples. The total facility proposed by HCR is designed to provide a continum of care for Alzheimer's disease patients and their family care givers. The adult day care portion of the facility would enable family members to place Alzheimer's disease patients in day care for a portion of the day in order for the family care givers to maintain employment, perform normal household chores, and find relief from the extremely demanding task of constantly supervising and caring for an Alzheimer's disease victim. The adult day care portion of the facility would be designed and staffed to provide a therapeutic program for the Alzheimer's disease patient and the patient's family. The assisted living portion of the facility would allow an Alzheimer's disease patient in the early stages of the disease to live in an environment, with his or her spouse if desired, where immediate care and routine supervision at a level lower than that required by a nursing home patient would be provided. Thirty nursing home patient and who do not display those characteristics which are disruptive to non-Alzheimer's patients, such as wandering, combativeness, and incontinence. For those Alzheimer's patients who should not be mixed with other nursing home patients because of their disruptive routines and who require unique programs and facility design features to meet their specific needs, a 30-bed wing would be set aside. Finally, for Alzheimer's patients in the final stages of the disease who require total care and are bedridden, and for patients discharged from local hospitals who require high-tech services, a 30-bed wing designed, staffed and equipped to provide such services would be set aside. The facility would provide a high level of staffing to meet the demanding, personal care needs of Alzheimer's patients and would provide 24-hour nursing supervision in that portion of the facility dedicated to intensive services for the bedridden and high-tech patient. The design and equipment of the proposed facility are particularly addressed to the needs of Alzheimer's disease patients. Physically, the facility would allow patients freedom of movement both inside the facility and in an outside courtyard with porches, but the facility would be sufficiently secure to prevent the patient from wandering away from the facility. There would be amenities such as therapeutic kitchens which would allow patients still able to cook to do so. Fixtures in the facility would be designed so that the Alzheimer's disease patients could easily identify the functions of fixtures such as wastebaskets, toilets, and sinks. Features such as low frequency sound systems, lever door knobs, square instead of round tables, barrier-free doorways, special floor coverings, appropriate labeling, automatic bathroom lighting, and provisions for seating small groups of patients together would all provide the special care required by the Alzheimer's patient. The concept of a separate unit for Alzheimer's disease patients is a new one, growing out of increased medical awareness of the disease. The proposed unit would be a prototype for the Petitioner. There are four nursing homes in Collier County and 413 licensed nursing home beds. There are no approved but unlicensed nursing home beds in Collier County. At the time that HRS initially reviewed the HCR application, Collier County nursing homes were reporting an average occupancy of approximately 70 percent. At the time of the hearing, average occupancy of existing nursing home beds in Collier County was 83.5 per cent. Existing nursing home beds in Collier County are underutilized and there are a number of nursing home beds available to the public. Also there are available alternatives to nursing homes in Collier County. HCR has projected reaching 95 per cent occupancy within one year of opening. This projection seems overly optimistic and unwarranted by prior history, as only one existing facility has an occupancy rate that high. HCR's occupancy projections are based on assumptions that the future growth will be similar to that experienced between 7/1/85 and 12/1/85. But more recent data shows that growth has been decreasing and that there was no growth for the most recent period prior to the hearing. If projected occupancy is not met, projected revenues will not be realized, and projections of financial feasibility will not materialize. The record in this case does not contain evidence of patients' need for nursing home care documented by the attending physicians' plans of care or orders, assessments performed by the staff of the Department of Health and Rehabilitative Services, or equivalent assessments performed by attending physicians indicating need for nursing home care. The local health plan (Policy 1, priority 4) requires an occupancy level of at least 90 per cent before new nursing homes can be approved. The local health plan (Policy 1, priority 6) also provides, "No new community nursing home facility should be constructed having less than 60 beds. However, less than 60 beds may be approved as part of an established acute care hospital facility."
Recommendation For all of the foregoing reasons, it is recommended that the Department of Health and Rehabilitative Services issue a Final Order in this case denying the Petitioner's application for a certificate of need to construct either its original proposal or its supplemented proposal. DONE AND ENTERED this 14th day of October, 1986, at Tallahassee, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of October, 1986.
The Issue The issue is whether a certificate of need should be issued to permit Tamarac Hospital, Inc. d/b/a University Community Hospital (Tamarac) to convert 10 acute care medical/surgical beds to skilled nursing facility beds. Based on their presentations at the final hearing and their proposed findings of fact and conclusions of law, the central issue is whether there is a need for the proposed nursing home beds.
Findings Of Fact Tamarac proposes to convert 10 currently licensed medical/surgical acute care beds into skilled nursing facility beds. The skilled nursing beds would be available at the hospital to treat patients who no longer require acute hospital care but do require skilled nursing services beyond those required by ordinary nursing home patients. (Tr. 15-16) 1/ The capital cost of the project would be approximately $20,000 for renovation to provide a private bathroom in the existing group of hospital rooms which would be converted to use as the skilled nursing facility (Tr. 25). The testimony of the petitioner with respect to the financial feasibility of the project was undisputed (Tr. 25, PX 1, p.14). Tamarac has encountered problems in placing patients who no longer require acute hospital care in nursing homes in HRS District 10, Broward County, when those patients require more than normal nursing home services. These patients, due to their diagnosis or treatment, require more skilled nursing care, more technical assistance, supplies or more frequent checking than traditional nursing home patients (Tr. 15). These are patients with infectious diseases or draining wounds who require isolation; patients requiring ongoing intravenous administration of medications including antibiotics and narcotics; patients on chronic ventilator support; patients with tracheostomies requiring respiratory support, suctioning or oxygen; patients with naso-gastric feeding tubes and patients receiving total parenteral nutrition (PX 1, application, p. 2). Tamarac introduced a study it had conducted concerning discharge delays for the one year period prior to its application which included 70 patients (Tr. 12, PX 3). The study is anecdotal in nature. The director of social services for Tamarac, who is in charge of discharge planning coordination, testified that the 70 cases were representative and randomly sampled (Tr. 12, 21). There was no specific evidence of the sampling methodology, however. In the absence of better evidence of the sampling methodology it is not possible to determine what inferences validly may be drawn from the information presented in PX 3. For example, the evidence fails to show whether the 70 cases included represent 1 percent or 100 percent of the instances where a discharge was delayed. All that is known is that in 53 percent of those 70 cases studied the discharge delay occurred because the patient could not be placed in a nursing home (Tr. 12). These 37 patients might have been served at Tamarac if a skilled nursing facility had been in operation. Due to the limited evidence of how the sample was chosen, the study has been given little weight. In addition, the application and Tamarac's study focuses solely on the experience of Tamarac in attempting to place patients who no longer required acute care in a nursing home. There is no basis for determining whether there is a general community need for the project proposed. The narrowness of the proof offered is apparently due to the restriction Tamarac made in the application that "this project is for [Tamarac] hospitalized patients only". Application, PX 1, page 6 paragraph 4. Tamarac also conducted a survey of Broward nursing homes to determine what services they provide, PX 4. That survey indicates that there are some specialized nursing services that are not available in nursing homes in Broward County, e.g., services for patients on chronic ventilators and patients with acquired immune deficiency syndrome (although Tamarac did not indicate that it proposed to offer services to AIDS patients). There are also services which are not commonly available. Many nursing homes will not accept patients on intravenous medication in the form of chemotherapy or narcotics or patients with draining wounds, and the few that do generally require no pathogenic organism be present as shown by negative culture test. Even when some nursing home in Broward County provides a specific service, a bed at that nursing home may not be available to a patient in Tamarac Hospital ready for discharge from acute care when the bed is requested (Tr. 14- 15). Tamarac's placement problem is made more difficult because it is to some extent in competition with other Broward County hospitals for the available nursing home beds for patients needing skilled, subacute nursing services (Tr. 16). This generalized evidence of competition does not rise to the level of demonstrating a need in HRS Service District 10 for the proposed skilled nursing facility. Tamarac has attempted to persuade existing nursing homes to expand services to accept on a routine basis patients needing the type services which Tamarac proposes to provide, but has been unsuccessful (Tr. 16). The bed need calculation methodology set out in Rule 10-5.11(21), Florida Administrative Code, for the July 1988 planning horizon shows a surplus of 92 nursing home beds in Broward County (RX 1 and 2, Tr. 32-44). Approximately 258 nursing home beds are unoccupied in Broward County on a daily basis, assuming 100 percent occupancy actually could be achieved (Tr. 39). The availability of empty nursing home beds in the district does not necessarily mean that beds are available for a particular patient at Tamarac Hospital who needs more than normal nursing services on a specific day (Tr. 55). Individual patients requiring subacute care may remain in the hospital (Tr. 18). Patients ready for discharge from acute care are not eligible for Medicare coverage (Tr. 17), and are potentially liable for their hospital costs incurred awaiting placement. If they were transferred to a skilled nursing facility such as that proposed by Tamarac, those patients would be eligible for the Medicare benefits for the first 20 days, with an additional 80 days of co- insurance reimbursement thereafter (Tr. 26). The average hospital room, board, and ancillary charges at Tamarac is $900 per patient and per day. The charge to be made in Tamarac's proposed skilled nursing facility would be $115 per day (Tr. 26). According to the application (PX 1, table 7, utilization by the class of pay), 65.6 percent of its patient days of service are provided by Tamarac to Medicare patients. Tamarac would recover approximately $115 per patient per day for patients utilizing its skilled nursing facility, rather than writing off, as it does now, approximately $900 per day for those Medicare patients requiring subacute care who remain in Tamarac due to an inability to identify an appropriate skilled nursing facility in Broward County to accept them when their care requirements are greater than that normally provided by Broward County nursing homes (Tr. 29). Few Medicaid patients utilize the services of Tamarac because of the nature of the population surrounding the hospital. Referring again to the evidence of utilization by class of pay, only one tenth of one percent of the patient days spent at Tamarac during the period January 84 through December 84 were days spent by Medicaid patients. There would be no restriction on access to the skill nursing facility unit if one of the rare Medicaid patients at Tamarac Hospital required those services (Tr. 27-28).
Recommendation It is recommended that the application of Tamarac Hospital, Inc., d/b/a University Community Hospital to convert 10 medical/surgical beds to skilled nursing facility beds be denied. DONE AND ORDERED this 20th day of October 1986 in Tallahassee, Leon County, Florida. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of October, 1986.
The Issue The issues are whether Respondent committed the violations alleged in the Administrative Complaint concerning three nursing home residents, whether Petitioner should impose a civil penalty of $2,500 for each violation, whether Petitioner should change the status of Respondent's license from standard to conditional, and whether Petitioner should recover investigative costs.
Findings Of Fact Petitioner is the state agency responsible for licensing and regulating nursing homes in Florida. Respondent is licensed to operate an 87-bed nursing home located at 3250 12th Street, Sarasota, Florida (the facility). From February 9 through 11, 2004, Petitioner's staff inspected the facility pursuant to regulatory requirements for an annual survey of such facilities (the survey). At the conclusion of the survey, Petitioner issued a document identified in the record as CMS Form 2567L (the 2567 form). The 2567 form alleges violations of federal nursing home regulations that Petitioner has adopted by rule. The Administrative Complaint incorporates the factual allegations from the 2567 form and charges Respondent with committing four violations alleged to be Class II violations defined in Subsection 400.23(8)(b), Florida Statutes (2003). Counts I through III in the Administrative Complaint allege that facility staff committed acts involving residents identified in the record as Residents 14, 7, and 8. Count IV alleges that the allegations in Counts I through III show that Respondent administered the facility in a manner that violated relevant regulatory provisions. Counts I through IV propose an administrative fine of $2,500 for each alleged violation and the recovery of unspecified investigative costs. Count V alleges that the allegations in Counts I through III require Petitioner to change Respondent's license rating from standard to conditional while the alleged deficiencies remained uncorrected. Count I alleges that a staff nurse at the facility abused Resident 14, an elderly female. The substance of the allegation is that the nurse "intentionally caused pain" to Resident 14 by raising the resident's left hand above her head so the resident would open her mouth and allow the nurse to ensure the resident had swallowed her medication. Respondent admitted Resident 14 to the facility on January 31, 2000, with multiple health problems, including anxiety, paranoia, psychosis, delusions, and disorientation due to dementia. Resident 14 was not ambulatory and suffered poor wheel chair positioning for which she had been evaluated and received therapy. Resident 14 was non-verbal, angry, aggressive, combative with staff and other residents, displayed territorial aggression, and a tendency to strike out at others. Prior to admission, Resident 14 had suffered a fracture of the left arm resulting in a limited range of motion in her left shoulder of 60 degrees. At the time of the survey, Resident 14 was approximately 93 years old. Two surveyors observed a staff nurse administering medication to Resident 14 while the resident was sitting in her wheel chair in her room. Resident 14 did not respond to repeated cues from the nurse to open her mouth so the nurse could ensure the resident had swallowed her medication. The nurse continued to observe Resident 14 for some indication the resident had not swallowed her medication and offered pudding to the resident. Resident 14 remained unresponsive. The nurse directed a certified nurse assistant (CNA) to give Resident 14 breakfast and left to care for other residents. The surveyors asked the nurse to return to the room to ensure that Resident 14 had swallowed her medication. Resident 14 did not respond to additional cues from the staff nurse to open her mouth because the resident was distracted by the surveyors. The staff nurse attempted to redirect the attention of the resident to the nurse's cues to open her mouth by holding the resident's left hand and raising her hand and arm. Resident 14 opened her mouth, and the staff nurse observed no medication in the resident's mouth. The disputed factual issues call into question how quickly and how high the staff nurse raised the left hand of Resident 14, whether the resident suffered pain, and whether the staff nurse knew the action would cause pain. Although Resident 14 was non-verbal, Count I alleges, in relevant part, that Resident 14 cried "OW" when the staff nurse, without warning, raised the resident's hand over her head. A preponderance of evidence does not show that the staff nurse lifted the hand of Resident 14 in an abrupt manner. During cross-examination of the surveyor, counsel for Respondent conducted a reenactment of the alleged incident. The witness verified the manner in which the person acting as the staff nurse in the reenactment raised the left hand and arm of the person acting as Resident 14. The demonstration did not show the staff nurse acted abruptly. The reenactment showed that the description of the incident by the surveyor was less than persuasive. Petitioner admits in its PRO that a determination of whether the staff nurse raised the resident's hand gently or abruptly is a "matter of perspective." Petitioner argues unpersuasively at page 14 in its PRO that the surveyor's perception should be accepted because: Clearly, the surveyor would not have made comment if the resident had been treated in a gentle manner. Petitioner cites no evidence or law that precludes the written statement provided by the staff nurse during the facility's investigation of the incident from enjoying a presumption of credibility equivalent to that Petitioner claims for the report of the surveyor. The staff nurse had been a nurse at the facility for 19 years without any previous complaints or discipline and had ample experience with residents that suffered from dementia. The nurse had cared for Resident 14 for most of the four years that Resident 14 had been a resident at the facility. Irrespective of how fast and high the staff nurse raised the hand of Resident 14, a preponderance of evidence does not show that Resident 14 suffered an injury or harm that is essential to a finding of abuse. The surveyor asked Resident 14 if the resident had been in pain prior to the incident. Resident 14 was "unable to speak," according to the surveyor, but nodded affirmatively. Resident 14 did not indicate the source or location of any pain, and there is no evidence that the surveyor asked Resident 14 to indicate to the surveyor where the resident was experiencing pain. After the incident, the surveyors undertook no further inquiry or investigation, did not question the nurse or the resident further, and refused a request by facility administrators for a written statement describing the incident. The surveyors at the facility did not make a determination of whether the incident resulted in "harm" to Resident 14. Rather, the allegation of harm arises from Petitioner's employees who did not testify at the hearing. The determination of harm is uncorroborated hearsay, and the trier of fact has not relied on that determination for any finding of fact. Upon learning of the incident, Respondent's nursing staff immediately examined Resident 14 for injuries, had Resident 14 examined by her physician, and had Resident 14 x-rayed for possible injuries. No injury was found. Resident 14 did not complain of pain when her physician performed a range of motion examination on the suspect arm. Resident 14 was able to move both of her arms without pain. The medical records for Resident 14 and the testimony of her occupational therapist show that the resident had use of her left arm. Resident 14 frequently flailed both arms in an effort to strike others. Notes in the medical records show that Resident 14 "lashes out," "swings her arms," was "physically abusive to staff when attempting to provide care," and "refused to open mouth and became agitated and combative." The limited range of motion in the left shoulder of Resident 14 did not prevent Resident 14 from raising her left hand above her head while seated in a wheel chair. Resident 14 sat in a wheel chair with a forward pelvic thrust, causing her to slump with a lateral lean to the left. The wheel chair position effectively lowered the resident's head, reduced the distance between her head and left hand, and enabled the resident to raise her left hand above her head without pain. Count II alleges that Respondent failed to assist Resident 7 in "coping with changes in her living arrangements in a timely manner" after Resident 7 became upset that her guardian was selling her home. The allegation is not supported by a preponderance of evidence. Respondent admitted Resident 7 to the facility in September of 2003. Prior to admission, the circuit court for Sarasota County, Florida, entered an order appointing a guardian for Resident 7. In relevant part, the court order authorized the guardian to determine residency of Resident 7 and to manage her property. Prior to December 28, 2003, Resident 7 was reasonably content. Social service's notes in October 2003, show that Resident 7 was "alert with no mood or behaviors." Nurses notes in November 2003, show Resident 7 to be "pleasant" with a "sense of humor." On December 28, 2003, Resident 7 became angry when her guardian revealed plans to sell the resident's home. Resident 7 continued to exhibit anger for several weeks. On January 6, 2004, Respondent conducted a care plan conference with the guardian for Resident 7, discussed Resident 7's emotional state, and obtained the guardian's consent for counseling. Pursuant to the care plan, Respondent's social services staff met with Resident 7 regularly and provided psychological counseling twice a week. Facility staff did not undertake discharge planning for Resident 7. Staff provided other assistance to the resident, but that assistance was minimal and consisted mainly of giving Resident 7 telephone numbers to contact the Long Term Care Ombudsman in the area and the attorney for the guardian. The sufficiency of the other assistance provided by Respondent is not material because the court convened a second hearing to consider the objections of Resident 7 to her guardian and to consider a competency examination by another physician. On February 6, 2004, the court entered an order denying the resident's suggestion of capacity and authorizing the guardian to sell the residence. The allegation that Respondent should have undertaken discharge planning is not supported by a preponderance of the evidence. Pursuant to two court orders, Resident 7 continued to be in need of a nursing home level of care, and her expectations for discharge to a lower level of care were unrealistic. Count III alleges that a facility staff nurse failed to administer analgesic medication to Resident 8 causing "continued pain and emotional stress to the resident." Resident 8 experienced chronic pain from a joint disorder. A care plan for pain management, in relevant part, authorized Tylenol as needed. A preponderance of evidence does not show that Respondent failed to provide Tylenol to Resident 8 in accordance with the care plan. During the survey, a surveyor observed staff at the facility reinserting a catheter into a vein of Resident 8. The witness for Petitioner testified that the procedure did not cause Resident 8 to experience pain. It is undisputed that Resident 8 did not request pain medication and that no pain medication was medically required prior to the procedure. Respondent did provide Resident 8 with a prescription medication to calm the resident. The preponderance of evidence does not show that Respondent failed to ensure that Resident 8 obtained optimal improvement or that Resident 8 deteriorated. Petitioner submitted no evidence that Resident 8 experienced any lack of improvement or decline in functioning or well-being. Count IV in the Administrative Complaint alleges that the allegations in Counts I through III show that Respondent failed to administer the facility in a manner that enabled the facility to use its resources effectively and efficiently to maintain the highest practical well-being of Residents 14, 7, and 8. For reasons previously stated, the preponderance of evidence does not show that Respondent committed the acts alleged in Counts I through III. Without the violations charged in Counts I, II, or III, the charges in Count IV are moot. Assuming arguendo that the staff nurse abused Resident 14, a preponderance of evidence does not show that Respondent failed to take action that could have prevented such abuse. Petitioner's surveyor was unable to explain in her testimony how Respondent could have prevented the alleged abuse. The surveyor did not report the incident to management at the facility for approximately 1.5 hours. Management immediately suspended the staff nurse and undertook an investigation required by law. Petitioner's surveyors refused to provide written statements describing the incident. The staff nurse provided a written statement that Respondent included as part of its investigation and report to Petitioner. Respondent maintains adequate policies and procedures for background screening and regular training for its staff relating to abuse and neglect of residents. Respondent had accomplished all background screening and abuse training requirements for the staff nurse involved in the incident. Respondent had no information in the nurse's history that would have enabled the facility to predict any potential for this staff nurse to intentionally harm a resident. A preponderance of evidence does not show that Respondent failed to administer the facility in a manner that would ensure the highest practical well-being for Resident 7. Two court orders determined that Resident 7 was incompetent and authorized the guardian to sell the resident's real property. The opinion of a surveyor that Resident 7 was "clearly competent" does not eviscerate the findings of the court. A preponderance of evidence does not show that Respondent failed to administer the facility in a manner that would ensure the highest practical well-being for Resident 8. Respondent maintained an adequate pain management care plan for Resident 8 that included Tylenol as needed. It is undisputed that the care plan did not require Tylenol before or after the re-insertion of the catheter into the vein of Resident 8, that insertion of the catheter caused Resident 8 no pain, that Tylenol was not medically required before or after the procedure, and that Respondent provided Resident 8 with a stronger prescription medication for anxiety. Count V of the Administrative Complaint alleges that the allegations in Counts I through IV require Petitioner to change the status of Respondent's license from standard to conditional. In the absence of the violations charged in Counts I through IV, there is no factual basis to support the proposed change in the status of Respondent's license.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent not guilty of committing the violations charged in the Administrative Complaint. DONE AND ENTERED this 4th day of February, 2005, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 2005. COPIES FURNISHED: Alfred W. Clark, Esquire 117 South Gadsden Street, Suite 201 Post Office Box 623 Tallahassee, Florida 32302-0623 Gerald L. Pickett, Esquire Agency for Health Care Administration Sebring Building, Suite 330K 525 Mirror Lake Drive, North St. Petersburg, Florida 33701 Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration Fort Knox Building, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308 Alan Levine, Secretary Agency for Health Care Administration Fort Knox Building, Suite 3116 2727 Mahan Drive Tallahassee, Florida 32308
The Issue Which one of three Certificate of Need applications for a new nursing facility in AHCA Nursing Home District 3 should be granted: Beverly Savana Cay Manor, Inc.’s; Life Health Care Resources, Inc.’s; or Arbor Health Care Company’s?
