Findings Of Fact There is a need for an additional 120 community nursing home beds in Department of Health and Rehabilitative Services ("HRS") District 7, Subdistrict 1, Orange County, for the July 1993 planning horizon. Health Care and Retirement Corporation of America, d/b/a Heartland Health Care Center of Orange County ("HCR") is a wholly owned subsidiary of Owens-Illinois, Inc., and has been in nursing home development and operation for 26 years. HCR proposes to develop, own and operate a 120 bed community nursing home, in an innovative pod design consisting of 20 beds in each of 6 pods. HCR currently operates 139 nursing homes in 19 states, 16 of the nursing homes are in Florida. HCR proposes to designate four of the 20 bed pods for separate groups of patients. One for those suffering from Alzheimer's and related dementia ("ARD"), one for short-term rehabilitative transitional care services, one for high acuity patients, and a fourth pod for extended rehabilitative services, operated in affiliation with the Brain Injury Rehabilitation Center of Sand Lake Hospital. HCR proposes to locate its facility near Sand Lake Hospital. HCR's total project cost is $7,944,787 intended to be funded from its operation of nursing homes. 1/ HCR currently operates facilities in Florida, nine of which have superior licenses, eight of which have standard licenses, and one of which has a conditional license. Two of the eight with standard licenses have been recommended, but not yet approved for superior licenses. The one facility with a conditional license has been recommended, but not yet approved for a standard license. HCR has not had a license denied, suspended, or revoked within the past thirty-six months. HCR has no facilities in receivership. HCR has had moratoria on admissions in three Florida facilities, and in facilities in Michigan and Connecticut within the past 36 months. Coordinated Care, Inc. ("CCI") proposes to construct a 120 bed facility in excess of 44,000 square feet on a 5 1/2 acre site which has not been located, in a design that the architect described as two "T-shaped" groups of 60 beds each. Twenty-four beds would be designated for subacute care. The certificate of need ("CON") would be conditioned on the provision of fifty percent (50%) service to Medicaid patients, eighteen percent (18%) to Medicare patients, and services to AIDs patients. CCI is proposing to serve ventilator dependent patients and to provide intravenous (I.V.) therapy. In addition, CCI proposes to have a rehabilitative restorative program, respite care, and a mentally impaired program. CCI, CCI related entities, and CCI stockholders currently operate four nursing homes and three adult congregate living facilities ("ACLF") in Florida. Of the four nursing homes, all of which are located in Volusia County, three have superior licenses and one has a standard license. The facilities managed or owned in whole or in part by CCI or CCI stockholders have never had a CON transferred, voided, decertified or suspended and have never had a moratorium on admissions to any of its facilities. CCI has projected a total project cost of 6.4 million dollars. CCI's application has two different funding sources described. First, a combined conventional loan for five million dollars and a 1.4 million capital contribution in exchange for a limited partnership or loan in exchange for stock from another corporation, PMV, Inc. Second, CCI's president secured a letter of interest from a bank, for financing one hundred percent of the project, in the range of $6.5 to $7 million. Section 381.707, Florida Statutes - Identity of Applicant, License Holder, and Operator, and Financial Feasibility of CCI Proposal Of the three alternative arrangements for financing its project proposed by CCI, the first would result in an impermissible change of identity from the applicant to the license holder/operator, if PMV, Inc. obtains an interest as a limited partner. Although CCI is the applicant, the operator would be the partnership, with CCI as general partner and PMV, Inc., as limited partner, the latter in return for the $1.4 million capital contribution. PMV, Inc., is a limited partner in three of the four Volusia County nursing homes operated by CCI family members. The president of CCI candidly admitted that the partnership arrangement was initially intended for the current project until he found out, after his deposition was taken in this case, that the proposed partnership arrangement violated the provisions of Section 381.707, Florida Statutes. CCI's president testified that a second alternative financial arrangement is for PMV, Inc. to take an interest as a stockholder at CCI in exchange for $1.4 million contribution to the project costs. The financial feasibility of CCI's second alternative cannot be determined from its application. The record contains no information identifying the principles, assets (other than an unspecified limited interest in three nursing homes), or liabilities of PMV, Inc. Although, there is a letter of interest from First Union Bank, which corroborates the availability of financing by that institution, there is no similar representation by PMV, Inc. There is no basis in the record to conclude that PMV, Inc. will provide $1.4 million as either capital contribution or loan, with or without a partnership or stockholder interest, or as conventional financing for CCI's proposed project. CCI's corporate resolution certifies that CCI will license and operate the facility, as required by Subsection 381.707(4), Florida Statutes. CCI's president's testimony of a third alternative financing plan is consistent with the resolution, that of obtaining the entire $6.4 million from First Union Bank. The plan is corroborated by a letter of interest from the Bank, expressing an interest in providing 100 percent financing for the project, in the range of $6.5 to $7 million. Assuming, arguendo, that other projections in the CCI pro forma are correct, the additional debt of $1.4 million would result in additional interest payments in year 1 of $136,776.49 and in year 2 of $129,776.49 and additional principal payments of $70,000 annually. 