The Issue The issues raised in this cause concern the question of the entitlement of Petitioner, Kevin D. Harris to stand examination to obtain a nursing home administrator's license. See Section 468.1695, Florida Statutes.
Findings Of Fact Kevin D. Harris is 18 years of age or over and is a high school graduate. Harris has also earned a bachelor's degree in psychology from the University of North Florida. Harris filed an application containing the appropriate fee amount, for purpose of standing the examination related to nursing home administrators in the state of Florida. The Board of Nursing Home Administrators received the application and fee on November 30, 1994. On January 11, 1985, the State of Florida, Board of Nursing Home Administrators reviewed and denied Harris' application to stand examination as a nursing home administrator. The basis of denial concerned the opinion that Harris did not meet the prerequisites set forth in Section 468.1695, Florida Statutes and Rules 21Z-11.07 through 11.10, Florida Administrative Code, which would allow Harris to stand the examination. Petitioner questioned the action of denial of his effort to seek examination and requested a formal Section 120.57(1), Florida Statutes hearing. In response to that request the matter was referred to the Division of Administrative Hearings and on April 16, 1985, the formal hearing was held. Petitioner's assertion in this matter is to the effect that his employment experience with the State of Florida, Department of Health and Rehabilitative Services concerning Medicaid eligibility determination for clients seeking nursing home care should be considered together with his employment in specific nursing homes in deciding the question of his eligibility to stand examination for recognition as a nursing home administrator. Harris worked with the Department of Health and Rehabilitative Services in dealing with Medicaid eligibility determination from January, 1979 through October, 1979 and again from August, 1980 through October, 1984. In dealing with the needs of his clients, while employed by the Department of Health and Rehabilitative Services, he examined the financial, medical and social eligibility of those clients as it pertained to their entitlement to receive financial assistance under the institutional care program of the State of Florida. In particular this was a program administered under Title 19 of the Social Securities Act. This employment with the Department of Health and Rehabilitative Services did not involve the responsibility for the operation and administration of any nursing home facility. Harris did work in cooperation with facility in assisting those administrators in the provision of services that were available through the Department Health and Rehabilitative Services. That arrangement did not envision Harris having any control over those facilities. Harris, while employed by the Department of Health and Rehabilitative Services did not have the responsibility for hiring or firing or related matters as it pertained to the nursing homes in which he was serving in a liaison capacity between his clients and those nursing home facilities. From October, 1979 through June, 1980, Harris worked in Saint Catherine's Manor, a nursing home facility in Jacksonville, Florida. His assignment was as administrative assistant to the nursing home administrator and his position at Saint Catherine's Manor was comparable to an assistant administrator. In effect, Harris assisted in the administration of the daily operation of the facility, to include matters of Medicaid and Medicare reimbursement, accounts receivable, credit union management and other responsibilities for departmental operations within the facility. At the time of the hearing Harris was employed as an assistant administrator at Saint Jude's Nursing Center in Jacksonville, Florida, a 240-bed skilled nursing facility. Harris has held the position at Saint Jude's since October, 1984. His duties are akin to those responsibilities in his employment with Saint Catherine's Manor. The work at Saint Jude's includes assisting the nursing home administrator in the overall operation of the facility. In addition, Harris serves as financial manager and is responsible for all financial and bookkeeping functions. When initially employed by the facility Petitioner was responsible for the dietary department. Beginning in January, 1985, Petitioner was reassigned to the specific duties in the business office, in view of past experience with the Department of Health and Rehabilitative Services. Petitioner's employment and training at Saint Catherine's Manor and Saint Jude's Nursing Center has not been under the guise of a nursing home administrator-in- training program developed by rule of the Board of nursing Home Administrators, as envisioned by Section 468.1695(2)(c)1., Florida Statutes. Harris' experience at Saint Catherine's Manor and Saint Jude's Nursing Center is perceived by Fred Lane, a member of the Board of Nursing Home Examiners, to be practical experience in nursing home administration as set forth in Section 468.1695(2)(c)3., Florida Statutes. Lane's characterization of that experience is accepted as factually correct.
Findings Of Fact The Petitioner owns property in Dade County, Florida, located at 47 Northwest 32nd Place, Miami, Florida. Improvements have been erected on the property. The Petitioner leases the property and improvements to Flordean Nursing Home, Inc., a Florida corporation. The corporation operates a skilled nursing home on the premises, and pays a monthly rent of five hundred dollars to the Petitioner for the exclusive occupation of the property and improvements. The Petitioner is the president and majority stockholder of the corporation, and the administrator of the nursing home. The nursing home is licensed by the Florida Department of Health and Rehabilitative Services. The corporation provides extended care treatment and skilled nursing home services to its clients or patients. The clients pay a single charge for the services which include a room, nursing care, laundry, meals, activities, and medical attentions. Activities include movies, religious services, birthday and other holiday celebrations, and similar functions. The corporation does not and has never simply rented a room to any client. The nursing home is a commercial venture for profit, and it in fact makes a profit. The average age of the nursing home guests is 84. Typically they are admitted through physicians. They become permanent residents. They receive their mail at the home and typically do not leave until they die. The average stay is three years, five months. At the time of hearing the nursing home housed 52 guests in 19 rooms. The rooms are private, semiprivate and three in a room. The petitioner applied for a certificate of registration from the Florida Department of Revenue in June, 1968. The certificate was issued under sales tax number 23-08-102316-82. The Petitioner has paid sales taxes on the monthly rental payments that she has received from the corporation. She is seeking a refund of these taxes for the period from March 1, 1972 through and including May 30, 1978. The corporation does not collect sales taxes from the nursing home guests.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby, RECOMMENDED: That the Respondent enter a final order denying the petitioner's refund application. DONE and ORDERED this 9th day of January, 1979, in Tallahassee, Florida. G. STEVEN PFEIFFER, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Joseph C. Mellichamp, III, Assistant Attorney General The Capitol, Rm. LL04 Tallahassee, Florida 32304 Jack R. Rice, Jr., Esquire P. O. Box 350838 2424 N. W. First Street Miami, Florida 33135
The Issue The parties have stipulated that Petitioner is a "prevailing small business party" as defined in Section 57.111, F.S., and that the attorney fees requested are reasonable, up to the $15,000.00 statutory limit. The issue remaining for resolution is whether the expungement proceeding had a "reasonable basis in law and fact at the time it was initiated by [the] state agency", as provided in Section 57.111, F.S.
Findings Of Fact The following findings are adduced from the record, consisting of the transcript and exhibits in cases number 89-4151C/89-6087C, from the stipulations of the parties, and from the final order of the agency adopting the recommended order of Hearing Officer, K.N. Ayers, dated March 20, 1990. Petitioners are sole proprietors of Forest Haven, an unincorporated adult congregate living facility (ACLF) licensed by the State of Florida pursuant to Chapter 400, Part II, F.S., and located at 8207 Forest City Road, Orlando, Florida. Petitioners and Forest Haven have their principal office in Orlando, Florida and are domiciled in Orlando, Florida. They have less than 25 full-time employees and a net worth of less than $2 million. On March 17, 1989, a Department of Health and Rehabilitative Services (HRS) survey team visited Forest Haven to conduct an annual survey of the facility. The survey team was comprised of 10 persons, enlarged due to a training exercise. Several of the team members were registered nurses; several members were Office of Licensure and Certification supervisors. During the course of the visit and observations of the residents, members of the team determined that eight residents required a higher level of care than could be provided at the ACLF. As found in the recommended order adopted by the agency, the basis for this determination was, As to T.M., age 81, the need for a restraining vest, and the existence of bruises and gashes on the face and head; As to H.L., age 89, the presence of a foley catheter, total disorientation, low weight and poor skin turgor (brittle skin); As to F.W., age 72, the presence of a foley catheter, observation of fresh blood in the catheter bag, and low body weight; As to M.B., age 81, incontinence and nonambulatory status; As to R.T., age 84, a foley catheter and contraction of both legs; As to L.O., age 94, edema of lower extremities, contracture of both knees, low body weight, skin tear on left buttocks, and possible bed sore on right buttocks; As to P.B., age 88, incontinence, low body weight, and inability to transfer from wheelchair to bed without assistance; and As to F.H., age 89, one-half inch bed sore on coccyx, pitting edema of legs, incontinence and somewhat confused state. An adult protective services investigator was summoned, as well as law enforcement personnel, and the above residents were removed from the facility on an emergency basis and were placed in a nursing home. They were evaluated at the nursing home the following day by Carolyn Lyons, a Registered Nurse Specialist with HRS, who found that intermediate or skilled nursing home services were required. A ninth resident, C.K., was evaluated by a medical review team nurse and an adult protective services worker at the ACLF on March 20, 1989, and was removed from the facility and placed in a nursing home the same day. C.K., age 89, was found to be confused, incontinent, with bruises, a swollen foot, non- ambulatory, and with a red rash on the trunk of her body. HRS obtained orders from the Circuit Court to provide protective services for seven of the above-mentioned residents. Of the remaining two, one was competent to consent to the nursing home placement and another was returned to his own home by relatives. On March 22, 1989, HRS Protective Services worker, Annette Hair, classified the report in her investigation as "confirmed" medical neglect by S.G. and J.G. of the eight residents who had been removed from the ACLF. She relied on her own observations of the individuals, on the medical assessments performed by the survey team nurses at the ACLF, and the subsequent assessment of Carolyn Lyons, the HRS staff person responsible for making an evaluation of the level of care required for medicaid nursing home placement. The narrative "investigative conclusion" of Ms. Hair's report provides, in pertinent part: * * * Based on the facts obtained during the course of this investigation this case is being classified as CONFIRMED. In accordance with F.S. Section 415.102(4) it is clearly estab- lished that [S. and J.G.] were the caregivers of the eight alleged victims of this report as they had been entrusted with the care of said individuals. The allegation of neglect is verified for each of the eight alleged victims in that [S. and J.G.] failed to provide the care and service necessary to maintain the physical and mental health of an aged person that a prudent person would deem essential for the well-being of an aged person (F.S. Section 415.102(13)). Specifically each of the eight alleged victims has a medical condition which required twenty-four hour skilled nursing care and supervision which the caregivers, [S. and J.G.] failed to provide for said individuals. Five of the eight alleged victims, [H.L., L.O., T.M., F.H. and P.B.] had Scabies (a highly contagious disease caused by parasitic mites that burrow under the skin. This disease is associated with unsanitary conditions and causes a painful itch). [S. and J.G.] failed to provide the supervision necessary to detect this disease and in so doing jeopardized the health and well-being of the other residents in the facility. [H.L.] in addition to having Scabies, was semi-comatose, had bed sores on her buttocks and pelvic area and had a foley catheter. [T.M.] had open lacerations on her face, was extremely mentally confused and was known to wander and fall which required her to be physically restrained. [L.O.] had two open skin areas and Edema. [M.B.] has an excoriated area on her buttocks, Edema of the feet, and her right knee was swollen. [R.T.] had a cough of unknown origin, contraction of both legs, and an in-dwelling catheter. [F.W.] had an in-dwelling catheter which was draining bloody urine and appeared malnourished. [P.B.] appeared malnourished and was incontinent of both bowels and bladder, was extremely confused, and had an open draining wound. [F.H.] had bed sores, and Pitting Edema in addition to Scabies. [S. and J.G.], in addition to being negligent for failing to provide the care and services necessary to maintain the physical and mental health of the alleged victims, were in direct violation of F.S. Section 400.426(1) as they did not perform their responsibility of determining the appropriateness of residence of said individuals in their facility. (Petitioner's exhibit 2, in cases number 89-4151C/89-6087C) On April 4, 1989, HRS Protective Services worker, Kathleen C. Schirhman, classified the report in her investigation as "confirmed" medical neglect by S.G. and J.G. She relied on her own assessment of the resident, and on the medical assessments by Nurse Lyons, and by medical staff at the receiving nursing home, including a physician, Dr. Parsons. The narrative "investigative conclusion" of