The Issue Whether Petitioner's application for a Certificate of Need and approval of a capital expenditure proposal pursuant to Chapter 381, Florida Statutes, and Section 1122 of the Social Security Act (42 U.S.C. 1320a-1), to establish a ten station chronic renal dialysis facility at Clearwater, Florida, should be granted. At a prehearing conference held on January 9, 1978, Bio-Medical Applications of Clearwater, Inc. was granted intervention as a party to these proceedings based on its current application for a Certificate of Need and for Section 1122 review of its capital expenditure proposal to establish a twenty station chronic renal dialysis facility in Clearwater, Florida, which is also the subject of state administrative proceedings at this time. The intervenor's Motion for Consolidation of its case with the instant case for the purposes of hearing was denied, after objection thereto by Petitioner. The Intervenor's Motion for a Continuance to enable it to conduct discovery procedures was denied in the absence of consent thereto by Petitioner, but the right was reserved to renew the motion after the final hearing had commenced. Intervenor did renew such motion at the time of final hearing. The motion was denied, it not having been shown that any discovery requests were then pending.
Findings Of Fact On September 21, 1977, Petitioner filed its application for a Certificate of Need and Section 1122 project review with Respondent. The application is for a ten station chronic dialysis unit to serve the needs of instate renal disease patients at Clearwater, Florida. The proposed facility would provide limited care hemodialysis for outpatients drawn primarily from north Pinellas and Pasco counties. Petitioner plans to lease space in a building providing easy access to Morton Plant Hospital, Clearwater, Florida. That hospital has agreed to provide the inpatient support services required by a freestanding hemodialysis unit. The hospital has approval for facilities to treat acute patients and is desirous of acting as a "backup unit" for petitioner's chronic patients who develop complications or otherwise require hospitalization. In addition, petitioner and Tampa General Hospital have an affiliation agreement whereby the hospital also will act as a "backup" facility to provide inpatient care for petitioner's dialysis patients. The Morton Plant Hospital has employed three nephrologists to staff its acute dialysis unit and these physicians intend to work also in Petitioner's chronic unit. The Morton Plant Hospital is the largest in Pinellas County and its assistant director testified that if petitioner is unable to establish its dialysis unit, there would be a serious adverse impact on the long-range plans of the hospital because it needs a nearby "feeder" for its acute unit. (Exhibit 4, Testimony of Pickering, Graves, McKinney) Petitioner is a nonprofit Florida corporation that is owned and directed by five nephrologists who currently practice medicine in the Tampa area. Four of the five physicians are full-time members of the instructional staff at the University of South Florida and also engage in private practice. The other physician is in full-time private practice. All five directors provide supervisory care of patients at Petitioner's Lakeland and Tampa, Florida, dialysis facilities, at the Tampa General Hospital and Tampa Veterans Administration Hospital. It is contemplated that the director of the proposed Clearwater dialysis unit will be Dr. Harry J. Free, a nephrologist and staff member of Morton Plant Hospital. Additional personnel that will be required in the proposed unit are a nursing supervisor, nurses, dietitian, social worker, technician, and clerical personnel. Petitioner plans to lease some 3500 square feet of space in an existing building with any necessary renovation costs built into the cost of the lease, which is estimated at eight to nine dollars per square foot. Suitable sites have been identified and are available in the Clearwater area. Petitioner plans either to lease or purchase necessary dialysis machines, water treatment equipment, and office and medical equipment at a total cost of approximately $77,000, depending on current resources. The cost of additional dialysis machines for home training will be paid out of a federal Department of Health, Education and Welfare grant to establish a home dialysis program, effective March, 1978, for a period of nine years. Based on the evidence presented, it is found that Petitioner's project is financially feasible and that the facility will be adequately staffed to provide effective health care. (Exhibit 4, Testimony of Pickering, McKinney) End-stage renal disease (ESRD) is the stage of kidney impairment when the human kidney has ceased to function and a machine must take over the function. Without dialysis, the ESRD patient will die. There are basically two kinds of ESRD life-sustaining services - dialysis and transplantation. Dialysis is a process which separates substances in the blood by taking advantage of their different diffusibility through a porous membrane by means of the artificial kidney (Dialysis station) . Transplantation is the process whereby a patient's nonfunctioning kidney is replaced surgically with a functioning kidney donated by a relative or a suitable cadaver. Hemodialysis is employed on an acute basis for hospital inpatients and on a chronic basis for those persons suffering from ESRD who must have this maintenance procedure performed usually three times per week, five hours per treatment, in order to live. Chronic hemodialysis is performed on an outpatient basis and may be rendered by home self-care or in-center treatment. In-center care is carried out in a facility where dialysis is either accomplished by the individual or with the assistance of nurses. (Exhibit 3, Testimony of Pickering) There are five chronic dialysis units in facilities located within the four-county area of the Florida Gulf Health Systems Agency, Inc. The counties are Pasco, Pinellas, Hillsborough and Manatee. Four of these facilities are located in Hillsborough County and one in Pinellas County at St. Petersburg. There is no unit in the northern part of Pinellas County to service that area and Pasco County. The total number of chronic dialysis stations at the five facilities total 91, including 18 stations at the VA Hospital in Tampa. The VA Hospital had 39 dialysis patients as of January 1, 1978, and has established a 41 patient maximum for the facility. (Exhibits 3, 4, 8, Testimony of Pickering, McKinney, Riedsiel) Thee fees for outpatient chronic dialysis for Medicare patients are established by the federal government and have been fixed at $150.00 per treatment since 1973. The sum of $12.00 of that amount is for the physician's fee. For eligible Medicare patients, the government reimburses 80 percent of the allowable charge. Ninety percent of dialysis patients are eligible for Medicare. If Petitioner's proposed unit is approved, there will be a savings to the government in travel costs and there will be greater convenience to the patients in that those in the northern Pinellas and Pasco County area are now obliged to travel either to Tampa or St. Petersburg for treatment. (Exhibit 3, Testimony of Pickering, supplemented by Composite Exhibit 5) In its application, petitioner used a standard formula to arrive at the projected need for additional dialysis stations by August 1, 1978. This was based on the actual number of patients (217) in the four-county area, excluding Veterans Administration patients, as of August 1, 1977. The estimated number of new patients in the ensuing year, based on anticipated population growth to 1.6 million, was added to this figure to arrive at a total number of patients. Different computations were made based on either 80 or 100 new patients per million population. The actual number of successful kidney transplants performed in the area during the previous year was deducted from the projected patient population, as was an estimated 20 percent mortality rate for all patients. It was further assumed that patients would use each station two shifts a day for six days a week. Based on the existing number of dialysis stations, Petitioner estimated that between 4 and 11 new stations would be required within a year, depending upon either a 90 percent or 80 percent utilization rate of stations. These figures did not include transient patients or winter visitors. (Exhibit 4) Petitioner's proposal was first considered by the Florida Gulf Health Systems Agency, Inc., a federally funded agency charged with initial review of such applications, on November 28, 1977. It found that the proposal was in conformity with standards, criteria, and plans employed by the agency under the Section 1122 review program and recommended approval of the application. This agency utilized a formula similar to that of the Petitioner and determined that there would be a net need for five additional dialysis stations in 1978 and seventeen additional stations in 1979. However, it based this estimate on a figure of 3.2 patients per station, with each station operating only at 80 percent utilization. It also used an increased projected mortality rate of 21.8 percent per year, and estimated there would be 96 new patients per million population. The agency's rationale for recommending approval of Petitioner's application for ten additional stations even though the data indicated a need for only five in 1978, was based on the exclusion of transient population from the data, the life and death nature of the service, and the time period required for phasing in of the project. (Exhibit 3, Testimony of Silver) After receipt of the recommendation of the Florida Gulf Health Systems Agency, Inc., Respondent's medical facilities consultant reviewed the application, taking into consideration the recommendations and report of that agency, together with the report of a health program specialist of the Kidney Disease Program in the Department of Health and Rehabilitative Services. The latter report used erroneous figures in its computations to arrive at a zero need for additional dialysis stations by August, 1978. In a subsequent report, using more accurate figures as to patient load for each machine and a 15 percent instead of a 20 percent projected mortality rate, a new recommendation still found no need for additional stations within the coming year. However, unrealistic population figures were used in arriving at the probable number of new patients. (Exhibits 10, 11, Testimony of McDaniel) Respondent's consultant found that Petitioner's application met all the statutory and regulatory criteria for approval except as to need for additional facilities. Using an admittedly erroneous figure as to the average number of patients per dialysis station, he determined that an excess of 11 stations would exist in 1978 and an excess of two stations in 1979. Based on the recommendation of the consultant, respondent's Administrator of the Office of Community Medical Facilities advised Petitioner by letter of December 13, 1977, that its proposal was not favorably considered for the following reasons: The finding by the Florida Gulf Health Systems Agency that only five additional ESRD stations will be needed in 1978. The determination by the Office of Community Medical Facilities that a surplus of eleven stations will exist in the Health Service area in 1978. On December 16, 1977, Petitioner filed its petition for a formal hearing to contest the denial of its application. (Exhibits 1, 2, Testimony of Sjoberg) At the hearing, both Petitioner and Respondent presented updated figures as to actual patient population on January 1, 1978, based on informal surveys of local dialysis facilities. They stipulated that 242 patients were utilizing dialysis stations in the four-county area as of that date. Both parties also basically agreed that 3.6 patients per station is realistic, as is a 20 percent mortality rate, that the projected area population by the end of 1978 will be about 1.6 million, and that an average of 96 new patients per million population could be anticipated. The number of successful kidney transplants in 1977 (12) was undisputed. It was shown that the limitations on veterans gaining access to the Tampa VA Hospital would be modified by deaths in the hospital in the amount of some eight patients. The evidence also showed that Petitioner's planned home dialysis program would take care of the needs of about 23 patients per year. In applying the above figures to the basic formula, it is found that at least 78 stations will be needed by the end of 1978. Since 73 stations are in existence at the present time, five new stations would be required in 1978 based on a projected net patient population of 282. This figure does not include occasional utilization of dialysis stations by an unknown number of transients and winter residents of the area. However, since the number of such patients is unknown, this factor cannot be used in calculating the need for facilities. Applying the standard formula, it also conservatively can be found that at least five additional dialysis stations will be required in the first half of 1979. Respondent, as a matter of unwritten policy, restricts its consideration of need to the one-year period subsequent to the filing of an application. It will take petitioner approximately three to four months to have its facility operational for the treatment of patients. In consideration of the necessary administrative approvals required prior to commencing the purchase of equipment and rental and renovation of building space, it is found that Petitioner will not be in a position to operate its proposed facility until the latter half of 1978. (Exhibits 3, 6, 7, 12, 13, Testimony of McKinney, Sjoberg, Riedsiel, Shires)
