The Issue Whether Respondent, a licensed practical nurse, committed the offenses alleged in the Administrative Complaint and, if so, the penalties that should be imposed.
Findings Of Fact Petitioner is the agency of the State of Florida charged with regulating the practice of nursing pursuant to Section 20.42, Chapter 455, and Chapter 464, Florida Statutes. Respondent is a licensed practical nurse in the State of Florida, having been issued license number PN 1091251. Laposada Convalescent Home, is a 54-bed nursing home located in Miami, Florida. At the times pertinent to this proceeding, Respondent was employed as a licensed practical nurse by Laposada, Teresita Garcia was a part owner and manager of Laposada, Angela Barba was the nursing home administrator for Laposada, and Prima Washington was employed as a certified nursing assistant by Laposada. Respondent expected to receive her first paycheck as an employee of Laposada on January 15, 1994. Respondent's understanding was that she was to be compensated at the rate of $11.75 per hour. Respondent tried to obtain her paycheck during the afternoon hours on January 15, 1994. She talked to Ms. Garcia by telephone twice that afternoon and made a special trip to the facility that afternoon with the expectation that her check would be ready for her to pick up. When she came to the facility, her check was not ready and Ms. Garcia was not on the premises. Respondent was told that her check would be ready for her when she came on duty. Respondent was assigned to the night shift that began at approximately 11:00 p.m. on Saturday, January 15, 1994, and ended at 7:00 a.m. on Sunday, January 16, 1994. Respondent was the only licensed nurse assigned to the night shift. The two other employees assigned to the night shift were Prima Washington and another certified nursing assistant. Respondent returned to the facility and clocked in for the night shift at approximately 10:45 p.m. on January 15, 1994. She arrived early to pick up her paycheck and to review the patient reports with staff from the outgoing shift. After she clocked in, she received her paycheck. Respondent's pay was calculated on a rate of $7.00 per hour, not on the rate of $11.75 per hour that she had expected. Respondent became upset when she discovered this discrepancy in pay and called Ms. Garcia at her home at approximately 10:50 p.m. Respondent advised Ms. Garcia that she wanted the discrepancy straightened out immediately. After Ms. Garcia stated that the matter could not be resolved until Monday, Respondent advised that she was quitting her employment and demanded that Ms. Garcia locate a replacement for her. Ms. Garcia made several telephone calls in an attempt to find a replacement for the Respondent, but she could not locate a qualified replacement for Respondent on that Saturday night. The nursing home administrator, Angela Barba, is Ms. Garcia's daughter and resides with Ms. Garcia. Ms. Barba was aware of the conversations Ms. Garcia had with Respondent. Their residence is near Laposada so that they could reach the facility in a matter of minutes. Ms. Garcia instructed Prima Washington by telephone to inform her immediately if Respondent left the facility. Respondent clocked out of the facility at 11:30 p.m. At the time she clocked out, there was no other qualified nurse at the facility. Some of the patients at Laposada were scheduled to take medication at midnight. After Respondent clocked out, there was no one at the facility authorized to administer medication to these patients at midnight. After she clocked out, Respondent called 911 and went outside of the building to await the arrival of the police. It is not clear what Respondent expected the police to do once they arrived. Respondent also attempted to contact the abuse registry to advise the Department of Health and Rehabilitative Services (DHRS) as to the situation at Laposada. It is not clear what Respondent expected to accomplish by contacting DHRS, but she received a recorded message to call back during work hours. There was no evidence that DHRS became involved in this incident. The door Respondent used to exit the facility locks automatically. Consequently, once Respondent went outside of the building, she was locked out of the facility. Prima Washington thought that Respondent had left the premises and gave that information to Ms. Garcia. Respondent remained on the premises, but outside of the building, until Ms. Garcia came to the facility at approximately 2:00 a.m. Ms. Garcia was accompanied by Ms. Barba and by Ms. Barba's husband. When Ms. Garcia and Ms. Barba arrived at the facility, the Respondent left the premises. There was no further communication between Respondent and either Ms. Garcia or Ms. Barba as to the wage dispute, as to the condition of the patients, or as to whether a replacement nurse had been located. Respondent did not perform any duties after she clocked out at 11:30 p.m. She did not file a report as to the condition of her patients before leaving the facility. The patients at Laposada were without a qualified nurse between 11:30 p.m. on January 15, 1994, and 6:00 a.m. on January 16, 1994, when a nurse reported early for the morning shift. Respondent left the facility at approximately 2:00 a.m. before a replacement arrived. The accepted standards of conduct in the nursing profession require that a nurse, who wants to leave patients assigned to her care, wait for a replacement to arrive at the facility, discharge her nursing duties to her patients until the replacement arrives, and report the condition of her patients to her replacement prior to leaving. Respondent failed to meet the foregoing standards of conduct in the nursing profession by abandoning her patients at Laposada. Exceptions to these standards may arise in emergency circumstances. The facts of this case do not establish an emergency that would justify deviation from the accepted standards of conduct. While Respondent may have a bona fide dispute with the management of Laposada as to the rate of compensation she was to receive, that dispute does not constitute an emergency circumstance and does not justify her action in abandoning her patients. There was no evidence that Respondent has been previously disciplined by the Petitioner. There was no evidence that any patient was harmed as a result of Respondent's actions.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order that finds the Respondent guilty of unprofessional conduct in the provision of nursing services as alleged in the Administrative Complaint. It is further recommended that the Petitioner impose an Administrative Fine against Respondent in the amount of $250.00 and place her licensure on probation for a period of one year. The conditions of her probation should require that she complete an appropriate continuing education course dealing with her professional responsibilities for the care of patients. DONE AND ENTERED this 29th day of June, 1995, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 29th day of June, 1995. COPIES FURNISHED: Natalie Duguid, Esquire Agency For Health Care Administration 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Cornelius Shiver, Esquire Post Office Box 1542 Miami, Florida 33233 Judie Ritter, Executive Director Board of Nursing Daniel Building, Room 50 111 East Coastline Drive Jacksonville, Florida 32202 Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32309
The Issue The issue is whether a certificate of need should be issued to permit Tamarac Hospital, Inc. d/b/a University Community Hospital (Tamarac) to convert 10 acute care medical/surgical beds to skilled nursing facility beds. Based on their presentations at the final hearing and their proposed findings of fact and conclusions of law, the central issue is whether there is a need for the proposed nursing home beds.
Findings Of Fact Tamarac proposes to convert 10 currently licensed medical/surgical acute care beds into skilled nursing facility beds. The skilled nursing beds would be available at the hospital to treat patients who no longer require acute hospital care but do require skilled nursing services beyond those required by ordinary nursing home patients. (Tr. 15-16) 1/ The capital cost of the project would be approximately $20,000 for renovation to provide a private bathroom in the existing group of hospital rooms which would be converted to use as the skilled nursing facility (Tr. 25). The testimony of the petitioner with respect to the financial feasibility of the project was undisputed (Tr. 25, PX 1, p.14). Tamarac has encountered problems in placing patients who no longer require acute hospital care in nursing homes in HRS District 10, Broward County, when those patients require more than normal nursing home services. These patients, due to their diagnosis or treatment, require more skilled nursing care, more technical assistance, supplies or more frequent checking than traditional nursing home patients (Tr. 15). These are patients with infectious diseases or draining wounds who require isolation; patients requiring ongoing intravenous administration of medications including antibiotics and narcotics; patients on chronic ventilator support; patients with tracheostomies requiring respiratory support, suctioning or oxygen; patients with naso-gastric feeding tubes and patients receiving total parenteral nutrition (PX 1, application, p. 2). Tamarac introduced a study it had conducted concerning discharge delays for the one year period prior to its application which included 70 patients (Tr. 12, PX 3). The study is anecdotal in nature. The director of social services for Tamarac, who is in charge of discharge planning coordination, testified that the 70 cases were representative and randomly sampled (Tr. 12, 21). There was no specific evidence of the sampling methodology, however. In the absence of better evidence of the sampling methodology it is not possible to determine what inferences validly may be drawn from the information presented in PX 3. For example, the evidence fails to show whether the 70 cases included represent 1 percent or 100 percent of the instances where a discharge was delayed. All that is known is that in 53 percent of those 70 cases studied the discharge delay occurred because the patient could not be placed in a nursing home (Tr. 12). These 37 patients might have been served at Tamarac if a skilled nursing facility had been in operation. Due to the limited evidence of how the sample was chosen, the study has been given little weight. In addition, the application and Tamarac's study focuses solely on the experience of Tamarac in attempting to place patients who no longer required acute care in a nursing home. There is no basis for determining whether there is a general community need for the project proposed. The narrowness of the proof offered is apparently due to the restriction Tamarac made in the application that "this project is for [Tamarac] hospitalized patients only". Application, PX 1, page 6 paragraph 4. Tamarac also conducted a survey of Broward nursing homes to determine what services they provide, PX 4. That survey indicates that there are some specialized nursing services that are not available in nursing homes in Broward County, e.g., services for patients on chronic ventilators and patients with acquired immune deficiency syndrome (although Tamarac did not indicate that it proposed to offer services to AIDS patients). There are also services which are not commonly available. Many nursing homes will not accept patients on intravenous medication in the form of chemotherapy or narcotics or patients with draining wounds, and the few that do generally require no pathogenic organism be present as shown by negative culture test. Even when some nursing home in Broward County provides a specific service, a bed at that nursing home may not be available to a patient in Tamarac Hospital ready for discharge from acute care when the bed is requested (Tr. 14- 15). Tamarac's placement problem is made more difficult because it is to some extent in competition with other Broward County hospitals for the available nursing home beds for patients needing skilled, subacute nursing services (Tr. 16). This generalized evidence of competition does not rise to the level of demonstrating a need in HRS Service District 10 for the proposed skilled nursing facility. Tamarac has attempted to persuade existing nursing homes to expand services to accept on a routine basis patients needing the type services which Tamarac proposes to provide, but has been unsuccessful (Tr. 16). The bed need calculation methodology set out in Rule 10-5.11(21), Florida Administrative Code, for the July 1988 planning horizon shows a surplus of 92 nursing home beds in Broward County (RX 1 and 2, Tr. 32-44). Approximately 258 nursing home beds are unoccupied in Broward County on a daily basis, assuming 100 percent occupancy actually could be achieved (Tr. 39). The availability of empty nursing home beds in the district does not necessarily mean that beds are available for a particular patient at Tamarac Hospital who needs more than normal nursing services on a specific day (Tr. 55). Individual patients requiring subacute care may remain in the hospital (Tr. 18). Patients ready for discharge from acute care are not eligible for Medicare coverage (Tr. 17), and are potentially liable for their hospital costs incurred awaiting placement. If they were transferred to a skilled nursing facility such as that proposed by Tamarac, those patients would be eligible for the Medicare benefits for the first 20 days, with an additional 80 days of co- insurance reimbursement thereafter (Tr. 26). The average hospital room, board, and ancillary charges at Tamarac is $900 per patient and per day. The charge to be made in Tamarac's proposed skilled nursing facility would be $115 per day (Tr. 26). According to the application (PX 1, table 7, utilization by the class of pay), 65.6 percent of its patient days of service are provided by Tamarac to Medicare patients. Tamarac would recover approximately $115 per patient per day for patients utilizing its skilled nursing facility, rather than writing off, as it does now, approximately $900 per day for those Medicare patients requiring subacute care who remain in Tamarac due to an inability to identify an appropriate skilled nursing facility in Broward County to accept them when their care requirements are greater than that normally provided by Broward County nursing homes (Tr. 29). Few Medicaid patients utilize the services of Tamarac because of the nature of the population surrounding the hospital. Referring again to the evidence of utilization by class of pay, only one tenth of one percent of the patient days spent at Tamarac during the period January 84 through December 84 were days spent by Medicaid patients. There would be no restriction on access to the skill nursing facility unit if one of the rare Medicaid patients at Tamarac Hospital required those services (Tr. 27-28).
Recommendation It is recommended that the application of Tamarac Hospital, Inc., d/b/a University Community Hospital to convert 10 medical/surgical beds to skilled nursing facility beds be denied. DONE AND ORDERED this 20th day of October 1986 in Tallahassee, Leon County, Florida. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of October, 1986.
Findings Of Fact On 22 June 1982 DHRS, Office of Licensure and Certification, conducted an inspection of Respondent's facility known as Regency Oaks at Gainesville, Florida. During this inspection the nurses' schedule was not produced and the inspector, with the assistance of Respondent's staff, attempted to reconstruct the nurses' schedule for the month of June, 1982, up to the date of the inspection. From the data received it was determined that on the 7:00 a.m. to 3:00 p.m. shift on June 5, 1982, Respondent was staffed with one registered nurse (RN) and three licensed practical nurses (LPN) on June 6 there were two RN's and two LPNs; on June 12 there were three RNs and one LPN; and on June 19 there were three RNs and one LPN. Staffing requirements for nursing homes are determined by the shift and census of the nursing home. All of the shortages here involved the day shift. On each of the days of 5, 6, 12, and 19 June the regulations required two RNs and three LPNs on the day shift. The regulations also permit the substitution of an RN for an LPN. Accordingly, from the evidence gathered bv Petitioner's evaluation at the June 22 inspection, Respondent was short one RN on June 5 and one LPN on June 6, 12, and 19. Respondent presented time cards for the periods here involved. These time cards, which were accepted in evidence as business records of Respondent, show that on June 12 Respondent had two RNs and three LPNs on duty on the day shift. Respondent's one witness admitted the nursing home was understaffed one RN on June 5 and one LPN on June 6 and 19.
The Issue The ultimate issue is whether proposed Rules 10-5.002, 10-5.0025, 10-5.003, 10-5.004, 10-5.005, 10-5.008, 10-5.0085, 10-5.010, 10-5.0105, 10-5.020, and 10- 5.024, published in Volume 16, Number 13, Florida Administrative Weekly, are invalid exercises of delegated legislative authority.