Ms. Schirhman's report provides: Based upon the facts obtained during the course of this investigation, both alle- gations of medical neglect and other neglect were determined to be verified, and the case is being classified as CONFIRMED. [J.G. and S.G.] assumed the responsibility of care for [C.K.] and, therefore, became her caregivers. They did not provide the care and services necessary to maintain the physical and mental health of [C.K.] that a prudent person would deem essential for her well-being. She required medical services and nursing supervision in a skilled nursing facility. Pursuant to F.S. 400.426 "the owner or Admini- strator of a facility is responsible for determining the appropriateness of admission of an individual to the facility and for deter- mining the continued appropriateness of resi- dence of an individual in the facility." The assessment by the CARES nurse determined that [C.K.] was being medically neglected, because she required 24 hour nursing care, which she was not receiving. She had Scabies, for which she was not being treated. The CARES nurse believed that the alleged victim was at risk and requiring immediate nursing home placement. Allegation of "other neglect" was added to the original report. [C.K.] was being neglected, because she was a total transfer patient, who required restraints, which were not used and cannot be used in an ACLF. Furthermore, the potential for harm to her was great: She was blind, confused, and unable to self-preserve. (Petitioner's exhibit number 1 in cases number 89-4151C/89-6087C) S.G. and J.G. requested expungement of the reports but the request was denied on July 10, 1989. Thereafter, through counsel, they made a timely request for a formal evidentiary hearing. The hearing was conducted on February 14 and 15, 1990, by DOAH Hearing Officer, K.N. Ayers. Depositions of David J. Parsons, M.D. and Gideon Lewis, M.D. were filed after the hearing, by leave of the Hearing Officer. In his recommended order issued on March 20, 1990, Hearing Officer Ayers found that the HRS investigators did not contact the physicians who had signed the admissions forms when each of the residents at issue had been admitted to the ACLF. Nor did the HRS staff obtain records from the home health agency which, at the treating physicians' direction, was providing, or had provided, home health care to most of the residents at Forest Haven. Skin lesions (decubitus) and scabies were found to be frequently present in nursing home and ACLF residents. Edema and underweight conditions are also common in these residents. Dr. Lewis, the treating physician for most of the residents at Forest Haven, had ordered the vest restraint for T.M.'s protection. He had also written to HRS about a year prior to the survey, recommending that efforts be made to relocate H.L. to a skilled nursing facility. The recommended order found that no evidence of exploitation or neglect, other than medical neglect, was presented at the hearing. The order also found that evidence of medical neglect by S.G. and J.G. was not presented, but rather, "[t]o the contrary, the evidence was unrebutted that Respondents [Petitioners in this proceeding] promptly reported to the resident's physician all changes in the resident's physical condition." The agency's final order was filed on May 29, 1990, adopting the findings of fact and conclusions of law recommended by Hearing Officer Ayers, and granting J.G. and S.G.'s requests for expungement. The Final Order addressed the department's exceptions to the recommended order, as follows: RULING ON EXCEPTIONS FILED BY THE DEPARTMENT The dispositive issue is whether retention of a resident (or residents) in an ACLF whose medical condition is more serious than the established criteria for residence in an ACLF (see Section 10A-5.0181, Florida Administra- tive Code for the criteria) constitutes per se neglect under Chapter 415. Inappropriate retention of a resident may constitute grounds for disciplinary sanctions under the licensure rules, but it does not automatically consti- tute abuse under Chapter 415. See State vs. E. N. G., Case Number 89-3306C (HRS 2/13/90). The evidence of medical neglect was based on the inappropriate retention of certain resi- dents. The Hearing Officer's finding that these residents were not medically neglected is based on competent, substantial evidence; therefore, the department is obligated to accept this finding. Johnson vs. Department of Professional Regulation, 456 So2d 939 (Fla. 1st DCA 1981), B. B. vs. Department of Health and Rehabilitative Services, 542 So2d 1362 (Fla. 3rd DCA 1989). In pursuing expungement, Petitioners incurred fees, costs and interest in the total amount of $22,772.49. The amount of interest included in that total is $1,000.91. As stipulated, the fees, up to the $15,000.00 statutory maximum, are reasonable.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, as well as the stipulations of the parties, the following relevant facts are found: Surrey and Careage each timely filed their letters of intent and applications for Certificates of Need to establish 120-bed nursing homes in Polk County in the July 1986, batching cycle. Pursuant to the nursing home need methodology rule, there is a numeric need for 168 nursing home beds in Polk County in July of 1989. A Stipulation and Settlement Agreement enter into prior to the final hearing resulted in the award of 40 beds to other applicants, thus leaving a numeric need for 128 beds for the planning horizon addressed by the applications at issue in this proceeding. No evidence of numeric need beyond that established by the nursing home need methodology rule was presented by Surrey or Careage. Health Care Associates (HCA) is owned by John A. McCoy and Stanford L. Hoye and was formed in 1977 to develop, design, build and manage skilled nursing facilities and retirement facilities throughout the country. It currently owns, operates or is developing approximately 18 skilled nursing facilities in the State of Florida, including a 120-bed nursing home in Winter Haven, known as Brandywine. All HCA licensed nursing home facilities in Florida hold a "Superior" rating. HCA has a documented history of implementing its Certificates of Need within the statutory time frame. HCA now proposes to establish a second 120-bed skilled nursing home in Winter Haven to be known as Surrey Place of Polk County. The two HCA facilities in Winter Haven will be independent and competing facilities, through there will be a shared utilization of training programs. This proposed facility is to be built in conjunction with a 60-bed personal care facility (an adult congregate living facility) which will share common services, such as administration, laundry and dietary services. The costs related to the personal care facility are not included in Surrey's Certificate of Need application. Surrey has determined that the project will be located on one of two sites in Winter Haven. Both sites are properly zoned, and Surrey already owns one of the sites. The projected total project cost for the proposed Surrey 120-bed skilled nursing home facility is $3,000,000. The costs associated with land acquisition and site development, furniture, fixtures and equipment and architectural fees appear reasonable and are in line with HCA's past experiences in developing nursing homes in Florida. The construction cost for building the facility--$2,146,000 or $48.70 per square foot--is low because HCA owns the company which will construct the facility. Construction will be done at cost and at no separate profit to HCA. The Surrey proposal results in a construction cost per bed figure of $17,883; an equipment cost per bed figure of $2,084; and an operating cost per bed figure of $20,031.75. The total project cost of $3,000,000 results in a cost per bed of $25,000. Surrey proposes to obtain financing for 87% of the total project cost, or $2,600,000, and to provide owner equity for the remaining $400,000. Meritor Savings is ready, willing and able to finance the project and Dr. McCoy and Mr. Hoye, the owners of HCA, have the financial ability to make the equity contribution. Surrey's facility will contain 44,000 gross square feet and will be comprised of 8 private rooms and 56 semiprivate rooms. The schematic drawing contained in the application is now somewhat outmoded compared to how HCA is currently building nursing facilities. In its newer facilities, the patient rooms have vaulted ceilings and bathing units on outside walls with cubical glass which admits more light. HCA's existing nursing home facility in Winter Haven enjoys a good reputation amongst physicians who are on the staff of Winter Haven Hospital and refer patients to that facility. At the proposed facility, Surrey intends to offer a continuum of care by providing independent living units adjacent to the nursing home. In addition to providing skilled and intermediate level nursing services, Surrey intends to offer various programs including physical therapy, speech therapy, hearing and occupational therapy, social services, recreational programs and agreements with other organizations to ensure the highest quality of discharge planning and follow-up services. While not listed in its application, Surrey intends to provide services to Alzheimer patients, though not in a separate and distinct unit. As a part of its social and recreational services, Surrey intends to provide programs such as pet therapy, creative writing, senior olympics and a grandchild program. In addition, Surrey intends to offer adult day Dare and respite care within the confines of the personal care living facility. Surrey does not intend to offer subacute care services at the proposed facility. The total staffing of 72.4 for the proposed Surrey facility includes 5.5 full-time equivalent registered nurses, 5.5 full-time equivalent licensed practical nurses and 34 full-time equivalent nurse's aides. This equates to a ratio of 1 registered nurse per 21.8 patients, 1 licensed practical nurse per 21.8 patients and 1 aide per 3.5 patients. As a means of attracting nursing staff, Surrey offers recruitment seminars at nursing schools and has associated with Polk Community College to aid in training and recruitment. All HCA facilities have accreditation programs for certified nursing assistants (CNAs), and its existing Winter Haven facility is utilized by Polk Community College for the on-site training of CNAs. In order to aid its recruitment efforts, HCA is enhancing its benefit package and also is building child day care centers as an additional benefit for staff members. These centers are also available to visitors to the nursing home. The cost of the child care centers is not included within Surrey's total project cost. HCA's director of quality assurance works with the assistant directors of nurses in each facility to design and promote continuing education programs for the professional nursing staff. HCA has a history of providing services to Medicare and Medicaid patients in its Florida facilities. Surrey proposes to devote 49% of its patient days to Medicaid patients, 15% to Medicare patients, 1% to V.A. patients and 35% to private pay patients. These calculations are based upon HCA's experience in other existing facilities. The elderly poverty rate in Polk County is 16.6%. Upon opening, Surrey proposes the following per diem charges: $53.00 for Medicaid and V.A. patients, $65.00 for Medicare patients, $90.00 for private pay patients in a private room, and $62.00 for private pay patients in a semiprivate room. In answers to interrogatories served in November of 1987, Surrey listed its projected charges as $70.00 for private pay, $76.00 for Medicare and $64.00 for Medicaid patients. The figures used in Surrey's pro forma are based upon the actual experience of HCA in developing similar facilities. The pro forma projections are based upon Surrey's expectation of a 97% occupancy rate at the end of year one and throughout year two. Other than the Administrator's salary being admittedly low, the pro forma projections appear reasonable. Surrey anticipates a net loss in the first year of operation of $349,120 and a net profit in the second year of $121,150. In terms of cash flow, Surrey projects a negative cash flow of $143,440 at the end of its first year and a positive cash flow of $326,770 at the end of its second year of operation. Surrey's proposal is consistent with the goals, objectives and policies contained in the nursing home and long-term care components of the District VI Health Plan and the State Health Plan. Careage Investment, Inc., owned by Gene D. Lynn, has been in existence since May 1, 1962, and has developed and constructed over 250 medical complexes, hospitals, and nursing homes throughout the United States and Puerto Rico. Careage currently has four operating nursing homes, with a fifth having recently been opened. These nursing homes include a 59-bed facility in Coupeville, Washington, a 99-bed facility in Tracy, California, a 232-bed facility in Phoenix, Arizona, a 114-bed facility in Oroville, California, and the new facility of 144 beds in Chico, California. Careage proposes a 120-bed skilled nursing home to be located in Lakeland. The facility will include a separate and distinct 21-bed unit for Alzheimer patients and a 10-bed subacute care unit. While Careage does not presently own property for the proposed facility, it has identified several available four-acre sites which have utilities and direct access to public streets. Its $515,000 figure proposed for land acquisition appears reasonable. The total cost of the proposed Careage project is $4,150,000. The cost of constructing the 45,500 gross square foot facility is $2,583,125 and equates to a construction cost per square foot of $56.77 and a construction cost per bed of $21,526. Careage proposes equipment costs of $420,000 or $3,500 per bed. Its operating cost per bed is $23,395. The overall project cost of $4,150,000 equates to a cost of $34,583 per bed. Careage proposes to obtain 100% financing of the total project cost at an interest rate of 10%, with the term of the loan being 30 years. Based upon Mr. Lynn's personal financial statement and Careage's past ability to obtain financing for other nursing home facilities, these expectations appear reasonable. The architect retained by Careage to design the proposed facility in Lakeland received an award from the Contemporary Long Term Care magazine in 1986 for another nursing home designed and constructed in Bakersfield, California. The proposed Lakeland facility will contain 45,500 square feet, which translates into 379 gross square feet per bed. Its patient room arrangements include two isolation rooms, 7 private rooms, 45 semiprivate rooms and a 21-bed special Alzheimer unit with 10 semiprivate rooms and one private room. The facility will be a one-story building, with aquariums visible from the