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GLOBAL HOME HEALTH SERVICES, INC. vs. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, 78-001013 (1978)

Division of Administrative Hearings, Florida Number: 78-001013 Latest Update: Jan. 15, 1979

Findings Of Fact The Petitioner is a corporation in the business of providing home health care services. The Department of Health and Rehabilitative Services is responsible for licensing home health care agencies. The Petitioner applied for a license to operate such a business by filing an application with the Department on May 13, 1976. In its application the Petitioner indicated that it would serve Pinellas County. The Florida Gulf Health Systems Agency, a private entity created in accordance with Federal Public Law 93-641, was asked by the Department to consider the need for the services that the Petitioner proposed to provide. The Florida Gulf Health Systems Agency ("HSA" hereafter) submitted the application to a Pinellas County subcommittee. Need for the services was considered only in relation to Pinellas County. The HSA issued a "Statement of Need" indicating that there was a need for the services. The Department issued a license to the Petitioner on September 16, 1976. The license, by its terms, did not set any geographic limitation for the Petitioner; however, the Petitioner's application related only to Pinellas County. On April 20, 1977, the Petitioner sent a letter to the Department which provided as follows: We have received numerous requests from our upper Pinellas County hospitals to care for their patients in Pasco County. We are cur- rently licensed to serve only Pinellas County and I am therefore requesting our license be extended to include Pasco County. Our office for that area would be located in Tarpon Springs, which is in Pinellas County. On June 1, representatives of the Petitioner and the Department had a telephone conversation. The Petitioner confirmed the conversation with the following language: Thank you for your attention in the matter of license for the extension of service into Pasco County. It is my understanding, from your conversa- tion with Ms. Schreck, our Director of Nursing, that we can now service patients in Pasco County. It is also my understanding that we must abide by the following specifications: "That our office remain in Pinellas County and that we can prove ade- quate supervision of personnel". The Department confirmed the conversation as follows: This is to confirm our telephone conversation of June 1st. After talking with Ms. Gage, it was decided that it would be permissible for an office to be open in Tarpon Springs if the staff were supervised daily and the super- vision was documented. Should an office be opened in another county, a license would be necessary. Shortly thereafter the Petitioner began serving patients in Pasco County without regard to whether the patients had been hospitalized at Pinellas County hospitals. Petitioner made capital expenditures, added employees, and expanded their operations in order to provide such services. By application dated June 13, 1977, the Petitioner applied for a license for its second year of operation. The application provided that the geographic area served would be Pinellas and Pasco Counties. The application was not submitted to the Florida Gulf Health Systems Agency, and a license was issued by the Department which contained no geographical limitation. In January or February, 1978, the Department advised the Petitioner that it could not serve all patients in Pinellas County, but rather only those who had been discharged from Pinellas County hospitals. The Department's position was reflected in a letter dated February 7, 1978. The Petitioner accordingly indicated that it would file an application for certificate of need (a certificate of need was not required at the time the Petitioner was originally licensed, but was required at this later date). The Department further clarified this position in a letter dated May 1, 1978, and invited the Petitioner to request a hearing. This proceeding ensued. The Petitioner was originally seeking authorization to serve patients in Hillsborough, Manatee, and Pasco Counties in addition to those in Pinellas County. At the hearing the Petitioner dropped its efforts to receive approval to serve patients in Hillsborough and Manatee Counties. On September 1, 1978, the Petitioner was issued a license by the Respondent for the 1978-79 year. The license limited the providing of services to Pinellas County.

Florida Laws (2) 120.57, 400.471

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HEALTH QUEST CORPORATION (SARASOTA COUNTY) vs. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES AND TRECOR, INC., D/B/A BURZENSKI NURSING HOME, 88-001945 (1988)

Division of Administrative Hearings, Florida Number: 88-001945 Latest Update: Mar. 14, 1989

The Issue Whether a certificate of need for an additional 60 nursing home beds to be located in Sarasota County, Florida, in July, 1990, should be granted to any of the four competing certificate of need applicants in these proceedings?

Florida Laws (1) 120.57

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STACEY HEALTH CARE CENTERS, INC., D/B/A RIVERSIDE CARE CENTER vs. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, 87-000931 (1987)

Division of Administrative Hearings, Florida Number: 87-000931 Latest Update: Sep. 18, 1987

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 make the following relevant factual findings. Petitioner, Stacey Health Care Centers, Inc., is licensed to operate Riverside Care Center, located at 899 Northwest Fourth Street, Miami, Florida, as a nursing home in compliance with Chapter 400, Part I, Florida Statutes, and Chapter 10D-29, Florida Administrative Code. On July 9, 1986, James A. Bavetta, assistant area supervisor, Office of Licensure and Certification, made a visit of Riverside's facility and determined that Ralph Stacey, Jr., the administrator of record, was acting in the capacity of administrator for two facilities, the subject facility and another facility in Kentucky, without having a qualified assistant administrator to act in his absence. (Respondent's Exhibit 1) Ralph L. Stacey Jr., is a licensed nursing home administrator in the States of Ohio, Kentucky and Florida. He has been licensed in Kentucky and Florida since 1974. At the time of Mr. Bavetta's visit and inspection during July, 1986, Ralph Stacey, Jr., was in Cincinnati, Ohio preparing the payroll for Stacey Health Care Centers. During this time period, Ralph Stacey, Jr., served as the administrator for the subject facility, Riverside Care Center, and another facility in Kentucky and did not have a qualified assistant administrator employed to act in his absence. However, once Mr. Bavetta issued his recommendation for sanctions, Petitioner, as part of its plan of correction, has employed a licensed administrator who is presently on staff and serves as Riverside's assistant administrator during the administrator's absence.

Recommendation Based on the foregoing findings of fact and conclusions of lawn it is RECOMMENDED: The Department of Health and Rehabilitative Services enter a Final Order imposing an administrative fine in the amount of One Thousand Dollars ($1,000.00) upon Stacey Health Care Centers- Inc., d/b/a Riverside Care Center, which amount shall be payable to Respondent within thirty (30) days after entry of Respondent's Final Order. RECOMMENDED this 18th day of September, 1987, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 18th day of September, 1987. COPIES FURNISHED: Kenneth S. Handmaker, Esquire MIDDLETON & REUTLINGER 2500 Brown & Williamson Tower Louisville, KY 40202-3410 Leonard T. Helfand, Esquire Office of Licensure and Certification Department of Health and Rehabilitative Services 5190 Northwest 167th Street Miami, Florida 33014 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 R. S. Power, Esquire Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard -Building One, Room 407 Tallahassee, Florida 32399-0700

Florida Laws (3) 120.57, 400.102, 400.141

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TARPON SPRINGS HOSPITAL FOUNDATION, INC., D/B/A HELEN ELLIS MEMORIAL HOSPITAL vs AGENCY FOR HEALTH CARE ADMINISTRATION, 94-000958RU (1994)

Division of Administrative Hearings, Florida Filed:Tallahassee, Florida Feb. 23, 1994 Number: 94-000958RU Latest Update: Apr. 23, 1996

The Issue Whether Rule 59C-1.036 constitutes an invalid exercise of delegated legislative authority, and; Whether the Agency's application form and scoring system utilized in the review of nursing home batch certificate of need applications constitute rules of the Agency as the term "rule" is defined in Section 120.52(16), employed in violation of Section 120.535, Florida Statutes (1993) and; Whether the disputed form and scoring system constitute an invalid exercise of delegated legislative authority.

