Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I make the following relevant factual findings. Petitioner, Stacey Health Care Centers, Inc., is licensed to operate Riverside Care Center, located at 899 Northwest Fourth Street, Miami, Florida, as a nursing home in compliance with Chapter 400, Part I, Florida Statutes, and Chapter 10D-29, Florida Administrative Code. On July 9, 1986, James A. Bavetta, assistant area supervisor, Office of Licensure and Certification, made a visit of Riverside's facility and determined that Ralph Stacey, Jr., the administrator of record, was acting in the capacity of administrator for two facilities, the subject facility and another facility in Kentucky, without having a qualified assistant administrator to act in his absence. (Respondent's Exhibit 1) Ralph L. Stacey Jr., is a licensed nursing home administrator in the States of Ohio, Kentucky and Florida. He has been licensed in Kentucky and Florida since 1974. At the time of Mr. Bavetta's visit and inspection during July, 1986, Ralph Stacey, Jr., was in Cincinnati, Ohio preparing the payroll for Stacey Health Care Centers. During this time period, Ralph Stacey, Jr., served as the administrator for the subject facility, Riverside Care Center, and another facility in Kentucky and did not have a qualified assistant administrator employed to act in his absence. However, once Mr. Bavetta issued his recommendation for sanctions, Petitioner, as part of its plan of correction, has employed a licensed administrator who is presently on staff and serves as Riverside's assistant administrator during the administrator's absence.
Recommendation Based on the foregoing findings of fact and conclusions of lawn it is RECOMMENDED: The Department of Health and Rehabilitative Services enter a Final Order imposing an administrative fine in the amount of One Thousand Dollars ($1,000.00) upon Stacey Health Care Centers- Inc., d/b/a Riverside Care Center, which amount shall be payable to Respondent within thirty (30) days after entry of Respondent's Final Order. RECOMMENDED this 18th day of September, 1987, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 18th day of September, 1987. COPIES FURNISHED: Kenneth S. Handmaker, Esquire MIDDLETON & REUTLINGER 2500 Brown & Williamson Tower Louisville, KY 40202-3410 Leonard T. Helfand, Esquire Office of Licensure and Certification Department of Health and Rehabilitative Services 5190 Northwest 167th Street Miami, Florida 33014 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 R. S. Power, Esquire Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard -Building One, Room 407 Tallahassee, Florida 32399-0700
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, as well as the stipulation of facts "entered into by all parties, the following relevant facts are found: Along with six other applicants, the petitioner, Health Quest Corporation, d/b/a Lake Pointe Woods Health Center, and the respondent, Quality Health Facilities, Inc., d/b/a Sarasota Health Care Center, submitted applications for a Certificate of Need to construct and operate new nursing homes in Sarasota County, In June of 1982, the respondent Department of Health and Rehabilitative Services (HRS) determined to issue the application of Sarasota Health Care Center and deny the remaining seven applications. For the purposes of this proceeding, the parties have stipulated that there is a need for at least a 120-bed skilled and intermediate care nursing home in the Sarasota, Florida area. In November, 1982, respondent HRS adopted Rule 10- 5.11(21) , Florida Administrative Code, which provides a formula methodology for determining the number of nursing home beds needed in areas throughout the State. Briefly summarizing, this formula begins with a bed to population ratio of 27 per thousand population age 65 and over, and then modifies that ratio by applying a poverty ratio calculated for each district. The theoretical bed need ratio established for Sarasota County by this portion of the Rule's formula is 23.2 nursing home beds per thousand elderly population projected three years into the future. The population figures to be utilized in the formula are the latest mid-range projections published by the Bureau of Economic and Business Research (BEBR) at the University of Florida. After determining the theoretical need for nursing home beds in an area, the Rule purports to determine the actual demand for beds by determining the current utilization of licensed community nursing home beds, establishing a current utilization threshold and, if this is satisfied, applying a prospective utilization test too determine the number of beds at any given time. Applying the formula methodology set forth in Rule 10- 5.11(21) to Sarasota County results in a finding that there are currently 807 excess nursing home beds in that County. The need for sheltered nursing home beds within a life care facility are considered separately in Rule 10-5.11(22), Florida Administrative Code. Generally speaking, need is determined on the basis of one nursing home bed for every four residential units in the life care facility. Elderly persons 75 years of age and older utilize nursing homes to a greater extent than those persons between the ages of 65 and 74. Persons under the age of 65, particularly handicapped individuals, also utilize nursing home beds. The formula set forth in Rule 10-5.11(21) does not consider those individuals under the age of 65, and it does not provide a weighted factor for the age 75 and over population. In the past, the BEBR mid-range population projections for Sarasota County, compared with the actual census reached, have been low. Petitioner Health Quest, an Indiana corporation, currently owns and/or operates some 2,400 existing nursing home beds in approximately 13 facilities in Indiana. It holds several Certificates of Need for nursing homes in Florida and construction is under way. Petitioner owns 53 acres of land on the South Tamiami Trail in Sarasota, upon which it is constructing a 474-unit retirement center. It seeks to construct on six of the 53 acres a 120-bed nursing home adjacent to the retirement center. Of the 120 beds, it is proposed that 60 will be for intermediate care and 60 will be for skilled care. The facility will offer ancillary services in the areas of speech, hearing, physical, occupational, and recreational therapy. Thirty-five intermediate care beds would be classified as beds to be used for Medicaid recipients and the facility would be Medicare certified. Retirement center residents will have priority over nursing home beds. The total capital expenditure for the petitioner's proposed nursing home project was estimated in its application to be $3.1 million, with a cost per square foot of $46.29 and a cost per bed of approximately $26,000,00. As of the date of the hearing, the estimated capital expenditure for the petitioner's project as $3.9 million. The respondent Quality Health Facilities, Inc., d/b/a Sarasota Health Care Center (QHF), is a Mississippi corporation and owns nursing homes in Tennessee, North Carolina and Haines City, Florida, the latter site having been opened in August of 1983. It also holds three other outstanding Certificates of Need. QHF proposes to construct a 120-bed nursing home containing intermediate and skilled care beds which will be equally available to all members of the community. It is anticipated that it will have approximately 65 percent Medicaid usage and 5 percent Medicare usage. Though it has not yet selected its site, QHF plans to utilize a four-acre site near the City of Venice in Sarasota County. At the time of the application, the total capital expenditure for QHF's proposed project was estimated to be $2.3 million. Its construction costs were estimated at $1.16 million or $33.14 per square foot. QHF's recently constructed Haines City nursing home facility was completed at a construction cost of $1.22 million, or $31.00, per square foot. The Sarasota County facility will utilize the same basic design as the Haines City facility. At the current time, the cost of construction would be increased by an inflation factor of about ten percent. As of the date of the hearing, the projected capital expenditure for QHF's Sarasota County proposed facility was approximately $2.6 million or about $21,000.00 per bed. The owners of QHF are willing and able to supply the necessary working capital to make the proposed nursing home a viable operation. As depicted by the projected interest and depreciation expenses, the QHF facility will have lower operating expenses than the facility proposed by petitioner, Health Quest. In Sarasota County, there is a direct correlation between high Medicaid utilization and high facility occupancy. The long term financial feasibility of a 120-bed nursing home in Sarasota County is undisputed, as is the availability, quality of care, efficiency, appropriateness, accessibility, extent of utilization and adequacy of like and existing services in the health service area.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the application of Health Quest Corporation d/b/a Lake Pointe Woods Health Care, Inc. for a Certificate of Need to construct a 120-bed nursing home in Sarasota County be DENIED. It is further RECOMMENDED that the application of Quality Health Facilities Inc. d/b/a Sarasota Health Care Center for a Certificate of Need to construct a 120-bed nursing home facility in Sarasota County be GRANTED. Respectfully submitted and entered this 31st Day of October, 1983, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 1983. COPIES FURNISHED: John M. Laird, Esquire 315 West Jefferson Blvd. South Bend, Indiana 46601 John T. C. Low, Esquire Paul L. Gunn, Esquire Low & McMullan 1530 Capital Towers Post Office Box 22966 Jackson, Mississippi 39205 James M. Barclay, Esquire Assistant General Counsel 1317 Winewood Blvd. Suite 256 Tallahassee, Florida 32301 David Pingree, Secretary Department of Health & Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32301
The Issue The issue in this matter is whether the superior nursing home license which Meadowbrook Manor had received should be replaced with a standard license? Meadowbrook Manor contests deficiencies cited during a survey of the facility by the Department of Health and Rehabilitative Services, Office of Licensure and Certification. The facility contends that the deficiencies were not cited according to standard departmental procedures, were cited for circumstances which are not violations of statutes or rules, or should have been waived by the Department, and that it is entitled to a superior license.