Findings Of Fact 10-5.002(1) Proposed Rule 10-5.002(1) defines the term "acquisition" to mean "the act of possessing or controlling, in any manner or by any means, a health care facility, major medical equipment, an institutional health service or medical office building as one's own." The proposed rule is HRS's attempt to clarify the term's meaning as used in Section 381.706, Florida Statutes. It is based on dictionary definitions, primarily, Webster's Dictionary, Ninth Edition, but also Black's Law Dictionary. Armond Balsano, an expert in health planning, did not believe the definition to be reasonable and thought it was unclear, ambiguous, and open ended. However his opinion in this regard was not persuasive. Proposed Rule 10-5.002(1) is reasonable and sufficiently clear to withstand this challenge. 10-5.002(13) and 10-5.008(2)(d)--Skilled Nursing Issues Proposed Rule 10-5.002(13) defines "community nursing home beds" as relevant to this proceeding to include "acute care beds licensed pursuant to Chapter 395, Part I, F.S., but designated as skilled nursing beds, which are reviewable pursuant to Rule 10-5.011(1)(k) [the nursing home bed need methodology]." Proposed Rule 10-5.008(2)(d) relates to fixed need pools and states: (d) Skilled Nursing Units in Hospitals. Beds in skilled nursing units which are a distinct part of a hospital will be counted in the nursing home bed inventory, even though they retain their licensure as acute care beds. Essentially, proposed Rule 10-5.008(2)(d) requires that skilled nursing beds in a distinct unit in a hospital be categorized as hospital "general" beds on the hospital license, but that they be carried at the same time on the inventory of community nursing home beds for purposes of projecting need under "pool" projections utilized by HRS for evaluating need for new beds. Proposed Rule 10-5.008(2)(d) attempts to codify what has been HRS's policy. This rule proposes that licensed acute care beds, which form a distinct part of a hospital-based skilled nursing unit, be counted in the nursing home bed inventory to project future need with respect to the nursing home bed need formula. Thus, these beds will no longer be counted or used in the acute care bed need formula to project the acute care bed need. From a health planning standpoint, several reasons exist for and against the inclusion of these hospital-based skilled nursing units within the nursing home bed inventory. A hospital cannot use its acute care beds as skilled nursing beds without a certificate of need. However, pursuant to this rule, to obtain these distinct unit beds a hospital is forced to compete with nursing home applicants for those beds. Skilled nursing beds in hospitals are "general" beds set up in a special category for which there is no specialty hospital bed methodology. Applications are reviewed under the nursing home bed methodology. A skilled nursing unit in a hospital is a unit, certified under the Health Care Finance Administration program, to identify a distinct part of the hospital as being a service in which there is 24-hour nursing with an RN nurse on the day shift. There also must be skilled nursing multi-disciplinary treatments and therapy services provided. The Health Care Finance Administration categorizes such beds as hospital beds, a distinct part of a hospital. Skilled nursing facility (SNF) beds in a hospital are used to treat acutely ill patients with an average length of stay of 20 days, who are different from the extended care patients found in community nursing homes, who have lengths of stay of one year or longer. Hospital skilled nursing patients are overwhelmingly Medicare patients, whereas community nursing home patients are overwhelmingly Medicaid patients. In Florida, Medicaid does not reimburse for care provided in the hospital-based skilled nursing unit. Hospital-based skilled nursing units are reimbursed by the Health Care Financing Administration (HCFA) on a cost-based method. This system of reimbursement is also used with respect to non-hospital-based skilled nursing facilities. Furthermore, this means that hospital-based units are no longer reimbursed under the DRG (Diagnosis Related Groups) system. Medicare limits the patient benefit period to 100 days, regardless of the patient setting. Except for hospitals having higher allowable costs, federal guidelines do not differentiate between hospital and non-hospital-based skilled nursing units. The level of staffing is higher in a hospital nursing unit than in any community nursing home. Specialized equipment and services are offered in the hospital skilled nursing unit which are not offered in the community nursing homes. There are different conceptual approaches to care in the skilled nursing unit in a hospital as compared to those provided in community nursing facilities. Acutely ill patients on intravenous feeding or hyperalimentation, and those with multiple diagnoses require the hospital level nursing care. These units are not intended to provide residential care. Hospital beds are licensed under Rule 10D-28, whereas nursing home beds are licensed under Rule 10D-29, Florida Administrative Code. Although the proposed rule requires skilled nursing beds in distinct units of hospitals to be comparatively and competitively reviewed with community nursing home applications, the two types of beds are not comparable. This creates an unfair comparison. As a matter of good health planning, these skilled units in hospitals should be reviewed differently and separately from regular community nursing home beds. By their nature, SNF beds in distinct units in hospitals are in fact "hospital" beds under Chapter 395 and not nursing home beds under Chapter 400, Florida Statutes. Hospital-based skilled nursing units are not considered special care units as defined in Rule 10D-28, Florida Administrative Code. Specifically, special care units deal with very specialized intensive care settings. However, pursuant to some federal guidelines and state licensing requirements, a skilled nursing unit is considered a custodial type setting. For example, special care units are surveyed about once every two years and skilled nursing facilities once every year. However, failure to conduct a survey is not a determinative factor for special care units continuing under the Medicaid/Medicare programs. Skilled nursing units are not as fortunate. In fact, failure to survey a skilled nursing unit leads to the expiration of its enrollment in the Medicaid/Medicare programs. Section 395.003(4), Florida Statutes, defines the various types of hospital beds and states that beds not covered under any specialty bed need methodology, which a skilled nursing unit is not, shall be considered general beds. This is why these hospital-based skilled nursing units are licensed as general acute care beds. The proposed rule amendments also present logistical problems. Hospitals and nursing homes are licensed under different chapters of the Florida Statues and the Florida Administrative Code, and those standards do not match. Their projects are in different planning cycles. HRS intends that hospitals apply for skilled nursing units on the nursing home application currently in use, but admits that the application does not really fit this type of project. The proposed rule amendments regarding skilled nursing units will be costly and burdensome. Although skilled nursing units offer valuable services and few currently exist, under the nursing home need rule it will be difficult to prove need for these projects. A hospital desiring to establish one will likely find itself having either to challenge the fixed need pool for nursing home beds or litigate the almost inevitable denial of its application for lack of need. Either course of action would involve time and expense over and above those usually encountered in the CON process, particularly because such an application would likely draw the opposition of existing nursing homes, even though their services are not really comparable. The proposed rule amendments do not comport with the basic health planning policy of reducing over-bedding by encouraging conversion to other services. It is unlikely a hospital could get a skilled nursing unit by showing a numeric need under the nursing home need methodology, and any attempt to show exceptional circumstances would be hampered by the lack of utilization data. Such beneficial conversions will probably also be chilled by the difficulty in converting a skilled nursing unit back to general acute care use, should it not be successful. Given the extreme acute care over-bedding which exists throughout the state, it is not anticipated that there will be any need for additional acute care beds for the foreseeable future. Since a skilled nursing unit would not be counted in the acute care bed inventory, the reconversion to acute care use would have to undergo CON review and would almost certainly be denied. 10-5.002(52) Proposed Rule 10-5.002(52) defines refinancing costs, which Rule 10- 5.004(2)(c) states are subject to expedited review under Section 381.706(2). The purpose of this definition is to provide guidance to applicants by identifying examples that are often encountered in either bond refunding or refinancing. The definition is straightforward in nature and encompasses the elements common in refinancing. Mr. Balsano, testifying for Adventist, readily acknowledged the preciseness of this definition, but faulted the definition for its absence of any discussion as to the potential benefit of refinancing. However, Mr. Balsano's concerns were misplaced. Distinctions exist between the benefits of refinancing and the meaning of refinancing. Indeed, the benefits of refinancing go to the merit of whether or not the certificate of need should be granted. Since every applicant is required to address the review criteria found in Section 381.705, Florida Statutes, the proper forum for addressing the benefits of refinancing is in the CON application itself. Proposed Rule 10- 5.002(52) is simply a definition. 10-5.004(2)(g)--Projects Subject to Expedited Review: Capital Expenditure Projects This proposed rule allows applicants who propose a capital expenditure project to improve, repair, or correct their existing facility to apply for a certificate of need on an expedited basis. This proposed rule is conducive to encouraging existing facilities to make needed improvements by seeking approval of the expenditure expeditiously and without the delays associated with batching cycles. It is important for a provider to make and complete corrections or improvements quickly in order to minimize the disruption of patient care. Some of the more common capital expenditures include expansion of emergency departments or emergency rooms and the renovation or expansion of other patient care areas. An application to relocate a hospital is also considered a capital expenditure. Under extreme circumstances of pervasive physical plant deficiencies, coupled with a lack of practical renovation options to overcome plant deficiencies, an existing health care facility might apply for a replacement facility. Only when such replacement facility would (1) involve no new beds or changed bed use (e.g., from general acute care to comprehensive medical rehabilitation beds), (2) involve no substantial change in services, and (3) involve no substantial change in service area would HRS consider such an application to be solely reviewable as a capital expenditure and thus entitled to expedited review under the proposed rule. HRS reviews replacement facility applications by carefully assessing the applicants' claims of pervasive physical plant problems. HRS sends a team of experts, including architects, to the existing facilities to independently judge whether the physical plant is in such a condition as would warrant replacement and whether renovations could serve as a practical alternative from a physical standpoint. HRS also performs an economic assessment to compare the alternatives of replacement versus renovation in order to determine the most cost-effective alternative. Replacement facility applications typically involve a determination not of whether dollars will be spent, but rather, how they are best spent--by replacement or by renovation. As such, HRS helps to contain health care costs without participation by competitors in these institution- specific decisions. Pursuant to Section 381.709(5)(b), Florida Statutes, competitors do not have standing to challenge a proposed capital expenditure and, therefore, there is no adequate reason to defer review of these projects until a future application cycle. Further, when a capital expenditure approval is sought to replace or relocate an existing facility, no one other than the applicant/existing facility can apply to spend or make those expenditures. An unrelated entity cannot compete to replace another entity's existing facility. Conducting a comparative review with respect to a capital expenditure project for the replacement of a hospital is illogical, unworkable, and futile. 10.5.008(1)(c)3 and 10-5.008(3)(b)--Capitalized Costs Proposed Rule 10-5.008(1)(c) requires that a letter of intent describe the proposal with specificity. Subsection (1)(c)3 sets forth the following requirement: 3. A proposed capital expenditure must be rounded to the nearest dollar . . . . If no capital expenditure is proposed, the applicant must so indicate. If the actual capital expenditure has already been incurred, either wholly or in part, and the project will account for such expenditures as capitalized costs, regardless of the purpose, then the total capital expenditure of the project shall be indicated. As related to this same subject, proposed Rule 10-5.008(3)(b) states: (b) Capital expenditures incurred for projects not originally subject to Certificate of Need review must be identified as a proposed expenditure when such expenditure will be capitalized in a project for which a Certificate of Need is required. HRS asserts that this proposed rule codifies HRS's existing policy and that the purpose of this provision is to develop consistency in how applicants treat an already incurred capital expenditure. It is also allegedly intended that this proposed rule give uniformity concerning how project costs are calculated and allocated. For example, if an applicant is going to convert space from one use to another, the value of the space must be included in the applicant's capital expenditure estimate. While Ms. Gordon-Girvin, HRS's health planning expert, opined that this proposed rule is consistent with current practices in the health care market place concerning how capital expenditures are treated and that it forms a common basis of comparison for comparing the applicants' treatment of capitalized costs, the greater weight of the credible evidence does not support these opinions. Actually, the effect of these proposed rules is that a certificate of need applicant, who has previously made capital expenditures and later pursues a certificate of need project utilizing such prior capitalized costs, must identify and include those prior capital expenditures as a portion of the certificate of need project, even though no actual incremental funds will be necessary or spent in connection with the project. One of the problems with proposed Rules 10-5.008(1)(c)3 and (3)(b) is that they both ignore a distinction between fixed costs and variable costs which is fundamental to a financial evaluation of any project. Specifically, it is inappropriate to require an applicant who will have no incremental costs in implementing a project to allocate a portion of prior capital expenditures, where such an application is measured against a competing application in which the entire outlay for capital costs will be necessary. This distorts the evaluation due to inappropriately comparing prior fixed costs to future variable costs. An example of the illogical result of the proposed rules provides guidance. If a hospital has already spent one million dollars to add a CON- exempt outpatient cardiac cath lab, and later seeks to establish an inpatient cardiac cath program, under these proposed provisions, that hospital would have to represent a cost of one million dollars in its application to convert the outpatient cardiac cath lab to an inpatient project. From a health planning and financial standpoint, this is inappropriate. Having to include capital costs which have already been incurred and viewing those costs in the context of the decision to approve or reject a CON project is misleading. Ultimately, the purpose and objective of the CON process is to minimize duplication of health care resources. The proposed rules work in conflict with that goal. Conversion of underutilized resources to resources that could be more beneficially utilized is a policy that is encouraged by HRS. This policy is encouraged in the various need methodologies. One of the reasons to encourage a conversion is that often zero dollars are involved to convert a project from one CON-approved use to another CON-approved use. Proposed Rules 10-5.008(1)(c)3 and (3)(b) would eliminate consideration of the minimal cost involved in a conversion project and are therefore unreasonable. Moreover, the proposed rules could end up creating excess resources in the system simply because they would eliminate the preference for conversion as opposed to new construction. With respect to allocating prior capital expenditures, the proposed rules, as alleged by HRS, are intended to codify existing HRS policy as well as provide uniformity to the process of ascertaining project costs. These proposed rules do neither. In point of fact, HRS has accepted, within the last three years, conversion projects indicating a zero project cost in the application. The proposed rules are thus inconsistent with current HRS policy of accepting and evaluating these applications and are contrary to HRS's stated intention in this proceeding. However, with respect to providing uniformity to the process of ascertaining project costs, the proposed rules provide no methodology by which prior capital cost allocations are to be determined. Indeed, there is no uniformity proposed regarding how a health care facility or applicant accounts for capital expenditures. Generally, a capital expenditure is one that is "material" and the useful life of the item capitalized exceeds one year. What is material to one applicant may be entirely different from that which would be material to another applicant. Thus, the uniformity of presentation of prior capitalized costs contained in CON applications submitted to HRS for review will not and cannot exist as envisioned by HRS in its proposed rules. 10-5.005(2)(e) Proposed Rule 10-5.005 relates to exemption from CON review and Subsection (2)(e) states as follows: (e) Failure to initiate the exemption within twelve months after it appears in the Florida Administrative Weekly will result in the notice of exemption being void. The alleged basis for this proposed rule is to protect those persons pursuing an exemption by ensuring that they are still eligible for it under the same facts and circumstances. Additionally, HRS has encountered problems in the past when entities have received a determination of exemption for a project but have failed to implement the project. In one case, HRS gave a nursing home an exemption to replace a facility on site. After discharging the patients, the nursing home took no further action. However, these beds are still licensed and are included in the bed inventory. Such a situation artificially suppresses the need for nursing home beds in that district for the planning horizon. The proposed rule is an attempted response to this problem. The laws implemented by the proposed rules are Section 381.706 and 381.713(1). Pursuant to these sections, HRS must grant an exemption if the applicant meets the statutory definitions. Further, if a project is exempt, it is not subject to review. Exemption requests may be made at any time and are not subject to batching requirements. Once a project is deemed to be exempt and not subject to review, HRS ceases to have jurisdiction over the project and HRS, accordingly, has no jurisdiction to void an exemption. 