The Issue Whether Respondent committed the offenses described in the Administrative Complaint? If so, what disciplinary action should be taken against her?
Findings Of Fact Based upon the record evidence, the following Findings of Fact are made: Respondent began her nursing career in the State of Indiana in 1968. She is now, and has been since July 14, 1972, licensed as a registered nurse in the State of Florida. She currently holds license number RN 60839-2, which expires April 30, 1993. In July, 1990, Respondent was employed by the All-Star Nursing Agency, an agency used by Larkin General Hospital (Larkin), a small community hospital located in Dade County, Florida. The chain of command for nursing personnel at Larkin is as follows: nurse; charge nurse; head nurse; nursing supervisor; nursing director; and administrator. During a four-day period concluding on July 17, 1990, Respondent was assigned to the intensive care/coronary unit (ICU) at Larkin. She worked the 11:00 p.m. to 7:00 a.m. shift. Among the patients in Larkin's ICU during the period of Respondent's assignment was a 16-year old, critically ill girl. The girl's condition, which had deteriorated during her stay at the hospital, was a major concern of the nurses assigned to the unit. Respondent and the other nurses on her shift, including the charge nurse, discussed the plight of this young patient. The consensus of opinion was that the patient would be better off in a facility, such as Miami Children's Hospital or Jackson Memorial Hospital, that offered specialized pediatric services not available at Larkin. 1/ Respondent was led to believe during these discussions that the patient could not be transferred to such a facility because no beds were available. At no time was Respondent assigned the primary care of this 16-year old patient; however, at around 3:00 a.m. on July 17, 1990, after the patient had suffered a grand mal seizure, the assigned nurse asked Respondent for her assistance. For the remainder of her shift that day, pursuant to the assigned nurse's request, Respondent assisted in caring for the patient. It is not uncommon for a nurse to render such assistance at the request of a colleague. Following the completion of her shift on July 17, 1990, Respondent went home. Although she was off-duty, her thoughts centered around the young patient she had helped care for earlier that morning. After getting some sleep, Respondent made a couple of telephone calls from her home. First, she telephoned Miami Children's Hospital and, without giving her name or the name of the patient, asked if there were any vacant beds in its pediatric intensive care unit. The person to whom she spoke advised her that no such beds were available. Respondent then called a friend who was a resident at Jackson Memorial Hospital (Jackson). Respondent asked the friend what procedure needed to be followed in order for a patient to be transferred to Jackson. After the friend explained the procedure to her, Respondent thanked him and hung up. Shortly thereafter, the friend called back to ask Respondent if she needed a bed at Jackson for one of her patients. Respondent indicated that she was "not able to comment on that" and the conversation ended. Later that same day, Respondent telephoned Larkin and spoke with Randy Dickson, the nursing supervisor on duty, and inquired about the young patient's condition. Dickson responded that there had not been any significant change in the condition of the patient. During her conversation with Dickson, Respondent expressed her view that the patient should be transferred from Larkin to another hospital. After speaking with Dickson, Respondent telephoned Dr. Ira Bloomfield, the patient's attending physician at Larkin. Respondent asked Bloomfield if he had been advised that his patient had suffered a grand mal seizure earlier that day. Bloomfield answered in the affirmative and told Respondent that the matter was under control. Respondent then raised the issue of the patient's transfer to another hospital. She told Bloomfield that she and the other nurses thought that such a transfer would be in the best interests of the patient. Furthermore, she offered to do what she could, including speaking with the Dade County State Attorney, Janet Reno, to assist Bloomfield in effectuating such a transfer if he needed such assistance. Later that same day, Respondent had another telephone conversation with Bloomfield. During this second telephone conversation, Respondent told Bloomfield that she had contacted Janet Reno and that he could do the same if he had a problem finding a suitable facility with an available bed for his patient. At no time did Respondent tell Dickson or Bloomfield that she had made arrangements to have the patient transferred. In fact, she had made no such arrangements. Respondent fully recognized that she was without authority to initiate the transfer of the patient and that a physician's order from Bloomfield was necessary for such a transfer to occur. Her purpose in speaking with Bloomfield was to provide him with information that he would be able to use in deciding whether to issue such a transfer order. 2/ Respondent believed that it was important for Bloomfield to know that, if he wanted to transfer the patient to a facility like Jackson, a bed could be made available for that purpose. She therefore took it upon herself to convey this information to Bloomfield. Although Respondent was attempting to be helpful, her efforts were not appreciated by Bloomfield. It was his belief that Respondent's intervention in the matter was inappropriate. Accordingly, he contacted Lynda Plummer, Larkin's Director of Nursing, to complain about Respondent. Plummer responded to Bloomfield's complaint by contacting Respondent's nursing agency and requesting that Respondent not be assigned to work at Larkin anymore. The agency complied with Plummer's request. Respondent did not work at Larkin after the end of her shift on July 17, 1990. Nonetheless, Respondent remained interested in the patient's progress. She called Larkin on various occasions subsequent to July 17, 1990, to find out about the patient's condition. She expected to obtain such information from the switchboard operator at the hospital, who usually answers such inquiries. Respondent's calls, however, were routed either to an ICU staff member or to Plummer or another supervisor, notwithstanding that Respondent did not ask to speak with anyone other than the switchboard operator. On at least one occasion, when Respondent's call was transferred to Plummer, Respondent sought to engage Plummer in a discussion regarding the care the patient was receiving. Plummer declined to partake in such a discussion. During a subsequent telephone conversation with Respondent, Plummer, who had been informed by her staff of the previous phone calls that Respondent had made to the hospital, told Respondent that her phone calls were disruptive to patient care and that they should therefore stop. Plummer instructed her nursing staff, if they received a telephone call from Respondent, to tell Respondent that she should not make any further inquiries regarding the patient. Bloomfield never ordered the transfer of the patient. The patient therefore remained at Larkin.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Board of Nursing enter a final order (1) finding the evidence insufficient to establish that Respondent engaged in "unprofessional conduct," within the meaning of Section 464.018(1)(h), Florida Statutes, as charged in the instant Administrative Complaint, and (2) dismissing said Administrative Complaint in its entirety. RECOMMENDED in Tallahassee, Leon County, Florida, this 19th day of September, 1991. STUART M. LERNER 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 19th day of September, 1991.
