The Issue Whether the State of Florida Employees Group Health Self Insurance Plan is responsible for paying medical expenses incurred by Petitioner's newborn child where Petitioner had only individual coverage in effect at the time of the child's birth.
Findings Of Fact The State of Florida makes available to its employees several group insurance programs. In the area of health insurance, employees may choose to participate in the State of Florida Employees Group Health Self Insurance Plan (State Group Plan), or they may enroll in other plans, such as HMOs. The State Group Plan is a plan of self insurance established by the State and administered by Blue Cross/Blue Shield. This plan is described in general terms by a Plan Brochure and is described in more detail by the contract of insurance contained in the State Self Insured Health Plan's Benefit Document (Plan Document). The State Group Plan is regulated by those rules contained in Chapter 22K, Florida Administrative Code. At the time employees begin their employment with the State, they may select which, if any, of the optional health insurance programs offered by the State they desire. Thereafter, employees may only join one of the insurance programs or switch between programs during an annual open enrollment period. An employee who elects coverage from the State Group Plan may purchase either individual coverage or family coverage. Individual coverage provides health insurance coverage for only the individual employee. Family coverage provides health insurance coverage for the individual employee and the employee's eligible dependents for whom the employee has elected coverage. Family coverage does not begin until after the application for coverage is processed and the premium for family coverage is paid. The monthly premium for family coverage is paid one month in advance. An employee can, but he does not have to, wait for an open enrollment period to switch from individual coverage to family coverage. An employee having individual coverage may change to family coverage at any time during the year prior to the acquisition of an eligible dependent or at a time that is within 31 days of the date of acquisition of any eligible dependent. If family coverage is requested after the acquisition of the dependent, there is a gap in the coverage of the dependent between the date of acquisition and the date coverage begins. There is no retroactive coverage. An employee who completes the pertinent application for family coverage, who submits the application, and who pays the first month's premium for family coverage prior to the acquisition of the dependent has family coverage in place at the time the dependent is acquired through birth, adoption, or other means. Consequently, there is no gap in coverage between the date of acquisition and the effective date of coverage for that dependent. Petitioner is an associate professor of management and Director of the Doctoral Studies Program in the College of Business Administration at Florida International University (FIU). Petitioner teaches courses in a variety of areas including business administration, wage and salary administration, and insurance benefits. Petitioner enrolled in the State Group Plan in 1982. Petitioner was knowledgeable about the State Group Plan and had, from time to time, compared its benefits to those of other plans. At the time of their marriage, Petitioner and his wife reviewed their insurance coverage and decided not to convert their individual policies to one policy with family coverage. From the date of his initial enrollment until April 1989, Petitioner had individual coverage. On March 8, 1989, Petitioner executed the forms that were necessary to change his individual coverage to family coverage. Petitioner's family coverage went into effect on April 1, 1989, after the application was processed and the premium was collected. In March 1988 Petitioner married Annette Wellinghoff. Petitioner and his wife retained their respective individual insurance policies after their marriage. Mrs. Kroeck was not a state employee so the insurance coverage she had was independent of her husband's coverage. In August 1988 Petitioner and his wife learned that Mrs. Kroeck was pregnant with an expectant due date in February 1989. In August 1988, Petitioner telephoned the personnel office at FIU to inquire as to obtaining coverage for the expected child. The general information given Petitioner in response to his questions was accurate. He was told that he could convert his individual coverage to family coverage, if he so desired, during the open enrollment period scheduled for December 1, 1988, through January 31, 1989. There was no evidence that Petitioner specifically inquired as to when he should begin family coverage in order to have the child's birth expenses covered. Likewise, there was no evidence that Petitioner was specifically told that he could convert his coverage to family coverage after the birth of his child and have the medical expenses covered from the time of birth. Petitioner did not request any written information about the conversion process, nor did he request an application form to effectuate the conversion. Petitioner did not know the name of the person with whom he was speaking, only that she was a representative of the personnel office. Petitioner did not contact the FIU Personnel Office again until after the birth of his son. Instead, Petitioner relied upon his wife to take care of securing health insurance. Petitioner delegated this responsibility to his wife because she was also experienced and knowledgeable in matters concerning employee benefits and health insurance plans. Mrs. Kroeck has had at least 3 years experience in health insurance benefits administration. In December 1988 general information relating to the open enrollment program was mailed to all state employees, including Petitioner. Included in the information package were a Plan Brochure for the State Group Plan and an enrollment form for the various insurance options offered to State employees. Mrs. Kroeck read the application form and a portion of the Plan Brochure. Neither Petitioner nor his wife read, prior to the birth of their child, the section of the Plan Brochure entitled "Purpose of This Brochure". That section states that the Plan Brochure is not intended to be a contract document, that it is intended to give a summary of available benefits, and that an employee should contact either his personnel office or the office of the Division of State Employees' Insurance for the answer to questions. The employee is told that the contract document is the Plan Document and that a copy of the Plan Document is on file at the employee's personnel office. That section also contains the following admonition: The agency personnel office will provide needed assistance to State officers and employees enrolling in the Plan; however, such officers or employees should take care to assure that they receive the coverage applied for and that proper deductions are made. On January 9, 1989, Mrs. Kroeck telephoned the personnel office at FIU with questions relating to listing the unborn child as a dependent on the application form that had been mailed to Petitioner in December. Her questioning centered on how to complete the name, date of birth and social security number for an unborn dependent. Clara Martinez, the employee in the personnel office to whom Mrs. Kroeck spoke, does not recall talking to Mrs. Kroeck on January 8, 1989. At the time of this conversation, Ms. Martinez knew that family coverage had to be in place prior to the acquisition of a dependent for the dependent to be covered as of the date of acquisition. If Ms. Kroeck had asked Ms. Martinez a question to which Ms. Martinez did not know the answer, Ms. Martinez would have contacted the office of the Division of State Employees Insurance in Tallahassee for the answer. The evidence fails to establish that Mrs. Kroeck was misinformed by Ms. Martinez or that she specifically inquired as to the effective date of the family coverage. On February 19, 1989, Mrs. Kroeck had her baby. The baby was admitted to the hospital in his own name and incurred, in his own name, expenses in the amount of $4,274.95, for which Petitioner and his wife were responsible. On March 8, 1989, Petitioner signed an application to change his individual coverage to family coverage. Family coverage became effective on April 1, 1989, after the application was processed and the premium for family coverage was collected. At the time of the birth of his son, Petitioner had individual coverage issued through the State Group Plan. Petitioner's son was not a beneficiary under the State Group Plan at the time the medical expenses which are at issue were incurred. Petitioner's request for payment of the medical expenses incurred by his son at birth was denied by Respondent and this proceeding followed.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent, Department of Administration enter a final order which denies the claim for payment of the medical expenses incurred by Petitioner's son prior to the effective date of family coverage. DONE AND ENTERED this , 27th day of December, 1989, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of December, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-4929 The following rulings are made on the proposed findings of fact submitted on behalf of Respondent. 1. The proposed findings of fact in paragraph 1 are adopted in material part by paragraph 7 of the Recommended Order. 2. The proposed findings of fact in paragraph 2 are adopted in material part by paragraph 7 of the Recommended Order. 3. The proposed findings of fact in paragraph 3 are adopted in material part by paragraph 8 of the Recommended Order. 4. The proposed findings of fact in paragraph 4 are adopted in material part by paragraph 9 of the Recommended Order. 5. The proposed findings of fact in paragraph 5 are adopted in material part by paragraph 9 of the Recommended Order. 6. The proposed findings of fact in paragraph 6 are adopted in material part by paragraph 9 of the Recommended Order. 7. The proposed findings of fact in paragraph 7 are adopted in material part by paragraph 11 of the Recommended Order. The proposed findings of fact in paragraph 8 are adopted in material part by paragraph 13 of the Recommended Order. The proposed findings of fact in paragraph 9 are rejected as being subordinate to the findings made. The proposed findings of fact in paragraph 10 are adopted in material part by paragraph 12 of the Recommended Order. The proposed findings of fact in paragraph 11 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 12 are adopted in material part by paragraph 12 of the Recommended Order. The proposed findings of fact in paragraph 13 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 14 are adopted in material part by paragraph 10 of the Recommended Order. The proposed findings of fact in paragraph 15 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 16 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 17 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 18 are rejected as being unsubstantiated by the evidence as to Ms. Alam and as being unnecessary to the conclusions reached as to Ms. Martinez. The proposed findings of fact in paragraph 19 are rejected as being subordinate to the findings made. The proposed findings of fact in paragraph 20 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 21 are adopted in material part by paragraph 13 of the Recommended Order. The proposed findings of fact in paragraph 22 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 23 are adopted in material part by paragraph 8 of the Recommended Order. The proposed findings of fact in paragraph 24 are adopted in material part by paragraph 18 of the Recommended Order. The proposed findings of fact in paragraph 25 are adopted in material part by paragraph 16 of the Recommended Order. The proposed findings of fact in paragraph 26 are adopted in material part by paragraph 5 of the Recommended Order. The proposed findings of fact in paragraph 27 are adopted in material part by paragraph 4 of the Recommended Order. COPIES FURNISHED: Augustus Aikens, Jr., Esquire Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Kark G. Kroeck 9853 Costa del Sol Boulevard Miami, Florida 33178 Alette A. Lhutes, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 William A. Grieder, Esquire Office of the General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
The Issue Whether or not medical expenses for a private hospital room and private duty nurses for three days are covered by the Employees' Self Insured Group Health Insurance Plan, as administered by Blue Cross and Blue Shield of Florida. BACKGROUND AND PROCEDURE On January 14, 1987, Dennis Nye, Chief, Office of Insurance, informed petitioner payment of his private hospital room and private duty nursing charges were denied because of a lack of documentation demonstrating that those charges were medically necessary. Petitioner timely submitted a Petition for Formal Administrative Hearing contesting the agency's action. The agency elected to request assignment of the case to a Hearing Officer of the Division of Administrative Hearings. At formal hearing, Petitioner testified on his own behalf and presented the oral testimony of his wife, Rosa L. Davis. Petitioner had admitted three exhibits. Respondent presented the oral testimony of William Seaton. Respondent had admitted three exhibits. No transcript was provided. Respondent timely submitted proposed findings of fact and conclusions of law which are ruled upon in the appendix to this Recommended Order, pursuant to Section 120.59(2), Florida Statutes. Petitioner waived the opportunity to file any post-hearing proposals.