Florida Laws (13) 120.52, 120.54, 120.56, 120.57, 120.68, 395.003, 400.071, 408.034, 408.035, 408.036, 408.039, 408.15, 651.118 Florida Administrative Code (3) 59C-1.008, 59C-1.036, 59C-1.037

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AGENCY FOR HEALTH CARE ADMINISTRATION vs GUARDIAN CARE, INC., D/B/A GUARDIAN CARE CONVALESCENT CENTER, 03-002560 (2003)

Division of Administrative Hearings, Florida Filed:Orlando, Florida Jul. 15, 2003 Number: 03-002560 Latest Update: May 19, 2004

The Issue Whether Respondent failed to protect one of the residents of its facility from sexual coercion. Whether Respondent failed to report the alleged violation immediately to the administrator.

Findings Of Fact Petitioner is the state agency charged with licensing and regulating nursing homes in Florida, under state and federal statutes. Respondent is a licensed nursing facility located in Orlando, Florida. Respondent is a small not-for-profit facility, overseen by a voluntary board of directors. Resident 2 is a Hispanic male, 57 years of age, who speaks English and Spanish fluently. He was a self-admitted resident at Respondent's nursing home facility during the relevant time period. Respondent is a small, not-for-profit facility, overseen by a voluntary board of directors. Respondent receives its funds to operate through various types of sources such as United Way, City of Orlando, Orange County, and many foundations. At all times material hereto, Petitioner is the state agency charged with licensing of nursing homes in Florida and the assignment of a licensure status. The statute charges Petitioner with evaluating nursing home facilities to determine their degree of compliance with established rules as a basis for making the required licensure assignment. Additionally, Petitioner is responsible for conducting federally mandated surveys of those long-term care facilities receiving Medicare and Medicaid funds for compliance with federal statutory and rule requirements. These federal requirements are made applicable to Florida nursing home facilities. Pursuant to the statute, Petitioner must classify deficiencies according to the nature and scope of the deficiency when the criteria established under the statute are not met. The classification of any deficiencies discovered is determinative of whether the licensure status of a nursing home is "standard" or "conditional." The evaluation, or survey, of a facility includes a resident review and, depending upon the circumstances, may consist of record reviews, resident observations, and interviews with family and facility staff. Surveyors note their findings on a standard prescribed Center for Medicare and Medicaid Services Form 2567, titled "Statement Deficiencies and Plan of Correction" and is commonly referred to as a "2567" form. During the survey of a facility, if violations of regulations are found, the violations are noted and referred to as "Tags." A "Tag" identifies the applicable regulatory standard that the surveyors believe has been violated, provides a summary of the violation, sets forth specific factual allegations that they believe support the violation and indicates the federal scope and severity of the noncompliance. Agency surveyors use the "State Operations' Manual," a document prepared by the U.S. Department of Health and Human Services, Center for Medicare and Medicaid Services, as guidance in determining whether a facility has violated 42 Code of Federal Regulations (C.F.R.), Chapter 483. In March 2003, Petitioner conducted a survey to investigate a complaint that Respondent failed to protect a resident from sexual coercion. The allegation of the deficient practice was based upon an incident involving Resident 2. Pursuant to 42 C.F.R. Section 483.13(b), a nursing facility must assure that a resident has the right to be free from verbal, sexual, and mental abuse. Failure to do so constitutes a deficiency under Florida Statutes. At hearing, Petitioner presented the testimony of Jane Woodson, nursing program specialist, employed by Petitioner. Woodson testified that she does state and federal surveys in both state and federal licensure and federal institutions to identify or define any noncompliance. She visited Respondent's facility on or about March 26, 2003, and prepared a 2567 form based on her observations, interviews, and record review. It details the results of her investigation, including her interviews with the director of nursing, the administrator, the social worker, the compliance officer, a licensed practical nurse (LPN), and the assistant director of nursing. She also toured the total facility, observed its residents and also observed Resident 2. Woodson observed that Resident 2 was a well-dressed, alert male, and she spoke to him about the incident on March 15, 2003. Woodson did not have an interpreter present at any time when she interviewed Resident 2, nor did she consider it necessary to do so. At no time did she have any concern that Resident 2 was not mentally competent to understand her when she interviewed him. Woodson was not aware that Resident 2 signed his own financial responsibility forms, patient's rights statement, or that he voluntarily checked himself into the facility. She was not aware that Resident 2 made his own medical decisions in the facility. Following her investigation, Woodson conducted an exit interview with the administrator, the director of nursing, the assistant director of nursing, the social worker, and the compliance offer. Woodson included in her report a document filled out by Sharon Ebanks (Ebanks), registered nurse (RN), but she did not personally interview Ebanks. She also did not interview Marilyn Harrilal, LPN, nor did she interview the employee involved in the incident. She advised the administrator of her finding a Class II deficiency and provided a correction date of April 17, 2003. She also concluded that this was an isolated incident. Ebanks was the weekend charge nurse on March 15, 2003, and was in charge of the facility on that date. Ebanks was working on the north wing when she was called by Mr. Daniels, a LPN working on the south wing. Daniels told Ebanks about the alleged incident between Resident 2 and the staff person. Ebanks then called Resident 2; the employee, Marcia Dorsey (Dorsey); and the certified nursing assistants (CNAs), Ms. Polysaint and Ms. Mezier (first names not in the record), who had witnessed the incident, to the green room. She also asked Harrilal to act as a witness to her interviews with the individuals involved. Ebanks first spoke to Resident 2 and Dorsey, both of whom stated that nothing had happened. She then questioned the two CNAs about what they had witnessed. Ebanks concluded, after interviewing both the participants and the witnesses, that the incident was not abuse, but rather, was inappropriate behavior on the part of both Resident 2 and the employee. She based this conclusion on the fact that Dorsey is a trainable Dows Syndrome individual, who was supposed to be working when the incident occurred. Ebanks concluded that Resident 2 had not been abused or hurt in any manner and had participated voluntarily. Ebanks noted that Resident 2 makes his own medical decisions, is considered to be mentally competent, has never been adjudicated mentally incompetent and has not had a legal guardian appointed for him. Ebanks concluded that Resident 2 had not been abused. Ebanks testified that she completed a Resident Abuse Report on March 20, 2003, concerning the incident, after being asked to do so by Respondent's compliance officer. The resident abuse report was admitted into evidence as Respondent's Exhibit 1. At the time of the initial investigation of the incident, Ebanks asked Harrilal to accompany her to the green room. While there, Harrilal listened as Ebanks first questioned Resident 2 and then Dorsey. Both stated that nothing happened. Harrilal then witnessed Ebanks question the CNAs, Polysaint and Mezier. Woodson did not interview Harrilal during her investigation. Ann Campbell, RN, a nurse for more than 38 years, was functioning in the role of assistant director of nursing on March 15, 2003. She was not in the facility on that day and was not made aware of the incident on the date of its occurrence, but became aware when she returned to work. Campbell is familiar with Resident 2. He was initially admitted with a diagnosis of alcohol abuse and dementia. She observed that he was a little confused and forgetful when first admitted, but has since became more alert and responsive. Michael Annichiarico, administrator of the facility and custodian of records, including medical records and personnel files, reviewed the personnel file of the employee, Dorsey. There were no disciplinary actions or counseling prior to the incident of March 15, 2003. Annichiarico is familiar with Resident 2 and has interacted with him. Annichiarico testified that, according to the resident's medical record, Resident 2 has never been declared mentally incompetent and that he makes his own medical and financial decisions. The Progress Note of Gideon Lewis, M.D., dated October 9, 2003, with transcription, was admitted into evidence as Respondent's Exhibit 2 and indicates that Resident 2 is mentally competent and is responsible for his actions as his cognitive functions are intact. Patricia Collins, RN, testified as an expert in the areas of nursing, long-term care, nursing home rules and regulations, and survey procedures. Collins is a RN, currently working in consulting work. She reviewed documents related to the incident. She went to the facility on two different occasions and interviewed the staff. She also reviewed the documents contained in the report of Woodson's survey. Collins interviewed the two CNAs, Ebanks, Resident 2, the medical records custodian, the director of nursing, the social worker, and Harrilal. She spent approximately four to five hours in the facility. After speaking with Resident 2, Collins concluded that he was cognitively intact and very alert. He appeared to be mentally competent. Before interviewing Resident 2, Collins reviewed his resident chart and the documents used to sign himself into the facility. She also reviewed physician's orders for medication, progress notes, nurses' notes, the MDS and the care plan. Collins testified that she reviewed the resident's financial responsibility statement and patient's rights statement, both of which were signed by the resident himself. The resident had no legal guardian. Collins concluded that during the incident of March 15, 2003, there was some inappropriate behavior that needed to be addressed and that this behavior was properly addressed by staff. The inappropriate behavior was the observation of hugging and kissing between Dorsey and Resident 2 in an empty resident's room while the employee was on duty. Collins was of the opinion that the behavior was mutual and not abuse. Collins found no reason to conclude that any harm had been done to Resident 2. Collins testified that a nursing home resident has the right to associate with whomever he desires. He also has the right to have voluntary and willing sexual contact with other people. The inappropriateness in this incident was due to the fact that Resident 2 had involvement with someone with mental deficits. The incident was inappropriate on the part of the employee as well, since she was participating in it during her working time. Collins disagrees with the findings of Petitioner's surveyor. Collins testified that the investigator should have determined the abuse allegation was unfounded. According to Collins' expert testimony, the facility staff acted appropriately. The CNA who initially observed the activity called another CNA as a witness. They then went to their supervisor, who then went to the ranking nurse at the facility at that point in time, which was Ebanks. Ebanks questioned the employee, Resident 2 and the witnesses. She had the presence of mind to have a witness there as well, which was Harrilal. Ebanks made the determination, based on her nursing judgment and in her authority as nurse in charge of the facility on that day, that there was inappropriate behavior on behalf of Resident 2 and the employee. She put a care plan in place as to Resident 2, separated the employee and Resident 2, and sent the CNAs back to work. Collins testified there was no need to report the incident to the Department of Children and Family Services because there was no evidence of abuse or harm to Resident 2. Collins' testimony is found to be credible. Based on all the evidence, it is found and determined that an incident occurred at Respondent's facility on Saturday, March 15, 2003, at approximately 11:00 a.m., involving Resident 2 and a staff employee of Respondent, Dorsey. Resident 2 and the employee were seen by staff employees sitting on a bed hugging and kissing each other in a resident's room that was not being used at the time. Two CNA employees witnessed and reported the incident to the charge nurse. Ebanks was the charge nurse on duty on March 15, 2003. Ebanks was advised of the incident shortly after it occurred and interviewed both Resident 2 and the employees involved, as well as the employees who witnessed the incident. The interviews were conducted in the presence of Harrilal. She completed a Resident Abuse Report on March 20, 2003, at the request of the risk manager within four business days of the incident, and the administrator was advised of the incident on the first business day after the incident. Resident 2 was alert and oriented on the date of the incident. Although he had a low level of dementia, he was mentally competent at the time of the incident. He does not meet the definition of an "elderly person" or "vulnerable adult" under Chapter 415, Florida Statutes.

Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order of dismissal of the Administrative Complaint be entered in this case. DONE AND ENTERED this 28th day of January, 2004, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of January, 2004. COPIES FURNISHED: George F. Indest, III, Esquire The Health Law Firm Center Pointe Two 220 East Central Parkway, Suite 2030 Altamonte Springs, Florida 32701 Gerald L. Pickett, Esquire Agency for Health Care Administration Sebring Building, Suite 330K 525 Mirror Lake Drive, North St. Petersburg, Florida 33701 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Suite 3431 Tallahassee, Florida 32308

CFR (3) 42 CFR 483, 42 CFR 483.13(b), 42 CFR 483.301 Florida Laws (9) 120.569, 120.57, 395.0197, 400.022, 400.147, 400.23, 415.101, 415.102, 794.011

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FORUM GROUP, INC. vs. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, 87-000704 (1987)

Division of Administrative Hearings, Florida Number: 87-000704 Latest Update: Apr. 01, 1988

Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received, the stipulations of the parties and the entire record complied herein, I hereby make the following findings of fact: THE STIPULATIONS OF THE PARTIES The parties stipulated to the following facts: Forum timely filed its letter of intent and application with DHRS and the District IX Local Health Council for the July 1986 batching cycle. DHRS ultimately deemed the application complete and, following review, published its notice of intent to deny the application. Forum timely filed a petition requesting a formal administrative hearing pursuant to Section 120.57(1), Florida Statutes. The sole issue is whether there is a need for Forum's proposed services; additionally, it is DHRS's position that a lack of need for the project results in the project not being financially feasible in the short or long term. All other statutory and rule criteria were satisfied, at least minimally, except proof of need pursuant to Rule 10-5.011(1)(k) [formerly 10-5.11(21)(b)], Florida Administrative Code, and financial feasibility as it relates to need. FORUM'S PROPOSAL Forum is a publicly held health services company which owns, develops and operates retirement living centers and nursing homes on a national basis. Forum proposes to develop a retirement living center in Palm Beach County that would consist of 120 to 150 apartment units for independent living, a separate personal care unit (known in Florida as an adult congregate living facility), and a 60-bed nursing home component certified for skilled and intermediate care. Palm Beach County is in HRS Service District IX, Subdistrict 4. All three components of Forum's retirement living center would be physically connected and share some operational functions, such as dietary facilities and the heating plant. Such a design provides for an efficient operation as well as an economic distribution of costs facility wide. No specific site has been selected , although Forum has narrowed its focus to the eastern half of Palm Beach County. It is not economically feasible to acquire property or pay for an option on property until after receiving CON approval. The projected total cost of Forum's proposed 60-bed nursing home is $2,329,800. Forum has the necessary resources for project accomplishment and operation. Forum proposes to seek Medicare certification and will provide up to 25 of its beds for Medicaid patients. FINANCIAL FEASIBILITY Forum is a national company, with substantial experience in developing and operating nursing homes and retirement living centers. If need for the facility is shown, Forum would be able to capture a sufficient share of the nursing home market to render its proposed nursing home financially feasible while at the same time having no material negative impact on existing providers in the district. NUMERIC NEED Need for new or additional community nursing home beds in Florida is determined, preliminarily, by use of the methodology found in Rule 10- 5.011(1)(k), Florida Administrative Code. Additional beds normally are not approved if there is no need for beds as calculated under the rule. Pursuant to the rule, need for a defined nursing home subdivision is projected to a three- year planning horizon, in this case July 1989. The need methodology prescribed in the rule is as follows: A (POPA x BA) + (POPB x BB) or: The District's age-adjusted number of community nursing home beds for the review cycle for which a projection is being made [A] (The population age 65-74 years in the relevant departmental districts projected three years into the future [POPA] x the estimated current bed rate for the population age 65-74 years in the relevant district [BA]) + (The population age 75 years and older in the relevant departmental district projected three years into the future [POPB] x the estimated current bed rate for the population age 75 years and over in the relevant district [BB].) BA LB/(POPC) + (6 x POPD) or: The estimated current bed rate for the population age 65-74 years in the relevant district [BA] (The number of licensed community nursing home beds in the relevant district [LB]/the current population age 65-74 years [POPC] + (6 x the current population age 75 years and over [POPD]) BB 6 x BA or: The estimated current bed rate for the population age 75 years and over in the relevant district [BB] 6 x the estimated current bed rate for the population age 65-74 years in the relevant district [BA]. SA A x (LBD/LB) x (OR/.90) or: The preliminary subdivision allocation of community nursing home beds [SA] The district's age-adjusted number of community nursing home bids for the review cycle for which a projection is being made [A] x (The number of licensed community nursing home beds in the relevant subdistrict [LBD]/the number of licensed community nursing home beds in the relevant district [LB]) x (The average occupancy rate for all licensed community nursing homes within the subdistrict of the relevant district [OR]/.90) Rule 10-5.011(1)(k)(2)(i), Florida Administrative Code, provides that: The new bed allocation for a subdistrict, which is the number of beds available for CON approval, is determined by subtracting the total number of licensed and 90 percent of the approved beds within the relevant departmental subdistrict from the bed allocation determined under subparagraphs a. through i., unless the subdistrict's average estimated occupancy rate for the most recent six months is less than 80 percent, in which case the net bed allocation is zero. The appropriate planning horizon for the instant case is July 1989, corresponding to the review cycle which began July 15, 1986, and the subdistrict is Palm Beach County. THE NUMBER OF LICENSED COMMUNITY NURSING HOME BEDS IN THE RELEVANT DISTRICT (LB)/THE NUMBER OF LICENSED COMMUNITY NURSING HOME BEDS IN THE RELEVANT SUBDISTRICT (LBD) Rule 10-5.011(1)(k) requires that "review of applications submitted for the July batching cycle shall be based upon the number of licensed beds (LB and LBD) as of June 1 preceding this cycle..." On June 1, 1986, there were 5,459 licensed community nursing home beds in District XI (LB) and 4,084 licensed community nursing home beds in subdistrict 4 (Palm Beach County LBD). These figures include 220 licensed beds that were previously categorized as sheltered. In the instant case, the appropriate figure for LB is 5,459, and the appropriate figure for LBD is 4,084. APPROVED BEDS WITHIN THE RELEVANT DEPARTMENTAL SUBDISTRICT DHRS's interpretation of the rule is to include in the count of approved beds, those approved up to the date of the supervisor's