The Issue Whether Respondent nursing home violated Florida statutes and Department rules (and should be subject to a civil penalty) as alleged by the Department for (1) failing to provide adequate health care to an injured patient, and (2) failing to meet nursing staffing requirements.
Findings Of Fact Upon consideration of the evidence presented at the hearing, including the demeanor and credibility of the witnesses, and posthearing filings by counsel, the following findings of fact are determined: Respondent Nursing Home, the Apalachicola Valley Nursing Center, is a nursing care facility located immediately west of Blountstown, Florida. It is licensed by the Department, and has been in operation since June, 1975. (Testimony of Margaret Brock) Injury to and Standard of Care Provided Myrtle White On July 4, 1979, Dora M. Keifer was the licensed practical nurse on duty during the Nursing Home's night shift. At approximately 1:30 a.m., nurse Keifer heard a noise coming from the nearby room of an elderly patient, Myrtle White. The nurse immediately investigated, and found Myrtle White lying on the floor, and against the wall. Nurse Keifer then visually examined Mrs. White's head and extremities for bruises, discolorations, swelling, lacerations, and other signs of possible fractures. Finding only a slight abrasion on her elbow, nurse Keifer then manually examined the patient's leg and hip for signs of a bone fracture or associated pain. The patient responded by complaining of pain on her right side from her knee to her hip. However, no swelling of that area could be detected; nor were there any other physical symptoms of a bone fracture which were detectable by visual or manual examination. (Testimony of Dora Keifer) After completing the examination, nurse Keifer, with the assistance of four aides, placed Mrs. White on a blanket and carefully lifted her directly onto her bed, placing her on her back. This is a lifting procedure which minimizes sudden movement and is recommended for use with patients who are suspected of suffering from bone fractures. Nurse Keifer then raised the bed side rails to prevent the patient from falling off the bed, and checked the patient's vital signs. Except for slightly elevated blood pressure, the patient's vital signs were within normal limits. Nurse Keifer, then pushed the bed to within 10 feet of her nursing station to ensure that the patient would-be constantly observed during the remainder of her shift. (Testimony of Dora Keifer, Dr. E. B. White) Except on the two occasions when she made her routine rounds, nurse Keifer kept Mrs. White under constant personal observation until her shift ended at 7:00 a.m. on July 4, 1979. When she made her rounds, nurse Keifer advised her aides to keep Mrs. White under constant observation. During the remainder of her shift, nurse Keifer periodically reexamined Mrs. White. Physical symptoms of a fracture, or other injury resulting from the patient's fall, continued to be absent. At 4:30 a.m., nurse Keifer checked the patient's urine sample and detected no blood or other unusual signs. (Testimony of Dora Keifer) At the time of her accident on July 4, 1979, Mrs. White, an 88-year-old woman, was suffering from deafness, senility, disorientation, poor eyesight and arthritis. She had previously fractured her right hip, and a prosthetic device had been inserted. Her ailments caused her to frequently suffer, and complain of pain in the area of her right hip, for which her doctor (Dr. Manuel E. Lopez) had prescribed, by standing (continuing) order, a pain medication known as Phenophen No. 4. The standing order authorized the nursing staff to administer this pain medication to the patient, without further authorization from a physician, four times daily, and on an "as needed" basis to relieve Mrs. White's pain. (Testimony of Dora Keifer, Mr. Manuel Lopez, Margaret Brock) Previous to and at the time of Mrs. White's accident, nurse Keifer was aware of Mrs. White's ailments, and frequent complaints of discomfort, as well as the standing order of Dr. Lopez which authorized the administering of Phenophen No. 4 to Mrs. White on an "as needed" basis to relieve pain. In addition, nurse Keifer, by background and training was qualified to examine, make judgments concerning, and render care to patients requiring emergency medical treatment. For several years, she had served as a part-time nurse on the night shift at the Nursing Home, and had served for 6 years in the emergency room and obstetric ward at Calhoun County Hospital. At the hospital, she had engaged in the detection and treatment of traumatic injuries and broken bones on a daily basis, and was familiar with the proper nursing and medical techniques used in caring for such injuries. (Testimony of Dora Keifer, Dr. E. B. White) Nurse Keifer had been instructed by local physicians (including Dr. Lopez) practicing at the Nursing Home that they should not be telephoned during the late evening and early morning hours unless, in the nurse's judgment, the patient required emergency care. Because Blountstown suffers a severe shortage of physicians, the judgment of licensed nurses necessarily assumes on increasingly important role in providing adequate medical care. (Testimony of Dora Keifer, Dr. E. B. White, Margaret Brook, Dr. Manuel Lopez) Between 1:30 a.m. (the time of Mrs. Trite's accident) and 7:00 a.m., on July 4, 1979, nurse Keifer administered Phenophen No. 4 two times to Mrs. White for the purpose of relieving pain. The initial dose was given Mrs. White shortly after she had complained of pain and been moved near nurse Keifer's duty station for observation. The drug appeared to alleviate Mrs. White's discomfort. Three or four hours later, after Mrs. White again complained of pain, a second dose was administered. (Testimony of Dora Keifer) Nurse Keifer administered the two doses of Phenophen No. 4 to Mrs. White during the early morning hours of July 4, 1979, without contacting, or seeking the further authorization of a physician. Having detected no symptoms of a bone fracture, or other injury to Mrs. White resulting from her fall, nurse Keifer concluded that administration of the medication to relieve pain was authorized by Dr. Lopez's standing order, and justified under the circumstances. She further made a judgment that Mrs. White was not suffering from an injury which justified emergency treatment, and the immediate contacting of a physician. (Testimony of Dora Keifer, Dr. Manuel Lopez, Dr. E. B. White) At 5:30 a.m. on July 4, 1979, nurse Keifer telephoned Calhoun County Hospital and left a message requesting Dr. Lopez to come to the Nursing Home and examine Mrs. White as soon as he completed his rounds at the hospital. Nurse Keifer was aware, at the time, that Dr. Lopez began his daily hospital rounds at 6:00 a.m. Later that morning, at the direction of Dr. Lopez, Mrs. White was taken to the hospital for x-rays which revealed that Mrs. White had fractured her right hip. She was returned to the Nursing Home that day, and transferred to Tallahassee Memorial Hospital for several days. No surgical repairs were ever made to the hip fracture, however, and Mrs. White was subsequently returned to the Nursing Home, for bed-side care. (Testimony of Dora Keifer, Dr. Lopez, Dr. E. B. White) It was nurse Keifer's professional judgment, based upon the facts known to her at that time, that Mrs. White's fall, and physical condition neither required emergency medical treatment nor justified the immediate contacting of a physician. Nurse Keifer further concluded that the administration of Phenophen No. 4 to relieve Mrs. White's pain, without further authorization of a physician, was necessary and authorized by the standing order of Dr. Lopez. These professional nursing judgments and actions were reasonable, justified by the facts, consistent with established health care standards applied in the Blountstown area, and did not endanger the life, or create a substantial probability of harm to Mrs. White. Although the Department's Medical Facilities Program Supervisor, Howard Chastain, testified that nurse Keifer's failure to immediately notify a physician concerning Mrs. White's fall presented an imminent danger to the patient, it is concluded that the contrary testimony of two experienced medical doctors constitutes the weight of the evidence on this issue. As to the meaning of Dr. Lopez's standing order con cerning administration of Phenophen No. 4 to Mrs. White, the Department's witnesses on this matter, James L. Myrah and Christine Denson, conceded that they would net disagree with Dr. Lopez if the doctor testified that nurse Keifer's action was consistent with the standing order. Dr. Lopez, subsequently, so testified. (Testimony of Dr. M. Lopez, Dr. E. B. White, James L. Myrah) Shortage of One Nurse on Night Shift During the period of June 1 through June 30, 1979, and July 1, through July 21, 1979, for a total of fifty-one (51) nights, the Nursing Home employed only one licensed nurse on the 11:00 p.m. - 7:00 a.m. night shift. (Testimony of Margaret Brook, J. L. Myrah) During this same 51-day time period, the number of patients at the Nursing Home fluctuated between 70 and 80 patients. (Testimony of Margaret Brook, J. L. Myrah, Petitioner's Exhibit No. 2) The Nursing Home is managed by a licensed nursing home administrator, and provides a full range of health and related services to patients requiring skilled or extensive nursing home care. Most of the patients require nursing services on a 24-hour basis and are seriously incapacitated, mentally or physically. (Testimony of Margaret Brook) The Administrator of the Nursing Home was aware that Department rules required the employment of two licensed nurses on the night shift during June and July, 1979. She made numerous unsuccessful efforts to recruit, locate, and employ an additional nurse for the night shift. Her failure to hire the additional nurse required by Department rules was not a willful act of misfeasance or nonfeasance on her part--but was due to a statewide nursing shortage which is particularly severe in rural northwest Florida. Other nursing homes have experienced similar difficulty in recruiting and hiring the requisite number of licensed nurses. The Nursing Home received no economic benefit from its failure to employ the additional night nurse during the time in question because the cost of such an employee is fully reimbursed by the State. On approximately March 1, 1980, the Nursing Home located, and has since employed, the additional licensed nurse required by Department rules for the night shift. (Testimony of Dora Keifer, Margaret Brook) Due to the widespread shortage of qualified nursing personnel, the Department ordinarily brings enforcement actions against nursing homes for noncompliance with the minimum nursing staff requirements only if the noncompliance is adversely affecting patient care. (Testimony of James L. Myrah, Margaret Brock) The shortage of one licensed nurse on the night shift during the time in question did not adversely affect the level of patient care provided by the Nursing Home. (Testimony of Dora Keifer, Margaret Brock) The parties have submitted proposed Findings of Fact and Conclusions of Law. To the extent that those findings and conclusions are not adopted in this Recommended Order, they are specifically rejected as being irrelevant to the issues in this cause, unsupported by the evidence, or law.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department's Administrative Complaint, and the charges against Respondent contained therein, be DISMISSED. DONE and ENTERED this 2nd day of May, 1980, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: John L. Pearce, Esquire District II Legal Counsel Department of Health and Rehabilitative Services 2639 North Monroe Street Suite 200-A Tallahassee, Florida 32303 Stephen D. Milbrath, Esquire Dempsey & Slaughter, P.A. Suite 610 - Eola Office Center 605 East Robinson Street Orlando, Florida 32801
Findings Of Fact General Background At all times material hereto, Carol's Care Center (CCC) was a licensed nursing home facility certified to and participating in the Florida Medicaid Program. (Stip.) At all times material hereto, Volusia County owned the facility, which was an indigent nursing home. The first wing of the facility was constructed in 1954, at a time when there were no building codes for Volusia County. Volusia County operated the nursing home until 1968, at which time the county leased the nursing home to Dr. George Erickson. Both Volusia County and Dr. Erickson suffered financial losses in the operation of the nursing home. (Tr. 43, 162) In 1969, Carol E. Forrer and her son, Walter Littler, took over operation of the nursing home. Under their contract with Volusia County, the nursing home was required to accept up to 95 percent indigent patients. Another clause in that contract required the remaining five percent of the nursing home's beds to be available for Medicaid patients, if needed. Almost all of the nursing home patients were indigent. (Tr. 44, 162, 163) CCC experienced serious and continuous financial problems prior to 1979 because of the number of indigent or Medicaid patients placed at CCC. Funds were always short. In addition, the building was antiquated and in such poor condition that it required at least six staff people on the payroll to do only maintenance work. The reputation of the facility was horrendous. In addition, staff was difficult to find and keep because of low pay and poor working conditions. In fact, turnover was 105 percent. In 1979, Mrs. Forrer had extreme difficulty in getting physicians and nurses to treat patients in the nursing home. In early 1979, the Department of Health and Rehabilitative Services (Department) informed Mrs. Forrer that the building was not in conformance with licensure standards and would not be allowed to continue operation as a nursing home. Mrs. Forrer knew that a new facility had to be built, but she could not finance the necessary expenses because the county owned the facility. (Tr. 45, 48, 162, 165) In an effort to solve many of the problems at the nursing home, Mrs. Forrer hired Progressive Management Group (PMG) in July of 1979 to operate and administer the facility. Mrs. Forrer stayed on as administrator for August, 1979, during the transition period in which PMG took over. The Department disallowed $2,109 of her salary on the basis that there could not be two administrators. (Tr. 45, 46) On December 31, 1979, CCC had 134 beds, and its occupancy rate was approximately 97 percent. Of the patients at CCC, 88 to 92 percent were Medicaid patients. When Charles F. Cantrell, Jr., purchased all of Mrs. Forrer's stock in the 344 Corporation and assumed responsibility for the operation of CCC, the nursing home had the highest Medicaid percentage in the area because local doctors were not referring private patients to the nursing home. Private patients generate revenues that can be used to offset expenses for Medicaid patients. (Tr. 50, 51, 52) On December 31, 1979, Mr. Cantrell purchased Mrs. Forrer's stock and assumed any liabilities arising from the audits of CCC by the Department for the fiscal years 1978 and 1979. (Tr. 45, 70) The Department conducted audits of CCC for the fiscal years ending August 31, 1978, 1979 and 1980. The audits for fiscal years 1978 and 1979 were conducted by Hugo Jordan, an auditor employed by the Department. The Medicaid Program is a joint federal and state program. It is governed by the Florida Title XIX Medicaid Reimbursement Plan and the applicable doctrines in HIM-15. The Medicaid cost reports for CCC in fiscal years 1978, 1979 and 1980 were timely filed. This dispute arose from audit adjustments to CCC's Medicaid cost reports for fiscal years 1978, 1979 and 1980. (Stip.; Tr. 289; Petitioner's Exhibits 4, 5, 6) Activities of Charles F. Cantrell, Jr. The Department notified CCC that it would not be relicensed in the absence of major alterations of the physical plant to bring it up to existing standards. This was impossible because of the state of the existing building. Cantrell negotiated an arrangement with the Department that CCC would continue to be licensed upon the condition that major intermediate repairs be made to the existing facility and a new facility be built within 30 months. (Tr. 49, 57, 151) Cantrell was obliged to continue to operate CCC in the existing facility, making the necessary repairs to the physical plant, upgrading staffing and establishing an effective bookkeeping system while also undertaking to plan, finance and build a new facility. All of these actions were necessary to meet conditions for Department licensure and to continue operating the facility which was the primary facility in the area providing care for indigent and Medicaid patients. (Tr. 49, 57, 59, 151) Cantrell took a direct hand in the management and operation of the facility. He assumed the business management of CCC, supervising and arranging for