The Issue Whether Lazaro Saavedra is eligible for licensure by endorsement as a registered nurse in Florida, as provided in Chapter 464, Florida Statutes, and Chapter 210, Florida Administrative Code?
Findings Of Fact Petitioner, Lazaro Saavedra, received his education in Cuba (Tr. 109). There is evidence that he attended medical school for a period of four to five years beginning in 1960 (Tr. 109, 110, 119; JX-4), but he did not complete his medical education (Tr. 109). Petitioner asserts that he attended nursing school in Cuba from 1959 to 1962 (Tr. 108), and was licensed to practice nursing in Cuba (Tr. 118-119, 125). The record in this cause is devoid of any documentation of Petitioner's nursing education. While a witness apparently had a paper that may have been some sort of copy of Petitioner's nursing degree, it was neither identified for the record or offered into evidence (Tr. 85, ln. 11-15; 86, ln. 2-6). Petitioner attempted to prove his nursing education by his own testimony, but he was unable to describe well the content of his nursing program (Tr. 124, ln. 24-25, 125). He was unclear and imprecise regarding the dates of his nursing education and its overlap with his medical education (Tr. 109, 110, 124). The only testimony Petitioner offered to prove his attendance in nursing school, other than his own, was that of Bruno Barreiro. Mr. Barreiro knew Petitioner to be a nursing student (Tr. 91). He later saw Petitioner on "rounds" at a hospital (Tr. 92), but stated that medical students and nursing students took rounds together (Tr. 99). The witness expressed no knowledge of Petitioner as a graduate or as a practicing licensed nurse (Tr. 91, 98). Petitioner attempted to prove his nursing education and licensure in Cuba by the testimony of witnesses who "knew him as a nurse" in Cuba. Alicia de la Rua is a Florida licensed nurse who worked in the same hospital as Petitioner in Cuba for three months in 1964 (Tr. 55, 56, 59). They did not work together (Tr. 59), but were on the same ward in separate men's and women's sections (Tr. 61). Ms. de la Rua never saw Petitioner's nursing diploma or license (Tr. 60) and has no personal knowledge that he attended nursing school in Cuba (Tr. 61). She did see him dressed as a nurse and acting as a nurse in the principal hospital in Matanzas, Cuba (Tr. 55, 61-62). Francisca Garcia is licensed as a nurse in Florida. She met Petitioner in 1965 or 1966 in the clinic Petitioner's father and brother, who were medical doctors, operated in Havana (Tr. 69, 91, 118-119). Petitioner treated Ms. Garcia's nephew by giving him a vaccination (Tr. 70). In Cuba that treatment could have been performed by someone with a medical education or even a nurse's aide (Tr. 70). Although Ms. Garcia states that she saw Petitioner's diploma or license at the clinic (Tr. 65, ln. 9-15), no such document has been offered in this proceeding, and her testimony about the diploma is not persuasive due to Petitioner's failure to offer any copy of the degree for admission into evidence, although a copy was apparently available at the hearing. See Finding of Fact 2, above. Petitioner first sought licensure in Florida in 1977 (JX-4). The basis for that application was his incomplete medical education, and the application was denied (Tr. 111, 117). On that application, Petitioner did not indicate any nursing education, either under "Official Name of Nursing Program" (JX-4, ln. 8) or under a question regarding receipt of nursing education in another country (JX-4, ln. 10). The latter question was left blank; all other questions on the application were answered (JX- 4), including that Petitioner had not written a nursing licensing examination before. Petitioner again applied for licensure by examination in 1981 (JX-5). On the 1981 application, Petitioner did refer to his nursing education, but in vague terms, giving the Official Name of Nursing Program as "Registered Nurse" (JX-5, ln. 8). This application also contains the false statement that Petitioner had never before made application for licensure in Florida (JX-5, ln. 9), and the statement that he had not written a nursing licensing examination before. Petitioner applied for licensure a third time, this time by endorsement rather than by examination, in an application received by the Board on May 18, 1984 (JX-3). This application contains several false statements or omissions. Petitioner again failed to advise the Board of his previous applications (JX-I, section 4E). Petitioner stated that he had never held a license to practice nursing in another country (JX-3, section 4F). Petitioner again stated that he had never written a nursing licensure examination in Florida or any other state or country (JX-3, section 6A). Petitioner made a further false answer to the question "Have you ever been denied a license to practice nursing in Florida . . .?" (JX-3, section 6D). Truthful answers to these questions are necessary so that the Board and its staff may review sufficiently and evaluate an application, taking into consideration any previous Board actions (Tr. 146, 147). To prove eligibility for licensure by endorsement, an applicant who was educated and licensed in Cuba before a prescribed date must demonstrate that licensure by means of official documents (Tr. 140). If original documents are unavailable, as is often the case with Cuban nurses (Tr. 98), the Board requires some other competent, substantial proof, including affidavits of other nurses or doctors licensed both in Cuba and in Florida (Tr. 140, 149). Those affidavits must be consistent with other information received by the Board concerning the applicant's qualifications (Tr. 149). The Board amended its rules by emergency rule effective May 18, 1984 (RX-1), to provide that nurses licensed in Cuba prior to December 31, 1961, would be eligible for licensure by endorsement upon successful completion of a refresher course (Tr. 142, 143). Although Petitioner purportedly graduated from nursing school after that date, the Board reconsidered his application because he had been approved to begin and had completed the refresher course at Miami-Dade Community College before the effective date of the emergency rule (Tr. 144, 145). Petitioner completed the variable time nursing refresher program at Miami-Dade (Tr. 46; JX-2), which was a 16- week course designed for people who had never taken a licensing examination (Tr. 45, ln. 9-14). This program contained no clinical component or direct patient care (Tr. 46, 47). According to the dean of the Miami-Dade program, Dr. Jeanne Stark, who also developed the program (Tr. 46, 47), an individual with a medical background but who had not had a nursing education could successfully attend and complete the 16-week variable time refresher program (Tr. 47-50). Petitioner was approved to take the refresher course by the Board (Tr. 51), prior to his 1984 application, on the basis of affidavits provided by the Cuban Nurses in Exile Association that he was licensed in Cuba (Tr. 141, 142). Those affidavits are no longer relied on by the Board as proof of licensure because of inconsistencies and inaccuracies in them (Tr. 141, 144).
Recommendation Based on the foregoing, it is recommended that the Board of Nursing enter a final order DENYING the application of Lazaro Saavedra for licensure by endorsement. DONE AND ORDERED this 4th day of April 1986 in Tallahassee, Leon County, Florida. WILLIAM R. DORSEY, JR., Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of April 1986.
Findings Of Fact Stipulated Facts HCR timely filed an application to construct a 120-bed nursing home in Martin County. HRS issued its notice of preliminary denial of-the CON No. 3855 on June 28, 1985. HCR filed a timely appeal of that decision. HCR has made the necessary allegations to confer standing to challenge the preliminary agency action in a 120.57 proceeding. HCR meets all of the applicable statutory criteria contained in Florida Statute 381.494 for the issuance of a Certificate of Need, with the exception noted by HRS as a matter of law to the approval for the current fixed pool. HCR has filed an updated application with the Department for a 64-bed nursing home facility to be located in Martin County. DHRS Office of Licensure has determined that construction of a nursing home facility is most cost effective when the construction is done in increments of 60 beds. HCR is willing to make the necessary minor revisions to its application to reduce the number of beds from 64 to 60 beds for the issuance for a Certificate of Need in Martin County. HCR is "first in line" as that term is used in relation to the batching cycle in which they were reviewed. HCR was not comparatively reviewed with any competitor in Martin County in that batching cycle, and no competitor has sought to intervene in these proceedings as of this date. The HRS January, 1986 bed need allocations and Semi- Annual Nursing Home Report shows a current need of 64 beds in Martin County. The Application at Issue HCR's original application for 120 beds was addressed to the 1988 planning horizon and was filed in 1985. The 1988 planning horizon showed no need for additional nursing home beds in Martin County. The Semi-Annual Nursing Home Census Report and Bed Need Allocation dated January, 1986, is for the January, 1989, planning horizon. The report for the January, 1989, planning horizon shows a need for 64 beds in Martin County. On February 27, 1986, six days before the formal hearing, HCR filed its updated application, which specifically addressed itself to the bed need allocation of 64 beds as reflected in the bed need allocation report for the January, 1989, planning horizon. By the Prehearing Stipulation and at hearing HCR has verbally amended the updated application to reflect that it is now seeking only 60 beds. No other applicant for the 64 beds projected for January, 1989, sought to intervene in this case or to otherwise request a comparative review with the HCR updated application. Further, HRS did not request continuance of these proceedings in order to comparatively review the HCR updated application with any other application for the 64 beds. The Prehearing Stipulation and HRS Policy Robert Maryanski, the administrator of the CON program for HRS, authorized the HRS counsel to enter into the Prehearing Stipulation dated February 27, 1986. By that Stipulation, HRS agreed as follows: Subject to possible alteration of its position following an inter-departmental meeting scheduled for Friday, February 28, 1986, HRS agrees that Petitioner HCR is entitled to a CON in Martin County for 60 beds. An administrative hearing will only be necessary if HRS' position does so change. Maryanski further acknowledged at hearing that if there was no change in policy on February 28, 1986, HCR would be entitled to its CON under the HRS policy of "first in time, first in right." The HRS policy of "first in time, first in right" was being reconsidered by HRS since the rehearing arguments in Gulf Court Nursing Center v. Department of Health and Rehabilitative Services, et al., 10 FLW 1983 (Fla. 1st DCA, August 20, 1985), which occurred on December 3, 1985. At that time Maryanski decided that HRS should not enter into settlements based on the first in time policy, however Maryanski does not have the authority to adopt or approve policy for HRS. HRS has not decided as an agency, to stop applying its first in time policy. A work group was formed by HRS to consider changes in policy in light of Gulf Court, supra, but no final policy had been developed or adopted at the time of the hearing. A draft policy had been proposed, but the Deputy Assistant Secretary, who has authority to change or reject the draft policy, had not seen, reviewed or adopted the draft policy at the time of the hearing. Maryanski was unable to articulate the official HRS policy in effect on January I, 1986, on February 27, 1986, when the stipulation was signed, or on March 5, 1986, the date of the hearing.