Findings Of Fact The Parties and The Applications Beverly Beverly Savana Cay Manor, Inc., is a wholly-owned subsidiary of Beverly Enterprises, Inc., the largest provider of nursing-home care in the nation. Beverly is proposing to construct a 120-bed freestanding nursing home in Marion County from which it proposes to provide hospice services, respite services and, for six days a week, inpatient and outpatient therapy services. The nursing home, if constructed, will contain a 16-bed Medicare unit and a 20-bed secured Alzheimer’s unit. The Beverly application is conditioned upon providing at least 55 percent of its patient days to Medicaid patients. In addition, Beverly proposes to provide 0.2 percent of its patient days to indigent and charity patients. Beverly proposes to provide care to residents who are HIV positive or have AIDS. If the application is approved, Beverly will contribute $10,000 to a geriatric research fund. Life Care Life Care is a new, start-up corporation formed initially for the purpose of seeking a CON for a nursing home in Hernando County. Life Care’s plan is that it be operated by Life Care Centers of America, Inc. (LCCA), a privately owned Tennessee corporation authorized to business in Florida. LCCA owns, operates, or manages over 185 nursing homes with over 22,700 beds and retirement center units in 28 states. It is the largest privately owned nursing-home company in the United States. Life Care’s application proposes construction and operation of a 120-bed nursing home in Hernando County. The nursing home will include a 20-bed secured Alzheimers/dementia care unit and a state-of-the-art adult care unit. In fact, Life Care has agreed to condition approval of its application on inclusion of these two units. Additionally, it has agreed to a condition of service of Medicaid residents at the district average (69.26 percent) at least. Life Care proposes a broad range of Specialized Programs, including care of AIDS victims, respite care, and care to hospice clients and outpatient rehabilitative care. Its inpatient care will include a 20-bed Medicare unit, within which will be at least 12 beds for "subacute" services. Arbor Headquartered in Lima, Ohio, Arbor Health Care Company has 27 facilities located in five states. Twelve of the facilities are in Florida but none of its licensed facilities are in District 3. Of the twelve in Florida, eleven are JCAHO accredited, with the twelfth, newly-licensed, scheduled at the time of hearing for an accreditation survey in December of 1997. Ten of the eleven accredited facilities are also accredited for subacute care. Arbor’s accreditation record is outstanding compared to both the 600 nursing facilities in Florida, 93 of which are JCAHO accredited and 49 of which are accredited for subacute care, and the national record of accreditation of nursing home facilities in subacute care, 23 percent. This record, too, is demonstrative of Arbor’s progress in carrying out its corporate mission: to be the premier subacute provider of long-term care services. Consistent with its mission, Arbor proposes a distinct subacute unit to serve patients with digestive diseases and patients in need of ventilator therapy, infusion therapy, wound care, and cardiac therapy. In addition to subacute services, Arbor proposes to serve residents with dementia, including Alzheimer’s, by utilizing a strongly-developed, individualized- care plan with an interdisciplinary approach implemented upon admission and subject to continuous review and, if necessary, revision. Arbor's application, however, distinctly different from Beverly’s and Life Care’s, does not propose a secured Alzheimer’s unit. Arbor proposes comprehensive rehabilitation care for its patient and residents, as well as outpatient rehabilitation services for both former residents and residents throughout the community. Arbor proposes to provide 0.2 percent of all patient days for charity care and 69.26 percent of all patient days for Medicaid patients within its 104-bed long-term facility. Medicaid patients will also be served in the 16-bed subacute unit. In addition, Arbor proposes to provide, at a minimum, one percent of its patient days for hospice care, respite care, the care of AIDS patients, and the care of pediatric patients. Arbor is committed to such services, as well as the provision of both inpatient and outpatient intensive rehabilitative programs, and has agreed to condition its award of a Certificate of Need upon such commitments. Arbor is the only one of the three applicants committed to provide care and services to pediatric patients. Location Introduction The issue on which these cases turn is location within District 3. (There are other issues in this case certainly. For one reason or another, their disposition will not determine the outcome of this case. Not the least among the other issues is whether Beverly or Life Care should be favored over Arbor because they propose secured Alzheimer’s units. This issue, however important and subject to whatever quality of debate, is not dispositive because at present it has no clear answer. See Findings of Fact Nos. 43-45, below.) District 3 Comprised of 16 counties located as far north as the Georgia state line and southwest to Hernando County, District 3 is the largest AHCA Nursing Home District area-wise. The District is not divided into subdistricts for the purpose of applying the state methodology to determine numeric need of additional nursing home beds. Among the 16 counties in the district are Marion, Hernando and Citrus. The Applicant’s Proposed Locations Beverly proposes to construct its 120-bed freestanding nursing home in Marion County. The specific proposed location is south of the City of Ocala, east of State Road 200 and west of Maricamp Road. From this location, Beverly would serve primarily residents of Marion County, but would also be accessible to residents of Citrus, Lake and Sumter Counties. Life Care proposes to construct its 120-bed nursing home in the Spring Hill area of Hernando County. Arbor proposes to locate its 120-bed nursing home in Citrus County. It did not propose a specific location within the County. The Best Location Conflicting qualified opinions were introduced into evidence by each of the three applicants. Each applicant, of course, presented expert testimony that its proposed location was superior to the locations proposed by the other two. In its preliminary decision, AHCA approved Arbor’s application and denied the other two. AHCA continues to favor Citrus County as the best location for a new 120-bed nursing home in District 3. At bottom, AHCA’s preliminary decision is supported by Arbor's proposal to locate in the county among Marion, Hernando and Citrus Counties with the greatest need: Citrus. This basis underlying, and therefore, the Agency’s preliminary decision, is supported by the findings of fact in paragraphs 21-35, below. Allocation of Nursing Home Beds Within AHCA Nursing Home District 3 Although the district is identified as a single entity for purposes of the state methodology utilized to determine the need for additional nursing home beds, the local planning council divides the district into geographic units or planning areas in order to specify preferences for the allocation of nursing homes within the district. The North Central Florida Health Planning Council, Inc., has created seven planning areas in District 3. The local health plan utilizes a priority-setting system to identify the relative importance of adding beds to specific planning areas. After establishing well-defined priorities for geographically-underserved areas and designated occupancy thresholds, the priority-setting system creates a decision matrix: the Planning Area Nursing Home Bed Allocation (PANHAM). The matrix is based on the population at risk, bed supply (both licensed and approved), and occupancy levels within the planning area. The allocation factors in the local health plan are particularly significant with respect to District 3 in light of its lone stance among the Agency’s Nursing Home Districts as lacking a process for allocating number of beds needed to the individual subdistrict. The local health plan provides "the only road map or the only guidance" (Tr. 311) as to how to allocate beds within District 3. The local health plan bases its occupancy priorities upon both licensed and approved beds within each planning area. From a planning perspective, it is reasonable and appropriate to calculate occupancy rates based upon both licensed and approved beds in assessing the need for additional beds. The number of approved beds is a measure of how much additional capacity will be on line in the near future. To ignore the number of approved beds in the evaluation of where to allocate new beds is not a good health planning technique. The three counties in which Beverly, Life Care and Arbor propose to locate are each separate planning areas in the local health plan. Marion is Planning Area 4; Hernando and Citrus are 6 and 5, respectively. The preferences contained within the local health plan for the allocation of nursing home beds within District 3 are listed in terms of importance and priority. Allocation factors "[t]wo and three really are the basis . . . for figur[ing] out in this huge district of 16 counties, how [to] make sense of where the beds ought to go." (Tr. 312.) The first of these is for applicants proposing to develop nursing home beds in geographically-underserved areas. None of the planning areas designated by the three applicants in this proceeding meet this geographic-access priority. The second of these two allocation factors, Allocation Factor 3, assigns a number of priorities in order of significance. These priorities are based primarily upon occupancy or utilization and need determined by the number of beds per area residents of 75 years of age and older. The first priority in Allocation Factor 3 is "an acid test." (Tr. 312.) It states that no nursing home beds should be added in a planning area until the number of nursing home days, considering both licensed and approved beds, for the most recent six months is 80 percent. It is only when an applicant meets this threshold that the remaining priorities in Allocation Factor 3 are considered. If the 80-percent priority is not met in a planning area, then the area should be given no further consideration for the allocation of beds. The only planning area of the three at issue in this case which meets the 80-percent occupancy standard is Planning Area 5, Citrus County. At the time the original fixed need pool for District 3 was published for the batching cycle applicable to this case, Citrus County had 69-approved nursing home beds. Hernando County had 147 (including 27 hospital-based skilled nursing beds), and Marion County had 234 approved beds. The most recent data available at the time of hearing show no new beds in Citrus or Hernando Counties but 309 new beds approved for Marion County. Utilizing the most recent data regarding the number of licensed and approved beds in Citrus, Hernando and Marion Counties, Citrus County remains the only planning area of the three which meets or exceeds the 80 percent occupancy threshold. Assuming that the remaining priority factors contained within the PANHAM matrix are applicable, none of the three applicants received a priority ranking under the PANHAM methodology. Applying the most recent data available, however, only Citrus County is moving toward the highest priority of high need and high occupancy. Both Marion County and Hernando County are moving away from the highest priority. Excluding the two counties within District 3 which have no nursing home beds (Dixie and Union), Hernando County has the lowest bed-to-elderly population ratio in the District. Considering occupancy rates over the past three years based solely upon licensed beds, Hernando County has demonstrated a marked decrease in utilization. Thus, even though Hernando has had a growth in population and experiences a lower bed-to- population ratio than the District as a whole, there is no stress on the nursing home bed supply in Hernando County. There is, moreover, no evidence of a high need to add additional bed capacity in Hernando County. The recently opened 120-bed Beverly nursing home in Spring Hill will serve to suppress or depress the overall rate of occupancy in Hernando County, making the occupancy rate even lower. There are a number of reasons why an area that has a relatively low bed-to-population ratio may also experience low occupancy. While a county or a planning area is defined by political boundaries, people do not necessarily stay within those boundaries for nursing home services. Socio-economic factors, the quality of existing nursing home services and the existence of alternatives, such as assisted living facilities, driving times and distances, the proximity of family, all may play a role in determining occupancy rates in a particular area. With regard to Planning Area 6, Hernando County, there are five nursing homes in northern Pasco County within a 15-mile radius of the center of Spring Hill, Life Care’s proposed location. Three of the four existing nursing homes in Hernando County have had downward occupancy trends. Occupancy rate may be expected to further drop with the recently licensed 120-bed facility in Spring Hill. Marion County has far and away the highest number of approved beds and a very high ratio of approved beds to licensed beds, thus providing significant additional capacity in that planning area. While the local health plan for District 3 affords no priorities based upon data concerning patient origin, Beverly attempted to demonstrate a greater need for additional beds in Marion County, as opposed to Citrus County, through patient origin information reported in those two counties. Beverly concluded that while 99 percent of the Citrus County population placed in a nursing home seek care within Citrus County, only 78 percent of Marion County residents placed in a nursing home seek nursing home care in Marion County. A 1996 nursing home data report showed that 147 Marion County residents sought nursing home care outside of Marion County, primarily in adjacent Levy, Sumter and Citrus Counties. Beverly’s analysis fails to establish need in Marion greater than in Citrus. First, it fails to take into account the 309 approved beds which will significantly add to Marion County’s capacity. Second, Citrus County’s occupancy rates are slightly higher than Marion County’s. Third, the data relied upon by Beverly’s expert performing the analysis is incomplete in that two or three nursing homes in Marion County did not report any data regarding patient origin. And finally, there are a number of reasons, found above, for why residents of one planning area choose a nursing home in another planning area. The Extent and Quality of Services Overview The District 3 local plan expresses a preference and priority for applicants which propose specialized services to meet the needs of identified population groups. Examples of such services include care for special children, care for Alzheimer’s or dementia patients, subacute care, and adult day care. Only a small percentage of nursing home care is provided to children. Proposing such care does not in the ordinary nursing home case carry much weight. Nor was there any demonstration that there is an unmet need for pediatric nursing home services in District 3. Nonetheless, it is at least noteworthy that only Arbor proposes care for special children as part of its pediatric services; the other two do not propose pediatric care at all. Arbor is also the only applicant that demonstrated a need for subacute care in its planning area and that is committed to provide such care. Utilizing a reasonable methodology, Arbor demonstrated a need for 41 additional subacute care beds in Citrus County. Arbor’s 16-bed subacute unit is consistent with that demonstrated need. While Beverly and Life Care propose to offer skilled, short-term services, neither proposes a distinct subacute unit. Indeed, Beverly’s skilled Medicare unit will not provide subacute care or services. Life Care’s subacute "program" will be implemented only if management later verifies a community need for such a program. While Life Care proposes to offer adult day care for five clients, Life Care did not identify a need for such services in Hernando County. Each of the applicants proposes to offer services and programs for residents with Alzheimer’s disease or dementia and each intends to service AIDS patients, provide respite care, and offer rehabilitation therapy services. Given the mix of services proposed, as well as Arbor’s commitment to such services, Arbor best meets the local health plan’s priority for the provision of specialized services to meet the needs of identified population groups. Subacute Care Arbor will offer a full range of subacute services, programs, and staffing it in its quest to be a premier provider of subacute services. In contrast, neither Beverly nor Life Care demonstrated a need for subacute care in their districts. In keeping with this lack of demonstration, neither Beverly nor Life Care made any commitment to a dedicated and distinct subacute unit or the provision of such services. Care for Alzheimer’s and Dementia Patients Approximately 50 percent of residents within nursing homes suffer from Alzheimer’s Disease or some form of related dementia. All three applicants propose to serve such patients and offer specified programs and rehabilitative services to these patients. Arbor, however, differs from Beverly and Life Care in its approach to treating those with Alzheimer’s. Beverly and Life Care propose secured, dedicated Alzheimer’s units. Arbor, while clustering patients within the facility in terms of the level of care and resources which each requires, follows a policy of mainstreaming residents with Alzheimer’s within the general nursing home population. There is a difference of opinion in the health care community as to which approach is better: secured, dedicated Alzheimer’s units or mainstreaming. There are both positive and negative aspects to dedicated, secured Alzheimer’s units. And it may turn out that the positive aspects prevail ultimately. But, at present, the results of research are inconclusive. The conclusion cannot yet be drawn that a secured, dedicated unit provides a more effective manner, either from a clinical standpoint or a cost-effective standpoint, of treating and caring for Alzheimer’s or dementia patients. Medicaid Services Florida’s State Health Plan expresses a preference for applicants proposing to serve Medicaid residents in proportion to the average subdistrict-wide percentage of the nursing homes in the same subdistrict. Since District 3 is not divided into subdistricts, the applicable comparison is the average District Medicaid utilization: 69.26 percent at the time the applications were filed. Beverly proposes to offer only 55 percent of its patient days to Medicaid patients. Beverly showed that Medicaid utilization has been declining in Marion County to the point at the time of hearing that it was 58 percent. But even if it were appropriate to use Marion County as the equivalent of a subdistrict, Beverly’s commitment would not match the Marion County rate, a rate lower than the district-wide rate. Beverly does not qualify for the preference. Life Care proposes 69.5 percent of its total patient days to Medicaid patients. Life Care qualifies for the preference. Arbor proposes to commit 69.26 percent of its patient days to Medicaid residents in the 104-bed long-term unit of its facility, or a minimum of 67 long-term care beds. In addition, Arbor will dually-certify some of its Medicare-certified beds for Medicaid in its subacute unit for patients who are either admitted on Medicaid or would convert of Medicaid. Typically, an applicant’s commitment to provide a certain percentage of its patient days for services to Medicaid patients is expressed in terms of patient days for the total facility. This batching cycle, however, was unique in that AHCA created a separate subset of nursing home beds, known as short- term beds, and required that separate applications be filed by applicants proposing both long-term and short-term beds. The partition created a problem for each applicant because it set up the possibility that one of the applicant's applications (either the short-term or the long-term) would be approved and the other denied. Arbor solved the problem by considering its 104-bed long term application as an application for a stand-alone project. Beverly and Life Care did not have the problem since they do not intend to have subacute units within their proposed facility. For facilities approved by more than one CON, AHCA uses a blended rate for monitoring compliance with CON conditions. For Arbor’s application, therefore, one could argue that a blended rate of 60.03 percent, composed of 69.23 percent for 104 beds and 0 percent for the 16 subacute beds, which is the rate Arbor proposes for the entire 120-bed facility, should apply. Whether applying a blended rate or using the rate applicable to long-term beds, Arbor is entitled to the State Health Plan preference for service to Medicaid patients. Financial Feasibility With one exception, all parties stipulated that each of the three applicants propose projects that are financially feasible both immediately and on a long-term basis. The exception relates to the listing in Arbor’s application in Schedule 6 of understated proposed wages for certified occupational therapy assistants (COTAs) and licensed physical therapy assistants (LPTAs). The evidence establishes that through inadvertence, Arbor mislabeled the line item designated as COTAs and LPTAs. The item should have borne a description of therapists aides instead of licensed therapists. Had the item been correctly described, the wages listed were salary levels comparable to wages experienced in other Arbor facilities. The error is harmless. The licensed assistants, that is, the COTAs and LPTAs, were included under the therapist line items within Arbor’s Schedule 6. Thus, the total salary expenses reflected in the schedule are accurate and Arbor’s project is financially feasible in the second year of operation. Even if Arbor has misstated the total amount of salaries for therapists and aides in Schedule 6, Arbor’s project would still be financially feasible because the majority of those costs would be allocated to the Medicare unit and would be reimbursed by the Medicare program. Arbor would continue to show a profit (approximately $189,000) in the second year of operation. Arbor’s proposed project is financially feasible in both the short and long terms.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The applications of Arbor Health Care Company (CON Application Numbers 8471L and 8471S) to construct and operate a 120-bed nursing home facility in Citrus County be GRANTED; and the applications of Beverly Savana Cay Manor, Inc. (CON Applications Numbers 8484L and 8484S) and Life Care Health Resources, Inc. (CON Applications Numbers 8479L and 8479S) to construct and operate 120-bed nursing home facilities in Marion and Hernando Counties, respectively, be DENIED. DONE AND ORDERED this 17th day of February, 1998, in Tallahassee, Leon County, Florida. DAVID M. MALONEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 17th day of February, 1998. COPIES FURNISHED: Diane D. Tremor, Esquire John L. Wharton, Esquire Rose, Sundstrom & Bentley, LLP 2548 Blairstone Pines Drive Tallahassee, Florida 32301 R. Bruce McKibben, Esquire Holland & Knight, LLP Post Office Box 810 Tallahassee, Florida 32301-0810 Jay Adams, Esquire Douglas L Mannheimer, Esquire Broad & Cassel Post Office Box 11300 Tallahassee, Florida 32302-1300 Richard A. Patterson, Esquire Office of the General Counsel Agency for Health Care Administration Post Office 14229 Tallahassee, Florida 32317-4229 Jerome W. Hoffman, General Counsel Agency for Health Care Administration Fort Knox Building 3 2727 Mahan Drive Tallahassee, Florida 32308-5403 Sam Power, Agency Clerk Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308-5403
The Issue Should Respondent, Agency for Health Care Administration, rate Petitioner, Capital Health Care Center's nursing home facility license "conditional" for the period March 9, through May 4, 2000? Section 400.23(7), Florida Statutes. In particular, has Petitioner violated the requirements of Tag F324 as determined in Respondent's periodic survey concluded on March 9, 2000? Is Tag F324 a "Class II" deficiency? Section 400.23(8)(b), Florida Statutes. In the event that Petitioner is shown to have violated Tag F324 and the Tag is found to be a Class II deficiency, the parties agree that Petitioner was subject to a "conditional" license from March 9, through April 10, 2000. Did the results of the Respondent's survey concluded on March 9, 2000, reveal violations of Tags F371 and/or F372, "Class III" deficiencies that were not corrected before April 10, 2000, the date upon which Respondent resurveyed Petitioner's nursing home facility? If the alleged violations of Tags F371 and/or F372 were proven as of the survey that concluded on March 9, 2000, and were not corrected by April 10, 2000, when the facility was resurveyed, the parties agree that Petitioner held a "conditional" license from April 10, 2000, until such time as the last of Tag F371 of Tag F372 deficiencies were corrected. Further, the parties agree that failing Petitioner's proof of the date upon which the Tag F371 and/or Tag F372 deficiencies as established were corrected, Petitioner's license was properly rated as a "conditional" license until May 4, 2000, the date upon which Respondent conducted a third survey in the series of surveys directed to the Petitioner and found no further violations?