maintenance and repairs, revamping the bookkeeping system and training personnel, and coordinating activities related to the planning, financing, certification and building of the new facility. All of his activities were necessary. Cantrell's prior experience as the owner of several businesses, including a small chain of drug stores, and his experience in providing professional services to nursing homes assisted him in keeping CCC operating and in establishing the new facility which is now in operation. Cantrell was a salaried management employee of CCC for eight months in fiscal year 1980. He was paid $37,977 by CCC for his services. Under Department guidelines, the annual salary for the administrator of a facility the size of CCC was $27,032. Cantrell dismissed PMG shortly after he took control on December 31, 1979. Because he was not a licensed administrator, Cantrell employed Mrs. Forrer for several weeks as an interim administrator. Cantrell hired Buford Jones as the permanent administrator in March, 1980. Jones is still in this position. Jones and Mrs. Forrer were assigned duties related to patient care, staffing and record-keeping related to patient care. The Department audit disallowed one month of Cantrell's compensation in total because his service overlapped that of two other administrators. In addition, the Department reduced Cantrell's salary to that of an assistant administrator/owner. The total disallowed by the Department was $25,277. The Department disallowed $1,195 of Mrs. Forrer's salary for the fiscal year ending August 31, 1980, on the same grounds. The field auditor for the Department disallowed a portion of Mrs. Forrer's salary in fiscal year 1979, when PMG was employed, because of overlapping administrators. The Department's auditor took the position that there could not be two administrators at the same time. The total salary paid Mrs. Forrer for the periods of transition in August of 1979 and January, 1980, when her employment overlapped that of another administrator, were legitimate. Both administrators were head administrators, one leaving and one coming. The maintenance of continuity and the benefits flowing to the patients warrant such a transition. The auditor for CCC, Betty Kelly, C.P.A., gave her expert opinion, based upon her personal observation of Cantrell's activities and the duties he performed. Cantrell's activities were necessary, and, had he not performed them, someone would have had to be hired to do those jobs. The salary he received was reasonable and consistent with salaries paid other persons for similar work. The situation at CCC was unusual, and its many problems justified additional management, expertise and personnel. CCC needed more than an assistant manager. It needed a separate manager to handle business operations until its inherent problems could be solved. Cantrell provided this expertise. Drug Expenses In fiscal year 1978, the Department disallowed $1,894 in prescription drug expenses on the grounds that prescription drugs are not covered under the Florida Medicaid Program. (Petitioner's Exhibit 4) In 1978, the Florida Medicaid drug program permitted patients to purchase $33 worth of legend drugs with a monthly Medicaid eligibility card. Some patients exceeded the limits on their card and had to apply for an excess prescribed medicine grant. In order to apply for the grant, the patient forwarded a form to the attending physician. (Tr. 84, 85, 86) The drug information portion of the form was to be completed by the physician and submitted to Jacksonville or to Tallahassee, where a board of physicians would review the request. The physicians, in general, were unable or unwilling to fill out these forms because they could not obtain the needed information. As a pharmacist, Cantrell applied for 700 to 800 excess prescribed medicine grants, but only ten were approved for increases. (Tr. 86, 87) Since some drugs are life-sustaining, CCC assumed the responsibility in fiscal year 1978 of paying the pharmacist for the excess cost of a Medicaid patient's prescription drugs. The amount of $1,894 represents the excess of purchases of drugs from The Medicine Shoppe. (Petitioner's Exhibit 16) Nursing homes are responsible for supplying their patients with prescribed drugs. Rental Equipment In fiscal year 1978, the Department disallowed $2,444, which represented 100 percent of the costs of a leased automobile. In fiscal year 1979, the Department disallowed $2,270, which represented 100 percent of the costs of a leased automobile. (Petitioner's Exhibits 4, 5) CCC operated three vehicles in 1978: a maintenance vehicle, a Pontiac Grand Prix, and a Dodge van. The maintenance vehicle was used to haul lumber and other items. The van contained a lift and was designed to transport patients. The van was used to transport patients until its insurance was raised to $3,600 per six months because of installation of the lift. It was thereafter not used to transport patients. The Pontiac was rented for that purpose, with insurance being included in the rental charges. Eventually, the maintenance vehicle was disposed of and the van used by maintenance personnel. (Tr. 169, 170, 176) All three vehicles were kept at the facility, and they were all used for patient-related activities. The Pontiac was used to transport patients. Mr. Littler also used it to conduct nursing home business in Tallahassee and Jacksonville. Littler left his personal car at the facility whenever he took the Pontiac and did not charge the costs of this vehicle to the Medicaid program. (Tr. 72, 172) Depreciation of Camper The Department disallowed $295 in fiscal year 1978 for depreciation on a camper as not related to patient care. (Petitioner's Exhibit 4) The camper in question was used by Dr. Legg, a scientist, while he was conducting studies related to the certificate of need for the new facility. (Tr. 178, 179) Advertising and Promotion In fiscal year 1978, the Department disallowed $210 on the grounds that it constituted promotional advertising. (Petitioner's Exhibit 4) The amount contained in Petitioner's proposed recommended order exceeded the amount disallowed. None of the advertising was for the purpose of hiring staff. The aerial photograph was taken for use in settling a property dispute with the city. It was directly related to cost containment in operating the facility by reducing maintenance requirements and taxes. As such, this provided a benefit to the patients and to the public. Utility Expense In fiscal year 1978, the Department disallowed $272, claiming that this was for utility bills for a commercial building owned by Mr. Littler. (Tr. 196; Petitioner's Exhibit 4) At said time, the Department cited CCC for not having proper beds. Littler used the building to refurbish beds for the facility according to the Department's standards. More than 100 beds were refurbished on the property owned by Littler. The only demand Littler made in return for the use of his building was that CCC pay his utility bills during the period of time that the beds were being refurbished. (Tr. 197) These utility bills paid by CCC were in actuality the rental assessed for use of the building. Considering the period of use, the rental was reasonable. Additional Rents The Department disallowed $2,000 in fiscal year 1978 for rent paid to Volusia County. (Tr. 198; Petitioner's Exhibit 4) The records of CCC reflect that it paid $38,000 in rents to Volusia County in 1978. The contractual rental was $36,000 per year. The auditor concluded, based upon data which he believed was given him by a bookkeeper, that the $2,000 was a late payment of 1977 rents. The uncontroverted testimony of Mr. Littler was to the contrary. Volusia County was to pay for repairs to the facility under the terms of the lease, but it did not have the money to pay for repairs required by the Department. It was agreed that CCC would pay Volusia County $2,000 for a sinking fund to cover future repairs. The $2,000 paid to this fund was not used to pay for repairs and was not for rental. The county retained it. Gasoline Expense In fiscal year 1980, the Department disallowed $380 of gasoline expense which was used in the vehicles of CCC's employees when they used their vehicles for patient-related activities. Petitioner is not challenging $133 of this adjustment. (Petitioner's Exhibits 6, 18) CCC has one gasoline credit card that is kept by Mr. Jones to supply fuel to vehicles that are used in the service of the nursing home. (Tr. 108) Jones only allowed other employees to use the gasoline credit card for patient-related activities. Cantrell never used the gasoline credit card for his own vehicle because he has another card. Employees who have used the gasoline credit card are the administrator, the activities director, the maintenance-man and the secretary. (Tr. 108, 109, 239) The amount of $247 would be an expense related to operations of the facility. Professional Services In fiscal year 1980, the Department disallowed $1,061 as costs incurred in the prior year. (Petitioner's Exhibit 6) The legitimacy of the expense is not at issue, and it was disallowed solely because it was not incurred in fiscal year 1980. These expenses were inadvertently omitted from the 1979 cost report. (Tr. 272; Petitioner's Exhibits 18, 19) The expenses for the 1979 audit are also at issue in these proceedings. Travel and Expense The Department disallowed $821 in fiscal year 1978 because the expense was considered personal. Petitioner does not challenge $247 of this adjustment. (Petitioner's Exhibit 4) A portion of this expense is related to the expenses incurred by Mr. Littler to go to Washington, D.C., to participate in what was primarily a lobbying effort. This was not for the benefit of the patients or to increase the professional skills of Littler. Each administrator who is licensed by the State of Florida must attend a certain number of seminars every year as a condition of licensure. Mrs. Forrer and Littler registered and participated in the Miami seminar to expand their knowledge and to maintain their nursing home administrators' licenses. Mr. Jordan admitted that he erred in disallowing $157 for Mrs. Forrer's hotel room on this trip. Littler's room expense for this trip was $170. No travel expense was validated. (Tr. 188, 189, 291) Littler attended a seminar in Atlanta on cost reporting sponsored by the University of Pennsylvania. His American Express invoices contain a record of certain expenses which he incurred while attending this seminar. This was an activity related to Littler's professional qualification and to the business operations of CCC. The travel and room expense were $206. (Tr. 191; Petitioner's Exhibit 14) Mrs. Forrer's and Littler's expenses for the trips to Miami and Atlanta are $533. Other exhibits include expenses not mentioned in Petitioner's proposed recommended order. It is assumed that the Petitioner has abandoned those claims, and no findings are made regarding them. Travel and Expense In fiscal year 1979, the Department disallowed $113 as an expense that was not actually spent in that year. Petitioner asserts that the $113 was refunded in 1980, and the 1980 expenses reduced by that amount. This is based upon the testimony of the facility's accountant at pages 275 and 276. The effect of the accounting treatment was to reduce the 1980 expenses by $113. The result is that the Department deducted the $113 in 1979, and the accountant deducted the $113 again in 1980.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the following is recommended: The adjustment to Cantrell's salary should be reduced from $25,277 to $19,956; The adjustment to Mrs. Forrer's salary of $1,915 in 1979, and of $2,109 in 1980, should be rescinded; The adjustment for drug expenses of $1,894 should not be altered; The adjustment of $4,714 for rental of a Pontiac Grand Prix in 1978 and 1979 should be rescinded; The adjustment of $295 for depreciation of the camper should not be altered; The adjustment of $210 for advertisements should be reduced by $125, the cost of the aerial photograph; The adjustment of $272 for utility expense should be rescinded; The adjustment of $2,000 for rentals should not be altered; The adjustment of $380 for gasoline expense should be reduced by $247; The adjustment of $1,061 for professional services should be rescinded unless other grounds exist to deny an amendment of the previous year's report; The adjustment of $821 for travel and expense should be reduced by $533; and The adjustment of $113 for travel in 1979 should be rescinded unless other grounds exist to deny an amendment of the previous year's report. DONE and RECOMMENDED this 16th day of February, 1983, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of February, 1983. COPIES FURNISHED: Karen L. Goldsmith, Esquire Michael J. Bittman, Esquire Day Building, Suite 610 605 East Robinson Street Post Office Box 1980 Orlando, Florida 32802 Joseph L. Shields, Esquire Office of Audit and Quality Control Services Department of HRS 1323 Winewood Boulevard Tallahassee, Florida 32301 David H. Pingree, Secretary Department of HRS 1323 Winewood Boulevard Tallahassee, Florida 32301
Findings Of Fact The parties' stipulation The parties have stipulated to the following facts: Forum and Amedex timely filed their respective letters of intent and applications with the Department and the District Local Health Council for the July 1986 batching cycle. The Department ultimately deemed the applications complete and, following review, published its notice of intent to deny the applications. Forum and Amedex each timely filed a petition requesting a formal hearing on the denial of their application. With regard to the Forum application, the Department contends that there is no need for the proposed facility, that such lack of need will render Forum's project financially unfeasible, that the project is not the best use of Forum's resources, and that Forum fails to meet the local health plan priority relating to the construction of freestanding facilities with a minimum capacity of 120 beds. All other statutory and rule criteria are satisfied, at least minimally, based on Forum's 60-bed proposal. With regard to the Amedex application, the Department contends that there is no need for the proposed facility, that such lack of need will render Amedex's project financially unfeasible, and that the project is not the best use of Amedex's resources. The Department further contends that Amedex has not demonstrated that it can provide quality of care, that it has not demonstrated that its project is financially feasible in the short or long term, that it has not provided long range plans and that, even assuming minimal need, the size of Amedex' proposed project will cause difficulty in meeting projected utilization needs based on Broward County's past utilization rates. All other statutory and rule criteria are satisfied, at least minimally, based on Amedex' 240-bed proposal. As between the applicants, they agree that a comparative review is appropriate to determine the best applicant. Further, they agree for purposes of this proceeding that the other meets all statutory and rule criteria, at least minimally, except the following: need beyond 60 beds, ability to provide quality of care, and availability of funds for project accomplishment and operation. The parties have further agreed that there are no special circumstances existent in this case upon which a certificate of need is being sought. The Amedex Proposal In July 1986 Amedex filed an application with the Department for a certificate of need to construct a 240-bed skilled and intermediate care nursing home in Broward County, Florida. The total project cost is projected to be $9,040,228. At hearing, Amedex failed to offer any competent proof to demonstrate the immediate and long-term financial feasibility of its proposed project, that it could provide quality care, or that it had available the necessary funds for project accomplishment and operation. 