reception area and the dining room. The design includes a beauty and barber shop, a chapel, a gift shop, recreation areas, a private dining room area and outside courtyards. Each patient room will have a bathroom with a sink, as well as a sink in the outer room in semiprivate rooms. Also, in semiprivate rooms, the beds will be placed on opposite head walls to allow each resident to have a view of the window when the other pulls the curtain. Each room will have its own temperature control. The facility will also have occupational and physical therapy rooms. In order to afford more patient privacy, the service areas are located away from the ancillary spaces. Careage's quality assurance program will include a utilization review committee, a safety committee, an infection control committee, a pharmaceutical committee, a resident advisory council, a community advisory council and employee advisory groups. A corporate representative visits all Careage nursing homes on an interim basis to review the day-to-day operations, facility maintenance and physical environment. As noted, Careage proposes to offer a 10-bed subacute care unit. This unit will provide services for the care of technology dependent children, many of whom are recovering from automobile accidents, severe illness, neuromuscular disease or congenital disorders. The subacute unit will also offer such services as hyperalimintation, IV infusion, morphine drip, use of Hickman catheters and other services traditionally performed in the acute care hospital setting. Alzheimer Disease is a fatal illness evidenced by a progressive deterioration of mental, motor, cognitive, physical, social and psychological processes. The problems suffered by Alzheimer patients include nutritional problems, communication problems, disorientation, loss of memory, problems with elimination and basic personal care, agitation, catastrophic reactions, wandering and problems with safety. The Careage approach in offering a separate and distinct Alzheimer unit is to provide behavioral and environmental care. When more skilled nursing care is required than behavioral or environmental care, the Alzheimer patient is then moved to another skilled bed. The separate Alzheimer unit will utilize a specially trained staff and a team approach to any required changes in treatment. The separate 21-bed unit will provide security and will have its own dining room and recreation area. The decor will be designed to promote less agitation. Careage will provide a separate outdoor exercise courtyard for its Alzheimer patients along with various activity programs, such as short reminiscent programs and music therapy. Careage will also offer family and community education programs regarding the needs and care of Alzheimer patients, and encourages the use of volunteers to help adapt the Alzheimer residents to daily living as much as possible. The advantages of providing a separate and distinct Alzheimer unit include the safety features, the ability to utilize a trained staff and a team approach to patients who may have a wide variety of symptoms, less disruption to other residents in the nursing home, and the provision of a more appropriate decor and specialized programs for the Alzheimer patient. Careage proposes to offer respite care services on a space-available basis. Adult day care services will also be offered in a separate entity adjoining the nursing home facility, but the cost associated with that is not a part of Careage's application for a Certificate of Need. Careage proposes to staff the Lakeland facility with 96 full-time equivalent positions. These include 11.9 registered nurses, 7.4 licensed practical nurses and 42.1 certified nurses aides, which equates to a ratio of 1 registered nurse per 10.1 patients, 1 licensed practical nurse per 16.2 patients, and 1 aide per 2.9 patients. Careage intends to offer three hours of nursing care per patient day for the Alzheimer's and skilled areas, and at least six hours per patient day for the subacute and Medicare-certified residents. The staffing proposed meets and exceeds the requirements of Florida regulations. In recruiting staff for its new facilities, Careage advertises in advance of opening in newspapers and periodicals and contacts are made with nursing schools. It offers a liberal fringe benefit package, competitive salaries, in-service training, continuing education assistance and child day care services in adjoining portions of the nursing home. Careage also attempts to use the elderly both as volunteers and staff members. It intends to utilize its facility as a clinical site for schools of nursing, schools of dentistry and other programs within the medical community. Gene D. Lynn, the owner of Careage, has endowed a program in rural nursing at Seattle University. In its first and second years of operation, Careage proposes a payor mix of 40% Medicaid, 4% Medicare, 6% subacute, 3% VA and 47% private pay. Its philosophy with regard to care for medically underserved groups is to serve all populations, regardless of age, sex, religion, national origin or payor status. The payor mix anticipated by Careage is consistent with that being experienced in other facilities in Polk County. The patient charges proposed by Careage are based upon the experience of other providers within Polk County and Careage's own experience in its other facilities. Careage proposes a Medicaid per diem charge of $57.50, a Medicare all inclusive charge of $105.00, a private and VA per diem charge of $60.00 and a subacute charge of $125.00. The assumptions contained in the Careage financial pro forma are based partly upon the experience of existing nursing homes in Polk County and the experience of Careage in other facilities, and appear reasonable. At the end of its first-year of operation, Careage projects a net loss of $161,994.20. A net income of $127,936.61 is projected for the end of the second year of operation. The Careage proposal conforms with the goals and priorities of the District VI Health Plan's nursing home component as well as the goals and objectives of the Florida State Health Plan. Overall occupancy rates in existing nursing homes in Polk County exceed 90 percent. More than half of the Polk County nursing homes currently have waiting lists for admission. In February of 1985, Winter Haven Hospital opened 100 beds that are classified as subacute beds and are reimbursed as skilled nursing beds. For calendar year 1987, the average occupancy rate of the Winter Haven Hospital subacute unit was 65 or 66%. As of the date of the hearing, the census was 78. Higher utilization throughout the Hospital is typically experienced in the first quarter of the calendar year. While the Administrator of Winter Haven Hospital did not feel there was a need for more subacute beds in Polk County, he also felt that the Careage proposal for 10 subacute beds would have a minimal effect upon Winter Haven Hospital. According to a telephone survey, no nursing homes in Polk County currently accept ventilator dependent patients, pediatric or neonatal patients or technology dependent children. It is estimated that between 3 and 22 technology dependent children will need services in Polk County in 1989. Only five nursing homes in Polk County accept patients on IV therapy. Only one nursing home facility in Polk County has a separate and distinct unit for Alzheimer residents. It is estimated that 1,660 persons with Alzheimer Disease will require nursing home services by the year 1989. When conducting its initial review of the competing applications for nursing home beds in Polk County, as well as other counties, HRS staff attempted to compare the applicants by utilizing a "matrix" which compiled the data and information presented in the respective applications. The information initially displayed revealed numerous errors and omissions. The matrix was then revised and information was again compiled to make it an accurate tool for comparative purposes. With few exceptions, all of the data elements in the matrix are items included in the application forms. After balancing the various items, such as facility size, proposed programs, project and construction costs, per diem charges, payor mix, and levels of staffing, HRS initially determined that Careage was the superior applicant. At the final hearing, additional errors were discovered in the display of information contained in the matrix. The errors were corrected and did not change the opinion of HRS's health planning expert that Careage was the superior applicant.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the application of Surrey to establish a 120-bed nursing home in Polk County be DENIED, and that the application of Careage be GRANTED, conditioned upon the inclusion of a 21-bed separate Alzheimer unit, a 10-bed subacute care unit and the provision of at least 40 percent of patient days to Medicaid patients. Respectfully submitted and entered this 6th day of June, 1988, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of June 1988. APPENDIX (Case NO. 87-0680) The parties' proposed findings of fact have been fully considered and are accepted and/or incorporated in this Recommended Order, with the following exceptions: SURREY 9. Last two sentences rejected. The first is irrelevant and immaterial to the project under review. The last is refuted by the greater weight of the evidence. 17-19. Rejected as contrary to the evidence. 23. Rejected as contrary to the evidence. 28. Rejected as argumentative and not a proper factual finding. 29,30. Rejected as not being supported by competent, substantial evidence. Rejected as contrary to the evidence. Last sentence rejected as unsupported by competent, substantial evidence. 57. Rejected as contrary to the greater weight of the evidence. First sentence rejected as hearsay and conclusiory. Rejected as to "methods of construction," as not supported by competent, substantial evidence. CAREAGE 2. Factually accepted, but not included as irrelevant. 15. Accepted with reservation. It is unclear from the evidence as to whether adult day care is a part of the nursing home project. Partially rejected insofar as it is argumentative and a mere recitation of testimony. Last sentence rejected as unsupported by the evidence. HRS 11. Rejected. Since Surrey does not intend to use the plans submitted in the application; the net living space cannot be determined. Accepted only if the words "on paper" are added to the end of the sentence. First sentence accepted if "on paper" added. 24. Accepted but not included, as there was no way to make a similar comparison with the Surrey facility. 41. Rejected as legal argument as opposed to factual finding. 42,43. Rejected as irrelevant and immaterial to the issues in dispute. COPIES FURNISHED: Reynold Meyer F. Phillip Blank, P.A. 204-B South Monroe Street Tallahassee, Florida 32301 Edgar Lee Elzie, Jr. MacFarlane, Ferguson, Allison & Kelly Post Office Box 82 Tallahassee, Florida 32302 Robert S. Cohen Haben & Culpepper, P.A. Post Office Box 10095 Tallahassee, Florida 32302 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 =================================================================
The Issue The issue for consideration in this case is whether Respondent’s license as a nursing home administrator in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Board of Nursing Home Administrators (Board), was the state agency in Florida responsible for the regulation of the nursing home administrator profession in this state and the licensing of nursing home administrators. Respondent, Judith Ortiz, was a licensed nursing home administrator holding license number NH 0002926. Respondent has an undergraduate degree in science and art, and a master’s degree in Business Administration and Health Care Administration. Subsequent to the award of her graduate degree, she taught in long-term care facilities in Dade County, Florida, during which time she developed an interest in care of the elderly. Ms. Ortiz took and passed the examination for licensure as a nursing home administrator in 1990 and began work as an assistant nursing home administrator for Unicare, a care provider, in 1991. In December 1992, she came to Unicare’s facility in New Port Richey, Richey Manor, as the administrator, and remained there until she was terminated in May 1994. At the time of her termination, she was being paid a salary of $37,500. Shortly after Respondent assumed the position of administrator at Richey Manor, an inspection of the facility by the Agency for Health Care Administration revealed no significant problem with resident pressure sores. Respondent’s own chronology of events reveals a subsequent series of unfortunate personnel problems which befell the facility. Only two months after the Respondent was hired, the director of nursing at the facility resigned. It was at that point that Respondent’s problems amplified. A survey of the facility in October 1993 resulted in a citation for insufficient staffing, but the company’s nurse consultant, who visited the facility in November 1993, concluded the staffing was sufficient. Respondent continued to seek various forms of assistance from her corporation, but in each case, her request was denied. The director of nursing, whom Respondent hired to replace the head nurse who had resigned at the beginning of the year, did not perform well, but Respondent nonetheless retained her on staff. Ms. Patti K. Silar, a surveyor of nursing homes for the Department of Health Care Administration, has surveyed Richey Manor between six and eight times in the same number of years. In February 1994, as the result of an anonymous complaint filed with the Department, she conducted a survey there during which she found several deficiencies. Specifically, she found that while the number of personnel on duty met minimum license requirements, other factors indicated that staffing was inadequate to meet residents’ needs. This manifested itself in extended delays in responding to patient calls which resulted in resident incontinence and resident falls; failure to maintain resident cleanliness; failure to ensure residents were fed on time; and failure to properly turn bed-ridden patients. All these deficiencies, which continued over a period of months, resulted in adverse health impacts to the residents. A follow-up inspection of the facility was done on April 28, 1994. The follow-up was to a survey done on July 23, 1993, and to an investigation done on October 21, 1993, and February 22, 1994. On this follow-up, the facility’s handling of pressure sores was again found to be inadequate; nursing staffing was determined to be inadequate to meet residents’ needs, resulting in inadequate resident care in several respects; and charge nurses were found not to be fulfilling their responsibilities for the total nursing care of residents in several respects. The facility’s annual survey was conducted on