Findings Of Fact Respondent is a skilled nursing home facility located in Blountstown, Florida, and is licensed by HRS. During a routine survey (inspection) of Apalachicola Valley Nursing Center on January 7-8, 1980, a staffing analysis revealed that for the three weeks prior to the survey, Respondent was short one licensed nurse on the night shift (11:00 p.m. to 7:00 a.m.) for this 21-day period. During the entire period here involved, the adjusted average census of the Respondent was over 60 patients. At the time of this survey, Petitioner's policy was not to cite staff shortages as deficiencies on HRS Form 553D unless they affected patient care or there was a deficiency in patient care to which a staff shortage could relate. At all times here relevant, Mrs. Margaret Z. Brock was Administrator and part-owner of the Respondent. Following the January 7-8, 1980 survey, the results were discussed with Mrs. Brock. The head of the survey team advised Mrs. Brock of HRS' policy on staff shortages which did not affect patient care. As a result of unfavorable publicity regarding HRS' laxness in enforcing regulations involving medical facilities, by memorandum dated January 10, 1980 (Exhibit 2), HRS changed the policy on staff shortages which did not affect patient care. This change directed all staff shortages to be noted on the inspection report (Form 553D), which would thereby require action by the facility to correct. It further provided that all such shortages be corrected within 72 hours and if not corrected within the time specified, administrative action against the facility would be taken. By letter dated January 15, 1980, Mrs. Brock was forwarded the survey report containing the deficiency relating to the shortage of one LPN on the night shift during the three-week period prior to the survey. A follow-up visit was made to the Respondent on February 21, 1980, at which time it was noted that the LPN shortage on the night shift remained uncorrected. By letter dated February 27, 1980 (Exhibit 3), Mrs. Brock was advised of this finding and the accompanying Form 553D stated that the deficiency was referred for administrative action. This resulted in the Administrative Complaint in Docket No. 80-1443. A second follow-up visit was made on March 25, 1980, at which time it was noted that the LPN shortage on the 11:00 p.m. to 7:00 a.m. shift was still uncorrected. By letter dated April 1, 1980 (Exhibit 4), Mrs. Brock was advised of this finding and the accompanying Form 553D indicates that the deficiency is again being referred for administrative action. This resulted in the Administrative Complaint in Docket No. 80-1444. There is a shortage of nurses, both registered and licensed practical, nationwide, as well as in the panhandle of Florida. This shortage is worse in smaller towns and rural areas than in more metropolitan areas. Respondent is located in a rural area. Respondent has encouraged and assisted potential employees to attend the LPN courses given in nearby technical schools. One of these enrollees is currently working for Respondent. Respondent has advertised in newspapers for additional nursing personnel and has offered bonuses to present employees if they can recruit a nurse to work for Respondent. Other hospitals and nursing homes in the panhandle experience difficulties in hiring the number of nurses they would like to have on their staff. All of those medical facilities, whose representatives testified in these proceedings, have difficulty employing as many nurses as they feel they need. The LPN shortage is worse than the RN shortage. None of these medical facilities, whose representatives testified to the nurse shortage, except Respondent, was unable to meet the minimum staffing requirements of HRS although they sometimes had to shift schedules to meet the prescribed staffing. Respondent has found it more difficult to keep nurses on the 11:00 p.m. to 7:00 a.m. shift than other shifts, particularly if these employees are married or have families. Because of this staffing shortage, on July 18, 1980, a moratorium was placed on Respondent's admitting additional patients. This moratorium was lifted presumably after Respondent met the prescribed staffing requirements by employing a second nurse for the 11:00 p.m. to 7:00 a.m. shift. Failure to meet minimum staffing requirements is considered by Petitioner to constitute a Class III deficiency.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Administrative Complaint in Docket No. 80-1443 be dismissed. It is further recommended that for failure to comply with the minimum staffing requirements after February 21, 1980, Respondent be fined $500.00. DONE and ENTERED this 7th day of November, 1980, at Tallahassee, Florida. K. N. AYERS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of November, 1980. COPIES FURNISHED: John L. Pearce, Esquire HRS District 2 Legal Office Suite 200-A 2639 North Monroe Street Tallahassee, FL 32303 Stephen D. Milbrath, Esquire Dempsey & Slaughter Suite 610, Eola Office Center 605 E. Robinson Street Orlando, FL 32801
The Issue The issue for consideration in this case is whether Respondent’s license to operate a nursing home should be disciplined because of the matters alleged in the Administrative Complaint filed herein, and whether the license issued to Respondent on October 1, 1995 should be conditional or standard.
Findings Of Fact At all times pertinent to the issues herein, the Agency for Health Care Administration, (Agency), was the governmental agency responsible for licensing and regulating the operation of nursing homes in Florida. Respondent operated a licensed nursing home known as Manhattan Convalescent Center, in Tampa. Consistent with its responsibility to conduct surveys (inspections) of nursing homes in this state, on June 16, 1995, the Agency conducted a complaint survey of the Respondent’s facility during which it noted a deficiency in staffing. This related to the surveyor’s determination that on May 22, 27, and 28, and on June 2, 3 and 6, 1995, there was “an underage of the state minimum CNA staffing requirements”. No citation was given for any violation of a state rule in this regard, nor was there any reference to a violation of state regulation. In addition, the matter was not noted as a “class” deficiency for state purposes under the provisions of Section 400.23, Florida Statutes. CNA’s, Certified Nursing Assistants, are answerable to nurses. Registered nurses, (RN’s), licensed practical nurses, (LPNs), and CNAs together constitute the nursing staff, which is responsible for direct resident care in a facility such as operated here by Respondent. All members of the nursing staff, regardless of classification, are responsible for hands-on resident care, such as bathing and feeding, and these duties are a part of the job description of not only CNAs but LPNs and RNs as well. The difference is that LPNs and RNs, depending on certification, are trained and authorized to provide additional, skilled care which a CNA is neither trained nor authorized to do. In other words, though a CNA can perform those functions which she or he is trained and licensed to do, a nurse, LPN or RN, can do and does those things within her or his training and certification which includes those things done by nurses lower on the scale. Nurses, either RNs or LPNs, employed at Manhattan are advised and understand that they are to perform CNA duties and cover for CNAs if a CNA does not come to work. If a nurse refuses or resists doing CNA work for any reason, the nurse is asked to leave the building. The Agency by rule has set a minimum level of CNAs per patient in nursing homes. The total number of CNAs required is figured by using a formula which multiplies the patient census for the day times 1.7 and divides the result by 7.5, the number of hours per shift worked by a CNA at Manhattan. The result is the number of CNAs required to be on duty on any given day. On July 31 and August 1, 1995, Elke Johnson, an RN specialist surveyor for the Agency, visited Manhattan for the purpose of following up on the complaint survey conducted in June, 1995. One of the allegations in the complaint was that patients were not being cared for. Ms. Johnson found this allegation to be unconfirmed. Nevertheless, as a part of the inspection, Ms. Johnson looked at the personnel records regarding CNA staffing for the two week period from June 16 through June 29, 1995 and did the calculation according to the cited formula for four days out of the 14. On all four days, she noted a shortage of CNAs. On July 15, 1995, there were 32 CNAs versus 38 required by patient census; 35 versus 38 on July 17, 1995; 35 versus 37 on July 22, 1995; and 25 versus 36 on July 23, 1995. When Ms. Johnson spoke about this finding with Manhattan’s director of nursing or assistant director of nursing, she was told that Manhattan was using licensed nurses, RNs or LPNs, to fill in for CNAs. The Agency claims that the director of nursing, Ms. Buble, stated that if licensed nurses were scheduled to do CNA