1/ While the Department contended that the proposed project was not the best use of Amedex's resources, it offered no proof to demonstrate what other health services would be a more appropriate use of the resources. The Forum Proposal In July 1986, Forum also filed an application with the Department for a certificate of need to construct a skilled and intermediate care nursing home in Broward County, Florida. Forum's application sought leave to construct a 60-bed facility. The estimated cost for construction of Forum's proposed nursing home is $2,39,800. Forum has the necessary resources for project accomplishment and operation. While the Department contended that the proposed project was not the best use of Forum's resources, it offered no proof to demonstrate what other health service would be a more appropriate use of such resources. Forum is a publicly held health services company which owns, develops, and operates retirement living centers and nursing homes on a national basis. Pertinent to this case, Forum proposes to develop a retirement living center in Broward County that would consist of 120 apartments for independent living, a 30-bed adult congregate living facility, and the proposed 60-bed skilled and intermediate care nursing home. Forum has packaged its centers to provide these three levels of service to meet the desires of retired persons they hope to attract to their retirement community. Each of the three components which comprise Forum's retirement living center are physically connected and share some operational functions, such as a central kitchen and heating plant. Such design provides for an efficient operation, as well as an economical distribution of costs facility wide. The nursing facility proposed by Forum would offer a wide range of services for its residents including: 24-hour skilled and intermediate nursing care, physical therapy services, and other restorative services. Additionally, Forum proposes to offer, as needed, subacute services such as: intravenous care, continuous bladder irrigation, oxygen therapy, nastrogastric tube feeding, ventilator care, insulin treatment, sterile dressing changes, and sterile care of tracheotomies. Forum also proposes to offer in the future, if need is identified and if any necessary agreements can be reached, respite care, adult day care, meals on wheels and hospice care. Forum proposes to seek medicare and medicaid certification, and will dedicate 25 of its beds to medicaid patients. Forum has a history of providing quality care at its existing facilities, and will provide quality care at the proposed facility. Forum has demonstrated the immediate and long term financial feasibility of its proposed project. Forum is a national company, with substantial experience in developing and operating nursing homes and retirement living centers. Due to the excellent growth potential in Broward County for retirement living centers, Forum should be able to capture a sufficient share of the nursing home market to render its proposed nursing home financially feasible. However, in view of the lack of numeric need for such facility as discussed infra, Forum's success will be to the detriment of existing and approved facilities. Numeric need The Department has established by rule the methodology whereby the need for community nursing home beds in a service district shall be determined. Rule 10-5.011(1)(k)2, Florida Administrative Code. The first step in calculating need pursuant to the rule methodology is to establish a "planning horizon." Subparagraph 2 of the rule provides: Need Methodology ... the Department will determine if there is a projected need for new or additional beds 3 years into the future according to the methodology specified under subparagraphs a. through i... The Department interprets subparagraph 2, and the applicants concur, as establishing a "planning horizon" in certificate of need proceedings calculated from the filing deadline for applications established by Department rule. This interpretation is consistent with the numeric methodology prescribed by subparagraph 2, and with the decision in Gulf Court Nursing Center v. Department of Health and Rehabilitative Services, 483 So.2d 700 (Fla. 1st DCA 1986). Applying the Department's interpretation to the facts of this case, establishes a "planning horizon" of July 1989. Pertinent to this case, subparagraphs 2 a-d provide the methodology for calculating gross bed need for the district/subdistrict (in this case the district and subdistrict are the same--Broward County) in the horizon year. The first step in the calculation of gross need for the horizon year is to derive "BA," the estimated bed rate for the population age-group 65-74. This rate is defined by subparagraph 2b as follows: BA = LB/ (POPC + (6 x POPD) Where: LB is the number of licensed community nursing home beds in the relevant district. POPC is the current population age 65-74 years. POPD is the current population age 75 years and over. The parties concur that the district licensed bed figure (LB) is calculated based on the number of licensed community nursing home beds as of June 1, 1986, and that there were 3,226 licensed beds in the district on that date. 2/ The parties do not, however, agree as to the date on which POPC and POPD should be derived. The formula mandated by the rule methodology for calculating BA requires that the "current population" for the two age groups be utilized. The rule does not, however, prescribe the date on which the "current population" is to be derived. Forum contends that the appropriate date to establish the "current population" for POPC and POPD is January 1, 1986. The Department contends that the appropriate date is the date of application. In the opinion of David Warner, which opinion is credited, the base for POPC and POPD should correspond to the period for which the average occupancy rate (OR) is calculated. For the July batching cycle, OR is based upon the occupancy rates of licensed facilities for the months of October through March preceding that cycle. January 1, 1986, as the midpoint of that date, is the appropriate date to derive POPC and POPD. Supportive of Dr. Warner's opinion are the past practices of the Department. Between December 1984 and December 1986, the Department routinely used a three and one half year spread between the base population period and the horizon date for "current population" in its semiannual nursing home census report and bed need allocation. That three and one half year spread was adopted by the Department for the same reasons expressed by Dr. Warner. In the batching cycle of January 1987, which cycle immediately followed the cycle at issue in this case, the Department utilized a three and one half year spread between the base population period and the horizon date for "current population" when it awarded beds in that cycle. The Department offered no explanation of why, in this case, it proposed to use a three year spread between the base population period and the horizon date for "current population" in calculating POPC and POPD. Application of the methodology prescribed by subparagraph 2b to the facts of this case produces the following calculation: BA = 3,226 / (158,878 + (6 x 110,217) BA = 3,226 / (158,878 + 661,302) BA = 3,226 / 820,180 BA = .0039332 The second step in the calculation of gross need for the horizon year is to derive "BB," the estimated bed rate for the population age group 75 and over. This methodology is defined by subparagraph 2c, and calculated in this case as follows: BB = 6 x BA BB = 6 x .0039332 BB = .0235992 The third step in the calculation of gross need for the horizon year is to derive "A," the district's "age-adjusted number of community nursing home beds" at the horizon year. This methodology is defined by subparagraph 2a as follows: A = (POPA x BA) + (POPB x BB) Where: POPA is the population age 65-74 years in the relevant departmental district projected three years into the future. POPB is the population age 75 years and older in the relevant departmental district projected three years into the future. The parties concur that POPA and POPB are, respectively, 165,533 and 128,250 for the horizon year. Accordingly, application of the methodology prescribed by subparagraph 2a produces the following calculation: A = (165,533 x .0039332) + (128,250 x .0235992) A = 651.07439 + 3,026.5974 A = 3,677.67 The final step in the calculation of gross need in the horizon year is to derive "SA," the "preliminary subdistrict allocation of community nursing home beds" (gross bed need in this case. 3/ This calculation is defined by subparagraph 2d as follows: SA = A x (LBD/LB) x (OR/.90) Where: LBD is the number of licensed community nursing home beds in the relevant subdistrict. OR is the average 6 month occupancy rate for all licensed community nursing homes within the subdistrict of the relevant district. Occupancy rates established prior to the first batching cycle shall be based upon nursing home patient days for the months of July 1 through December 31; occupancy rates established prior to the second batching cycle shall be based upon nursing home patient days for the months of January 1 through June 30. The batching cycle in which these applications were filed occurred before the Department amended its rule to include the fixed need pool concept. Accordingly, the parties agree that the six month period on which the average occupancy rate is calculated is not as set forth in subparagraph 2d, but, rather is defined by former rule 10-5.11(21)(b)4 as follows: OR is the average occupancy rate for all licensed community nursing homes within the subdistrict of the relevant district. Review of applications submitted for the July batching cycle shall be based upon occupancy data for the months of October through March preceding that cycle... In Broward County (District X) LB and LBD are the same since the county has not been divided into subdistricts. Application of the foregoing methodology to the facts of this case produces a gross need in July 1989 of 3,453 beds, computed as follows: 4/ SA = 3,677.67 x (3226/3226) x (.845/.9) SA = 3,677.67 x 1 x .938888 SA = 3452.92 The net need calculation The final step in the numeric need methodology is to derive net reed from gross need. According to subparagraph 2i, this need is calculated as follows: The net bed need allocation for a subdistrict, which is the number of beds available for certificate of need approval, is determined by subtracting the total number of licensed and 90 percent of the approved beds within the relevant departmental sub- district from the bed allocation determined under subparagraphs 2.a. through f. Notably, former rule 10-5.11(21)(b)9 comports with the new rule in all material respects. While the rule requires that net need be calculated by subtracting "the total number of licensed and 90 percent of the approved beds" in the subdistrict from the gross need previously calculated, it is silent as to the date that inventory should be calculated. The Department asserts, through application of "policy," that the number of licensed beds should be calculated as of June 1, 1986 (the date established by former rule 10-5.11(21)(b)7 for calculating LB and LBD), and the number of approved beds as of December 1, 1986 (the date the Department's supervisory consultant signed the state agency action report). Forum would likewise calculate licensed beds as of June 1, 1986, but would also calculate approved beds as of that date. The Department offered no proof to expose and elucidate its policy choice. As discussed below, the dates used by the Department and Forum for purposes of calculating net need were facially unreasonable. 5/ The inventory of licensed and approved beds under subparagraph 2i, as well as former rule 10-5.11(21)(b)9, are inextricably linked. As approved beds are licensed, the approved bed inventory decreases and the licensed bed inventory increases. The Department's policy choice concerning the dates at which licensed and approved beds are to be counted is neither logical nor rational since it could result in some nursing home beds not being counted as either licensed or approved. For example, if beds were approved and not yet licensed in June 1, 1986, but licensed before the supervisory consultant signed the state agency action report (SAAR), they would not be counted in either inventory. Since the purpose of subparagraph 2i is to calculate a realistic estimate of the net bed need for the horizon year, it is appropriate to use the most current inventory of licensed and approved beds at the point a decision is rendered on an application. This assures, to the greatest extent possible, that the horizon population will not be over or underserved. In those circumstances where the SAAR becomes final agency action, the Department's approach of calculating inventory on the date the supervisory consultant signs the SAAR, assuming that inventory includes licensed and approved beds on that date, might be reasonable. However, where, as here, the SAAR constitutes only preliminary agency action, and a de novo review of the application is undertaken, there is no rational basis for subsuming that inventory. The rule methodology considered, the only rational conclusion is that net need be derived on the date of de novo review, and that it be calculated by reducing the gross need calculation by the inventory of licensed and approved beds, from previous batching cycles, existent on that date. As of the date of administrative hearing, there were 3,226 licensed beds and 695 approved beds in the district/subdistrict. Applying the methodology prescribed by subparagraph 2i to the facts of this case calculates a surplus of 399 community nursing home beds in the district for the June 1989 planning horizon. Consistency with State and local health plans The parties have stipulated that both proposals are consistent with the State and local health plans except for Forum's facial failure to comply with the local health plan priority relating to the construction of freestanding facilities with a minimum capacity of 120 beds. Pertinent to this issue, the local health plan provides: In addition to controlling capacity in order to discourage the construction of unneeded beds, the certificate of need program addresses cost containment by encouraging efficiencies in operation as a criteria to certificate of need approval. A number of operational models have historically proven to be positive influences on efficiency. Licensure laws, for instance, require nursing home staffing patterns to be structured in minimum modules of 30 bed configurations. As a result, the construction of nursing homes with beds totalling numbers not divisible by 30, has the capability of encouraging over staffing. Similarly, experience has shown that freestanding nursing homes constructed at less than 120 beds also are less cost efficient compared to larger facilities. Likewise, since construction and corresponding debt service retirement is greater for freestanding facilities than for new construction on existing facilities, expansion and conversion as an alternative to new construction frequently acts to reduce costs. The basis for the 120-bed minimum size for a "freestanding" facility in the local health plan is to insure efficiency and economy of scale. The 60- bed project proposed by Forum is not "freestanding" but is an integral part of a retirement center which also includes 120 independent living units and a 30-bed adult congregate living facility. Under the circumstances, the economies and efficiencies contemplated by the local health plan will be achieved, and Forum's proposal is consistent with such plan. The local health plan also provides, as a recommendation, that: ... applications for certificates of need to construct additional nursing home beds should be approved so as to support the State policy of 27 beds/1000 population over age 65 in Broward County. Considering the population over age 65 at the applicants' planning horizon, as well as the number of licensed and approved beds in the district, calculates a 14.36 beds/1000 population over age 65 for July 1989. Accordingly, the applicants' proposal is consistent with state and local health plans regarding bed to population ratio. Comparative Review As between the competing applicants, the proof demonstrates that Forum is the superior applicant, and that were the award of a certificate of need appropriate in this case that its application would be the one of choice. Under no circumstance does the proof support an award to Amedex, since it failed to demonstrate the immediate and long-term financial feasibility of its project, failed to demonstrate that it would provide quality care, and failed to demonstrate that it had sufficient resources for project accomplishment and operation. The criteria on balance In evaluating the applications of Amedex and Forum, none of the criteria established by Section 381.705, Florida Statutes (1987), or Rule 10- 5.011(k), Florida Administrative Code, have been overlooked. In the case of Amedex, the lack of need in the district, as well as its failure to demonstrate compliance with relevant criteria as discussed in paragraph 46, demonstrates that, on balance, its application should be denied. In the case of Forum, its application meets all relevant statutory and rule criteria except need. Need is the key criteria in the instant case. Forum's failure to satisfy that criterion by proof of numeric need or special circumstances is dispositive of its application for licensure, and such failure is not outweighed by any other, or combination of any other, criteria.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the applications for certificate of need filed by Amedex and Forum be DENIED. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 25th day of February, 1988. WILLIAM J. KENDRICK 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 25th day of February, 1988.