April 29, 1994. Several additional deficiency areas were addressed in this survey, including the failure of the facility’s transfer paperwork to provide for appeal rights; inappropriate utilization of restraints; failure to meet sufficient quality of life standards; failure to maintain acceptable levels of assessments and personal grooming of residents; and failure to maintain acceptable comprehensive care plans for all residents to avoid deficiencies in such areas as dehydration, restraints, and the like. This latter survey revealed, as related to pressure sores, not only that those deficiencies previously noted were not improved, but also that residents who came into the facility without pressure sores developed them while in the facility. There was no plan in place to prevent the development of pressure sores, or to prevent the development of skin breakdown. Simple corrective action, such as the purchase of appropriate mattresses or the frequent turning and repositioning of the resident was not being taken. Ms. Silar concluded that the percentage of residents with pressure sores at Richey Manor was much higher than in other similar facilities, standing at approximately 25% of the residents afflicted, as compared with 7 to 8% in other facilities surveyed. In addition to the level A areas found to be deficient, there were multiple level B areas, somewhat less serious than level A areas, found to be deficient as well. These included such matters as fluids being added to a resident’s intake without a physician’s orders, or, in the alternative, residents not being provided what a physician ordered. Further, Ms. Silar experienced an inability to reconcile records on seven residents of seven attempted. This is very unusual and showed a repeated failure to carry out doctors’ orders. The responsibility of insuring that all of this is done rests with the administrator who may delegate responsibility, but is not relieved of accountability. Ms. Silar did not conduct the survey for the purpose of determining the competence of the facility administrator, but she observed significant areas in the operation which were out of compliance, and residents were at risk as a result thereof. The care she observed being provided by the staff under the supervision of the Respondent was less than acceptable in those areas identified in the survey reports as being deficient. Overall, the facility was not in compliance. Whereas the February 1994 survey was abbreviated, the April 1994 survey was a full review for re-certification and re-licensure. As such, it was more comprehensive than the complaint survey. This April 1994 survey was done within one year of the prior general survey; earlier than normal because of the Department’s serious concerns arising out of the February 1994 complaint and inspection results. According to Ms. Silar, Richey Manor, when compared with more than 100 other facilities she has surveyed since 1989, was in the lowest 2 percent. A specific problem she observed there during the February 1994 investigation was the facility’s treatment of bed sores. During the April 1994 survey, Ms. Silar found not only no improvement, but, in fact, a worsening of the conditions. As a result of these surveys, a moratorium was placed on admissions to Richey Manor, and, in fact, disciplinary action was subsequently taken against the facility. Federal standards enacted in 1987 charge facilities such as Richey Manor with the responsibility of assisting residents to achieve their highest potential over-all. They also encourage facilities to change their emphasis to achieving practical results rather than concentrating on paper compliance. Ms. Silar found that Richey Manor was placing only minimal emphasis on solving the bed sore problem when she surveyed the facility in February 1994. At that time it was clear that the residents were not being assessed, nor were care plans being developed. When the more comprehensive survey was done in April 1994, 35 of 36 residents still did not have either appropriate assessments or care plans prepared for them. The facility did not have a comprehensive plan of care, and without that it was impossible to develop individual care plans. The federal standards as to staffing relate only to “sufficient” staff to meet the needs of residents. Under state requirements, specific minimum ratios are required. A facility may have the minimum number of personnel, but not have enough to meet the needs of the residents. This may also relate to quality of staff or to inappropriate utilization of existing staff. In the instant case, though schedules were prepared to reposition residents, there were not enough staff members to follow the schedule. The staff shortage resulted in staff not responding to resident calls in a timely manner, and physician orders not being followed. It also was determined that Richey Manor was taking a large number of residents who required more attention and for whom proper care could not be given. Of the more than 111 residents in the facility at the time of the survey, 62 required assistance with daily living and toileting, and approximately 40 required assistance with dressing. The above observations were concurred in by Carole G. Hembree, a health facility evaluator with the Agency. Ms. Hembree concluded she would not put a loved one in Richey Manor at the time in issue because she did not believe the quality of care given there was adequate. The survey reports referred to herein were reviewed for the Agency by Anthony J. Pileggi, a nursing home administrator since 1978 and an expert in nursing home administration. Mr. Pileggi supervises a 120-bed facility and is lead administrator for three other facilities in a care group. He is also licensed as a preceptor for trainees in the field of nursing home administration. After his review of the survey reports, Mr. Pileggi concluded that during the time in question there was a lack of nursing supervision, a large turnover in nursing staff, poor quality in the nurses on staff, and a lack of preventive measures addressing pressure sores. In his opinion, the administrator did not maintain an awareness of the level of care being provided in the facility through frequent review of indicators such as pressure sores, screening, and treatment. It was his observation that at Richey Manor, during the time in question, there was emphasis on treatment and little effort given to prevention. Respondent’s actions in management were less than competent for a qualified administrator. Mr. Pileggi saw what he considered to be an emphasis on admissions based on payor type rather than acuity level at a time when insufficient care was being given to existing residents to prevent the development of pressure sores. When staff is short, it is inappropriate to take more residents who need a high measure of care. To do so compounds the problem. Mr. Pileggi does not believe Respondent did all she could do to solve the problem. Her reliance on budget problems as an excuse for her actions is not, he believes, well placed. In his opinion, budget is not all-controlling. The administrator must strive to provide adequate care within the budget, and must oversee the director of nursing to insure that staff nurses are performing properly. The appearance of pressure sores is an indicator of other problems. These could include a failure to properly use restraints, improper hydration, and inadequate nutrition. Though Respondent lays blame for the facility’s problems on the nursing staff, as administrator she had the responsibility to ensure there is a proper screening and evaluation of new residents to determine the likelihood of those residents developing pressure sores and to ensure the residents’ skin care is adequate. The administrator must ensure the staff is properly trained and that schedules are developed to provide adequate care. In Pileggi’s opinion, the administrator should perform a weekly review to ensure the facility is working properly, and if not, make appropriate changes to ensure the residents get proper treatment, A nursing home administrator is required to provide supervision of resident care - not provide the care herself. Resident care requires more attention than other administrator duties. Administrators should have a general knowledge of how to review a care plan to provide appropriate care for residents and to meet the residents’ needs. It is the responsibility of the nursing home administrator to ensure proper care plans are developed by qualified persons. The failure to have proper care plans has a direct negative impact on the quality of care. Based on Mr. Pileggi’s review of the survey reports, he found that Richey Manor’s care plans were not sufficient. Respondent points out that in April 1993, she noted a negative trend in patient skin care. Mr. Pileggi does not believe Respondent did enough at that point or thereafter to ensure an appropriate care plan was developed and implemented to combat this trend. Respondent had sufficient authority to act. She could have changed the approach of the various committees towards admissions so as to lower acuity level, but it appeared to Pileggi that she emphasized a payor source admissions policy to conform to budgetary considerations. Acuity level of the resident is related to what staff is needed to provide the appropriate support. The greater the acuity level, the more staff is required. A nursing home administrator can manage the resident census by acuity level to ensure that existing staff can provide the level of care needed. Pileggi contends that if the Respondent recognized she did not have adequate staff to provide the appropriate level of care to the residents, she could have stopped admissions or screened prospective admissions for more independent residents who would require less care. Respondent complained of a lack of corporate support in the areas of staffing and funding; however, Pileggi believes there was much by way of monitoring and supervision of staff she could have done to improve the care provided without more staff or more money. He does not believe Respondent did enough in this regard. To the contrary, if staffing were already inadequate to meet residents’ needs, as Respondent claims, it would negatively impact the health, safety, and welfare of the residents to take in more residents of a high acuity level. Mr. Pileggi concluded that Respondent showed a strong concern for budgetary considerations of the company. One of her highest priorities appeared to be the effect of any action on operating income. Pileggi contends that a nursing home administrator should use the budget as a tool to provide guidelines for patient care. At those times when line items are not satisfactory, the administrator must look to other budget areas for funds to provide appropriate care. In this case, Pileggi is of the opinion that Respondent’s primary concern should have been for the residents. This means answering calls, keeping the residents comfortable, and other like activities. Respondent claims she devoted 20% of her time to marketing. This time could have been better spent, according to Pileggi, dealing with problems. In short, Respondent should have spent more time in supervising preventive care, rather than seeking additional residents. Evidence presented at hearing indicates that the Director of Nursing at Richey Manor at the time of Respondent’s incumbency was performing poorly, and Respondent advertised for a replacement. Proof of the director’s incompetence, in Pileggi’s opinion, was the deterioration of resident skin condition. Pileggi is satisfied that Respondent’s awareness of this situation was demonstrated by her seeking to replace the director. However, in his opinion, merely seeking to replace the incompetent employee was not enough. Respondent should have worked around her to correct a situation which was obviously of long standing. The development of pressure sores does not come about over-night. Mr. Pileggi would not state that Respondent repeatedly acted contrary to the health, safety, and welfare of the residents of Richey Manor, but because of the existence of the pressure sore problem, a condition which takes a significant time to develop, Respondent’s decision to admit more high acuity level residents indicates that she intentionally failed to act in the best interests of the residents. In summary, Mr. Pileggi concluded that Respondent’s actions constituted neglect or incompetence in that she did not ensure the facility had adequate staff, and she did not take adequate measures to treat and prevent pressure sores on the residents. The magnitude of the pressure sore problem was, for Mr. Pileggi, proof positive of the failure of Respondent to perform properly. His opinion would not change even if it were shown that Respondent authorized and was trying to hire more staff when, at the same time she was actively seeking to admit more patients who required a high level of care. Ms. Ortiz is adamant in her denial of the allegations that she acted in an incompetent or negligent manner while serving as administrator at Richey Manor. When she went to the facility as its administrator, she was confronted with a director of nursing who had been there for more than a year and who had a management style which conflicted radically with the more structured style of the Respondent. As a result, the director of nursing became disgruntled and resigned in February 1993. Respondent claims she immediately placed an advertisement in area papers for a replacement but got no response. She discussed this problem with her supervisor, Unicare’s regional director of operations, who gave her some recruiting suggestions. Respondent also requested monetary assistance to advertise out-of-state, but this request was denied. Nonetheless, in June 1993, Respondent was able to hire a director of nursing. In the interim, while the hiring search was going on, the assistant director of nursing filled in and Unicare’s regional office sent in a temporary director from another area. In June 1993, Respondent hired Ms. Paderoff, a woman over 60 years old, as director of nursing. However, though her performance at first was good, Ms. Paderoff began to fail to show up for work, and the assistant director would not support her. Her effectiveness was, therefore, diminished. Ms. Paderoff was an experienced nurse - knowledgeable and capable. While she worked at Richey Manor, she was given goals for the nursing department and immediately began implementing them. She was supportive and worked well until the end of 1993. At that time the facility’s personnel problems began to take their toll on her and she threatened to resign. Respondent attempted to support Ms. Paderoff, and Ms. Paderoff withdrew her resignation, but it shortly became apparent her performance had deteriorated badly. Respondent felt that additional supervision was necessary and met weekly