work, that individual would be listed on the daily assignment sheet as a CNA so that the licensed nurse could receive assignments as a CNA. According to Ms. Johnson, however, even with the substitutions, there was still a shortage which Ms. Johnson classified as a deficiency. The Agency’s rule does not specifically provide for the use of RNs or LPNs in place of CNAs, but Ms. Johnson considered such a substitution to be appropriate. Accepting that, however, as was noted previously, Ms. Johnson still noted a deficiency in numbers. Though Ms. Johnson did not participate in the December 1995 follow-up inspection, on her visit to the facility in April 1996, she found the staffing deficiency had been cleared and no violations existed at that time. Two complaints involving staffing in September and November 1995 caused a reinspection of the facility by Susanne Emond of the Agency on December 5, 1995. Ms. Emond worked with the director of nursing, Ms. Buble, the entire day and went over the patient census sheets with her as well as the assignment sheets. At that time the documents provided by Manhattan reflected that it was required to have 37 CNAs on duty each day between September 12 through September 16, 1995, but in reality had only 32.5 CNAs on duty on September 12; 32 on September 13; 32 on September 14; 34 on September 15 and 32 on September 16, 1995. In addition, Manhattan was required to have more than 35 CNAs on duty each day between November 9 through 12, 1995 but had only 27.5, 28, 30 and 32.5 on November 9, 10, 11 and 12, 1995, respectively. As was previously stated, the determination of a CNA shortage was based upon a consideration of numbers generated by the surveyor in consultation with the then director of nursing, Ms. Buble. The compilation by Ms. Buble was made utilizing only the assignment sheets, and did not consider any extra hours which were worked by on-duty personnel which was reflected on the sign- in sheets, rather than the assignment sheets. Respondent claims, therefore, that the documentation provided to the surveyor by Ms. Buble was not accurate. Gary Janovsky is a RN specialist with the Agency who inspected Manhattan on June 16, 1995. During the course of his visit he checked the staffing levels relating to CNAs for May 22,27 and 28, and June 2,3 and 6, 1995, and using the appropriate formula as applied to the sign-in sheets provided by the Respondent, concluded there was a shortage on all six days whether one considered an 8 hour shift or a 7.5 hours shift. Jerry Alfieri has been the director of nursing at Manhattan since March 23, 1996 and was in place there during the follow-up inspections. He has worked as a director of nursing in a nursing home for 4 years. Before he got to Manhattan it was Respondent’s policy to heavily overstaff with licensed nurses to make up for shortages of CNAs, of which there is a shortage in the area. When he took over as director of nursing, he reviewed all staffing records from January 1995 up to date and found an adequate number of CNAs were hired and assigned, but from time to time, there was an attendance problem with that category of employee. It got so bad that at times, up to 10 CNAs per day would call in to be absent, and when this would happen, he would assign LPNs or RNs to CNA duties. He contends this was not made clear to the surveyors. Mr. Alfieri believes this is now clear to the Agency and his office is following the same procedure now, without problem, and was being followed at the time of the surveys which resulted in the filing of deficiencies. Mr. Alfieri reviews his staffing figures on a daily basis looking at hours worked, not bodies. When that procedure is followed, one sees that on May 22, 1995, Manhattan was 139.1 hours over requirement and, he believes, a review of every day in issue but one, July 23, 1995, will show an overage of hours for the facility. On that day, Manhattan was 21 hours low, a shortage of 3%. Mr. Alfieri takes the position not that the number of CNAs on duty was up to the Agency’s standard, but that adequate nursing hours were provided to meet the requirement, and there was no complaint sustained regarding a lack of patient care. In September 1995, for example a listing by date of nursing hours over standard shows: 9/12 103 9/13 36 9/14 77 9/15 15 11/9 93 11/10 201 11/11 4.7 11/12 27.92 It should be noted that on November 11, 1996, though 6 CNAs called in absent, Manhattan still had 4.7 hours of nursing care over standard. According to Mr. Alfieri, licensed nurses at Manhattan are assigned a certain set of patients and they are to insure that those patients get whatever care is necessary. If a CNA can do a procedure, its done by a CNA, or by a licensed nurse if a CNA is not available. That statement is confirmed by Robin Grab, nurse manager of station 1 (the Medicare unit of 42 beds) at Manhattan for 6 years. She has been an LPN for more than 19 years. According to Ms. Grab, from time to time CNAs call in absent, and when this happens, the licensed nurses do rounds and assist in doing whatever is needed to provide patient care. It is a part of their job duties and if a licensed nurse refuses to do anything asked, that individual is asked to leave. As a result, RNs and LPNs regularly assist and are involved in activities of daily living, (ADL), and answering call lights. If a licensed nurse has to do CNA work, the nurse is so told. When a shortage of CNAs appears imminent, an attempt is made to call in more CNAs, but, if necessary, RNs and LPNs are called in to fill vacancies of CNAs. When William Scheller, Manhattan’s administrator, first came to the facility he was made aware of the inadequate number of CNAs. To correct this, he started the practice of using licensed nurses to make up the shortage. He also hired additional licensed staff to make up for call-outs, paid bonuses and recruited staff from other facilities. Manhattan pays its nurses and CNAs competitive wages. At no time has it ever intentionally understaffed with CNAs. To do so does not make sense because it costs more for licensed nurses than for CNAs. He insures that licensed personnel perform CNA duties when required by personal checks by him and his staff. Unit managers are responsible to insure that patients get adequate care and if staff is insufficient, they try to bring in additional people. The documentation used to record nursing staffing was changed in early 1996 to conform to Agency direction as to how it should be done. These documentation changes did not change coverage practices, however, as those practices were, he contends, up to standard all along.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Agency for Health Care Administration enter a final order finding that Respondent did not fail to meet staffing requirements sufficient to ensure each resident maintained his or her highest practicable level of well- being, but that it did fail to have an average of 1.7 hours of certified nursing assistant time for each resident during at least eight 24 hour periods, and assessing an administrative fine of $250.00. It is further recommended that the Agency correct its records to reflect Respondent’s entitlement to a standard license rating effective October 1, 1995. DONE and ENTERED this 12th day of March, 1997, in Tallahassee, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 12th day of March, 1997. COPIES FURNISHED: Thomas W. Caufman, Esquire Agency for Health Care Administration 7827 North Dale Mabry Highway Tampa, Florida 33614 Donna H. Stinson, Esquire Broad and Cassel 215 S. Monroe Street, Suite 400 Post Office Drawer 11300 Tallahassee, Florida 32302 Sam Power Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308 Jerome W. Hoffman General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32309