signature on the State Agency Action Report (SAAR). In this case, there were 640 approved beds in Palm Beach County at that time. As of June 1, 1986, the same date as the licensed bed cutoff, there were 640 approved beds in the subdistrict. In Dr. Warner's opinion, approved beds should be determined as of the same time period as licensed beds in order to have consistency and avoid anomalies in the formula. This opinion is reasonable and appropriate. In the instant case, the figure to be applied in the formula for approved beds in the subdistrict is 640 approved beds. THE POPULATION AGE 65-79 YEARS IN THE RELEVANT DEPARTMENTAL DISTRICT PROJECTED THREE YEARS INTO THE FUTURE (POPA). THE POPULATION AGE 75 YEARS AND OVER IN THE RELEVANT DEPARTMENTAL DISTRICT PROJECTED THREE YEARS INTO THE FUTURE (POPB). The rule provides that the three year projections of population shall be based upon the official estimates and projections adopted by the Office of the Governor. For the purposes of calculating need, DHRS utilizes at the final hearing the figures for estimated population obtained from data available at the time of initial application and review. The set of population projections which were available when Petitioner's application was filed and reviewed were those published on July 1, 1986. Based on this data, which is reasonable to use, POPA 170,639; and, POPB 122,577. THE CURRENT POPULATION AGE 65-74 YEARS (POPC)/THE CURRENT POPULATION AGE 75 YEARS AND OVER (POPD). In calculating POPC and POPD, DHRS also utilizes at final hearing the most current data available at the time of initial application and review, in this case the July 1, 1986, release. Based on that data, POPC 153,005 and POPD 112,894. In the opinion of Dr. Warner, Forum's expert, the base for POPC and POPD should correspond to the period for which the average occupancy rate (OR) is calculated. For the July batching cycle, OR is based upon the occupancy rates of licensed facilities for the months of October through March preceding that cycle. According to Warner, January 1, 1986, as the midpoint of this time period, is the appropriate date to derive POPC and POPD in this case. The formula mandated by the rule methodology for calculating the estimated current bed rate requires that the "current population" for the two age groups be utilized. It is reasonable and appropriate for the base for POPC and POPD to correspond to the period for which the average occupancy rate is calculated. Supportive of Dr. Warner's opinion are the past practices of DHRS. Between December 1984 and December 1986, DHRS routinely used a three and one half year spread between the base population period and the horizon date in determining "current population" in its semiannual nursing home census report and bed need allocation. In the January 1987 batching cycle, which cycle immediately followed the cycle at issue in this case, DHRS utilized a three and one half year spread between the base population period and the horizon data for "current population" when it awarded beds. DHRS offered In this case, it proposed to use a three year spread between the base population period and the horizon dated for "current population" in calculating POPC and POPD. Using the July 1986 population release, POPC for January 1986 is 149,821 and POPD for January 1986 is 98,933. THE AVERAGE OCCUPANCY RATE FOR ALL LICENSED COMMUNITY NURSING HOMES WITHIN THE SUBDIVISION OF THE RELEVANT DISTRICT (OR). The rule requires the use of occupancy data from the HRS Office of Health Planning and Development for the months of the previous October through March when calculating a July batch of nursing home applicants. However, the rule is not instructive as to how one calculates this number. In this case, DHRS computed average occupancy rates based on the existing occupancy rates at applicable facilities on the first day of each month. Based on this occupancy data, which includes the data for the 220 previously sheltered beds in the subdistrict, occupancy rates for the July 1986 batch of Palm Beach County nursing home applicants is 83.75 percent. Forum's witness, Dr. Warner, determined that the correct occupancy rate was 85.46 percent for Palm Beach County for the period October 1985 to March 1986. Dr. Warner arrived at this figure by including paid reservation days. A paid reservation day is a day which is paid for by the patient or the patient's intermediary during which the patient is not physically in the bed. Typically, the patient will either be in the hospital, visiting relatives or otherwise away from the facility and will continue to pay for the nursing home bed, so that they will be able to return and not have someone occupy the bed. One of the goals and objectives of the District IX Local Health Plan is that paid reservation days be considered when bed need calculations are made. Calculating prepaid reservation days is consistent with the Rule because such beds are no longer available to the public and are therefore in use. Dr. Warner determined that during the applicable period, 1.25 percent of the licensed beds in the subdistrict were paid reservation days. Although taking paid reservation days into account would not be inconsistent with the rule, Forum failed to demonstrate that the 1.25 percent figure arrived at is valid for the applicable period, i.e., October 1985 to March 1986. Dr. Warner merely calculated a two-year average number of paid reservation days, broke this figure down to a six-month average and applied this average to the six-month period specified in the Rule. Gene Nelson, an expert called on behalf of Forum, calculated the occupancy rate as 88.72 percent in Palm Beach County for the appropriate period called for in the Rule. Nelson used the average monthly occupancy data obtained from medicaid cost reports for some facilities rather than first-day of the month data as used by DHRS. In addition, Nelson did not factor in the occupancy date of licensed beds in the extreme western portion of the County based on his belief that the District IX Local Health Plan mandates that the western area not be considered in any way with the eastern coast section of Palm Beach County for purposes of determining competitiveness. While the use of average full-month occupancy data is generally more reliable than using first-day of the month data, it is best, from a health planning prospective, to be able to use either all full-month data or all first- day of the month data. In making his calculations, Mr. Nelson mixed the two types of data, using full-month data when available and in other cases using first-day of the month data when full-month data was not available. It is inappropriate to fail to consider licensed beds in the extreme western portion of the County based solely on the local health plan. Among other reasons, the rule does not provide for exclusions for any of the subdistricts licensed facilities from the methodology. The appropriate and most reasonable occupancy rate (OR) in the instant case for the applicable time period is 83.75 percent. NET NEED Applying the above-referenced variables to the Rule formula produces the following results. July, 1986. District Allocation BA LB (POPC + (6 x POPD) - 5459 [149,821 + (6 x 98,833)] - .007349 BB - 6 x BA .044094 (.007349) July, 1989 Allocation (POPA x BA) + (POPB x BB) - (170,639 x .007349) + (122,577 x .044094) - 6659 Subdivision Allocation and Need SA A x (LBD / LB) x (OR 1.9) - 6659 x (4084 / 5459) x (.8375/.9) - 6659 x .74812236673 x .93055555555 4636 Subdistrict Allocation for Palm Beach County 4084 (Licensed Beds) 576 (90 percent of 640 Approved Beds) -24 (Bed Surplus)

