The Issue Whether Petitioner was in violation of 42CFR 483.25(l)(1), 42CFR 483.60(d), Rules 59A-4.112(5) and 59A-4.1288, Florida Administrative Code, at the time of its annual survey in July 2000, and, if so, whether those violations were uncorrected at the time of resurvey in September 2000, in order to justify the issuance of a Conditional licensure rating.
Findings Of Fact Tampa Health Care Center (Petitioner) is a licensed nursing home in Tampa, Florida. Pursuant to Chapter 400, Florida Statutes, Respondent surveys Petitioner to determine whether it is in compliance with applicable laws and regulations. If there are deficiencies, it determines the level of deficiency. When Respondent conducts a survey of a nursing home, it issues a survey report, commonly called by its form number, a "2567." The particular regulation, and the allegedly deficient practices which constitute a violation of that regulation, are cited in a column on the left side of the paper. After receiving the 2567, the facility is required to develop a plan of correction which is put in the right hand column corresponding to the alleged deficiency. The facility is required to develop this plan regardless of whether it agrees that it is in violation of any regulations, and it is prohibited from being argumentative. Respondent conducted its annual survey of Petitioner, ending July 27, 2000, and issued a 2567 survey report noting certain deficiencies. The deficiencies are designated as tag numbers. Among those noted were Tag F329, which is the shorthand reference to 42 C.F.R. Subsection 483.25 (1)(1), and Tag F431, which incorporates 42 C.F.R. Subsection 483.60(d). Respondent rated these deficiencies as Class III deficiencies. Respondent conducted a follow-up survey on September 5, 2000, and determined that the deficiencies under tags F329 and F431 were uncorrected, and, as a result, issued a Conditional rating to the facility. On December 2000, Respondent conducted another follow- up survey and determined that all deficiencies had been corrected and therefore issued a Standard license to Petitioner effective that date. The 2567 constitutes the charging document for purposes of issuing a Conditional license. No other document was offered to describe the offenses, or deficiencies, which resulted in imposition of the Conditional license. The parties stipulated at the hearing that Tags F329 and F431 were the only ones at issue in this proceeding. In conducting its survey, Respondent uses a document developed by the Health Care Financing Administration (HCFA), called the State Operations Manual. It indicates guidance on how are to interpret regulations. TAG F 329 The 2567 from the July survey asserts, under Tag F 329, that the facility "failed to monitor psychotropic medications for 5 of 5 sampled residents." The regulation states that residents are to be "free from unnecessary drugs," and elaborates that a drug given without adequate monitoring is considered unnecessary. The guidelines establish that monitoring is expected only for residents on psychotropic medications. Therefore, for a violation to occur, there must first be a resident who is receiving psychotropic medications, and secondly, a lack of monitoring of the use of that drug. Respondent alleged and put on evidence that certain residents (numbers 1, 9, 19, and 21) identified in the July survey did not have "behavior monitoring records" in their files. Specific forms are not mandatory, and evidence of monitoring can be documented elsewhere in a resident's clinical record. Monitoring can be documented in nurses' notes, and those notes were not thoroughly reviewed, as Respondent's surveyors only had limited time for the survey. Respondent presented no evidence that Residents 9, 19, or 21 were receiving psychotropic medications. Petitioner presented evidence of numerous systems in place to monitor residents, including those receiving psychotropic medications. Residents are given a complete clinical assessment within 24 hours of admission; there is then a 14-day more thorough observation and assessment process, culminating in the development of care plans which address particular issues and direct staff to care for residents in particular ways. Nurses regularly document issues or concerns in nurses notes; a physician visits the residents at least once a month, which, as all drugs are ordered by the physician, includes review of the resident's medication. If necessary, a psychiatric evaluation is completed. Once a week a transdisciplinary team meets to discuss any residents "at risk," which includes those receiving psychotropic medications. Additionally, a consultant pharmacist reviews all residents' medications once a month. This review is to determine how well the resident is doing on the drug regimen. It includes reviewing nurses' notes, physicians' notes, the medication administration record, the record of dosages taken on an "as needed" basis, and discussions with nursing staff. The pharmacist reviews whether there are medications administered in excessive doses, in excessive duration, without adequate monitoring, without adequate indications for use, or in the presence of adverse consequences. With regard to the September survey, Respondent alleged in the Form 2567 that "Residents numbers 3, 4, 9, 11, and 13 lacked Behavior Monitoring Forms in their records" and that all were on psychotropic medications which required monitoring. Respondent presented the testimony of Barbara Bearden who stated that Residents 3 and 4 were on psychotropic medications, and that there were no behavior monitoring forms. With regard to Resident 4, Respondent asserted that there was no assessment of behaviors in any records after August 14. Bearden acknowledged that both Residents 3 and 4 received reasonable doses, and that there was no reason to believe the level of medication was too high. Respondent's witness also asserted that there was no "AIMS" assessments, no initial assessment, and no indication of the reason for or effectiveness of the medications. These matters were not alleged in the charging document, which only asserted the lack of behavior monitoring forms. During her testimony, Respondent's witness acknowledged that there was no standard to determine how often there should be behavior monitoring. Marie Maisel testified for Respondent regarding Residents 9, 11, and 13. With regard to Resident 9, she testified that the resident received Restoril, a sleeping medication, and also Zoloft, an anti-depressant, and that there was no "systematic behavior monitoring." Sleeping medications do not require behavior monitoring, according to the State Operations Manual, and at deposition, the surveyor indicated that the only medication the resident received was Restoril. Petitioner therefore had no notice of the additional allegation regarding Zoloft and this fact cannot be considered. With regard to Resident 11, Maisel testified that the resident received Risperdal, a psychotropic medication, and that, in her opinion, the behavior monitoring was not adequate. At hearing the surveyor testified that Resident 13 was receiving Haldol and there was no systemic behavior monitoring. However, the witness acknowledged that when her deposition was taken, she did not know why Resident 13 had been cited. Petitioner therefore had no notice of these allegations regarding Resident 13. Petitioner presented evidence, including excerpts from the resident's clinical record, that Resident 3 had been assessed for drug use, and that behaviors were monitored. The resident had been admitted less than three weeks before the September survey, which means that an initial assessment had been performed, as well as the complete 14-day assessment, just prior to survey. Respondent admitted that it would be inappropriate to reduce medication soon after admission. There was a care plan which addressed the resident's use of Risperdal, and another which addressed the resident's ability to function with the activities of daily living. These care plans directed staff to monitor the resident's condition and behavior. Numerous nursing notes documented the resident's condition and behaviors. Resident 3 was not noted in the pharmacist's monthly report, meaning the review revealed no problems with medications. Furthermore, the resident's medications were significantly reduced while in Petitioner's care, and her condition improved dramatically, from being nearly comatose, to being alert and oriented, and needing only limited assistance with mobility. Resident 4 had been admitted just a month before the survey and had also just undergone an extensive assessment process. Her medications were also reduced from those she had been receiving on admission, and nurses notes clearly documented her condition and behaviors throughout the period up to the survey. These notes document not only the monitoring of behaviors, but the reason and need for the medication, as she exhibited combative behaviors. Resident 4 also did not appear on the pharmacist's report. With regard to Resident 9, Petitioner presented evidence that there was a care plan specifically addressing the resident's use of Zoloft, that there were other care plans which addressed behaviors and condition which required that the resident be monitored, and that there was periodic consideration of reductions. Resident 9 did appear on the pharmacist's report, suggesting consideration of a reduction in dosage; thus demonstrating the effectiveness of the system. Resident 11 had a care plan addressing her use of Risperdal, which required monitoring and other interventions. Monthly nursing summaries reflected that she was monitored, as did nursing notes. Generally, nurses notes indicate when there are problems or unusual occurrences, not when everything is routine. Petitioner also presented evidence with regard to Resident 13's use of Haldol, which showed the reason for its