with Ms. Paderoff and the other department heads to evaluate their expectations. Ultimately, Paderoff terminated employment. In mid-February 1994, Respondent was able to hire an assistant director and a month after Paderoff left, Respondent hired a very experienced director of nursing. At that point, finally, both the director and assistant director were qualified in their jobs. The problems faced by the facility continued, however, and in May 1994, Respondent was fired. In October 1995, the Agency sought to impose an administrative fine of $1,575 against Unicare for the deficiencies relating to insufficient staff and improper handling of pressure sores identified during the tenure of Respondent but still uncorrected by February 2, 1995. Respondent contends that at the very beginning of her employment at Richey Manor she recognized the staffing problems and sought to correct them. She contacted the local community college’s nursing department to attempt to recruit, as did the director of nursing, who also served as nurse consultant to the college. She sent recruitment letters to over 100 nurses without any response. She encouraged nursing students to perform their rotations at Richey Manor, and she tried to get a pay raise approved for certified nursing assistants (CNA). She also tried to retain and supplement the existing nursing staff by introducing CNA helpers, instituted perfect attendance bonuses, established a recruitment and retention committee to brainstorm ways to get and keep nursing staff, and had two licensed nurses mentor new nursing employees. She also had plans for offering continuing education units in the area, and looked into the possibility of developing an in-house CNA training program. Ms. Ortiz claims her time as administrator was spent evaluating the activities of eight departments in the facility. She spent a lot of time with hiring and replacing staff, including department heads. She started her work day at 7:00 a.m., and her day would end at around 5:30 or 6:00 p.m. She would also periodically come in on weekends to show support for the staff and to see what was going on, and would attend the monthly family dinners hosted by the facility. During January and February 1993, as a result of the weekly reports of the nursing staff, Respondent sent reports of resident pressure sores to the company’s regional and national office. As she became more acquainted with the problem, she set goals to address it, starting in March or April 1993. She instructed the director of nursing, when she first came on board, to look into and assess the program in effect and to make recommendations to improve the system. Though Respondent claims this worked well, in fact, the problem continued. Respondent claims that in July 1993 she developed a skin-care program at Richey Manor to address the problem and it appeared the director of nursing was enthusiastically supporting it. In a letter to the company dated November 12, 1993, Respondent outlined the local actions taken regarding skin-care and observed that the facility had experienced a “marked decrease in in-house acquired decubes,” but this apparently was not so. In addition, Respondent contends that Unicare’s skin care policy and procedures were followed at Richey Manor. This policy includes a risk assessment program and continuing observations of factors bearing on the potential for developing decubetes - all the things Respondent claimed she had implemented in her referenced letter to the company. Notwithstanding those efforts, from November 1993 to February 1994, residents who already suffered from pressure sores continued to be admitted to the facility, and it was also during this time that the performance of the director of nursing deteriorated, as previously described. Nonetheless, from February 1994 onward, more emphasis was placed on staff to deal with the pressure sore problem, and the corporate office got more involved as well. The company stepped into the picture because at a meeting at the regional office which she attended in January 1994, she requested the approval of an incontinence care product, and the provision of nurse consultants to train the local staff. Both requests were denied by the company. At a similar meeting held in February or March 1994, the request for this product was again made and again denied. All during this time, Respondent believed she was being attentive to the needs of her residents. She was open to and sought suggestions from staff on the issues confronting the facility, and contacted corporate staff to discuss the problems with them. Apparently, the Agency was not satisfied with Respondent’s efforts and concluded the facility no longer merited a regular license. On May 12, 1994, the Agency changed the rating for Richey Manor to conditional, and, as was noted previously, Respondent was dismissed shortly thereafter. Mr. Pileggi characterized Respondent’s emphasis on recruiting high acuity level residents as being an example of mismanagement. As a for-profit institution, corporate policy sought achievement of a certain levels of resident census and income/profit. Corporate goals called for a resident census of between 95 and 97 percent of capacity. Consistent therewith, Respondent sought to obtain more private pay residents. While Respondent admits to seeking to obtain private pay/insurance pay residents, she categorically denies at any time seeking to admit more high acuity level residents, or of admitting a resident over the objection of the director of nursing. The decision of admission to Richey Manor was a collegial decision of a committee with Respondent having final authority. Petitioner has failed to demonstrate any correlation between the source of payment and acuity level, and Ms. Schild, also a nursing home administrator and owner, categorically indicates there is none. Though Respondent may not have sought high acuity level residents, she also did not seek to reduce the case load by declining to admit residents who required a high level of care. The documents considered by Mr. Pileggi and the Board were also reviewed by Kelly Schild, a nursing home administrator and expert in nursing home administration. Based on her review of the documents and what she heard at hearing regarding the Respondent’s actions, she concluded that Respondent took all steps necessary to address the items listed in the Administrative Complaint. Respondent had a care plan in place and made repeated but unfulfilled requests to her corporate headquarters to redress her staffing problems. In her opinion, Respondent had a more than adequate plan for identifying residents at risk from pressure sores and did everything a prudent nursing home administrator could do to address the issues confronting her in light of the lack of financial and other support from her company. Ms. Schild does not believe Respondent repeatedly acted in a manner contrary to the health, safety, and welfare of her residents. To the contrary, Respondent repeatedly addressed the issue of insufficient staff and the pressure sore problem. Respondent was hampered in the performance of her duties by her corporate hierarchy which prevented her from taking appropriate corrective action. Even in light of corporate resistance, Respondent did all a reasonable and prudent nursing home administrator could do. Nonetheless, Ms. Schild notes that if she had confronted the problems Respondent was having with pressure sores, she would not have admitted any new residents with the same problem. In fact, she would not admit any new residents if she had insufficient staff to support the existing resident census. It is in this area that Respondent’s actions fell most below acceptable standards.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Nursing Home Administrators enter a Final Order in this matter imposing an administrative fine of $1,575 on Respondent, and placing her license as a nursing home administrator on probation for a period of two years, under such terms and conditions relating to restriction of her practice to only supervised employment as the Board deems appropriate. DONE AND ENTERED this 28th day of August, 1998, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 1998. COPIES FURNISHED: John O. Williams, Esquire Maureen L. Holz, Esquire Williams and Holz, P.A. 355 North Monroe Street Tallahassee, Florida 32301 Wilson Jerry Foster, Esquire 1341 Timberlane Road Suite No. 101-A Tallahassee, Florida 32312 Angela T. Hall, Agency Clerk Department of Health 2020 Capital Circle Southeast Bin A-02 Tallahassee, Florida 32399-1703 John Taylor, Executive Director Board of Nursing Home Administrators Department of Health 1940 North Monroe Street Tallahassee, Florida 32399-0792
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED That Manor Care be issued a CON for the construction of a 60 bed nursing home; Palm Bay Care Center be awarded a CON for the construction of a 60 bed nursing home; Forum Group be awarded a CON for a 40 bed nursing home and Courtenay Springs be awarded a CON for 36 nursing home beds. RECOMMENDED this 26th day of January, 1987, at Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-99675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of January, 1987. COPIES FURNISHED: William Page, Jr., Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 Jean Laramore, Esquire Kenneth Hoffman, Esquire 325 North Calhoun Street Tallahassee, Florida 32301 Thomas B. Smith, Esquire Post Office Box 633 Orlando, Florida 32802 John Grout, Esquire Post Office Box 180 Orlando, Florida 32802 Donna H. Stinson, Esquire Suite 100 Perkins House 118 North Gadsden Street Tallahassee, Florida 32301 Susan G. Tuttle, Esquire 402 South Florida Avenue Tampa, Florida 33602 Robert D. Newell, Jr., Esquire Suite B 200 South Monroe Street Tallahassee, Florida 32301 John F. Gilroy, Esquire Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 APPENDIX The following constitutes my specific rulings pursuant to Section 120.57(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties herein. 1-13 Accepted. 14 & 15 Accepted. 16-18 Rejected as a recitation of the evidence. 19-23 Accepted. 24 Accepted. 25-29 Accepted. 30 & 31 Accepted. 32 Irrelevant. 33-34 Accepted. 35-37 Accepted. 38-46 Accepted. 47 & 48 Accepted. 49 & 50 Accepted. 51 Discussion, not Finding of Fact. 52-56 Accepted. Rejected as a recitation of the evidence. Accepted. Accepted to the fact that there were no sheltered beds in existence. Irrelevant. 61-63 Accepted but not of substantial positive value. 64 & 65 Accepted. Opinion not Finding of Fact. Accepted. 68-75 Accepted. 76-80 Irrelevant based on part operation and evidence shows facility is to be sold. 81-85 Irrelevant - see next 86-90 Rejected as a conclusion of law and not a Finding of Fact. 91 Not a Finding of Fact. 92-94 Accepted. 95 Irrelevant as to local district. 96-103 Accepted. 104-105 Rejected as contrary to the weight of the evidence. Accepted as to what Dr. Hoffman supported. Accepted as to what Dr. Hoffman indicated. 108-110 Accepted. Rejected as contrary to the weight of the evidence. Accepted. Not a Finding of Fact. 114-118 Accepted. 119&120 Not a Finding of Fact. 121&122 Accepted. 123 Accepted as to the one facility currently operated. 124-127 Accepted. Speculation insufficient to support a Finding of Fact. Argument, not a Finding of Fact. Accepted. 131-133 Accepted. 134 Not a Finding of Fact. 135-137 Accepted. 138 Not supported by the weight of the evidence. 139-147 Accepted. 148&149 Not a Finding of Fact. 150-164 Accepted. Rejected as a summary of testimony, not a Finding of Fact. Irrelevant. 167-176 Accepted. Rejected as contrary to the weight of the evidence Rejected as a summary of testimony. Accepted. 180&181 Accepted. 182 Irrelevant. 183&184 Accepted. 185 Rejected as a conclusion. 186&187 Rejected as contrary to the weight of the evidence. As to Manor Care 1 Accepted. 2&3 Rejected as not a part of the case. 4 Accepted. 5-7 Accepted. Accepted. Accepted. 10-11 Accepted. 12 Accepted. 13-19 Accepted. 20-22 Accepted. As to Forum 1-13 Accepted. 14-16 Accepted. 17-22 Accepted. 23&24 Accepted. 25-27 Accepted. 28-31 Accepted. 32 Accepted. 33-35 Accepted. 36 Rejected as speculation. 37-42 Accepted. 43 Accepted. 44-47 Accepted. 48&49 Accepted. 50-55 Accepted. Rejected as a conclusion not consistent with the evidence. Accepted. 58&59 Accepted. 60-64 Accepted. 65-69 Accepted. 70&71 Irrelevant. 72&73 Accepted. 74-76 Accepted. Accepted as to the first sentence. Second sentence is not a Finding of Fact. Accepted. As to PBCC 1&2 Accepted. 3 Rejected as a Conclusion of Law. 46 Accepted. Accepted. Rejected as contrary to the weight of the evidence. Accepted. 10-12 Accepted. Rejected as contrary to the weight of the evidence except for the first sentence which is accepted. Rejected. 15-20 Accepted. 21-27 Accepted. 28 Rejected as an overstatement and not supported by the evidence. 29&30 Accepted. 31 Rejected as contrary to the weight of the evidence. 32-38 Accepted. 39-43 Accepted. 44-50 Accepted. 51-57 Accepted. Accepted except for the first sentence which is unsupported by credible evidence of record. Accepted. Rejected. Accepted. As to Courtenay This party failed to number or otherwise identify its Findings of Fact individually. Therefore, no specific ruling as to each Finding of Fact is hereby made. In light of the ultimate recommendation of the Hearing Officer that the party's CON be approved, no prejudice to this party can be said to have occurred. As to DHRS 1-4 Accepted 5 Summary of testimony and not a Finding of Fact. 6-1 Is an argument of the party's position, not a Finding of Fact. 12-14 Rejected as matters not a part of the party's position at hearing. Accepted. Accepted. Accepted. Accepted. 19-22 Accepted. Rejected as a summary of testimony and not a Finding of Fact. Accepted. 25-28 Accepted. 29-31 Accepted.