The Issue The issues concern the intention by Petitioner to levy an $836 fine for the alleged operation of a commercial vehicle on a low-limit bridge when the commercial vehicle exceeded the weight limit for that bridge. See Section 316.545, Florida Statutes.
Findings Of Fact On December 17, 1990, a commercial vehicle driven by William Roy Grayson for the carrier Massey Franklin (Massey Trucking) came into Florida from Georgia on US Highway 17. In doing so it crossed the bridge over the St. Marys River. Petitioner has jurisdiction over that bridge. Petitioner in accordance with law had limited the weight that could be placed on that bridge by a commercial vehicle. That weight restriction was 32 tons. The commercial vehicle in question was weighed shortly after entering Florida at an inspection station operated by Petitioner. It weighed 80,720 pounds. Persons such as Mr. Grayson who operate commercial vehicles coming into Florida across the subject bridge are warned of the weight limit on the bridge by posted signs using symbols from the manual on Uniform Traffic Highway Administration as the national standard in accordance with Title 23 US Code. Those silhouette symbols used to post the weight limit for the bridge show a single unit truck with the weight limit of 27 tons and a combination truck with a weight limit of 32 tons. The truck in question was a combination truck. These warning signs on the weight limit were posted in Georgia at the time in question for the south bound traffic. Respondent's truck was south bound on that date. The first sign in Georgia before you enter Florida states "weight limit restrictions ahead." The second sign provides weight limit symbols showing a combination truck with a limit of 32 tons and notes that the distance from that restriction is three miles. The third sign before arriving at Scrubby Bluff Road in Georgia has the weight limit symbol of 32 tons for a combination truck and notes that this is the last exit before being restricted in weight. A fourth sign shows weight limit symbols with 32 tons for a combination truck and an arrow describing the exit from Scrubby Bluff Road to Interstate 95. The truck in question exceeded the weight limit by 16,720 pounds and was assessed a fine .05 per pound for a total penalty of $836.
Recommendation Based upon the consideration of the facts and the conclusions of law, it is, RECOMMENDED: That a Final Order be entered which imposes a fine in the amount of $836, pursuant to Section 316.545(3)(b), Florida Statutes. DONE and ENTERED this 5th day of July, 1991, in Tallahassee, Florida. CHARLES C. ADAMS, 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 5th day of July, 1991. APPENDIX The proposed facts by the Petitioner are subordinate to facts found. COPIES FURNISHED: Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building, M.S.-58 605 Suwannee Street Tallahassee, FL 32399-0458 Franklin Massey Massey Trucking 101 Wind Creek Lane Enterprise, AL 36330 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building, M.S.-58 605 Suwannee Street Tallahassee, FL 32399-0458
Findings Of Fact Upon consideration of the evidence adduced at the hearing, the following relevant findings of fact are made: Petitioner, Division of Pari-Mutuel Wagering is the state agency charged with the administration and enforcement of the pari-mutuel wagering laws of the state of Florida. Respondent, Ronald F. Kilbride, is an individual who frequents pari- mutuel facilities in the state of Florida for the purpose of wagering. On September 26, 1992, the Respondent was present at the Sarasota Kennel Club and placed several bets on races to be run at the Calder Race Track. On that same day, Respondent placed several bets on races to be run at the Sarasota Kennel Club. On September 26, 1992, at approximately 2:45 p.m., a pari-mutuel wagering ticket, number 42 BOB C22A82A4 (the Ticket), was purchased at Sarasota Kennel Club for a wager on a horse race (race number 5) being run at Calder Race Track. The Ticket was a winning ticket for that race. At approximately 2:55 p.m. on September 26, 1992, Respondent presented what he claimed to be the Ticket, to James Ollie, Mutuel Clerk, Sarasota Kennel Club, at window number 6414 for payment. Ollie accepted the ticket presented by Respondent for payment but did not pay or explain to Respondent why he was not paying for the ticket. After a period of time had elapsed without receiving payment, the Respondent became agitated and asked for, and received, the ticket back from Ollie. There is no evidence that the ticket handed to Ollie by the Respondent at that time was in two pieces or taped together or altered in any fashion. Subsequent to his attempt to cash what Respondent claimed to be the Ticket, Respondent wrote a letter, dated September 27, 1992, to Patrick Mahony, Vice President Mutuels, for Calder Race Course, Inc., enclosing what Respondent claimed to be the Ticket and explaining the circumstances surrounding the attempt to cash that ticket. Before enclosing the ticket referred to in Finding of Fact 7 in the letter mailed to Mahony, Respondent made a copy of the letter and imposed a copy of the ticket mailed to Mahony on the bottom left hand corner of the copy of the letter (Respondent's exhibit 1). The copy of Respondent's exhibit 1 was furnished to John Foley, Investigator, Bureau of Investigation, Division of Pari-Mutuel Wagering, at the time the original letter was mailed to Mahony. The copy of the ticket shown on Respondent's exhibit 1 is a copy of the ticket mailed to Mahony by Respondent by letter dated September 27, 1992. The envelope containing the letter and the two ticket parts indicated that Mahony received the envelope in a damaged condition. Mahony's letter of October 6, 1992 advised Respondent that the ticket was received in two sections which were taped together by an employee of Calder Race Course, Inc. who handled mailed out tickets. After taping the two pieces of the ticket together and attempting to process the taped together ticket, it was discovered by an employee of the mutuel department at Calder Race Course, Inc. that the records indicated the ticket had previously been cashed at Sarasota Kennel Club. The taped together ticket was returned to Respondent. The Respondent made a complaint to the Division concerning his treatment at the Sarasota Kennel Club. As a result of that complaint, the Division commenced an investigation. As a result of that investigation, the ticket that Respondent had received back from Mahony (Petitioner's exhibit 3) was taken as evidence in the investigation. The Florida Department of Law Enforcement (FDLE) was requested by the Division to assist in the investigation by reviewing the ticket to determine if it had been altered, other than it being cut and taped back together. In comparing Petitioner's exhibit 3 with other Autotote tickets, FDLE found that the horizontal bars on the back side of Petitioner's exhibit 3 that had been cut were shorter than the horizontal bars in the same position on other Autotote tickets that had not been cut. It was the testimony of the FDLE expert that cutting a similar Autotote ticket across the horizontal bars in the same place and taping the two pieces back together would not affect the length of horizontal bars that had been cut. It is clear from the unrebutted testimony of the FDLE expert that Petitioner's exhibit 3 had been altered by cutting two Autotote tickets in a similar fashion and taping the opposite pieces of the two cut Autotote tickets together. The copy of the ticket shown on Respondent's exhibit 1 is a copy of a whole Autotote ticket that has not been cut in that there is no line indicating that the ticket has been cut and taped back together before copying or copied as two pieces not taped together. A line indicating where the ticket parts are taped to together is evident on Petitioner's exhibit 3 and the blowup of that same ticket by FDLE (Petitioner's exhibit 8). There are a series of vertical bars under the words AUTOTOTE at the top of each ticket and at the bottom of each ticket which are printed on the ticket