The Issue Whether there was negligence involved in treating Lewis Dougal, a patient in the Miracle Hill Nursing and Convalescent Home. Whether the Respondent kept records in compliance with the statutes and the requirements of Chapter 10D-29 of the Florida Administrative Code.
Findings Of Fact The Miracle Hill Nursing and Convalescent Home had Lewis Dougal, an adult mentally retarded male, as a patient in January of 1976. On Thursday, January 29, 1976, Mr. Dougal was taken to Tallahassee Memorial Hospital for a neurological brain scan. His exact whereabouts have not been established during the period of time from 10:00 a.m. until 3:00 p.m. on that day, but he was in the emergency room area or in the radiology area of the hospital. At approximately 3:00 p.m. he was returned to the Respondent nursing home. At approximately 7:00 p.m. on January 30, a nurses aide discovered that Lewis Dougal had a reddened and swollen penis, a swollen scrotum and red marks on the buttocks. She called the charge nurse, an L.P.N., who did not call the doctor, but noted on the "nurse's log" that the patient should see a doctor the following day. No notation was made on the patient's individual medical record at that time. Mr. Dougal was transferred to Tallahassee Memorial Hospital late in the morning of January 31, 1976, whereupon he received a 50 mm injection of demerol for pain upon his admission to the hospital. He was released February 25, 1976. An investigative team from the Office of Health Facilities of the Department of Health and Rehabilitative Services, which consisted of a Hospital Nursing Home Consultant and a Registered Nurse, investigated the circumstances surrounding the incident on February the 25th and 27th, 1976. The injuries sustained by Mr. Dougal and his hospital records from the date of his admission, January 31, 1976, to the hospital, to the date of his release, February 25, 1976, were reviewed. The investigative team thereupon visited the Miracle Hill Convalescent and Nursing Home on February 27, 1976 and requested all medical records of the patient, Lewis Dougal. No medical records had been kept and the only reference to the incident was made on the "nurse's log" January 30 and 31, 1976. These entries were made subsequent to the dates thereof. Other information was placed on the records long after the incident occurred. On March 26, 1976, Petitioner State of Florida, Department of Health and Rehabilitative Services, issued an order charging Respondent with two violations: The first being in violation of Section 400.102(1)(a), Florida Statutes, and Chapter 10D-29.11(7), Florida Administrative Code, to-wit: "1. That the facility failed to protect a patient from neglect and abuse, in that a mentally retarded patient, incontinent of bowel and bladder, was allowed to acquire burns of the scrotal area, genitalia and buttocks, of sufficient severity to require hospitilization, such burns being caused by inadequate and improper nursing care on the part of the nursing service staff of the facility. As a result of the subject burns, the patient was hospitalized for treatment and care during the period January 31, 1976, and February 25, 1976, at Tallahassee Memorial Hospital. The admission diagnosis for this patient at the hospital in part was, "burns of the genitalia and buttocks." The admitting physician further noted that the admission examination revealed an obvious burn in the skin from the scrotum which had already desquamated indicating the burn had occurred some time previously, maybe as much as a couple of days. Further, a circular burn involving the buttocks was observed with the notation that it appeared the patient had been sitting in some very hot solution. The second charge was alleged to be in violation of Chapter 10D- 29.11(10) and (13) 1.(c), of the Florida Administrative Code in the following language: "(2) In that the required medical record documentation concerning how or when the above injuries occurred to this particular patient was lacking, and the investigating team was unable to determine just how or when the burns occurred or the specific person responsible for this."
Recommendation Section 400.121(1) (8), Florida Statutes, Denial, suspension, revocation of license; procedure.- (1) "The [department] may deny, revoke, or suspend a license or impose an administrative fine for a violation of any provision of s. 400.102 only after written notice to the applicant or licensee setting forth the particular grounds for the proposed action and a hearing, if demanded by the applicant or licensee." (8) The [department], as a part of any final order issued by it under the provisions of this chapter, may impose such fine as it deems proper, except that such fine shall not exceed $500 for each violation. Each day a violation of this chapter occurs shall constitute a separate violation and shall be subject to separate fine. An action for recovery of the fine may be maintained in the circuit court of the county in which the facility is located, and appeal from any judgment rendered shall be in the manner and within the time provided by the Florida Appellate Rules for reviewing judgments rendered by circuit courts in action at law." Record keeping is such an important and necessary adjunct to nursing home care the Respondent should suffer a fine of at least $200 for violation of the foregoing statutes and rules. DONE and ORDERED this 10th day of January, 1977 in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Robert M. Eisenberg, Esquire Health Program Office Department of Health and Rehabilitative Services Post Office Box 210 Jacksonville, Florida 32201 John K. Folsom, Esquire 122 South Calhoun Street Tallahassee, Florida 32301
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
Findings Of Fact At all time relevant hereto, respondent, Margaret Ann Morris Martin, held registered nurse license number 1076252 issued by petitioner, Department of Professional Regulation, Board of Nursing. She presently resides at 3101 Buena Vista Lane, Naples, Florida. Martin has been a registered nurse since 1963, and holds licenses in Florida and Pennsylvania. She has worked in a variety of positions at various institutions since 1963, including head nurse, assistant director of nurses, director of nurses, research nurse supervisor, assistant supervisor medical review team, assistant administrator of a nursing home, and administrator of a nursing home. She has received outstanding evaluations concerning the quality of her work, and has never been subjected to prior disciplinary action. Martin also holds a nursing home administrator's license. Using that license she held the position of nursing home administrator at Heritage Healthcare Center, Inc. (HHHC) in Naples, Florida from January, 1979 until October, 1984. HHHC is a 97 bed skilled nursing facility providing medical and nursing services to Medicare, Medicaid and private pay patients. Martin was hired by HHHC as a nursing home administrator, and did not perform nursing duties while employed at the facility. Clarence Berlyoung was a 78 year old private pay patient admitted to HHHC on July 21, 1983. He remained a patient at HHHC until his discharge on January 23, 1984. According to his patient records, Berlyoung required an intermediate level of nursing care, which included observation, monitoring of his condition, and a daily note by the nurses. The notes indicated that Berlyoung was "weak", that he had some "drooping" on one side