The Issue The central issue for disposition is whether Certificate of Need no. 7750, for 24 hospital-based skilled nursing unit beds should be awarded to Petitioner, St. Joseph’s Hospital, Inc. (St. Joseph’s). To resolve that issue it is necessary to resolve factual issues regarding the need for the proposed beds and a legal issue regarding the impact of Health Care and Retirement Corp. of America v. Tarpon Springs Hospital Foundation, Inc. 671 So.2d 217 (Fla 1st DCA 1996) (Tarpon Springs) on the fixed need pool published in the first nursing home batching cycle of 1994 in Hillsborough County, District 6, Subdistrict 1.
Findings Of Fact The Parties St. Joseph’s Hospital, Inc. (St. Joseph’s) is a not- for-profit hospital which has operated in the Tampa, Florida area for over fifty years. It is currently licensed for 883 acute- care beds; it owns John Knox Village, which includes an adult congregate living facility and medical center nursing home; and it offers other services in a continuum of health care. St. Joseph’s also has a 19-bed, in-hospital skilled nursing care unit which became operational in early 1995. The Agency for Health Care Administration (agency or AHCA) is the state agency responsible for administering and enforcing the certificate of need (CON) process described in sections 408.031 through 408.045, Florida Statutes (“the Health Facility and Services Development Act”). The Process The fixed need pool published by AHCA in vol. 20, number 15, April 15, 1994, Florida Administrative Weekly, projected a need for 94 additional nursing home beds in Hillsborough County, District 6, Subdistrict 1, for the January 1997 planning horizon. There is no evidence that this fixed need pool was challenged. Approximately eleven health care providers, including St. Joseph’s, responded to the fixed need pool notice with applications for CON’s ranging from 10 to 94 beds. Some of those applicants, like St. Joseph’s, were hospitals seeking hospital- based skilled nursing beds. After comparative review of the applications, AHCA issued its state agency action report (SAAR) on September 16, 1994, denying some and granting others, and explaining the basis for its intended actions. Some of the beds were awarded for a hospital-based skilled nursing unit; St. Joseph’s application for 24 in-hospital beds was denied in the comparative review that determined St. Joseph’s application was inferior to others in meeting statutory and rule criteria. The applicants’ petitions for formal hearing were forwarded to the Division of Administrative Hearings by AHCA and were consolidated in a single proceeding relating to the 94 beds in District 6, Subdistrict 1. On October 19, 1995, during the pendancy of appeal of the DOAH Final Order in Tarpon Springs, all of the parties in the consolidated cases executed and filed a stipulation which disposes of 93 out of the 94 available beds in the fixed need pool. The stipulation provides that all of the applicants, except St. Joseph’s, withdrew their petitions for formal hearing. As to St. Joseph’s, the stipulation provides: St. Joseph’s has previously withdrawn its opposition to the applications of all other parties to this proceeding by its Notice of Voluntary Dismissal of Petitions for Administrative Hearing and Notice of Lack of Opposition, dated September 13, 1995. St. Joseph’s and AHCA stipulate that Case No. 94-6236, wherein St. Joseph’s challenged the denial of its application for certificate of need 7750 to add 24 skilled nursing unit beds, should be held in abeyance pending the final judicial determination of Tarpon Springs Hospital Foundation, et al. v. Agency for Health Care Administration, et al. (Proceeding below DOAH Case Nos. 94-0958RU and 94-1165RU, reported at 16 FALR 3420, presently on appeal before the First District Court of Appeal). St. Joseph’s acknowledges that the terms of this settlement will deplete the fixed bed need pool determined to be available for this application cycle, assents to the same, and maintains its position that its application should be approved notwithstanding the lack of availability of community nursing home beds within the fixed bed need pool. All other parties to this agreement except for AHCA hereby withdraw their petitions filed in this proceeding in opposition to the application of St. Joseph’s for certificate of need 7750 and waive any challenge or protest that they may have to the issuance of certificate of need 7750. St. Joseph’s hereby agrees not to oppose the transfer of up to seven (7) beds from this application cycle to TGH. After remand of all of the consolidated cases except St. Joseph’s (DOAH no. 94-6236), AHCA entered its final order on December 13, 1995, awarding CON’s for 93 beds to various of the applicants. Some of those 93 beds were awarded for hospital- based skilled nursing units. This final order depleted the fixed need pool of all but one bed. In their prehearing stipulation filed on August 29, 1996, AHCA and St. Joseph’s admitted these relevant facts: The appropriate planning area is Hillsborough County; The appropriate planning horizon for the application is January 1997. Rule 59C-1.036, Florida Administrative Code was appropriately used in determining the bed need for Hillsborough County, District 6, Subdistrict 1, for the first nursing home batching cycle of 1994; and The numbers used to derive the project pool of 94 beds in Hillsborough County, District 6, Subdistrict 1 for the January 1997 planning horizon were accurate and appropriate. At the hearing and in its proposed recommended order, St. Joseph’s concedes that it did not apply for beds under “not normal” circumstances. The Project St. Joseph’s proposes to establish a 24 bed, hospital- based skilled nursing unit in an area of its main hospital building by converting 24 acute care beds to this use. The project involves 19,600 square feet of renovation at a total project cost of $684,731, including conversion costs of $331,940. Actual out-of-pocket costs for the project are $352.791. The skilled nursing beds within the hospital facility are intended to contribute to St. Joseph’s goal of providing a full continuum of care for its patients, with services provided at different levels for a medically-appropriate and cost- effective outcome. St. Joseph’s anticipates that the patient using the skilled nursing (also called “subacute care”) unit would be one coming from the acute care setting and requiring less-acute care, but a more intensive level of care and a shorter length of stay than generally offered in a typical nursing home. All ancillary services and therapies will be available at the hospital seven days a week. Rehabilitative services, which are critical to the patient likely to use the skilled nursing beds, include physical therapy, occupational therapy, speech and language therapy, and recreation therapy. Need Analysis/Impact on Existing Programs Virtually all of the referrals to the proposed new beds will come from within St. Joseph’s. This is the experience of the new 19 bed unit. The hospital’s doctors and their patients prefer to not transfer to an outside facility and they plan in advance, as part of their treatment goals, that the subacute rehabilitative phase of treatment will be in St. Joseph’s own skilled nursing unit. The multi-discipline health care team evaluates and identifies patients who will benefit from such treatment; patients are not automatically shifted down to the unit. The existing unit enjoys a near-100 percent occupancy rate and has a waiting list for patients. Sometimes patients are held in an acute care bed while awaiting transfer to a vacant bed in the skilled nursing unit. This is an inappropriate use of the acute care bed. Few, if any patients would come from other hospitals. Since many hospitals now have their own skilled nursing units, there is little exchange of patients. In the experience of St. Joseph’s staff, other hospitals generally fill their own units from within in their own “continuum of care” system. John Knox Village is not an alternative for patients who need to “step-down” from acute to subacute care. John Knox is eleven miles from St. Joseph’s and does not provide the intensity of care that is offered in the hospital-based skilled nursing unit. There are subacute care, or skilled nursing care, beds in Hillsborough County in free-standing, not hospital-based units. These alternative facilities are not all fully occupied and some offer similar services and treat patients comparable to those treated in the hospital-based units. Evidence that the free-standing skilled nursing facilities are not appropriate alternatives to St. Joseph’s new beds was largely anecdotal. Although Dr. Wasylik, St. Joseph’s chief of orthopedics, is generally familiar with facilities in which he has patients, his observation that transfer of patients from St. Joseph’s would not be appropriate is based on his concern that the “continuity of care” would be disrupted. In other words, even before surgery and admission to an acute care bed, a “critical pathway” in the patient’s rehabilitation is developed. Another facility might have a different pathway that would disrupt the rehabilitative process. Better continuity of care, in Wasylik’s view, translates into quicker, and thereby more cost-effective, recovery. Financial Considerations Although the agency found some inconsistencies in the financial data included in St. Joseph’s application, those inconsistencies affected only the scoring of the application in a competitive batching cycle. The agency witness who provided financial review of the application conceded there was no problem with funding the project, and due to the small size of the project in relation to the size of St. Joseph’s, the project would not have a significant impact on the cost of other services provided by St. Joseph’s. The proposed project would generate a positive financial return for St. Joseph’s. In the proforma financial statement included with the application, the hospital used an occupancy rate of 74%; the actual occupancy rate experienced in the new 19 bed unit is higher. Some of the problems the agency found when reviewing St. Joseph’s application were adequately explained at hearing. For example, the actual cost of the project is less than what the agency found in the financial projections in the application. Also, if, as the agency contends, St. Joseph’s has over-stated its projection of Medicaid patients, a lower Medicaid utilization rate will actually inure to the benefit of St. Joseph’s, since the Medicaid reimbursement rate is lower than for other payor sources. While not obvious on the face of the application, the financial assumptions provided by St. Joseph’s were sufficient to extrapolate valid projected salary expenses in the second year of operation. In summary, a CON application, by necessity, includes estimates and projections of expenses and revenue generated by the proposed project. St. Joseph’s now has the experience, which it did not have when the application was prepared, of the actual expenses and revenue from its 19 bed unit. That actual experience helps validate its prediction of financial feasibility for the proposed 24 beds. Architectural Issues At hearing, St. Joseph’s clarified its intent to not delicense nor relocate acute care beds to make room for the proposed 24 bed skilled nursing unit. Nor does it intend to “phase in” the skilled nursing beds, if approved. Neither of these intentions is clear from the face of the application and the architectural review by the agency raised questions on these issues. The questions affected St. Joseph’s overall standing in a competitive review process, but are not serious enough to foreclose approval if the application is considered on its own merit. The application states that the new beds would be co- located with the existing 19 beds. But if there is not sufficient room, as long as St. Joseph’s can accomplish the project at or below the approved project cost, and as long as St. Joseph’s obtains agency approval for placing the beds elsewhere (which approval is routinely granted), the precise location of the beds within St. Joseph’s facility is not a problem. The beds may not, nor are they intended to be, co-mingled with acute care beds in the hospital. Upon construction, the 24 beds will meet all of the licensure, building code and other regulations applicable to a skilled nursing unit within an acute care hospital. Balancing the Criteria and Summary of Findings There is little dispute that St. Joseph’s has the financial resources to complete the approved project and to operate it successfully. Nor is quality of care, either in the existing facility and projected in the future, an issue of dispute. The questions raised in the financial review and architectural review are not impediments to approval. There are two significant problems with St. Joseph’s proposal. St. Joseph’s serves the entire planning district, and the impact of new beds must be considered in that district-wide health-planning perspective. St. Joseph’s generates enough patients from within its own hospital to fill the beds close to capacity. Other facilities providing similar services in the district are not at full capacity. The possibility of those existing facilities serving as an alternative to new beds was not adequately explored by St. Joseph’s, but was rejected out of an abundance of pride in its own fine services, or physician and patient loyalty. Patient and physician preference does impact “real world” utilization of health care facilities but cannot drive the health planning decisions that are made in the CON process. The second, and most significant impediment to St. Joseph’s application is that only one bed remains in the fixed need pool established for the relevant planning horizon. As discussed below, Tarpon Springs did not invalidate that fixed need pool. St. Joseph’s application does not reflect a willingness to accept any fewer than the requested beds, much less an award of only one single bed. (See, Respondent’s Exhibit 12, CON application, p. 34)
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: that the Agency for Health Care Administration enter its final order denying CON number 7750 to St. Joseph’s Hospital, Inc. DONE and ENTERED in Tallahassee, Leon County, Florida, this 23rd day of January 1997. MARY CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of January, 1997. COPIES FURNISHED: Ivan Wood, Esquire Baker & Hostetler Suite 2000 100 Louisiana Houston, Texas 77002 Steven A. Grigas, Esquire Agency for Health Care Administration Building 3 2727 Mahan Drive Tallahassee, Florida 32308-5403 Sam Power, Agency Clerk Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308-5403 Jerome W. Hoffman, Esquire General Counsel 2727 Mahan Drive Tallahassee, Florida 32308-5403