Findings Of Fact Meadowbrook Manor is a nursing home located in Dade County, Florida. It received a standard rating after a survey was conducted by the Department of Health and Rehabilitative Services Office of Licensure and Certification which occurred on September 23, 1985, through September 25, 1985. Meadowbrook Manor had between 240 and 245 patients at that time, it is a large nursing home. The Department of Health and Rehabilitative Services performs interdisciplinary surveys annually for the purpose of determining licensure ratings of nursing homes. A facility with a superior rating receives a higher Medicaid reimbursement rate than one with a standard rating. Immediately prior to the survey which gave rise to this dispute, Meadowbrook Manor had a superior rating. The Change Over in Criteria for Determining Superior and Standard Ratings Under the survey protocol in effect when the survey was conducted, a nursing home would obtain a superior rating if (1) it had no more than 20 deficiencies, with fewer than 4 deficiencies among 14 major areas, (2) had no more than 5 deficiencies in each remaining area, (3) had no class 1 or class II deficiencies (i.e., serious deficiencies posing a threat to the safety of clients, Section 400.23(4), Florida Statutes), (4) all deficiencies were corrected within certain time frames set by the Department, and (5) the nursing home met additional criteria outlined in a document entitled Guidelines for Determining Whether a Facility Exceeds Minimum Standards. A new rating system became effective on September 26, 1985, after the Meadowbrook Manor survey was performed but before the report of the survey was compiled, due to the promulgation of Rule 10D-29.128, Florida Administrative Code. Under the new rule a superior nursing home still may have no class I or class II deficiencies, but the number of class III (ordinary) deficiencies would not preclude a superior rating if they were corrected in a timely manner. The facility must be in compliance with all evaluation standards contained in the nursing home licensure survey report. Finally, to determine whether a home is superior, the surveyors utilize a document entitled "Guidelines for Exceeding Minimum Standards", which was published in August or September 1985, which incorporates the requirements of Rule 100-29.128(6)(c), (d) and (e), Florida Administrative Code. The parties stipulated that all deficiencies cited at Meadowbrook Manor as the result of the survey were class III deficiencies and that all deficiencies were corrected in a timely manner. The Survey Report Under the current licensure System prescribed by the amendment to Rule 100-29.128, Florida Administrative Code, the Department uses a protocol entitled "Nursing Home Licensure Survey Report" when annual licensure surveys are conducted. The report contains three hierarchical categories of evaluation. The most general categories are conditions, conditions are made up of more specific sub-units known as standards, and standards are made up of very specific individual factual elements to be evaluated during the survey, which are numbered NH1-NH509. (The NH presumably identifies the elements as nursing home elements.) The first element in each standard is a general element which is used to record whether, based on the findings on individual elements, the standard has been met. When the survey at Meadowbrook Manor occurred, the protocol in use today was not used. A different protocol had been used through September 26, 1985, which also had numbered, discrete elements which were evaluated. While the numbering system for elements to be surveyed changed on September 26, 1985, the substantive criteria embodied in the elements to be reviewed remained essentially the same. Any deficient element which the survey team documented in its survey using the old protocol has an analogous element under the new nursing home licensure survey report now in effect. The presentation at final hearing made by the Department was generally cast in terms of the prior survey protocol and criteria for obtaining a superior rating in effect before September 26, 1985. Based on a motion filed by the facility, a ruling was made at the final hearing that the licensure decision based on the survey information collected on September 23-25, 1985, was being made after the new evaluation System embodied in Rule 100-29.128, Florida Administrative Code, became effective on September 26, 1985, so the new evaluation system applied to the information collected during the survey. Testimony from the survey team members about deficiencies they believe they found was received, and cross-referenced to the numbered elements of the old and new survey system. In this recommended order, the surveyors' findings will be evaluated with reference according to the new system for numbering elements, unless otherwise indicated. HRS Survey Procedures HRS has published a manual setting out policies and procedures which members of survey teams are to follow in conducting licensure and certification surveys. For example, medical records of 10 percent of the patients at a facility are to be reviewed during the survey process. This sample is to be generated through the use of a random number table to provide the surveyors with a random sample. A table of random numbers and instructions for its use is found in the Department's survey manual. If surveyors find minor deficiencies which can be corrected prior to the survey team's exit conference with the facility's staff and the deficiencies are corrected before departure, it is departmental policy that the facility should not be cited for those deficiencies. If a deficiency fits into two or more possible classifications, it should be treated as a single deficiency to avoid double counting. In order to enhance the ability of surveyors to determine the quality of care provided at the nursing home, rather than assess mere paper compliance with regulatory standards, surveyors conduct interviews with patients. The survey team members are required by departmental policy to discuss their findings during the survey process with the facility's staff so the staff members can direct the survey team to appropriate sources of information or provide appropriate explanations of what team members find during the survey. The survey team members are required by departmental policy to conduct an exit conference with the staff of the facility after they have held, among themselves, a pro-exit conference to discuss the findings of each team member and to ensure that there is agreement among the team members on elements found deficient, i.e., not in compliance with statutory and rule requirements. The survey team leader conducts the exit conference, during which the team leader or team members announce each deficiency so that the staff of the facility will be aware of deficiencies. If deficiencies are found, the Department of Health and Rehabilitative Services resurveys to determine whether the deficiency has been corrected. These resurveys are usually conducted within 90 days. The review of medical records of nursing home patients is an important part of the survey; clinical records and administrative records are also reviewed. The Department's survey handbook prescribes a selection procedure to generate a 10 percent random sample of medical records. See Finding of Fact 10, ante. This obviously is designed to provide a sample which will give the team a reliable overview of the quality of care being provided to residents. Deficiencies in the Survey Process The testimony of the team leader, Mr. Bavetta, established that the proper procedure was not followed to draw the sample of records reviewed by the survey team. Rather than use the random selection procedure found in the handbook, Mr. Bavetta took patient records from each section of the facility, so if there are four wings he would pick records from each wing. While this has intuitive appeal, proper use of the sampling procedure would produce a representative sample. The procedure utilized here did not comply with the Department's own selection criteria, which seriously undermines the ability to generalize about trends at the facility, based on the findings made on the records that team members did review. Five deficiencies found in the report of the team's findings had actually been corrected before the survey team left, or should have been treated as corrected. These include: old NH272, violation relating to the height of storage of items in the pantry; old NH 352, relating to maintenance of moldings, and louvered doors; old NH354, arising from a minor drainage problem in a beauty salon sink; old NH335, dealing with labeling of electrical circuits; and old NH267, relating to flame retarding treatment of paneling in an office which could have been completed before the survey team left, but was briefly delayed because the team used that room for its work and could not have done so due to fumes if the treatment material on hand had been applied while the team was at the facility. With respect to the social services survey, the surveyor did very little patient interviewing (compare Finding of Fact 12, ante), and declined to discuss her findings with the facility's staff (compare Finding of Fact 13, ante). These failures did not significantly affect the surveyor's findings, however. The suggestion by the facility that the survey was scheduled at a time too far in advance of the date Meadowbrook's superior license was to expire is rejected. Although by Departmental practice, surveys may usually take place within one hundred twenty (120) days of licensure expiration, the Department has the authority to survey at any time. Rule 100-29.128(2), provides that the scheduling of annual inspection "shall be at the discretion of the department". Deficiencies Admitted by Meadowbrook Notwithstanding the errors in the generation of the medical records sample, Meadowbrook Manor admitted in the pre-trial stipulation that deficiencies in the following survey elements were found during the survey. As stated in Finding of Fact 6, however, these deficiencies were class III deficiencies which were corrected in a timely manner (numerical references are to survey elements): Condition IV, Dietary Services; Standard (f), Preparation and Food Service; element NH185, requiring that food be prepared by methods that conserve nutritive value, flavor, and far appearance; is of high consumer palatability; is attractively served at the proper temperatures to meet individual needs; and includes consideration of the cultural food preferences of the residents. Since the survey a wholly new food delivery system has been purchased at a cost of $21,000 to ensure that food remains at the appropriate temperature while moving from the kitchen to patient rooms. Element NH190, which is part of the same condition and standard as the preceeding item, which requires an over-bed table be provided whenever residents eat in bed. Additional tables have been purchased so patients do not need to wait for another patient to finish with a table before they may eat in bed. Condition IV, Dietary Services; Standard (g), Sanitary Conditions; element NH195, which requires that sanitarian reports, Food Service Establishment Inspection form number 4023, and any other written reports of inspections by state and local health authorities be maintained on file in the facility for one year from issuance, showing correction of any deficiencies. Condition XII, Physical Environment; standard (a), Fire Prevention, Fire Protection and Life Safety; element NH369, which requires that building service equipment be in accordance with national fire prevention act section 90A, and other applicable sections of the Life Safety Code. All Life Safety violations have been corrected. Condition XII, Physical Environment; standard (a), Fire Prevention, Fire Protection and Life Safety; element NH364, which requires fire alarm systems meeting applicable codes are installed, maintained, and tested as required. These have also been corrected. Although these deficiencies have been admitted, because both parties agree they are class III deficiencies, and agree that they have been timely corrected, these stipulated deficiencies on individual elements are not sufficient in and of themselves to place the facility in violation of any standard. A contrary ruling would be dispositive here, because Rule 100- 29.128(6)(b), Florida Administrative Code, makes clear that to be eligible for superior rating, a facility must be in compliance with all standards (but not necessarily all elements) contained in the nursing home licensure survey report. Deficiencies Relied on by the Department but Contested by Meadowbrook In its proposed recommended order, the Department maintains that the evidence supports findings that the following standards were not met: (1) Condition III, Nursing Services; Standard (b), Charge Nurse, general element 100; (2) Condition IV, Dietary Services; Standard (f), Preparation and Service of Food, general element 183; (3) Condition IX, Social Services; Standard (a), Provision of Services, general element 284; and (4) Condition XII, Physical Environment; Standard (a), Fire Prevention, Fire Protection and Life Safety, general element 355. 