Findings Of Fact Petitioner, Department of Health and Rehabilitative Services (HRS), is designated as the state agency responsible for the administration of federal and state Medicaid funds, and is authorized by statute to provide payments for medical services. Respondent, Marvin H. Ledbetter, is a doctor of osteopathy who is enrolled as a general practitioner provider in the Medicaid Program. His professional office is in Ormond Beach, Florida where he is engaged in family practice. Under the Program, Ledbetter is assigned a provider number (48220-0) which is used to bill Medicaid for services rendered to Medicaid recipients. During calendar year 1981, which is the only time period in question, Ledbetter received $42,809 in Medicaid reimbursements from HRS, of which $28,062 related to fees for Medicaid hospital patients. The latter category of fees is at issue. In order to qualify for federal matching Medicaid funds HRS must meet certain federally-imposed requirements, including the establishment of a program integrity section designed to insure that all Medicaid services are medically necessary. If they are not, HRS is obliged to seek recoupment of funds paid to the provider. This proceeding involves an attempt by HRS to recoup certain funds paid to Ledbetter for hospital services. After providing medical services to various hospital patients, Ledbetter completed and sent in the necessary forms to obtain payment. As noted earlier, these payments totaled $28,062 during 1981. Upon receipt of the forms, HRS input the information from the forms into a computer data base, along with similar information from other Medicaid providers throughout the State. This information included, among other things, the number of admissions, number of discharges, amount paid for hospital services and length of stay. The retention of such data is necessary so that possible overpayments may be detected by HRS through the statistical analysis of claims submitted by a group of providers of a given type. Because Ledbetter's total discharges exceeded the average of other family physicians throughout the State, the computer generated a report which flagged Ledbetter for further review and examination. An HRS analyst conducted such a review of Ledbetter's records, and found his average hospital length of stay for patients to be acceptable when compared to the average physician in the State. This report was forwarded to the HRS peer review coordinator who randomly selected thirty of Ledbetter's patients from the computer, and obtained their patient charts (numbering sixty-eight). Such a statistical calculation is authorized by Rule 10C-7.6(4)(b), Florida Administrative Code. A medical consultant employed by HRS then reviewed twelve of the sixty-eight charts and recommended the records be sent to a Peer Review Committee (PRC) for its review and recommendation. This committee is authorized by Rule 7C-7.61(4)(c), Florida Administrative Code serves under contract with HRS, and is composed of eight members of the Florida Osteopathic Medical Association. It is their responsibility to review the files of physicians whose Medicaid payments are questioned by HRS's program integrity section. When Ledbetter's records were forwarded to the PRC by HRS, the transmittal letter stated that a "study" of his records had been made, and that said study revealed "overutilization of inpatient hospital services" and "excessive lengths of stay." After a PRC review was conducted in early 1984, the records were returned to HRS with a notation that "mild overutilization" had occurred. According to informal guidelines used by the PRC, this meant that Ledbetter's overutilization fell within the range of 0 percent to 20 percent. HRS accepted these findings but for some reason initially determined that a 40 percent overutilization had occurred, and that Ledbetter was overpaid in 1981 by 40 percent for his hospital services. Finding this amount to be inconsistent with the mild overutilization guidelines, HRS arbitrarily added back two days to each patient's hospital stay, which decreased overutilization to 33.8 percent, or $9,505.06 in overpayments. By proposed agency action issued on May 18, 1984, it billed Ledbetter this amount, thereby precipitating the instant controversy. All of the patients in question were from the lower income category, and most were black. Their home conditions were generally less than desirable, and the ability of the parents to supply good nursing care to ill or sick children was in doubt. At the same time, in 1981 Ledbetter was working an average of 56 hours per week in the emergency room of a local hospital and devoted only minimal time to his family practice. Because of this Ledbetter's number of hospital admissions greatly exceeded the norm when compared to general practitioners who engaged in an office practice. Consequently, he received most of these patients through the emergency room rather than his office and was dealing with patients whose socioeconomic conditions were an important consideration. These factors must be taken into account in analyzing Ledbetter's patient records. HRS does not contend that Ledbetter failed to perform the services for which he was paid--rather, it questions only whether some of the admissions were medically necessary and whether some of the lengths of stay were too long. In this regard, conflicting expert testimony was offered by the parties concerning the amount of overutilization, if any. Expert testimony by two local doctors of osteopathy support a finding that only mild overutilization of admissions and lengths of stay occurred. This is corroborated by HRS's expert (Dr. Smith) and by the testimony of its "live" expert, Dr. Conn, who conceded that lengths of stay were only "a little bit too long." The more persuasive testimony also establishes that while mild overutilization falls within the range of 0 percent to 20 percent, 10 percent is an appropriate median in this proceeding. Using this yardstick, Ledbetter should reimburse HRS for 10 percent for his billings, or $2,806.20.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent repay petitioner $2,086.20 in excess Medicaid payments received for calendar year 1981 claims. DONE and ORDERED this 16th day of May, 1985, in Tallahassee, Florida. DONALD R. ALEXANDER 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 16th day of May, 1985.
Findings Of Fact Petitioner applied for certification as a physician assistant by application dated June 29, 1991. Under the statutory scheme regulating physician assistants, in certain circumstances, the Board of Medicine may grant temporary certification to applicants for licensure. The temporary certification is good only until the applicant receives notice of the applicant's scores received on the first available examination. At its meeting of October 30 through November 1, 1992, the Board approved Petitioner for temporary certification contingent upon his completion of specified requirements prior to such temporary certification and his completion of 25 hours of continuing medical education after issuance of such certification. Petitioner completed the specified requirements for issuance of the temporary certification and was issued a temporary certificate. Petitioner was so notified by letter dated October 4, 1993. Petitioner was first notified of the need to pay a required fee for the licensure examination by letter dated February 27, 1993. That letter set forth that the fee must be paid by March 31, 1993. Petitioner did not pay the fee by that deadline. On June 8, 1993, Petitioner was notified that the deadline for payment of the required examination fee had been moved to June 25, 1993. The extension had been given because the Board was still involved with processing applications for this special licensure program. Petitioner did not pay the fee by that deadline. On October 11, 1993, Petitioner was sent another letter notifying him that the deadline had been extended once again. This time the deadline was set for November 15, 1993. The notice sent to Petitioner specified three times that the required examination fee must be received in the office of the Board by November 15, 1993. It specifically informed Petitioner that a postmark of November 15, 1993, would not be sufficient. Furthermore, the notice informed Petitioner that if he failed to submit the required examination fee in a timely fashion, he would not be eligible to take the licensure examination. Although Petitioner testified that he was confused with regard to when the required fee could be sent, it was established that he could read the letter and that he understood that his failure to timely pay the examination fee would result in his not being permitted to take the licensure examination. Petitioner did not have the money for the required examination fee until November 14, 1993. Petitioner mailed the examination fee from Miami to the Board office in Tallahassee by certified United States mail on November 15, 1993. Although Petitioner testified that he believed the fee would be delivered the same day or the next day, Petitioner did not use any type of special delivery to provide same day or next day delivery at the Board's office. The fee submitted by Petitioner in the form of three Travelers Express Company checks was received in the Board's office on December 22, 1993. Petitioner did not submit the required examination fee in a timely manner for any of the three deadlines set by the Board. With the exception of one case involving an applicant with a heart condition, the Board has uniformly denied any request for the late payment of the required examination fee. If he does not take and pass the first available licensure examination, Petitioner will not be able to receive his permanent certification as a physician assistant. The licensure examination for persons in Petitioner's category has not yet been given by the Board. Therefore, none of the applicants for certification as physician assistants through this special licensure program have yet been tested.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered finding that Petitioner is not eligible to take the physician assistant examination and that Petitioner's temporary certification is null and void. DONE and ENTERED this 9th day of February, at Tallahassee, Florida. LINDA M. RIGOT 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 9th day of February, 1995. APPENDIX TO RECOMMENDED ORDER Petitioner's proposed findings of fact numbered 1-4, 7-9, and 13 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 5 has been rejected as being irrelevant. Petitioner's proposed finding of fact numbered 6 has been rejected as being subordinate. Petitioner's proposed findings of fact numbered 10-12 have been rejected as being not supported by any evidence. Respondent's proposed findings of fact numbered 1-17 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed finding of fact numbered 18 has been rejected as not constituting a finding of fact. COPIES FURNISHED: Allen R. Grossman, Esquire Office of the Attorney General PL-01, The Capitol Tallahassee, Florida 32399-1050 Alexander J. Alfano, Esquire 45 Southwest 9th Avenue Miami, Florida 33130 Dr. Marm Harris, Executive Director Agency for Health Care Administration, Board of Medicine 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Tom Wallace, Assistant Director Agency for Health Care Administration, Board of Medicine 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792
The Issue The issues are whether Respondent's operation of its nursing home was deficient and, if so, whether Petitioner should have imposed an already-lifted admissions moratorium, pursuant to Section 400.121(5)(a), Florida Statutes; and should impose a conditional license, pursuant to Section 400.23(7)(b), Florida Statutes; administrative fines of $95,000, pursuant to Section 400.19(8), Florida Statutes; a survey fee of $6000, pursuant to Section 400.19(3), Florida Statutes; and costs, pursuant to Section 400.121(10), Florida Statutes.
