Findings Of Fact Respondent is, and has been at all times material to the allegations of the Administrative Complaint, a registered nurse in the State of Florida, having been issued license number 1553112. Respondent's nursing license is current through March 31, 1987. In April 1984, Respondent applied for a license to practice nursing in the State of Florida. On this application she indicated she had never been arrested for any offense other than a traffic violation. The aforesaid application was signed by Respondent under oath. However, on or about 7 September, 1974, Respondent pleaded guilty to a charge of abduction of a female. Respondent was convicted of the aforesaid crime and sentenced to not less than three (3) nor more than ten (10) years in a state prison with execution of sentence suspended and Respondent placed on probation for a period of three (3) years. Marianne Gauthier and Respondent are one and the same person. Respondent was tried in a county court in West Virginia and never actually served any prison time. Upon successful completion of her probation period, Respondent was released from all provisions of probation. Subsequent to her arrest and conviction in 1974 Respondent completed a four year college curriculum to qualify as a registered nurse and has had no further involvement with any law enforcement authority. RECOMMENDED that Respondent be issued a reprimand for failure to accurately complete her license application and be placed on probation for a period of 6 months. Entered this 11th day of April, 1986 at Tallahassee, Florida. K. N. AYERS, 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 11th day of April, 1986. COPIES FURNISHED: William M. Furlow, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Marianne E. Abbott 1824 Cadillac Circle Tampa, Florida 33619
Findings Of Fact At all times material hereto, Miracle Hill was and is a skilled nursing home licensed by the Petitioner herein. During the three-week period prior to November 10, 1980, three of the full-time registered nurses employed by Miracle Hill resigned in order to commence employment with the State of Florida, since the State had substantially increased pay for nurses employed by the State. On October 29, 1980, Mary Jane Fears, the regular registered nurse on the morning shift at Miracle Hill, submitted her resignation effective November 15, 1980. Accordingly, on November 1, 1980, Miracle Hill began advertising in the Tallahassee Democrat its registered nurse vacancies. Although the ad appeared on ten consecutive days, no response was received to the advertisement. Nurse Fears was scheduled to work on November 10, 1980. On that morning, she called in to say she was ill and would not be coming to work. Bernardine Blackshear, the Director of Nursing at Miracle Hill, attempted to replace Nurse Fears but was unable to obtain the services of a substitute registered nurse. She did obtain a substitute licensed practical nurse for that morning shift. Nurse Blackshear maintains a list of substitute nurses for use in emergency situations. These persons were contacted in order to obtain sufficient staffing during November, but Miracle Hill was unable to locate enough substitute help to have a registered nurse on the morning shift each day. In addition to contacting all persons on the "substitute list" and advertising in the Tallahassee Democrat, the administrators at Miracle Hill also contacted Upjohn and Quality Care two nursing employment agencies, but the agencies were unable to obtain the services of anyone for Miracle Hill's morning shift. At the time, there was a severe nursing shortage in the Tallahassee area where Miracle Hill is located. Despite the efforts made to avoid the situation, Miracle Hill had no registered nurse on duty on its morning shift on November 10, 18, 22, and 23, 1980. There were on duty, however, several licensed practical nurses. Additionally, Nurse Blackshear was on call at her home located one-and-a-half miles from Miracle Hill; and the two licensed physicians employed by Miracle Hill were also accessible. As a result of an anonymous phone call, Petitioner sent one of its consultants, James L. Myrah, to Miracle Hill on November 25, 1980, to investigate the alleged nursing staff shortage. Upon speaking with Freddie L. Franklin, the licensed administrator of Miracle Hill, an upon reviewing Miracle Hill's records, Myrah determined that Miracle Hill had no registered nurse on duty at the facility on the four mornings in question. Additionally, Franklin told Myrah there might be a problem within the next few days since he had not been able to locate anyone willing to work Thanksgiving weekend. Subsequent to Myrah's visit to the facility, Miracle Hill hired Mary Jefferson, a registered nurse, to provide nursing coverage at the facility over the Thanksgiving weekend. Nurse Jefferson worked the morning shift on November 29, 1980, but called in on the morning of November 30 to say she would not work that day. Once again, Blackshear attempted to find a replacement registered nurse but was unable to do so. A licensed practical nurse was called in to replace the registered nurse. On December 1, 1980, Myrah revisited the facility to evaluate the registered nurse staffing over the Thanksgiving weekend. He, of course, discovered that no registered nurse was on duty during the morning shift on Sunday, November 30, 1980. At Miracle Hill, the morning shift normally is staffed by three nurses and six nurse's aides. On the afternoon shifts, only four aides are on duty with two nurses, including a registered nurse. Petitioner assessed a maximum fine of $500 per day against Miracle Hill for all five days on which no registered nurse was present at the facility during the morning shift, for a total administrative fine of $2,500. Dorothy Stratton, an employee in Petitioner's Jacksonville Office of Licensure & Certification, recommended to her superiors that the maximum fine be assessed since she considers it a serious deficiency for a nursing home to not have a registered nurse on duty in the morning. Although Stratton is aware that Miracle Hill is regarded by Petitioner as a model for nursing home operating procedures and usually obtains a perfect rating during inspections by the State, she has no knowledge regarding the circumstances causing Miracle Hill to violate the nursing requirements on the five days in question and has no interest in learning these circumstances. Stratton does not know who made the decision to assess the maximum fine allowable, and no testimony was presented by the Petitioner regarding who made that decision or regarding the circumstances considered in that decision. Petitioner has no written guidelines for determining whether a fine should be assessed or the severity of such a fine. During the three-and-a-half years that Freddie Franklin has been the administrator at Miracle Hill, there have been no other citations for nursing staff shortage, except those which are the subject of this Administrative Complaint. Additionally, there have been no major violations of any of Petitioner's requirements during Franklin's tenure.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED THAT: A final order be entered finding Respondent in violation of staffing requirements by failing to have a registered nurse on duty on the A.M. shift on November 10, 18, 22, 23, and 30, 1980, and further finding that the assessment of a fine for that violation to be unwarranted under the circumstances of this cause only. RECOMMENDED this 18th day of December, 1981, in Tallahassee, Florida. LINDA M. RIGOT 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 18th day of December, 1981. COPIES FURNISHED: John L. Pearce, Esquire Department of Health and Rehabilitative Services 2639 North Monroe Street Suite 200-A Tallahassee, Florida 32303 Robert I. Scanlan, Esquire Post Office Box 10311 Tallahassee, Florida 32302 Henry C. Hunter, Esquire Suite 320 Lewis State Bank Building Tallahassee, Florida 32301 Mr. David Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Petitioner, CASE NO.: 81-991 vs. MIRACLE HILL NURSING AND CONVALESCENT HOME, INC., Respondent. /
Findings Of Fact At all times material to this proceeding, the Respondent has been a licensed practical nurse in the State of Florida, having been issued license number PN 0695621. Before 1987, the Respondent practiced nursing for approximately 30 years, including some time for the United States Marine Corps, without any occasion for license discipline. During 1987, through August 2,1987, the Respondent was employed as a licensed practical nurse at Haines City Health Care Center. During 1987, the Respondent's performance at work at the nursing home was adversely affected by situational depression caused in part by the pain probably caused by an arthritic condition that involved the temporomandibular joint and in part by a reaction to the medication prescribed to alleviate the pain On many occasions while the Respondent was working at the Haines City Health Care Center in 1987, the Respondent experienced dramatic mood changes.. She would act normal, even very happy, one minute, and become very depressed, even crying, the next. In February, 1987, the Respondent signed the medication administration record indicating that she had performed a dressing change on a patient when she in fact had not performed the dressing change. On July 31, 1987, the Respondent charted in the medication administration record the administration of procardia to a patient when she in fact had not administered the medication. On August 2, 1987, the Respondent had the assignment, among other things, to clean out some medicine carts. She accumulated 14 assorted pills but could not dispose of them because another nurse was required to be there to verify the proper disposition of the pills. She put the pills in a souffle cup and covered them with a plastic cup, planning to dispose of them properly when another nurse was available to watch her. Time went by, and the Respondent got busy doing other things, and she forgot to dispose of the pills. She did not realize her error until she got home after her shift was over. She telephoned to ask the nurse on the next shift to dispose of the pills in the presence of another nurse. She also asked the nurse not to report her error to their supervisor. The incidents described in Findings 4 through 6, above, constitute unprofessional conduct which departs from, or fails to conform to , the minimal standards of acceptable and prevailing nursing practice. There was no evidence that any of the incidents described in Findings 3 through 6, above, resulted in any physical harm or injury to a patient (although failure to administer prescribed procardia could have endangered the health of the patient under some circumstances.) Thinking that the Respondent's performance deficiencies and mood changes may have been evidence of a chemical dependency of some kind, the staff at the Haines City Health Care Center recommended that the Respondent submit to an evaluation and treatment, if necessary, by the Intervention Project for Nurses (IPN). The Respondent agreed and enrolled on September 23, 1987. Testing convinced the professional working for the IPN that the Respondent had no chemical dependencies but indicated to them that she may benefit from psychiatric evaluation and treatment for depression. The Respondent considered some of the suggestion to be cost-prohibitive for her means, but she did see visit her medical doctor, who prescribed an antidepressant. Her doctor advised her to discontinue the medication when the Respondent noticed undesirable side- effects. By not completing the recommended psychiatric evaluation and treatment and not filing required status reports, the Respondent did not comply with the requirements of the IPN, and was dismissed from the program without having completed it. When the Respondent returned to the Haines City Health Care Center, she was not given back her job. She then sought and was given employment as an LPN at another facility, the Ridge Convalescent Center, Inc., and has been a satisfactory employee from February 15, 1988, through the date of the final hearing, December 9, 1988.
