The Issue Whether notice was accorded the patient, as contemplated by section 766.316, Florida Statutes (2018).1/
Findings Of Fact Based upon the demeanor and credibility of the witnesses, other evidence presented at the final hearing, and on the entire record of this proceeding, the following Findings of Fact are made: Petitioners, Cathy Pierre and Jodens Pierre, are the parents and natural guardians of Jadon Pierre. Jadon was born at Good Samaritan, a licensed Florida hospital, in West Palm Beach, Florida, on January 26, 2015. The physician providing obstetric services at the time of birth was Joy Cavalaris, M.D. The circumstances of the labor, delivery, and birth of the minor child are reflected in the medical records of Good Samaritan submitted with the Petition. Jadon suffered from oxygen deprivation during the course of labor and delivery, and in the immediate post-delivery resuscitative period, as determined pursuant to the undersigned’s October 27, 2017, Partial Summary Final Order. Jadon is substantially and permanently mentally and physically impaired, as determined pursuant to the undersigned's October 27, 2017, Partial Summary Final Order. Intervenors, Good Samaritan, Palm Beach OBGYN, and Joy Cavalaris, M.D., are NICA participants. Good Samaritan's Compliance with NICA Notice Requirements Cathy Pierre presented on three occasions to Good Samaritan in 2015. Her first visit to Good Samaritan was on January 12, 2015, at 6:00 p.m., to attend a Special Deliveries Unit Tour. A sign-in sheet maintained by Kathy Wegner, R.N., Good Samaritan lactation nurse, indicates that the tour began at 6:00 p.m. The first name of expectant moms on the sign-in sheet is Cathy Pierre. Included on the sign-in sheet is Cathy Pierre’s due date (January 18, 2015), her email address, and her physician. At the motion hearing held on July 11, 2018, the parties stipulated that Cathy Pierre attended no other prenatal tour other than the one conducted on January 12, 2015. The parties also stipulated that Cathy Pierre did not pre-register for her delivery at the January 12, 2015, prenatal tour. Although guests on the tour are provided with the option of filling out pre-registration forms to be submitted to Ms. Wegner, no such forms were submitted by Cathy Pierre. At 6:00 p.m., the admitting department at Good Samaritan is closed, and Cathy Pierre would not have been able to register via computer during the January 12, 2015, tour. Although Cathy Pierre testified that she presented to Good Samaritan for a tour and pre-registration in December 2014, the Special Deliveries Unit Tour sign-in sheet conclusively establishes that Cathy Pierre presented for her tour on January 12, 2015. Cathy Pierre presented no evidence that she pre- registered at the time of her tour. The evidence, and the stipulations of the parties, conclusively establish that Cathy Pierre did not pre-register for her delivery at the time of her tour on January 12, 2015. As expressly stipulated to by the parties: Cathy Pierre attended the prenatal tour on Monday, January 12, 2015 at 6 PM. This is the only prenatal tour attended by Cathy Pierre. Cathy Pierre did not “pre-register” for her delivery at the January 12, 2015 prenatal tour. Guests on the tour are provided with the option of filling out pre- registration forms to be submitted to Ms. Wegner, and no such forms were submitted by Cathy Pierre. At 6 PM, the admitting department is closed and Cathy Pierre would not have been able to register via computer. The greater weight of the evidence established that no provider–obstetrical patient relationship was established on January 12, 2015. Although Ms. Pierre toured the Good Samaritan facilities on January 12, 2015, the evidence of record, and the stipulation of the parties established that she did not pre- register for her delivery at that time, keeping open the possibility that she would choose a different hospital for her delivery. Cathy Pierre next presented to Good Samaritan on January 19, 2015. Ms. Pierre testified that the reason for the visit to Good Samaritan on January 19, 2015, was for a check-up. Although an ultrasound was performed on that date, Ms. Pierre states that she does not recall the same. Ms. Pierre registered as a patient at Good Samaritan for the first time during this visit. She was determined not to be in active labor at that time, but was provided with a form titled “Labor Instructions for Observation Admission” containing criteria for determining when she should return to the hospital. The registration process on January 19, 2015, was conducted by Alethia Saunders, who was employed as a Patient Access Lead with the emergency room. As part of her duties and responsibilities, Ms. Saunders handled obstetrical admissions through the emergency department when patients presented after regular business hours. As part of the admission process for obstetrical patients, Alethia Saunders would present a document entitled “Notice to Obstetrical Patient” to the patients. On January 19, 2015, Alethia Saunders presented to Cathy Pierre the Notice to Obstetrical Patient Form, printed the patient’s name on the form, and the form was signed by Ms. Pierre. The form states as follows: I have been furnished information by Good Samaritan Medical Center prepared by the Florida Birth Related Neurologic Injury Compensation Association and have been advised that the hospital participates in that program. Physicians and midwifes and their groups providing care at the Good Samaritan Medical Center are or may be participating in that program, wherein certain limited compensation is available in the event certain neurological injury may occur during labor, delivery or resuscitation. For specifics on this program I understand that I can contact: Florida Birth Related Neurological Injury Compensation Association – NICA, Post Office Box 14567, Tallahassee, Florida 32317-4567, Telephone No. 850-488-8191 or Toll Free 800-398-2129. (emphasis in original). The form goes on to state that “I further acknowledge that I have received a copy of the brochure prepared by NICA.” Alethia Saunders stated that the NICA form is completed for every obstetrical patient. Ms. Saunders testified that, as part of the registration process, every patient is presented with the folder which contains the Peace of Mind Brochure from NICA, and the patient signs the Notice to Obstetrical Patient Form and then she signs the form as a witness. Cathy Pierre testified that her signature appears on the Notice to Obstetrical Patient Form dated January 19, 2015. However, Ms. Pierre testified that she could not recall reading the Notice to Obstetrical Patient Form on January 19, 2015. With respect to the NICA brochure, Cathy Pierre testified that while she recalls receiving a NICA brochure at some point, she does not recall when. The preponderance of the evidence established that Cathy Pierre was provided with information by Good Samaritan on January 19, 2015, in the form of a brochure prepared by NICA, and that Ms. Pierre signed the receipt of notice to obstetrical patient on January 19, 2015. On January 26, 2015, Ms. Pierre presented again to Good Samaritan and delivered Jadon at that time. While Ms. Pierre also received and signed a Notice to Obstetrical Patients form on January 26, 2015, it is the form dated and signed on January 19, 2015, that is relevant for the determination of whether adequate notice was provided to Ms. Pierre in this case. Notice Provided by Dr. Cavalaris and Palm Beach OBGYN: Cathy Pierre first presented to Palm Beach OBGYN on June 12, 2014, for her first prenatal visit. Ms. Pierre was seen by Dr. Lori Ann Sevald, an obstetrician/gynecologist with the Group. Dr. Sevald performed a physical examination on Ms. Pierre, finding her uterus to be enlarged, which she indicated is normal for a pregnant patient. She also ordered an ultrasound which revealed a live intrauterine pregnancy. Dr. Sevald’s routine custom and practice for each new obstetrical patient being seen at the Group’s office was for the patient to receive a copy of the Group’s four-page Obstetric Informed Consent form (consent form) and to review the entire document with the patient. Dr. Sevald indicated she would discuss genetic testing, routine testing, and provide the new obstetrical patient with an overview of what to expect during labor and delivery. Dr. Sevald stated she had no doubt, based on her customary practice, that she would have reviewed the entire consent form with Cathy Pierre. Additionally, Dr. Sevald explained she would have provided Ms. Pierre with a NICA brochure titled “Peace of Mind for An Unexpected Problem” and would have explained the program to Ms. Pierre. Dr. Sevald also signed the consent form as a witness to the patient’s signature. The aforementioned process was referenced on page four of Dr. Sevald’s History and Physical, dated June 12, 2014, which indicates “[t]he OB consent and NICA forms were reviewed, signed and copies given to the patient” and “[t]he patient was made aware that our practice participates in the Florida NICA program.” Ms. Pierre recalls going to the office of Palm Beach OBGYN in Lake Worth as a new patient and completing some paperwork when she got to the office. When questioned about the paperwork, Ms. Pierre agreed that June 12, 2014, was likely the date she first presented to Palm Beach OBGYN. Although, Ms. Pierre could not recall reviewing the four-page Obstetric Informed Consent form, she did acknowledge that her printed (maiden) name, signature and the date, which appear on page four of the consent form, were all written by her, probably on June 12, 2014. Located between her printed maiden name and signature, the consent form states as follows: I was furnished information prepared by the Florida Birth-Related Neurological Injury Compensation Association (NICA), pursuant to Section 766.316, Florida Statutes, and was advised that our Doctors (Samuel Lederman, MD, Gloria Hakkarainen, MD, Sylvia Siegfried, MD, Joy Cavalaris, MD, Lori Sevald, MD, Marcela Lazo, MD and Barbara Telan, CNM) are participating physicians in that program. By participating in this program, limited compensation is available in the event that certain types of qualifying neurological injuries occurs during labor, delivery or resuscitation in the hospital. For specifics about the program, I understand that I can contact the Florida Birth-Related Neurological Injury Compensation Association (NICA), at PO Box 14567, Tallahassee, FL 32317, Tele No. 1.800.398.2129. I further acknowledge that I have received a copy of the brochure prepared by NICA. I acknowledge that I read this form and fully understand its contents. I was given ample opportunity to ask questions and all questions were answered to my satisfaction. I also acknowledge that I was given a copy of this form so that my family and I can review its contents at home and ask questions in the future. Ms. Pierre indicated that during one of her visits to Palm Beach OBGYN she received a copy of the NICA brochure. However, she could not recall which visit. Nevertheless, she acknowledged she could have received the brochure at the time of her first visit to the Group on June 12, 2014. The greater weight of the evidence established that more likely than not, Dr. Cavalaris’ office provided Ms. Pierre with a copy of the NICA brochure during her first prenatal office visit in June 2014, when the beginning of her provider- obstetrical patient relationship began.