Findings Of Fact At all times pertinent to the issues contained herein, Petitioner was the husband and eligible dependent of Rosa L. Davis, #127-26-459, an insured employee under the State of Florida Employees Group Health Self Insurance Plan, provided for in Section 110.123, Florida Statutes. Eligible dependents are entitled to participate and obtain the identical level of benefits as are available to insured employees. On June 9, 1926, Petitioner was admitted to the Good Samaritan Hospital, West Palm Beach, Florida, by his physician, Dr. Barry Rosenberg, with a diagnosis of acute cholecystitis. Cholecystitis is an inflammation of the gallbladder. Petitioner's gallbladder was markedly gangrenous requiring Petitioner to submit to a cholecystectomy, which is the surgical removal of the gallbladder. This operation was performed by Richard A. Lynn, M.D., who thereby became the primary treating physician. His clinical notes contained in the operative report indicate Petitioner was taken "urgently to the Operating Theatre for surgical intervention." His discharge summary reveals Petitioner was "taken immediately to the Operating Theatre because of physical findings as well as being an insulin diabetic." These documents were not objected to and are part of the Division's file, utilized in the initial decision to turn down the claim. The magic word "emergency" was not used by Dr. Lynn until his June 16, 1926 letter (P-1, p. 17) referred to in finding of fact 13. At admission, Petitioner was a 54 year old "quite obese and large" insulin dependent diabetic. Petitioner had an uneventful post-operative course and was discharged on June 13, 1986 to the care of Drs. Rosenberg and Lynn. Petitioner remained in the Intensive Care Unit of the Good Samaritan Hospital only during the first night following his surgery and was transferred immediately to a private room on the morning of June 10, 1926. Petitioner obtained the services of private duty nurses and a private room on June 10-13, 1926. Petitioner testified that his decision was reached based on the recommendation of his physician, Dr. Richard A. Lynn. On June 10, 1926, petitioner received "around the clock" services of private duty nurses at a daily cost of $256.00. Over the succeeding two days, June 11 and 12, 1926; Petitioner received private duty nursing care totaling $336.00. On the last day of his hospital stay, June 13, 1926, Petitioner was charged $256.00 for private duty nursing care. The private duty nursing care totaled $242.00. In addition to the more prosaic around the clock nursing available at the hospital, the private duty nurses stayed in the private room with Petitioner to monitor his post-operative condition, fed him in the very early stages of recovery when he could not feed himself, bathed him, administered respiratory therapy (pounded on his back to clear his lungs and had him breathing through a tube), administered medications, and got him up and walking on a regular therapy basis. Petitioner's private room rate ($199.00 per day)- exceeded the semi- private room rate ($169.00) by $30.00 per day. The total charge for Petitioner's private room was $90.00. The private room daily rate includes bed, board, and around the clock nursing services. No discount in the daily rate was made because of Petitioner's use of private duty nurses. By letter dated August 7, 1987; Petitioner was advised "the State Plan does not provide benefits for private duty nursing while a patient is admitted as an inpatient to a hospital facility." William Seaton, a Benefits Analyst of the Office of Employees' Insurance, Department of Administration, testified that the State Plan does cover private duty nursing care as well as private rooms, if they are medically necessary. This requirement of "medical necessity" is not specifically disclosed or defined in the synopsized informational summaries provided to insureds but is set out in its Benefit Document as covered in the following Conclusions of Law. The Benefit Document is available to insureds if they seek it out. Without objection, Petitioner offered the statements from Dr. Lynn, which are contained in a letter dated June 16, 1926 (P-1; p. 17). Respondent had admitted a December 16, 1926 letter of Dr. Lynn (R-2). These letters establish the medical necessity for the private room and special nursing services. Dr. Lynn stated in his June 16, 1926 letter that it was . . . at my recommendation and in my judgment as his physician and surgeon that private duty nurses and a private room were absolutely necessary . . . [they] aided in the well-being and post-operative care of the patient . . . it was my feeling that private duty nurses and a private room were essential in the patient's management and eventual outcome and it was at my request rather than the patient's that this be enacted. In This December 16, 1926 letter, Dr. Lynn emphasized much of the foregoing and further stated, I totally believe that it was with this outstanding nursing that his course was uneventful and expedited being therefore cost effective in allowing his hospitalization to be shortened. The nurses assisted in his ambulation at the time and with his diabetes management. It is my unequivocal feeling that this again aided in his rapid recovery. Respondent's witness, Mr. Seaton, was not qualified as a medical physician to render expert evidence as to "medical necessity." He deferred to Dr. Dever, the Plan's medical reviewer. The only letter from Dr. Dever merely amounts to a request for more information (R.3). Petitioner has demonstrated no entitlement for $8.00 in copying costs attendant upon submission of his claim.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Administration enter a Final Order paying the claimed benefits in the respective percentages allowed as "medically necessary." DONE AND ORDERED this 1st day of October, 1987, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS, 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 1st day of October, 1987. APPENDIX Petitioner submitted no proposals. The following rulings are made upon Respondent's proposed findings of fact (FOF): Covered in FOF 1. Covered in FOF 2. Covered in FOF 4. Covered in FOF 5. Rejected and modified to conform to the evidence as a whole in FOF 6. The introductory clause is rejected as giving a false impression of cause and effect as discussed in FOF 5, 8, and the Conclusions of Law. The remainder of the proposal is accepted. Covered and expanded to conform to the evidence as a whole in FOF 8. Covered in FOF 9. Covered in FOF 10. Covered in FOF 11. 711. Covered in FOF 12. 12. Rejected as covered in FOF 13-14 and the Conclusions of Law which correctly reflect the evidence as a whole and the weight to be afforded that evidence. COPIES FURNISHED: Richard S. Davis 3901 36th Court, Apt. 212 West Palm Beach, Florida 33407 Augustus D. Aikens, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Adis Villa, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 =================================================================
The Issue The issue in this case is whether the expenses incurred by Petitioner incident to admission to Town & Country Hospital on December 11, 1999, resulted from an intentional self-inflicted injury, to wit: attempted suicide, and are therefore excluded from coverage under the State of Florida Employees Group Health Self Insurance Plan.