at the time of purchase. In comparing the copy of the ticket shown in Respondent's exhibit 1 with the ticket identified as Petitioner's exhibit 3 and the blown up copy of that ticket identified as Petitioner's exhibit 8, the vertical bars at the bottom of each of the above-referenced exhibits appear to be identical. The vertical bars at the top of each of the above-referenced exhibits under the words Autotote appear to be identical starting at the top right hand side and moving left to the vertical bar under the letter "E" in the word Autotote on top left hand side. However, there are two vertical bars on the top left hand side under the letters "O" and "T" in the word AUTOTOTE on the top left hand side of the copy of the ticket shown on Respondent's exhibit 1 that do not appear on either the ticket mailed back to Respondent by Mahony (Petitioner exhibit 3) or the blowup of that ticket (Petitioner's exhibit 8). Other than the two vertical bars referred to in Finding of Fact 16, the information printed on the ticket shown on Respondent's exhibit 1 is the same as printed on the front side of the ticket returned to Respondent by Mahony and identified as Petitioner's exhibit 3 and the blow up of the front side of Petitioner's exhibit 3 identified as Petitioner's exhibit 8. Comparing the copy of the ticket shown on Respondent's exhibit 1 with the ticket identified as Petitioner's exhibit 3, it is clear that if the Respondent had somehow come into possession of the Ticket and cut off the left hand portion of the Ticket as shown in Petitioner's exhibit 3 and replaced it with a similar cut off portion from another ticket that had not been cashed, then the two vertical bars would still appear on the ticket identified as Petitioner's exhibit 3. A one page computer printout allegedly generated by the Autotote Hub entitled "Content of: Daily Ticket Cashed File" for September 26, 1992 list the Ticket as being sold at Window 6410 by Teller 5774 at a cost of $150.00 with a dividend value of $3425.00. This document does not list the window number at which the Ticket was cashed or the teller cashing the Ticket or the time the Ticket was cashed. There was no witness from Autotote to testify as to the significance of this computer printout. However, Mr. Snyder testified that the Ticket was cashed by James Ollie, Mutuel Clerk, at Window 6414, on September 26, 1992, but there was no evidence as to the time of day the Ticket was cashed. Mr. Ollie testified that the Ticket was presented to Ollie for cashing by a Mr. Dean who was referred to as "Santa Claus", for the obvious reasons of giving gifts to individuals, including employees of the track. Mr. Ollie also testified that he misplaced the Ticket after it was cashed and that he was suspended for a period of time by the Sarasota Kennel Club for carelessness. When a winning ticket is cashed by a teller or mutuel clerk the number of the window where the ticket is cashed and the amount won by the ticket holder is stamped on the blank space on the far left hand side of the ticket (the blank area to the left of information printed on the ticket at the time of purchase). This is referred to as a brand which signifies that the ticket has been cashed. After a ticket is cashed it is required that the track keep the ticket on file for, among other things, accounting purposes to the state of Florida and Internal Revenue Service. There is competent substantial evidence in the record to establish facts to show that the ticket Respondent received back form Mahony had been altered. Likewise, there is competent substantial evidence in the record to establish facts to show that the ticket Respondent mailed to Mahony was not altered at the time Respondent mailed the ticket to Mahony. The Respondent did not communicate with Thomas Hughes on September 27, 1992 by telephone or any other mode of communication at any time relevant to this proceeding for the purpose of discussing how to alter a ticket that had already been cashed and branded so that the ticket could be cashed again and did not verbally, or in any other manner, threaten Hughes with bodily harm for disclosing the alleged conversation, notwithstanding the testimony of Hughes and Shirley Griffon to the contrary. Such testimony lacks credibility. The Respondent did not verbally, or in any other manner, threaten James Ollie with bodily harm at any time relevant to this proceeding, notwithstanding the testimony of Shirley Griffon, Dwight Holloman and James Ollie and the Report of Private Ejection to the contrary. Such evidence lacks credibility. The Respondent may have been loud at times and his manner considered offensive by some of the employees at Sarasota Kennel Club. However, the Division has failed to present competent substantial evidence to establish facts to show that Respondent verbally, or in any other manner, threatened any employee of the Sarasota Kennel Club with bodily harm at any time relevant to this proceeding.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner enter a final order dismissing or rescinding Petitioner's Order of Patron Exclusion and Notice of Right to Hearing filed against the Respondent. RECOMMENDED this 15th day of October, 1993, at Tallahassee, Florida. WILLIAM R. CAVE 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 15th day of October, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1403 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the Petitioner in this case. Petitioner's Proposed Findings of Fact. The following proposed finding of fact are adopted in substance as modified in the Recommended Order. The number in parenthesis is the Findings of Fact which so adopts the proposed finding(s) of fact: 1(1); 2(4, except date is September 26, 1992 not 1993); 3(22-24); 4(7-9,15); 5-11(10,11,11,11,12,12,and 25, respectively) Proposed finding of fact 12-15 are not supported by competent substantial evidence in the record, but see Findings of Fact 29 - 31. Proposed finding of fact 16 and 17 are more argument than Findings of Fact. Proposed finding of fact 18 - 20 are rules and statutes and are more appropriately placed in the conclusions of law. Respondent's Proposed Findings of Fact. Respondent elected not to submit any proposed findings of fact. COPIES FURNISHED: Joseph M. Helton, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Ronald F. Kilbride, pro se 5681 Westwind Lane Sarasota, Florida 34231 Jack McRay, Esquire Acting General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 William E. Tabor, Director Division of Pari-Mutuel Wagering Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact The facts reveal that Jose Gonzalez, a driver for the Respondent, operating one of Respondent's tractor/trailer pieces of Respondent, went to a rock company located in Hollywood, Florida, on February 13, 1978, for the purpose of picking up a load of "P" rock. This rock was purchased from Miramar Lakes, d/b/a Miramar Rock on that date and the driver, Gonzalez, was given a weight ticket. The weight ticket from Miramar Rock reflected a gross weight of 72,360 pounds, which is the total of the equipment and load. (The scales at Miramar peck used to weigh the Respondent's equipment and load had been certified by the Petitioner to be accurate on June 7, 1977, and again on April 11, 1978.) The weather on February 13, 1978, was clear and the purchase, loading and weighing done on the subject equipment was without incident, until the driver attempted to pull away from the weight scales. At that moment the universal joint and yoke snapped and this caused the vehicle to be inoperable. Gonzalez left the truck at the Miramar Rock Company. At that point, the load was covered by a canvas and the trailer was not seeping or leaking water from the rock aggregate. Later, on February 13, 1978, a mechanic employed by the Respondent came to effect repairs to the vehicle, but due to the unavailability of certain parts necessary to complete the repairs, did not finish the work until February 14, 1978. When the repairs had been completed on that date, the driver, Gonzalez, removed the truck from the Miramar