The Issue Whether Respondent, Agency for Health Care Administration (Agency) should have issued Petitioner, Haverhill Care Center and Beverly Health Care West Palm Beach, Beverly Enterprises-Florida, Inc., d/b/a Beverly Gulf-Coast Florida (Haverhill), a conditional license for the periods October 14, 1998, through January 3, 1999, and December 8, 1999, through February 9, 2000.
Findings Of Fact At all times material hereto, the Agency was the enforcing agency with regard to nursing home licensure law pursuant to Chapter 400, Part II, Florida Statutes. Haverhill is a nursing home located in West Palm Beach, Florida. On October 14, 1998, the Agency surveyed Haverhill and determined that the facility violated 42 CFR Sections 483.13(c), 483.25(h)(2), and 483.75 in its care of B. B., a resident at the facility who had eloped from Haverhill on September 24, 1998. The deficiencies were described by tag numbers F224, F324, and F514. The Agency determined that these deficiencies were Class II deficiencies under the state rating scheme and the Agency also assigned them a severity rating of "G", which is a determination under the federal rating scheme that the deficiency was isolated but caused actual harm to the resident. B. B. was a 78-year-old male who had dementia, congestive heart failure, hypertension, and a history of a pulmonary embolism. He was independent with his daily activities and ambulatory. From the end of 1997 through September 1998, B. B. underwent a series of admissions and discharges from different short-term and long-term care facilities. In late 1997, he went to the hospital with congestive heart failure, and while he was there, his doctor recommended that he be placed in a long-term care setting. After his discharge from the hospital, B. B. went to a nursing home known as IHS Lake Worth, where he remained until May of 1998. In May 1998, B. B. experienced a pulmonary embolism and was sent to the hospital. Staff from IHS Lake Worth sent a transfer form to the hospital that noted that B. B. was a "wanderer" and would "go outside if not monitored." When B. B. was discharged from the hospital in late May 1998, he could not go back to IHS Lake Worth because the Agency had placed a moratorium on admissions to IHS Lake Worth. B. B. was sent to a sister facility, IHS of West Palm Beach, where he remained until July 6, 1998. During his stay at IHS of West Palm Beach, staff at the facility noted that B. B. "wanders at times, needs direction." On July 6, 1998, B. B. was discharged to his home, where he remained until August 5, 1998, when his daughter S. B. determined that she was unable to care for him and readmitted him to IHS Lake Worth. While at IHS Lake Worth, B. B. was given Haldol, an anti-psychotic drug. He was also assessed by the staff on August 6, 1998, as being appropriate for a locked unit due to "wandering and confusion and past history of agitation and combativeness." During the next few days, B. B. exhibited episodes of angry outbursts and agitation, which caused staff to be fearful for others. On August 12, 1998, B. B. was transferred to Four Seasons, an assisted living facility. The record review on August 12, 1998, recorded, "Four Seasons came and evaluated and took resident upon assessment. Daughter agreeable. Doctor agreeable. Locked unit most appropriate place for this resident." Four Seasons was closed by the Agency. While the facility was being closed, B. B. got on a bus. The Delray Beach police found him and returned him to the facility After Four Seasons closed, B. B. returned home. While at home, B. B.'s behavior became erratic. He would get up at 4:00 a.m. and take a shower. B. B. was being given Ativan to calm him down. On September 16, 1998, B. B. was readmitted to IHS West Palm Beach, which had a Wanderguard alarm system designed to notify staff if a patient attempted to leave the facility. However, the Wanderguard system at IHS West Palm was not fully functional. While at IHS West Palm Beach, B. B. wandered around the facility and attempted to get out of the facility. The administrator at IHS West Palm Beach determined that B. B. needed to be transferred to another facility. At approximately two o'clock on Friday afternoon, September 18, 1998, Kit Johnson, the Social Services Director at IHS West Palm Beach, spoke with S. B. and advised her that B. B. needed to be transferred to a more secure facility. Ms. Johnson contacted several facilities in an effort to find a facility which would accept B. B. She spoke to Robb Eason, Haverhill's Admissions Director, concerning placement for B. B. She advised Mr. Eason that IHS West Palm Beach could not keep B. B. because he was a wanderer and could not be maintained safely at IHS West Palm Beach. Mr. Eason agreed to have B. B. transferred to Haverhill. Ms. Johnson called S. B. and advised her that Haverhill was willing to take B. B. S. B. indicated that she could not be there because her mother was ill. At four o'clock, nursing staff at IHS West Palm Beach were notified that B. B. would not be transferred until the next day because S. B. could not come to the facility until the next day. B. B. became very upset because his daughter was not coming and walked off the unit. A security guard had to be called to return B. B. to his room. A decision was made that B. B. would be transferred to Haverhill on September 18, 1998. At 5:00 p.m., the nursing staff at IHS West Palm Beach was notified that B. B. would be transferred. B. B.'s doctor's service was called for a discharge order. At 5:45 p.m. B. B was transferred to Haverhill by a transport service. The documents that were sent to Haverhill to IHS West Palm Beach did not indicate that B. B. was a wanderer or that he could be a candidate for elopement. Between five and six o'clock on the afternoon of September 18, 1998, S. B. telephoned Mr. Eason and advised him that she could not come to Haverhill that Friday because her mother was ill. Mr. Eason told her that he would not be back in the facility until the following Monday and suggested that she come the next day to complete the paperwork with the charge nurse. S. B. did not feel comfortable doing the paperwork with the charge nurse and told Mr. Eason that she would come on Monday. S. B. also asked Mr. Eason if he had spoken to Kit Johnson and whether he was aware that Ms. Johnson had told her that Haverhill was a locked-down facility. S. B. also asked Mr. Eason whether Haverhill could deal with her father's dementia. Eason told her that Haverhill could handle B. B. On B. B.'s first day of admission at Haverhill, September 18, 1998, he was agitated at being placed in a nursing facility. S. B. received a call from one of the nurses at Haverhill during the evening, telling her that B. B. did not know why he was at the nursing home, but that they would take care of him. A care plan was developed for B. B. on September 18, 1998, to deal with his agitation at being placed in a nursing facility. The care plan included the following approaches: Introduce yourself and knock on door prior to entering room. Orient to room and new environment. Encourage to express his feelings about nursing home placement. S/S to visit to promote conversation weekly. Activity to visit & (illegible) to activity of choice daily. Call bell within reach when in room. The care plan did not include measures to deal with B. B.'s wandering of which Mr. Eason had knowledge. On the morning of September 19, 1998, B. B. was alert and oriented to his surroundings. He told the nurse, "I really like this place, you should have seen the hell hole I came from." B. B. called his daughter on September 19, 1998, and told her that he was waiting for her and that he was ready. She explained that her mother was sick and she could not be left at that time. B. B. seemed to accept that explanation. On September 20, 1998, B. B. awoke about 4 a.m. and walked in the hall. He was angry and belligerent when his doctor visited him. He had yelled at other residents and kept asking for a sleeping pill all day. At the beginning of the 7 a.m. to 3 p.m. shift on September 21, 2000, B. B. was standing at the nurses' station and yelling at staff. He said, "I'm getting the hell out of here, they just can’t put me here and leave." He called his daughter and after hanging up, he became more agitated. Later in the morning, S. B. came to Haverhill to complete the admissions paperwork and to see her father. When she arrived B. B. was sitting on a bench outside the facility unsupervised. She took her father back inside the facility and went to find the admissions director so that she could complete the necessary paperwork. While she was completing the paperwork, she did not advise anyone that her father wandered or that he had eloped from Four Seasons. However, given the information that Kit Johnson had told Mr. Eason, he should have asked S. B. about any previous attempts by B. B. to leave home or other facilities and should have requested additional information from IHS West Palm Beach. According to the testimony at final hearing, by Monday, September 21, 1998, Mr. Eason claimed not to know that B. B. had been admitted on September 18 from IHS West Palm Beach. It can only be concluded that between Friday afternoon and Monday morning Mr. Eason had forgotten about B. B. After finishing the necessary admissions paperwork, S. B. went to her father's room to visit with him. When she was leaving the facility, her father thought that he was going to go with her and attempted to follow S. B. Haverhill staff had to intervene. B. B. became verbally and physically abusive, and the Administrator of Haverhill had to be called to assist. B. B. took a swing at the administrator. B. B. was taken back to his room, where he stayed. He told staff that they could not do anything for him and to leave his room. No one at staff notified S. B. of her father's episode. B. B.'s doctor was notified of B. B.'s behavior. The doctor prescribed anti-psychotic and anti-anxiety medications and ordered a psychological evaluation. Staff placed a call to the psychological services provider, requesting an evaluation. Both the Agency's and Haverhill's expert witnesses agreed that B. B.'s attempt to leave with his daughter was a catastrophic event, which is a clinical term used to describe a level of agitation of such sustained duration that it requires intervention by the caregiver. Haverhill did provide intervention by directing B. B. back to his room and informing the doctor. Haverhill had a policy and procedure to deal with residents who displayed mental difficulty. The policy and procedure provided: POLICY To protect the resident and other residents of the facility from harming themselves or others. To ensure that the resident receives appropriate treatment and services to correct the assessed problem. PROCEDURE When a resident exhibits behavior such as trying to elope, aggressive behavior, speaking of suicide or other behaviors relating to signs of distress or depression, nursing is to: calm resident close monitoring of resident call physician call family psychological services complete documentation of