The Issue The issues for determination are: (1) whether the noncompliance as alleged during the August 30, 2001, survey and identified as Tags F324 and F242, were Class II deficiencies; (2) whether the "Conditional" licensure status, effective August 30, 2001, to September 30, 2001, based upon noncompliance is appropriate; and (3) whether a fine in the amount of $5,000 is appropriate for the cited noncompliance
Findings Of Fact Charlotte is a nursing home located at 5405 Babcock Street, Northeast, Fort Myers, Florida, with 180 residents and is duly licensed under Chapter 400, Part II, Florida Statutes. AHCA is the state agency responsible for evaluating nursing homes in Florida pursuant to Section 400.23(7), Florida Statutes. As such, in the instant case it is required to evaluate nursing homes in Florida in accordance with Section 400.23(8), Florida Statutes (2000). AHCA evaluates all Florida nursing homes at least every 15 months and assigns a rating of standard or conditional to each licensee. In addition to its regulatory duties under Florida law, AHCA is the state "survey agency," which, on behalf of the federal government, monitors nursing homes that receive Medicaid or Medicare funds. On August 27 through 30, 2001, AHCA conducted an annual survey of Charlotte's facility and alleged that there were deficiencies. These deficiencies were organized and described in a survey report by "Tags," numbered Tag F242 and Tag F324. The results of the survey were noted on an AHCA form entitled "Statement of Deficiencies and Plan of Correction." The parties refer to this form as the HCFA 2567-L or the "2567." The 2567 is the document used to charge nursing homes with deficiencies that violate applicable law. The 2567 identified each alleged deficiency by reference to a Tag number. Each Tag on the 2567 includes a narrative description of the allegations against Charlotte and cites a provision of the relevant rule or rules in the Florida Administrative Code violated by the alleged deficiency. To protect the privacy of nursing home residents, the 2567 and this Recommended Order refer to each resident by a number (i.e., Resident 24) rather than by the name of the resident. AHCA must assign a class rating of I, II or III to any deficiency that it identifies during a survey. The ratings reflect the severity of the identified deficiency, with Class I being the most severe and Class III being the least severe deficiency. There are two Tags, F242 and F324 at issue in the instant case, and, as a result of the August 2001 survey, AHCA assigned each Tag a Class II deficiency rating and issued Charlotte a "Conditional" license effective August 30, 2001. Tag F242 Tag F242 generally alleged that Charlotte failed to meet certain quality of life requirements for the residents, based on record review, group interviews, and staff interviews, and that Charlotte failed to adequately ensure that the residents have a right to choose activities that allow them to interact with members of the community outside the facility. On or about August 24, 2001, AHCA's surveyors conducted group interviews. During these interviews, 10 of 16 residents in attendance disclosed that they had previously been permitted to participate in various activities and interact with members of the community outside the facility. They were permitted to go shopping at malls, go to the movies, and go to restaurants. Amtrans transportation vans were used to transport the residents to and from their destinations. The cost of transportation was paid by Charlotte. An average of 17 to 20 residents participated in those weekly trips to dine out with other community members at the Olive Garden and other restaurants. During those trips, Charlotte would send one activity staff member for every four to six residents. The record contains no evidence that staff nurses accompanied those select few residents on their weekly outings. The outings were enjoyed by those participants; however, not every resident desired or was able to participate in this particular activity. Since 1985, outside-the-facility activities had been the facility's written policy. However, in August 2000, one year prior to the survey, Matthew Logue became Administrator of the facility and directed his newly appointed Activities Director, Debbie Francis, to discontinue facility sponsored activities outside the facility and in its stead to institute alternative activities which are all on-site functions. Those residents who requested continuation of the opportunity to go shopping at the mall or dine out with members of the community were denied their request and given the option to have food from a restaurant brought to the facility and served in-house. The alternative provided by the facility to those residents desiring to "interact with members of the community outside the facility" was for each resident to contact the social worker, activity staff member, friends or family who would agree to take them off the facility's premises. Otherwise, the facility would assist each resident to contact Dial-A-Ride, a transportation service, for their transportation. The facility's alternative resulted in a discontinuation of all its involvement in "scheduling group activities" beyond facility premises and a discontinuation of any "facility staff members" accompanying residents on any outing beyond the facility's premises. As described by its Activities Director, Charlotte's current activities policy is designed to provide for residents' "interaction with the community members outside the facility," by having facility chosen and facility scheduled activities such as: Hospice, yard sales, barbershop groups for men and beautician's day for women, musical entertainment, antique car shows, and Brownie and Girl Guides visits. These, and other similar activities, are conducted by "community residents" who are brought onto the facility premises. According to the Activities Director, Charlotte's outside activities with transportation provided by Amtrans buses were discontinued in October of 2000 because "two to three residents had been hurt while on the out trip, or on out-trips."1 Mr. Logue's stated reason for discontinuing outside activities was, "I no longer wanted to take every member of the activities department and send them with the resident group on an outing, thereby leaving the facility understaffed with activities department employees." The evidence of record does not support Mr. Logue's assumption that "every member of the facility's activities department accompanied the residents on any weekly group outings," as argued by Charlotte in its Proposed Recommended Order. Charlotte's Administrator further disclosed that financial savings for the facility was among the factors he considered when he instructed discontinuation of trips outside the facility. "The facility does not sponsor field trips and use facility money to take people outside and too many staff members were required to facilitate the outings." During a group meeting conducted by the Survey team, residents voiced their feelings and opinions about Charlotte's no longer sponsoring the field trips on a regular basis in terms of: "feels like you're in jail," "you look forward to going out," and being "hemmed in." AHCA's survey team determined, based upon the harm noted in the Federal noncompliance, that the noncompliance should be a State deficiency because the collective harm compromised resident's ability to reach or maintain their highest level of psychosocial well being, i.e. how the residents feel about themselves and their social relationships with members of the community. Charlotte's change in its activities policy in October of 2000 failed to afford each resident "self- determination and participation" and does not afford the residents the "right to choose activities and schedules" nor to "interact with members of the community outside the facility." AHCA has proved the allegations contained in Tag F242, that Charlotte failed to meet certain quality of life requirements for the residents' self-determination and participation. By the testimonies of witnesses for AHCA and Charlotte and the documentary evidence admitted, AHCA has proven by clear and convincing evidence that Charlotte denied residents the right to choose activities and schedules consistent with their interests and has failed to permit residents to interact with members of the community outside the facility. Tag F324 As to the Federal compliance requirements, AHCA alleged that Charlotte was not in compliance with certain of those requirements regarding Tag F324, for failing to ensure that each resident receives adequate supervision and assistance devices to prevent accidents. As to State licensure requirements of Sections 400.23(7) and (8), Florida Statutes (2000), and by operation of Florida Administrative Code, Rule 59A-4.1288, AHCA determined that Charlotte had failed to comply with State established rules, and under the Florida classification system, classified Tag F324 noncompliance as a Class II deficiency. Based upon Charlotte's patient record reviews and staff interviews, AHCA concluded that Charlotte had failed to adequately assess, develop and implement a plan of care to prevent Resident 24 from repeated falls and injuries. Resident 24 was admitted to Charlotte on April 10, 2001, at age 93, and died August 6, 2001, before AHCA's survey. He had a history of falls while living with his son before his admission. Resident 24's initial diagnoses upon admission included, among other findings, Coronary Artery Disease and generalized weakness, senile dementia, and contusion of the right hip. On April 11, 2001, Charlotte staff had Resident 24 evaluated by its occupational therapist. The evaluation included a basic standing assessment and a lower body assessment. Resident 24, at that time, was in a wheelchair due to his pre-admission right hip contusion injury. On April 12, 2001, two days after his admission, Resident 24 was found by staff on the floor, the result of an unobserved fall, and thus, no details of the fall are available. On April 23, 2001, Resident 24 was transferred to the "secured unit" of the facility. The Survey Team's review of Resident 24's Minimum Data Set, completed April 23, 2001, revealed that Resident 24 required limited assistance to transfer and to ambulate and its review of Resident 24's Resident Assessment Protocols (RAPs), completed on April 23, 2001, revealed that Resident 24 was "triggered" for falls. Charlotte's RAP stated that his risk for falls was primarily due to: (1) a history of falls within the past 30 days prior to his admission; (2) his unsteady gait; (3) his highly impaired vision; and (4) his senile dementia. On April 26, 2001, Charlotte developed a care plan for Resident 24 with the stated goal that the "[r]esident will have no falls with significant injury thru [sic] July 25, 2001," and identified those approaches Charlotte would take to ensure that Resident 24 would not continue falling. Resident 24's care plan included: (1) place a call light within his reach; (2) do a falls risk assessment; (3) monitor for hazards such as clutter and furniture in his path; (4) use of a "Merry Walker" for independent ambulation; (5) placing personal items within easy reach; (6) assistance with all transfers; and (7) give Resident 24 short and simple instructions. Charlotte's approach to achieving its goal was to use tab monitors at all times, to monitor him for unsafe behavior, to obtain physical and occupational therapy for strengthening, and to keep his room free from clutter. All factors considered, Charlotte's care plan was reasonable and comprehensive and contained those standard fall prevention measures normally employed for residents who have a history of falling. However, Resident 24's medical history and his repeated episodes of falling imposed upon Charlotte a requirement to document his records and to offer other assistance or assistive devices in an attempt to prevent future falls by this 93-year-old, senile resident who was known to be "triggered" for falls. Charlotte's care plan for Resident 24, considering the knowledge and experience they had with Resident 24's several falling episodes, failed to meet its stated goal. Charlotte's documentation revealed that Resident 24 did not use the call light provided to him, and he frequently refused to use the "Merry Walker" in his attempts of unaided ambulation. On June 28, 2001, his physician, Dr. Janick, ordered discontinuation of the "Merry Walker" due to his refusal to use it and the cost involved. A mobility monitor was ordered by his physician to assist in monitoring his movements. Charlotte's documentation did not indicate whether the monitor was actually placed on Resident 24 at any time or whether it had been discontinued. Notwithstanding Resident 24's refusal to cooperatively participate in his care plan activities, Charlotte conducted separate fall risk assessments after each of the three falls, which occurred on April 12, May 12, and June 17, 2001. In each of the three risk assessments conducted by Charlotte, Resident 24 scored above 17, which placed him in a Level II, high risk for falls category. After AHCA's surveyors reviewed the risk assessment form instruction requiring Charlotte to "[d]etermine risk category and initiate the appropriate care plan immediately," and considered that Resident 24's clinical record contained no notations that his initial care plan of April 23, 2001, had been revised, AHCA concluded that Charlotte was deficient. On May 13, 2001, Dr. Janick visited with Resident 24 and determined that "there was no reason for staff to change their approach to the care of Resident 24." Notwithstanding the motion monitors, on June 17, 2001, Resident 24 fell while walking unaided down a corridor. A staff member observed this incident and reported that while Resident 24 was walking (unaided by staff) he simply tripped over his own feet, fell and broke his hip. Charlotte should have provided "other assistance devices," or "one-on-one supervision," or "other (nonspecific) aids to prevent further falls," for a 93-year-old resident who had a residential history of falls and suffered with senile dementia. Charlotte did not document other assistive alternatives that could have been utilized for a person in the condition of Resident 24. AHCA has carried its burden of proof by clear and convincing evidence regarding the allegations contained in Tag F324.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Agency enter a final order upholding the assignment of the Conditional licensure status for the period of August 30, 2001 through September 30, 2001, and impose an administrative fine in the amount of $2,500 for each of the two Class II deficiencies for a total administrative fine in the amount of $5,000. DONE AND ENTERED this 13th day of February, 2003, in Tallahassee, Leon County, Florida. FRED L. BUCKINE 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 13th day of February, 2003.