2/ The combined totals of $206,776.49 in year one and $199,776.49 in year two, when subtracted from projected net positive cash flow of $269,450, still results in a profit in year two. 3/ Therefore, under CCI's third alternative, the project is financially feasible in the short and long terms. CCI's Other Pro Forma Assumptions HCR asserts that CCI's application overstates revenues and understates expenses when compared to CCI's actual experience at Halifax Convalescent Center, which CCI offers as the basis for its projections. HCR asserts that CCI's projected revenues are inflated by overstated utilization, understated salaries, omitted start-up costs, and underestimated per patient day costs which will approximate $93.15, not $84.02. CCI's revenues are based on utilization calculated from per patient days averaged over an entire quarter. That calculation is accepted as more reasonable than one based on the census on the last day of the quarter. The salary for the administrator which was estimated by CCI is below the median for Orange County, but not shown to be inconsistent with what CCI stockholders receive as nursing home administrators, and are therefore reasonable for CCI's family-owned operation. The testimony offered by CCI that start-up costs, although not included in fixed assets on Schedule 6 of CCI's application, are included in Schedule 15 as "financial and developmental costs" is accepted. Total expenses per patient day, as reported to the HCCB for 1990 for CCI managed Halifax Convalescent Center, Ltd., which has 84 licensed beds, were $93.15. CCI stockholder managed facilities reported the following data to the HCCB: Facility Licensed Beds Occupancy Rate Total Expenses Patient Day 84 96.53 93.15 192 80.64 63.60 122 95.14 64.06 93 97.36 60.51 for 303 (not 365) days for 102 (not 365) days Halifax* Fairview Manor** Deland Convalescent Center DeBary Manor * Reporting ** Reporting Based on the fact that CCI plans to operate the new facility with a mix of patient acuity levels much the same as those at Halifax, but since Halifax is smaller and, for 1990, did not report data for two months, the HCR assertion that per patient day expenses will be the same as for Halifax ($93.15), not as projected by CCI ($84.02), is rejected. HCR's assertion that the various items in CCI's schedules as overstatements of revenue and understatements of expenses is rejected. CCI's proposal is accepted as financially feasible in the short and long term. Subsection 381.705(a) - District and State Health Plans Preference one of the 1990 District 7 Health Plan, favoring applicants proposing to locate in Brevard County, is inapplicable to CCI and HCR. Preference two of the District 7 plan, favoring applicants who commit to serving AIDS patients, is met by CCI and not by HCR. Preference three of the District 7 plan, for applicants with clear recruitment plans including salaries, benefits, bonuses and training opportunities is met by both CCI and HCR. The preference is better met by HCR which proposes to pay higher salaries and to provide a greater benefits package. Preference three of the district plan, overlaps with Subsection 381.705(1)(h), Florida Statutes, in the criterion focused on the availability of resources, including staff and management personnel. Both HCR and CCI have demonstrated the adequacy of their recruitment plans and that they have plans to establish relationships with Orlando area technical schools, community colleges or universities, which will enhance training and hiring qualified personnel. Preference one of the 1989 Florida State Health Plan for nursing homes proposals to locate in districts with over 90% occupancy rates is met by both CCI and HCR. State health plan preference two is for applicants proposing to serve Medicaid residents in proportion to the average subdistrict-wide percentage of nursing homes in the same subdistrict. The subdistrict-wide average of Medicaid residents in Orange County is 62.5 percent. HCR does not meet the requirement for the preference, based on its unwillingness to make a Medicaid commitment. CCI's commitment to a minimum of 50 percent Medicaid patient days better meets the requirements for the second preference in the state health plan. The third preference of the state health plan for applicants proposing to serve special care residents, including AIDS, Alzheimer's and mentally-ill residents is met by both HCR and CCI. CCI gives greater emphasis to serving AIDS patients, while HCR proposes to have a designated unit more adequately suited for Alzheimer's sufferers. The fourth state health plan preference