of his face, and that his gait was unsteady. The records also indicated Berlyoung had suffered a stroke and had an additional diagnosis of organic brain syndrome. During his stay at HHHC, Berlyoung and Martin developed what she called a "close relationship" and one which was similar to that of father and daughter. Among other things, she talked with the patient whenever he visited her office, and took him outside the facility for recreational or shopping purposes, or an occasional meal. She also made sure that Berlyoung was provided with personal necessities, such as cigarettes and his daily ration of two cans of beer. On an undisclosed date, but apparently in late 1983, Martin carried Berlyoung at his request to an attorney's office in Naples so that he could take care of some needed legal matters. Without Martin's prior knowledge, Berlyoung signed a "power of attorney" which designated Martin to handle his financial affairs. He also had Martin named a beneficiary in his will. When these documents were executed, Berlyoung was mentally alert and competent to make these decisions. There is no evidence that Martin influenced Berlyoung to execute these documents, or to choose her as a beneficiary. In January, 1984 Berlyoung became dissatisfied with living in a nursing home, and left HHHC on his own accord. Since he had no other place to go at that time, he approached Martin and asked if he could stay in her home temporarily. Martin agreed and allowed Berlyoung to move into her home. There is no evidence that Martin encouraged Berlyoung to leave the nursing home, or to choose her home as a place to live. Once the move was made, she prepared his meals, did his laundry and helped bathe him. Berlyoung was capable of taking his own medication and did not need Martin's assistance in this respect. Berlyoung's physical condition and medical requirements after his discharge from HHHC on January 23, 1984, were not disclosed. He stayed at Martin's home for several months until he moved to a motel for a few days, and then to an apartment. He died on a later undisclosed date. While the power of attorney was in effect, Martin helped Berlyoung transfer between $25,000 and $30,000 from an Ohio bank to a Naples area bank. She, or her husband, also sold a Volkswagen automobile and a "trailer" which Berlyoung owned. This is no evidence that she misused the funds, or performed any act which Berlyoung had not instructed her to do. When Berlyoung departed HHHC, he left an outstanding bill of $1,389.90. On May 7, 1984, Berlyoung's bill was written off by HHHC. This was a routine function after an account had aged for ninety days. A write-off slip is not generally considered to be a "medical record," but is more akin to a business record of the facility. On Berlyoung's writeoff slip was the notation "Present address unknown." The slip was prepared by someone other than Martin. However, as nursing home administrator Martin signed and approved the slip. This was a routine duty of the administrator, and the Berlyoung slip was one Of some fifteen or twenty that she signed that same day. The record is unclear as to whether Berlyoung still resided with Martin in early May, 1984 or had moved elsewhere by that time. However, Martin knew where Berlyoung resided, for she testified she assisted him in finding an apartment, and kept in touch with him until he died.. Therefore, it is found that Martin knew the address of Berlyoung when she signed the slip, but for some reason, she still approved the write off of his account on the ground his address was unknown. There is no evidence that she did so for fraudulent purposes as alleged in the administrative complaint. Martin did not know that DPR apparently viewed the holding of a patient's power of attorney by a nursing licensee to be improper until she read a DPR newsletter in the spring of 1984 which indicated a nurse had been reprimanded for doing this. By this time, she stated she had already torn the document up, and no longer exercised the authority. Two registered nurses and the owner of a skilled nursing facility offered opinion testimony as to Martin's conduct. The agency witness, who was accepted as an expert in the field of nursing and in the review of medical records, gave opinions concerning the minimal standards of prevailing nursing practice, and whether respondent's activities constituted a deviation from said standards. She also gave testimony on the issue of whether respondent was acting in the capacity of a nurse in her relationship with Berlyoung. Respondent's first witness, a registered nurse, gave opinion testimony on the issue of whether Martin was acting as a nurse, whether the write off slip was a medical record, and whether the allegations against Martin related to the nursing profession. A second witness, who owned a nursing home, also gave testimony on whether the allegations against Martin related to the nursing profession. As might be expected, the conclusions reached by the two sets of witnesses differed in material respects. The difference in opinion stems primarily from whether Martin was acting in the role of a registered nurse when the events herein occurred. According to uncontroverted testimony, a minimal standard of acceptable and prevailing nursing practice is "a trust relationship which is necessary to provide quality care to a patient." Accordingly, a nurse should not manage a patient's money in the absence of a court order, and should not accept a patient in her home. A second minimal standard is "anything that a nurse signs is (a) true and accurate record of what she knows to be the truth." This standard prohibits a nurse from signing a record she knows to be false. These two standards were not disputed by respondent. By violating either or both of the standards, a nurse is engaged in "unprofessional conduct." A matter requiring resolution is whether Martin was acting as a registered nurse during Berlyoung's stay at HHHC and at her home. When Berlyoung was at HHHC from July 1983 until January 1984, Martin did not sign his medical records, administer medication, or otherwise engage in what are normally considered to be nursing duties associated with caring for the patient. Indeed, she performed only administrative duties consistent with her position as nursing home administrator. The fact that she talked to the patient, ran errands for him, and joined him for an occasional meal did not constitute what are generally considered to be the functions of a registered nurse. Therefore, she was not acting as a nurse at that time. When Berlyoung was allowed to temporarily stay at Martin's home, he was not accepted as a patient, nor was it the outgrowth of a nurse patient relationship. Indeed, it was based upon their friendship and the "close relationship" which had developed between the two at HHHC. Even though she prepared his meals, bathed him and did his laundry, these functions required no "substantial knowledge, judgment, and nursing skill," and could have been performed by a friend, relative or acquaintance. Therefore, it is found Martin did not accept a "patient" into her home as a "nurse," and was not acting as a registered nurse when she performed these duties.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the administrative complaint be DISMISSED, with prejudice. DONE and ORDERED this 24th day of February, 1986, in Tallahassee, Florida. DONALD R. ALEXANDER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 1986.