Recommendation Based on the foregoing Findings Of Fact and Conclusion Of Law, it is recommended that the Board of Nursing enter a final order finding the Respondent, Gloria A. Williams, guilty of three separate violations of Section 464.018(1)(f), Florida Statutes (1987), and placing her on probation for one year conditioned on her submission for reevaluation of her mental and emotional stability by a psychiatrist or psychologist approved by the IPN, on her completion of any recommended follow-up treatment, and on her submission of quarterly progress reports while on probation. RECOMMENDED this 13 day of January, Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13 day of January, 1989. APPENDIX TO RECOMMENDED ORDER CASE NO. 88-4411 To comply with the requirements of Section 120.59(2), Florida Statutes (1987), the following rulings are made on the Petitioner's proposed findings of fact: Accepted and incorporated. Rejected, but only because the Respondent's employment at Ridge Convalescent Center, In., between February 15 and at least December 9, 1988, is relevant to the alleged violation of Section 464.018(1)(h), Florida Statutes (1987); otherwise, accepted and incorporated. 3.-12. Accepted and incorporated to the extent necessary and not subordinate. COPIES FURNISHED: Michael A. Mone', Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Gloria A. Williams 2900 Powerline Road, Lot 88 Haines City, Florida 33844 Judie Ritter, Executive Director Board of Nursing 504 Daniel Building 111 East Coastline Drive Jacksonville, Florida 32201 Bruce D. Lamb, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact The Respondent is a nursing home licensed by the Petitioner, Department of Health and Rehabilitative Services, pursuant to Chapter 400, Part I, Florida Statutes. The Petitioner is an agency of the State of Florida charged with enforcing the provisions, as pertinent hereto, of Chapter 400, Part I, Florida statutes and section 10D-29.118(6), Florida Administrative Code. On or about July 26, 1983, an investigation was conducted by Stanley Charles Peake, a hospital consultant for the Petitioner's Office of Licensure and Certification, at the Respondent's facility. It was discovered on that date (and established by witness Peake's testimony) that Nurse Sally Albury, a nurse employed by the Respondent, had failed to properly document the administration of medication to two patients who were residents of the Respondent's nursing home, the Port St. Lucie Convalescent Center. Entries recording the administration of medications to the two patients were not made, nor was any record made of the patients' condition prior to the administration of the "prn" medications. Further, the medications were to be on the "prn" or "as-needed" basis, and yet the medications were ultimately recorded as late entries showing that the medication was administered at the same time every day, when instead it was supposed to have been a "prn" medication. Further, the late entries made by Nurse Albury not only did not reflect any explanation of the patients' conditions, but no changes in condition were recorded to justify that medication (Thorazine) and the particular amounts involved. The appropriate way to correct a nursing chart concerning medication when the entry is made "after the fact" is to clearly indicate in the record that it is a late entry, which was not done by Nurse Albury in this case. Finally, the Respondent agreed in the course of the proceeding, that Nurse Albury had failed to follow the requirements of Rule 10D-29.118(6) concerning the nurses recordkeeping responsibilities. The subject deficiencies were only noted as to two charts pertaining to two patients, and immediately upon being informed of the deficiencies caused by Nurse Albury, the facility reprimanded her and ultimately terminated her employment at the Respondent's facility.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and arguments of the parties, it is, therefore RECOMMENDED: That the Respondent, Eden Park Management Company, Inc. d/b/a Port St. Lucie Convalescent Center, be found guilty of a violation of Sections 400.141(6), Florida Statutes, 400.102(1)(a) and (c), Florida Statutes, and Rule 10D-29.118, Florida Administrative Code, for which violations a $100 fine should he imposed. DONE and ENTERED this 31st day of July, 1984 in Tallahassee, Florida. P. MICHAEL RUFF 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 July, 1984. COPIES FURNISHED: K. C. Collette, Esquire Department of Health and Rehabilitative Services District IX Legal Counsel 111 Georgia Avenue 3rd floor West Palm Beach, Florida 33401 Mark W. Hoffman, Esquire HOFFMAN and BERNINI, P.A. 87 Columbia Street Albany, New York 12210 David Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue The issues to be determined are whether Respondent committed the acts alleged in the Administrative Complaint and if so, what penalties should be imposed?
Findings Of Fact Petitioner is the state agency responsible for regulating the practice of nursing assistance pursuant to Section 20.43 and Chapters 456 and 464, Florida Statutes. At all times relevant to these proceedings, Respondent was a certified nursing assistant, having been issued license number 84961. Her address with the Department of Health is Post Office Box 402, McIntosh, Florida 32664. On June 25, 2007, a Final Order was entered by the Board of Nursing against Respondent. The Final Order required Respondent to pay a fine of $50.00, enroll in and successfully complete courses in Legal Aspects for Nursing Assistants, and placed Respondent on probation for two years. A condition of the two-year probation was “[w]hether employed as a nurse or not, the licensee shall submit written reports to the Nursing Compliance Officer which shall contain the licensee’s name, license number, and current address; the name, address, and phone number of each current employer; and a statement by the licensee describing her employment. This report shall be submitted to the Nursing Compliance Officer every three (3) months in a manner as directed by the Nursing Compliance Officer.” (Emphasis supplied.) Respondent’s probation required that she “be responsible for assuring that reports from nursing supervisors will be furnished to the Nursing Compliance Officer every three (3) months. That report shall describe the licensee’s work assignment, work load, level of performance, and any problems." Quarterly self-reports and reports from her nursing supervisor, if any, were due to the Department on September 24, 2007, December 24, 2007, March 24, 2008, June 24, 2008, September 24, 2008, December 24, 2008, March 24, 2009, and June 24, 2009. Failure to comply with the terms of probation contained in the Final Order without prior written consent from the Board of Nursing was a violation of Respondent’s probation. As part of the Final Order a Notice of Appeal Rights was included, indicating that Respondent had 30 days to file a Notice of Appeal with the clerk of the department pursuant to Section 120.68, Florida Statutes, if she wanted to challenge the Final Order. Shaila Washington, a compliance officer for the Board of Nursing, was Respondent’s compliance officer. As Respondent’s compliance officer, Ms. Washington mailed Respondent the Board of Nursing's standard information packet on July 18, 2007. The packet outlines the terms imposed by the Board and summarizes what the Respondent needed to do in order to comply, including definite due dates listed above. The letter accompanying the information packet states in bold, "Remember, it is your responsibility to read the final order and ask questions if you do not understand it." Respondent did not contact her compliance officer regarding the information packet mailed to her. She also did not appeal the final order. Ms. Washington testified, and Respondent confirmed, that Respondent failed to submit any of the quarterly reports, by Respondent or any supervisor, as required pursuant to the terms of Respondent’s probation. Respondent stated that she did not file any of the reports because she was not working as a CNA. However, the Final Order was clear that even if Respondent was not employed, she was required to follow the probation terms and submit the reports.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That the Florida Board of Nursing enter a Final Order finding that Respondent has violated Section 464.204(1)(b) and Section 456.072(1)(q), Florida Statutes. It is further recommended that Respondent’s license to practice nursing assistance be reprimanded and that Respondent’s license be suspended, with the suspension stayed for 60 days to allow Respondent to comply with the terms of the Board’s prior Final Order. If within 60 days Respondent has not complied with the terms of the Board’s prior Final Order, it is recommended that the stay will be lifted and the suspension be imposed. The suspension will be lifted upon Respondent’s compliance with the Board’s prior Final Order. DONE AND ENTERED this 3rd day of December, 2009, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of December, 2009.