1. Nursing Care Under standard 100, which requires that during specific hours of duty, a charge nurse is responsible for the total nursing care of residents, the Department contends the following elements were not met: NH102, which requires that the charge nurse ensure that nursing services are delivered in accordance with the established standards, policies and procedures of the facility; NH109, which requires that nursing care include measurement of basic vital functions including height and weight measurements on all residents, with abnormalities documented in the resident's medical record and reported to the attending physician; NH110, which requires that nursing care include maintenance of adequate hydration; NH122, which requires that each resident's diet is served as prescribed and the resident's food and fluid intake and output is observed; NH128, which requires that nursing services personnel encourage, and when necessary, teach residents to function at their maximum level in appropriate activities of daily living, for as long and to the degree that they are able; NH130, which requires nursing services personnel to encourage and assist residents who are learning to use and adjust to the use of adaptive equipment and prosthetic devices; NH142, which requires a preliminary resident assessment and preliminary care plan be initiated upon admission; and NH143, which requires a comprehensive resident assessment be performed and a comprehensive resident care plan based on the comprehensive assessment be developed and implemented within 14 days of the resident's admission into the facility. NH102 requires the charge nurse to ensure that the facility's own procedures are followed. The survey report criticized the facility for other specific deficiencies discussed below in Findings of Fact 25-28. To count a deficiency under this general heading and also for the specific nursing elements is an example of impermissible double counting. NH109 requires the measurement of basic functions. It is clear that at least 5 residents were not weighed when they should have been, and 1 had lost at least 30 pounds without having the matter referred to the attending physician. Since there apparently was a policy in effect for some time of taking waist measurements for some residents with a tape measure rather than weighing them, and since the resident who lost 30 pounds presented an egregious situation that this should have come to the attention of the physician, I find that the facility did violate NH109. As to element NH110, there were at least two patients with the specific orders to force fluids whose fluid intake and output was not documented. Due to the failure to select the sample in a random fashion is impossible to generalize that this constituted a trend at the facility. These were isolated cases and the deficiency is not sustained. With respect to NH128, the absence of handrolls for patients with contracted hands to assist them in keeping their hands in a functional position, there is insufficient evidence that what was observed was anything other than an isolated incident. With respect to NH130, the absence of special cups or self grooming devices, the testimony of Mr. Biondi that these were available at the time the survey was conducted is accepted. The surveyors also noted that, with respect to initial nursing care plans, plans were being drawn up within 96 hours of the resident's arrival at the facility, but criticized the plans because they included goals for fewer than all of the resident's needs. There was also criticism that in approximately 8 cases patients with problems such as decubitus did not have those problems integrated later into their comprehensive care plan. Due to the failure of the team to draw a random sample, there is not persuasive evidence that comprehensive care plans were not being properly evaluated. The findings in the survey of deficiencies with respect to elements NH142 and NH143, which deal with the initial care plans and comprehensive care plans, are not sustained. It is also significant that, in its proposed recommended order, the Department of Health and Rehabilitative Services maintains that standard 100 (which relates to the duty of a charge nurse) had not been met due to the survey of deficiencies in elements 102, 109, 110, 122, 128, 130, 142 and 143. The only element which actually falls under the standard with respect to the duties of the charge nurse is element NH102 (old element NH75). All other elements fall under different standards. I cannot conclude that element NH102 was deficient and therefore reject the contention that the standard with respect to the charge nurse was not met. The deficiency in element NH109 i not sufficient to support a violation of the standard in which it is contained, Condition III, Nursing Services, Standard (d), Nursing Care. 2. Food Service The same problem of misapplication of elements to appropriate standards appears with respect to the contention made by the Department in its proposed recommended order that Condition IV, Dietary Services, standard (f), Preparation and Service of Food (general element 183), was not met. The Department relies on deficiencies for elements NH177, NH178, NH185, NH188, NH190 and NH193, to support its contention that that standard was deficient. Elements NH177 and NH178 relate to a wholly different standard (standard (e), Menus and Nutritional Adequacy). Element NH193 is a broad element relating to standard (g), Sanitary Conditions, which requires compliance with Chapter 100-13, Florida Administrative Code, pertaining to food service. None of these five elements therefore are relevant to the contention that Standard (f) for preparation of service and food was not met. With respect to the relevant elements, the evidence fails to support the contention that sufficient eating utensils and dinnerware were not available in an amount for each resident; the survey deficiency with respect to element NH188 is not sustained. With respect to element NH190, there were not sufficient overbed tables for all residents who eat at their beds to eat simultaneously. This was one of the stipulated deficiencies. See Finding of Fact 20(b), ante. It is not sufficient to support a finding that the standard encompassing that element was not met, however. 3. Social Services As to the contention that Condition IX, Social Services, Standard (a), Provision of Services, element NH286 was deficient, there is persuasive evidence that social services are provided to residents to assist them in adjusting to the effects of their illnesses or disabilities. Moreover, the social service surveyor relied in part on her analysis of four of ten records which she reviewed to provide the basis for the deficiency. Due to the inadequacy in gathering the sample, this is not persuasive evidence of a trend showing that the facility failed to provide required social services; the testimony of the Meadowbrook's social service director in opposition to the deficiency is credible and accepted. With respect to element NH321 concerning the activity component of residents' care plans, the instances which gave rise to this survey deficiency were drawn from an inadequate sample, and the testimony concerning the efforts the social service director at the facility makes to identify therapeutic recreational activities contributing to the residents' well being was persuasive, and has been accepted. The facility met Condition IX, Social Services; Standard (a), with respect to the provision of services. 4. Fire Prevention, Fire Protection and Life Safety On the deficiency cited for element NH356, that the building's construction did not comply with applicable codes and standards, the maintenance workshop, which had existed for a number of years, did not comply with the fire safety code. Yet the Department had never cited this as a deficiency over the years; including last year when the facility received its superior rating. The workshop was removed the next day after this deficiency was pointed out. The deficiency for NH357 cited due to the wood paneling in the facility's office not having been properly flame-spread rated, is not accepted; it had existed during past surveys without criticism, and the facility treated the paneling immediately after this was pointed out. See also the discussion of this deficiency in Finding of Fact 17, ante. With regard to the inaccessibility of a tamper switch, I find the maintenance supervisor was able to locate the switch, and that the lock on the switch is one of the options which may be used to satisfy fire code requirements; NH367 was not deficient. The problems with the smoke detection system in the west section of the building, where the smoke detectors did not function is a more serious problem, and the fact that those detectors did not work sustains the deficiency for element NH 359. Similarly, the removal of smoke detectors from the west wing and the absence of fire dampers in the air conditioning system which would have isolated smoke in a given wing had their been a fire sustains the deficiency for element NH369. There was also a problem with the fire alarm annunciator panel, which was locked in a closet. That panel shows the zone of the facility in which a fire has occurred, and also indicates whether the power is on, and the fire and smoke detectors are operating. Being locked in the closet, it could not perform its function because it could not be observed from a nurse's station. The annunciator panel must be monitored from a 24-hour attended location, such as a nursing station. There was a violation of NH364. The facility installed a new panel by the nurse's station, at a cost of approximately $12,000. There was also a violation of NH360 because the kitchen doors did not have an automatic latch. This is important in order to segregate the kitchen in the event of a fire in order to control the spread of smoke. This has been corrected. All of these Life Safety violations raise the question of whether the facility should fail standard (a) of Condition XII, Physical Environment. The question is a close one, but I do not believe the evidence sustains a finding that the standard was violated. The building had been annually inspected by the Department for a number of years and none of these violations had been pointed out in the past. In addition, the facility had its own Life Safety inspection done four months prior to the Department's inspection, which did not reveal these violations. The quality of that inspection may be subject to question, but the fact that it was done indicates that the facility was making a serious effort to comply with Life Safety requirements. Moreover, the parties stipulated that all of these deficiencies were corrected in a timely manner and that they were category III deficiencies. All things considered, I do not find that the violation of certain elements relating to Life Safety put the facility in violation of Condition XII, standard (a). G. Exceeding Minimum Standards Meadowbrook Manor presented convincing evidence that it is a superior nursing home facility. This evidence included the scrapbook of photographs of its monthly activities for the residents, which resulted in an award for the outstanding number and diversity of the facility's activities. The facility has a van equipped with a wheelchair lift which is used to take residents on frequent trips, the facility has a lady's club and a men's club, a happy hour every week, weekly parties and monthly theme parties, art classes, sing-alongs, exercise classes and a monthly newsletter to inform residents of the activities available. Meadowbrook also has an extensive volunteer program. The physical environment is attractive. Since 1983 approximately $800,000 has been spent on renovations of the building. With respect to resident choice, the facility provides residents with choices of sleeping and waking hours, their dress, the manner in which they are addressed by staff, choice of staff members to work with them, choice of rooms to the extent possible, choice of treatment schedules, choice of entrees for meals, choice of meal partners. The facility has a resident's council which meets regularly with the staff. The institution also has ongoing education programs, a staff nurse educator, continuing education programs in-house for the staff, and the facility has a policy to pay for employees to attend outside educational seminars. Staffing ratios exceed the minimum required in all areas. The staff turnover is low at the facility. Meadowbrook also has a system to notify physicians who do not visit patients. Numerous consultants work with the facility, including a social work consultant, Kay Kuge, a pharmacy consultant, Joseph Klalo, a consulting dietician, Angela Fernandez, a speech therapist consultant, an occupational therapist consultant, and a full-time activities coordinator. The facility has an in-house physical therapy department which includes a full-time physical therapist and several therapy aides.