The Issue Whether petitioner has good cause, within the meaning of Rule 10D- 29.128(6), Florida Administrative Code, to revoke respondent's superior rating, for the reasons alleged either in Ms. Cheren's letter or in the statement of deficiencies?
Findings Of Fact Respondent holds a license to operate a 120-bed (T. 186) nursing home at 6535 Chester Avenue in Jacksonville, and does so under the name of Taylor Care Center (TCC). Petitioner Department of Health and Rehabilitative Services (HRS), which issued the license, later gave TCC a superior rating, the rating it had in March of 1988. On March 28, 1988, a Monday, Joanna T. Warfel, R.N., Edward Melvin and Richard Gerard undertook an annual "combined Medicare/Medicaid licensure survey" (T. 39) at TCC on behalf of HRS' Office of Licensure and Certification. The surveyors produced a statement of deficiencies on Form HCFA-2567 (10-84), the same form on which TCC responded with its plan of correction. HRS' Exhibit No. 1. If TCC, "a community-based nursing facility . . . [with] probably . . . 80 percent or more . . . Medicaid residents," (T. 186) loses the superior rating and receives instead only a standard rating for the period July 1, 1988 to June 30, 1989, TCC "is projected . . . [to sustain] a loss of at least $50,000 in revenue." Pre-hearing Stipulation. Infection Control TCC "had a policy and procedure manual for infection control," (Dep. 20) with which HRS does not find fault. In practice, if a floor nurse suspects an infection, she tells the charge nurse, who asks a doctor to order laboratory analysis of a culture. (T. II. 38) The laboratory furnishes the physician, the floor and TCC's infection control nurse copies of its reports, which form the basis for a log the Infection control nurse keeps. In addition, TCC's Ms. Jarrett took "environmental" samples and sent them for cultures sporadically, although no law or rule requires this, in terms. In part, the HRS team's statement of deficiencies alleged the following: INFECTION CONTROL NH-445: The condition is out of compliance because there was no system in operation to prevent the spread of infections. Ref: 405.1135, 10D-29.123 Class III 4/23/88 NH-452: Infection Control Standards not met. Ref: 405.1135(b) Class III 5/31/88 F-339/122 NH-454, 458, 116, 99: Observation revealed the following: Five residents with draining wounds not on any type of Isolation precautions. Drainage from a supra pubic catheter insertion site without a dressing. 5-7 residents with Staph Aureus eye Infections not on any type of isolation precautions. Dressings from at least 3 draining wounds were removed without gloves by the facility's nurse. One dressing to a draining wound was applied without gloves. Nurse placing gloved hand into medication jar after being in contact with infected wound. Whirlpool cleaned only with Betadine between residents. Resident with stage 2 decubiti on both feet, one of which was draining purulent material, placing both feet in the whirlpool at the same time. Pictures of a stasis ulcer healing well in August 1987, currently infected with a heavy growth of pseudomonas and much larger in size. When isolation precautions were posted, there were no isolation bags for linen and trash and no gloves left available in the room. Review of documentation revealed: Residents with positive cultures for known pathogans such as staph aureus and pseudomonas were not on isolation precautions. All draining wounds had not been cultured. All positive cultures and wounds with purulent drainage were not included in the infection log. The written infection report by nursing was prepared quarterly rather than monthly as required by state regulations. Environmental cultures collected 11/24/87 revealed "unsatisfactory" results on 5 of 5 sources cultured i.e., Pseudomonas from the whirlpool tub and water fountain. The quarterly infection control meeting minutes did not contain any plan of correction or any mention of the environmental culture results. There were no environmental culture reports since 11/24/87. Of the 39 infections recorded in the last 3 months 100% were nosocomial. There was no documented evidence of isolation being instituted for the last 12 months. Ref: 10D-29.123(3)(b), 10D-29.123(3)(f) 10D-29.108(5)(b), 10D-29.108(3)(e) 405.1135(b) Class III 5/31/88 * * * INFECTION CONTROL/DISASTER PREPAREDNESS F-342/343 NH-490: Infection Control/Disaster Preparedness Standards not met. Ref: 405.1135(d), 442.327 Class III F-345 NH 493: Observation revealed that linen, contaminated with known pathogens, specifically, Pseudomonas was removed from the resident's roe without gloves and deposited with the regular laundry. Observation further revealed that laundry personnel were handling soiled linen without gloves on the first day of the survey. Ref: 405.1135, 442.327, 10D-29.124(2)(b)1 Class III 5/31/88 * * * INFECTION CONTROL/DISASTER PREPAREDNESS F-345 NH-453: Infection control committee has not approved policies and procedures for the laundry operation. Ref: 405.1135(d), 10D-29.124(2)(b) Class III 5/31/88 The "NH" references in the statement of deficiencies are set out in Part B of the nursing home licensure survey report received as HRS' Exhibit 2, and include the following: XIII. INFECTION CONTROL. 10D-29.123. The nursing facility establishes an infection control committee, appointed by the Administrator, of representative professional staff with responsibility for overall infection control in the facility. Necessary staff are provided to maintain a sanitary and comfortable environment and to help prevent the development and transmission of infection. (b) STANDARD: Infection control committee policies and procedures. The policies and procedures developed by the committee include, at a minimum, policies and procedures governing the following: NH454 Monitoring of the methods of maintaining sanitary conditions no less often than quarterly. 