10-5.008(2)(f) Proposed Rule 10-5.008(2)(f) establishes a procedure for HRS and applicants to follow when a departmental need methodology does not exist for a proposed project. The proposed rule attempts to clarify for applicants how best to present themselves when applying for a project for which no methodology has been adopted in an existing rule. This is particularly useful to applicants in addressing the need component required by statute. Policy utilized but not yet adopted by HRS will be provided to applicants in addressing the need component required by statute; however, applicants are not bound by that policy and may tender their need calculations. This proposed rule gives credence to the fact that there may be different methodologies and allows applicants the opportunity to make all the necessary arguments to demonstrate the nature and extent of entitlement to a certificate of need. 10-5.0085(4) Proposed Rule 10-5.008(4) describes shared service arrangements and delineates the procedures applicants must follow to initiate or terminate a shared service. The part of the proposed rule challenged by FHA and the area on which it focused concerned the termination of a shared service arrangement. Proposed Rule 10-5.008(4) provides in pertinent part: (4)(a) The following factors are considered when reviewing applications for shared services where none of the applicants are currently authorized to provide the service: * * * Any of the parties providing a shared service may seek to dissolve the arrangement. This action is subject to review as a termination of service. If termination is approved by the department, all parties to the original shared service give up their rights to provide the service. Parties seeking to provide the service independently in the future must submit applications in the next applicable review cycle and compete for the service with all other applicants. * * * 6.b. The following factors are considered when reviewing applications for shared services when one of the applicants has the service: * * * e. Dissolution of a shared services contract is subject to review as a termination of service. * * * If termination is approved, the entity(ies) authorized to provide the service prior to the contract retains the right to continue the service. All other parties to the contract who seek to provide the service in their own right must request the service as a new health service and are subject to full Certificate of Need review as a new health service. (Emphasis added) The basis for requiring CON review for a termination of a shared service as delineated above is found in Section 381.706(2)(e), Florida Statutes (1989). If a shared service arrangement terminates, the party who originally had the service would retain the service. This is reasonable because the entity would have already been granted a certificate of need for the service, singularly offered. The party would be placed back in the same situation it was in prior to the shared service. Conversely, in situations where neither party originally had the service, the remaining parties would have to apply for the service in a batched review. This, too, is reasonable in that the service would no longer be shared and the ability to provide it singularly would be evaluated anew. Here, the party would also be placed back in the same situation it was in prior to the shared service. Additionally, a shared service arrangement (and approval of it) is based on certain benefits present within that arrangement. Upon termination the same benefits may not be present. The identity of the parties and their relationships to each other will have changed. Review at this point provides an applicant the opportunity to compete again to establish the service in its own right under a different set of circumstances, and it allows other providers to compete either for the service in their own right or through another shared arrangement. Such a policy is prudent because the very reason for the shared service was to produce benefits that were not otherwise obtainable singularly. Indeed, even FHA's own witness, Mr. Bebee, acknowledged that certain advantages to a shared services arrangement might not be present when such an arrangement terminates. 10-5.010(2) Proposed Rule 10-5.010(2) concerns what local health plan is to be used and addressed in a CON application, and it provides as follows: The applicable local health plan is the most current plan adopted by the appropriate local health council and which has been accepted and approved in writing by the Department at the time letters of intent are due or, if not accepted by the Department, as reviewed and commented on by the Department. The agency will provide to all prospective applicants those items of the local health plan which must be addressed in the application. HRS asserts that the purpose of this amendment to existing Rule 10- 5.010 is to assist applicants by identifying various components of the plan to which they should address their application and thereby maximize their time and effort and, ultimately, their chances for approval and that this proposed rule codifies current departmental practice of providing those items of the local health plan which must be addressed by the applicant. Contrary to HRS's assertion that this proposed rule is clarifying in nature, the rule in fact goes far beyond those parameters. "Reviewed and commented on by the Department" means that the local health council's adopted plan has been reviewed for consistency with existing need methodologies and has been commented on by HRS. HRS maintains that "commented on" does not mean verbal comments. The proposed rule does not, however, specify that only written comments were intended. Indeed, HRS admitted that the way the rule is drafted it takes into account oral as well as written comments. Statutorily, HRS is required to adopt as a rule the local health plans or portions thereof to be used in the CON review regulatory process. Local health plans generally contain allocation factors, preferences, and policies with respect to the particular district. Within the last several months, HRS has sought to adopt as a rule preferences and policies set forth in the various local health plans around the state of Florida. HRS withdrew those proposed rules. Proposed Rule 10-5.010(2) does not make reference to or account for the fact that the local health plans must be adopted as rules by HRS. HRS cannot circumvent statutory requirements by proposing that an applicant address "approved plans," nor can it require an applicant to address local health plans with which HRS is not in full agreement with the local health council as to whether the plan is consistent with statutory guidelines. Indeed, where HRS and the local health council are in disagreement, an applicant is pulled between HRS and the local council. This proposed rule allows HRS to simply reject the expressed wants of the local health council and to insert its own comments and views, thereby inserting itself into a province exclusively reserved to the local health councils. 10-5.020 Proposed Rule 10-5.020 involves addition of one sentence to the existing rule. The added language provides that HRS will issue a license to the CON holder in accordance with the CON and will not issue a license for fewer beds than the total on the CON. The proposed addition to this rule addresses a problem currently facing the Department, and it reflects a change in agency policy for HRS. Basically, the added language clarifies for an applicant or certificate of need holder that the Office of Licensure and Certification shall only issue a license consistent with the terms of the certificate of need. The proposed rule addition conforms to several health planning goals. First, it requires the implementation of a project in accordance with the certificate of need. Second, the language addresses HRS's current problem of need suppression by industry members. Third, it seeks to ensure uniform development of services. This proposed rule does not penalize hospitals who want to do phase-in type projects. On the contrary, the language seeks to ensure that needed beds and services will be implemented in the horizon year in accordance with the application and entitlement demonstrated by the applicant. Economic Impact Statement The Summary of the Estimate of the Economic Impact states in relevant part: The proposed amendments are expected to have no adverse impact either on existing and new applicants for certificate of need, or on small and minority businesses . . . . The Economic Impact Statement (EIS) addresses the cost to the agency of implementing the proposed rules, an estimate of the cost to persons directly affected by the proposed rules, an estimate of the impact of the proposed action on competition, a statement of the date and method used in making those estimates, and an analysis of the impact on small businesses as defined in the Florida Small and Minority Business Assistance Act of 1985. Specifically, the EIS states that the proposed rules "will have a minimal economic impact on current or future certificate of need applicants and the public at large." There is no competent, substantial evidence to establish with specificity the existence of any defects in the EIS which impaired the fairness of the rulemaking proceeding or the correctness of the agency actions related to the EIS.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED: 1. Proposed Rules 10-5.002(1) and (52), 10-5.004(2)(g), 10-5.008(2)(f), 10-5.0085(4), and 10-5.020 are valid. 2. Proposed Rules 10-5.002(13); 10-5.008(1)(c)3, (2)(d), and (3)(b); 10- 5.005(2)(e); and 10-5.010(2) are invalid exercises of delegated legislative authority. DONE and ORDERED this 10th day of October, 1990, in Tallahassee, Florida. DIANE K. KIESLING, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of October, 1990. APPENDIX TO THE FINAL ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in these cases. Specific Rulings on Proposed Findings of Fact Submitted by Petitioners Venice Hospital and Adventist Each of the following proposed findings of fact is adopted in substance as modified in the Final Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 4(3); 5(5); 6(6); 10(14); 12(15 and 16); 15-17(25-27); and 19(28). Proposed findings of fact 1, 3, 7-9, 11, 13, 18, 21, 22, 24, and 25 are subordinate to the facts actually found in this Final Order. Proposed finding of fact 2 is unnecessary. Proposed findings of fact 14, 20, 23, and 26 are unsupported by the credible, competent, and substantial evidence. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner FHA Each of the following proposed findings of fact is adopted in substance as modified in the Final Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 4(7); 5(10); 6(11); 8-12(12- 16); and 13-17(19-23). Proposed findings of fact 2, 3, 18, 19, and 21-24 are subordinate to the facts actually found in this Final Order Proposed finding of fact 7 is unnecessary. Proposed finding of fact 20 is unsupported by the credible, competent, substantial evidence. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner Humana Each of the following proposed findings of fact is adopted in substance as modified in the Final Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 6(34, 35, and 38). Proposed findings of fact 2, 5, and 7-13 are subordinate to the facts actually found in this Final Order. Proposed findings of fact 1, 3, 4, and 14-19 are unnecessary. Specific Rulings on Proposed Findings of Fact Submitted by Petitioners NME and PIA Each of the following proposed findings of fact is adopted in substance as modified in the Final Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 2(34, 35, and 38); 3-6(39- 42); 8(53); and 9(54 and 55). Proposed findings of fact 1 and 7 are subordinate to the facts actually found in this Final Order. Proposed findings of fact 10 and 11 are irrelevant because these Petitioners dismissed their challenge to the EIS in the Stipulation of the parties admitted as Joint Exhibit 2. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner Sarasota Proposed findings of fact 1-4, 6, 7, and 13 are subordinate to the facts actually found in this Final Order. Proposed finding of fact 5 is unnecessary. Proposed findings of fact 17, 18, and 20 are unsupported by the credible, competent, and substantial evidence. Proposed findings of fact 8-12, 14-16, and 19 are irrelevant. Specific Rulings on Proposed Findings of Fact Submitted by Respondent HRS Each of the following proposed findings of fact is adopted in substance as modified in the Final Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1 and 2); 2(28); 3(46); 4(47-49); 5(51); 7(29); 8(32 and 33); 9(33); 11(8); 13(17); 14(18); 15(23); 16(23 and 24); 17(36); 19(37); 21(57); and 22(58). Proposed findings of fact unnumbered paragraph re: 10-5.005(2)(e); 10; 12; 18; 20; and unnumbered paragraph re: Economic Impact Statement are subordinate to the facts actually found in this Final Order. Proposed findings of fact 1A and 6 are unnecessary. Specific Rulings on Proposed Findings of Fact Submitted by Intervenor HCA DOCTORS Each of the following proposed findings of fact is adopted in substance as modified in the Final Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 6(30) and 7(31). Proposed findings of fact 2-5 are subordinate to the facts actually found in this Final Order. Proposed findings of fact 1 and 9-11 are unnecessary. Proposed findings of fact 8 is irrelevant. *NOTE: THIS RECOMMENDED ORDER'S EXHIBIT "A" [RULE 10-5.002, 10-5.004(2), 10-5.005(2), 10-2.008(1)(n), 10-5.008(5)(h), 10-5.010(2), 10-5.020] IS AVAILABLE FOR REVIEW IN THE DIVISION'S CLERK'S OFFICE. COPIES FURNISHED: Jeffery A. Boone, Attorney at Law Robert P. Mudge, Attorney at Law 1001 Avenida del Circo Post Office Box 1596 Venice, FL 34284 Kenneth F. Hoffman, Attorney at Law 2700 Blair Stone Road Post Office Box 6507 Tallahassee, FL 32314-6507 James C. Hauser, Attorney at Law 204-B South Monroe Street Tallahassee, FL 32301 C. Gary Williams, Attorney at Law Stephen C. Emmanuel, Attorney at Law Post Office Box 391 Tallahassee, FL 32302 Theodore C. Eastmoore, Attorney at Law 1550 Ringling Boulevard Post Office Box 3258 Sarasota, FL 34230 Robert A. Weiss, Attorney at Law John M. Knight, Attorney at Law The Perkins House, Suite 101 118 North Gadsden Street Tallahassee, FL 32301 Thomas R. Cooper, Attorney at Law Edward G. Labrador, Attorney at Law Department of Health and Rehabilitative Services 2727 Mahan Drive, Suite 103 Tallahassee, FL 32399-0700 John Radey, Attorney at Law Elizabeth W. McArthur, Attorney at Law Suite 1000, Monroe-Park Tower 101 North Monroe Street Post Office Drawer 11307 Tallahassee, Florida 32302 Donna H. Stinson Moyle, Flanigan, Katz, FitzGerald & Sheehan, P.A. The Perkins House--Suite 100 118 North Gadsden Street Tallahassee, Florida 32301 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Linda K. Harris Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Liz Cloud, Chief Bureau of Administrative Code Room 1802, The Capitol Tallahassee, Florida 32399-0250 Carroll Webb, Executive Director Administrative Procedures Committee Room 120, Holland Building Tallahassee, Florida 32399-1300
The Issue The central issue for disposition is whether Certificate of Need no. 7750, for 24 hospital-based skilled nursing unit beds should be awarded to Petitioner, St. Joseph’s Hospital, Inc. (St. Joseph’s). To resolve that issue it is necessary to resolve factual issues regarding the need for the proposed beds and a legal issue regarding the impact of Health Care and Retirement Corp. of America v. Tarpon Springs Hospital Foundation, Inc. 671 So.2d 217 (Fla 1st DCA 1996) (Tarpon Springs) on the fixed need pool published in the first nursing home batching cycle of 1994 in Hillsborough County, District 6, Subdistrict 1.
Findings Of Fact The Parties St. Joseph’s Hospital, Inc. (St. Joseph’s) is a not- for-profit hospital which has operated in the Tampa, Florida area for over fifty years. It is currently licensed for 883 acute- care beds; it owns John Knox Village, which includes an adult congregate living facility and medical center nursing home; and it offers other services in a continuum of health care. St. Joseph’s also has a 19-bed, in-hospital skilled nursing care unit which became operational in early 1995. The Agency for Health Care Administration (agency or AHCA) is the state agency responsible for administering and enforcing the certificate of need (CON) process described in sections 408.031 through 408.045, Florida Statutes (“the Health Facility and Services Development Act”). The Process The fixed need pool published by AHCA in vol. 20, number 15, April 15, 1994, Florida Administrative Weekly, projected a need for 94 additional nursing home beds in Hillsborough County, District 6, Subdistrict 1, for the January 1997 planning horizon. There is no evidence that this fixed need pool was challenged. Approximately eleven health care providers, including St. Joseph’s, responded to the fixed need pool notice with applications for CON’s ranging from 10 to 94 beds. Some of those applicants, like St. Joseph’s, were hospitals seeking hospital- based skilled nursing beds. After comparative review of the applications, AHCA issued its state agency action report (SAAR) on September 16, 1994, denying some and granting others, and explaining the basis for its intended actions. Some of the beds were awarded for a hospital-based skilled nursing unit; St. Joseph’s application for 24 in-hospital beds was denied in the comparative review that determined St. Joseph’s application was inferior to others in meeting statutory and rule criteria. The applicants’ petitions for formal hearing were forwarded to the Division of Administrative Hearings by AHCA and were consolidated in a single proceeding relating to the 94 beds in District 6, Subdistrict 1. On October 19, 1995, during the pendancy of appeal of the DOAH Final Order in Tarpon Springs, all of the parties in the consolidated cases executed and filed a stipulation which disposes of 93 out of the 94 available beds in the fixed need pool. The stipulation provides that all of the applicants, except St. Joseph’s, withdrew their petitions for formal hearing. As to St. Joseph’s, the stipulation provides: St. Joseph’s has previously withdrawn its opposition to the applications of all other parties to this proceeding by its Notice of Voluntary Dismissal of Petitions for Administrative Hearing and Notice of Lack of Opposition, dated September 13, 1995. St. Joseph’s and AHCA stipulate that Case No. 94-6236, wherein St. Joseph’s challenged the denial of its application for certificate of need 7750 to add 24 skilled nursing unit beds, should be held in abeyance pending the final judicial determination of Tarpon Springs Hospital Foundation, et al. v. Agency for Health Care Administration, et al. (Proceeding below DOAH Case Nos. 94-0958RU and 94-1165RU, reported at 16 FALR 3420, presently on appeal before the First District Court of Appeal). St. Joseph’s acknowledges that the terms of this settlement will deplete the fixed bed need pool determined to be available for this application cycle, assents to the same, and maintains its position that its application should be approved notwithstanding the lack of availability of community nursing home beds within the fixed bed need pool. All other parties to this agreement except for AHCA hereby withdraw their petitions filed in this proceeding in opposition to the application of St. Joseph’s for certificate of need 7750 and waive any challenge or protest that they may have to the issuance of certificate of need 7750. St. Joseph’s hereby agrees not to oppose the transfer of up to seven (7) beds from this application cycle to TGH. After remand of all of the consolidated cases except St. Joseph’s (DOAH no. 94-6236), AHCA entered its final order on December 13, 1995, awarding CON’s for 93 beds to various of the applicants. Some of those 93 beds were awarded for hospital- based skilled nursing units. This final order depleted the fixed need pool of all but one bed. In their prehearing stipulation filed on August 29, 1996, AHCA and St. Joseph’s admitted these relevant facts: The appropriate planning area is Hillsborough County; The appropriate planning horizon for the application is January 1997. Rule 59C-1.036, Florida Administrative Code was appropriately used in determining the bed need for Hillsborough County, District 6, Subdistrict 1, for the first