Findings Of Fact Respondent owns and operates Hallandale Rehabilitation Center (Hallandale), which is a 141-bed nursing home located at 2400 East Hallandale Beach in Hallandale. Licensed as a skilled nursing facility, Hallandale holds license number SNF11920961, effective April 25, 2001, through December 31, 2001. Petitioner's surveyors conducted an inspection of Hallandale on December 3 and 4, 2001. The inspection lasted four to five hours on the first day and twelve and one-half hours on the second day. As a result of the inspection, Petitioner found numerous deficiencies in resident care, as discussed below. At the time of the incident described below, Resident #1 was 84 years old. She had been admitted to Hallandale on September 11, 2001, having suffered a stroke with aphasia, hemiplagia, hypertension, and cardiac arrhythmia. She was totally dependent upon staff for all of her needs, which she was unable to communicate. On October 25, 2001, one of Respondent's staff discovered a large reddened area on the right anterior thigh of Resident #1. The area measured 14 cm by 8 cm and was raised and hard. A licensed practical nurse and registered nurse, both employed by Respondent, examined the wound. The registered nurse spoke to the certified nursing assistants to learn what she could about the wound, but no one was aware of its cause. Without delay, the nurse on duty contacted the advanced registered nurse practitioner, who was employed by the physician who supervised Resident #1's care. After listening to an accurate description of the wound, the advanced registered nurse practitioner opined that the reddened area might be cellulitis, possibly due to a bug bite. At 6:45 a.m., the advanced registered nurse practitioner ordered the application of warm compresses to the wound several times a day. Respondent's staff promptly implemented these orders. Respondent's staff also contacted Resident #1's husband and informed him of the situation. The wound quickly deteriorated. When Respondent's staff informed the advanced registered nurse practitioner later the same day that the reddened area had begun to blister and opened blisters had begun to seep clear fluids, the advanced registered nurse practitioner ordered that staff discontinue the warm compresses and clean the wound with saline solution, apply triple antibiotic ointment, and cover the wound with Telfa. Respondent's staff promptly implemented these orders. Respondent's staff initiated an investigation into the cause of Resident #1's wound and completed adverse incident reports. In retrospect, the most plausible explanation is that a heated metal plate warmer, which is under the food plate on which residents are served their food, may have somehow slipped out of its protective enclosure and burned Resident #1. But this explanation appears to have emerged later, partly due to the fact that the facility had never previously had a resident burned by a plate warmer and partly due to the belated identification of the wound as a burn. The day after the discovery of the wound, the advanced registered nurse practitioner visited the facility and intended to examine Resident #1's wound. However, Resident #1 was out of the facility at a neurologist's appointment, and the advanced registered nurse practitioner did not see her on that day. Four days after the discovery of the wound, the advanced registered nurse practitioner ordered the discontinuation of the triple antibiotic ointment and the application of Silvadene. It is unclear what prompted this change in orders. Six days after the discovery of the wound, the advanced registered nurse practitioner visited the facility and examined the wound, but was unable to conclude the source of the injury. Satisfied with the present treatment, the advanced registered nurse practitioner ordered the continuation of the Silvadene and a follow-up visit in one week. On November 2, which was eight days after the discovery of the wound, Respondent's staff notified the advanced registered nurse practitioner that the wound was not progressing. The advanced registered nurse practitioner ordered a consultation with a wound care physician, with whom an appointment was made for November 6. In the meantime, Respondent's staff continued to implement the orders of the advanced registered nurse practitioner. On November 4, the advanced registered nurse practitioner re-examined the wound and did not change the treatment order. Two days later, the wound care physician, who is a dermatologist, examined the wound and ordered Santal ointment, which is a debriding agent, and an outpatient debridement, but Resident #1's husband declined the surgical procedure on behalf of his wife. Eight days later, on November 14, a plastic surgeon examined Resident #1's wound. Testifying that he did not know who summoned him to the facility, the physician visited the facility and found that Resident #1's wound was actually a third-degree burn, which was now 16 cm by 9 cm and exhibiting areas of necrosis. Continuing the order for Santal, the plastic surgeon ordered a surgical debridement to remove the nonviable tissue that were impeding healing. Based on the plastic surgeon's testimony, the application of warm compresses, although contraindicated for a burn wound, did not exacerbate the injury because all of the damage was done at the moment of the initial incident. Also, the Silvadene, triple antibiotic, and Santal were appropriate treatments. From the moment of the initial incident, Resident #1 would have required surgical treatment regardless of the diagnosis and nonsurgical treatment of the wound. However, the passage of six days before a physician (or presumably an advanced registered nurse practitioner) examined the wound was unreasonable; at most, two days would be reasonable. On November 18, Resident #1 was admitted to the hospital for an unrelated condition. During this admission, on November 23, the plastic surgeon performed the debridement. The wound healed nicely after the procedure. The three allegations concerning Resident #1 involve mistreatment and neglect, the failure to provide services meeting professional standards of quality, and the failure to provide the services necessary for Resident #1 to attain her highest practicable physical, mental, and psychosocial wellbeing. Petitioner has focused on Respondent's acts and omissions after discovering the wound and not on any acts or omissions possibly resulting in the wound. These issues turn on the failure of the physician or at least advanced registered nurse practitioner to examine the wound for six days. Ultimately, it is unimportant that the advanced registered nurse practitioner was at the facility the next day, but was unable to examine the injury due to the absence of the resident. The fact remains that Resident #1 was not examined by a physician or an advanced registered nurse practitioner for six days after the injury was discovered. However, when the advanced registered nurse practitioner examined Resident #1 on October 31, he did find that the condition of the wound demanded a change in treatment or immediate intervention. As noted by the plastic surgeon, the Silvadene then being administered was appropriate. The failure of the advanced registered nurse practitioner to diagnose Resident #1's burn would have been material, if timely diagnosis would have resulted in materially different treatment that could have obviated the need for surgical debridement. However, the plastic surgeon established that, from the moment of the burn, Resident #1 was destined to undergo a surgical debridement of the wound. Significantly, the wound healed shortly after the surgery. The failure of the advanced registered nurse practitioner to diagnose Resident #1's burn would also have been material, if a timely diagnosis would have materially shortened the healing process or materially reduced the amount of pain produced by the wound. However, the evidence describing Resident #1's reaction to the pain of the wound prior to debridement is scant. And no evidence suggests timely diagnosis would have meant that a surgical debridement would have taken place earlier than the one actually performed--about one month after the burn occurred. In general, the evidence fails to show that the delayed diagnosis materially affected Resident #1's physical, mental, or psychosocial wellbeing. The question whether Respondent mistreated or neglected Resident #1 requires an assessment of the reasonableness of its reliance upon the nonemployee health care professionals who cared for Resident #1 prior to the intervention of the plastic surgeon. Respondent timely notified these professionals, as well as Resident #1's husband, of the initial injury, as well as subsequent developments. Petitioner has not shown that any shortcomings in diagnosis and treatment by those professionals had a material bearing on the course or outcome of Resident #1's case. In general, Petitioner has not proved that Respondent's care for Resident #1 after discovery of the injury constitutes mistreatment or neglect, a failure to provide services meeting professional standards of quality, or a failure to provide the services necessary for Resident #1 to attain her highest practicable physical, mental, and psychosocial wellbeing. At the time of the incident described below, Resident #2 was 61 years old. He had been admitted to Hallandale on October 9, 2001, with a right-leg amputation below the knee a day or two prior to the admission to Hallandale, diabetes, cardiovascular disease, and dehydration, but not pressure sores. While at the facility, Resident #2 mostly remained in his room. Resident #2 had recently been living in a homeless shelter. When he used his wheelchair, Resident #2 propelled himself with his arms, not his foot. On October 31, about three weeks after his admission, Respondent's staff found a "stage II" open wound measuring 2 cm by 3 cm on the sole of Respondent's foot. Respondent contends that the wound was a vascular ulcer. This contention is supported by the diabetes, peripheral vascular disease, and recent amputation. On the other hand, Petitioner's surveyor examined the wound during the survey and found a stage II pressure sore the size of a quarter or half-dollar. Several facts support Petitioner's classification of the wound as a pressure sore; these include the fact that it healed later in December, that some of Respondent's records identify the wound as a pressure sore, various risk factors for pressure sores, and Respondent's haphazard maintenance of medical records for this resident-- featuring one admittedly incorrect record of the inception of the wound and treatment records that Respondent claims are missing. A stage II pressure sore is defined by the presence of opened area through the epidermis and possibly