for applicants offering a continuum of services to the community, by offering respite care, is met by both CCI and HCR. The fifth state health plan preference for facilities constructed to maximize resident comfort and quality of care is met, in different ways, by both CCI and HCR. CCI's rooms will be 30 percent larger than required which allows residents space to decorate with more of their personal items and to have more comfortable areas for visitors in their rooms. CCI has emphasized visual openness and space in dining areas. HCR's pod design offers the elimination of institutional like corridors, provides multiple unique living room type visitation areas, and the advantage of separating the frail but mentally alert elderly from Alzheimer's sufferers. The sixth state health plan preference is for applicants proposing innovative therapeutic programs. HCR asserts that it best meets the preference by its proposal to provide in-house therapeutic services. Although the in-house staff may enhance residents accessibility to the services, that fact is not sufficient to find that the service itself is innovative. Neither CCI nor HCR proposes an innovative therapeutic program. Preference seven of the state health plan, for applicants whose charges do not exceed the highest Medicaid per diem in the subdistrict, was not addressed by either applicant. Preference eleven of the state health plan, for applicants who ensure patient privacy and residents rights was minimally demonstrated, with regard to residents councils by CCI, but not by HCR. Preference twelve applies to applicants proposing lower administrative costs and higher resident care costs, compared to the district average. CCI and HCR propose to charge patients, as follows: Private Semi-Private Medicaid Medicare CCI-Year One $ 92.00 $ 92.00 $ 90.00 $115.00 HCR-Year One 95.00 95.00 93.00 120.54 CCI-Year Two 132.00 98.00 79.30 137.75 HCR-Year One 136.50 102.90 72.63 128.50 Administrative costs for HCR are approximately one-fourth of patient care costs, but those of CCI are approximately one-half of patient care costs. CCI's total costs and charges are lower. Based on HCR Exhibit 8, ratios in the district range from lows of one-fourth to highs of two-thirds. HCR compares most favorably to the preference for lower relative administrative costs. Subsection 381.705(1)(b) - availability, quality of care, efficiency, appropriateness, accessibility, extent of utilization, and adequacy of like and existing health care services and hospices in the services district Although, by prehearing stipulation the parties placed the criteria in 381.705(1)(b) at issue, no evidence on any like or existing services in the service district was presented at final hearing. Both applicant parties stipulated that HRS correctly determined that a need exists for an additional 120 community nursing home beds in Orange County. Subsection 381.705(1)(c) - ability and record of providing quality of care; and preferences eight, nine and ten - superior history; higher staffing levels; and varied professions and disciplines CCI's four family/stockholders operated facilities hold three superior and one standard license. CCI has never transferred, sold, or voided, nor have CCI-related facilities ever had a moratorium on patient admissions. CCI also proposes to provide staffing above minimum requirements. CCI has established its ability and record of providing high level quality of care. HCR holds 8 standard and 9 superior facilities licenses in Florida. HCR has not had a license denied, suspended or revoked within the last 36 months. HCR has had moratoria on admissions at three of its Florida facilities and at two out of state facilities within the past 36 months. HCR's expert also testified that two of the eight facilities with standard licenses have been recommended for superior licenses, and the one facility with a conditional license has been recommended for a standard license. HCR has allowed a prior CON for a facility in Orange County to lapse. HCR does not, to same extent as CCI, meet the preference for applicants with a record for quality of care. HCR does propose staffing which meets the requirements of the preference for having the ability to provide quality care, and its proposal is, only with regard to the provision of in-house therapy services, superior to the staffing proposed by CCI. Subsection 381.705(1)(h) - funds for project accomplishment; accessibility for district residents; and Subsection 381.705(1)(i) - financial feasibility HCR proposes to finance construction and development from cash flows from the operation of its existing facilities. CCI and HRS assert that HCR does not have the ability to finance the project from "operations" and that HCR's projected fill rates are overly optimistic. HCR had cash on hand of $125,000 in 1989, in part generated from the sale and not operations of facilities. HCR also has a history of significant cost overruns. HCR has been able to finance previous projects from cash flow and it is reasonable to conclude that the same will occur with this project. The testimony of the HCR expert in nursing home design, development and construction that the estimated costs for this project take into account the prior cost overruns is accepted. HCR's fill-up rates were estimated based on the experience of other HCR facilities in the state. However, none of those