Findings Of Fact Stipulated Facts Petitioner is a nursing home licensed by Respondent pursuant to the authority granted in Chapter 400, Florida Statutes. Petitioner is located at 3333 Capital Medical Boulevard, Tallahassee, Florida 32308. On March 6 through March 9, 2000, Respondent conducted a survey at Petitioner's facility. As a result of that survey, Respondent alleged that Petitioner was not in compliance with the requirements of Tag F203, Tag F324, Tag F371, and Tag F372. On April 10, 2000, Respondent conducted a revisit survey at Capital. As a result of that survey, Respondent determined that Petitioner had corrected the deficiencies alleged under Tag F203 and F324. Respondent alleged that Petitioner had failed to correct the deficiencies alleged under Tag F371 and Tag F372. On May 4, 2000, Respondent conducted another revisit survey at Capital and determined that all alleged deficiencies had been corrected. Tag F324 requires "the facility must ensure that each resident receives adequate supervision and assistance devices to prevent accidents." Respondent alleges that this requirement was not met during the March 6-9, 2000, survey, and that the deficiency had a scope and severity of "G" and constituted a Class II deficiency. Tag F371 requires "The facility must store, prepare, distribute, and serve food under sanitary conditions." Respondent alleges that this requirement was not met during the March 6-9, 2000, and the April 10, 2000, surveys and that the deficiency had a scope and severity of "F" during the March survey, a scope and severity of "D" during the April survey, and constituted a Class III deficiency at both surveys. Tag F372 requires "The facility must dispose of garbage and refuse properly." Respondent alleges that this requirement was not met during March 6-9, 2000, surveys and that the deficiency had a scope and severity of "D" and constituted a Class III deficiency at both surveys. Tag F324 At times relevant to the inquiry Resident 21 has lived in Petitioner's nursing home. On February 16, 2000, Resident 21 left the nursing home and visited her sister at the sister's home. To prepare the resident for her outing, two CNAs got Resident 21 up from her bed in the nursing home and placed her in a wheelchair. A lifting hoist was not used for this transfer. On this morning the two CNAs did not use the mechanical lift, being unable to locate the lift device. Therefore they opted to manually lift Resident 21 from the bed to the wheelchair. A sheet was used to lift Resident 21 into her wheelchair. At the time Resident 21 was paraplegic. She had had a knee cap removed and that leg was stiff. When referring to the one leg as stiff, it describes the fact that the leg will not bend at the knee. On February 16, 2000, once in the wheelchair, Resident 21 was transported to her sister's house by van or bus. Resident 21 remained seated in her wheelchair for her visit with her sister. Resident 21 was transported from the sister's home back to the nursing home by van or bus, again remaining in the wheelchair. Resident 21 was taken in and out of the van or bus during the trips to and from her sister's home by use of a lift in the vehicle. On February 16, 2000, while visiting with her sister Resident 21 offered no complaint about pain or discomfort in her legs. When Resident 21 returned to her room following her visit with her sister, two CNAs transferred her from the wheelchair to her bed. The two persons who made this transfer were not the same persons as had placed Resident 21 in the wheelchair earlier in the day. At the moment there was no lift pad under Resident 21 to facilitate the transfer by using the mechanical lift. The lift device attaches to the pad under the upper thigh of a resident, and with the use of the hoist elevates the resident from the wheelchair to the bed or from the bed to the wheelchair. One of the CNAs determined to manually transfer Resident 21 from the wheelchair to the bed. This followed the request of Resident 21 to be placed in her bed. Before Resident 21 was lifted from the wheelchair to the bed she complained that her legs hurt. At the time that the CNAs moved Resident 21 from the wheelchair to the bed there was a fitted sheet under Resident 21. When Resident 21 was returned to her bed from the wheelchair, one CNA grasped Resident 21's upper torso under her arms, while the other CNA lifted Resident 21 by grasping her in the area behind her knees. On this occasion in returning Resident 21 to her bed, the arm of her wheelchair was taken off and the foot rest adjusted. During the transfer from the wheelchair to the bed and after the resident was placed in the bed she offered no complaint about her condition. The CNAs in Petitioner's nursing home are trained to use the pad with the hoist or to have two CNAs pick a person in Resident 21's condition up by the upper torso and legs in making a transfer from the wheelchair to the bed. In the event the pad is not available, under Petitioner's policy, the CNAs may make a manual lift. The CNA who normally worked with Resident 21 looked for the lifting pad before seeking the assistance of the other CNA to make a manual lift. Having not located the pad, she determined to seek the assistance of the other CNA to conduct the manual lift from the wheelchair to the bed. On February 17, 2000, Resident 21 complained of leg pain. This led to an X-ray being performed revealing a fracture to the right ankle. As revealed in the nurses' notes for Resident 21 in explaining the physical condition, Resident 21 refers to her foot being caught under the CNA's arm when the transfer was made from the wheelchair to the bed. With this in mind, and the description by Resident 21 in the nurses' notes that an accident had taken place at that time, it is inferred that the fracture occurred to the resident's right ankle when being lifted from the wheelchair to the bed upon the return from her visit with her sister. Notwithstanding the attempt by the CNAs to use an appropriate technique in the manual lift from the wheelchair to the bed, the resident's foot was caught under the CNA's arm and sometime during the process the ankle was fractured. Results of in-service counseling provided to the CNAs who manually lifted Resident 21 on February 16, 2000, reveal Petitioner's intent to rely upon the use of mechanical lifting devices in contrast to manual lifts as a policy matter. During the March 6-9, 2000 licensing survey conducted by Respondent at Petitioner's facility, a Tag F324 citation Class II deficiency, was noted in relation to non-compliance with the facility expectation that the preferred patient transfer technique would be to employ a mechanical assist, not a manual assist when lifting residents. As described, the circumstances were different for Resident 21. According to the summary of deficiencies in survey Form 2567 executed during the survey, the subsequent lift from the wheelchair to the bed eventuated in a fracture to Resident 21's lower extremity. The referenced deficiency for Tag F324 corresponds to 42 C.F.R. Section 43.25(h)(2). Tag F371 Tag F371 is in relation to 42 C.F.R. Section 43.35(h)(2). This provision requires the nursing home facility to store, prepare, distribute, and serve food under sanitary conditions. During the March 2000 survey conducted by Respondent at Petitioner's facility, it was noted on the survey Form 2567 that Tag F371 alleged deficiencies were discovered in the facility kitchen. On March 7, 2000, it is alleged that six dessert bowls and two plates were dirty with food residue on the surfaces of those items. Ms. Myra Flores was a survey team member. She is a public health nutrition consultant for Respondent. She holds a bachelor of science degree in food and nutrition, a master of public health and nutrition and is a doctoral candidate. She is a registered dietitian licensed in the State of Florida. She had undergone the Surveyor Minimum Qualifications Test allowing her to evaluate complaints of health care facilities within federal regulations. In her inspection in March 2000, Ms. Flores found dessert bowls and plates that were stored, indicating that they had already been washed. Nonetheless the items had food residue on their surfaces. From her perspective as a public health nutritionist, contamination of utensils in facilities that house residents who have compromised immune capacity is a concern. There is an issue with food-borne illnesses. It can be inferred that a nursing home is a place in which residents have compromised immune capacity. Ms. Ann McElreath was assigned by Respondent to re- survey Petitioner's facility. That re-survey was conducted on April 10, 2000. Ms. McElreath holds an A.S. degree in nursing and a bachelor of science degree in psychology. Her observations concerning the re-survey were recorded on a Form 2567 dated April 10, 2000. That form notes an alleged repeat Class III deficiency Tag F371 pertaining to observation of pans in a drain rack with food particles on them. According to the report, discussion was had with staff members in which it was stated that the pans were items waiting to be re-washed. Inspection of other pans identified to be cleaned and ready for use again revealed two out of four having food particles on the surface, according to the report. When McElreath inspected the facility kitchen on April 10, 2000, she entered the kitchen and was standing by the dish-washing area where a staff member at the facility had just completed "doing the dishes" and there were aluminum-type banking pans draining. Ms. McElreath inquired of the attendant if those pans had been finished, to which the employee replied "yes." Ms. McElreath picked up the pans and examined them and some had food particles on them. This was pointed out to the employee. Mr. Paul Kobary, Petitioner's nursing home administrator, was in the kitchen at that time. In reference to those pans he stated that those were pans that were going to be re-washed. After a moment's hesitation, the other employee at the facility agreed with Mr. Kobary's comment concerning the re-wash. Ms. McElreath asked that the unnamed employee identify items that were clean. That woman pointed to a rack. Ms. McElreath pulled four additional pans identified as being clean and found two of the four to have food particles attached. Tag F372 Under 42 C.F.R. §483.25(h)(3) is the reference to Tag F372. This provision requires the nursing home facility to dispose of garbage and refuse properly. As noted in Form 2567 for the March 200 survey, Petitioner was alleged to have violated Tag F372. During the March 2000 survey Ms. Flores observed facility practices in connection with disposing of refuse. She observed a garbage bin being transported from the facility kitchen to the dumpsters that serve the facility. The material being transported was not covered. There was trash inside the bin being removed from the facility and boxes were piled on top of the bin. Petitioner's employee took the boxes and placed those in one of the dumpsters. The dumpster in which the boxes were placed through a side opening was then closed. An untied plastic container with garbage inside was then removed from the bin used for transport and then placed through a door on the side of another dumpster. After which the dumpster where the untied container of garbage was located was left partially open in that the door providing access to the dumpster was not completely closed. At hearing Ms. Flores expressed the concern that by leaving the side door opened to the dumpster in which the garbage bag had been placed invited the harborage and the feeding of pest and varmints because that dumpster contained food refuse from the kitchen. The dumpster was located outside of the facility in the vicinity of the woods and grass making the discarded food available to those pests. Based upon the incident in which the dumpster had been left open following the disposal of the garbage bag, a Tag F372 incident was recorded on Form 2567 corresponding to a Class III deficiency. In response Petitioner committed to a plan of correction to be concluded by April 8, 2000, concerning the maintenance of refuse in closed containers. This refers to closed dumpsters. Since that survey Mr. Paul Kobary the nursing home administrator checks twice a day to see that the dumpsters are closed. Other staff members are assigned to check throughout the day to assure that the dumpsters are closed. In the re-survey conducted on April 10, 2000, another alleged Class III deficiency was cited under Tag F372. This citation was made by Ms. McElreath based upon the fact that one of the dumpsters behind the facility allowed liquid substances within the dumpsters to leak out the bottom. Ms. McElreath was concerned that the substance that had leaked out under the dumpster and in the immediate vicinity might have been picked up on the wheels of wheelchairs. The wheelchairs were off to the side being washed down by the staff. Ms. McElreath worried that once the wheelchairs were returned to the facility the unidentified liquid attached to the wheels would be introduced into the facility proper. The problem with the leaking dumpster was reported as an uncorrected Class III deficiency associated with the problems experienced with the dumpster with uncovered garbage described in the March 2000 survey. Nursing Home Scope and Severity Chart The parties are bound by the Nursing Home Scope and Severity Chart which characterizes the severity of the alleged deficiencies. Respondent's Exhibit 15. Under this scheme a severity of "G" represents actual harm but not immediate jeopardy. Alleged deficiencies with a severity of "D" and "F" represent a potential for more than minimal harm.
Recommendation Upon consideration of the findings of facts and conclusions of law reached, it is RECOMMENDED: That a final order be entered in which Respondent assigns Petitioner a conditional license for the period March 9 through May 4, 2000. DONE AND ENTERED this 14th day of December, 2000, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of December, 2000.