Recommendation Based on the foregoing, it is RECOMMENDED: That the superior nursing home rating which Meadowbrook Manor had received BE CONTINUED. DONE AND ORDERED this 23rd day of February, 1987, in Tallahassee, Florida. WILLIAM R. DORSEY, JR. 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 23rd day of February, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-0932 The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes (1985), on the proposed findings of fact submitted by the parties. Rulings on Proposed Findings of Fact Submitted by Petitioner Covered in the statement of the issues. Sentences 1 and 2 covered in Finding of Fact 2. Sentence 3 covered in Finding of Fact 37. Sentence 4 covered in Findings of Fact 20(a) and 33. Sentences 6- 8 rejected as unnecessary. Sentence 9 covered in Finding of Fact 35. Sentences 1 and 2 covered in Finding of Fact 3. The remainder rejected as unnecessary. Sentence 1 covered in Finding of Fact 1. Sentences 2-4 rejected as unnecessary. Sentence 5 covered in Finding of Fact 9. Rejected as unnecessary and irrelevant. Covered in Finding of Fact 4. Covered in Finding of Fact 5. Covered in Finding of Fact 9. Covered in Finding of Fact 6. Covered in Finding of Fact 6. Rejected as unnecessary. 12(a). Covered in Finding of Fact 10. 12(b). Covered in Finding of Fact 11. 12(c). Covered in Finding of Fact 11. 12(d). Covered in Finding of Fact 12. 12(e). Covered in Finding of Fact 13. 12(f). Covered in Finding of Fact 14. 12(g). Covered in Finding of Fact 14. 12(h). Rejected for the reasons stated in Finding of Fact 19. 12(i). Covered in Finding of Fact 14. 13(a). Rejected as unnecessary. 13(b). Rejected as unnecessary. 13(c). Covered in Finding of Fact 24. 13(d). Covered in Finding of Fact 24. 13(e). To the extent appropriate, covered in Finding of Fact 20(a). 13(f). Rejected as unnecessary. 13(g). Covered in Finding of Fact 25. 14(a). Covered in Finding of Fact 16, to the extent appropriate. 14(b). Covered in Findings of Fact 16 and 30. 15(a). Covered in Finding of Fact 17. 15(b). Covered in Finding of Fact 17. 15(c). Covered in Finding of Fact 17. 15(d). Covered in Finding of Fact 17. 15(e). Covered in Finding of Fact 17. 16. Covered in Finding of Fact 24. 17(a). Covered in Finding of Fact 18. 17(b). Covered in Finding of Fact 18. 17(c). Covered in Finding of Fact 18. Covered in Findings of Fact 14 and 18. Rejected as unnecessary. 21 at page 11. Rejected as unnecessary. Rejected for the reasons stated in Finding of Fact 19. 21(a) at page 12. Rejected as unnecessary. 21(b). Covered in Finding of Fact 24. 21(c). Covered in Findings of Fact 24 and 25. 21(d). Covered in Finding of Fact 24. 21(e). Covered in Finding of Fact 20(a). 21(f). Covered in Finding of Fact 26. 21(g). Covered in Finding of Fact 26. 21(h). Covered in Finding of Fact 27. 21(i). Rejected as unnecessary. 21(j). Covered in Finding of Fact 29. 21(k). Covered in Findings of Fact 20(b) and 29. 21(1). Covered in Finding of Fact 24. 21(m). Covered in Finding of Fact 31. 21(n). Covered in Finding of Fact 31. 21(o). Covered in Finding of Fact 33. Covered in Finding of Fact 4. Covered in Finding of Fact 6. 24(a). Covered in Finding of Fact 36. 24(b). Covered in Finding of Fact 36. 24(c). Covered in Finding of Fact 37. 24(d). Covered in Finding of Fact 37. 24(e). Covered in Finding of Fact 37. 24(f). Covered in Finding of Fact 38. 24(g). Covered in Finding of Fact 40. 24(h). Rejected as irrelevant and unnecessary. 24(i). Covered in Finding of Fact 41. 24(j). Covered in Finding of Fact 43. 24(k). Covered in Finding of Fact 44. 24(1). Covered in Finding of Fact 39. 24(m). Covered in Finding of Fact 42. 24(n). Covered in Finding of Fact 37. 24(o). Rejected as cumulative to Finding of Fact 41. 24(p). Covered in Finding of Fact 45. Rejected as argument. Rejected as argument. Rejected as argument, the inference of bias against the facility is specifically rejected. Rejected as unnecessary, irrelevant, and not sustained by the evidence. Whatever errors the surveyors made, I specifically reject the argument that a standard rating was given because of a dispute between Mr. Biondi at Meadowbrook and Mr. Dykes of the Office of the Licensure and Certification. Rejected for the reasons stated in the preceding paragraph. Generally accepted in the Conclusions of Law. Rulings on Proposed Findings of Fact Submitted by Respondent Covered in the statement of the issues. Covered in Finding of Fact 2. Covered in Finding of Fact 3. Covered in Finding of Fact 1. Covered in Finding of Fact 4. Covered in Finding of Fact 5. Covered in Finding of Fact 9. Covered in Findings of Fact 4 and 6. Covered in Finding of Fact 6. 10(a). Rejected for the reasons stated in Findings of Fact 10 and 16. 10(b). Covered in Finding of Fact 11. 10(c). Covered in Finding of Fact 12. 10(d). Covered in Finding of Fact 13. 10(e). Covered in Finding of Fact 14. 10(f). Covered in Finding of Fact 14. Nursing Care: (a). Covered in Finding of Fact 24. Covered in Finding of Fact 25. Covered in Finding of Fact 24. Covered in Finding of Fact 26. Covered in Finding of Fact 26. Covered in Finding of Fact 27. Covered in Finding of Fact 27. Dietary: (a). Covered in Finding of Fact 29. Covered in Findings of Fact 20(a) and 29. Rejected for the reasons stated in Finding of Fact 29. Covered in Findings of Fact 20(b) and 29. Rejected for the reasons stated in Finding of Fact 29. Social Services: (a). Rejected for the reasons stated in Finding of Fact 30. Rejected for the reasons stated in Finding of Fact 30. Life Safety: (a). Rejected for the reasons stated in Finding of Fact 31. Accepted for the reasons stated in Finding of Fact 32. Rejected for the reasons stated in Findings of Fact 17 and 31. Rejected for the reasons stated in Finding of Fact 31. Accepted in Finding of Fact 33. Accepted in Finding of Fact 32. Accepted in Finding of Fact 34. COPIES FURNISHED: Nancy Schleifer, Esquire 29th and 30th Floors, AmeriFirst Building One Southeast Third Avenue Miami, Florida 33131 Dennis Berger, Esquire Office of Licensure and Certification 5190 N.W. 167th Street, Suite 210 North Miami, Florida 33014 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Enoch Jon Whitney, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue presented for determination herein is whether or not F.A.C. Health Care, Inc., d/b/a Spring Hill Health Facility (Petitioner) is entitled to a Certificate of Need to establish a 60-bed nursing home to serve Hernando County.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at hearing, including the pre-hearing stipulation, the following relevant facts are found. F.A.C. Health Care, Inc. is a wholly-owned subsidiary of First American Corporation. First American Corporation has owned, operated and developed approximately 75 long-term care and retirement facilities over the past 15 years. These operations are primarily located in the southeastern United States. At present, First American Corporation operates 20 facilities and has seven Certificates of Need in the developmental stages. (TR. 35, Fulmer) On January 14, 1984, Petitioner filed an application with the Respondent for a Certificate of Need to construct and operate a community nursing home in the City of Spring Hill in Hernando County, at a total cost of $3,180,000. (Petitioner's Exhibit 1) The letter of denial accompanying the state agency action report dated April 30, 1984, noted the basis for denial as follows: Existing and approved bed capacity in Citrus/Hernando Counties is sufficient to satisfy projected need for 1986. There are 60 nursing home beds that have been approved but have not been constructed at the present time, which, when added to the existing nursing home bed supply in Citrus/Hernando Counties, will serve to satisfy a portion of the projected need for skilled nursing home beds in the sub-district through 1986. The proposed 120 beds are in excess of the 37 beds needed to reduce the prospective base utilization rate to a reasonable level by 1986. (TR. 36, Fulmer; Petitioner's Exhibit 2) On September 26, 1984, Petitioner amended its original application to reflect a reduction from 120 to 60 nursing home beds. Documents reflecting the corresponding reduction in project costs from 53,180,000 to 51,780,000 were submitted with the amended proposal. (Petitioner's Exhibit 3) FINANCIAL FEASIBILITY OF THE PROPOSED SPRING HILL FACILITY The immediate and long-term financial feasibility of a project is one criteria considered during the Certificate of Need review process. Section 381.494(6)(c)9., Florida Statutes. The total cost of the project of 51,780,000 appears reasonable and in line with similar projects. Funds for full 100 per cent financing of the project are available through industrial revenue bonds at 14 per cent interest over 30 years. In order to acquire an industrial revenue bond application, Petitioner would maintain a $150.000 debt service reserve fund. (Petitioner's Exhibit 3) Other methods of financing available to finance the subject project include conventional financing, syndicated equity programs and insurance investment programs. (Testimony of Fulmer at TR. 39-40) Due to the largely rural setting, projected utilization for the first year would be 81 per cent Medicaid, 5 per cent Medicare and 14 per cent private pay. Occupancy is projected to reach 97 per cent by the fifth full month of operation and would be supported in part by the increased utilization of nursing home beds as a direct result of the implementation of diagnostic related groupings. Pro forma statements for the first and second years of operation show a net operating profit beginning in the ninth month and continuing through the second year. The equipment costs, staffing patterns and personnel budget also appear reasonable for this type of project. METHODS AND CONSTRUCTION COSTS Another issue in this proceeding was whether Spring Hill satisfied the criteria in Section 381.494(6)(c)13., Florida Statutes, regarding the cost and methods of construction. Spring Hill's proposed facility will provide 11,981 square feet devoted to patient care and 9,710 square feet for administrative and common service areas at a construction cost of $41.50 per square foot. (Petitioner's Exhibit 3) Proposed construction costs and methods of construction efficiently minimize square footage space requirements and related construction costs and will permit the most efficient operation of the facility at a low per diem cost. The construction cost appears reasonable and is also supportive of a primarily Medicaid based facility. Finally, Respondent offered no evidence to controvert the reasonableness of construction costs and methods proposed by Petitioner. IMPACT ON HEALTH CARE COSTS Section 381.494(6)(c)12., Florida Statutes provides that as part of the Certificate of Need review, probable impact of the proposed project on the cost of providing health care services be considered. Petitioner's expert, Fulmer, urges that there would either be no impact on the cost of care or due to the availability of additional Medicaid beds, costs would be reduced since the private pay demands of family and relatives having to pay for the care of an individual rather than participating in the Medicaid program would reduce the costs of health care to the community rather than increase the financial burden. In this regard, Petitioner offered no evidence to substantiate the claim that the demand for Medicaid beds exceeded the supply, or that Medicaid patients had been refused health services by the available Medicaid health care providers. AVAILABILITY AND ACCESSIBILITY OF EXISTING SERVICES Hernando County lies within HRS District III which is composed of 16 counties in north-central Florida, stretching from the Gulf of Mexico north of Tampa to the Georgia border. (Petitioner's Exhibit 6) The District is further divided into sub-districts. Hernando County represents a separate sub-district. Petitioner's facility is proposed to be located in the City of Spring Hill, located in the fastest growing area of Hernando County. (Petitioner's Exhibits 1 and 2) The latest bulletin (No. 69) from the University of Florida, Bureau of Economic and Business Research, shows a 90 per cent projected growth between 1980 and 1990. Much of the population in the Spring Hill area falls in the 65 and older age bracket. County age group projections released by HRS on September 24, 1984, reveal that the elderly population of 65 and over in Hernando County in 1985 is projected as 17,616, or approximately 27 per cent of total population. By 1990, those projections will grow to 24,887 or approximately 29 per cent of total population. (Respondent's Exhibit 2) The growth trend in Hernando County is an extension of the rapid coastline development occurring in the New Port Richey- Clearwater areas and the counties to the south of Hernando. Previously, the only major development in Hernando County was centered in Brooksville, the middle of the county. Consequently, the existing community nursing home services in Hernando County are concentrated in the Brooksville area. Although Petitioner, through its expert (Konrad) testified that there is a mal-distribution of existing beds and community nursing home services which renders them neither available nor accessible to the rapidly growing elderly population in the southwestern Hernando County corridor and that high occupancy rates in existing community