incident, and interventions and responses notify social services notify Director of Nursing Haverhill did not notify S. B. of the catastrophic event and did not closely monitor as called for in its policy and procedure. On September 22, 1998, Haverhill developed a care plan to deal with B. B.'s verbal and physical abuse to staff and residents. The care plan included the following: Redirect him when he becomes aggressive. Psy consult per MD order. Medicate per doctor order. Provide quiet area to promote conversations regarding his concerns. On September 22, 1998, B. B. continued to be noticeably anxious and angry and paced the floor. He made a telephone call, and after the call, he slammed his fist on the nurses' desk and expressed anger. He was redirected to his room. His new medication was begun at 9 a.m. By 1 p.m., B. B. was calmer, walking in the hallway to the nurses station and saying, "Hi" to staff when approached. Later in the day, B. B. became drowsy and slightly unsteady on his feet. He was redirected to his room. A care plan was developed to deal with the side effects of his new medications. No one arrived to do a psychological evaluation on B. B. on September 22, 1998. The provider was again called and asked to send someone. S. B. visited B. B. on September 23, 1998. B. B. told her that he was ready to go home. She left the facility around 3 or 4 o'clock in the afternoon. According to B. B.'s roommate, B. B. went to bed around 4 p.m. Around 5 p.m., B. B. was up and his gait was unsteady. The doctor was notified of the side effects of the new medications on September 23, 1998. The doctor ordered Haverhill to withhold B. B.'s scheduled dose of Ativan. As of 6:15 p.m. on September 23, no one had shown up to perform a psychological evaluation. No nurses' notes or social service progress notes indicate that anyone came on September 23 to perform a mental evaluation of B. B. The social services progress notes indicate that on September 23, B. B. was calm and had no behaviors during the day. B. B. asked for snacks around 8 p.m. The charge nurse who admitted him, stated that at 11 p.m., he was lying on his bed fully dressed. D. D., another resident in the building, stated that he saw B. B. up around 1:30 or 2:30 a.m. on September 24, wrapped in a blanket and asking if his daughter had been by to see him. B. B. went back to bed and got up between 3:00 and 3:30 a.m. to get coffee. He walked to the nurses station and was told by staff that it was too early and that he should go back to his room. B. B went back to bed. D. D. saw B. B. get up around 4:45 a.m. and get dressed. At 5:10 a.m., while doing bed checks, the nursing staff noted that B. B. was missing and began a search for him. He could not be found, leading to the conclusion that he had eloped. On November 2, 1998, B. B.'s body was found in a drainage ditch a quarter of a mile from the facility. On October 27, 1998, Haverhill received a report on B. B.'s mental status examination from the psychological services provider. The report was typed except for the signatures and the day on the date. The date of the interview was listed as 09/23/98 with the "23" handwritten. The Agency contends that Haverhill did not provide adequate supervision to B. B. because it did not have sufficient staff on hand when B. B. eloped from the facility on September 24, 1999. The Agency bases this contention on its interpretation of a staffing summary which was prepared by Haverhill that indicated that Haverhill did not have sufficient certified nursing assistant hours to meet minimum state standards on September 24. The summary indicates the number of certified nursing assistant and licensed nursing hours hired at Haverhill for each day between September 20 and 28, 1998. Each 24-hour period represented on the summary begins with the 7:00 a.m. shift on the designated day and runs until the 7:00 a.m. shift on the following day. Accordingly, the staffing levels reflected for September 24, 1998, would be those which began at 7:00 a.m. on that day and ran until 7:00 a.m. on September 25, 1998. B. B. eloped from Haverhill around 5:00 a.m. on September 24, 1998. Since his elopement occurred prior to 7:00 a.m. on September 24, the staffing levels reflected in the summary on September 23, 1998, would cover the time period during which B. B. eloped. On September 23, Haverhill exceeded minimum state requirements for certified nursing assistants by 46.8 hours and for licensed nurses by 40.1 hours. Although Haverhill identified a care plan for B. B. upon admission, Haverhill failed to implement the care plan. Specifically no one assisted in diverting B. B.'s focus on wanting to leave the facility. No evidence was provided that organized activities oriented to meet B. B.'s needs were provided. According to the Agency's expert, B. B.'s frequent ambulating in the halls, as documented in the nurses' notes, demonstrated his lack of participation in organized activities. The Agency charges Haverhill with a violation of 42 CFR Sections 483.35(c)(1) and (2) for failure to treat pressure sores on Residents 1 and 16. The deficiency was identified as Tag F314, determined to be a Class II deficiency, and determined to have a severity rating of "G." Resident 1 was a 75-year-old female admitted to Haverhill's facility on October 6, 1999. She was diagnosed with end-stage Alzheimer's disease. Prior to admission, she had a feeding tube inserted. Upon admission Resident 1 was self-ambulating, and the nurses' notes reflect that Resident was a wanderer and walked on a regular basis. She had no skin breakdown when admitted, but she was assessed at a high risk for pressure sores, due to bowel incontinence. A pressure sore is a lesion that is caused by unrelieved pressure to an area and results in damage to underlying tissue. A care plan was developed on October 6, 1999, to address Resident 1's risk for pressure sores. The care plan included the use of pressure relieving chairs and beds; turning and repositioning with no specific times listed; ulcer care; use of cleansing agent and water to clean skin whenever soiled, and treatment of dry skin with moisturizer. According to the physician's orders on October 6, 1999, Resident 1 was to have a skin assessment with showers weekly, and a skin barrier with lantiseptic ointment applied to her buttocks every shift or three times a day, and intermittently as needed. Another care plan was developed on October 26, 1999, after a comprehensive assessment had been completed. The October 26 care plan did not include turning and repositioning. The standard of care to prevent pressure sores from developing includes regular turning and repositioning every two hours, keeping the skin clean and dry, and adequate nutrition and hydration. When a resident is ambulatory and can move herself in bed, turning and repositioning is less of a factor. According to the nurses' notes for Resident 1, she slept most of the day on October 25, 1999, and continued to be drowsy on October 26. The doctor reduced her dosage of Haldol. Resident 1 was terminally ill and was placed on hospice service on October 27, 1999. On October 29, 1999, she was drowsy but alert and ambulatory. She was walking on October 31, 1999, with a slow, steady gait. On November 2, 1999, Resident 1 had no open sores. On November 8, 1999, the treatment notes indicate no open sores on Resident 1, but there was some redness in the perianal area, which was treated with a cream. On November 8, 1999, the nurses' notes indicate that Resident 1 was ambulating with some difficulty. She was kept clean and dry, and her skin was intact. On November 10, 1999, it was noted that she was alert and turning aimlessly in bed. On November 10, 1999, she showered, and the nurses notes indicated no areas of skin breakdown. On November 14, 1999, Resident 1 was ambulating and was able to turn self. On November 16, 1999, there were no open areas on Resident 1, but she developed hives all over her body. She was given Benedryl for the rash. On November 17, 1999, Resident slept most of the day. On November 23, 1999, there were no open areas on Resident 1. She was lethargic and was turned and repositioned. On November 24 and 25, 1999, Resident 1 remained lethargic and was turned and repositioned. On November 26, 1999, she was lethargic all day. She continued to be lethargic on November 27, 1999. She was kept clean and dry and was turned and repositioned. The nurses' notes indicate that on November 30 and December 3, 1999, Resident 1 continued to be lethargic. The nurses' notes indicate that she was turned and repositioned on December 3, 1999. On December 3, 1999, a nurse noted a pressure sore on Resident 1's coccyx, measuring .5 x .25 centimeters. The initial information regarding the treatment and identification of the pressure sore was documented on the treatment sheet of another patient with a similar name. The error was corrected on December 6, 1999. No evidence showed that the incorrect charting resulted in a failure to treat the pressure sore. The pressure sore was a stage II pressure sore, which means either a blister or a shallow open area in which only the epidermis is affected. The area was cleansed and duoderm was applied. Pressure sores are staged to standardize descriptions. Staging is not a means to describe a progression from one stage to the next. Sores can appear at any stage from a I to a IV. On December 5, 1999, the pressure sore was assessed. The skin was broken, and the area was red and dry. The area was cleaned, and duoderm was applied. Resident 1 was lethargic and unresponsive to verbal stimulus. She was turned and repositioned. During a survey on December 6, 1999, a surveyor from the Agency observed the pressure sore, and described it as a shallow crater over a bony prominence. The nurses' notes on December 6, 1999, at 6:00 a.m., 12:00 p.m., and 7 p.m. indicate that Resident 1 was turned and repositioned. On December 6, 1999, two surveyors from the agency were at Haverhill. According to one surveyor numerous staff went into Resident 1's room from 6:00 a.m. to 9:00 a.m., but when she went into the room Resident 1 did not appear to have been repositioned. However, the other surveyor said that no staff went into Resident 1's room during the same time period. Between 6:00 a.m. and 9:00 a.m. on December 6, 1999, Resident 1 was turned and repositioned. On December 7, 1999, cream was applied to Resident 1's buttock area, and she was turned and repositioned. She was repositioned on December 8 and 9, 1999. By December 10, 1999, the pressure sore had closed and was healing well. On December 17, 1999, it was noted that the pressure sore was healing well and was pink in color. The Agency had cited Haverhill for not adding zinc or vitamin C to Resident 1's nutrition after the pressure sore was noted on December 3, 1999. Haverhill's dietician evaluated Resident 1 on December 5, 1999, to determine whether additional nutrition was necessary. After a thorough review of the resident's condition and history, including Resident 1's husband's concerns, the dietician specifically considered the addition of supplements