Findings Of Fact At all times pertinent hereto, Petitioner, Sarah Nuding, was employed by the University of South Florida and was a participant in the State of Florida Employees Group Health Self Insurance Plan (PPO). Respondent, Department of Management Services, Division of State Group Insurance (DSGI), administers the state's self- funded group insurance plan for employees and has secured the services of BCBS as its third party administrator. On December 11, 1999, Petitioner called the Hillsborough County Sheriff's office after ingesting a handful of Wellbutrin and four tablets of Neurontin. Deputy Sheriff Midarst initiated involuntary examination pursuant to Section 394.463, Florida Statutes, (Baker Act), and Petitioner was admitted through the emergency room to Town & Country Hospital, Tampa, Florida. Petitioner was placed in the Hospital's Intensive Care Unit for observation of her seizure activity and remained there under observation and treatment until her release on December 13, 1999. Upon admission and after examinations, Petitioner was diagnosed with chronic anemia by the admitting physician who ordered consultation with the treating physician before medical services and treatment were provided. The admitting and treating physician, after review of Petitioner's hematocrit and hemoglobin levels which were above that normally requiring hospitalization, determined that Petitioner should be treated for the anemia condition before her discharge on December 13, 1999. Petitioner's State of Florida Employees Group Health Self Insurance Plan Booklet and Benefit Document excludes coverage for services rendered for treatment of self-inflicted wounds, in pertinent part provides: The following are not Covered Services and Supplies under the Plan. The Participant is solely responsible for the payment of charges for all such services, supplies or equipment excluded in this Section. 5. Any services and supplies received due to the following circumstances: (b) Resulting from an intentional self- inflicted injury whether the Participant was sane or insane. An injury is intentionally self-inflicted if the Participant intended to perform the act that caused the injury regardless of whether the Participant intended to cause the injury. On or about July 31, 2000, BCBS notified DSGI that of the Hospital's statement totaling $8,244.00 for services and supplies rendered December 11-13, 1999, only $1,030.25 were directly related to a diagnosis of "anemia"; the remaining charges are for the diagnosis of "drug overdose" and are not covered expenses under the State PPO Plan. The decision by both BCBS and DSGI, to pay those charges related to Petitioner's diagnosis and treatment for anemia and to not pay those charges related to the suicide attempt, including two days intensive care unit cost of $1,150.00 per day, are supported by preponderance of the evidence, and is in accord with the terms and conditions of the insurance plan exclusion provision. Petitioner's position is that her prolonged hospital stay, medical treatment and supplies were: (a) not at her request and consent, (b) that her anemia condition was a pre- existing, and therefore, a covered condition, and (c) intensive care placement ($1,500.00 per day for two days) was not necessary to treat her pre-existing anemic condition, therefore, only her first day hospitalization expenses should have been excluded. However, Petitioner's position ignores the fact that her hospital admission was for a suicide attempt, and her stay resulted from the requirements of the Section 394.463, Florida Statutes, to wit: mandatory involuntary placement for 72 hours.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of State Group Insurance, issue a final order dismissing with prejudice the petition for administrative review. DONE AND ENTERED this 14th day of August, 2001, in Tallahassee, Leon County, Florida. FRED L. BUCKINE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of August, 2001. COPIES FURNISHED: Julia P. Forrester, Esquire Department of Management Services 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950 Sarah C. Nuding 15501 Bruce B. Downs Boulevard Apartment 3705 Tampa, Florida 33647 Cynthia Henderson, Secretary Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950 Mallory Roberts, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
Findings Of Fact In December of 1985, the Petitioner and his dependents were covered by the State Employees Group Health Self Insurance Plan. Robert S. Coughlin, the Petitioner's nineteen-year-old dependent, was hospitalized in an out-of-state hospital from December 24, 1985, to December 26, 1985. The total expense for the hospitalization was $935.00. A claim for insurance benefits to cover the expense was received by the Insurance Plan administrator on August 10, 1987. The claim was filed by the hospital on behalf of the insured dependent, Robert S. Coughlin. The administrator for the Respondent refused to pay the claim as it was not submitted within the sixteen-month period set forth in the contract of insurance. The contract, which is referred to as the benefit document, contains a policy exclusion which provides that no payment shall be made under the Plan for claims made after the expiration of the sixteen-month time limit which begins to run from the date medical expenses are incurred. The hospital did not timely file the claim because a mix-up had occurred during the hospital admission concerning the patient's insurance coverage. The dependent, Robert S. Coughlin, was unconscious during his emergency out-of-state hospital admission. Either the hospital personnel or the dependent's friends mistakenly used the information on another insurance card located in the patient's wallet as the applicable insurance. As the hospital directly filed the claim with the first insurance company, processing delays within the first company caused the hospital to miss the filing deadline for the actual insurance benefits. The Petitioner, Charles R. Coughlin, was not made aware of the situation until after the sixteen-month dime period had expired, and the claim for payment had been refused by the Respondent.
The Issue The main issue in these proceedings is whether a certificate of need for the remaining eighteen nursing home beds to be located in Lee County in January 1991, should be granted to either of the two Petitioners, who dispute the Department of Health and Rehabilitative Services' determination that their respective applications should be denied. The parties have agreed that the criteria at issue in these proceedings are Section 381.705 (1)(a) - (1)(c), (1)(e), (1)(h), (1)(i), (1)(m) and (1)(n), Florida Statutes (1987). Section 381.705(1)(h), Florida Statutes is at issue to the extent that it relates to the availability of resources and the extent to which the proposed services will be accessible to all residents of the service district.
Findings Of Fact The Petitioner, Health Care and Retirement Corporation of America, Inc., (hereinafter HCR) is a wholly-owned subsidiary of Owen-Illinois Corporation. The subsidiary company is in the business of designing, developing, constructing and operating nursing homes. HCR operates over one hundred and thirty facilities in nineteen states, including eleven nursing homes in Florida. Several projects are under development in Florida. One of these is a ninety bed nursing home in Fort Myers, Florida. Crossgates Medical, Inc. and K/Keystone, Inc., are the sponsors of the proposal submitted by the Petitioner Cross Key Manor (hereinafter Cross Key). These corporations formed a general partnership known as Lehigh Acres-C.K. Joint Venture, a Florida general partnership, to renovate and develop the former hospital facility into a nursing home for the area. The nursing home facility began operation in January 1986, and currently contains fifty seven skilled beds, fifty three intermediate care beds, and twenty four ACLF beds. The partnership does not own any other nursing homes in Florida. Existing Facilities HCR has a ninety bed nursing home under development in Fort Myers, Florida. The current design for the physical structure consists of five pods around a central core. Each pod is designed to accommodate up to twenty patient beds. The most efficient design utilization requires that a sixth pod be added to the central core. If an eighteen bed addition were to be approved, a sixth pod would be built. The end result would be an integrated facility which could eventually provide nursing home services for the one hundred and twenty patients needed for the facility to function at its highest operational standards. The physical facility which houses Cross Key originally functioned as a hospital within the Lehigh Acres community. Lehigh Acres is a planned, self- contained development located twenty miles east of Fort Myers, Florida. The population is twenty two thousand, and fifty five to sixty per cent of this population is over sixty years of age. When a new hospital was built upon adjacent lands, the old hospital structure was renovated for use as a nursing home. The building currently has three wings: Wing A contains fifty seven skilled beds, Wing B has fifty three intermediate beds, and Wing C has twenty four ACLF beds. If an eighteen bed addition for private pay nursing home beds were to be approved, the new beds would be located in Wing C. This wing would be renovated to provide for a nurse's station, storage, and the necessary utility rooms. The area would contain ten private rooms and four semi-private rooms. The ACLF patients who currently occupy the area would be moved to Cross Key's proposed ACLF building. Need in Relation to the District and State Health Plan There are eighteen nursing home beds remaining in the fixed need pool in January 1991. The Petitioner HCR seeks to amend its application to reflect a request for the eighteen beds instead of the twenty beds originally sought when the application was filed for review by the Department of Health and Rehabilitative Services (hereinafter the Department). This amendment to HCR's application should be allowed by the Hearing Officer because it was proved during hearing that there was no public notice given by the Department that its policy regarding a "downsizing" or "partial approval" of an application had changed. Prior to the change in policy, the Department had an agency practice and policy of unilaterally downsizing applications and granting partial approvals, without requiring an applicant to submit information relating to an identifiable portion during the application process. As HCR was unaware of the new policy which required the submission of additional data regarding the identifiable portion during the review process, and had relied upon its prior course of dealings with the Department, the amendment is accepted as an application "update." In addition to the "downsizing", HCR seeks to change its project proposal in the following manner: by changing its original proposal of providing new beds for private pay to new beds for Medicaid services; by changing the purpose of the addition from a proposed Alzheimer's disease care unit to a unit which would provide services required for patients with brain stem or spinal cord injuries, or patients with long term rehabilitation needs. Many of these patients would be under sixty five years of age, and would require Medicaid services. These amendments should not be allowed because such changes do not allow for the comparative and competitive review of certificate of need applications, as required by law. Under the applications submitted by the petitioners for comparative review with the other applications, they each sought bed additions for the expressed purpose of providing new beds for private pay patients. These proposals do not meet the district health plan requirement that one third of the new beds be dedicated for use for Medicaid patients. Existing Health Care Services The deficiencies of service in the Lee County area are in Lehigh Acres, followed by the North Fort Myers area, and lastly, the Central