The Issue DOAH Case No. 01-3072: Whether Respondent's licensure status should be reduced from standard to conditional. DOAH Case No. 01-3616: Whether Respondent committed the violations alleged in the Administrative Complaint dated August 23, 2001, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: AHCA is the state Agency responsible for licensure and regulation of nursing homes operating in the State of Florida. Chapter 400, Part II, Florida Statutes. Jacaranda Manor operates a 299-bed licensed nursing home at 4250 66th Street, North, St. Petersburg, Florida. The facility has a staff of approximately 225 persons, including 15 registered nurses ("RNs"), 25 licensed practical nurses ("LPNs"), and 100-125 certified nursing assistants ("CNAs"). Contract nurses also work at the facility on a daily basis. Jacaranda Manor accepts residents from throughout the United States. It is known as a facility that accepts residents with psychiatric or behavioral idiosyncrasies that other nursing homes might be unwilling to handle. Jacaranda Manor residents are admitted from state mental hospitals, the psychiatric units of general hospitals, assisted living facilities, group homes, and other nursing homes. Jacaranda Manor also accepts admissions from the Pinellas County Jail, mostly homeless persons whose mental condition makes them inappropriate for a jail setting. While all of Jacaranda Manor's residents have a primary diagnosis relating to a need for nursing home care, almost 90 percent of its residents have a specific mental illness as a secondary diagnosis. All of the residents cited in the AHCA survey deficiencies suffered from mental disorders. One hundred percent of Jacaranda Manor's residents receive services related to mental illness or retardation, compared to a statewide average of 2.6 percent. Jacaranda Manor's population includes residents with Alzheimer's disease, schizophrenia, dementia, multiple sclerosis, cerebral palsy, muscular dystrophy, Huntington's chorea, spinal cord injuries and closed head injuries. Over 97 percent of Jacaranda Manor's residents are expected never to be discharged. More than 40 of Jacaranda Manor's residents have lived there for at least 25 years. Statewide, 59.2 percent of nursing home residents are never expected to be discharged. Two-thirds of Jacaranda Manor's residents are male, as opposed to a statewide average of 31.3 percent. Thirty- five percent of Jacaranda Manor's population is under age 50. Ninety-one percent of Jacaranda Manor's residents are Medicaid recipients, as opposed to a statewide average of 64 percent. Jacaranda Manor also operates the HCR Training Center, a licensed vocational school for CNAs, located across the street from the main nursing home. The center provides free training for prospective CNAs, and Jacaranda Manor employs the trainees and graduates. The course of study lasts six weeks, and each class usually has 20-25 students. The school day consists of four hours of classes followed by paid on-the-job training at Jacaranda Manor. Students generally work 30 hours per week at Jacaranda Manor. As part of its effort to create a home-like atmosphere for residents, Jacaranda Manor does not require staff to wear uniforms. The facility has no particular dress code for employees, aside from a requirement that they wear safe, protective shoes. Some of the administrative personnel wear name tags, but are otherwise indistinguishable from other employees. Thus, an outside observer could not be certain, without further inquiry, whether the "staff person" she sees in the facility is a nurse, a CNA, a CNA trainee, or a maintenance worker. The standard form used by AHCA to document survey findings, titled "Statement of Deficiencies and Plan of Correction," is commonly referred to as a "2567" form. The individual deficiencies are noted on the form by way of identifying numbers commonly called "Tags." A Tag identifies the applicable regulatory standard that the surveyors believe has been violated and provides a summary of the violation, specific factual allegations that the surveyors believe support the violation, and two ratings which indicate the severity of the deficiency. One of the ratings identified in a Tag is a "scope and severity" rating, which is a letter rating from A to L with A representing the least severe deficiency and L representing the most severe. The second rating is a "class" rating, which is a numerical rating of I, II, or III, with I representing the most severe deficiency and III representing the least severe deficiency. On April 3 through 6, 2001, AHCA conducted a licensure and certification survey of Jacaranda Manor, to evaluate the facility's compliance with state and federal regulations governing the operation of nursing homes. The survey noted one deficiency related to difficulty in opening two exit doors at the facility, but noted no deficiencies as to resident care. AHCA found Jacaranda Manor to be in substantial compliance with 42 C.F.R., Part 483, Requirements for Long Term Care Facilities. Pursuant to the mandate of the federal Centers for Medicare and Medicaid Services ("CMS") (formerly the Health Care Financing Administration, or "HCFA"), AHCA maintains a "survey integrity and support branch," also known as the "validation team." To ensure the quality and consistency of its survey process, AHCA sends the validation team to re- survey facilities that have received deficiency-free initial surveys. Because its April 2001 survey revealed no deficiencies related to resident care, Jacaranda Manor was considered deficiency-free. On May 8 through 11, 2001, AHCA's validation team conducted a second survey at Jacaranda Manor. The validation team alleged a total of thirteen deficiencies during the May 2001 survey. At issue in these proceedings were deficiencies identified as Tag F241 (violation of 42 C.F.R. Section 483.15(a), relating to resident dignity); Tag F250 (violation of 42 C.F.R. Section 483.15(g), relating to social services); and Tag F272 (violation of 42 C.F.R. Section 483.20(b)(1), relating to resident assessment). All of the deficiencies alleged in the May 2001 survey were classified as Class III under the Florida classification system for nursing homes. At the time of the survey, Class III deficiencies were defined as those having "an indirect or potential relationship to the health, safety, or security of the nursing home facility residents, other than Class I or Class II deficiencies." Section 400.23(8)(c), Florida Statutes (2001). Jacaranda Manor disputed the deficiencies alleged in the May 2001 survey and elected to go through the federally authorized Informal Dispute Resolution ("IDR") process. See 42 C.F.R. Section 488.331. The IDR process allows the facility to present information to an AHCA panel, which may recommend that the deficiencies alleged in the survey be deleted, sustained, or modified. Under AHCA's application of the process, the three-member AHCA panel considers the facility's information and then makes a recommendation to Susan Acker, the director of AHCA's health standards and quality unit, who makes the final decision. The IDR meeting was held via teleconference on June 11, 2001. The IDR resulted in AHCA's upholding all the deficiencies alleged in the May 2001 survey. AHCA modified the state level classification of Tag F241 from Class III to Class II. At the time of the survey, Class II deficiencies were defined as "those which the Agency determines have a direct or immediate relationship to the health, safety, or security of the nursing home facility residents, other than class I deficiencies." Section 400.23(8)(b), Florida Statutes (2000). This change in classification was recommended by the IDR panel and approved by Ms. Acker. The IDR meeting also resulted in AHCA's changing Tag F272 to Tag F309 (violation of 42 C.F.R. Section 483.25, relating to quality of care) and to classify the alleged Tag F309 deficiency as Class II. This change was made by Ms. Acker alone. The IDR panel recommended upholding the original Class III, Tag F272 findings, but increasing the federal scope and severity rating from D (no actual harm but with potential for more than minimal harm) to G (actual harm that is not immediate jeopardy). Ms. Acker overruled that recommendation and imposed the change to Tag F309. Based on the increased severity of the alleged deficiencies in Tags F241 and F309, from Class III to Class II, AHCA imposed a conditional license on Jacaranda Manor, effective May 15, 2001. The license expiration date was February 28, 2002. On June 19 and 20, 2001, AHCA conducted a follow-up survey of Jacaranda Manor to determine whether the deficiencies alleged in the May 2001 survey had been corrected. The survey team determined that Tags F241 and F250 were uncorrected Class III deficiencies. This determination resulted in the filing of an Administrative Complaint seeking imposition of a $2,000 civil penalty. May 2001 Survey A. Tag F241 The May 2001 validation survey allegedly found violations of 42 C.F.R. Section 483.15(a), which states that a facility must "promote care for residents in a manner and in an environment that maintains or enhances each resident's dignity and respect in full recognition of his or her individuality." In the parlance of the federal Health Care Financing Administration Form 2567 employed by AHCA to report its findings, this requirement is referenced as "Tag F241." Tag F241 is commonly referred to as the "quality of life" or "dignity" tag. For purposes of the Form 2567, the validation team gave the alleged deficiencies on the May 2001 survey a federal scope and severity rating of E for Tag F241. A rating of E indicates that there is a pattern of deficiencies causing no actual harm to the residents but with potential to cause more than minimal harm. After the IDR process, the federal scope and severity rating for Tag F241 was increased to H, meaning that there is a pattern of deficiencies causing actual harm that is less than immediate jeopardy to the health or safety of the residents. The increase of the federal scope and severity rating from E to H corresponded to the increase of the state level classification from Class III to Class II. The Form 2567 for the May 2001 survey listed nine separate incidents under Tag F241, the dignity tag. The first surveyor observation involved Resident 31, or "R-31": On 5/11/01 at 8:30 a.m., R-31 was observed in a 4 bed room, sitting on his/her bed eating breakfast. The resident had no clothes on, had a colostomy bag and foley catheter visible to anyone walking by in the hallway. A staff member went into the room to another resident but did not cover R-31. A second staff member came to the doorway of the room to talk to the first staff member and also did not attempt to cover the resident. Marsha Lisk was the AHCA team coordinator for the May 2001 survey and was the team member who recorded the observation of R-31. Ms. Lisk stated that this was a random observation, made without benefit of reviewing R-31's records. Ms. Lisk could not identify the two staff members who failed to cover R-31, aside from a recollection that one of them was a CNA. She was "astounded" that the staff persons did not intervene to cover the naked resident, especially because they could see that Ms. Lisk was standing in the doorway taking notes. Ms. Lisk would have thought nothing more of the incident had the staff members done anything to obscure the view of the resident from the hallway. Ms. Lisk admitted that R-31 appeared to be in no distress, and that no other resident complained about his nudity. Twenty minutes after this observation, Ms. Lisk saw R-31 fully clothed and being pushed in a wheelchair down the hall. Ms. Lisk noted this incident as a deficiency because she believed nudity cannot be considered to meet community standards under any circumstances. Even if the resident consciously preferred nudity, or was so mentally incapacitated as to be unaware he was nude, it was staff's responsibility to cover the resident, pull a curtain around him, or move his bed to a place where it could not be seen from the hall. At the hearing, it was established that R-31 was a 59-year-old male with multiple medical and psychiatric diagnoses, including schizophrenia and dementia due to organic brain syndrome. He preferred to sleep in the nude and to dress himself, though he required some assistance to do so properly. He was able to close his own privacy curtain. R-31 was very resistant when staff approached to dress him, to the point of physically lashing out. R-31 would refuse to eat if he was pushed to clothe himself near meal time. Carol Heintz, Jacaranda Manor's psychiatric nurse manager, stated that the main goal was to get R-31 to eat his breakfast, and that staff was concerned that any effort to dress him would disrupt his meal. Ms. Heintz offered no reason why the door could not be closed or the privacy curtain drawn while R-31 ate his breakfast in the nude. R-31 also preferred to keep his colostomy uncovered. Staff would cover it and encourage him to keep it covered, but he would refuse to do so. Ms. Lisk, the surveyor, admitted that she did not review R-31's record even after her observation. She made no attempt to interview R-31 and admitted that she was unaware of his habits and preferences. The second surveyor observation on Tag F241 concerned Resident 21,1 or "R-21", and stated: During the tour on 5/08/01, at approximately 10 a.m., a staff member invited the surveyor into a room to meet [R-21]. He/she was in adult briefs uncovered lying on his/her bed. There was no attempt to cover the resident to insure privacy. At approximately 4:40 p.m. [R-21] was observed from the hallway lying in bed in his/her adult brief with no pants on and the privacy curtain not drawn. Kriste Mennella was the survey team member who recorded the observation of R-21, identified only as a male resident. She did not review the facility's records relating to R-21, and offered no testimonial details beyond the facts set forth in her observation. She did not interview the resident and did not know whether the resident was able to respond to questions. Jacaranda Manor offered no explanation as to why the door could not have been closed or the privacy curtain drawn to prevent passersby from seeing R-21 uncovered in his bed. The third surveyor observation on Tag F241 concerned Resident 8, or "R-8," and stated: [R-8] was observed on 5/8/01 wheeling out of the dining area with several staff present. He had a black polo shirt on inside out and his Khaki pants, along with his adult brief, were down to his knee's [sic] exposing his right lower side and hip. There was no intervention by staff. He was unshaven and had dirty hand [sic] and his fingernails were ragged and dirty. His hair was unkempt. On 5/9/01 through out [sic] the day [R-8] was observed to have on two different shoes. One was a tennis shoe with his name written across the top and the other a brown loafer. Ms. Mennella recorded the observations of R-8. Ms. Mennella identified the unnamed staff persons as "management folks" who were following the surveyors around the facility, and the person in charge of the dining room. These staff persons told Ms. Mennella on May 8 that they did not intervene because R-8 was "resistive to care." Ms. Mennella subsequently discussed R-8 with a CNA, who told her that the resident may or may not be combative, depending on how he is approached. Ms. Mennella believed that some intervention should have occurred even with a combative resident, if only verbal prompting to tell the resident that his pants were down and he should pull them up. She observed R-8 throughout the three days of the survey, but did not see him with his pants down again after the May 8 observation. On May 9, when she saw R-8 wearing unmatched shoes, Ms. Mennella went to the resident's room and confirmed that he did have matching shoes. R-8 was a 46-year-old male with multiple medical and psychiatric diagnoses, among them paranoid schizophrenia. R-8 saw a variety of mental health professionals, including a psychiatrist, a psychiatric ARNP for medication management, a psychologist for individual therapy, and a licensed clinical social worker for group therapy. R-8 was classified as an elopement risk, paranoid and suspicious with a history of aggression. R-8 did not require a wheelchair to ambulate. R-8 habitually carried his "things" (e.g., a radio, or a box containing items sent him by a relative) with him as he moved about the facility. He liked to use a wheelchair to more easily carry his possessions. R-8 dressed himself, usually with some assistance in the morning. He changed clothes five or six times a day. Sometimes he would wear two different outfits in layers, or wear unmatched shoes. Jacaranda Manor staff uniformly noted that there was nothing unusual in R-8 having his shirt on inside-out or backwards, because he was constantly taking his clothes off and on. R-8 liked to wear his pants unbuttoned. He often moved about the facility holding his pants up with one hand, and his pants would often droop down to his knees. Jacaranda Manor staff constantly intervened in an effort to keep R-8 properly clothed. He was sometimes compliant, but other times would resist pulling up his pants. He would curse and run out of the room, or threaten to tell the President of the United States about his treatment. R-8 was indifferent to his appearance, displaying anxiety about his clothing only when staff attempted to change it. He would muss his hair as soon as it was brushed. His hands would get dirty because R-8 had a habit of rooting on the ground or through ashtrays for cigarette butts to smoke. Since the survey, Jacaranda Manor has addressed this problem by installing ashtrays that the residents cannot reach into. Ms. Mennella testified that she knew nothing about R-8's preferences or behaviors regarding clothing. She did not know he had a habit of tousling his own hair. She did not know he had a habit of rooting for cigarettes. She did not ask who wrote R-8's name on his shoe. Jacaranda Manor has a policy of not marking residents' clothing, for privacy reasons. However, R-8 would write his own name on his shoes and other items he received from his family because he was proud of them. The fourth surveyor observation on Tag F241 concerned an unnamed resident: During an observation on 5/9/01, outside in the lifestyles patio area, at approximately 9:10 a.m., a staff person who was on break under the pavilion shouted across the courtyard to a resident in a loud voice, "MR. (name) PULL UP YOUR PANTS." There was [sic] several staff on break and at least 15 other residents out side [sic] in the patio area at the time. Ms. Mennella recorded this observation. She testified that the staff person who yelled was an aide. By the time she looked to see whom the staff person was calling to, Ms. Mennella could see no resident with his or her pants down. Not having seen the resident, Ms. Mennella was unable to say whether the staff person could have reached the resident before his or her pants came down. Her concern was the tone and manner in which the instruction was given, and the embarrassment it could have caused the resident. Despite not having seen the resident, Ms. Mennella was certain that the staff person was addressing a male. Rosa Redmond, the director of nursing at Jacaranda Manor, testified that she learned of the incident shortly after it happened. A CNA and a trainee from the HCR Training Center told her of the incident. It was the trainee who called out to the resident. The trainee told Ms. Redmond that a female resident's slacks were starting to fall. The trainee was concerned that the resident would fall, and could not reach the resident in time to pull up her slacks, so the trainee called out to the resident. The fifth surveyor observation on Tag F241 was a general statement: Residents were observed during numerous random observations out in the patio area during all three days of the survey to have on only socks, no shoes on their feet. As a result the socks were black on the bottom. These general observations were made by surveyors Mary Maloney and Kriste Mennella. Ms. Maloney testified that she has surveyed nursing homes from Pensacola to Key West, including homes that accept mental health residents and have secured units, but that she has never seen another facility in which residents are allowed to walk around barefoot or only in dirty socks. In her experience, staff would intervene and redirect the residents to put on shoes or change their socks. Ms. Maloney testified that she asked one resident why he was not wearing shoes. The resident told her that he did not want to wear shoes, and showed Ms. Maloney several pairs of shoes in his closet. Ms. Maloney did not cite this instance as a deficiency. However, she noted other shoeless residents who appeared confused or cognitively impaired, and did cite these instances as deficiencies because of staff's failure to intervene or to assess why the residents resisted wearing shoes. Ms. Maloney admitted that the survey team discussed the issue of residents not having proper footwear, and determined that it caused no actual harm to the residents. Jacaranda Manor did not contest the fact that residents often go barefoot or wear only socks. Through various sources, the facility maintains an ample supply of shoes and socks for the residents, and attempts to keep the residents properly shod. However, the facility also tolerates residents' preferences in clothing and footwear, and does not consider the question of footwear a pressing issue. Some residents simply do not want to wear shoes. Some residents feel steadier when they can feel the floor against their bare feet. Carol Heintz, Jacaranda Manor's psychiatric nurse manager, testified that neither therapists nor family members have ever expressed concerns over the issue. No evidence was presented that going barefoot or wearing socks posed a safety risk to the residents. The alleged harm was simply that some of the residents had dirty feet, or dirty socks on their feet. The sixth surveyor observation on Tag F241 offered more specific information on the question of resident footwear: The facility did not assist residents to wear appropriate footwear, in that some of the residents who resided on 1 West, the secure unit, were observed wearing socks without shoes or were barefoot throughout the survey. During the initial tour on 5/08/0 [sic], it was observed that several residents were pacing and walking throughout 1 West, with only socks on. Some of these residents walked outside on a sidewalk. The soles of these resident's [sic] white socks were soiled dark gray. On 05/08/01, at 6:50 p.m., there were three male residents observed to walk around the unit with white socks on. One of these residents had holes in the socks. On 05/09/01 at 10:15 a.m., there was one male resident walking outside in the enclosed courtyard wearing white socks, as well as a female resident who was pacing back and forth on the side walk wearing socks only. On the morning of 05/10/01 at 7:45 a.m., there was a male resident sitting in a chair outside who was barefoot. On 05/11/01, at 9:30 a.m., during the resident's [sic] arranged smoking time on the enclosed courtyard on 1 West, there were several residents walking around wearing only socks on their feet. One male resident was wearing black shoes, but they were different style shoes. This was shown to the direct care staff who were not aware. They were not sure if these shoes belonged to this resident. The staff also stated that some of the resident's [sic] shoes were missing or the residents chose not to wear their shoes. Resident #16 was observed walking around in loose-fitting cloth slippers with rubber soles on 05/09/01, on 05/10/01. The resident showed that she/he had one black dress shoe, because the other shoe was missing. On 05/11/01, the resident was wearing open- toed bedroom slippers. This resident was identified as a fall risk due to akinesia (involuntary movement of the body). The resident's current care plan included an approach "to wear proper fitting shoes with non-skid soles." The resident was observed with a shuffling gait. Resident 16, or "R-16," was a 39-year-old male with HIV, cerebral atrophy, and a history of AIDS-related dementia with delusions. He suffered from depression, anxiety, psychosis, paranoia, and bipolar disorder. He was childlike and possessed poor judgment, forming unrealistic plans to get a job and live on his own outside a clinical setting. R-16 was an elopement risk, which caused a community-based HIV program to reject him for participation. Jacaranda Manor tried placing R-16 in its open unit, but he tried to leave without telling anyone, which necessitated placing him in the facility's secure unit. R-16 abused alcohol, liked to smoke and drink coffee constantly, and was prone to giving away his clothes. R-16 had pronounced preferences as to footwear. While he would occasionally wear regular shoes, he most often wore a pair of fuzzy, open-toed slippers. He would have a temper tantrum if not allowed to wear his slippers. R-16 was at risk of slipping and falling due to akinesia, and staff explained to him the potential safety problems in wearing slippers. R-16 had a peculiar gait, described by Jacaranda Manor personnel as "shuffling" or as a "sashay." His slippers had rubber soles to help prevent slipping. The seventh surveyor observation on Tag F241 concerned Resident 32, or "R-32", and an unnamed resident: On 05/08/01, at 6:50 p.m., during the evening meal, [R-32] was observed from the hallway, sitting in a chair in his room wearing only a t-shirt and an incontinent brief. Several staff were observed to walk past this resident's room and did not attempt to intervene. On 05/09/01, at 10:15 a.m., during a random observation, there was a confused male resident walking outside in the enclosed courtyard, who was removed his pants [sic] and exposed his incontinent brief. There was a female resident pacing back and forth nearby. A direct care staff person who was escorting another resident, walked past this resident without intervening. The surveyor went