nursing homes in the area and the existence of waiting lists corroborates the lack of availability and accessibility of community nursing home services in the area, the evidence introduced herein failed to establish either the existence of waiting lists or that the existing community nursing homes in the area were overcrowded. SHELTERED VERSUS COMMUNITY NURSING HOME BEDS Petitioner contends that certain nursing home beds associated with the adult congregate living facility at Evergreen Woods in the Spring Hill area are not actually available and accessible to the general public but instead are functioning as sheltered nursing home beds. Respondent, on the other hand, considers the 60 nursing home beds associated with Evergreen Woods to be available and accessible to the general public. A review of the entire record compiled herein failed to substantiate Petitioner's claim that those beds at Evergreen Woods are unavailable and/or inaccessible to the general public. DETERMINATION OF NEED, SECTION 381.494(6)(c)1., FLORIDA STATUTES. In determining need for nursing home beds, a Certificate of Need project is reviewed on a 3-year planning horizon. In this case, predicted need for nursing home beds in District III and the sub-district of Hernando County is calculated through 1987. Hernando County is a single county sub-district located within in HRS planning District III in north central Florida. HRS has determined the overall nursing home bed need for District III as well as sub-district allocations by applying the uniform nursing home bed need methodology for community nursing home services contained in Florida Administrative Code Rule 10- 5.11(21). (Petitioner's Exhibit 5) Respondent provided a step-by-step application of the community nursing home bed need rule and introduced their exhibits supporting the calculation period (Testimony of expert medical facilities consultant, R. Jaffe and Respondent's Exhibits 1 and 2). Briefly stated, application of the pertinent rules reveals an extrapolated need for 31 beds which are available for CON approval based on data available to Respondent on June 29, 1984 and that 36 beds are available based on later data released on September 24, 1984. (TR. 91, Conrad; TR. 130, Jaffe and Petitioner's Exhibit 6) The census report applicable herein reflects that there were 360 licensed beds in the Hernando sub-districts and no approved beds for a total of 360 beds. 2/ Application of the nursing home bed need methodology is not the sole factor used in determining whether a CON application should be granted. Other factors, such as access, high occupancy rates, chronically underserved population and high Medicaid utilization are definite factors in approval of additional beds in cases where the rule shows either no need or only slight need. Respondent has, on several occasions, granted 60-bed applications where accessibility issues justified the grant of a minimum-sized facility in spite of the lesser numerical need indicated under the rules. 3/ Petitioner referred to instances wherein Respondent had granted approval for CON's in other districts where there were unusual circumstances such as accessibility issues as referred to herein above. A review of those cases reveals that a departure from the usual bed-need methodology is warranted in cases of extremely high occupancy rates (95 per cent or higher) or the facilities with lower occupancy rates, e.g. 85.7 per cent for homes in Sarasota County, which were located in inaccessible distances away from the population concentration. Petitioner has not demonstrated sufficient basis herein to warrant a departure from the usual bed need rule methodology. The instances wherein a departure from the usual bed need rule methodology has occurred are distinguishable, inasmuch as in the instant case, there are three existing facilities presently in Hernando County offering 360 nursing home beds. Current occupancy rate has been shown to be reasonable and is standing at or below average for District III. Additionally, Respondent introduced a "Stipulation of Settlement" dated September 28, 1984 which was entered into by and between Evergreen Woods Health Care Center and Respondent. The substance of that stipulation reveals that during October of 1983, Evergreen Woods Health Care Center (EWHCC) as Petitioner, filed an application with Respondent for a Certificate of Need to add 60 beds to its existing 60-bed nursing home located in Spring Hill, Hernando County, Florida. The application sought 45 community beds and 15 sheltered beds. As a means of amicably resolving that proceeding and based on available need data based on applicable quarterly census reports and application of the need criteria, EWHCC, as Petitioner in that proceeding, amended its Certificate of Need application filed October, 1983, to add a total of 60 beds to its existing facility; 31 beds to be designated as community beds and 29 to be designated as sheltered beds. A review of the public records reveal that the Certificate of Need has been issued (amended CON No. 2959 issued early October, 1984) pursuant to that stipulation of settlement. 4/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that: The application of First American Corporation d/b/a Spring Hill Health Facility for establishment of a 60-bed nursing home facility in Hernando County, Florida, be DENIED. RECOMMENDED this 14th day of February, 1985, in Tallahassee, Florida. JAMES E. BRADWELL 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 14th day of February, 1985.
The Issue Whether petitioner has two years' practical experience in nursing home administration within the meaning of Section 468.1695(2)(c)3., Florida Statutes (1987) and Rule 21Z-11.008, Florida Administrative Code?
Findings Of Fact Westminster Oaks, a "retirement village" or "continuing care facility" in Tallahassee, has a clinic, a 60-bed nursing home, an adult congregate living facility and 150 "independent living" units for older people, who are guaranteed nursing home beds, if needed, as their independence ebbs. Before Donald Long began as Westminster Oaks' administrator on December 1, 1986, the position had gone unfilled for two years. By the time he arrived, petitioner Sandra Kelly, formerly director of nursing at Westminster Oaks, had become director of health care services, for the express purpose of gaining the experience necessary to sit for the nursing home administrator licensure examination. She was following in the footsteps of Sue Reeder and five other trainees, of whom three -- all who have finished the program -- have been permitted to sit for the exam from which respondent proposes to bar her. On August 1, 1986, Ms. Kelly assumed supervisory responsibility for the Health Center, which included the nursing home. As director of health care services, she was responsible not only for the nursing home, but also for the clinic and the adult congregate living facility with its 34 places. (All but six were filled at the time of hearing.) The clinic at Westminster Oaks monitors independent residents' blood pressures, and administers B-12 injections, but does not provide home health services. After Sue Reeder left in January of 1988, she was also called upon as needed to manage the resident services department, along with operations of the business office, and the dietary and housekeeping department that related to residents of the independent living units. Even her work in marketing related to the nursing home. Even when called upon to help in other areas, she was not relieved of responsibility for the nursing home, which she had effective charge of at least 95 percent and perhaps 100 per cent of the time. (Testimony of Long) Besides having overall charge, she rotated through each department in the nursing home, managing it; or, as in the case of the housekeeping department which served not only the nursing home but also other facilities in the complex, managing operations as they related to the nursing home. In addition to her nursing home duties, she spent 15 to 20 minutes a day at the adult congregate living facility, more on days when new residents were admitted. She made rounds at the adult congregate living facility quarterly, and accompanied inspectors from the Department of Health and Rehabilitative Services when they inspected. She also met with the clinic nurse three times weekly for fifteen minutes a visit. As director of health care services, she has devoted the overwhelming majority of her time to the nursing home. She has had complete and uninterrupted charge of the nursing home's social services and activities departments, and personally hired the activities director. She also hired a medical records consultant, and oversaw putting the medical records in order for inspection by the Department of Health and Rehabilitative Services. Although she did not hire or fire otherwise, leaving that to department heads, she had the right to do so. At the time of the hearing, she had spent more than 27 months as director of health care services. Although she also devoted some of her time to the adult congregate living facility, and to the clinic, she spent more than two "working years" on nursing home administration, aside from time devoted to the adult congregate living facility and the clinic. As de facto administrator of Westminster Oaks' nursing home, under Mr. Long's supervision, she planned for and helped organize, direct and control all nursing home departments, including social services, and, insofar as they pertained to the nursing home, the nursing, dietary, housekeeping, administration and maintenance departments.
The Issue Whether Respondent, a licensed practical nurse, committed the offenses alleged in the Administrative Complaint and, if so, the penalties that should be imposed.
Findings Of Fact Petitioner is the agency of the State of Florida charged with regulating the practice of nursing pursuant to Section 20.42, Chapter 455, and Chapter 464, Florida Statutes. Respondent is a licensed practical nurse in the State of Florida, having been issued license number PN 1091251. Laposada Convalescent Home, is a 54-bed nursing home located in Miami, Florida. At the times pertinent to this proceeding, Respondent was employed as a licensed practical nurse by Laposada, Teresita Garcia was a part owner and manager of Laposada, Angela Barba was the nursing home administrator for Laposada, and Prima Washington was employed as a certified nursing assistant by Laposada. Respondent expected to receive her first paycheck as an employee of Laposada on January 15, 1994. Respondent's understanding was that she was to be compensated at the rate of $11.75 per hour. Respondent tried to obtain her paycheck during the afternoon hours on January 15, 1994. She talked to Ms. Garcia by telephone twice that afternoon and made a special trip to the facility that afternoon with the expectation that her check would be ready for her to pick up. When she came to the facility, her check was not ready and Ms. Garcia was not on the premises. Respondent was told that her check would be ready for her when she came on duty. Respondent was assigned to the night shift that began at approximately 11:00 p.m. on Saturday, January 15, 1994, and ended at 7:00 a.m. on Sunday, January 16, 1994. Respondent was the only licensed nurse assigned to the night shift. The two other employees assigned to the night shift were Prima Washington and another certified nursing assistant. Respondent returned to the facility and clocked in for the night shift at approximately 10:45 p.m. on January 15, 1994. She arrived early to pick up her paycheck and to review the patient reports with staff from the outgoing shift. After she clocked in, she received her paycheck. Respondent's pay was calculated on a rate of $7.00 per hour, not on the rate of $11.75 per hour that she had expected. Respondent became upset when she discovered this discrepancy in pay and called Ms. Garcia at her home at approximately 10:50 p.m. Respondent advised Ms. Garcia that she wanted the discrepancy straightened out immediately. After Ms. Garcia stated that the matter could not be resolved until Monday, Respondent advised that she was quitting her employment and demanded that Ms. Garcia locate a replacement for her. Ms. Garcia made several telephone calls in an attempt to find a replacement for the Respondent, but she could not locate a qualified replacement for Respondent on that Saturday night. The nursing home administrator, Angela Barba, is Ms. Garcia's daughter and resides with Ms. Garcia. Ms. Barba was aware of the conversations Ms. Garcia had with Respondent. Their residence is near Laposada so that they could reach the facility in a matter of minutes. Ms. Garcia instructed Prima Washington by telephone to inform her immediately if Respondent left the facility. Respondent clocked out of the facility at 11:30 p.m. At the time she clocked out, there was no other qualified nurse at the facility. Some of the patients at Laposada were scheduled to take medication at midnight. After Respondent clocked out, there was no one at the facility authorized to administer medication to these patients at midnight. After she clocked out, Respondent called 911 and went outside of the building to await the arrival of the police. It is not clear what Respondent expected the police to do once they arrived. Respondent also attempted to