Recommendation Based upon the foregoing, Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health and Rehabilitative Services enter a Final Order granting a Certificate of Need to Health Care and Retirement Corporation of America, d/b/a Heartland of Martin, to construct a 60-bed nursing home in Martin County, Florida. DONE and ORDERED this 17th day of April, 1986, in Tallahassee, Florida. DIANE K. KIESLING, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of April, 1986. COPIES FURNISHED: R. Bruce McKibben, Jr., Esquire Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 Jean Laramore, Esquire Kenneth A. Hoffman, Esquire 325 N. Calhoun Street Tallahassee, Florida 32301 William J. Page, Jr., Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all proposed findings of fact submitted by the parties to this case. Rulings of Proposed Findings of Fact of Petitioner 1. of Proposed Fact 1. Finding of Fact 1 is adopted in substance in Finding 2. of Proposed Fact 2. Finding of Fact 2 is adopted in substance in Finding 3. of Proposed Fact 3. Finding of Fact 3 is adopted in substance in Finding 4. of Proposed Fact 4. Finding of Fact 4 is adopted in substance in Finding 5. of Proposed Fact 5. Finding of Fact 5 is adopted in substance in Finding 6. of Proposed Fact 13. Finding of Fact 6 is adopted in substance in Finding 7. of Proposed Fact 6. Finding of Fact 7 is adopted in substance in Finding 8. of Proposed Fact 7. Finding of Fact 8 is adopted in substance in Finding 9. of Proposed Fact 8. Finding of Fact 9 is adopted in substance in Finding Proposed Finding of Fact 10 is adopted in substance in Finding of Fact 9. Proposed Finding of Fact 11 is adopted in substance in Finding of Fact 10. Proposed Finding of Fact 12 is adopted in substance in Finding of Fact 11. Proposed Finding of Fact 13 is adopted in substance in Finding of Fact 14. Proposed Finding of Fact 14 is adopted in substance in Finding of Fact 18. Proposed Finding of Fact 15 is adopted in substance in Finding of Fact 17. Proposed Finding of Fact 16 is adopted in substance in Finding of Fact 17. Proposed Finding of Fact 17 is rejected as irrelevant and not supported by the evidence. Proposed Finding of Fact 18 is rejected as not supported by the evidence and as requiring a legal conclusion. Proposed Finding of Fact 19 is adopted in substance as modified in Finding of Fact 19. Proposed Finding of Fact 20 is rejected as not supported by the evidence and as requiring a legal conclusion. Proposed Finding of Fact 21 is rejected as not supported by the evidence and as requiring a legal conclusion. Proposed Finding of Fact 22 is adopted in substance as modified in Finding of Fact 21. Proposed Finding of Fact 23 is adopted in substance as modified in Finding of Fact 20. Proposed Finding of Fact 24 is adopted in substance as modified in Finding of Fact 24. Proposed Finding of Fact 25 is rejected as irrelevant, not supported by the evidence, and as requiring a legal conclusion. Proposed Finding of Fact 26 is rejected as irrelevant, not supported by the evidence, and as requiring a legal conclusion. Proposed Finding of Fact 27 is adopted in substance as modified in Finding of Fact 20. Proposed Finding of Fact 28 is adopted in substance as modified in Finding of Fact 21. Proposed Finding of Fact 29 is adopted in substance as modified in Finding of Fact 21. Proposed Finding of Fact 30 is rejected as unsupported by the evidence and as requiring a legal conclusion. Proposed Finding of Fact 31 is adopted in substance as modified in Finding of Fact 21. Proposed Finding of Fact 32 is adopted in substance as modified in Finding of Fact 21. Rulings on Proposed Findings of Fact of Respondent. Proposed Finding of Fact 1 is rejected as being a Conclusion of Law. Proposed Finding of Fact 2 is adopted in substance in Findings of Facts 1 and 2. Proposed Finding of Fact 3 is adopted in substance in Finding of Fact 12. Proposed Finding of Fact 4 is adopted in substance in Finding of Fact 5 Proposed Finding of Fact 5 is adopted in substance in Finding of Fact 20. Proposed Finding of Fact 6a is adopted in substance in Finding of Fact 20. Proposed Finding of Fact 6b is adopted in substance in Finding of Fact 20. Proposed Finding of Fact 6c is rejected as unsupported by the evidence. Proposed Finding of Fact 6d is adopted in substance in Finding of Fact 21. Proposed Finding of Fact 6e is rejected as unsupported by the evidence. Proposed Finding of Fact 7 is rejected as unsupported by the evidence. Proposed Finding of Fact 8 is adopted in substance in Finding of Fact 14. Proposed Finding of Fact 9 is adopted in substance in Finding of Fact 18. Proposed Finding of Fact 10 is rejected as unsupported by the evidence. Proposed Finding of Fact 11 (first paragraph) is adopted in substance in Finding of Fact 18. Proposed Finding of Fact 11 (second paragraph) is rejected as unsupported by the evidence. Proposed Finding of Fact 12 is rejected as unsupported by the evidence.
The Issue Whether Respondent violated Sections 456.072(1)(k) and 464.204(1)(b), Florida Statutes (2001), and, if so, what penalty should be imposed.
Findings Of Fact Effective July 1, 1997, Petitioner is the state agency charged with regulating the responsibility for regulation and discipline of the nursing practice within the State of Florida. Respondent is a certified nursing assistant (CNA) holding Florida nursing certificate number CX 0993266675590. In December 2001, Respondent was employed as a CNA at Beverly Health Care, now known as Seacrest Health Care of Largo. Patient F.K. was a dementia patient in her advanced years and was not coherent or responsive. She was a total care patient, which required staff to perform all activities of daily living for her, such as mouth care, showers, feeding, dressing, bathing, and getting her into and out of bed. Patient F.K. did not speak, but did have a tendency to hum loudly and continuously. On December 20, 2001, Respondent was in Patient F.K.'s room following Patient F.K.'s return from lunch. Respondent called another CNA, Sheleta Cunningham-Talley, into Patient F.K.'s room, and Respondent engaged her in conversation. At that time, Patient F.K. was humming, as she often did. Respondent said to Talley, "watch how I shut this bitch up" and then proceeded to strike Patient F.K. on the face and throat. Patient F.K.'s face and neck turned red, and she became visibly upset after being struck. Beverly Health Care has a policy that residents have a right not to be physically abused. CNAs are under a legal or statutory duty not to hit or abuse patients. Striking a patient in the face and throat is a violation of that duty to not physically abuse a patient. Agnes Kelly is a registered nurse who was employed at Beverly Health Care during Respondent's employment there. Kelly has practiced as a registered nurse since 1994. She was a weekend supervisor at Beverly Health Care and supervised approximately 25 nursing employees which included a number of CNAs. Kelly has supervised nursing staff and CNAs for approximately nine years, and, as such, is familiar with the duties and responsibilities of CNAs. It is her opinion that Respondent violated her duty not to physically abuse a patient. Based on the foregoing, the evidence is clear and convincing that Respondent violated Sections 456.072(1)(k) and 464.204(1)(b), Florida Statutes (2001), by intentionally violating the statutory and legal obligation of CNAs to not physically abuse or hit a patient.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner issue a final order finding Respondent guilty of violating Sections 456.072(1)(k) and 464.204(1)(b), Florida Statutes (2001), and revoking Respondent's certification and requiring Respondent to pay the costs of investigation and prosecution of this matter. DONE AND ENTERED this 22nd day of July, 2003, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of July, 2003. COPIES FURNISHED: Kim M. Kluck, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Pearla M. Mixon 4365 Tuna Drive, Southeast St. Petersburg, Florida 33705 Dan Coble, R.N., Ph.D., C.N.A.A. C., B.C. Executive Director Board of Nursing Department of Health 4052 Bald Cypress Way, Bin C02 Tallahassee, Florida 32399-3252 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue The issue is whether Respondent committed an unlawful employment practice by discriminating against Petitioner in violation of Section 760.10, Florida Statutes (2002).