Rock compound and entered the roads of Broward County, Florida. At around 9:15 a.m. on February 14, 1978, Gonzalez arrived at the intersection of Hollywood Boulevard and Flamingo Road in Broward County, Florida, eastbound on Hollywood Boulevard. At that intersection, officers employed by the Florida Highway Patrol, Weights Division, intercepted the Des Rocher truck and caused the vehicle to stop. After the stop the equipment being operated at that time was established to be a vehicle measuring between 37 feet to 38 feet from the front axle to the rear axle, and the peak of the rock load was located in the center rear portion of the trailer. Officer Wilkerson of the Florida Highway Patrol observed water dripping out of the rear tailgate after making the stop. Gonzalez was asked to produce a weight ticket and in response to this request produced the weight ticket given him by Miramar Rock on February 13, 1978. Officer Wilkerson commented that this ticket was from the day before and that a ticket bearing the current date was required. Gonzalez was then told that the truck would be weighed with the method for weighing the truck being by two portable scales. Officer Wilkerson weighed one side of the truck and Officer Herron went to the other side of the truck. Wilkerson weighed the steering axle on his side of the truck; the drive axle on his side of the truck, and two tires on the rear tandem axles on his side of the truck. It is not known what Officer Herron did, if anything, in effecting the purposes of this inspection and weigh-in, because Officer Herron did not appear at the hearing in this cause and was not seen by Officer Wilkerson in conducting his inspection activities, if any. Therefore, the total weight of the truck as ascertained from the inspection ostensibly conducted by these officers was not shown by competent evidence. However, it was demonstrated through the testimony in this hearing that the plan which the officers had for making the roadside inspections was one which called for basically stopping all trucks of the category of aggregate haulers that were eastbound through the intersection on Hollywood Boulevard, to the exclusion of pickup trucks and moving vans. After stopping the former category of trucks, some were weighed and others were not. As a result of the stop, Gonzalez was ticketed for a weight violation and that ticket was in the amount of $136.45 as an assessed penalty. Gonzalez then took the truck back to the Des Rocher installation which contained a set of scales and between 10:15 a.m. and 10:30 a.m. the truck was weighed and shown to be 35.64 tons, or 71,280 pounds as the gross weight including the equipment and load. (The scales that were utilized had been certified by the Petitioner on June 7, 1977, and again on May 8, 1978.)
The Issue Whether Petitioner is entitled to an award of attorney's fees and costs pursuant to Section 57.111, Florida Statutes.
Findings Of Fact Based on the oral and documentary evidence presented at hearing and on the entire record of this proceeding, the following Findings of Fact are made. The Agency is authorized to license nursing home facilities in the State of Florida and, pursuant to Chapter 400, Part II, to evaluate nursing facilities and assign ratings. The Agency conducted a survey of Petitioner's facility from October 8 through 10, 2001. As a result of the survey, the Agency cited Petitioner for "fail[ing] to adequately assess and develop a plan of care to maintain acceptable parameters for a resident resulting in significant weight loss," and issued a Notice of Intent to change its licensure status to conditional. Petitioner timely challenged the conditional rating and filed a Petition for Formal Hearing. Pursuant thereto, a formal hearing was held on March 28 and 29, 2002. The Recommended Order, which was issued on August 14, 2002, recommended that the Agency enter a final order issuing a standard licensure rating to Petitioner and rescinding the conditional licensure rating. On February 18, 2003, AHCA issued a Final Order adopting the Findings of Fact and Conclusions of Law in the Recommended Order, ordering that a standard licensure rating be issued to replace the previously-issued conditional licensure rating, and rescinding the conditional licensure rating. As such, Petitioner was the prevailing party in the underlying case, DOAH Case No. 02-0049, AHCA 2001-071241. No appeal of the Final Order in the underlying proceeding was filed. On April 21, 2003, Petitioner filed a Petition for an Award of Attorney's Fees and Costs (Petition) with supporting affidavits. In the Petition, Petitioner sought relief under both the Florida Equal Access to Justice Act, Section 57.111, as well as pursuant to Subsection 120.569(2)(e). The Agency opposed the Petition. Although Petitioner requested an award of attorney fees under Subsection 120.569(2)(e), it presented no evidence that the Agency had filed any pleadings, motions, or other papers not properly signed or that any were interposed for any improper purpose. Accordingly, the undersigned will not consider an award of attorney fee's under Subsection 120.569(2)(e), and the focus of the evidence presented will be as to Section 57.111. The parties stipulated as to the reasonableness and amounts of the attorneys fees and costs. Reasonable attorney's fees are $21,547.50. The reasonable amount of costs is $4,183.82. The amount of attorney's fees and costs that may be awarded is limited to $15,000.00, based upon Subsection 57.111(3)(d)(2), which the parties agree is applicable to this proceeding. The Health Care Center of Naples, Inc., is a corporation with its principal office in Florida. At the time the underlying action was initiated by the Agency in October 2001, the Health Care Center of Naples, Inc., had a net worth of not more than $2 million. The net worth of Health Care Center of Naples, Inc., on October 31, 2001, was $158,048.65. The net worth of Health Care Center of Naples, Inc., for September 2001 was $190,829.22. The net worth of Health Care Center of Naples, Inc., for November 2001 was $171,726.44. The Administrative Complaint in the underlying proceeding, DOAH Case No. 02-0049, alleged that Petitioner failed to ensure that a resident maintained acceptable parameters of nutritional status. The basis of this allegation was the result of a survey which found that a resident had a significant weight loss from the period between July 30, 2001, to August 11, 2001. The Agency's Final Order, adopting the Recommended Order in Case No. 02-0049, found that the patient's weight loss was expected due to edema or third space fluid, resulting from the patient's being over-dehydrated before her recent surgery. Moreover, in the underlying proceeding, it was found that in determining that the resident had a significant weight loss, "the Agency surveyors based their calculations on an inaccurate usual body weight for the resident." As a result of these and other findings, the Agency's decision to change the status of Petitioner's licensure rating to conditional was rescinded. Although the Agency did not prevail in the underlying proceeding, the surveyors were substantially justified in citing Petitioner for the alleged deficiency, and the Agency was substantially justified in initiating the action. The Final Order found that the usual body weight relied upon by the surveyors in determining that the resident had a significant weight loss was obtained from the records of Petitioner. Also, the record in the underlying proceeding found that many of Petitioner's staff members were concerned about the resident's weight loss and did not consider that the weight loss was caused by edema. Finally, there is no indication in the record that at the time of the survey, Petitioner's staff gave the Agency surveyors any reasonable explanation for the resident's alleged significant weight loss. The evidence, which was the basis of the findings in the Final Order in the underlying proceeding, while available at the time of the survey, was not discovered or known to the surveyors and, to some extent, to Petitioner's staff.