nursing home batching cycle of 1994; and The numbers used to derive the project pool of 94 beds in Hillsborough County, District 6, Subdistrict 1 for the January 1997 planning horizon were accurate and appropriate. At the hearing and in its proposed recommended order, St. Joseph’s concedes that it did not apply for beds under “not normal” circumstances. The Project St. Joseph’s proposes to establish a 24 bed, hospital- based skilled nursing unit in an area of its main hospital building by converting 24 acute care beds to this use. The project involves 19,600 square feet of renovation at a total project cost of $684,731, including conversion costs of $331,940. Actual out-of-pocket costs for the project are $352.791. The skilled nursing beds within the hospital facility are intended to contribute to St. Joseph’s goal of providing a full continuum of care for its patients, with services provided at different levels for a medically-appropriate and cost- effective outcome. St. Joseph’s anticipates that the patient using the skilled nursing (also called “subacute care”) unit would be one coming from the acute care setting and requiring less-acute care, but a more intensive level of care and a shorter length of stay than generally offered in a typical nursing home. All ancillary services and therapies will be available at the hospital seven days a week. Rehabilitative services, which are critical to the patient likely to use the skilled nursing beds, include physical therapy, occupational therapy, speech and language therapy, and recreation therapy. Need Analysis/Impact on Existing Programs Virtually all of the referrals to the proposed new beds will come from within St. Joseph’s. This is the experience of the new 19 bed unit. The hospital’s doctors and their patients prefer to not transfer to an outside facility and they plan in advance, as part of their treatment goals, that the subacute rehabilitative phase of treatment will be in St. Joseph’s own skilled nursing unit. The multi-discipline health care team evaluates and identifies patients who will benefit from such treatment; patients are not automatically shifted down to the unit. The existing unit enjoys a near-100 percent occupancy rate and has a waiting list for patients. Sometimes patients are held in an acute care bed while awaiting transfer to a vacant bed in the skilled nursing unit. This is an inappropriate use of the acute care bed. Few, if any patients would come from other hospitals. Since many hospitals now have their own skilled nursing units, there is little exchange of patients. In the experience of St. Joseph’s staff, other hospitals generally fill their own units from within in their own “continuum of care” system. John Knox Village is not an alternative for patients who need to “step-down” from acute to subacute care. John Knox is eleven miles from St. Joseph’s and does not provide the intensity of care that is offered in the hospital-based skilled nursing unit. There are subacute care, or skilled nursing care, beds in Hillsborough County in free-standing, not hospital-based units. These alternative facilities are not all fully occupied and some offer similar services and treat patients comparable to those treated in the hospital-based units. Evidence that the free-standing skilled nursing facilities are not appropriate alternatives to St. Joseph’s new beds was largely anecdotal. Although Dr. Wasylik, St. Joseph’s chief of orthopedics, is generally familiar with facilities in which he has patients, his observation that transfer of patients from St. Joseph’s would not be appropriate is based on his concern that the “continuity of care” would be disrupted. In other words, even before surgery and admission to an acute care bed, a “critical pathway” in the patient’s rehabilitation is developed. Another facility might have a different pathway that would disrupt the rehabilitative process. Better continuity of care, in Wasylik’s view, translates into quicker, and thereby more cost-effective, recovery. Financial Considerations Although the agency found some inconsistencies in the financial data included in St. Joseph’s application, those inconsistencies affected only the scoring of the application in a competitive batching cycle. The agency witness who provided financial review of the application conceded there was no problem with funding the project, and due to the small size of the project in relation to the size of St. Joseph’s, the project would not have a significant impact on the cost of other services provided by St. Joseph’s. The proposed project would generate a positive financial return for St. Joseph’s. In the proforma financial statement included with the application, the hospital used an occupancy rate of 74%; the actual occupancy rate experienced in the new 19 bed unit is higher. Some of the problems the agency found when reviewing St. Joseph’s application were adequately explained at hearing. For example, the actual cost of the project is less than what the agency found in the financial projections in the application. Also, if, as the agency contends, St. Joseph’s has over-stated its projection of Medicaid patients, a lower Medicaid utilization rate will actually inure to the benefit of St. Joseph’s, since the Medicaid reimbursement rate is lower than for other payor sources. While not obvious on the face of the application, the financial assumptions provided by St. Joseph’s were sufficient to extrapolate valid projected salary expenses in the second year of operation. In summary, a CON application, by necessity, includes estimates and projections of expenses and revenue generated by the proposed project. St. Joseph’s now has the experience, which it did not have when the application was prepared, of the actual expenses and revenue from its 19 bed unit. That actual experience helps validate its prediction of financial feasibility for the proposed 24 beds. Architectural Issues At hearing, St. Joseph’s clarified its intent to not delicense nor relocate acute care beds to make room for the proposed 24 bed skilled nursing unit. Nor does it intend to “phase in” the skilled nursing beds, if approved. Neither of these intentions is clear from the face of the application and the architectural review by the agency raised questions on these issues. The questions affected St. Joseph’s overall standing in a competitive review process, but are not serious enough to foreclose approval if the application is considered on its own merit. The application states that the new beds would be co- located with the existing 19 beds. But if there is not sufficient room, as long as St. Joseph’s can accomplish the project at or below the approved project cost, and as long as St. Joseph’s obtains agency approval for placing the beds elsewhere (which approval is routinely granted), the precise location of the beds within St. Joseph’s facility is not a problem. The beds may not, nor are they intended to be, co-mingled with acute care beds in the hospital. Upon construction, the 24 beds will meet all of the licensure, building code and other regulations applicable to a skilled nursing unit within an acute care hospital. Balancing the Criteria and Summary of Findings There is little dispute that St. Joseph’s has the financial resources to complete the approved project and to operate it successfully. Nor is quality of care, either in the existing facility and projected in the future, an issue of dispute. The questions raised in the financial review and architectural review are not impediments to approval. There are two significant problems with St. Joseph’s proposal. St. Joseph’s serves the entire planning district, and the impact of new beds must be considered in that district-wide health-planning perspective. St. Joseph’s generates enough patients from within its own hospital to fill the beds close to capacity. Other facilities providing similar services in the district are not at full capacity. The possibility of those existing facilities serving as an alternative to new beds was not adequately explored by St. Joseph’s, but was rejected out of an abundance of pride in its own fine services, or physician and patient loyalty. Patient and physician preference does impact “real world” utilization of health care facilities but cannot drive the health planning decisions that are made in the CON process. The second, and most significant impediment to St. Joseph’s application is that only one bed remains in the fixed need pool established for the relevant planning horizon. As discussed below, Tarpon Springs did not invalidate that fixed need pool. St. Joseph’s application does not reflect a willingness to accept any fewer than the requested beds, much less an award of only one single bed. (See, Respondent’s Exhibit 12, CON application, p. 34)
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: that the Agency for Health Care Administration enter its final order denying CON number 7750 to St. Joseph’s Hospital, Inc. DONE and ENTERED in Tallahassee, Leon County, Florida, this 23rd day of January 1997. MARY CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of January, 1997. COPIES FURNISHED: Ivan Wood, Esquire Baker & Hostetler Suite 2000 100 Louisiana Houston, Texas 77002 Steven A. Grigas, Esquire Agency for Health Care Administration Building 3 2727 Mahan Drive Tallahassee, Florida 32308-5403 Sam Power, Agency Clerk Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308-5403 Jerome W. Hoffman, Esquire General Counsel 2727 Mahan Drive Tallahassee, Florida 32308-5403
Findings Of Fact Venice Hospital, a general acute care hospital offering 342 medical/surgical beds and 30 bed's for general psychiatric care, services a population of approximately 110,000 people in Southern Sarasota and Northern Charlotte Counties. Approximately 80% of its patients are covered by Medicare. This figure being higher than average, puts it somewhere in the top 5% of Medicare providers in Florida. The hospital's services are concentrated on geriatric patients and it is developing several programs devoted to that type of patient. It has recently received approval for nursing home development and operates a home health agency. Missing from the geriatric spectrum of services is the hospital based skilled nursing facility, (SNF), which is the subject of this action. Sarasota County currently has four med/surg hospitals, including Petitioner which is the only hospital in the Venice area. Petitioner has a licensed psychiatric unit which operates under separate rules and which is licensed separately but within the hospital cycle. The patients which are treated in that unit are of a different demographic make up than those treated in the med/surg beds and the staff which treats them is different. Petitioner completed a study of the potential need for SNF beds in the hospital which led to the conclusion being drawn by it that this service should be established. Mr. Bebee's review of the applicable rules and statutes indicated to him that the hospital could elect to designate a special care unit within the hospital without even having to go through Certificate of Need, (CON), review. A letter was submitted by the hospital to the Department on February 8, 1990, asking for an exemption from CON review for that project. Because no response to that letter was forthcoming, and because the hospital review cycle was fast coming up, on February 22, 1990, Mr. Bebee submitted a LOI to the Department seeking to convert 42 med/surg beds to a hospital based SNF facility at a cost of $310,000.00. After the LOI was sent, on February 26, 1990, Ms. Gordon-Girvin, on behalf of the Department, responded by letter to Bebee's inquiry letter, indicating the CON review process was a necessary part of the process for Petitioner's facility, but that the LOI and application should be filed in the next nursing home batching cycle by April 30, 1990. Shortly thereafter, by letter dated March 13, 1990, Ms. Gordon-Girvin rejected the LOI which Petitioner had submitted in the hospital cycle since, according to the Department, it was properly "reviewable under the nursing home review cycle rather than the hospital review cycle." Notwithstanding that rejection, and understanding the Department's position as to which cycle was appropriate, on March 26, 1990, Petitioner submitted its CON application for this project, modified to seek only 36 beds. By undated letter, the envelope for which was postmarked April 16, 1990, Ms. Gordon-Girvin declined to accept that application for the same reason she had rejected the LOI. Petitioner has since filed a CON application for the same project in the current nursing home cycle, on a nursing home application form. It did this to keep its options open but considers that action as being without prejudice to the application at issue. Though numerical bed need is not in issue in this proceeding, a brief discussion of general need is pertinent to an understanding of why Petitioner has applied for approval of this project. Petitioner is of the opinion that SNF beds within the hospital setting will provide better care for the patients than could be provided in a nursing home. Many of the patients in issue are receiving intravenous applications of medicines; taking antibiotics; require orthopedic therapy; or are in respiratory distress calling for ventilator or other pulmonary procedures. These patients need a continuing level of nursing care on a 24 hour basis but no longer qualify for a hospital continued length of stay. Petitioner currently has and is taking care of such patients in the facility, but would like to do so in a more organized, systematic manner which could be accomplished in a hospital based SNF. In addition, reimbursement rules dictate that patients no longer needing full hospital care but who remain in the hospital, become, in part, a cost to the hospital because no meaningful reimbursement is received for thatlevel of care. They would qualify for Medicare reimbursement, however, if the unit were designated and certified as a SNF. Medicaid does not recognize these beds as reimbursable because they are in a hospital. Certification for the hospital based SNF would be through the Health Care Financing Administration, (HCFA), and the Medicare program. To secure this certification, the hospital based unit would have to be a distinct part of the facility and not merely consist of beds scattered throughout the facility. Once certified, the unit is not referred to as a nursing home by HCFA or Medicare, but is classified as a hospital based unit. Because Petitioner sees this as a hospital project - a service that the hospital would be providing under its license, it chose to file for the approval in the hospital cycle rather than in the nursing home cycle. Bebee is familiar with the certification process for both hospitals and nursing homes. The latter is a lengthier process and is substantially different from that used for hospitals. In his opinion, it does not give the hospital based applicant the opportunity to properly justify the approval of a hospital based SNF since it deals more with the requirements of a community based facility. The nursing home form is highly structured whereas the hospital form makes it easier to identify and supply the appropriate supporting information for the project applied for. Further, Bebee does not consider the hospital based SNF bed in the same context as a community nursing home bed. The type of patient is not the same nor are the resources required to treat that patient. Petitioner has purchased a CON to construct a 120 bed community nursing home within the Venice area which will have some SNF beds in it. Nonetheless, because of the basic difference between the services, it still plans to pursue the hospital based SNF. A Florida Hospital Association study concluded that SNF in hospitals are different and there is a lack of this type of service in the hospitals throughout the state. This study, dated May, 1989, at Page 5 reads: Conversion of hospital beds to nursing home beds could improve the financial viability of hospitals, reduce purchasers' and consumers' health costs, and improve access to care for patients requiring higher levels of nursing care, [if they are needed and meet quality care requirements]. Bebee also points out that if this project is considered in the nursing home cycle rather than in the hospital cycle, it would result in a hospital competing with nursing homes which are seeking a different type of bed - community versus SNF. Current community nursing home bed need is set at 0. Petitioner's nursing home cycle application was filed under the "not normal circumstances" provision, but there may still be substantial contest. This type of litigation, he believes, adds unreasonably and unnecessarily costs and is a resultant financial burden to the hospital. Mr. Balzano, a health care consultant and Petitioner's other expert, confirmed and amplified the substance of Mr. Bebee's thesis. He compared hospital based SNFs with those in community nursing homes and found notable differences aside from the statutes and rules governing each. Petitioner's current beds are controlled under Chapter 395, Florida Statutes, and Rule 10D- 28, F.A.C. If some were converted to SNF beds under the pending application, they would still fall under the purview of that statute and rule. On the other hand, community nursing home SNF beds would be controlled by the provisions of Chapter 400, Florida Statutes, and Rule 10D-29, F.A.C. There is a substantial difference between them. Other differences are: Patients in hospital based SNF beds generally have greater nursing requirements than those in SNF beds in community nursing homes. Staffing in hospital based SNF is generally higher than in free standing nursing homes. The average stay is shorter in a hospital based SNF. Patients are not there for continuing care but for restorative care. The size of a hospital based SNF unit is generally smaller than that in a free standing unit. Costs are usually greater in a hospital based SNF unit reflecting the greater needs of the patient. Therefore, reimbursement is generally higher. Health services in the different systems are different and a comparative review would be difficult. The questions in the different application forms reflect a different approach and in the nursing home application, relate to residential type care. This is not the case in the hospital form. Costs relating to the use of an existing facility would be cheaper for the hospital based unit when compared with building a new nursing home facility. However, the costs of hospital construction are usually higher than nursing home construction though the quality of construction is generally better. The operating costs for the more complex services provided in a hospital based unit are higher and Petitioner would have trouble competing if reimbursement were based on the classification as a nursing home. Higher staffing levels and higher staffing costs in a hospital based facility would act in disfavor of that facility. The state generally looks with greater favor on projects for Medicaid patients. Hospital based units are not oriented toward that group and would, therefore, not be given the same consideration, as would be a nursing home which catered to Medicaid patients. The type of patient, (residential vs. subacute) has an impact. The hospital based unit provides treatment to the more acutely ill patient. SNF patients who need that higher degree of care would get it better at a hospital based facility which has greater resources to meet patient needs. Mr. Balzano feels it is unfair to compare the two types of properties. The differences in the programs would have an impact on the issue of need when comparative review is done. A SNF in the hospital setting is different but would be compared, if the nursing home cycle were used, against the total pool of community nursing home beds even though the patients are different and their need for services are different. Need methodology looks at historical utilization. Hospital based SNF patients turn over more frequently than do community nursing home patients and the occupancy level is not as high in the hospital based setting. This would bring the average occupancy rate in an area down and could affect the need for community beds across the board. It is also noted that hospital based