Findings Of Fact Petitioner is an African-American female. She has worked for Respondent in several positions since January 2000. Beginning on January 21, 2000, Petitioner worked as a student nutrition services assistant at Bonner Elementary School. She resigned on February 8, 2000, because she wished to seek an eight-hour per day position. On February 24, 2000, Petitioner began working as a custodian at Mainland High School. Soon thereafter, Petitioner required light-duty employment due to medical restrictions. She resigned her position on March 17, 2000, because Respondent did not have a position available that would accommodate her light-duty work requirements. On June 27, 2000, Respondent rehired Petitioner as a custodian at Holly Hill Middle School. On August 4, 2000, Petitioner resigned for personal reasons. Thereafter, Petitioner worked for Respondent as a substitute teacher. On April 18, 2002, Petitioner began working as a custodian at Silver Sands Middle School. She subsequently resigned the job due to a conflict with her supervisor. Thereafter, Petitioner worked for Respondent as a substitute custodian at Campbell Middle School. Petitioner never achieved permanent status in any of the above-referenced positions of employment. Instead, she resigned each of them while she was still on probationary status. During the summer of 2002, Respondent assumed responsibility for employment of the health support technicians (HST) that worked in Respondent's school health clinics. Prior to that time, the Volusia County Health Department had been responsible for employing the HST. When Respondent assumed responsibility for the employment of the HST, there were many vacancies in the school clinics. Catherine Ferguson, Respondent's Coordinator of Student Health Services, began interviewing applicants, conducting reference checks, and making hiring recommendations to Respondent's personnel department. Because Petitioner is licensed as a certified nurse's assistant (CNA), she applied for a position as an HST. On or about August 16, 2002, Respondent hired Petitioner to fill one of the vacant HST positions. Each school in the district, with the exception of alternative education sites, has some level of clinical medical or nursing staff. Staffing needs of the clinics are determined by the needs of the student body in each school. The student population may warrant either a full-time or part-time employee. An HST may be assigned to more than one school to fulfill the district's needs. If so, the HST will work three days per week in one school and two days per week in another school. As an HST, Petitioner's primary responsibility was to administer first aid and to dispense medication in school clinics. Her initial assignment was to Samsula Elementary School and Port Orange Elementary School. At all times relevant here, Don Olech was Principal of Samsula Elementary School. Because medication dispensing is an important issue, Mr. Olech took an active role in the clinic operations. He often took the time to personally care for the children, dispensing medicine and taking temperatures. On or about September 13, 2002, Petitioner made inappropriate and unprofessional comments about her sex life in the office at Samsula Elementary School. Petitioner made the comments to a member of the office staff in an area open to parents and students. At all times relevant here, Diane Hammond was Respondent's Nursing Supervisor. In a telephone call on September 13, 2002, Petitioner told Ms. Hammond that Petitioner did not feel welcome at Samsula Elementary School. Petitioner complained that a child with head lice had been sent back to class instead of being sent home. Additionally, Petitioner stated that she was uncomfortable because Mr. Olech was checking on her in the clinic. On September 19, 2002, Ms. Hammond met with Petitioner and Mr. Olech to discuss why Petitioner did not feel welcome at Samsula Elementary School. Petitioner explained that it bothered her for Mr. Olech to visit the clinic so often. On or about September 19, 2002, Ms. Hammond advised Petitioner that she would be assigned to work in the clinics at Port Orange Elementary and New Smyrna Middle School. Ms. Hammond explained that Petitioner was expected to assist in the clinics at other schools when requested to do so. Petitioner accepted the re-assignment. On September 24, 2002, Petitioner began working in the clinic at New Smyrna Middle School with another HST, Charlene Chastain. It was immediately apparent that Petitioner was not willing to do her share of the work. Petitioner was constantly eating or reading a book in the clinic. One of the students at New Smyrna Middle School had recently undergone a hernia operation. When he visited the clinic, Petitioner laughed out loud and made comments in the student's presence about his "nuts." Petitioner's unprofessional conduct in front of the student embarrassed Ms. Chastain. On September 26, 2002, Ms. Hammond visited Petitioner in the clinic at New Smyrna Middle School. Ms. Hammond reviewed Petitioner's responsibilities in general, including professional standards, food in the workplace, and paperwork. On September 27, 2002, Ms. Hammond visited the clinic at Port Orange Elementary School while Petitioner was on sick leave. Ms. Hammond confirmed complaints from Assistant Principal Cindy Fisher regarding the clinic's medication administration record (MAR). For example, there was no emergency care plan for a student with a peanut allergy. Ms. Hammond left a list of record corrections that Petitioner needed to make on the MAR. Petitioner was in the clinic at Port Orange Elementary School on September 30, 2002. During a telephone call to Ms. Hammond, Petitioner agreed to make the changes on the MAR. In the meantime, Principal Gary Marks informed Ms. Ferguson that he did not want Petitioner to return to New Smyrna Middle School due to her unprofessional conduct. Based on Mr. Mark's request and a need for an HST at Osceola Elementary School and Ortona Elementary School, Ms. Ferguson decided to assign Petitioner to work three days a week at Port Orange Elementary School, one day per week at Osceola Elementary School, and one day per week at Ortona Elementary School. On October 14, 2002, Ms. Ferguson and Ms. Hammond met with Petitioner to counsel her on her performance. During the meeting, Ms. Ferguson advised Petitioner regarding appropriate discussions in the workplace, the need to limit telephone use to work-related business, and the prohibition against reading personal literature in the clinic. On October 15, 2002, Ms. Hammond checked the MAR at Port Orange Elementary School. Petitioner had not corrected all of the medication records. There were some remaining omissions in the MAR. Additionally, Petitioner had signed some records which required Ms. Hammond's signature as school nurse. During the visit to Port Orange Elementary School on October 15, 2002, Ms. Hammond noted that Petitioner had posted a lot of religious material on the walls of her desk area. Ms. Hammond left Petitioner a list of things she needed to correct in the clinic. On October 15, 2002, Petitioner worked at Osceola Elementary School for at least one half of a day. She refused to check a class for head lice because she was so busy making personal telephone calls. Additionally, Petitioner failed to properly sign-in medication and sent a student back to class after he vomited instead of sending him home. On October 18, 2002, Ms. Ferguson and Ms. Hammond met with Petitioner again. They explained that Petitioner was being terminated for unsuccessful completion of her probationary period. Since the meeting on October 14, 2002, Ms. Ferguson had received complaints about Petitioner using the phone at Osceola Elementary School for personal business. As Ms. Ferguson continued to advise Petitioner about the reasons for her termination, Petitioner abruptly ended the meeting, using profane and/or vulgar language as she slammed the door on her way out. Respondent approved the recommendation for termination of Petitioner's employment on November 12, 2002.