The Issue The issue for consideration in this case is whether Respondent’s license as a nursing home administrator in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Board of Nursing Home Administrators (Board), was the state agency in Florida responsible for the regulation of the nursing home administrator profession in this state and the licensing of nursing home administrators. Respondent, Judith Ortiz, was a licensed nursing home administrator holding license number NH 0002926. Respondent has an undergraduate degree in science and art, and a master’s degree in Business Administration and Health Care Administration. Subsequent to the award of her graduate degree, she taught in long-term care facilities in Dade County, Florida, during which time she developed an interest in care of the elderly. Ms. Ortiz took and passed the examination for licensure as a nursing home administrator in 1990 and began work as an assistant nursing home administrator for Unicare, a care provider, in 1991. In December 1992, she came to Unicare’s facility in New Port Richey, Richey Manor, as the administrator, and remained there until she was terminated in May 1994. At the time of her termination, she was being paid a salary of $37,500. Shortly after Respondent assumed the position of administrator at Richey Manor, an inspection of the facility by the Agency for Health Care Administration revealed no significant problem with resident pressure sores. Respondent’s own chronology of events reveals a subsequent series of unfortunate personnel problems which befell the facility. Only two months after the Respondent was hired, the director of nursing at the facility resigned. It was at that point that Respondent’s problems amplified. A survey of the facility in October 1993 resulted in a citation for insufficient staffing, but the company’s nurse consultant, who visited the facility in November 1993, concluded the staffing was sufficient. Respondent continued to seek various forms of assistance from her corporation, but in each case, her request was denied. The director of nursing, whom Respondent hired to replace the head nurse who had resigned at the beginning of the year, did not perform well, but Respondent nonetheless retained her on staff. Ms. Patti K. Silar, a surveyor of nursing homes for the Department of Health Care Administration, has surveyed Richey Manor between six and eight times in the same number of years. In February 1994, as the result of an anonymous complaint filed with the Department, she conducted a survey there during which she found several deficiencies. Specifically, she found that while the number of personnel on duty met minimum license requirements, other factors indicated that staffing was inadequate to meet residents’ needs. This manifested itself in extended delays in responding to patient calls which resulted in resident incontinence and resident falls; failure to maintain resident cleanliness; failure to ensure residents were fed on time; and failure to properly turn bed-ridden patients. All these deficiencies, which continued over a period of months, resulted in adverse health impacts to the residents. A follow-up inspection of the facility was done on April 28, 1994. The follow-up was to a survey done on July 23, 1993, and to an investigation done on October 21, 1993, and February 22, 1994. On this follow-up, the facility’s handling of pressure sores was again found to be inadequate; nursing staffing was determined to be inadequate to meet residents’ needs, resulting in inadequate resident care in several respects; and charge nurses were found not to be fulfilling their responsibilities for the total nursing care of residents in several respects. The facility’s annual survey was conducted on April 29, 1994. Several additional deficiency areas were addressed in this survey, including the failure of the facility’s transfer paperwork to provide for appeal rights; inappropriate utilization of restraints; failure to meet sufficient quality of life standards; failure to maintain acceptable levels of assessments and personal grooming of residents; and failure to maintain acceptable comprehensive care plans for all residents to avoid deficiencies in such areas as dehydration, restraints, and the like. This latter survey revealed, as related to pressure sores, not only that those deficiencies previously noted were not improved, but also that residents who came into the facility without pressure sores developed them while in the facility. There was no plan in place to prevent the development of pressure sores, or to prevent the development of skin breakdown. Simple corrective action, such as the purchase of appropriate mattresses or the frequent turning and repositioning of the resident was not being taken. Ms. Silar concluded that the percentage of residents with pressure sores at Richey Manor was much higher than in other similar facilities, standing at approximately 25% of the residents afflicted, as compared with 7 to 8% in other facilities surveyed. In addition to the level A areas found to be deficient, there were multiple level B areas, somewhat less serious than level A areas, found to be deficient as well. These included such matters as fluids being added to a resident’s intake without a physician’s orders, or, in the alternative, residents not being provided what a physician ordered. Further, Ms. Silar experienced an inability to reconcile records on seven residents of seven attempted. This is very unusual and showed a repeated failure to carry out doctors’ orders. The responsibility of insuring that all of this is done rests with the administrator who may delegate responsibility, but is not relieved of accountability. Ms. Silar did not conduct the survey for the purpose of determining the competence of the facility administrator, but she observed significant areas in the operation which were out of compliance, and residents were at risk as a result thereof. The care she observed being provided by the staff under the supervision of the Respondent was less than acceptable in those areas identified in the survey reports as being deficient. Overall, the facility was not in compliance. Whereas the February 1994 survey was abbreviated, the April 1994 survey was a full review for re-certification and re-licensure. As such, it was more comprehensive than the complaint survey. This April 1994 survey was done within one year of the prior general survey; earlier than normal because of the Department’s serious concerns arising out of the February 1994 complaint and inspection results. According to Ms. Silar, Richey Manor, when compared with more than 100 other facilities she has surveyed since 1989, was in the lowest 2 percent. A specific problem she observed there during the February 1994 investigation was the facility’s treatment of bed sores. During the April 1994 survey, Ms. Silar found not only no improvement, but, in fact, a worsening of the conditions. As a result of these surveys, a moratorium was placed on admissions to Richey Manor, and, in fact, disciplinary action was subsequently taken against the facility. Federal standards enacted in 1987 charge facilities such as Richey Manor with the responsibility of assisting residents to achieve their highest potential over-all. They also encourage facilities to change their emphasis to achieving practical results rather than concentrating on paper compliance. Ms. Silar found that Richey Manor was placing only minimal emphasis on solving the bed sore problem when she surveyed the facility in February 1994. At that time it was clear that the residents were not being assessed, nor were care plans being developed. When the more comprehensive survey was done in April 1994, 35 of 36 residents still did not have either appropriate assessments or care plans prepared for them. The facility did not have a comprehensive plan of care, and without that it was impossible to develop individual care plans. The federal standards as to staffing relate only to “sufficient” staff to meet the needs of residents. Under state requirements, specific minimum ratios are required. A facility may have the minimum number of personnel, but not have enough to meet the needs of the residents. This may also relate to quality of staff or to inappropriate utilization of existing staff. In the instant case, though schedules were prepared to reposition residents, there were not enough staff members to follow the schedule. The staff shortage resulted in staff not responding to resident calls in a timely manner, and physician orders not being followed. It also was determined that Richey Manor was taking a large number of residents who required more attention and for whom proper care could not be given. Of the more than 111 residents in the facility at the time of the survey, 62 required assistance with daily living and toileting, and approximately 40 required assistance with dressing. The above observations were concurred in by Carole G. Hembree, a health facility evaluator with the Agency. Ms. Hembree concluded she would not put a loved one in Richey Manor at the time in issue because she did not believe the quality of care given there was adequate. The survey reports referred to herein were reviewed for the Agency by Anthony J. Pileggi, a nursing home administrator since 1978 and an expert in nursing home administration. Mr. Pileggi supervises a 120-bed facility and is lead administrator for three other facilities in a care group. He is also licensed as a preceptor for trainees in the field of nursing home administration. After his review of the survey reports, Mr. Pileggi concluded that during the time in question there was a lack of nursing supervision, a large turnover in nursing staff, poor quality in the nurses on staff, and a lack of preventive measures addressing pressure sores. In his opinion, the administrator did not maintain an awareness of the level of care being provided in the facility through frequent review of indicators such as pressure sores, screening, and treatment. It was his observation that at Richey Manor, during the time in question, there was emphasis on treatment and little effort given to prevention. Respondent’s actions in management were less than competent for a qualified administrator. Mr. Pileggi saw what he considered to be an emphasis on admissions based on payor type rather than acuity level at a time when insufficient care was being given to existing residents to prevent the development of pressure sores. When staff is short, it is inappropriate to take more residents who need a high measure of care. To do so compounds the problem. Mr. Pileggi does not believe Respondent did all she could do to solve the problem. Her reliance on budget problems as an excuse for her actions is not, he believes, well placed. In his opinion, budget is not all-controlling. The administrator must strive to provide adequate care within the budget, and must oversee the director of nursing to insure that staff nurses are performing properly. The appearance of pressure sores is an indicator of other problems. These could include a failure to properly use restraints, improper hydration, and inadequate nutrition. Though Respondent lays blame for the facility’s problems on the nursing staff, as administrator she had the responsibility to ensure there is a proper screening and evaluation of new residents to determine the likelihood of those residents developing pressure sores and to ensure the residents’ skin care is adequate. The administrator must ensure the staff is properly trained and that schedules are developed to provide adequate care. In Pileggi’s opinion, the administrator should perform a weekly review to ensure the facility is working properly, and if not, make appropriate changes to ensure the residents get proper treatment, A nursing home administrator is required to provide supervision of resident care - not provide the care herself. Resident care requires more attention than other administrator duties. Administrators should have a general knowledge of how to review a care plan to provide appropriate care for residents and to meet the residents’ needs. It is the responsibility of the nursing home administrator to ensure proper care plans are developed by qualified persons. The failure to have proper care plans has a direct negative impact on the quality of care. Based on Mr. Pileggi’s review of the survey reports, he found that Richey Manor’s care plans were not sufficient. Respondent points out that in April 1993, she noted a negative trend in patient skin care. Mr. Pileggi does not believe Respondent did enough at that point or thereafter to ensure an appropriate care plan was developed and implemented to combat this trend. Respondent had sufficient authority to act. She could have changed the approach of the various committees towards admissions so as to lower acuity level, but it appeared to Pileggi that she emphasized a payor source admissions policy to conform to budgetary considerations. Acuity level of the resident is related to what staff is needed to provide the appropriate support. The greater the acuity level, the more staff is required. A nursing home administrator can manage the resident census by acuity level to ensure that existing staff can provide the level of care needed. Pileggi contends that if the Respondent recognized she did not have adequate staff to provide the appropriate level of care to the residents, she could have stopped admissions or screened prospective admissions for more independent residents who would require less care. Respondent complained of a lack of corporate support in the areas of staffing and funding; however, Pileggi believes there was much by way of monitoring and supervision of staff she could have done to improve the care provided without more staff or more money. He does not believe Respondent did enough in this regard. To the contrary, if staffing were already inadequate to meet residents’ needs, as Respondent claims, it would negatively impact the health, safety, and welfare of the residents to take in more residents of a high acuity level. Mr. Pileggi concluded that Respondent showed a strong concern for budgetary considerations of the company. One of her highest priorities appeared to be the effect of any action on operating income. Pileggi contends that a nursing home administrator should use the budget as a tool to provide guidelines for patient care. At those times when line items are not satisfactory, the administrator must look to other budget areas for funds to provide appropriate care. In this case, Pileggi is of the opinion that Respondent’s primary concern should have been for the residents. This means answering calls, keeping the residents comfortable, and other like activities. Respondent claims she devoted 20% of her time to marketing. This time could have been better spent, according to Pileggi, dealing with problems. In short, Respondent should have spent more time in supervising preventive care, rather than seeking additional residents. Evidence presented at hearing indicates that the Director of Nursing at Richey Manor at the time of Respondent’s incumbency was performing poorly, and Respondent advertised for a replacement. Proof of the director’s incompetence, in Pileggi’s opinion, was the deterioration of resident skin condition. Pileggi is satisfied that Respondent’s awareness of this situation was demonstrated by her seeking to replace the director. However, in his opinion, merely seeking to replace the incompetent employee was not enough. Respondent should have worked around her to correct a situation which was obviously of long standing. The development of pressure sores does not come about over-night. Mr. Pileggi would not state that Respondent repeatedly acted contrary to the health, safety, and welfare of the residents of Richey Manor, but because of the existence of the pressure sore problem, a condition which takes a significant time to develop, Respondent’s decision to admit more high acuity level residents indicates that she intentionally failed to act in the best interests of the residents. In summary, Mr. Pileggi concluded that Respondent’s actions constituted neglect or incompetence in that she did not ensure the facility had adequate staff, and she did not take adequate measures to treat and prevent pressure sores on the residents. The magnitude of the pressure sore problem was, for Mr. Pileggi, proof positive of the failure of Respondent to perform properly. His opinion would not change even if it were shown that Respondent authorized and was trying to hire more staff when, at the same time she was actively seeking to admit more patients who required a high level of care. Ms. Ortiz is adamant