inside to inform the medication nurse of the situation. Mary Maloney was the surveyor who recorded the observation of R-32 and the unnamed resident. R-32 was a male resident who preferred not to wear trousers. Jacaranda Manor staff tried to convince R-32 to wear trousers. Staff tried different kinds of pants, such as pull-ups, zippered pants, and shorts. R-32 would occasionally accede to wearing the shorts, but while in his room always dressed in his brief and a t-shirt. Jacaranda Manor did not dispute Ms. Maloney's observation of R-32. Jacaranda Manor was unable to address Ms. Maloney's subsequent observation, as she was unable to name the "confused male resident," the pacing female resident, or the staff person who allegedly failed to intervene. Ms. Maloney's observation implies that the unnamed staff person should have intervened, but offers no information as to whether the staff person could have safely abandoned the other resident he or she was escorting at the time. The eighth surveyor observation on Tag F241 concerned Resident 4, or "R-4," and stated: During the breakfast meal observation on 05/09/01 and 05/10/01 at about 9:30 a.m., [R-4] was observed to be fed her/his breakfast at the nurse's station. The staff person was observed to be standing and feeding the resident who was seated in a reclining chair. The resident's meal tray was placed on the counter of the nurse's station, where the resident could not see her/his food. There was a high level of staff activity and residents walking around the area. Ms. Maloney was the surveyor who recorded this observation. Both Alma Hirsch, Jacaranda Manor's chief administrator, and Carol Heintz, the psychiatric nurse manager, testified that R-4 is fed entirely by means of a gastrointestinal tube and thus could not have been eating breakfast at the nurses' station. At the hearing, Ms. Maloney conceded that she might have misidentified the resident on the Form 2567, but was certain that she saw a particular male resident being fed breakfast at the nurses' station on May 9 and 10. Jacaranda Manor did not contest the fact that residents are often fed at the nurses' station. AHCA cited this incident as a deficiency because feeding the resident at a busy nurses' station does not promote his dignity. Ms. Maloney inquired and learned that the resident could not be fed in his room because it was being painted. She acknowledged that the resident in question was difficult to feed, and so prone to violent outbursts that Jacaranda Manor had removed all the furniture from his room for his safety. Ms. Maloney nonetheless thought that Jacaranda Manor staff should have chosen a quieter, less stimulative environment in which to feed the resident. The ninth surveyor observation on Tag F241 concerned Resident 16, or "R-16," and stated: On 05/10/01, at about 3:30 p.m., [R-16] approached the nurse's station and asked the medication nurse for some coffee. (The resident had his/her own personal jar of instant coffee.) The nurse denied the resident the coffee. The nurse stated that the resident's coffee was being rationed to several times per day. According to the nurse, the resident's coffee consumption was restricted because the resident prefers the coffee extra strong, and the resident exhibits effects from the excessive caffeine, described as "bouncing off the walls." From review of the clinical record, there was no physician's order for a caffeine restriction. According to facility policy, the coffee served to the residents is decaffeinated, the nurse reported. Ms. Maloney recorded this observation. R-16 is the same resident cited in the sixth surveyor observation for wearing open-toed slippers. Jacaranda Manor serves only decaffeinated coffee to all residents. R-16 had a personal, "special" jar of instant decaffeinated coffee that was in fact provided by Ms. Hirsch, at her own expense. R-16 was allowed to believe that his "special" coffee was caffeinated. R-16 was incapable of making his own coffee. His jar of coffee was kept in the medicine room near the nurses' station, and R-16 had to ask a nurse to prepare his coffee. The nurse would go to the kitchen for hot water, then prepare the coffee. R-16 drank coffee all day, every day. There were no medical restrictions on how much coffee he could drink. He carried a large mug, and would ask the nurses to prepare his coffee as many as thirty times a day. R-16 would ask insistently until his coffee was made. If the nurses were not busy, they would make the coffee immediately. If they were in the middle of a procedure, they would ask R-16 to wait until they were finished. Elaine Teller was the nurse referenced in the ninth observation. She was the charge nurse at the time of the incident. Ms. Teller was passing medications and speaking to Ms. Maloney when R-16 approached and demanded his coffee. Ms. Teller told R-16 that she was busy and would get his coffee in a few minutes. Ms. Maloney testified that Ms. Teller's response was "inappropriate," in that it had the potential to embarrass R- 16 in front of the people at the nurses' station. Ms. Maloney believed it would have been more appropriate to take R-16 aside and speak with him. Ms. Teller denied treating R-16 rudely or disrespectfully. She was "firm" with R-16 "because that's what [he] needs." Ms. Teller was close to R-16, such that he referred to her as his "second mom." At the time, Ms. Maloney voiced no concern over Ms. Teller's treatment of R-16. Ms. Teller testified that she had delayed but never "denied" coffee to R-16. She had on occasion lectured R-16 that he drank too much coffee, but never stated that R-16's coffee intake was restricted. Surveyors employ a "Guidance to Surveyors" document for long-term care facilities contained in the "State Operations Manual" promulgated by the federal CMS. The guidelines for Tag F241 state: "Dignity" means that in their interactions with residents, staff carries out activities that assist the resident to maintain and enhance his/her self-esteem and self-worth. For example: Grooming residents as they wish to be groomed (e.g., hair combed and styled, beards shaved/trimmed, nails clean and clipped); Assisting residents to dress in their own clothes appropriate to the time of day and individual preferences; Assisting residents to attend activities of their own choosing; Labeling each resident's clothing in a way that respects his or her dignity; Promoting resident independence and dignity in dining (such as avoidance of day-to-day use of plastic cutlery and paper/plastic dishware, bibs instead of napkins, dining room conducive to pleasant dining, aides not yelling); Respecting resident's private space and property (e.g., not changing radio or television station without resident's permission, knocking on doors and requesting permission to enter, closing doors as requested by the resident, not moving or inspecting resident's personal possessions without permission); Respecting resident's social status, speaking respectfully, listening carefully, treating residents with respect (e.g., addressing the resident with a name of the resident's choice, not excluding residents from conversations or discussing residents in community setting); and Focusing on residents as individuals when they talk to them and addressing residents as individuals when providing care and services. The same document sets forth survey procedures, and emphasizes examining the context of staff's actions: . . . As part of the team's information gathering and decision-making, look at the actions and omissions of staff and the uniqueness of the individual sampled resident and on the needs and preferences of the resident, not on the actions and omissions themselves. The issue of patient dignity was the subject of extensive testimony at the hearing. Ann Sarantos, survey integrity and support manager for AHCA and an expert in long- term care nursing practice, testified that the surveyors understood that residents will remove their shoes and clothing, particularly in a facility with the resident population of Jacaranda Manor. The survey team acknowledged that Jacaranda Manor's population was unique in terms of the number of mentally ill residents. Ms. Sarantos stated that AHCA's central concern was staff's lack of sensitivity. The surveyors repeatedly saw staff making no effort to cover the residents or get them into shoes, even when the surveyors pointed out the problems. Ms. Sarantos stated that AHCA does not set a different dignity standard for patients with psychiatric or organic conditions. She noted that a high percentage of residents in any nursing home will have some form of dementia or behavioral problem, and that the facility must plan its care to manage these problems. She stated that AHCA employs the same survey procedures for all facilities, regardless of the patient population. Patricia Reid Caufman, an expert in social work, opined that the residents are nursing home patients regardless of their diagnoses. When the facility accepts these patients, it does so on the basis that it can meet their needs, including their dignity needs. Susan Acker is the nursing services director of AHCA's health standards and quality unit. She is an expert in long-term care and was the person who made the final decision as to the classification of Jacaranda Manor's deficiencies. Ms. Acker stated that the provision of adequate clothing and footwear is a "fundamental level of compliance." The individuals listed under the Tag F241 deficiencies had portions of their bodies exposed in a way that does not conform to the community standard of a nursing home. The "community standard" for a nursing home includes an expectation that a resident will be dressed in his or her own clothes and assisted in dressing and making appropriate selections, or, if the resident's judgment is impaired, will be provided with selections allowing them to appear in a dignified manner. Ms. Mennella offered the common sense view that, in applying a "community standard," the surveyor should ask herself whether a mentally impaired resident would be embarrassed under normal circumstances. The exposure of these residents demonstrated noncompliance with the requirement that the facility maintain or enhance the self-esteem and dignity of the residents. Ms. Acker acknowledged the right of the residents to select their own clothing or to be undressed within the confines of their rooms. However, the facility must continually provide these residents with encouragement or assistance in dressing. Staff must act if the residents lack the ability to make their own judgments. The issue was not that the facility should deny choice to the residents, but that a therapeutic environment should be established that maintained and enhanced resident dignity. Ms. Acker found that the "key point" in the deficiencies was the proximity of staff to the cited residents. In each instance involving nudity or improper dress in a resident's room, staff was available to pull the privacy curtain or to assist the resident in redressing. The staff person may not have minded the resident's dress, but should have acted to protect the resident's dignity when a stranger walked into or past the room. Staff could have re- established the community standard by clothing the resident or providing the privacy that would protect the resident's dignity, but failed to do so. Ms. Acker characterized these incidents as staff's failure to provide services to the community standard for residents who were unable to exercise their own judgment to maintain their own dignity. Ms. Acker testified that, to change the scope and severity of Tag F241 from E to H, the IDR panel members would have to believe that the situation resulted in a negative outcome that compromised the ability of the resident to maintain or reach the highest practicable physical, mental or psychosocial well-being, as defined in the Resident Assessment Protocol ("RAP"). She concurred with upgrading Tag F241 to a Class II deficiency because there was a direct impact on the residents observed and on those residents who witnessed the failure to deliver adequate care. Carol Heintz, the psychiatric nurse manager and an expert in psychiatric nursing care, opined that Jacaranda Manor is not below community standards in terms of patient dignity. She agreed that "it would be nice" if more than 200 residents with physical and mental health issues wanted to wear appropriate clothing, shoes and socks every day, but for these people "things like that may not be the priority that it is to you or [me]." Clothing issues can be difficult with some residents, because they do not perceive their unorthodox dress or even nudity as an issue. If a resident resists wearing proper clothing or using a privacy curtain, the staff just keeps trying to reinforce proper dress and modesty. Ms. Heintz acknowledged the facility's responsibility to respect the rights of others not to be subjected to the improper dress of residents. However, she also stated that residents' modes of dress have had no adverse impact on them, and that no therapist or any resident's family has ever complained about the facility's methods of dealing with clothing and footwear issues. In light of all the factual and expert testimony, it is found that the IDR panel's decision to upgrade Tag F241 from Class III, with a scope and severity rating of E, to Class II, with a scope and severity rating of H, was supported by the evidence presented, though not as to all nine observations made under Tag F241. The first observation, for R-31, supports the Agency's finding a Class II deficiency. R-31 was sitting on his bed eating breakfast in the nude and was plainly observable from the hallway. Staff persons were present but did nothing to remedy the situation. Granting that it may have been counterproductive to attempt to dress R-31 while he was eating, no evidence was presented to show that pulling the privacy curtain or closing the door would have disturbed R- 31's meal. Even if, as Jacaranda Manor implied, these staff persons may not have been direct care employees, they should have alerted the nursing staff to the situation. The dignity of R-31 and of any other resident who happened to pass his room were directly affected by this incident. The second observation, for R-21, supports the Agency's finding a Class II deficiency. R-21 was seen twice lying in bed wearing uncovered adult briefs. Jacaranda Manor offered no reason why the resident could not be covered or why the view from the hallway could not be obscured. The dignity of R-21 and of any other resident who happened to pass his room were directly affected by this incident. The third observation, for R-8, does not support the Agency's finding a Class II deficiency. The initial rating of this as a Class III deficiency was supported by the evidence. While the bare facts set forth in the observation were concededly accurate, the surveyor focused entirely "on the actions and omissions themselves," and made no effort to assess the "uniqueness of the individual sampled resident" or "the needs and preferences of the resident." The facts established that R-8 was subject to unbuttoning his pants and allowing them to droop. In three days of constant observation, Ms. Mennella witnessed one such brief incident. R-8 was also subject to digging for cigarette butts and tousling his own hair, making it very likely that at some point over a three-day period he could be observed with dirty hands and unkempt hair. R-8 wrote his own name on his shoes, because he was proud of them. Testimony established that staff of Jacaranda Manor conscientiously cared for R-8, but that it was impossible to maintain appropriate appearance for this resident all day, every day. There was no evidence of any impact on this resident's dignity or self-esteem. The fourth observation was of the staff member shouting to a resident to pull up her pants. This observation does not support the Agency's finding a Class II or a Class III deficiency. Had the surveyor made inquiry into the circumstances of the incident, she would have learned that it involved a sudden reaction to a potentially critical situation. The trainee called out to the resident because she couldn't reach the resident in time to keep her pants from falling, which in turn could have caused the resident to fall. Concern for the resident's possible embarrassment cannot be held more important than the resident's physical safety when an emergency arises. The fifth and sixth observations involved residents walking around barefoot, in only socks, or, in the case of R- 16, in slippers. The deficiencies noted for these observations do not support the Agency's finding a Class II or a Class III deficiency. The only harm alleged by the Agency was that the residents' dignity is impaired by their having dirty feet. It is found that Jacaranda Manor was acceding to the wishes of its residents regarding footwear, and that dirty feet or socks are a necessary and essentially harmless incident of choosing not to wear shoes. The seventh observation, of R-32 and an unnamed resident, supports the Agency's finding a Class II deficiency. As to the unnamed resident observed in the courtyard with his brief exposed, the surveyor could not provide enough information to allow Jacaranda Manor to defend itself. The surveyor could not name the resident, the female resident allegedly in the vicinity, or the staff person who allegedly walked past. This portion of the deficiency was unproven. However, the surveyor adequately stated her observation of R- 32, who was seen from the hallway sitting in a chair in his room, wearing only a t-shirt and adult brief. Several staff members walked past the room and did not intervene. Jacaranda Manor offered no reason why the resident could not be covered or why the view from the hallway could not be obscured. The dignity of R-32 and of any other resident who happened to pass his room were directly affected by this incident. The eighth observation, of a resident initially identified as R-4, supports the Agency's finding a Class II deficiency. The surveyor guidelines expressly describe promoting "dignity in dining." While the underlying facts explained why Jacaranda Manor could not feed the resident in his room, they did not explain why the resident was being fed at the busy, noisy nurses' station rather than in the dining room or some other, quieter location. The resident was difficult to feed and subject to violent outbursts, but these facts do not explain the choice of feeding the resident at the nurses' station, leading to the inference that this choice was likely made for the convenience of the nurses. The dignity of this resident was directly affected by this incident. The ninth observation, of R-16, does not support the Agency's finding a Class II or a Class III deficiency. The facts established that Ms. Teller, the nurse in question, had a close relationship with R-16 and could speak somewhat sternly to him without affecting his dignity or self-esteem. Ms. Teller's version of the incident is credited. Requiring R-16 to wait a few minutes for his coffee while Ms. Teller finished passing medications caused the resident no harm whatever. In summary, of the nine observations listed under Tag F241, four supported the Agency's finding of a Class II deficiency; one supported the initial finding of a Class III deficiency; and four supported a finding of neither a Class II or a Class III deficiency. Thus, the Agency's overall finding of a Class II deficiency for Tag F241 is supported by the record evidence. Tag F250 The May 2001 validation survey allegedly found a violation of 42 C.F.R. Section 483.15(g), which states that a facility must "provide medically-related social services to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident," and sets forth the standards for resident social services. This requirement is referenced on Form 2567 as "Tag F250," or the "social services tag." For purposes of the Form 2567, the validation team gave the alleged deficiency on the May 2001 survey a federal scope and severity rating of D for Tag F250. A rating of D indicates that there is an isolated deficiency causing no actual harm to the resident but with potential to cause more than minimal harm. This alleged deficiency was rated Class III, and was not part of the basis for imposing a conditional license on Jacaranda Manor. Its significance is that it was determined to be an uncorrected deficiency in the June 2001 return survey, and thus formed part of the basis for the civil penalty imposed after the return survey. The May 2001 survey found one instance in which Jacaranda Manor allegedly failed to provide medically related social services. The surveyor's observation on Form 2567 concerned R-16, the same resident discussed above in the sixth and ninth observations under Tag F241: [R-16] was admitted to the facility on 09/29/00, and the resident's comprehensive assessment of [10/05/00]2 indicated that the resident had dental caries. The care plan stated that the resident's "teeth will be clean and oral mucosa will be free of signs and symptoms of infection at all times." One of the approaches on the care plan was for the "resident to see the Dentist as needed." The resident revealed that she/he had not seen a dentist since admission and desired dental services. Observation of the resident's teeth and gums, indicated that there was evidence of abnormal oral mucosa. There was no documentation in the resident's clinical record to indicate that the resident had seen the dentist since admission. The nursing management staff person was asked on 05/11/01, if there was any information to show that the resident had seen the dentist. Later that day, the nursing management staff indicated that the resident now has a dental appointment scheduled on 05/23/01. The lack of dental services can lead to dental problems, oral infection, changes in food consistency, and decrease resident's self-esteem. Ms. Maloney observed R-16 and noted that the edge of his gums was black, perhaps indicating periodontal disease. R-16 showed no evidence of pain and was eating normally. Ms. Maloney interviewed R-16, who told her he wanted to see a dentist. On May 11, 2001, Ms. Maloney told the director of nursing that she could find no indication in the record that R-16 had ever seen a dentist, and asked for any information not apparent in the record. Later that day, the director of nursing told Ms. Maloney that R-16 now had a dental appointment scheduled for May 23. Ms. Maloney was left with the understanding that nothing had been done for R-16 up to that time, and that his appointment was made only in response to her inquiry. The evidence established that R-16's dental appointment for May 23 had actually been scheduled by the facility on May 7, prior to the survey. The appointment was scheduled because R-16 had expressed to Ms. Hirsch a desire to have his teeth cleaned and whitened. The only complaint R-16 voiced about his teeth was that they were discolored. The key to Ms. Maloney's finding a deficiency was her impression that the facility did not respond to R-16's request to see a dentist until Ms. Maloney herself inquired and pressed the issue. In fact, the appointment had been made before the AHCA survey team arrived at Jacaranda Manor. The nurse manager to whom Ms. Maloney spoke was apparently unaware the appointment had been made. The evidence does not support the finding of a deficiency under Tag F250. Tag F309 As noted above, the deficiencies alleged under Tag F309 were originally placed under Tag F272. Tag F272 is the Form 2567 reference to violations of 42 C.F.R. Section 483.20(b), which states that a facility "must conduct initially and periodically a comprehensive, accurate, standardized, reproducible assessment of each resident's functional capacity," and sets forth at length the standards that must be observed in performing these comprehensive assessments. Tag F309 references 42 C.F.R. Section 483.25, which states that each resident "must receive and the facility must provide the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with the comprehensive assessment and plan of care," and sets forth at length the standards by which a facility's quality of care is measured. The significance of the change from Tag F272 to Tag F309 is that Tag F272 merely alleges a failure to conduct or update the assessment of the resident. Tag F309 alleges a deficiency in the quality of care provided to the resident, inherently a more serious violation. For purposes of the Form 2567, the validation team gave the alleged deficiencies on the May 2001 survey a federal scope and severity rating of D for Tag F272. A rating of D indicates that there are isolated deficiencies causing no actual harm to the residents but with potential to cause more than minimal harm. The IDR panel recommended upholding the deficiencies as cited by the survey team. However, Ms. Acker believed that the presence of a negative outcome for Resident 7, discussed below, merited changing the tag from F272 to F309 and making it a Class II deficiency with a federal scope and severity rating of G, meaning that there are isolated deficiencies causing actual harm that is less than immediate jeopardy to the health or safety of the residents. The May 2001 survey, as modified by the IDR process, set forth two alleged deficiencies under Tag F309. The first alleged deficiency concerned Resident 7, or "R-7:" [R-7] triggered on the Resident Assessment Protocol (RAP) Summary for behavior. On the 06/02/00 Minimum Data Set (MDS) this resident was coded as having moderate daily pain. Subsequently on the 02/22/01 MDS this resident was coded as having daily pain which was sometimes severe. During the initial tour at 9:30 a.m. on 05/08/01, the resident was described as refusing to get out of bed and refusing showers due to pain. Clinical record review and staff interview revealed there was no documentation of an ongoing evaluation of this resident's pain since 1999. The behavior assessment identified pain and chronic illness but did not reflect the increase in pain or an evaluation of the resident refusing care. R-7 was admitted to