SNF beds would not be appropriate to house community nursing home patients who could not be accommodated in a nursing home, and vice-versa. SNF patients could normally not be appropriately treated in a community nursing home because of their greater needs. If compared in a batched review, however, they would be considered together without that distinction being made. Since all other hospital services are reviewed under the provisions of Chapter 395 parameters as hospitals, Balzano sees it as inconsistent to review hospital based SNF beds under the nursing home criteria. He can find no statutory or rule provision requiring this. The Department has drafted a proposed rule on the subject but that proposal is presently under challenge. Further, Medicare considers hospital based SNF beds and community nursing home based SNF beds as different entities with the hospital based beds earning a higher reimbursement ceiling due to the increased services and the different type of patient. According to Mr. Balzano, in Florida, hospital based SNF beds account for 1/2 of 1% of all hospital beds. Nationwide the figure is 4%. Balzano feels this is because in Florida there is no criteria to judge need against and therefore these beds are compared to all nursing home beds. He considers this wrong, especially in a state where there is such a high percentage of elderly patients. It is, in his opinion, poor health planning, and when compared against other nursing homes, the hospital based SNF unit will always be at a disadvantage. The testimony of Ms. Sharon Gordon-Girvin, Director of the Department's Office of Community Health Services and Facilities, reveals the Department's rationale in its rejection of the Petitioner's LOI for the instant project and the subsequent return of its application. The application was rejected because there was no underlying LOI for the project. The LOI was initially rejected as having been filed in an inappropriate cycle, (hospital). The Department's policy, calling for applications for all extended care or hospital based skilled nursing facility beds to be filed in a nursing home batching cycle has been in place for an extended period going back before 1984. The Department looks at extended care beds and SNF beds as somewhat equivalent but different. The designation of extended care facility beds initially used by HCFA, (Medicare), in hospital situations is no longer applicable. Now, Medicare recognizes SNF beds in hospitals, but does not distinguish them from other types of hospital based beds. The service is considered the same and the patients must meet identical admissions criteria. The reasons relied upon by the Department, from a health planning standpoint, for reviewing applications for hospital based SNF beds in the nursing home cycle are: Medicare conditions of service and admission criteria are the same, and The State nursing home formula rule projects a need for all nursing home beds, (SNF and ICF) , and does not differentiate between type. Providers compete for the beds, not where they will be used or under what conditions. The mere need for special treatment such as ventilators or intravenous antibiotics is not controlling. If the patient does not need the acute care provided to hospital acute care patients, since a "subacute" status is no longer recognized by the state, it is the Department's position that that patient should be in intermediate care status. This position is incorporated in the Departments proposed rule which is currently under challenge. It had been elucidated, however, in both the 1988 and 1990 editions of HRSM 235-1, relating to Certificates of Need, where at section 9-5 in both editions the text reads: 9-5 Skilled Nursing Unite in Hospitals. Beds in skilled nursing units located in hospitals will be counted in the nursing home bed inventory, even though they retain their licensure as general medical surgical beds. In addition, the Florida State Health Plan for 1989 and for each year since 1984, has counted hospital based SNF beds in the nursing home bed inventory. The parties stipulated to that point. Ms. Gordon-Girvin admits that it is sometimes difficult for an applicant to apply for hospital based SNF beds on a nursing home application for, but claims that is as it should be. She asserts that the patients are the same, (disputed), and since, she claims, a hospital cannot provide the same services that a full service nursing home could provide, the applicants should be differentiated on the basis of services rather than patient category to justify the additional cost inherent in the hospital based setting. In short, she believes the current situation is appropriate since it requires the applicant, a hospital, to look more carefully at the terms and conditions of the services to be provided. In so far as this results in health care cost savings, her position is accepted. She also contends that the Florida Hospital Association study relied upon by Petitioner to support its position that hospital based SNF bed applications for distinct units cannot compete fairly against nursing homes in a comparative CON review, is not pertinent here considering it was prepared to examine an excess of hospital bed inventory and possible alternative uses as income sources. Regardless of the purpose of the study, absent a showing that it is unreasonably slanted or biased, its conclusions have not been successfully rebutted. Ms. Gordon-Girvin also contends that the low percentage of hospital based SNF beds as compared to total hospital beds is a positive result of the state's efforts to reduce costly services in favor of less costly alternatives. The Department has the exclusive charter to determine which services are to be reviewed and how the review is to be conducted. Even if the proposed rule formalizing the procedure questioned here is stricken, the policy currently being utilized by the Department would still be valid and appropriate. Psychiatric, substance abuse, and rehabilitation beds in hospital inventories are considered distinct from acute care beds, but are still classified as hospital beds because there are no reasonable alternatives for treatment of those conditions. With regard to those patients using hospital based SNF beds, however, the Department claims there is an alternative, the community nursing home based SNF beds. In further support of the Department's position, Amy M. Jones, the Department's Assistant Secretary for Health Care Facilities and an expert in facility licensing and certification in Florida, pointed our that the Department treats hospital based SNF beds and community nursing home SNF beds the same because: conditions of participation are the same and the Department wants to look at and compare similar activities in the same cycle, and pertinent statutes and rules both provide for comparison of similar beds and similar services. Section 395.003(4), Florida Statutes, defines the various types of hospital beds as psychiatric, rehabilitative, and general medical/surgical acute care beds regardless of how they are used. The HCFA Conditions of Participation call for certification of SNF beds as either a distinct part of another facility or as a free standing facility. The agency regulations, as outlined in The Federal Register for February 2, 1989, outlines the requirement that SNF beds in a hospital be surveyed just as are community nursing home SNF beds. Taken as a whole, it would appear that both federal and state regulatory agencies look at SNF beds, regardless of where located, as an integral part of a nursing home operation as opposed to a hospital operation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered by the Department affirming its rejection of the Petitioner's Letter of Intent and CON application for the conversion of medical/surgical beds to SNF beds filed in the hospital batching cycle. RECOMMENDED this 30th day of August, 1990, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of August, 1990. APPENDIX TO RECOMMENDED ORDER IN CASES NOS. 90-2738 & 90-3575 The following constituted my specific rulings pursuant to S 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: Not a proper Finding of Fact. Accepted and incorporated herein as it relates to Petitioner's filing of the LOI and the CON application. The balance is background information and is not a proper Finding of Fact. 3.-6. Accepted and incorporated herein. Not a proper Finding of Fact but a statement of party position. Accepted and incorporated herein except for first sentence. Accepted and incorporated herein. Accepted. Accepted. &13. Accepted and incorporated herein. 14.&15. Accepted. Accepted and incorporated herein. Accepted and incorporated herein. 18.-21. Accepted. Not a Finding of Fact but merely a restatement of the testimony. Accepted and incorporated herein. Accepted and incorporated herein. &26. Accepted and incorporated herein. Accepted. &29. Not a Finding of Fact but argument and a restatement of testimony. Not a Finding of Fact but argument. Not a Finding of Fact but a comment on the evidence. Accepted. Recitation of the witnesses testimony is accurate, but the conclusion drawn does not necessarily follow. Frequency of use does not necesarily determine the finality of the policy. Not a Finding of Fact but a comment on the evidence. Accepted as a presentation of the contents of the document. Accepted. Accepted as represented. 38.-40. Accepted and incorporated herein. 41. Accepted as a restatement of testimony. 42.&43. Accepted. Accepted. &46. Accepted. Accepted. Accepted. FOR THE RESPONDENT: 1.&2. Accepted and incorporated herein. 3. Accepted. 4.-6. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. COPIES FURNISHED: Richard A. Patterson, Esquire Department of Health and Rehabilitative Services 2727 Mahan Drive - Suite 103 Tallahassee, Florida 32308 Jeffery A. Boone, Esquire Post Office Box 1596 Venice, Florida 34284 Linda K. HarSris General Counsel DHRS 1323 Winewood Blvd. Tallahassee, Florida 32399-0700 Sam Power Agency Clerk DHRS 1323 Winewood Blvd. Tallahassee, Florida 32399-0700
The Issue The issues are thus whether the acts and omissions charged occurred, whether they constitute violations of Section 400.022(1)(j) and 400.141, Florida Statutes, and related rules, and whether an administrative fine is appropriate pursuant to 400.102(c) and Section 400.121, Florida Statutes. Upon the commencement of the hearing, the petitioner moved to amend paragraph 8 of its Complaint, so that the date "March 4" would read March 14." The motion was granted on the basis that there was only a clerical error involved and paragraph 8 correctly alleges that there-was a nursing staff shortage from February 20 to March 14, 1980. Eight witnesses were called by the Petitioner, and two by the Respondent. Ten exhibits were adduced as evidence. The Respondent has submitted and requested rulings upon ninety-five proposed findings of fact. In that connection, all proposed findings, conclusions, and supporting arguments of the parties have been considered. To the extent that the proposed findings and conclusions submitted by the parties, and the arguments made by them, are in accordance with the findings, conclusions and views stated herein they have been accepted, and to the extent such proposed findings and conclusions of the parties, and such arguments made by the parties, are inconsistent therewith they have been rejected.
Findings Of Fact Manhattan Convalescent Center is a nursing home facility located in Tampa and licensed by the Department of Health and Rehabilitative Services. On January 22, February 20, February 25, March 3, March 6, and March 14, 1980, a number of Department employees representing the Department's medical review team, and the Office of Licensure and Certification, consisting of registered nurses, hospital consultants and Department surveillance team members, made inspections of the Respondent's facility for the purpose of ascertaining whether the premises, equipment and conduct of operations were safe and sanitary for the provision of adequate and appropriate health care consistent with the rules promulgated by the Department and whether minimum nursing service staff standards were being maintained. Thus, on January 22, 1980 a member of the medical review team, witness Maulden, observed a rat run across the floor in one of the wings of the nursing home facility. On February 20, Muriel Holzberger, a registered nurse and surveyor employed by the Petitioner, observed rodent droppings in one of the wings of the facility and on February 20, March 12 and March 14, 1980, numerous roaches were observed by various employees of the Department making inspections throughout the facility. On February 20, 1980 strong urine odors were present on the 200, 300 and 400 wings of the facility as well as in the lobby. The odor was caused by urine puddles under some patients' chairs in the hallway, wet sheets, and a spilled catheter. On February 20 and 25, 1980 the grounds were littered with debris and used equipment, the grass and weeds on the grounds needed cutting and there was a build up of organic material, food spills and wet spots on the floors. The Respondent's witness, Ann Killeen, as well as the Petitioner's hospital consultant, Joel Montgomery, agreed that a general state of disrepair existed at the Respondent's facility, consisting of torn screens, ill fitting exterior doors with inoperative or missing door closers and missing ceiling tile. Interior and exterior walls were in need of repair and repainting. Additionally, eleven bedside cords for the nurse paging system were cut, apparently by patients, and on February 25, 1980, a total of 36 nurse paging stations were inoperative. A substantial number of these cords were cut by a patient (or patients) with scissors without the knowledge of the Respondent and steps to correct the condition were immediately taken. On January 22, 1980 Petitioner's representatives, Mary Maulden and Alicia Alvarez, observed a patient at the Respondent's facility free himself from physical restraints, walk down the hall and leave the facility. A search for nursing staff was made but none were found on the wing. After three to five minutes the Assistant Director of Nurses was located and the patient was apprehended. Nurse Alvarez's testimony revealed that the Respondent's nursing staff was in and out of, and working in that wing all that morning except for that particular point in time when the patient shed his restraints and walked out of the facility. On March 3, 1980 Department employee, William Musgrove, as part of a surveillance team consisting of himself and nurse Muriel Holzberger, observed two patients restrained in the hall of the facility in chairs and Posey vests, which are designed to safely restrain unstable patients. The witness questioned the propriety of this procedure, but could not establish this as a violation of the Respondent's patient care policies required by Rule 10D-29.41, Florida Administrative Code. The witness reviewed the Respondent's written patient care policy required by that Rule and testified that their policy complied with it and that the policy did not forbid restraining a patient to a handrail in the facility as was done in this instance. The witness was unable to testify whether patients were improperly restrained pursuant to medical orders for their own or other patients' protection. A hospital consultant for the Department, Bill Schmitz, and Marsha Winae, a public health nurse for the Department, made a survey of the Respondent's facility on March 12, 1980. On that day the extensive roach infestation was continuing as was the presence of liquids in the hallways. On February 20, 1980 witness Joel Montgomery observed a lawn mower stored in the facility's electrical panel room which is charged as a violation in paragraph 3 of the Administrative Complaint. The lawn mower was not shown to definitely contain gasoline however, nor does it constitute a bulk storage of volatile or flammable liquids. Nurse Holzberger who inspected the Respondent's nursing home on February 20, February 25, March 3 and March 6, 1980, corroborated the previously established roach infestation and the presence of strong urine odors throughout the facility including those emanating from puddles under some patients' chairs, the soaking of chair cushions and mattresses and an excess accumulation of soiled linen. Her testimony also corroborates the existence of 36 instances of inoperative nurse paging devices including the 11 nurse calling cords which had been cut by patients. This witness, who was accepted as an expert in the field of proper nursing care, established that an appropriate level of nursing care for the patients in this facility would dictate the requirement that those who are incontinent be cleaned and their linen changed more frequently and that floors be mopped and otherwise cleaned more frequently. Upon the second visit to the facility by this witness the nurse call system had 9 paging cords missing, 11 cords cut, and 15 of the nurse calling devices would not light up at the nurses' station. This situation is rendered more significant by the fact that more than half of the patients with inoperative nurse paging devices were bedridden. On her last visit of March 6, 1980 the problem of urine puddles standing on the floors, urine stains on bed linen, and resultant odor was the same or slightly worse than on the two previous visits. An effective housekeeping and patient care policy or practice would dictate relieving such incontinent patients every two hours and more frequent laundering of linen, as well as bowel and bladder training. On March 6, 1980 controlled drugs were resting on counters in all of the facility's four drug rooms instead of being stored in a locked compartment, although two of the drug rooms themselves were locked. The other two were unlocked, but with the Respondent's nurses present. Ms. Holzberger participated in the inspections of March 3 and March 6, 1980. On March 3, 1980 there were no more than 14 sheets available for changes on the 4:00 p.m. to midnight nursing shift. On March 6, 1980 there were only 68 absorbent underpads and 74 sheets available for changes for approximately 65 incontinent patients. The unrefuted expert testimony of Nurse Holzberger established that there should be available four sheets for each incontinent patient per shift. Thus, on these two dates there was an inadequate supply of bed linen to provide changes for the incontinent patients in the facility. On March 6, 1980 Nurse Holzberger and Nurse Carol King observed 12 patients who were lying on sheets previously wet with urine, unchanged, dried and rewet again. This condition is not compatible with generally recognized adequate and appropriate nursing care standards. Incontinent patients should be examined every two hours and a change of sheets made if indicated. If such patients remain on wet sheets for a longer period of time their health may be adversely affected. On March 6, 1980 these same employees of the Petitioner inspected a medical supply room and found no disposable gloves, no adhesive tape, no razor blades and one package of telfa pads. There was no testimony to establish what the medical supply requirements of this facility are based upon the types of patients it cares for and the types and amounts of medical supplies thus needed. The testimony of Robert Cole, the facility's employee, who was at that time in charge of dispensing medical supplies, establishes that in the medical supply room (as opposed to the nurses' stations on the wings) there were at least six rolls of tape per station, 50 razors, four boxes or 80 rolls, 300 telfa pads and 200 sterile gloves. Nurses Holzberger and King made an evaluation of the Respondent's nurse staffing patterns. Ms. Holzberger only noted a shortage of nursing staff on February 24, 1980. Her calculations, however, were based on an average census of skilled patients in the Respondent's facility over the period February 20 to March 4, 1980 and she did not know the actual number of skilled patients upon which the required number of nursing staff present must be calculated on that particular day, February 24, 1980. Further, her calculations were based upon the nurses' "sign in sheet" and did not include the Director of Nurses who does not sign in when she reports for work. Therefore, it was established that on February 24 there would be one more registered nurse present than her figures reflect, i.e., the Director of Nurses. Nurse King, in describing alleged nursing staff shortages in the week of March 7 to March 13, 1980, was similarly unable to testify to the number of skilled patients present on each of those days which must be used as the basis for calculating required nursing staff. She rather used a similar average patient census for her calculations and testimony. Thus, neither witness for the Petitioner testifying regarding nursing staff shortages knew the actual number of patients present in the facility on the days nursing staff shortages were alleged. In response to the problem of the roach infestation, the Respondent's Administrator changed pest control companies on March 26, 1980. The previous pest control service was ineffective. It was also the practice of the Respondent, at that time, to fog one wing of the facility per week with pesticide in an attempt to control the roaches. Further, vacant lots on all sides, owned and controlled by others, were overgrown with weeds and debris, to which the witness ascribed the large roach population. The problem of urine odors in the facility was attributed to the exhaust fans for ventilating the facility which were inoperable in February, 1980. She had them repaired and, by the beginning of April, 1980 (after the subject inspections), had removed the urine odor problem. The witness took other stops to correct deficiencies by firing the previous Director of Nurses on March 14, 1980, and employing a new person in charge of linen supply and purchasing. A new supply of linen was purchased in February or March, 1980. The Respondent maintains written policies concerning patient care, including a provision for protection of patients from abuse or neglect. The Respondent's Administrator admitted existence of the torn screens, broken door locks, missing ceiling tiles and the roach infestation. She also admitted the fact of the cut and otherwise inoperable nurse paging cords in the patients' rooms, but indicated that these deficiencies had been repaired. The various structural repairs required have been accomplished. All correction efforts began after the inspections by the Petitioner's staff members, however.