The Issue Whether Respondent Employer committed an unlawful employment practice by discrimination on the basis of age and/or retaliation1/ against Petitioner, in violation of Chapter 760, Florida Statutes.
Findings Of Fact Petitioner, Deanna L. Eftoda, was born on August 26, 1949. Respondent, HealthSouth Rehabilitation Hospital of Tallahassee (HealthSouth), is a healthcare facility providing both in-patient and out-patient rehabilitation services in Tallahassee, Florida. As such, it employs personnel designated as "exempt" and "non-exempt," pursuant to the federal Fair Labor Standards Act. Generally speaking, "exempt" employees are salaried employees, in managerial posts, who do not receive over-time pay by the hour, and "non-exempt" employees are regular, non- managerial employees, who are paid a set amount per hour up to 40 hours per week and time and a-half per hour for every hour above 40 hours that they work in the same 40-hour week. There are some exceptions to this federal compensation scheme which are immaterial to this case. At all times material, a “Nursing House Supervisor” or “RN House Supervisor” were interchangeable job titles. Petitioner was initially hired by Respondent on January 26, 2004, as an "RN-Baylor Nurse." The RN-Baylor position was a non-exempt position, and in that position, Petitioner's hourly pay rate was $28.00. Petitioner's hourly rate of $28.00, was very high for an RN-Baylor Nurse, but Petitioner's credentials are exceptional. Within days of her hire, Petitioner was asked whether she would take an RN House Supervisor position. Petitioner accepted the RN House Supervisor position, and a corrected personnel action form reflecting this change was prepared on January 30, 2004. Petitioner signed an acknowledgement of her acceptance of the House Supervisor position on February 22, 2004. Every House Supervisor employed by Respondent during Petitioner's period of employment was an exempt employee. The RN House Supervisor position that Petitioner accepted was an exempt position. Nursing House Supervisors traditionally worked the evening and night shifts, when there was no member of the hospital administration on duty. Without a member of the hospital administration on duty, the Nursing House Supervisor was the highest ranking management employee at the facility. While Petitioner was employed with Respondent as an RN/Nursing House Supervisor, Respondent simultaneously employed “Charge Nurses.” The duties of a Charge Nurse were similar to the duties of a Nursing House Supervisor. However, unlike Nursing House Supervisors, Charge Nurses traditionally worked the day shift, during which higher-ranking members of the facility’s administration were simultaneously on duty. In 2004, Respondent also employed a Charge Nurse on the weekend day shift(s) when at least one administrator was present for several hours. (This anomaly seems to be at least one element which confused Petitioner and led to this case.) Even so, unlike RN House Supervisors, all Charge Nurses were classified by Respondent Employer as filling non-exempt positions. Every Charge Nurse employed by Respondent during Petitioner's employment was classified as a non-exempt employee, eligible to earn time-and-a-half for overtime. Petitioner’s salary was not increased when she accepted the RN House Supervisor position, because her base salary (calculated at $28.00 per hour) was commensurate with the salary of other RN House Supervisors already being paid as managerial employees at straight salary. On the other hand, because Petitioner worked as an RN/Nursing House Supervisor on a “Baylor,” or weekend, shift, Respondent paid Petitioner a special compensation for being scheduled to work every weekend, with no weekends “off.” This special compensation took the form of Respondent’s paying Petitioner as if she had worked 36 hours per week, even though she was only scheduled for 32 actual hours of work per week. Petitioner believes that she worked a minimum of four additional hours per week, because it was her practice to come on shift an hour early and leave an hour late to set up and wind down the area and staff under her supervision as Nursing House Supervisor. She “guessed” there were some weeks when, between this practice and meetings she was required to attend, she worked 32 hours above the usual 40 hours per week. Her “best guess” was that she was working “two (additional) hours per eight-hour shift,” plus attending meetings which were not held during her shift(s), beyond her scheduled 32 hours, but Petitioner never worked straight eight-hour shifts. (See Findings of Fact 12-15, and 25.) A Nursing House Supervisor working the Baylor shift, or an RN-Baylor Nurse, normally worked two twelve-hour shifts on the weekend and one eight-hour shift during the week. When Petitioner was hired by Respondent in January 2004, she was completing a second doctoral degree. In order to accommodate Petitioner's work on her dissertation, Respondent had offered Petitioner an irregular shift pattern consisting of two sixteen- hour shifts on the weekends. Petitioner had accepted this scheduling accommodation. As RN House Supervisor, Petitioner was required to attend occasional mandatory meetings for Nursing Supervisors and other nursing staff. These meetings were held during the week, and usually, but not always, between 5:00 and 6:00 p.m. This meeting time was more convenient for employees regularly working the weekday shift immediately before 5:00 p.m. or coming on shift immediately after 6:00 p.m., than for staff on other shifts, but no age or retaliation component existed with regard to Petitioner or anyone else on other shifts. Petitioner also was required once or twice to attend several hours of computer classes in a single day and other training, but so was everyone else on staff. Because the meetings were not on the weekends during the hours Petitioner would normally work, Petitioner’s attendance at the mandatory weekday meetings upset Petitioner's personal plans for study, research, and writing her doctoral dissertation, but there is no evidence she was singled out for this inconvenience. Petitioner claimed herein that she was entitled to be paid overtime for coming to "work" for meetings and classes. Because her Nursing House Supervisor position was an exempt position, Petitioner was not paid overtime for attending these mandatory meetings and classes, but no other exempt employees were paid overtime for attending these meetings and classes outside of their normal working hours, either. Respondent's policy does provide that if a Nursing House Supervisor works an additional shift as a "floor nurse," separate and apart from his/her regularly scheduled shifts as a House Supervisor, then that Nursing House Supervisor can be granted additional pay for that additional shift during which he/she works as a floor nurse, even though the House Supervisor position is that of an exempt employee. In order to be granted this additional pay, the Nursing House Supervisor must fill out an "Additional Pay for Exempt Employees" request form and submit the form to management for prior approval. The mandatory weekly meetings that Petitioner was required to attend as a part of her Nursing House Supervisor duties did not qualify as a full additional shift, for any employee. Petitioner received a memorandum dated April 12, 2004, explaining this. In fact, When Petitioner filled out the correct form for work as a floor nurse, she was paid at the $27.50 per hour rate for a floor nurse. She was not paid when she filled out such a form for mandatory staff meetings, classes, and training sessions. Petitioner represented that throughout her employment by Respondent, she repetitively and persistently inquired about how her pay was being calculated and why the Employer did not calculate it the way she thought it should. She also claims to have repeatedly requested a different calculation of her pay and leave accruals on the basis of her beliefs and desires, but at the time she made no formal claim or discrimination complaint related to these inquiries and requests. In her testimony, even Petitioner described what she was doing as “negotiating” her salary. Throughout her employment by Respondent, Petitioner was cited by management for performance problems, including but not limited to difficulty in dealing with staff; poor management style; poor judgment in dealing with her supervisors and subordinates; creating confusion and chaos for staff on her scheduled shift by her confrontational manner; failing to properly address performance concerns with staff on her scheduled shift; and failure to take responsibility for her own actions. Giving Petitioner the benefit of the doubt, some of her friction with management and staff may have arisen because of her complaining that evaluators did not observe her for an entire shift; because she mis-read management’s instructions on how to code her timesheets as a requirement to falsify them; because she perceived that Respondent’s staffing levels occasionally fell below matrix, and she then created turmoil by calling in extra staff, whereas her superiors did not share her interpretation of the matrix requirements or the staffing events themselves; because she blamed the preceding shift for cleanliness issues; because she perceived herself undervalued for her extensive nursing experience; because she perceived herself personally opposed and ridiculed by a nurse of lesser or equal rank (Mandar); and because she did not believe that her superiors