use (wandering, verbal abusiveness), numerous efforts to reduce the dosage, review by the pharmacist, a care plan to address its use, which required monitoring, and monthly summaries summarizing her condition and behaviors. Respondent presented sufficient evidence to show that Residents 3, 4, 9, 11, and 13, cited in the September survey, were appropriately monitored and were not receiving unnecessary drugs. TAG F431 Respondent charged in the September 2000 survey that several insulin vials in the medication room were not marked with the date they were opened. The regulation under Tag F431, 42 C.F.R. Subsection 483.60(d), requires that drugs be labeled "in accordance with currently accepted professional principles" and "the expiration date when applicable." The surveyor guidelines indicate that the critical elements of labeling are the name of the drug and its strength. Additionally, the guidelines advise that drugs approved by the Federal Drug Administration (F.D.A.) must have expiration dates on the manufacturer's container. Respondent's witness acknowledged that all insulin had the manufacturer's expiration date. Although there is a chance of contamination after opening a vial of insulin, it was acknowledged that it is customary to have a policy allowing use for six months after opening. Petitioner has a policy of discarding insulin 60 days after opening. While it is customary to write the opening date on the vial, a failure to do so will only reduce the amount of time it can be used, because of other systems in place. The pharmacy which dispenses the insulin puts a dispensing date on it, and the pharmacist reviews, monthly, stored medications. Within every three months, all medications are checked, and if there is no date of opening, the pharmacist looks to the dispensing date. If the vial was dispensed more than 60 days prior, it is given to the nurse for discarding. Instead of being able to be used for six months beyond the date opened, the medication is discarded sixty days, or at most ninety days, after it was dispensed. Writing the date opened on the vial is not an item encompassed by the regulation as explicated in the guidelines. Furthermore, there is no potential for harm, as there are redundant systems in place.
Recommendation Based of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Director of the Agency for Health Care Administration enter a final order revising the July 27 and September 5, 2000, survey reports by deleting the deficiencies described under Tags F329 and F431, and issuing a Standard rating to Respondent to replace the previously issued Conditional rating. DONE AND ENTERED this 22nd day of August, 2001, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 22nd day of August, 2001. COPIES FURNISHED: Patricia J. Hakes, Esquire Agency for Health Care Administration 525 Mirror Lake Drive, North Room 310J St. Petersburg, Florida 33701 Donna H. Stinson, Esquire Broad and Cassel 215 South Monroe Street, Suite 400 Post Office Drawer 11300 Tallahassee, Florida 32302 Sam Power, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building Three Suite 3431 Tallahassee, Florida 32308 Julie Gallagher, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building Three Suite 3431 Tallahassee, Florida 32308
Findings Of Fact The semi-annual census report by DHRS for District. III dated December 1, 1984, (Exhibit 23) indicated a need for 615 additional nursing home beds for the January 1985 review cycle. Although this report cautioned that changes in reporting and pending litigation or appeals could change the count of approved beds, nevertheless, most of the applicants for beds in the January 1985 batching cycle relied on this report as the basis for their applications. At the time this report was submitted, District III was subdivided into seven sub districts, and the need for each sub district was separately listed. Prior to the completion of the review of the applications in the January 1985 batching cycle, some 500 nursing home beds in District III were allocated to applicants in earlier batching cycles whose applications had been denied for lack of need, and who were in the process of appealing those denials. Many of these applications had been updated and those beds were issued by DHRS pursuant to its then-current policy of issuing beds on a first come-first served basis. As a result, only some beds were allocated to those applicants in the January 1985 batching cycle before the pool of available beds was depleted. Furthermore, rule changes became effective before the January 1985 batching cycle applications were reviewed which eliminated sub districts in District III. Largely because of the allocation of beds to applicants in earlier batching cycles, but also due to population based changes in District III, the bed need methodology, using data current at the time of the hearing and computing need to January 1988, shows there will be an excess of 342 nursing home beds in District III in 1988. (Exhibit 33) Eustis Limited Partnership The initial application of Eustis was for 8 additional beds which involved construction costs. The amended application which was considered in this hearing is for three (3) beds with costs allocated only for the equipment and furniture needed to add a bed to three existing rooms. As amended, Eustis' application is very similar to the application of Oakwood Nursing Center who was granted a CON for the addition of three (3) beds without construction costs. At the time Oakwood's CON was granted, DHRS was in the process of granting CONs for 103 beds. At the time Eustis submitted its application, all of the 615 beds initially available had been dispensed and there was no need for additional beds. At this hearing, Eustis produced no evidence to show a need for the three (3) beds for which Eustis applied. The evidence submitted by Eustis primarily showed that by simply adding a bed to three existing rooms, the cost per bed added was far less than would be the cost of constructing new facilities. Inverness Convalescent Center (ICC) ICC proposes to construct and operate a 120-bed nursing home in Citrus County at a cost of $3,400,000. (Exhibit 15) Citrus County has four licensed nursing homes with a total of 430 beds and an average occupancy rate of less than 90% during the last reported six-month period. (Exhibit 17)- During the last quarter of 1985, the occupancy rate in Citrus County nursing homes was the lowest of the planning areas in District III, and in the first quarter of 1986, it was second lowest. ICC contends the need formula doesn't apply to their application because they propose to serve special needs of the elderly, such as institutionalized patients, head trauma patients, etc. However, the only testimony presented indicating a need in Citrus County for such special services came from ICC owners and employees who live in New Jersey. ICC further contends that since there are less than 27 nursing home beds in Citrus County per 1,000 residents over age 65, that an additional nursing home is needed in Citrus County. However, the 27-beds per 1,000 population is but one factor considered in determining need for nursing home beds. In short, ICC presented no evidence to show that need exists in Citrus County for the proposed facility. Beverly Enterprises Beverly's application is for a CON to add 60 beds to an existing 120-bed nursing home in Live Oak, Suwannee County, Florida, at Suwannee Health Care Center. This facility was opened in 1983 and reached full capacity in seven to nine months. There are two nursing homes in Suwannee County; Suwannee Health Care Center, (HCC) and Advent Christian Village, Dowling Park (ACV). The latter is a church owned retirementc ~B community of 550 residents which provides a continuum of care on five levels. Although Advent Christian is not licensed as a life care community, it gives priority of admission to its 107 licensed nursing home beds to residents of the life care community. As a result, there are few vacancies available for persons living outside the retirement community. Advent - Christian has a waiting list of 32 on the active waiting list and ~20 on an inactive waiting list. People on waiting lists are told the wait is from one to five years for admission. Suwannee HCC has an occupancy rate approaching 100% and a waiting list of approximately 50. As a result, the vast majority of Suwannee County residents needing nursing home care are sent to a nursing home outside Suwannee County, usually in Gainesville, some 65 miles from Live Oak. The planning area in which Suwannee County is located, formerly sub district 1 in District III, has five nursing homes with an average occupancy rate for the last three months of 1985 and the first three months of 1986, ranging from 96.91% to 99.75%. During the first three months of 1986, the occupancy rate of three of these nursing homes was greater than 99%' one as 98.7% and the lowest, Advent Christian, was 96.91% (Exhibit 17). The patient mix at Suwannee ACC is over 80% Medicaid and approximately one-third black. The black population is about 30% of the total population in Suwannee County. Suwannee HCC has had several superior ratings (Exhibits 9, 10), takes patients in order on the waiting list regardless of whether they are Medicaid or private pay, and has a very good reputation in the area for service. DHRS personnel who approve Medicaid placement of patients, hospital employees who have the duty of placing patients in nursing homes, nursing home personnel, and private citizens with relatives in nursing homes, all confirmed the critical access problems of Suwannee County residents for local nursing home placement. Live Oak residents, for example, who need placement in a nursing home are usually sent outside Suwannee County, have their names added to waiting lists at nursing homes in Live Oak, and nursing homes closer to Live Oak than the nursing home in