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the candor and demeanor of the witnesses, and the evidence in the record, it is RECOMMENDED that for the violations charged in Counts I, II, IV, VI, IX and X of the Administrative Complaint and found herein to be proven, the Respondent should be fined a total of $1,600.00. Counts III, V, VII and VIII of the Administrative Complaint should be dismissed. DONE AND ENTERED this 31st day of March, 1981 in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 1981. (904) 488-9675 COPIES FURNISHED: AMELIA PARK, ESQUIRE JANICE SORTER, ESQUIRE W. T. EDWARDS FACILITY 4000 WEST BUFFALO AVENUE, 4TH FLOOR TAMPA, FLORIDA 33614 KENNETH E. APGAR, ESQUIRE EDWARD P. DE LA PARTE, JR., ESQUIRE 403 NORTH MORGAN STREET, SUITE 102 TAMPA, FLORIDA 33602
Findings Of Fact "Whispering Pines" has been a long term geriatric nursing facility located in Starke, Florida, last remodeled in 1985. It was originally constructed and owned by J. D. Griffis and George Grosse, white male entrepreneurs who operate and have operated, individually and jointly, a number of enterprises. One of the other enterprises operated by J. D. Griffis and George Grosse is G & G Construction Company. Still another enterprise is the Lawtey Apartment Complex, located in Lawtey, Florida. G & G Construction Company was utilized to build part of "Whispering Pines" and to build the Lawtey Apartment Complex. Pre-1985, G & G Construction Company was headed on a day to day basis by Joe McCorkle, a white male. At some point, J. D. Griffis and George Grosse prevailed on Mr. McCorkle to undertake administration of "Whispering Pines," and Mr. McCorkle did so, acquiring his Florida nursing home administrator's license in 1988. Mr. McCorkle's managerial forte' with "Whispering Pines" was financial administration and construction, as opposed to having a professional background in, or commitment to, modern health care. He served as "Whispering Pines'" nursing home administrator until June 30, 1991. During Mr. McCorkle's tenure, "Whispering Pines" was legally organized under the name "Starke Nursing Home d/b/a Whispering Pines Care Center," with J. D. Griffis and George Grosse holding various corporate offices. Carl Hamm, Petitioner herein, is a black male. Petitioner was employed as a certified nursing assistant (CNA) at "Whispering Pines" beginning in 1980. Although Petitioner had no formal maintenance training in construction, plumbing, electrical repair, generators, heaters, air conditioning, or mechanical repair, he had gained a little "hands on" experience in these maintenance specialties through summer jobs while in high school and from "following behind" family members and friends who did that sort of work. He had a little informal training on electrical boards. Mr. McCorkle recognized that Petitioner had some mechanical talent. Mr. McCorkle took a liking to Petitioner and gave him odd jobs around the Lawtey Apartment Complex. Petitioner was particularly helpful with regard to the apartments' sewage treatment facility, and Joe McCorkle, J. D. Griffis, and George Grosse were effusive in their praise of Petitioner on at least one occasion when Petitioner's knowledge and ability to install one type of part in the apartment's sewage treatment filter system eliminated the cost of an expert engineer and high environmental agency fines. Petitioner thereby got to know J. D. Griffis and George Grosse in both locations as "owners." While Petitioner was still a CNA, Mr. McCorkle also began to use Petitioner for odd jobs relating to maintenance around "Whispering Pines." In all non-routine maintenance work at Whispering Pines, Mr. McCorkle either showed Petitioner what to do, assisted him in doing the repair or maintenance job, or performed some of the work himself. Mr. McCorkle's administrative style blurred the lines of ownership, responsibility, and job duties of the various employment entities. For instance, when Petitioner worked on sewage treatment at the Lawtey Apartment Complex and then arrived late to his shift as a CNA at "Whispering Pines" because he had to go home to clean up and change, Mr. McCorkle ignored complaints from the "Whispering Pines" nursing staff regarding Petitioner's tardiness. As a result, Petitioner never appreciated the changes in ownership and legal responsibility, authority, and liability that occurred later. Duke Archer, a white male, was "maintenance supervisor" at "Whispering Pines" for three years. Effective April 1, 1990, Mr. Archer left "Whispering Pines" to accept a better paying job. At the direction of Mr. McCorkle, Mr. Archer trained Petitioner in the "maintenance supervisor" duties for approximately one month before he left. Mr. Archer testified credibly on behalf of Petitioner that based on Petitioner's training by him Petitioner should have understood the paperwork involved in being a maintenance supervisor and that, according to HRS' rules governing minimum maintenance experience, Petitioner would have been able to handle the day-to-day maintenance work at "Whispering Pines." Mr. Archer qualified this testimony by adding that a hiring requirement of two to three years of "hands on" maintenance experience would be a reasonable hiring requirement by "Whispering Pines." The company that Mr. Archer currently works for has a hiring requirement of three years' maintenance experience in a nursing home. Mr. McCorkle gave Petitioner the title, "maintenance supervisor" of "Whispering Pines" effective April 1, 1990. He paid Petitioner accordingly, even though Petitioner had had less than two years' maintenance experience at that time. Approximately September 1990, an employee newsletter referred to Petitioner by the title of "maintenance supervisor" and stated he had been promoted in March. Thereafter, Mr. McCorkle and Petitioner held Petitioner out to be "the maintenance supervisor." Most people who were called upon to deal with Petitioner in or out of the facility assumed Petitioner was in charge of maintenance and that he directed at least two, possibly three, other full-time employees with regard to maintenance duties. At no time, however, did Mr. McCorkle process any paperwork showing Petitioner as "director of maintenance" or as a "department head." At no time did Petitioner believe he had authority to hire and fire. Mr. McCorkle promised Petitioner, who felt insecure about accepting what he perceived as the greater responsibilities of being "maintenance supervisor," that if the new position did not work out, Petitioner could have his old CNA job back without a cut in pay. This "safety net" arrangement also was not reduced to writing. Petitioner was personable and got along well with "Whispering Pines" staff and residents at this time. Mr. McCorkle continued to assist Petitioner with his maintenance duties and largely ignored complaints when Petitioner was tardy to work, delayed getting things repaired, or did not respond to his beeper on weekends, partly because he liked Petitioner and partly because he did not think he could hire someone else to do maintenance at the same rate of pay. Mr. McCorkle also adopted a policy of deferring certain repairs on a cost and time availability standard which showed up later in lower HRS ratings. Ruth Banks is a black female. She was a longtime competent housekeeping employee of "Whispering Pines." In 1990-1991, the housekeeping and laundry functions were under the supervision of the "Director of Environmental Services." When the position as "head of housekeeping" opened, Mr. McCorkle promoted Ms. Banks. Approximately April 1990, a new long term geriatric nursing facility was constructed in Starke, Florida. This facility was named "Windsor Manor." As a result of "Windsor Manor" being new and "state of the art," and due to problems associated with "Whispering Pines'" deteriorating HRS ratings, "Whispering Pines" began to lose both qualified staff and patients to the new facility. The loss of "Whispering Pines'" patient population affected its medicaid reimbursement rate and thus affected the owners' income. Mr. McCorkle was under pressure from J. D. Griffis and George Grosse to do something to upgrade "Whispering Pines." J. D. Griffis and George Grosse began trying to negotiate a sale of "Whispering Pines" in approximately June of 1990. Mr. McCorkle approached the problem of upgrading "Whispering Pines" by raiding "Windsor Manor" for all the qualified personnel he could get, starting with "Windsor Manor's" administrator, Barbara Brooks. Barbara Brooks is a white female with B.S.Ed. and M.S. degrees in allied health administration and an impressive record by education, training, and experience in care of addictive personalities, care of the elderly, mental health care, and health care administration at the federal, state, and local levels. She was the licensed and qualifying nursing home administrator for "Windsor Manor" from its opening in April 1990 until June 1991. Sometime during this period of time, J. D. Griffis and George Grosse negotiated a contract with a nursing home management company, Covenant Care out of Gainesville Florida. "Whispering Pines" began to be operated as a Covenant Care facility on June 11, 1991. Covenant Care was attuned to modern health care procedures and was essentially "run" by its President, Cap Wilson, who was also an attorney. The record is silent as to Mr. Wilson's race. Ms. Brooks was hired as "Whispering Pines'" administrator effective June 10, 1991. J. D. Griffis, George Grosse, and Cap Wilson agreed that Joe McCorkle could stay on as assistant nursing home administrator indefinitely but that Ms. Brooks would actually run the establishment, reporting to Cap Wilson. Joe McCorkle elected to retire effective June 30, 1991, but stayed on as assistant administrator from June 10 to June 30, 1991 to orient Ms. Brooks. Just before retiring, Mr. McCorkle gave Petitioner a $1.00 per hour raise to $8.00 per hour, without consulting the facility's owners. He simultaneously raised several other "Whispering Pines'" employees' salaries. When Ms. Brooks was introduced to the "whispering Pines" staff, she perceived that Joe McCorkle was very angry about the facility's owners turning over control to the management company. She also noted that of the fourteen people to whom she was introduced at least twelve were referred-to as "department heads." In her experience, these were extremely unusual titles and represented an unwieldy organization for modern, effective nursing home administration. Petitioner was introduced to her as a "department head." A "supervisor" is normally below a "department head." A "department head" does not usually require the same specialized "hands on" experience as a "supervisor." Ms. Brooks allowed Petitioner to continue to report at meetings as "maintenance supervisor" or "department head" until she was able to sort out what reforms she needed to make. Mr. McCorkle's exit interview with Ms. Brooks assessed Petitioner in pertinent part as follows: [Petitioner] "is supervisor of the maintenance dept ... is above average in his knowledge of mechanics and his approach in resolving problems. There are times he does need leadership. His basic problem is talking and procrastination. He is not inclined to total punctuality. He is slightly unorganized and at times is difficult to locate on weekends. " Mr. McCorkle's testimony at formal hearing was credible and unrefuted that this was his true opinion of Petitioner at that time, without any input from J. D. Griffis or George Grosse. Ms. Brooks' testimony is unrefuted that she also believed Mr. McCorkle's assessment of Petitioner without any input from anyone else. Even Petitioner admitted Mr. McCorkle's assessment of him was accurate. Shortly after Ms. Brooks became "Whispering Pines'" nursing home administrator, a white maintenance man and a black maintenance man resigned to take other jobs. That left Petitioner and John Tyler, a white man who did some maintenance work and sometimes worked in the kitchen, to do all the maintenance work. Petitioner did not consider John Tyler a qualified maintenance man, and neither did anyone else who testified. Petitioner repeatedly asked Ms. Brooks for additional helpers with better job skills. Petitioner was able to do whatever capsulated job he had seen a skilled technician do, but on new problems, he was unable to analyze what needed to be done and organize the doing of it so as to timely alleviate the problem. Petitioner and Mr. Tyler did not keep up with even the day-to-day mechanical repairs and maintenance requests of the "Whispering Pines" staff. Staff members wrote these day to day requests on clipboards posted in several geographic locations throughout the facility and dated them. When a task was completed, the maintenance person actually doing the repair was supposed to note the date the repair was completed beside the request on the clipboard. Petitioner was always days and pages behind on every clipboard. As of the date Mr. McCorkle retired, HRS was expected to return for its annual inspection within 60 days. Based on the HRS survey in 1990, there was a chance of HRS shutting down "Whispering Pines" or a moratorium on admissions being invoked. While Duke Archer had been in charge of maintenance, the facility had had a superior rating. The 1990 survey had listed deficiencies that were attributable to maintenance flaws, but these were not the only flaws involved. The 1991 HRS survey was conducted July 9, 1991 and it had substantially more deficiencies listed in the area of maintenance. A resurvey was scheduled for July 17, 1991. That also was unsatisfactory and resulted in a deficiency report. Not one department head was certified, so, like Mr. McCorkle before her, Ms. Brooks began recruiting qualified people from "Windsor Manor" to correct the deficiencies. On August 6, 1991, Ms. Brooks hired Ronnie Turner, a white male. She told Petitioner that Turner was a "licensed electrician" and had been hired to help him. However, "Whispering Pines'" August 29, 1991 newsletter referred to Turner as "maintenance supervisor." Coming without warning, this revelation humiliated and upset Petitioner. After investigation, Petitioner informed Ms. Brooks, purely upon the basis of hearsay, that Mr. Turner did not possess a valid professional electrician's license from the Florida Department of Professional Regulation and possessed no occupational license (tax) at the county court house. There has never been a requirement that "Whispering Pines" maintenance personnel have electrician's licenses. To Petitioner's chagrin, Ms. Brooks did not fire Mr. Turner or promote Petitioner in his place. Ms. Brooks had known Ronnie Turner while he had worked under the supervision of a master electrician during the building of "Windsor Manor." She had hired him there as "maintenance supervisor" and was personally familiar with his excellent maintenance skills and prior electrical experience. She wanted someone more skilled than Petitioner to get "Whispering Pines" ready for HRS' reinspection. Mr. McCorkle testified that he had not tried to hire Ronnie Turner because he felt Turner was over qualified and therefore unlikely to stay at "Whispering Pines" for the low pay. Mr. Turner's job application to "Whispering Pines" listed his skills, a thirteen year work history in electrical construction, and stated that he was a "journeyman-elect." Ms. Brooks accepted Turner's application at face value. The City of Starke Code certifies "journeyman electricians" after they pass an examination for competency. This is a different process than simply paying an occupational license tax to open a business. Pre-trial, it was stipulated that, "Ronnie Turner did not hold a valid certificate as a certified electrician," but it was unrefuted that Ms. Brooks honestly believed that Mr. Turner was a licensed electrician when she hired and continued to employ him at "Whispering Pines." Even Petitioner testified that on the basis of Turner's application alone, Petitioner also would have believed Turner was a licensed electrician. Petitioner contended that Mr. Turner's employment by "Whispering Pines" constituted Petitioner's "demotion" from "maintenance supervisor" for discriminatory reasons, namely prejudice against Petitioner because he is black. Ms. Brooks, operating on behalf of Covenant Care, considered Petitioner and John Tyler incompetent, but she did not terminate either of them. Petitioner never requested to return to CNA duties. Ms. Brooks did not "demote" Petitioner on paper. She did not reduce Petitioner's salary or remove him from maintenance chores. She transferred John Tyler, the marginal white employee, to full-time kitchen employment so he could keep his job, too. She paid Mr. Turner only 50 more per hour than she did Petitioner, despite Mr. Turner's superior skills. Her decision to hire and retain Mr. Turner as "maintenance supervisor" was Ms. Brooks' unilateral decision with approval of Covenant Care and no input from J. D. Griffis or George Grosse. Race did not factor in Ms. Brooks' decision. Her decision rearranged job responsibilities in order to accomplish work that Petitioner admittedly could not or would not perform alone. It had the effect of subjectively diminishing Petitioner's status in his own eyes, but it had no objective or "real world" significance in terms of reduction of pay or job benefits or perceived status in his employment community. Approximately September 4, 1991, Petitioner approached J. D. Griffis by telephone, complaining about Mr. Turner not being licensed. Petitioner said nothing to J. D. Griffis about race being an issue. J. D. Griffis told him Ms. Brooks was the administrator and he would let her do as she saw fit. Petitioner approached Mr. Grosse, asking why Petitioner had been "demoted" in favor of Ronnie Turner. Mr. Grosse told him those decisions were up to the nursing home administrator. Petitioner told Mr. Grosse that Mr. Turner did not have a license, but he did not mention race as an issue. Upon advice from Mr. McCorkle, Petitioner spoke to each owner again. Mr. Griffis repeated his prior