Findings Of Fact On or about September 11, 1989, a commercial, dump truck owned by Petitioner, Alamazan Brothers Trucking, Inc., was travelling on State Road 807. Mr. Michael Roberts, Safety and Hazardous Materials Officer for Respondent, Department of Transportation, noticed that the truck did not have the required identification on the door and stopped the truck for further investigation. After the truck stopped, Mr. Roberts noted that the truck possessed an expired temporary license tag, and the driver did not have a valid registration for the truck. Mr. Roberts, then, weighed the truck with his portable scale and calculated a gross weight of 65,900 pounds. Mr. Roberts gave the driver the opportunity to contact the owner of the truck about the registration and, in accordance with policy of the Department, allowed the owner over one hour to produce a valid registration. A representative of the owner appeared and showed Mr. Roberts a duplicate registration certificate purchased the same day as the incident which indicated that the authorized gross weight for the truck was 24,680 pounds. Mr. Roberts made the determination that the registration was not valid at the time of the stop and imposed a fine for overweight of $1,545. The fine was calculated for the amount of the gross weight in excess of 35,000 pounds times five cents per pound. Existent law establishes that, for the purposes of calculation of a penalty such as the one at issue, the authorized gross weight for an unregistered vehicle is 35,000 pounds. An additional $50 was imposed as the fine for not having the required identification on the door of the truck. The total penalty of $1,595 was paid under protest. However, Petitioner did, in fact, have a valid registration on the day of the stbp. Through administrative delay, the registration certificate had not been mailed to Petitioner. On or around September 7, 1989, Petitioner purchased the truck and a temporary tag was issued to Petitioner by the dealer from which he purchased the truck. At that time, an application for registration was made to the Department of Highway Safety and Motor Vehicles. The application was for a registration authorizing a gross weight of 64,000 pounds. Petitioner had not received the permanent tag or registration by the date the stop occurred. After Petitioner was alerted at the stop, Petitioner obtained a duplicate registration within the time allotted to him by Respondent. This duplicate, the one shown to Mr. Roberts on the day of the stop, indicated an authorized gross weight of 24,680 pounds, an obvious typographical error. The gross weight did not match the gross weight applied for, instead, it duplicated the amount of the empty weight into the gross weight category. On September 13, 1989, Petitioner returned the form to the issuer and requested a corrected duplicate registration. The second duplicate also was in error. This time the form indicated the correct gross weight of 64,000 pounds, but, also, repeated that gross weight amount in the empty weight category. At the hearing, Petitioner also presented the application for registration which indicated it had applied for and was taxed for a gross weight of 64,000 pounds. It was only due to administrative delay that the correct registration was not presented at the time of the stop. However, no competent evidence was received which indicated that the truck did possess the required identification on the door, and Mr. Robert's testimony about the lack of such identification is deemed credible. Although the correct gross weight for which Petitioner is licensed is 64,000, his load at the time of the stop was 65,900 or 1,900 in excess of his 64,000 pound authorized amount. At five cents a pound his penalty for overweight should be $95.00 and not $1,545.00. The $95.00 plus the $50.00 for the failure to display the required identification yields a corrected fee of $145.00 and a refund due to Petitioner of $1,400.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Department of Transportation issue a Final Order correcting the fine imposed on Petitioner, establishing the appropriate fine at $145.00 and refunding $1,400 to Petitioner. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 5th day of June, 1990. JANE C. HAYMAN 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 5th day of June, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-2088 The following represents the rulings on the proposed findings of fact submitted by the parties. The rulings are by paragraph within the proposed findings of fact and indicate the paragraph in the findings of fact portion of the attached recommended order which addresses the proposed finding of fact, if deemed appropriate. RESPONDENT Adopted in relevant part in paragraphs 1,2 and 3. Adopted in relevant part in paragraphs 4,5 and 9. Adopted in relevant part in paragraphs 6,7,8 and 10. COPIES FURNISHED: Dewey H. Varner, Esquire Varner, Cole & Seaman 2601 Tenth Avenue, North, Suite 410 Lake Worth, Florida 33461 Vernon T. Whittier, Jr., Esquire Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0450 Ben G. Watts, Secretary Attn: Eleanor F. Turner Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Robert Scanlan Interim General Counsel Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458
The Issue DOAH Case No. 02-0949: Whether Respondent's licensure status should be reduced from standard to conditional. DOAH Case No. 02-1299: Whether Respondent committed the violation alleged in the Administrative Complaint dated February 19, 2002, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: AHCA is the state Agency responsible for licensure and regulation of nursing homes operating in the State of Florida. Chapter 400, Part II, Florida Statutes. Harbour Health operates a licensed nursing home at 23013 Westchester Boulevard, Port Charlotte, Florida. The standard form used by AHCA to document survey findings, titled "Statement of Deficiencies and Plan of Correction," is commonly referred to as a "2567" form. The individual deficiencies are noted on the form by way of identifying numbers commonly called "Tags." A Tag identifies the applicable regulatory standard that the surveyors believe has been violated and provides a summary of the violation, specific factual allegations that the surveyors believe support the violation, and two ratings which indicate the severity of the deficiency. One of the ratings identified in a Tag is a "scope and severity" rating, which is a letter rating from A to L with A representing the least severe deficiency and L representing the most severe. The second rating is a "class" rating, which is a numerical rating of I, II, or III, with I representing the most severe deficiency and III representing the least severe deficiency. On October 22 through 25, 2001, AHCA conducted an annual licensure and certification survey of Harbour Health, to evaluate the facility's compliance with state and federal regulations governing the operation of nursing homes. The survey team alleged several deficiencies during the survey, only one of which is at issue in these proceedings. At issue is a deficiency identified as Tag F325 (violation of 42 C.F.R. Section 483.25(i)(1), relating to maintenance of acceptable parameters of nutritional status). The deficiency alleged in the survey was classified as Class II under the Florida classification system for nursing homes. A Class II deficiency is "a deficiency that the agency determines has compromised the resident's ability to maintain or reach his or her highest practicable physical, mental, and psychosocial well-being, as defined by an accurate and comprehensive resident assessment, plan of care, and provision of services." Section 400.23(8)(b), Florida Statutes. The deficiency alleged in the survey was cited at a federal scope and severity rating of G, meaning that the deficiency was isolated and caused actual harm that is not immediate jeopardy. Based on the alleged Class II deficiency in Tag