Recommendation It is recommended that the petitioner's application for Certificate of Need/Capital Expenditure Proposal be approved. Done and Entered this 14th day of February, 1978, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. Art Forehand Administrator Office of Community Medical Facilities 1323 Winewood Boulevard Tallahassee, Florida 32301 Eric Haugdahl, Esquire Staff Attorney, Department of HRS 1323 Winewood Boulevard Tallahassee, Florida 32301 John H. French, Jr., Esquire 630 Lewis State Bank Building Tallahassee, Florida 32301 Gary Silvers Director of Project Review Florida Gulf Health Systems Agency, Inc. 10051 Fifth Street North Suite 253 St. Petersburg, Florida Mark B. Cohn, Esquire Post Office Box 1102 Tampa, Florida 33601
Findings Of Fact Respondent Gulf Coast Home Health Services, Inc. is a corporation providing home health care services in several Florida counties. It has an office in Hernando County and also serves clients in Citrus County. It presently has no license to serve Citrus County and has no Subunit in Hernando County. Petitioner Department of Health and Rehabilitative Services notified Respondent on January 17, 1980 that it intended to enter a final order requiring Respondent to terminate its operations in the two counties, aid Respondent requested an administrative hearing. Respondent's home office is located in St. Petersburg, Pinellas County, Florida. It was licensed to serve an area including Pinellas, Pasco, Hillsborough and Hernando Counties until licensure in 1980-81, when Hernando County was omitted. It was then stipulated that Respondent could continue operations in Hernando County until the final order in this case. Respondent was licensed to serve said counties without obtaining a certificate of need inasmuch as Petitioner had determined that Section 400.504, Florida Statutes, was inapplicable to those counties in which there was service to the area previous to the effective date of the statute. Respondent first served Hernando County from its Pinellas County office, but after opening an office in Pasco County in April of 1979, it notified Petitioner that it was serving Hernando County from its Pasco County office. Petitioner wrote a letter to Respondent on April 28, 1978 stating that in view of the increased expansion of Gulf Coast Home Health Services, Inc. into Hernando County, a sufficient client population base in Hernando County, and because of the time and distance factors from Pinellas County to Hernando County, a "Subunit" must be established in Hernando County (Petitioner's Exhibit 2, page 17). Respondent replied to the April correspondence by letter dated October 20, 1978 that servicing of Hernando County bad been moved from Pinellas County to Pasco County and stated that Respondent, too, saw a need to establish an office in Hernando County (Petitioner's Exhibit 2, page 14). Thereafter, an office was opened in Brooksville, Hernando County, Florida, by Respondent, but no application for a Subunit was filed. By correspondence dated June 14, 1979 Petitioner notified Respondent that a certificate of need had been deemed not necessary but an application for a Subunit was necessary and should be filed by July 6, 1979, and that a survey would then be scheduled. No application was filed, and a Notice to Show Cause why the Respondent's license should not be modified was issued on August 23, 1979. Respondent took no action. The office that was established in Brooksville, Florida in April of 1979 is under the overall general supervision of an Associate Director of Nursing. The Associate is the supervisor of the staff in the office both as to patient care and the clerical processing of all office records. The Associate's duties include supervision of a variety of skilled professional nurses, physical therapists, speech therapists, occupational therapists, social workers, home health aides and homemakers as well as the supervision of clerical personnel. The field supervisor in St. Petersburg coordinates the care of patients from the hospital to the home and relays information regarding patient care from the patient's physician to the nursing supervisor in the Brooksville office, who in turn relays the information to the appropriate staff who visit the patient. Patient medical records and plans for treatment are kept in the Brooksville office except for the annual survey, when they are moved to the home office in St. Petersburg. Some billing and typing of progress notes for the Brooksville office is provided by the Respondent's office in New Port Richey before such records are sent to the home office in St. Petersburg, Florida. The distance from Brooksville in Hernando County to St. Petersburg in Pinellas County is approximately 63 miles. Pasco County, where Respondent has another office, is between Pinellas County arid Hernando County. The distance between the office site in New Port Richey and that of Brooksville is about 37 miles. The area is rapidly growing, and the traffic is often congested on the few highways. II. On August 26, 1976 the Program Coordinator for Home Health Services of the Department of Health and Rehabilitative Services stated in a letter to the president of Gulf Coast Home Health Services, Inc. that Respondent had agreed to assume care on an interim basis of the former patients of Alaris Home Health Care Agency, which had ceased operations in Citrus County, Florida. The letter further stated that if the staff of that agency were employed by Respondent they should be supervised from the central office of Gulf Coast Home Health Service, Inc. (Petitioner's Exhibit 3, pages 15-16). Respondent accepted the patients of Alaris in August of 1976 as well as other patients from Citrus County. It continued to serve patients from Citrus County but did not apply for a license to serve Citrus County and did not include that county on its applications for licensure for the other counties it served until 1980. In late 1978 or early 1979 the Director of the office of Licensure and Certification, Department of Health and Rehabilitative Services, received a complaint from Central Florida Home Health Agency, Inc. that Respondent was operating in Citrus County. The Director notified Respondent's Director that Gulf Coast Home Health Service, Inc. was not licensed to serve Citrus County and requested some action. On January 15, 1979 Respondent sent a memorandum to the Brooksville office in Hernando County instructing the staff to cease serving Citrus County and forwarded a copy of said memorandum to Petitioner. However, before the memorandum was effected Respondent's Director verbally rescinded his directive, without notifying Petitioner, and continued to serve patients in Citrus County (Petitioner's Exhibit 3; Transcript, pages 139-144) Central Florida Home Health Agency, Inc. has been issued a license to service Citrus County, and at present both that agency and Respondent are serving patients in Citrus County, Florida. Central Florida Home Health Agency, Inc. has requested the Department of Health and Rehabilitative Services to enjoin Respondent from its activities in Citrus County. Both parties submitted proposed findings of fact, memoranda of law and proposed recommended orders. These instruments were considered in the writing of this order. To the extent the proposed findings of fact have not been adopted in or are inconsistent with factual findings in this order, they have been specifically rejected as being irrelevant or not having been supported by the evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that Respondent be required to cease its operations in Hernando County until and unless it is licensed as a Subunit. It is also recommended that Respondent terminate its operation in Citrus County until and unless it is licensed to serve said county. DONE and ORDERED this 5th day of September, 1980, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Robert P. Daniti, Esquire Department of HRS 1323 Winewood Boulevard Tallahassee, Florida 32301 Howard P. Ross, Esquire 980 Tyrone Boulevard Post Office Box 41100 St. Petersburg, Florida 33743
The Issue The central issue in this case is whether the Department of Environmental Protection (Department) should approve a permit for the applicant, Indian River County (County), to install a prefabricated erosion prevention reef (PEP reef) off the coast of Vero Beach, Florida.
Findings Of Fact The Department is the state agency charged with the responsibility of reviewing and approving permits such as the one at issue. The County is a governmental entity and is the applicant which has requested a permit for an experimental project to be located in Vero Beach, Florida. The Petitioners oppose the proposed project. The project at issue is the installation of a PEP reef system to be located between approximately 300 feet south of reference monument R-80 to approximately 300 feet south of reference monument R-83, in Indian River County, Florida. Because of the uncertainty as to the performance of the proposed project and the potential that it may cause adverse impacts to the coastal system, the Department classified the project as experimental pursuant to Chapter 89-175, Section 27, Laws of Florida. In making its preliminary approval for the permit, the Department required special permit conditions to safeguard the coastal system and marine turtles. Additionally, the Department specified both preconstruction and post installation monitoring and testing. The term of the permit is limited to five years, including three years to monitor the project's impacts. A PEP reef is a prefabricated erosion prevention product installed as a breakwater off the shore. In this case, the product measures approximately twelve feet long and six feet high. The base of the product (which is conically shaped) is approximately 15 feet tapering to a one foot crest at the top. The PEP unit is a proprietary product of a company called American Coastal Engineering (ACE). The County proposes to contract with ACE for the manufacture and installation of the units. It is proposed that the PEP units would be installed in an alignment parallel to the beach for a total, though not continuous, length of 3000 feet. The proposed location for the PEP reef in Vero Beach is in an erosion area as identified by the Department's Beach Restoration Management Plan. Historically, the subject beach has experienced a steady and continuous erosion which has been exacerbated during storm conditions. The proposed site is suitable for the experimental nature of this project. At least one past storm event caused substantial damage to the beach front at the project site. Walkways, utilities, and other public improvements were substantially damaged. Past efforts to curb the erosion have proved unsuccessful. Such efforts included beach renourishment, and the installation of seawalls or bulkheads. Future beach renourishment is undesirable for the project site due to the lack of compatible sand, and its high cost. More important, however, are concerns over the negative environmental impacts to nearshore reefs which could result from a large scale renourishment project. For over ten years the County has sought a solution to the erosion that has plagued the project site. To that end, the County established a special committee, the Beach and Shore Preservation Advisory Committee, to review options available and to recommend long-term solutions to the County. In June, 1993, the County contracted with Petitioner Walther to prepare a map of the nearshore hardbottom reef and to evaluate alternatives for beach restoration at the project site. Such work was completed, and recommendations from Mr. Walther were not incompatible with the installation of the proposed reef. The proposed installation should not adversely affect the hardbottom reefs which are in the vicinity of the PEP units. Such hardbottom is considered environmentally sensitive; however, no PEP unit will be placed on the hardbottom or so close to it that it will disturb the organisms located within the hardbottom community. In December, 1993, the County submitted an application for an experimental coastal construction permit to install the PEP reef which is at issue. The PEP units are to be placed in seven to ten feet of water. The PEP reef is designed to reduce wave heights, particularly during a storm event, which should reduce the wave energy and currents in the lee of the structure. While it is hoped the units will deter erosion, they may also cause some accretion to the beach. Whether such accretion would be temporary or long- term is uncertain. As a result of studies performed by the University of Florida under the direction of Dr. Dean, and supported by the County's coastal engineer Mr. Donaldson, it was determined that the PEP units should be installed in shorter lengths (than originally designed) with gaps between each segment. Consequently, the installation proposed by the County is not continuous but is staggered and gapped. The installation proposed by the County is unique in that the coastal characteristics of the area and the proposed design should produce results different from past installations of reef structures in Palm Beach County, Florida. As a result, studies performed by Dr. Dean in connection with a reef installed in Palm Beach County have been discounted as dissimilar to the one proposed in this case. In reviewing the subject