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 12th day of October, 2004, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of October, 2004. COPIES FURNISHED: Cecilia Brown 3630 Caramel Avenue, Apartment 38 Port Orange, Florida 32127 Erin G. Jackson, Esquire Thomas M. Gonzalez, Esquire 501 East Kennedy Boulevard, Suite 14003 Post Office Box 639 Tampa, Florida 36602 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact The Petitioner desires to construct a 180-bed nursing home facility. The proposed facility was originally conceived by the Winter Haven Hospital. The hospital was seeking to construct the facility adjacent to its present location. The hospital planned to utilize Federal Economic Development Agency funds to finance the construction. Under Federal regulations, Economic Development Agency funds are not available to a private hospital, but are available to local governmental units. The Petitioner agreed to seek the certificate of need, to apply for Economic Development Agency funds, and to construct the facility. After construction it is the Petitioner's plan to contract with the Winter Haven Hospital to operate the facility. Petitioner's request for certificate of need was forwarded to the South Central Florida Health Systems Council, Inc., and to the Respondent. The Health Systems Council, by a seven to six vote, recommended to the Respondent against the issuance of a certificate of need. The Council's written recommendation to the Respondent was never forwarded to the Petitioner, or to the Winter Haven Hospital. The Respondent denied the request for issuance of certificate of need by letter dated December 30, 1976. The Respondent's denial was based upon a mechanical application of the Florida State Plan for Construction of Hospitals and Related Medical Facilities. The sole basis for the denial was that in accordance with population figures set out in the State Plan, and in accordance with the application of a Federally required formula to the population figures, there is no need for the additional nursing home beds proposed by the Petitioner. No independent determination was made by the Respondent as to actual needs for nursing home facilities that might exist in Polk County. In the Florida State Plan for Construction of Hospitals and Related Medical Facilities, it was determined that 252 additional long-term care beds were needed in Polk County. At the time that the plan was promulgated, Kennedy Center, a new nursing home facility located in Lakeland, Florida, was not actively under construction. Since the plan was adopted, active construction of the Kennedy Center has commenced. At the time of the hearing 120 beds had been opened and made available at the Kennedy Center, and an additional 120 beds were being constructed. When the Kennedy Center is considered, there remains a need of only 12 additional long-term care beds in Polk County. Obviously the Petitioner's proposed 180-bed facility would greatly exceed the need envisioned in the State Plan. Petitioner offered evidence in the form of a publication of the Bureau of Economic and Business Research at the College of Business Administration, University of Florida, which indicates that the population of Polk County is somewhat higher than that set out in the State Plan (Petitioner's Exhibit 3). If these population figures, rather than those set out in the State Plan were utilized, there would remain a need for 252 long-term care beds in Polk County, even after construction of the Kennedy Center (Petitioner's Exhibit 5). There is no means of determining from the evidence whether the population figures submitted by the Petitioner are more or less accurate than those set out in the State Plan. Petitioner offered evidence that it has had difficulty placing certain classes of patients in nursing home facilities. This difficulty in fact prompted the Petitioner to seek a certificate of need for a new nursing home facility. Petitioner takes the responsibility for placing indigent persons in need of nursing home care. The State Medicade Program contributes the bulk of the cost of the care. Three categories of nursing home care are identified for Medicade purposes. These are "skill care", "intermediate I" and "intermediate II" patients. Skill care patients are the most infirm, and intermediate II care patients are the least infirm. The Medicade program allots more money for skill care patients than it does for intermediate care patients. Because of this private nursing home facilities often reject intermediate care patients in favor of skill care patients. The Petitioner has accordingly experienced difficulty in placing indigent intermediate care patients. The Petitioner has had to place 86 patients in nursing home facilities outside of Polk County. The opening of the Kennedy Center will alleviate most of the placement difficulties that the Petitioner has experienced. Approximately 100 beds at the Kennedy Center will be available for "intermediate II" patients. In addition, the operator of the "Grovemont Home" in Winter Haven, Florida, appeared at the hearing and stated that his facility would accept Medicade intermediate care patients, and that they are not running at full capacity. The Petitioner had not previously been placing Medicade patients in the Grovemont Home.
The Issue Whether Respondent failed to protect one of the residents of its facility from sexual coercion. Whether Respondent failed to report the alleged violation immediately to the administrator.
Findings Of Fact Petitioner is the state agency charged with licensing and regulating nursing homes in Florida, under state and federal statutes. Respondent is a licensed nursing facility located in Orlando, Florida. Respondent is a small not-for-profit facility, overseen by a voluntary board of directors. Resident 2 is a Hispanic male, 57 years of age, who speaks English and Spanish fluently. He was a self-admitted resident at Respondent's nursing home facility during the relevant time period. Respondent is a small, not-for-profit facility, overseen by a voluntary board of directors. Respondent receives its funds to operate through various types of sources such as United Way, City of Orlando, Orange County, and many foundations. At all times material hereto, Petitioner is the state agency charged with licensing of nursing homes in Florida and the assignment of a licensure status. The statute charges Petitioner with evaluating nursing home facilities to determine their degree of compliance with established rules as a basis for making the required licensure assignment. Additionally, Petitioner is responsible for conducting federally mandated surveys of those long-term care facilities receiving Medicare and Medicaid funds for compliance with federal statutory and rule requirements. These federal requirements are made applicable to Florida nursing home facilities. Pursuant to the statute, Petitioner must classify deficiencies according to the nature and scope of the deficiency when the criteria established under the statute are not met. The classification of any deficiencies discovered is determinative of whether the licensure status of a nursing home is "standard" or "conditional." The evaluation, or survey, of a facility includes a resident review and, depending upon the circumstances, may consist of record reviews, resident observations, and interviews with family and facility staff. Surveyors note their findings on a standard prescribed Center for Medicare and Medicaid Services Form 2567, titled "Statement Deficiencies and Plan of Correction" and is commonly referred to as a "2567" form. During the survey of a facility, if violations of regulations are found, the violations are noted and referred to as "Tags." A "Tag" identifies the applicable regulatory standard that the surveyors believe has been violated, provides a summary of the violation, sets forth specific factual allegations that they believe support the violation and indicates the federal scope and severity of the noncompliance. Agency surveyors use the "State Operations' Manual," a document prepared by the U.S. Department of Health and Human Services, Center for Medicare and Medicaid Services, as guidance in determining whether a facility has violated 42 Code of Federal Regulations (C.F.R.), Chapter 483. In March 2003, Petitioner conducted a survey to investigate a complaint that Respondent failed to protect a resident from sexual coercion. The allegation of the deficient practice was based upon an incident involving Resident 2. Pursuant to 42 C.F.R. Section 483.13(b), a nursing facility must assure that a resident has the right to be free from verbal, sexual, and mental abuse. Failure to do so constitutes a deficiency under Florida Statutes. At hearing, Petitioner presented the testimony of Jane Woodson, nursing program specialist, employed by Petitioner. Woodson testified that she does state and federal surveys in both state and federal licensure and federal institutions to identify or define any noncompliance. She visited Respondent's facility on or about March 26, 2003, and prepared a 2567 form based on her observations, interviews, and record review. It details the results of her investigation, including her interviews with the director of nursing, the administrator, the social worker, the compliance officer, a licensed practical nurse (LPN), and the assistant director of nursing. She also toured the total facility, observed its residents and also observed Resident 2. Woodson observed that Resident 2 was a well-dressed, alert male, and she spoke to him about the incident on March 15, 2003. Woodson did not have an interpreter present at any time when she interviewed Resident 2, nor did she consider it necessary to do so. At no time did she have any concern that Resident 2 was not mentally competent to understand her when she interviewed him. Woodson was not aware that Resident 2 signed his own financial responsibility forms, patient's rights statement, or that he voluntarily checked himself into the facility. She was not aware that Resident 2 made his own medical decisions in the facility. Following her investigation, Woodson conducted an exit interview with the administrator, the director