backed her up sufficiently and/or did not afford her the appropriate discretion in her interactions with subordinates. Petitioner objected to Respondent’s chain of command, which had her reporting to Ms. Roberts, Nurse Manager. Petitioner felt she should report directly to the Director of Nursing, her “two-up” supervisor. However, none of these disputes rose to the level of a protected activity under Chapter 760.10(7), Florida Statutes (see Finding of Fact 35), or related to Petitioner's age in any way. From Respondent's perspective, its administration received a myriad of complaints from Petitioner's supervisors, peers, and subordinates, regarding Petitioner's management style and performance. Some of Respondent's employees threatened to quit if they were forced to continue to work under Petitioner's supervision. Petitioner testified that in July 2004, she had polled her subordinates and asked them to indicate that they had “no problems” with her management style. Then she presented the list of subordinates to her superiors. This could have legitimately been viewed by Respondent’s management as Petitioner’s insubordination to them and/or intimidation of the polled subordinates by Petitioner. Respondent’s Nurse Manager and Petitioner’s direct supervisor, Barbara Roberts, felt that she was being required to spend an inordinate amount of her time dealing with Petitioner's problems. As a result of these problems, Petitioner was placed on probation on September 10, 2004. Petitioner challenged this probation, and a review was conducted by Respondent's management. Despite the fact that the complaints concerning Petitioner's management style and performance came from various sources, Petitioner complained that Ms. Roberts was unfairly disciplining and harassing her. Respondent's management concluded that the attention Petitioner had received from Ms. Roberts was not improperly motivated, but was a result of personality conflicts between Petitioner and other employees. Some of the allegations against Petitioner were substantiated, but investigation into an allegation that Petitioner had coerced or threatened employees into working, only produced limited supporting documentation. In the absence of additional documentation, Lynn Streetman, Hospital Administrator, concluded that probation was not the correct level of discipline for Petitioner. (P-22) Ms. Streetman recommended that Petitioner's supervisor, Ms. Roberts, chalk the problems up to differences in management style and downgrade Petitioner’s probation citation to a "written warning." On September 30, 2004, the probation citation was replaced with a written warning citation. Also on September 30, 2004, six months after Petitioner’s initial hire and approximately five and a-half months after she accepted the exempt Nursing House Supervisor position, Ms. Roberts sent Petitioner a memorandum informing her that it was no longer operationally feasible to continue the irregular pattern of two sixteen-hour shifts on the weekend (R- 3).2/ Respondent's reason for this change was that for four hours of each day that Petitioner was scheduled to work, there was an overlapping period when two supervisors were on duty, and this duplication of supervisory personnel resulted in an unnecessary expense for Respondent. Ms. Roberts' memorandum informed Petitioner that it was operationally necessary for Petitioner to begin working the traditional Baylor-RN's two twelve-hour weekend shifts and one eight-hour shift during the week, beginning with the October 16-17, 2004, weekend. This managerial decision obviously inconvenienced Petitioner for purposes of completing her doctoral dissertation, and she contends the decision was “retaliatory.” However, the change had been in discussion with management before September 30, 2004. Immediately after her probation was down-graded to a written warning, Petitioner asked for a weekend off, which was granted. Because she took a weekend off at that time, Petitioner had one less weekend to use later in December 2004. (See Finding of Fact 36.) Approximately October 17-18, 2004, when her new shift arrangement was beginning, Petitioner's supervisors again sought to put her on probation, due to a series of complaints by staff similar to the previous ones. Ms. Roberts and other superiors believed Petitioner distorted common conversations and created chaos on her shift by misinterpreting in her conversations with her subordinates the instructions her superiors had given her. In accord with its policy, Respondent launched a second investigation into Petitioner's alleged misconduct. On December 11, 2004, prior to conclusion of the second investigation, Petitioner sent an e-mail to Ms. Roberts and to Respondent's Human Resources Director, Jackie Chaires, requesting that her status be changed from full-time Nursing House Supervisor to "PRN," or "as needed," status. Petitioner's e-mail stated, I believe I have 'too many irons in the fire.' With my dissertation and numerous meetings outside my 32 hours, I find myself run down. To remedy this situation I am willing to wait until January 17, 2005 for this transition to begin. Please advise as to the salary changes. Petitioner believed that by giving four weeks’ notice before the date she wanted to “go PRN” she would be entitled to a payout of “personal time off” (PTO). However, due to subsequent events, she was not entitled to an "in cash" payout of PTO. (See Findings of Fact 59-60.) Respondent's policy provided that at any time an employee moved to a new position, he/she was placed on a 90-day mandatory probation to assess his/her performance in that new position. Because Petitioner was to be placed on a mandatory 90-day probation at the time that her status changed to PRN, there was no need to also place Petitioner on probation due to the conclusions of the second investigation into her alleged misconduct. However, Ms. Streetman instructed Ms. Chaires and Ms. Roberts to meet with Petitioner to go over the various performance problems that Petitioner was experiencing, and to inform Petitioner that continued poor performance in these areas during her PRN probationary period could result in disciplinary action up to, and including, termination. This meeting took place on December 15, 2004, and led to a rebuttal by Petitioner on December 29, 2004. (See Finding of Fact 34.) Petitioner previously considered moving to PRN status during February 2004. Petitioner also claimed that in March or April 2004, she had requested to be moved back to an RN-Baylor Nurse position, and that Ann McElreath, Director of Patient Care Services/Director of Nursing, told her that she could not make such a move without suffering a 45-percent decrease in compensation. Ms. McElreath testified that she did not remember any such request from Petitioner, and that she never told Petitioner that Petitioner would suffer a 45 percent decrease in pay if she moved back to a Baylor-RN position. Ms. McElreath further testified that she would have no reason to make such a statement to Petitioner, because she was not involved in any way in setting salaries. In light of the differential between part-time and full-time pay schedules, as discussed hereafter (see Findings of Fact 38 and 58), and the complexity of Respondent Employer’s other pay categories, coupled with the complexity of Baylor status, one can see how Petitioner misunderstood her situation, but her testimony evidences a clear misunderstanding of how Respondent calculated salaries, as well as a misunderstanding of the effect of designating exempt and non-exempt positions. On December 29, 2004, Petitioner sent a memorandum to Ms. Roberts, Ms. Chaires, Ms. Streetman, and Ms. McElreath, requesting to rescind her request to move to PRN status and requesting to finish another six months as House Nursing Supervisor; complaining about “harassment” by Ms. Roberts due to Ms. Roberts’ telephone calls reminding Petitioner to attend meetings and Ms. Roberts’ “insulting” Petitioner’s professional abilities by not seeing/taking Petitioner’s side of many issues with staff. Petitioner requested to begin “dispute resolution.” At no point in this memorandum did Petitioner mention anything about alleged discrimination on the basis of age. At no point during any investigation, nor at any other time, did Petitioner allege that she was being discriminated against based on her age. She did allege harassment by her immediate supervisor, Ms. Roberts, but this was in the nature of challenging Respondent’s basic chain-of-command decisions; Ms. Roberts' not permitting her sufficient discretion; and Petitioner’s belief that only Petitioner could interpret Center for Disease Control (CDC) requirements regarding cleanliness and restrictions on the employment of coughing personnel and Occupational Safety and Health Act (OSHA) staffing requirements with regard to scheduling additional staff and instructing staff concerning these issues. Yet, Petitioner has never posed any complaint directly alleging violations of any federal or state regulation besides her “exempt” versus overtime issues, which she raised for the first time, herein. Petitioner wanted to take off December 31, 2004, and January 1, 2005 (New Year’s Eve and New Year’s Day), and she had been authorized in advance to do so. However, that authorization was rescinded when management discovered that she had already used the three weekend leaves to which she was entitled and that there might be staffing problems for the weekend period requested. (See Findings