10D-29.123(3)(b) * * * NH458 Infection control measures, which include, at a minimum, the following: Isolation procedures for residents in communicable stage of disease. Specifics of nursing care for residents with infection. NH116 Nursing care includes control of occurrence of infection through the use of aseptic techniques, surveillance of personnel and environmental conditions, identification of high-risk, infection prone residents, health education, counseling, and practicing health promoting habits. 10D-29.108(5)(b) * * * NH99 The DON ensures that the facility's resident care policies and procedures and the policies and procedures developed by the pharmaceutical services committee and the infection control committee, which relate to nursing services are implemented. (e) STANDARD: Linen and laundry * * * NH493 The responsible person ensures that written policies and procedures for linen and laundry services, including methods of collection, storage, transportation are developed, implemented and maintained in conjunction with the policies and procedures developed by the infection control committee. 10D-29.124(2)(b)1 The rule provisions on which HRS relies are set out in the conclusions of law. Decubiti, called pressure sores or bed sores after their wonted etiology, advance through four stages, if not checked. In stage one, the skin is intact, but "remains red after approximately 30 minutes of pressure relief." (T. II. 117-8) In stage two, the skin is "open," and the sore moist, but superficial and devoid of infection. Muscle and necrotic tissue may be seen in stage three, when open lesions are deeper. Stage four lesions go to the bone. Clear serous drainage from a stage two decubitus facilitates healing. While purulent drainage from more advanced lesions may also be of some benefit, this yellowish or greenish fluid contains pathogenic organisms which pose the danger that infection will spread. (T. I. 69-70) Stasis ulcers, attributable to poor venous circulation, and eyes in which antibiotic resistant staphylococci aurei have established themselves are other sources of infection in nursing homes. In the course of the survey, Ms. Warfel observed three decubiti on the feet of the resident who slept in bed 101-A at TCC, including a stage two decubitus, TCC's Exhibit No. 2, "with small amount of drainage, half-inch in diameter on the left inner ankle." (Dep. 22) Any discoloration of the drainage (Dep. 25, 31) was apparently due to medication. (T. 11, 33) She saw a sore of similar size "with a slight amount of drainage," (Dep. 23) on the outside of the left foot of the man who slept In bed 210-B, who also had an undressed suprapubic catheter with a "strand of mucous . . . between the catheter tubing and the skin." (Dep. 25) The resident who slept in bed 301-B "had a stage two on the left hip, one inch in diameter, and had a positive culture for staph in March of '88." (Dep. 23) The woman who slept in bed 316-B had both "a draining area on her left thigh . . .from a previous hip pin" (Dep. 23) and a "small stage two decubitus on the coccyx." Id. The drainage from the surgical incision was clear, and, when analyzed after the survey (in response to Ms. Warfel's characterization) proved noninfectious, just as the resident's physician had earlier advised TCC. (T. I. 44-45) One nurse placed a gloved hand into a medication jar after contact with a stasis ulcer the woman in Room 115 had. (Dep. 29) Room 115 is private. What became of the medication thereafter the record does not reveal. The woman's ulcer was heavily infected with pseudomonas, although it had been reported to be healing well in August of 1987. She told Ms. Warfel it had gotten [re]infected from the whirlpool." (Dep. 31) Ms. Warfel saw the resident who slept in bed 101-A with both feet in the whirlpool, then saw a staff person dry both feet with the same towel. (Dep. 31) On March 24, 1988, her physician had ordered "sterile WP to [both] feet." TCC's Exhibit No. 2. The physical therapist regularly disinfected the whirlpool with Wescodyne. (T. II. 34) As far as the evidence revealed, she did so after each use. On her initial visit, Ms. Warfel did not see precautions posted for Room 210 "but on the fourth day . . . went back and checked, and that was on the door then." (Dep. 22) The man who slept in bed 210-B had been placed on secretion precautions the week before the survey, when a culture revealed that he suffered from an infection of methicillin-resistant staphylococcus aureus. Perhaps because the sign posted on his door was not the customary green, Ms. Warfel overlooked it originally. In rooms in which isolation procedures are in effect, soiled linen is placed in "a double red bag or a water soluble bag." (T. II. 30) Water soluble bags go "directly into the hamper . . . [while the contents of each] double red bag . . . [go] into a separate laundry from the regular linen." (T. II. 30) Gloves at the nurse's desk were available to the nursing staff. (Dep. 28) Although the "director of nurses wore gloves part of the time when she was handling dressings . . . [t]he nurse who did the treatment on the pseudomonas infection wore gloves while she was doing the dressing only." (Dep. 27) TCC terminated that nurse's employment. (T. II. 32) Because Jackie Williams, TCC's infection control nurse who began at TCC not long before the survey, listed all urinary tract infections as nosocomial, the infection control log grossly overstated the number of nosocomial infections occurring at TCC during the three months before the survey took place. HRS' Exhibit No. 4. If evaluated against accepted criteria, Hearing Officer's Exhibit No. 1, the actual number was on the order of six. Of these, four were urinary tract infections in which only pathogens present at admission were implicated. The infection control log was updated continuously, as information was received, but monthly reports as such were not prepared. Dr. Tremble, who attends the woman who sleeps in Room 115, "does his very own cultures himself." (T. II. 38) No laboratory or other report of the results of cultures done for this resident reached TCC's infection control nurse nor were any deflected in the infection control log. As far as the record reveals, environmental cultures were denominated "unsatisfactory if there was any bacteria