Fort Myers area. Cross Key is located in Lehigh Acres. HCR is located in the Central Fort Myers area. There is a need for more Medicaid beds throughout the Lee County area. The need for nursing home beds for patients with Alzheimer's disease was provided for by the award of a certificate of need for sixty beds to Surrey Place of Lee County during the competitive and comparative review. The need for private pay beds was met in the Fort Myers area during the review process. Each Applicant's Ability to Provide Quality of Care HCR and Cross Key are both able to provide quality of care. HCR has a record of two superior and five standard quality ratings in the eight nursing homes currently operating in Florida. An independent quality assurance monitor reviews the quality of care and reports its findings to corporate management. Cross Key has a current quality rating of standard in its facility. Some of the partners in Cross Key have separate ownership and managerial interests in Bruzenski Nursing Home of Sarasota, which holds a superior rating. Shared Health Care Resources Neither project offers economies and improvements in service derived from the operation of joint ventures, cooperatives, or shared health care resources. Accessibility and Availability of Resources The services proposed by HCR will be accessible to all residents of the service district. The Cross Key proposal promotes service access to residents in the Lehigh area. This limitation occurs because of the nursing home's location and the current needs of the population within that area of the county. Accessibility in both proposals was initially limited to private pay patients. The applications do not provide access to Medicaid or medically indigent patients. Both facilities will be able to attract and maintain the staff necessary to operate their proposed facilities. Cross Key's ability to fund the operating expenses for the additional eighteen beds is directly contingent upon its ability to fill these beds with private pay patients. Revenues from the addition are the only resource listed for the required operating expenditures. It is important to note, however, that these patients will pay in advance and that the vast majority of administrative costs have already been borne by the facility as a one hundred and ten bed facility. Because the proposed addition will not operate in isolation from the rest of the facility, it should also be noted that a reduction in Medicaid reimbursement could occur which might effect the revenues of the facility. HCR has the capital resources available to fund the required capital and operating expenses. Financial Feasibility of the proposals Both HCR and Cross Key have demonstrated immediate financial feasibility for the funding of their respective projects. HCR has sufficient funds in hand to fund its project costs. Cross Key proposes to contribute one hundred per cent of the proposed project costs, which is twenty thousand dollars. In its application, Cross Key represented that the addition would not exceed the twenty thousand dollar amount. The pro forma projections of revenues and expenditures for the first two years of operation shows a loss by HCR of $51,736.00 in the first year, and a projected net profit of $8,308.00 in the second year. The pro forma projections by Cross Key show net profits in the first year of $60,889.00 and $63,940.00 in the second year. The updated pro forma is inconsistent with the proposed design for the converted space, but these projections provide less revenue than the proposed design. The reason is that the proposed design contemplates more private rooms than semi-private rooms. Patients pay more per bed for private room settings. Costs and Methods of Proposed Construction The project costs and the methods of construction proposed by HCR are reasonable. Although the cost proposals submitted were for a twenty bed addition, some of the equipment costs will be reduced now that the proposal has been amended to reflect a request for an eighteen bed certificate of need. The equipment cost is reduced by $8,000.00. A correlating reduction in the interest to be paid out during construction was not demonstrated in the summary found in Table 20 of HCR's application. The construction costs of $270,000.00 do not appear to be reduced as a result of the "downsizing" request to eighteen beds instead of the original twenty beds. Cross Key submitted insufficient information for a determination to be made as to whether the costs and methods of the proposed construction and conversion are appropriate. The proposal for eighteen additional beds would increase the size of the nursing home to one hundred and twenty eight beds, which is eight beds beyond the one hundred and twenty bed size of maximum efficiency. The additional beds require the construction of a third nurses' station, as well as other utility rooms. The plans submitted by Cross Key did not locate the nurses' station or the required utility rooms. In the architectural review of the submitted plans, the Department was able to determine that Cross Key proposes to convert ten private rooms and four semi-private rooms to nursing home service. The wing containing the rooms is approximately 3,600 square feet in size. This entire space must comply with nursing home standards. Without more specific plans for a determination, the Department's architect was unable to render an opinion that the proposed project complies with the required standards. Therefore, the proposed plans could not be approved. Cross Key failed to provide the necessary information to the Department's architect which could assist him in a determination based upon the plans, even after an omissions request was sent that informed Cross Key of its need to identify all rooms involved in the conversion. Cross Key represented in its application that twenty thousand dollars was the amount of money necessary to complete the conversion of the ACLF rooms to nursing home beds. It was proposed that this amount of money would cover the costs of construction, which included a nurses' station and the additional utility rooms. The new furnishings and equipment were also included in this cost estimate. Without more information regarding the specific construction plans, and the costs for that portion of the conversion, the Department's architect was unable to render an opinion that the project could be accomplished for the costs set forth in the application. Care to Medicaid and Medically Indigent Patients Both HCR and Cross Key propose to serve only private pay patients in the new nursing home beds. A review of HCR's original application reveals that even if these additional beds remained as private pay beds, the facility would still exceed the total facility minimum of thirty three and one third per cent Medicaid participation. In the past, Cross Key has also exceeded the minimum Medicaid requirements, even though approval of the original facility was not conditioned on such a commitment. Cross Key is under no commitment to provide indigent care, and continues to seek beds which are not required to prove such care.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Department enter its Final Order denying HCR's and Cross Key's respective applications for Certificate of Need No. 5628, and Certificate of Need No. 5630. DONE and ENTERED this 16th day of June, 1989, at Tallahassee, Florida. VERONICA E. DONNELLY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of June, 1989. APPENDIX TO RECOMMENDED ORDER CASE NOS. 88-5287 and 88-5288 Petitioner HCR's proposed findings of fact are addressed as follows: Accepted. See HO #1. Accepted. See HO #2. Accepted. See HO #4. Accepted. Accepted, except for the request for downsizing to 18 beds. See Preliminary Matters and HO #5. Accepted. See HO #3. Rejected. See HO #7. Accepted. See HO #4 and HO #23. Accepted. See HO #4. Rejected. Not at issue in proceeding. See stipulation. Rejected. Not at issue. See stipulation. Rejected. See HO #7. Rejected. Not at issue. See stipulation. Rejected. See HO #7. Rejected. See HO #7. Accepted. Accepted. Rejected. Not at issue. See stipulation. Accept first sentence. See HO #8. Reject the rest. See Conclusions of Law. Accepted. See HO #11. Rejected. See HO #11. Accepted. See HO #12. Accepted. See HO #16. Accepted. See HO #13. Rejected. See HO #14. Rejected. See HO #15. Accepted. See HO #13. Accepted. See HO #17. Accepted, except for finding that beds couldn't be filled with private pay patients. Contrary to fact. Rejected. Not required in review, as stipulated. Accepted. Accepted, but see HO #19. Accepted. Rejected. Conclusionary. Rejected. See HO #19. Rejected. See HO #20. Accepted. See HO #8. Accepted. See HO #3. Reject the suggestion that less costly construction be proposed. The rest is accepted. See HO #21. Rejected. See HO #23. Rejected. See HO #24. Accepted. See HO #24. Rejected. Contrary to fact. Rejected. Legal argument as opposed to factual finding. Accepted. Accepted. See HO #5 - #7; HO #20. Petitioner Cross Key's proposed findings of fact are addressed as follows: 1-3. Accepted. See Preliminary Matters. Accepted. Accepted. 6-7. Accepted. See Preliminary Matters. Accepted. Accepted. See Preliminary Matters. Accepted. 11-14. Accepted. See HO #1. 15-17. Accepted. See HO #2. Rejected. See HO #5. Accepted. Accepted, but See HO #20. Accepted. See HO #5. Rejected. See HO #5 - #7. Accepted. Accepted. Accepted, except that location has always been evident. See Exhibit 6 in HCR's application. Accepted. Accepted. 28-31. Accepted. See HO #4. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. See HO #5. Accepted. Accepted. Rejected. See HO #13. Rejected. See HO #8. Accepted. Accepted. Accepted. Accepted. Accepted. Rejected. Irrelevant. Rejected. Conclusionary. Rejected. Conclusionary. Accepted. Rejected. Conclusionary. Accepted. Accepted. Rejected. Contrary to fact. Conclusionary as to term "existing facility." Rejected. See HO #8. Rejected that HCR does not meet guideline. Contrary to fact. The rest of paragraph 65 is accepted. Accepted. See HO #5. Accepted. Accepted. See Conclusions of Law. Accepted. Accepted. Accepted, except for last sentence. Conclusionary. Accepted. See HO #11. Accepted. See HO #11. Accepted. Accepted. See HO #11. Accepted. See HO #11. Rejected. Irrelevant. Rejected. Irrelevant. Accepted. See HO #11. Rejected. Not probative, immaterial. Accepted. See HO #12. Accepted. See statement of the Issues. Accepted. See HO #14. Accepted, except for last sentence. Contemplates facts not in evidence. Accepted. Accepted. See HO #15. Accepted. Accepted. Accepted. Rejected. Irrelevant and contrary to fact. Accepted. Rejected. Conclusionary. Accepted. Rejected. See HO #20 and HO #23. Accepted. See HO #17. Accepted. See HO #17. Accepted. See HO #23. Accepted. See HO #17. Accepted. See HO #17. Accepted. Accepted. Accepted. Rejected. See HO #18. Accepted. Accepted. Reject first sentence. See HO #20. The rest is accepted. Rejected. See HO #21 and #22. Accepted. Accepted. Respondent's proposed findings of fact are addressed as follows: Accepted. See Preliminary Matters. Accepted. Accepted. Accepted. Accepted. Accepted. See Preliminary Matters. Accepted. See Preliminary Matters. Accepted. See HO #5. Rejected. Irrelevant. See Prehearing Stipulation. Accepted. Accepted. Rejected. See HO #23. Accepted. See HO #21 and #22. COPIES FURNISHED: Alfred W. Clark, Esquire 1725 Mahan Drive, Suite 300 Post Office Box 623 Tallahassee, Florida 32308 James M. Barclay, Esquire Cambridge Centre, Suite 200 215 East Virginia Street Tallahassee, Florida 32301 Richard Patterson, Esquire Department of Health and Rehabilitative Services Fort Knox Executive Center 2727 Mahan Drive Tallahassee, Florida 32308 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 John Miller, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 =================================================================
The Issue Whether Petitioner is entitled to change from individual to family coverage under the State of Florida Employees' Group Insurance Plan retroactively to May 1, 1990.