statement. Mr. Grosse asked if "they" had tampered with Petitioner's salary, and when Petitioner told Mr. Grosse his salary had remained the same, Mr. Grosse expressed no further interest in the matter. Not understanding the management scheme, Petitioner felt his old friends could help him but chose not to do so. Petitioner went on vacation from September 30 through October 14, 1991. During that period of time, he filed his EEOC discrimination charge alleging demotion due to his race, black. On October 15, 1991, the day Petitioner returned to "Whispering Pines," Ronnie Turner delivered a letter asking Ms. Brooks to make Petitioner "maintenance supervisor" in his place and make him a "helper." Ms. Brooks declined to do so. Assessing the evidence as a whole, particularly the chronology of intervening events and the candor and demeanor of all the witnesses, particularly Petitioner's responses upon cross-examination, it appears that Petitioner thereafter made Ronnie Turner's job situation so uncomfortable that Mr. Turner quit, effective December 25, 1991. Janice Gaskins, "Whispering Pines'" white female comptroller resigned in September 1991 in a dispute over allegedly excessive compensatory time previously awarded her by Mr. McCorkle. She testified on behalf of Petitioner that she felt there was a "hit list" of Mr. McCorkle's leftover hirees and that she had been forced to resign. She did not attribute the "hit list," if it existed, to being racially motivated or directed against Petitioner as any type of retaliation. On January 6, 1992, Ms. Brooks hired Bryan Cowley, a white male, to replace Mr. Turner. Mr. Cowley testified that he was hired by Ms. Brooks as "maintenance supervisor" to "intimidate" Petitioner into quitting since Mr. Cowley flaunted long hair, a beard, and "biker guy" clothing, and that he was eventually terminated by Ms. Brooks because he would not treat Petitioner "like a nigger." Mr. Cowley's candor and demeanor while testifying, together with his purely speculative and unsupported conjecture as to Ms. Brooks' motives for hiring and firing him and his own clearly demonstrated personal prejudice against authority in general and women supervisors in particular, rendered his foregoing opinions not credible. (See Findings of Fact 42, 46, and 49-52). The greater weight of the credible evidence is that Mr. Cowley was hired by Ms. Brooks to replace Ronnie Turner because he had extensive experience in electronics. Mr. Cowley was never referred to by anyone in authority at "Whispering Pines" as "maintenance supervisor." Ms. Brooks would have liked to terminate Petitioner for not doing his job when Mr. Turner left, but due to the pending discrimination by demotion charge, she was afraid to do so. For that reason, she also did not make anyone "maintenance supervisor." When Mr. Cowley started work, she told Mr. Cowley and Petitioner to report directly to her, and after February 24, 1992, both of them reported to Ms. Ruth Banks. (See Finding of Fact 43). Due to Mr. Cowley's personal problems with authority, particularly with his immediate female supervisor, Ms. Banks, he proved to be an unacceptable employee. Mr. Cowley started at $6.00 per hour, a rate of pay well below Petitioner's rate of pay. When he was terminated, Mr. Cowley still was being paid less than Petitioner. Rather than being encouraged to look like a "biker", Mr. Cowley was reprimanded and counselled concerning his slovenly attire, rough language, and bad attitude. (See Finding of Fact 49). In February 1992, Ms. Brooks was ready to reorganize "Whispering Pines." She reduced the number of "department heads" to five. On February 24, 1992, she brought the three interrelated functions of "housekeeping," "laundry," and "maintenance" under the supervision of the "Director of Environmental Services" and promoted Ruth Banks to that position. In that position, Ms. Banks was vested with the authority to evaluate, hire, and fire all inferior positions, including those of Mr. Cowley and Petitioner. Ms. Brooks announced her decision without prior discussion with Petitioner or Mr. Cowley. Personnel at "Whispering Pines" were aware at least by February 22, 1992, and probably much earlier, that Petitioner had filed a discrimination charge based on his alleged "demotion." This date coincides with the first date some staff members signed affidavits concerning the investigation of the demotion charge. Ms. Banks signed an affidavit on February 27, 1992. Petitioner's suggestion that Ms. Banks was promoted in exchange for an affidavit in favor of the facility or in order to "get" him, was unsupported speculation. Ms. Banks' affidavit was only one of several supporting affidavits, and she had exceptional qualities as a housekeeping administrator when promoted. Ms. Brooks' decision to reorganize "housekeeping," "laundry," and "maintenance" under "Environmental Services" was based on a need to downsize for efficiency and was in line with modern health care administration, since all three functions had to do with infection control. Such reorganization was not historically unusual, either, because the maintenance function at "Whispering Pines" had once reported to the Department of "Environmental Services." Behind Ms. Brooks' back, Petitioner and Mr. Cowley took immediate and vocal offense to having to report to a woman supervisor, particularly one they considered not qualified to actually perform hands-on maintenance chores. Their subsequent behavior, jointly and severally, amounted to sexual harassment of Ms. Banks in retaliation for her promotion. On April 10, 1992, J. D. Griffis and James Norman met with Petitioner in Mr. Norman's office at "Whispering Pines." Mr. Norman was the new comptroller employed by Covenant Care. He had replaced Ms. Gaskins. He is a white male. Petitioner's version of this meeting is that J. D. Griffis told him he should drop his discrimination by demotion charge and Petitioner said he could not do that, to which Mr. Norman replied that yes, Petitioner could drop the charge. Petitioner claimed that J. D. Griffis then said, "You are going to drop the complaint or else!" Petitioner conceded that no "or else what" was ever specified, but he still considered this statement to be a threat. Mr. Griffis denied making such a statement or making any threat of retaliation if Petitioner did not drop his pending charge of discrimination based on hiring Ronnie Turner. Mr. Norman denied making any suggestion to Petitioner to drop the demotion charge. Both J. D. Griffis and Mr. Norman viewed the April 10, 1992 meeting as occurring impromptu when J. D. Griffis came by the facility to pick up his payment check from Covenant Care and asked Petitioner why he was avoiding him. Mr. Norman did not recall any threat by J. D. Griffis, but Mr. Norman admittedly was outside the room a short time Petitioner and J. D. Griffis were alone together. Initially, J. D. Griffis did not recall anything being said by anyone about the Petitioner's discrimination by demotion charge, but he did recall that Petitioner "went on and on" about Ronnie Turner not being licensed and that Petitioner complained that Mr. Griffis should "do something" about "that woman," meaning Ms. Brooks. Upon reflection, J. D. Griffis conceded that although he did not interpret it that way at the time, Petitioner might have been talking about his discrimination by demotion charge because Petitioner viewed Turner's hiring by Ms. Brooks as being Petitioner's demotion. J. D. Griffis did not focus on that part of the conversation because Mr. Turner had been gone from the facility for four months and he was caught off guard to discover that Petitioner was so upset about Mr. Turner. He recalled telling Petitioner that Petitioner should work it out with Ms. Brooks. Having observed all three witnesses' candor and demeanor while testifying and having otherwise analyzed their respective credibility, it is found that J. D. Griffis' explanation of the April 10, 1991 conversation is more credible than Petitioner's. During his probationary period, Bryan Cowley used offensive language, including "asshole" and "shit" in the presence of female employees, patients, and patients' families. There were complaints from female employees and patients' families about his language and his attire. These problems were reported to Ms. Banks, and Mr. Cowley was twice written up for them. Nonetheless, Ms. Banks took him off probation, with reservations, on April 22, 1992. Ms. Brooks concurred on April 24, 1992, but memorialized the reservations about prior problems with Mr. Cowley in a letter of that date. After his probation was ended and he achieved permanent employment status, Brian Cowley became increasingly disrespectful and sarcastic to female staff, not exclusively Ms. Banks, ultimately resulting in his termination on April 30, 1992. After Mr. Cowley's termination by Ms. Banks, Mr. Cowley and Petitioner went to Ms. Brooks' office and were aggressively loud in their mutual denunciation of Ms. Banks. Then, Mr. Cowley berated Ms. Brooks so loudly to her face, including calling Ms. Brooks a "racist," that Ms. Brooks and her secretary became fearful for Ms. Brooks' safety. The secretary telephoned the police. Ms. Brooks could not get either man to leave her office until Mr. Cowley was presented with a termination letter from her, personally. Despite Petitioner's involvement in all the foregoing, Petitioner was neither reprimanded nor terminated, because Ms. Brooks was apprehensive of another discrimination charge, and Ms. Banks wanted to "work it out" with Petitioner. Petitioner conceded that Mr. Cowley had a bad attitude toward Ms. Banks and that she had warned Petitioner that if he continued to hang around Mr. Cowley or emulate him, she would terminate Petitioner. Petitioner had participated with Mr. Cowley in treating Ms. Banks with disrespect and continued to do so after Mr. Cowley was terminated. Hazel Doris Hicks, Dietary Manager, described Petitioner's job performance before Ms. Brooks took over as "capable, but very slow," and "reluctant to work unless pushed" or "reluctant to work unless Mr. McCorkle told him, personally." HRS cited Ms. Hicks for a hole in the kitchen wall that Petitioner only temporarily repaired after 3-4 months of requests. Ms. Hicks purchased parts and fixed a refrigerator door handle herself after Petitioner told her there were no parts available. Petitioner responded to her requests to fix roof leaks by placing buckets under them. After Ms. Brooks came on board, the Petitioner still failed to respond to repair requests in a timely manner unless Ms. Brooks or Ms. Banks personally requested him to do a job. Petitioner usually attempted to explain to Ms. Brooks why he had not accomplished jobs, but often he would not respond at all when given an order by Ms. Banks. He just tossed his head defiantly at Ms. Banks on many occasions. Petitioner regularly displayed a bad attitude toward Ms. Banks. On one occasion, Ms. Hicks overheard Petitioner tell a transport driver who was delivering goods to the kitchen, "There ain't nothing worse than working for a white woman than a white woman and a black woman." Ms. Hicks reported this comment to Ms. Brooks. On one occasion, Petitioner started to repair the institutional coffee maker and disconnected it, leaving exposed wires. He then did not come back to finish the job because he claimed he had more important jobs to do. Ms. Hicks reported this incident to Ms. Brooks. Louise Mobley, Dietician, overheard Petitioner stating he would not work for a woman. Sally Buchanan, Activity Director, Regina E. Price, Payroll Clerk and Secretary, and Ms. Hicks each overheard numerous conversations between Petitioner and Ms. Banks which they considered to be verbally abusive, dilatory, and argumentative on Petitioner's part. Bea Benson, who also works in "activities", overheard Petitioner respond to Ms. Banks' instructions on one occasion by asking, "Why don't you do it yourself?" After a fire drill, Petitioner refused to reset the alarm when Ms. Banks told him to do so. Elaine Gunner, Administrative Secretary/Medical Records and Admissions Coordinator, was assured by Petitioner that a persistent odor in her office could not be helped. After Petitioner was terminated, subsequent maintenance men opened a duct and found what appeared to be a dead rat. Ms. Banks routinely kept logs on each of her employees in "housekeeping" and continued the practice after February 24, 1992 as Director of Environmental Services. On March 20, 1992, for no precipitating reason beyond a general feeling of misapprehension, Petitioner began keeping his own records of what he said and did in relation to Ms. Banks and Ms. Brooks. The foregoing or testimony relating to them provided a wealth of "he said/she said" type testimony, not all of which bears on ultimate material facts, but all of which supports a finding that Ms. Banks, the black female supervisor, and Petitioner, her black male subordinate, had personality problems. Petitioner admitted that Ms. Banks honestly perceived a personality conflict between them and exhibited one towards him. Contrary to Petitioner's testimony that he had no personality problem with Ms. Banks, it is here specifically found that he did, and that these mutual personality problems had nothing to do with race, but arose out of the atmosphere that Petitioner and Mr. Cowley had created and later Petitioner perpetuated. Particularly spontaneous and revealing testimony occurred when Ms. Banks was asked whether or not she had discriminated against Petitioner on the basis of their black race and she replied negatively because, "That's me!" When Petitioner informed Mr. McCorkle about Mr. Cowley's termination, Mr. McCorkle told him "they" would probably discharge Petitioner using Ms. Banks because she was a black woman and "they" had a precedent in employing a woman maintenance supervisor from 1985 to 1986. Petitioner harbored lingering resentment over the hiring of Ronnie Turner and the promotion of Ms. Banks, which resentment he continued to voice frequently. He also continued not doing tasks assigned him by Ms. Banks. Preventive maintenance at "Whispering Pines" demanded daily water temperature checks, weekly generator checks, and monthly fire alarm drills. The result of each of these tests was supposed to be logged in black books kept in the maintenance department. In July 1991, Ms. Brooks had instructed Petitioner to perform daily water temperature checks and weekly generator checks and to log the results and report any problem to her. Over the next several months, Ms. Brooks asked Petitioner several times if he were checking the temperatures. Because Petitioner always answered in the affirmative and reported no problems, she believed him when he said the checks were being done and believed the temperatures were in the legal range. When Ms. Banks was appointed Director of Environmental Services, Ms. Brooks, Ms. Banks, Bryan Cowley, and Petitioner conferred and the importance of these duties was reiterated. Ms. Brooks went on assuming Petitioner was performing his duties. Ms. Banks gave Petitioner a written list of his duties that included "Check the water temperatures on all wings and document," and "fire drills." On April 27, 1992 Ms. Banks gave Petitioner a written list of important duties that were to be scheduled routinely and instructed him to continue to check water temperatures daily and do generator checks. From February 24, 1992 onward, Ms. Banks repeatedly asked Petitioner for the logs documenting his checks. His excuses varied, but he never produced complete logs. On occasion, he was surly and intimidating and was always uncooperative. Petitioner frequently asked Ms. Banks why she did not do the work herself or told her that paperwork was her function as "maintenance supervisor." Right up to his termination, Petitioner frequently delayed responding to oral and written orders of Ms. Banks and was never caught up on his clipboard requests. He found time to initiate discussions about Ronnie Turner's hiring, which Ms. Banks refused to comment upon. He gave as his reason for delay in doing his assigned work the fact that he had no "help," but after "help" was hired in June 1991, Petitioner still did not do things in a timely manner. (See Findings of Fact 81, 84). Sometimes, he back-dated repair dates on the clipboards to cover his delays. At some point, Ms. Banks ordered employees to clean up clutter in their areas. She specifically told Petitioner to clear away clutter outside his shop area. He cleaned the inside of his office instead. On May 23, 1992, the fire department responded to an alarm at "Whispering Pines." Petitioner was not there, and Ms. Banks discovered Petitioner and Mr. Cowley had changed the lock on a door and her key no longer fit. She was unable to let firemen and staff through that door. On June 4, 1992, Ms. Banks gave Petitioner his annual evaluation. She rated him "above average" in some categories and "average" in most categories, but she rated Petitioner "below average" in volume of work, punctuality, character and habits, initiative and interest, and his relationship with his supervisor. She noted in the evaluation that he did not check out and in for lunch off the premises according to the facility's policy and was disrespectful to her, but she still recommended him for continued employment. Ms. Banks and Ms. Brooks approved the evaluation effective June 12, 1992, but on July 1, 1992, Ms. Banks issued a warning to Petitioner because he had refused to sign the evaluation. On June 4, 1992, Petitioner had suggested that Ms. Banks write him up and get him fired like Bryan Cowley, and then said something to the effect, "but if you do, I'm coming back and I'm coming back strong!" Petitioner is 5'8" and weighs 165 pounds. Ms. Banks is 4'8". Ms. Banks took this statement and Petitioner's body language while he said it to be a threat. Also, on June 4, 1992, Ms. Banks asked Petitioner for the water temperature and generator logs. He did not have them and was upset by her request, so she gave him a written memorandum to produce them by 3:30 p.m. on June 5, 1992. Petitioner did not produce the logs at that time, so Ms. Banks notified Ms. Brooks. On June 5, 1992, Ms. Banks and Ms. Brooks both counselled with Petitioner and he admitted to them that he had not been doing his assignments, stating he had not been told to do them and he had too many other things to do, repeating over and over that he was "just one man." Accordingly, Ms. Brooks wrote him a letter advising him the routine temperature checks and generator checks were "a priority responsibility which directly effects (sic) life and safety of our residents. Your failure to perform these assigned duties are direct insubordination. You have shown disrespect for your supervisors, and a complete disregard for the welfare of the residents as it relates to the above-mentioned job assignments." She attached copies of Ms. Banks' prior written instructions to her letter. Ms. Brooks was aware that there was a perpetual problem with "Whispering Pines'" boiler. She did not blame Petitioner for malfunctioning hot water temperatures but did blame him for not bringing the problem to her attention each time it occurred. Since December 21, 1991, the "Whispering Pines'" employee handbook had listed arguing and refusing to follow a supervisor's directions as grounds for termination. Petitioner knew this. He was not terminated on June 5, 1992. Regardless of any other characterizations within Petitioner's self- contradictory testimony of what he did in response to the foregoing direct orders of June 5, 1992, he clearly testified that when Bryan Cowley was working, sometimes one of them would do the temperature checks and sometimes the other one would do the temperature checks, but Petitioner did not always document the temperature checks. Petitioner admitted that after the June 5, 1992 meeting, he did temperature checks "almost" daily but did not document the generator and fire alarm checks. Also, it appears he kept logs for his own "protection" in June and July 1992 as proof he did the checks but did not always note the checks in the facility's logs or on work orders. He seemed unable to distinguish between doing the check and keeping a record of all the checks in the same location. Surprisingly, Petitioner did not deny that Ms. Banks