The Issue The issue to be determined in this case is whether Respondent, Department of Health and Rehabilitative Services, should grant the application of Health Care and Retirement Corporation of America, d/b/a Heartland of Hillsborough (HCR), Petitioner in Case No. 85-3217, or Forum Group, Inc., sponsor of Retirement Living of Hillsborough County (Forum), Petitioner in Case No. 85-3376, or both, for a certificate of need to construct and operate a 60-bed nursing home in Hillsborough County. Paddock Meadows Convalescent Centers, Florida Convalescent Centers, Inc., and Angel1 Care, Inc., petitioners in Case Nos. 85-3362, 85-4124 and 86-0905, respectively, voluntarily dismissed their petitions shortly before the final hearing in this case. (Health Quest Corporation and Health Quest Realty (Hillsborough County), petitioners in Case No. 85-2923, voluntarily dismissed their petition on or about April 1, 1986.
Findings Of Fact The HCR Proposal. Health Care and Retirement Corporation of America, d/b/a Heartland of Hillsborough (HCR), Petitioner in Case No. 85-3217, has been in the business of nursing home construction and operation for over 20 years. HCR currently operates approximately 10,000 beds in 17 states. It has developed over 200 facilities. HCR's proposed project would benefit financially to some extent from economies of scale of having a network of similar facilities. HCR originally applied for a certificate of need to construct and operate a 120-bed nursing home in Hillsborough County. During the pendency of this proceeding, HCR down-sized its proposed project to 60 beds and made other amendments. The down-sizing and amendments are reflected in a supplemental application which was served on Respondent, Department of Health and Rehabilitative Services (HRS), but was not filed with the local health council. It is not clear whether the supplemental application was filed with HRS's Office of Community Medical Facilities. The supplemental application adopts by reference but does not re-type certain portions of the original application. Those portions of the original application were not introduced in evidence or otherwise made a part of the record of this proceeding. In HCR's supplemental application, the down-sized 60-bed nursing home is accompanied by a 60-bed adult congregate living facility housed in the part of the building originally proposed to house another 60 nursing home beds. In addition, the supplemental application reflects a new emphasis on treatment of patients with Alzheimer's and related diseases (dementia). HCR proposes a facility which will include a 60-bed nursing home, an adult congregate living facility, and an adult day-care component. The facility will offer programs specially designed for Alzheimer's disease victims, and, in its adult day care and assisted living areas, will provide programs which are designed to delay institutionalization as long as possible. The facility will provide staffing and special capabilities to accommodate the unique characteristics of dementia (Alzheimer's) patients, to allow the wandering Alzheimer's patient more freedom, and to shelter the non-dementia (non-Alzheimer's) patient from unnecessary contact with the dementia (Alzheimer's) patient. Alzheimer's disease is a progressive, organic brain disease which causes brain cells to die at a rate much more rapid than in the normal aging process. As the brain slowly dies and degenerates, other functions of the body dependent upon the brain's messages begin to deteriorate. The initial effects of the disease, such as forgetfulness and disorientation, are subtle, but the disease progresses through several stages where, increasingly, the disease victim is unable to perform normal daily functions or care for himself and, ultimately, loses the ability to control basic bodily functions and becomes bedridden. Alzheimer's disease is a disease of the elderly victims at two levels of the disease require inpatient care. Some victims develop psychiatric manifestations of the disease and short-term hospitalization or stabilization to enable the family caregiver to manage the patient still in the home setting. As victims reach the later stages of the disease, caregivers must consider institutional placement in a setting where there is a 24-hour-a-day care, seven days a week. In these later stages, the patients require total care which usually cannot be managed on a full-time basis at home, particularly by persons without significant resources. The primary caregiver of Alzheimer's disease patients is an older spouse, but in some instances it may. be an adult child. Ideally, inpatient programs for Alzheimer's disease victims would be designed with a continuum of care to minimize frequent changes in the victim's environment. In other words, the Alzheimer's care program would offer a range of care for patients who move through the various stages of Alzheimer's disease, from ambulatory to bed bound. Day care is an important component of the continuum development of Alzheimer's components for day-care programs in of care in an Alzheimer's program, because it offers rest to the family by placing the victim in a special care facility for a full day. The State of Florida allocated resources for the 1985 legislative session. Sophisticated, high-tech nursing care is required for patients in the later stages of the disease who have lost the ability to swallow, feed themselves, and perform other necessary/ bodily functions. Providing care from day care through high-tech care in the same facility minimizes frequent relocation of the Alzheimer's patient and facilitates the family coming to terms with the final outcome of the disease, where the family must relinquish total care to an institution. Alzheimer's disease victims in the middle and late stages of the disease who are still ambulatory exhibit the tendency to wander aimlessly. Nursing home care for such victims must provide a safe and secure environment in which the Alzheimer's patients may wander without endangering themselves or others. Otherwise, these patients will wander away from the facility and get lost or wander into dangerous traffic situations. Alzheimer's victims often disrupt the routine of non- Alzheimer's patients and the staff of the facilities by their constant wandering and by entering other patients' rooms and going through other patients' belongings. Special Alzheimer's units expect this behavior and make provisions to control it without physical or chemical constraint. In state-of-the-art Alzheimer's care, the physical nature of the decor and design of a nursing home appropriate for Alzheimer's care ideally would provide a safe and secure environment for the wandering, unstable Alzheimer's victim and provide a pleasant, therapeutic environment which copes with the patient's lost ability to synthesize data. Fixtures in the nursing home would be appropriately designed to enable the Alzheimer's patient to distinguish between significant fixtures, such as commodes, sinks, and wastebaskets. Ideally, activity areas for Alzheimer's patients would be separate from other nursing home patients, because of the Alzheimer's patient's disruptive wandering, absence of inhibitions and short attention spans which require a variety of activities and programs to accommodate. The staff of an Alzheimer's care program must be able to deal with the Alzheimer's patient. The staff will seldom see any improvement in the condition of the patient and will seldom get any positive feedback from the patient. Staffing patterns in Alzheimer's programs need to be more intense than average because the staff must deal with patients who have lost the ability to care for themselves. There is a need for closer supervision than is needed by the typical nursing home patient. Such a program also requires a social worker to develop the individual treatment plan for the patient and an occupational therapist to teach the patients those functions which the patients are continually losing. An Alzheimer's program within an adult congregate living facility is within the continuum of care required for some patients. The care provided here is less intense than that provided in a nursing home. However, once the victim loses basic bodily functions and begins wandering, the adult congregate living facility is no longer able to deal with these patients. Adult congregate living facilities and boarding homes in Hillsborough which accept Alzheimer's victims are frequently required to discharge such victims when the care becomes too difficult. In Hillsborough County, there are no nursing homes which provide state-of-the-art inpatient care designed for the care and treatment of Alzheimer's disease patients. Although there are two adult congregate living facilities in Hillsborough County which accept Alzheimer's disease patients, these facilities do not have safeguards for the wandering patient. Nursing homes traditionally deal with wandering Alzheimer's patients by physically restraining the patients or by chemically restraining the patients through the use of drugs. A state-of-the-art program designed to meet the special needs of Alzheimer's disease victims eliminates or reduces the need for physical and chemical restraints. HCR intends to offer a service, from day care through inpatient nursing care, that is designed for the needs of the typical Alzheimer's patient. In addition to the Alzheimer's patient, many patients not diagnosed as Alzheimer's disease victims but who are cognitively impaired (suffering from dementia) would also benefit from the service designed for the Alzheimer's patient. The adult day-care portion of the facility will allow the Alzheimer's victim to remain at home much of the day but allow the family and the well spouse to have time to provide for their own personal needs. The assisted living (adult congregate living) portion of the facility would be available for Alzheimer's victims not requiring advanced nursing care and would be available as a facility where the well spouse and the Alzheimer's victim could live together and both benefit from support services. The nursing home portion of the facility would offer special designs and programs to meet the needs of a maximum of 15 Alzheimer's patient in the middle stages, where wandering is a particular problem, as well as the needs of patients in the latter stages and death. The care available for the Alzheimer's disease victim in the latter stages of the disease (high-tech care) will also be available and appropriate for patients discharged from acute care hospitals who still need nursing care prior to returning home. The level of staffing provided in the HCR facility is higher than one would expect to find in the typical nursing home. The staffing proposed assumes that 15 of the patients will be Alzheimer's wanderers. HCR proposes a staffing higher than the typical nursing home because of the personal attention required for state-of-the-art Alzheimer's patient care and HCR's intent to reduce the amount of medication and physical restraint imposed upon the Alzheimer's patient. Increased staffing will encourage the Alzheimer's patient to retain whatever cognitive capabilities they have for as long as possible and will reduce the disruption experienced in a normal nursing home when the Alzheimer's disease patients wander, disrupt other patients, and generally disrupt the nursing home. The HCR facility will provide an area for wandering patients and a fenced courtyard which will allow wandering patients to have outside activity without danger of leaving the facility. The facility includes a therapeutic kitchen important to the Alzheimer's patient who retains some cognitive recognition of kitchen activities. A separate dining room for the Alzheimer's patient will be provided in order to accommodate the increased spillage experienced by Alzheimer's patient and the risk of incontinence, which is very disruptive and disturbing to non-Alzheimer's patients. wandering patients will be continuously monitored through the use of an electronic wristband which will prevent the patient from wandering outside of the facility and those areas where the wandering patient could cause problems. Dementia patients are now being cared for and treated in existing nursing homes in Hillsborough County. There was no persuasive evidence that patients have been denied access to nursing home beds in Hillsborough County. The features proposed in HCR's supplemental application would allow HCR to provide better quality care and treatment for those patients. However, HCR has only committed to treat up to 15 Alzheimer's patients in the "wandering" stage. That degree of commitment and the extent to which those special features for the care and treatment of dementia patients are needed would not themselves justify the proposed project absent an overall need for additional nursing home beds. HCR is in the process of purchasing four existing. nursing homes from Care Corporation. HCR did not prove that it has studied whether renovation of those facilities to accommodate special features for the care and treatment of Alzheimer's patients would not be less costly, more efficient or more appropriate alternatives to this proposed project or that they are not practicable. The project proposed in HCR's supplemental application is immediately and long-term financially feasible. HCR is a subsidiary of Owens-Illinois. On December 31, 1985, Owens- Illinois had total assets of approximately $3.3 billion, total current assets of approximately $903 million, and cash of approximately $47 million. Meanwhile, current liabilities were approximately $723 million and total shareholders' equity was approximately $1,559,000,000. In addition, HCR proved that it would be able to finance the approximately $2.2 million total project costs by borrowing 75% at favorable interest rates and funding the remaining 25% out of HCR's equity. Making reasonable, conservative assumptions--including an 11.5% interest rate, a January 1989 opening of the facility, and 40% Medicaid utilization on a patient day basis--the project can be anticipated to break even during year two of operation and earn approximately $158,000 during year two of operations. The nursing home portion of the facility and the day- care element adjacent to the nursing home portion will comprise 25,000 square feet; the nursing home portion alone will contain 23,000 gross square feet, or 383 gross square feet per bed. The construction costs for the nursing home and day-care portion of the facility will be $1,458,000, or $58.32 per square foot for the 25,000 square foot area; the cost of construction for the 23,000 gross square foot for the nursing home portion is $1,341,360. The cost per bed for construction of the nursing home portion of the facility is $22,356. The total project costs for the facility estimated by HCR and the cost per bed of the facility includes both the nursing home and adult day-care portion of the facility; when the adult day-care portion of the facility (8 percent of the construction costs) is taken into consideration, the total project cost becomes $2,083.360, at a cost per bed of $34,722. The estimated project cost for the nursing home portion of HCR's proposed facility is as follows: Feasibility studies $15,000; legal and accounting fees $32,000; plan review $8,000; subtotal of project development costs (the foregoing three items) $55,000; costs for financing $120,000; architectural and engineering fees $15,000; site survey and soil investigation $5,000; subtotal of the foregoing professional services $20,000; construction costs $1,458,000 (which includes the day-care portion of the facility but would be reduced to $1,341,360 for the nursing home