Findings Of Fact The State of Florida makes available to its employees several group insurance programs. In the area of health insurance, employees may choose to participate in the State of Florida Employees Group Health Self Insurance Plan, or they may enroll in a number of different HMOs depending upon the county in which each employee resides. The State of Florida Employees Group Health Self Insurance Plan (hereinafter "the Plan") is a plan of self insurance established by the State, specifically described in a Benefit Document, and administered, under contract, by Blue Cross/Blue Shield (BCBS). In addition to the provisions of the Plan embodied in the Benefit Document, the self insurance plan is regulated by those rules contained in Chapter 22D, Florida Administrative Code. If an employee voluntarily chooses to participate in the Plan, the State as the employer contributes to the employee's costs by paying a portion of the premium for each employee. At the time that they commence employment with the State, employees may elect to participate in the Plan, in one of the HMOs approved for that particular geographical location, or may choose to not participate in any of the voluntary insurance programs offered through the State. Thereafter, employees may only join one of the insurance programs or switch between programs during an annual open enrollment period, unless an exception applies. An employee may purchase individual coverage, insuring only herself, or an employee may purchase family coverage, insuring that employee and one or more of her eligible dependents. During an open enrollment period, an employee may switch between individual coverage and family coverage for the following year. Under the State Plan, there is an exception to the restriction that employees may only change coverage and health plans during the open enrollment period. An employee having individual coverage may change to family coverage within 31 days after the date of acquisition of any eligible dependent. In that event, coverage for the eligible dependent does not relate back to the date of acquisition but rather will commence on some future date following the payment of the additional premium required for the additional family coverage. Similarly, an employee with only individual coverage may begin family coverage prior to acquiring eligible dependents and may obtain coverage for those dependents effective on the actual date the dependent is acquired by making application in time for a complete month's premium to be deducted prior to the first day of the month during which the dependent(s) will be acquired. At the time a new employee is hired and during open enrollment periods, all employees are given brochures with summary information regarding the various programs in which they are being given an opportunity to participate. Employees are advised, if they have questions regarding the Plan, to contact their personnel officer or the Division of State Employees' Insurance. After the employee makes a selection as to which health plan she wishes to participate in, if any, the employee will subsequently receive more detailed information about that plan. An employee choosing to participate in the Plan will subsequently receive a copy of the State of Florida Employees Group Health Self Insurance Plan Brochure. The first page of the Brochure specifically advises the employee that the brochure does not include all of the provisions, definitions, benefits, exclusions, and limitations of the Plan. The Brochure specifically advises the employee that it is a summary of the benefits and that any questions the employee might have should be presented to the employee's agency personnel offices or the Office of State Employees' Insurance, and provides that office's address and telephone numbers. The Plan itself is not distributed to each individual employee but rather is made available to each agency's personnel office for reference by any interested employee. Under the Plan, a woman with individual coverage is entitled to maternity or pregnancy benefits. As part of those benefits, charges for "well baby care," i.e., the charges for the nursery for the baby, are covered under the Plan as part of the maternity benefit of the mother. In well baby care, charges are not incurred by the baby as a separate patient. On the other hand, if a baby is ill and is admitted to the hospital as a separate patient, well baby care coverage does not apply, and family coverage must be in effect or the infant will be an uninsured individual under the Plan. The University of South Florida (USF) central personnel office is located on its main campus. The Health Sciences Center also maintains an adjunct personnel office for the convenience of employees of the Health Sciences Center at the adjunct personnel office where employees are able to gain assistance on personnel matters and obtain insurance benefit information. However, the employees' actual personnel files are located at the main campus personnel office. Robin Hudson is employed by the University of South Florida in the Health Sciences Center adjunct personnel office as a senior clerk. As part of her duties, Ms. Hudson counsels USF employees on their insurance benefits. Petitioner was employed by the University of South Florida Health Sciences Center on February 19, 1988, and chose to enroll in the State Employees' Group Health Program with family coverage effective March 1, 1988. Subsequently, Petitioner changed from family coverage to individual coverage effective July 1, 1988. Petitioner became pregnant in November 1988, with a due date of August 18, 1989, while she maintained individual coverage with the Plan. Sometime during November 1988, Petitioner telephoned the Health Science Center personnel office and spoke with "someone" regarding maternity coverage. Petitioner was advised that she was covered under the Plan. Also during this same time period, Petitioner referred to the Group Health Self Insurance Plan Brochure and could find no explanation of maternity or new born coverage. She did not seek additional information from the personnel office, nor did she contact the Division of State Employees' Insurance, at that time. The first communication involving Petitioner on the correspondence log maintained by Blue Cross and Blue Shield occurred on January 21, 1989, in a letter that was written to: Santiago and Arocho, M.D., P.A., Family Practice Physicians of Tampa, 5208 D. Fowler Avenue, #1, Tampa, Florida 33617-2152. The second correspondence occurred on May 9, 1989. It as an interpretation on lab work which had been performed on Petitioner. The third correspondence occurred on the same date when Blue Cross and Blue Shield advised provider 77566 was a preferred provided under Preferred Patient Care (PPC). On June 14, 1989, Petitioner enrolled with Tampa General Hospital. Petitioner was advised by hospital personnel that she had well and sick baby coverage at that time. This information was wrong. Sick baby coverage is not included for an employee with individual coverage. Petitioner delivered her daughter Lia at 32 weeks gestation by Cesarean Section on June 20, 1989, at Tampa General Hospital because her pregnancy was complicated by Severe Pre-Eclampsia with HELLP Syndrome. On the date Petitioner delivered her daughter, June 20, 1989, her husband called Blue Cross and Blue Shield of Florida inquiring if pre-admission certification was required for maternity. He was informed that it was not required for maternity. Due to the premature delivery, the child, Lia, was admitted as a patient and remained in the hospital for two weeks in order to gain weight. On February 17, 1989, Respondent's January 30, 1989 Insurance Memorandum 89-001 was received at USF Central Personnel Office. In Respondent's Memorandum 89-001, the Respondent reiterates the provisions of Rule 22K- 1.203(3), Florida Administrative Code, and advises personnel offices to advise "an insured pregnant employee . . . that she should change to family coverage shortly after the pregnancy is diagnosed so that insurance benefits will be available to the employee's child in the event of premature birth." The Personnel Office at USF printed the pertinent portions of Respondent's Memorandum 89-001 and distributed to each employee by placing an individually addressed copy of the Personnel Notes in each employee's mail box. Petitioner doesn't recall receiving the March 24 - April 3, 1989, edition of the news brochure; however, Petitioner asserts that she wouldn't have read it even if it was delivered, because the pertinent information was under the heading "Change in Appointment Status." The entire subject of the article under the heading Change in Appointment Status dealt with insurance benefits offered by Respondent and included a telephone extension number for interested employees to obtain additional information. Petitioner did not request any information of the maternity benefits offered to employees with single coverage from her personnel office or Respondent until after the birth of her daughter. Petitioner changed from single to family coverage, effective August 1, 1989, after consulting with Robin Hudson on July 21, 1989. The Plan has refused coverage for the hospitalization of Petitioner's child, Lia, the expenses of which totaled $9,178.95.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the petition which seeks payment for medical expenses incurred by Petitioner's newborn baby be DENIED. DONE AND ENTERED this 17th day of December, 1990, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of December, 1990. APPENDIX TO RECOMMENDED ORDER CASE NO. 90-5513 The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings of Fact Petitioner did not submit proposed findings Respondent's Proposed Findings of Fact Accepted: paragraphs 1, 2, 3, 4, 5 (in part), 6, 7 (in substance), 8, 9, 10, 11. Rejected, as against the greater weight of evidence: paragraph 5 (in part). Rejected, as a conclusion of law: paragraph 12. COPIES FURNISHED: Marcela Gutierrez-Mayka 701 East River Drive Temple Terrace, FL 33617 Augustus D. Aikens, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 Aletta Shutes Secretary Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550