facilities have the patient mix projected for the new HCR facility. For this project, HCR proposes 85% private-pay. For the facilities which were used to project utilization, Medicaid patients equal the percentage of Medicaid patients in the respective districts. Undisputed evidence was presented that a number of private pay patients "spend-down" and become Medicaid eligible in less than a year. In addition, only 30% of District 7 patients are private pay patients. Although HCR plans to keep patients who spend down, the pro forma fails to take in account any spend-downs within the first two years. HCR has failed to demonstrate the short term financial feasibility of its project by failing to demonstrate the reasonableness of projected utilization and by failing to project the need to accommodate spend-downs in light of the stated intention to keep such residents. HCR's proposal is financially feasible in the long-term after its beds are certified as Medicaid eligible. CCI's proposal is more accessible to Medicaid residents, at least for the first two years of operation. Subsection 381.705(1)(l) - probable impact on costs, effect of competition, improvements or innovations There was no evidence of the impact of either proposal on costs or competition among nursing homes in the area, despite the prehearing stipulation that the statutory criterion was at issue. Subsection 381.705(1)(m) - costs and methods of construction; and 381.705 (2) construction alternatives HCR's proposed facility of 47,000 square feet will cost $3,600,000 to build. Construction costs are reasonable. HCR has taken into account prior cost overruns in projecting the cost of this project. Revisions in the HCR schematic design to enhance visibility of room doors and exits to courtyards can be accommodated in the final design plans. CCI's proposed 44,000 square foot facility will cost $4,200,000 to build. Construction costs are reasonable to include all site work, including driveways and sidewalks. Revisions required in the CCI design can be appropriately included when the schematic design is revised for submission with final construction documents. Subsection 381.705(1)(n) - past and proposed provision of services to Medicaid and medically indigent CCI proposes to commit to serving 50 percent Medicaid patient days and CCI family/stockholder facilities have the following Medicaid commitments and record: Halifax Convalescent Center DeBary Manor CON Commitment 44 percent 0 1989 Record 70 percent 54 percent DeLand 0 * Fairview Manor 0 75-80 percent *No information was found in the record, except a statement that the Medicaid percentage was "above" the subdistrict county coverage. HCR proposes to commit no patient days to Medicaid in the first two years, except to certify beds as needed for those patients who spend-down to Medicaid eligibility. HCR currently provides Medicaid services to 60 percent of its Florida nursing home residents. Both HCR and CCI have established a history of past services to Medicaid, but CCI has established the superior proposed service to Medicaid patients in its proposed project.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered: Granting Certificate of Need application 6530 to Coordinated Care, Inc., based upon the conditions agreed to in the application; Denying Certificate of Need application 6532 of HCR; and Closing Case No. 91-2927 consistent with FCC's voluntary dismissal of its petition. RECOMMENDED this 6th day of April, 1992, at Tallahassee, Florida. ELEANOR M. HUNTER 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 6th day of April, 1992.
Conclusions THIS CAUSE comes before the AGENCY FOR HEALTH CARE ADMINISTRATION (the "Agency") concerning the Certificate of Need (“CON”) 10059 Application which was filed by West Jacksonville Medical Center, Inc. (hereinafter West Jacksonville) to establish an 85-bed acute care hospital in the Second Batching Cycle of 2009. The Agency preliminarily approved West Jacksonville’s application. On January 26, 2010, St. Vincent filed a Petition for Formal Administrative Hearing challenging the Agency's approval, which was forwarded to the Division of Administrative Hearings (“DOAH”), by the Agency and assigned to an Administrative Law Judge. The parties have entered into a Settlement Agreement (Exhibit 2) which is attached hereto, and has been approved by the Antitrust Unit of the Office of the Attorney General, and being otherwise well advised in the premises: St. Vincent's Medical Center, Inc. v. AHCA (DOAH No.: 10-0390CON; AHCA No.: 2010000533; CON # 10059) Page 1 of 3 Filed December 8, 2010 9:20 AM Division of Administrative Hearings It is ORDERED AND ADJUDGED: 1. The attached Settlement Agreement is approved and adopted as part of this Final Order, and the parties are directed to comply with the terms of the Settlement Agreement. 2. CON No. 10059 is approved per the Settlement Agreement. DONE and ORDERED this 7 day of Z , 2010, in Tallahassee, Florida. Elizabeth Dudek, Interim Secretary Agency for Hgalth Care Administration