contact the abuse registry to advise the Department of Health and Rehabilitative Services (DHRS) as to the situation at Laposada. It is not clear what Respondent expected to accomplish by contacting DHRS, but she received a recorded message to call back during work hours. There was no evidence that DHRS became involved in this incident. The door Respondent used to exit the facility locks automatically. Consequently, once Respondent went outside of the building, she was locked out of the facility. Prima Washington thought that Respondent had left the premises and gave that information to Ms. Garcia. Respondent remained on the premises, but outside of the building, until Ms. Garcia came to the facility at approximately 2:00 a.m. Ms. Garcia was accompanied by Ms. Barba and by Ms. Barba's husband. When Ms. Garcia and Ms. Barba arrived at the facility, the Respondent left the premises. There was no further communication between Respondent and either Ms. Garcia or Ms. Barba as to the wage dispute, as to the condition of the patients, or as to whether a replacement nurse had been located. Respondent did not perform any duties after she clocked out at 11:30 p.m. She did not file a report as to the condition of her patients before leaving the facility. The patients at Laposada were without a qualified nurse between 11:30 p.m. on January 15, 1994, and 6:00 a.m. on January 16, 1994, when a nurse reported early for the morning shift. Respondent left the facility at approximately 2:00 a.m. before a replacement arrived. The accepted standards of conduct in the nursing profession require that a nurse, who wants to leave patients assigned to her care, wait for a replacement to arrive at the facility, discharge her nursing duties to her patients until the replacement arrives, and report the condition of her patients to her replacement prior to leaving. Respondent failed to meet the foregoing standards of conduct in the nursing profession by abandoning her patients at Laposada. Exceptions to these standards may arise in emergency circumstances. The facts of this case do not establish an emergency that would justify deviation from the accepted standards of conduct. While Respondent may have a bona fide dispute with the management of Laposada as to the rate of compensation she was to receive, that dispute does not constitute an emergency circumstance and does not justify her action in abandoning her patients. There was no evidence that Respondent has been previously disciplined by the Petitioner. There was no evidence that any patient was harmed as a result of Respondent's actions.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order that finds the Respondent guilty of unprofessional conduct in the provision of nursing services as alleged in the Administrative Complaint. It is further recommended that the Petitioner impose an Administrative Fine against Respondent in the amount of $250.00 and place her licensure on probation for a period of one year. The conditions of her probation should require that she complete an appropriate continuing education course dealing with her professional responsibilities for the care of patients. DONE AND ENTERED this 29th day of June, 1995, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 29th day of June, 1995. COPIES FURNISHED: Natalie Duguid, Esquire Agency For Health Care Administration 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Cornelius Shiver, Esquire Post Office Box 1542 Miami, Florida 33233 Judie Ritter, Executive Director Board of Nursing Daniel Building, Room 50 111 East Coastline Drive Jacksonville, Florida 32202 Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32309
Findings Of Fact Petitioner first applied for licensure as a nursing home administrator with the Board on September 21, 1978 and subsequently passed the Nursing Home Administrators Examination on December 12, 1980 but was denied licensure by letter from the Board on March 3, 1981. Upon denial of licensure by the Boards Petitioner timely requested a formal hearing in accordance with Section 120.57(1), Florida Statutes, but on April 23, 1981 Petitioner, by letter to the Hearing Officers withdrew his request for a formal hearing and the file was closed on April 28, 1981 by the Hearing Officer. Petitioner reapplied for licensure as a nursing home administrator on April 20, 1984 and the Board relying on Petitioner's previous passing score did not require Petitioner to retake the examination. The Board again denied Petitioner licensure and by letter dated May 31, 1984 stated as grounds for denial the Petitioner's record as owner of Lakeview Manor Nursing Home and Royal Nursing Home, as more specifically set out in the Board's letter of March 3, 1981. The Board concluded: You are not of good characters as required by Section 468.1685, F.S., and Rule 21Z-11.01, F.A.C. The consistent failure of Lakeview Nursing Home and Royal Nursing Home to show compliance with the law concerning patient trust funds is attributable to you, and is a violation of Section 468.1755(g)(k), and (m), F.S. The consistent pattern of late payment of bills of Royal Nursing Home and Lakeview Manor Nursing Home and the consequent narrow escapes from the termination of utility services and cessation of delivery of food and necessary supplies is attributable to you and is a violation of Section 468.1755(g), (k) and (m), F.S. The pattern of inadequate supplies of cleaning materials, food, and other supplies at Lakeview Nursing Home and Royal Nursing Home is attributable to you and constitutes a violation of Section 468.1755(g)(k) and (m), F.S. Instances of inadequate staffing of nurses at Royal Nursing Home are attributable to you and constitute violations of Section 468.1755(g)(k) and (m), F.S. The failure of Lakeview Manor Nursing Home and Royal Nursing Home to pay administrative fines levied by the Department of Health and Rehabilitative Services is attributable to you and constitutes a violation of Section 468.1755(m), F.S. The failure of Royal Nursing Home to pay unemployment taxes for over one year, which was not remedied until a suit seeking a hiring freeze was imminent, is attributable to you and constitutes a violation of Section 468.1755(g)(k) and (m), F.S. Between the time of Petitioner's application on September 21, 1978 and passing the examination on December 12, 1980, Petitioner had provided the Board with documents and information sufficient for the Board to make a determination as to Petitioner's eligibility for licensure provided he had sufficient experience as a nursing home administrator. Apparently, required information on Petitioner's experience was furnished to the Board at a later date because neither the Board's denial of March 3, 1981 nor May 31, 1984 were based on lack of experience. Background investigations of applicants are part of the application process conducted by the Board. In certifying an applicant for licensure, the Board must consider the applicant's good character and suitability to be an administrator, including ability in financial management and administration, in addition to the qualifications for examination set out in Section 468.1695, Florida Statutes. See Section 468.1685(1)(2)(3), Florida Statutes and Rule 21Z.11.01, Florida Administrative Code. Prior to moving to Florida, Petitioner owned and operated nursing homes in Canada but was not required to be licensed as a nursing home administrator. From 1978 until sometime after filing his application on April 20, 1984, Petitioner was President of V & C Enterprises, Inc. (V&C) which owned and operated Lakeview Manor Nursing Home (Lakeview) during this entire period. V & C was wholly owned by Rose Chadee, Petitioner's mother. V & C surrendered its license to operate Lakeview in early 1985. Petitioner was president and majority stockholder (90 percent) of V & L Nursing Home Services, Inc. (V & L) which owned and operated Royal Nursing Home, a/k/a Palms Nursing Home (Royal/Palms) during 1980-82 but ceased operations of Royal/Palms in 1982 because of financial difficulties. Pursuant to Chapter 400, Florida Statutes and Rules 10D-29, Florida Administrative Code the Department of Health and Rehabilitative Services (HRS) licenses facilities to operate as nursing homes. Such a license is issued to the owner of the home. In accordance with its licensing function, HRS conducts an annual survey of each facility, to determine compliance with Chapter 400, Florida Statutes and Rule 10D-29, Florida Administrative Code. As a total process, HRS looks at: (a) the financial ability of the facility to operate, (b) direct nursing care, (c) dietary, (d) patient's diets (e) supplies needed to meet the needs of the patients, (f) physical plant, (g) housekeeping, (h) maintenance, (i) linens, and (j) infection control practices in the nursing home. At other times, HRS visits the facilities to investigate complaints, for appraisal units based on other agencies' reports, and for other surveillance visits. When deficiencies are noted on any visit, the facility is given an opportunity to correct the deficiency but if the correction is not timely made then the facility is subject to sanctions in the form of an administrative fine, moratorium on admissions or revocation of license. The performance at Lakeview prior to October, 1982 resulted in an increase in the number of visits by HRS to Lakeview and from October 1982 until January 1985 HRS inspected Lakeview weekly to biweekly because of the continuing lack of compliance with HRS rules. As a result of these visits, Lakeview was often cited by HRS for deficiencies during this period. Petitioner was present at Lakeview during some of these visits, and was aware of Lakeview's noncompliance. During 1980-81 administrative complaints were filed against the license of V & L which V & L failed to answer and in at least two (2) instances fines were imposed but never paid. The types of deficiencies cited during the surveys, and which formed the basis of the administrative complaints and sanctions, included problems relating to patient care, maintenance of adequate supplies, infection control procedures, and violations of regulations governing control and accounting of patient trusts funds. During Petitioner's service as president of V & C and V & L there was a great deal of turnover in nursing home administrators of the facilities. There were at least ten administrators within the two year period of 1979 to 1981. As president, Petitioner had the authority to hire and fire administrators. Petitioner sought to control his business. Administrators were "disciplined accordingly" for failure to manage the homes in accordance with how Petitioner felt it should be run. Much of the difficulty encountered by V & C and V & L in the operations of Lakeview and Royal/Palms related to financial management and the availability of funds to adequately operate the homes. There were significant problems relating to the timely payment of creditors. Amounts owing to Peoples Gas System were in a constant arrears status during 1980 and part of 1981. At Lakeview, supplies had to be obtained on a C.O.D. basis. At Royal/Palms, it was the usual situation to have a shortage of supplies and linens and a restricted food service department because of financial constraints. Administrators did not have access to funds to administer the home without the intervention of the corporation and its president, the Petitioner. V & L did not pay unemployment taxes to the State of Florida for the period of October 1979 to December 1980, until February 1981. Other examples of poor financial management are: (a) Patient trust funds were not adequately maintained or accounted for, (b) Payments of Petitioner's personal expenses were made with corporate funds, some of which were included in a cost report of the Royal/Palms for purposes of Medicaid reimbursement. As a result of these financial difficulties- Royal/Palms and Lakeview each ceased operations. Melvin C. Rhodes, a former Administrator of Lakeview found 62 deficiencies assessed against Lakeview when he became administrator in November 1978 but 58 were corrected within 3 weeks and petitioner was credited by Rhodes with hiring him and cooporating with him to correct the deficiencies. During the period in which Lakeview was being closely monitored by HRS, similar inspections were being conducted by the Pinellas County Health Departments Nursing Home Section (PCHD). A Pinellas County ordinance charges the PCHD with the duty to inspect nursing homes for compliance, using HRS standards found in Rule 10D-29, Florida Administrative Code. Like HRS, PCHD cites deficiencies and sets time limits for correction. In the event of a continuing lack of compliance, the administrator or owner is asked to appear at an informal conference to determine guidelines and methods of compliance. Continued failure to comply results in action before the County Health Permit Board, for revocation of the permit. Lakeview and Royal/Palms were inspected on almost a daily basis because of failure to correct deficiencies. The types of deficiencies cited included shortage of necessary supplies, poor housekeeping, shortage of life- saving supplies, and failure to maintain a seven-day emergency food supply. Petitioner attended one such conference as a representative of the management of Lakeview. Petitioner was the person "in charge", to the understanding of the PCHD.