The Issue The issues presented for decision herein are whether or not disciplinary action should be taken against Respondent, based on conduct set forth hereinafter in detail, due to alleged violations of Chapter 464, Florida Statutes, as contained in the Second Amended Administrative Complaint filed herein on February 8, 1985.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant factual findings. Respondent is, and has been at all times material hereto, a licensed registered nurse in the State of Florida, having been issued license number RN76324-2. Respondent's last known address is 2911 S.W. 9th Avenue, Fort Lauderdale, Florida, 33316. Between approximately June 27, 1983 and October 31, 1983, Respondent was employed as a registered nurse at Miami General Hospital and/or International Hospital. On or about October 28, 1983, Respondent noted the withdrawal of Demerol 75mg for a patient, Granda, on the narcotics sheet for Unit Seven at Miami General Hospital at 11:30 p.m. On or about October 28, 1983, Respondent charted the administration at 11:30 p.m. of Demerol 74mg to patient Granda on both the medication administration record (MAR) and the nurse's notes for patient Granda. On approximately October 29, 1983, Respondent noted the withdrawal of 75mg for patient Granda on the narcotic sheet for Unit Seven at the Miami General Hospital on two (2) separate occasions, at 2:45 a.m. and 6:40 am., respectively. (TR p. 36). On or about October 29, 1983, Respondent charted the administration at 2:45 a.m. and 6:40 a.m., of Demerol 75mg to patient Granda on the MAR and the nurse's notes for patient Granda. If Respondent administered the above-mentioned dosages of Demerol 75mg to patient Granda, she did so without a valid physician's order as the original physician's order for patient Granda was dated October 14, 1983 for Demerol 25mg to be given intramuscularly every four (4) hours as needed, with Vistaril. (TR pp. 142 and 143). At Miami General, as with most hospitals, there is a policy that a narcotic order, if not renewed within seventy-two (72) hours, is considered non- existent. The original doctor's order, dated October 14, 1983, for Demerol 25mg to be administered intramuscularly was never renewed and therefore expired October 17, 1983. (TR p. 143 and Petitioner's Exhibit 2) It is the medicating nurse's responsibility to ensure that a valid doctor's order exists for narcotics prior to administering narcotic medication to a patient. (TR p. 143). Respondent failed to sign the MAR for patient Granda on October 28 and 29, 1983 as the nurse administering medication to that patient. (Petitioner's Exhibit 2 and TR pp. 144 and 145). Granda's nurse on October 28, 1983 was Marie Joseph. (Petitioner's Exhibit 2, TR p. 144). The nurse's notes for patient Granda reflect that at 12:00 midnight on October 29, 1983, patient Granda was twice medicated with Demerol and Vistaril; and at 6:40 a.m. patient Granda was again medicated with Demerol and Vistaril. The 12:00 midnight administration was not signed by the nurse making the entry. The second entry written at 6:40 a.m. on October 29, 1983 is completed by what appears to be Respondent's signature. Respondent signed the nurse's notes dated October 29, 1983 as patient Granda's nurse for the 11:00 p.m. to 7:00 a.m. shift, whereas Marie Joseph was Granda's nurse on that date. (Petitioner's Exhibit 2) The nurse's notes for patient Granda do not reflect a 2:45 a.m. administration of Demerol to patient Granda but instead reflect the two above- mentioned 12:00 midnight administrations of Demerol to patient Granda. (Petitioner's Exhibit 2). On October 30, 1983, Respondent charted the administration of Demerol 75mg to patient Granda at 7:00 a.m. on the MAR for patient Granda. (TR p. 37). Patient Granda was not assigned to Respondent on October 30, 1983 for patient care. Respondent's administration of medication to patient Granda on October 30, 1983, was done without communicating to the assigned nurse, Marie Joseph, who was responsible for patient Granda's care. (TR p. 149). On October 30, 1983, Respondent was assigned as a "temporary" to work on the floor with Marie Joseph, a Registered Nurse at Miami General Hospital. Marie Joseph observed Respondent's behavior inasmuch as Respondent appeared erratic in terms of recording the administration of medications for patients. (TR 131). At 6:30 a.m. on October 30, 1983, Marie Joseph checked the narcotic records for patient Granda and noted that Respondent had made an entry in the records indicating the withdrawal of Demerol 75mg for patient Granda. Respondent's notation was inaccurate inasmuch as Marie Joseph had been tending patient Granda as early as 6:30 a.m. on October 30, 1983 and during that time patient Granda neither complained of pain nor requested pain medication during that time period. Finally, Respondent did not advise Nurse Joseph that she (Respondent) was medicating her assigned patient, Granda. (TR pp. 131-134). On October 28, 1983, Respondent did not administer Demerol 75mg to patient Granda at Miami General Hospital at 11:30 p.m. On October 29, 1983, Respondent did not administer Demerol 75mg to patient Granda at Miami General Hospital at 2:45 a.m. On or about October 29, 1983, Respondent did not administer Demerol 75mg to patient Granda at Miami General Hospital at or about 6:40 a.m. On or about October 30, 1983, Respondent did not administer, at any time during the day, Demerol 75mg to patient Granda at Miami General Hospital. COUNT II On or about October 18, 1983, at 11:30 p.m., Respondent signed out one (1) vial of Demerol 75mg which was to be administered to patient Powell. On or about October 18, 1983, Respondent charted the administration, at 11:30 p.m., of Demerol 75mg to patient Powell on both the MAR and the nurse's notes for patient Powell. (TR p. 38). On or about October 19, 1983, Respondent signed out two (2) vials of Demerol 75mg which were to be administered to patient Powell. The vials were signed out on the narcotic sheet at approximately 3:00 a.m. and 7:00 a.m., respectively. (TR p. 38). On or about October 19, 1983, Respondent charted the administration of Demerol 75mg to patient Powell at 3:00 a.m., and then again at 7:00 a.m. on both the MAR and the nurse's notes for patient Powell. (TR p. 38). Patient Powell did not receive any Demerol on the weekend of October 18 and 19, 1983, despite Respondent's charting the administration of same as being given both on the MAR and the nurse's notes for patient Powell. On one occasion, during the weekend of October 18 and 19, 1983, Respondent attempted to give patient Powell an injection but patient Powell refused the injection. (TR pp. 138-139). COUNT III On October 18, 1983, at approximately 11:30 p.m., Respondent signed out one (1) vial of Demerol 50mg for administration to patient Duphilley on the narcotics sheet for Unit Seven at Miami General Hospital. On the nurse's notes for patient Duphilley, Respondent charted the administration of Demerol 50mg at approximately 12:00 midnight on October 19, 1983. (TR p. 40). On or about October 19, 1983, at approximately 4:30 a.m., Respondent signed out one (1) vial of Demerol 50mg for administration to patient Duphilley on the narcotic sheet for Unit Seven, Miami General Hospital. On the nurse's notes for patient Duphilley, Respondent charted the administration, of Demerol 50mg, at approximately 4:30 a.m. on October 19, 1983. (TR p. 40) On the MAR, Respondent charted the administration of the dosages of Demerol described as having been given all on October 18, 1983 and not on both October 18 and 19, 1983 as reflected in the nurse's notes and the narcotics sheet. (Petitioner's Exhibit 4 and TR pp. 160-162). There was no valid physician's order in effect on October 18 and 19, 1983 for the administration of any quantity of Demerol to patient Duphilley. Patient's records bin effect for patient Duphilley reflect that on October 11, 1983 there was a valid physician's order for Demerol 25-50mg to be given intramuscularly every four to six hours as needed. As this physician's order was not renewed within seventy two-hours, it expired October 14, 1983. (Petitioner's Exhibit 4). The MAR for patient Duphilley indicated that Duphilley was given Demerol 50mg once on October 11, 1983 and Duphilley did not receive the medication again until October 18, 1983 when she was again medicated by Respondent. (Petitioner's Exhibit 4). Respondent did not administer Demerol 50mg to patient Duphilley at 11:30 a.m. on October 18, 1983 or at any time on October 19, 1983. COUNT IV On October 28, 1983, Respondent signed out Demerol 50mg for patient Gordon at 7:00 a.m. on the narcotics sheet. (TR p. 44) Respondent failed to chart the administration of the Demerol on the nurse's notes. (Petitioner's Exhibit 3). Respondent did not sign the MAR for patient Gordon on October 30, 1983 as the nurse administering medication on the 11:00 p.m. to 7:00 a.m. shift. (Petitioner's Exhibit 3). Prior to administering medication to Gordon on October 30, 1983, Respondent did not communicate to Marie Joseph, the nurse responsible for patient Gordon's care, that Respondent was medicating Joseph's patient. (TR pp. 136-137). COUNT V On March 18, 1982, Respondent submitted an application for employment as a registered nurse to Quality Care Nursing Service (Quality) in Fort Lauderdale, Florida. Quality is an agency which provides nursing care on a referral as needed basis. Quality Care will refer private duty nurses to different entities or individuals seeking to utilize such nursing care upon request. At all times material hereto, Respondent was employed by Quality as a registered nurse. (TR p. 42). Between approximately November 5 and 8, 1983, Respondent was engaged through Quality as a private duty nurse at Broward General Medical Center in Fort Lauderdale, Florida. While engaged as a private duty nurse at Broward General, Respondent failed to sign the private duty nurse roster for November 5, 6 and 8, 1983 even though she was engaged as a private duty nurse at Broward General for such dates. (Petitioner's Exhibit 18 and TR pp. 175-176). At Broward General, private duty nurses and sitters are required to sign a private duty roster for nurses and sitters for those dates on which they are so employed. At times material hereto, Respondent was engaged as a private duty nurse for one patient only. Respondent as a private duty nurse had no duties or responsibilities with reference to the care of other patients (which she was not assigned) at Broward General. On November 5, 1983, Respondent administered two dosages of 50mg of Demerol to Lucie Hines at Broward General at 4:00 p.m. and 8:05 p.m. respectively. (TR