Findings Of Fact Petitioner filed an application for a Certificate of Need for a 180-bed nursing home in Dade County, a subdistrict of Respondent's District 11 service area. The application was not offered into evidence, and no testimony was presented describing Petitioner's proposed project. Respondent reviewed Petitioner's application in accordance with statutory criteria and Section 10-5.11(21), Florida Administrative Code, which contains a formula or methodology for computing whether there is a need for additional community nursing home beds in any health district or subdistrict in Florida. In applying that formula, Respondent utilized the following planning data: the number of licensed and approved beds within the service area, the average patient census data, the number of elderly living in poverty within the service area, and the projected number of persons aged 65 and older residing within the service area three years in the future (the formula's planning horizon). Respondent then projected the theoretical need in the district and subdistrict, subtracted the inventory of licensed and approved beds, and thereby obtained the need / no need ratio. Although a need was demonstrated in both the district and subdistrict, the methodology then further requires a current utilization rate in excess of 85 percent and a prospective utilization rate in excess of 80 percent before additional beds can be approved. In this case, the current utilization rate of 93.4 percent exceeds the 85 percent requirement. However, when the proposed 180 beds are added to the number of already licensed and approved beds, the prospective utilization rate decreases to 69 percent, a figure below the required 80 percent prospective utilization threshold. In accordance with its application of its need methodology, Respondent issued a State Agency Action Report determining there is no need for Petitioner's proposed nursing home facility. Even though District II and the Dade County subdistrict have a current utilization rate of 93.4 percent, Petitioner presented no evidence to show that persons in need of nursing home beds are unable to secure them or that any special or extenuating factors exist to mitigate against the strict application of Respondent's need methodology.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered denying Petitioner's application for a Certificate of Need. DONE and RECOMMENDED this 14th day of November, 1984, in Tallahassee, Florida. LINDA M. RIGOT 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 14th day of November, 1984. COPIES FURNISHED: John D. Whitaker, Esquire 10700 Caribbean Boulevard Suite 202-H Miami, Florida 33189 Culpepper, Turner and Mannheimer 318 North Calhoun Street Post Office Drawer 11300 Tallahassee, Florida 32302-3300 David Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
Findings Of Fact By stipulation of fact, the parties agree that: On July 14, 1983, FHC mailed its letter of intent to file an application for a certificate of need to establish a psychiatric hospital near Orlando. This letter of intent was for an application to be considered in the August 15, 1983, batching cycle. The DHRS deadline for a letter of intent for the August 15, 1983, batching cycle was July 18, 1983. The FHC letter of intent was received by DHRS on July 18, 1983. In mailing a copy of the letter of intent to the Local Health Council of East Central Florida ("Local Health Council") on July 14, 1983, FHC inadvertently and unintentionally failed to enclose a copy of the letter of intent; the Local Health Council therefore received an empty envelope from FHC on July 18, 1983. The handwritten notes on the empty envelope are the notes of Clifton R. Carter, who is the Executive Director of the Local Health Council. Mr. Carter called FHC on July 18, 1983, and indicated that FHC should send to the Local Health Council a copy of its letter of intent by Federal Express. FHC sent a copy of its letter of intent to the Local Health Council via Federal Express on July 18, 1983. The Local Health Council reviewed a copy of FHC's letter of intent on July 19, 1983. DHRS acknowledged receipt of FHC's letter of intent and gave FHC instructions as shown in a letter dated July 20, 1983, from DHRS' Porter to FHC's Jones. Executive Director Carter sent a letter to HRS dated August 2, 1983, where he states that the Local Health Council did not timely receive FHC's letter of intent. FHC timely submitted its certificate of need application on or before August 15, 1983. Other competing applications were also timely filed and are not being processed by DHRS. DHRS' Thomas Porter sent a letter to FHC's Stanley Jones dated September 7, 1983, which advised FHC that its application was being returned and would not be processed in the August 15, 1983, batching cycle. The parties presented evidence which supports the following supplementary findings: At approximately 11:00 a.m. on July 18, 1983, after receiving the empty envelope from FHC, Clifton Carter, Executive Director of the Local Health Council, called FHC and spoke with Betty T. Genereux, the secretary to Stanley G. Jones, Vice President for Development of FHC. Mr. Carter advised her that the envelope from FHC had been received without a letter of intent. Ms. Genereux expressed concern, and asked whether the Local Health Council had telecopier equipment. Mr. Carter had told her that none was available. He also told her that the deadline was that day, but if she would "Federal Express" the letter to him and if he received it the next day, the filing equipment would be met. Pursuant to his instructions, she "Federal Expressed" the letter; the Local Health Council received it at approximately 9:00 a.m. the next day. FHC had an aircraft available to it on July 18, 1983, which could have been used to deliver the letter of intent to the Local Health Council that day. If Mr. Carter had not led Ms. Genereux to reasonably conclude that the filing requirement would be met if the letter was received by Mr. Carter the next day, it is likely that FHC would have used its aircraft or some other means (such as a telegram) to assure delivery on July 18, 1983. FHC reasonably, and in good faith, relied upon the representation made by Mr. Carter to Ms. Genereux on July 18, 1983, concerning the filing requirement. 