Recommendation Based on the Findings of Fact and Conclusions of Law recited herein, it is RECOMMENDED that the Board enter a final order DENYING Petitioner licensure as a nursing home administrator. Respectfully submitted and entered this 19th day of February, 1986, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9673 Filed with the Clerk of the Division of Administrative Hearings this 19th day of February, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 84-2225 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 parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Petitioner did not number the paragraphs in his Proposed Findings of Fact but for purposes of this Appendix a number has been assigned to each paragraph. Adopted in Finding of Fact No. 1. First sentence adopted in Finding of Fact 4. Second and third sentences adopted in Finding of Fact 5. Fourth and sixth sentences adopted in Finding of Fact 6. Fifth sentence rejected as not supported by substantial competence evidence -- see Petitioner's testimony page 31, lines 16-17 and page 37, lines 11-15. First, second and third sentences adopted in Finding of Fact 17 but clarified. The fourth sentence rejected as immaterial, irrelevant and unnecessary. First and second sentences adopted in Finding of Fact 2. The third and fourth sentences rejected as immaterial, irrelevant and unnecessary. Rejected as not supported by substantial competent evidence. Rulings On Proposed Findings of Fact Submitted by the Respondent Respondent did not number the paragraphs in its Proposed Findings of Fact but for purposes of this Appendix a number has been assigned to each paragraph. Adopted in Finding of Fact No. 1. First sentence adopted in Finding of Fact 4. The second and third sentences adopted in Finding of Fact 5. Fourth sentence adopted in Finding of Fact 6. First sentence adopted in Finding of Fact 6. Second sentence adopted in Finding of Fact 5. Adopted in Finding of Fact No. 7. Adopted in Findings of Fact No. 8 and 9. Adopted in Finding of Fact 10. Adopted in Findings of Fact 10 and 11. Adopted in Finding of Fact 11. Adopted in Finding of Fact 12. Adopted in Finding of Fact 13. Adopted in Finding of Fact 14. Adopted in Finding of Fact 15. First sentence adopted in Finding of Fact 16. Second sentence rejected as not supported by substantial competent evidence. Adopted in Finding of Fact 18. First sentence rejected as immaterial. Seconds third fifth and sixth sentences adopted in Finding of Fact 19. Fourth sentence rejected as not supported by substantial competent evidence. Adopted in Finding of Fact 3 as clarified. Adopted in Finding of Fact 3 as clarified. COPIES FURNISHED: Douglas A. Mulligan, Esquire 1327 Ninth Street St. Petersburg, Florida 33705 Deborah D. Hart, Esquire Assistant Attorney General Suite 1601, The Capitol Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mildred Gardner, Executive Director Board of Nursing Home Administrators Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 =================================================================
The Issue The issues under consideration concern the request by Petitioner, Brookwood-Jackson County Convalescent Center (Brookwood) to be granted a certificate of need for dual certification of skilled and immediate care nursing home beds associated with the second review cycle in 1987. See Section 381.494, Florida Statutes (1985) and Rule 10-5.011(1)(k) , Florida Administrative Code.
Findings Of Fact On October 5, 1987 Brookwood filed an application with HRS seeking to expand its facility in Graceville, Jackson County, Florida, one with 120 licensed beds and 30 beds approved effective June 12, 1986, to one with 30 additional beds for a total of 180 beds. Beds being sought in this instance were upon dual certification as skilled and intermediate nursing home beds. The nursing home is located in Subdistrict A to District II which is constituted of Gadsden, Holmes, Jackson and Washington counties. This applicant is associated with Brookwood, Investments, a Georgia corporation qualified to do business and registered in the State of Florida and other states in the southeastern United States. That corporation has as its principal function the development and operation of nursing homes and other forms of residential placement of the elderly. The actual ownership of the applicant nursing home is through a general partnership. Kenneth Gummels is one of two partners who own the facility. The Brookwood group has a number of nursing home facilities which it operates in the southeastern United States. Florida facilities that it operates are found in DeFuniak Springs, Walton County, Florida; Panama City, Bay County, Florida; Chipley, Washington County, Florida; Homestead, Dade County, Florida; Hialeah Gardens, Dade County, Florida, as well as the present applicant's facility. The applicant as to the beds which it now operates, serves Medicare, Medicaid, Veteran Administration, private pay and other third party pay patients. The number of Medicaid patients in the 120 licensed beds is well in excess of 90 percent. The ratio of Medicaid patients with the advent of the 30 approved beds was diminished. As to those beds, 75 percent were attributed to Medicaid. If the 30 beds now sought were approved, the projection is for 87 percent private pay and 13 percent Medicaid for those new beds. The nursing home administration feels that the new beds must be vied for under those ratios in order for it to continue to be able to serve a high number of Medicaid patients, an observation which has not been refuted by the Respondent. Nonetheless, if these beds are approved the percentage of Medicaid patients would be reduced to the neighborhood of 80 percent within the facility which compares to the approximately 81 percent experience of Medicaid beds within the district at present and the approximately 88 percent of Medicaid beds within the subdistrict at present. The cost of the addition of the 30 beds in question would be $495,000. Financial feasibility of this project has been stipulated to by the parties assuming that need is found for the addition of those beds. The basic area within the Florida panhandle wherein the applicant facility may be found, together with other facilities in the Florida panhandle is depicted in a map found at page 101 of Petitioner's Exhibit 1 admitted into evidence. This map also shows that a second licensed nursing home facility is located in Jackson County in Marianna, Florida, known as Marianna Convalescent Center. The applicant facility is directly below the Alabama-Florida border, immediately south of Dothan, Alabama, a metropolitan community. The significance of the relative location of the applicant's facility to Dothan, Alabama concerns the fact that since 1984 roughly 50 percent of its nursing home patients have been from out-of-state, the majority of those out-of-state patients coming from Alabama. Alabama is a state which has had a moratorium on the approval of new nursing home beds for eight years. The proximity of one of that state's relatively high population areas, Dothan, Alabama, has caused its patients to seek nursing home care in other places such as the subject facility. The applicant has encouraged that arrangement by its business practices. Among the services provided by the nursing home facility are physical therapy, physical examination and treatment, dietary services, laundry, medical records, recreational activity programs and, by the use of third party consultants, occupational and social therapy and barber and beauty services, as well as sub-acute care. The facility is adjacent to the Campbellton-Graceville Hospital in Graceville, Florida. The nursing home was developed sometime in 1978 or 1979 with an original complement of 90 beds expanding to 120 beds around 1983 or 1984. The Chamber of Commerce of Marianna, Florida had held the certificate of need upon the expectation that grant funds might be available to conclude the project. When that did not materialize, the County Commissioners of Jackson County, Florida sought the assistance of Brookwood Investments and that organization took over the development of the 90 beds. The original certificate holder voluntarily terminated and the Brookwood partnership then took over after receiving a certificate of need for Brookwood-Jackson County Convalescent Center. The nursing home in Marianna, Florida which is located about 16 miles from Graceville has 180 beds having undergone a 60 bed expansion several years ago. Concerning the Brookwood organization's nursing home beds in Florida, the Walton County Convalescent Center was a 100 bed facility that expanded to 120 beds at a later date and has received permission to expand by another 32 beds approved in the same review cycle associated with the present applicant. Gulf Coast Convalescent Center in Panama City, is a 120 bed facility of Brookwood. Brookwood also has the Washington County Convalescent Center in Washington County, in particular in Chipley, Florida which has 180 beds. That facility was expanded by 60 beds as licensed in October, 1987 and those additional beds have been occupied by patients. Brookwood has a 120 bed facility in Homestead and a 180 bed facility in Hialeah Gardens. With the exception of its two South Florida facilities in Homestead and Hialeah Gardens, recent acquisitions under joint ownership, the Brookwood group has earned a superior performance rating in its Florida facilities. No attempt has been made by this applicant to utilize the 30 beds which were approved, effective June 12, 1986. Its management prefers to await the outcome in this dispute before determining its next action concerning the 30 approved beds. The applicant asserted that the 30 beds that had been approved would be quickly occupied based upon experience in nursing home facilities within Subdistrict A to District II following the advent of nursing home bed approval. That surmise is much less valuable than the real life experience and does not lend effective support for the grant of the certificate of need in this instance. The waiting list for the 120 licensed beds in the facility has been reduced to five names. This was done in recognition of the fact that there is very limited patient turnover within the facility. Therefore, to maintain a significant number of people on the waiting list would tend to frustrate the sponsors for those patients and social workers who assist in placement if too many names were carried on the waiting list. At the point in time when the hearing was conducted, the facility was not in a position to accept any patients into its 120 licensed facility. This condition of virtually 100 percent occupancy has been present since about 1984 or 1985. The applicant has transfer agreements with Campbellton-Graceville Hospital and with two hospitals in Dothan, Alabama, they are Flower's Hospital and Southeast Alabama Medical Center. The applicant also has a transfer agreement with the Marianna Community Hospital in Marianna, Florida. The referral arrangements with the Alabama hospitals were made by the applicant in recognition of the proximity of those hospitals to the nursing home facility and the belief in the need to conduct its business, which is the provision of nursing home care, without regard for the patient origin. Early on in its history with the nursing home, Brookwood promised and attempted in some fashion to primarily serve the needs of Jackson County, Florida residents, but the explanation of its more recent activities in this regard does not portray any meaningful distinction between service to the Jackson County residents and to those from other places, especially Alabama. This reflects the concern expressed by Kenneth Gummels, owner and principal with the applicant nursing home, who believes that under federal law the nursing home may not discriminate between citizens in Florida and Alabama when considering placement in the nursing home. In this connection, during 1987 the experience within the applicant nursing home was to the effect that for every patient admitted from Florida five Florida patients were turned away. By contrast, to deal with the idea of priority of placing patients some effort was made by Gummels to explain how priority is still given to Jackson County residents in the placement for nursing home care. Again, in the end analysis, there does not seem to be any meaningful difference in approach and this is evidenced by the fact that the level of out-of-state patients in the facility has remained relatively constant after 1984. If there was some meaningful differentiation in the placement of Florida patients and those from out-of-state, one would expect to see a change in the number of patients from out-of-state reflecting a downward trend. As described, historically the experience which Brookwood has had with the facility occupancy rates is one of high utilization except for brief periods of time when additional beds were added at the facility or in the Marianna Nursing Home. At time of the application the primary service area for the applicant was Jackson County with a secondary service area basically described as a 25 mile radius outside of Graceville extending into Alabama and portions of Washington and Holmes Counties. As stated, at present the occupancy rate is as high as it has ever been, essentially 100 