and concluded that Vitamin C and zinc might be added "if wound not responding to [treatment] x 2 wks." Standard guidelines suggest adding these supplements only for more serious wound concerns. Zinc and Vitamin C did not have to be added to Resident 1's nutrition. The agency alleged that Haverhill should have done a significant change assessment based on Resident 1's decreased physical capabilities that began in October 25, 1999, her bedfast condition since November 22, 1999, and her nutritional deficits since November 22, 2000. The federal guidelines concerning significant change in status assessments are contained in HCFA's RAI Version 2.0 Manual. The guidelines provide: A 'significant change' is defined as a major change in the resident's status that Is not self-limiting; Impacts on more than one area of the resident's health status; and Requires interdisciplinary review or revision of the care plan. A condition is defined as 'self- limiting' when the condition will normally resolve itself without further intervention or by staff implementing standard disease related clinical interventions. * * * The amount of time that would be appropriate for a facility to monitor a resident depends on the clinical situation and severity of symptoms experienced by the resident. Generally, if the condition has not resolved itself within approximately 2 weeks, staff should begin a comprehensive RAI assessment. This time frame is not meant to be prescriptive, but rather should be driven by clinical judgment and the resident's needs. * * * In an end stage disease status, a full reassessment is optional, depending on a clinical determination of whether the resident would benefit from it. The facility is still responsible for providing necessary care and services to assist the resident to achieve his or her highest practicable well- being. However, provided that the facility identifies and responds to problems and needs associated with the terminal condition, a comprehensive reassessment is not necessarily indicated. A significant change assessment was not done. Based on the federal guidelines, it was discretionary for Haverhill to do a significant change assessment because of Resident 1's terminal illness. There was no evidence to link the failure to complete a significant change assessment and the actual care given to Resident 1. Nurses' notes reflect that staff was very aware of Resident 1's condition and took measures to address it. There are frequent notes, which established discussions with the concerned husband, being turned and repositioned, being kept clean and dry, being fed, obtaining lab tests, and changing medications. Resident 1 did develop a pressure sore while at Haverhill, but the treatment and care that she was provided prior to the development of the pressure sore indicate that Haverhill did what it could to prevent the development of the pressure sore and that the development was unavoidable. After the pressure sore developed, Haverhill provided the necessary treatment to promote healing and prevent infection. Resident 16 was a 66-year-old, non-ambulatory female, who was admitted to Haverhill on August 4, 1999, from the hospital where she had undergone surgeries for both a pacemaker and a gastrostomy tube. She had an indwelling catheter and bowel incontinence. Resident 16 was totally dependent on staff for all activities of daily living. When she was admitted to Haverhill, Resident 16 had a stage II pressure sore on her left buttock. She was assessed as being a high risk for pressure sores. Her preliminary care plan developed on August 4, 1999, included turning and repositioning every two hours, weekly skin assessments, cleaning for incontinence, using barrier cream, and dressing the pressure sore as ordered. She was placed on a maxi-float mattress rather than a standard mattress. By August 11, the pressure sore was only pink and had completely healed by August 30, 1999. At 9:00 p.m. on August 20, 1999, it was noted that Resident 16 had a stage II, one centimeter-sized open area at her coccyx. The area was cleaned and dressed. The doctor was notified on August 21, 1999, about the pressure sore to the coccyx. He prescribed duoderm. It was also noted on August 21, 1999, that Resident 16's shoulder blades were red and scraped and needed to be monitored. Cream was applied to the shoulder blades. Resident 16 was kept in bed rather than a geri chair on August 22, 1999, so that she could be turned from side to side every two hours. Cream was applied to the shoulder blades, and the duoderm was intact to the coccyx. Haverhill's dietician described the pressure sore on the coccyx as a stage III, measuring 4.5 cm x 4.7 cm with 35 percent necrosis and 65 percent slough. On August 23, 1999, Resident 16 was sent to physical therapy for wound care, because the physical therapist had special training in this area. The physical therapist described the pressure sore area as having a hematoma and part of the wound being yellow and brown with inherent necrotic tissue. The pressure sore had no depth, the drainage was scant, and there was some breakthrough granulation. This description indicates that the wound was covered with possible necrotic tissue underneath. When the necrotic tissue was removed, such as the physical therapist did with mechanical debridement, an opening was revealed. After the wound was cleaned and debrided, it increased in size. On August 25 and 26, 1999, wound treatment was performed on the pressure sore area at the coccyx. The dietician notes indicate that the pressure sore continued to be a stage III on August 31, 1999, and measured 4.5 cm x 5 cm with 70 percent necrosis, 20 percent slough, and 10 percent granulation. Vitamin C and zinc support was ordered for Resident 16. On September 1, 1999, Resident 16 was placed on a different pressure reduction mattress. A wound culture was sent to the laboratory. By September 2, 1999, the wound had become infected. Antibiotics were administered beginning on September 3, 1999. Wound care treatment was also performed on September 3, 1999. On September 4, 1999, the dressing was changed to the pressure sore. The nurse noted that there was a dark circle on the inner side of the right heel. Heel protectors were put on Resident 16. Resident 16's care plan was revised on September 7, 1999, to change the turning and repositioning time to once every hour. On September 9, 1999, the nurse called the doctor regarding the pressure sore and requested that the wound care center be contacted for evaluation and treatment. A call was placed to the wound care center. On September 10, 1999, the wound care center called and stated they could not treat Resident 16 because of insurance coverage. The same day a call was placed to the hospital to see if Resident 16 could be treated there for wound care. On September 13, 1999, the hospital called and advised that Resident 16 could not be treated there because of insurance coverage. On September 14, 1999, Resident 16 was placed on an air mattress to help relieve the pressure. By September 16, 1999, according to the nurses' notes, the wound consisted of "much unhealthy and necrotic tissue with very foul odor and much purulent discharge." The dietician noted that the wound was still at a stage III. On September 17, 1999, the doctor ordered that Resident 16 be sent to the hospital emergency room for wound treatment and evaluation. At 1:00 p.m. on September 17, 1999, the nurses' notes indicate that complete care was given, including cleaning after an incontinent episode, dressing change, and turning. Resident 16 left for the emergency room by stretcher at 1:30 p.m. When she seen by the doctor at the hospital, he noted that the wound was contaminated with feces. Given the resident's incontinence, this is not an unexpected condition despite her having been cleaned just prior to leaving for the hospital. She could have had an incontinent episode on the way to the hospital or while waiting in the emergency room. No evidence was provided to establish that she was dirty when she left Haverhill. The doctors at the hospital described the pressure sore as a stage IV decubitus ulcer with a 12 to 14 centimeter diameter. The ulcer was grossly contaminated and would require cleaning over the next three to four days. Her laboratory tests showed that she also had a pseudomonas urinary tract infection. It was recommended that a diverting colostomy be considered for Resident 16 to keep "the fecal stream from continually bathing this area and giving rise to a chronic septic condition for the patient." Pseudomonas in the urine is indicative of contamination in the bladder. Such contamination could come from lying in the bed in stool or from improper cleaning related to Resident 16's indwelling catheter. In Resident 16's case, the stool was brought up around the catheter, which carried the bacteria to the bladder. Resident 16 was kept at the hospital from September 17 to September 25, 1999. Based on the dietician's notes, the pressure sore was a stage IV when Resident 16 returned from the hospital. On October 6, 1999, the resident's care plan was amended. On October 9, 1999, the pressure sore was still a stage IV and measured 4.0 x 5.0 x 2.2 cm with undermining. The nutritional assessment for November 15, 1999, showed that the pressure sore was a stage IV. On November 24, 1999, the pressure sore measured 2.8 x 2.2 x 1.5 cm with undermining. At the time of the Agency's survey on December 8, 1999, Resident 16's pressure sore on her coccyx was still a stage IV, and she had developed a pressure sore on her left heel. Turning and repositioning is important in preventing pressure sores. The standard nursing practice for turning and repositioning is a minimum of every two hours. Haverhill's policy for turning was every two hours. Resident 16's care plan showed that she was to be turned every two hours until September 7, 1999, when the care plan was amended to turning every hour. The standard nursing practice for charting records depends on the condition of the patient. Resident 16 should have been charted on every shift throughout the day, based on her high-risk status, her bedfast position, her existing pressure sore, the contractures of her lower extremities, and her medical history. Based on Haverhill's nursing notes, Resident 16 was turned and repositioned 656 times, or less than a third of the total number of times required, 2,320, by Resident 16's care plan between August 4 and December 7, 1999. Based on Haverhill's charting records, Resident 16 was turned and repositioned 356 times, or less than a sixth of the number of times required by the care plan between August 4 and December 7, 1999. Haverhill's records show that the number of times Resident 16 should have been turned and repositioned, consistent with Resident 16's care plan, was significantly higher than the actual number of times that Resident 16 was turned and repositioned. The Agency claims that Haverhill failed to do skin assessments according to physicians orders during the month of September, 1999. The physician ordered a skin assessment once a week with showers. The assessments were done according to the doctor's orders. During part of September, Resident 16 was in the hospital for wound treatment; therefore, Haverhill could not have done a skin assessment at that time. When Resident 16 returned from the hospital there were only five days left in the month; thus, another skin assessment was not due to be conducted in September. Haverhill failed to turn and reposition Resident 16 as required by her care plan. Resident did develop a pressure sore, which was not unavoidable. Haverhill did not provide treatment that would promote healing of the pressure sore due to Haverhill's failure to turn and reposition Resident 16 as required by her care plan.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing Counts VIII and IX of the Administrative Complaint, upholding the conditional license for Petitioner effective October 14, 1998, through January 3, 1999, and December 8, 1999, through February 9, 2000. DONE AND ENTERED this 8th day of November, 2000, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 8th day of November, 2000. COPIES FURNISHED: R. Davis Thomas, Jr. Qualified Representative Donna H. Stinson, Esquire 215 South Monroe Street Suite 400 Tallahassee, Florida 32302 Tracy S. Cottle, Esquire Agency for Health Care Administration Regional Service Center Fort Knox Building 3, Suite 3231 2727 Mahan Drive Tallahassee, Florida 32308 Sam Power, Agency Clerk 2727 Mahan Drive Fort Knox Building Three, Suite 3431 Tallahassee, Florida 32308 Julie Gallagher, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building Three, Suite 3431 Tallahassee, Florida 32308