permit application, the Department requested additional data which the County retained Dr. Zarillo to gather. Dr. Zarillo performed numerical modeling for the proposed reef system. Based upon Dr. Zarillo's work it is expected that the PEP reef system will have a positive benefit in that wave height and energy is likely to be reduced by the installation of the units. The site for the installation is suited for the proposal and is not within an area that is considered environmentally sensitive. Moreover, the PEP reef itself will add to the development of species since it should develop into a nursery habitat for young fish and other marine organisms. The installation of PEP reefs at other locations have proven to be both successful and unsuccessful. Having considered the studies performed by Dr. Bruno, an expert in coastal engineering and in measuring/modeling coastal processes, it is likely that the proposed project will be similar enough in design to installations reviewed by Dr. Bruno to allow the proposed project to be compared. Dr. Bruno has monitored three installations at three different sites in New Jersey. Each site had different results based upon conditions of each location. One site, expected to be most like the proposed site in Vero Beach, has experienced a reduced rate of erosion. Based upon Dr. Bruno's "real life" experience it is expected that the proposed installation will result in a reduction of wave height on the order of 10 percent to 20 percent. Consequently, the proposed installation should provide a benefit to the control of erosion. The reduction of wave height leads to a reduction in the erosive power of the wave field. Therefore, it is expected to result in a reduced erosion rate behind the PEP reefs. Additionally, Dr. Bruno's assessment of Dr. Zarillo's modeling work suggests that "in theory" the proposed site should experience a reduction in wave height as a result of the proposed installation. As a result, both scientific methods support the proposed project. No scientific study can, however, assure the success of this project. In fact, success may be derived from the value of the data which will be gathered during the monitoring period. Such data may assist in the future design of structures to reduce wave energy. The County's proposed monitoring plan contains detailed and adequate performance criteria to assure that the PEP reef system will be fully evaluated. The County has provided adequate assurance that it will comply with the permit conditions, including the modification or removal of the reef system if directed by the Department. All installation and monitoring as well as removal is to be performed at the County's expense. The PEP reef system will have no appreciable adverse impact on marine turtles. Construction is prohibited during nesting season under the terms of the permit. The PEP reef system will have no adverse impact on swimmers or boaters. The units are to be clearly marked and identified under the terms of the permit. No adverse impacts to Petitioners Walther and Clemens should be incurred as a result of the installation of the proposed project.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Environmental Protection enter a final order approving the permit requested by the County. DONE AND ENTERED this 16th day of February, 1996, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH, 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 16th day of February 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-4045 Rulings on the proposed findings of fact submitted by the Petitioner Walther: 1. Paragraphs 1, 3, 4, 6, 7, 8, 9, 10, 12, 13, 16, 17, 26, 29, 42, 44, 47, 50, 51, 59, and 60 are accepted. With regard to paragraph 2, the allegation is hearsay as it relates to the record cited; however, although not stipulated, the record most likely supports the paragraph in substance. Paragraph 5 is rejected as irrelevant. There is no evidence to support the factual conclusion that because another permit holder has failed to remove a reef that the County will similarly default on its obligation to do should the agency order the PEP reef removal. Paragraph 11 is rejected as irrelevant. Paragraph 14 is rejected as irrelevant if it purports to suggest the contracting was improper; this proceeding does not consider the propriety of the contracting process. With the deletion of any emphasis and the last sentence which are rejected as argument, paragraph 15 is accepted. Paragraphs 18 through 24 are rejected as irrelevant or contrary to the weight of credible evidence. Paragraph 25 is rejected as hearsay; it is accepted that Mrs. Clemens opposed the permit and requested a hearing. Paragraph 27 is rejected as an incomplete statement and therefore not supported by the total weight of credible evidence. Paragraph 28 is rejected as irrelevant or contrary to the weight of credible evidence. Paragraphs 30 through 33 are rejected as law not statements of fact. Paragraph 34 is accepted in general terms but not as to the specific measurements cited. Paragraphs 35 through 38 are rejected as contrary to the weight of all credible evidence. It is determined that the site is suitable for a non-biased, comprehensive analysis of the project. Paragraphs 39 through 41 are rejected as contrary to the weight of all credible evidence. Paragraph 43 is rejected as irrelevant. With regard to paragraph 45, it is accepted the reefs may settle but such is expected to be unlikely to impair the overall performance of the structure; therefore, the paragraph, as drafted, must be rejected as contrary to the weight of all credible evidence. Paragraph 46 is rejected as argument or contrary to the weight of all credible evidence. Paragraph 48 is rejected as argument or contrary to the weight of all credible evidence. Paragraph 49 is rejected as unclear or incomplete to stand as a finding of fact or contrary to the weight of all credible evidence. Paragraph 52 is rejected as irrelevant. Paragraph 53 is rejected as incomplete to stand as a finding of fact or contrary to the weight of all credible evidence. Paragraphs 54 through 58 are rejected as irrelevant or contrary to the weight of all credible evidence. With regard to paragraph 61, it is accepted that Dr. Dean envisioned a current being created that would run parallel to the shoreline as a result of the reef installation but otherwise rejected as irrelevant or contrary to the weight of all credible evidence. With regard to paragraph 62, such statement is generally true; however, Dr. Dean did not conduct any sediment transportation test to verify that the structure in an open setting (as opposed to the experimental tank) would transport sediment as inferred. Paragraphs 63 through 67 are rejected as irrelevant or contrary to the weight of credible evidence. Paragraph 68 is accepted as accurate but the agency did not express, and the record does not establish, that there is a concern that the County may not honor its agreement to remove the PEP reef if directed to do so. Paragraph 69 is rejected as irrelevant. Rulings on the proposed findings of fact submitted by the Petitioner Clemens: 1. None submitted. Rulings on the proposed findings of fact submitted by the Respondent Department: All proposed findings of fact adopted by the Department as listed are accepted. See comments below as to rulings on the proposed findings of fact submitted by the County. Rulings on the proposed findings of fact submitted by the Respondent County: 1. Paragraphs 1 through 5, 7 through 15, 17, 20, 21, 23, 24, 26, 27 through 30, 34, 40, 41, 42, 43, 45, and 46 are accepted. With regard to paragraph 6, it is accepted that an extensive renourishment program might damage the sensitive nearshore hardbottom community; otherwise rejected as irrelevant. With regard to paragraph 16, with the deletion of the word "significantly" in the second sentence and the last sentence which are rejected as irrelevant, editorial comment, argument or not supported by the total weight of credible evidence, it is accepted. With regard to paragraph 18, the first sentence is accepted. As to the balance of the paragraph, with the deletion of the word "significantly" and the substitution of "might" for "could", the paragraph is accepted. Otherwise rejected as an inaccurate characterization of the weight of the record. With regard to paragraph 19, the first sentence is accepted. The remainder of the paragraph is rejected as irrelevant. Paragraph 22 is rejected as a compound statement of proposed fact some of which are accurate but which taken in whole constitute argument, unnecessary, irrelevant or not supported by the weight of the credible evidence. Paragraph 25 is rejected as unnecessary or irrelevant. With regard to paragraph 31, with the deletion of the word "significant" in sentence three, the paragraph is accepted. With regard to paragraph 32, with the deletion of the word "significant" in sentence two, the paragraph is accepted. Paragraph 33 is rejected as repetitive, unnecessary or irrelevant. With regard to paragraph 35, the first sentence is accepted. The remainder of the paragraph is rejected as unnecessary, comment, argument, or irrelevant. Paragraphs 36 through 38 are rejected as unnecessary, comment, argument, or irrelevant. The proposed PEP reef should not adversely impact the Vero Beach shoreline. Paragraph 44 is rejected as unnecessary, comment, argument, or irrelevant. With regard to paragraphs 47 through 53, it is accepted that the Petitioners did not establish that they will be substantially affected by the proposed project; however, their conduct does not rise to the level to establish participation in the administrative process was for an improper purpose. Consequently, the paragraphs are rejected as argument, irrelevant or contrary to the weight of the credible evidence. COPIES FURNISHED: Steve Lewis, Esquire John W. Forehand, Esquire LEWIS, LONGMAN & WALKER, P.A. 215 S. Monroe Street, Suite 702 Post Office Box 10788 Tallahassee, Florida 32302 Kevin S. Hennessy, Esquire LEWIS, LONGMAN & WALKER, P.A. 2000 Palm Beach Lakes Boulevard Suite 900 West Palm Beach, Florida 33409 Michael P. Walther 1725 36th Avenue Vero Beach, Florida 32960 Adele Clemens 3747 Ocean Drive Vero Beach, Florida 32963 Thomas I. Mayton, Jr. Dana M. Wiehle Assistants General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Virginia B. Wetherall Secretary Department of Environmental Regulation Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Kenneth Plante General Counsel Department of Environmental Regulation 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue This matter arose on Petitioner's Amended Administrative Complaint which charges Respondent with aiding an unlicensed person to evade Florida contracting licensing law and with conspiracy in using his general contractor's license to further such unlawful purpose. The parties submitted proposed findings of fact which have been incorporated herein to the extent they are relevant and consistent with the evidence.
Findings Of Fact Respondent is a registered general contractor, having been issued license number RG 0013006. On January 6, 1978, Respondent obtained Dixie County building permit No. 335 for the construction of Evans Square Shopping Center located in Cross City, Florida. After purchasing the raw land and securing the building permit, Respondent was unable to borrow the funds needed for construction of the shopping center, and thereafter sold his interest in the project to Allied American Properties of Florida, Inc. (Allied). On May 15, 1978, Respondent entered into a contract with Allied to construct the Evans Square Shopping Center. On May 22, 1978, Respondent entered into a con- tract with Raymond H. Moody, individually, and Florida Gulf Coast Construction Co., Inc., acting by and through its President, Raymond H. Moody, who were to perform the actual construction of the Evans Square Shopping Center. At the time of contracting, Moody and Florida Gulf Coast Construction Co., Inc., were unlicensed to perform the type of construction outlined in the contract. Florida Gulf Coast Construction Co., Inc., eventually obtained proper licensure but did so subsequent to the period at issue here. In the contract agreement with Florida Gulf Coast Construction Co., Inc., and Moody, Respondent agreed that he would assist in obtaining necessary permits and local government services required for the construction of the Evans Square Shopping Center. Subsequent to the signing of the May 22, 1978, contract, Respondent learned from Moody that neither he nor Florida Gulf Coast Construction Co., Inc., was properly licensed to perform the type of construction for which they had contracted. Respondent took no immediate action based on this information. Moody and/or Florida Gulf Coast Construction Co., Inc., continued to perform construction activities with the use of Respondent's building permit and contractor's license. Respondent received in excess of $50,000.00 with regard to the May 22, 1978, contract which included payment for the building permit he had previously obtained. He did not, however, receive reimbursement for the several hundred thousand dollars he had invested in this project before the sale to Allied.
Recommendation From the foregoing, it if RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty as charged in the Amended Administrative Complaint and suspending his general contractor's license for a period of one year. DONE and ENTERED this 30th day of December, 1982, in Tallahassee, Florida. R. T. CARPENTER, 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 30th day of December, 1982.