which they are placed, and move to the closer nursing home when a vacancy occurs. As a result, most of the vacancies at Suwannee HCC are filled by patients who were, first transferred outside Suwannee County for nursing home placement, and got on the waiting list at Suwannee HCC. There are very few patients from Suwannee County who are initially placed in a Suwannee County nursing home. Southern Medical Associates (SMA) SMA proposes to construct and operate a free standing, 60-bed, skilled nursing home in Palatka, Putnam County, Florida, at a cost of $1,692,400. (Exhibit 19) When SMA's application was submitted the computation of bed need in Suwannee County under the sub district rule in effect when the application was submitted, showed 30 beds needed in Putnam County. This calculation included 36 beds earlier approved but not yet licensed. At the time of this hearing those approved 36 beds had been revoked by reason of not beginning construction in a timely fashion. The medical consultant who reviewed these applications and prepared most of the State Agency Action reports, (Exhibit 30) initially recommended that SMA'S application be granted. The two existing nursing homes in Putnam County have an occupancy rate in excess of 98 percent for the latest reported 3 month period. (Exhibit 17) 85 to 90 percent of these patients are Medicaid patients. The one nursing home in Palatka, Putnam Memorial Nursing Home, is a 65-bed nursing home with an occupancy rate in excess of 99 percent for the past year, and on the date of hearing had 18 people on the waiting list for a bed. The turnover in this nursing home is about 50 percent each year, with most vacancies resulting from the death of a patient. Two HRS employees whose job it is to determine eligibility of residents of Putnam County for Medicaid reimbursement for nursing home care, testified that they very, seldom see a patient go to Putnam Memorial Nursing Home, that over half of the patients they qualify for eligibility are sent out of the county, and of those placed in the county, almost all are placed at Lakewood Nursing Home which is located 18 miles from Palatka. The only hospital in Putnam County discharges 5 to 6 patients per month who need additional nursing care after discharge. Most of these patients are sent to nursing homes in St. Augustine, Florida, a few are sent to Lakewood, but for very few is a bed available in Palatka.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, as well as the stipulation of facts "entered into by all parties, the following relevant facts are found: Along with six other applicants, the petitioner, Health Quest Corporation, d/b/a Lake Pointe Woods Health Center, and the respondent, Quality Health Facilities, Inc., d/b/a Sarasota Health Care Center, submitted applications for a Certificate of Need to construct and operate new nursing homes in Sarasota County, In June of 1982, the respondent Department of Health and Rehabilitative Services (HRS) determined to issue the application of Sarasota Health Care Center and deny the remaining seven applications. For the purposes of this proceeding, the parties have stipulated that there is a need for at least a 120-bed skilled and intermediate care nursing home in the Sarasota, Florida area. In November, 1982, respondent HRS adopted Rule 10- 5.11(21) , Florida Administrative Code, which provides a formula methodology for determining the number of nursing home beds needed in areas throughout the State. Briefly summarizing, this formula begins with a bed to population ratio of 27 per thousand population age 65 and over, and then modifies that ratio by applying a poverty ratio calculated for each district. The theoretical bed need ratio established for Sarasota County by this portion of the Rule's formula is 23.2 nursing home beds per thousand elderly population projected three years into the future. The population figures to be utilized in the formula are the latest mid-range projections published by the Bureau of Economic and Business Research (BEBR) at the University of Florida. After determining the theoretical need for nursing home beds in an area, the Rule purports to determine the actual demand for beds by determining the current utilization of licensed community nursing home beds, establishing a current utilization threshold and, if this is satisfied, applying a prospective utilization test too determine the number of beds at any given time. Applying the formula methodology set forth in Rule 10- 5.11(21) to Sarasota County results in a finding that there are currently 807 excess nursing home beds in that County. The need for sheltered nursing home beds within a life care facility are considered separately in Rule 10-5.11(22), Florida Administrative Code. Generally speaking, need is determined on the basis of one nursing home bed for every four residential units in the life care facility. Elderly persons 75 years of age and older utilize nursing homes to a greater extent than those persons between the ages of 65 and 74. Persons under the age of 65, particularly handicapped individuals, also utilize nursing home beds. The formula set forth in Rule 10-5.11(21) does not consider those individuals under the age of 65, and it does not provide a weighted factor for the age 75 and over population. In the past, the BEBR mid-range population projections for Sarasota County, compared with the actual census reached, have been low. Petitioner Health Quest, an Indiana corporation, currently owns and/or operates some 2,400 existing nursing home beds in approximately 13 facilities in Indiana. It holds several Certificates of Need for nursing homes in Florida and construction is under way. Petitioner owns 53 acres of land on the South Tamiami Trail in Sarasota, upon which it is constructing a 474-unit retirement center. It seeks to construct on six of the 53 acres a 120-bed nursing home adjacent to the retirement center. Of the 120 beds, it is proposed that 60 will be for intermediate care and 60 will be for skilled care. The facility will offer ancillary services in the areas of speech, hearing, physical, occupational, and recreational therapy. Thirty-five intermediate care beds would be classified as beds to be used for Medicaid recipients and the facility would be Medicare certified. Retirement center residents will have priority over nursing home beds. The total capital expenditure for the petitioner's proposed nursing home project was estimated in its application to be $3.1 million, with a cost per square foot of $46.29 and a cost per bed of approximately $26,000,00. As of the date of the hearing, the estimated capital expenditure for the petitioner's project as $3.9 million. The respondent Quality Health Facilities, Inc., d/b/a Sarasota Health Care Center (QHF), is a Mississippi corporation and owns nursing homes in Tennessee, North Carolina and Haines City, Florida, the latter site having been opened in August of 1983. It also holds three other outstanding Certificates of Need. QHF proposes to construct a 120-bed nursing home containing intermediate and skilled care beds which will be equally available to all members of the community. It is anticipated that it will have approximately 65 percent Medicaid usage and 5 percent Medicare usage. Though it has not yet selected its site, QHF plans to utilize a four-acre site near the City of Venice in Sarasota County. At the time of the application, the total capital expenditure for QHF's proposed project was estimated to be $2.3 million. Its construction costs were estimated at $1.16 million or $33.14 per square foot. QHF's recently constructed Haines City nursing home facility was completed at a construction cost of $1.22 million, or $31.00, per square foot. The Sarasota County facility will utilize the same basic design as the Haines City facility. At the current time, the cost of construction would be increased by an inflation factor of about ten percent. As of the date of the hearing, the projected capital expenditure for QHF's Sarasota County proposed facility was approximately $2.6 million or about $21,000.00 per bed. The owners of QHF are willing and able to supply the necessary working capital to make the proposed nursing home a viable operation. As depicted by the projected interest and depreciation expenses, the QHF facility will have lower operating expenses than the facility proposed by petitioner, Health Quest. In Sarasota County, there is a direct correlation between high Medicaid utilization and high facility occupancy. The long term financial feasibility of a 120-bed nursing home in Sarasota County is undisputed, as is the availability, quality of care, efficiency, appropriateness, accessibility, extent of utilization and adequacy of like and existing services in the health service area.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the application of Health Quest Corporation d/b/a Lake Pointe Woods Health Care, Inc. for a Certificate of Need to construct a 120-bed nursing home in Sarasota County be DENIED. It is further RECOMMENDED that the application of Quality Health Facilities Inc. d/b/a Sarasota Health Care Center for a Certificate of Need to construct a 120-bed nursing home facility in Sarasota County be GRANTED. Respectfully submitted and entered this 31st Day of October, 1983, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 1983. COPIES FURNISHED: John M. Laird, Esquire 315 West Jefferson Blvd. South Bend, Indiana 46601 John T. C. Low, Esquire Paul L. Gunn, Esquire Low & McMullan 1530 Capital Towers Post Office Box 22966 Jackson, Mississippi 39205 James M. Barclay, Esquire Assistant General Counsel 1317 Winewood Blvd. Suite 256 Tallahassee, Florida 32301 David Pingree, Secretary Department of Health & Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32301
The Issue The issue is whether Respondent properly changed Petitioner's licensure status to conditional on June 23, 1997.