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, as well as the stipulation of facts "entered into by all parties, the following relevant facts are found: Along with six other applicants, the petitioner, Health Quest Corporation, d/b/a Lake Pointe Woods Health Center, and the respondent, Quality Health Facilities, Inc., d/b/a Sarasota Health Care Center, submitted applications for a Certificate of Need to construct and operate new nursing homes in Sarasota County, In June of 1982, the respondent Department of Health and Rehabilitative Services (HRS) determined to issue the application of Sarasota Health Care Center and deny the remaining seven applications. For the purposes of this proceeding, the parties have stipulated that there is a need for at least a 120-bed skilled and intermediate care nursing home in the Sarasota, Florida area. In November, 1982, respondent HRS adopted Rule 10- 5.11(21) , Florida Administrative Code, which provides a formula methodology for determining the number of nursing home beds needed in areas throughout the State. Briefly summarizing, this formula begins with a bed to population ratio of 27 per thousand population age 65 and over, and then modifies that ratio by applying a poverty ratio calculated for each district. The theoretical bed need ratio established for Sarasota County by this portion of the Rule's formula is 23.2 nursing home beds per thousand elderly population projected three years into the future. The population figures to be utilized in the formula are the latest mid-range projections published by the Bureau of Economic and Business Research (BEBR) at the University of Florida. After determining the theoretical need for nursing home beds in an area, the Rule purports to determine the actual demand for beds by determining the current utilization of licensed community nursing home beds, establishing a current utilization threshold and, if this is satisfied, applying a prospective utilization test too determine the number of beds at any given time. Applying the formula methodology set forth in Rule 10- 5.11(21) to Sarasota County results in a finding that there are currently 807 excess nursing home beds in that County. The need for sheltered nursing home beds within a life care facility are considered separately in Rule 10-5.11(22), Florida Administrative Code. Generally speaking, need is determined on the basis of one nursing home bed for every four residential units in the life care facility. Elderly persons 75 years of age and older utilize nursing homes to a greater extent than those persons between the ages of 65 and 74. Persons under the age of 65, particularly handicapped individuals, also utilize nursing home beds. The formula set forth in Rule 10-5.11(21) does not consider those individuals under the age of 65, and it does not provide a weighted factor for the age 75 and over population. In the past, the BEBR mid-range population projections for Sarasota County, compared with the actual census reached, have been low. Petitioner Health Quest, an Indiana corporation, currently owns and/or operates some 2,400 existing nursing home beds in approximately 13 facilities in Indiana. It holds several Certificates of Need for nursing homes in Florida and construction is under way. Petitioner owns 53 acres of land on the South Tamiami Trail in Sarasota, upon which it is constructing a 474-unit retirement center. It seeks to construct on six of the 53 acres a 120-bed nursing home adjacent to the retirement center. Of the 120 beds, it is proposed that 60 will be for intermediate care and 60 will be for skilled care. The facility will offer ancillary services in the areas of speech, hearing, physical, occupational, and recreational therapy. Thirty-five intermediate care beds would be classified as beds to be used for Medicaid recipients and the facility would be Medicare certified. Retirement center residents will have priority over nursing home beds. The total capital expenditure for the petitioner's proposed nursing home project was estimated in its application to be $3.1 million, with a cost per square foot of $46.29 and a cost per bed of approximately $26,000,00. As of the date of the hearing, the estimated capital expenditure for the petitioner's project as $3.9 million. The respondent Quality Health Facilities, Inc., d/b/a Sarasota Health Care Center (QHF), is a Mississippi corporation and owns nursing homes in Tennessee, North Carolina and Haines City, Florida, the latter site having been opened in August of 1983. It also holds three other outstanding Certificates of Need. QHF proposes to construct a 120-bed nursing home containing intermediate and skilled care beds which will be equally available to all members of the community. It is anticipated that it will have approximately 65 percent Medicaid usage and 5 percent Medicare usage. Though it has not yet selected its site, QHF plans to utilize a four-acre site near the City of Venice in Sarasota County. At the time of the application, the total capital expenditure for QHF's proposed project was estimated to be $2.3 million. Its construction costs were estimated at $1.16 million or $33.14 per square foot. QHF's recently constructed Haines City nursing home facility was completed at a construction cost of $1.22 million, or $31.00, per square foot. The Sarasota County facility will utilize the same basic design as the Haines City facility. At the current time, the cost of construction would be increased by an inflation factor of about ten percent. As of the date of the hearing, the projected capital expenditure for QHF's Sarasota County proposed facility was approximately $2.6 million or about $21,000.00 per bed. The owners of QHF are willing and able to supply the necessary working capital to make the proposed nursing home a viable operation. As depicted by the projected interest and depreciation expenses, the QHF facility will have lower operating expenses than the facility proposed by petitioner, Health Quest. In Sarasota County, there is a direct correlation between high Medicaid utilization and high facility occupancy. The long term financial feasibility of a 120-bed nursing home in Sarasota County is undisputed, as is the availability, quality of care, efficiency, appropriateness, accessibility, extent of utilization and adequacy of like and existing services in the health service area.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the application of Health Quest Corporation d/b/a Lake Pointe Woods Health Care, Inc. for a Certificate of Need to construct a 120-bed nursing home in Sarasota County be DENIED. It is further RECOMMENDED that the application of Quality Health Facilities Inc. d/b/a Sarasota Health Care Center for a Certificate of Need to construct a 120-bed nursing home facility in Sarasota County be GRANTED. Respectfully submitted and entered this 31st Day of October, 1983, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 1983. COPIES FURNISHED: John M. Laird, Esquire 315 West Jefferson Blvd. South Bend, Indiana 46601 John T. C. Low, Esquire Paul L. Gunn, Esquire Low & McMullan 1530 Capital Towers Post Office Box 22966 Jackson, Mississippi 39205 James M. Barclay, Esquire Assistant General Counsel 1317 Winewood Blvd. Suite 256 Tallahassee, Florida 32301 David Pingree, Secretary Department of Health & Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32301
The Issue At issue in this proceeding is whether respondent committed the offense alleged in the administrative complaint and, if so, what disciplinary action should be taken.
Findings Of Fact Respondent, Adele "Nikki" Leon, holds Florida teaching certificate number 413436, covering the area of emotional disturbances and special learning disabilities. Such certificate is valid through June 30, 1996. At all times material hereto, respondent was employed by the Dade County Public Schools, Palmetto Adult Education Center, as a part-time teacher, and was assigned to teach Adult Basic Education for the Elderly (ABE) at Snapper Creek Nursing Home. Pertinent to this case, respondent's assignment during September and October 1992, included the teaching of an ABE class at Snapper Creek Nursing Home each Tuesday from 3:00 p.m. to 5:00 p.m. According to respondent's attendance reports for that period, twenty-five residents were enrolled in the class. On September 15, 1992, Ivette Morgan, assistant principal of Palmetto Adult Education Center, at the request of Edward Gehret, principal of Palmetto Adult Education Center, visited Snapper Creek Nursing Home to evaluate the adult education program. During the course of that visit, as well as visits on September 22, September 29, and October 20, 1992, Dr. Morgan had an opportunity to observe respondent's Tuesday class. On those occasions, Dr. Morgan noted only four to six residents in the classroom. 4/ Dr. Morgan reported her observations regarding class attendance to Dr. Gehret who, at the time, had been involved with enrollment and attendance review for, inter alia, Snapper Creek Nursing Home. Based on that review, Dr. Gehret observed that respondent had routinely marked all twenty-five residents in her class as "present," which did not square with Dr. Morgan's observations. On October 22, 1992, Dr. Gehret met with respondent to review the discrepancies he perceived in her attendance report procedures. At that time, it was the School Board's policy to mark residents "present" for an ABE class if they appeared at any time during the class period, no matter how briefly; but if they never appeared, to mark them as "absent." 5/ Respondent advised Dr. Gehret that she was of a different perception, and understood that nursing home residents enrolled in an ABE class were not to be marked as "absent" but, rather as "present," whether attending or not, so long as they were still in the facility. Notwithstanding, following the meeting, respondent agreed to conform her attendance procedure to the policy Dr. Gehret outlined. Regarding the discrepancies in respondent's attendance reports, when measured against the School Board's policy, the proof demonstrates that for the attendance reporting periods of September 14-27, September 28-October 11, and October 12-25, 1992, respondent completed and signed the attendance report for her Tuesday class on which she marked as "present" nursing home residents Helen Ambler and Gertrude Monge. Ms. Ambler and Ms. Monge were not, however "present" during such periods since they had died September 2, 1992, and June 15, 1992, respectively. The proof further demonstrated that for the same reporting periods, respondent had marked as "present" nursing home residents Agaton Bolanio, Nazario Lopez, and Martin Ruiz. Mr. Bolanio, Mr. Lopez and Mr. Ruiz were not, however, "present" during such periods since they had been discharged from the nursing home on June 19, 1992, July 20, 1992, and May 14, 1992, respectively. Finally, based on Dr. Morgan's observations of respondent's Tuesday class on September 15, September 22, September 29, and October 20, 1992, wherein she observed no more than four to six residents in attendance, it is reasonable to conclude that a significant number of residents who were marked as "present," other than the residents heretofore mentioned, were likewise not "present" on those dates. Which residents and why they were not present was not, however, established of record. 6/ Regarding the ABE program and the preparation of enrollment and attendance reports at Snapper Creek Nursing Home, the proof demonstrates that the ABE program was under the direction of the nursing home activities director who, without the participation of the instructors, prepared the enrollment for each class. 7/ Accordingly, respondent would not necessarily have known the residents assigned to her class, and reasonably assumed that the list of residents she received from the activities director contained current residents of the nursing home. Likewise, respondent relied on the activities director to advise her when residents died, were discharged or were otherwise no longer able or interested in attending before removing them from the roll; however, such information was rarely provided by the activities director. Finally, absent advice to the contrary from the activities director, respondent did not consider a resident's failure to attend on a given day an absence, as in the traditional classroom setting, and routinely marked them "present." Such practice in the ABE program was reflective of the voluntary nature of the program, as opposed to compulsory attendence in the traditional school setting, and the unavailability of information, except from the activities director, as to the reason a resident did not attend. Notably, residents frequently did not attend because, inter alia, nurses aides failed to bring them to class or they were too ill to attend, as opposed to not wanting to attend the course any longer. That such was the procedure at Snapper Creek Nursing Home, and perhaps other adult education centers in Dade County, finds other support in the record apart from respondent's testimony. For example, another instructor, Evelyn Foster, during the times in question, carried Francies Lambrou as "present" on her attendance record until July 27, 1992, although she was discharged July 2, 1992; and carried Maria Diaz, Carmen Morela, and Lorenzo Legundo as "present" until at least October 9, 1992, although Ms. Diaz and Ms. Morela were discharged September 5, 1992, and Mr. Segundo was discharged September 24, 1992. Moreover, Dr. Morgan found it necessary, at sometime between September 15 and October 26, 1992, to give the activities director specific instructions on how attendance was to be recorded, and Dr. Gehret found it necessary to conduct a "rollbook workshop" at Snapper Creek Nursing Home for all instructors, as well as agreeing to urge the nurses aides to bring the residents who desired to attend to class. [Petitioner's exhibit 1, pages 17 and 21, and respondent's exhibit 12.] Finally, there is of record a memorandum of July 8, 1993, almost one year after the events at issue in this case, from Connie Gilbert, District Director, Division of Adult Education, Dade County Schools, to all adult education center principals, which suggests continued confusion in attendance procedures for off- campus classes and that the practice at Snapper Creek Nursing Home was not an isolated occurance. That memorandum provided, in part, as follows: SUBJECT: ATTENDANCE PROCEDURES Off-campus visitations have revealed problems and confusion about attendance procedures. Please inform all teachers of the following procedures: Students must be present in a teacher's class and participate in the class activities in order for the teacher to mark this student present in that class. * * * Please make sure that off-campus teachers understand that students present "someplace in the facility" can not be considered present in a particular class. Students must be physically present in a class in order to be marked present in that class. Given the proof, it must be concluded that respondent's failure to record attendance in accordance with school board policy was, more likely than not, a consequence of a misunderstanding of, or ignorance of, that policy. In this regard, it is observed that no state policy for recording ABE attendance was established of record, and no proof that any policy established by the school board had been reduced to writing or imparted to respondent, or any other adult education instructor, prior to the events giving rise to the issues in this case. Accordingly, it follows that there was no compelling proof that respondent, by completing the attendance reports in the manner she did, had any intent to deceive the school board.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered dismissing the administrative compliant. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 18th day of May 1995. WILLIAM J. KENDRICK 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 18th day of May 1995.