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Palm Beach County is located in Florida Health Service Area Region VII (HSA #7) which also includes Indian River, Martin, Okeechobee, and St. Lucie Counties. The Health Systems Plan (HSP) for Region VII breaks down bed need for Palm Beach County separately from the other four counties. The population of the southern portion of Palm Beach County is growing at a much faster rate than the population of the northern portion of the County. There is a maldistribution of hospital beds between the northern and southern portions of the County. The northern portion of the County has three times as many hospital beds as the southern portion of the County. Palm Beach County presently has 2,752 hospital beds which are either licensed or approved for construction. This figure includes a new 160-bed NME facility in Delray Beach projected to open in the Fall of 1982, a 50-bed expansion at Bethesda Memorial Hospital completed in January of 1982, a 50-bed expansion at Boca Raton Community Hospital and a 48-bed expansion at John F. Kennedy Hospital presently under construction. An additional 80 beds have been approved by HRS for the new Delray facility, but this is presently in litigation and these beds can not be considered in this proceeding. The two hospitals which currently serve the south Palm Beach County area are the Boca Raton Community Hospital (Boca Community) located in Boca Raton and the Bethesda Memorial Hospital (Bethesda) located in Boynton Beach and operated by the District. Both facilities are within a thirty minute driving distance for 95 percent of the population of the southwestern portion of Palm Beach County. According to patient origin studies, Boca Community draws some 7.7 percent of its patients from the southwest portion of Palm Beach County and Bethesda draws only 1.8 percent of its patients from such area. The primary service areas of both facilities are concentrated on the coastal side of the County. Boca Community has a closed medical staff and does not offer obstetrical services. In 1981, Boca Community had an average occupancy level of 91 percent. During the tourist season which runs from November to April of each year, Boca Community was overcrowded, at times operating at a 100 percent occupancy rate. Oftentimes, patients were either turned away or were placed in hallway or holding room beds. There were occasions during the tourist season when the Del Trail Fire Control Tax District, which provides emergency medical rescue service for the residents of southwest Palm Beach County, was advised by Boca Community that they were on a Priority 1 status only. This meant that they could only utilize that facility for the most severe cases of cardiac or respiratory arrest. The Fire Control Tax District's paramedic program anticipates that it will respond to approximately 2,250 medical rescue calls in 1982. A hospital located in the southwestern portion of Palm Beach County would reduce the response time of paramedics, enable them to make more calls and provide better medical service for members of the Fire Control District. In 1981, Bethesda operated at an average occupancy rate of 82.9 percent, with the rate exceeding 90 percent during the tourist season. The HSP utilizes a 75 percent occupancy rate as a guideline for determining the need for additional hospital beds. In health care planning, it is the policy of HRS to utilize county-wide population estimates prepared by the University of Florida's Bureau of Economic and Business Research (BEBR). The most recent population figure promulgated by BEBR for Palm Beach County is a 1981 estimate of 615,165. This figure indicates an increase over its prior projections of almost 20,000. For the year 1985, the medium range population estimate for Palm Beach County is projected by the BEBR to be 707,900. This figure does not significantly differ from projections made by various planning experts who testified at the hearing. Some 99 percent of the population growth in the County is attributable to migration. Among the guidelines for determining need for additional hospital beds in an area are occupancy levels of existing hospital facilities, utilization rates and a desired number of beds per thousand people in an area. The HSP for Region VII considers an occupancy rate of 75 percent to be desirable, and utilizes the formula of 4 beds per thousand population in reaching determinations on the question of need. The State Health Plan, in accordance with federal guidelines, takes into consideration the factors of age of the population and utilization, including migration in and out of an area. Persons over age 65 normally utilize hospital beds and facilities four times as much as people under 65. Some 23 percent of the residents of the southwest area of Palm Beach County were 65 years of age or older. This compares with a national average of approximately 11 percent, and a county-wide average of 20 percent. Accordingly, in computing preliminary bed need projections for 1985, the 1981 Florida State Health Plan utilizes a formula of 4.25 beds per thousand population for HSA #7 as its medium estimate and a formula of 4.61 beds per thousand population as its high estimate. Utilizing the 4/1000 formula, and assuming a 1985 population of 707,900, the bed need for Palm Beach County in 1985 would be 2,832. A 4.25/1,000 formula produces a bed need of 3,009, and a 4.61/1,000 formula results in a bed need of 3,263. Given the exsiting licensed and approved 2,752 beds in the County as a whole, there would be a need in 1985 for an additional 80 beds using the 4.0 approach, 257 beds using the 4.25 approach, and 511 beds using the 4.61 approach. Utilizing the University of Florida population figures for Palm Beach County, distributing that population to various areas within the County in accordance with the Area Planning Board estimates, and further distributing ,beds between the facilities in the southwest area of the County based upon anticipated market shares, the District's health care planning expert determined there would be a need for 157 new beds by 1986 in the southwest area. This projection takes into account the new Delray Hospital, the 50-bed additions at Bethesda and Boca Community and utilizes an 80 percent occupancy rate. By allocating County population figures into subregions, NME's planning expert projected the population of the west Boca service area to be 43,598 by 1985. Utilizing two different methodologies -- occupancy levels and bed per thousand population -- NME's expert determined that there would be a minimum additional bed need of 170 to 188 in the west Boca service area in 1985 to 1986. The previous HSA 1980-1984 HSP only showed a need for 40 or 50 beds in Palm Beach County. The 1981-1985 HSP, which now takes into account the recently approved 160 beds at Delray, 50 at Bethesda and 50 at Boca Community, shows a need for an additional 128 beds. John F. Kennedy Hospital, which does not serve the southwest portion of the County, has been granted approval for 48 beds. The Boca Raton City Council and the Board of County Commissioners for Palm Beach County have each adopted resolutions citing the need for a new hospital in the West Boca area. Many physicians practicing in the Boca Raton area are experiencing their greatest growth in numbers of patients from the West Boca area. Several physicians experienced delays in admitting patients to Boca Community in 1981, and do not believe that that facility's expansion by 50 beds will alleviate the overcrowing at that institution. There is community support for a new hospital facility located in the southwest portion of Boca Raton. The approved and existing hospitals which serve residents of the southwest Boca Raton area have expansion capabilities of approximately 300 beds -- 50 at Boca Community, 90 at Bethesda and 160 at Delray. Expansion of an existing facility can result in lower construction and operational costs than the construction of a new facility. This would be dependent upon the existence of adequate ancillary facilities, adequate space, personnel capabilities and the desires of the existing facility to expand. Other than the 80-bed expansion at Delray which is currently in litigation, no evidence was adduced at the hearing that either Boca Community or Bethesda were seeking expansion beyond that which has previously been approved. The Southeastern Palm Beach County Hospital Taxing District was created by Special Act of the Legislature in 1953 to provide hospital services for the people in a specified geographical area. It is operated by an eight- member Board of Commissioners who are appointed by the Governor for staggered four-year terms. The District currently owns and operates a 350-bed full service hospital known as Bethesda Memorial Hospital in Boynton Beach. Its services include gynecological, pediatric and new born nursery services. Bethesda has the capacity to expand to 440 beds. In 1980, Bethesda received approximately $2,000,000 in ad valorem tax revenues. Without these tax revenues, Bethesda would have operated at a deficit in excess of $1,000,000. The District proposes to construct and operate a new hospital to serve the residents of southwest Palm Beach County. The service area for the new hospital appears to include some areas beyond the geographical boundaries of the District. It intends to construct 138 medical/surgical beds and 12 intensive care beds, for a total bed count of 150. The new facility will not