p. 44). Patient Hines, to whom Respondent administered the Demerol, was not Respondent's assigned patient. Respondent failed to chart on the nurse's notes, the 8:05 p.m. administration of Demerol (to Hines) which occurred on November 5, 1983. (Petitioner's Exhibit 11). Respondent charted the above-described administration of Demerol on the MAR, however her initials were illegible. (TR pp. 170, 171). While Respondent charted the 4:00 p.m. administration of Demerol to Lucie Hines on the nurse's notes, her signature was illegible. (TR p. 170). On November 6, 1983, Respondent administered two (2) doses of Demerol 50mg to patient Hines at Broward General at 5:10 p.m. and 9:30 p.m., respectively. (TR p. 46). Respondent was not assigned to administer care to patient Hines on November 6, 1983. While Respondent charted the above-referred 5:10 p.m. and 9:30 p.m. administrations of Demerol 50mg on the MAR for patient Hines, her initials were illegible. (TR pp. 172-173). Respondent charted the above-described administrations of Demerol on the nurse's notes for patient Hines, however her signature was illegible. Respondent charted the 9:30 p.m. administration of Demerol on the nurse's notes but did not sign the entry. (Petitioner's Exhibit 11). COUNT VI On November 6, 1983, Respondent administered Demerol 50mg to patient Elma Snyder at Broward General at 3:30 p.m. (TR p. 47). Patient Snyder was not assigned to Respondent for care on November 6, 1983. (TR p. 47). Respondent failed to sign the MAR for patient Snyder as the person administering medication for patient Snyder on the 3:00 p.m. to 11:00 a.m. shift on November 5, 1983. (TR p. 173 and Petitioner's Exhibit 9). On November 8, 1983, Respondent administered 50mg of Demerol to patient Snyder at Broward General at 5:00 p.m. Patient Snyder was not Respondent's assigned patient on November 8, 1983. Respondent charted the above-described administration of Demerol on the MAR, however her initials were illegible. Additionally, Respondent failed to sign the MAR as the person administering medication for that patient on the 3:00 p.m. to 11:00 p.m. shift on November 8, 1983. (Petitioner's Exhibit 9). Respondent did not communicate to Nurse Narissa Ferguson, the nurse responsible for patient Snyder on November 6, 1983, that she was administering Demerol to patient Snyder. COUNT VII On November 6, 1983, Respondent administered two doses of Demerol 75mg to patient Mardell Johnson at Broward General at 6:30 p.m. and 10:40 p.m., respectively. (Petitioner's Exhibit 8). Patient Johnson was assigned to Narissa Ferguson for health care on November 6, 1983. Respondent did not communicate the administration of Demerol to Narissa Ferguson on November 6, 1983. (TR pp. 125-128). Respondent charted the 6:30 p.m. administration of Demerol on the nurse's notes for patient Johnson, however, she failed to chart the 10:45 p.m. administration of Demerol on November 6, 1983 on the nurse's notes for patient Johnson. (Petitioner's Exhibit 8 and TR pp. 168, 169). On November 8, 1983 at 4:15 p.m., Respondent administered Demerol 75mg to patient Johnson at Broward General. (Petitioner's Exhibit 8). Patient Johnson was not Respondent's assigned patient on November 8, 1983. Additionally, Respondent did not communicate the administration of Demerol on November 8, 1983 to the nurses responsible for patient Johnsons' care. (Petitioner's Exhibit 8 and TR pp. 125-128). While Respondent charted the administration of medication to patient Johnson on the nurse's notes, her signature was illegible. (Petitioner's Exhibit 8). COUNT VIII During times material, Respondent was engaged as a private duty nurse at North Broward Medical Center. Respondent was engaged at North Broward through Helpmates Nursing Services, a referral agency which provides private duty nursing care. While at North Broward Medical Center, Respondent was the private duty nurse responsible for the care of Reuben Cohen. (TR p. 51). During times material, Fred J. Carson, M.D., Cohen's physician, appeared to have given Respondent a verbal order for the administration of Demerol to patient Cohen. (TR p. 51). Patient records for Cohen reflect that, provided Respondent received a verbal order from Dr. Carson for the administration of Demerol, Respondent failed to record the verbal order in the patient's records. (Petitioner's Exhibit 7). On December 24, Respondent withdrew two (2) vials of Demerol 50mg for administration to patient Cohen at 4:45 p.m. and 8:00 p.m., respectively, and noted same on the narcotics sheet. (TR p. 52). While Respondent charted the administration of Demerol given patient Cohen on the nurse's notes, Respondent failed to chart the administration of either dosages of Demerol on the MAR for patient Cohen. On December 25, 1983 at approximately 11:30 p.m., Respondent withdrew one (1) vial of Demerol 50mg for administration to patient Cohen on the pertinent narcotics sheet. (TR p. 52). Respondent charted the administration of Demerol 50mg to patient Cohen at approximately 11:30 p.m. on December 25, 1983 on the nurse's notes. Respondent, however failed to chart the administration of Demerol 50mg on the MAR for patient Cohen. (TR p. 52). On December 26, 1983, Respondent withdrew two (2) vials of Demerol 50mg for patient Cohen at 2:40 a.m. and 6:30 a.m., respectively, on the pertinent narcotics sheet. (TR p. 52) On December 26, 1983, Respondent charted the administration of Demerol 50mg at 2:40 and 6:30 a.m. on the nurse's notes for patient Cohen. However, Respondent did not chart the administration of Demerol 50mg on the MAR for patient Cohen. (See TR p. 52). Nancy Cox, a critical care educator employed at Miami Children's Hospital, has been a licensed registered nurse in Florida since 1959. Ms. Cox specialized in critical care and critical care education and the legal implications of professional nursing. As such, she provides hospital staff with the duties and responsibilities of a professional nurse. Cox emphasizes to practicing nurses the importance of documentation, the implications of receiving and transcribing physician's orders, carrying out such orders, observation of patients, assessments of patients and performing treatments. She provides information as to the manner of providing patient's safety and the implementation of physician's orders to provide for patient's safety. One of the areas regarded as highly important is the accurate charting and documentation of medications in a timely fashion so that the patient's safety is not jeopardized. As example, if a medication would be omitted from medication administration records or from nurse's notes, there is the hazard of another nurse coming along giving the same medication not realizing medication has already been administered. (TR 178- 181). Ms. Cox was received as an expert in the area of general nursing, critical care nursing, quality assurance, record keeping and record reviews. (TR 183). Ms. Cox' review of Respondent's records regarding the administration of narcotic medication indicates that Respondent failed to follow normal procedures for administering medication for hospitals. (TR 184) . Record keeping is regarded as one of the fundamental cornerstones of nursing. As example, a physician is with a patient but a brief period of time daily whereas the nurse, by her records, (nursing notes and other documentation) is in fact keeping a log for their physician of all that transpires in the interim between his (the physician's) visits. It is therefore extremely important that it be factual, explicit, timely and contain observations and assessments. Without such documentation, the quality of care falls very far below the required minimum. (TR 185-186). Ms. Cox' review of Respondent's conduct forces the conclusion that Respondent's conduct was unprofessional in nature because it failed to conform to and departed from minimal standards of nursing care and practice. Particular note was given to the legibility of Respondent's signature which is important in that a nursing care provider must be able to recognize the signature on nursing notes which are, after all, regarded to be legal documents. Such providers are accountable for what is written on the nursing notes and if they cannot be properly identified, the accountability falls below that minimum which is required of such care providers. (TR 187). The nursing notes are part of the medical records which graphically illustrate the course of treatment for a given patient. Omissions or inconsistencies in that record fail to serve the purpose for which it was designed and therefore fall below the minimum standards of care. Respecting Respondent's pattern of administering narcotics to patients which were not properly assigned her without properly communicating the administration to the nurse responsible for that patient, constitutes unprofessional conduct. (TR 101-102). Respondent's repetitious pattern of failing to perform above the minimal standards, in spite of counseling by supervisors, leads to a factual conclusion that Respondent's actions were not mistakes or possibly accidental but amount to a failure to conform to the minimal standards of acceptable and prevailing nursing practice. It is so concluded.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Respondent's license number RN7634-2, be suspended for a period of two (2) years. RECOMMENDED this 24th day of April, 1986, in Tallahassee, Florida. JAMES E. BRADWELL 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 24th day of April, 1986. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 84-1764 Rulings on Petitioner's Proposed Findings of Fact: Petitioner's Proposed Findings of Fact numbered 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, and 80 are adopted and incorporated in the Recommended Order. Petitioner's Proposed Findings of Fact numbered paragraphs 20, 21, 22 and 23 are adopted based on Petitioner's First Request for Admissions and Respondent's answers thereto. COPIES FURNISHED: Stephanie A. Daniel, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Craig K. Satchell, Esquire 4700 Sheridan Street Building E Hollywood, Florida 33021 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Judie Ritter, Executive Director Board of Nursing Room 504, 111 East Coastline Drive Jacksonville, Florida 32201 =================================================================
The Issue Whether the Department properly excluded coverage for care provided to Petitioner’s child.