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: East Pasco Medical Center (EPMC) is a non-profit 85-bed acute care hospital facility located in the East Pasco subdistrict of HRS District V. There are only two hospitals in the subdistrict -- EPMC in Zephyrhills and Humana in Dade City, which is approximately ten miles north. Humana is a 120- bed acute care hospital facility. Both facilities offer the same services and share the same medical staff. On or about September 17, 1987, EPMC submitted an application for a Certificate of Need to add 35 medical/surgical beds via a fourth floor addition to its existing facility. Its existing 85 beds are located in private rooms, and it is proposed that the additional 35 beds will also be placed in separate rooms. The application submitted to the Department of Health and Rehabilitative Services (HRS) projected a total project cost of $4,531,000. This figure was revised at the hearing to a project cost of $2,302,900. With regard to acute care services, the State Health Plan seeks to assure geographic accessibility. All residents of East Pasco County currently have access to acute care hospital services within the travel times suggested by the State plan. The State Health Plan also seeks to promote the efficient utilization of acute care services by attaining an average annual occupancy rate of at least 80 percent. The District V Local Health Plan emphasizes that additions to inpatient acute care beds in a subdistrict should not be considered unless a numeric bed need is shown and certain occupancy thresholds have been met. The recommended occupancy thresholds for medical/surgical beds are 80% for the subdistrict and 90% for the facility seeking to add beds. Application of the bed need methodology contained in HRS's Rule 10- 5.011(1)(m), Florida Administrative Code, indicates a numeric need for 57 additional acute care medical/surgical beds in the East Pasco subdistrict for the planning horizon period of July, 1992. The rule provides that HRS will "not normally approve" additional beds unless average occupancy in the subdistrict is greater than 75 percent. However, the rule permits HRS to award additional beds when there is a calculated need, notwithstanding low occupancy in the subdistrict, if the applicant had a minimum of 75% average occupancy during the 12 months ending 14 months prior to the Letter of Intent. Rule 10- 5.011(1)(m)7.e., Florida Administrative Code. The rule also permits HRS to award additional beds where the calculated numeric need substantially exceeds the number of existing and approved beds in the subdistrict and there is an access problem related to travel time. For the relevant time period, the acute care occupancy rate for the East Pasco subdistrict was below 75% percent. Indeed, over the past few years, the average occupancy rate in that subdistrict has been 54 to 58 percent. Humana only operates at about a 55% occupancy. The East Pasco subdistrict does experience seasonal fluctuations in medical/surgical occupancy, with the season for high occupancy beginning in late October and ending in mid- to late April. In addition to tourists, it is expected that the revival of the citrus industry in East Pasco County will bring more migrant pickers to the area during the peak season months. The seasonal increase in occupancy directly corresponds with a large increase in seasonal population, particularly in the Zephyrhills area. The Zephyrhills area population is much older than the Dade City population and is also much older than the State average. The HRS acute care bed need rule includes considerations of seasonal peak demands. When considering both hospitals in the subdistrict, there has been a decline in peak seasonal occupancy rates over the past few years. While the population of the East Pasco subdistrict has grown, and is expected to increase by approximately 7,200 in 1992, there is a trend of declining utilization in the subdistrict. This decline is due to increased used of outpatient services and shorter lengths of hospital stay attributable to the current reimbursement system. The medical/surgical use rate fell from 454 patient days per 1,000 population in 1986 to 414 patient days per 1,000 population in 1988. There was a similar decline in the acute care use rate. Assuming a constant medical/surgical use rate, the projected demand for 1992 would be 2,980 additional medical/surgical patient days in the subdistrict according to population projections, and about 4,267 incremental patient days according to local health council projections. EPMC's Letter of Intent to add 35 additional beds was filed in mid- July, 1987. Its acute care occupancy rate for the period of April, 1986 through March, 1987 was 75.3 percent. Occupancy at EPMC from May, 1986 to April, 1987 was 73.6%; occupancy from June, 1986 through May, 1987 was 73%; and occupancy from July, 1986 to June, 1987 was 72.2 percent. EPMC does experience periods of high occupancy during the peak season months. High occupancy levels have a greater impact upon smaller hospitals due to their lesser degree of flexibility. On occasion, during the winter months, EPNC is required to refuse admittance to patients due to crowded conditions within its facility. Patients are sometimes transferred or referred to other facilities, including Humana, although the necessity for such transfers or referrals is occasionally due to a lack of intensive or critical care beds as opposed to a lack of medical/surgical beds. During the periods of time when EPMC had high occupancy levels, beds were available at Humana. EPMC's current payor mix includes a high level of Medicare (over 60%), and it is committed, through both its Christian mission and an agreement with the County, to treat indigent and Medicaid patients. The actual amount of indigent or charity care provided by EPNC was not established. In any event, EPMC desires to increase its bed size in order to help maintain a proper payor mix at the hospital so as to ensure the financial survival of the hospital. It is felt that a greater number of beds, given the rise in population, and particularly elderly population, would allow EPNC to serve a greater number of private and/or third party insurance paying patients. While the evidence demonstrates that EPMC may operate with a less favorable payor mix than Humana, the evidence was not sufficient to demonstrate that EPMC will suffer financial ruin without additional beds. Likewise, it was not established that the patients which EPNC must turn away in the winter months are consistently paying patients. Increasing the number of beds at EPNC to 120 beds does not necessarily mean that its profitability would be improved. Volume and payor mix are the most critical factors in determining whether a hospital will be profitable. There is currently a nursing shortage throughout the nation. Rural areas, such as the eastern portion of Pasco County, experience even greater difficulty in attracting nursing personnel to the area. Due to the shortage of nurses, as well as the seasonal demand, EPMC is required to use contract care nurses throughout the year. While it would prefer to employ its own nursing staff, EPMC will use contract staff due to the seasonal variations in its nursing requirements. The use of contract or registry nurses costs 50% to 60% more on a daily basis; however, lower occupancy during the off-peak months does not justify year- round employment for as large an in-house nursing staff. For its proposed 35 beds, EPMC projects nurse manpower requirements as follows: 1 nurse manager, 4.2 R.N. charge nurses, 15.1 R.N. staff and 14.1 L.P.N. staff, for a total of 34.4 full time equivalent nursing positions. The recruiting efforts of EPNC to fill these positions will include advertising, visiting nursing schools and colleges, utilizing student nurses at the hospital and use of the Adventist Health System international network. Humana currently has 15 vacancies, or 12 to 13% of its nursing staff. Humana's nursing salaries have increased 20% over the past eighteen months. As noted above, EPNC and Humana compete for the same nursing personnel. Humana's personnel director believes that if EPNC increases its nursing staff by 34 FTEs, Humana's nursing staff will be approached to fill those positions. As a consequence, Humana will experience additional nursing shortages and will be required to further increase salaries. It is proposed that the project cost of adding 35 beds to EPMC will be financed with 100% debt financing through a bond issue. The financing will be part of a much larger bond issuance intended to finance several other projects within the Adventist hospital system. No evidence was adduced that such a bond issuance had been prepared or approved, and there was no evidence concerning the other projects which would be financed in conjunction with this project. In 1987, EPNC was carrying about five million dollars of negative equity. The hospital is currently greater than 100% financed. As noted above, the original Certificate of Need application filed with HRS listed the total project cost to be $4,531,000. In its response to omissions, EPMC stated that the construction cost would be $175 per square foot. In the updates submitted at the hearing, EPNC proposed a project cost of $2,302,900, which included a construction cost of $85 per square foot. A more reasonable cost for the addition of a floor to an existing facility would be $125 per square foot, plus an inflation factor of 6% and architectural and engineering fees of 6 to 7%. The proposed equipment list submitted by EPNC fails to include major equipment items such as an overhead paging system, a nurse call system, examination room equipment, medication distribution equipment, bed curtains, shower curtains, patient and staff support lounge items, and IV pumps. EPNC's updated equipment cost budget fails to include tax, freight, contingency and installation costs. The projected equipment costs should be tripled to adequately and reasonably equip a 35-bed nursing unit. The projected utilization and pro formas submitted by EPMC are not reasonable and were not supported by competent substantial evidence. EPMC's projected utilization for the proposed 35-bed unit is 8,950 patient days in the first year of operation and 