Findings Of Fact In keeping with the terms of Subsection 120.60(6), Florida Statutes, the Petitioner, by certified mail, return receipt requested, notified the Respondent of its intentions to modify or revoke the Respondent's license as a "home health agency." This notification occurred on June 12, 1980. A copy of that notification may be found as Respondent's Exhibit A-30. Through the Notice, the Petitioner alleged that the Respondent was operating a "subunit" in Pasco County, Florida, at a time when the "parent agency" was located in Pinellas County, Florida. Under the circumstances, the Petitioner was out of the persuasion that a separate license for the Pasco County office must be procured and that in fact Gulf Coast did not have the necessary license and had been operating as a "subunit" in violation of Section 10D-68.04(2), Florida Administrative Code. Petitioner afforded Gulf Coast an opportunity pursuant to the Notice to demonstrate that he had complied with all lawful requirements related to the Pasco County operations of the Respondent and to give reason why the State of Florida should not institute administrative proceedings against the Respondent. On June 20, 1980, through correspondence which may be found as Petitioner's Exhibit VII, Gulf Coast made written explanation concerning its activities in Pasco County, particularly as related to the office in Pasco County and this item of explanation was reviewed by the Department. The explanation was not found to be sufficient and on October 3, 1980, a Notice of Intent to Enter Final Order was filed by the State of Florida and served on the Respondent by certified mail. Although this charging document was framed in terms of a "cease and terminate" claim as stated in the prior footnote, the claim was subsequently amended to be an action for modification or revocation of the Respondent's Pasco County activities in the New Port Richey office. The basis of the claim was to the effect that the Respondent was operating in its New Port Richey office without benefit of license, in violation of Section 10D.68.04(2), Florida Administrative Code, related to the requirement for licensure of "subunits." On October 20, 1980, Gulf Coast submitted a timely answer and affirmative defenses to the allegations as set forth in the Administrative Complaint. Those affirmative defenses were responded to on October 27, 1980, in a timely fashion, and the matter was forwarded to the State of Florida, Division of Administrative Hearings for consideration in keeping with the terms of Subsection 120.57(1), Florida Statutes. Following a continuance, the matter was set for final hearing on April 24, 1981, and a hearing de novo was conducted. This Recommended Order is being entered after receipt of the transcript of the record of the hearing and following review of memoranda in argument and a review of the proposed facts, conclusions of law and recommended dispositions filed by counsel for the parties. To the extent that the proposals, conclusions and recommendations are consistent with the findings herein, they have been utilized. To the extent that the proposed findings, conclusions and recommendations are inconsistent with the findings herein, they are hereby rejected. Fact Determinations Gulf Coast Home Health Services, Inc., is a nonprofit corporation in the business of providing "home health care" services in Pinellas, Pasco, Hernando and Hillsborough Counties, State of Florida. To conduct these activities, the Respondent has been licensed by the State of Florida, Department of Health and Rehabilitative Services, in keeping with Chapter 400, Part III, Florida Statutes, requiring the licensure of "home health agencies." Petitioner, State of Florida, Department of Health and Rehabilitative Services, is an agency of State government which has, among other responsibilities, the licensure and regulation of "home health agencies", to include the Respondent. The "parent agency" of Gulf Coast is located in St. Petersburg, Pinellas County, Florida. The Respondent has other offices in Clearwater, Pinellas County, Florida; Brooksville, Hernando County, Florida; and New Port Richey, Pasco County, Florida. The New Port Richey office, which is the primary focus of this inquiry, was opened on June 27, 1975, and an office in that community has been in operation since that time. There has been one move to a larger facility. Notification to the Petitioner of the existence of the New Port Richey office occurred on June 30, 1975, by correspondence from the Administrator of the Respondent to the Program Coordinator for Home Health Services, Division of Health, Department of Health and Rehabilitation Services. This may be seen through a copy of correspondence which may be found as Respondent's Exhibit A-1. There have been other indications of the existence of this office which have occurred over a period of time beyond the original notification and the instances may be seen in a review of the Respondent's Composite Exhibit A. Gulf Coast Home Health Services, Inc., received its initial license to operate as "home health agency" from a "parent office" in St. Petersburg, Pinellas County, Florida, on April 14, 1977. For each year subsequent to that time, to include April 1, 1981, through March 31, 1982, the Petitioner has continued to license the Respondent as a "home health agency". The area of responsibility for this "home health agency" has included Pasco County, Florida. The Respondent has never applied for any form of license for its office in New Port Richey. Consequently, a separate license has not been issued for the benefit of that facility. The first indication given by the State of Florida, Department of Health and Rehabilitative Services that a license would be required for the New Port Richey office came on June 12, 1980, in the form of the investigation letter referred to in the case history. The New Port Richey office of the Respondent is located approximately forty (40) miles from the "parent agency" in St. Petersburg, Florida. This distance has remained relatively constant since the inception of the New Port Richey in 1975. The New Port Richey office covers an area of 3,925 square feet, floor coverage. It can be seen in examining the graphs found in the Respondent's Composite Exhibit E, that a substantial percentage of the services rendered by the Respondent, in terms of home visits, are made by the New Port Richey branch office. Petitioner's Exhibit III, lists the employees in that office, to include the Associate Director of Nursing, depicted in the table of organization, Petitioner's Exhibit I. By job description, Petitioner's Exhibit III, she has the duty of coordination and administrative responsibility related to personnel in the New Port Richey office, with particular emphasis on nursing services. Some of the personnel in the New Port Richey staff area as follows: registered nurses, paramedical supervisor, registered nurse supervisor, physical therapist, home health aide, home health aide secretary, field supervisor, office manager, medical records secretary, weekend office supervisor, log clerk, and transcriber, among others. These persons are involved in providing daily "home health care services" from the New Port Richey office and files are maintained in the office related to clients serviced by the office. The New Port Richey office also provides support services to the Respondent's Brooksville and Clearwater offices, in instances where those other offices are short on staff or supervisory capacities. This arrangement is an addition to supervisors who might be provided from the St. Petersburg office. The New Port Richey office of the Respondent provides transcription services for patients' progress notes for the benefit of the Brooksville and Clearwater offices, as well as providing those services for the New Port Richey office. The Petitioner conducts annual surveys on the health care provider by the "home health care agency" and in the course of those surveys, the materials to be surveyed which are gathered from the individual offices, to include New Port Richey, are separated for consideration in the survey process. When the surveys are concluded, the materials related to the survey process are returned to the individual offices of the Respondent, to include New Port Richey. Appearance at the surveys is by the Director of Medical Services, an employee housed in the St. Petersburg office. The Administrator for Gulf Coast Home Health Services, Inc., in testifying about the responsibility of certain personnel in the New Port Richey office, namely clerical and secretarial positions was of the opinion that those personnel are not involved in the determination of eligibility for service or involved in the billing process for services rendered. Notwithstanding this testimony, the job description of the New Port Richey personnel would indicate the participation of those personnel in the determination of eligibility and in the billing process, and leads to the conclusions that the New Port Richey personnel do have those responsibilities. Financial service employees of the Respondent who operate from the St. Petersburg office are ultimately responsible for payroll functions, accounts payable functions and billing of medicare and private patients. The New Port Richey office is not involved in staff education and does not have an Advisory Board and Medical Director assigned solely to that concern. In addition, some supervision for the New Port Richey office is provided from St. Petersburg. In summary, the New Port Richey office is subject to the controls and policies established at the St. Petersburg "parent agency" and relies to a certain degree on logistical support from the parent organization; however, in terms of day-to-day decisions and the delivery of "home health service," the New Port Richey office has a substantial degree of autonomy. This fact was recognized by its Administrator in correspondence of October 20, 1978, addressed to Joseph D. Dowless, Jr., Director of Licensure and Certification, Department of Health and Rehabilitative Services, a copy which may be found as Respondent's Exhibit A-18. In that correspondence, the Administrator states that, "our Pasco office is a fully equipped well organized Agency, larger in size then [sic] the majority of agencies in the State. From here we have been able to provide high quality services to our Hernando patients." (This letter was written in response to correspondence from the Department on the subject of establishment of an office in Hernando County.) The New Port Richey office of the Respondent is a semi-autonomous agency servicing persons in Pasco County at a time when the "parent agency" is located in Pinellas County. As the organization is now constituted, it is capable of sharing administration, supervision and services on a daily basis with the "parent agency".
Recommendation Based upon a full consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That the Respondent, Gulf Coast Home Health Services, Inc., have its operations being conducted from the New Port Richey, Pasco County, Florida, office suspended, subject to proper licensure of that "subunit." DONE AND ORDERED in Tallahassee, Leon County, Florida, this 22nd day of June, 1981. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of June, 1981.
The Issue All Three Cases Whether the Petitioners have standing to bring their respective challenges pursuant to Section 120.56(4), Florida Statutes? Case No. 10-5348RU Whether either or both Original Specific Condition 1 and the Department ECL Position constitute a rule? Case Nos. 10-6205 and 10-8197 Whether Specific Condition 5 constitutes a rule? Attorney's Fees Whether an order should be entered against the Department for costs and attorney's fees under Section 120.595(4), Florida Statutes?