Jacaranda Manor on March 23, 1999. She received a comprehensive psychiatric evaluation upon admission. R-7 was a 41-year-old female, bipolar with a history of psychosis, dementia, and manic episodes. She was a hermaphrodite. Her physical illnesses included pickwickian syndrome, a condition characterized by obesity, decreased pulmonary function and somnolence. R-7 also suffered from psoriatic arthritis, a condition that caused her chronic pain and limited her movement. She complained of pain when being moved. When she was in bed and not moving, she did not complain of pain. Jacaranda Manor prepared a formal pain assessment of R-7 upon her admission. She was seen weekly by her attending physician, psychiatrists, and therapists, and was seen several times a day by the nursing staff. All of the medical professionals who saw her entered written notes into her medical record. AHCA's observation accurately notes that R-7's medical record lacks a document formally titled "evaluation" or "assessment" of R-7's pain, but testimony and documentary evidence at the hearing established that R-7's condition, including her pain, was consistently monitored and noted by Jacaranda Manor staff. Franklin May, a senior pharmacist, was the AHCA surveyor who made the observation of R-7. Mr. May interviewed R-7 and the treating nursing staff, and he reviewed the available medical records. Mr. May testified that he had "no problems with the way they were treating this lady." Mr. May's concern was that R-7's pain had apparently increased, and her condition deteriorated, but the facility could provide him with no documentation of a formal assessment or evaluation of her pain subsequent to her admission in 1999. Jacaranda Manor did not dispute Mr. May's contention as to documentation of formal assessments, but contended that medical staff "assessed" R-7 on a daily basis and that their chart notes constituted documentation of those assessments. This contention is credited to the extent that Jacaranda Manor established that nothing was lacking in the actual care provided to R-7, and that staff of Jacaranda Manor possessed a nuanced understanding of R-7's condition and of her somewhat mercurial personality as it affected her complaints of pain. It is not credited to the extent that Jacaranda Manor contends that ongoing, formal assessments of R-7's pain were superfluous. Mr. May's impression was that R-7's refusal to get out of bed and to take showers was a recent phenomenon indicating an increase in pain. In fact, R-7 was mostly bed- bound throughout her stay at Jacaranda Manor, and even before her admission. Her reported pain fluctuated from time to time, as did her amenability to taking her prescribed pain medications. The totality of the evidence established that R- 7's condition was at least stable, if not markedly improved, throughout her stay at Jacaranda Manor. In conclusion, the evidence supported Mr. May's contention that Jacaranda Manor's documentation of the care provided to R-7 was insufficient to permit a surveyor to obtain an accurate picture of her condition and treatment, and therefore supported the initial classification of Tag F272 in that R-7's formal assessment instruments were insufficiently updated. However, the evidence did not support changing the classification to Tag F309, because no actual deficiencies in R-7's care were proven or even alleged prior to Ms. Acker's review of the IDR process. The second alleged deficiency under Tag F309 concerned Resident 25, or "R-25:" [R-25] was admitted on 04/10/01 directly to the secure unit upon admission to the facility. The Resident had a primary diagnosis of Cancer of the lung and paranoid schizophrenia. The Resident was receiving Hospice in another skilled nursing facility in Tampa before he/she was sent to the hospital for violent outburst of behavior. Transfer social services document from the hospital indicate [sic] that resident is to be admitted to Jacaranda Manor with Hospice services. Monthly orders for this resident for April and May, 2001 reflected orders for Hospice. Interview of facility social services' staff, state [sic] that Resident was discontinued from Hospice due to "residents [sic] condition being stable" according to hospice. Contact was conducted with Life Path [the Tampa hospice] who confirm that this resident did meet Hospice criteria and that they do not service the St. Petersburg area and that was the only reason they had to discharge the resident. Hospice staff said that Jacaranda admissions person was told that they were responsible to secure the services of the Hospice covering the St. Petersburg area and they would then share their records with that Hospice. This resident was documented to be ambulatory throughout the secure unit and sociable with staff. Resident had episodes of shortness of breath and occasional use of oxygen. On 05/10/01 the resident developed cardiac arrest and was sent to the hospital by EMS where he/she was pronounced dead. The facility did not meet the needs of this resident for his/her terminal care needs. R-25 was a large, heavy-set 67-year-old male who had been diagnosed with lung cancer, chronic obstructive pulmonary disease ("COPD"), paranoid schizophrenia, and seizure disorder. R-25 had been a resident of a Tampa nursing home until a behavioral outburst caused his admission to the psychiatric unit of Tampa General Hospital for an adjustment of his medications. While in the Tampa nursing home, R-25 had received services from Life Path Hospice, which served patients in Hillsborough County, due to his lung cancer diagnosis. The decision had been made not to treat the cancer, and R-25 had been receiving hospice services for over one year. R-25 was an elopement risk and subject to violent outbursts, such that the Tampa nursing home declined to re- admit him after his hospital admission. Staff of Life Path Hospice knew of Jacaranda Manor's reputation for accepting this kind of difficult resident. Grizier Cruz, a mental health counselor at Life Path, contacted Sharon Laird, Jacaranda Manor's admissions director. Ms. Laird agreed to evaluate R-25 for admission, and Jacaranda Manor admitted R-25 on April 10, 2001. Ms. Laird testified that she initially asked Ms. Cruz whether Life Path would continue to provide services to R-25 at Jacaranda Manor, or whether Life Path would transfer the case to the hospice serving Pinellas County. Ms. Laird testified that Ms. Cruz told her that R-25 was stable and no longer in need of hospice services. Ms. Cruz denied telling anyone at Jacaranda Manor that R-25 was stable and not in need of hospice services. Ms. Cruz stated that she informed Jacaranda Manor that Life Path would be withdrawing services from R-25 because he was leaving Hillsborough County, Life Path's area of coverage. She testified that Jacaranda Manor would have to establish a physician for R-25 at the facility. The physician would have to write an order for hospice, at which time Life Path would make the referral to the Pinellas County hospice that would then come to Jacaranda Manor to evaluate R-25 for its program. When R-25 was admitted, Jacaranda Manor followed its standard assessment and care planning procedures, noting his diagnosis of lung cancer and the need to contact hospice. Linnea Gleason, social services director at Jacaranda Manor, testified that she contacted Life Path twice during the care planning process, and was told both times that R-25 was stable and in no need of hospice. Ms. Gleason's contemporaneous notes in R-25's chart are consistent with her testimony. Dr. Gabriel Decandido was R-25's physician at Jacaranda Manor. His examination revealed that R-25's cancer was apparently slow growing, because he was relatively pain free and did not appear to be at the end stage of life. Dr. Decandido was not surprised to learn that R-25 had lasted over one year on hospice; he was surprised that R-25 had been receiving hospice services at all. Dr. Decandido did not believe that R-25 needed hospice services. R-25 was stable, comfortable, not in pain, happy and smiling. At times, he used oxygen due to his COPD and continued smoking. He kidded with the nurses and went outside to smoke throughout the day. Dr. Decandido noted that R-25's schizophrenia made him a poor patient with whom to discuss death because such discussions could increase his psychosis and paranoia. Given R-25's entire situation, Dr. Decandido thought it best to allow R-25 to live out his life at Jacaranda Manor, walking around, talking to people, eating, drinking, and smoking. Another factor influencing Dr. Decandido's opinion was that x-rays taken of R-25 at Jacaranda Manor did not indicate lung cancer. Dr. Decandido did not dispute the diagnosis of lung cancer, but did dispute that R-25 was a man about to die from lung cancer. His findings from the x-rays were that R-25 suffered from congestive heart failure and possibly pneumonia. Ms. Gleason testified that she and her social services staff visited R-25 three times a week to offer counseling, but that R-25 showed no anxiety about his lung cancer and declined services. Elaine Teller was the charge nurse at Jacaranda Manor during R-25's admission. She directly asked R-25 on several occasions whether he wanted hospice. She explained the advantages of hospice care in managing his medications. On each occasion, R-25 declined hospice. Ms. Teller failed to note these declinations in R-25's chart. However, given that there was no physician's order for hospice and that R-25's capacity to consent was questionable at best, Ms. Teller's notations would have been superfluous in any event. Life Path Hospice informed Jacaranda Manor that it would be necessary to obtain the consent of R-25's only known relative, a daughter in Jacksonville, to commence hospice services in the event they were ordered by a physician. Ms. Laird of Jacaranda Manor contacted the daughter by telephone and sent her an admissions package by certified mail. The daughter did not accept delivery of the package. Thus, Jacaranda Manor never received signed admission documents from R-25's family, which would have included advance directives such as hospice. AHCA's contention that "[m]onthly orders for this resident for April and May, 2001 reflected orders for Hospice" is simply a misreading of R-25's record. The notation "hospice" appears under the term "advance directives" on a record document with the title "physicians orders and administration record." Despite its title, this sheet was used by Jacaranda Manor as a medication sheet. A notation of an advance directive for hospice was not a physician's order for hospice. Jacaranda Manor staff was fully aware that a physician's order for hospice would have been indicated by a special sticker on the sheet and by accompanying paperwork. Ms. Gleason explained this procedure to AHCA surveyors, who nonetheless cited these "orders" as deficiencies. R-25 died on May 10, 2001, one month after his admission to Jacaranda Manor. His death was caused by cardiac arrest, unrelated to his lung cancer diagnosis. Jacaranda Manor's version of events involving R-25 is credited. Other residents at the facility receive hospice services, and there is no reason to conclude that the facility would fail to implement a physician's order for hospice services for R-25. The evidence does not support the deficiency cited by AHCA, either under F272 or F309. In summary, the evidence did not support the change of Tag F272 to Tag F309. The evidence did support a Class III deficiency under Tag F272 as to the documentation of Jacaranda Manor's treatment of R-7. II. June 2001 Survey A. Tag F241 The June 2001 survey allegedly found two Class III violations of Tag F241, the "dignity tag," both from observations made on June 19, 2001, at 3:05 p.m. by surveyor Patricia Reid Caufman. The first observation involved Resident 19, or "R-19": [R-19] was lying in bed (mattress) on the floor and receiving one to one supervision from the Certified Nursing Assistant (CNA). The resident was sleeping with the door open and the privacy curtain was not pulled around the resident. The resident faced toward the window with his adult briefs exposed to the hallway. The CNA was sitting on a chair in the hallway observing the resident. The CNA did not attempt to cover the resident to maintain his/her dignity. R-19 was a 60-year-old male with a history of dementia and a propensity for violent outbursts. R-19 had no safety awareness, and had done such things as pull his room air conditioning unit out of the wall and attempt to walk it out into the hallway. He had a great deal of psychomotor agitation, and persistently pulled at things. He was prone to falling into chairs or his bed, pulling down curtains and curtain rods. If approached abruptly, he might strike out. Three or four people could be needed to give him a bath. The medical staff constantly adjusted his medications in an effort to manage his behavior without over-sedating him. R-19 was very resistant to dressing, and could undress himself very quickly. Staff of Jacaranda Manor tried various strategies to keep him dressed, including one-piece outfits, clothing that zipped in the back, and hospital gowns with pajama bottoms, but nothing was entirely successful. Jacaranda Manor had taken steps to ensure his safety. R-19 had been placed in a private room at the back of his hallway to minimize his interactions with other residents. All furnishings had been removed from the room, save for a mattress on the floor. Padding was placed around the mattress to minimize his thrashing. The windowsills were padded, and the air conditioner protected. At the time of the June 2001 survey, R-19 was receiving 24-hour one-on-one care, for his own safety and that of the other residents. When R-19 slept, the CNA assigned to him was instructed to sit in the doorway to his room. A Dutch door was installed to his room. Once R-19 fell asleep, the bottom part of the door could be closed to obscure the view of passersby but still allow the CNA to peek over the top to check on him. Jacaranda Manor conceded the accuracy of Ms. Caufman's observation, but contended there was no alternative plan of care for R-19. The door could not be closed completely, because the resident then could not be observed by the CNA. Placing the CNA on a chair inside the room would defeat the purpose of removing all the furnishings for safety, and would have placed the CNA in jeopardy. The privacy curtain would obscure the CNA's view of the resident. R-19 was easily disturbed. Ms. Redmond, the director of nursing, testified that R-19 "needs to sleep when he wants to, because otherwise he is just up and going all the time." Ms. Redmond believed that any attempt to cover R-19 with a sheet would have awakened him, "and then he would have been up and going again and wouldn't have gotten any rest." Based upon the unique characteristics of this resident, and the extensive steps taken by Jacaranda Manor to ensure R-19's safety with some level of privacy, it is found that the evidence failed to establish that the observation of R-19 constituted a deficiency under Tag F241. Ms. Caufman's second observation under Tag F241 involved Resident 20, or "R-20": [R-20] was observed from the hallway lying in bed with the door open and the privacy curtains not pulled around the resident. The resident was wearing adult briefs and the front half of the resident was exposed. Two staff members passed by the open door and failed to intervene so as to protect resident dignity. R-20 was a male resident suffering from dementia. He would take off his gown or shirt while lying in bed. He was capable of opening and closing his own privacy curtain. Ms. Caufman could not identify the two staff members who passed the open door. Ms. Caufman's handwritten notes state that she observed R-20 uncovered at 3:05 p.m., but that staff had covered him when she next went past the room at 3:09 p.m. She did not explain why her formal statement omitted the fact that the resident was covered no more than four minutes after her observation. Jacaranda Manor offered no explanation as to why the door could not have been closed or the privacy curtain drawn to prevent passersby from seeing R-20 uncovered in his bed. On the other hand, Ms. Caufman's brief description of the incident, her failure to identify the staff members who allegedly ignored R-20, and her omission of a relevant fact render the situation ambiguous. As noted above, staff at Jacaranda Manor do not wear uniforms. Only direct care staff are allowed to approach patients to dress or cover them. Other staff, such as maintenance or cafeteria workers, are directed to be alert to residents' dress and to go get a direct care staff person when they see a problem. Based on Ms. Caufman's narrative and on the fact that the resident was covered within four minutes of her observation, it is as likely as not that the two people she saw pass the room were not direct care staff, and that they alerted the direct care staff, who then covered the resident. It is found that the evidence failed to establish that the observation of R-19 constituted a deficiency under Tag F241. B. Tag F250 The June 2001 survey allegedly found one violation of Tag F250, the "social services tag," involving Resident 14, or "R-14": [R-14] was admitted to the facility on 7/2/98 with diagnoses that include organic brain syndrome, traumatic brain injury and dysphagia. The resident's minimum data set (MDS) of 7/3/00 indicated that the resident had broken, loose teeth and dental caries. The most recent MDS, dated 3/8/01, indicated that the resident had some or all natural teeth and needed daily cleaning. It did not document broken, loose teeth with dental caries. The resident assessment protocol (RAP) for Dental, dated 3/8/01, documented that the resident was missing several teeth, had no dentures and the remaining teeth were discolored, but no gross caries or other problems. The status was documented as no oral hygiene problem, no problem that would benefit from a dental evaluation, but the patient was determined to be at risk for developing an oral/dental problem. The staff was to assist the resident with oral care and monitor for problems. The care plan, dated 3/14/01, documented that the resident had dental caries (in conflict with the RAP assessment) along with missing teeth and the goal was to assist with oral care at least twice daily and obtain a dental consult as needed. A dental evaluation had been done on 8/18/98 (three years prior to the survey), and the evaluation (obtained from the thinned record) revealed that this was an initial oral examination and the resident had several missing teeth, heavy calculus and plaque noted. His teeth were documented as stable with no swelling or fractures noted and the resident was determined not to be a good candidate for routine dental care. During the initial tour with the 7-3 Supervisor, on 6/19/01, at about 9:30 a.m., the resident's teeth were observed. A front tooth was missing and a very large amount of plaque was noted, especially on the lower teeth. The supervisor commented that she observed dental caries. On 6/20/01, at 11:10 a.m., observations of the patient's teeth were made with the director of nursing (DON). The resident was seated in a recliner, sleeping with his mouth wide open. The left front tooth was broken and multiple dark areas in the back teeth were observed. There was a large amount of built up plaque on upper and lower teeth and on the upper and lower gum lines. An unpleasant mouth odor was detected at that time. Review of the social service notes from 7/15/98 through 5/16/01, revealed no documentation that the patient had dental needs. The current record did not contain a recent dental evaluation and the DON stated that she would review the thinned record. The initial dental evaluation, dated 8/18/98 mentioned above, was the only documented dental evaluation provided by the facility for review. Interview with the DON, on 6/20/01, at 1:50 p.m., revealed that the resident had refused dental work as documented on the care plan, dated 2/12/01. The nurses notes did not document that a dental appointment had been made and the resident refused examination. The facility was asked to provide any documentation that the resident had been sent to a dentist and refused care. No other documentation was provided. In addition, the resident was coded as severely cognitively impaired on the MDS of 7/3/00, 2/5/01 and 3/8/01. There was no evaluation of the resident's capacity to provide or deny consent for treatment in the record. The resident's wife was documented as the decision maker on the MDS, but according to the DON she was unable to be contacted for a "long time" and there was no documentation that she had been involved in any decision making. The resident had no other legal representative. On 6/20/01, at 1:50 p.m., the DON stated that a doctor's order had been obtained for a dental appointment and the appointment was made. Lack of appropriate dental care may result in infections and diminish the resident's health status. Patricia Procissi was the surveyor who recorded the observation of R-14. She found a conflict between the July 3, 2000, MDS, which documented broken, loose teeth with dental caries, and the March 8, 2001, MDS, which did not document the tooth problems. However, a RAP prepared on the same date did document dental problems for R-14. Ms. Procissi interpreted the March 8, 2001, RAP as indicating improvement in R-14's condition without any documented dental intervention. She believed that this RAP conflicted with a care plan dated March 14, 2001, that indicated dental caries. In fact, the March 8 RAP stated "no gross caries," which is not necessarily in conflict with a finding that R-14 had some dental caries. Ms. Procissi noted that the director of nursing, Ms. Redmond, had told her that R-14 refused dental care, but Ms. Procissi could find nothing in Jacaranda Manor's records documenting that R-14 had been sent to a dentist and refused care. Ms. Gleason, the social services director, testified that she asked R-14 if he would like to see a dentist, and he had refused dental care. Ms. Gleason testified that she documented this refusal in R-14's care plan, along with a notation that staff should continue to encourage him to accept dental services. Ms. Procissi saw Ms. Gleason's note reflecting R- 14's refusal to see a dentist. However, she believed that this documentation raised the question of why there was no doctor's order that R-14 should be seen by a dentist. She stated that in most cases, there is a doctor's order followed by a nurse's note documenting why the order could not be carried out. Here, there was nothing in the record explaining the circumstances of R-14's refusal. Ms. Procissi also found it "odd" that R-14's refusal was documented in the social services care plan rather than the medical notes. At the hearing, Ms. Gleason and Ms. Hirsch testified as to the general difficulty of obtaining dental services for Medicaid patients. Few dentists are willing to accept adult Medicaid patients. At the time of the survey, Jacaranda Manor had two dentists and an oral surgeon who would see its residents, but even these dentists limited the number of residents they would accept in a given month. If a Medicaid resident needs dental work, the doctor or a nurse will write a note to the social services office, which phones the dentist's office and provides the resident's Medicaid information and the nature of the dental needs. The dentist's office calls back to inform social services whether the resident is eligible under the "medically necessary" criteria for Medicaid reimbursement. If the resident is eligible, social services makes the appointment, arranges transportation for the resident, and accompanies the resident to the appointment, if necessary. Jacaranda Manor also schedules routine appointments several months in advance. R-14 was a 47-year-old cognitively impaired male. He was a Medicaid recipient. R-14 could be verbally and physically abusive when approached. At the time of his admission to Jacaranda Manor, and at all times subsequent, R- was fed exclusively via gastrointestinal tube, meaning that any dental problems would not affect his nutrition. Dr. Stuart Strikowsky, Jacaranda Manor's medical director, opined that R-14 was in no pain or discomfort, had loudly and adamantly stated that he wanted no dental work, and would require complete sedation to undergo a dental evaluation. Dr. Strikowsky believed that a dental examination was medically unnecessary for this resident. Kevin Mulligan, AHCA's Medicaid dental specialist, testified that Medicaid covers only medically necessary dental services, and that a dental examination for a nursing home patient must be requested by the attending physician and the nursing director. Dr. Strikowsky plainly believed that such a request was unnecessary for this resident. It is found that the evidence was at best ambiguous that the observation of R-14 constituted a deficiency under Tag F250. Jacaranda Manor conscientiously monitored and documented R-14's dental condition. R-14's physician believed that a dental examination was medically unnecessary, somewhat mooting Ms. Procissi's concerns regarding the lack of a doctor's order for dental services.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Agency for Health Care Administration enter a final order finding a Class II deficiency for Tag F241, a Class III deficiency for Tag F272, and assigning conditional licensure status to Jacaranda Manor for the time period from May 15, 2001 to February 28, 2002. It is further recommended that the Administrative Complaint be dismissed and no civil penalty assessed against Jacaranda Manor. DONE AND ENTERED this 25th day of July, 2002, in Tallahassee, Leon County, Florida. ___________________________________ LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative this 25th day of July, 2002.
The Issue Whether a certificate of need for an additional 60 nursing home beds to be located in Sarasota County, Florida, in July, 1990, should be granted to any of the four competing certificate of need applicants in these proceedings?