9,580 in the second year of operation. Applying the current use rate to the population projections submitted by EPMC's expert in demographics and population projections produces only about 2,980 additional patient days in the year 1992. Given the fact that EPMC's current market share is approximately 54%, there is no reason to believe that Humana would not absorb at least some of those projected additional patient days. There are many months of the year in which additional patient days could be filled within the existing complement of 85 beds at EPNC. Depending upon the ultimate cost of the project, the break even point for financial feasibility purposes would be approximately 3,500 to 4,000 patient days. The concept behind a pro forma is to develop a financial picture of what operations will be in the first two years of operation. EPMC stated its revenues and expenses in terms of 1988 dollars and used its current revenue- to-expense ratios for projecting operations four years into the future. This is improper because gross revenues are going up, reimbursement is not increasing as rapidly and expenses, particularly salaries and insurance, are increasing. In addition, EPMC's projected 1992 salaries in several categories were less than they are currently paying for such positions. EPMC currently provides good quality of care to its patients. The only future concern in this realm is the fact that in the winter months, its intensive and critical care unit beds are often full and there is no room for additional patients. Additional medical/surgical volume from the proposed 35- bed unit would lead to additional intensive and critical care bed demand.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the application of East Pasco Medical Center for a Certificate of Need to add 35 acute care beds to its existing facility be DENIED. Respectfully submitted and entered this 30 day of March, 1989, in Tallahassee, Florida. DIANE D. TREMOR 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 30th day of March, 1989. APPENDIX TO RECOMMENDED ORDER CASE NO. (Case No. 88-1227) The proposed findings of fact submitted by the parties have been carefully considered and are accepted, incorporated and/or summarized in this Recommended Order, with the following exceptions: Petitioner: Third sentence rejected as not established by competent, substantial evidence. Accepted, but not included as irrelevant to the ultimate resolution of the issues. Rejected. The Personnel Director of Humana presented testimony in this proceeding. Accepted as an accurate restatement of testimony, but rejected as an erroneous conclusion of law. 16. Second sentence rejected as an erroneous conclusion of law. A18. Rejected as contrary to the evidence. 20. First sentence rejected as an erroneous conclusion of law. First sentence rejected as an erroneous conclusion of law. Rejected as not supported by competent substantial evidence. 27 and 30. Accepted as an accurate restatement of testimony, but rejected as an erroneous conclusion of law. Rejected as immaterial to the issue of need in the year 1992. First sentence rejected as not established by competent substantial evidence. First and third sentences rejected as not established by competent substantial evidence. 37 and 38. Rejected as not established by competent substantial evidence. 44. Last sentence rejected as unsupported by competent substantial evidence. Accepted only if the factors of volume and payor mix are also considered. Partially rejected as speculative and not supported by competent substantial evidence. All but first two sentences rejected as unsupported by competent substantial evidence and an erroneous conclusion of law. Rejected as unsupported by competent substantial evidence and an erroneous conclusion of law. Last sentence rejected as unsupported by the evidence. Rejected as unsupported by competent substantial evidence. Second sentence rejected as contrary to the greater weight of the evidence. 58. Rejected as irrelevant and immaterial. 60. Rejected as not established by competent substantial evidence. 62 - 67. The actual figures regarding total costs, projected utilization and those figures utilized in the pro formas were not established by competent substantial evidence and, therefore, the findings regarding the financial feasibility of the project are rejected. 71. Rejected as not supported by competent substantial evidence. 74. Rejected as not supported by competent substantial evidence. 77. Rejected as an improper factual finding and contrary to the evidence. 78 and 79. Rejected as contrary to the greater weight of the evidence. First sentence rejected as unsupported by competent substantial evidence. Last sentence rejected as unsupported by the evidence. Rejected as contrary to the evidence. Respondent: 2 and 6. Partially accepted with the additional considerations of the applicant's occupancy levels and geographic accessibility. 9. Rejected as contrary to the evidence. 19(a) Interpretation of rule not sufficiently explicated at hearing. 56 - 58. Actual figures are not established by competent evidence due to the failure to establish with reliability the total costs of the project. Intervenor: Second sentence accepted with the additional considerations of the applicant's occupancy levels and geographic accessibility. Third sentence rejected. Interpretation of rule not sufficiently explicated at hearing. First sentence rejected, but this does not preclude a consideration of such a period. Third sentence rejected as not established by the greater weight of the evidence. 31. Second sentence rejected as speculative. 40 and 41. Accepted as factually correct, but not included due to the showing of unused capacity within the East Pasco subdistrict. 55 and 56. Actual figures are not established by competent evidence due to the failure to establish with reliability the total costs of the project. 63 and 72. Same as above with regard to second sentence. 92. Rejected as an overbroad statement or conclusion. 97. Second sentence rejected as overbroad and not supported by the evidence. COPIES FURNISHED: E.G. Boone and Jeffrey Boone 1001 Avenida del Circo Post Office Box 1596 Venice, Florida 34284 Stephen M. Presnell Macfarlane, Ferguson, Allison & Kelly Post Office Box 82 Tallahassee, Florida 323a2 James C. Hauser Messer, Vickers, Caparello, French & Madsen, P.A. Post Office Box 1876 Tallahassee, Florida 32302 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue is whether the Inverrary Retirement Center should be fined $500.00 for violation of Rule 10A-5.19(5), Florida Administrative Code, as it existed on January 16, 1986?
Findings Of Fact The Inverrary Retirement Center is an adult congregate living facility licensed under Chapter 400, Florida Statutes. Verna Smith is a certified nursing assistant who was employed by the Inverrary Retirement Center on January 16, 1986. At 4:00 A.M. on that day, Smith found resident A.P. sleeping on the floor in his room. Mr. A.P. was a 75 year old amputee with diabetes and a heart condition which required that he use a pacemaker. Ms. Smith spoke to him, requested that he return to bed, but he refused. Mr. A.P. engaged in unusual conduct because he wished to life at home with his wife, who was no longer able to care for his needs. Mr. A.P. thought that if he were difficult, the Inverrary Retirement Center might ask that he leave, which would allow him to return home. When Ms. Smith found Mr. A.P. on the floor he was not in obvious distress and offered no complaints. Ms. Smith did not lift Mr. A.P. off the floor and return him to his bed because she was alone during that shift and was not able to lift him. She did not check Mr. A.P.'s pulse or respiration or contact her supervisor. Ms. Smith held a nursing assistant certificate issued by the Florida Department of Education, certificate number 0585-589329565. At about 6:30 A.M., Ms. Smith was preparing to dress Mr. A.P., but he found him unresponsive. The day nursing shift arrived at about 6:45 and Ms. Lorna Paisley was called by Ms. Smith. Ms. Paisley checked Mr. A.P. and found neither respiration nor pulse. Ms. Paisley called the emergency medical services team at 6:55 A.M., which arrived at 6:58 A.M. When the EMS personnel arrived, 15 to 20 minutes had elapsed since Ms. Paisley had begun her shift. The EMS team found that Mr. A.P. was dead and obviously had been dead for some time. Ultimately, Ms. Smith was fired for not handling the matter in accordance with institutional policies. After she was fired, Inverrary Retirement Center obtained proof that Smith had a current Department of Education certification as a nursing assistant while she was employed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Administrative Complaint against Retirement Center of America, Inc., doing business as Inverrary Retirement Center be DISMISSED. DONE AND ORDERED this day of April, 1987, in Tallahassee, Florida. WILLIAM H. DORSEY 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 22nd day of April, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4718M The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes (1985), on the proposed findings of fact submitted by the parties. Rulings on Proposed Findings of Fact Submitted by Petitioner Sentence 1, rejected as a statement of issues. Sentence 2, covered in Finding of Fact 6. That Ms. Smith was fired is covered in Finding of Fact 7, and the remainder of that proposal constitutes an inference which is rejected. Sentence 1, covered in Finding of Fact 2. Sentences 2-4, rejected as unnecessary. Covered in Finding of Fact 6. Rejected as argument, not a finding of fact. Rejected as unnecessary. Sentence 1, rejected as unnecessary. Sentences 2-4, covered in Finding of Fact 6. Sentence 5, rejected as unnecessary. That Vera Smith was the only employee on duty is covered in Finding of Fact 4, along with the reason Mr. A.P. was not lifted to his bed. The remainder is rejected as unnecessary. Rejected as unnecessary. Covered in Finding of Fact 7. Rulings on Proposed Findings of Fact Submitted by Respondent Covered in Finding of Fact 1. Covered in Finding of Fact 1. 