Findings Of Fact The semi-annual census report by DHRS for District. III dated December 1, 1984, (Exhibit 23) indicated a need for 615 additional nursing home beds for the January 1985 review cycle. Although this report cautioned that changes in reporting and pending litigation or appeals could change the count of approved beds, nevertheless, most of the applicants for beds in the January 1985 batching cycle relied on this report as the basis for their applications. At the time this report was submitted, District III was subdivided into seven sub districts, and the need for each sub district was separately listed. Prior to the completion of the review of the applications in the January 1985 batching cycle, some 500 nursing home beds in District III were allocated to applicants in earlier batching cycles whose applications had been denied for lack of need, and who were in the process of appealing those denials. Many of these applications had been updated and those beds were issued by DHRS pursuant to its then-current policy of issuing beds on a first come-first served basis. As a result, only some beds were allocated to those applicants in the January 1985 batching cycle before the pool of available beds was depleted. Furthermore, rule changes became effective before the January 1985 batching cycle applications were reviewed which eliminated sub districts in District III. Largely because of the allocation of beds to applicants in earlier batching cycles, but also due to population based changes in District III, the bed need methodology, using data current at the time of the hearing and computing need to January 1988, shows there will be an excess of 342 nursing home beds in District III in 1988. (Exhibit 33) Eustis Limited Partnership The initial application of Eustis was for 8 additional beds which involved construction costs. The amended application which was considered in this hearing is for three (3) beds with costs allocated only for the equipment and furniture needed to add a bed to three existing rooms. As amended, Eustis' application is very similar to the application of Oakwood Nursing Center who was granted a CON for the addition of three (3) beds without construction costs. At the time Oakwood's CON was granted, DHRS was in the process of granting CONs for 103 beds. At the time Eustis submitted its application, all of the 615 beds initially available had been dispensed and there was no need for additional beds. At this hearing, Eustis produced no evidence to show a need for the three (3) beds for which Eustis applied. The evidence submitted by Eustis primarily showed that by simply adding a bed to three existing rooms, the cost per bed added was far less than would be the cost of constructing new facilities. Inverness Convalescent Center (ICC) ICC proposes to construct and operate a 120-bed nursing home in Citrus County at a cost of $3,400,000. (Exhibit 15) Citrus County has four licensed nursing homes with a total of 430 beds and an average occupancy rate of less than 90% during the last reported six-month period. (Exhibit 17)- During the last quarter of 1985, the occupancy rate in Citrus County nursing homes was the lowest of the planning areas in District III, and in the first quarter of 1986, it was second lowest. ICC contends the need formula doesn't apply to their application because they propose to serve special needs of the elderly, such as institutionalized patients, head trauma patients, etc. However, the only testimony presented indicating a need in Citrus County for such special services came from ICC owners and employees who live in New Jersey. ICC further contends that since there are less than 27 nursing home beds in Citrus County per 1,000 residents over age 65, that an additional nursing home is needed in Citrus County. However, the 27-beds per 1,000 population is but one factor considered in determining need for nursing home beds. In short, ICC presented no evidence to show that need exists in Citrus County for the proposed facility. Beverly Enterprises Beverly's application is for a CON to add 60 beds to an existing 120-bed nursing home in Live Oak, Suwannee County, Florida, at Suwannee Health Care Center. This facility was opened in 1983 and reached full capacity in seven to nine months. There are two nursing homes in Suwannee County; Suwannee Health Care Center, (HCC) and Advent Christian Village, Dowling Park (ACV). The latter is a church owned retirementc ~B community of 550 residents which provides a continuum of care on five levels. Although Advent Christian is not licensed as a life care community, it gives priority of admission to its 107 licensed nursing home beds to residents of the life care community. As a result, there are few vacancies available for persons living outside the retirement community. Advent - Christian has a waiting list of 32 on the active waiting list and ~20 on an inactive waiting list. People on waiting lists are told the wait is from one to five years for admission. Suwannee HCC has an occupancy rate approaching 100% and a waiting list of approximately 50. As a result, the vast majority of Suwannee County residents needing nursing home care are sent to a nursing home outside Suwannee County, usually in Gainesville, some 65 miles from Live Oak. The planning area in which Suwannee County is located, formerly sub district 1 in District III, has five nursing homes with an average occupancy rate for the last three months of 1985 and the first three months of 1986, ranging from 96.91% to 99.75%. During the first three months of 1986, the occupancy rate of three of these nursing homes was greater than 99%' one as 98.7% and the lowest, Advent Christian, was 96.91% (Exhibit 17). The patient mix at Suwannee ACC is over 80% Medicaid and approximately one-third black. The black population is about 30% of the total population in Suwannee County. Suwannee HCC has had several superior ratings (Exhibits 9, 10), takes patients in order on the waiting list regardless of whether they are Medicaid or private pay, and has a very good reputation in the area for service. DHRS personnel who approve Medicaid placement of patients, hospital employees who have the duty of placing patients in nursing homes, nursing home personnel, and private citizens with relatives in nursing homes, all confirmed the critical access problems of Suwannee County residents for local nursing home placement. Live Oak residents, for example, who need placement in a nursing home are usually sent outside Suwannee County, have their names added to waiting lists at nursing homes in Live Oak, and nursing homes closer to Live Oak than the nursing home in which they are placed, and move to the closer nursing home when a vacancy occurs. As a result, most of the vacancies at Suwannee HCC are filled by patients who were, first transferred outside Suwannee County for nursing home placement, and got on the waiting list at Suwannee HCC. There are very few patients from Suwannee County who are initially placed in a Suwannee County nursing home. Southern Medical Associates (SMA) SMA proposes to construct and operate a free standing, 60-bed, skilled nursing home in Palatka, Putnam County, Florida, at a cost of $1,692,400. (Exhibit 19) When SMA's application was submitted the computation of bed need in Suwannee County under the sub district rule in effect when the application was submitted, showed 30 beds needed in Putnam County. This calculation included 36 beds earlier approved but not yet licensed. At the time of this hearing those approved 36 beds had been revoked by reason of not beginning construction in a timely fashion. The medical consultant who reviewed these applications and prepared most of the State Agency Action reports, (Exhibit 30) initially recommended that SMA'S application be granted. The two existing nursing homes in Putnam County have an occupancy rate in excess of 98 percent for the latest reported 3 month period. (Exhibit 17) 85 to 90 percent of these patients are Medicaid patients. The one nursing home in Palatka, Putnam Memorial Nursing Home, is a 65-bed nursing home with an occupancy rate in excess of 99 percent for the past year, and on the date of hearing had 18 people on the waiting list for a bed. The turnover in this nursing home is about 50 percent each year, with most vacancies resulting from the death of a patient. Two HRS employees whose job it is to determine eligibility of residents of Putnam County for Medicaid reimbursement for nursing home care, testified that they very, seldom see a patient go to Putnam Memorial Nursing Home, that over half of the patients they qualify for eligibility are sent out of the county, and of those placed in the county, almost all are placed at Lakewood Nursing Home which is located 18 miles from Palatka. The only hospital in Putnam County discharges 5 to 6 patients per month who need additional nursing care after discharge. Most of these patients are sent to nursing homes in St. Augustine, Florida, a few are sent to Lakewood, but for very few is a bed available in Palatka.
The Issue Whether Petitioner's application for a Certificate of Need ("CON") authorizing establishment of a 60-bed sheltered nursing home adjacent to a 75-unit life care residential facility in HRS Health District IX, Palm Beach County, Florida, should be granted (in whole or in part), or denied.