of Fact 26 and 54-57.) Petitioner had already made arrangements for her personal activities, and badgered management by e-mail to give her one or the other day off. Management ultimately let her have one of the days off, despite its “only three weekends” policy. Due to Petitioner’s on-going performance problems; management’s continuing concerns about her ability to effectively function as Nursing House Supervisor raised in the second misconduct investigation; and the patient safety concerns raised by her admission that she felt she had too many demands on her time, Respondent's management declined to allow Petitioner to rescind her request to move to PRN status. On January 5, 2005, Ms. Chaires told Petitioner, and on January 10, 2005, Ms. Chaires sent Petitioner a formal acknowledgement, of Respondent's acceptance of Petitioner's request to move to PRN status, effective January 17, 2005. On January 12, 2005, Ms. Chaires sent Petitioner an e- mail communication outlining the Respondent Employer’s pay rates for PRN status/service. Because Petitioner would be moving from a full-time House Nursing Supervisor position to a part-time PRN position, Ms. Chaires informed Petitioner that there would be a reduction in her salary from $28.00 per hour to $21.00 per hour. Ms. Chaires testified that it was customary for an employee moving from a full-time House Supervisor position to a PRN position to experience a reduction in pay. Petitioner claimed she was discriminated against because she received no merit increase at the end of 2004. She believes the lack of merit increase constituted retaliation for her obtaining the rescission of probation on September 30, 2004. Actually, Respondent’s employees undergo performance evaluations approximately every October. According to Respondent's policy, if an employee is on probation at any time during the third- quarter (July, August, September) of the calendar year, that employee is not eligible for a merit increase in connection with that year's October performance review. Respondent considered Petitioner ineligible for a merit raise at the end of 2004, because she had been on probation in September 2004; because there was a second investigation into Petitioner's performance and alleged misconduct that continued at least until December 15, 2004; and because Petitioner had requested to change her status to PRN. Because Petitioner’s probation was rescinded on the last day of September 2004, she technically was not barred from a merit increase due to being on probation in the third quarter, but she continued to be in the turmoil of some sort of disciplinary investigation until at least December 15, 2004. Respondent may have not followed the letter of its policy, but it maintained that policy’s spirit and purpose in not rewarding with a merit increase an employee who was subject to discipline at any moment. Petitioner also has not demonstrated that she was eligible for a merit increase based on meeting or exceeding performance standards. There is no credible evidence that the lack of an evaluation, the contents of an evaluation, or the lack of a 2004 merit increase in pay for Petitioner, constituted discrimination against her on the basis of her age or in retaliation for any protected activity. On January 14, 2005, a Friday, Petitioner had a friend phone Ms. Roberts on her behalf. The friend informed Ms. Roberts that Petitioner had undergone surgery that same day and would not be able to work as scheduled on the upcoming weekend. When Ms. Roberts inquired as to what kind of surgery Petitioner had undergone, the speaker would not give that information to Ms. Roberts. Ms. Roberts informed the caller that Petitioner should call Respondent to discuss her expected recovery time and her availability to return to work. Petitioner, who testified that she had listened to the foregoing conversation, described Ms. Roberts as “rude,” and the phone call may, indeed, have been acrimonious, in that the caller insisted on Petitioner’s right to medical privacy and Ms. Roberts wanted some detailed explanation why Petitioner was unable to report for work and why Petitioner was giving such short notice for her weekend shift(s), if she had not been in an accident and if she had elected the surgery in advance. At hearing, Petitioner’s explanation for her inability to work her last House Supervisor shift(s) covering January 14, 15, and 16, 2005, was that she had elected minor surgery with the intent to return to work her regular shift, but the procedure had turned out to be more debilitating than she had expected, so she could not return to work as scheduled. Also by date of January 14, 2005, Petitioner submitted an application for PRN employment with a different health care provider, Interim Healthcare. This date was a little more than a month after Petitioner had requested PRN status with Respondent; a little more than two weeks after Petitioner had sought to rescind that request; and two days after Respondent had declined in writing Petitioner's PRN rescission request. It was three days prior to Petitioner's scheduled move to PRN status with Respondent on January 17, 2005, pursuant to her accepted request. There was nothing to prohibit Petitioner from signing-up for PRN work with multiple health care providers. Because Petitioner did not show up for her last three scheduled shifts (two days) as Nursing House Supervisor, Respondent's policy required Petitioner to provide a doctor's note releasing her to return to work before Respondent would place her on PRN duty. Petitioner never provided Respondent with a doctor's note releasing her to return to work. Petitioner's testimony, that Ms. Chaires had told Petitioner on some previous occasion that as an "exempt" employee Petitioner did not need a doctor’s note for her absences, is not credible upon the record as a whole. It also is immaterial whether Petitioner's absence for her last three shifts/two days equate with "three consecutive days' absence," per Respondent’s policy on doctors’ notes, because more than three days passed without any word from Petitioner in response to Ms. Robert’s January 14, 2005, instructions by telephone. Respondent’s witnesses maintain that after January 14, 2005, Petitioner never initiated contact with Respondent in any way to discuss her availability for work, and that Ms. Streetman first phoned Petitioner in March 2005, to determine whether she was returning to work as a PRN. Petitioner claims that Respondent did not call her for any PRN work until May 2005, and therefore, in effect, Respondent constructively terminated Petitioner’s employment. There also is some divergence in testimony whether or not Respondent mailed Petitioner a package of materials with instructions that she must complete and return those materials before Respondent would call her for PRN duty, in March or at any other time. However, there is no dispute that during May 2005, Ms. Streetman, as acting interim Human Resources Director for Respondent, had telephone contact with Petitioner to coordinate Petitioner’s return to work as a PRN nurse. During this conversation, Petitioner informed Ms. Streetman that she would not return to work for Respondent as a PRN nurse under any circumstances. Petitioner stated that she would only work for Respondent if: Petitioner were returned to the position of full-time House Supervisor; Petitioner would only work a 16-hour shift on the weekends; and Ms. Streetman would set up a meeting with herself, Petitioner, Ms. Roberts, and a corporate representative of Respondent to discuss the resolution of various issues Petitioner wanted addressed. These issues were much as set out previously. (See Findings of Fact 17-19 and 35-39.) Age does not seem to have been one of Petitioner’s issues. Petitioner also indicated that she had not received the PRN packet of information that Respondent maintains it had sent her. Ms. Streetman immediately forwarded a copy of the PRN package to Petitioner. Although Petitioner provided a copy of a current CPR card to Respondent in May of 2005, she did not provide a doctor's note releasing her to return to work, her executed PRN paperwork acknowledging her duties and responsibilities as a PRN nurse, or an executed acknowledgement of Respondent's HIPPA policies and procedures, all of which Respondent required before putting Petitioner on its PRN status/phone list. On or about May 24, 2005, Ms. Streetman once again contacted Petitioner and informed her that she was unable to bring Petitioner back to work under the conditions that Petitioner had previously outlined, but Respondent was willing for Petitioner to work as a PRN nurse. Once again, Petitioner informed Ms. Streetman that she would not return to work as a PRN nurse under any circumstances. Accordingly, at that time, Ms. Streetman terminated Petitioner. During her employment with Respondent as a Nursing House Supervisor, Petitioner accrued PTO, in accordance with her position and length of service. As a Nursing House Supervisor, Petitioner should have accrued PTO at the rate of 7.69 hours of accrued PTO per two week pay period, which corresponds to the PTO accrual schedule for staff employees. However, due to a clerical error by Ms. Chaires, Petitioner actually had been allowed to accrue PTO at a rate of 9.54 hours of accrued PTO per two-week pay period, which corresponds to the PTO accrual schedule for department head employees, even though as Nursing House Supervisor, Petitioner was not a department head. Respondent's policy in 2004, permitted