3(a) Sentences 1 and 2, covered in Findings of Fact 2 and 3. Sentence 3, covered in Finding of Fact 4. Sentences 4-6, covered in Finding of Fact 6. 3(b). Sentence 1, rejected because only Vera Smith was on duty at 4:00 a.m. on January 16, 1986. Her certification by the Department of Education, however, was sufficient to meet staffing standards prescribed by HRS rule. No finding is made with respect to Ms. Paisley's certification because it is irrelevant. COPIES FURNISHED: Leonard T. Helfand, Esquire Department of Health and Rehabilitative Services 5190 North West 167th Street Miami, Florida 33014 Dr. Martin Marenus 5811 North West 28th Street Lauderhill, Florida 33313 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact At all times material hereto, Anthony Martin, Respondent, has been a licensed practical nurse with license number PN 0727851 whose last known address is 4041C N.W. 16th Street, Apartment 109, Fort Lauderdale, Florida 33313. Respondent was contacted at said address by an investigator employed by Petitioner in May, 1984 and he has not notified Petitioner of any change of address. Although notice of the final hearing was duly sent to Respondent at his last known address, he did not appear. Respondent was employed at St. John's Nursing and Rehabilitation Center as a licensed practical nurse from November 30, 1983 until March 8, 1984. During the course of his employment on January 9, 1984 Respondent received a warning notice and a one-day suspension from the Director of Nursing due to a complaint by a coworker who smelled alcohol on his breath while on duty. Respondent's supervisor also smelled alcohol on his breath on that date. Respondent was interviewed by the Director of Nursing who testified that he admitted to having a drinking problem. She referred him to an impaired nurse program for assistance with his drinking problem but he never attended the program. It is contrary to good nursing practice, and is also contrary to the employment policies and standards of St. John's Nursing and Rehabilitation Center to report for duty as a nurse after having consumed alcohol to the extent that it can be smelled on one's breath. Nancy Cox an expert in nursing education testified that such conduct was unprofessional and below minimum nursing standards since the use of alcohol impairs a nurse's ability to respond to nursing care emergencies and to exercise sound nursing judgment. Cox also testified that an indication of an alcohol problem was a belligerent and uncaring attitude in dealing with patients. Respondent's employment records contain complaints from patients about his hostile and uncaring attitude while on duty. On February 7, 1984 Respondent received a second warning notice concerning his lack of proper care to a tracheostomy patient which resulted in a medical emergency. Respondent was on the 3:00 p.m.-11:00 p.m. shift at the time. During his shift, a nurse's aide asked Respondent to assist a tracheostomy patient on two occasions. Respondent looked in on the patient but did not administer suction or any other care. On a third occasion the aide asked Respondent to care for the patient and he did not even look in on the patient. Before leaving the floor at 11:30 p.m. after her shift, the same aide again looked in on the tracheostomy patient and saw that the patient was in distress and in immediate need of care. The aide got her supervisor who found that the patient was blue. Attempts to clear the air passage with suction were unsuccessful, and the patient had to be transferred to a hospital for emergency care. The expert in nursing education, Nancy Cox, testified that Respondent's actions in dealing with this patient were unprofessional and below minimum standards. Cox explained that a tracheostomy patient cannot verbalize his need for care so extra attention must be paid to patient needs by the nurse on duty, particularly for blockages of the airway. Each occasion when Respondent simply looked in on the patient but failed to administer suction, and the one occasion when he totally ignored this patient's needs constituted unprofessional conduct, in Cox's opinion. Petitioner presented evidence of a third incident on February 25, 1984 involving a diabetic-patient and the care rendered to said patient by Respondent which resulted in a third warning notice against Respondent. The diabetic patient vomited around 7:30 p.m. and lapsed into a coma at 9:10 p.m. Respondent did not check this patient's blood sugar level after the vomiting, which he should have according to Cox, nor did he call this to his supervisor's attention. The parties were allowed to submit proposed findings of fact after the hearing pursuant to Section 120.57(1)(b)4, F.S., and a ruling on each proposed finding that was submitted has been made in this Recommended Order, either directly or indirectly, except where proposed findings have been rejected as subordinate, immaterial, unnecessary, irrelevant or unduly repetitious.
Recommendation Based upon the foregoing, it is recommended that a Final Order be issued revoking Respondent's license but providing that he may apply for reinstatement if, within one (1) year from the issuance of the Final Order Respondent submits to, and successfully completes an impaired nurse program to be designated by the Department of Professional Regulation and Hoard of Nursing at his own expense. DONE and ENTERED this 24th day of June, 1985 at Tallahassee, Florida. DONALD D. CONN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of June, 1985. COPIES FURNISHED: Edward C. Hill, Jr., Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Anthony Martin 4041C NW 16th Street Apartment 109 Fort Lauderdale, Florida 33313 Judie Ritter, Executive Director Board of Nursing 111 East Coastline Drive, Room 504 Jacksonville Florida 32202 Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee Florida 32301
Findings Of Fact The Parties. University is a 180-bed skilled nursing home located in Gainesville, Florida. The facility was licensed by the Department and all 180 beds were Medicaid certified at all times relevant to this proceeding. University's facility is managed by Covenant Care Corporation. The Department is the State agency designated the responsibility for administering Florida's Medical Assistance (Medicaid) Program. Section 409.266, et. seq., Florida Statutes. The Office of Licensure and Certification is the office of the Department responsible for licensing and the certification of nursing homes in Florida. 1989 Annual Survey. The Office of Licensure and Certification (hereinafter referred to as "OLC"), conducted an annual survey of University's nursing home facility for 1989 from February 28, 1989, through March 3, 1989, to determine the extent of University's compliance with federal and state laws. At the conclusion of the 1989 annual survey the Department issued a Statement of Deficiencies and Plan of Correction, Form HCFA-2567 (10-84) (hereinafter referred to as the "Annual Survey Statement"). The Annual Survey Statement was provided to University. A number of deficiencies in the operation of University's facility were noted on the Annual Survey Statement. In relevant part, the deficiencies involved the need for University to improve the manner in which patient rehabilitation care was provided. The Annual Survey Statement did not indicate that University was required to add staff to its facility to correct the deficiencies. The Annual Survey Statement included space for University to indicate how it intended to correct the deficiencies noted by OLC. University completed this portion of the Annual Survey Statement noting how it intended to correct each deficiency and the date by which the deficiency would be corrected. University indicated on the Annual Survey Statement that it would correct the deficiencies by May 12, 1989. University did not indicate that it intended to add staff to its facility in order to correct any deficiency noted on the