Findings Of Fact The Draft Permit The Draft Permit (and its revisions) authorizes the County "to construct the work outlined in the activity description and activity location of this permit and shown on the approved permit drawings, plans and other documents attached hereto." Joint Exhibit, Vol. III, Tab 9, page 3 of 26. The "activity description" and the "activity location" are detailed on the first page of the Draft Permit. See Joint Exhibit, Vol. III, Tab 9 (first page of 26). The drawings, plans and other documents attached to the Draft Permit are contained under Tab 10 of Volume III of the Joint Exhibit. The Parties Petitioner Guidry is co-trustee of the Guidry Living Trust (the "Guidry Living Trust"). He has independent authority to protect, conserve, sell, lease, encumber or otherwise dispose of trust assets. Those assets include a condominium unit in the Oceania Condominium. The condominium unit owned by the Guidry Living Trust includes an undivided interest held with all other unit owners in the common property at the Oceania Condominium. The common property includes real property that fronts the Gulf of Mexico located at 720 Gulf Shore Drive in the City of Destin, Florida. The real property has the MHWL of the Gulf of Mexico as its southern boundary. Petitioner Oceania is a condominium association established pursuant to Florida's Condominium Act, Chapter 718, Florida Statutes. It does not own any real property. Mr. Guidry testified that he is authorized in his capacity as president of the Association to initiate and pursue this administrative proceeding on its behalf. No documents were entered in evidence reflecting that Oceania's Board of Directors approved the filing of the petition. The owners of condominium units at the Oceania Condominium, including the Guidry Trust, comprise the membership of Oceania. The unit owners all own undivided shares in the Oceania Condominium common property including the real estate that extends at its southern boundary to the MHWL of the Gulf of Mexico. The owners did not vote on whether to file the petition in Case No. 10-05348RU. Petitioners David and Rebecca Sherry are leaseholders of real property where they reside. Located at 554 Coral Court, Number 511, Fort Walton Beach, Florida 32548, the property is in an area in Okaloosa County on Santa Rosa Island that is known as Okaloosa Island. The property leased by the Sherrys is not within the Western Destin Project. Petitioner John Donovan is a leaseholder of real property located at 909 Santa Rosa Boulevard, Numbers 131-132, El Matador Condominium, Fort Walton Beach, Florida 32548, in the same area as the Sherry's residence. Petitioner MACLA II, Ltd., is a Texas Limited Partnership. Louise Brooker is its president. It owns real property which fronts the Gulf of Mexico located at 620 Gulf Shore Drive, Destin, Florida. The southern boundary of the property is the MHWL of the Gulf of Mexico. The MACLA property is located adjacent to the shoreline that is the subject of the Western Destin Project. The Betty Price Hughes Qualified Vacation Residence Trust (the "Hughes Trust") owns real property at 612 Gulf Shore Drive. Its southern boundary is deeded the MHWL of the Gulf of Mexico. The property is located adjacent to the shoreline subject to the Western Destin Project. Petitioner H. Joseph Hughes is a trustee of the Hughes Trust. Petitioner Kershaw Manufacturing Company, Inc., an Alabama corporation, is the owner of real property located at 634 Gulf Shore Drive, Destin, Florida. Its southern boundary the property is the MHWL of the Gulf of Mexico. The property is located adjacent to the shoreline subject to the Western Destin Project. Royce Kershaw is the president of the Kershaw Manufacturing Company. He testified that as president of the company, he has the authority to act on behalf of the company and has the power to bind the corporate entity. The Department of Environmental Protection is responsible for the administration of Chapter 161, Florida Statutes, Parts I and II, the "Beach and Shore Preservation Act." § 161.011, Fla. Stat. The Board of Trustees of the Internal Improvement Fund is responsible for stewardship of its public trust properties under Chapter 253, Florida Statutes. Included among those properties is the sovereignty submerged lands along the coast of the Gulf of Mexico. The ECL and the MHWL In the context of the Beach and Shore Preservation Act, the MHWL and the ECL were discussed by the Florida Supreme Court in Walton County v. Stop the Beach Renourishment, Inc., 998 So. 2d 1102 (Fla. 2008) (the "Walton County Supreme Court Case"): Pursuant to section 161.141, when a local government applies for funding for beach restoration, a survey of the shoreline is conducted to determine the MHWL for the area. Once established, any additions to the upland property landward of the MHWL that result from the restoration project remain the property of the upland owner subject to all governmental regulations, including a public easement for traditional uses of the beach. § 161.141. After the MHWL is established, section 161.161(3) provides that the Board must determine the area to be protected by the project and locate an ECL. In locating the ECL, the Board "is guided by the existing line of mean high water, bearing in mind the requirements of proper engineering in the beach restoration project, the extent to which erosion or avulsion has occurred, and the need to protect existing ownership of as much upland as is reasonably possible." § 161.161(5). Pursuant to section 161.191(1), this ECL becomes the new fixed property boundary between public lands and upland property after the ECL is recorded. And, under section 161.191(2), once the ECL has been established, the common law no longer operates "to increase or decrease the proportions of any upland property lying landward of such line, either by accretion or erosion or by any other natural or artificial process." Walton County, at 1108. The Pre-project MHWL in This Case and the ECL The Pre-project MHWL called for by Original Specific Condition 1 was never established. No evidence was introduced as to where the Pre-project MHWL would have been located had it been set and in particular, where it would have been located in relation to an ECL. Rod Maddox is a long-time surveyor with the Department's Division of State Land in the Bureau of Survey & Mapping. See P-244. Mr. Maddox testified about his experience with pre-project MHWLs and where they are located in relation to ECLs. Familiar with the term "pre-project mean high water line," Mr. Maddox defined it as the mean high water line prior to the placement of fill used in a beach restoration project. See id. at 29. He testified that pre-project MHWLs have been required in the many beach restoration cases with which he is familiar. He testified further that when it comes to location, there is no difference between a pre-project MHWL and an ECL. The denominations may be different but Mr. Maddox testified "as to how . . . established, I see them as one and the same." Id. at 30. Original Special Condition 1: the Pre-project MHWL On December 31, 2009, the Department issued the NOI. Attached to it was the Draft Permit. The Draft Permit contained the following paragraph as Special Condition 1: Prior to construction of the beach restoration project, the Permittee must record in the official records of Okaloosa County a Certificate, approved by the Department, which describes all upland properties (including their owners of record) along the entire shoreline of the permitted project, with an attached completed survey of the pre-project Mean High Water Line ("Mean High Water Line Survey") conducted along the entire permitted project shoreline length. The Mean High Water Line Survey must have been completed in a manner complying with Chapter 177, Florida Statutes, as determined by the Department. No construction work pursuant to this joint coastal permit shall commence until the Certificate and attached Mean High Water Line Survey have been approved and archived by the Department's Bureau of Survey and Mapping, and the Department has received proof of recording of such documents (see Specific Condition No. 4.c.). The approved Certificate and attached Mean High Water Line survey shall be attached to, and kept as part of this joint coastal permit and authorization to use sovereign submerged lands. If in the future the Permittee seeks reimbursement from the State for costs expended to undertake (construct) the permitted project, then, prior to, and as a condition of receipt of any authorized and approved reimbursement, the Board of Trustees will establish an ECL consistent with the provisions of Chapter 161, Florida Statutes. The Permittee shall be required to record such a line in the Okaloosa County official records. Joint Exhibit, Vol. III, No. 9. The Oceania Petitioners, as landowners within the Project area, challenged the issuance of the Draft Permit on January 14, 2010. See Case No. 10-0516. Among the bases for the challenge was that the Department lacked authority to implement Original Special Condition 1 and, in particular, its requirement that the County record a completed survey of the pre-project MHWL in lieu of the establishment of an ECL. On July 26, 2010, the Department revised the Draft Permit to eliminate from the Project the common property owned by the unit owners of the Oceania Condominium. The change was supported by a letter from Michael Trudnak, P.E., of Taylor Engineering, Inc., on behalf of the County which stated: "On behalf of Okaloosa County, Taylor Engineering submits this request to modify the project area and Draft Joint Coastal Permit for the Western Destin Beach Restoration Project [file nos. excluded]. The applicant has decided to remove the Oceania Condominium property from the beach fill placement area." Joint Exhibit, Vol. III, Tab 15, Exhibit A. The revised project, as described in permit drawings enclosed with Mr. Trudnak's letter includes two reaches: Reach 1 extends from the east jetty of East Pass to approximately 600 ft east of FDEP reference monument R-22 (R22.6) and Reach 2 extends from approximately 200 ft east of R-23 (R-23.2) to R-25.5. The Oceania Condominium property is in the gap between the two beaches. Additionally, the letter requested that the Department modify Specific Condition 1 of the Draft Permit to reflect the modified project area so that the MHWL Survey requirement of Specific Condition 1 would exclude the Oceania Condominium property. In accord with the request, Special Condition 1 was amended to add the following language: "With respect to the shoreline seaward of the Oceania Owner's [sic] Association, Inc., members' common elements property, neither a pre-project Mean High Water Line survey, nor a Certificate with a description of the pre-project Mean High Water Line shall be recorded in conjunction with this coastal permit." Joint Exhibit, Vol. III, Tab 15, the First Revised Draft Permit, Page 5 of 26. On August 4, 2010, as the Department neared the end of its case in the third day of the hearing, it announced that the Revised Draft Permit would "be revised [again, this time] to require the establishment of an ECL under the applicable statute." Tr. 621. The draft permit, accordingly, was revised for a second time (the "Second Revised Draft Permit"). The Department carried out the second revision in a notice filed at the Division of Administrative Hearings on August 18, 2010 (the August 18, 2010, Notice). The August 18, 2010, Notice contains two changes to the First Revised Draft Joint Permit. The first change deletes the existing language in Original Specific Condition 1 (the language challenged in Case No. 10-5348RU) in its entirety. It substitutes the following language: Prior to construction of the beach restoration project, the Board of Trustees will establish an Erosion Control Line along the shoreline of the beach restoration project. The Erosion Control Line shall be established consistent with the provisions of ss. 161.141-161.211, Florida Statutes. An Erosion Control Line shall not be established in conjunction with this joint coastal permit with respect to the shoreline seaward of the Oceania Owner's [sic] Association, Inc. members' common elements property. In lieu of conducting a survey, the Board of Trustees may accept and approve a survey as initiated, conducted, and submitted by Okaloosa County if said survey is made in conformity with the appropriate principles set forth in ss. 161.141-161.211. Department of Environmental Protection's and Board of Trustees of the Internal Improvement Fund's Notice of Revisions to the Proposed Joint Coastal Construction Permit, page 3 of 4. The second change is made with respect to Specific Condition No. 4(c) of the First Revised Draft Permit, one of a list of items to be submitted to the Department for approval prior to the commencement of construction and the issuance of a Notice to Proceed by the Department. The existing language is deleted in its entirety and the following language is substituted: Written documentation that the Erosion Control Line required by Special Condition Number 1 has been filed in the public records of Okaloosa County. Id. The Department ECL Position Chapter 161: Beach and Shore Preservation Chapter 161, Florida Statutes, governs "Beach and Shore Preservation." "Parts I and II of this chapter may be known and cited as the 'Beach and Shore Preservation Act.'" § 161.011, Fla. Stat. Part I governs "Regulation of Construction, Reconstruction, and Other Physical Activity." Sections 161.011 through 161.241 comprise Part I. The Department developed its position on ECLs claimed by Petitioners to be an Unadopted Rule by considering Part I, in particular Sections 161.088 (which declares the public policy to properly manage and protect Florida's beaches) through 161.211. At some point in 2009, the Department saw a distinction related to ECLs in Sections 161.088-161.211 between beach restoration projects where state funding was used for construction and projects where no state funds were used. The former seemed to require ECLs, the latter not. Several statutory provisions were viewed as particularly relevant. For example, Section 161.141, Florida Statutes, declares that it is the public policy of the state "to cause to be fixed and determined, pursuant to beach restoration . . . projects, the boundary line between sovereignty lands . . . and the upland properties adjacent thereto " The section that mainly governs ECLs is Section 161.161. It provides