Findings Of Fact Petitioner owns and operates a nursing home in Venice, Florida. Respondent conducted a relicensure survey of Petitioner's nursing home on June 12, 1997. On June 23, 1997, Respondent issued Petitioner a new license, effective June 12, 1997, through October 31, 1997, for a skilled nursing facility. However, as a result of the deficiencies found in this survey, Respondent rated the renewal license as conditional. A resurvey on August 6, 1997, revealed that Petitioner had corrected all of the cited deficiencies, so Respondent issued a standard license, effective August 6. There are three ratings for a license: superior, standard, and conditional. Prior to the June 12 renewal, Petitioner's license was rated superior. The issuance of a conditional license adversely affects a licensee in one and possibly two ways. First, the conditional license hinders marketing and employee recruiting and retention. Second, the conditional license may affect Medicaid reimbursement levels. Even though Respondent rerated the nursing home as standard, the earlier conditional rating remains meaningful because it means that Petitioner cannot gain a superior rating for the next licensing period. Another factor militating against a determination that the present proceeding is moot is Respondent's procedure by which it does not provide licensees with an opportunity for a hearing prior to changing the rating of their nursing home licenses. As an incidental complaint to the issuance of a conditional license, Petitioner also complains of the procedure by which this Respondent issues this conditional license. Without having given Petitioner an opportunity for a hearing based on a proposed or tentative decision to change Petitioner's rating, Respondent simply issued the conditional license and gave Petitioner an opportunity to challenge this action, after the fact, in a formal administrative hearing. A mootness determination on these facts would insulate Respondent's initial action from effective challenge, despite the obvious economic impacts of the initial action. The June 12 survey reports cites three sets of Class II deficiencies, which were identified as Tags F 225, F 309, and F 314. These three tags were the sole bases for the issuance of a Conditional license. Tag F 225 concerns the investigation and documentation of an alleged incident of abuse of a resident by one of Petitioner's employees. The survey report asserts that Petitioner did not satisfy applicable legal requirements by failing, in violation of its own policies, to document in the resident's file the results of an abuse investigation report. Tag F 225 and the testimony of Respondent's witnesses at the hearing are vague as to whether the issue under Tag F 225 is that Petitioner failed to conduct an appropriate investigation or failed to document adequately that it had conducted an investigation. When pressed, Respondent's witnesses chose failure to document, perhaps in deference to the fact that Petitioner's employees clearly conducted an investigation. The alleged incident underlying this issue did not constitute abuse. A staffperson grabbed a resident's arm for an appropriate purpose and did not injure or harm the resident. Petitioner's investigation properly concluded that there was no abuse. As discussed under the conclusions of law, the subsubsubparagraph of the federal regulation allegedly violated under this tag requires only that Petitioner report to appropriate authorities any knowledge of actions by a "court of law" against an employee suggestive of unfitness to serve as facility staff. There is no proof of action by a court of law; this missing fact alone ends the inquiry under this tag. Additionally, Petitioner nonetheless reported the unfounded allegations to the state agency charged with investigating allegations of abuse, and the state agency concluded that the charge was unfounded. Tag F 309 concerns the quality of care received by six residents. As to Resident Number 6, who was in the final stages of a terminal illness, the survey report asserts that Petitioner kept him in isolation and did not offer him opportunities for socialization. Testimony at the hearing revealed that the resident was dying and did not want to socialize, but Respondent's witness opined that this was not an appropriate option. No evidence suggested that the dying resident suffered any diminution of ability to eat or use language. Respondent's witness labored under the misconception that the cited federal regulation addresses socialization (as opposed perhaps to the role of socialization in facilitating the more specific activities actually mentioned by the regulation, which is discussed in the conclusions of law). Even if the federal regulation were so broad, which it is not, the evidence certainly suggests that any diminution in socialization was unavoidable due to the resident's terminal clinical condition. The evidence reveals that Resident Number 6, who had had a gangrenous foot, suffered a staph infection of his gangrenous right foot. He was depressed, fatigued, and in pain; however, he was freely visited by staff and family. As to Resident Number 8, who had had a stroke, the survey report asserts that Petitioner failed to provide him his restorative therapy of walking and failed to document this therapy. At the time of the survey, Petitioner was short of restorative staff due to a scheduled vacation and an unscheduled bereavement absence due to the suicide of an employee's brother. When a restorative aide, who was on vacation, appeared at the nursing home and attempted to provide Respondent's surveyor with documentation concerning the therapy administered to Resident Number 8, the surveyor rejected the documentation on the grounds that it did not sufficiently identify the resident or therapist. Resident Number 8 suffered some loss of functioning--i.e., the ability to walk 400 feet--but the record does not link this loss of functioning to any brief interruption in his restorative therapy. As to Resident Number 9, the survey report states that, during the two days that surveyors were at the facility, she did not ambulate, even though her restorative nursing plan called for daily ambulation. However, she suffered no harm during this insignificant interruption in her program, from which she was successfully discharged a couple of weeks after the survey. As to Resident Number 13, who was 102 years old, the survey report notes that he was supposed to ambulate in a wheelchair. One of Respondent's surveyors noticed that a staffperson was pushing this resident's wheelchair. However, staff had assumed the responsibility of pushing this resident's wheelchair for him after he had developed pressure sores on his heels. The evidence fails to show that Petitioner's care for the treatment of Resident Number 13 had anything to do with his loss of function. As to Resident Number 26, the survey report asserts that his physician had ordered an increase in dosage of Prilosec, which aids digestion by treating the acidity associated with peptic ulcers. Three weeks passed before Petitioner's staff noticed that the change, which was on the resident's chart, had not yet been implemented. They implemented