in her denial of the allegations that she acted in an incompetent or negligent manner while serving as administrator at Richey Manor. When she went to the facility as its administrator, she was confronted with a director of nursing who had been there for more than a year and who had a management style which conflicted radically with the more structured style of the Respondent. As a result, the director of nursing became disgruntled and resigned in February 1993. Respondent claims she immediately placed an advertisement in area papers for a replacement but got no response. She discussed this problem with her supervisor, Unicare’s regional director of operations, who gave her some recruiting suggestions. Respondent also requested monetary assistance to advertise out-of-state, but this request was denied. Nonetheless, in June 1993, Respondent was able to hire a director of nursing. In the interim, while the hiring search was going on, the assistant director of nursing filled in and Unicare’s regional office sent in a temporary director from another area. In June 1993, Respondent hired Ms. Paderoff, a woman over 60 years old, as director of nursing. However, though her performance at first was good, Ms. Paderoff began to fail to show up for work, and the assistant director would not support her. Her effectiveness was, therefore, diminished. Ms. Paderoff was an experienced nurse - knowledgeable and capable. While she worked at Richey Manor, she was given goals for the nursing department and immediately began implementing them. She was supportive and worked well until the end of 1993. At that time the facility’s personnel problems began to take their toll on her and she threatened to resign. Respondent attempted to support Ms. Paderoff, and Ms. Paderoff withdrew her resignation, but it shortly became apparent her performance had deteriorated badly. Respondent felt that additional supervision was necessary and met weekly with Ms. Paderoff and the other department heads to evaluate their expectations. Ultimately, Paderoff terminated employment. In mid-February 1994, Respondent was able to hire an assistant director and a month after Paderoff left, Respondent hired a very experienced director of nursing. At that point, finally, both the director and assistant director were qualified in their jobs. The problems faced by the facility continued, however, and in May 1994, Respondent was fired. In October 1995, the Agency sought to impose an administrative fine of $1,575 against Unicare for the deficiencies relating to insufficient staff and improper handling of pressure sores identified during the tenure of Respondent but still uncorrected by February 2, 1995. Respondent contends that at the very beginning of her employment at Richey Manor she recognized the staffing problems and sought to correct them. She contacted the local community college’s nursing department to attempt to recruit, as did the director of nursing, who also served as nurse consultant to the college. She sent recruitment letters to over 100 nurses without any response. She encouraged nursing students to perform their rotations at Richey Manor, and she tried to get a pay raise approved for certified nursing assistants (CNA). She also tried to retain and supplement the existing nursing staff by introducing CNA helpers, instituted perfect attendance bonuses, established a recruitment and retention committee to brainstorm ways to get and keep nursing staff, and had two licensed nurses mentor new nursing employees. She also had plans for offering continuing education units in the area, and looked into the possibility of developing an in-house CNA training program. Ms. Ortiz claims her time as administrator was spent evaluating the activities of eight departments in the facility. She spent a lot of time with hiring and replacing staff, including department heads. She started her work day at 7:00 a.m., and her day would end at around 5:30 or 6:00 p.m. She would also periodically come in on weekends to show support for the staff and to see what was going on, and would attend the monthly family dinners hosted by the facility. During January and February 1993, as a result of the weekly reports of the nursing staff, Respondent sent reports of resident pressure sores to the company’s regional and national office. As she became more acquainted with the problem, she set goals to address it, starting in March or April 1993. She instructed the director of nursing, when she first came on board, to look into and assess the program in effect and to make recommendations to improve the system. Though Respondent claims this worked well, in fact, the problem continued. Respondent claims that in July 1993 she developed a skin-care program at Richey Manor to address the problem and it appeared the director of nursing was enthusiastically supporting it. In a letter to the company dated November 12, 1993, Respondent outlined the local actions taken regarding skin-care and observed that the facility had experienced a “marked decrease in in-house acquired decubes,” but this apparently was not so. In addition, Respondent contends that Unicare’s skin care policy and procedures were followed at Richey Manor. This policy includes a risk assessment program and continuing observations of factors bearing on the potential for developing decubetes - all the things Respondent claimed she had implemented in her referenced letter to the company. Notwithstanding those efforts, from November 1993 to February 1994, residents who already suffered from pressure sores continued to be admitted to the facility, and it was also during this time that the performance of the director of nursing deteriorated, as previously described. Nonetheless, from February 1994 onward, more emphasis was placed on staff to deal with the pressure sore problem, and the corporate office got more involved as well. The company stepped into the picture because at a meeting at the regional office which she attended in January 1994, she requested the approval of an incontinence care product, and the provision of nurse consultants to train the local staff. Both requests were denied by the company. At a similar meeting held in February or March 1994, the request for this product was again made and again denied. All during this time, Respondent believed she was being attentive to the needs of her residents. She was open to and sought suggestions from staff on the issues confronting the facility, and contacted corporate staff to discuss the problems with them. Apparently, the Agency was not satisfied with Respondent’s efforts and concluded the facility no longer merited a regular license. On May 12, 1994, the Agency changed the rating for Richey Manor to conditional, and, as was noted previously, Respondent was dismissed shortly thereafter. Mr. Pileggi characterized Respondent’s emphasis on recruiting high acuity level residents as being an example of mismanagement. As a for-profit institution, corporate policy sought achievement of a certain levels of resident census and income/profit. Corporate goals called for a resident census of between 95 and 97 percent of capacity. Consistent therewith, Respondent sought to obtain more private pay residents. While Respondent admits to seeking to obtain private pay/insurance pay residents, she categorically denies at any time seeking to admit more high acuity level residents, or of admitting a resident over the objection of the director of nursing. The decision of admission to Richey Manor was a collegial decision of a committee with Respondent having final authority. Petitioner has failed to demonstrate any correlation between the source of payment and acuity level, and Ms. Schild, also a nursing home administrator and owner, categorically indicates there is none. Though Respondent may not have sought high acuity level residents, she also did not seek to reduce the case load by declining to admit residents who required a high level of care. The documents considered by Mr. Pileggi and the Board were also reviewed by Kelly Schild, a nursing home administrator and expert in nursing home administration. Based on her review of the documents and what she heard at hearing regarding the Respondent’s actions, she concluded that Respondent took all steps necessary to address the items listed in the Administrative Complaint. Respondent had a care plan in place and made repeated but unfulfilled requests to her corporate headquarters to redress her staffing problems. In her opinion, Respondent had a more than adequate plan for identifying residents at risk from pressure sores and did everything a prudent nursing home administrator could do to address the issues confronting her in light of the lack of financial and other support from her company. Ms. Schild does not believe Respondent repeatedly acted in a manner contrary to the health, safety, and welfare of her residents. To the contrary, Respondent repeatedly addressed the issue of insufficient staff and the pressure sore problem. Respondent was hampered in the performance of her duties by her corporate hierarchy which prevented her from taking appropriate corrective action. Even in light of corporate resistance, Respondent did all a reasonable and prudent nursing home administrator could do. Nonetheless, Ms. Schild notes that if she had confronted the problems Respondent was having with pressure sores, she would not have admitted any new residents with the same problem. In fact, she would not admit any new residents if she had insufficient staff to support the existing resident census. It is in this area that Respondent’s actions fell most below acceptable standards.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Nursing Home Administrators enter a Final Order in this matter imposing an administrative fine of $1,575 on Respondent, and placing her license as a nursing home administrator on probation for a period of two years, under such terms and conditions relating to restriction of her practice to only supervised employment as the Board deems appropriate. DONE AND ENTERED this 28th day of August, 1998, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 1998. COPIES FURNISHED: John O. Williams, Esquire Maureen L. Holz, Esquire Williams and Holz, P.A. 355 North Monroe Street Tallahassee, Florida 32301 Wilson Jerry Foster, Esquire 1341 Timberlane Road Suite No. 101-A Tallahassee, Florida 32312 Angela T. Hall, Agency Clerk Department of Health 2020 Capital Circle Southeast Bin A-02 Tallahassee, Florida 32399-1703 John Taylor, Executive Director Board of Nursing Home Administrators Department of Health 1940 North Monroe Street Tallahassee, Florida 32399-0792
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED That Manor Care be issued a CON for the construction of a 60 bed nursing home; Palm Bay Care Center be awarded a CON for the construction of a 60 bed nursing home; Forum Group be awarded a CON for a 40 bed nursing home and Courtenay Springs be awarded a CON for 36 nursing home beds. RECOMMENDED this 26th day of January, 1987, at Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-99675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of January, 1987. COPIES FURNISHED: William Page, Jr., Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 Jean Laramore, Esquire Kenneth Hoffman, Esquire 325 North Calhoun Street Tallahassee, Florida 32301 Thomas B. Smith, Esquire Post Office Box 633 Orlando, Florida 32802 John Grout, Esquire Post Office Box 180 Orlando, Florida 32802 Donna H. Stinson, Esquire Suite 100 Perkins House 118 North Gadsden Street Tallahassee, Florida 32301 Susan G. Tuttle, Esquire 402 South Florida Avenue Tampa, Florida 33602 Robert D. Newell, Jr., Esquire Suite B 200 South Monroe Street Tallahassee, Florida 32301 John F. Gilroy, Esquire Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 APPENDIX The following constitutes my specific rulings pursuant to Section 120.57(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties herein. 1-13 Accepted. 14 & 15 Accepted. 16-18 Rejected as a recitation of the evidence. 19-23 Accepted. 24 Accepted. 25-29 Accepted. 30 & 31 Accepted. 32 Irrelevant. 33-34 Accepted. 35-37 Accepted. 38-46 Accepted. 47 & 48 Accepted. 49 & 50 Accepted. 51 Discussion, not Finding of Fact. 52-56 Accepted. Rejected as a recitation of the evidence. Accepted. Accepted to the fact that there were no sheltered beds in existence. Irrelevant. 61-63 Accepted but not of substantial positive value. 64 & 65 Accepted. Opinion not Finding of Fact. Accepted. 68-75 Accepted. 76-80 Irrelevant based on part operation and evidence shows facility is to be sold. 81-85 Irrelevant - see next 86-90 Rejected as a conclusion of law and not a Finding of Fact. 91 Not a Finding of Fact. 92-94 Accepted. 95 Irrelevant as to local district. 96-103 Accepted. 104-105 Rejected as contrary to the weight of the evidence. Accepted as to what Dr. Hoffman supported. Accepted as to what Dr. Hoffman indicated. 108-110 Accepted. Rejected as contrary to the weight of the evidence. Accepted. Not a Finding of Fact. 114-118 Accepted. 119&120 Not a Finding of Fact. 121&122 Accepted. 123 Accepted as to the one facility currently operated. 124-127 Accepted. Speculation insufficient to support a Finding of Fact. Argument, not a Finding of Fact. Accepted. 131-133 Accepted. 134 Not a Finding of Fact. 135-137 Accepted. 138 Not supported by the weight of the evidence. 139-147 Accepted. 148&149 Not a Finding of Fact. 150-164 Accepted. Rejected as a summary of testimony, not a Finding of Fact. Irrelevant. 167-176 Accepted. Rejected as contrary to the weight of the evidence Rejected as a summary of testimony. Accepted. 180&181 Accepted. 182 Irrelevant. 183&184 Accepted. 185 Rejected as a conclusion. 186&187 Rejected as contrary to the weight of the evidence. As to Manor Care 1 Accepted. 2&3 Rejected as not a part of the case. 4 Accepted. 5-7 Accepted. Accepted. Accepted. 10-11 Accepted. 12 Accepted. 13-19 Accepted. 20-22 Accepted. As to Forum 1-13 Accepted. 14-16 Accepted. 17-22 Accepted. 23&24 Accepted. 25-27 Accepted. 28-31 Accepted. 32 Accepted. 33-35 Accepted. 36 Rejected as speculation. 37-42 Accepted. 43 Accepted. 44-47 Accepted. 48&49 Accepted. 50-55 Accepted. Rejected as a conclusion not consistent with the evidence. Accepted. 58&59 Accepted. 60-64 Accepted. 65-69 Accepted. 70&71 Irrelevant. 72&73 Accepted. 74-76 Accepted. Accepted as to the first sentence. Second sentence is not a Finding of Fact. Accepted. As to PBCC 1&2 Accepted. 3 Rejected as a Conclusion of Law. 46 Accepted. Accepted. Rejected as contrary to the weight of the evidence. Accepted. 10-12 Accepted. Rejected as contrary to the weight of the evidence except for the first sentence which is accepted. Rejected. 15-20 Accepted. 21-27 Accepted. 28 Rejected as an overstatement and not supported by the evidence. 29&30 Accepted. 31 Rejected as contrary to the weight of the evidence. 32-38 Accepted. 39-43 Accepted. 44-50 Accepted. 51-57 Accepted. Accepted except for the first sentence which is unsupported by credible evidence of record. Accepted. Rejected. Accepted. As to Courtenay This party failed to number or otherwise identify its Findings of Fact individually. Therefore, no specific ruling as to each Finding of Fact is hereby made. In light of the ultimate recommendation of the Hearing Officer that the party's CON be approved, no prejudice to this party can be said to have occurred. As to DHRS 1-4 Accepted 5 Summary of testimony and not a Finding of Fact. 6-1 Is an argument of the party's position, not a Finding of Fact. 12-14 Rejected as matters not a part of the party's position at hearing. Accepted. Accepted. Accepted. Accepted. 19-22 Accepted. Rejected as a summary of testimony and not a Finding of Fact. Accepted. 25-28 Accepted. 29-31 Accepted.