Florida Laws (1) 120.57

# 6

LEE COUNTY BOARD OF COUNTY COMMISSIONERS, D/B/A SHADY REST NURSING HOME vs. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, 89-002411 (1989)

Division of Administrative Hearings, Florida Number: 89-002411 Latest Update: Nov. 08, 1989

Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background On November 23, 1988 petitioner, Lee County Board of County Commissioners d/b/a Shady Rest Nursing Home (applicant, Shady Rest or County), filed its application with respondent, Department of Health and Rehabilitative Services (HRS), for a certificate of need (CON) seeking authorization to replace one hundred and five existing beds and to add seventy-five nursing home beds so as to create a one hundreds eighty bed community nursing home facility at 3922 Michigan Avenue, Fort Myers, Florida. In the alternative, the County requested a partial award of replacing its existing facility add adding fifteen beds so as to create a one hundred twenty bed facility. Under the alternative plan, the County projected an anticipated capital expenditure of $5,490,500. The County has agreed that, if the application is approved, the additional beds would be dedicated exclusively to Medicaid patients. After reviewing the application and certain additional information filed by the County through the omissions process, HRS deemed the application to be complete on January 9, 1989. Thereafter, on March 10, 1989 HRS issued proposed agency action advising the County that its application had been denied. As grounds, the agency generally stated that its evaluation of the application revealed the applicant had not satisfied certain statutory and rule criteria. In addition, HRS concluded that the County had failed to provide adequate documentation prior to the January 9, 1989 "completeness" date to support its request. This action prompted the County to request a formal hearing to contest the agency's preliminary decision. However, the appeal is limited to the partial award request to add fifteen beds and establish a one hundred twenty bed facility. It is noted that there were no other applicants in the November 1988 batching cycle and no existing providers have intervened in this proceeding. The Applicant The County's facility is located in subdistrict 5 (Lee County) of HRS District 8. The County has owned and operated Shady Rest Nursing Home for approximately twenty-eight years. Now licensed for one hundred five beds, the facility is categorized by HRS as a community nursing home. This means that it serves the population at large and has not received a certificate of need designating the beds as sheltered beds in accordance with Chapter 656, Florida Statutes (1987). As a publicly owned facility, the nursing home provides service to the public regardless of profit. Although the facility received annual subsidies from the County until as recent as four years ago, the facility now operates on a fiscally sound basis. The most typical patient at Shady Rest is Medicaid eligible. Because the plant is around thirty-one years old, the County desires to construct a new, more efficient and less costly to operate facility. In this regard, it is noted that HRS supports the construction of a new facilites for the existing one hundred five beds but opposes the authorization for any new beds. Since by law a facility can have no more than sixty beds for each nursing station, it was more logical and efficient for the applicant to design a facility having one hundred twenty beds, or one that required two nursing stations. Thus, besides need, the additional fifteen beds are predicated on economic and planning considerations. Motion in Limini There is no specific methodology that is prescribed by HRS to inform applicants of what is needed to meet the burden of proof regarding not normal circumstances. Rather, applicants must rely on the language in Rule 10- 5.11(1)(k)2.j., Florida Administrative Code (1987). As noted in finding of fact 8, HRS has just begun using a new CON application form for nursing homes. The County's application was submitted in the first batching cycle in which the new CON application form was used. In its application, the County stated it was applying for more beds than were contained in the published fixed need pool pursuant to the special circumstances contained in subsections (1)(b) and (1)(k)2.j. of Rule 10-5.011, Florida Administrative Code (1987). Also attached to the application was what the County describes as "detailed evidence" of need for Medicaid-eligible nursing home beds in Lee County and the then current number of Lee County residents were located in out-of-county nursing homes. The detailed evidence is found on page one of two of Appendix 1 (1B2 - Optional) of the application and consists of the statement that "approximately 750-775 Lee County residents are reported in this (Medicaid) program as being in nursing care facilities. Approximately 130-150 of these residents are located in nursing homes outside of Lee County. Shady Rest Nursing Home experiences a waiting list of approximately 8 to 15 Lee County residents per month." Aside from this, no other information or documentation concerning special circumstances was included with the application. Although the County had at least three corroborating patient lists in its possession at the time the application was filed, it chose not to include them with the initial application or through the omissions process. At hearing, the County proffered into evidence the waiting lists and a more recently prepared letter of support and quality assurance manual on the theory they merely supplemented the statement set forth in Appendix 1 of the application. However, HRS did not consider these to be matters within the general scope of the application, deemed them to be impermissible amendments and objected to their admission by a motion in limini. The Review Process As an aid in evaluating applications for nursing home facilities, HRS recently instituted a somewhat complicated scoring system which involves an analysis of the responses provided by the applicant in its application. The scoring system is not codified in rule or statute form but is utilized on an ad hoc, case by case basis. The evaluation process rates an applicant's compliance with eight objectives which are designed to track the CON review criteria. The objectives are described in detail in HRS exhibits 3 and 4 received in evidence. Each objective has been assigned a certain number of points in the scoring process ranging from thirty to five hundred, or a total possible score of 1,398 points. The responses are measured by two HRS in-house consultants against this established point system, and numerical scores are assigned by them to each of eight categories of objectives. The two scores are averaged, and the overall score is then evaluated as a percentage of total points attained. Since a maximum of 1,398 points may be attained by an applicant, the overall average score is applied to that number to attain the applicable percentage. According to HRS, if a sufficient proportion of the total available points is achieved, the achievement indicates that the proposal is in conformance with the statutory and rule review criteria. The agency points out, however, that there is no passing score per se but rather the goal is to attain the highest score possible. In addition, the successful applicant will achieve a consistently high number in each of the eight rated objectives. This is because HRS equates consistency with capability to implement a successful project. In this case, HRS's review of the County's application resulted in the County achieving an overall average score of 710.81 points on its partial award request. This equated to a "score" of 50.84 percent of the 1,398 maximum assignable points. The agency then concluded that the applicant had "not demonstrated sufficient compliance with all relevant certificate of need review criteria for the approval of nursing home beds." The state agency action report received in evidence as petitioner's exhibit 2 indicated that the County's overall strengths were determined to be objectives 6 and 7 while its major weakness was noted in objective 1. The latter objective related to the identification of the nursing home fixed need bed pool and conformance with the local and state health plans. Compliance with Rule Criteria For purposes of determining the need for additional community nursing home beds in Lee County, HRS used a planning horizon of July 1991. In other words, through the use of a formula embodied in a rule, the agency calculated the number of new community nursing home beds projected to be needed in Lee County (the applicable subdistrict) at a relevant future period of time. The parties have agreed that under this formula no new beds are projected to be needed in Lee County during the planning horizon. As a general rule, additional beds would not normally be approved under these circumstances. However, the County contends that "not normal" circumstances are present that justify the need for an additional fifteen beds. Under this approach, an award of additional beds can be made even if no formula need exists if the applicant can show "special circumstances". One such special circumstance recognized by HRS is the inability of residents to obtain access to licensed and unoccupied beds in the area. The County has relied upon this exception and contends there is a demonstrated shortage of community nursing home beds in the subdistrict for Medicaid eligible patients. Underpinning the applicant's use of the exception are three waiting lists maintained by the facility over the past year and a half. They were proffered to show that persons with a need for nursing home care have been denied access to currently licensed but unfilled beds. One list (petitioner's exhibit 5) begun