all Baylor, or weekend, employees of Respondent to expend PTO hours on no more than three weekends per year. Because Petitioner worked a Baylor, or weekend, schedule as Nursing House Supervisor, Petitioner was limited to using PTO for three weekends per year. Petitioner signed off on, and acknowledged, this three weekend limitation. Although this policy limited the weekend days on which Petitioner was entitled to use her accrued PTO, Petitioner was entitled to use her accrued PTO for any weekday shifts for which she was scheduled after September 30, 2004, when Ms. Roberts informed her that it was operationally necessary for her to work at least one eight-hour shift during each week. During 2004, Petitioner used 171 hours and 15 minutes of PTO, and all three of her allotted weekends off as a Baylor employee of Respondent. (See Findings of Fact 26 and 36.) Later in 2005, Respondent re-examined its PTO leave policy. In order to compete for staff with other local health care providers, Respondent changed the number of allowed weekend PTO days for its Baylor employees from three to four weekends. However, this increase in the number of weekend leaves permitted for Baylor employees did not affect Petitioner, because her request to move from full-time Nursing House Supervisor to PRN nurse had been granted, effective January 17, 2005, and the new leave policy was not retroactive. A PRN nurse occupies a part-time position. As a PRN nurse, Petitioner was not eligible to accrue or use PTO. On January 22, 2005, Petitioner’s PTO balance was 4.37 hours, meaning Petitioner had 4.37 hours of PTO available for use. The dollar value of Petitioner’s remaining PTO hours amounted to $83.09. According to Respondent's policy, an employee was eligible for a cash payout for his/her unused PTO hours upon voluntary resignation (including a voluntary employment status change) and/or involuntary lay-off if: (1) the employee had successfully completed his/her 90-day probationary period; (2) the employee provided Respondent with proper notice; and (3) the employee worked a minimum of four hours on his or her final scheduled day of work. Whether Petitioner successfully completed her probationary period as a Nursing House Supervisor is not at issue in this case. Sufficient notice of status change is not at issue in this case. (See Findings of Fact 29- 30.) Petitioner did not receive a cash payout for her 4.37 unused PTO hours on January 17, 2005, when she moved from a full-time Nursing House Supervisor position to a PRN nurse position, because she did not work the required four hours on her final scheduled day of work as a Nursing House Supervisor. Petitioner missed her final three scheduled shifts as a Nursing House Supervisor in January of 2004, and she did not work on the day that her employment with Respondent was terminated. whether one counts the status change date of January 17, 2004 or the final termination date in May 2005. (See Findings of Fact 45 and 52.) Therefore, Petitioner was not eligible for a PTO payout under Respondent Employer’s policy at the time her status changed to PRN nurse, January 17, 2005. Between January 14, 2005, and November 2005, Petitioner did not apply for any type of work so as to mitigate potential damages. After January 14, 2005, she had PRN status with Interim Healthcare, but she did not accept work from Interim until November 2005. During that period, she only attended classes and lived on her student loans. Petitioner had previously acquired at least a J.D. (law degree), two nursing degrees, and possibly another doctorate. With these credentials, she was certainly not “unemployable” during the interim of January-November 2005. Petitioner never complained to Ms. Roberts, her direct supervisor, that Petitioner believed that she was being discriminated against on the basis of her age. In 2004, Petitioner would have been 55, and Ms. Roberts would have been 51 years of age. Ms. Roberts never treated Petitioner any differently than any other Nursing House Supervisor. Ms. Roberts was not actively aware of Petitioner's age at any time during her employment. Petitioner never complained to Ms. McElreath, then- Director of Nursing and Petitioner's “two-up” supervisor, that Petitioner believed she was being discriminated against on the basis of her age. Ms. McElreath would have been 50 to Petitioner's 55 years of age at all times material. Petitioner never complained to Ms. Chaires, Director of Human Resources, that Petitioner believed she was being discriminated against on the basis of her age. No decision that Ms. Chaires made concerning Petitioner was motivated by Petitioner's age. Petitioner never complained to Ms. Streetman, Respondent's administrator, that Petitioner believed she was being discriminated against on the basis of her age. Ms. Streetman would have been 49 years of age, at all times material. No decision that Ms. Streetman made concerning Petitioner was motivated by Petitioner's age.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief and Charge of Discrimination. DONE AND ENTERED this 22nd day of September, 2006, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of September, 2006.
Conclusions Having reviewed the Administrative Complaint and Amended Administrative Complaint, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency has jurisdiction over the above-named Respondent pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Administrative Complaint and Election of Rights form to the Respondent. (Ex. 1) The Election of Rights forms advised of the right to an administrative hearing. 3. The parties entered into the attached Settlement Agreement. (Ex. 2) Based upon the foregoing, it is ORDERED: 1. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 2. The Respondent shall pay the Agency $3,000.00. If full payment has been made, the cancelled check acts as receipt of payment and no further payment is required. If full payment has not been made, payment is due within 30 days of the Final Order. Overdue amounts are subject to statutory interest and may be referred to collections. Any check made payable to the “Agency for Health Care Administration” and containing the AHCA ten-digit case number should be sent to: Office of Finance and Accounting Revenue Management Unit Agency for Health Care Administration 2727 Mahan Drive, MS 14 Tallahassee, FL 32308 Filed March 26, 2015 11:09 AM Division of Administrative Hearings ORDERED at Tallahassee, Florida, on this 2U day of Maca , 2015, aw, Elizdyeth’Dudgk{ Secretary y for H€ Care Administration
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I CERTIFY that a true and correct of this Final Order, was served on the below-named persons by the method designated on this Debit Aer Cc ZL. , 2015. Richard Shoop, Agency Cler Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, FL 32308-5403 Telephone: (850) 412-3630 Facilities Intake Unit Finance & Accounting (Electronic Mail) Revenue Management Unit (Electronic Mail) David Selby, Assistant General Counsel Louis F. Gerrard, President Office of the General Counsel Grace Manor at Lake Morton, LLC Agency for Health Care Administration c/o Mainstay Financial Services (Electronic Mail) 5578 Commercial Blvd. NW Winter Haven, FL 33880 (U.S. Mail) J. Davis Connor, Esq. Peterson & Myers, P.A. 225 East Lemon Street Lakeland, FL 33802-4628 (U.S. Mail) STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION Petitioner, . . CASE NO. 2013013450 vw a 2014002084 GRACE MANOR AT LAKE MORTON, LLC, Respondent. ADMINISTRATIVE COMPLAINT COMES NOW the Petitioner, State of Florida, Agency for Health Care Administration (“the Agency”), by and through its undersigned counsel, and files this Administrative Complaint : against the Respondent, Grace Manor at Lake Morton, LLC (“Respondent”), pursuant to Sections 120,569 and 120.87, Fla. Stat. (2013), and alleges: ‘This is an action against an assisted living facility (“ALF”) to impose a $2,000 fine for one State Class Il violation (Count 1) and a $ 1,000 fine for an uncorrected State Class TI violation (Count I). SS “JURISDICTIONAND VENUE ss— 1. The Agency has jurisdiction pursuant to Sections 20.42, 120.60, and Chapters 408, Part II, and 429, Part I, Fla. Stat. (2013). 2, Venue lies pursuant to Florida Administrative Code (“F.A.C.”) Rule 28-106.207. 1 EXHIBIT - 1 a oemec eae rena nipnpintetineccpinat: tty uinepiman menttinie manent pasa pammemnat ety arr sec nmmpematest ean neem at tt CT BE PARTIES 3. The Agency is the regulatory authority responsible for licensure of ALFs and enforcement of all applicable State statutes and rules governing ALFs pursuant to Chapters 408, Part IL, and 429, Part ], Fla, Stat., and Chapter 58A-5, F.A.C., respectively. 4,, Respondent operates a 50 bed ALF at 610 East Lime St, Lakeland, FL 33801, Standard license #5217. 5, Respondent was at all times material hereto.a licensed facility under the licensing authority of the Agency and was required to comply with all applicable rules and statutes, COUNT I - $2,000 CLASS I FINE (Case No. 2013013450; State Tag A0030: Resident Care - Rights & Facility Procedures) 6 The Agency re-alleges and incorporates paragraphs 1-5 asif fully set forth herein. 