the dermis. A stage I pressure sore is defined by a reddened area. A stage III pressure sore is defined by the exposure of subcutaneous tissue, and a stage IV pressure sore is defined by the exposure of the fascia, muscle, or bone. A pressure sore results from pressure to an area over an extended period of time, so that an area loses blood circulation and suffers tissue breakdown. It is impossible to find sufficient factual bases for mistreatment or neglect of Resident #2 strictly in the development of the pressure sore. His various physical problems predisposed him to this condition. His means of movement in the wheelchair was his hands, not his foot, so that the source of pressure on the foot is not obvious. However, Respondent's response to the pressure sore was inadequate. First, Respondent provided Resident #2 no treatment for the pressure sore for the first three weeks after its discovery; under these circumstances, this absence of treatment was mistreatment and neglect and a failure to provide services meeting professional standards of quality. During this period, Respondent likewise failed to make the necessary revisions in any care plan that it maintained for Resident #2. On November 20, Respondent's staff applied duoderm to the pressure sore and continued to provide effective treatment, including hydrogel, that resulted in the speedy resolution of the condition. However, the period during which Resident #2 suffered with an untreated pressure sore on his foot occurred during a crucial period of his life, as he tried to recover from the amputation of part of his right leg. While his pressure sore remained symptomatic and untreated, Resident #2 suffered a decline in his level of participation in physical therapy. For instance, progress notes from the occupational therapist dated October 17 and 24 report "excellent progress"; the latter note reports "max[imum] motivation" and the therapist's expectation that Resident #2 will make "cont[inued] progress." By November 19, Resident #2 was refusing to participate in physical therapy, citing "drainage pain in foot." He refused physical therapy again the next day for the same reason. One week later, the physical therapist discontinued Resident #2's physical therapy due to his noncompliance. Interestingly, Resident #2's urinary continence also changed for the worse during the same period that his painful foot remained untreated. On October 22, Respondent completed a minimum data set for Resident #2 and determined that he was continent. However, the minimum data set that Respondent completed six weeks later revealed that he was now occasionally incontinent. The interdisciplinary care plan confirms declines during this time in behavior and continence. If Resident #2 reacted poorly to the untreated and painful pressure sore in his left foot, it can perhaps be explained by, not only the fact that this was his sole remaining foot, but also by the circumstances surrounding the loss of the right foot. A week prior to his admission to Hallandale, Resident #2 had been admitted to the hospital complaining of a draining ulcer at the base of his right foot, which resulted in the amputation of his right leg below the knee a few days later. Two other allegations involve Resident #2. One involves the discovery of the resident by a surveyor in a urine- soaked condition. The other involves the presence of excessively long toenails on Resident #2, suggestive of a lack of attention to his grooming needs. During the survey, a surveyor found Resident #2 in his bed soaked in urine up to his armpits. She found his sheets and clothing totally soaked in urine and the smell "unbelievabl[y] . . . strong." When the surveyor contacted the Director of Nursing, he told her that staff had last changed Resident #2's incontinence brief 12 hours ago. The evidence concerning the condition of Resident #2's toenails does not establish any deficiency. The surveyor who noted the condition of the toenails had to rely on her report, rather than an independent recollection. The evidence generally does not describe the circumstances surrounding this situation. Although Petitioner did not prove that Respondent unreasonably failed to avoid the development of the pressure sore, Petitioner proved that Respondent's failure to treat the pressure sore promptly was mistreatment and neglect and a failure to provide services meeting professional standards of quality. Similarly, Petitioner proved that Respondent failed to revise Resident #2's comprehensive care plan during this period of nontreatment. Although Petitioner did not prove that Respondent failed to promote care to maintain Resident #2's dignity in terms of any failure to timely trim his toenails, Petitioner proved that Respondent's failure to change Resident #2's briefs for 12 hours, at the end of which time he was totally soaked in urine, constituted a failure to provide those services necessary to maintain personal hygiene to a resident in need of assistance in his activities of daily living. The prompt healing of the pressure sore, once it was treated, is a mitigating factor. However, the effect of the delay in treatment upon Resident #2 is a serious aggravating factor. Having recently undergone the amputation of his lower right leg following a similar sore on his right foot, Resident #2 began the difficult transition period with a worrisome pressure sore on his remaining foot. The period during which Respondent failed to treat this pressure sore corresponds with the period during which Resident #2 suffered declines in urinary continence and therapeutic progress following the leg amputation. Allowing Resident #2 to lie in bed totally soaked in his own urine literally added insult to injury. At the time of the incident described below, Resident #3 was 45 years old. He was quadriplegic and incontinent. Due to decreased bed mobility and bowel incontinence, Resident #3 was at increased risk of developing pressure sores. The surveyor directed that staff remove dressings of wounds, so that she could examine the condition of the wounds. In removing a dressing covering a stage II pressure sore at the sacrum, a nurse either tore the epidermis at the distal end of Resident #3's buttock or a previously reddened area had been masked by the tape used to secure the dressing for the pressure sore at the sacrum. There is little evidence in the record concerning Resident #3. With respect to either of his pressure sores, Petitioner failed to prove any mistreatment or neglect or any failure to provide services meeting professional standards of care. At the time of the incident described below, Resident #4 was 77 years old. She was incontinent and dependent on staff for all of her needs. During the survey, a surveyor discovered a severe excoriation of the perineal area extending to Resident #4's groin and right upper thigh. At the time, Respondent's staff was treating the excoriated area with zinc oxide to provide a barrier between the skin and external moisture. The treatment was appropriate, and Respondent's standing orders duly authorized the use of zinc oxide for this condition without obtaining a physician's order to do so. Petitioner failed to prove any mistreatment or neglect or failure to meet professional standards of quality in Respondent's care of Resident #4. At the time of the incidents described below, Resident #5 was 87 years old and Resident #7 was 57 years old. Both residents had been admitted to Hallandale less than one month prior to the survey. During the survey, the surveyor noticed that each of these residents had stage II pressure sores without dressings. The Director of Nursing, who was pregnant at the time and unable to remove dressings herself, had directed staff to remove the dressings of a number of residents at the same time, shortly before the wound inspection, to facilitate the surveyor's examination of wounds. Staff did so with respect to Resident #5 and Resident #7, and the surveyor wrongly inferred that Respondent did not maintain the necessary dressings for these residents. As to Resident #5 and Resident #7, Petitioner failed to prove any mistreatment or neglect or any failure to meet professional standards of quality. At the time of the incident described below, Resident #6 was 90 years old. During the survey, the surveyor found a dressing on a wound on Resident #6's left lateral ankle. The date written on the dressing was two days prior to the date of the survey, but the physician's order was to change the dressing and treat the wound daily. The treatment record documents that Respondent's staff changed the dressing on the day prior to the survey, even though this date was not noted on the dressing itself. Absent any evidence of harm to the resident, the evidence does not establish that Respondent's staff failed to change the dressing on the prior day. As to Resident #6, Petitioner has failed to prove any mistreatment or neglect or any failure to provide services meeting professional standards of quality. At the time of the incident described below, Resident #8 was 47 years old. He had been admitted to Hallandale with diagnoses of heart failure, HIV, neuropathy, and psychosis. Fortunately, Resident #8 required minimal assistance with his activities of daily living because he was intractably abusive toward staff, yelling insults and throwing furniture and dishes. During the survey, a surveyor noticed that Resident #8's fingernails were long and yellowed. The resident claimed that Respondent's staff ignored his frequent pleas that they trim his nails. According to Respondent's staff, Resident #8 refused to allow anyone to trim his fingernails. It is impossible to credit Resident #8's claims. Petitioner cited excessively long nails for only two of about 75 residents. The other situation was discussed above. The most likely explanation for Resident #8's long fingernails was his disruptive lack of cooperativeness and psychotic behavior. Petitioner failed to prove any failure to promote care to maintain Resident #8's dignity. There is little evidence concerning Resident #9, whom Petitioner alleges suffered from excoriated buttocks and delays in changing wet briefs. In its proposed recommended order, Petitioner did not mention the latter allegation, which consisted of hearsay in this record, but restated the observation of excoriated buttocks. There is also little evidence concerning Resident #10, whom Petitioner alleges suffered from delays in responses to her call bell to be assisted in toileting. In its proposed recommended order, Petitioner did not mention this allegation, which consisted of hearsay in this record. Absent evidence of the circumstances surrounding the excoriation or the other alleged deficiencies omitted from the proposed recommended order, Petitioner has failed to prove any failure to promote