of nursing, the assistant director of nursing, the social worker, and the compliance offer. Woodson included in her report a document filled out by Sharon Ebanks (Ebanks), registered nurse (RN), but she did not personally interview Ebanks. She also did not interview Marilyn Harrilal, LPN, nor did she interview the employee involved in the incident. She advised the administrator of her finding a Class II deficiency and provided a correction date of April 17, 2003. She also concluded that this was an isolated incident. Ebanks was the weekend charge nurse on March 15, 2003, and was in charge of the facility on that date. Ebanks was working on the north wing when she was called by Mr. Daniels, a LPN working on the south wing. Daniels told Ebanks about the alleged incident between Resident 2 and the staff person. Ebanks then called Resident 2; the employee, Marcia Dorsey (Dorsey); and the certified nursing assistants (CNAs), Ms. Polysaint and Ms. Mezier (first names not in the record), who had witnessed the incident, to the green room. She also asked Harrilal to act as a witness to her interviews with the individuals involved. Ebanks first spoke to Resident 2 and Dorsey, both of whom stated that nothing had happened. She then questioned the two CNAs about what they had witnessed. Ebanks concluded, after interviewing both the participants and the witnesses, that the incident was not abuse, but rather, was inappropriate behavior on the part of both Resident 2 and the employee. She based this conclusion on the fact that Dorsey is a trainable Dows Syndrome individual, who was supposed to be working when the incident occurred. Ebanks concluded that Resident 2 had not been abused or hurt in any manner and had participated voluntarily. Ebanks noted that Resident 2 makes his own medical decisions, is considered to be mentally competent, has never been adjudicated mentally incompetent and has not had a legal guardian appointed for him. Ebanks concluded that Resident 2 had not been abused. Ebanks testified that she completed a Resident Abuse Report on March 20, 2003, concerning the incident, after being asked to do so by Respondent's compliance officer. The resident abuse report was admitted into evidence as Respondent's Exhibit 1. At the time of the initial investigation of the incident, Ebanks asked Harrilal to accompany her to the green room. While there, Harrilal listened as Ebanks first questioned Resident 2 and then Dorsey. Both stated that nothing happened. Harrilal then witnessed Ebanks question the CNAs, Polysaint and Mezier. Woodson did not interview Harrilal during her investigation. Ann Campbell, RN, a nurse for more than 38 years, was functioning in the role of assistant director of nursing on March 15, 2003. She was not in the facility on that day and was not made aware of the incident on the date of its occurrence, but became aware when she returned to work. Campbell is familiar with Resident 2. He was initially admitted with a diagnosis of alcohol abuse and dementia. She observed that he was a little confused and forgetful when first admitted, but has since became more alert and responsive. Michael Annichiarico, administrator of the facility and custodian of records, including medical records and personnel files, reviewed the personnel file of the employee, Dorsey. There were no disciplinary actions or counseling prior to the incident of March 15, 2003. Annichiarico is familiar with Resident 2 and has interacted with him. Annichiarico testified that, according to the resident's medical record, Resident 2 has never been declared mentally incompetent and that he makes his own medical and financial decisions. The Progress Note of Gideon Lewis, M.D., dated October 9, 2003, with transcription, was admitted into evidence as Respondent's Exhibit 2 and indicates that Resident 2 is mentally competent and is responsible for his actions as his cognitive functions are intact. Patricia Collins, RN, testified as an expert in the areas of nursing, long-term care, nursing home rules and regulations, and survey procedures. Collins is a RN, currently working in consulting work. She reviewed documents related to the incident. She went to the facility on two different occasions and interviewed the staff. She also reviewed the documents contained in the report of Woodson's survey. Collins interviewed the two CNAs, Ebanks, Resident 2, the medical records custodian, the director of nursing, the social worker, and Harrilal. She spent approximately four to five hours in the facility. After speaking with Resident 2, Collins concluded that he was cognitively intact and very alert. He appeared to be mentally competent. Before interviewing Resident 2, Collins reviewed his resident chart and the documents used to sign himself into the facility. She also reviewed physician's orders for medication, progress notes, nurses' notes, the MDS and the care plan. Collins testified that she reviewed the resident's financial responsibility statement and patient's rights statement, both of which were signed by the resident himself. The resident had no legal guardian. Collins concluded that during the incident of March 15, 2003, there was some inappropriate behavior that needed to be addressed and that this behavior was properly addressed by staff. The inappropriate behavior was the observation of hugging and kissing between Dorsey and Resident 2 in an empty resident's room while the employee was on duty. Collins was of the opinion that the behavior was mutual and not abuse. Collins found no reason to conclude that any harm had been done to Resident 2. Collins testified that a nursing home resident has the right to associate with whomever he desires. He also has the right to have voluntary and willing sexual contact with other people. The inappropriateness in this incident was due to the fact that Resident 2 had involvement with someone with mental deficits. The incident was inappropriate on the part of the employee as well, since she was participating in it during her working time. Collins disagrees with the findings of Petitioner's surveyor. Collins testified that the investigator should have determined the abuse allegation was unfounded. According to Collins' expert testimony, the facility staff acted appropriately. The CNA who initially observed the activity called another CNA as a witness. They then went to their supervisor, who then went to the ranking nurse at the facility at that point in time, which was Ebanks. Ebanks questioned the employee, Resident 2 and the witnesses. She had the presence of mind to have a witness there as well, which was Harrilal. Ebanks made the determination, based on her nursing judgment and in her authority as nurse in charge of the facility on that day, that there was inappropriate behavior on behalf of Resident 2 and the employee. She put a care plan in place as to Resident 2, separated the employee and Resident 2, and sent the CNAs back to work. Collins testified there was no need to report the incident to the Department of Children and Family Services because there was no evidence of abuse or harm to Resident 2. Collins' testimony is found to be credible. Based on all the evidence, it is found and determined that an incident occurred at Respondent's facility on Saturday, March 15, 2003, at approximately 11:00 a.m., involving Resident 2 and a staff employee of Respondent, Dorsey. Resident 2 and the employee were seen by staff employees sitting on a bed hugging and kissing each other in a resident's room that was not being used at the time. Two CNA employees witnessed and reported the incident to the charge nurse. Ebanks was the charge nurse on duty on March 15, 2003. Ebanks was advised of the incident shortly after it occurred and interviewed both Resident 2 and the employees involved, as well as the employees who witnessed the incident. The interviews were conducted in the presence of Harrilal. She completed a Resident Abuse Report on March 20, 2003, at the request of the risk manager within four business days of the incident, and the administrator was advised of the incident on the first business day after the incident. Resident 2 was alert and oriented on the date of the incident. Although he had a low level of dementia, he was mentally competent at the time of the incident. He does not meet the definition of an "elderly person" or "vulnerable adult" under Chapter 415, Florida Statutes.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order of dismissal of the Administrative Complaint be entered in this case. DONE AND ENTERED this 28th day of January, 2004, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of January, 2004. COPIES FURNISHED: George F. Indest, III, Esquire The Health Law Firm Center Pointe Two 220 East Central Parkway, Suite 2030 Altamonte Springs, Florida 32701 Gerald L. Pickett, Esquire Agency for Health Care Administration Sebring Building, Suite 330K 525 Mirror Lake Drive, North St. Petersburg, Florida 33701 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Suite 3431 Tallahassee, Florida 32308
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint, and, if so, what sanctions, if any, should be imposed.