F325, AHCA imposed a conditional license on Harbour Health, effective October 25, 2001. The license expiration date was August 31, 2002. The survey allegedly found a violation of 42 C.F.R. Section 483.25(i)(1), which states: Nutrition. Based on a resident's comprehensive assessment, the facility must ensure that a resident-- Maintains acceptable parameters of nutritional status, such as body weight and protein levels, unless the resident's clinical condition demonstrates that this is not possible. . . . This requirement is referenced on Form 2567 as "Tag F325." The survey found one instance in which Harbour Health allegedly failed to ensure that a resident maintained acceptable parameters of nutritional status. The surveyor's observation on Form 2567 concerned Resident 5, or "R-5": Based on observations, record review and staff interviews, the facility failed to maintain acceptable parameters of nutritional status and did not use all possible interventions, to prevent an unplanned, severe weight loss (7.8 percent in a two month period) for 1 (Resident 5) of 20 active sampled residents. The findings include: During her lunch on 10/22/01 at approximately 12:20 P.M., Resident 5 was observed clinching her teeth together making it difficult to get food into her mouth. Resident 5 was observed on 10/23/01 at 12:30 P.M., taking a limited amount of thickened liquids from her nosey cup, and clinching her teeth together making feeding her more difficult. Resident 5 was observed 5:25 P.M. until 5:55 P.M. on 10/23/01, taking small sips from the nosey cup and clinching her teeth together making it very difficult for the Certified Nursing Assistant (CNA) to feed her 25 percent of her meal. These observations were made in the assisted dining room on A-Wing. Record review of Resident 5's chart, documents 5/1/01 she weighed 127 pounds. On 7/2/01 and again on 7/16/01, her weight was documented 117 pounds. This is a severe weight loss of 7.8 percent in a two month period. Review of the resident's care plan dated 7/18/01, revealed the resident's nutrition problem was "Res. is on a puree diet with thickened liquids-- is continuing to lose weight-- is terminal-- weight is down 6 pounds for the month-- on weekly weight-- consumes 25-50 percent of her meals-- small portions at lunch-- super cereal on breakfast tray and Carnation Instant Breakfast on other trays. Resident can be combative during meals-- resists any attempt to assist her with eating-- is very difficult to feed." Approaches to address the problem included consult with Registered Dietician as needed and to monitor labs. Further review of the care plan included the problem: "Resident is on psychotropic meds for dementia with psychosis as evidenced by . . . increased agitation and resisting care." Review of the resident's physician orders reveal the resident began receiving Risperdal in July 2001 for the diagnosis of psychosis. The record also revealed that the resident was given a terminal status in January 2001. During an interview at 5:20 P.M. on 10/23/01, regarding Resident 5's evening meal being delivered after the other 3 residents at her table, the Certified Nursing Assistant stated, "She don't eat nothing anyway." Interview with CDM (Certified Dietary Manager) and Consulting Dietician on 10/23/01 at approximately 4:45 P.M., regarding resident's severe weight loss and limited nutritional intake, revealed that the Consulting Dietician stated she was unaware of this resident. The CDM stated the resident clinches her teeth, refuses food, and they have tried everything else. She stated that the resident was terminal and that the family did not want a tube feeding placed. The resident was put on thickened liquids by a speech therapist in 1998 for dysphagia, but there had been no speech therapy follow-up. They confirmed that no psychiatric consult was ordered since the care plan was developed, despite continued behaviors during feeding. An interview was conducted with the CDM joined by the DON regarding Resident 5's weight loss and possible interventions on 10/24/01 at 3:05 P.M. It was identified that no routine snacks were ordered, no psychiatric follow-up nor speech therapy follow-up, nor medication adjustments had been done during May 2001 through July 2001. The CDM stated that the facility only acknowledges a 5 percent weight loss at an interval of 1 month, and 10 percent at a 6 month interval as significant, but would not look at a 7.5 percent because it would not trigger on the Minimum Data Set. On 10/24/01 at 3:55 P.M., during an interview with the Unit Manager regarding Resident 5, she stated there was no psychiatric or mental health evaluation ordered, it was only on her care plan. Diane Ashworth was the survey team member who recorded the observation of R-5. Ms. Ashworth based her findings on her observations of R-5, a review of the resident's medical records, and interviews with Harbour Health staff. R-5 was a 92-year-old female who had resided at Harbour Health since 1998. She suffered from dementia with psychosis, in particular end-stage Alzheimer's disease. Her worsening condition caused her physician to request a neurological consultation in January 2001. The consulting neurologist diagnosed her condition as terminal. R-5 was severely impaired cognitively, and was completely dependent on Harbor Health staff for all of her care. R-5 was unable to feed herself. For over three years, Harbour Health has implemented a "restorative dining" program for residents with eating problems. In the restorative dining program, the resident is taken to a quiet area and given one-to-one attention by a CNA during meals. R-5 has been in the restorative dining program since its introduction. During her entire stay at Harbour Health, R-5 was very difficult to feed. She would clench her teeth, cover her mouth and push away. At times she would take the food into her mouth, then spit it back into the face of the caregiver. R-5's medical condition made it impossible to reason with her about the importance of maintaining nutrition. The CNA assigned to R-5 as her restorative aide would spend up to two hours feeding one meal to her. The CNA would attempt to feed R-5 until her agitation and resistance made it impossible. The CNA would refrigerate the food, then wait for R-5 to calm down. Then the CNA would reheat the food and begin the process again. Because of her Alzheimer's and her difficult behavior during meals, R-5 was identified as at risk for weight loss and dehydration. Harbour Health's care plan for R-5 identified several strategies for maximizing R-5's caloric intake, and called for consultation with the facility's registered dietician when needed. R-5 was on a no-sodium-added puree diet, taking thickened liquids in place of solid food. Because she tended to consume only 25 to 50 percent of the food offered at meals, the facility offered her 3,252 calories per day at meals, well in excess of the 1,677 to 1,960 calories required to maintain her usual body weight of 120 to 123 pounds. Staff noted that R-5 appeared overwhelmed by large portions of food and began offering her smaller amounts at one time. R-5 was offered fortified cereals and potatoes, and supplements such as Health Shake and Carnation Instant Breakfast. If R-5 showed signs of accepting certain foods, such as eggs, staff would order extra portions of those foods. Snacks were offered between meals, and R-5 was given vitamin C, zinc, and multivitamins with iron to supplement her nutrition. Staff employed items such as a "Nosey Cup," a cup designed to permit its being held near the resident's face without bumping the nose, to ease the feeding process. Harbour Health's standard practice was to weigh residents once per month. If the monthly weights indicated a problem, then Harbour Health would commence weighing the resident on a weekly basis until the problem was resolved. As noted by Ms. Ashworth, R-5 weighed 127 pounds at her monthly weighing on May 1, 2001. At her next monthly weighing