1/ Since the question concerned the requirement for filing a document with the Local Health Council, Ms. Genereux was reasonable in believing that Mr. Carter, Executive Director of the Local Health Council, had authority to make such a representation; and she was reasonable in acting on such belief. Pursuant to its letter of intent, DHRS sent FHC the required application forms. FHC thereafter devoted substantial resources to preparing its application and filing it on or before August 15, 1983, in order to assure that its application would be reviewed in the August 15, 1983, application batching cycle. FHC was notified of the rejection of its application (because an untimely letter of intent) by letter from Thomas F. Porter, a DHRS Medical Facilities Consultant Supervisor, dated September 7, 1983, postmarked September 13, 1983, and received on September 20, 1983. This rejection was transmitted after the time specified for DHRS to determine the completion of an application. See, Rule 10-5.08(3). Within two days after receiving the rejection, FHC filed its request for a hearing, resulting in this proceeding. No evidence was presented that DHRS or the Local Health Council were prejudiced as a result of FHC's omission of the letter of intent from its July 18, 1983, filing with the Local Health Council, and its follow-up delivery of the missing letter on the next morning.
Recommendation Based on the foregoing, it is RECOMMENDED: That DHRS accept First Hospital Corporation's application (for a certificate of need) as part of the August 15, 1983, application review cycle. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 26th day of October, 1983. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of October, 1983.
Conclusions Having reviewed the Administrative Complaints, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1, The Agency has jurisdiction over the above-named Respondent pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Administrative Complaint and Election of Rights form to the Respondent, AHCA Case No. 2011008933. (Ex. 1) The Election of Rights form advised of the right to an administrative hearing. The Agency issued the attached Administrative Complaint and Election of Rights form to the Respondent, AHCA Case No. 2011011419. (Ex. 2) The Election of Rights form advised of the right to an administrative hearing. 3. The parties have since entered into the attached Settlement Agreement. (Ex. 3) Based upon the foregoing, it is ORDERED: 1. The Settlement Agreement is adopted an incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 2. The Respondent shall pay the Agency $6,355.50. If full payment has been made, the cancelled check acts as receipt of payment and no further payment is required. If full payment has not been made, payment is due within 180 days of the Final Order. Overdue amounts are subject to statutory interest and may be referred to collections. A check made payable to the “Agency for Health Care Administration” and containing the AHCA ten-digit case number should be sent to: Office of Finance and Accounting Revenue Management Unit Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 14 Tallahassee, Florida 32308 1 Filed December 26, 2012 3:46 PM Division of Administrative Hearings ORDERED at Tallahassee, Florida, on this Al day of Pecentrey— , 2012. wa Dudek, Segrefary for Health Caye Administration
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I CERTIFY that a true and correct copy of this Final Order was served on the below-named persons by the method designated on this 7/9 day of eh , 2012. Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Facilities Intake Unit (Electronic Mail) Finance & Accounting Revenue Management Unit (Electronic Mail) Teresita A. Vivo, Senior Attorney Office of the General Counsel Agency for Health Care Administration (Electronic Mail) Elizabeth A. Teegen, Esquire Elizabeth A. Teegen, P. A. 1704 Metropolitan Boulevard, Suite 1 Tallahassee, Florida 32308 (U.S. Mail) Linda Williams, Owner and Administrator Thomas J. Walsh, II, Esquire Linda’s Assisted Living Facility Informal Hearing Officer 2069 Dellwood Drive Agency for Health Care Administration Tallahassee, Florida 32312 (Electronic Mail) (U. S. Mail) | Suzanne Van Wyk Administrative Law Judge Division of Administrative Hearings (Electronic Mail)
The Issue The primary issue for determination is whether Windsor Manor (Respondent) committed the deficiencies as alleged in the Amended Administrative Complaint dated September 29, 2004. Secondary issues include whether Petitioner should have changed the status of Respondent's license from Standard to Conditional for the time period of April 30, 2004 until June 7, 2004; and whether Petitioner should impose administrative fines for alleged deficiencies that are proven to be supported by the evidence.