care to maintain either resident's dignity. As for Resident #11, Resident #12, and Resident #13, Respondent's staff double-diapered all of them at the time of the survey. Resident #11 and Resident #13 had requested double diapering. As to these residents, Petitioner failed to prove any failure to promote care to maintain their dignity. Resident #12 had not consented to double diapering. However, according to her minimum data set completed about three weeks before the survey, Resident #12 suffers from dementia, has a poor memory, and is completely incontinent of bladder and bowel. Absent additional evidence of Resident #12's response to the double diapering, it is impossible, on this record, to infer sufficient insight on her part as to justify a finding of loss of dignity in this otherwise-benign practice, as evidenced by the fact that some residents request double diapering. Although Respondent had reminded staff not to double diaper residents who had not requested such extra protection, language barriers likely contributed to the unrequested double diapering of Resident #12. As to Resident #12, Petitioner has failed to prove any failure to promote care to maintain her dignity. At the time of the incident described below, Resident #14 was 49 years old. She had been admitted to Hallandale on November 22, 2000, with diagnoses of acute respiratory failure, status--post subarachnoid hemorrhage, status--post cerebral aneurysm, seizure disorder, and percutaneous endoscopic gastrostomy tube and tracheostomy placement. Respondent was aware that Resident #14 repeatedly pulled at both tubes, without which she would expire. Respondent was aware that Resident #14 was agitated and restless. On January 16, 2001, Resident #14 succeeded in pulling out her tracheotomy tube, and, after onsite resuscitation, she was transported by ambulance to the hospital for treatment. Three days later, Resident #14 was readmitted to Hallandale with wrist restraints, pursuant to her physician's order. The order required that Respondent's staff check the restraints every 30 minutes to assure that they would effectively prevent Resident #14 from pulling out her tubes. The order required that Respondent's staff release the wrist restraints every two hours for ten minutes. Five hours after her readmission to Hallandale, Resident #14 was found with her wrists unrestrained, her tracheotomy tube removed, and not breathing. She was in a coma from which she never recovered, and Resident #14 later died. Petitioner cited Respondent for a class II deficiency in connection with this incident. On April 25, 2001, one of Petitioner's surveyors conducted a complaint-investigation survey concerning Respondent's care of Resident #14 and concluded that Respondent had failed to provide Resident #14 with adequate supervision. In its proposed recommended order, Respondent concedes that it was unable to demonstrate that the citation from this incident had been improperly issued. Petitioner has alleged that Respondent never developed a risk management plan or trained its staff in the management and prevention of risk. Although Petitioner alleges in the alternative that Respondent did not implement a presumably developed risk management plan, the amended Administrative Complaint cites only Section 400.147(1)(e), Florida Statutes, which is not the subsection covering implementation, but is the subsection covering the development of a plan and the training of staff in risk management and prevention. Although Respondent lacked a written risk management plan at the time of the survey, it maintained a program that included the reporting of all adverse incidents, investigation of all adverse incidents, development of plans to avoid the repetition of adverse incidents, and training of staff on avoiding adverse incidents. Additionally, Respondent conducted monthly quality assurance meetings and required the weekly assessment of wounds. Undoubtedly, Respondent's care for Resident #14 was gravely deficient, and its care for Resident #2 was seriously deficient. Resident #2 was not the only resident who was the victim of poor recordkeeping, although he seems to have been the only resident who was the victim of materially false recordkeeping. Respondent's care for Resident #1 was marginally adequate. Notwithstanding obvious shortcomings in staff competence, the record in this case does not portray a facility replete with care problems--from which an inference of risk management deficiencies would be easier. Respondent's nontreatment of Resident #14 and mistreatment of Resident #2 seem isolated, Respondent's treatment of Resident #1--although not without its flaws--reflects a dogged persistence to obtain competent care for her wound, and Respondent's handling of the other residents is either adequate or not materially inadequate. Petitioner has failed to prove any failure to develop a risk management program or to train staff in risk management and prevention. Petitioner has sought a $6000 survey fee, based on the existence of a class I deficiency. Ignoring Petitioner's argument that the citation alone of a class I deficiency satisfies the statutory requirement, as discussed in the Conclusions of Law below, it is necessary to consider the status of the matters proved as to Resident #2. As to Resident #2, Petitioner cited Respondent for an isolated class I deficiency with respect to the following: mistreatment or neglect and a failure to provide services meeting professional standards of quality. The remaining citations were for isolated class II deficiencies. However, in its proposed recommended order, Petitioner refers to the mistreatment or neglect as a class II deficiency. Assuming that this is a typographical error, it remains necessary to consider all aspects of Respondent's mishandling of the care of Resident #2 to determine if it constitutes a class I deficiency. As discussed above, Respondent's mistreatment or neglect of Resident #2 and failure to provide him with services meeting professional standards of quality interfered with his ability to rehabilitate following the amputation of part of his right leg. As such, these deficiencies are class II deficiencies. These deficiencies were not so grave as to meet the class I criterion of causing, or likely to cause, serious injury, harm, impairment, or death. Petitioner has failed to prove that Respondent committed a class I deficiency during the December 2001 survey and thus has failed to prove that Respondent is liable for the $6000 statutory survey fee. The amount of the fines is based on the classification of the deficiencies and whether they are isolated or widespread. As already noted, the deficiencies of mistreatment or neglect and failure to provide services meeting professional standards of quality are class II deficiencies, not class I deficiencies as alleged. The failure to revise the comprehensive care plan and the failure to provide services in the form of changing urine-soaked sheets and clothes to maintain personal hygiene are also class II deficiencies, as alleged. The care plan relates closely to the other deficiencies concerning the delayed treatment of the pressure sore, and the failure to alleviate Resident #2's urine-soaked condition compromised his ability to maintain or reach his highest psychosocial wellbeing. As alleged, these deficiencies are isolated because they affect only one resident. In calculating the amount of fines, it is necessary to treat the mistreatment or neglect and failure to provide services meeting professional standards of quality as a single deficiency because they are proved by the same facts. However, the failure to revise the care plan is a separate deficiency, as is obviously the failure to provide services to maintain personal hygiene. The fine for each isolated class II deficiency is $2500 for a total of $7500. However, the citation six months earlier of a class II deficiency in the failure to supervise Resident #14 requires the doubling of the fine to $15,000. On December 11, 2001, Petitioner issued a moratorium on admissions, which Petitioner lifted eight days later. Respondent's mistreatment and neglect of Resident #2 following its recent citation in connection with the death of Resident #14 constitute adequate grounds for Petitioner to have found, at the time of the December 2001 survey, or even a few days later, that the care provided by Hallandale was so inadequate as to present a threat to the health, safety, or welfare of its residents. Based on the facts then known or presently found in this recommended order, an eight-day admissions moratorium was a prudent action. Based on the findings of class I and II deficiencies, Petitioner, by letter dated December 14, 2001, imposed upon Respondent a conditional license, effective December 4, 2001. This license expired on December 31, 2001. Lastly, Petitioner seeks the costs related to the investigation and prosecution of this case, pursuant to Section 400.121(10), Florida Statutes. Absent evidence of such costs, the Administrative Law Judge shall retain jurisdiction of the case solely for the purpose of entering a supplemental recommended order awarding these costs, if the parties cannot agree to such costs within a reasonable time. The Administrative Law Judge will set a hearing for this purpose on the request of either party.
Recommendation It is RECOMMENDED that the Agency for Health Care Administration enter a final order finding Respondent guilty of three separate, isolated class II deficiencies with respect to Resident #2, imposing a fine of $7500 for these violations, doubling the fine to $15,000 due to the existence of a class II deficiency in the preceding complaint investigation, imposing a conditional license, sustaining the already-lifted admissions moratorium, and imposing costs for the investigation and prosecution (if the parties can agree on an amount; if not, remanding the issue of costs to the Administrative Law Judge for the issuance of a supplemental recommended order on the amount of these costs). It is further RECOMMENDED that the Agency for Health Care Administration enter a final order dismissing the remainder of the amended Administrative Complaint. DONE AND ENTERED this 11th day of December, 2002, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 11th day of December, 2002. COPIES FURNISHED: Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop No. 3 Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308 Lori C. Desnick Agency for Health Care Administration 2727 Mahan Drive, Suite 3431 Fort Knox Building No. 3 Tallahassee, Florida 32308 Jay Adams Jay Adams, P.A. Broad and Cassel 215 South Monroe Street, Suite 400 Post Office Drawer 11300 Tallahassee, Florida 32302
The Issue Whether there is a need for an additional 31 short-term psychiatric beds for Broward County?