have obstetrics or pediatric services. The total estimated cost of the project is $34,007,000, or a cost of $226,713.33 per bed. Its cost per square foot is $162.12. The District did not itemize its predevelopment costs and based its equipment costs as a percentage of construction costs. It is anticipated that the new facility will share many services and be linked closely with Bethesda. The two facilities will utilize the same Directors of Personnel, Purchasing and Finance. Other shared services will be the central computer service, clinical laboratory services, anatomical-pathological services, certain pharmacy services and legal services. A pathologist will be on-site at the new facility during normal working hours and on-call during off hours to perform those pathological services which require an immediate result. Other lab tests will be performed at Bethesda. It is anticipated that the new facility will be financed through the issuance of two series of tax-exempt revenue bonds. The District anticipates that it can secure bond financing at an 11 percent projected interest rate, and that 87 percent of the project will be financed by debt with an equity contribution by the District of $2.2 million. Ad valorem revenue is not expected to be the source-of repaying the debt. The District projects a loss of some $1.9 million during the first year of operation and an income of $99,484 during the second year of operation of the new facility. A 21-month construction period is anticipated. While the District proposes to locate its new facility on 20 acres of land at the northeast corner of Glades Road and Lyons Road, it had no formal interest in that property as of the time of the hearing. The site is presently zoned as agricultural and is owned by a savings and loan institution. Pursuant to a "gentlemen's agreement" between the institution and the Chairman of the District's Board, it is anticipated that the District can purchase this property at an estimated cost of $1,000,000. If the District is unable to purchase this property, it intends to use its power of eminent domain to acquire that site or another suitable site. The proposed District site will not require any major road improvements, though a traffic control signal may be necessary. National Medical Enterprises, Inc. owns and operates about 40 hospitals and 160 nursing homes and manages another 18 hospitals and 22 nursing homes throughout the United States. Its corporate headquarters are in Los Angeles, California, and it has a regional office in Tampa, Florida. NME has total revenues exceeding $1.4 billion, net income of $70 million and stockholders' equity of $420 million. As of November 30, 1981, NME had over $150 million in the bank and unused commitments from lenders for $170 million. NME has sufficient cash and cash flow to fund a new project without outside financing. If financing were chosen, it would be of a long term (20 year) unsecured nature at a 15 percent interest rate which would cover 65 percent of the project cost. The balance would come from NME's equity contribution. NME proposes to construct and operate a 175-bed hospital to serve the southwest area of Palm Beach County. There are to be 151 medical/surgical beds, 16 intensive care beds and 8 beds for obstetrics, for a total project cost of $30,688,290 or $175,361.65 per bed. The cost per-square foot is $127.00. The new facility will be operated by a local governing board composed of physicians and lay persons originally appointed by NME. The Administrator of the new facility will be appointed by and report to NME's regional office. Hospitals owned and managed by NME share common support services from both the corporate and regional offices. NME employs specialists and experts in the areas of nursing (recruitment and training), energy conservation, administration, communications, architectural and design matters, financial and legal matters, planning and development, management engineering, and purchasing. These professionals are available to NME facilities. National contracts for the procurement of equipment and supplies are available to NME hospitals. NME proposes an opening date of October or November, 1984 and estimates that it will have a net income of $615,000 after its first year of operation and a net income of $917,000 after the second full year of operation. NME proposes to locate its new facility adjacent to the corner of U.S. Highway 441 and Glades Road. It has an option to purchase 20 acres of land at $30,000 per acre. It intends to use 10 of the 20 acres for the hospital site and use the remaining 10 acres for medical office buildings. Site development costs are designated as $800,000. Its total cost of $30,688,290 is broken down into predevelopment costs of $120,000, building and construction costs of $22,646,490 and equipment costs of $7,921,800. NME's projected equipment costs were based upon a room-by-room analysis. The proposed site is presently zoned for agricultural use. Some major roadway improvements would be required, and the cost for these improvements have not been specifically determined or included in NME's projected project costs, other than the $800,000 designated for site development. NME's proposal includes an 8-bed obstetrical unit. Approximately 500 deliveries are expected during the first year of operation. The recognized health planning standard for determining need for an obstetrical unit in an urban area with a population in excess of 100,000 is whether the facility would perform 1,500 births per year. In Florida, some 105 licensed hospitals have obstetrical beds. 74 of those hospitals recorded less than 1,500 births per year. Population statistics broken down by age do not illustrate a significant need for additional obstetrical beds in the southwest area of the County. Obstetrics and pediatrics are currently available at Bethesda. Bethesda recently closed down 9 of its 24 pediatric beds, and, in February of 1982, that unit had a 42 percent occupancy level. Bethesda's nursery had an occupancy rate of 52 percent in 1981, and the 18 post-partum beds had an occupancy rate of 79 percent in 1981. If needed, Bethesda can convert some of its medical/surgical beds to postpartum beds. The Boca Raton Community Hospital has an 11-bed pediatrics unit. Both the District and NME demonstrated that they would have no difficulty in staffing their proposed facilities. Each has vigorous and innovative recruiting program. By comparing data from Bethesda and Palms of Pasadena in St. Petersburg, a facility owned and operated by NME, the District attempted to illustrate that a not-for-profit tax district hospital is able to render services in a more cost-effective manner and at less cost to the patient or charge payors than an investor-owned or proprietary hospital. However, the analysis performed by the District's witness did not include the ad valorem tax income which the District receives and did not consider or compare the types or intensity of services offered or performed by the two different hospitals. It is impossible to infer the cost-effectiveness of a hospital without knowledge of the volume, intensity and mix of services provided. NME's application for a Certificate of Need included a CT scanner at its new proposed facility. No evidence was adduced at the hearing concerning the need for an additional CT scanner in the Palm Beach County area.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that a final order be entered by HRS determining that a need for a least a 170-bed hospital exists in the southwest area of Palm Beach County and that NME's application to construct such a hospital be approved, with the exception of that portion which proposes eight obstetrical beds and a CT scanner. It is further recommended that the application of the District to construct a 150-bed hospital be DENIED. Respectfully submitted and entered this 23rd day of August, 1982, in Tallahassee, Florida. DIANE D. TREMOR, 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 23rd day of August, 1982. COPIES FURNISHED: Fred W. Baggett, Esquire and Michael J. Cherniga, Esquire Roberts, Baggett, LaFace, Richards and Wiser 101 East College Avenue Post Office Drawer 1838 Tallahassee, Florida 32302 C. Gary Williams, Esquire Ausley, McMullen, McGehee, Carothers & Proctor Washington Square Building 227 South Calhoun Street Post Office Box 391 Tallahassee, Florida 32303 Eric J. Haugdahl, Esquire Assistant General Counsel Department of HRS 1323 Winewood Blvd. Building 1, Room 406 Tallahassee, Florida 32301 David Pingree Secretary Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32301 Gary Clarke Deputy Assistant Secretary Health Planning & Development 1323 Winewood Blvd. Tallahassee, Florida 32301 =================================================================
The Issue The issue involved in this case is whether the Petitioner Good Samaritan Health Systems, Inc., should be issued a Certificate of Need to construct an ambulatory surgical center in West Palm Beach, Florida. Testifying on behalf of the Petitioner at the final hearing were Kenneth A. Weda, President of Good Samaritan Hospital; Ms. Patricia Sher, an expert in alternative delivery systems; Samuel G. Tischler, an expert in ambulatory surgical design, administration and planning; Dr. Milton R. Tignor, Jr., a urologist on the staff of the Good Samaritan Hospital; Dr. Abraham Schmuckler, an anesthesiologist at Good Samaritan Hospital; Jerome A. Goebel, an expert in hospital design and architecture; Ross Raneri, an expert in architecture for health care facilities; Byron Thompson, an expert in health care finance; Ms. Linda Vossler, an expert in operating room administration, nursing, staffing and equipment; Robert L. Broadway, an expert in health care planning, administration and finance; and Daniel J. Sullivan, an expert in health care planning and finance. Elizabeth Dudek, Health Services and Facility Consultant Supervisor in the Office of Community Medical Affairs, testified for the Department of Health and Rehabilitative Services. Michael L. Schwartz, an expert in health care planning; Rick D. Knapp, an expert in financial feasibility; and Robert J. Zasa, a former vice-president of Alternative Care, testified on behalf of Intervenors. Nancy McAnallen, nursing director of surgical services at St. Mary's Hospital testified by deposition for Intervenors. Petitioner Good Samaritan's Exhibits 1-3, 6-9, 11-12, 14, 15(a)-(i) and Department of Health and Rehabilitative Services' Exhibits 1-4 were offered and admitted into evidence. The following Intervenor's Exhibits were offered and admitted into evidence: St. Mary's Exhibits 1-4, 6 and 7; Visual Health's Exhibit 1; Intervenor's Exhibits 1-4 and Palm Beach Exhibits 1, 2, 3(a), (b) and (c). At the final hearing ruling was reserved on Petitioner Good Samaritan's Exhibits 4-5 and Intervenor St. Mary's Exhibits 5-6 which are now admitted. The transcript of hearing was filed on September 16, 1986. The parties filed their proposed recommended orders on October 16, 1986. Ruling on the parties' proposed findings are contained in the attached appendix.