Findings Of Fact Petitioner is the state agency responsible for licensing and regulating nursing homes in Florida pursuant to Section 400.23(7), Florida Statutes (2004). Respondent is licensed to operate a nursing home located at 602 East Laura Street, Starke, Florida 32091 (the facility). Petitioner's personnel conducted a complaint survey of Respondent's facility on April 29 and 30, 2004. Upon completion of that survey, Petitioner survey personnel prepared a report that charged Respondent with a violation of one nursing home regulation. This report identifies the deficiency as a violation of 42 C.F.R. Section 483.25 as made applicable to licensed nursing homes in Florida pursuant to Florida Administrative Code Rule 59A-4.1288. Petitioner rated this alleged deficiency as having a scope and severity of "Class II." The alleged deficiency involves one resident, identified as Resident 4, at the facility and relates only to the incidents that occurred between midnight and 3:30 a.m. on the morning of April 20, 2004. Resident 4, an 85-year-old woman, was admitted to Respondent’s facility on December 17, 2003, with diagnoses of deep vein thrombosis, congestive heart failure, cerebral vascular disease, hip pain, degenerative joint disease, and dementia. Upon her admission, she was evaluated by Respondent and a care plan was prepared that identified 15 areas of concern for her. The relevant portion of Resident 4’s care plan was finding number 2, that the resident is at "risk for injury/falls." Among the steps listed to deal with this problem were to make sure that her call bell was within reach when Resident 4 was in bed; keeping the bedrails up and the bed in its lowest position when she was in bed; reminding her to request assistance when getting out of bed or out of her wheelchair; and the use of technological devices (personal alarms) to enhance safety “as needed.” In the early morning hours of April 20, 2004, Resident 4 was sitting in her wheelchair at the nurses’ station. This was not unusual for this resident, although she had been given Ambien, a sleeping pill, earlier in the evening in accord with her physician’s orders. At about 12:30 a.m., Resident 4 complained that she was unable to sleep due to pain in her left hip. This was evaluated as a fairly serious complaint as the pain rated an “8” on a scale of 1 to 10. She was given Lortab, a pain reliever, to deal with her pain, a medication also authorized by her physician’s orders. At about 1:00 a.m., she said she was sleepy and started to wheel herself toward her room. Shortly thereafter, Resident 4 was located lying on the floor between the nurses’ station and her room. She stated that she had slid out of her wheelchair. Respondent’s staff evaluated her range of motion and did a neurological check and found everything to be normal. There was no apparent sign of injury to Resident 4. In response to questioning, Resident 4 stated that she had not hit her head during her slip and did not complain of any pain. During this evaluation, she was alert and talkative, although she did say that she was sleepy. Staff assisted Resident 4 to a standing position, placed her back in her wheelchair, and took her to her room to put her to bed. When Resident 4 was put into her bed, staff made sure that her bed rails were both fully upright. Her bed was put in its lowest position. Resident 4 was reminded to call for assistance if she wanted to get out of bed. Her call bell was within easy reach. Each of these actions was listed in Resident 4’s Care Plan to minimize her risk of falling. The standard for monitoring residents in nursing homes is once every two hours. Respondent’s staff, however, began to monitor Resident 4 every half hour following her slide out of her wheelchair at 1:00 a.m. At 1:30 a.m., Resident 4 was noted in bed with the side rails up and call light within reach. She was drifting in and out of sleep at this time. At 2:00 a.m., she was observed in bed with her bed rails up and the call light in reach. One-on-one monitoring was not be required as a standard of care for her at this time. During the next monitoring visit at 2:30 a.m., Resident 4 was observed lying on the floor; her bed rails were still in the upright position. She had never previously attempted to get out of her bed when the side rails were in the up position. At that time she was evaluated and found to have a hematoma (a large knot or pooling of blood under the skin) on her upper left forehead. Staff evaluated her range of motion and found it to be normal, a neurological check also found her mental performance to be normal. She did not complain of pain at that time and, but for the hematoma, appeared normal in every respect. An ice pack was applied to the hematoma. Respondent’s staff called Resident 4's physician, and Resident 4's daughter to inform them of this incident. Staff determined that they would take Resident 4 back to the nurses’ station for continuous direct monitoring and assessment. She was placed in her wheelchair and taken out of her room. While being wheeled to the nurses’ station, she suddenly jammed both of her feet into the floor, pitching herself out of her wheelchair before the nurse could catch her. The nurse was immediately behind Resident 4 wheeling her in her wheelchair at the time of this fall. During this fall she again hit the upper left area of her forehead. Respondent initiated neurological checks on Resident 4 every 15 minutes. The neurological checks done at 2:30 a.m., 2:45 a.m., 3:00 a.m. and 3:15 a.m. all show normal vital signs and responses. The 3:30 a.m. neurological check, however, revealed