Findings Of Fact Procedural. Arbor, Health Quest, HCR, Trecor and fourteen other applicants filed certificate of need applications with the Department in the October, 1987, nursing home bed certificate of need review cycle of the Department for Sarasota County. Each of the applicants involved in these cases filed a letter of intent with the Department within the time required for the filing of letters of intent for the October, 1987, nursing home bed certificate of need review cycle. Each of the applicants involved in these cases filed their certificate of need application within the time required for the filing of certificate of need applications for the October, 1987, nursing home bed certificate of need review cycle. The applications were deemed complete by the Department. The Department completed its State Agency Action Report for the October, 1987, nursing home bed review cycle on February 19, 1988. The State Agency Action Report relevant to these cases was published by the Department in the Florida Administrative Weekly on March 4, 1988. The Department proposed to approve the certificate of need application filed by Trecor and to deny all other applications. Eleven of the applicants whose certificate of need applications were denied by the Department filed Petitions pursuant to Section 120.57(1), Florida Statutes, challenging the Department's proposed action. All of the Petitioner's except the three Petitioners in these cases withdrew their Petitions. The Parties. The Department. The Department is the agency responsible for reviewing certificate of need applications for or nursing home beds to be located in Sarasota County, Florida. Arbor. Arbor is a nursing home company that designs, develops, constructs and operates nursing homes. Arbor's corporate headquarters are located in Lima, Ohio. Arbor owns and operates eighteen nursing home and adult congregate living facilities comprising approximately 2,218 beds. In Florida, Arbor owns Lake Highlands Nursing and Retirement Center in Clermont, The Village at Brandon, and The Village at Countryside. In Florida, Arbor is currently developing certificate of need approved facilities in Clay, Orange, Polk, Pinellas and Sarasota Counties. Arbor formed Sarasota Health Center, Inc., to hold the certificate of need it is seeking in this proceeding. Although this corporation is in form the applicant, Arbor is in substance the applicant in these proceedings. Health Quest. Health Quest is an Indiana corporation which has been in the business of constructing and operating nursing homes and retirement housing facilities for approximately twenty years. Health Quest currently operates eleven nursing centers and three retirement housing developments. In Florida, Health Quest operates three nursing centers and two retirement housing developments. The nursing centers are located in Sarasota, Jacksonville and Boca Raton, Florida. The Jacksonville center is located adjacent to, and is operated in conjunction with, a retirement facility. The facility located in Sarasota is Regents Park of Sarasota (hereinafter referred to as "Regents Park"), a 53-bed sheltered nursing center. Regents Park is located at Lake Pointe Woods, a Health Quest retirement community, which includes 212 independent living apartments and 110 assisted living apartments. The assisted living apartments qualify as an adult congregate living facility. The 53 sheltered nursing home beds are authorized as part of a living care complex pursuant to Chapter 651, Florida Statutes. Health Quest has received approval from the Department to locate 60 nursing home beds, which Health Quest has received as part of a certificate of need for 180 nursing home beds, at Regents Park. The other 120 approved nursing home beds will be located at another facility to be constructed in Sarasota County by Health Quest. Health Quest also has two other projects under construction in Florida: a new facility in Winter Park, Florida, and a new facility in Sunrise, Florida. HCR. HCR is a corporation engaging in the business of designing, developing, constructing and operating nursing homes and related facilities. HCR is a wholly-owned subsidiary of Owens Illinois Corporation. HCR operates approximately 125 facilities with approximately 16,000 beds. HCR has designed and built over 200 nursing homes and related health care facilities. 24 HCR owns and operates ten nursing homes in Florida, including Kensington Manor, a 147-bed nursing center located in Sarasota County, Florida. HCR also has ten other projects being developed in Florida. Trecor. Trecor is a Florida corporation formed to engage in the business of developing and operating facilities within the full spectrum of the health care industry. Trecor was founded in 1985 when it acquired Burzenski Nursing Home (hereinafter referred to as "Burzenski"). Trecor does not own or operate any other health care facility. Burzenski is an existing nursing home with 60 dually certified beds located in the City of Sarasota. The facility was built in 1955 as a private residence. An addition to the facility was constructed in 1962. The Proposals. Arbor's Proposal. Pursuant to a stipulation with the Department dated September 9, 1987, Arbor received certificate of need 4182. Certificate of need 4182 authorizes Arbor to construct a 60-bed nursing home in Sarasota County. 20. Arbor's approved 60-bed nursing home facility will consist of 18,000 gross square feet. Costs of $2,200,000.00 have been approved by the Department in the certificate of need issued for the facility. Arbor intends to develop certificate of need 4182 by building a facility large enough for 120 beds. This facility will house the approved 60 nursing home beds and, if Arbor's application in this case is not approved, an additional 60 beds, licensed as adult congregate living facility beds. In this proceeding Arbor is requesting approval of a proposed conversion of the 60 adult congregate living facility beds to 60 nursing home beds. Arbor has proposed the construction of an additional 18,000 gross square feet to house the additional 60 nursing home beds sought in this proceeding. The proposed cost of the proposal is $2,380,000.00. The total cost of 120 bed facility will be $4,580,000.00. Health Quest's Proposal. Health Quest is seeking approval to convert its 53 sheltered nursing center beds at Regents Park to nursing home beds and to add 7 nursing home beds. The 60 nursing home beds are to be housed in the new community nursing home facility at Regents Park. The beds will be housed in 30,945 square foot of the Regents Park facility. Health Quest also intends to add 60 nursing home beds, which have already been approved by the Department, to Regents Park. The certificate of need application filed by Health Quest indicates that its proposal involves no capital costs. This is incorrect. There will be minimal costs associated with the addition of the 7 additional nursing home beds being sought by Health Quest which it has failed to include in its proposal. Health Quest did not present evidence concerning the total cost of the facility it plans to use to house the proposed 60 beds or the cost of the 60 beds already approved by the Department which it plans to add to Regents Park. HCR's Proposal. HCR is seeking approval to construct a new, freestanding 60-bed nursing home in Sarasota County. HCR's proposal also includes a 31-bed adult congregate living facility. The nursing home component will consist of 25,600 gross square feet (including 2,300 square feet to be used for adult day care). The total facility will consist of 43,000 gross square feet. Total capital cost for the nursing home component is estimated to be $2,519,000.00. The total cost, including the costs attributable to proposed adult day care services, is $2,657,000.00. The cost of the 31-bed adult congregate living portion of the project will be $1,800,000.00. The total cost of HCR's planned facility is $4,457,000.00. Trecor's Proposal. Trecor is seeking approval to construct a 60-bed addition to the Burzenski 60-bed nursing home. Burzenski is located at 4450 Eighth Street, Sarasota, Florida. The building in which the existing 60 nursing home beds are housed will be replaced by Trecor with a new building. The existing Burzenski building has out-lived its useful life and contains several structural deficiencies. Operations are severely restricted and inefficient. Existing three and four bed wards limit the placement of residents. The existing building does not comply with all current licensure requirements. The noncompliance, however, was "grandfathered" in. In order to replace its existing building with a modern building which meets all current licensure requirements, Trecor applied for a certificate of need in 1985 to build a replacement facility on an adjoining parcel of real estate for which Trecor held an option to purchase at the time. This application was approved on December 4, 1985. After an error by Trecor caused the time established for exercising the certificate of need to pass and a requested six-month extension of the certificate of need was denied by the Department, the certificate of need to construct the replacement facility lapsed. Another application for a replacement facility was filed in January, 1987. This application was approved by the Department in May, 1987. The replacement facility was not, however, constructed. Subsequently, in April and May, 1988, the Department determined that replacement of the existing building was exempt from certificate of need review. Trecor now proposes to add 60 nursing home beds at the same time that it builds its replacement facility for its existing 60 nursing home beds. The new nursing home beds will be housed on a second floor to be built on the replacement facility. In Trecor's application for (30 additional nursing home beds, Trecor has proposed the addition of 12,061 gross square feet to its replacement facility and a project cost of $885,210.00. The cost of Trecor's replacement facility will be $1,303,424.00 plus a $1,400,000.00 debt on the existing building. The total cost of Trecor's 120 bed facility will be $3,588,634.00. Section 381.705(1)(a), Florida Statutes. Numeric Need. Pursuant to the need methodology of Rule 10- 5.011(1)(k)(2), Florida Administrative Code, there is a need for an additional 75 community nursing home beds for Sarasota County for July, 1990, the planning horizon applicable in these cases. All of the applicants have agreed with the Department's determination of the need for additional nursing home beds for Sarasota County. All of the applicants are seeking to provide 60 of the needed nursing home beds. The District Health Plan. The district health plan for the Department's District 8, which includes Sarasota County, provides certain standards and criteria to be considered in determining community nursing home care need. The policy guidelines and their application, if applicable to the applicants in this proceeding, are as follows: Community nursing home services should be available to the residents of each county within District Eight. Sarasota County is a separate planning subdistrict for community nursing home beds. Therefore, this guideline should be applied to Sarasota County. All of the applicants will increase the availability of nursing home services to the residents of Sarasota County. Community nursing home beds should be geographically distributed throughout the counties of District Eight to promote optimal availability and accessibility. The 2,264 existing licensed and 283 approved community nursing home beds located, or to be located in Sarasota County, are already geographically distributed throughout Sarasota County. All of the applicants will increase geographic distribution of beds throughout Sarasota County, regardless of where they may be located. At a minimum, community nursing home facilities should make available, in addition to minimum statutory regulation, in the facility or under contractual arrangements, the following services: pharmacy g. occupational therapy laboratory h. physical therapy x-ray i. speech therapy dental care j. mental health counseling visual care k. social services diet therapy l. medical services All of the applicants will meet thin guideline. New and existing community nursing home bed developments should dedicate 33-1/3 percent of their beds to use for Medicaid patients. The applicants have proposed to provide the following percentage of care to Medicaid patients: Arbor: 45% Health Quest: 16.7% HCR: 42% Burzenski: 59% 1st Year; 60% 2d Year. All of the applicants except Health Quest comply with this guideline. Community nursing home facilities in District Eight should expand their financial base to include as many reimbursement mechanisms as are available to them including Medicare, Medicaid, Champus, VA, and other third-party payers, and private pay. This guideline applies to existing facilities. None of the applicants are proposing to "expand their financial bases" in the manner suggested in this guideline. Community nursing home (skilled and intermediate care) facilities in each county should maintain an occupancy rate of at least 90 percent. This guideline has been filled. New community nursing home facilities may be considered for approval when existing facilities servicing comparable services areas cannot reasonably, economically, or geographically provide adequate service to these service areas. Existing facilities cannot reasonably meet the need for the 75 additional nursing home beds in Sarasota County for July, 1990. No new community nursing home facility should be constructed having less than 60 beds. However, less than 60 beds may be approved as part of an established acute care hospital facility. All of the applicants meets this guideline. Expansion of existing facilities to 120 beds should be given priority over construction of new facilities in the health service area. The proposals of Arbor, Health Quest and Trecor meet this guideline. The proposal of HCR does not meet this guideline. Each nursing home facility should have a patient transfer agreement with one or more hospitals within an hour's travel time, or the nearest hospital within the same community. All of the applicants meet, or will meet, this guideline. The proposed project should have a formal discharge planning program as well as some type of patient follow-up service with discharge/transfer made available seven days a week. All of the applicants meet this guideline. Nursing home services should be within at least one hour typical travel time by automobile for at least 95 percent of all residents of District Eight. This guideline is not applicable. Community nursing homes should be accessible to residents throughout District Eight regardless of their ability to pay. All of the applicants meet this guideline. Health Quest meets this guideline less than the other applicants because of its minimal Medicaid commitment. All community nursing homes and applicants for community nursing homes should document their history of participation in Medicaid and medicare programs, and provide data on an ongoing basis to the District Eight Local Health Council as requested. All of the applicants meet this guideline. Health Quest has not, however, provided Medicaid care at Regents Park. Health Quest does provide Medicaid at all its other nursing centers and will obtain Medicaid certification at Regents Park if its application for a certificate of need in this case is approved. Medicare is not provided at Burzenski at this time. Burzenski will, however, provide Medicare at its proposed facility. Failure of a holder of a certificate of need to substantially comply with statements of intent made in the application and relied upon the Department of Health and Rehabilitative Services as set forth in the Certificate shall be cause for the Department to initiate an action for specific performance, fines as specified in s. 381.495(3), or injunctive relief. This guideline is not applicable. Need for Services. HCR conducted a "non-numeric community need survey" in Sarasota County. Based upon this survey, HCR has suggested that there is an unmet need for 1,600 nursing home beds for Sarasota County for Alzheimer patients and other dementia patients. HCR's conclusions concerning unmet need for services for Sarasota County are unrealistic. HCR failed to prove that any need in Sarasota County for services for Alzheimer patients and others is not being met adequately. Services for Alzheimer patients are currently being provided by Trecor and Health Quest. HCR and Trecor have proposed to dedicate 30 of their proposed nursing home beds to the care of Alzheimer patients and patients with other forms of dementia. All of the applicants propose to provide a full range of services to their residents, including sub-acute care. Other Considerations. Health Quest's avowed purpose for the proposed conversion of its 53 sheltered beds is to insure that Regents Park remains available for use by the general public. Florida law allows sheltered nursing home beds to be used by persons other than residents of an adult congregate living facility for five years from the issuance of a license for the sheltered nursing home beds. Regents Park received its license in November, 1986. Therefore, its sheltered nursing home beds can remain available for use by the general public until November, 1991. Health Quest has received a certificate of need for 180 nursing home beds for Sarasota. Health Quest intends on placing 60 of those beds at Regents Park. The other 120 beds will be placed at another facility to be constructed in Sarasota County. Health Quest may be able to use some of its 180 approved nursing home beds to avoid the closing of Regents Park to the general public. Health Quest has not, however, explored this alternative. Health Quest's decision not to pursue this course of action is based in part on its decision that the 43% Medicaid care required for its certificate of need for 180 nursing home beds is not acceptable at Regents Park. Health Quest has failed to prove that its proposal is needed because of its desire to convert its sheltered beds to community nursing home beds. Section 381.705(1)(b), Florida Statutes. The evidence in this case failed to prove that like and existing health care services in Sarasota County are not available, efficient, appropriate, accessible, adequate or providing quality of care except to the extent that existing services cannot meet the need for 75 additional nursing home beds in Sarasota County. Section 381.705(1)(c), Florida Statutes. Arbor. Two of Arbor's three licensed facilities in Florida are currently rated superior. The other facility is rated standard. Arbor's proposal may qualify it for a superior rating at its proposed facility. Arbor proposes to provide sufficient services, safeguards and staff. Arbor should be able to provide adequate quality of care in its proposed facility. Health Quest. Health Quest has a corporate policy of emphasizing quality of care. It attempts to obtain the highest quality rating in every community it serves. Health Quest's facilities in Jacksonville and Boca Raton have been rated superior. Health Quest's Sarasota facility has not been in operation long enough to qualify for a superior rating. Health Quest's Sarasota facility offers a high level of staffing, including a Human Resources Director, who is responsible for personnel administration and training, a full time social activities director and an activities coordinator. It also has a high nursing ratio. Health Quest is proposing the highest level of staffing of the applicants in this proceeding. Extensive training and development of staff at Health Quest's Sarasota facility is provided. Orientation training and in-service training on an on- going basis will be provided. Health Quest proposes to provide sufficient services, safeguards and staff. Health Quest should be able to provide adequate quality of care in its proposed facility. HCR. HCR's existing Sarasota nursing home has received a license with a standard rating. Other HCR facilities have received standard ratings, including some facilities which were acquired by HCR with superior ratings. HCR also has facilities which have been rated superior. HCR will enhance the quality of care available by providing a full range of services, from the least intensive level (adult day care) to the most intensive levels (i.e., sub- acute care). HCR's proposal to provide adult day care, a dedicated Alzheimer's unit, sub-acute care and respite care, and its adult congregate living facility will enhance quality of care in Sarasota County. HCR adheres to extensive quality assurance standards and guidelines. HCR provides adequate training, exceeding state minimum requirements, for its staff. HCR proposes to provide sufficient services, safeguards and staff. HCR should be able to provide adequate quality of care in its proposed facility. Trecor. Trecor has contracted with Central Care, Inc., a Florida corporation providing a full spectrum of health care and retirement living services, to manage its facility. Trecor provides education and training for its staff on an ongoing basis. Even though Trecor is operating in an inadequate building, Trecor received a superior rating in 1986-1987 and 1987-1988. Trecor proposes to provide sufficient services, safeguards and staff. Trecor should be able to provide adequate quality of care in its proposed facility. Section 381.705(1)(e), Florida Statutes. None of the applicants provided sufficient proof to conclude that they will provide joint, cooperative or shared health care resources sufficient to provide them with an advantage over the other applicants. Section 381.705(1)(f), Florida Statutes. None of the applicants proved that there is any need in the service district for special equipment or services which are not reasonably and economically accessible in adjoining areas. Section 381.705(1)(g), Florida Statutes. None of the applicants proved that this criterion applies in this proceeding. Section 381.705(1)(h), Florida Statutes. All of the applicants' proposals will be accessible to all residents of the service district. Health Quest will, however, provide less access to Medicaid residents than the other applicants. Trecor will attempt to initiate internship and training programs for area nursing and allied health programs, and provide clinical placements. Health Quest participates in training programs for nurses from Sarasota Vocational/Technical school. A certified nursing aide program is also offered by Health Quest through Sarasota Vocational/Technical School. All of the applicants will be able to attract and maintain the staff necessary to operate their proposed facilities. HCR is proposing to provide the highest salaries and benefits for staff. Health Quest already has staff for its existing 53 beds. Health Quest is adding, however, 60 nursing home beds to Regents Park. HCR failed to prove that all of the existing staff will be used to staff the proposed 60 nursing home beds and not the already approved 60 nursing home beds. Section 381.705(1)(i), Florida Statutes. Immediate Financial Feasibility. Short-term financial feasibility is the ability of an applicant to finance a project. Arbor. The total projected cost of Arbor's proposed 60-bed addition is $2,380,000.00. The total cost for its 120-bed facility is $4,580,000.00. Arbor's projected costs are reasonable. Arbor is proposing to contribute 10% of the cost of its proposal and finance the remaining 90%. Arbor has $39,000,000.00 in bank lines of credit, of which $34,000,000.00 remain available for development of Arbor's proposed project. Arbor also has sufficient money market funds to meet its projected equity contribution of 10%. Arbor has demonstrated immediate financial feasibility of its proposed project. Health Quest. Health Quest indicated in its application that there were no capital costs associated with its proposal. This is not correct. It will have some minor costs for the addition of the seven new nursing home beds it is seeking. Health Quest's proposal is the lowest in terms of additional capital costs which must be incurred. Most of the capital costs associated with the 53 nursing home beds it is seeking were already incurred when it built Regents Park. Health Quest did not provide proof of the cost of Regents Park. The unaudited financial statements of Health Quest indicate that it experienced a loss of $3,200,000.00 in 1986 and a loss of $5,000,000.00 in 1987. Health Quest has net worth and equity of $300,000.00 on over $200,000,000.00 in assets. The losses Health Quest has been experiencing have been the result of Health Quest's development activities. Health Quest can finance its project with internal funds. The evidence failed to prove that Health Quest must liquidate assets to generate operating funds. Health Quest demonstrated immediate financial feasibility of its proposed project. HCR. HCR's total estimated project costs for its 60-bed facility is $2,657,000.00. This amount includes the cost of the portion of the project to be used for adult day care ($138,000.00). The costs to be incurred for the adult congregate living facility is $1,800,000.00. HCR's projected costs are reasonable. HCR intends to contribute 25% of the total project costs and finance the remaining 75%. HCR has sufficient funds on hand to fund 25% of its project costs. In fact, HCR has the ability to contribute 100% of the total project costs. HCR has lines of credit with banks and other sources of obtaining financing for the project, including a loan from its parent corporation. HCR has demonstrated immediate financial feasibility of its proposed project. Trecor. The total cost of Trecor's proposed 60-bed nursing home addition is $885,210.00. The total cost of replacing the existing Burzenski building is projected as $3,588,634.00 ($885,210.00 for the proposed addition; $1,400,000.00 debt on the existing building; and $1,303,424.00 for the replacement of the existing building). Trecor is proposing to contribute 10% of the proposed project costs, or $88,521.00, and to finance the remaining 90%. To finance the entire project will require an equity contribution of over $300,000.00. Trecor has experienced operating losses in 1986 and 1987 and has a negative net worth of $259,000.00. Trecor has a positive cash flow, however. Trecor does not have sufficient equity to contribute 10% of the proposed project costs. The Board of Directors of Trecor has, however, adopted a resolution indicating Trecor's intent to provide the necessary contribution. Trecor can obtain the necessary funds from its owners if