7. The Agency’s surveyor conducted an unannounced complaint investigation (CCR 2013008974) on 8 October, 2013, 8. The surveyor learned this information during the survey: _-a,-Based_on interviews and-a-record-reviews, the facility failed-to ensure that Resident #1,-an-85-—— Sanne year old man, with received appropriate medical care in a timely manner which led to delayed medical care and extreme continual pain. b. Phone interview with Staff ‘A’, a former med tech/caregiver, on 10/9/13 at about 4:40 pm. She stated that the last night that Resident #1 was sent to the hospital, Staff “B’ (another - ‘categiver) and she were working, They did their final rounds. Resident #1 came.out about 10:30 - i 11:30 pm and complained about a burning, like a hot rod was in his eye. She called the resident care coordinator (RCC) and told her what was going on. She asked the RCC if she could give him a i brand name medication for Acetaminophen that he had scheduled for later in the moming. The RCC said Staff “A? wasn't supposed to but she could just this one time. Staff ‘A stated Resident #1 was hurting. She could tell he was in pain by his demeanor, About 11:30 to 12:30 am he started vomiting when he was in the recliner. He. was in the recliner so they could keep an eye on him. She called the RCC again and she said just keep an eye on him and she would deal with him in the morning. The RCC told Staff ‘A’ that she knew the family would be upset if they sent him out because he had done this thing before. At 12:30 to 1:30 am it got worse and his breathing got worse, He was breathing funny. His vitals were going crazy. His blood pressure was 200 and something over 100 and something. His pulse was fast and oxygen saturation was low. His breathing was irregular. She called the RCC again and she said to call the home health company. The guy she spoke to at home health asked why did he need to come and she explained the situation and the vitals. He stated based on Resident #1's vitals he should be sent out to the hospital. She called the RCC again and told her what home health said and the RCC said "no " , to not send him out and she would deal with him in the morning. At 1:30 to 2:30 am he was panic screaming (like yelling). He said now I know what it feels like to die alone. He already had problems:with his left eye and it was white and lie could not see out of it but he.could see out of his tight eye. However, then he complained that he could not see ~ ~ them and they were Fight in front of him. She called the RCC again and she responded again that she - would deal with him in the moming. At 3:30 am he was puking but she could hear it gurgling back in his hings. He was.aspirating. She called the RCC and told her that she was sending this man out even if she had to be written up. He was throwing up and now he‘is aspirating. She stated OK do started to move him onto the stretcher. He couldn't stand. He had a stroke. Emergency medical services (EMS) and the emergency room doctor asked her why the resident was not sent to the hospital earlier, A friend who worked at the facility told her the next day that Resident #1 died at 6:45 am. c Phone interview with Staff ‘B’,a med tech/caregiver, on 10/9/13 at approximately 5:40 “am. She reported that on the night of the incident at 11:00 pm, Resident #1 complained that his eye hurt and he had a bad headache, Staff ‘A’ called the RCC and she said to go ahead and give the brand name medication for Acetaminophen he had scheduled at.some point during the next morning, In an hour he stated it was getting worse. Staff ‘A’ called the RCC and she stated he did this before and to keep an eye on him, They sat with Resident #1 throughout the night in the living room in front. Resident #1 would freak out if he could not see them. He stated he could not see them and they were right in front of his face. He said to please not leave him because he did not want to die alone. Staff ‘A’ called again and finally got permission to call 911 from the RCC about 2:00 to 3:00 am. Paramedics asked if leaning to the side was normal for him and they told them it was not normal. They asked if his face drooping was:normal and they said, "no." They did a stress test and he was weaker on one side. He fell to the'side when they stood him up and stated they thought he had a stroke when they took him out:on a stretcher. Staff ‘B’ stated she felt like Resident #1 should have went out to the hospital the first time Staff ‘“ called the RCC. Resident #1 stated he felt like a hot rod was stabbing through his eye. It was not normal for him to come out of his room and complain d. Interview with the RCC about Resident #1 on 10/8/13 at about 2:15 pm. She stated that Staff ‘A’ called her orice for Resident #1's headache and she asked Staff ‘A’ if he had anything she could give him for pain and Staff ‘A’ said a brand name medication for Acetaminophen. The RCC said, " well give him that." Staff‘A’ called back later and stated he was throwing up and she told Staff‘ A” to send him to the hospital. It started about 1:00 am and she did not know how long in between before Staff ‘A’ called the second time. She stated she did not remember exact times “because it happened almost a year ago. 7 San et ecngioeeanygmeninepe bier see mane nt egress nemsmmn enue on Sibuset einer arsine ' i t ; @. Review of the EMS report dated 4/30/13. It indicated that the stroke alert was called at 3:28 am and Resident #1 arrived at the hospital at 3:43 am. ) f. Review of the hospital Emergency Department Note - Phiysician final report dated 4/30/13. It noted that the physician spoke directly to the staff at the facility and was told that at 11:00 pm or so Resident #1 had severe pain behind his right eye. He walked out to the nursing — station to request help. Resident #1 sat down in a chair near the nutsing station and stayed there for the next few hours. Somewhere between 3:00 and 3:15 am Resident #1 became less responsive and vomited and developed slurred speech. Facility staff did not notice left sided weakness. At the hospital Resident #1 was diagnosed with intracerebral hemorrhage (a type of stroke where an artery bursts in the brain and causes bleeding in the brain). g. Death. The hospital death record indicated that the resident died at 7:25 am on 4/30/13. h. Interview with the RCC on 10/8/13 at about 2:40 pm. Stafflet them know if residents-are sick and then they contact the nurse (a home health nurse because the facility has no nursés) and she comes to evaluate. If the nutse states they need-to go out to hospital then they send them. If it's night time staff call her (the RCC) and then the nurse is called and the nurse still comes to assess. They and the nurse might say to go ahead and send out. i. Interview with the executive director (ED). The ED revealed that Resident #1 's family was adamant about not sending him out to the hospital (not specifically talking about this event, but Previous ones). ; . _ j. Review of the hospital Emergency Department Note ~ Nursing final report dated 4/30/13. It revealed that EMS reported that the family was not thrilled with the idea of the resident being transported to the hospital. cde esate aspen era ety tatoo so tenn tnsennnenntammpanma aea i i 1 i i i i | | | k. Review of the facility's medical emergencies policy. It was located on page 93 and 94 of its Assisted Living Policy and Procedure Manual. Section 1 indicated that the administrator should be. contacted immediately and section 2 indicated that the administrator makes the determination of the severity of the situation. Section 3 indicated that the community summons emergency medical services by calling 911 when the resident exhibits signs and symptoms of distress and /or emergency : condition, One example included was sudden onset of severe pain. Resident #1 had indicated to staff that he felt like a hot rod was stabbing through his eye but medical care was still delayed for hours. 9. Florida’s law regatding residents having the right to a safe and decent living environment free from abuse and neglect is stated as follows: B r : ; i 429.28 Resident bill of rights.— . (1) No resident of a facility shall be deprived of any civil or legal rights, | ‘ benefits, or privileges. guaranteed by law, the Constitution of the State of Florida, or the Constitution of the United States.as a resident of a facility. Every resident of a facility shall have the right to: (a) Live ina safe and decent living environment, free from abuse and neglect. Section 429.28, Fla. Stat. (2013) 10. In sum, the facility failed to ensure that Resident #1 was free from neglect, to wit, he did not __ receive timely and appropriate medical care which led to extreme continual pain because he first alerted staff between the 10:30 to 11:30 pm time frame on.4/29/13 that he was in extreme pain but, despite his, e. g., repeated complaints of extreme pain, panic yelling, expressing his fear of dying alone, vomiting, lack of vision, crazy vitals, aspirating, leaning to the side and drooping face, 911 was not notified until about 3:30 atv the next iiditiing, an inappropriate delay of several hours. 11. Respondent was cited fora Class Il violation, defined as follows: 408.813 Administrative fines; violations.—As a penalty for any violation of this part, authorizing statutes, or applicable rules, the agency may impose an administrative fine. (2) Violations of this part, authorizing statutes, or applicable rules shall be _ Classified according to the nature of the violation and the gravity of its probable effect on clients. .» Violations shall be classified:on the written notice as follows: (b) Class “II” violations are those conditions or‘oceurrences related to the operation and maintenance of a provider or to the care of clients which the agency _ determines directly threaten the physical or emotional health, safety, or security of the clients, other than class I violations. The agency shall impose an administrative fine as provided by law for a cited class II violation. A’fine shall be levied notwithstanding the correction of the violation. Section 408.813, Fla, Stat. (2013) 12. Florida-law states as follows as regards the fine for an ALF for a Class II violation: 429.19 Violations; imposition of administrative fines; grounds.