portion alone); equipment costs $222,000; land acquisition costs $200,000; interest during construction $125,000; total project costs $2,200,000 ($2,083,360 when the adult day-care portion of the facility is excluded). All 60 of the nursing home beds in HCR's proposed facility will be certified both for Medicare and Medicaid utilization. However, in its supplemental application, HCR limits its commitment to serve Medicaid patients to 40% of its patient days. The increased cost of special features for Alzheimer's patients influenced HCR's financial decision not to commit to a higher percentage of Medicaid utilization. HCR has received approximately 13 certificates of need to develop nursing homes in Florida. HCR has completed three nursing homes, and HCR has seven projects under construction. Various difficulties prevented HCR from initiating construction of three projects for which it received certificates of need in 1981 and 1982. HCR has experienced no problems in initiating construction of its certificates of need obtained since that time, and its experience in Florida renders it unlikely that its previous failure to commence construction of facilities will reoccur. HCR acknowledges that it has previously sold and does not now operate nursing homes for which it had obtained certificates of need in Florida. However, these sales were facilities in the same building as the nursing home. A dietician and central kitchen and central laundry will serve all three levels. Housekeeping, building supervision, building plant, and other building maintenance operations will be centralized, saving some expenses. The Forum Proposal. Forum Group, Inc., sponsor of Retirement Living of Hillsborough County (Forum), Petitioner in Case No. 85-3376, is a general partner in a Florida partnership named Retirement Living of Hillsborough County. Forum originally applied for and continues to apply for a certificate of need to construct and operate a 60-bed nursing home. Like the project proposed in HCR's supplemental application, Forums proposal includes aspects in addition to the nursing home. Forum's proposed nursing home would be connected to a 15-bed wing of private rooms for patients who need assistance in their personal care and access to some of the capabilities of a nursing home on an intermittent basis but do not need nursing home care full-time. This is-bed wing would have separate dining facilities. This "personal care unit" will cost patients approximately $40 to $60 a day. In Forum's proposed nursing home, three wings, like the "personal care unit," would radiate from a hub where the nursing station would be located. Twenty of the sixty beds would be in private rooms occupied by private patients. Ten of those beds would be designated for skilled nursing care and ten for intermediate care. Of the 40 beds located in 20 semi-private rooms, 36 would be certified for Medicaid use, leaving 4 to be certified for Medicare use. Eighteen of the 40 beds would be for intermediate care, and 22 of the 40 beds would be for skilled nursing care. Forum's skilled nursing care would include "hi- tech" skilled nursing comparable to HCR's. A central corridor with central kitchen facilities and building maintenance facilities connects the three nursing home wings and the personal care unit wing with a retirement living center. The retirement living center will be able to accommodate 120 residents. Residents will be under a one year lease arrangement instead of an endowment-type arrangement. Monthly lease payments will probably fall between $950 and $1700 per month. The rental includes one meal a day in the retirement living center's dining room, weekly house cleaning, 24-hour security, transportation by automobile to appointments, banks, and doctor's offices and by mini-bus to shopping and theatres, availability of an on-call nurse, utilities, taxes, and the. services of a social director. The retirement living center will be marketed as a luxury facility to elderly persons approximately 75 years of age with an annual income of between $15,000 and $35,000. Forum projects initial utilization of all 36 Medicaid certified beds by Medicaid patients, resulting in 60% Medicaid utilization by patient day. However, that percentage would change with time. At first, residents of the retirement living apartments would not be expected to move immediately to the nursing home portion of the facility. The projected fill-up for the nursing home portion initially would not be derived from the initial fill-up of the retirement living apartments. Eventually, however, 10 to 15% of the residents of the retirement living apartments would require nursing home care, and approximately 50% of the patients in the nursing home will be, former residents of the retirement living section. In 10 to 12 years, the percentage of Medicaid utilization can be expected to drop, with a floor of approximately 45% Medicaid utilization by patient day. Like HCR's proposed project, Forum's proposal will benefit financially to some extent from the location of other facilities in the same building as the nursing home. A dietician and central kitchen and central laundry will serve all three levels. Housekeeping, building supervision, building plant, and other building maintenance operations will be centralized, saving some expenses. Like HCR, but probably not to the same extent, Forum would be able to benefit financially to some extent from the economies of scale of having a network of similar facilities (including approximately 11 facilities like the proposed project and approximately 20 free-standing nursing homes.) Location of the retirement center and the personal care unit in the same building with the nursing home will afford Forum some advantages in caring for its nursing home patients. First, some of the patients can be expected to use two or all three of the levels of care available in the complex as their medical condition worsens or, in some cases, improves. This would aid in the continuity of Forum's care and reduce the emotional strain of changing levels of care (since the patients do not have to move to a totally new location and environment.) Second, to the extent nursing home patients continue to have an independent means to pay to reside in the retirement living center or the personal care unit, those patients will have an incentive to improve their health so as to be able to move back to the retirement living center or personal care unit from the nursing home unit. (Obviously, these benefits would not apply to Medicaid patients in the nursing home.) Third, general education in health and hygiene of persons residing in the retirement living center and personal care unit will help to some degree in keeping them out of the nursing home or aiding their recovery if in the nursing home for short-term care. Like HCR, Forum also has the ability to provide quality nursing home care. However, Forum's proposal does not have the special features for care of Alzheimer's disease and other dementia patients proposed by HCR in its supplemental application. While some of those state-of-the-art special features could be incorporated by Forum during construction of its proposed nursing home, others could not, and Forum does not have the overall emphasis or commitment to provide those special features that HCR does. The total cost of Forum's nursing home proposal is approximately $2,200,000. This includes no interest cost during construction since Forum has decided to, and has the financial ability to, pay for the construction entirely out of its cash reserves. Forum has approximately $40,272,000 in cash assets. It has approximately $69,210,000 worth of current assets and only approximately $23,192,000 worth of current liabilities. Its total assets are approximately $290,747,000 and it has approximately $151,155,000 worth of common shareholders' equity. Its net income for the fiscal year ending March 31, 1986, was approximately $15,012,000. As a result, Forum's nursing home proposal is immediately financially feasible. Making reasonable, conservative assumptions including 13% interest on borrowed capital, late 1987 or early 1988 occupancy and 60% Medicaid utilization by patient day, Forum's nursing home proposal probably will break even in mid-year two and will earn approximately S69,000 net income in year two of operations. The following are Forum's final project development costs: feasibility studies $20,000, legal and accounting fees $30,000, development expenses $10,000, subtotal of the foregoing three categories $60,000; architectural and engineering fees $70,000, site survey and soil investigation $15,000, for a total cost for professional services total of $85,000; site preparation work $40,000, construction costs of $1,345,598, and contingency fees of $45,661, for a total construction cost of $1,390,258; fixed equipment cost of $65,998, moveable equipment cost of $128,850, tax-freight contingency and escalation provisions of $44,160 for a subtotal of equipment costs of $239,000; land acquisition of costs of $400,000, no interest costs during construction, pre-opening expenses' of $25,000, and, finally, a total project cost of $2,199,258. The expected construction cost per bed comes to approximately $23,171, and the total cost per bed comes-to approximately $36,165. HRS Rule Need Methodology. Rule 10-5.11(21)(b), Florida Administrative Code, provides the HRS bed need rule methodology for determining projected need for new or additional community nursing home beds. The methodology provided in Rule 10-5.11(21) is as follows: Departmental Goal. The Department will consider applications for community nursing home beds in context with applicable statutory and rule criteria. The Department will not normally approve applications for new or additional community nursing home beds in any departmental service district if approval of an application would cause the number of community nursing home beds in that departmental service district to exceed the number of community nursing home beds calculated by the methodology described in subsections (21)(b), (c), (d), (e), (f), (g), and (h) of this rule. Need Methodology. In addition to other relevant statutory and rule criteria to be used in considering the allocation of new or additional community nursing home beds, the Department will determine if there is a projected need for new or additional beds three years into the future according to the methodology specified under subparagraphs 1 through 10. This methodology provides for adjustments to current community nursing home bed rates based upon expected changes in the proportion of district residents age 75 + and the current utilization of community nursing home beds in the subdistricts designated by local health councils. In districts with a high proportion of elderly residents living in poverty, the methodology specifies a minimum bed rate. A = (POPA X BA) + (POPB X BB ): Where: A is the district's age-adjusted Number of community nursing home beds for the review cycle for which a projection is being made. POPA is the population age 65-74 years in relevant departmental district projected three years into the future. BA is the estimated current bed rate for the population age 65-74 years and over in the relevant district. BB is the estimated current bed rate for the population age 75 years and over in the relevant district. BA=LB/POPC + (6 X POPD): Where: LB is the number of licensed community nursing home beds in the relevant district. POPC is the current population age 65-74 years. POPD is the current population age 75 years and over. BB = 6 X BA SAA X (LBD/LB) X (OR/.90): Where: SA is the preliminary subdistrict allocation of community nursing home beds. LBD is the number of licensed community Nursing beds in the relevant subdistrict. Or is the average occupancy rate for all licensed community nursing homes within the subdistrict of the relevant district. Review of applications submitted for the July batching cycle shall be based upon occupancy rate data for the months of October through March preceding that cycle; applications submitted for the January batching cycle shall be based upon occupancy rate data for the months of April through September preceding that cycle. For the purposes of this rule, the occupancy data to be considered shall be that collected by the Department's Office of Healthcare Planning and Development or a contractor assigned to collect the data. In departmental districts where the percentage of persons age 65 and older living in poverty, according to the latest available U.S. census, exceeds the statewide average poverty rate for the 65 and older population and the sum of the currently licensed and certificate of need approved beds for community nursing homes within a district is less than 27 beds per thousand residents age 65 and older, the district shall be allocated a total of 27 community nursing home beds per thousand residents age 65 and older in the current year. This allocation is expressed as follows: If (Ls + AB ) /POPE is less than 27/1000 and PBD is greater than PBS, then: PA(27 X POPE)/1000 Where: AB is the number of certificate of need approved beds for community nursing homes in the relevant district. PBD is the percentage of persons age 65 and older below the poverty level within the district. PBS is the percent of persons age 65 and older below the poverty level within the state. PA is the poverty-adjusted number of beds in the relevant district. POPE is the sum of POPC and POPD. * * * 9. The net bed allocation for a sub-district which is the number of beds available for Certificate of Need approval, is determined by subtracting the total number of licensed and 90% of the approved beds within the relevant departmental subdistrict from the bed allocation determined under subparagraphs 1 through 9 unless the subdistrict's average estimated occupancy rate for the most recent six months is less than 80%, in which case the net bed allocation is zero. Prior to August 20, 1985, HRS had a long-standing policy interpreting the methodology as requiring use of population and occupancy rate at the time of the formal administrative hearing, if any, as the current population (POPC and POPD) and occupancy rate (OR) in the formula. HRS also subtracted the number of nursing home beds licensed and approved as of the date of the formal administrative hearing, if any, from the gross number of nursing home beds needed to determine the net need for nursing home beds proposed in a pending certificate of need application. Since the decision in Gulf Court Nursing Center vs. Department of Health and Rehabilitative Services, 483 So. 2d 700 (Fla. 1st DCA 1985), modified on rehearing (Fla. 1st DCA 1986), HRS adopted a new policy interpreting its rule methodology and the Gulf Court decision. HRS now interprets Gulf Court's reference to a "fixed pool of beds.' available in a given certificate of need application batching cycle to fix the health planning horizon in the rule methodology at three years into the future from the filing deadline for the certificate of need application batching cycle in question. Accordingly, POPA and POPB under the rule methodology represents the most current projection of population in the respective age cohorts on the fixed planning horizon. As before the Gulf Court decision, all other elements of the methodology including the figures for POPC, POPD, and OR are updated to the time of the formal administrative proceeding. Under its policy interpreting the rule methodology and the Gulf Court decision, HRS obtains the subdistrict occupancy rate (OR), by taking the average occupancy rate during the most recent six-month period for which data is available--in this case, from