on June 1, 2001, R-5 weighed 123 pounds. At the following monthly weighing on July 2, 2001, R-5 weighed 117 pounds. Ms. Ashworth calculated the weight loss from May 1 to July 2, 2001 as 7.8 percent of R-5's body weight. Noting the weight loss, Harbour Health placed R-5 on weekly weights in July 2001. On July 16, 2001, her weight remained at 117 pounds. On July 23, 2001, her weight had increased to 123 pounds. On August 1, 2001, R-5's weight was 125 pounds. Thus, by early August R-5 had regained nearly all of the weight she had lost between May and July 2001. On July 6, 2001, R-5's attending physician prescribed Risperdal, an antipsychotic medication, to calm her severe agitation and constant movement. Risperdal can act as an appetite stimulant. The administration of Risperdal to R-5 coincided with her weight gain in July 2001. When the facility became aware of R-5's weight loss in July 2001, staff began offering R-5 food more often, including more snacks between meals. The attending physician removed the sodium restriction from R-5's puree diet. Aside from those steps, Harbour Health maintained the same nutritional procedures for R-5. The agency alleged that Harbour Health was deficient in not involving the consulting dietician when it became aware of R-5's weight loss. The agency further alleged that Harbour Health should have ordered a psychiatric consultation and a speech therapy consultation. Regular snacks should have been ordered, and R-5's medications should have been adjusted. Harbour Health contended that it was already doing everything possible to ensure R-5's nutritional status. The only alternative to the puree diet would be tube feeding. R-5's son, who acted as her guardian, made it clear to the facility that he would not consent to tube feeding. In May 2001, R-5 suffered from an upper respiratory infection diagnosed as bronchitis by her attending physician. On May 14, 2001, the physician ordered the antibiotic Levaquin; nebulizer treatments with Albuterol and Atrovent, both bronchodilators; and oral administration of Robitussin. All of these medications were ordered and administered for a period of one week. Harbour Health contended that R-5's respiratory infection completely explained her weight loss. The evidence does not entirely support that contention. The medical records indicate that R-5's condition was largely resolved by the latter part of May 2001. R-5 lost four pounds during the month of May 2001. The majority of R-5's weight loss occurred during the month of June 2001, after her bronchitis was treated and apparently resolved. At most, R-5's weight loss was only partially explained by her upper respiratory infection. Dr. Michael Brinson, R-5's attending physician, testified that it is expected that an end-stage Alzheimer's patient will lose weight, because at some point the resident loses the will to live. In Dr. Brinson's opinion, R-5 had reached this point, which explained her refusal to eat. He was aware of R-5's weight loss. Given R-5's clinical condition, the weight loss did not concern Dr. Brinson, who deemed it irrelevant to her care and treatment. Even Ms. Ashworth, the agency RN who performed the survey observation of R-5, agreed that weight loss can be a symptom of end-stage Alzheimer's. R-5 had been provided with a speech consultation and speech therapy in 1998. She was discharged from speech therapy in March 1998 because it was determined that nothing more could be done for her. Dr. Brinson testified that a speech therapy consultation would have been useless in July 2001. Speech therapy is called for if the resident's refusal to eat is related to a swallowing problem. R-5 had no swallowing problem. Catherine Rolin, the restorative nurse who supervised R-5's feedings, confirmed that there were no indications R-5 had difficulty swallowing, or had choked or aspirated during the time she was losing weight. Dr. Brinson opined that R-5's terminal diagnosis with end-stage Alzheimer's disease made a psychiatric consultation of no value. R-5's cognitive impairment would have rendered her unable to participate in any psychiatric examination. Dr. Brinson came to the facility at least once a week. His Advanced Registered Nurse Practitioner ("ARNP"), Vickie Swank, came to the facility several times a week. Dr. Brinson would have had to order any psychiatric or speech therapy consultation, or any laboratory work. Dr. Brinson believed that none of these was appropriate for R-5. The interdisciplinary team overseeing R-5's care included the facility's certified dietary manager. The team was aware of R-5's weight loss as of July 2, 2001, and decided that R-5's status did not trigger a need to consult the registered dietician. Deborah Blackburn, a dietician and expert in nutrition, reviewed R-5's records and concluded that there was no need to consult a registered dietician. Ms. Blackburn opined that the facility was taking all reasonable steps to maintain R- 5's caloric intake and nutritional status. She could not think of a workable approach that Harbour Health had failed to employ. Aside from the weight loss itself, R-5 suffered no skin breakdown or other negative effects. Viewing the evidence in its entirety, it is found that AHCA failed to prove the elements of Tag F325 by a preponderance of the evidence. R-5 lost the weight then quickly gained most of it back with no dramatic changes in Harbour Health's approaches to her feeding and overall nutrition. This fact demonstrates that R-5's weight loss was caused not by Harbour Health's failure to provide adequate nutrition, but by a combination of R-5's terminal Alzheimer's disease and her upper respiratory infection. Once Harbour Health became aware of the weight loss, it reacted appropriately and successfully. The steps that the agency faulted Harbour Health for failing to take--psychiatric consultation, speech therapy consultation, dietician consultation, and medication adjustments--were demonstrated to be unnecessary in light of R-5's condition.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Agency for Health Care Administration enter a final order dismissing the Administrative Complaint in DOAH Case No. 02-1299, and rescinding the notice of intent to assign conditional licensure status to Harbour Health Center in DOAH Case No. 02-0949 and reinstating the facility's standard licensure status. DONE AND ENTERED this 23rd day of September, 2002, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of September, 2002. COPIES FURNISHED: Ursula Eikman, Esquire Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308 Dennis L. Godfrey, Esquire Agency for Health Care Administration 525 Mirror Lake Drive, North Room 310L St. Petersburg, Florida 33701 Karen L. Goldsmith, Esquire Goldsmith, Grout & Lewis, P.A. 2180 North Park Avenue, Suite 100 Post Office Box 2011 Winter Park, Florida 32790-2011 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Valinda Clark Christian, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308
Findings Of Fact Respondent operated a truck on May 14, 1991, which had a legal weight of 80,000 pounds. The truck was weighed on May 14, 1991, at the White Springs Scales on I-75. At the time it was weighed, the truck weight registered 87,600 pounds. The actual weight of the truck exceeded the legal weight by 7,600 pounds. The operator of the truck requested a second weighing. A second weighing was performed with the same result as the first weighing. Petitioner imposed a penalty of $380 which was paid by Respondent. The amount of the penalty was accurately calculated in accordance with applicable law.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order upholding the fine imposed against Respondent. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 22nd day of January, 1992. DANIEL MANRY 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 23rd day of January, 1992.
The Issue Whether AHCA found deficiencies at Stuart sufficient to support the issuance of a Conditional license.