that her pupils had dilated, she had become restless and disoriented, and her reaction time had visibly slowed. Respondent immediately called Resident 4’s doctor to inform him of this change in condition. An order was given to transport her to the hospital. The ambulance arrived at Respondent’s facility almost immediately to transport Resident 4 to the hospital, and her daughter was also immediately informed of these events. Nursing homes are required to fully assess every resident and to develop a care plan to address each of the specific problem areas identified for each individual resident. The care plan is prepared by an interdisciplinary team consisting of every discipline within the nursing home, and guides the nursing staff in caring for the residents. Resident 4’s care plan contained 15 identified problem areas and was approximately 75 pages in length. During the survey, Petitioner asked the nurse who cared for Resident 4 on the night of April 20, 2004, if she was aware of the care plans for this resident. That nurse stated that she did not recall ever reading Resident 4’s individual care plan. The nursing staff was not, however, totally unaware of the requirements of the care plan since a great deal of information and action steps used in the care of residents like Resident 4 are contained in alternative documentation maintained by Respondent. Respondent has distilled the action steps of the care plan down to a list of approaches for its nursing staff. This document contains all of the nursing approaches to resident care and is kept at the nursing station for ready reference. Petitioner was able to locate the “Approaches” document for Resident 4 during the survey. Among the items listed in Resident 4’s Care Plan and also listed in the “Approaches” document were to put her bed rails in the up position; to put her bed in the lowest position; to remind her to call for assistance when she wanted to get out of bed; and to make sure that her call button was within easy reach. The staff at Respondent’s facility carried all of these steps out, demonstrating an awareness of the required actions necessary for the care of Resident 4, and effectively complying with the care plan. One of Petitioner's concerns was the lack of use technological devices by Respondent personnel to enhance Resident 4's safety; she did not have a personal alarm at any time on April 20, 2004. A personal alarm is a buzzer that is attached to the resident’s bed or wheelchair and is clipped to the resident with an alligator clip. When the resident gets out of the wheelchair, or gets out of the bed, the buzzer goes off alerting staff that the resident is no longer in the wheelchair or bed. A personal alarm is not a restraining device and it will not keep a resident in bed or in a wheelchair. It simply alerts staff when a resident has exited the bed or chair. Under the Resident’s Bill of Rights, a nursing home resident has the right to be free of unnecessary restraint except as ordered by a physician. § 400.022(1)(o), Fla. Stat. There was no physician’s order to restrain Resident 4 and no documentation that restraints would be appropriate. Resident 4 had not slipped from her wheelchair in almost two months before her first fall on the night in question. She had been in physical therapy to improve her strength and there was no indication that she needed an alarm to remain in her wheelchair. She had never fallen from her bed previously. Since she was sleepy and heavily drugged, there was no reason to expect that she would start this behavior at this time. She had never pitched herself out of her wheelchair previously. Respondent's personnel had no reason to believe she would do so on this night. Resident 4 was continuously monitored for falls and approaches to prevent falls; there was no order for a personal monitor at all times, but only on an "as needed" basis. A personal monitor had not been indicated by the patient's previous behavior, and would not have made a difference, on the night of April 20. Petitioner's concern that Respondent should have sent Resident 4 to the hospital earlier in view of the fact that she was taking Coumadin, a blood thinning agent that would have hindered the healing of her hematoma, must be considered in that context that Respondent's right to undertake such action is limited to emergency situations, absent a physician's order. The record reflects that Resident 4 did not display any adverse effects from her second or third fall for a period of one hour. Her physician’s office was notified immediately upon the second fall and no order to transfer was given. When her condition changed, her physician was again notified and this time he directed that she be sent to the hospital. Resident falls are a fact of life at nursing homes. Standard protocol after a fall is to assess the resident and inform the doctor. Respondent's personnel acted appropriately.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner enter a final order dismissing its Administrative Complaint and restoring Respondent’s license rating of “standard” for the period April 30 through June 7, 2004. DONE AND ENTERED this 24th day of May, 2005, in Tallahassee, Leon County, Florida. S DON W. DAVIS 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 24th day of May, 2005. COPIES FURNISHED: Jay Adams, Esquire Broad and Cassel Post Office Box 11300 Tallahassee, Florida 32302 Joanna Daniels, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308 Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308 William Roberts, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308