October 1, 1985 through March 31, 1986. However, the current population figures (POPC and POPD) HRS uses are the figures available closest to the date of the formal administrative hearing in this case on July 1, 1986. Under its policy, the occupancy rate (OR) does not relate to the figures for current population (POPC and POPD) to which it logically should relate. HRS did not satisfactorily explain the rationality of its policy. Meanwhile, there was ample evidence supporting the rationality of using as POPC and POPD the population at the midpoint of the time period used force determining occupancy rate (OR). In this case, since occupancy rate (OR) is determined by averaging the occupancy rates during the period from October 1, 1985 through March 31, 1986, the current population (POPC and POPD) should be the populations of the respective age cohorts on January 1, 1986. Otherwise, HRS' policy interpreting its rule methodology and the Gulf Court decision is a rational effort to reconcile the Gulf Court decision with the certificate of need statute, other conflicting court decisions and principles of sound health planning. It suffices here to say that, notwithstanding the Gulf Court decision, the evidence in this case does not establish the existence of a "fixed pool" of needed nursing home beds for which the applicants in this case applied. See Conclusions of Law 1 through 13 below. In addition, sound health planning not only dictates the use of the most recently available population projections (POPA and POPB) and the most current data (POPC, POPD, and OR) for determining current bed rates (BA and BB) under the rule methodology, but also would counsel against relying on state or district health plan determinations of a "fixed pool of beds" based upon inferior data and evidence. Departure from these sound health planning principles is likely to result in certificates of need for nursing home beds that are not needed or, in some cases, the denial of certificates of need for nursing home beds that are needed. See Appendix, paragraph B.4, below. For purposes of calculating need under the HRS rule need methodology, the appropriate health planning district is District VI, and the appropriate subdistrict is Hillsborough County. There currently are 5,617 licensed nursing home beds in District VI (LB). The District VI population for persons aged 65 to 74 on January 1, 1986 (POPC) is 131,501. The District VI population for persons aged over 75 for January 1, 1986 (POPD) is 91,433. The bed rate for the portion of the current population aged 65 to 74 (BA) is 0.008259. The bed rate for the portion of the current population aged over 75 (Bs) is 0.049554. The projected District VI population for persons aged 65 to 74 on January 1, 1988 (POPA) is 139,903. The projected District VI population for persons aged over 75 on January 1, 1988 (POPD) is 100,175. Using the bed rates for the two age cohorts (BA and BB) and the projected populations for those age cohorts on January 1, 1988 (POPA and POPB), the gross projected District VI nursing home bed need for January 1, 1988 (A) is 6,119.6. The occupancy rate for District VI nursing home beds between October 1, 1985 and March 31, 1986 (OR) was 93.3646%. This was the most current figure available at the time of the hearing. At the time of the formal administrative hearing, there were 2,512 licensed beds in Hillsborough County (LBD). At the time of the formal administrative hearing, there were 368 approved nursing home beds for the Hillsborough County subdistrict (AB). Using the figures for projected District VI bed need (A), licensed beds in District VI (LB), licensed beds for the Hillsborough County subdistrict (LBD) and the occupancy rate (OR), the allocation of nursing home beds for the Hillsborough County subdistrict (SA), is 2,839. The beds that will be available in Hillsborough County on January 1, 1988, is 2,843 (LBD plus .9 AB), leaving a surplus of 4 nursing home beds in Hillsborough County on January 1, 1988 under the HRS rule need methodology, as properly interpreted. In District VI, the percentage of persons aged 65 and older living in poverty, according to the latest available. U.S. census, exceeds the statewide average poverty rate for the 65 and older population, but the sum of the currently licensed and certificate of need approved beds for community nursing homes within District VI is approximately equal to 27 beds per thousand persons aged 65 and older, and no poverty adjustment is required under Rule 10-5.11(21)(b)5., Florida Administrative Code. State Health Plan. The State Health Plan endorses the concept of an integrated continuum of long-term care services. Forum's proposal integrates retirement living with minimal skilled nursing care needs, skilled and intermediate nursing care in a nursing home setting, and personal assistance care a middle ground between the two. Similarly, HCR's proposal integrates (1) adult congregate living with minimal requirement for skilled nursing care to limited nursing care provided to an Alzheimer's patient being primarily cared for by a spouse, and (2) skilled and intermediate nursing care in a nursing home setting, and (3) a range of specialized nursing services for the Alzheimer's patient in the second and third stages of the disease. The HCR proposal also integrates day care and respite services for Alzheimer's patients being cared for primarily for by relatives in their own homes. Addressing a related concern, the State Health Plan also endorses pre-admission screening to determine the level of care needed by a potential nursing home patient. This serves to foster a system of health care that seeks to promote "wellness" and independence of the patient. Both applicants will have some type of pre-admission screening process. Both applicants' proposals include on-site non-nursing home living facilities, and a decision would have to be made which of those two environments are appropriate for a particular patient. Forum also has personal assistance care which would require more precise screening, and Forum appeared more intent on establishing effective pre-admission screening procedures and cooperating with the state-sponsored CARES (Comprehensive Assessment and Review for Extended services) program aimed at diverting potential patients who do not truly need nursing home services. Both proposals also seek to promote "wellness" and independence of the patient. Both include less restrictive settings than nursing home care for patients who do not yet need full-time nursing services. For some patients, the less restrictive setting can serve as an incentive to recover from illnesses and shorten short-term nursing home stays. Again, Forum's proposal, with its three levels of care and more attractive retirement living setting, better fosters these objectives. Finally, the State Health Plan highlights the elderly's need for information on providers' charge structures and acceptance of Medicaid/Medicare assignment. It expresses a goal of availability of services to the medically indigent, and recommends adherence to the applicable local health plan's expectations. See Finding Of Fact 61 below. District VI Health Plan. As its second priority, the District VI Health Plan states that applicants for a certificate of need for nursing home services in the Northwest subdivision of the Hillsborough County subdistrict should commit, at minimum, 18.6% of its services to the care of Medicaid eligible patients. Forum's application commits 60% of its patient days to Medicaid during the first year of operation. HCR's commitment is only 40%. However, HCR's commitment is on a permanent basis, and Forum's actual Medicaid utilization can be expected to drop over the first ten years of operation with a floor of approximately 45%. The actual percentage of Medicaid days for the period January to March 1986, for Hillsborough County was 70%. The District VI Health Plan also ranks the Northwest subdivision of the Hillsborough County subdistrict as the first priority for location of new or additional nursing home services when needed in District VI. Both applicants propose to locate their projects in the Northwest subdivision of the Hillsborough County subdistrict. Another priority in the District VI Health Plan is to give preference to applicants with a documented history of implementing their certificates of need within the statutory time frames. Forum had no history in Florida but a good record of follow-through elsewhere. HCR has a history of mixed results in Florida but offered good explanations for the instances of delay in implementing certain certificates of need in earlier years, and the evidence was not persuasive that either Forum or HCR should be given a competitive advantage regarding this priority. The District VI Health Plan sets a 90% occupancy threshold for the continuous period of six months before additional beds are approved. This threshold has been met in Hillsborough County for at least three years. Current occupancy in Hillsborough County is 93.3646%. The District VI Health Plan states that applications for additional nursing home beds in a subdistrict should be considered against the availability of alternative forms and settings for long-term care. In this case, there was no evidence of alternatives to nursing home services other than the alternatives within the proposed projects. However, neither of the applicants will go forward with the retirement living or personal assistance care or adult congregate living alternatives without the attached nursing home. No specialized state-of-the- art Alzheimer's disease programs are now available in District VI. See Finding Of Fact 71 below. The District VI Health Plan states that applications should be reviewed with the goal that nursing home services be within 30 minutes travel time of 90% of urban residence and 45 minutes of 90% of rural residents. There was no evidence in this case regarding geographic access of the urban and rural populations or that the proposed projects would make Finally, the District VI Health Plan states that applicants should be evaluated as to their achievement of superior quality ratings by HRS and other indications of quality as available. Both applicants adequately establish that they will be able to provide quality nursing home services. It can be anticipated that both will seek and obtain a superior rating for its proposed facility. Other Pertinent Criteria. Both applicants propose projects which will be accessible to schools for health professions in Hillsborough County, such as colleges and trade schools for training and teaching purposes. In addition to its Medicaid utilization commitment previously discussed. Forum will establish a $10,000 fund, to be replenished annually, for indigent patients to draw upon as necessary for payment of nursing home services. This fund is intended to address, for example, the circumstance that could arise if a private pay nursing home patient runs out of money and all 36 Medicaid-certified nursing home beds are occupied. Unless the fund pays for the patient, the patient would have to be transferred to another nursing home. However, Forum does not yet nursing home services accessible to residents now outside the applicable travel time have any guidelines or criteria for the operation of the fund. Both Forum and HCR propose facilities to provide nursing home services. Neither applicant seeks to justify the need for its proposed nursing home on need for services that can be provided other than through a nursing home. No applicant in this batching cycle seeks to add beds as an alternative to new construction. Existing nursing home beds are alternatives to the proposals only if there is no need for additional nursing home beds. There is no existing alternative to the special Alzheimer's program proposed by HCR. Existing nursing homes serve Alzheimer's patients but not with state-of-the-art nursing home care. However, renovation of facilities HCR is in the process of purchasing from Care Corporation to accommodate special features for the treatment of Alzheimer's patients might be an alternative to the construction of a new nursing home for the purpose of providing those services. HCR did not prove that it has studied those alternatives and found either that they would not be less costly, more efficient or more appropriate or that they would not be practicable. Both HCR and Forum, through their network of retirement centers and nursing homes, generate economies of scale in centralized operations and management functions and in acquisition of equipment. As a larger nursing home company, HCR's economies of scale would be greater than Forum's. In addition, by combining different levels of care on one campus, both applicants can enjoy further economies in dietary, laundry, medical supply and bookkeeping operations. Both HCR and Forum can adequately meet manpower requirements for their proposed facilities with a combination of in-house transfers and recruiting from the local community. There was no evidence that approval of a new 60-bed nursing home facility in Hillsborough County would have a significant negative impact on the financial viability of existing nursing homes. Current occupancy rates are high, reducing patients' choice in the selection of a nursing home. The last 240 nursing home beds opened to patients in Hillsborough County quickly were absorbed by the demand for those services. Neither HCR nor Forum now own or operate a nursing home in the Tampa Bay area. However, HCR is in the process of acquiring four nursing homes from Care Corporation. As a result, HCR would have more control over the market than Forum and would have the potential eventually to use its market power to decrease competition. But at this time, it can be anticipated that either proposal would foster competition and promote quality assurance and effectiveness. Balanced Consideration of the Criteria. HCR and Forum are worthy applicants who have conceived and proposed nursing home projects worthy of consideration. However, balancing consideration of all of the criteria, and giving due weight to the HRS rule need methodology, it is found that there is no need at this time for a new 60-bed nursing home in Hillsborough County. There is no numeric need under the rule, and no special circumstances were proved by documentation of denied access to currently licensed but unoccupied beds or of need exceeding the number of licensed unoccupied and currently approved nursing home beds. Meanwhile, the special Alzheimer's program HCR proposes does not independently support construction of a new 60-bed nursing home. Renovation of the four nursing homes HCR is in the process of purchasing from Care Corporation might be a less costly, more efficient and more appropriate alternative to construction of a new 60-bed nursing home to provide special Alzheimer's programs in Hillsborough County. However, if there were a need for 60 additional nursing home beds, HCR's Alzheimer's program would be enough to give it a competitive advantage over Forum's proposal.
Recommendation Based upon the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that Respondent, Department of Health and Rehabilitative Services, enter a final order denying the applications of both Health Care and Retirement Corporation of America, Petitioner in Case No. 85-3217, CON Action No. 3818, and Forum Group, Inc., Petitioner in Case No. 85-3376, CON Action No. 3817, for a certificate of need to construct and operate a new 60-bed nursing home in Hillsborough County. RECOMMENDED this 3rd day of November, 1986, in Tallahassee, Florida. J. LAWRENCE JOHNSTON, 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 3rd day November, 1986.