Findings Of Fact I. General. History of Case. In June of 1984, the Petitioner filed an application with the Respondent for a certificate of need to add 31 short- term psychiatric beds to its existing facility. The certificate of need sought by the Petitioner was assigned certificate of need #3372 by the Respondent. The Respondent denied the Petitioner's application for certificate of need #3372. On October 25, 1984, the Petitioner filed a Petition for Formal Administrative Hearing with the Respondent challenging its proposed denial of the Petitioner's application. The Petition was filed with the Division of Administrative Hearings by the Respondent and was assigned case number 84-4037. Biscayne, Memorial and Charter were granted leave to intervene by Orders dated January 28, 1985, April 26, 1985 and July 9, 1985, respectively. The final hearing was held on November 19 and 21, 1985 in Ft. Lauderdale, Florida and February 24 and 25, 1986 in Tallahassee, Florida. The Petitioner's Proposal. The Petitioner originally sought to add 31 short-term psychiatric beds to its existing facility. If approved, the additional beds would have increased its current licensed beds from 334 to 365 beds. The Petitioner proposed to meet projected need for short-term psychiatric beds in Broward County for 1989. In its original application, the Petitioner proposed to provide services to children, adolescents, adults and the elderly. No distinct psychiatric units were proposed. The total cost of the original proposal was estimated to be $209,368.00. At the final hearing, the Petitioner proposed to relinquish 31 medical/surgical beds and to add 31 short-term psychiatric beds to meet projected need for short-term psychiatric beds in Broward County for 1989. The Petitioner will end up with a total of 334 licensed beds, the same number it now has, if its application is approved. The total cost of the proposal presented at the final hearing was $337,169.00, which is accurate and reasonable. The 31 proposed beds will be divided into a 15-bed dedicated adolescent unit and a 16-bed dedicated geropsychiatric unit. Adults will generally not be treated by the Petitioner. Involuntary admissions will be treated by the Petitioner, although there was some evidence to the contrary. The sixth floor of the Petitioner's existing facility will be converted into space for the new psychiatric units. The Petitioner changed the estimated staffing for its proposal between the time it filed its original application and the final hearing. The changes were not significant. During the 1985 legislative session, the Florida Legislature enacted Section 394.4785(1)(b), Florida Statutes (1985). This,, Section requires that most adolescents be separated from other patients for purposes of psychiatric treatment. Some of the modifications of the Petitioner's application which were made at the final hearing were made in order to conform with this Section. The changes in the Petitioner's proposal which were made between the time it filed its original application with the Respondent and the time of the final hearing are not substantial enough to require that the Petitioner's application, as modified, be remanded to the Respondent for further consideration. The Parties; Standing. The Petitioner is a 334-bed, for-profit, general acute-care hospital. The Petitioner is a full service hospital providing general medical services. The Petitioner has a medical staff of more than 400 physicians, including a department of psychiatry. The Petitioner is owned by National Medical Enterprises, one of the largest health care providers in the country. The Petitioner is located in Hollywood, Florida, which is located in the southern portion of Broward County, Florida. Broward County is the only County in the Respondent's service district 10. The Petitioner's primary service area consist of the southern portion of Broward County from State Road 84 in the North to the Broward-Dade County line in the South. Memorial is a not-for-profit general acute care hospital located in southern Broward County. Memorial holds License #1737, issued on June 1, 1985, which authorizes Memorial to operate 74 short-term psychiatric beds. This license is valid for the period June 1, 1985 to May 31, 1987. Memorial was also authorized to operate 74 short-term psychiatric beds in its license issued for the 2-year period prior to June 1, 1985. Memorial is located a short distance from where the Petitioner is located in southern Broward County. Memorial and the Petitioner share the same general primary service area. Most of the physicians on the staff at Memorial are also on the Petitioner's staff. Memorial is subsidized by tax revenues for providing indigent care for southern Broward County. About 17 percent of Memorial's revenue is attributable to bad debt and indigent care. If the Petitioner's application is approved it is likely that the Petitioner will take patients from Memorial. It is also likely that the patients taken from Memorial will be other than indigent patients. If the Petitioner were to achieve a 75 percent occupancy rate and 50 percent of its patients come from Memorial, Memorial would lose a little over $1,000,000.00 in terms of 1985 dollars. It is unlikely, however, that the Petitioner will achieve an occupancy rate of 75 percent and, more importantly, it is unlikely that 50 percent of the Petitioner's patients will come from Memorial. The loss of patients from Memorial which would be caused by approval of the Petitioner's application will, however, result in a financial loss to Memorial which may effect its ability to provide quality care. Additionally, the loss in paying patients could increase the percentage of indigent patients at Memorial and, because a portion of the cost of caring for indigents is covered by paying patients at Memorial, could result in a further loss in revenue and an increase in tax support. The public may have difficulty accepting a public hospital, such as Memorial, as a high-quality hospital if the public hospital is perceived to be a charity hospital. It is therefore important for a public hospital to attract a significant number of paying patients to its facility to avoid such an image. It is unlikely that the number of patients which may be lost to the Petitioner by Memorial is sufficient to cause the public to perceive that Memorial is a charity hospital. Biscayne is a 458-bed, general acute-care hospital located on U.S. 1 in northern Dade County, Florida, just south of the Broward County line. Biscayne's facility is located within about 5 miles of the Petitioner's facility. Biscayne is about a 5 to 10 minute drive from the Petitioner. Dade County is not in service district 10. It is in service district 11. Of the 458 licensed beds at Biscayne, 24 are licensed as short-term psychiatric beds and 24 are licensed as substance abuse beds. The rest are licensed as medical/surgical beds. Ten of the medical/surgical beds at Biscayne are used as a dedicated 10-bed eating disorder (anoxeria nervosa and bulimirexia) unit. These 10 beds are not licensed for such use. A separate support staff is used for the 10-bed eating disorder unit. Approximately 60 percent of Biscayne's medical staff of approximately 400 physicians are residents of Broward County. Most of these physicians are also on the medical staff of other hospitals, principally the Petitioner, Memorial and Parkway Regional Medical Center, which is located in northern Dade County. Most of its staff have their business offices in southern Broward County. Biscayne's service area includes southern Broward County and northern Dade County. Approximately 60 percent of Biscayne's patients are residents of southern Broward County. Biscayne markets its services in southern Broward County. Eighty percent of Biscayne's psychiatric patients are elderly. Many types of psychotic and psychiatric disorders are treated at Biscayne. Biscayne offers psycho-diagnostic services, crisis stabilization services, shock therapy services, individual therapy services and group therapy services. Biscayne has had difficulty in recruiting qualified staff for its psychiatric unit. Biscayne currently has 4 vacancies for registered nurses, 4 vacancies for mental health assistants and 1 vacancy for an occupational therapist in its psychiatric unit. Biscayne recruits nurses who are certified in mental health nursing. They have not always been successful in finding such nurses. Therefore, Biscayne provides educational programs to help train its nursing staff. These programs are necessary because of the unavailability of experienced nurses for its psychiatric unit. The Petitioner has projected that most of its patients for its proposed psychiatric units will come from southern Broward County, where Biscayne gets approximately 60 percent of its patients. The Petitioner plans to try to convince psychiatrists currently using existing providers, except Hollywood Pavilion, to refer their patients to the proposed psychiatric units. Since Biscayne and the Petitioner share some of the same physicians, it is likely that many of the patients cared-for by the Petitioner will come form Biscayne and other providers in southern Broward County, including Memorial. The loss of patients at Biscayne, if the Petitioner's proposal is approved, will result in a loss of revenue to Biscayne which may affect its ability to provide quality care. Charter was an applicant for a certificate of need to construct a free-standing psychiatric facility in Broward County. In its application Charter sought approval of long-term and short-term psychiatric beds. Charter's application was filed with the Respondent in August of 1983. It was filed for review by the Respondent in a batching cycle which preceded the batching cycle in which the Petitioner's application was filed. In December of 1983, the Respondent proposed to approve Charter's application and authorize a project consisting of 16 short-term adolescent psychiatric beds, 16 long-term adolescent psychiatric beds, 16 long-term substance abuse beds and 12 long-term children's psychiatric beds. The Respondent's proposed approval of Charter's application was challenged. Following an administrative hearing, it was recommended that Charter's application be denied. Final agency action had not been taken as of the commencement of the hearing in this case. Subsequent to the date on which the final hearing of this