necessary. NCNB has expressed an interest in financing the rest of the project. Although NCNB has not legally committed to such an arrangement, it is reasonable to conclude that a satisfactory loan agreement can be reached with NCNB or Barnett Bank. Trecor has demonstrated immediate financial feasibility of its proposed project. Long-Term Financial Feasibility. Long-term financial feasibility is the ability of an applicant to operate a project at a profit, generally measured at the end of the second year of operation. Arbor. At the formal hearing Arbor presented an updated pro forma. Arbor suggested that the purpose of the updated pro forma was to reflect increased personnel costs and reduced utilization from 97% to 95%. According to Arbor, the changes reflect changes caused by inflation and "actual experience." The updated pro forma submitted by Arbor includes substantial increases in salary expense ranging from 10% to 30% (and one increase of 50%). The updated pro forma also includes at least one position not included in the original pro forma filed with Arbor's application. Arbor's original pro forma understated salary expenses. The updated salary expenses were foreseeable, and should have been foreseen, when Arbor filed its application. The updated pro forma was accepted into evidence over objection. In the updated pro forma, Arbor has projected a loss of $347,043.00 from revenue of $2,034,837.00 for the first year of operation and a profit of $41,833.00 from revenue of $3,016,512.00 for the second year of operation. Arbor has projected a payor mix of 45% Medicaid, 5% Medicare and 50% private pay. These projections are reasonable. Arbor's projected fill-up rate is reasonable. Arbor's projected charges are reasonable. The evidence failed to prove that Arbor's projected revenue and expenses as contained in its original application are reasonable. The evidence also failed to prove that Arbor's projected expenses as contained in its updated pro forma are reasonable either. Arbor has failed to prove that its project is feasible in the long term. Health Quest. Health Quest is operating at close to capacity at Regents Park and is already charging close to its projected patient charges. The facility has been operating at a loss. The facility experienced a profit only during its latest month of operation. The addition of Medicaid beds will erode Health Quest's revenues to some extent. Health Quest has projected a profit of $16,663.00 from revenue of $1,771,303.00 for the first year of operation and a profit of $40,698.00 from revenue of $1,850,156.00 for the second year of operation. Health Quest is projecting a payor mix of 16.7% Medicaid, 4.2% medicare and 79.2% private pay. These projections are reasonable. Regents Park opened in November, 1986, and filled up rapidly. It has been operating at full occupancy and with a waiting list. Health Quest's estimated fill up rate is reasonable in light of this fact. Health Quest has failed to prove that its project is feasible in the long term. HCR. HCR has projected a loss of $267,436.00 on $1,068,427.00 of revenue for its first year of operation and a profit of $62,729.00 on $1,772,399.00 of revenue for its second year of operation. HCR has projected a payor mix of 42% Medicaid, 4% medicare and 54% private pay. These projections are reasonable. HCR's projected fill-up rate to 95% occupancy is reasonable. HCR's projected patient charges are reasonable. HCR's projected revenue and expenses are reasonable. HCR's project is feasible in the long term. (4). Trecor. Trecor has projected a profit of $77,458.00 on revenue of $2,481,229.00 for the first year of operation and a profit of $367,896.00 on revenue of $3,106,152.00 for the second year of operation. The pro forma submitted by Trecor is for the 120-bed nursing home facility and not just the proposed 60-bed project. Trecor has a negative net worth and Trecor has been operating at a loss. Trecor has projected a payor mix of 59% Medicaid, 3.5% medicare, 34% private pay and 3.5% V.A. These projections are reasonable. Trecor has estimated it will achieve 50% occupancy in the first month of operation and an occupancy of 96% by the seventh month. This is a fill up rate of 2 residents a week. Arbor and HCR have projected fill up rates of 2 residents a month. Trecor does not expect to lose any patients during construction of its facility. Trecor is currently at full occupancy and has a waiting list. Trecor's projected fill up rate is achievable. Trecor's projected patient charges are reasonable. They are the lowest of the competing applicants. Trecor has failed to include some expenses in its projections. Trecor left $50,000.00 of administrative salaries out of its projections and FICA is underestimated because Trecor used the old rate. When these expenses are taken into account, Trecor's project is still financially feasible. Trecor's projected revenue and expenses, except as noted above, are reasonable. Trecor's project is feasible in the long term. Section 381.705(1)(1), Florida Statutes. Based upon the projected rates for nursing home services to be charged by the applicants, Arbor and Trecor will have the least adverse impact on patient charges, followed by HCR. Health Quest will have the greatest adverse impact on patient charges. Generally, all of the applicants will enhance competition if their projects are approved. Section 381.705(1)(m), Florida Statutes. Arbor. Arbor's building will contain 36,000 gross square feet, with 18,000 gross square feet attributable to the 60 nursing home beds it is seeking in this proceeding. The cost of Arbor's proposed 60-bed addition is $2,380,000.00 ($132.22 per square foot) and the cost of its entire project is $4,580,000.00. The projected cost of construction is $1,228,000.00, a cost of $68.22 per square foot. Arbor's projected costs are reasonable. Arbor's proposed building will provide 300 square feet per bed. Arbor plans to build its prototype 120-bed nursing home facility. It has used its 120-bed nursing home plans for other Florida projects. These plans have been approved by the Department's Office of Licensure and Certification. Arbors' building will comply with all code and regulatory requirements. The building will be constructed on a 6.5 acre site which is appropriately zoned and of sufficient size. The design of Arbor's proposed building and the proposed methods of construction are reasonable. Health Quest. Health Quest has already constructed the building in which its proposed 60 nursing home beds dire to be located. The building is already licensed. The building complies witch all code and regulatory requirements. A total of 30,945 square feat will be devoted to the nursing home portion of Regents Park. This is the largest of the proposed facilities. The proposed building will have 515 square feet per bed. There are no construction costs to be incurred for Health Quest's proposal. Construction costs have already been incurred to construct the facility in which Health Quest's proposed beds will be housed. Health Quest's building design is of the highest quality. HCR. HCR is proposing to construct a 60-bed nursing home. Additional space for 31 adult congregate living beds and for an additional 60 nursing home beds will also be built. The facility will include a dedicated 30-bed Alzheimer's unit. The inclusion of this unit requires more space. The proposed HCR building will consist of 25,600 square feet for the 60-bed nursing home. This includes the $138,240.00 cost and the 2,300 square feet of the adult day care unit. The projected cost of HCR's project is $2,657,000.00 or $103.79 per square foot. The projected cost of constructing HCR's proposed building is $1,536,000.00 or $60.00 a square foot. HCR's projected costs are reasonable. 166. HCR's facility will consist of 426 square feet per bed. 167. HCR's facility will comply with code and regulatory requirements. 168. HCR's design and methods of construction are reasonable. 169. HCR's facility will incorporate energy conservation measures. Trecor. The Trecor proposal entails the addition of a 60-bed patient wing on the second floor of a two-story building. The first floor of the building will be constructed by Trecor to replace its existing building. Approval of the replacement facility is not part Trecor's proposal at issue in this proceeding. The plans for the replacement building and the addition thereto have been developed together. The plans can be modified to insure that all of the proposed services can be accommodated in the building. The proposed Trecor building will be constructed in phases. First, the portion of the new building which will house the 120 nursing home beds will be constructed. Patients will then be transferred to the newly constructed facility. All of the existing building except the kitchen and administration facilities will then be demolished. Patients will be fed out of the existing kitchen and the administrative functions will be handled form the old administrative facilities. The new kitchen, dining and administrative offices will then be constructed. When this portion of the building is completed, the old kitchen and administrative offices will be demolished. Although inconvenient, Trecor should be able to continue to provide quality of care during the construction period. The other applicants have raised a number of issues concerning the Trecor building. The issues do not, however, involve violations of code or regulatory requirements for nursing home facilities. Trecor's building will contain a total of 31,398 square feet. This total includes 19,337 square feet attributable to the existing 60 nursing home beds and 12,061 square feet attributable to the 60 nursing home beds at issue in this proceeding. The proposed building is relatively small. Trecor's architect did a very good job of properly using the relatively small parcel of real estate he had to work with. The small size of the building, however, accounts for the lower cost of the Trecor proposal. The evidence failed to prove that Trecor cannot provide adequate care, despite the building's size. The cost of Trecor's proposed 60-bed addition is $885,210.00 ($73.39 per square foot) and the cost of its replacement facility is $1,303,424.00. The projected cost of construction for Trecor's proposed 60-bed addition is $592,500.00, a cost of $49.13 per square foot. Questions have been raised concerning the project development costs and the estimated architecture/engineer fees for Trecor's project. Trecor did not include all of the expenses for these items in the projected costs of its proposed 60-bed addition because the costs were included as part of building the replacement facility. Some of those costs could have been included as part of the cost of the proposal being reviewed in this proceeding. If those costs had been included, their inclusion would not affect the conclusions reached in this proceeding concerning the reasonableness of Trecor's project. Trecor's projected costs are reasonable. Trecor's proposed building will provide 201 square feet for the proposed 60 nursing home beds, 322 square feet for the existing 60 nursing home beds and 261 square feet for the total 120 nursing home beds. Trecor's building will comply with all code and regulatory requirements. The Trecor facility will be located on 1.97 acres. The design of the Trecor building and the proposed methods of construction are reasonable. Trecor's facility will incorporate energy conservation measures. Section 381.705(1)(n), Florida Statutes. All of the applicants have a history of providing care to Medicaid patients. Health Quest, however, does not provide care to Medicaid patients at Regents Park. If Health Quest's application is approved, Regents Park will become Medicaid certified. The projected Medicaid of the applicants is as follows: Arbor: 45% Health Quest 16.7% HCR 42% Burzenski 59% first year; 60% second year All of the applicants except Health Quest are proposing to provide at least 42% Medicaid, which is the average Medicaid provided in Sarasota County.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a Final Order granting Trecor's application for certificate of need number 5443 and denying Arbor's application for certificate of need number 5841, Health Quest's application for certificate of need number 5442 and HCR's application for certificate of need number 5437. DONE and ENTERED this 14th day of March, 1989, in Tallahassee, Florida. LARRY J. SARTIN 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 14th day of March, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 88-1945; 88-1949; 88-1950 The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Arbor's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 10-13. 2 1 and 29-33. 3 15-21 and hereby accepted. 4 19-20, 34 and 36. 5 22-25. 6 37-40. 7 26-27. 28, 41 and 44-47. Trecor applied for a certificate of need in January, 1987, not May, 1987. Hereby accepted. Not all of the applicants in this proceeding, however, have met the minimum criteria for the issuance of a certificate of need. Not supported by the weight of the evidence and a statement concerning the proceedings. 51. The last two sentences are argument. 51. The fifth through ninth sentences are argument. The evidence proved that Health Quest is adding 60 nursing home beds to its existing facility. Therefore, if its application in this case is approved it will have a 120-bed nursing home facility. 51. The last five sentences are statements of law and argument. Statement of law or not supported by the weight of the evidence. 15 64-66. 16 67-69 and 73. 74 and hereby accepted. The last two sentences are not supported by the weight of the evidence. 43 and 81. The fifth, sixth and eighth sentences are not supported by the weight of the evidence. The third, fourth and seventh sentences are hereby accepted. Although this proposed finding of fact, except the last sentence, is generally correct, this is not the only factor to consider in determining whether an applicant can provide quality of care. Argument, not relevant to this proceeding or not supported by the weight of the evidence. 52-55 and hereby accepted. The last sentence, except the reference to the state health plan, is hereby accepted. The second, sixth, ninth, tenth and eleventh sentences are not supported by the weight of the evidence or are argument. See 52-56. Argument. 56 and hereby accepted. 85, 87-88 and hereby accepted. The last sentence is not supported by the weight of the evidence. 51, 60-61 and 86. The second, third, sixth, eighth, ninth and tenth sentences are not relevant to this proceeding, not supported by the weight of the evidence or argument. 26 92 and 114. 27 95-97 and 106-107. 28 98 and 100. 109-111. The last five sentences are argument and not supported by the weight of the evidence. See 111-113. 97 and 107. Short-term financial feasibility of Health Quest is not moot and Trecor can finance its project with the assistance of its shareholders. Hereby accepted. The last sentence is not supported by the weight of the evidence. 115 and 118. The last four sentences are not supported by the weight of the evidence or are argument. 119-120. The last two sentences are not relevant to this proceeding or are not supported by the weight of the evidence. See 123. 34 130 and 134. 125, 127 and 132. The fifth sentence is not supported by the weight of the evidence. Not supported by the weight of the evidence. The last sentence is hereby accepted. 136-137 and 143. The first and last sentences are not supported by the weight of the evidence. 38-39 Not supported by the weight of the evidence, argument, not relevant to these proceedings or taken into account in determining the weight to be accorded to testimony. 40 Hereby accepted. The first and last sentences are not supported by the weight of the evidence. 41 139-141. 42 See 97, 103, 107, 113, 124, 129, 135 and 145. Arbor has not proven that it is financially feasible in the long term. The last three sentences are not supported by the weight of the evidence. 43, 46 and 56 Statements of law. 146 and hereby accepted. Hereby accepted. 47 148 and 153-155. 48 157-158, 160 and 175. 49 161-163 and 175. 171, 175, 180 and hereby accepted. The sixth, ninth and tenth sentences are not supported by the weight of the evidence. 171. The last sentence is not supported by the weight of the evidence. 52-54 Not supported by the weight of the evidence, argument or not relevant to this proceeding. 55 185 and 187-188. The last sentence is argument. 57-58 These proposed findings of fact are contrary to the stipulation of the parties. The parties stipulated prior to commencement of the formal hearing in this case that the criteria to be considered in determining which applicant was entitled to a certificate of need were contained in Section 381.705, Florida Statutes. Additionally, the Department accepted all of the applicants' certificate of need applications as being complete. It would not be proper for the Department to now disqualify an applicant on the grounds that its application is not complete. Health Quest's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1. 2 32, 34, 37 and 41. 3 2. 4 3. 4 and 6. 7. Not all of the applicants filed petitions. 7 48. 8 15-16. 9 67-68. 10 17-19. 11 21. 12 19. 13 58-59. See 57. The weight of the evidence did not prove that Regents Park will be closed to the public "unless Health Quest's application for conversion to community status is approved." 14-15 Not supported by the weight of the evidence and not relevant to this proceeding. 16 See 36. Not supported by the weight of the evidence. 17-19 Not supported by the weight of the evidence or not relevant to this proceeding. 20 70 and hereby accepted. 21, 24, 27, 30-48, 52, 54-57, 61, 64, 70, 77, 88-89, 93, 95, 97, 107-108, 110-111, 113, 118, 124, 126, 128-129, 132, 135-136 and 138-139. Hereby accepted. 22 Hereby accepted and summary of testimony. The last two sentences are not supported by the weight of the evidence. See 91. 23 72. 25-26 88 and hereby accepted. 56 and hereby accepted. Not relevant to this proceeding. 49 Hereby accepted. The last two sentences are not relevant to this proceeding, are based upon hearsay and constitute opinion testimony from a nonexpert witness. 50 69. 51 Not relevant to this proceeding or based upon hearsay. 53 126 and 128. 58 Hereby accepted. The last sentence is not supported by the weight of the evidence. 59 157. 60, 65-67, 71, 91, 112, 114-116, 121-122 and 125 Not supported by the weight of the evidence. 62 Not relevant to this proceeding. 63 51 and 185-186. 68 100-101. 69 102. 72 51. The last sentence is rejected. The parties stipulated prior to commencement of the formal hearing in this case that the criteria to be considered in determining which applicant was entitled to a certificate of need were contained in Section 381.705, Florida Statutes. The parties did not indicate that Section 381.703(1)(b)1, Florida Statutes, was at issue in this proceeding or that Section 381.705(1)(a), Florida Statutes, does not apply. 73-76 Not relevant to this proceeding. The issue is not just whether nursing home services are available to all residents of the service area. Also at issue is whether each applicant is proposing to serve all of the residents of the service area. Health Quest's proposal does indicate Health Quest intends on serving a significant portion of Sarasota County's Medicaid population. 78 60-61. The portion of this proposed finding of fact prior to subparagraph a, the portion of subparagraph a appearing on page 19 of the proposed recommended order and subparagraphs b-d are rejected as argument, statements of law or as not being supported by the weight of the evidence. 79-82 Although generally correct, these proposed findings of fact are argument. 83 Not relevant to this proceeding. 84-86 Summary of testimony and argument. 87 Hereby accepted. The last sentence is not relevant to this proceeding or supported by the weight of the evidence. 90, 92 Not relevant to this proceeding. 94 Summary of testimony and argument. 96 Hereby accepted. The last sentence and the last half of the second sentence are rejected as not being relevant to this proceeding. 98-106 These proposed findings of fact were taken into account in determining the weight to be given testimony and other evidence. 109 Although the first sentence is correct, the rest of the proposed finding of fact is not relevant to this proceeding or not supported by the weight of the evidence. 117, 119-120 Not relevant to this proceeding. 123 108. The portion of this proposed finding of fact contained on page 30 of the proposed recommended order is primarily argument and not supported by the weight of the evidence. 127 143. 130-131 and 133-134 Not supported by the weight of the evidence, cumulative or not relevant to this proceeding. 137 The first sentence is hereby accepted. The rest of the proposed finding of fact is not supported by the weight of the evidence, argument or not relevant to this proceeding. Summary of testimony. Not supported by the weight of the evidence. The first two sentences are hereby accepted. The rest of the proposed finding of fact is argument and not supported by the weight of the evidence. HCR's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 48. 2, 4-9, 13-14, 16, 19-20, 22-23, 27, 30-32, 35, 41-42, 45, 47, 49-51, 53, 63-67, 71 and 75 Hereby accepted. 3, 15 and 33 Not supported by the weight of the evidence. Hereby accepted. The last sentence, as it applies to Sarasota County, is not supported by the weight of the evidence. Although generally true, this proposed finding of fact, as it applies to Sarasota County, is not supported by the weight of the evidence. 12 55. 17 37-4 and 55. 18 Hereby accepted, except that the first sentence is not supported by the weight of the evidence. 21 51 and 86. 24 51. The parties stipulated that the state health plan has been met by all of the applicants. 25 22-25. 26 76-78 and hereby accepted. 77 and hereby accepted. 78 and hereby accepted. 34 106-107. 36 Although generally true, the evidence failed to prove that HCR would provide these benefits without cost to its proposed Sarasota facility. 37 131-132. 38 133. 39 134-135. 40 89-90. 43 39-40, 163-164 and 166. 44 152, 167-170, and 180. 46 169-170. 48 165-166. 52 Hereby accepted. The weight of the evidence failed to prove that appropriate services for "AD patients" are not adequately available. 54 The parties stipulated that the state health plan has been met by all of the applicants. 55 2-3. 56-58 These proposed findings of fact are contrary to the stipulation of the parties. The parties stipulated prior to commencement of the formal hearing in this case that the criteria to be considered in determining which applicant was entitled to a certificate of need were contained in Section 381.705, Florida Statutes. Additionally, the Department accepted all of the applicants' certificate of need applications as being complete. It would not be proper for the Department to now disqualify an applicant on the grounds that its application is not complete. 59 148-149. 60 Taken into account in determining the weight to be given to testimony. Not supported by the weight of the evidence. 61 123. 62 Hereby accepted except the last two sentences which are not supported by the weight of the evidence. 68-69 115-117. 70 Not relevant to this proceeding. 72 41, 45-47, 175-176, 180 and hereby accepted. Hereby accepted except the third through fifth sentences are not supported by the weight of the evidence. Not supported by the weight of the evidence and not relevant to this proceeding. Hereby accepted except the last sentence is not supported by the weight of the evidence. The first sentence is hereby accepted. The rest of the proposed finding of fact is not supported by the weight of the evidence. Taken into account in determining the weight to be given testimony and other evidence. Not relevant to this proceeding. 80-81 Not supported by the weight of the evidence. 109-110. The last three sentences are not relevant to this proceeding. Hereby accepted, except for the first two sentences, which are not supported by the weight of the evidence. Hereby accepted except the third and last sentences are not supported by the weight of the evidence. Not supported by the weight of the evidence. See 136. Not relevant to this proceeding. Trecor's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1-6, 20-24, 27, 29-32, 35, 37-39 and 56. Hereby accepted. 7 28 and 41-42. 8 41, 43 and 81. 9 26-27. 10 41, 44 and 81. 11 44-45. 12 46 and 171. 13 173. 14 46, 171-172 and 174. 15-16 173. The last sentence of proposed finding of fact 16 is not supported by the weight of the evidence. 17 181. 18 54-55 and hereby accepted. 19 79. 25 40, 47, 109, 111-112 and hereby accepted. 26 175 and 177. 28 178 and hereby accepted. 33 184 and hereby accepted. 34 138 and 142. 36 139-141. 40 50. 41 51. 42 51. The last three sentences are not supported by the weight of the evidence. Although the Arbor site was not disclosed, the weight of the evidence supports a conclusion that Arbor's proposal meets this portion of the district plan. 43-47 51. 48 51. The last sentence is not supported by the weight of the evidence. 49-50 51 and hereby accepted. 51 51 and hereby accepted. The last sentence is not supported by the weight of the evidence. 52-53 51. Argument. 51 and hereby accepted. The Department's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 48. 2-3 49. 4 Not relevant to this proceeding. 5-6 Conclusions of law. Not supported by the weight of the evidence. Contrary to a stipulation of the parties that all of the parties meet the state health plan to the extent that it is applicable. See 63. 10, 13, 15 and 17 Hereby accepted. 11 See 64-84 concerning Section 381.705(1)(c), Florida Statutes. The parties stipulated that Section 381.705(1)(d), Florida Statutes, had been met or did not apply. 12 86 and 129. 14 Not relevant in this de novo proceeding and not supported by the weight of the evidence. 16 See 60-62. COPIES FURNISHED: Steven W. Huss, Esquire 1017 Thomasville Road, Suite C Tallahassee, Florida 32303 Charles M. Loeser Assistant General Counsel Health Quest Corporation 315 West Jefferson Boulevard South Bend, Indiana 46601 James M. Barclay, Esquire 231 A East Virginia Street Tallahassee, Florida 32301 Alfred W. Clark, Esquire Post Office Box 623 Tallahassee, Florida 32308 Jay Adams, Esquire Jay Adams, P.A. 1519 Big Sky Way Tallahassee, Florida 32301 Theodore E. Mack Assistant General Counsel Department of Health and Rehabilitative Services 2727 Mahan Drive Fort Knox Executive Center Tallahassee, Florida 32308 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