count," (Dep. 39) however small. The evidence did not establish that the environmental culture results reflected conditions about which TCC should have done anything it failed to do. Guidelines The CDC Guideline for Isolation Precautions in Hospitals published in 1983, excerpts from which were received as HRS' Exhibit No. 6, say the following about gowns, gloves, bagging of articles, linen and dressings: Gowns In general, gowns are recommended to prevent soiling of clothing when taking care of patients. Gowns are not necessary for most patient care because such soiling is not likely. However, gowns are indicated when taking care of patients on isolation precautions if clothes are likely to be soiled with infective secretions or excretions, for example, when changing the bed of an incontinent patient who has infectious diarrhea or when holding an infant who has a respiratory infection. Furthermore, gowns are indicated, even when gross soiling is not anticipated, for all persons entering the room of patients who have infections that if transmitted in hospitals frequently cause serious illness, for example, varicella (chickenpox) or disseminated zoster. When gowns are indicated, they should be worn only once and then discarded in an appropriate receptacle. Clean, freshly laundered or disposable gowns may be worn in most circumstances. In some instances, as with extensive burns or extensive wounds, sterile gowns may be worn when changing dressings. Gloves In general, there are 3 distinct reasons for wearing gloves. First, gloves reduce the possibility that personnel will become infected with microorganisms that are infecting patients; for example, gloves should prevent personnel from developing herpetic whitlow after giving oral care or suctioning a patient with oral herpes simplex infections. Second, gloves reduce the likelihood that personnel will transmit their own endogenous microbial flora to patients; for example, sterile gloves are used for this reason when personnel perform operations or touch open surgical wounds. Third, gloves reduce the possibility that personnel will become transiently colonized with microorganisms that can be transmitted to other patients. Under most conditions, such transient colonization can be eliminated by handwashing. Thus, in hospitals where handwashing is performed carefully and appropriately by all personnel, gloves are theoretically not necessary to prevent transient colonization of personnel and subsequent transmission by them to others. However, since handwashing practices are thought to be inadequate in most hospitals, gloves appear to be a practical means of preventing transient hand colonization and spread of some infections. Therefore, for many diseases or conditions listed in this guideline, wearing gloves is indicated for touching the excretions, secretions, blood, or body fluids that are listed as infective material. Gloves may not be needed if "no touch" technique (not touching infective materials with hands) can be used. When gloves are indicated, disposable single-use gloves (sterile or nonsterile, depending on the purpose for use) should be worn. Used gloves should be discarded into an appropriate receptacle. After direct contact with a patient's excretions or secretions, when taking care of that patient, gloves should be changed if care of hat patient has not been completed. Bagging of Articles Used articles may need to be enclosed in an impervious bag before they are removed from the room or cubicle of a patient on isolation precautions. Such bagging is intended to prevent inadvertent exposures of personnel to articles contaminated with infective material and prevent contamination of the environment. Most articles do not need to be bagged unless they are contaminated (or likely to be contaminated) with infective material. (See the Tables, which contain an alphabetical listing of diseases for identification of the infective material for each disease.) A single bag is probably adequate if the bag is impervious and sturdy (not easily penetrated) and if the article can be placed in the bag without contaminating the outside of the bag; otherwise, double bagging should be used. Bags should be labeled or be a particular color designated solely for contaminated articles or infectious wastes. * * * Linen In general, soiled linen should be handled as little as possible and with a minimum of agitation to prevent gross microbial contamination of the air and of persons handling the linen. Soiled linen from patients on Isolation precautions should be put in a laundry bag in the patient's room or cubicle. The bag should be labeled or be a particular color (for example, red) specifically designated for such linen so that whoever receives the linen knows to take the necessary precautions. Linens will require less handling if the bag is hot-water-soluble because such bags can be placed directly into the washing machine; however, a hot-water soluble bag may need to be double-bagged because they are generally easily punctured or torn or may dissolve when wet. Linen from patients on isolation precautions should not be sorted before being laundered. If mattresses and pillows are covered with impervious plastic, they can be cleaned by wiping with a disinfectant-detergent. (See Guideline for Hospital Environmental Control: Laundry Services.) * * * Dressings and Tissues All dressings, paper tissues, and other disposable items soiled with infective material (respiratory, oral, or wound secretions) should be bagged and labeled and disposed of in accordance with the hospital's policy for disposal of infectious wastes. Local regulations may call for incineration or disposal in an authorized sanitary landfill without being opened. (See Guideline for Hospital Environmental Control: Housekeeping Services and Waste Disposal.) The same document also specifies "secretion precautions" and "bodily fluid precautions" for certain hospital patients: Drainage/Secretion Precautions Drainage/Secretion Precautions are designed to prevent infections that are transmitted by direct or indirect contact with purulent