Findings Of Fact Based on the evidence adduced at the final hearing and the record as a whole, including the factual stipulations contained in parties' Joint Prehearing Stipulation,2 the following findings of fact are made: Respondent operates a Skilled Nursing Facility (Facility) located at 5725 N.W. 186th Street in Hialeah, Florida. The Facility is licensed by the Agency under Chapter 400, Part II, Florida Statutes. Aida Rodriguez has been a Florida-Certified Nursing Assistant (CNA) for the past three or four years. Ms. Rodriguez was employed as a CNA at the Facility on a part-time basis from November 6, 2002, until March 31, 2003, when she resigned for "family reasons." She worked only Fridays, Saturdays, and Sundays. Among the residents living in the Facility during the period of Ms. Rodriguez's employment were Residents 16 and 30.3 In accordance with his care plan, when Resident 30 was in the dining room for a meal, "staff [were] supposed to keep an eye on him" and "encourage him and attempt to assist him [if] he stop[ped] feeding himself" and needed help. Resident 30's daughter was often with her father at mealtime and provided him with whatever assistance he required, thus obviating the need, on these occasions, for staff intervention. On Saturday, March 15, 2003, Ms. Rodriguez was in the dining room when she observed Resident 30, without his daughter, seated at a table with a plate of uneaten food, that had been served a half an hour earlier, in front of him. Ms. Rodriguez approached Resident 30 and "offered him help." Ms. Rodriguez, who is bilingual in Spanish and English,4 spoke to Resident 30 in Spanish. Resident 16, who was nearby, interjected. She rebuked Ms. Rodriguez by telling her, "Don't touch him because the daughter is coming to assist him with feeding." Ms Rodriguez replied, in English, to Resident 16, who is not Spanish-speaking, "Let me ask Resident 30." Ms. Rodriguez then asked Resident 30, "Do you want water? Do you want me to help you?" Resident 30 responded, "Give me water." Ms. Rodriguez did as she was asked. After Resident 30 finished the glass of water Ms. Rodriguez had given him, Ms. Rodriguez asked Resident 30 if he "want[ed] to eat." When Resident 30 responded in the negative, Ms. Rodriguez left and tended to other business. At no time did Ms. Rodriguez tell Resident 16 to "shut up" or that Resident 16 should "mind [her] own business." At no time did Ms. Rodriguez force Resident 30, against his will, to eat or drink.5 Jeannette Barrett is now, and was at all times material to the instant case, a Florida-Licensed Practical Nurse (LPN) employed at the Facility. Ms. Barrett was in the dining room on March 15, 2003, when Ms. Rodriguez came over to the area where Residents 16 and 30 were seated. From her vantage point, Ms. Barrett was able to visually observe the encounter. Ms. Barrett did not "see Resident 30 get upset or aggravated during that meal." Ms. Barrett was unable to "hear any conversation between [Ms.] Rodriguez and Resident 16." As Resident 16 was leaving the dining room in her wheelchair, she "calm[ly]" told Ms. Barrett that she did not want Ms. Rodriguez "put[ting] [her] back to bed." When Ms. Barrett asked her why, Resident 16 responded, untruthfully, that Ms. Rodriguez had told her to "mind [her] own business" when she had suggested to Ms. Rodriguez that perhaps Resident 30 did not want to eat because he was waiting for his daughter to come and feed him.6 Ms. Barrett immediately informed the LPN who supervised the CNAs on Resident 16's "side" of the Facility of Resident 16's request and, in accordance with Facility policy, another CNA was assigned to care for Resident 16. Delia Rudio was the Director of Nursing at the Facility from February 11, 2002, until July 31, 2003.7 Ms. Rudio was not at the Facility on March 15, 2003. She was off from work that weekend. Upon Ms. Rudio's return to the Facility the following Monday, March 17, 2003, Ms. Barrett reported to Ms. Rudio about the conversation she had had with Resident 16 the previous Saturday and asked Ms Rudio to speak with Resident 16 and Ms. Rodriquez to sort out what had really happened in the dining room. Ms. Barrett brought the matter to Ms. Rudio's attention because it would have been "rude," in Ms. Barrett's opinion, for Ms. Rodriguez to have told a resident to "mind [her] own business." Tony Farinella is now, and was at all times material to the instant case, the Administrator of the Facility. On March 17, 2003, Mr. Farinella conducted a department supervisors meeting, at which (as his notes of the meeting, which were offered and received into evidence as Respondent's Exhibit 9, reflect) he was advised, by Ms. Rudio, of the "concerns" that Resident 16 had expressed, over the weekend, to Ms. Barrett regarding Ms. Rodriguez. That same day, after having received Ms. Barrett's report on the matter, Ms. Rudio spoke with Resident 16, Ms. Rodriguez, and other CNAs who were on duty at the Facility the previous Saturday with Ms. Rodriguez. Ms. Rudio asked them if there had been any problems at the Facility over the weekend. They all responded in the negative, indicating that the weekend had been uneventful with no unusual occurrences. Having talked to these individuals, Ms. Rudio reasonably believed that "nothing had occurred . . . over the weekend" that required her to take any remedial action. Ms. Rodriguez was not formally suspended pending Ms. Rudio's inquiry; however, Ms. Rudio concluded her inquiry before Ms. Rodriguez was next scheduled to report to work. Prior to the relicensure survey that led to the filing of the instant Administrative Complaint, Ms. Rudio did not document that she had done anything in response to the report she had received from Ms. Barrett concerning Resident 16's allegations against Ms. Rodriguez. Ms. Rudio, though, did verbally relate, at a department supervisors meeting conducted by Mr. Farinella on March 18, 2003, that she had looked into the matter and found that, in fact, there had been "no problem[s]" involving Resident 16 the previous weekend (as Mr. Farinella's notes of the meeting, which were offered and received into evidence as Respondent's Exhibit 10, reflect). The Agency conducted its relicensure survey of the Facility from March 31, 2003, through April 3, 2003. Elizabeth Rojas-Mariaca, a Health Facility Evaluator II with the Agency, was involved in conducting the survey. Resident 16 was interviewed during the survey. She alleged that, some time previous, Ms. Rodriguez had "told her to shut up and mind her own business" and that she (Resident 16) had "brought those allegations to the [attention of] the LPN [Ms. Barrett]." Resident 16 indicated that she "fe[lt] bad[ly] because Ms. Rodriguez was nasty and mean to [her]," but "still work[ed] there" at the Facility. Ms. Rojas-Mariaca spoke to staff at the Facility, including Ms. Barrett and Ms. Rudio, about Resident 16's allegations. She did not communicate, however, with either Ms. Rodriguez or Resident 30. When Ms. Rojas-Mariaca initially requested "some type of documentation" showing that, in accordance with the Facility's policy, an "investigation [into Resident 16's allegations] had been done" and documented, the Facility was unable to produce any such documentation. Shortly thereafter, however, the Facility prepared such documentation. Copies thereof were provided to Ms. Rojas- Mariaca and placed in the file the Facility maintained on Resident 16. The documentation accurately indicated that the Facility's investigation had revealed that Resident's 16's allegations were unfounded. Cindy Goldman, a Public Health Nutrition Consultant with the Agency, also participated in the survey. While at the Facility on April 1, 2003, Ms. Goldman went into a room in the sub-acute wing of the Facility shared by Resident 31 and another resident. Resident 31 was a recent admittee to the Facility. While she was "able to move her upper extremities" freely, as an amputee with only one leg, she needed assistance moving the lower half of her body. She was unable to, among other things, get on or off a bedpan by herself. When Ms. Goldman entered Resident 31's room, she observed Resident 31 lying in her bed with a bedpan under her buttocks. Resident 31 complained to Ms. Goldman that she was "in pain" as a result of having "been on the bedpan since yesterday"8 and she asked if Ms. Goldman could help her. There was a "call bell" tied to the upper bed rail to the right of Resident 31, which Ms. Goldman asked Resident 31 to "try to reach." Resident 31 moved her arm but not far enough to make contact with the "call bell." Ms. Goldman then activated the "call bell" to get assistance for Resident 31. Linda Mohammad, an LPN at the Facility, was in the sub-acute wing of the Facility when she noticed the "call light" outside of Resident 31's room was on. Ms. Mohammad was not "the person who [had] placed [Resident 31] on the bedpan."9 Ms. Mohammad nonetheless went to Resident 31's room and, after knocking on the door and entering the room, asked if she could be of any assistance. Ms. Goldman, who was standing in between the two beds in the room, responded that, according to what she had been told, Resident 31 had "been on the bedpan since yesterday." Ms. Mohammad then went to Resident 31's bedside. Resident 31 was "[i]n a normal position [on the bed] with her head up toward the head of the bed [which was elevated at approximately a 45 degree angle] on the pillow." As was apparent to Ms. Mohammad, based upon her past experiences with Resident 31, the "call bell" on the upper bed rail was within Resident 31's reach. On previous occasions, Ms. Mohammad had come to Resident 31's assistance in response to the activation of Resident 31's "call bell" and had found Resident 31 in the same position in relation to the "call bell" as she was in on this particular occasion.10 After putting on gloves, turning off the "call bell," and closing the privacy curtain around Resident 31's bed, Ms. Mohammad cleaned Resident 31 and removed and emptied the bed pan that she had been on. At no time did Resident 31 complain to Ms. Mohammad that she was in pain. When Ms. Mohammad "asked [Resident 31] if she was okay," Resident 31 "stated that she was fine." Ms. Mohammad re-opened the privacy curtain and left the room (which Ms. Goldman had already vacated), but not before making "sure [that Resident 31] was comfortable" and that "the call bell was still within [Resident 31's] reach."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Agency issue a final order dismissing the instant Administrative Complaint in its entirety. DONE AND ENTERED this 22nd day of December, 2003, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 2003.
The Issue Whether Respondent committed deficient practices as alleged in violation of 42 C.F.R. Section 483.13(b) and 42 C.F.R. Section 483.13(c)(1)(ii), adopted by reference in Florida Administrative Code Rule 59A-4.1288; and if so, whether Petitioner should impose a civil penalty in the amount of $5,000 and issue a conditional license to Respondent.