— (1) In addition to the requirements of part II of chapter 408, the agency shall impose an administrative fine in the manner provided in chapter 120 for the violation of any provision of this part, part II of chapter 408, and applicable rules by an assisted living facility, for the actions of any person subject to level 2 background screening under s. 408.809, for the actions of any facility employee, or for an intentional or negligent act seriously affecting the health, safety, or welfare of a resident of the facility. (2) Each violation of this part and adopted rules shall be classified ‘according to the nature of the violation and the gravity of its probable efféct on facility residents. The agency shall indicate the classification on the written notice of the violation as follows: {b) Class “II” violations are defined in s. 408.813. The agency shall impose an administrative fine for a cited class II violation i inan n amount not less than $1,000 and een HOE ENCE $5,000 Lor CAC Via data (3) For purposes of this section, in determining if a penalty is.to be imposed and in fixing the amount of the fine, the agency shall consider the following factors: (a) The gravity of the violation, including the probability that death or serious physical or emotional harm to a resident will result or has resulted, the severity of the action or potential harm, and the extent to which the provisions of the applicable laws or rules were violated. (b) Actions taken by the owner or administrator to correct violations. “~(e) ~~ Any previous violations: d)- The financial benefit to the facility of committing or continuing the violation, (e) The licensed capacity of the facility. Section 429.19, Fla. Stat, (2013) smear mre erin nites teins ingest cnn ee ne ene WHEREFORE, the Agency intends to-impose a $2,000 fine agninst Respondent pursuant to Sections 408.813 and 429, 19, Fla, Stat. (2013). COUNT Il - $1,000 UNCORRECTED CLASS III FINE (Case No. 2014002084; State Tag A0010 — Admissions —-Continued Residency) 13. The Agency re-alleges and incorporates paragraphs | - 5 as if fully set forth herein. fa survey - 11/21/13 (paras 14 —19) 14. A complaint investigation (CCR#2013012071) was conducted on 21 November, 2013. 15. Based upon record review the facility failed to ensure that an interdisciplinary care plan was developed and implemented for Resident #1, an 89 year old female receiving hospice care and services. A 11/21/13 review of her records showed that although she was retained at the facility on | hospice care it failed to develop and implement an interdisciplinary care plan developed by hospice. in coordination with her and/or another responsible party in order to meet her needs. 16. Florida law provides as follows as regards an ALF resident receiving hospice services: 58A-5.0181 Admission Procedures, “Appropriateness “of Placement and Continued Residency Criteria. (4) CONTINUED RESIDENCY. Except as follows in paragtaphs (a) through (e) of this subsection, criteria for continued residency in any licensed facility shall be the same as the criteria for admission. As part of the continued residency criteria, a resident must have a face-to-face medical examination by a licensed health. care provider at least every 3 years after the initial assessment, or after a significant change, whichever comes first. A significant change is defined in Rule 58A-5.0131, F.A.C. The results of the examination must be recorded on AHCA Form 1823, which is incorporated by reference in paragraph (2)(b) of this rule. The form must be completed in accordance with that paragraph. After the effective date of this rule, providers shall have up to 12 months to comply with this requirement. ©) A terminally ill resident who no longer meets the criteria for continued residency may continue to reside in the facility if the following conditions are met: 1. The resident qualifies for, is admitted to, and consents to the services of.a licensed 8 hospice which coordinates and ensures the provision of any additional care and . services that may be needed; 2. Continued residency is agreeable to the resident and the facility; 3, An interdisciplinary care plan is developed and implemented by a licensed hospice in consultation with the facility. Facility staff may provide any nursing service permitted under the facility’s license and total help with the activities of daily living; and : 4. Documentation of the requirements of this paragraph is maintained in the resident's file. Rule 58A-5.0181, F.A.C, | 17. Insum, the facility failed to develop and implement Resident #1’s interdisciplinary plan for hospice care and services. | 18. Petitioner cited Respondent for a Class III violation, defined as follows:. 408.813 Administrative fines; violations.—As a penalty for any violation of this part, authorizing statutes, or applicable rules, the agency may impose an administrative fine. (2) Violations of this part, authorizing statutes, or applicable rules shall be classified according to the nature of the violation and the gravity of its probable effect on clients, ~ .,. Violations shall be classified on the written notice as follows: (c) Class “IIT” violations are those conditions or occurrences related to the operation and maintenance of a provider or to the care of clients which emotional health, safety, or security of clients, other than class J or class II violations. The agency shall impose an administrative fine as provided in this section for a cited class III violation, A citation for a class TII violation must specify the time within which the violation is required tobe corrected, If a class III violation is corrected within the time specified, a fine may not be imposed, Section 408.813, Fla. Stat. (2013) 19. By letter dated 9 December, 2013, Respondent was notified of a mandatory correction date of 30 days from the letter’s 9 December date, to wit, on or about 9 January, 2014. 2% Survey - 1/31/14 (paras 20 - 25) 20. A revisit survey was conducted on 31 January, 2014, to check on the deficiencies cited during 9 the first survey on 21 November, 2013. 21, a, Based upon record review the facility failed to ensure that an interdisciplinary care plan was developed and implemented for resident #1, an 89 year old female receiving hospice care and services, . b. An 11/21/13 review of Resident #1’s records showed that although she was retained at the facility on hospice care it failed to develop and implement an interdisciplinary care plan with, hospice in coordination with her and/or another responsible party to meet her needs. c. During the revisit survey an interdisciplinary care plan was still not available for her. The facility had a hospice ‘Interdisciplinary Care Plans’ form which was a blank form with the words "Interdiciplinary Care Plans" hand written at the top of the page labeled as a "HHA Plan of Care and Note", The rest of the page corisisted of a check list to indicate the information for all areas pertaining to pain level, mental status, bathing, grooming, dressing, nutrition, activity tolerance and transfer. In sum, the form was empty in content and did not meet the intent of the requirement. d. During a staff interview the surveyor determined that they did not have a good discussion that they were going to develop their own form for this purpose. 22. Insum, the facility failed to correct the prior deficiency by still not having developed and implemented the required interdisciplinary care plan for Resident #1 who was still receiving hospice care and services. 23. Florida law regarding an ALF resident receiving hospice services is cited in paragraph 16. 24. Petitioner cited Respondent for a Class III violation, defined in paragraph 18. 10 25. The'same constitutes an uncorrected Class III violation with the fine determined as follows: WHEREFORE, the Agency intends to impose a $1,000 fine against Respondent, an ALF 429,19 - Violations; imposition of adminisirative fines; grounds.— (1) Inaddition to the requirements of part II of chapter 408, the agency “shall impose an administrative fine in the manner provided:in chapter 120 for the violation of any provision of this part, part II of chapter 408, and applicable rules by an assisted living facility ... - (2) Each violation of this part:and adopted rules shall be classified - according to the nature of the violation and the gravity ofits probable: effect on facility residents. The agency shall indicate the classification on the written notice of the violation as follows: (c) Class “III” violations are defined in s. 408.813. The agency shall impose an administrative fine for a cited class III violation in an amount not less than $500 and not exceeding $1,000 for each violation. Section 429.19, Fla. Stat. (2012) in the State of Florida, pursuant to § 429,19 (2) (c), Fla. Stat. (2013). +k Submitted this @ day of April, 2014. STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION 525 Mirror Lake Dr. N., Ste 330 Ph: (727) 552-1942 Fax: -1440 david.selby@ahca.myflorida.com _ By: z Q Edwin D. Selby Assistant General Counsel Fla. Bar No, 262587 41 | | i | 4 Le i j H 4 / L i : i L i f i f St Petersburg, FL 33701 5 i t i * : i i | i