Annual Survey Statement. As part of its plan of correction, University drafted and adopted a Rehabilitative and Restorative Care Program (hereinafter referred to as the "Care Program"). The Care Program provided for the employment of a "Rehabilitative-Restorative Registered Nurse" and "Rehabilitative-Restorative Certified Nursing Assistant(s)". The Annual Survey Statement with the corrections University intended to make noted on it was submitted to OLC. A copy of University's Care Program was also provided to employees of the Department as part of University's corrective plan. The Department, through OLC, accepted University's corrections and its Care Program. By "accepting" University's corrections and Care Program, OLC agreed that the corrections addressed the deficiencies noted in the Annual Survey Statement. OLC did not, however, inform University that it "approved" of the corrections University indicated it intended to make or the Care Program. May 31, 1989 Survey. On May 31, 1989, OLC personnel surveyed University's facility in response to a complaint the Department had received concerning alleged inadequate certified nursing assistants at University. Certified nursing assistants perform "hands on" rehabilitation work at skilled nursing homes. Rehabilitation work performed by certified nursing assistants includes assisting residents to walk, eat and with other activities of daily living. A Statement of Deficiencies and Plan of Correction (hereinafter referred to as the "May Survey Statement") was issued by OLC as a result of the May 31, 1989, survey. The May Survey Statement was provided to University. The May Survey Statement noted the following deficiencies: NH-106. Review of facility staffing for five of seven days selected at random revealed significant shortages of non-licensed nursing staff as evidenced by but not limited to: Insufficient staff to meet the personal care and hygiene needs of the residents. Insufficient staff to monitor the nutritional needs of the residents ([?] residents with significant weight loss). Insufficient staff to implement the restorative nursing program so as to maximize the optimal level of independence enjoyed by each resident. Ref: 405.1124(c)(B)3; 10D-29.108(4) The overall deficiency of University's facility noted in the May Survey Statement was based upon OLC's determination that, although University had sufficient certified nursing assistants scheduled to work during the seven shifts reviewed, an insufficient number of certified nursing assistants actually reported to work during five of those shifts. This determination formed the basis of OLC's determination that there was "insufficient staff" and not a determination that additional staff needed to be scheduled for work. University indicated in the May Survey Statement that it intended to take the following actions to correct the deficiencies noted by OLC: 5 bonus, recruitment and retention programs established along with the use of nursing pools (see attached). Seven new positions above the required standards established and filled (see attached staffing schedule). New assignment policy assures monitoring of feeding (3 meals a day) 7 days a week. New Rehab. R.N. and five restorative aides now assigned to restorative programs (see attached). The May Survey Statement with the corrections University intended to make noted on it was submitted to OLC. The Department, through OLC, accepted University's corrections. Again, by "accepting" University's corrections, OLC agreed that the corrections addressed the deficiencies noted in the May Survey Statement. OLC did not, however, inform University that it "approved" of the corrections University indicated it intended to make. June 5, 1989, Survey. On June 5, 1989, OLC personnel visited University's facility. As a result of this survey, a moratorium on admissions to University's facility was imposed. University was informed of the moratorium at the conclusion of the June 5, 1989, survey and in a letter from the Department dated June 6, 1989. In the letter of June 6, 1989, University was informed, in pertinent part: This moratorium is being imposed . . . because of the serious deficiencies identified by personnel from the Pensacola Office of Licensure and Certification during a survey conducted on June 5, 1989. These deficiencies include but are not limited to the following: Number of staff insufficient to meet minimum standards. Lack of adequate staff to meet resident needs. Lack of adequate monitoring of changes in residents' conditions. Lack of nutritional monitoring. [Emphasis added]. University and the Department ultimately entered into a Joint Stipulation resolving the issues which gave rise to the moratorium. Pursuant to the Joint Stipulation, the Department rescinded the moratorium effective June 29, 1989. Although the Joint Stipulation did not specifically require that University add staff to its facility, it did provide, in pertinent part, the following: 3. Effective upon signing this stipulation, Respondent [University] shall maintain the minimum staffing standards for licensed and non- licensed nursing personnel to meet the resident care needs. June 22-23, 1989, Survey. The Joint Stipulation called for interim visits to University's facility by OLC. An interim visit was conducted on June 22-23, 1989. A Statement of Deficiencies and Plan of Correction (hereinafter referred to as the "June Survey Statement") was issued by OLC as a result of the June 22-23, 1989, survey. Among other things, OLC noted in the June Survey Statement the following deficiency: NH-106 Progress has been made but "NOT CORRECTED" as evidenced by: Continued insufficient staff to monitor nutritional needs or residents (see F-181) implement restorative nursing program. Ref: 405.1124(c)(b)3 10D-29.108(4) Class III 7-23-89 The June Survey Statement was provided to University. University indicated in the June Survey Statement that it intended to take the following actions to correct the deficiency noted in finding of fact 29: Five Rehab. Aides (in addition to required number of certified aides) are monitoring all meals. In addition to Two new positions of Resident Care Supervisors whose duties include meal monitoring. The June Survey Statement with the corrections University intended to make noted on it was submitted to OLC and was "accepted" by OLC in the same manner that the Annual and May Survey Statements were accepted. Additional Staff at University's Facility. Between May, 1989, and August, 1989, University established the following positions and employed individuals for those positions: 1 Rehabilitation Coordinator 5 Rehabilitation Aides 7 Certified Nursing Assistants 4 Resident Care Supervisors University also employed the services of a nursing consultant and used pooled nursing staff. University incurred the following costs associated with the newly created positions, the pooled nursing staff and the nursing consultant: Rehabilitation Coordinator $ 26,817.78 Rehabilitation Aides -0- Certified Nursing Assistants 121,919.60 Nursing Consultant 25,000.00 Resident Care Supervisors 60,559.38 Pooled Nursing Staff 183,040.00 Total $417,336.76 The Rehabilitation Aide positions were filled with 5 employees who were serving as certified nursing assistants. Medicaid Reimbursement. The method by which Medicaid providers are reimbursed for their services is provided for in the Florida Title XIX Long-Term Care Reimbursement Plan (hereinafter referred to as the "Reimbursement Plan"). The Reimbursement Plan is a "cost-based prospective plan." The rate of reimbursement is determined by calculating a provider's historical costs for a specified reporting period and factoring in an inflation index to estimate the provider's future costs. The provider is then paid a rate of Medicaid reimbursement based upon the projected future costs. In Florida, prospective rates are calculated January 1 and July 1 of each year. During a reimbursement period a providers' actual expenditures may be greater or less than the estimated costs for the period. If actual expenditures are less, the additional amount the provider receives may be kept. If actual expenditures are more, the provider must absorb the difference. The Reimbursement Plan allows providers to request and receive a rate change between reporting periods if certain exceptional circumstances are met. The rate change is referred to as an "interim rate change." The requested rate increase at issue in this case was a request for an interim rate change. Section IV, J.2. of the Reimbursement Plan provides the following concerning requests for interim rate changes: Interim rate changes reflecting increased costs occurring as a result of patient care or operating changes shall be considered only if such changes were made to comply with existing State or Federal rules, laws, or standards, and if the change in cost to the provider is at least $5000 and would cause a change of 1 percent or more in the provider's current total per diem rate. [Emphasis added]. The Department stipulated that