the procedure for approval of projects for the restoration and maintenance of critically eroded beaches, subject to a beach management plan which is funded, in part, by the state. With regard to ECLs, the statute provides: Once a project [for the restoration and maintenance of a critically eroded beach] is determined to be undertaken, a survey of all or part of the shoreline within the jurisdiction of the local government in which the beach is located shall be conducted in order to establish the area of beach to be protected by the project and locate an erosion control line. * * * Upon completion of the survey depicting the area of the beach erosion control project and the proposed location of the erosion control line, the board of trustees shall give notice of the survey and the date on which the board of trustees will hold a public hearing for purpose of receiving evidence on the merits of the proposed erosion control line and, if approval is granted, of locating and establishing such requested erosion control line in order that any persons who have an interest in the location of such requested erosion control line can be present at such hearing to submit their views concerning the precise location of the proposed erosion control line. * * * The board of trustees shall approve or disapprove the erosion control line for a beach restoration project. In locating said line, the board of trustees shall be guided by the existing line of mean high water, bearing in mind the requirements of proper engineering in the beach restoration project, the extent to which the erosion or avulsion has occurred, and the need to protect existing ownership of as much upland as is reasonably possible. § 161.161, Fla. Stat. Development of the Department's Position on ECLs Prior to 2009, the Department's established ECLs for beach restoration projects whether the project's construction was supported by state funding or not. There was an exception: when the property landward of the MHWL was owned by the state. In such a case, the Department saw no need to set an ECL since both the sovereignty lands and the adjacent uplands property are owned by the state. This position held at least through January 15, 2009, when the Department held a workshop and hearing pursuant to Section 161.161, Florida Statutes, in Okaloosa County to establish an ECL for the Western Destin Project. The hearing officer who conducted the ECL hearing was West Gregory, Department Assistant General Counsel. While consideration of where the ECL should be established for the Western Destin Project was underway, there were ongoing discussions by e-mail and in briefings of whether the statute required an ECL. The discussion was prompted when Mr. Gregory, as Department Assistant General Counsel, drafted a memorandum (the "Draft Memorandum") to Michael Barnett, Chief of the Bureau of Beaches and Coastal Systems (the Bureau) to be sent through Paden Woodruff, an Environmental Administrator. The memorandum related to another beach restoration project in Okaloosa County: a project involving Eglin Air Force Base. The Draft Memorandum shows a date of January "XX", 2009, and is stamped "DRAFT." P-119. It presents the question "Should . . . [the Department] require the United States Air Force (USAF) to establish an erosion control line (ECL) for the beach restoration project located on Eglin AFB?" Id. The Draft Memorandum provides a brief answer: "No, . . . because the beach . . . is not critically eroded." Id. The memorandum recognizes the public policy of the state to fix the boundary between public and private lands for beach restoration projects in Section 161.141, Florida Statutes, and a requirement that the Board of Trustees "must establish the line of mean high water prior to the commencement of a beach restoration project," id., leading to the suggestion that each and every beach restoration project must establish an ECL. The Draft Memorandum, however, construes Section 161.141, Florida Statutes, with Section 161.161, Florida Statutes, and draws support from an Attorney General Opinion and the Walton County Florida Supreme Court case to conclude that it is only when a project is undertaken with state funding that an ECL must be established. In the case of the Eglin AFB beach restoration projects, the Draft Memorandum concludes: Id. This determination not to establish an ECL on the Eglin AFB beach restoration project would not preclude the USAF from obtaining a JCP permit. Rather, it precludes the USAF from receiving state funding assistance. The Draft Memorandum was not sent to the intended recipients. It was submitted to two other lawyers in the Department. Mr. Gregory did not receive comments from them. Although no comments were made to Mr. Gregory after the draft of the memorandum was sent to other members of the legal staff, the subject remained under discussion in the Department in early 2009. Sometime in early 2009, based on a legal analysis of Department attorneys, the Department took the position that an ECL is required to be set when state funds are used for the construction of a project. The converse of this position, that an ECL is not required to be set when no state funds are involved, is the statement alleged to be an unadopted rule. Two permits were issued that did not require an ECL: one for the Eglin AFB beach restoration project in March of 2009, and another that was an emergency permit for Holiday Isle. As with Specific Condition 1 in the Western Destin Project, the determination to not require an ECL was because of the lack of state funding. As Mr. Barnett testified about the two permits, there "is no State cost share for construction . . . [and] that's the reason [the Department] didn't require establishment of an ECL." Tr. 1279. Mr. Gregory's Draft Memorandum was never finalized. The Department issued three permits or draft permits (including for the Western Destin Project) with specific conditions that required pre-project MHWLs and that did not require ECLs. Otherwise, the Department has not committed the Department ECL Position to writing. Nonetheless, the Department ECL Position was stated in a deposition taken in this case on July 26, 2010. On July 26, 2010, the deposition of Janet Llewellyn, the Director of Water Resources Management was taken by Petitioners. Director Llewellyn is "responsible ultimately for all the projects that are processed and actions taken out of [the] division." P-223 at 10. These include permits issued by the Bureau and in particular, the Draft Permit, First Revised Draft Permit and the Second Draft Permit for the Project. When asked about the Department's statement that an ECL is not required when there is not state funding, Ms. Llewellyn preferred to rephrase the Department position as to when an ECL is required rather than when it is not required. She then testified that an ECL is required when there is "state funding involved through [the Department's] funding program." Id. at 13. Ms. Llewellyn was unable to pinpoint the moment the Department reached such a position other than: [t]he question came up sometime in the last year or two -- I couldn't tell you when -- about what the statute actually required in terms of when it was proper to set an erosion control line or required. And our attorneys did a legal analysis, again, of the statute, and that was their legal opinion of what the statute required. Tr. 14. Whatever the date that such a position was precisely firmed up, Ms. Llewellyn was able to testify on July 26, 2010, "that if state funding is going to a project, than an ECL needs to be set. That's what the statute requires." Id. This statement was based on the opinions of Department attorneys prior to their use in connection with the issuance of beach restoration permits in Okaloosa County. The Department has not initiated rule-making with respect to its ECL Position. Whether rule-making would be initiated was not known by the Bureau Chief on August 24, 2010, during his testimony in the final hearing. Change of Position The Department modified its position on ECLs that it appeared to have at the time of Ms. Llewellyn's deposition on August 4, 2010. As detailed above, it announced that an ECL would be required for the Western Destin Project, after all. The modification was formalized with the filing of the Second Revised Draft Permit on August 18, 2010. Specific Condition 5 Before the challenged language in Specific Condition 5 was added by the First Revised Draft Permit, the Department had relied on General Condition 6 to give notice to permittees that the permit did not allow trespass: This permit does not convey to the Permittee or create in the Permittee any property right, or any interest in real property, nor does it authorize any entrance upon or activities on property which is not owned or controlled by the Permittee. The issuance of the permit does not convey any vested rights or any exclusive privileges. Joint Ex. 9. Based on the petitions in the Permit Challenge Cases, the Department proposed in the First Revised Draft Permit to add to Specific Condition 5 the language that is underscored in the following: The Permittee is advised that no work shall be performed on private upland property until and unless the required authorizations are obtained. Sufficient authorizations shall included: (1) written evidence of ownership of any property which will be used in carrying out the project; (2) authorization for such use from the property owner which upland of mean high-water; (3) construction and management easements from upland property owners; or (4) a judgment from a court of competent jurisdiction which reflects that such authorization, in whole or in part, is not required. The Permittee is also advised to schedule the pre-construction conference at least a week prior to the intended commencement date. At least seven (7) days in advance of a pre-construction conference, the Permittee shall provide the written authorizations for the portion of the project for which construction is about to commence, as required above, written notification, advising the participants (listed above) of the agreed-upon date, time and location of the meeting, and also provide a meeting agenda and a teleconference number. Joint Exhibit, Volume III, Tab 15, the First Revised Draft Permit, Page 7 of 26. There was no evidence that the language added to Specific Condition 5 by the First Revised Draft Permit had been in any other permits or that the Department intended to use the language in any other beach restoration permits. Other than whatever might be gleaned from the Draft Permit, itself (and its revisions), there was no evidence offered that the property of any of the petitioners, in fact, would be used in the Western Destin Beach Project.
The Issue The issues in these cases are whether the Agency for Health Care Administration (AHCA or Agency) should discipline (including license revocation) Bayou Shores SNF, LLC, d/b/a Rehabilitation Center of St. Pete (Bayou Shores) for the statutory and rule violations alleged in the June 10, 2014, Administrative Complaint, and whether AHCA should renew the nursing home license held by Bayou Shores.
Findings Of Fact Bayou Shores is a 159-bed licensed nursing facility under the licensing authority of AHCA, located in Saint Petersburg, Florida. Bayou Shores was at all times material hereto required to comply with all applicable rules and statutes. Bayou Shores was built in the 1960s as a psychiatric hospital. In addition to long-term and short-term rehabilitation residents, Bayou Shores continues to treat psychiatric residents and other mental health residents. AHCA is the state regulatory authority responsible for licensure of nursing homes and enforcement of applicable federal regulations, state statutes, and rules governing skilled nursing facilities, pursuant to the Omnibus Reconciliation Act of 1987, Title IV, Subtitle C (as amended) chapters 400, Part II, and 408, Part II, Florida Statutes, and Florida Administrative Code Chapter 59A-4. AHCA is responsible for conducting nursing homes surveys to determine compliance with Florida statutes and rules. AHCA completed surveys of Bayou Shores’ nursing home facility on or about February 10, 2014;5/ March 20, 2014; and July 11, 2014. Surveys may be classified as annual inspections or complaint investigations. Pursuant to section 400.23(8), Florida Statutes, AHCA must classify deficiencies according to their nature and scope when the criteria established under section 400.23(2) are not met. The classification of the deficiencies determines whether the licensure status of a nursing home is "standard" or "conditional" and the amount of the administrative fine that may be imposed, if any. AHCA surveyors cited deficiencies during the three surveys listed above (paragraph 4). Prior to the alleged events that prompted AHCA’s actions, Bayou Shores had promulgated policies or procedures for its operation. Specifically, Bayou Shores had policies or procedures in place governing: (Resident) code status, involving specific life-saving responses (regarding what services would be provided when or if an untoward event occurred, including a resident’s end of life decision); Abuse, neglect, exploitation, misappropriation of property; and Elopements. CODE STATUS Bayou Shores’ policy on code status orders and the response provided, in pertinent part, the following: Each resident will have the elected code status documented in their medical record within the Physician’s orders & on the state specific Advanced Directives form kept in the Advanced Directives section of the medical record. Bayou Shores’ procedure on code status orders and the response also provided that the “Physician & or Social Services/Clinical Team” would discuss with a “resident/patient or authorized responsible party” their wishes regarding a code status as it related to their current clinical condition. This discussion was to include an explanation of the term “'Do Not Resuscitate’ (DNR) and/or ‘Full Code.’” Bayou Shores personnel were to obtain a written order signed by the physician indicating which response the resident (or their legal representative) selected. In the event a resident was found unresponsive, the procedure provided for the following staff response: 3 Response: Upon finding a resident/patient unresponsive, call for help. Evaluate for heartbeat, respirations, & pulse. The respondent to the call for help will immediately overhead page a “CODE BLUE” & indicate the room number, or the location of the resident/patient & deliver the Medical Record & Emergency Cart to the location of the CODE BLUE. If heartbeat, respirations, & pulse cannot be identified, promptly verify Code Status - Respondent verifies Code Status by review of the resident’s/patient’s Medical Record. If Code Status is “DNR” – DO NOT initiate CPR (Notify Physician, Supervisor & Family). If Code Status includes CPR & respondent is CPR certified, BEGIN Cardio Pulmonary Resuscitation. If respondent is not CPR certified, STAY with the RESIDENT/PATIENT – Continue to summon assistance. The first CPR certified responder will initiate CPR. If code status is not designated, the resident is a FULL CODE & CPR will be initiated. A scribe will be designated to record activity related to the Code Blue using the “Code Blue Worksheet.” The certified respondent will continue CPR until: Relieved by EMS, relieved by another CPR certified respondent, &/or Physician orders to discontinue CPR. A staff member will be designated to notify the following person(s) upon initiation of CPR. EMS (911) Physician Family/Legal Representative * * * 5) Review DNR orders monthly & with change in condition and renew by Physician’s signature on monthly orders. (Emphasis supplied). Bayou Shores’ “Do Not Resuscitate Order” policy statement provides: Our facility will not use cardiopulmonary resuscitation and related emergency measures to maintain life functions on a resident when there is a Do Not Resuscitate Order in effect. Further, the DNR policy interpretation provides: Do not resuscitate order must be signed by the resident’s Attending Physician on the physician’s order sheet maintained in the resident’s medical record. A Do Not Resuscitate Order (DNRO) form must be completed and signed by the Attending Physician and resident (or resident’s legal surrogate, as permitted by State law) and placed in the front of the resident’s medical record. (Note: Use only State approved DNRO forms. If no State form is required use facility approved form.) Should the resident be transferred to the hospital, a photocopy of the DNRO form must be provided to the EMT personnel transporting the resident to the hospital. Do not resuscitate orders (DNRO) will remain in effect until the resident (or legal surrogate) provides the facility with a signed and dated request to end the DNR order. (Note: Verbal orders to cease the DNRO will be permitted when two (2) staff members witness such request. Both witnesses must have heard and both individuals must document such information on the physician’s order sheet. The Attending Physician must be informed of the resident’s request to cease the DNR order.) The Interdisciplinary Care Planning Team will review advance directives with the resident during quarterly care planning sessions to determine if the resident wishes to make changes in such directives. Inquiries concerning do not resuscitate orders/requests should be referred to the Administrator, Director of Nursing Services, or to the Social Services Director. Bayou Shores’ advance directives policy statement provides: “Advance Directives will be respected in accordance with state law and facility policy.” In pertinent part, the Advance Directives policy interpretation and implementation provides: * * * Information about whether or not the resident has executed an advance directive shall be displayed prominently in the medical record. In accordance with current OBRA definitions and guidelines governing advance directives, our facility has defined advanced directives as preferences regarding treatment options and include, but are not limited to: * * * b. Do Not Resuscitate – Indicates that, in case of respiratory or cardia failure, the resident, legal guardian, health care proxy, or representative (sponsor) has directed that no cardiopulmonary resuscitation (CPR) or other life-saving methods are to be used. * * * Changes or revocations of a directive must be submitted in writing to the Administrator. The Administrator may require new documents if changes are extensive. The Care Plan Team will be informed of such changes and/or revocations so that appropriate changes can be made in the resident assessment (MDS) and care plan. The Director of Nursing Services or designee will notify the Attending Physician of advance directives so that appropriate orders can be documented in the resident’s medical record and plan of care. (Emphasis supplied). A DNR order is an advance directive signed by a physician that nursing homes are required to honor. The DNR order is on a state-mandated form that is yellow/gold (“goldenrod”) in color. The DNR order is the only goldenrod form in a resident’s medical record/chart.6/ The medical record itself is kept at the nursing station. DNR Orders should be prominently placed in a resident’s medical record for easy access. When a resident is experiencing a life-threatening event, care-givers do not have the luxury of time to search a medical record or chart to determine whether the resident has a DNR order or not. Cardiopulmonary resuscitation should be started as soon as possible, provided the resident did not have a DNR order. Bayou Shores had a policy and procedure regarding DNR orders and the implementation of CPR in place prior to the February 2014 survey. The policy and procedure required that DNR orders be honored, and that each resident with a DNR order have the DNR order on the state-mandated goldenrod form in the "Advanced Directives" section of the resident’s medical record. ABUSE, NEGLECT, EXPLOTATION, AND MISAPPROPRIATION OF PROPERTY PREVENTION, PROTECTION AND RESPONSE POLICY AND PROCEDURES Bayou Shores’ “Abuse, Neglect, Exploitation, and Misappropriation of Property Prevention, Protection and Response” policy provided in pertinent part: Abuse, Neglect, Exploitation, and Misappropriation of Property, collectively known and referred to as ANE and as hereafter defined, will not be tolerated by anyone, including staff, patients, volunteers, family members or legal guardians, friends or any other individuals. The health center Administrator is responsible for assuring that patient safety, including freedom from risk of ANE, hold the highest priority. (Emphasis supplied). Bayou Shores’ definition of sexual abuse included the following: Sexual Abuse: includes but is not limited to, sexual harassment, sexual coercion, or sexual assault. (Emphasis supplied). Bayou Shores’ ANE prevention issues policies included in pertinent part: The center will provide supervision and support services designed to reduce the likelihood of abusive behaviors. Patients with needs and behaviors that might lead to conflict with staff or other patients will be identified by the Care Planning team, with interventions and follow through designed to minimize the risk of conflict. Bayou Shores’ procedure for prevention issues involving residents identified as having behaviors that might lead to conflict included, in part, the following: patients with a history of aggressive behaviors, patients who enter other residents rooms while wandering. * * * e. patients who require heavy nursing care or are totally dependent on nursing care will be considered as potential victims of abuse. Bayou Shores’ interventions designed to meet the needs of those residents identified as having behaviors that might lead to conflict included, in part: Identification of patients whose personal histories render them at risk for abusing other patients or staff, assessment of appropriate intervention strategies to prevent occurrences, Bayou Shores’ policy regarding ANE identification issues included the following: Any patient event that is reported to any staff by patient, family, other staff or any other person will be considered as possible ANE if it meets any of the following criteria: * * * f. Any complaint of sexual harassment, sexual coercion, or sexual assault. (Emphasis supplied). Bayou Shores’ ANE procedure included the following: Any and all staff observing or hearing about such events will report the event immediately to the ABUSE HOTLINE AT 1-800-962-2873. The event will also be reported immediately to the immediate supervisor, AND AT LEAST ONE OF THE FOLLOWING INDIDUALS, Social Worker (ANE Prevention Coordinator), Director of Nursing, or Administrator. Any and all employees are empowered to initiate immediate action as appropriate. (Emphasis supplied). Bayou Shores’ policies regarding ANE investigative issues provided the following: Any employee having either direct or indirect knowledge of any event that might constitute abuse must report the event promptly. * * * All events reported as possible ANE will be investigated to determine whether ANE did or did not take Place [sic]. Bayou Shores’ procedures regarding ANE investigative issues included the following: Any and all staff observing or hearing about such events must report the event immediately to the ANE Prevention Coordinator or Administrator. The event should also be reported immediately to the employee’s supervisor. All employees are encouraged and empowered to contact the ABUSE HOTLINE AT 1-800-962-2873. [sic] if they witness such event or have reasonable cause to suspect such an event has indeed occurred. THE ANE PREVENTION COORDINATOR will initiate investigative action. The Administrator of the center, the Director of Nurses and/or the Social Worker (ANE PREVENTION COORDINATOR) will be notified of the complaint and action being taken as soon as practicable. (Emphasis supplied). Bayou Shores’ policy regarding ANE reporting and response issues included the following: All allegations of possible ANE will be immediately reported to the Abuse Hotline and will be assessed to determine the direction of the investigation. Bayou Shores’ procedures regarding ANE reporting and response issues included the following: Any investigation of alleged abuse, neglect, or exploitation will be reported immediately to the Administrator and/or the ANE coordinator. It will also be reported to other officials, in accordance with State and Federal Law. THE IMMEDIATE REPORT All allegations of abuse, neglect, . . . must be reported immediately. This allegation must be reported to the Abuse Hotline (Adult Protective Services) within twenty-four hours whenever an allegation is made. The ANE Prevention Coordinator will also submit The Agency for Health Care Administration AHCA Federal Immediate/5-Day Report and send it to: Complaint Administration Unit Phone: 850-488-5514Fax: 850-488-6094 E-Mail: fedrep@ahca.myflorida.com THE REPORT OF INVESTIGATION (Five Day Report): The facility ANE Prevention Coordinator will send the result of facility investigations to the State Survey Agency within five working days of the incident. This will be completed using the same AHCA Federal/Five Day Report, and sending it to the Complaint investigation Unit as noted above. DESIGNATED REPORTERS: Shall immediately make a report to the State Survey Agency, by fax, e-mail, or telephone. All necessary corrective actions depending on the result of the investigation will be taken. Report any knowledge of actions by a court of law against any employee, which would indicate an employee is unfit for service as a nurse aide or other facility staff to the State nurse aide registry or other appropriated [sic] licensing authorities. Any report to Adult Protective Services will trigger an internal investigation following the protocol of the Untoward Events Policy and Procedure. (Emphasis supplied). Bayou Shores’ abuse investigations policy statement provides the following: All reports of resident abuse, . . . shall be promptly and thoroughly investigated by facility management. Bayou Shores’ abuse investigations interpretation and implementation provides, in pertinent part, the following: Should an incident or suspected incident of resident abuse, . . . be reported, the Administrator, or his/her designee, will appoint a member of management to investigate the alleged incident. The Administrator will provide any supporting documents relative to the alleged incident to the person in charge of the investigation. The individual conducting the investigation will, as a minimum: Review the completed documentation forms; Review the resident’s medical record to determine events leading up to the incident; Interview the person(s) reporting the incident; Interview any witnesses to the incident; Interview the resident (as medically appropriate); Interview the resident’s Attending Physician as needed to determine the resident’s current level of cognitive function and medical condition; Interview staff members (on all shifts) who have had contact with the resident during the period of the allege incident; Interview the resident’s roommate, family members, and visitors; Interview other residents to whom the accused employee provides care or services; and Review all events leading up to the alleged incident. The following guidelines will be used when conducting interviews; Each interview will be conducted separately and in a private location; The purpose and confidentiality of the interview will be explained thoroughly to each person involved in the interview process; and Should a person disclose information that may be self-incriminating, that individual will be informed of his/her rights to terminate the interview until such time as his/her rights are protected (e.g., representation by legal counsel). Witness reports will be obtained in writing. Witnesses will be required to sign and date such reports. The individual in charge of the abuse investigation will notify the ombudsman that an abuse investigation is being conducted. The ombudsman will be invited to participate in the review process. Should the ombudsman decline the invitation to participate in the investigation, that information will be noted in the investigation record. The ombudsman will be notified of the results of the investigation as well as any corrective measures taken. * * * The individual in charge of the investigation will consult daily with the Administrator concerning the progress/findings of the investigation. The Administrator will keep the resident and his/her representative (sponsor) informed of the progress of the investigation. The results of the investigation will be recorded on approved documentation forms. The investigator will give a copy of the completed documentation to the Administrator within working days of the reported incident. The Administrator will inform the resident and his/her representative (sponsor) of the results of the investigation and corrective action taken within days of the completion of the