had authority to assign him tasks and to fire him, or that she complained to him about his not keeping up his work load, or that the clipboard work was not getting done, or that her June 4, 1992 interview and evaluation were her honest opinion of him in her own mind. He concurred with her opinion that on that date, his relationship with her was below average and she honestly believed he was being disrespectful of her. He likewise admitted that he was warned in the meeting of June 5, 1992 that he was being insubordinate and that Ms. Brooks genuinely believed he was being insubordinate to Ms. Banks and arguing with both of them. To monitor expenses, on June 23, 1992, Ms. Banks instructed Petitioner that in the future he was to make lists of the parts and supplies he needed and she would prepare purchase orders and authorize Petitioner's purchase of the items. Petitioner said he understood, but then personally prepared a purchase order for six items. Ms. Banks signed that purchase order. Petitioner purchased seven items, one unauthorized. Ms. Banks was frustrated, and on June 25, 1992, she issued a counselling record concerning the incident and warned Petitioner not to do it again. On June 30, 1992, Ms. Banks and Petitioner had an angry discussion because she had clocked him out when she saw him leave the building. Despite his excuses, she wrote up a first written warning notice on him for this incident, instructing him again to clock in and out. He refused to sign the warning notice. There were many instances when Petitioner could not be found on the "Whispering Pines" premises. The reasons he gave at formal hearing included not being required to clock out to get parts, combining lunch trips with trips to buy parts so he did not have to clock out, and actually being on the premises when Ms. Banks thought he was gone because his brother was driving his van. His testimony was so confused and contradictory as to which excuse applied to which date, and he was so adamant that he did not have to conform to the rules, that his testimony on this issue is rejected as not credible. Noonan Moab Bradley, a white male with considerable mechanical repair experience, was hired at "Whispering Pines" on June 10, 1992 by Ms. Brooks. He was suggested to Ms. Brooks by J. D. Griffis, but was not hired to replace Petitioner who continued to be employed. At that time, Mr. Bradley observed that Petitioner was 2-4 weeks behind on the job requests listed on all clipboards. He could tell when he arrived that Petitioner did not like anybody because Petitioner would not show him where anything was kept or what jobs to do. Petitioner complained to Mr. Bradley about Ronnie Turner being hired and not having a license. In Mr. Bradley's opinion, Petitioner was not a qualified maintenance man and it was an "injustice" to assign him to maintenance. Effective June 30 or July 1, 1992, Cambridge Health Center of Alabama and its wholly owned Florida subsidiary (Cambridge) purchased "Whispering Pines" nursing home business from J. D. Griffis and George Grosse. The discrepancy in dates is only because there was some lag time between transfer papers being executed between principals in different states and Florida HRS transferring the nursing home certificate to Cambridge. The building was leased to Cambridge by J. D. Griffis and George Grosse. From that point onward, J. D. Griffis and Mr. Grosse continued to own the "Whispering Pines" building, but not the nursing home business. J. D. Griffis' and Mr. Grosse's only involvement at "Whispering Pines" after July 1, 1992 was to receive lease payment checks. The facility was thereafter operated as "Cambridge Health Care of Starke, Inc. d/b/a/ Whispering Pines Nursing Home." Cambridge, still employing Ms. Brooks as administrator, began to tighten up the "Whispering Pines" operation with an emphasis on maintenance. Warren H. Lewallen is a facility engineer and consultant employed or contracted for by Cambridge. Standard operating procedure is for him to do a cursory review of a new facility prior to acquisition, and after purchase do an in-depth study. On or about August 11, 1992, he found what he considered "overwhelming" violations of gross neglect of maintenance relating to life safety areas with deferred maintenance a specific problem. Mr. Lewallen viewed the unstable water temperature problem as a life safety issue, although Florida HRS does not. Still, the bulk of the maintenance problems Mr. Lewallen noted were routine and would cost only between $75.00 - $500.00 to correct. They did not require a civil engineer to spot. They were the type of problems a competent maintenance person would detect and resolve on a weekly basis. Mr. Lewallen also observed long-standing incomplete repairs. Ms. Banks behaved appropriately during Mr. Lewallen's inspection. She was helpful and concerned. Petitioner was hard to locate and devoted less than an hour to assisting Mr. Lewallen during the thirteen and a half hours Mr. Lewallen spent on the premises. A check by Mr. Lewallen also revealed that Petitioner had falsified his oral report to him concerning care and replacement of air conditioner filters. Mr. Lewallen submitted his report to Cambridge on August 24, 1992. Ms. Banks is active in the National Housekeepers Association and at the date of formal hearing was the President of its Crown Chapter. She networks, attends monthly continuing education seminars, and is actively involved in implementing the modern nursing home preventive maintenance techniques and paperwork favored by professional groups. She instituted a system of work orders for preventive maintenance. She instituted a system of work orders for repairs in addition to the clipboard system. The collected work orders were intended to constitute a better record than the old logs and clipboard sheets. Petitioner did not like the new system. He avoided using it. The system was approved by Cambridge and Ms. Brooks. On September 10, 1992, Ms. Banks required Petitioner to set off a can of smoke and help her with a smoke and fire alarm test. After procrastination, argumentation, and other avoidances, Petitioner complied, but he refused to sign a work order she had prepared to show he had done the test. After even more discussion, he signed it. Based on Petitioner's attitude and lack of cooperation, Ms. Banks gave Petitioner a second written warning for his initial refusal to sign the work order. Petitioner then refused to sign the warning on the grounds he had eventually done his job and signed the work order. Ms. Banks gave Petitioner a counselling record based on his complaining when given a work request and warning. Petitioner refused to sign the counselling record. Ms. Banks threatened to terminate Petitioner. Ms. Banks brought the matter to Ms. Brooks' attention. Overnight, Ms. Banks unilaterally decided she would terminate Petitioner for insubordination. At 8:00 a.m. September 11, 1992 in the employee lounge, Ms. Banks asked Petitioner to turn in his beeper. Later, Petitioner saw a well-dressed man in Ms. Banks' office with her and leapt to the conclusion that the man was a lawyer there to terminate him. 3/ Still later, Ms. Banks called Petitioner into her office alone and terminated him. He became very upset and demanded to see Ms. Brooks. In a meeting behind closed doors in Ms. Brooks' office, Petitioner refused to believe he was terminated until Ms. Brooks handed him a letter to that effect. One of Cambridge's changes was converting pay periods from "every two weeks" to the 1st and 15th of each month. Regina Price testified that Petitioner's last salary check was paid out of a general account because the Petitioner wanted his money right away on September 11, 1992 and otherwise, he would have had to wait until the end of the pay period like all other employees. The check exhibit shows it was drawn on an account labelled "Cambridge Health Care of Starke, Inc. d/b/a Whispering Pines Nursing Home operating account." 4/ Even later in the afternoon of September 11, 1992, Ms. Banks and Petitioner got into a shouting match in Petitioner's office when he tried to remove items belonging to the facility along with his own things. Ms. Banks waived Petitioner's own Bible at him and invoked God's intervention to change his behavior. Ms. Brooks and others intervened and Petitioner was allowed to take everything he wanted except the facility's logs. As a post-termination event, the altercation is irrelevant because it has no legal significance as to why Petitioner was terminated. It does not demonstrate retaliation for the demotion charge. It also does not demonstrate racial prejudice from which discrimination can be inferred. Petitioner introduced in evidence "Whispering Pines" newspaper advertisements for "Maintenance Position" which ran June 4, 1992, shortly before Noonan Bradley was hired, and for "Maintenance" which ran September 17, 1992, shortly after Petitioner was terminated. Each advertisement required a minimum of two years' experience in maintenance. Petitioner conceded that two years' experience in maintenance was a reasonable requirement for a "maintenance supervisor" at "Whispering Pines." All the skilled administrative and trained maintenance personnel who testified on the subject testified that two years or more was a reasonable requirement. (See also Finding of Fact 6, 81). At the time Mr. McCorkle appointed Petitioner "maintenance supervisor" on April 1, 1990, Petitioner did not have two years' experience. At the time Ms. Brooks hired Ronnie Turner on August 6, 1991, Petitioner did not have two years' maintenance experience. At the time Ms. Brooks hired Bryan Cowley on January 3, 1992, Petitioner still did not have two years' maintenance experience. Petitioner has never met all the remaining requirements of those advertisements that applicants, "Must be knowledgeable in electrical, compressors, generators, and plumbing." Respondent Cambridge hired several white males who met all the advertised qualifications after Petitioner was terminated. One of these men has the last name "Griffis," and is distantly related to J. D. Griffis. He was on the facility premises as an independent contractor the day Petitioner was terminated. There was no input by J. D. Griffis for this man being hired as an independent contractor or later becoming employed by Cambridge. Petitioner was earning $8.15 per hour when he was terminated on September 11, 1992. Sometime after Ms. Brooks came on board, his pay scale was raised by 15 per hour, but it is not clear whether this occurred during Covenant's or Cambridge's management. When terminated, he was earning $360.00 to $380.00 per week. After termination, Petitioner unsuccessfully sought maintenance jobs in Starke, Lawtey, and Gainesville between September 12, 1992 and March 1, 1993. His testimony that he was diligent in seeking this type of employment is accepted. Likewise accepted is his testimony that employers "just did not call me back." The first employment Petitioner applied for that he could get was with Medcar as a male orderly/driver at $5.00 per hour beginning on March 3, 1993. Since then, Petitioner has been continuously employed at that rate for 30-40 hours per week. His average paycheck there has been $214.00 per week. Petitioner also was paid $244.00 every two weeks in unemployment compensation from September 11, 1992 to March 3, 1993. However, Petitioner could have been employed in several locations as a CNA at any time and did not apply for such positions. Therefore, his efforts at mitigation were not wholly made in good faith. Someone called Petitioner's post-termination employer at Medcar, Edith Green, to inform her that he had "a suit" filed against "Whispering Pines." According to Ms. Green's testimony, however, the caller only inquired if Ms. Green knew of such a suit. When asked by Ms. Green if that meant Petitioner would not be allowed to pick up and deliver "Whispering Pines'" patients, the caller told her that was no problem at all. Although there is some speculative evidence that the caller might have been "an owner," a representative of Covenant Care, or Mr. Bryson Hill of Cambridge, there is no clear evidence to prove who it was. Regardless of who called, this innocuous interchange, occurring after Petitioner's termination does not rise to the level of retaliation as contemplated by Section 760.10 (7) F.S.. The greater weight of all credible testimony is that while Mr. McCorkle was administrator, neither J. D. Griffis nor George Grosse interfered with Mr. McCorkle's authority over maintenance issues or insinuated themselves into his middle supervisors' hiring and firing decisions. Both J. D. Griffis and Mr. Grosse testified credibly that they declined to be involved in such decisions, because it could affect Mr. McCorkle's administrator's license. Mr. Grosse had pointed out maintenance problems to Mr. McCorkle but had not intervened in maintenance or matters regarding personnel. J. D. Griffis testified vividly, and without refutation, that because he was related to so many residents of Starke, he could not afford to be involved in hiring and firing of anyone at the nursing home and that on one occasion he had declined even to intervene when one of his relatives was fired for inviting the Director of Nursing into the parking lot for a fist-fight. It is not clear on the record whether this fist-fight event occurred during Mr. McCorkle's or Ms. Brooks' administrations, but it was prior to Cambridge taking over in June-July 1992. Mr. McCorkle testified to certain events for the purpose of showing racial prejudice by J. D. Griffis, George Grosse, and Barbara Brooks which might bear on the alleged discrimination claims. However, Mr. McCorkle's testimony to the effect there had been racially prejudiced or discriminatory practices in prosecuting blacks but not whites, and in hiring and firing at "Whispering Pines" was not persuasive of any wrong-doing by anyone. Some examples he gave were not credible because the circumstances he related were clearly and credibly contradicted by one or more other witnesses and/or because the circumstances of black and white employees being prosecuted or hired or not hired with criminal records in his or Ms. Brooks' eras were so disparate that they clearly required different administrative approaches for non-racial reasons. All of his examples were not credible because they either occurred during Mr. McCorkle's administration and he was unable to show any direct input from J. D. Griffis or George Grosse and/or his examples were not credible because of Mr. McCorkle's demonstrated bias. Mr. McCorkle's example of Ms. Brooks' failure to criminally prosecute a white employee revolved around Ms. Brooks hiring the employee before she knew of the criminal accusations. Ms. Brooks was informed of mere accusations against the white employee after Ms. Brooks had left the facility where she had hired the employee. Moreover, state attorneys, not nursing home administrators, are prosecutors in this state. These examples did not establish racial prejudice or discrimination by J. D. Griffis, George Grosse, or Ms. Brooks. Prejudice in persons without authority to terminate is also irrelevant. Preston E. Williams, a black male, was formerly employed at "Windsor Manor" as a "floor man custodian." When Ms. Brooks was administrator there, she sought him out and encouraged him to apply for "housekeeping supervisor." In that position, she placed four different functions with ten employees, both black and white, under his authority for hiring and firing purposes. She never second-guessed his hiring and firing decisions. He and his family have since become close personal friends of Ms. Brooks. He does not consider Ms. Brooks to be racially biased. Sidney J. Williams, Sr. is a black local civic leader who was recruited by J. D. Griffis to join the "Whispering Pines Family Council." This is not a council within the "Whispering Pines" facility, nor is it restricted to patients' family members. It includes anyone from the community who wants to do things for the "old people" at the facility. Mr. Williams and his wife thereby formed a continuing friendship with Ms. Brooks. He does not consider Ms. Brooks to be racially biased. In 1991, "Whispering Pines" employed 213 people, of whom 24 percent were black. Eighty five were terminated during that year, 24 percent of those terminated were black. Between January 1992 and September 30, 1992, "Whispering Pines" employed 194 employees of whom 21 percent were black. Fifty were terminated. 8 percent of those terminated were black. Between October 1, 1992 and December 31, 1992, 155 were employed, 25 percent of whom were black. Of the 15 employees terminated, 13 percent were black. In 1993, 222 were employed, of whom 30 percent were black. Seventy five were terminated, of whom 30 percent were black. These statistics do not establish a pattern of racially discriminatory terminations at the facility. If anything, they show a pretty good record of hiring and retaining black employees. In making the foregoing findings of fact, every effort has been made to reconcile the several witnesses' respective testimony so that all witnesses may be found to speak the truth. To that end, Petitioner has been given every benefit of the doubt, but where conflicts exist, the credibility issue has been resolved against Petitioner for the following reasons. First, Petitioner's candor and demeanor while testifying was not that of a wholly credible witness, including the fact that at one point he volunteered that he had lied during some of his previous testimony, recanted, and corrected his testimony. He stated that as to the employer's sign in/sign out policy, it might exist, but if it did exist, he did not believe it applied to him and he had not abided by it, thereby indicating he believes he does not have to follow rules other people do. This attitude rendered his other testimony less trustworthy. Petitioner often told multiple versions of incidents. He testified that his last check said "Cambridge" but did not say "Whispering Pines" on it, but he also introduced Petitioner's Exhibit 24, the check, showing it was issued by "Cambridge Health Care of Starke, Inc. d/b/a Whispering Pines Nursing Home." In many instances, Petitioner's version of events was directly contrary to evidence given by two or more fully credible witnesses who had simultaneously been present when an event occurred. His ego seems to have colored some of Petitioner's perceptions because he disputed relatively inconsequential statements of his own witnesses, such as that of Mr. McCorkle about which of them had devised the clipboard checklist system for repairs and when. He was careless recalling certain dates and locations that he claimed to be legitimately off-premises to retrieve parts or confused and telescoped the details of one such incident into another. Likewise, Petitioner was confused and inconsistent about two occasions he claimed either Ms. Brooks or Ms. Banks asked him to lie or falsify reports or logs, to the point that he sometimes said it was one woman and sometimes said it was the other. He was fully refuted on this score. Petitioner told up to four inconsistent versions of crucial incidents, and admitted that he sometimes recreated details that were missing from his memory or his notes. Petitioner leapt to clearly unwarranted conclusions, such as assuming that any well-dressed man "must" be a lawyer. Petitioner admitted at one point that he had testified to conclusions he had drawn from his hindsight of what "must have" happened based on his theory of the case, as opposed to events he recalled as he had truly perceived them with his five senses as they were occurring. He admitted that sometimes he just testified to what sounded correct or as to what was on his mind or in sort of free association because he did not know what to say.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED That the Florida Commission on Human Relations enter a final order that: Dismisses the Petition for Relief in DOAH Case No. 92-7515 (FCHR No. 92-0215), for demotion; and Dismisses the Petition for Relief in DOAH Case No. 93-4304 (FCHR No. 93-1973), for termination. RECOMMENDED this 13th day of September, 1994, at Tallahassee, Florida. ELLA JANE P. DAVIS 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 13th day of September, 1994.