material or drainage from an infected body site. . . . Infectious diseases included in this category are those that result in the production of infective purulent material, drainage, or secretions, unless the disease is included in another isolation category that requires more rigorous precautions. For example, minor or limited skin, wound, or burn infections are included in this category, but major skin, wound, or burn infections are included in Contact Isolation. . . . Specifications for Drainage/Secretion Precautions Private room is not indicated. Masks are not indicated. Gowns are indicated if soiling is likely. Gloves are indicated for touching infective material. Hands must be washed after touching the patient or potentially contaminated articles and before taking care of another patient. Articles contaminated with infective material should be discarded or bagged and labeled before being sent for decontamination and reprocessing. * * * Blood/Body Fluid Precautions Blood/Body Fluid Precautions are designed to prevent infections that are transmitted by direct or indirect contact with infective blood or body fluids, unless the disease is included in another isolation category that requires more rigorous precautions, for example, Strict Isolation. For some diseases included in this category, such as malaria, only blood is infective; for other diseases, such as hepatitis B (including antigen carriers), blood and body fluids (saliva, semen, etc.) are infective. Specifications for Blood/Body Fluid Precautions Private room is indicated if patient hygiene is poor. A patient with poor hygiene does not wash hands after touching infective material, contaminates the environment with infective material, or shares contaminated articles with other patients. In general, patients infected with the same organism may share a room. Masks are not indicated. Gowns are indicated if soiling of clothing with blood or body fluids is likely. Gloves are indicated for touching blood or body fluids. Hands must be washed immediately if they are potentially contaminated with blood or body fluids and before taking care of another patient. Articles contaminated with blood or body fluids should be discarded or bagged and labeled before being sent for decontamination and reprocessing. Care should be taken to avoid needle-stick injuries. Used needles should not be recapped or bent; they should be placed in a prominently labeled, puncture-resistant container designated specifically for such disposal. Blood spills should be cleaned up promptly with a solution of 5.25% sodium hypochlorite diluted 1:10 with water. TCC has incorporated these provisions in its infection control policy and procedure manual. Joint Exhibit No. 1. More recently, the Centers for Disease Control have prescribed "universal precautions," recommending that hospital personnel proceed as if every patient had acquired immune deficiency syndrome. (T. I. 75-6) No Isolation The TCC resident who slept in bed 306-A had an eye infection which TCC staff began treating with ophthalmic ointment (Gentamycin) on February 3, 1988. "Resolved" by the time of the survey, this infection was caused by staphylococcus aureus, which was methicillin resistant (T. II. 73, 111) and required isolation (secretion precaution) procedures (T. II. 46, 7) which were never instituted. (T. II. 42) "[T]hey should have been wearing gloves. And the linen that they were using should have been placed in isolation bags before washing, labeled and identified". (Dep. 26)(T. I. 70, 73-4) Except for the resident who slept in bed 210-B, TCC had placed nobody in isolation for the six months preceding the survey. (T. II. 42) Other Red Eyes The TCC resident who slept in bed 112A had redness of the eye, from which Ms. Warfel concluded "that it was conjunctivitis and the patient should have been isolated". The patient to whom bed 112A was assigned had no drainage. At the time of the survey, the TCC resident who slept in bed 203B was already receiving medication for an eye infection. A laboratory report dated March 15, 1988, identified the organism as "staph epi," normal skin flora, to be distinguished from the malevolent staphylococcus aureus. The woman who slept in bed 407B also "had light growth of staph epi . . . was on an ointment for seven days and didn't require isolation". (T. II. 47) The women who slept in beds 305A and 316B had red eyes, as well, attributable, it turned out, to glaucoma, and not to staphylococcus aureus. Resident Care Plans and Activities With respect to patient care management and residents' activities, the HRS team alleged, in its statement of deficiencies: F-237/238 NH-136: Patient Care Management Standards not met. Ref: 405.1124(d), 442.341 Class III 5/31/88 F-239/240 NH-138: Observation of patient care and record review revealed that all resident's problems/needs, i.e., decubiti, infections, rehab, etc. were not being addressed in the written plan of care or delivery of services. Goals were not measurable and interventions were limited and inadequate. The evaluations did not address the effectiveness of the interventions or institute appropriate changes in either the goals or approaches. Social Services and Activities in the care plans, also did not have measurable goals and specific approaches to meet the residents identified needs. Also the disciplines did not evaluate the effectiveness of their approaches. Ref: 405.1124, 442.341, 10D-29.109(2) Class III 5/31/88 * * * F-234 NH-324: The facility has two programs implemented for its residents: (1) stroke group, (2) Adventure Group for Alzheimers residents. Surveyor found that these groups had about 20 residents each in the groups. However, surveyor found from interview, observation, and documentation could not ascertain that the residents were receiving benefits from these programs or that these programs were meeting their identified needs. Ref: 442.345, 10D-22.116 Class III 5/31/88 The statement of deficiencies also sets out pertinent standards: STANDARD: Resident care plans NH138 The DON serves as coordinator of an interdisciplinary team responsible for