in 1987 contains the names of a large number of individuals who have filed applications with Shady Rest, of whom the County identifies twenty- one as being Medicaid-eligible and appropriate for immediate placement. A second list (petitioner's exhibit 6) contains the names of persons who made a phone inquiry with the home. Although there was no supporting documentation to show those individuals' demonstrated need for nursing home care as required by the rule, the facility's social service coordinator testified without contradiction that the above twenty-one persons were all determined to be Medicaid eligible and appropriate for placement in a nursing home. Even so, there was no independent or corroborative evidence that those twenty-one individuals had been denied placement in other Lee County nursing homes. This infirmity supports the claim of HRS that the list, in its present form, is not probative of the issue of need because clients often sign up on multiple lists or have a preference for a particular facility. This assertion was not contradicted by credible evidence. A third list (petitioner's exhibit 7) reflected that each month from August 1988 until July 1989 there were between one hundred fourteen and one hundred thirty-four Medicaid eligible Lee County residents in nursing homes outside of Lee County. This information was derived from monthly Medicaid billing summaries compiled by HRS. While it is probably true, as HRS suggests, that some of these patients by choice are residents of out-of-county facilities, it is just as likely that some patients did not voluntarily choose to be placed outside the county. This is because placement in an out-of-county home is inconvenient for a patient's family, particularly one at the poverty level. To the extent involuntary out-of-county placements have occurred, it is because some nursing homes may not always accept a Medicaid patient. For example, a nursing home may not be equipped to handle a particular client's medical condition. However, this type of client will always have a more difficult time being placed than others. Therefore, there are occasions when vacancies at nursing homes do not correspond with the ability to place a Medicaid-eligible patient in Lee County. To corroborate the contention that it has been unable to accept all applicants, the County established that its September 30, 1988 utilization rate was 98% with the percentage of Medicaid patients at 88% of the 98%. It was also established that the rate has not decreased since that time. According to the County, this high utilization factor has contributed to the County's inability to provide service to all applicants. Even so, a high utilization rate alone is not dispositive of the accessibility issue. While County representatives contended they have had difficulty in placing Medicaid eligible patients not only in their facility but also in other Lee County nursing homes, the HRS District 8 administrator, who is responsible for assisting those individuals in securing placement, had no "hard data" to confirm this. Indeed, her subordinates, who also testified, indicated that the alleged difficulty in placement arose only "at times". Given these considerations, it is found that persons with a need for Medicaid services are reasonably able to access existing services in the subdistrict and that the required not normal circumstances within the meaning of the rule are absent. Compliance with Statutory Criteria Prior to hearing the parties stipulated that various statutory and rule criteria were not applicable in this proceeding. After the evidentiary hearing was held, the agency acknowledged in its post-hearing proposed order that only five statutory criteria in Subsection 381.705(1), Florida Statutes (1987) are still in issue and that only two paragraphs in rule 10-5.011(1) apply. The first three statutory criteria pertain generally to need and accessibility and require that HRS consider the need for the project in relation to the applicable district and state health plans, the adequacy of existing providers and whether the proposed services will be accessible to all residents. In addition to the findings in paragraph 12, it is noted that for purposes of planning and review of nursing home care in District 8, the local health plan, which has been received in evidence as petitioner's exhibit 6, recommends that "preference . . . be given to new and existing community home bed developments that dedicate a substantial percentage of their beds for Medicaid patients." In addition, it recommends that "expansion of existing facilities to 120 beds should be given prefernce over construction of new facilities in the same health service area." Applicant's proposal is in agreement with those objectives, and it is found that the proposal is consistent with the local health plan. As required by law, the application also mandates that the applicant demonstrate compliance with relevant portions of the state health plan, including justification for an award of beds in excess of the zero fixed need pool. Those portions of the plan have been received in evidence as petitioner's exhibit 7. In its application response, the County simply stated that it did not have a copy of the state plan and therefore could not furnish an answer to this inquiry. At hearing, the County relied upon the special circumstances proof to show compliance with the state health plan. Since special circumstances were not shown to be present, the applicant also failed to show that the project is in conformity with the state health plan. Finally, it was established that the project will be accessible to all residents in the district. In its proposed order, HRS appears to have conceded that the County will provide adequate quality of care to to its patients. Nonetheless, and in an abundance of caution, the following findings of fact are made on this issue. The issues of whether the County can provide quality of care as well as the applicant's past record of quality of care are relevant. In this regard, the parties offered into evidence the records of past inspections by HRS personnel to show the historical record of care on the part of the facility. These records reflect that HRS gave the facility a standard rating in 1986 and 1987. In 1988, an initial inspection resulted in the facility receiving a conditional rating. However, the facility appealed that decision and was successful in getting the conditional rating removed. Since May 16, 1988 the County has maintained a superior rating which is indicative of the high quality of care rendered to its patients. These findings were corroborated by local HRS employees who characterized Shady Rest's' quality of care as "high". Therefore, it is found that this criterion has been satisfied. The next criterion in issue relates to the long-term financial feasibility of the project. As noted earlier, the facility was subsidized by the County until four years ago. Since then, it has operated in the black. According to the County's consultant, if the project is approved, the County will provide subsidies of $900,000 and $250,000, respectively, during the first two years of operation and any other required funding thereafter. It should be recognized, however, that the first year is the start-up of operations, with relatively high costs due to inventories, working capital and the like. The witness further opined that he expected the facility to be financially sound in the future. This is true even though the facility projects a payor mix of decreasing Medicaid days in the future. Therefore, it is found that this criterion has been satisfied. The only remaining criterion in issue concerns the costs and methods of the proposed construction and whether there are less costly alternatives. The agency's principal objection concerns the failure of the County's architect to document on the plans whether the project would be in compliance with local, state and federal building codes. More specifically, HRS's objection is based upon contentions that the County (a) did not document local, state and federal code references on the schematics, (b) did not address the relationship of the replacement facility with the bed addition, and (c) did not sufficiently document the support functions on the schematics. In response to the first objection, the registered architect who drafted the plans established that there are some forty-five codes that the structure must meet in order to pass muster with HRS. He did not identify each of the codes on the drawings because (a) the pertinent rules do not call for such a representation at this phase of the project, (b) "it is obvious what codes it would be built under", and (c) the plans would be subject to three more reviews by HRS, and a more detailed analysis would be given during that part of the process. It is noted that the architect has constructed more than twenty nursing home projects in Florida and used the same plans here as are being currently used on four other facilities now under construction in the state. As to the agency's objection to the failure to show where the additional fifteen beds will be placed in the facility in relation to the other one hundred and five, the architect pointed out that the new facility will have one hundred twenty beds, all of which are "new" in a sense, and it is irrelevant where the fifteen "new" beds will be located from an architectural standpoint. Finally, the architect responded to the last criticism by explaining that the drawings are self-explanatory and show designated support areas with the associated square footage devoted to a particular function. The witness added that the drawings submitted by the app1icant are "a very basic schematic" and in an early preliminary stage. This testimony is accepted and it is found that this statutory criterion has been met.

Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered denying the application of the Lee County Board of County Commissioners d/b/a Shady Rest Nursing Home for a certificate of need to add fifteen beds and construct a new one hundred twenty bed community nursing home facility in Fort Myers, Florida. DONE AND ENTERED this 8th day of November, 1989, in Tallahassee, Leon County, Florida. Donald R. Alexander, 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 8th day of November, 1989.

Florida Laws (1) 120.57

# 7

WUESTHOFF HEALTH SERVICES, INC. vs. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, 84-001976 (1984)

Division of Administrative Hearings, Florida Number: 84-001976 Latest Update: Oct. 08, 1986

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is therefore RECOMMENDED that the applications for a CON to construct either a 60 or 120-bed nursing home in Brevard County, Florida, submitted by Wuesthoff Health Services, Inc. and Florida Convalescent Centers, Inc., be denied. RECOMMENDED this 8th day of October, 1986, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway The Oakland Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of October, 1986. APPENDIX TO RECOMMENDED ORDER IN CASE NOS. 84-1976; 85-1310; 85-1506 The following constitutes my specific findings pursuant to Section 120.59(2), Florida Statutes, on all Proposed Findings of Fact submitted by the parties to this case.

Florida Laws (3) 10.18, 120.57, 7.38

# 8

AGENCY FOR HEALTH CARE ADMINISTRATION vs MARINER HEALTH CARE OF TUSKAWILLA, INC., D/B/A MARINER HEALTH CARE OF TUSKAWILLA, 03-004511 (2003)

Division of Administrative Hearings, Florida Filed:Orlando, Florida Dec. 02, 2003 Number: 03-004511 Latest Update: Jun. 21, 2004

The Issue Whether Respondent committed deficient practices as alleged in violation of 42 C.F.R. Section 483.13(b) and 42 C.F.R. Section 483.13(c)(1)(ii), adopted by reference in Florida Administrative Code Rule 59A-4.1288; and if so, whether Petitioner should impose a civil penalty in the amount of $5,000 and issue a conditional license to Respondent.

Findings Of Fact Petitioner is the state agency charged with licensing and regulating nursing homes in Florida under state and federal statutes. Petitioner is charged with evaluating nursing homes facilities to determine their degree of compliance with established rules as a basis for making the required licensure assignment. Additionally, Petitioner is responsible for concluding federally-mandated surveys of those long-term care facilities receiving Medicare and Medicaid funds for compliance with federal statutory and rule requirements. These federal requirements are made applicable to Florida nursing home facilities. Pursuant to the statute, Petitioner must classify deficiencies according to the nature and scope of the deficiency when the criteria established under the statute are not met. The classification of any deficiencies discovered is determinative of whether the licensure status of a nursing home is "standard" or "conditional." Respondent is a 98-bed nursing home located at 1024 Willow Springs Drive, Winter Springs, Florida, and is licensed as a skilled nursing facility. On May 30, 2003, Petitioner's staff conducted an inspection, also known as a survey, at Respondent's facility. Upon completion of the survey, Petitioner issued a document entitled, Center for Medicare and Medicaid Services, CMS Form 2567L, also known as a "2567," which contains a statement of the alleged violations of regulatory requirements, also referred to as "deficiencies," titled "Statement of Deficiencies and Plan of Correction." The evaluation or survey of a facility includes a resident review and, depending upon the circumstances, may consist of a record, reviews, resident observations, and interviews with family and facility staff. Surveyors note their findings on the 2567 Form, and if violations of regulations are found, the violations are noted and referred to as "Tags." A tag identifies the applicable regulatory standard that the surveyors believe has been violated, provides a summary of the violation, sets forth specific factual allegations that they believe support the violation, and indicates the federal scope and severity of the noncompliance. Petitioner's surveyors use the "State Operations Manual," a document prepared by the United States Department of Health and Human Services, Center for Medicare and Medicaid Services, as guidance in determining whether a facility has violated 42 C.F.R. Chapter 483. Count I In Count I of the Administrative Complaint, Petitioner alleges that Respondent's staff subjected three residents (Resident Nos. 6, 13, and 18) to verbal and mental abuse in violation of 42 C.F.R. Section 483.13(b), which provides that a nursing home resident has the right to be free from verbal and mental abuse. As to Resident No. 6, Petitioner contends that this resident stated to a surveyor that the resident had "overheard" a certified nursing assistant (CNA) loudly tell another staff member that the resident was "going to the bathroom 25 times a day." Petitioner believes the CNA's statement, which was allegedly "overheard," occurred sometime during the month of March 2003, based upon nurses' notes which indicate Resident No. 6 had an episode of diarrhea during this time. However, the nurses notes also reveal that during this time Resident No. 6 was subject to confusion and nonsensical outbursts. Petitioner's belief that Resident No. 6 was a reliable historian is based on Petitioner's mistaken belief that Resident No. 6 was admitted about March 30, 2003, and was alert and oriented and not confused upon admission. Petitioner's staff exhibited a lack of understanding of the timing and significance of the Multiple Data Set (MDS) forms describing Resident No. 6's mental condition upon which they relied. In fact, Resident No. 6 was admitted in mid-February 2003 and exhibited confused and eccentric behavior. The "overheard" comment was not reported to Respondent until the survey. Therefore, the evidence that this incident occurred as described by Petitioner is unreliable hearsay. Surveyors reviewed Respondent's records, which contained a complaint from a family member of Resident No. 6 that the same CNA had noticed that the resident had a physical anomaly. The CNA called other CNAs to view this anomaly, which was located in Resident No. 6's genital area. Respondent learned of the allegations relating to Resident No. 6's physical anomaly on April 21, 2003, from a family member of Resident No. 6. Respondent immediately began an investigation, including an interview with and physical examination of Resident No. 6 and an interview with the CNA. The resident only stated that she did not want this CNA taking care of her any longer. The CNA denied the allegations. The CNA was suspended pending investigation and later terminated based upon directions from Respondent's corporate office based on additional, unrelated information. The incident was reported to the Department of Children and Families (DCF) Abuse Hot Line on April 22, 2003. Although Resident No. 6 and her family member had frequent contact and conversation with Respondent's director of nursing (DON), neither had ever complained about the CNA's conduct. Respondent's DON observed no mental distress on the part of Resident No. 6 after Respondent's DON learned of the allegations. Petitioner alleges that this CNA had observed the physical anomaly for the first time. If that is true, it would be expected that the CNA would consult other nursing staff to address potential nursing issues. As to Resident No. 13, Petitioner alleges verbal abuse based upon the allegation that Resident No. 13 reported to a surveyor that she found a male resident sitting on her bed in her room. When this was reported by Resident No. 13 to one of the Respondent's nurses, the resident alleged that the nurse "laughed at" the resident. This incident was reported by Resident No. 13 to Respondent's DON shortly after it happened. Respondent's DON interviewed the resident and the two nurses who were on duty at the time. The nurses reported that they assured Resident No. 13 that everything was okay, escorted the male resident to his room, and Resident No. 13 went to bed with no complaint or distress. This incident was reported by Resident No. 13 to Respondent's DON in a joking manner, as an event and not as a complaint. Although Respondent's DON was concerned that the nurses should respond appropriately and was also concerned that the wandering resident be identified, Respondent's DON did not believe that the incident constituted any form of abuse. Respondent's DON did not observe this incident to have any adverse impact on Resident No. 13. During the survey, Petitioner's surveyor advised Respondent that the incident should have been investigated and reported to the DCF Abuse Hot Line. Respondent's DON completed a written report and called the DCF Abuse Hot Line and related the incident. The incident did not meet the DCF guidelines for the reporting of abuse. On or about March 30, 2003, two surveyors observed Resident No. 18 in her wheelchair as she approached the nurse's station. One of Respondent's nursing staff spoke in a "curt, loud voice" to Resident No. 18. The resident had approached the nurses' station to ask for her medication, to which the nurse replied: "I told you I will give you your medicine." Resident No. 18 was hearing-impaired and was documented in her medical record as one to whom staff "must speak loudly." This resident did not wear any hearing assistance devices. Respondent's staff credibly described this resident as one to whom staff had to speak loudly and in clipped words for the resident to understand. Petitioner's surveyors did not speak to this resident after the alleged incident. There is no evidence that this incident had any effect on the resident or even that the resident heard the staff member. The incident does not rise to the level of verbal abuse of the resident. Count II Count II of the Administrative Complaint alleges a violation of 42 C.F.R. Section 483.13(c)(1)(ii), which provides that a nursing home must develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse; and that the nursing home must not employ individuals who have been found guilty of abuse or neglect or are listed in the state nursing aide registry with a finding of abuse, neglect, or mistreatment. Count II is based on the allegation that Respondent failed to report to Petitioner (the appropriate "state agency") the incidents involving Resident No. 13 and 18 and other allegations of abuse or neglect, which the surveyor allegedly identified in Respondent's log of grievances. Respondent has in place written policies and procedures regarding abuse and neglect and its staff receive regular training regarding these policies and procedures. Petitioner has offered no evidence that these written policies and procedures or the staff's knowledge of these policies and procedures is inadequate. With regard to Resident No. 13, when Respondent's DON learned of the incident from the resident, Respondent's DON made inquiries of nursing staff who were on duty at the time, in addition to interviewing the resident. Respondent's DON did not consider any aspect of the incident to constitute abuse or neglect. Later, after Petitioner alleged, during the survey, that the incident should have been reported to DCF, Respondent's DON prepared a written report of the incident and called and related the incident to the DCF Abuse Hot Line. Respondent's DON was advised by DCF that the incident did not meet DCF's requirements for reporting. Respondent is required to report all allegations of abuse and neglect to the DCF's Abuse Hot Line. Petitioner does not dispute this fact. Instead, Petitioner contends that Respondent is also required to report allegations of abuse and neglect to the "state agency" and that Respondent failed to do so. The "state agency" for the purpose of federal regulations is Petitioner. Petitioner's allegations are based upon its review of Respondent's grievance log, which Petitioner's surveyors say allegedly records 18 incidents of alleged abuse, none of which was reported to the state agency. At the time of the survey, Respondent was a part of the Mariner Corporation. It has since disassociated from that corporation and changed its name to Tuskawilla Nursing and Rehabilitation Center, effective October 1, 2003. At the time of the survey, all reporting of abuse allegations were done by the corporate regional risk management department, and it is not known if they reported any of the incidents cited by the surveyors to Petitioner. However, the document received in evidence, which has many more than 18 entries in summary style, is almost completely illegible. Petitioner's witness was unable to identify any entries on this document which could be identified as alleged abuse and which had not been properly reported. Understanding this document requires substantial explanation, which was never provided. Standing alone, this document is not probative of any fact. Petitioner offered no evidence that Respondent employed any individuals who had been found guilty of or who had been listed on the nurse aide registry of abusing, neglecting, or mistreating residents. Even if it is assumed that Respondent should have reported but did not report to Petitioner the 18 alleged incidents or the incident regarding Resident No. 13, Petitioner offered no evidence that reporting this information to DCF, but not to Petitioner, had any impact on any resident or prevented a resident from maintaining or achieving the resident's highest practicable physical, mental, or psychosocial well-being. Count III Since there is no proof of Class II deficiencies, there is no basis for imposing a conditional license status on Respondent for the period May 30, 2003, until July 8, 2003.

Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that a final order of dismissal of the Administrative Complaint be entered in this case. DONE AND ENTERED this 31st day of March, 2004, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 2004. COPIES FURNISHED: Alfred W. Clark, Esquire 117 South Gadsden Street, Suite 201 Post Office Box 623 Tallahassee, Florida 32302-0623 Gerald L. Pickett, Esquire Agency for Health Care Administration Sebring Building, Suite 330K 525 Mirror Lake Drive, North St. Petersburg, Florida 33701 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308

CFR (7) 42 CFR 42, 42 CFR 483, 42 CFR 483(c)(1)(ii), 42 CFR 483.13(b), 42 CFR 483.13(c)(1)(ii), 42 CFR 483.13(c)(4), 42 CFR 488.13(b) Florida Laws (7) 120.569, 120.57, 400.022, 400.147, 400.23, 415.101, 415.102

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HEALTH CARE AND RETIREMENT CORPORATION OF AMERICA, D/B/A HEARTLAND OF PALM BEACH COUNTY vs. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, 84-003337 (1984)

Division of Administrative Hearings, Florida Number: 84-003337 Latest Update: Jul. 08, 1986

Recommendation Based upon the foregoing, it is recommended that the Department of Health and Rehabilitative Services, pursuant to Rule 10-5.11(21)(b)10, Florida Administrative Code, and Section 381.494(8)(c), Florida Statutes, issue a certificate of need to Health Care and Retirement Corporation of American, d/b/a Heartland of Palm Beach, for 120 community nursing home beds limited and conditioned upon all such beds being dedicated only to the provision of such services and facilities for victims of Alzheimer's disease as described by the Petitioner in this case and set forth in findings of fact 18 through 21 of this order, with 30 of such beds established for sub-acute care needs of Alzheimer's disease patients. It is further recommended that the certificate of need not contain approval for general community nursing home beds, but be limited to Alzheimer's disease patients. DONE and ORDERED this 8th day of July, 1986, in Tallahassee, Florida. WILLIAM C. SHERRILL, JR. 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 8th day of July, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 84-3337 Pursuant to section 120.59(2), Fla. Stat., the following are specific rulings upon all proposed findings of fact submitted by the parties which have been rejected in this Recommended Order. Findings of Fact Proposed by the PETITIONER: 7. Sentences 3 and 4 have been rejected because the evidence was not sufficiently complete to describe nursing homes in Florida in general, and because the issue in this case is the need in Palm Beach County, thus making these proposed facts not relevant. 10. Sentence 3 is rejected since the testimony did not clearly show that therapeutic kitchens "should be available." 13. Sentences 9 and 10 are rejected because the evidence did not categorically show that it "would not be possible" to use actual physician orders, or that "physicians do not typically arrange their records so that orders of that kind could be extracted from their records." Similarly sentence 12 is rejected for lack of categorical evidence to prove impossibility. 17. Evidence that the entire facility is "completely fenced and enclosed" cannot be located in the record, and thus sentence 7 is rejected. The bulk of the discussion in proposed finding of fact 20 has been rejected because it is argument or conclusions of law. Those portions of this proposed finding which propose a finding that the Respondent's interpretation of rule 10-5.11(21)(b)10, Florida Administrative Code, is wrong or unreasonable are rejected as argument or conclusions of law. Most of the factual statements were adopted. Findings of Fact Proposed by the RESPONDENT: All proposed findings of fact by the Respondent have been adopted in substance. COPIES FURNISHED: Harden King, Esquire Assistant General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Suite 407 Tallahassee, Florida 32301 Kenneth A. Hoffman, Esquire G. Steven Pfeiffer, Esquire Laramore & Clark, P.A. 325 North Calhoun Street Tallahassee, Florida 32301 William Page, Jr. Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 =================================================================

Florida Laws (1) 120.57

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HEALTH CARE AND RETIREMENT CORPORATION OF AMERICA, D/B/A HEARTLAND OF PALM BEACH COUNTY vs. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, 84-003337 (1984)

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