Findings Of Fact Paragraphs 1-14 Accepted. 15-28 Accepted, but not in dispute at the hearing. 29-30 Accepted and covered in paragraphs 3-5 of Recommended Order. 31-32 Not relevant to this proceeding. 33-39 Accepted. 40-54 Accepted, but not relevant only to the extent institution specific criteria are considered. 55-58 Accepted. 59-64 Rejected. The preponderance of the evidence supports a finding that the proposal will not merely shift existing services, but will add to the under-utilization problem experienced in the service district. 65-66 Accepted, except as modified in the Recommended Order. 67-70 Rejected. 71-78 Accepted. 79 It is unclear from the record whether scheduling problems exist because of the size of the rooms or doctor preference. 80-81 Accepted. 82-84 Accepted, but modified to show that although the applicant's present operating rooms are far from ideal, less costly and more efficient solutions were not adequately considered as an alternative to the Ambulatory Surgical Center. Rejected. Accepted. 87-90 Accepted. 91-109 Rejected. Table 7 was not utilized in the formulation of the Recommended Order primarily because it uses only a portion of the population of Palm Beach County, the North Palm Beach subdistrict, instead of the entire county or health planning district population as required by law. 110 Accepted. 111-124 Rejected. The Department's non-rule policy was not adequately explained nor justified at hearing. The Department's failure to consider the capacity of approved but not yet operational facilities in granting CON's within the service district was likewise never justified. 125 Accepted. 126-130 Rejected. The capacity-based analysis was adequately explained and justified and was essentially accepted. 131 Accepted. 132 Rejected. The elderly presently have numerous alternatives to inpatient treatment within the service district. 133-134 Accepted. 135 Rejected. 136 Accepted, but modified to reflect that neither Palm Beach nor Visual Health are organized as nonprofit corporations. 137-150 Accepted to the extent they are relevent to this proceeding. 151-159 Rejected. It was not adequately demonstrated that the costs of renovation would be greater or less efficient than shutting down existing space and adding space in a new, separate facility. 160-162 Rejected. Not relevant to these proceedings. 163-169 Accepted. 170-243 Accepted as modified in the Recommended Order. 244 Accepted as modified to reflect that the applicant will increase its market share as a result of this project. 245-247 Rejected. The proposal adds services and capacity to the service district. 248 Accepted. 249-250 Rejected. The nature of this project will affect referral patterns of physicians. 251-253 Accepted. 254 The first sentence is accepted and the second sentence is rejected. 255-256 Accepted. 257 Rejected. The project is not cost-effective if it duplicates the services provided by under-utilized facilities. 258 Accepted. 259. Accepted. The proposal will result in increased outpatient market share and additional revenue for the applicant. 260-261 Accepted. 262-264 Rejected. To the extent that competition exists in the health care field, any added health care provider will foster competition. However, the law permits a CON to issue only when a need for the service is demonstrated. It is based on the assumption that excess services will not lower prices, but will instead result in under- utilized, over-duplicated facilities in the service district. INTERVENORS' PROPOSED FINDINGS OF FACT Paragraphs 1-4 Accepted as modified in the Recommended Order. 5-10 Accepted as modified in the Recommended Order. 11-12 Accepted as modified. 13-14 Not relevant to this proceeding. 15-21 Accepted, not in dispute at the final hearing. 21-25 Accepted as modified in the Recommended Order. 26-38 Accepted. 39-40 Accepted as modified in the Recommended Order. 41 Accepted if the 10-hour day is reasonable. 42-43 Rejected. The need in the community is the primary focus of the CON law rather than the need of an applicant. 44-45 Accepted. There are six approved or existing centers in Palm Beach County. 46 Accepted as modified in the Recommended Order. 47-50 Accepted. 51-54 Accepted. 55-61 Rejected. 62 Accepted. 63-64 Rejected. 65 Accepted. COPIES FURNISHED: Byron Mathews, Esquire Paul H. Amundsen, Esquire MCDERIOTT, WILL & EMORY 101 North Monroe Street Suite 1090 Tallahassee, Florida 32301 Douglas H. Mannheimer, Esquire CULPEPPER, PELHHAM, TURNER & MANNHEIMER, P.A. 300 East Park Avenue Tallahassee, Florida 32301 R. Bruce McKibben, Esquire Assistant General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Charles Stampelos, Esquire MCFARLAIN, BOBO, STERNSTEIN, WILEY & CASSEDY 666 First Florida Bank Bldg. Tallahassee, Florida 32301 Terry Cole, Esquire OERTEL & HOFFMAN, P.A. Post Office Box 6507 Tallahassee, Florida 32314-6507 F. Philip Blank, Esquire Reynold D. Meyer, Esquire 241 East Virginia 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
Recommendation Based on the foregoing, it is RECOMMENDED that Petitioner's application for a Certificate of Need authorizing establishment of an ambulatory surgical facility in Palm Beach County, Florida be DENIED. DONE and ENTERED this 9th day of March, 1987 in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of March, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 84-3722 RULINGS ON PETITIONER'S JOINTLY
The Issue Whether the Palm Beach Health Department (Respondent) committed an unlawful employment practice by failing to reasonably accommodate the alleged disabilities of DeLores Boatwright (Petitioner). Whether Respondent committed an unlawful employment practice by discriminating against Petitioner based on Petitioner’s age.