the development, implementation, maintenance and evaluation of each resident's plan of care. Each interdisciplinary team member involved in the resident's care provides input into the development, implementation, maintenance, and evaluation of the resident's plan of care. 10D-29.109(2) NH324 The activities program provides diversified independent and group activities for each resident, including those confined to bed, commensurate with each resident's needs, abilities and interests. The rule provisions on which HRS relies are set out in the conclusions of law. TCC provides two programs of group activities as part of the care it affords residents. In specifying which group activities are to be available to a particular resident, the resident's care plan typically listed either the "Stroke Club" or the "Alzheimers Adventure Group," without further elaboration. Only from other documents was HRS' Mr. Melvin able to discern the goals and objectives of the two programs. (T. 117, 119) In reviewing six charts in particular, Mr. Melvin perceived flaws in residents' care plans, plans that may be summarized, as follows: Patient Diagnosis/Problems Goals Approaches No. 361 Alzheimer's disease, Safe and free ADV. group unaware, disoriented unaware of needs and from harm needs will be 24 hour su- pervision of care wants met learn her signals and needs No. 348 Alzheimer's disease, unaware, disoriented will be kept aware of day, time, & place ADV. program No. 368 CVA (new admit) monitor needs get pt. to activities No. 365 Alzheimer's disease, free from ADV. program bladder tumors, con- harm and injury fused, disoriented, wanders ADV. program potential for de- & take to creased social stimula- parties tion & mental status No. 328 OBS, osteoarthritis, will attend encourage periods of confusion and depression memory loss and has good past recall activities, be- come acquainted with others; not to be em- barrassed when she forgets to parti- cipate in activities introduce to other residents; do not argue or dwell on things No. 011 arthritis & hyperten- sion, altered mental status, unaware of needs provide needs keep free from harm and in- jury 24 hour supervi- sion & adv prog. For the most part these plans lack specificity and individualization. They do not specify the severity of Alzheimer patients' disease. They are vague enough that it would be, in many instances, difficult to say whether they had been complied with. Nor was Mr. Melvin impressed with the 20-member Alzheimers Adventure Group in action. When he observed, a woman lay on the floor without participating in the group's activities. But the family of the recumbent resident, well aware of her proclivity to stretch out, agreed with staff that letting her lie was the more sensible and humane course. The other patients sat in rows "for hours in the room . . . [without] any programming . . . except the break at lunchtime". (T 120) Arts and crafts were not available to them.
Recommendation It is, accordingly, RECOMMENDED: That HRS revoke respondent's superior rating, until and unless respondent demonstrates its renewed eligibility for the same. DONE AND ENTERED this 9th day of January, 1989, in Tallahassee, Florida. ROBERT T. BENTON, II 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 9th day of January, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-2326 Petitioner's proposed findings of fact Nos. 1, 2, 12 and 13 have been adopted, in substance, insofar as material. Petitioner's proposed findings of fact Nos. 3, 4, 6, 7, 8, 9, 10, and 11, merely recite testimony. With respect to petitioner's proposed finding of fact No. 5, the infection control log was inaccurate, subparagraphs (c) and (e) are adopted; and the remaining parts of the proposed findings relate to subordinate matters. Petitioner's proposed finding of fact No. 14 has been adopted in part only. Respondent's proposed finding of fact No. 15 is a proposed conclusion of law. Respondent's proposed findings of fact Nos. 1, 2, 3, 4, 8, 10, 14, 16, 18, 23, 24 and 27 have been adopted, in substance, insofar as material. With respect to respondent's proposed finding of fact No. 5, a new infection control nurse began work. Respondent's proposed findings of fact Nos. 6, 7, 9, 11 (as to individualization) 12, 15, 19 (including secretion precautions) 22 and 26 have been rejected as against the weight of the evidence. Respondent's proposed finding of fact No. 13 merely recites testimony. With respect to respondent's proposed finding of fact No. 17, an HRS witness did cite the patient's opinion. With respect to respondent's proposed finding of fact No. 20, the infection control log was up to date, but inaccurate. Respondent's proposed finding of fact No. 21 is a proposed conclusion of law. Respondent's proposed finding of fact No. 25 relates to subordinate matters. COPIES FURNISHED: Frederick J. Simpson, Esquire Post Office Box 2417 Jacksonville, Florida 32230-0083 R. Bruce McKibben, Jr., Esquire Dempsey & Goldsmith, P.A. Post Office Box 10651 Tallahassee, Florida 32303 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 R. S. Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Suite 407 Tallahassee, Florida 32399-0700
Findings Of Fact FMCC's application is to provide a 102-bed long-term care nursing facility in Fort Myers, Florida, while AHC's and HSI's applications are to provide 120-bed long-term nursing care facilities. When each of these applications was presented to the south Central Florida Health Systems Council, Inc. (HSA), the application of FMCC was approved and forwarded to Respondent recommending approval and the other two applications were disapproved and so forwarded. The primary reason given by HSA for disapproving HSI's application was lack of firm financing and for disapproving AHC's application was cost of construction. Trained personnel to man the proposed facilities are in short supply in Lee County. Applicants' plans to import personnel, if necessary, from other parts of the country were supported by no evidence to indicate such personnel would be amenable to move to Lee County. All applications were disapproved