Findings Of Fact Petitioner, Susan Carswell, was employed by the State of Florida, Department of Labor and Employment Statistics, from June 1994 until December 1998. She enrolled herself and her children in the State Group Health Insurance Plan (State Plan). The State Plan, Section XXVIII, paragraph A, provides as follows: 18. 'Condition' shall mean any disease, illness, injury, accident, bodily dysfunction, pregnancy, drug addiction, alcoholism, or mental or nervous disorder. * * * 21. 'Covered Services and Supplies' shall mean those health care services, treatments, therapies, devices, procedures, techniques, equipment, supplies, products, remedies, for which expenses are covered under the Benefit Document. (emphasis supplied) * * * 23. 'Custodial Care' means care which does not require Skilled Nursing Care or rehabilitation services and is designed solely to assist the Participant with the activities of daily living, such as: help in walking, getting in and out of bed, bathing, dressing, eating, and taking medicine. (emphasis supplied) * * * 40. 'Illness' means physical sickness or disease, pregnancy, bodily injury, or congenital anomaly. * * * 49. 'Medically Necessary' means the service received required to identify or treat the illness, injury, or mental or nervous disorder which a physician has diagnosed or reasonably suspects. The service must (1) be consistent with the symptom [sic], diagnosis and treatment of the patient’s condition, (2) be in accordance with standards of good medical practice, (3) be required for reasons other than convenience of the patient or his/her physician, (4) be approved by the appropriate medical body or board for the illness or injury in question, and (5) be the most appropriate, efficient and economical medical supply, service, or level of care which can be safely provided. * * * 56. 'Outpatient' means a patient who is receiving medically necessary care or treatment ordered by a physician and who is not an inpatient. * * * 80. 'Skilled Nursing Care' means care which is furnished by, or under the direct supervision of, licensed Registered Nurses (under the general direction of the physician) to achieve the medically desired result and to ensure the Participant’s safety. Paragraph C of the State Plan provides for covered medical and surgical services and supplies as follows: Seventy percent(70) of the Allowance for Medically Necessary Inpatient/Outpatient services and supplies provided to a Participant by a Non-Network Provider for the treatment of the Participant as a result of a covered accident, illness. (emphasis supplied) * * * Ninety percent (90) of the Allowed Amount for Medically Necessary Inpatient/Outpatient services and supplies provided to a Participant by a Network Provider for the treatment of the Participant as a result of a covered accident, illness. (emphasis supplied) Paragraph D of the State Plan provides for other covered services as follows: The Plan shall pay eighty percent (80) of the Allowed Amount or Allowance, whichever is applicable, for the following Medically Necessary Services when ordered by a physician for the treatment of the Participant as a result of a covered accident, illness . . . . Nursing care by a Registered Nurse or Licensed Practical Nurse. Paragraph G of the State Plan provides for exclusions to covered services and supplies as follows: The following are not Covered Services and Supplies under the Plan. 4. Any services and supplies which are not medically necessary. * * * 14. Any services in connection with Custodial Care or preventive care; immunizations or except those in accordance with Child Health Supervision Services or when necessary as a result of an accident. The term "treatment" is not defined in the State Plan. Veronica Carswell is the daughter of Petitioner. She was born on May 5, 1983. Veronica was born healthy, but due to problems resulting from an illness that hospitalized her when she was a week old, she is severely disabled. Her current state is due either to her illness or an accident. She has cerebral palsy, seizure disorder, and vision problems. She is a spastic quadriplegic, severely brain damaged and profoundly mentally retarded. Her body is severely dysfunctional. She has a tracheotomy tube for breathing and a gastrostomy tube for feeding. Veronica is totally dependant on other people for her care. From 1987 to 1998, Veronica resided in a specialty care residential hospital facility in New York. In 1998, Petitioner moved her daughter to Florida so that she could reside at home. In preparation for the move, Petitioner advertised for and hired licensed practical nurses (LPNs) to provide her daughter with the care she needed on a 24-hour basis. Petitioner hired LPN’s because she had discovered it was considerably cheaper to hire an LPN than pay for the services of a lesser qualified home health care aid through a licensed home health care agency. The LPNs provided care to Veronica according to a Care Plan devised by Kathleen Hamilton, LPN, and approved by Dr. Gary Soud, Veronica’s physician. The Care Plan provides for medically necessary treatment or management of Veronica’s current condition and bodily dysfunction. The care required in the plan is recognized as appropriate care and treatment by experts in the field and is not being given for purposes of convenience. Nurse Hamilton is also one of the LPNs who care for Veronica and has provided health care services to Veronica for one year. Other LPNs provide services to Veronica similar to those provided by Nurse Hamilton. The services provided by the LPNs hired by Petitioner include repositioning of Veronica periodically throughout the day, feeding through the gastric tube, checking residual fluid in Veronica’s stomach with a syringe, administering medication through the gastric tube, misting to keep secretions moist, suctioning of the tracheotomy tube, changing the tracheotomy tube ties, replacing the tracheotomy tube every 3 weeks, assessing Veronica’s cardiopulmonary status at least every eight hours and continuously throughout her care, and monitoring Veronica’s oxygen saturation every four hours or as needed by her condition at the time. The attention Veronica requires in order to maintain her breathing is fairly constant, to the point that when Nurse Hamilton testified, she had to sit or stand beside Veronica to administer care, primarily suctioning, to her. Although seizures have not been a problem, Veronica still requires monitoring by a nurse for small seizures, which while not deadly, could adversely affect Veronica’s condition. Veronica’s condition is fragile and without constant care she can quickly deteriorate. Arguably a lay person with proper training could perform the activities involving the gastric tube and repositioning. However, the evidence did not show that Petitioner is adequately trained or able to perform the tasks required for proper use of the gastric tube or repositioning. Moreover, the evidence did not show that such training was available. Likewise, the evidence did not show that a trained lay person was available to perform the care required in relation to the gastric tube or repositioning or that such a person would be more efficient or economical to hire. In fact, the evidence showed that a trained nurse's aide would be more expensive than hiring an LPN to perform the same tasks. Therefore, it would seem appropriate that an LPN perform these services. The same economic analysis applies to all aspects of Veronica’s Care Plan. Additionally the evidence was clear that the care required which involves the gastric tube is not simply care or treatment given for the sole purpose of assisting Veronica with her activities of daily living. Veronica’s condition necessitates the use of special expertise to feed her because she does not feed normally. In order to maintain her status to prevent her deterioration and even death and to prevent infection, which are recognized medical goals, she must receive additional care such as checking her stomach fluids, and cleaning and maintenance of the gastric tube. The amount she is fed must be carefully monitored. The actual feeding of Veronica is a minimum part of the care which is required because she has a gastric tube. The greater activities are the care functions performed for the purpose of maintaining her current status and preventing infection. Since the care and treatment Veronica receives involving the gastric tube are not designed for the sole purpose of assisting Veronica to eat, they do not fall within the exclusion for custodial activities. Similarly, Veronica’s care concerning repositioning is not for the sole purpose of assisting Veronica in her activities of daily living. Repositioning maintains Veronica’s circulation and must be done in order to maintain her current health status and current level of atrophy. Repositioning also prevents the formation of pressure sores. Therefore, because repositioning has multiple medical purposes such care does not fall under the custodial care exclusion. Veronica cannot breathe without a tracheotomy tube. All of the care given to Veronica which involve the tracheotomy tube are medically necessary to maintain her current medical state and to maintain an appropriate level of oxygen in Veronica’s blood and tissues. The same is true of the John Bunn mist administered to Veronica to keep her secretions moist so that she can cough them up or have them suctioned out of her air passageway. Blockage of the air passageways is a real danger with Veronica. The tube coming out is a danger to Veronica. Without these treatments or procedures Veronica’s oxygen level would drop and she would deteriorate. As indicated earlier, the tracheotomy care is constant. Because her breathing is so impaired, Veronica needs to be monitored constantly in addition to the cardiopulmonary assessment done every eight hours and oxygen saturation check done two times per shift. Such monitoring is a nursing assessment requiring special training which is best done by a nurse. Nothing involving the tracheotomy is done for the sole purpose of aiding with Veronica’s activities of daily living. Therefore the custodial exclusion does not apply. Except for the replacement of the tracheotomy tube every month, none of the care or treatment rendered to Veronica is required to be performed by a registered nurse (RN) or under the supervision of a RN. However, some of the care and treatment requires nursing expertise of at least the training of an LPN. However, all of the care can be part of a nurse's function and, at least in this case, is better supplied by a nurse, given Veronica’s fragile condition, level of impairment and the fact that the care is provided most efficiently and economically by an LPN. Therefore, Petitioner is entitled to payment of her claim under the State Plan.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner’s claim be paid. DONE AND ENTERED this 29th day of October, 1999, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of October, 1999. COPIES FURNISHED: Lamar Winegeart III, Esquire 219 Newman Street, 4th Floor Jacksonville, Florida 32202 Cindy Horne, Esquire Department of Management Services 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950 Paul A. Rowell, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950 Thomas D. McGurk, Secretary Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