percent, with that percentage only decreasing on those occasions where beds come empty based upon transfers between nursing homes or between the nursing home and a hospital or related to the death of a resident. Those vacancies are filled through the waiting list described or through recommendations of physicians who have a referral association with the facility. The patients who are in the facility at the place of consideration of this application were 50 percent from Florida and 50 percent from out-of-state, of which 56 of the 60 out-of-state patients were formerly from Alabama, with one patient being from Ohio and three others from Georgia. More specifically, related to the history of out-of-state patients coming to reside in the nursing home, in 1984 basically 25 percent patients were from Alabama, moving from there into 1985 at 47 percent of the patient population from Alabama, in 1986 50 percent from Alabama, in 1987 48 percent from Alabama and in 1988 the point of consideration of the case at hearing the figure was 47 percent of Alabama patients, of the 50 percent patients described in the preceding paragraph. Of the patients who are in the facility from Florida, the majority of those are believed to be from Jackson County. Those patients who come to Florida from Alabama, by history of placement, seem to be put in the applicant's facility in Graceville as a first choice because it is closest to the Dothan, Alabama area. The next preference appears to be Chipley and the Brookwood nursing home facility in Chipley, and thence to Bonifay and then to other places in the Florida panhandle, in particular Panama City. In the Brookwood-Washington County facility at Chipley, Florida 35 percent of the patients are from Alabama which tends to correspond to the observation that the Alabama placements as they come into Florida are highest in Graceville and decrease in other places. This is further borne out by the experience in the Brookwood-Walton County facility at DeFuniak Springs, Florida which has an Alabama patient percentage of approximately 10 to 12 percent. When the nursing home facilities in Chipley and Bonifay received 60 additional beds each in October, 1987, they began to experience rapid occupancy in those beds as depicted in the Petitioner's Exhibit 1 at pages 228 through 230. The other facility in Jackson County, namely Jackson County Convalescent Center, within the last six months has shown an occupancy rate in excess of 98 percent, thereby being unavailable to attend the needs of additional Jackson County patients who need placement and other patients within the subdistrict. This same basic circumstance has existed in other facilities within Subdistrict A to District II. When the applicant is unable to place patients in its facility it then attempts placement in Chipley, Bonifay, DeFuniak Springs, and Panama City, Florida, and from there to other places as nearby as possible. The proximity of the patient to family members and friends is important for therapeutic reasons in that the more remote the patient placement from family and friends, the more difficult it is for the family and friends to provide support which is a vital part of the therapy. Consequently, this is a significant issue. Notwithstanding problems in achieving a more desirable placement for some patients who must find space in outlying locales, there was no showing of the inability to place a patient who needed nursing home care. Most of the Alabama referrals are Medicaid referrals. Those patient referrals are treated like any other resident within the nursing home related to that payment class for services. Effectively, they are treated in the same way as patients who have come from locations within Florida to reside in the nursing home. Notwithstanding the management choice to delay its use of the 30 approved beds dating from June 12, 1986, which were challenged and which challenge was resolved in the fall, 1987, those beds may not be ignored in terms of their significance. They must be seen as available for patient placement. The fact that the experience in this service area has been such that beds fill up rapidly following construction does not change this reality. This circumstance becomes more significant when realizing that use of the needs formula for the project at issue reveals a surplus of 19 beds in Subdistrict A to District II for the planning horizon associated with July, 1990. See Rule 10-5.011(1)(k), Florida Administrative Code. The 19 bed surplus takes into account the 30 approved beds just described. Having recognized the inability to demonstrate need by resort to the formula which is found within the rule's provision referenced in the previous paragraph, the applicant sought to demonstrate its entitlement to a certificate through reference to what it calls "special circumstances." Those circumstances are variously described as: Patient wishing to be located in Jackson County. Lack of accessibility to currently approved CON beds. High rate of poverty, Medicaid utilization and occupancy. Jackson County Convalescent Center utilization by out-of- state patients. The applicant in asking for special relief relies upon the recommendation of the Big Bend Health Council, District II in its health plan and the Statewide Health Council remarks, whose suggestions would modify the basis for calculation of need found in the HRS rule with more emphasis being placed on the adjustment for poverty. Those suggestions for health planning are not controlling. The HRS rule takes precedence. Consequently, those suggestions not being available to substitute for the HRS rule, Petitioner is left to demonstrate the "special circumstances" or "exceptional circumstances" in the context of the HRS rule and Section 381.494(6), Florida Statutes (1985). Compliance per se with local and statewide planning ideas is required in the remaining instances where those precepts do not conflict with the HRS rule and statute concerning the need calculations by formula. Turning to the claim for an exception to the rule on need, the first argument is associated with the patient wishing to be located in Jackson County. This would be preferable but is not mandated. On the topic of this second reason for exceptions to the need formula, the matter is not so much a lack of accessibility to currently approved CON beds as it is an argument which is to the effect that there are no beds available be they licensed or approved. This theory is not convincing for reasons to be discussed, infra. Next, there is an extremely high rate of poverty in District II. It has the highest rate of poverty in the state. Moreover Subdistrict A to District II has an even greater degree of poverty and this equates to high Medicaid use and contributes to high occupancy. This coincides with the observation by the Big Bend Health Council when it takes issue with the HRS methodology rule concerning recognition of the significance of poverty within the HRS rule and the belief by the local health council that given the high poverty rates in District II some adjustments should be made to the need formula in the HRS rule. Under its theory, 161 additional beds would be needed at the planning horizon for July 1990 in Subdistrict A. Concerning the attempt by the applicant to make this rationalization its own, the record does not reflect reason to defer to the Big Bend Health Council theory as an exception to the normal poverty adjustment set forth in the HRS rule. When the applicant describes the effects of the out-of-state patients, in particularly those from Alabama in what some have described as in-migration, it argues that Rule 10-5.011(1)(k), Florida Administrative Code makes no allowance for those influences. The applicant chooses to describe these beds, the beds used by out-of-state residents, as unavailable or Inaccessible. This concept of inaccessibility is one which departs from the definition of inaccessibility set forth at Rule 10-5.011(1)(k)2.j., Florida Administrative Code. The specific exception to the requirement for compliance with the numeric need methodology in demonstration of a net need is set forth in that reference, and the proof presented did not show entitlement to the benefits of that exception. That leaves the applicant arguing in favor of recognition of its entitlement to a certificate of need premised upon a theory not specifically announced in that reference. This is the in-migration idea. It ties in the basic idea of poverty but does not depend on rigid adherence to the Big Bend Health Council idea of a substitute element in the HRS needs formula related to poverty. It also promotes the significance of problems which a number of physicians, who testified by deposition in this case, observed when attempting to place patients in the subject nursing home and other nursing homes in the surrounding area. They found high occupancy rates in the present facility and others within Subdistrict A to District II. These problems with placement as described by the physicians can have short term adverse effects on the patient and the family members, but they are not sufficient reason to grant the certification. In considering the formula for deriving need as promulgated by HRS, the proof does not seem to suggest that the nursing home residents themselves who came from out-of-state are excluded from the population census for Florida. On the other hand, unlike the situation in Florida in which the population at large is considered in trying to anticipate future nursing home bed needs, it make no assumptions concerning the Alabama population at large. Ultimately, it becomes a question of whether this unknown factor, given the history of migration of patients from Alabama into Florida and in particular into the subject nursing home, together with other relevant considerations, may properly form the basis for granting the certificate of need to the applicant. It is concluded that there is a fundamental difference in the situation found within this application compared to other planning areas within Florida which do not have to contend with the level of poverty, the proximity to Alabama and the advent of Alabama placements in this nursing home, the high occupancy rates in the subdistrict and the resulting difficulty in placement of patients near their homes. Posed against this troublesome circumstance is the fact that the applicant has failed to use its 30 approved beds or to make a decision for such use, that it had invited and continues to invite the placement of Alabama residents through the referral arrangements with the two Dothan, Alabama hospitals, realizing that such an arrangement tends to exclude opportunities for Florida residents to some extent, and the recognition that patients are being placed; that is patients are not going without nursing home care. The two Alabama hospitals with whom the applicant has referral agreements provide a substantial number of the patients who are admitted. This recount acknowledges what the ownership considers to be their obligation in law and morally to serve the interest of all patients without regard for their home of origin; however, the thrust of the certificate of need licensing process in Florida is to develop the apparatus necessary to service the needs of Florida residents, not Alabama residents. This does not include the necessity of trying to redress the circumstance which appears to exist in Alabama in which the government in that state is unable or unwilling to meet the needs of its citizens. On balance, the applicant has not demonstrated a sufficient reason to depart from the normal requirements of statute and rule, which departure would have as much benefit for Alabama residents as it would for Florida Residents. Contrary to the applicant's assertions it could legitimately de-emphasize its association with Alabama. It has chosen not to and should not be indulged In this choice in an enterprise which is not sufficiently related to the needs of Florida residents to condone the licensure of the beds sought, even when other factors described are taken into account. The applicant has also alluded to a certificate of need request made by Walton County Convalescent Center, a Brookwood facility in District I which sought a certificate of need in the same batch which pertains to the present applicant. The application and the review and comment by HRS may be found within Composite Exhibit 2 by the Petitioner admitted as evidence. Petitioner asserts that the Walton County experience in which 32 beds were granted is so similar to the present case that it would be inappropriate for the agency to act inconsistently in denying the present applicant after having granted a certificate of need to the Walton County applicant. Without making a line-by- line comparison, it suffices to say that in many respects these projects are similar. In other respects they are not. On the whole, it cannot be found that the agency is acting unfairly in denying the present applicant while granting a certificate to the applicant in the Walton County case. The differences are substantial enough to allow the agency to come to the conclusion that the present applicant should be denied and the applicant in Walton County should have its certificate granted. Likewise, no procedural impropriety on the part of HRS in its review function has been shown.