the change prior to the survey, and notified the resident's physician of the error in medication administration a couple of days later. The survey report states that Petitioner's staff documented, on May 30, 1997, that Resident Number 26 had lost 4.8 pounds, or 5.7 percent of his body weight, in one week. This weight loss occurred during the latter part of the period during which Resident Number 26 was receiving less than his prescribed amount of medication. Two of Petitioner's witnesses testified, without elaboration, that the medication error did not cause the weight loss. The survey report implies otherwise, although Respondent's witnesses were not as pronounced as Petitioner's witnesses in dealing with any link between the medication error and the weight loss. Absent the weight loss, the medication error-- consisting of a failure to raise a digestive medication--would have been insignificant and insufficient grounds for a Class II deficiency on the cited basis. However, there was a serious weight loss while the resident was undermedicated. The lack of evidence in the record proving that there was or was not a causal link between the weight loss and undermedication means that the party bearing the risk of nonpersuasion loses on this issue. As discussed in the conclusions of law, Respondent has the burden of proof; thus, for this reason alone, Petitioner prevails on this issue. As to the last resident under Tag F 309, who was not identified, the survey asserts that a restorative aide commented that he used to walk 440 feet, but does not anymore because he thinks that he does not have to. This scanty allegation provides no basis for citing Petitioner with a deficiency, even if it applies to Resident Number 8, as appears probable. Tag F 314 also concerns a quality-of-care issue-- specifically, the development and treatment of pressure sores in three residents. As to Resident Number 1, who had been in the nursing home for three years, the survey report states that, on May 12, 1997, he had developed a Stage II pressure sore on his right outer ankle. The survey report asserts that Petitioner failed to provide sufficient care to prevent the development of this pressure sore, that Resident Number 1 had suffered pressure sores in 1995, and that Petitioner should have known and treated Resident Number 1 on the basis of his being at risk for developing pressure sores. Despite a failure to document, Petitioner's staff adequately treated Resident Number 1 once the pressure sore developed. Nursing assistants required that he wear silicone pressure booties and that lotion be rubbed on the irritated skin. In addition, Petitioner has shown that the clinical condition of Resident Number 1 made pressure sores unavoidable. One of Petitioner's Assistant Directors of Nursing testified that Resident Number 1 had poor pedal pulses, indicative of poor circulation, and a history of peripheral neuropathy. The resulting decreased sensation in his feet would prevent him from feeling increased pressure and thus the need to move his feet. Despite preventative measures, Resident Number 1 developed pressure sores due to these clinical conditions. As to Resident Number 7, who had been in the nursing home for six years, the survey report asserts that she had a Stage II pressure sore--meaning that the skin was broken--but was allowed to remained seated in the same position for two hours in a position in which the pressure on the sore on her buttock was not relieved. The survey report does not allege that this pressure sore developed while Resident Number 7 resided in the nursing home. Resident Number 7 had severe dementia and was a total-care patient. She could not move independently. In fact, she sat, unmoved, in a chair for at least 4 and 3/4 hours on one of the days of the survey. The failure to move Resident Number 7 raises serious questions about the adequacy of Petitioner's treatment. However, Petitioner's Assistant Director of Nursing answered these questions when she testified that the one- centimeter pressure sore healed five days after the survey. Thus, Petitioner provided Resident Number 7 with the necessary treatment and services to promote healing. As to Resident Number 13, who had been in the nursing home for less than three months, the survey report alleges that he had developed pressure sores while in the nursing home. Resident Number 13 was the 102-year-old resident who is also discussed in Tag F 309. The survey report alleges that, on April 24, 1997, Resident Number 13 had a red left heel, red right foot, and pink right heel; on May 1, 1997, he had soft and red heels; on May 7 and 14, 1997, his pressure sores could not be staged due to dead tissue surrounding the sores; on May 20, 1997, his left heel was documented as a Stage II pressure sore, but the right heel could not be staged due to dead tissue; and Petitioner's staff did not implement any treatment until May 12, 1997. Respondent proved the allegations cited in the preceding paragraph except for the last concerning a failure to implement any treatment until May 12. Petitioner's Assistant Director of Nursing testified that Patient Number 13 was frail and debilitated. If this is a clinical condition, it is the only statement of Patient Number 13's clinical condition contained in the record. The Assistant Director of Nursing testified that the pressure sore on the left heel healed by June 3 after the usual treatment measures of turning and repositioning and heel protectors. She testified that the pressure sore on the right heel improved somewhat, but had not healed by the time of his death in January 1998 of presumably unrelated causes. The testimony of the Assistant Director of Nursing rebuts any evidence concerning inadequate treatment of Resident Number 13, but does not establish that the development of his pressure sores was clinically unavoidable. Her testimony as to Resident Number 1 identified clinical conditions that, when coupled with the early implementation of preventative measures, established that Resident Number 1's pressure sore was unavoidable. As to Resident Number 13, the Assistant Director of Nursing also testified of early implementation of preventative measures, but, in contrast to her testimony concerning Resident Number 1, she described little, if anything, of any clinical condition making the pressure sores unavoidable. If the intent of the Assistant Director of Nursing was to imply that old age coupled with frailty and debilitation provide the necessary clinical justification, she failed to establish the necessary causal relationships among pressure sores, advanced age, and frailty and debilitation-- even if the frailty and debilitation were relative to other 102-year-olds, which the record does not reveal, as opposed to the frailty and debilitation, relative to the general population, that one might expect in a 102-year-old. Without more detailed evidence concerning Resident Number 13's clinical condition, Petitioner effectively invites the creation of a safe harbor from liability for the development of pressure sores in 102-year-olds or even 102-year-olds who are frail and debilitated for their age, and the administrative law judge declines either invitation.