case commenced, the Respondent issued a Final Order denying Charter's certificate of need application. This Final Order is presently pending on appeal to the First District Court of Appeal. Charter does not have an existing facility offering services similar to those proposed by the Petitioner in Broward County or anywhere near the Petitioner's facility. When the Orders allowing Memorial, Biscayne and Charter to intervene were issued by Hearing Officer Sherrill, Mr. Sherrill determined that if the Intervenor's could prove the facts alleged in their Petition to Intervene they would have standing to participate in this case. Memorial and Biscayne have in fact proved the allegations contained in their Petitions to Intervene. Based upon all of the evidence, it is therefore concluded that Memorial and Biscayne have standing to participate in this proceeding. Both Memorial and Biscayne will probably lose patients to the Petitioner if its proposal is approved resulting in a loss of revenue. This loss could affect quality of care at Memorial and Biscayne. Also, it is possible that both would lose some of their specialized nursing personnel to ;the Petitioner to staff its proposed psychiatric units. Charter has failed to establish that it has standing to participate in this proceeding. The potential injury to Charter is too speculative. II. Rule 10-5.11(25), F.A.C. A. General. Whether a certificate of need for short-term psychiatric beds should be approved for Broward County is to be determined under the provisions of Section 381.494(6)(c), Florida Statutes (1985), and the Respondent's rules promulgated thereunder. In particular, Rule 10-5.11(25), F.A.C., governs this case. Under Rule 10-5.11(25)(c), F.A.C., a favorable determination will "not normally" be given on applications for short-term psychiatric care facilities unless bed need exists under Rule 10-5.11(25)(d), F.A.C. B. Rule 10-5.11(25)(d) , F.A.C. Pursuant to Rule 10-5.11(25)(d)3, F.A.C., bed need is determined 5 years into the future. In this case, the Petitioner filed its application with the Respondent in 1984, seeking approval of additional short-term psychiatric beds for 1989. The Petitioner did not change this position prior to or during the final hearing. Therefore, the planning horizon for purposes of this case is 1989. Under Rule 10-5.11(25)(d)3, F.A.C., bed need is determined by subtracting the number of "existing and approved" beds in the service district from the number of beds for the planning year based upon a ratio of .35 beds per 1,000 population projected for the planning year in the service district. The population projection is to be based on the latest mid-range projections published by the Bureau of Economic and Business Research at the University of Florida. Bed need is determined under the Respondent's rules on a district-wide basis unless the service district has been sub- divided by the Respondent. District 10 has not been subdivided by the Respondent. Therefore, bed need for purposes of this case under Rule 10-5.11(25)(d), F.A.C., is to be determined based upon the population projections for all of Broward County for 1989. The projected population for Broward County for 1989 is 1,228,334 people. Based upon the projected population for Broward County for 1989, there will be a need for 430 short-term psychiatric beds in Broward County in 1989. The evidence at the final hearing proved that there are currently 427 licensed short-term psychiatric beds in Broward County. During the portion of the final hearing held in November of 1985, evidence was offered that proved that there were also 16 approved short-term psychiatric beds for Broward County. These short-term beds were part of the application for the certificate of need sought by Charter. Subsequently, however, a Final Order was issued by the Respondent denying Charter's application. Therefore, the 16 short-term psychiatric beds sought by Charter do not constitute "existing and approved" short-term psychiatric beds in Broward County for purposes of this case. Subsequent to the conclusion of the final hearing in this case, the First District Court of Appeal reversed a Final Order of the Respondent denying an application for a certificate of need for a free-standing 10 -bed psychiatric facility, including 80 additional short-term psychiatric beds, for Broward County. Balsam v. Department of Health and Rehabilitative Services, So.2d (Fla. 1st DCA 1986). As indicated in Finding of Fact 23, Memorial is licensed to operate 74 short-term psychiatric beds. Memorial is in fact operating all 74 of these licensed beds. Memorial filed an application with the Respondent for certificate of need #1953 in October of 1981 in which Memorial indicated that it planned to reduce the number of short-term psychiatric beds it had available by 24 beds. Memorial's certificate of need application involved an expenditure of capital and did not specifically involve an application for a change in bed inventory at Memorial. Memorial also represented that it would reduce the number of its available short-term psychiatric beds by 24 in a bond prospectus it issued in September of 1983. The Respondent approved Memorial's certificate of need application. Despite Memorial's representations that it would reduce its short-term psychiatric bed inventory, the beds are still in use in Broward County. Memorial has no plans to close any beds and the Respondent does not plan to take any action against Memorial to require it to stop using 24 of its short-term psychiatric beds. Hollywood Pavilion is licensed to operate 46 short- term psychiatric beds in Broward County. In 1985, 475 patients were admitted to Hollywood Pavilion and its occupancy rate was 62.3 percent. In fact, Hollywood Pavilion had more admissions than Florida Medical Center had to its psychiatric unit. It therefore appears that other physicians find Hollywood Pavilion acceptable. Hollywood Pavilion is accredited by the Joint Commission on Accreditation of Hospitals. The Petitioner presented the testimony of a few physicians who questioned the quality of care at Hollywood Pavilion. These physicians indicated that they did not use Hollywood Pavilion. At least one of the physicians indicated, however, that he did refer patients to other physicians whom he knew admitted patients to Hollywood Pavilion despite his feeling that the quality of care at Hollywood Pavilion was poor. This action is inconsistent with that physician's opinion as to the lack of quality of care at Hollywood Pavilion. His opinion is therefore rejected. The other physicians' opinions are also rejected because very little evidence was offered in support of their opinions and because of the contrary evidence. Based upon a consideration of all of the evidence concerning the quality of care at Hollywood Pavilion, it is concluded that the Petitioner failed to prove that the 46 short-term psychiatric beds licensed for use and available for use at Hollywood Pavilion should not be counted as existing short- term psychiatric beds in Broward County. Coral Ridge Hospital is licensed to operate 74 short- term psychiatric beds in Broward County. The average length of stay at Coral Ridge Hospital during 1984 and 1985 was almost 80 days. The average length of stay at Coral Ridge Hospital has been in excess of 40 days since 1980 and in excess of 60 days since 1983. The average length of stay at Coral Ridge Hospital is in excess of the average length of stay for which short-term psychiatric beds are to be used under the Respondent's rules. Rule 10-5.11(25)(a), F.A.C., provides that short-term beds are those used for an average length of stay of 30 days or less for adults and 60 days or less for children and adolescents under 18 years of age. Rule 10-5.11(26)(a), F.A.C., provides that long-term beds are those used for an average length of stay of 90 days or more. The psychiatric beds at Coral Ridge Hospital, based upon an average length of stay for all of its beds, falls between the average length of stay for short-term beds and long-term beds. The occupancy rate at Coral Ridge Hospital for 1985 was between 40 percent and 50 percent. Therefore, it is possible that a few patients at Coral Ridge Hospital with a very long length of stay could cause the overall average length of stay of the facility to be as long as it is. Coral Ridge Hospital will probably take short-term psychiatric patients because of its low occupancy rate. Therefore, there are at least 29 to 37 short-term psychiatric beds available for use as short-term psychiatric beds at Coral Ridge Hospital. The Petitioner failed to prove how many of the licensed short-term psychiatric beds at Coral Ridge Hospital are not being used for, and are not available for use by, short-term psychiatric patients in Broward County. It cannot, therefore, be determined how many, if any, of the licensed short-term beds at Coral Ridge Hospital should not be treated as existing short-term psychiatric beds in Broward County. Based upon the foregoing, the 427 licensed short-term psychiatric beds in Broward County should be treated as "existing" beds for purposes of determining the need for short- term psychiatric beds under Rule 10-5.11(25)(d), F.A.C. There is a net need for short-term psychiatric beds in Broward County for 1989 of only 3 additional beds under Rule 10- 5.11(25)(d)3, F.A.C. If the 80 short-term psychiatric beds approved by the First District Court of Appeal in Balsam are taken into account, there will be a surplus of 77 short-term psychiatric beds in Broward County for 1989 under Rule 10- 5.11(25)(d)3, F.A.C. Based upon an application of Rule 10-5.11(25)(d)3, F.A.C., there is no need for the additional 31 short-term psychiatric beds sought by the Petitioner. Rule 10-5.11(25)(d)1, F.A.C., provides that a minimum of .15 beds per 1,000 population should be located in hospitals holding a general license to ensure access to needed services for persons with multiple health problems. Some patients who need psychiatric care also need other medical services which can better be obtained in an acute care hospital. This fact is taken into account by the requirement of Rule 10-5.11(25)(d)1, F.A.C. Based upon the projected population for Broward County in 1989, there should be a minimum of 184-short-term psychiatric beds in hospitals holding a general license in Broward County. There are currently 243 short-term psychiatric beds in hospitals