Findings Of Fact I. The Proposal Petitioner is a not-for-profit Florida corporation organized to provide retirement and nursing home services to aged Episcopalians in the three Episcopal Dioceses in Florida: Central, Southwest and Southeast. Since 1951, Petitioner has operated a life care facility or community, with adjacent nursing home, in Davenport, Florida. It has 71 residential (well-care) units and 60 nursing home beds, operates at nearly full capacity, and has a 3-to-5 year waiting list. There are 128 residents at the facility, 57 of whom live in the nursing home. Petitioner now seeks to replicate the (Davenport) Crane Gray Inn in Lake Worth, Palm Beach County, Florida, in order to better serve the needs of older Episcopalians. The life care community, consisting of a 60-bed skilled nursing home and a 75- unit retirement facility, would be convenient to the residents of the Southeast Florida diocese, but is expected to draw residents throughout Florida. The 60-bed skilled nursing home, for which a CON is required, would be a one-story building measuring 19,100 square feet. Initially estimated to cost $1,705,515, or $68.06 per square foot to construct and equip, actual bids subsequently received have reduced the expected cost to $60.00 per square foot. The total cost of the entire project, including the well- care and nursing-care facilities, is estimated to be $3,600,000. Petitioner intends to obtain certification of the entire project as a continuing care facility in accordance with Chapter 651, Florida Statutes. In March, 1985, the State of Florida Department of Insurance and Treasurer issued Petitioner a provisional license to operate the proposed facility as a continuing care facility.2 Petitioner intends to comply with the reporting and escrow requirements which Chapter 651, Florida Statutes, imposes on life-care facilities. The admission requirements for the proposed life care facility are the same as those which have applied to the Davenport Crane Gray Inn ("Inn"). Before admission, a resident must execute a continuing care or "Resident's Agreement" with the Inn. Under that agreement, in exchange for the future maintenance and support of the resident at the Inn for the remainder of the applicant's life, the applicant transfers all of his or her real and personal property to the Inn. The resident also agrees to execute a will to the Inn to effectuate the transfer of property then owned or later acquired. No entrance fee is charged. The Inn promises to provide the resident with a personal living unit (including all utilities); three meals a day; health care (including medicine, physician fees, dental care, and hospitalization); recreational, educational, social and religious programs; funeral and burial costs; a monthly allowance for personal expenses; weekly maid service and laundry facilities; and transportation for shopping trips and other activities. Either party may terminate the agreement under specified conditions. On termination, the Inn will transfer back to the resident the property previously conveyed, or a sum equal to the value thereof, without interest and deducting therefrom an amount sufficient to compensate the Inn for the resident's care and support while at the Inn. If the resident becomes eligible for social security or government assistance, such assistance is paid to the Inn for the support of the resident. If the resident dies while at the Inn, all property transferred to the Inn on admission is considered to have been earned and becomes the property of the Inn. (Joint Exhibit I) There is no requirement that a prospective resident have any assets and applicants are ostensibly admitted without regard to their financial condition. (However, in the past ten years, only two Medicaid patients or indigent residents have been admitted to the Davenport Inn.) An account for each resident is maintained, to which earnings are transferred and costs of care deducted. Residents without assets are treated the same as those with assets and the account information is treated confidentially. Over time, the accounts of residents are depleted. Currently, 68% of the patients at the Davenport nursing home are Medicaid patients. The per diem rate reimbursed by Medicaid is $51.25. No resident has ever been transferred for lack of funds. However, the average resident, when admitted, transfers assets worth approximately $24,000 to the Inn. Prospective residents of the proposed nursing home will ordinarily come from the adjacent well-care retirement units. The purpose of the nursing home is to serve the individuals residing in the life care community who, as their needs intensify, require skilled nursing care. Only on rare occasions will an individual be admitted directly to the nursing home without first residing in the well-care portion of the life care community. At the Davenport Inn, this has happened only once. Petitioner acknowledges that prospective nursing home patients may come from eligible Episcopalians who reside in nursing homes in the local community. Actual residence in the well-care units will not be a prerequisite to admission to the nursing home. However, no person has been, or will be, admitted to the nursing home without first executing a continuing care agreement. Direct admission of nursing home patients from outside the life care center is permissible under "sheltered nursing home" rules, as construed by HRS officials. Robert E. Maryanski, Administrator of HRS' Community Medical Facilities Office of Health Planning and Development (which implements the CON licensing process) advised Petitioner's counsel on September 20, 1985, that under HRS rules, patients may--if necessary--be admitted directly to the proposed nursing home without first residing in the well-care units. Individuals who have paid for membership with the particular life care center, finding themselves in immediate need of nursing home care, may be directly admitted into the nursing home. (Petitioner's Ex. No. 11) If HRS rules were interpreted otherwise, perfunctory stops in well-care units "on the way to the nursing home" would be encouraged, a practice which would burden patients and serve no useful purpose. Although Petitioner's CON application does not specify a minimum age for admission to the life care community, Petitioner's life care centers are oriented toward members of the Episcopal Protestant Churches who are at an advanced age and "need a place to go for their last days... [In] a lot of cases they have outlived their own children." (TR-34) The average age of the patients in the Davenport nursing home is 89; in the well-care retirement units, 82. The average overall age of members of the Davenport life care community is 84 or 85. Approximately one-half of the residents eventually need nursing care. At Davenport, the minimal age for admission is 71. (TR- 12) According to a member of the Board of Directors of Petitioner, only patients 70 or over will be admitted to the life care community proposed for Palm Beach County. (TR-35) There is already a waiting list of ninety (90) qualified persons for the proposed life care community in Palm Beach County. Out of that figure, only five people currently require nursing home services. After executing the standard continuing care agreement, these five people would be admitted directly to the nursing home facility, without first residing in a well-care unit. Waiting lists are compiled six times a year, with the most recent completed only a week prior to hearing. Petitioner does not intend to utilize all the nursing home beds, since it must keep some beds open to meet the needs of well-care residents. Nursing home beds at the Palm Beach facility would be filled gradually, approximately two per week, so it would take six months to reach optimum capacity. The parties stipulate that all criteria for evaluating CON applications under Section 381.494(6)(c) and Rule 10-5.11, Florida Administrative Code, have been met or are inapplicable except for the following: The long-term financial feasibility of the project, the availability of operating capital, and the economic impact on other providers (Section 381.494(6) (c)8, 9, Fla. Stat.); The cost of construction (Section 381.494(6) (c)13, Fla. Stat.); The ratio of beds to residential units (Rule 10-5.11(22)(a), Fla. Admin. Code). II. Financial Feasibility The historical track record of the Davenport facility over the last 13 years and projections for the proposed facility demonstrate that the proposed nursing home is financially feasible and that Petitioner has, or can obtain sufficient funds to meet its operating costs. Moreover, as a licensed Chapter 651 life care facility, the financial viability of the entire operation will be monitored by the Department of Insurance. Assets available to support the costs of operating the life care community include income and assets derived from incoming residents; estates and bequests; and a fund of 1,300,000.00, functioning as an endowment, to be placed in escrow. The cost for a resident in the well-care units is approximately $27 per day; the cost in the nursing home is approximately $54 per day. Although there is a deficit of approximately $300 per month in the well-care section of the Davenport facility, there is no deficiency in the nursing home. Medicaid payments are sufficient to cover the costs of providing nursing care. Philanthropy should not be required to sustain the operation of the proposed nursing home. Petitioner has never had difficulty in obtaining financial support for its Davenport well-care units. More than one-half of the operating deficit for the well-care units was met by funds at work and did not depend on philanthropy. There are over 200 Episcopal Churches in the three Florida dioceses with 90-100,000 parishioners, who have been responsive to fund- raising efforts in the past. Last year, Petitioner raised $693,000 from fund raising drives. It is reasonably expected that this source of financial support will also be available to support the proposed life care facility, including the nursing home. An endowment fund of $1,300,000 is also available. These funds will be made available to support the proposed life care community. In addition, each new resident contributes an average of $24,000, which is used to defray operating costs. Barnett Bank will finance construction of the project at one-half percent over prime. Petitioner intends to pay off the capital debt in two or three years. The land has already been acquired and some land preparation costs have been paid. Petitioner has expended over $800,000, to date, on the proposed life care community. Petitioner has $120, 000 on hand for the project, in addition to escrowed reserves. An HRS health care planner has misgivings about the financial viability of the project since Petitioner has relied on philanthropy to support its Davenport facility, and would rely on it to some extent to support the proposed facility. However, Petitioner projects that 77% of the nursing home patients at the proposed facility will be Medicaid eligible. Due to efficiencies in operation, Medicaid payments should be sufficient to cover the costs of nursing home patients at the proposed facility, just as they have been at the Davenport nursing home. The various sources of funds available to Petitioner--proven wholly adequate in the past--should be sufficient to cover the other costs of operation and ensure the continued financial viability of the nursing home, as well as the associated well-care units. III. Cost of Construction HRS contends that the initial estimate of construction costs for the proposed nursing home ($68.00 per square foot) is excessive when compared to other 60-bed nursing facilities, where the cost is approximately $10.00 less per square foot. But, through various cost-cutting measures, the cost of the project has now been reduced to approximately $60.00 per square foot, which is reasonable and in line with the other nursing home projects. IV. Ratio of Nursing Rome Beds to Residential Units Rule 10-5.11(22)(a), Florida Administrative Code, provides that HRS "will not normally approve an application for new or additional sheltered nursing home beds if approved would result in the number of sheltered nursing home beds that exceed one for every four residential units in the life care facility." The parties stipulate that, absent unusual or exceptional circumstances, this rule would preclude approval of more than 19 of Petitioner's 60 proposed nursing home beds. The proposed nursing home, like the Davenport facility it duplicates, will be unique, unusual or extraordinary, when compared with other nursing homes in Florida, due to the advanced age of its patients. No one under 70 will be admitted. The average age of its patients is expected to approach 89 with the average age of well-care residents approaching 82. Approximately one-half of the well-care residents will eventually require transfer into the nursing home. People of advanced age are more likely to require nursing home care. Based on Petitioner's historical experience at its Davenport facility, it is likely that 60 nursing home beds will be required to meet the needs of residents of the proposed well- care units. It has been shown that the proposed 60 nursing beds will be needed to serve the needs of well-care residents as they age and their health care needs intensify. That has been the case at the Davenport facility, where rarely has a patient been admitted to the nursing home who did not first reside in the well-care units. The proposed nursing home and life care center will draw patients and residents similar to those drawn by the Davenport facility--the state-wide applicant "pool" of both is expected to be the same. For this reason, the proposed nursing home should have no significant impact on the census of, or need for, community nursing homes in Palm Beach County. It appears that the rationale behind the four-to-one (residential units to nursing home beds) ratio of the HRS rule is that, under normal or ordinary conditions, only one nursing home bed will be required to serve the residents of four well- care units. In the instant case, actual experience has shown this assumption to be patently erroneous. If only 19 nursing home beds were allowed Petitioner--because of the ratio cast in HRS rules--it is likely that many well-care residents at the proposed life care center would be forced to find nursing care outside of the center. Displaced, placed in nursing homes distant from the life care community, such patients would lose close contact with spouses and friends. The HRS rule, embracing a numerical ratio for the norm, allows flexibility in particular situations which are shown to be abnormal. The circumstances of the instant case show it to be an abnormal situation, fully justifying approval of 60-beds sought, rather than the 19 otherwise permitted by the HRS rule.
Recommendation Accordingly, based on the foregoing, it is RECOMMENDED: That Petitioner's application for a CON authorizing establishment of a 60-bed nursing home in Palm Beach County be GRANTED; and that the CON, on its face, state that issuance is predicated on Petitioner's statement of intent (during Section 120.57(1) licensing proceedings) that (i.) no one under 70 years of age will be admitted to the life care community (including both well-care and nursing-care sections) and (ii.) that, only in relatively rare and unusual cases, will patients be directly admitted to the nursing home without first residing in the well- care residential units of the life care communities.3 See, Section 381.494(8)(g), Florida Statutes (1985). DONE and ORDERED this 14th day of March, 1986, in Tallahassee, Florida. R. L. CALEEN, 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 14th day of March, 1986.