Recommendation It is RECOMMENDED that the Agency for Health Care Administration enter a final order dismissing the petition filed by Petitioner and rating Petitioner's license as conditional for the relevant period. DONE AND ENTERED this 7th day of July, 1998, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 7th day of July, 1998. COPIES FURNISHED: Donna H. Stinson Broad and Cassell Post Office Drawer 11300 Tallahassee, Florida 32302-1300 Karel Baarslag Agency for Health Care Administration State Regional Service Center 2295 Victoria Avenue Fort Myers, Florida 33901 Paul J. Martin, General Counsel Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Sam Power, Agency Clerk Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Douglas M. Cook, Director Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229
The Issue DOAH Case No. 01-3072: Whether Respondent's licensure status should be reduced from standard to conditional. DOAH Case No. 01-3616: Whether Respondent committed the violations alleged in the Administrative Complaint dated August 23, 2001, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: AHCA is the state Agency responsible for licensure and regulation of nursing homes operating in the State of Florida. Chapter 400, Part II, Florida Statutes. Jacaranda Manor operates a 299-bed licensed nursing home at 4250 66th Street, North, St. Petersburg, Florida. The facility has a staff of approximately 225 persons, including 15 registered nurses ("RNs"), 25 licensed practical nurses ("LPNs"), and 100-125 certified nursing assistants ("CNAs"). Contract nurses also work at the facility on a daily basis. Jacaranda Manor accepts residents from throughout the United States. It is known as a facility that accepts residents with psychiatric or behavioral idiosyncrasies that other nursing homes might be unwilling to handle. Jacaranda Manor residents are admitted from state mental hospitals, the psychiatric units of general hospitals, assisted living facilities, group homes, and other nursing homes. Jacaranda Manor also accepts admissions from the Pinellas County Jail, mostly homeless persons whose mental condition makes them inappropriate for a jail setting. While all of Jacaranda Manor's residents have a primary diagnosis relating to a need for nursing home care, almost 90 percent of its residents have a specific mental illness as a secondary diagnosis. All of the residents cited in the AHCA survey deficiencies suffered from mental disorders. One hundred percent of Jacaranda Manor's residents receive services related to mental illness or retardation, compared to a statewide average of 2.6 percent. Jacaranda Manor's population includes residents with Alzheimer's disease, schizophrenia, dementia, multiple sclerosis, cerebral palsy, muscular dystrophy, Huntington's chorea, spinal cord injuries and closed head injuries. Over 97 percent of Jacaranda Manor's residents are expected never to be discharged. More than 40 of Jacaranda Manor's residents have lived there for at least 25 years. Statewide, 59.2 percent of nursing home residents are never expected to be discharged. Two-thirds of Jacaranda Manor's residents are male, as opposed to a statewide average of 31.3 percent. Thirty- five percent of Jacaranda Manor's population is under age 50. Ninety-one percent of Jacaranda Manor's residents are Medicaid recipients, as opposed to a statewide average of 64 percent. Jacaranda Manor also operates the HCR Training Center, a licensed vocational school for CNAs, located across the street from the main nursing home. The center provides free training for prospective CNAs, and Jacaranda Manor employs the trainees and graduates. The course of study lasts six weeks, and each class usually has 20-25 students. The school day consists of four hours of classes followed by paid on-the-job training at Jacaranda Manor. Students generally work 30 hours per week at Jacaranda Manor. As part of its effort to create a home-like atmosphere for residents, Jacaranda Manor does not require staff to wear uniforms. The facility has no particular dress code for employees, aside from a requirement that they wear safe, protective shoes. Some of the administrative personnel wear name tags, but are otherwise indistinguishable from other employees. Thus, an outside observer could not be certain, without further inquiry, whether the "staff person" she sees in the facility is a nurse, a CNA, a CNA trainee, or a maintenance worker. The standard form used by AHCA to document survey findings, titled "Statement of Deficiencies and Plan of Correction," is commonly referred to as a "2567" form. The individual deficiencies are noted on the form by way of identifying numbers commonly called "Tags." A Tag identifies the applicable regulatory standard that the surveyors believe has been violated and provides a summary of the violation, specific factual allegations that the surveyors believe support the violation, and two ratings which indicate the severity of the deficiency. One of the ratings identified in a Tag is a "scope and severity" rating, which is a letter rating from A to L with A representing the least severe deficiency and L representing the most severe. The second rating is a "class" rating, which is a numerical rating of I, II, or III, with I representing the most severe deficiency and III representing the least severe deficiency. On April 3 through 6, 2001, AHCA conducted a licensure and certification survey of Jacaranda Manor, to evaluate the facility's compliance with state and federal regulations governing the operation of nursing homes. The survey noted one deficiency related to difficulty in opening two exit doors at the facility, but noted no deficiencies as to resident care. AHCA found Jacaranda Manor to be in substantial compliance with 42 C.F.R., Part 483, Requirements for Long Term Care Facilities. Pursuant to the mandate of the federal Centers for Medicare and Medicaid Services ("CMS") (formerly the Health Care Financing Administration, or "HCFA"), AHCA maintains a "survey integrity and support branch," also known as the "validation team." To ensure the quality and consistency of its survey process, AHCA sends the validation team to re- survey facilities that have received deficiency-free initial surveys. Because its April 2001 survey revealed no deficiencies related to resident care, Jacaranda Manor was considered deficiency-free. On May 8 through 11, 2001, AHCA's validation team conducted a second survey at Jacaranda Manor. The validation team alleged a total of thirteen deficiencies during the May 2001 survey. At issue in these proceedings were deficiencies identified as Tag F241 (violation of 42 C.F.R. Section 483.15(a), relating to resident dignity); Tag F250 (violation of 42 C.F.R. Section 483.15(g), relating to social services); and Tag F272 (violation of 42 C.F.R. Section 483.20(b)(1), relating to resident assessment). All of the deficiencies alleged in the May 2001 survey were classified as Class III under the Florida classification system for nursing homes. At the time of the survey, Class III deficiencies were defined as those having "an indirect or potential relationship to the health, safety, or security of the nursing home facility residents, other than Class I or Class II deficiencies." Section 400.23(8)(c), Florida Statutes (2001). Jacaranda Manor disputed the deficiencies alleged in the May 2001 survey and elected to go through the federally authorized Informal Dispute Resolution ("IDR") process. See 42 C.F.R. Section 488.331. The IDR process allows the facility to present information to an AHCA panel, which may recommend that the deficiencies alleged in the survey be deleted, sustained, or modified. Under AHCA's application of the process, the three-member AHCA panel considers the facility's information and then makes a recommendation to Susan Acker, the director of AHCA's health standards and quality unit, who makes the final decision. The IDR meeting was held via teleconference on June 11, 2001. The IDR resulted in AHCA's upholding all the deficiencies alleged in the May 2001 survey. AHCA modified the state level classification of Tag F241 from Class III to Class II. At the time of the survey, Class II deficiencies were defined as "those which the Agency determines have a direct or immediate relationship to the health, safety, or security of the nursing home facility residents, other than class I deficiencies." Section 400.23(8)(b), Florida Statutes (2000). This change in classification was recommended by the IDR panel and approved by Ms. Acker. The IDR meeting also resulted in AHCA's changing Tag F272 to Tag F309 (violation of 42 C.F.R. Section 483.25, relating to quality of care) and to classify the alleged Tag F309 deficiency as Class II. This change was made by Ms. Acker alone. The IDR panel recommended upholding the original Class III, Tag F272 findings, but increasing the federal scope and severity rating from D (no actual harm but with potential for more than minimal harm) to G (actual harm that is not immediate jeopardy). Ms. Acker overruled that recommendation and imposed the change to Tag F309. Based on the increased severity of the alleged deficiencies in Tags F241 and F309, from Class III to Class II, AHCA imposed a conditional license on Jacaranda Manor, effective May 15, 2001. The license expiration date was February 28, 2002. On June 19 and 20, 2001, AHCA conducted a follow-up