The Issue The issues for determination are: (1) whether the noncompliance as alleged during the August 30, 2001, survey and identified as Tags F324 and F242, were Class II deficiencies; (2) whether the "Conditional" licensure status, effective August 30, 2001, to September 30, 2001, based upon noncompliance is appropriate; and (3) whether a fine in the amount of $5,000 is appropriate for the cited noncompliance
Findings Of Fact Charlotte is a nursing home located at 5405 Babcock Street, Northeast, Fort Myers, Florida, with 180 residents and is duly licensed under Chapter 400, Part II, Florida Statutes. AHCA is the state agency responsible for evaluating nursing homes in Florida pursuant to Section 400.23(7), Florida Statutes. As such, in the instant case it is required to evaluate nursing homes in Florida in accordance with Section 400.23(8), Florida Statutes (2000). AHCA evaluates all Florida nursing homes at least every 15 months and assigns a rating of standard or conditional to each licensee. In addition to its regulatory duties under Florida law, AHCA is the state "survey agency," which, on behalf of the federal government, monitors nursing homes that receive Medicaid or Medicare funds. On August 27 through 30, 2001, AHCA conducted an annual survey of Charlotte's facility and alleged that there were deficiencies. These deficiencies were organized and described in a survey report by "Tags," numbered Tag F242 and Tag F324. The results of the survey were noted on an AHCA form entitled "Statement of Deficiencies and Plan of Correction." The parties refer to this form as the HCFA 2567-L or the "2567." The 2567 is the document used to charge nursing homes with deficiencies that violate applicable law. The 2567 identified each alleged deficiency by reference to a Tag number. Each Tag on the 2567 includes a narrative description of the allegations against Charlotte and cites a provision of the relevant rule or rules in the Florida Administrative Code violated by the alleged deficiency. To protect the privacy of nursing home residents, the 2567 and this Recommended Order refer to each resident by a number (i.e., Resident 24) rather than by the name of the resident. AHCA must assign a class rating of I, II or III to any deficiency that it identifies during a survey. The ratings reflect the severity of the identified deficiency, with Class I being the most severe and Class III being the least severe deficiency. There are two Tags, F242 and F324 at issue in the instant case, and, as a result of the August 2001 survey, AHCA assigned each Tag a Class II deficiency rating and issued Charlotte a "Conditional" license effective August 30, 2001. Tag F242 Tag F242 generally alleged that Charlotte failed to meet certain quality of life requirements for the residents, based on record review, group interviews, and staff interviews, and that Charlotte failed to adequately ensure that the residents have a right to choose activities that allow them to interact with members of the community outside the facility. On or about August 24, 2001, AHCA's surveyors conducted group interviews. During these interviews, 10 of 16 residents in attendance disclosed that they had previously been permitted to participate in various activities and interact with members of the community outside the facility. They were permitted to go shopping at malls, go to the movies, and go to restaurants. Amtrans transportation vans were used to transport the residents to and from their destinations. The cost of transportation was paid by Charlotte. An average of 17 to 20 residents participated in those weekly trips to dine out with other community members at the Olive Garden and other restaurants. During those trips, Charlotte would send one activity staff member for every four to six residents. The record contains no evidence that staff nurses accompanied those select few residents on their weekly outings. The outings were enjoyed by those participants; however, not every resident desired or was able to participate in this particular activity. Since 1985, outside-the-facility activities had been the facility's written policy. However, in August 2000, one year prior to the survey, Matthew Logue became Administrator of the facility and directed his newly appointed Activities Director, Debbie Francis, to discontinue facility sponsored activities outside the facility and in its stead to institute alternative activities which are all on-site functions. Those residents who requested continuation of the opportunity to go shopping at the mall or dine out with members of the community were denied their request and given the option to have food from a restaurant brought to the facility and served in-house. The alternative provided by the facility to those residents desiring to "interact with members of the community outside the facility" was for each resident to contact the social worker, activity staff member, friends or family who would agree to take them off the facility's premises. Otherwise, the facility would assist each resident to contact Dial-A-Ride, a transportation service, for their transportation. The facility's alternative resulted in a discontinuation of all its involvement in "scheduling group activities" beyond facility premises and a discontinuation of any "facility staff members" accompanying residents on any outing beyond the facility's premises. As described by its Activities Director, Charlotte's current activities policy is designed to provide for residents' "interaction with the community members outside the facility," by having facility chosen and facility scheduled activities such as: Hospice, yard sales, barbershop groups for men and beautician's day for women, musical entertainment, antique car shows, and Brownie and Girl Guides visits. These, and other similar activities, are conducted by "community residents" who are brought onto the facility premises. According to the Activities Director, Charlotte's outside activities with transportation provided by Amtrans buses were discontinued in October of 2000 because "two to three residents had been hurt while on the out trip, or on out-trips."1 Mr. Logue's stated reason for discontinuing outside activities was, "I no longer wanted to take every member of the activities department and send them with the resident group on an outing, thereby leaving the facility understaffed with activities department employees." The evidence of record does not support Mr. Logue's assumption that "every member of the facility's activities department accompanied the residents on any weekly group outings," as argued by Charlotte in its Proposed Recommended Order. Charlotte's Administrator further disclosed that financial savings for the facility was among the factors he considered when he instructed discontinuation of trips outside the facility. "The facility does not sponsor field trips and use facility money to take people outside and too many staff members were required to facilitate the outings." During a group meeting conducted by the Survey team, residents voiced their feelings and opinions about Charlotte's no longer sponsoring the field trips on a regular basis in terms of: "feels like you're in jail," "you look forward to going out," and being "hemmed in." AHCA's survey team determined, based upon the harm noted in the Federal noncompliance, that the noncompliance should be a State deficiency because the collective harm compromised resident's ability to reach or maintain their highest level of psychosocial well being, i.e. how the residents feel about themselves and their social relationships with members of the community. Charlotte's change in its activities policy in October of 2000 failed to afford each resident "self- determination and participation" and does not afford the residents the "right to choose activities and schedules" nor to "interact with members of the community outside the facility." AHCA has proved the allegations contained in Tag F242, that Charlotte failed to meet certain quality of life requirements for the residents' self-determination and participation. By the testimonies of witnesses for AHCA and Charlotte and the documentary evidence admitted, AHCA has proven by clear and convincing evidence that Charlotte denied residents the right to choose activities and schedules consistent with their interests and has failed to permit residents to interact with members of the community outside the facility. Tag F324 As to the Federal compliance requirements, AHCA alleged that Charlotte was not in compliance with certain of those requirements regarding Tag F324, for failing to ensure that each resident receives adequate supervision and assistance devices to prevent accidents. As to State licensure requirements of Sections 400.23(7) and (8), Florida Statutes (2000), and by operation of Florida Administrative Code, Rule 59A-4.1288, AHCA determined that Charlotte had failed to comply with State established rules, and under the Florida classification system, classified Tag F324 noncompliance as a Class II deficiency. Based upon Charlotte's patient record reviews and staff interviews, AHCA concluded that Charlotte had failed to adequately assess, develop and implement a plan of care to prevent Resident 24 from repeated falls and injuries. Resident 24 was admitted to Charlotte on April 10, 2001, at age 93, and died August 6, 2001, before AHCA's survey. He had a history of falls while living with his son before his admission. Resident 24's initial diagnoses upon admission included, among other findings, Coronary Artery Disease and generalized weakness, senile dementia, and contusion of the right hip. On April 11, 2001, Charlotte staff had Resident 24 evaluated by its occupational therapist. The evaluation included a basic standing assessment and a lower body assessment. Resident 24, at that time, was in a wheelchair due to his pre-admission right hip contusion injury. On April 12, 2001, two days after his admission, Resident 24 was found by staff on the floor, the result of an unobserved fall, and thus, no details of the fall are available. On April 23, 2001, Resident 24 was transferred to the "secured unit" of the facility. The Survey Team's review of Resident 24's Minimum Data Set, completed April 23, 2001, revealed that Resident 24 required limited assistance to transfer and to ambulate and its review of Resident 24's Resident Assessment Protocols (RAPs), completed on April 23, 2001, revealed that Resident 24 was "triggered" for falls. Charlotte's RAP stated that his risk for falls was primarily due to: (1) a history of falls within the past 30 days prior to his admission; (2) his unsteady gait; (3) his highly impaired vision; and (4) his senile dementia. On April 26, 2001, Charlotte developed a care plan for Resident 24 with the stated goal that the "[r]esident will have no falls with significant injury thru [sic] July 25, 2001," and identified those approaches Charlotte would take to ensure that Resident 24 would not continue falling. Resident 24's care plan included: (1) place a call light within his reach; (2) do a falls risk assessment; (3) monitor for hazards such as clutter and furniture in his path; (4) use of a "Merry Walker" for independent ambulation; (5) placing personal items within easy reach; (6) assistance with all transfers; and (7) give Resident 24 short and simple instructions. Charlotte's approach to achieving its goal was to use tab monitors at all times, to monitor him for unsafe behavior, to obtain physical and occupational therapy for strengthening, and to keep his room free from clutter. All factors considered, Charlotte's care plan was reasonable and comprehensive and contained those standard fall prevention measures normally employed for residents who have a history of falling. However, Resident 24's medical history and his repeated episodes of falling imposed upon Charlotte a requirement to document his records and to offer other assistance or assistive devices in an attempt to prevent future falls by this 93-year-old, senile resident who was known to be "triggered" for falls. Charlotte's care plan for Resident 24, considering the knowledge and experience they had with Resident 24's several falling episodes, failed to meet its stated goal. Charlotte's documentation revealed that Resident 24 did not use the call light provided to him, and he frequently refused to use the "Merry Walker" in his attempts of unaided ambulation. On June 28, 2001, his physician, Dr. Janick, ordered discontinuation of the "Merry Walker" due to his refusal to use it and the cost involved. A mobility monitor was ordered by his physician to assist in monitoring his movements. Charlotte's documentation did not indicate whether the monitor was actually placed on Resident 24 at any time or whether it had been discontinued. Notwithstanding Resident 24's refusal to cooperatively participate in his care plan activities, Charlotte conducted separate fall risk assessments after each of the three falls, which occurred on April 12, May 12, and June 17, 2001. In each of the three risk assessments conducted by Charlotte, Resident 24 scored above 17, which placed him in a Level II, high risk for falls category. After AHCA's surveyors reviewed the risk assessment form instruction requiring Charlotte to "[d]etermine risk category and initiate the appropriate care plan immediately," and considered that Resident 24's clinical record contained no notations that his initial care plan of April 23, 2001, had been revised, AHCA concluded that Charlotte was deficient. On May 13, 2001, Dr. Janick visited with Resident 24 and determined that "there was no reason for staff to change their approach to the care of Resident 24." Notwithstanding the motion monitors, on June 17, 2001, Resident 24 fell while walking unaided down a corridor. A staff member observed this incident and reported that while Resident 24 was walking (unaided by staff) he simply tripped over his own feet, fell and broke his hip. Charlotte should have provided "other assistance devices," or "one-on-one supervision," or "other (nonspecific) aids to prevent further falls," for a 93-year-old resident who had a residential history of falls and suffered with senile dementia. Charlotte did not document other assistive alternatives that could have been utilized for a person in the condition of Resident 24. AHCA has carried its burden of proof by clear and convincing evidence regarding the allegations contained in Tag F324.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Agency enter a final order upholding the assignment of the Conditional licensure status for the period of August 30, 2001 through September 30, 2001, and impose an administrative fine in the amount of $2,500 for each of the two Class II deficiencies for a total administrative fine in the amount of $5,000. DONE AND ENTERED this 13th day of February, 2003, in Tallahassee, Leon County, Florida. FRED L. BUCKINE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of February, 2003.