The Issue Whether Respondent’s nursing home license should be disciplined, and whether Respondent’s nursing home license should be changed from a Standard license to a Conditional license.
Findings Of Fact Bayside Manor is a licensed nursing home located in Pensacola, Florida. On June 14, 2003, Resident No. 4 climbed out of her bed without assistance to go to the bathroom. She fell to the floor and sustained a bruise to her forehead and lacerations to her cheek and chin. Her Foley catheter was pulled out with the bulb still inflated. The fall occurred shortly after Resident No. 4 had finished eating. No staff was in her room when she climbed out of her bed. She was found on her side on the floor by staff. According to the June 14 Bayside’s Nurses' notes, Resident No. 4 stated, "Oh, I was going to the bathroom." In the hour prior to her fall, Resident No. 4 was seen at least three times by nursing assistants, which was more than appropriate monitoring for Resident No. 4. On June 20, 2002, AHCA conducted a survey of Bayside Manor’s facility. In its survey, AHCA found one alleged deficiency relating to Resident No. 4. The surveyor believed that Resident No. 4 should have been reassessed for falls by the facility and, based upon that reassessment, offered additional assistive devices and/or increased supervision. The surveyor also believed that the certified nursing assistant had left Resident No. 4 alone with the side rails to her bed down. The deficiency was cited under Tag F-324. Tag F-324 requires a facility to ensure that “[e]ach resident receives adequate supervision and assistance devices to prevent accidents.” The deficiency was classified as a Class II deficiency. On October 9, 2001, and January 14, 2002, Bayside Manor assessed Resident No. 4 as having a high risk for falls, scoring 9 on a scale where scores of 10 or higher constitute a high risk. In addition to the June 14, 2002, fall noted above, Resident No. 4 had recent falls on November 30, 2001, April 19, 2002, and May 12, 2002. Resident No. 4's diagnoses included end-stage congestive heart failure and cognitive impairment. She had periods of confusion, refused to call for assistance, and had poor safety awareness. Resident No. 4 had been referred to hospice for palliative care. Because hospice care is given when a resident is close to death, care focuses on comfort of the resident rather than aggressive care. Additionally, the resident frequently asked to be toileted even though she had a catheter inserted. She frequently attempted to toilet herself without staff assistance, which in the past had led to her falls. Often her desire to urinate did not coincide with her actual need to urinate. She was capable of feeding herself and did not require assistance with feeding. Bayside Manor addressed Resident No. 4’s high risk of falls by providing medication which eliminated bladder spasms that might increase her desire to urinate and medication to alleviate her anxiety over her desire to urinate. She was placed on the facility’s falling stars program which alerts staff to her high risk for falls and requires that staff check on her every hour. The usual standard for supervision in a nursing home is to check on residents every two hours. The facility also provided Resident No. 4 with a variety of devices to reduce her risk of falling or any injuries sustained from a fall. These devices included a lap buddy, a criss-cross belt, a roll belt while in bed, a low bed, and a body alarm. Some of the devices were discontinued because they were inappropriate for Resident No. 4. In December 2001, the roll belt was discontinued after Resident No. 4, while attempting to get out of bed, became entangled in the roll belt and strangled herself with it. On May 6, 2002, the low bed and fall mat were discontinued for Resident No. 4. The doctor ordered Resident No. 4 be placed in a bed with full side rails. The doctor discontinued the low bed because it could not be raised to a position that would help alleviate fluid build-up in Resident No. 4’s lungs caused by Resident No. 4’s congestive heart failure. Discontinuance of the low bed was also requested by hospice staff and the resident’s daughter to afford the resident more comfort in a raised bed. The fact that placement in a regular raised bed potentially could result in an increase in the seriousness of injury from a fall from that bed was obvious to any reasonable person. The May 5, 2002, nurses’ notes indicate that there was a discussion with Resident No. 4’s daughter about returning the resident to a high bed for comfort. On balance, the placement of Resident No. 4 in a regular raised bed was medically warranted, as well as reasonable. The placement in a regular bed with side rails was not noted directly in the care plan but was contained in the doctor’s orders and was well known by all the facility’s staff. There was no evidence that directly mentioned the regular bed in the formal care plan was required or that the failure to do so had any consequence to Resident No. 4’s care. Even a lack of documentation clearly would not constitute a Class II deficiency. Moreover, the bed with side rails was not ordered to protect or prevent falls by Resident No. 4. The facility does not consider a bed with side rails of any sort to be a device which assists in the prevention of falls. Indeed rails often cause falls or increase the injury from a fall. In this case, the rails were ordered so that the resident could more easily position herself in the bed to maintain a comfortable position. Again, the decision to place Resident No. 4 in a regular raised bed with side rails was reasonable. The focus is on comfort as opposed to aggressive care for hospice residents. The evidence did not demonstrate that Bayside Manor failed to adequately supervise or provide assistive devices to Resident No. 4. There was no evidence that reassessment would have shown Resident No. 4 to be at any higher risk for falls, since she was already rated as a high risk for falls. Nor did the evidence show that reassessment would have changed any of the care given to Resident No. 4 or changed the type bed in which she was most comfortable.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order restoring the Respondent’s licensure status to Standard and dismissing the Administrative Complaint. DONE AND ENTERED this 3rd day of June, 2003, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of June, 2003. COPIES FURNISHED: Joanna Daniels, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Donna H. Stinson, Esquire R. Davis Thomas, Jr., Esquire Broad & Cassel 215 South Monroe Street, Suite 400 Post Office Box 11300 Tallahassee, Florida 32302 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received, the stipulations of the parties and the entire record complied herein, I hereby make the following findings of fact: THE STIPULATIONS OF THE PARTIES The parties stipulated to the following facts: Forum timely filed its letter of intent and application with DHRS and the District IX Local Health Council for the July 1986 batching cycle. DHRS ultimately deemed the application complete and, following review, published its notice of intent to deny the application. Forum timely filed a petition requesting a formal administrative hearing pursuant to Section 120.57(1), Florida Statutes. The sole issue is whether there is a need for Forum's proposed services; additionally, it is DHRS's position that a lack of need for the project results in the project not being financially feasible in the short or long term. All other statutory and rule criteria were satisfied, at least minimally, except proof of need pursuant to Rule 10-5.011(1)(k) [formerly 10-5.11(21)(b)], Florida Administrative Code, and financial feasibility as it relates to need. FORUM'S PROPOSAL Forum is a publicly held health services company which owns, develops and operates retirement living centers and nursing homes on a national basis. Forum proposes to develop a retirement living center in Palm Beach County that would consist of 120 to 150 apartment units for independent living, a separate personal care unit (known in Florida as an adult congregate living facility), and a 60-bed nursing home component certified for skilled and intermediate care. Palm Beach County is in HRS Service District IX, Subdistrict 4. All three components of Forum's retirement living center would be physically connected and share some operational functions, such as dietary facilities and the heating plant. Such a design provides for an efficient operation as well as an economic distribution of costs facility wide. No specific site has been selected , although Forum has narrowed its focus to the eastern half of Palm Beach County. It is not economically feasible to acquire property or pay for an option on property until after receiving CON approval. The projected total cost of Forum's proposed 60-bed nursing home is $2,329,800. Forum has the necessary resources for project accomplishment and operation. Forum proposes to seek Medicare certification and will provide up to 25 of its beds for Medicaid patients. FINANCIAL FEASIBILITY Forum is a national company, with substantial experience in developing and operating nursing homes and retirement living centers. If need for the facility is shown, Forum would be able to capture a sufficient share of the nursing home market to render its proposed nursing home financially feasible while at the same time having no material negative impact on existing providers in the district. NUMERIC NEED Need for new or additional community nursing home beds in Florida is determined, preliminarily, by use of the methodology found in Rule 10- 5.011(1)(k), Florida Administrative Code. Additional beds normally are not approved if there is no need for beds as calculated under the rule. Pursuant to the rule, need for a defined nursing home subdivision is projected to a three- year planning horizon, in this case July 1989. The need methodology prescribed in the rule is as follows: A (POPA x BA) + (POPB x BB) or: The District's age-adjusted number of community nursing home beds for the review cycle for which a projection is being made [A] (The population age 65-74 years in the relevant departmental districts projected three years into the future [POPA] x the estimated current bed rate for the population age 65-74 years in the relevant district [BA]) + (The population age 75 years and older in the relevant departmental district projected three years into the future [POPB] x the estimated current bed rate for the population age 75 years and over in the relevant district [BB].) BA LB/(POPC) + (6 x POPD) or: The estimated current bed rate for the population age 65-74 years in the relevant district [BA] (The number of licensed community nursing home beds in the relevant district [LB]/the current population age 65-74 years [POPC] + (6 x the current population age 75 years and over [POPD]) BB 6 x BA or: The estimated current bed rate for the population age 75 years and over in the relevant district [BB] 6 x the estimated current bed rate for the population age 65-74 years in the relevant district [BA]. SA A x (LBD/LB) x (OR/.90) or: The preliminary subdivision allocation of community nursing home beds [SA] The district's age-adjusted number of community nursing home bids for the review cycle for which a projection is being made [A] x (The number of licensed community nursing home beds in the relevant subdistrict [LBD]/the number of licensed community nursing home beds in the relevant district [LB]) x (The average occupancy rate for all licensed community nursing homes within the subdistrict of the relevant district [OR]/.90) Rule 10-5.011(1)(k)(2)(i), Florida Administrative Code, provides that: The new bed allocation for a subdistrict, which is the number of beds available for CON approval, is determined by subtracting the total number of licensed and 90 percent of the approved beds within the relevant departmental subdistrict from the bed allocation determined under subparagraphs a. through i., unless the subdistrict's average estimated occupancy rate for the most recent six months is less than 80 percent, in which case the net bed allocation is zero. The appropriate planning horizon for the instant case is July 1989, corresponding to the review cycle which began July 15, 1986, and the subdistrict is Palm Beach County. THE NUMBER OF LICENSED COMMUNITY NURSING HOME BEDS IN THE RELEVANT DISTRICT (LB)/THE NUMBER OF LICENSED COMMUNITY NURSING HOME BEDS IN THE RELEVANT SUBDISTRICT (LBD) Rule 10-5.011(1)(k) requires that "review of applications submitted for the July batching cycle shall be based upon the number of licensed beds (LB and LBD) as of June 1 preceding this cycle..." On June 1, 1986, there were 5,459 licensed community nursing home beds in District XI (LB) and 4,084 licensed community nursing home beds in subdistrict 4 (Palm Beach County LBD). These figures include 220 licensed beds that were previously categorized as sheltered. In the instant case, the appropriate figure for LB is 5,459, and the appropriate figure for LBD is 4,084. APPROVED BEDS WITHIN THE RELEVANT DEPARTMENTAL SUBDISTRICT DHRS's interpretation of the rule is to include in the count of approved beds, those approved up to the date of the supervisor's signature on the State Agency Action Report (SAAR). In this case, there were 640 approved beds in Palm Beach County at that time. As of June 1, 1986, the same date as the licensed bed cutoff, there were 640 approved beds in the subdistrict. In Dr. Warner's opinion, approved beds should be determined as of the same time period as licensed beds in order to have consistency and avoid anomalies in the formula. This opinion is reasonable and appropriate. In the instant case, the figure to be applied in the formula for approved beds in the subdistrict is 640 approved beds. THE POPULATION AGE 65-79 YEARS IN THE RELEVANT DEPARTMENTAL DISTRICT PROJECTED THREE YEARS INTO THE FUTURE (POPA). THE POPULATION AGE 75 YEARS AND OVER IN THE RELEVANT DEPARTMENTAL DISTRICT PROJECTED THREE YEARS INTO THE FUTURE (POPB). The rule provides that the three year projections of population shall be based upon the official estimates and projections adopted by the Office of the Governor. For the purposes of calculating need, DHRS utilizes at the final hearing the figures for estimated population obtained from data available at the time of initial application and review. The set of population projections which were available when Petitioner's application was filed and reviewed were those published on July 1, 1986. Based on this data, which is reasonable to use, POPA 170,639; and, POPB 122,577. THE CURRENT POPULATION AGE 65-74 YEARS (POPC)/THE CURRENT POPULATION AGE 75 YEARS AND OVER (POPD). In calculating POPC and POPD, DHRS also utilizes at final hearing the most current data available at the time of initial