Findings Of Fact Petitioner is the state agency charged with licensing and regulating nursing homes in Florida under state and federal statutes. Petitioner is charged with evaluating nursing homes facilities to determine their degree of compliance with established rules as a basis for making the required licensure assignment. Additionally, Petitioner is responsible for concluding federally-mandated surveys of those long-term care facilities receiving Medicare and Medicaid funds for compliance with federal statutory and rule requirements. These federal requirements are made applicable to Florida nursing home facilities. Pursuant to the statute, Petitioner must classify deficiencies according to the nature and scope of the deficiency when the criteria established under the statute are not met. The classification of any deficiencies discovered is determinative of whether the licensure status of a nursing home is "standard" or "conditional." Respondent is a 98-bed nursing home located at 1024 Willow Springs Drive, Winter Springs, Florida, and is licensed as a skilled nursing facility. On May 30, 2003, Petitioner's staff conducted an inspection, also known as a survey, at Respondent's facility. Upon completion of the survey, Petitioner issued a document entitled, Center for Medicare and Medicaid Services, CMS Form 2567L, also known as a "2567," which contains a statement of the alleged violations of regulatory requirements, also referred to as "deficiencies," titled "Statement of Deficiencies and Plan of Correction." The evaluation or survey of a facility includes a resident review and, depending upon the circumstances, may consist of a record, reviews, resident observations, and interviews with family and facility staff. Surveyors note their findings on the 2567 Form, and if violations of regulations are found, the violations are noted and referred to as "Tags." A tag identifies the applicable regulatory standard that the surveyors believe has been violated, provides a summary of the violation, sets forth specific factual allegations that they believe support the violation, and indicates the federal scope and severity of the noncompliance. Petitioner's surveyors use the "State Operations Manual," a document prepared by the United States Department of Health and Human Services, Center for Medicare and Medicaid Services, as guidance in determining whether a facility has violated 42 C.F.R. Chapter 483. Count I In Count I of the Administrative Complaint, Petitioner alleges that Respondent's staff subjected three residents (Resident Nos. 6, 13, and 18) to verbal and mental abuse in violation of 42 C.F.R. Section 483.13(b), which provides that a nursing home resident has the right to be free from verbal and mental abuse. As to Resident No. 6, Petitioner contends that this resident stated to a surveyor that the resident had "overheard" a certified nursing assistant (CNA) loudly tell another staff member that the resident was "going to the bathroom 25 times a day." Petitioner believes the CNA's statement, which was allegedly "overheard," occurred sometime during the month of March 2003, based upon nurses' notes which indicate Resident No. 6 had an episode of diarrhea during this time. However, the nurses notes also reveal that during this time Resident No. 6 was subject to confusion and nonsensical outbursts. Petitioner's belief that Resident No. 6 was a reliable historian is based on Petitioner's mistaken belief that Resident No. 6 was admitted about March 30, 2003, and was alert and oriented and not confused upon admission. Petitioner's staff exhibited a lack of understanding of the timing and significance of the Multiple Data Set (MDS) forms describing Resident No. 6's mental condition upon which they relied. In fact, Resident No. 6 was admitted in mid-February 2003 and exhibited confused and eccentric behavior. The "overheard" comment was not reported to Respondent until the survey. Therefore, the evidence that this incident occurred as described by Petitioner is unreliable hearsay. Surveyors reviewed Respondent's records, which contained a complaint from a family member of Resident No. 6 that the same CNA had noticed that the resident had a physical anomaly. The CNA called other CNAs to view this anomaly, which was located in Resident No. 6's genital area. Respondent learned of the allegations relating to Resident No. 6's physical anomaly on April 21, 2003, from a family member of Resident No. 6. Respondent immediately began an investigation, including an interview with and physical examination of Resident No. 6 and an interview with the CNA. The resident only stated that she did not want this CNA taking care of her any longer. The CNA denied the allegations. The CNA was suspended pending investigation and later terminated based upon directions from Respondent's corporate office based on additional, unrelated information. The incident was reported to the Department of Children and Families (DCF) Abuse Hot Line on April 22, 2003. Although Resident No. 6 and her family member had frequent contact and conversation with Respondent's director of nursing (DON), neither had ever complained about the CNA's conduct. Respondent's DON observed no mental distress on the part of Resident No. 6 after Respondent's DON learned of the allegations. Petitioner alleges that this CNA had observed the physical anomaly for the first time. If that is true, it would be expected that the CNA would consult other nursing staff to address potential nursing issues. As to Resident No. 13, Petitioner alleges verbal abuse based upon the allegation that Resident No. 13 reported to a surveyor that she found a male resident sitting on her bed in her room. When this was reported by Resident No. 13 to one of the Respondent's nurses, the resident alleged that the nurse "laughed at" the resident. This incident was reported by Resident No. 13 to Respondent's DON shortly after it happened. Respondent's DON interviewed the resident and the two nurses who were on duty at the time. The nurses reported that they assured Resident No. 13 that everything was okay, escorted the male resident to his room, and Resident No. 13 went to bed with no complaint or distress. This incident was reported by Resident No. 13 to Respondent's DON in a joking manner, as an event and not as a complaint. Although Respondent's DON was concerned that the nurses should respond appropriately and was also concerned that the wandering resident be identified, Respondent's DON did not believe that the incident constituted any form of abuse. Respondent's DON did not observe this incident to have any adverse impact on Resident No. 13. During the survey, Petitioner's surveyor advised Respondent that the incident should have been investigated and reported to the DCF Abuse Hot Line. Respondent's DON completed a written report and called the DCF Abuse Hot Line and related the incident. The incident did not meet the DCF guidelines for the reporting of abuse. On or about March 30, 2003, two surveyors observed Resident No. 18 in her wheelchair as she approached the nurse's station. One of Respondent's nursing staff spoke in a "curt, loud voice" to Resident No. 18. The resident had approached the nurses' station to ask for her medication, to which the nurse replied: "I told you I will give you your medicine." Resident No. 18 was hearing-impaired and was documented in her medical record as one to whom staff "must speak loudly." This resident did not wear any hearing assistance devices. Respondent's staff credibly described this resident as one to whom staff had to speak loudly and in clipped words for the resident to understand. Petitioner's surveyors did not speak to this resident after the alleged incident. There is no evidence that this incident had any effect on the resident or even that the resident heard the staff member. The incident does not rise to the level of verbal abuse of the resident. Count II Count II of the Administrative Complaint alleges a violation of 42 C.F.R. Section 483.13(c)(1)(ii), which provides that a nursing home must develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse; and that the nursing home must not employ individuals who have been found guilty of abuse or neglect or are listed in the state nursing aide registry with a finding of abuse, neglect, or mistreatment. Count II is based on the allegation that Respondent failed to report to Petitioner (the appropriate "state agency") the incidents involving Resident No. 13 and 18 and other allegations of abuse or neglect, which the surveyor allegedly identified in Respondent's log of grievances. Respondent has in place written policies and procedures regarding abuse and neglect and its staff receive regular training regarding these policies and procedures. Petitioner has offered no evidence that these written policies and procedures or the staff's knowledge of these policies and procedures is inadequate. With regard to Resident No. 13, when Respondent's DON learned of the incident from the resident, Respondent's DON made inquiries of nursing staff who were on duty at the time, in addition to interviewing the resident. Respondent's DON did not consider any aspect of the incident to constitute abuse or neglect. Later, after Petitioner alleged, during the survey, that the incident should have been reported to DCF, Respondent's DON prepared a written report of the incident and called and related the incident to the DCF Abuse Hot Line. Respondent's DON was advised by DCF that the incident did not meet DCF's requirements for reporting. Respondent is required to report all allegations of abuse and neglect to the DCF's Abuse Hot Line. Petitioner does not dispute this fact. Instead, Petitioner contends that Respondent is also required to report allegations of abuse and neglect to the "state agency" and that Respondent failed to do so. The "state agency" for the purpose of federal regulations is Petitioner. Petitioner's allegations are based upon its review of Respondent's grievance log, which Petitioner's surveyors say allegedly records 18 incidents of alleged abuse, none of which was reported to the state agency. At the time of the survey, Respondent was a part of the Mariner Corporation. It has since disassociated from that corporation and changed its name to Tuskawilla Nursing and Rehabilitation Center, effective October 1, 2003. At the time of the survey, all reporting of abuse allegations were done by the corporate regional risk management department, and it is not known if they reported any of the incidents cited by the surveyors to Petitioner. However, the document received in evidence, which has many more than 18 entries in summary style, is almost completely illegible. Petitioner's witness was unable to identify any entries on this document which could be identified as alleged abuse and which had not been properly reported. Understanding this document requires substantial explanation, which was never provided. Standing alone, this document is not probative of any fact. Petitioner offered no evidence that Respondent employed any individuals who had been found guilty of or who had been listed on the nurse aide registry of abusing, neglecting, or mistreating residents. Even if it is assumed that Respondent should have reported but did not report to Petitioner the 18 alleged incidents or the incident regarding Resident No. 13, Petitioner offered no evidence that reporting this information to DCF, but not to Petitioner, had any impact on any resident or prevented a resident from maintaining or achieving the resident's highest practicable physical, mental, or psychosocial well-being. Count III Since there is no proof of Class II deficiencies, there is no basis for imposing a conditional license status on Respondent for the period May 30, 2003, until July 8, 2003.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that a final order of dismissal of the Administrative Complaint be entered in this case. DONE AND ENTERED this 31st day of March, 2004, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 2004. COPIES FURNISHED: Alfred W. Clark, Esquire 117 South Gadsden Street, Suite 201 Post Office Box 623 Tallahassee, Florida 32302-0623 Gerald L. Pickett, Esquire Agency for Health Care Administration Sebring Building, Suite 330K 525 Mirror Lake Drive, North St. Petersburg, Florida 33701 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308