by Respondent and each applicant requested a hearing which resulted in this consolidated hearing. At present there are 741 existing or approved long-term care nursing home beds in Lee County, Florida. A 120-bed facility at Cape Coral became operative in February, 1979 and a 60-bed addition to Beacon-Donegan Manor nursing home has also been approved. Prior to the opening of the newest 120-bed facility at Cape Coral, the occupancy rate for the other long-term care nursing homes was greater than 90 percent. Due to its recent opening, no evidence was presented as to the occupancy rate in Lee County following the opening of the Cape Coral facility. The population of Lee County in 1978 was 184,841 with 41,984 more than 65 years old, which is less than 23 percent of the population. This is in line with the population forecasts by the University of Florida and validates the estimated 1980 population figures which were used by all parties in submitting their applications. In 1978 Respondent proposed a State Health Plan which included a determination that the long-term care nursing home bed needs were 27 per 1,000 population greater than 65 years old. This determination was unacceptable to the Department of Health, Education and Welfare (HEW) whose decision is binding on Respondent. In refusing to accept this standard, HEW reaffirmed the requirement that the formula contained in the Hill-Burton Act be utilized in determining certificates of need. Following the Hill-Burton formula results in no additional long-term care nursing home beds needed in Lee County. Modification of the results produced by use of the Hill-Burton formula when extenuating and mitigating circumstances exist is authorized by the Florida Medical Facilities Plan. Accordingly, when use of Hill-Burton formula produces results contrary to obvious facts, such as a showing of no need for additional facilities when occupancy rates are high and long waiting lists for admission exists, these extenuating circumstances are considered and a finding of need is made. The parties stipulated that extenuating circumstances, notably the greater than 90 percent occupancy rate in nursing homes in 1977 and most of 1978 and the existing waiting lists created need for 100 to 120 additional beds. No evidence was presented establishing a need for more than 100-120 additional long-term care nursing home beds in Lee County. In fact, no evidence was presented showing the current occupancy rate, current waiting lists, or any other information not previously submitted to the Health Systems Agency was here presented other than the latest Census Report, which merely confirmed the accuracy of the forecasts. Even if the 27 beds per 1,000 population greater than 65 which was proposed by the South Central Florida Health Systems Agency were used to establish the number of beds needed, their limitation, that no more than 50 percent be added in the two-year planning period, would preclude approving more than one additional nursing home at this time. Absent evidence showing a need for more than one additional nursing home, the only issue remaining is which of the applicants is best qualified to provide the best service at the lowest cost for the stipulated need. HSI submitted proposed construction costs and patient charges in line with those submitted by FMCC. However, although their application states, and the Health Systems Agency apparently accepted, their allegation that an option to lease had been obtained on the property on which the proposed facility was to be erected, testimony at the hearing disclosed that only an oral agreement to lease the property had been obtained by HSI. An oral agreement affecting a long-term lease of real property comes within the Statute of Frauds and is unenforceable. This fact alone renders all cost estimates submitted by HSI suspect. Further, the financing proposed by HSI to construct the facility shows less than $200,000 equity capital available and a requirement to borrow $1,300,000. One ground noted by the Health Systems Agency for disapproving this application was the inadequacy of their financing. No evidence presented at this hearing contradicted this Health System Agency's finding. AHC operates some 50 nursing homes in 14 states with two nursing homes in the Orlando area. A certificate of need has been obtained for a third nursing home in Jacksonville. Florida Living Care, Inc., the parent corporation of FMCC, manages some 44 nursing homes and owns 25. It has certificates of need for 6 nursing homes in Florida, one of which is completed and in operation, while 3 are under construction. AHC proposes to finance 87 percent of the cost of the 120-bed project, or $2,160,000, in a 40-year loan at 8.5 percent interest. FMCC proposes to finance 80 percent of the cost of a 102-bed project, or $1,000,000, in a 25-year loan at 9.5 percent interest. Although no testimony regarding the current status of mortgage money was presented, it is recognized that interest rates are at historically high levels and that FMCC is more likely to get financing on the terms it proposed than is AHC on the terms the latter proposed. HSI proposed costs and charges result in average costs of $30.16 per patient per day. FMCC proposed costs and charges result in average costs of $30.96 per patient per day. AHC proposed costs and charges result in average costs of $34.40 per patient per day. No significant difference exists in the services proposed by each of the applicants. Savings from combined purchasing can result when numerous facilities are operated. Both AHC and FMCC are in a better position in this regard than is HSI. Additional savings in group food purchasing can result when facilities are within 200 miles of each other. The facilities FMCC's parent corporation is opening in Sebring and Port Charlotte are close enough to Fort Myers to allow group food purchasing for these facilities. AHC's construction costs are approximately 50 percent higher per bed than are the costs submitted by FMCC and HSI. This factor must result in higher charges to amortize these higher construction costs.