application and review, in this case the July 1, 1986, release. Based on that data, POPC 153,005 and POPD 112,894. In the opinion of Dr. Warner, Forum's expert, the base for POPC and POPD should correspond to the period for which the average occupancy rate (OR) is calculated. For the July batching cycle, OR is based upon the occupancy rates of licensed facilities for the months of October through March preceding that cycle. According to Warner, January 1, 1986, as the midpoint of this time period, is the appropriate date to derive POPC and POPD in this case. The formula mandated by the rule methodology for calculating the estimated current bed rate requires that the "current population" for the two age groups be utilized. It is reasonable and appropriate for the base for POPC and POPD to correspond to the period for which the average occupancy rate is calculated. Supportive of Dr. Warner's opinion are the past practices of DHRS. Between December 1984 and December 1986, DHRS routinely used a three and one half year spread between the base population period and the horizon date in determining "current population" in its semiannual nursing home census report and bed need allocation. In the January 1987 batching cycle, which cycle immediately followed the cycle at issue in this case, DHRS utilized a three and one half year spread between the base population period and the horizon data for "current population" when it awarded beds. DHRS offered In this case, it proposed to use a three year spread between the base population period and the horizon dated for "current population" in calculating POPC and POPD. Using the July 1986 population release, POPC for January 1986 is 149,821 and POPD for January 1986 is 98,933. THE AVERAGE OCCUPANCY RATE FOR ALL LICENSED COMMUNITY NURSING HOMES WITHIN THE SUBDIVISION OF THE RELEVANT DISTRICT (OR). The rule requires the use of occupancy data from the HRS Office of Health Planning and Development for the months of the previous October through March when calculating a July batch of nursing home applicants. However, the rule is not instructive as to how one calculates this number. In this case, DHRS computed average occupancy rates based on the existing occupancy rates at applicable facilities on the first day of each month. Based on this occupancy data, which includes the data for the 220 previously sheltered beds in the subdistrict, occupancy rates for the July 1986 batch of Palm Beach County nursing home applicants is 83.75 percent. Forum's witness, Dr. Warner, determined that the correct occupancy rate was 85.46 percent for Palm Beach County for the period October 1985 to March 1986. Dr. Warner arrived at this figure by including paid reservation days. A paid reservation day is a day which is paid for by the patient or the patient's intermediary during which the patient is not physically in the bed. Typically, the patient will either be in the hospital, visiting relatives or otherwise away from the facility and will continue to pay for the nursing home bed, so that they will be able to return and not have someone occupy the bed. One of the goals and objectives of the District IX Local Health Plan is that paid reservation days be considered when bed need calculations are made. Calculating prepaid reservation days is consistent with the Rule because such beds are no longer available to the public and are therefore in use. Dr. Warner determined that during the applicable period, 1.25 percent of the licensed beds in the subdistrict were paid reservation days. Although taking paid reservation days into account would not be inconsistent with the rule, Forum failed to demonstrate that the 1.25 percent figure arrived at is valid for the applicable period, i.e., October 1985 to March 1986. Dr. Warner merely calculated a two-year average number of paid reservation days, broke this figure down to a six-month average and applied this average to the six-month period specified in the Rule. Gene Nelson, an expert called on behalf of Forum, calculated the occupancy rate as 88.72 percent in Palm Beach County for the appropriate period called for in the Rule. Nelson used the average monthly occupancy data obtained from medicaid cost reports for some facilities rather than first-day of the month data as used by DHRS. In addition, Nelson did not factor in the occupancy date of licensed beds in the extreme western portion of the County based on his belief that the District IX Local Health Plan mandates that the western area not be considered in any way with the eastern coast section of Palm Beach County for purposes of determining competitiveness. While the use of average full-month occupancy data is generally more reliable than using first-day of the month data, it is best, from a health planning prospective, to be able to use either all full-month data or all first- day of the month data. In making his calculations, Mr. Nelson mixed the two types of data, using full-month data when available and in other cases using first-day of the month data when full-month data was not available. It is inappropriate to fail to consider licensed beds in the extreme western portion of the County based solely on the local health plan. Among other reasons, the rule does not provide for exclusions for any of the subdistricts licensed facilities from the methodology. The appropriate and most reasonable occupancy rate (OR) in the instant case for the applicable time period is 83.75 percent. NET NEED Applying the above-referenced variables to the Rule formula produces the following results. July, 1986. District Allocation BA LB (POPC + (6 x POPD) - 5459 [149,821 + (6 x 98,833)] - .007349 BB - 6 x BA .044094 (.007349) July, 1989 Allocation (POPA x BA) + (POPB x BB) - (170,639 x .007349) + (122,577 x .044094) - 6659 Subdivision Allocation and Need SA A x (LBD / LB) x (OR 1.9) - 6659 x (4084 / 5459) x (.8375/.9) - 6659 x .74812236673 x .93055555555 4636 Subdistrict Allocation for Palm Beach County 4084 (Licensed Beds) 576 (90 percent of 640 Approved Beds) -24 (Bed Surplus)
Recommendation Based on the foregoing Findings of Fact, and Conclusions of Law, it is, RECOMMENDED that the application for certificate of need filed by Forum be Denied. DONE AND ORDERED, this 4th day of April, 1988, in Tallahassee, Florida. W. MATTHEW STEVENSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of April, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-0704 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in substance in Finding of Fact 2. Adopted in substance in Finding of Fact 3. Adopted in substance in Finding of Fact 4. Adopted in substance in Finding of Fact 5. Adopted in substance in Finding of Fact 5. Adopted in substance in Finding of Fact 6. Adopted in substance in Finding of Fact 6. Adopted in substance in Finding of Fact 7. Adopted in substance in Finding of Fact 9. Sentence 1 is rejected as contrary to the weight of the evidence. Rejected as subordinate and/or unnecessary. 11. Adopted in substance in Finding of Fact 9. 12. Adopted in substance in Finding of Fact 9. 13. Adopted in substance in Finding of Fact 10. 14. Adopted in substance in Finding of Fact 12. 15. Adopted in substance in Finding of Fact 1. 16. Adopted in substance in Finding of Fact 14. 17. Adopted in substance in Finding of Fact 21. 18. Adopted in substance in Finding of Fact 20. 19. Adopted in substance in Finding of Fact 22. 20. Adopted in substance in Finding of Fact 22. 21. Adopted in substance in Finding of Fact 18. Adopted in substance in Finding of Fact 15. Adopted in substance in Finding of Fact 17. Adopted in substance in Finding of Fact 17. Adopted in substance in Finding of Fact 23. Rejected as a recitation of testimony and/or unnecessary. Rejected as subordinate and/or unnecessary. Adopted in substance in Finding of Fact 24. Rejected as a recitation of testimony and/or unnecessary. Adopted in substance in Finding of Fact 25. Rejected as a recitation of testimony and/or subordinate. Adopted in substance in Finding of Fact 25. Adopted in substance in Finding of Fact 21. Rejected as contrary to the weight of the evidence. Rejected as not supported by the weight of the evidence and/or unnecessary. Rejected as subordinate and/or unnecessary. Rejected as subordinate and/or unnecessary. Adopted in substance in Finding of Fact 27. Adopted in substance in Finding of Fact 28. Adopted in substance in Finding of Fact 27. Adopted in substance in Finding of Fact 28. Rejected as a recitation of testimony and/or subordinate. Rejected as misleading and/or subordinate. Rejected as subordinate and/or unnecessary. Rejected as contrary to the weight of the evidence. Rejected as contrary to the weight of the evidence. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in substance in Finding of Fact 1. Adopted in substance in Finding of Fact 1. Adopted in substance in Finding of Fact 9. Adopted in substance in Finding of Fact 3. Rejected as contrary to the weight of evidence. Adopted in substance in Finding of Fact 13. Adopted in substance in Finding of Fact 18 and 19. Adopted in substance in Finding of Fact 16. Adopted in substance in Finding of Fact 23. Addressed in Conclusions of Law. Addressed in Conclusions of Law. Rejected as subordinate and/or unnecessary. COPIES FURNISHED: Thomas W. Stahl, Esquire 102 South Monroe Street Tallahassee, Florida 32301 R. Terry Rigsby, Esquire 325 John Knox Road Building C, Suite 135 Tallahassee, Florida 32303 Richard Patterson, Esquire Department of Health and Rehabilitative Services 2727 Mahan Drive Tallahassee, Florida 32308 Gregory L. Coler Secretary Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32399-0700 John Miller, Esquire Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32399-0700 Sam Power HRS Clerk Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32399-0700 =================================================================
The Issue Whether Respondent's license as a nursing home administrator in the State of Florida should be suspended, revoked, or otherwise disciplined for the alleged violation of Chapter 468, Florida Statutes, as set forth in the Administrative Complaint filed October 10, 1988. The Administrative Complaint charges Respondent with violating Section 468.1755(1)(g), Florida Statutes, because of alleged negligence, incompetence or misconduct in the practice of nursing home administration, and Section 468.1755(1)(m), Florida Statutes, as a result of willfully or repeatedly violating any of the provisions of the law, code or rules of the licensing or supervising authority or agency of the state having jurisdiction of the operation and licensing of nursing homes. The charges are based on the allegation that Respondent was the Administrator in charge of a nursing home in Miami, Florida while also acting in the capacity of Administrator at another facility without having a qualified Assistant Administrator to act in his absence. This case was originally scheduled for hearing on March 26, 1989. That hearing was continued while the parties attempted to finalize a settlement agreement. On April 25, 1989, the Petitioner, Department of Professional Regulation, Board of Nursing Home Administrators entered a Final Order imposing a reprimand on Respondent. Respondent objected to the Final Order and contended that it was not in accordance with the settlement negotiations that took place. A Notice of Appeal was filed in connection with the Final Order. Subsequently, the parties agreed that the appeal should be dismissed and the case was remanded to the Division of Administrative Hearings to conduct a formal administrative hearing. At the hearing, Petitioner called two witnesses: James W. Bavetta, an inspector with the Department of Health and Rehabilitative Services, Office of Licensure and Certification and William Carl Wheatley, Jr., a licensed Nursing Home Administrator in the State of Florida, who was accepted as an expert in the field of nursing home administration. The Petitioner offered three exhibits into evidence all of which were accepted. The Respondent testified on his own behalf and had fourteen exhibits marked, all of which were accepted into evidence except Respondent's Exhibit 2 which was not offered. At the conclusion of the hearing, the parties requested and were granted an opportunity to brief certain legal issues raised during the hearing in order to obtain a ruling on those issues prior to submitting proposed recommended orders. However, the parties subsequently withdrew this request and by Agreed Order dated December 29, 1989, the parties were granted until January 29, 1990 to file their proposed recommended orders. The parties were also granted fifteen days after submission of proposed recommended orders to file a reply memoranda to the legal issues raised in the proposals. Both parties filed proposed recommended orders. In addition, Respondent filed a Memorandum Brief regarding certain legal issues raised. The Petitioner did not file a separate brief on the legal issues. The Petitioner's proposed recommended order was filed on January 30, 1990. By notice filed on February 5, 1990, the Respondent waived any objection to the late filing of Petitioner's Recommended Order. All submittals have been reviewed and considered in the preparation of this Recommended Order. A ruling on each of the parties' proposed findings of fact is included in the Appendix to this Recommended Order. Prior to the hearing, Respondent had filed a Motion to Compel Complete Response to Respondent's Request for Production of Documents. That Motion was related to the purported failure by the Department of Health and Rehabilitative Services to produce documents requested pursuant to subpoena Duces Tecum issued August 16, 1989. The Department of Health and Rehabilitative Services ("HRS") is not a party to this action, but it filed a Response to Motion to Compel indicating that HRS's records were not kept in a manner which would allow the agency to isolate the documents requested without going through every licensure file kept by the agency. HRS offered the Respondent an opportunity to undertake such an investigation. At the commencement of the hearing, the Respondent advised that he was prepared to go forward with the hearing without a ruling on the Motion to Compel. However, counsel for Respondent requested the opportunity to revisit this issue, if necessary, at the conclusion of the hearing. During the hearing, an investigator from HRS testified and produced certain documents relating to Respondent's Florida facility. In addition, the HRS investigator testified regarding certain HRS policies and procedures. Based upon the evidence adduced at the hearing, the Motion to Compel appears moot and Respondent has not addressed this issue in his proposed recommended order. Therefore, the Motion to Compel is denied. At Petitioner's request, official recognition has been taken of Rule 10D- 29.104(6)(c).