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
The Issue Whether Petitioner's application for a Certificate of Need ("CON") authorizing establishment of a 60-bed sheltered nursing home adjacent to a 75-unit life care residential facility in HRS Health District IX, Palm Beach County, Florida, should be granted (in whole or in part), or denied.
Findings Of Fact I. The Proposal Petitioner is a not-for-profit Florida corporation organized to provide retirement and nursing home services to aged Episcopalians in the three Episcopal Dioceses in Florida: Central, Southwest and Southeast. Since 1951, Petitioner has operated a life care facility or community, with adjacent nursing home, in Davenport, Florida. It has 71 residential (well-care) units and 60 nursing home beds, operates at nearly full capacity, and has a 3-to-5 year waiting list. There are 128 residents at the facility, 57 of whom live in the nursing home. Petitioner now seeks to replicate the (Davenport) Crane Gray Inn in Lake Worth, Palm Beach County, Florida, in order to better serve the needs of older Episcopalians. The life care community, consisting of a 60-bed skilled nursing home and a 75- unit retirement facility, would be convenient to the residents of the Southeast Florida diocese, but is expected to draw residents throughout Florida. The 60-bed skilled nursing home, for which a CON is required, would be a one-story building measuring 19,100 square feet. Initially estimated to cost $1,705,515, or $68.06 per square foot to construct and equip, actual bids subsequently received have reduced the expected cost to $60.00 per square foot. The total cost of the entire project, including the well- care and nursing-care facilities, is estimated to be $3,600,000. Petitioner intends to obtain certification of the entire project as a continuing care facility in accordance with Chapter 651, Florida Statutes. In March, 1985, the State of Florida Department of Insurance and Treasurer issued Petitioner a provisional license to operate the proposed facility as a continuing care facility.2 Petitioner intends to comply with the reporting and escrow requirements which Chapter 651, Florida Statutes, imposes on life-care facilities. The admission requirements for the proposed life care facility are the same as those which have applied to the Davenport Crane Gray Inn ("Inn"). Before admission, a resident must execute a continuing care or "Resident's Agreement" with the Inn. Under that agreement, in exchange for the future maintenance and support of the resident at the Inn for the remainder of the applicant's life, the applicant transfers all of his or her real and personal property to the Inn. The resident also agrees to execute a will to the Inn to effectuate the transfer of property then owned or later acquired. No entrance fee is charged. The Inn promises to provide the resident with a personal living unit (including all utilities); three meals a day; health care (including medicine, physician fees, dental care, and hospitalization); recreational, educational, social and religious programs; funeral and burial costs; a monthly allowance for personal expenses; weekly maid service and laundry facilities; and transportation for shopping trips and other activities. Either party may terminate the agreement under specified conditions. On termination, the Inn will transfer back to the resident the property previously conveyed, or a sum equal to the value thereof, without interest and deducting therefrom an amount sufficient to compensate the Inn for the resident's care and support while at the Inn. If the resident becomes eligible for social security or government assistance, such assistance is paid to the Inn for the support of the resident. If the resident dies while at the Inn, all property transferred to the Inn on admission is considered to have been earned and becomes the property of the Inn. (Joint Exhibit I) There is no requirement that a prospective resident have any assets and applicants are ostensibly admitted without regard to their financial condition. (However, in the past ten years, only two Medicaid patients or indigent residents have been admitted to the Davenport Inn.) An account for each resident is maintained, to which earnings are transferred and costs of care deducted. Residents without assets are treated the same as those with assets and the account information is treated confidentially. Over time, the accounts of residents are depleted. Currently, 68% of the patients at the Davenport nursing home are Medicaid patients. The per diem rate reimbursed by Medicaid is $51.25. No resident has ever been transferred for lack of funds. However, the average resident, when admitted, transfers assets worth approximately $24,000 to the Inn. Prospective residents of the proposed nursing home will ordinarily come from the adjacent well-care retirement units. The purpose of the nursing home is to serve the individuals residing in the life care community who, as their needs intensify, require skilled nursing care. Only on rare occasions will an individual be admitted directly to the nursing home without first residing in the well-care portion of the life care community. At the Davenport Inn, this has happened only once. Petitioner acknowledges that prospective nursing home patients may come from eligible Episcopalians who reside in nursing homes in the local community. Actual residence in the well-care units will not be a prerequisite to admission to the nursing home. However, no person has been, or will be, admitted to the nursing home without first executing a continuing care agreement. Direct admission of nursing home patients from outside the life care center is permissible under "sheltered nursing home" rules, as construed by HRS officials. Robert E. Maryanski, Administrator of HRS' Community Medical Facilities Office of Health Planning and Development (which implements the CON licensing process) advised Petitioner's counsel on September 20, 1985, that under HRS rules, patients may--if necessary--be admitted directly to the proposed nursing home without first residing in the well-care units. Individuals who have paid for membership with the particular life care center, finding themselves in immediate need of nursing home care, may be directly admitted into the nursing home. (Petitioner's Ex. No. 11) If HRS rules were interpreted otherwise, perfunctory stops in well-care units "on the way to the nursing home" would be encouraged, a practice which would burden patients and serve no useful purpose. Although Petitioner's CON application does not specify a minimum age for admission to the life care community, Petitioner's life care centers are oriented toward members of the Episcopal Protestant Churches who are at an advanced age and "need a place to go for their last days... [In] a lot of cases they have outlived their own children." (TR-34) The average age of the patients in the Davenport nursing home is 89; in the well-care retirement units, 82. The average overall age of members of the Davenport life care community is 84 or 85. Approximately one-half of the residents eventually need nursing care. At Davenport, the minimal age for admission is 71. (TR- 12) According to a member of the Board of Directors of Petitioner, only patients 70 or over will be admitted to the life care community proposed for Palm Beach County. (TR-35) There is already a waiting list of ninety (90) qualified persons for the proposed life care community in Palm Beach County. Out of that figure, only five people currently require nursing home services. After executing the standard continuing care agreement, these five people would be admitted directly to the nursing home facility, without first residing in a well-care unit. Waiting lists are compiled six times a year, with the most recent completed only a week prior to hearing. Petitioner does not intend to utilize all the nursing home beds, since it must keep some beds open to meet the needs of well-care residents. Nursing home beds at the Palm Beach facility would be filled gradually, approximately two per week, so it would take six months to reach optimum capacity. The parties stipulate that all criteria for evaluating CON applications under Section 381.494(6)(c) and Rule 10-5.11, Florida Administrative Code, have been met or are inapplicable except for the following: The long-term financial feasibility of the project, the availability of operating capital, and the economic impact on other providers (Section 381.494(6) (c)8, 9, Fla. Stat.); The cost of construction (Section 381.494(6) (c)13, Fla. Stat.); The ratio of beds to residential units (Rule 10-5.11(22)(a), Fla. Admin. Code). II. Financial Feasibility The historical track record of the Davenport facility over the last 13 years and projections for the proposed facility demonstrate that the proposed nursing home is financially feasible and that Petitioner has, or can obtain sufficient funds to meet its operating costs. Moreover, as a licensed Chapter 651 life care facility, the financial viability of the entire operation will be monitored by the Department of Insurance. Assets available to support the costs of operating the life care community include income and assets derived from incoming residents; estates and bequests; and a fund of 1,300,000.00, functioning as an endowment, to be placed in escrow. The cost for a resident in the well-care units is approximately $27 per day; the cost in the nursing home is approximately $54 per day. Although there is a deficit of approximately $300 per month in the well-care section of the Davenport facility, there is no deficiency in the nursing home. Medicaid payments are sufficient to cover the costs of providing nursing care. Philanthropy should not be required to sustain the operation of the proposed nursing home. Petitioner has never had difficulty in obtaining financial support for its Davenport well-care units. More than one-half of the operating deficit for the well-care units was met by funds at work and did not depend on philanthropy. There are over 200 Episcopal Churches in the three Florida dioceses with 90-100,000 parishioners, who have been responsive to fund- raising efforts in the past. Last year, Petitioner raised $693,000 from fund raising drives. It is reasonably expected that this source of financial support will also be available to support the proposed life care facility, including the nursing home. An endowment fund of $1,300,000 is also available. These funds will be made available to support the proposed life care community. In addition, each new resident contributes an average of $24,000, which is used to defray operating costs. Barnett Bank will finance construction of the project at one-half percent over prime. Petitioner intends to pay off the capital debt in two or three years. The land has already been acquired and some land preparation costs have been paid. Petitioner has expended over $800,000, to date, on the proposed life care community. Petitioner has $120, 000 on hand for the project, in addition to escrowed reserves. An HRS health care planner has misgivings about the financial viability of the project since Petitioner has relied on philanthropy to support its Davenport facility, and would rely on it to some extent to support the proposed facility. However, Petitioner projects that 77% of the nursing home patients at the proposed facility will be Medicaid eligible. Due to efficiencies in operation, Medicaid payments should be sufficient to cover the costs of nursing home patients at the proposed facility, just as they have been at the Davenport nursing home. The various sources of funds available to Petitioner--proven wholly adequate in the past--should be sufficient to cover the other costs of operation and ensure the continued financial viability of the nursing home, as well as the associated well-care units. III. Cost of Construction HRS contends that the initial estimate of construction costs for the proposed nursing home ($68.00 per square foot) is excessive when compared to other 60-bed nursing facilities, where the cost is approximately $10.00 less per square foot. But, through various cost-cutting measures, the cost of the project has now been reduced to approximately $60.00 per square foot, which is reasonable and in line with the other nursing home projects. IV. Ratio of Nursing Rome Beds to Residential Units Rule 10-5.11(22)(a), Florida Administrative Code, provides that HRS "will not normally approve an application for new or additional sheltered nursing home beds if approved would result in the number of sheltered nursing home beds that exceed one for every four residential units in the life care facility." The parties stipulate that, absent unusual or exceptional circumstances, this rule would preclude approval of more than 19 of Petitioner's 60 proposed nursing home beds. The proposed nursing home, like the Davenport facility it duplicates, will be unique, unusual or extraordinary, when compared with other nursing homes in Florida, due to the advanced age of its patients. No one under 70 will be admitted. The average age of its patients is expected to approach 89 with the average age of well-care residents approaching 82. Approximately one-half of the well-care residents will eventually require transfer into the nursing home. People of advanced age are more likely to require nursing home care. Based on Petitioner's historical experience at its Davenport facility, it is likely that 60 nursing home beds will be required to meet the needs of residents of the proposed well- care units. It has been shown that the proposed 60 nursing beds will be needed to serve the needs of well-care residents as they age and their health care needs intensify. That has been the case at the Davenport facility, where rarely has a patient been admitted to the nursing home who did not first reside in the well-care units. The proposed nursing home and life care center will draw patients and residents similar to those drawn by the Davenport facility--the state-wide applicant "pool" of both is expected to be the same. For this reason, the proposed nursing home should have no significant impact on the census of, or need for, community nursing homes in Palm Beach County. It appears that the rationale behind the four-to-one (residential units to nursing home beds) ratio of the HRS rule is that, under normal or ordinary conditions, only one nursing home bed will be required to serve the residents of four well- care units. In the instant case, actual experience has shown this assumption to be patently erroneous. If only 19 nursing home beds were allowed Petitioner--because of the ratio cast in HRS rules--it is likely that many well-care residents at the proposed life care center would be forced to find nursing care outside of the center. Displaced, placed in nursing homes distant from the life care community, such patients would lose close contact with spouses and friends. The HRS rule, embracing a numerical ratio for the norm, allows flexibility in particular situations which are shown to be abnormal. The circumstances of the instant case show it to be an abnormal situation, fully justifying approval of 60-beds sought, rather than the 19 otherwise permitted by the HRS rule.
Recommendation Accordingly, based on the foregoing, it is RECOMMENDED: That Petitioner's application for a CON authorizing establishment of a 60-bed nursing home in Palm Beach County be GRANTED; and that the CON, on its face, state that issuance is predicated on Petitioner's statement of intent (during Section 120.57(1) licensing proceedings) that (i.) no one under 70 years of age will be admitted to the life care community (including both well-care and nursing-care sections) and (ii.) that, only in relatively rare and unusual cases, will patients be directly admitted to the nursing home without first residing in the well- care residential units of the life care communities.3 See, Section 381.494(8)(g), Florida Statutes (1985). DONE and ORDERED this 14th day of March, 1986, in Tallahassee, Florida. R. L. CALEEN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of March, 1986.