holding a general license in Broward County. Therefore, the standard of Rule 10-5.11(25)(d)1, F.A.C., has been met without approval of the Petitioner's proposal. There is no need for additional short-term psychiatric beds in general hospitals in Broward County for 1989. Rule 10-5.11(25)(d)4, F.A.C., provides that applicants for short-term psychiatric beds must be able to project an occupancy rate of 70 percent for its adult psychiatric beds and 60 percent for its adolescent and children's psychiatric beds in the second year of operation. For the third year of operation, the applicant must be able to project an 80 percent adult occupancy rate and a 70 percent adolescent and children's occupancy rate. The beds sought by the Petitioner will be managed by a professional psychiatric management company: Psychiatric Management Services (hereinafter referred to as "PMS"). PMS is owned by Psychiatric Institutes of America, a subsidiary of National Medical Enterprises. Because of the lack of need for additional short-term psychiatric beds in Broward County, it is doubtful that the Petitioner can achieve its projected occupancy rates as required by Rule 10-5.11(25)(d)4, F.A.C. Rules 10-5.11(25)(d)5 and 6, F.A.C., require that certain occupancy rates normally must have been met in the preceding 12 months before additional short-term psychiatric beds will be approved. The facts do not prove whether the occupancy rates provided by Rule 10-5.11(25)(d)5, F.A.C., have been met because the statistics necessary to make such a determination are not available. The evidence failed to prove that the occupancy rates of Rule 10- 5.11(25)(d)6, F.A.C. have been met. The average occupancy rate for short-term psychiatric beds in Broward County for 1985 was between 64.8 percent and 68.4 percent. Occupancy rates in Broward County for short-term psychiatric beds have not reached 71 percent since 1982. These rates are well below the 75 percent occupancy rate provided for in Rule 10-5.11(25)(d)6, F.A.C. This finding is not refuted by the fact that Florida Medical Center added 59 beds in 1984 and the fact that occupancy rates at most general hospitals exceeded 75 percent in 1985. Based upon the average occupancy rate in Broward County for 1985, there were approximately 100 empty short-term psychiatric beds in Broward County on any day. Rule 10-5.11(25)(d)7, F.A.C. requires that short-term psychiatric services provided at an inpatient psychiatric hospital should have at least 15 designated beds in order to assure specialized staff and services at a reasonable cost. The Petitioner's proposal to add 31 short-term psychiatric beds meets this requirement of the rule. C. Rule 10-5.11(25)(e), F.A.C. Rule 1O-5.11(25)(e)1, F.A.C., requires that an applicant prove that its proposal is consistent with the needs in the community as set out in the Local Health Council plans, local Mental Health District Board plans, State Mental Health Plan and needs assessment data. The Petitioner has failed to meet this requirement. The Petitioner's proposal is inconsistent with the District 10 Local Health Plan, the Florida State Health Plan and State and Local Mental Health Plans. In particular, the Petitioner's proposal is inconsistent with the following: The District 10 Local Health Plan's recommendation that applications not be approved if approval would result in an excess number of beds under the Respondent's bed need methodology; The District 10 Local Health Plan's recommendation concerning occupancy standards for the district (75 percent during the past 12 months); The position of the Florida State Health Plan that inpatient psychiatric services are a setting of last resort; The recommendation of the District 10 Mental Health Plan that alternatives to hospitalization for psychiatric services should be encouraged; and The recommendation of the Florida State Mental Health Plan that less restrictive treatment alternatives should be encouraged. Rule 10-5.11(25)(e)3, F.A.C., requires that applicants indicate the amount of care to be provided to underserved groups. The Petitioner's representations concerning its plans to provide indigent care contained in its application are misleading, in that the Petitioner represented that it would not turn away indigents. At the final hearing, the Petitioner indicated that it will generally provide care to indigents only on an emergency basis. Patients who need indigent care on a non-emergency basis will be referred to Memorial. Also, once an indigent patient who needs emergency care has stabilized, that patient will be transferred to Memorial for care. The Petitioner accepts few Medicaid and indigent patients. During 1985, the Petitioner treated 21 Medicaid patients out of a total of 6,800 patients. Only 1.5 percent of its total revenue was for uncompensated care. During 1984, the Petitioner treated 22 Medicaid patients out of a total of 7,321 patients. Only 1.2 percent of its total gross revenue was for uncompensated care. Memorial is subsidized by tax revenues for providing indigent care, or southern Broward County. Because Memorial provides indigent care, indigent patients are usually referred to Memorial if they do not need emergency care or are transferred to Memorial after they stabilize if they do need emergency care. There are other hospitals in northern Broward County which provide similar indigent care. It is therefore common practice to refer patients to those hospitals. Rule 10-5.11(25)(e)5, F.A.C., provides that development of new short- term psychiatric beds should be through the conversion of underutilized beds in other hospital services. The Petitioner's proposal to convert 31 medical/surgical beds for use as short-term psychiatric beds meets this provision. Rule 10-5.11(25)(e)7, F.A.C., provides that short- term psychiatric services should be available within a maximum travel time of 45 minutes under average travel conditions for at least 90 percent of the service area's population. There is no geographic access problem in Broward County. At least 90 percent of the population of Broward County is within a maximum of 45 minutes driving time under average driving conditions to existing short-term psychiatric services in Broward County. The Petitioner's proposal will not significantly enhance geographic access in Broward County. III. Statutory Criteria. Need for Services. The Respondent has approved two certificates of need authorizing the addition of a total of 135 long-term psychiatric beds for Broward County. The addition of 135 long-term beds probably means that additional short-term beds in Broward County which have been used for patients requiring longer treatment will be available. If the additional long-term beds free up short-term beds, the occupancy rate of short-term psychiatric beds in Broward County would be even less than it has been during the past 12 months, if other things remain equal. Both Memorial and Florida Medical Center have been using short-term psychiatric beds for the care of long-term patients. Once the new long-term psychiatric beds are operational, more short-term psychiatric beds will be available in Broward County. Existing Providers. In addition to the short-term psychiatric beds available at Coral Ridge Hospital and Hollywood Pavilion, short- term psychiatric beds are available at the following existing facilities in the service district: Ft. Lauderdale Hospital: 64 beds Florida Medical Center: 74 beds Imperial Point: 47 beds Broward General Medical Center: 48 beds There is no geographic distribution problem in district 10. Generally, the Petitioner did not prove that existing short-term psychiatric beds in Broward County are not available, efficient, appropriate, accessible, adequate or providing quality of care. The Petitioner also did not prove that existing facilities are over-utilized. No new services are proposed by the Petitioner. The evidence did prove that there is usually a waiting list for short-term psychiatric beds at Memorial and that physicians have resorted to various devices to get their patients into short-term psychiatric beds at Memorial. Specialized adolescent psychiatric services are available in the service district at Ft. Lauderdale Hospital and at Florida Medical Center. Ft. Lauderdale Hospital has 24 short- term psychiatric beds dedicated to the treatment of adolescents. Florida Medical Center has 20 short-term psychiatric beds dedicated to the treatment of adolescents. Broward General Medical Center and Imperial Point also provide children/adolescent services. Treatment for eating disorders is provided and available at Imperial Point and Florida Medical Center. Florida Medical Center solicits patients from all parts of the service district. Geropsychiatric short-term psychiatric beds are available in the service district at Hollywood Pavilion, Imperial Point and Ft. Lauderdale Hospital. Florida Medical Center has a closed adult psychiatric unit and often treats persons over 60 years of age. It also has a 26-bed adult short-term psychiatric unit with 2 specialized treatment programs: one for eating disorders and the other for stress and pain management. The Petitioner has proposed to provide a dedicated geropsychiatric unit to meet the needs of geriatric patients which are different from those of adults generally. Although there are no such dedicated geropsychiatric units in the service district, the Petitioner failed to prove that geriatrics are not receiving adequate care from existing providers. Quality of Care. The Petitioner is accredited by the Joint Commission on Accreditation of Hospitals. The Petitioner has established adequate quality control procedures, including educational programs and a quality assurance department. These quality control procedures will also be used to insure quality of care in the proposed psychiatric units. The psychiatric units will be managed by PMS. PMS specializes in the management of psychiatric units in acute care hospitals. PMS has programs for adolescents and geriatrics. These programs will be available for use in the proposed psychiatric units. PMS also has a large variety of programs, services and specialists available to establish and maintain quality of care at the Petitioner. The Petitioner will be able to provide quality of care. Alternatives. The Petitioner did not prove that available and adequate facilities which may serve as an alternative to the services it is proposing