Findings Of Fact Based upon the testimony of the witnesses and documentary evidence received at the hearing and the entire record herein, I make the following findings of fact: The Respondent, is a licensed Nursing Home Administrator in the State of Florida, license number NH 0001018. He has been duly licensed in Florida since 1974-1975. At all times material hereto, the Respondent has been the nursing home administrator in charge at Riverside Care Center ("Riverside",) a nursing home located at 899 N.W. 4th Street, Miami Florida. Respondent has never been the designated nursing home administrator for any other facility licensed by or located in Florida. At all times material hereto, Riverside held and continues to hold a superior rating issued by Florida HRS pursuant to Section 400.23, Florida Statutes. At all times material hereto, Respondent has been a licensed nursing home administrator in the State of Kentucky, having been issued license number 420. Respondent has also been a licensed nursing home administrator in the State of Ohio since 1973. Other than the charges in this case, Respondent has never been the subject of disciplinary action or faced administrative charges in any of the states in which he is licensed. At all times material hereto, Respondent has been the licensed nursing home administrator in charge of Garrard Convalescent Home, (`1Garrard") located at 425 Garrard Street, Covington, Kentucky 41011. In December, 1985, as a part of the re-licensure process, Riverside filed DHRS Form 109 with MRS. The information contained on that form disclosed that Respondent served as an Administrator for Garrard which is a superior rated nursing home located in and licensed by the Commonwealth of Kentucky. Prior to July 11, 1986, Riverside designated in writing, Richard Stacey and Riverside's Director of Nursing, as the persons in charge and responsible for the facility in the absence of Respondent from the facility. On July 11, 1986, Richard Stacey, Respondent's brother, was a nursing home administrator licensed by Kentucky. Thus, he had passed the national examination. He had applied for an administrator's license by endorsement in Florida. Such license was issued to Mr. Stacey in 1986, but not until after July 11, 1986. On July 11, 1986, Respondent was in Cincinnati, Ohio, at Riverside's central business office, working on payroll for the facility. Richard Stacey was physically present and in charge of Riverside on that date. However, he was not a licensed administrator in Florida at that time. Betty Ward, a licensed administrator, was physically present and in charge at Garrard. On July 11, 1986, as the result of comments received from the HRS Medicaid Office, Audit Division, in Tallahassee, an MRS representative went to Riverside and determined that Respondent was not present at the facility. During the inspection, Mr. Bavetta, the MRS representative, did not look for nor did he find any evidence that the residents were not being cared for or that their rights were not being protected. As a result of the inspection, the HRS investigator issued a Recommendation for Sanctions against the facility for a purported violation of Florida Administrative Code Rule 10D-29.104(6)(c) and/or 10D-29.104(6)(d). A violation of either of those sections would generally constitute a Class III deficiency pursuant to Section 400.238(4), Florida Statutes. Class III deficiencies do not present a direct or immediate threat to the safety or welfare of the residents. The existence of a Class III deficiency or deficiencies does not automatically establish negligence, incompetence or misconduct on the part of the Administrator of the facility. As a matter of general policy, HRS does not seek administrative sanctions if a Class III deficiency is corrected within the prescribed time. In this case, no time to correct the deficiency was prescribed and HRS sought administrative sanctions against the facility. Within six (6) days of receipt of the notice by Riverside of the alleged violations of Florida Administrative Code Rule 10D-29.104(6), a licensed assistant administrator was hired by Riverside. The decision not to hire a licensed assistant administrator at Riverside prior to July 11, 1986 was based upon the advice of Respondent's attorney that such was not a requirement under Florida law. For the period January 1, 1985 through September 21, 1989, Petitioner has not filed charges against any other licensed nursing home administrator in the State of Florida except Respondent for an alleged violation of Florida Administrative Code Rule 10D-29.104(6)(c) or 10D-29.104(6)(d). Respondent's conduct of nursing home administration at Riverside was in conformity with the standard of practice utilized by a normal, prudent, responsible nursing home administrator in Florida.
Recommendation Based upon the foregoing facts and conclusions of law, it is RECOMMENDED that the Florida Board of Nursing Home Administrators enter a Final Order finding Ralph L. Stacey, Jr., not guilty of violating Section 468.1755(1)(g) and Section 468.1755(1)(m) Florida Statutes, and dismissing all the charges in the Administrative Complaint. DONE and ORDERED this 4th day of April 1990, in Tallahassee, Florida. J. STEVEN MENTON 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 12 day of April 1990. APPENDIX TO RECOMMENDED ORDER CASE NO. 88-6233 Both the Petitioner and the Respondent submitted Proposed Recommended Orders which include proposed findings of fact and conclusions of law. The following rulings are directed towards the findings of fact contained in those proposals. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order were Accepted or Reason for Rejection. 1 Adopted in substance in Findings of Fact Adopted in substance in Findings of Fact 2. Adopted in substance in Findings of Fact 4. Adopted in substance in Findings of Fact 5. Adopted in substance in Findings of Fact 9. Adopted in substance in Findings of Fact 14. Adopted in substance in Findings of Fact 8. The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order were Accepted or Reason for Rejection. 1 Adopted in substance in Findings of Fact 2. Adopted in substance in Findings of Fact 4. 3. Adopted in substance in Findings of Fact 2. 4. Adopted in substance in Findings of Fact 3. 5. Adopted in substance in Findings of Fact 6. 6. Adopted in substance in Findings of Fact 7. 7. Adopted in substance in Findings of Fact 8. 8. Adopted in substance in Findings of Fact 9. Rejected as constituting a conclusion of law rather than a finding of fact. Adopted in substance in Findings of Fact 11. Adopted in substance in Findings of Fact 12. Adopted in substance in Findings of Fact 13. 13. Adopted in substance in Findings of Fact 15. 14. Adopted in substance in Findings of Fact 16. 15. Adopted in substance in Findings of Fact 17. 16. Subordinate to Findings of Fact 14. 17. Subordinate to Findings of Fact 13. 18. Rejected as constituting a conclusion of law rather than a finding of fact. 19. Adopted in substance in Findings of Fact 18. COPIES FURNISHED: Charles F. Tunnicliff Chief Attorney Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Kenneth S. Handmaker, Esquire Middleton & Reutlinger 2500 Brown & Williamson Tower Louisville, Kentucky 40202 Judie Ritter Executive Director 504 Daniel Building 111 East Coastline Drive Jacksonville, Florida 32202 Kenneth E. Easely, Esquire Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
Findings Of Fact Suburban Nursing and Mobile Homes, Inc., of Ohio, at all material times, wholly owned the stock of G & J, an owner of land, buildings and equipment of two nursing homes, Krestview Nursing Home and Towne House Convalescent Center located in Miami, Florida. Suburban was a holding company which owned the stock of numerous subsidiary corporations engaged in the nursing home or mobile home park business. Among its subsidiaries was B & K Investments, Inc. (hereafter "B & K") a Florida corporation. All of the stock of Suburban was controlled by Gerald D. Keller. On May 5, 1977, at the request of the Department, B & K became the licensed provider for Krestview and Towne House and G & J became the landlord. Both landlord and tenant were wholly owned by the same parent corporation. Since Medicaid rules and regulations prohibited the payment of rent by a provider to a related-party landlord, Keller arranged in May of 1977, for the sale of the stock of B & K to unrelated parties in an arm's-length transaction. Petitioner's assignor, B & K, entered into written provider agreements with the Department for the operation of the two nursing homes. That provider agreement states, in pertinent part, that: In instances of non-payment or underpayment conditions due to error(s) not attributable to provider who has furnished nursing home services and care to persons properly certified and eligible, the single state agency (HRS) shall make payment to the provider upon receipt of properly completed claims documents. (Petitioner's Exhibit 13, 13a.) (Emphasis added.) During 1978 and 1979, the Department set reimbursement rates for B & K inconsistently. During this period of time, B & K experienced at least eight different retroactive increases or decreases in a period of less than twelve months. Additionally, the relationship between the parties was increasingly strained during 1978, as evidenced by Petitioners Exhibit 18, in which a medicaid audit evaluation and review analyst, in considering cost factors at Krestview, speculated that the "Ohio group would get out of the business in Florida." In August, 1979, the independently owned B & K d/b/a Krestview Nursing Home and Towne House Convalescent Center, filed a petition in bankruptcy. Among its creditors were G & J, the landlord, which filed a secured claim in excess of $300,000 for unpaid rents. At that time B & K had not yet filed cost reports for its fiscal year ending May 31, 1979, and had filed no cost reports for the period May 31 through August 31, 1979. The trustee made a determination to file those cost reports on behalf of the bankrupt if the cost reports could be prepared. The trustee requested B & K's former accountant to prepare the cost reports. When it became apparent that the accountant was unwilling to prepare the reports without a substantial advance payment and that no funds were available to pay for such services, the trustee looked elsewhere. Keller's holding company, Suburban, owned the stock of Nursing Home Consultants, Inc., an Ohio corporation engaged in the business of providing accounting services to health care organizations. Keller had an obvious interest in offering the services of his corporation on a contingent basis since he had a $300,000 secured claim against the bankrupt whose only visible asset was the monies it asserted were due from the Department as a result of reimbursable expenses. The proposal advanced by Keller was accepted by the trustee in bankruptcy, Jennette E. Tavormina, and Judge, Thomas C. Brutton, bankruptcy judge. The court entered an order appointing Nursing Home Consultants to prepare the cost reports. Nursing Home Consultants attempted to obtain the accountant's work papers to begin preparing the cost reports, however, it was not until December, 1980, when faced with possible action from the court, that the accountant made his papers available and the time-consuming tasks of matching checks to invoices, verifying patient records and documenting expenses began. In July of 1981, Nursing Home Consultants completed the first of the cost reports and forwarded it to the trustee. The trustee in turn filed the cost report with the Department. It was returned to Nursing Home Consultants because the person who had certified the reports was not a certified public accountant in Ohio. Nursing Home Consultants had the returned cost report recertified by an independent firm of certified public accountants in Ohio. Considerable time elapsed and as of July, 1982, the cost reports for the second facility had not been completed. Both the trustee and the bankruptcy judge desired to close the estate and ascertain what, if any, assets were present. G & J made a written offer to the trustee to purchase the trustee's right, title and interest and claims, if any, in and to the Medicare/Medicaid cost reports of the bankrupt. In consideration, G & J offered the sum of $5,000 together with the waiver of its claim for rents due and owing from B & K and any and all claims against the estate for the costs and expenses incurred in the preparation of the cost reports. A hearing was held on September 23, 1982, after notice to all creditors, concerning whether G & J's offer should be accepted. The Department appeared at the hearing and opposed the sale. The offer was accepted by the trustee and ratified and approved by the court on September 24, 1982. The objection entered by the Department to the sale was specifically denied. No appeal of the court's order was taken by the Department. On February 7, 1983, G & J, as assignee, under the bankruptcy court's order, filed the cost reports with the Department for review and audit. The Department returned the cost reports outlining its reasons by letter dated March 25, 1983, and set forth above. The cost reports for the period May 5, 1977 through May 31, 1978, were initially submitted by B & K and accepted by the Department on November 1, 1978. The final audit of those reports was not completed until December 26, 1979, for Krestview, and February 15, 1980, for Towne House, after B & K had filed for bankruptcy. While the audit was being conducted, B & K was granted extensions of time for the filing of the 1978-1979 cost reports. After the trustee in bankruptcy was appointed and began the process of attempting to prepare the cost reports, the Department conducted a final audit of the 1977-1978 cost reports. The Department failed to provide either B & K or the trustee with a copy of any proposed audit adjustments. No evidence was presented that B & K or the trustee was given an exit conference where the audit findings were discussed and explained. Instead, the Department distributed the final audit but failed at that time to advise B & K, the trustee or the Bankruptcy Court of any right to challenge the audit pursuant to Section 120.57, Florida Statutes.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Department enter a Final Order accepting for audit the cost reports submitted by the Petitioner G & J Investments Corporation, Inc., for B & K Investments, Inc., for the periods May, 1977 through August 1979. DONE and ENTERED this 6th day of February, 1984, in Tallahassee, Florida. SHARYN L. SMITH 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 6 day of February, 1984. COPIES FURNISHED: Patricia A. Peoples, Esquire R. Stuart Huff, Esquire 330 Alhambra Circle Coral Gables, Florida 33134 Joseph L. Shields, Esquire Department of Health and Rehabilitative Services 1317 Winewood Boulevard Tallahassee, Florida 32301 David H. Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 Alicia Jacobs, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue Whether petitioner has two years' practical experience in nursing home administration within the meaning of Section 468.1695(2)(c)3., Florida Statutes (1987) and Rule 21Z-11.008, Florida Administrative Code?