Findings Of Fact Stuart is a licensed nursing home located in Port Salerno, Florida, that participates in Medicare and Medicaid reimbursements. (See Paragraph 5(b) of Joint Stipulation) Every year, Stuart is surveyed by AHCA to determine whether the facility complies with both state and federal standards and whether it should receive a Superior, Standard or Conditional licensure rating. (See Section 400.23(8), Florida Statutes) On November 14, 1997, AHCA conducted an in-depth annual survey of Stuart. (T.pp. 10-11) After the survey was completed, AHCA alleged that the facility failed to maintain adequate nutritional parameters for one resident, and thereby violated the regulatory standard contained in 42 CFR §483.25(i)(1). AHCA issued a survey report in which this deficiency was identified and described under a "Tag," numbered F325.1 (T.pp. 5-6, 16-17; see also, Respondent Exhibit 1) AHCA is required to rate the severity of any deficiency identified during a survey with two types of ratings. The first is a "scope and severity" rating which is defined by federal law, and the other rating is a state classification rating which is defined by state law and AHCA's rule. (See Respondent Exhibit 1, Section 400.23(9), Florida Statutes) After the November survey, AHCA assigned the F325 deficiency a scope and severity rating of "G" which, under federal regulations, is a determination that the deficient practice was "isolated." (T.p. 55; Respondent Exhibit 1) The F325 deficiency was also given a state classification rating of II which, under AHCA's rule, is a determination that the deficiency presented "an immediate threat to the health, safety or security of the residents." (See T.p. 24; Respondent Exhibit 1; 59A-4.128(3)(a), Florida Administrative Code.) Because AHCA determined that there was a Class II deficiency at Stuart after the November survey, it changed Stuart's Standard licensure rating to Conditional, effective November 14, 1997. (T.p. 5) By law, Stuart was required to post the Conditional license in a conspicuous place in the facility. (Section 400.23(8)(f), Florida Statutes) Stuart was also required to submit a Plan of Correction to AHCA ("Plan"). (T.p. 57; Section 400.23(8)(f), Florida Statutes) Although the plan submitted by Stuart did not admit the allegations of the survey, it did provide steps that the facility would implement to address the deficiencies cited in the survey report. (Respondent Exhibit 1) The Plan also represented that all corrective action would be completed by December 24, 1997. (T.pp. 57-58; Respondent Exhibit 1) AHCA returned to Stuart on January 22, 1998, completed a follow-up survey and determined that the facility had corrected the deficiencies cited in the November 1997 survey report. AHCA reissued Stuart a Standard license effective January 22, 1998. (T.p. 5 and Paragraphs 1 and 2 of Joint Prehearing Stipulation) Stuart filed a Petition for Formal Administrative Hearing with AHCA to challenge the findings of the November survey, as well as AHCA's decision to issue Stuart a Conditional license. That Petition was referred to the Division of Administrative Hearings and a hearing was conducted by Judge Pfeiffer on December 1, 1998. Following the hearing, Judge Pfeiffer ruled that the parties had until February 12, 1999, to file their proposed recommended orders. AHCA alleged under Tag F325 that Stuart failed to provide adequate nutritional care to Resident 26. Resident 26 was an eighty-year-old man who was admitted to Stuart on May 7, 1997, for a "short term basis" after suffering a stroke that left him with partial paralysis on one side of his body. (T.pp. 41, 80-81) In addition to having suffered a stroke, he entered the facility with diagnosed conditions of hypertension, glaucoma, dysphasia and senile dementia, and he had a stage II pressure sore on one buttock. (T.pp. 81-82; see also pp. 1, 30 and 78 of Petitioner's Exhibit 1) After admission, Resident 26 improved some of the functional abilities he lost due to the stroke, but his inability to fully recover resulted in his being changed from a short term resident to a long term resident in August of 1997. (T.pp. 42, 89) In September, he was diagnosed with depression and was placed on anti-depressant medication. (T.pp. 93-94; p. 145 of Petitioners Exhibit 1) In October, Resident 26 suffered another stroke. (T.pp. 42, 87-88) About that same time, Resident 26's wife began to severely decline in health to the point that she died in early December. Consequently, Resident 26 manifested symptoms of severe depression and required psychological counseling to deal with his wife's death. (T.pp. 95-96, 106) Resident 26 began losing weight after his admission to the facility in May and continued losing weight through the November 14th survey date, as demonstrated by the following monthly weights taken from his medical record: May 156.8 pounds June 151.2 pounds July 147.2 pounds August 146.8 pounds September 143.5 pounds October 143.1 pounds November 138.7 pounds (See p. 79 of Petitioner's Exhibit 1) AHCA determined that Resident 26's weight loss between May and November was severe because a comparison of the actual weights for those months revealed that he had lost more than 10 percent of his admission weight. (T.p. 25) AHCA apparently cited the facility for a deficiency under Tag F325 because AHCA claimed that there was no adequate explanation by Stuart that his weight loss was unavoidable. (T.pp. 17-18) Although the regulatory standard cited under Tag F325 does not identify what constitutes an unacceptable weight loss for a resident, AHCA's surveyors recognize standard guidelines from the State Operations' Manual ("SOM") to define those losses. (T.p. 107) The SOM guidelines indicate that a severe weight loss occurs if a Resident has a loss of 5 percent of his or her body weight in 30 days, 7.5 percent in 90 days or 10 percent in 180 days. (T.pp. 111; Petitioner Exhibit 2) Under the SOM, a severe weight loss is determined by comparing a resident's usual body weight with the resident's actual weight from a particular month. (T.p. 114; see also formula on p. 106 of Petitioner's Exhibit 2) Although Resident 26 was admitted to the facility weighing 156.8 pounds, the two experts disagreed whether this was a realistic weight for the Resident, and whether his usual body weight range was between 142 and 147 pounds or whether it was 164 pounds. (T.pp. 18, 103-104, 115-116) A weight loss which exceeds the percentages set forth in the SOM is not a de facto deficiency. The regulation, the SOM guidelines and standard dietary practice recognize that any weight loss cannot be properly identified as unacceptable without evaluating the dietary care offered to the resident and the effects of the resident's overall clinical condition on the weight loss. (T.pp. 110; Petitioner Exhibit 2) Florence Treakle, a surveyor who had a nursing background and limited dietary training, was AHCA's sole witness at hearing. (T.pp. 8-9, 36-34) She testified that she reviewed Resident 26's medical records but could not find any information in those records which would indicate that the weight loss he experienced between May and November was unavoidable. (T.pp. 11- 14, 18) Therefore, the apparent absence of any clinical documentation to identify the loss as unavoidable in his medical records led her to cite Stuart for failing to prevent Resident 26's weight loss. (T.pp. 17-18, 26, 50-51) At hearing, Ms. Treakle indicated that she did not evaluate Resident 26's consumption records before concluding that the facility caused Resident 26's weight loss, and she admitted that Stuart provided Resident 26 with an appropriate diet. (T.pp. 46, 50, 59) She failed to explain the effect, if any, Resident 26's clinical conditions may have had on the Resident's weight loss. She further acknowledged that, when a facility provides a resident with an adequate diet and the resident consumes an adequate amount of that diet, the resident's weight loss can be attributed to the resident's clinical conditions. (T.pp. 46-47) She indicated that the facility's nutritional care plan for Resident 26 between May and October was good, despite his weight loss of 13.5 pounds during that time period. (T.p. 43) Stuart demonstrated that the weight loss experienced by Resident 26 between May and November was not due to Stuart's failure to adequately assess him. Resident 26 was assessed by Stuart for his dietary needs upon admission to the facility in May. He was reassessed for those needs in August when his swallowing ability had improved enough to merit a change in the texture of his diet. He was assessed again in October after he suffered his second stroke, and then was assessed almost weekly thereafter. (T.pp. 81-84, 87-88; see also pp. 30-38 of Petitioner's Exhibit 1) The dietary assessments also attempted to address Resident 26's ongoing weight loss. However, the Resident stated at that time that he frequently felt full after meals and refused to