the requirements of the Reimbursement Plan that interim rate changes involve a change in cost of at least $5,000.00 and cause a change of 1% or more have been met in this case. Interim Rate Increase. On August 23, 1989, the Controller of Covenant Care Corporation requested a Medicaid interim rate increase from the Department in University's Medicaid funding. This was the first time during 1989 that University requested an interim rate increase. University had not sought approval of an interim rate increase at any time while the surveys conducted during the first 8 months of 1989 were being conducted. Nor had the Department indicated that it would approve a rate increase as a result of its surveys, the deficiencies it found at University's facility or the acceptance of University's plan of correction. The request was reviewed by the Medicaid Cost Reimbursement Analysis section of the Department in consultation with OLC. University requested a rate increase for the $417,336.76 of additional costs incurred by University for additional staff during 1989. This resulted in an increase in per diem of $6.90 per patient day. The rate increase requested by University was very large. If approved, University would have the highest per diem patient care cost of all Medicaid approved nursing homes in the Department's District 3 where University is located. By letter dated October 19, 1989, the Department informed University that it would allow an increase in rate of $1.16 per patient day and that the additional requested increase of $5.74 was denied. The approved increase was effective August 12, 1989. The increase in rate approved by the Department was attributable to 7 new certified nursing assistant positions. The Department was confused during its review of the rate increase request and during the formal hearing of this case about the number of newly established certified nursing assistant positions and rehabilitation aide positions. The Department believed that there were only 7 new positions created. The evidence established that there were a total of 12 newly created positions: 5 rehabilitation aide positions (which were filled by 5 existing certified nursing assistants) and 7 new certified nursing assistant positions. The 7 new certified nursing assistant positions and the 5 certified nursing assistant positions which were vacated by employees filling the 5 new rehabilitation aide positions were filled by new employees. The amounts expended by University for these 5 new rehabilitation aide positions were included with the amounts expended for the 7 new certified nursing assistant positions. I. Standard Imposed by the Department. During the period of time at issue in this proceeding, University's facility met the nursing staff requirements of Rule 10D-29, Florida Administrative Code. The nursing staff requirements of Rule 10D-29, however, are minimum requirements. Nursing home facilities may have to provide nursing staff in excess of the requirements of Rule 10D-29 in order to provide proper resident care. The Department informed University, as a result of the surveys conducted by OLC during 1989, that residents at University's facility were not receiving adequate care. The Department indicated on a number of occasions that inadequate care was being provided because of "insufficient staff." The Department did not, however, inform University specifically that it needed to add staff positions at its facility. When used by OLC, the terms "insufficient staff" can mean that a facility has an insufficient number of employees assigned and hired to work on shifts. "Insufficient staff" may also mean that, although a sufficient number of employees have been assigned and hired to work on shifts, the employees are not properly carrying out their tasks. In the latter instance, required tasks may not be carried out because an insufficient number of the employees who were scheduled to be present were actually at work or because those present were simply not working adequately. When the Department uses the terms "insufficient staff" to mean that an insufficient number of employees were assigned and hired, then it would be appropriate to hire additional staff. When the Department uses the terms "insufficient staff" to mean that required tasks are not being carried out because an insufficient number of employees were present or because those employees present were simply not working adequately, then it would not be appropriate to hire additional staff. In this case the Department did not consistently inform University what it meant by "insufficient staff." In some instances (i.e., the May Survey Statement) the Department did clearly indicate that it meant that, although a sufficient number of employees were assigned and hired to work, an insufficient number of employees actually were at work. On other occasions, however, this was not the clearly expressed intent. The Department's determination that University needed to improve the quality of the care it was providing to its residents and its use of the terms "insufficient staff" were reasonably interpreted by University to mean that University had an insufficient number of employees scheduled to provide the care required by the Department. Therefore, it was reasonable for University to conclude that it needed to increase its staff to some extent to meet the standards imposed upon it by the Department. This finding of fact is consistent with the Department's determination that an interim rate increase based upon an additional 7 certified nursing assistant positions established at University's facility should be granted. The crucial determination in this case is a determination of the extent to which University should have reasonably added staff in response to the Department's surveys. Based upon the weight of the evidence, it was reasonable for University to establish the 5 new rehabilitation aide positions and the 7 new certified nursing assistant positions in response to the Department's findings of deficiencies during its surveys of University's facility during 1989. These positions resulted in a total increased cost of $121,919.60 and a per diem increase of $2.02. Although it may have been good health planning to establish the rehabilitation coordinator position and the 4 resident care supervisor positions, and to hire a nursing consultant and use pooled nursing staff, it was not reasonable for University to conclude that it was being required to take these steps by the Department. Therefore, University did not incur the costs associated with these staffing changes in order to "comply with existing State or Federal rules, laws, or standards " University did not reasonably rely on the Department's findings of deficiencies or any comments or actions of Department employees during 1989, in establishing the rehabilitation coordinator position or the 4 resident care supervisor positions, or in employing the nursing consultant or pooled nursing staff. The $4.88 of increased per diem and the costs associated with these positions should not be reimbursed as part of an interim rate increase.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued by the Department granting University an interim rate increase of $2.02 and denying the remaining $4.88 of interim rate increase requested by University. DONE and ENTERED this 24th day of April, 1990, in Tallahassee, Florida. LARRY J. SARTIN 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 24th day of April, 1990. APPENDIX The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. University's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1. 2 3. 3 4. 4 5 and 7. 5 15 and 17-18. 6 20. 7 22. 8 Not relevant to this proceeding. 9 See 50-58. 10 24. 11 Hereby accepted. 12 27. 13 See 31. 14 See 50-58. 15 11 and 13-14. 16 Testimony is taken out of context. 17 Not supported by the weight of the evidence. 18 See 34. See 49. See 34 and hereby accepted. 21 41. 22 45 and 47. 23 34. 24-25 Hereby accepted. 26-31 Not totally supported by the weight of the evidence. See 50-58. 32 36-41. 33 Not totally supported by the weight of the evidence. See 50-58. The Department's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1-2. 2 3. 3 4-6 and 9. 4 5 and hereby accepted. 5 6-7. 6 7-8. 7 Hereby accepted. 8 9. 9 10. 10 12. 11 14. 12 15. 13 16. 14 11. 15 17-18. 16 18-19. 17 Hereby accepted. 18 20. 19 21-22. 20 43. 21 34 and hereby accepted. 22 23-24. 23 25. 24 25 and 43. 25 27 and 29. 26 42 and hereby accepted. 27 34 and 45. 28 36. 29 37. 30 38. 31 39. 32 Hereby accepted. 33 39. 34 40. 35 39. 36 41. 37-38 Hereby accepted. 39 44. 40-42 Hereby accepted. 43 18-19, 29 and 51-55. 44 47-48 and 55. 45 46. 46 See 51-58. See 57. Hereby accepted. 49 47-48. Copies Furnished To: Grafton B. Wilson, II, Esquire Post Office Box 1292 Gainesville, Florida 32609 Carl Bruce Morstadt, Esquire Chief Medicaid Counsel Department of Health and Rehabilitative Services 1317 Winewood Boulevard Building 6, Room 230 Tallahassee, Florida 32399-0700 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0500