survey of Jacaranda Manor to determine whether the deficiencies alleged in the May 2001 survey had been corrected. The survey team determined that Tags F241 and F250 were uncorrected Class III deficiencies. This determination resulted in the filing of an Administrative Complaint seeking imposition of a $2,000 civil penalty. May 2001 Survey A. Tag F241 The May 2001 validation survey allegedly found violations of 42 C.F.R. Section 483.15(a), which states that a facility must "promote care for residents in a manner and in an environment that maintains or enhances each resident's dignity and respect in full recognition of his or her individuality." In the parlance of the federal Health Care Financing Administration Form 2567 employed by AHCA to report its findings, this requirement is referenced as "Tag F241." Tag F241 is commonly referred to as the "quality of life" or "dignity" tag. For purposes of the Form 2567, the validation team gave the alleged deficiencies on the May 2001 survey a federal scope and severity rating of E for Tag F241. A rating of E indicates that there is a pattern of deficiencies causing no actual harm to the residents but with potential to cause more than minimal harm. After the IDR process, the federal scope and severity rating for Tag F241 was increased to H, meaning that there is a pattern of deficiencies causing actual harm that is less than immediate jeopardy to the health or safety of the residents. The increase of the federal scope and severity rating from E to H corresponded to the increase of the state level classification from Class III to Class II. The Form 2567 for the May 2001 survey listed nine separate incidents under Tag F241, the dignity tag. The first surveyor observation involved Resident 31, or "R-31": On 5/11/01 at 8:30 a.m., R-31 was observed in a 4 bed room, sitting on his/her bed eating breakfast. The resident had no clothes on, had a colostomy bag and foley catheter visible to anyone walking by in the hallway. A staff member went into the room to another resident but did not cover R-31. A second staff member came to the doorway of the room to talk to the first staff member and also did not attempt to cover the resident. Marsha Lisk was the AHCA team coordinator for the May 2001 survey and was the team member who recorded the observation of R-31. Ms. Lisk stated that this was a random observation, made without benefit of reviewing R-31's records. Ms. Lisk could not identify the two staff members who failed to cover R-31, aside from a recollection that one of them was a CNA. She was "astounded" that the staff persons did not intervene to cover the naked resident, especially because they could see that Ms. Lisk was standing in the doorway taking notes. Ms. Lisk would have thought nothing more of the incident had the staff members done anything to obscure the view of the resident from the hallway. Ms. Lisk admitted that R-31 appeared to be in no distress, and that no other resident complained about his nudity. Twenty minutes after this observation, Ms. Lisk saw R-31 fully clothed and being pushed in a wheelchair down the hall. Ms. Lisk noted this incident as a deficiency because she believed nudity cannot be considered to meet community standards under any circumstances. Even if the resident consciously preferred nudity, or was so mentally incapacitated as to be unaware he was nude, it was staff's responsibility to cover the resident, pull a curtain around him, or move his bed to a place where it could not be seen from the hall. At the hearing, it was established that R-31 was a 59-year-old male with multiple medical and psychiatric diagnoses, including schizophrenia and dementia due to organic brain syndrome. He preferred to sleep in the nude and to dress himself, though he required some assistance to do so properly. He was able to close his own privacy curtain. R-31 was very resistant when staff approached to dress him, to the point of physically lashing out. R-31 would refuse to eat if he was pushed to clothe himself near meal time. Carol Heintz, Jacaranda Manor's psychiatric nurse manager, stated that the main goal was to get R-31 to eat his breakfast, and that staff was concerned that any effort to dress him would disrupt his meal. Ms. Heintz offered no reason why the door could not be closed or the privacy curtain drawn while R-31 ate his breakfast in the nude. R-31 also preferred to keep his colostomy uncovered. Staff would cover it and encourage him to keep it covered, but he would refuse to do so. Ms. Lisk, the surveyor, admitted that she did not review R-31's record even after her observation. She made no attempt to interview R-31 and admitted that she was unaware of his habits and preferences. The second surveyor observation on Tag F241 concerned Resident 21,1 or "R-21", and stated: During the tour on 5/08/01, at approximately 10 a.m., a staff member invited the surveyor into a room to meet [R-21]. He/she was in adult briefs uncovered lying on his/her bed. There was no attempt to cover the resident to insure privacy. At approximately 4:40 p.m. [R-21] was observed from the hallway lying in bed in his/her adult brief with no pants on and the privacy curtain not drawn. Kriste Mennella was the survey team member who recorded the observation of R-21, identified only as a male resident. She did not review the facility's records relating to R-21, and offered no testimonial details beyond the facts set forth in her observation. She did not interview the resident and did not know whether the resident was able to respond to questions. Jacaranda Manor offered no explanation as to why the door could not have been closed or the privacy curtain drawn to prevent passersby from seeing R-21 uncovered in his bed. The third surveyor observation on Tag F241 concerned Resident 8, or "R-8," and stated: [R-8] was observed on 5/8/01 wheeling out of the dining area with several staff present. He had a black polo shirt on inside out and his Khaki pants, along with his adult brief, were down to his knee's [sic] exposing his right lower side and hip. There was no intervention by staff. He was unshaven and had dirty hand [sic] and his fingernails were ragged and dirty. His hair was unkempt. On 5/9/01 through out [sic] the day [R-8] was observed to have on two different shoes. One was a tennis shoe with his name written across the top and the other a brown loafer. Ms. Mennella recorded the observations of R-8. Ms. Mennella identified the unnamed staff persons as "management folks" who were following the surveyors around the facility, and the person in charge of the dining room. These staff persons told Ms. Mennella on May 8 that they did not intervene because R-8 was "resistive to care." Ms. Mennella subsequently discussed R-8 with a CNA, who told her that the resident may or may not be combative, depending on how he is approached. Ms. Mennella believed that some intervention should have occurred even with a combative resident, if only verbal prompting to tell the resident that his pants were down and he should pull them up. She observed R-8 throughout the three days of the survey, but did not see him with his pants down again after the May 8 observation. On May 9, when she saw R-8 wearing unmatched shoes, Ms. Mennella went to the resident's room and confirmed that he did have matching shoes. R-8 was a 46-year-old male with multiple medical and psychiatric diagnoses, among them paranoid schizophrenia. R-8 saw a variety of mental health professionals, including a psychiatrist, a psychiatric ARNP for medication management, a psychologist for individual therapy, and a licensed clinical social worker for group therapy. R-8 was classified as an elopement risk, paranoid and suspicious with a history of aggression. R-8 did not require a wheelchair to ambulate. R-8 habitually carried his "things" (e.g., a radio, or a box containing items sent him by a relative) with him as he moved about the facility. He liked to use a wheelchair to more easily carry his possessions. R-8 dressed himself, usually with some assistance in the morning. He changed clothes five or six times a day. Sometimes he would wear two different outfits in layers, or wear unmatched shoes. Jacaranda Manor staff uniformly noted that there was nothing unusual in R-8 having his shirt on inside-out or backwards, because he was constantly taking his clothes off and on. R-8 liked to wear his pants unbuttoned. He often moved about the facility holding his pants up with one hand, and his pants would often droop down to his knees. Jacaranda Manor staff constantly intervened in an effort to keep R-8 properly clothed. He was sometimes compliant, but other times would resist pulling up his pants. He would curse and run out of the room, or threaten to tell the President of the United States about his treatment. R-8 was indifferent to his appearance, displaying anxiety about his clothing only when staff attempted to change it. He would muss his hair as soon as it was brushed. His hands would get dirty because R-8 had a habit of rooting on the ground or through ashtrays for cigarette butts to smoke. Since the survey, Jacaranda Manor has addressed this problem by installing ashtrays that the residents cannot reach into. Ms. Mennella testified that she knew nothing about R-8's preferences or behaviors regarding clothing. She did not know he had a habit of tousling his own hair. She did not know he had a habit of rooting for