do not exist in Broward County. Economies of Scale. The Petitioner's parent corporation, National Medical Enterprises has purchasing contracts available for use by the Petitioner in purchasing items needed for the proposed psychiatric units. These contracts can result in a reduction of costs for the proposed project. Staff Resources. PMS will help in recruiting staff for the proposed psychiatric units. Recruiting will be done locally but the Petitioner also has the ability to recruit specialized staff on a broader geographic scale. There is a shortage of nursing personnel for psychiatric services in southern Broward County and northern Dade County. Since the Petitioner plans to recruit locally, this could cause existing providers to lose specialized nursing personnel to the Petitioner. If the Petitioner causes vacancies at existing facilities, this could adversely affect quality of care. Financial Feasibility. The total projected cost of the project ($337,169.00) can easily be provided by National Medical Enterprises, the parent corporation of the Petitioner. The Petitioner's financial projections are unrealistic to the extent of the projected utilization and revenue for the proposed psychiatric units. Based upon the projected need of only 3 short-term psychiatric beds (or possibly a surplus of 77 beds) for 1989, the Petitioner's projected utilization and revenue for its proposal is rejected. The Petitioner has proved immediate financial feasibility but has failed to prove the proposal is financially feasible in the long-term. Impact of Proposal. The Petitioner's proposal could adversely effect the costs of providing health services in Broward County. This is especially true in light of the lack of need for additional short-term psychiatric beds in Broward County. Because of the high quality of the services the Petitioner proposes to provide, competition in Broward County could be enhanced and ultimately benefit consumers, if there was a need for the proposed additional beds. If a hospital has an image of being a charity hospital serving the needs of underserved groups, the hospital can experience difficulty in attracting paying patients and have difficulty in getting consumers to accept the high quality of the services of the hospital. Although it is likely that the Petitioner will take paying patients away from Memorial, it is unlikely that the number of patients lost could substantially affect the public's image of Memorial. The effect the Petitioner's proposal will have on Memorial is limited by the fact that the Petitioner is only seeking 31 beds and they are only short-term psychiatric beds. Memorial provides a variety of services and psychiatric services are only a small part of those services. I. Construction. It the Petitioner's proposal is approved, 11,500 square feet on the sixth floor of the Petitioner's hospital will be renovated and converted for use for the two proposed psychiatric units. The renovations can be made quickly. There will be space for 16 beds in a geropsychiatric unit and 15 beds in an adolescent unit. There will be a separate lobby for the psychiatric units and the elevators to the lobby will be strictly controlled. The two units will be separated and adequate security precautions will be taken to keep the two units separate. The ceilings in both units will be modified to insure security. Nurse stations will be provided for both units. Visibility from the nurse stations will be fair. Space is provided for a dayroom for each unit and there will be a class room and four rooms for therapy. These spaces will barely be adequate to meet the various needs of patients. With adequate planning and coordination, patients' needs can be met. There is inadequate space in the proposed facility for physical activities for patients.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the certificate of need application filed by the Petitioner for certificate of need #3372 should be denied. DONE and ENTERED this 15th day of May, 1986, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of May, 1986. COPIES FURNISHED: Michael J. Glazer, Esquire AUSLEY, McMULLEN, McGEHEE, CAROTHERS & PROCTOR Post Office Box 391 Tallahassee, Florida 32302 Lesley Mendelson, Esquire Assistant General Counsel Department of Health and Rehabilitative Services Building One, Suite 407 1323 Winewood Boulevard Tallahassee, Florida 32301 James C. Hauser, Esquire MESSER, VICHERS, CAPARELLO, FRENCH & MADSEN Post Office Box 1876 Tallahassee, Florida 32302 Kenneth G. Oertel, Esquire Eleanor A. Joseph, Esquire OERTEL & HOFFMAN, P.A. Post Office Box 6507 Tallahassee, Florida 32313-6507 Cynthia S. Tunnicliff, Esquire CARLTON, FIELDS, WARD, EMMANUEL SMITH & CUTLER, P.A. Post Office Drawer 190 Tallahassee, Florida 32302 Mr. William Page, Jr. Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue The issues are whether Respondent is guilty of various deficiencies found during surveys of its adult living facility and, if so, the amount of the administrative fines.
Findings Of Fact Pursuant to a license issued by Petitioner, Respondent owns and operates New Horizon, an assisted living facility in Punta Gorda. The license is a standard license. Violeta Sebastian is the owner and president of Respondent and the administrator of the facility. On July 8, 1998, Petitioner conducted a survey of New Horizon. Petitioner's investigator found several residents sitting in the day room when he arrived at the facility between 9:00 a.m. and 9:30 a.m. Resident Number 3, who is very elderly, remained seated in an over-stuffed chair all morning. When staff helped her to the dining room at around 11:30 a.m., the investigator asked to see her buttocks area and found a Stage 2 pressure sore on the coccyx area. Resident Number 3, who was wearing adult briefs, had also urinated on herself at some earlier point in time. Resident Number 3 required the assistance of two staffpersons to get her to stand; she was unable to assist in this process. She also required the assistance of both staffpersons to walk, and she required complete assistance to change her briefs. The records concerning Resident Number 3 revealed nothing about the existence or treatment of a pressure sore or that staff had notified the resident's physician. An aide knew of the pressure sore for three days, but had not informed the administrator nor commenced treatment. The records also revealed that she was admitted to New Horizon on August 28, 1997, and her health assessment was conducted on September 29, 1997, which was 32 days after admission. A Stage 1 pressure sore is a reddened area. A Stage 2 pressure sore is a reddened area with a blister. A Stage 3 pressure sore occurs when the affected area is open to the muscle. A Stage 4 pressure sore is when the affected area is open to the muscle, bone, and tendon. Stage 2 pressure sores are susceptible to infection and may cause a loss of fluids, including protein, around the wound site. The pressure sore on this female resident was about two centimeters wide. As a result of these findings concerning Resident Number 3, Petitioner cited Respondent for Tags A 006, A 401, A 407, A 409, and A 700. Another investigator asked for the most current Radon test. The last Radon test, which the facility passed, was November 16, 1992, which meant that the facility had not been tested in almost five years and eight months. As a result of these findings, Petitioner cited Respondent for Tag A 202. The investigator checked the training records for two of four staffpersons and determined that two employees had not received the two hours' required training in resident behavior and handling abuse, neglect, and exploitation. The administrator thought that they had received the required training, but was unable to produce documentation of training. As a result of these findings, Petitioner cited Respondent for Tag A 504. The investigator checked the training records for four staffpersons and determined that they had not received the required training in assisting residents in the activities of daily living. The administrator said that this was an oversight and would be corrected. As a result of these findings, Petitioner cited Respondent for Tag A 505. The investigator could not determine who was in charge of medications. However, the administrator and one part-time employee were in charge of medications. As a result of these findings, Petitioner cited Respondent for Tag A 602. The investigator found a bottle of milk of magnesia in an unlocked refrigerator and a bag of medications in an unlocked kitchen drawer. As a result of these findings, Petitioner cited Respondent for Tag A 607. The investigator testified as to restraints of a resident found by another investigator in a 1996 survey and found by her in a 1998 complaint investigation. However, her testimony concerning the incident of which she had personal knowledge was vague and provides an insufficient basis on which to fine Respondent. As a result of these findings, Petitioner cited Respondent for Tag A 709. The investigator examined a ledger maintained by Respondent for one resident who was receiving certain federal benefits in the form of a monthly $35 check. Respondent's records do not document that it supplies the resident quarterly with a copy of this accounting, and staff and the administrator admitted to not supplying quarterly statements to the resident. As a result of these findings, Petitioner cited Respondent for Tag A 102. Petitioner did not produce admissible evidence to show that any violations were repeat violations.
Recommendation It is RECOMMENDED that the Agency for Health Care Administration enter a final order imposing an administrative fine against New Horizon's Adult Living, Inc., in the amount of $3000. DONE AND ENTERED this 6th day of April, 1999, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 6th day of April, 1999. COPIES FURNISHED: Ruben J. King-Shaw, Jr., Director Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Paul J. Martin, General Counsel Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Sam Power, Agency Clerk Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Karel Baarslag, Senior Attorney Agency for Health Care Administration State Regional Service Center 2295 Victoria Avenue Fort Myers, Florida 33901 Violeta D. Sebastian Qualified Representative New Horizon's Adult Living Facility 1391 Capricorn Boulevard Punta Gorda, Florida 33983