accept any changes to his diet other than an increase in the amount of a dietary supplement being offered. (T.p. 83; p. 32 of Petitioner's Exhibit 1) Stuart also demonstrated that Resident 26's weight loss was not a product of the facility's failure to have him consume a sufficient portion of the diet that was offered. Stuart maintained consumption records for Resident 26 which show that, although he did not always eat all of the food or supplements offered to him, he consumed enough of his diet so that he should have maintained or even increased his weight.2 In fact, it was shown that Resident 26 consistently consumed between 50 percent and 100 percent of a 3,665 calorie diet. (T.pp. 85-89) Kathy Nelson, Stuart's former employee and admitted expert witness on dietary care of the elderly who had over twenty years experience as a registered dietician, opined that there was nothing more that the facility could have done to improve Resident 26's dietary care or prevent his weight loss. (T.p. 93) She opined that the plausible explanation for the weight loss was the effects of his numerous compromising clinical conditions. (T.pp. 90-97, 113) Ms. Nelson identified several conditions that she found while reviewing Resident 26's medical record which contributed to the weight loss he experienced between May and November of 1997. She opined that a resident's inability to adjust to being admitted to a nursing home or an inability to adjust to being designated as a long term resident generally produces weight loss. She also opined that dementia and depression, as well as a resident's refusal to accept new dietary interventions are clinical conditions which produce weight loss.3 Finally, she opined that suffering two strokes and experiencing depression over the loss of a wife would significantly contribute to a resident's weight loss, particularly when they occur over a short time period of six months. (T.pp. 90-97, 113) The conditions identified by Ms. Nelson as causing Resident 26's weight lost were acknowledged by AHCA in the survey report, but there was no evidence that any surveyor considered their relationship to Resident 26's weight loss. Ms. Treakle acknowledged that the only basis for her allegation that there was a deficiency under Tag F325 was her belief that Stuart failed to provide Resident 26 with feeding assistance between October and November of 1997. (T.pp. 42-43) Upon his return from the hospital in October, Resident 26 had a doctor's order requesting the facility to "Please feed patient." (T.p. 24; p. 45 of Petitioner Exhibit 1) Ms. Treakle concluded that the facility did not follow through with this order because she could not find any written directive to Stuart's staff that identified the level of assistance in feeding needed by Resident 26. Rather, Stuart's staff advised the surveyors that each certified nursing assistant would receive a verbal report identifying the needed level of assistance. (T.pp. 27-29) Ms. Treakle did not review any consumption records in an effort to validate her conclusion that Resident 26 was not being fed after his October stroke. She did not personally observe any meal service that was offered to Resident 26 during the survey. (T.pp. 40-41) Ms. Treakle testified that her belief that Resident 26 was not being adequately fed was confirmed by a hearsay complaint from Resident 26's son indicating that the Resident's meal tray would sometimes remain in his room for one half of an hour before set-up. (T.pp. 39-40) Stuart demonstrated that Resident 26 was fed after he returned from the hospital in October, and that the staff was aware of the level of assistance he needed for feeding. Nurses' notes from October 12th through 15th contained statements that Resident 26 needed and was given assistance with his Activities of Daily Living, particularly with regard to his meals. (T.p. 99-101; pp. 93-95 of Petitioners Exhibit 1) In addition, there were consumption records for Resident 26's meals and supplements that indicated that he was consuming adequate amounts of those items. (T.p. 102; pp. 116, 119 of Petitioner Exhibit 1) Stuart also demonstrated that, by October 17th, Resident 26 had improved in his eating skills to the point that he did not need assistance with eating beyond set up.4 This fact was identified not only in the October 17th nursing note, but also in Occupational Therapy Screenings that were done on October 16th and in early December. (T.pp. 99-101, 105-106; see also p. 72 of Petitioner Exhibit 1) Because Resident 26 was independent in his eating skills by October 17th, it was unnecessary for Resident 26 to have a care plan requiring assistance in feeding. (T.p. 101)5
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 issuing a Standard rating to Stuart and rescinding the Conditional rating. DONE AND ENTERED this 23rd day of March, 1999, in Tallahassee, Leon County, Florida. WILLIAM R. PFEIFFER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of March, 1999.
Findings Of Fact Petitioner McGowan was dismissed from his position as State Trooper by Respondent by letter dated 31 January 1978 (Composite Exhibit 1) which recites that the action in dismissing Petitioner is based upon Petitioner's violation of General Order No. 43 2.1C, Insubordination, third offense, and Rule 22A- 7.10(7)(a) Florida Administrative Code. McGowan was advised of his right to file a grievance pursuant to the agreement between Florida and the PBA or appeal the dismissal to the Career Service System. McGowan opted for the former and during the course of that hearing raised the issue before the Arbitrator that G.O.'s 40 and 43 were rules and invalid because not promulgated as required by Chapter 120 Florida Statutes. Respondent contested the jurisdiction of the Arbitrator to resolve this question, the parties stipulated that this issue be submitted to DOAH for determination, and the Petition here involved was filed. G.O. 40 relates to physical fitness of members of the Florida Highway Patrol and, after pointing out that weight control is an important part of physical fitness, provides in pertinent part: Members shall maintain control of their weight in relation to their height, age, and body build. There are several charts and tables available indicating the ideal or desirable weight based on the above factors. The maximum allowable weight by height for all ages and body builds for the members of the Florida Highway Patrol shall be those used by the Federal Bureau of Investigation. See G.O. 41, Appendix A. Exception to the maximum limits may be made for members who have a large amount of muscle weight (without excessive fat) and a physician certifies that the individual is not overweight due to excess fat. Failure to comply with the maximum weight limits will result in a low rating for personal appearance on the employee evaluation form and disciplinary action may be taken for violation of this regulation, as provided in G.O. 43. G.O. 43 contains guidelines for establishing standards of disciplinary actions and for appeals to the Career Service Commission. Guidelines for disciplinary actions are contained in Section 2.1 of G.O. 43 which provides in pertinent part: C. Guidelines: The following guidelines are established to insure that all supervisors are being reasonably consistent in taking disciplinary actions against employees involved in similar situations. These guidelines may be expanded or modified from time to time to meet changing conditions and to make their use more effective. They shall be followed generally; however, it is realized that some of the offenses and deficiencies will be more frequent in some cases, and the supervisor may take or recommend another course of action. In no case will these guidelines be binding on the Department as the disciplinary action it shall take. G.O. 43 goes on to provide in the recommended table of Disciplinary Actions following the above quoted provision that for the third offense of insubordination the offender may be dismissed. By letter dated August 10, 1976 (Composite Exhibit 1) Petitioner was advised by Respondent that he was 60 pounds overweight, that his doctor had stated Petitioner's back problem is greatly aggravated and brought about by the overweight problem, and he was directed to make a concerted effort to reduce weight. By letter dated April 7, 1977 (Composite Exhibit 1), Petitioner was suspended from duty for 8 hours without pay for insubordination based upon failure to lose weight as directed in the August 10 letter. By letter dated September 28, 1977 (Composite Exhibit 1) Petitioner was suspended from duty for 16 hours without pay for insubordination for not conforming to weight regulations. By letter dated January 31, 1977 (Composite Exhibit 1) Petitioner was dismissed for the third offense of Insubordination for not conforming to weight regulations. On one or more occasions petitioner was granted sick leave by reason of back problems associated with being overweight.