Findings Of Fact At all times pertinent to this proceeding, Respondent has been an agency of the State of Florida pursuant to section 20.43, Florida Statutes, and an employer within the meaning of section 760.02(7), Florida Statutes (2012). Petitioner was employed by Respondent between January 3, 2002, and January 31, 2013. On January 31, 2013, Respondent terminated Petitioner’s employment for cause. Petitioner worked as an HIV counselor, which required her to provide both pre-test and post-test counseling to clients interested in HIV testing. Counseling performed by Petitioner involved her sitting in an office setting with the door closed to discuss with clients risks for contracting HIV and methods to reduce those risks. HIV counseling sessions are typically conducted face to face. There was a dispute in the record as to how much computer input is necessary while conducting a counseling session. The greater weight of the credible evidence established that any notes would typically be taken by hand and that any computer input would typically be made after the counseling session had been completed. Counseling sessions typically lasted approximately 15 to 20 minutes. Due to privacy and HIPPA considerations, counseling sessions were conducted in a private office with the door closed. Petitioner was directly supervised by Robert Scott from 2005 until December 2011. In October 2009, Petitioner was rear-ended in a car accident while working. This accident prompted a workers’ compensation claim. Petitioner advised Mr. Scott that she had hurt her neck, upper back, and right shoulder. Initially, Petitioner had work restrictions of no lifting, no driving for the job, and no bending. As of October 27, 2009, Petitioner’s work restrictions were lifted, and no other work restrictions were placed on Petitioner. On January 28, 2010, Petitioner was referred to Dr. Edward Chung, an orthopedic specialist. Dr. Chung placed no work restrictions on Petitioner. On February 3, 2010, Dr. Chung determined Petitioner had reached maximum medical improvement and gave her an impairment rating of zero percent. During the remainder of her employment, Petitioner had no on-going impairment rating or work restrictions as a result of her automobile accident. Petitioner worked at the West Palm Beach Health Center, which is Respondent’s primary care medical clinic. This clinic, located on 45th Street in West Palm Beach, is generally known as the 45th Street Clinic. The majority of the rooms in the 45th Street Clinic are examination rooms with an examination table, a small sink, and a small desk for use by the nurse or doctor. The 45th Street Clinic has a limited number of consultation rooms, which are typically small interior offices with a desk that separates the counselor and client with counter space behind or to the side of the counselor for computer work. For a year and a half between 2004 and 2005, Petitioner conducted her counseling sessions in Room 104 of the 45th Street Clinic. Room 104 is a relatively small office with no windows. At the end of 2005, Petitioner’s office assignment changed to Room 102, which is also an interior office with no windows. This move was at Petitioner’s request when the room became available due to the retirement of a colleague. Room 102 is slightly larger than Room 104. Petitioner remained in Room 102 until the beginning of 2010. While she was assigned Room 102 and Room 104, Petitioner kept her door closed, even when she was not seeing clients. This practice was problematic because other staff members were unable to determine when Petitioner was available to counsel patients. Mr. Scott discussed with Petitioner on numerous occasions the need for her to keep her office door open when she was not with a client. Petitioner informed Mr. Scott that she kept the door closed because of a sinus problem that felt better when the door was closed. Petitioner never provided medical documentation of her alleged sinus problem, and there was no credible explanation why keeping her office door closed would improve a sinus condition. In early 2010, Petitioner’s room assignment was changed from Room 102 to Room 107. This reassignment was necessary because Respondent needed to make Room 102 available for another, legitimate business use. Room 107 was an exterior office with a window. Its furniture was in an “L” shape attached to a wall. The office contained a desk and a counter for a computer. During counseling sessions, the counselor and client would sit face-to-face on opposite sides of the desk. The computer was to the counselor’s side, which required the counselor to turn or swivel her chair away from the client to access the computer. In December 2010, Petitioner complained to Mr. Scott that the furniture arrangement in her office was causing her neck and back pain. Petitioner attributed that pain to turning to access her computer or turning to talk to a client while on the computer. In response to Petitioner’s complaint of pain, Mr. Scott requested that Michial Swank, Respondent’s risk manager, perform an ergonomic evaluation of the furniture in Room 107. Such an evaluation is a service that requires no medical documentation and is offered by Risk Management to any employee. Mr. Swank determined that if the furniture could be reconfigured, it should be so that Petitioner did not have to twist to look from a client to the computer or vice versa. Mr. Swank provided his assessment to Respondent’s General Services Department to determine whether the furniture could be reconfigured. Respondent’s General Services Department determined the furniture could not be reconfigured because it was modular furniture custom-made for the office and bolted together. Around March 2011, Dr. Cook, the director of the 45th Street Clinic, proposed that Petitioner change rooms with another HIV counselor located in Room 104. Mr. Swank performed an ergonomic assessment on Room 104 and determined the furniture and computer location to be ergonomically correct for counseling a patient while on the computer. Respondent offered Petitioner the option of moving from Room 107 into Room 104, but she refused that offer and opted to remain in Room 107. Petitioner cited her sinus problems as the reason she did not want to move back to Room 104. Despite her decision to remain in Room 107, Petitioner attempted to persuade Helen Bonner, a nurse, to switch offices with her. This attempt was without the knowledge or permission of Mr. Scott or any other administrator. Ms. Bonner’s room was set up for clinical use for patients with seizure disorders. When Yankick Gribikoff, the nursing supervisor, heard of Petitioner’s effort to have Ms. Bonner swap offices, Ms. Gribicoff immediately squelched the idea. Ms. Bonner’s office had specialized equipment, including specialized telephone equipment and refrigerators. Ms. Gribicoff had valid reasons to end Petitioner’s efforts to swap rooms with Ms. Bonner. In the fall of 2011, two of Respondent’s clinics were closed due to budgetary constraints. Certain personnel were moved from those closed clinics into the 45th Street Clinic. At that time, Rooms 104 and 107 were the only two rooms in the 45th Street Clinic available for HIV counseling. It became necessary to use Room 107 for both HIV and STD (sexually transmitted disease) counseling. Because of its location and proximity to other services, Respondent had a valid reason to select Room 107 over Room 104 as the room for HIV and STD counseling. While Petitioner had had some training in STD counseling, she had difficulty with that type of counseling. An expert in STD counseling was among the personnel being moved from one of the closed clinics to the 45th Street Clinic. Respondent had a valid reason to select the expert to occupy Room 107. Respondent reassigned Petitioner to Room 104. Petitioner agreed to the reassignment and moved into Room 104 on October 3, 2011. Petitioner kept the door to her office closed even when she was not counseling clients. In early November 2011, Mr. Scott received a complaint about the physical condition of Room 104 from someone who used that office while Petitioner was away. The complaint centered on the room’s lack of cleanliness. On November 18, 2011, Mr. Scott met with Petitioner to discuss certain concerns he had. It was during that meeting that Petitioner told Mr. Scott, for the first time, that she was claustrophobic in Room 104. Petitioner referred to Room 104 as being a “closet” and stated that she could not stay in that room. Petitioner brought to Mr. Scott a doctor’s note dated November 23, 2011, that reflected that Petitioner was experiencing claustrophobic symptoms and could not stay in a small, closed space for 15 to 20 minutes. Upon receiving the doctor’s note, Mr. Scott notified Human Resources of the doctor’s note. Arrangements were made to provide Petitioner a larger room in another clinic. Due to the merger of the two closed clinics with the 45th Street Clinic, no room at the 45th Street Clinic, other than Room 104, was available for Petitioner’s use as an HIV counselor. A larger office was found in the Lantana Clinic. The targeted Lantana office was being used by another HIV counselor. To accommodate Petitioner, Respondent arranged to have the Lantana counselor transferred to the 45th Street Clinic and Petitioner transferred to the Lantana Clinic. Petitioner was advised of this change in location and agreed to move around December 18, 2011. She never advised or stated she could not drive to the Lantana Clinic. Petitioner called in sick on December 18, the day she was scheduled to move to the Lantana Clinic. On December 19, 2011, Petitioner reported for work at the 45th Street Clinic instead of the Lantana Clinic. Petitioner stayed at work at the 45th Street Clinic for a few hours, but left because she was not feeling well. On December 19, 2011, Petitioner suffered a stroke1/ and went on medical leave. In May 2012, Petitioner told Mr. Scott that she was ready to return to work. For legitimate business reasons, the Lantana Clinic office was no longer available. Jacqueline Lester is the equal opportunity manager for the Florida Department of Health. Ms. Lester reviews requests for reasonable accommodations with the authority to approve or reject a request. Ms. Lester first became aware of Petitioner as a result of Petitioner’s accommodation request dated December 15, 2011. Petitioner asked to stay at the 45th Street Clinic in a larger office with a furniture arrangement not requiring her to turn her neck. That request was not processed because Petitioner soon thereafter went on medical leave for an extended period. On June 19, 2012, a second request for accommodation was received from Petitioner. In this request, Petitioner asked for a reasonably-sized office, which Petitioner described as being at least 10’ x 10’, with a window. She also asked that the office be within close distance to her home in Palm Beach Gardens due to her inability to drive or sit for “any great length of time.” Petitioner also requested that she start back to work on a part-time basis. Petitioner’s request included notes from two doctors. This medical documentation did not state that Petitioner could not drive due to a neck and back disability. After reviewing the request and medical documentation, Ms. Lester, whose office is in Tallahassee, talked with Respondent’s personnel in Palm Beach County. Ms. Lester decided to accommodate Petitioner’s request. The accommodation was an office located in Respondent’s clinic in Delray Beach. The office was 10’ x 10’ with a window. Although the Delray Beach Clinic was a substantial commute from Petitioner’s home in Palm Beach Gardens, the accommodation included permission for Petitioner to stop as needed while traveling to work without being penalized for late arrival at work.2/ The accommodation also provided that Petitioner could return to full-time schedule at the Delray Beach Clinic “upon release from her medical providers.” Petitioner refused the offer of the office at the Delray Beach Clinic. On January 31, 2013, Respondent terminated Petitioner’s employment for cause based on Petitioner’s refusal to return to work. Petitioner presented no meaningful evidence that Respondent discriminated against her based on age or because of her perceived disabilities. Petitioner filed her Complaint of Discrimination with the FCHR on September 5, 2012. FCHR issued its “Notice of Determination: No Cause” and “Determination: No Cause” on May 21, 2013. Petitioner filed her Petition for Relief on June 12, 2013.
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 adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. It is further RECOMMENDED that the final order dismiss the Petition for Relief with prejudice. DONE AND ENTERED this 1st day of August, 2014, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of August, 2014.