investigation. The Administrator will provide a written report of the results of all abuse investigations and appropriate action taken to the state survey and certification agency, the local police department, the ombudsman, and others as may be required by state or local laws, within five (5) working days of the reported incident. Should the investigation reveal that a false report was made/filed, the investigation will cease. Residents, family members, ombudsmen, state agencies, etc., will be notified of the findings. (Note: Disciplinary actions concerning the filing of false reports by employees are outlined in our facility’s personnel policy manual.) Inquiries concerning abuse reporting and investigation should be referred to the Administrator or to the Director of Nursing Services. Bayou Shores’ reporting abuse to facility management policy statement provides the following: It is the responsibility of our employees, facility consultants, Attending Physicians, family members visitors etc., to promptly report any incident or suspected incident of . . . resident abuse . . . to facility management. Bayou Shores’ reporting abuse to facility management policy interpretation and implementation provides the following: Our facility does not condone resident abuse by anyone, including staff members, . . . other residents, friends, or other individuals. To help with recognition of incidents of abuse, the following definitions of abuse are provided: * * * c. Sexual abuse is defined as, but not limited to, sexual harassment, sexual coercion, or sexual assault. All personnel, residents, family members, visitors, etc., are encouraged to report incidents of resident abuse or suspected incidents of abuse. Such reports may be made without fear of retaliation from the facility or its staff. Employees, facility consultants and /or Attending Physicians must immediately report any suspected abuse or incidents of abuse to the Director of Nursing Services. In the absence of the Director of Nursing Services such reports may be made to the Nurse Supervisor on duty. Any individual observing an incident of resident abuse or suspecting resident abuse must immediately report such incident to the Administrator or Director of Nursing Services. The following information should be reported: The name(s) of the resident(s) to which the abuse or suspected abuse occurred; The date and time that the incident occurred; Where the incident took place; The name(s) of the person(s) allegedly committing the incident, if known; The name(s) of any witnesses to the incident; The type of abuse that was committed (i.e., verbal, physical, . . . sexual, . . .); and Any other information that may be requested by management. Any staff member or person affiliated with this facility who . . . believes that a resident has been a victim of . . . abuse, . . . shall immediately report, or cause a report to be made of, the . . . offense. Failure to report such an incident may result in legal/criminal action being filed against the individual(s) withholding such information. * * * The Administrator or Director of Nursing Services must be immediately notified of suspected abuse or incidents of abuse. If such incidents occur or are discovered after hours, the Administrator and Director of Nursing Services must be called at home or must be paged and informed of such incident. When an incident of resident abuse is suspected or confirmed, the incident must be immediately reported to facility management regardless of the time lapse since the incident occurred. Reporting procedures should be followed as outlined in this policy. Upon receiving reports of . . . sexual abuse, a licensed nurse or physician shall immediately examine the resident. Findings of the examination must be recorded in the resident’s medical record. (Note: If sexual abuse is suspected, DO NOT bathe the resident or wash the resident’s clothing or linen. Do not take items from the area in which the incident occurred. Call the police immediately.) (Emphasis supplied). C. ELOPEMENT A/K/A EXIT SEEKING Bayou Shores’ elopement policy statement provides the following: Staff shall investigate and report all cases of missing residents. Bayou Shores’ elopement policy interpretation and implementation provides the following: 1. Staff shall promptly report any resident who tries to leave the premises or is suspected of being missing to the Charge Nurse or Director of Nursing. * * * If an employee discovers that a resident is missing from the facility, he/she shall: Determine if the resident is out on an authorized leave or pass; If the resident was not authorized to leave, initiate a search of the building(s) and premises; If the resident is not located, notify the Administrator and the Director of Nursing Services, the resident’s legal representative (sponsor), the Attending Physician, law enforcement officials, and (as necessary) volunteer agencies (i.e., Emergency Management, Rescue Squads, etc.); Provide search teams with resident identification information; and Initiate an extensive search of the surrounding area. When the resident returns to the facility, the Director of Nursing Services or Charge Nurse shall: Examine the resident for injuries; Contact the Attending Physician and report findings and conditions of the resident; Notify the resident’s legal representative (sponsor); Notify search teams that the resident has been located; Complete and file an incident report; and Document relevant information in the resident’s medical record. FEBRUARY 2014 SURVEY A patient has the right to choose what kind of medical treatment he or she receives, including whether or not to be resuscitated. At Bayou Shores there may be multiple locations in a resident’s medical record for physician orders regarding a resident’s DNR status. A physician’s DNR order should be in the resident’s medical record. When a resident is transported from a facility to another health care facility, the goldenrod form is included with the transferring documentation. If there is not a DNR, a full resuscitation effort would be undertaken. In late January, early February 2014, AHCA conducted Bayou Shores’ annual re-licensure survey. During the survey, Bayou Shores identified 24 residents who selected the DNR status as their end-of-life choice. Of those 24 residents, residents numbered 35,7/ 54 and 109, did not have a completed or current “Do Not Resuscitate Order” in their medical records maintained by Bayou Shores.8/ As the medical director for Bayou Shores, Dr. Saba completed new DNR orders for patients during or following the February survey. In one instance, a particular DNR order did not have a signature of the resident or the representative of the resident, confirming the DNR status. Without that signature, the DNR order was invalid. In another instance, a verbal authorization was noted on the DNR forms, which such is not sufficient to control a DNR status. A medication administration record (MAR) is not an order; however, it should reflect orders. In one instance, a resident’s MAR reflected a full code status, when the resident had a DNR order in place. During the survey, Bayou Shores was in the midst of changing its computer systems and pharmacies. At the end of each month, orders for the upcoming month were produced by the pharmacy, and inserted into each resident’s medical record. Bayou Shores’ staff routinely reviewed each chart to ensure the accuracy of the information contained therein. Additionally, each nurse’s station was given a list of those residents who elected a DNR status over a full-code status. Conflicting critical information could have significant life or death consequences. The administration of cardio- pulmonary resuscitation (CPR) to a resident who has decided to forgo medical care could cause serious physical or psychological injuries. As the February survey progressed, and Bayou Shores was made aware of the DNR order discrepancies, staff contacted residents or residents’ legal guardians to secure signatures on DNR orders so that resident’s last wishes would be current and correct. Bayou Shores had a redundant system in place in an effort to ensure that a resident’s last wishes were honored; however, the systems failed. MARCH 2014 SURVEY On March 20, 2014, AHCA conducted a complaint survey and a follow-up survey to the February 2014 survey. During the March 2014 survey, Janice Kicklighter served as the ANE prevention coordinator for Bayou Shores. On February 13, 2014,9/ Resident BJ was admitted to Bayou Shores from another health care facility. Sometime after BJ was admitted, paperwork indicating BJ’s history as a sex offender was provided to Bayou Shores. Exactly when this information was provided and to whom is unclear. Once BJ was assigned to a floor, CNA Daniels was assigned to assist BJ, and tasked to give BJ a shower. CNA Daniels observed that BJ was unable to transfer from his bed to the wheelchair without assistance; however, CNA Daniels, with assistance, was able to transfer him, and took him to the shower via a wheelchair. It is unclear if CNA Daniels shared his observation with any other Bayou Shores staff. Several hours after BJ’s admission, Mr. Thompson, Bayou Shores’ then administrator, was informed that BJ had been admitted. Mr. Thompson conferred with the director of nursing (DON) and the director of therapy (director). The director immediately assessed BJ that evening. The director then advised Mr. Thompson and the DON that her initial contact with BJ was less than satisfactory. BJ declined to cooperate in the assessment, and the director advised Mr. Thompson and the DON that BJ could not get out of bed without assistance. Mr. Thompson, the DON and the director did not provide any further care instructions or directions to Bayou Shores staff regarding BJ’s care or stay at that time. A failure to cooperate does not ensure safety for either BJ or other residents. The day after his admission, BJ was assessed by a psychiatrist. Thereafter, Mr. Thompson notified nearby schools and BJ’s roommate (roommate) that BJ was a sexual offender. Shortly after his conversation with the roommate, Mr. Thompson directed that a “one-on-one” be established with BJ, which means a staff member was to be with BJ at all times. BJ was evaluated again and removed from the facility. Bayou Shores did not immediately implement its policy and procedures to ensure its residents were free from the risk of ANE. Hearsay testimony was rampant in this case. Mr. Thompson testified that he spoke with BJ’s roommate about an alleged sexual advance. However, the lack of direct testimony from the alleged victim (or other direct witness) fails to support the hearsay testimony and thus there is no credible evidence needed to support a direct sexually aggressive act. Rather, the fact that Mr. Thompson claims that he was made aware of the alleged sexual attempt, yet failed to institute any of Bayou Shores policies to investigate or assure resident safety is the violation. JULY 2014 COMPLAINT SURVEY In June 2015, Resident JN left the second floor at Bayou Shores without any staff noticing. A complaint was filed. At the time of the June 2014 incident (the basis for the July Survey), Bayou Shores’ second floor was a limited access floor secured through a key system. Some residents on the second floor had medical, psychiatric, cognitive or dementia (Alzheimer) issues, while other residents choose to live there. There are two elevators that service the second floor; one, close to the nurses’ station, and the second, towards the back of the floor. There was no direct line of sight to the nurses’ station from either elevator. To gain access to the second floor, a visitor obtained an elevator key from the lobby receptionist, inserted the key into the elevator portal which brought the elevator to the lobby, the elevator doors opened, the visitor entered the elevator, traveled to the second floor, exited the elevator, and the elevator doors closed. To leave the floor, the visitor would use the same system in reverse. At the time of the June incident, visitors could come and go to the second floor unescorted. Additionally, Bayou Shores had video surveillance capabilities in the elevator area, but no staff member was assigned to monitor either elevator. Mr. Selleck, Advanced Center’s administrator, sought JN’s placement at Bayou Shores because he thought Bayou Shores offered a more secure environment than Advanced Center. Advanced Center was an unlocked facility and the only precaution it had to thwart exit-seeking behavior was by using a Wander Guard.10/ JN was admitted to Bayou Shores on Friday evening, June 20, 2014, from Advanced Center. Based upon JN’s admitting documentation, Bayou Shores knew or should have known of JN’s exit-seeking behavior. JN slept through his first night at Bayou Shores without incident. On June 21, his first full day at Bayou Shores, JN had breakfast, walked around the second floor, spoke with staff on the second floor and had lunch. At a time unknown, on June 21, JN left the second floor and exited the Bayou Shores facility. JN did not tell staff that he was leaving or where he was going. Upon discovering that JN was missing, Bayou Shores’ staff thoroughly searched the second floor. When JN was not found there, the other floors were also searched along with the smoking patio. JN was not found on Bayou Shores’ property. Thereafter, Bayou Shores’ staff went outside the facility and located JN at a nearby bus stop. The exact length of time that JN was outside Bayou Shores’ property remains unknown. Staff routinely checks on residents. However, there was no direct testimony as to when JN left the second floor; just that he went missing. Staff instituted the policy and procedure to locate JN, and did so, but failed to undertake any investigation to determine how JN left Bayou Shores without any staff noticing. NOTICE OF INTENT TO DENY AHCA’s Notice was issued on January 15, 2015. Bayou Shores was cited for alleged Class I deficient practices in each of the three conducted surveys: failure to have end-of-life decisions as reflected in a signed DNR order; failure to safe- guard residents from a sexual offender; and failure to prevent a resident from leaving undetected and wandering outside the facility.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order revoking Bayou Shores license to operate a nursing home; and denying its application for licensure renewal. DONE AND ENTERED this 21st day of July, 2016, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 21st day of July, 2016.