Findings Of Fact Westminster Oaks, a "retirement village" or "continuing care facility" in Tallahassee, has a clinic, a 60-bed nursing home, an adult congregate living facility and 150 "independent living" units for older people, who are guaranteed nursing home beds, if needed, as their independence ebbs. Before Donald Long began as Westminster Oaks' administrator on December 1, 1986, the position had gone unfilled for two years. By the time he arrived, petitioner Sandra Kelly, formerly director of nursing at Westminster Oaks, had become director of health care services, for the express purpose of gaining the experience necessary to sit for the nursing home administrator licensure examination. She was following in the footsteps of Sue Reeder and five other trainees, of whom three -- all who have finished the program -- have been permitted to sit for the exam from which respondent proposes to bar her. On August 1, 1986, Ms. Kelly assumed supervisory responsibility for the Health Center, which included the nursing home. As director of health care services, she was responsible not only for the nursing home, but also for the clinic and the adult congregate living facility with its 34 places. (All but six were filled at the time of hearing.) The clinic at Westminster Oaks monitors independent residents' blood pressures, and administers B-12 injections, but does not provide home health services. After Sue Reeder left in January of 1988, she was also called upon as needed to manage the resident services department, along with operations of the business office, and the dietary and housekeeping department that related to residents of the independent living units. Even her work in marketing related to the nursing home. Even when called upon to help in other areas, she was not relieved of responsibility for the nursing home, which she had effective charge of at least 95 percent and perhaps 100 per cent of the time. (Testimony of Long) Besides having overall charge, she rotated through each department in the nursing home, managing it; or, as in the case of the housekeeping department which served not only the nursing home but also other facilities in the complex, managing operations as they related to the nursing home. In addition to her nursing home duties, she spent 15 to 20 minutes a day at the adult congregate living facility, more on days when new residents were admitted. She made rounds at the adult congregate living facility quarterly, and accompanied inspectors from the Department of Health and Rehabilitative Services when they inspected. She also met with the clinic nurse three times weekly for fifteen minutes a visit. As director of health care services, she has devoted the overwhelming majority of her time to the nursing home. She has had complete and uninterrupted charge of the nursing home's social services and activities departments, and personally hired the activities director. She also hired a medical records consultant, and oversaw putting the medical records in order for inspection by the Department of Health and Rehabilitative Services. Although she did not hire or fire otherwise, leaving that to department heads, she had the right to do so. At the time of the hearing, she had spent more than 27 months as director of health care services. Although she also devoted some of her time to the adult congregate living facility, and to the clinic, she spent more than two "working years" on nursing home administration, aside from time devoted to the adult congregate living facility and the clinic. As de facto administrator of Westminster Oaks' nursing home, under Mr. Long's supervision, she planned for and helped organize, direct and control all nursing home departments, including social services, and, insofar as they pertained to the nursing home, the nursing, dietary, housekeeping, administration and maintenance departments.
The Issue Whether the Agency for Health Care Administration found deficiencies at Cypress Manor sufficient to support issuance of a conditional license.
Findings Of Fact Petitioner, Cypress Manor, is a nursing home in Fort Myers, Florida, licensed by and subject to regulation by AHCA pursuant to Part II, Chapter 400, Florida Statutes. AHCA is the state agency charged with conducting licensure surveys of nursing home facilities in Florida to ensure that nursing homes are in compliance with state regulations. AHCA also surveys nursing homes to ensure that they are in compliance with federal Medicare and Medicaid requirements. The surveys are usually conducted by a team consisting of nurses, dieticians, and social workers from the AHCA. Each survey lasts approximately three days, during which time the AHCA team tours the facility; reviews records; interviews staff, families and residents; and observes care of residents and medication administration. After surveying the facility, AHCA prepares a survey report which lists the deficiencies found at the facility. The survey report is then sent to the nursing home. Each alleged deficiency found by AHCA during a survey is identified by a “tag” number, which corresponds to the regulation AHCA claims to have violated. A federal scope and severity rating is assigned to each deficiency. AHCA conducted a relicensure survey of Cypress Manor in September 1996, and a follow-up survey in November 1996. At both surveys, AHCA tagged the deficiency denominated as Tag F241, and gave this tag a “Class III” designation. The regulation described under Tag F241 states that: The 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. AHCA contends that this regulation was violated by the actions of the facility as described in the survey reports. Because these alleged deficiencies were found in both surveys, AHCA contends that the facility should be given a conditional license. A conditional license has a significant adverse effect on a nursing home. It must be posted in a public place and AHCA publicizes this information, in part through issuance of press releases. A conditional rating affects the ability of the facility to attract residents, and causes morale problems among staff and existing residents. The rating makes staff recruiting difficult. The September 1996 survey report has two numbered findings. However, no evidence was presented as to the first finding. Therefore, the only pertinent and remaining allegations with respect to this survey are those listed under the second finding. The September 1996 survey cited the following findings under the Tag 241: (1)three residents at Cypress Manor, Residents 11, 12, and 13, were observed wearing slipper socks with the names of deceased residents written on them; Resident 11’s shoes were too small; and (3) the slipper socks of Resident 12, were twisted so that the bottom of each slipper was on the top of her foot. The policy at Cypress Manor was, and had been for many years, to label clothing of residents upon admission, and to write residents' names on slipper socks in approximately 1/4 inch letters. However, when residents died their family members would often donate the clothing of those individuals to Cypress Manor to be used for other residents who had insufficient clothing of their own. For example, Cypress Manor used these donated clothes for incontinent residents who would needed changes of clothing, including slipper socks, several times a day. This practice had been in place during surveys conducted by the AHCA in prior years, but had never been cited by AHCA surveyors as a deficient practice. There is no indication that either the subject residents or their families objected to this practice. Moreover, with regard to the slipper socks with names written on them, the writing on the socks had faded to the point that they could not easily be read. Nothing in the regulation specifically addresses the standards for footwear and no evidence was provided by the AHCA with respect to generally accepted standards for footwear. Moreover, no evidence or testimony was presented that the practice of allowing residents to wear donated clothing or slippers constituted a failure to treat such residents with dignity and respect. With regard to the finding that Resident 11’s shoes were too small, there was no evidence to support this claim. Rather, Resident 11 had shoes brought in by her husband, but she regularly took them off and left them in various places throughout the facility. The third alleged violation involved Resident 12, the resident whose slipper socks were turned around. According to Cypress Manor staff who know this resident, she was capable of and did, in fact, propel herself in a wheelchair. As a result of Resident 12’s propelling herself in the wheelchair, the slipper socks often turned. The November 1996 survey report contains eight numbered findings, none of which relate to the footwear issues described in the September survey. No evidence was presented by the agency at hearing with respect to findings 1, 2, 3, 4, or 7. In finding number five, AHCA noted that a resident was seen on two consecutive days wearing the same pink flowered gown and pink sweater. Although this was cited as violating the resident's dignity and respect, the AHCA surveyor acknowledged that the resident's clothing was clean and appropriate. Furthermore, the AHCA surveyor never asked the resident if she liked the clothes that she was wearing. Nor did the surveyor attempt to determine the resident's clothing preference. Cypress Manor staff members familiar with this resident were aware that she had favorite clothes and often insisted on wearing the same items of clothing. The pink sweater worn by the resident on the two days she was observed by the surveyor was one of the resident's favorite garments. In finding number six, AHCA indicated that during a tour of the facility with the facility administrator, the surveyor and administrator entered the room of a resident. The finding further noted that while in the resident’s room, the administrator asked the resident to describe her medical condition to the surveyor. In the surveyor's opinion, the resident seemed "surprised” when asked by the administrator to describe her condition to the surveyor. The issue of requesting that residents describe or discuss their conditions with surveyors is not covered in the regulations. However, it is standard practice as part of surveys to ask residents to describe their condition to surveyors, and it is becoming more common for residents to speak directly to surveyors. The resident referred to in finding number six was a relatively young and assertive resident who had lived at Cypress Manor for several years and served as president of the facility's Residents' Council. Also, as a former employee of the Department of Health and Rehabilitative Services, this resident was very familiar with the survey process. In fact, she would often comment to staff to "let those surveyors at me [sic]; I want to talk to them." This resident often spoke openly about her physical condition and, in the opinion of those who knew her well, would not have been offended by a request to describe her medical condition with AHCA surveyors. It was acknowledged by AHCA that dignity can vary depending on the individual, and that what might be considered undignified to one resident might not be undignified to another. While there are some areas that might be considered to violate the standard regarding the dignity of the patient, no general standards as to what constitutes such a violation was presented by AHCA. In finding number eight of the November 1996 survey report, AHCA stated that a resident in the dining room was given his meal, but did not receive eating utensils until approximately ten minutes later. The surveyor acknowledged that the resident did not attempt to eat the meal with his hands, but waited until the utensils were brought to him. At the time this occurred, there was a large number of residents in the dining room, all of whom were being served their meals. This incident appears to be an isolated and inadvertent oversight, and one that was immediately corrected. At the time of the relicensure survey of Cypress Manor, the facility had no Class I or Class II deficiencies; no Class III deficiencies not corrected within the time established by the agency; and was in substantial compliance with established criteria. It is the policy of the AHCA to classify all deficiencies as at least a Class III deficiency, even when, according to the federal evaluation, the facility would be in substantial compliance with the regulation at issue.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Agency for Health Care Administration enter a final order issuing a standard rating to Cypress Manor, and rescinding the conditional rating and imposition of the $500 penalty. DONE AND ENTERED this 6th day of January, 1998, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 6th day of January, 1998. COPIES FURNISHED: Donna H. Stinson, Esquire R. Davis Thomas, Jr., Qualified Representative Broad and Cassel 215 South Monroe Street Suite 400 Tallahassee, Florida 32302 Karel Baarslag Agency for Health Care Administration Regional Service Center 2295 Victoria Avenue Room 309 Fort Myers, Florida 33901 Jerome Hoffman General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308