Findings Of Fact Based on my obersvation of the witnesses and their demeanor while testifying, the arguments of counsel, and the briefs which were filed post- hearing, the following relevant facts are found. Ernest B. Brown is the holder of Post-Graduate Rank II Florida Teaching Certificate No. 167290, covering administration and supervision, elementary education and junior college which by its term is valid until June 30, 1985. Ernest Brown, Respondent, has been employed in the public schools of Pinellas County as fifth grade teacher at Gulf Beaches Elementary School since August, 1975, and was on continuing contract during the 1976-77 school year. He resigned effective May 31, 1977 after inquiries were raised concerning his personal conduct with a female fifth grade student (Michelle Stewart). Thereafter the Department of Education received a report from the Pinellas County School officials on or about June 1, 1977 indicating that Respondent had been charged with lewd and lascivious acts in the presence of a female child under the age of 14 and handling and fondling a female child under the age of 14 years. Pursuant thereto and following an inquiry by the staff of the Professional Practices Council, on July 18, 1977, said Council issued a report to the Executive Committee of the Professional Practices Council whereupon the Executive Committee recommended that the Commissioner of Education find that probable cause exist to believe that Respondent is guilty of acts which provide grounds for the revocation of his Florida teaching certificate. By letter dated July 27, 1977, the Commissioner found probable cause and directed the filing of the instant petition herein. Michelle Stewart, eleven years old and presently a fifth grade student at Gulf Beaches Elementary School, was a student of Respondent while she completed here third grade instruction. Ms. Stewart was approximately three weeks late reporting for classes during her third grade school year. After being in school for approximately two weeks, she sought assistance from Respondent regarding problems she was having with her math. At that time, there were approximately three or four other students also seeking assistance from the Respondent. Respondent asked Michelle to sit in a chair behind his desk where she waited until the other students had received their assistance. According to Ms. Stewart, Respondent asked to touch her pants in the crotch section. Ms. Steward was shocked but did not protest when the Respondent touched her in the seat of her pants for approximately one minute. On another occasion, Respondent was invited to attend a birthday party given at Michelle's house by her. Respondent was reluctant to attend inasmuch as he did not have a gift to give her. He reluctantly agreed to attend based on the enticement of Ms. Stewart, her mother, and several other students who attended the party. When persuaded to attend the party, Respondent agreed only to come if Ms. Stewarts mother permitted him to take Ms. Stewart shopping for some clothing within the next few days. As best as can be determined from the record, it appears that the birthday party was during the early part of May, 1977. Within a few days, Respondent arranged to take Ms. Stewart shopping by obtaining permission from her mother. However, as the facts were later brought out, it appears that Respondent obtained permission from Ms. Stewart's mother by telling her that he wanted Ms. Stewart to assist him in arranging some books on his book shelves, and Ms. Stewarts mother agreed with the condition that Ms. Stewart be brought back home before six oclock. Ms. Stewart testified that she was picked up by Respondent and taken to his home where they were alone. Immediately after entering Respondents house, he asked here if she was hungry and whether or not she would like to fix herself a sandwich and watched TV for a few minutes. Thereafter Respondent took some pictures of here with his Polaroid camera. Respondent later offered her some clothing and brought them out telling her that she could try the dresses on in his presence. Ms. Stewart undressed in Respondent's presence and when she finished trying on her dresses that he had purchased, Respondent went to the bathroom and undressed, entering his living room area with only his shirt on. During this time Ms. Stewart was undressed and Respondent asked her to lie down on the floor where he had placed a towel and had relocated an electric fan positioned so that it would blow down on them. She testified that he laid on top of her for approximately ten minutes stroking and kissing her. After this incident was over (approximately ten minutes) Respondent pleaded with Ms. Stewart to refrain from telling anyone about the incident to which she agreed. However she testified that she did tell some of her friends about the incident. Ms. Stewart testified that during the next school year she opted to be in another teacher's classroom and Respondent rebelled by talking to her and here mother in an attempt to get her to change her mind. She refused to do so because she wanted to be in the class with a neighbor and her boyfriend. During the school year Ms. Stewart recalled that she and approximately two other students were taken to several extracurricular activities by Respondent after school hours, including the circus, lipizian stallions, and Holiday on Ice. Detective William Creekbaum presently employed as a real estate salesman, was formerly employed as a detective with the St. Petersburg Police Department was assigned to investigate complaints regarding incidents that the Respondent had allegedly been engaged with several minor students including Michelle Stewart. Detective Creekbaum was assigned to investigate the case on or about May 19, 1977 at which time, and during the course of his investigation, he interviewed approximately ten minor female students. On May 31, 1977, he decided that he should contact the Respondent and make certain inquiries of him, which he did at the school. He visited the school and asked the Respondent to come with him down to the police station for some questions. The Respondent drove his car down to police headquarters and a statement was given to Detective Creekbaum. Prior therto, Respondnent was apprised of his rights per Miranda. Detective Creekbaum explained to Respondent the necessity of his being truthful during his investigation, although he stressed the fact that he made no promises that the matter would be handled internally". He testified, and the statements bear out the fact that the Respondent was, in fact, advised that the investigation was criminal in nature. Initially, during the interview, Respondent denied the material allegations of the charges that he had fondled Michelle Stewart, however, upon repeated questioning by Detective Creekbaum, Respondent admitted that he had fondled Michelle Steward as charged. Although Respondent's position on this admission is that he only told Detective Creekbaum that he had fondled Michelle Stewart because he "thought that was what he wanted to hear and further he was led to believe that nothing would come of it". After the admissions by Respondent, Detective Creekbaum advised Respondent that he was under arrest where he was taken to the booking section of the police department. Immediately thereafter, Douglas McBriarty, an employee of the personnel department for the Pinellas County school system and charged with resolving teacher problems, visited Respondent at the jail where Respondent also admitted to the charge of fondling Michelle Stewart. Dr. McBriarty advised Respondent that it would be the Board's recommendation to immediately suspend him pending a decision on the merits and further action by the board to seek revocation of his (Respondent's) teaching certificate by the Professional Practices Council. Respondent asked if he had any options whereupon Dr. McBriarty told him that he could resign. At that point, the Respondent resigned effective May 31, 1977. The Respondent took the stand and testified that he was misled by Detective Creekbaum into thinking that nothing would come of the incident and that while he denied initially fondling Ms. Stewart, he only changed his story to an admission because he was of the opinion that that was what Detective Creekbaum wanted. He also testified that he was of the opinion that nothing would come of the incident as related by Detective Creekbaum. 1/ Without question, the Respondent enjoys a good reputation in the community and by his fellow peers at the school. He is regarded as a very good instructor who goes over and above his call of duty with respect to his classroom duties. Witnesses Nancy H. Akins and Catherine Smith, both instuctors in the Pinellas County school system, testified of their familiarity with the Respondents professional life and both gave him high marks. As stated, the Respondent denied the material allegations of the charging allegations in this case. Presently he is project director for the Tampa sickle cell disease project. In addition to denying the allegations of the complaint herein he testified that he was "set up" by Detective Creekbaum. He voiced his opinion that he felt that if he were cooperative and stated what Detective Creekbaum wanted him to say that he would go free. The undersigned has examined the record to see whether or not any misrepresentations or other statements were made to prompt Respondent to admit to the fondling of Michelle Stewart and the record is barren in this regard. Based thereon, I shall recommend that the allegations contained in the petition filed herein be sustained.
Recommendation Based on the foregoing Findings and Conclusions, it is hereby RECOMMENDED that the teaching certificate of Respondent, Ernest B. Brown, be suspended for a period of two years. ENTERED this 20th day of September, 1978, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Mail: 530 Carlton Building Tallahassee, Florida 32301 (904) 488-9675