cigarettes. She did not ask who wrote R-8's name on his shoe. Jacaranda Manor has a policy of not marking residents' clothing, for privacy reasons. However, R-8 would write his own name on his shoes and other items he received from his family because he was proud of them. The fourth surveyor observation on Tag F241 concerned an unnamed resident: During an observation on 5/9/01, outside in the lifestyles patio area, at approximately 9:10 a.m., a staff person who was on break under the pavilion shouted across the courtyard to a resident in a loud voice, "MR. (name) PULL UP YOUR PANTS." There was [sic] several staff on break and at least 15 other residents out side [sic] in the patio area at the time. Ms. Mennella recorded this observation. She testified that the staff person who yelled was an aide. By the time she looked to see whom the staff person was calling to, Ms. Mennella could see no resident with his or her pants down. Not having seen the resident, Ms. Mennella was unable to say whether the staff person could have reached the resident before his or her pants came down. Her concern was the tone and manner in which the instruction was given, and the embarrassment it could have caused the resident. Despite not having seen the resident, Ms. Mennella was certain that the staff person was addressing a male. Rosa Redmond, the director of nursing at Jacaranda Manor, testified that she learned of the incident shortly after it happened. A CNA and a trainee from the HCR Training Center told her of the incident. It was the trainee who called out to the resident. The trainee told Ms. Redmond that a female resident's slacks were starting to fall. The trainee was concerned that the resident would fall, and could not reach the resident in time to pull up her slacks, so the trainee called out to the resident. The fifth surveyor observation on Tag F241 was a general statement: Residents were observed during numerous random observations out in the patio area during all three days of the survey to have on only socks, no shoes on their feet. As a result the socks were black on the bottom. These general observations were made by surveyors Mary Maloney and Kriste Mennella. Ms. Maloney testified that she has surveyed nursing homes from Pensacola to Key West, including homes that accept mental health residents and have secured units, but that she has never seen another facility in which residents are allowed to walk around barefoot or only in dirty socks. In her experience, staff would intervene and redirect the residents to put on shoes or change their socks. Ms. Maloney testified that she asked one resident why he was not wearing shoes. The resident told her that he did not want to wear shoes, and showed Ms. Maloney several pairs of shoes in his closet. Ms. Maloney did not cite this instance as a deficiency. However, she noted other shoeless residents who appeared confused or cognitively impaired, and did cite these instances as deficiencies because of staff's failure to intervene or to assess why the residents resisted wearing shoes. Ms. Maloney admitted that the survey team discussed the issue of residents not having proper footwear, and determined that it caused no actual harm to the residents. Jacaranda Manor did not contest the fact that residents often go barefoot or wear only socks. Through various sources, the facility maintains an ample supply of shoes and socks for the residents, and attempts to keep the residents properly shod. However, the facility also tolerates residents' preferences in clothing and footwear, and does not consider the question of footwear a pressing issue. Some residents simply do not want to wear shoes. Some residents feel steadier when they can feel the floor against their bare feet. Carol Heintz, Jacaranda Manor's psychiatric nurse manager, testified that neither therapists nor family members have ever expressed concerns over the issue. No evidence was presented that going barefoot or wearing socks posed a safety risk to the residents. The alleged harm was simply that some of the residents had dirty feet, or dirty socks on their feet. The sixth surveyor observation on Tag F241 offered more specific information on the question of resident footwear: The facility did not assist residents to wear appropriate footwear, in that some of the residents who resided on 1 West, the secure unit, were observed wearing socks without shoes or were barefoot throughout the survey. During the initial tour on 5/08/0 [sic], it was observed that several residents were pacing and walking throughout 1 West, with only socks on. Some of these residents walked outside on a sidewalk. The soles of these resident's [sic] white socks were soiled dark gray. On 05/08/01, at 6:50 p.m., there were three male residents observed to walk around the unit with white socks on. One of these residents had holes in the socks. On 05/09/01 at 10:15 a.m., there was one male resident walking outside in the enclosed courtyard wearing white socks, as well as a female resident who was pacing back and forth on the side walk wearing socks only. On the morning of 05/10/01 at 7:45 a.m., there was a male resident sitting in a chair outside who was barefoot. On 05/11/01, at 9:30 a.m., during the resident's [sic] arranged smoking time on the enclosed courtyard on 1 West, there were several residents walking around wearing only socks on their feet. One male resident was wearing black shoes, but they were different style shoes. This was shown to the direct care staff who were not aware. They were not sure if these shoes belonged to this resident. The staff also stated that some of the resident's [sic] shoes were missing or the residents chose not to wear their shoes. Resident #16 was observed walking around in loose-fitting cloth slippers with rubber soles on 05/09/01, on 05/10/01. The resident showed that she/he had one black dress shoe, because the other shoe was missing. On 05/11/01, the resident was wearing open- toed bedroom slippers. This resident was identified as a fall risk due to akinesia (involuntary movement of the body). The resident's current care plan included an approach "to wear proper fitting shoes with non-skid soles." The resident was observed with a shuffling gait. Resident 16, or "R-16," was a 39-year-old male with HIV, cerebral atrophy, and a history of AIDS-related dementia with delusions. He suffered from depression, anxiety, psychosis, paranoia, and bipolar disorder. He was childlike and possessed poor judgment, forming unrealistic plans to get a job and live on his own outside a clinical setting. R-16 was an elopement risk, which caused a community-based HIV program to reject him for participation. Jacaranda Manor tried placing R-16 in its open unit, but he tried to leave without telling anyone, which necessitated placing him in the facility's secure unit. R-16 abused alcohol, liked to smoke and drink coffee constantly, and was prone to giving away his clothes. R-16 had pronounced preferences as to footwear. While he would occasionally wear regular shoes, he most often wore a pair of fuzzy, open-toed slippers. He would have a temper tantrum if not allowed to wear his slippers. R-16 was at risk of slipping and falling due to akinesia, and staff explained to him the potential safety problems in wearing slippers. R-16 had a peculiar gait, described by Jacaranda Manor personnel as "shuffling" or as a "sashay." His slippers had rubber soles to help prevent slipping. The seventh surveyor observation on Tag F241 concerned Resident 32, or "R-32", and an unnamed resident: On 05/08/01, at 6:50 p.m., during the evening meal, [R-32] was observed from the hallway, sitting in a chair in his room wearing only a t-shirt and an incontinent brief. Several staff were observed to walk past this resident's room and did not attempt to intervene. On 05/09/01, at 10:15 a.m., during a random observation, there was a confused male resident walking outside in the enclosed courtyard, who was removed his pants [sic] and exposed his incontinent brief. There was a female resident pacing back and forth nearby. A direct care staff person who was escorting another resident, walked past this resident without intervening. The surveyor went inside to inform the medication nurse of the situation. Mary Maloney was the surveyor who recorded the observation of R-32 and the unnamed resident. R-32 was a male resident who preferred not to wear trousers. Jacaranda Manor staff tried to convince R-32 to wear trousers. Staff tried different kinds of pants, such as pull-ups, zippered pants, and shorts. R-32 would occasionally accede to wearing the shorts, but while in his room always dressed in his brief and a t-shirt. Jacaranda Manor did not dispute Ms. Maloney's observation of R-32. Jacaranda Manor was unable to address Ms. Maloney's subsequent observation, as she was unable to name the "confused male resident," the pacing female resident, or the staff person who allegedly failed to intervene. Ms. Maloney's observation implies that the unnamed staff person should have intervened, but offers no information as to whether the staff person could have safely abandoned the other resident he or she was escorting at the time. The eighth surveyor observation on Tag F241 concerned Resident 4, or "R-4," and stated: During the breakfast meal observation on 05/09/01 and 05/10/01 at about 9:30 a.m., [R-4] was observed to be fed her/his breakfast at the nurse's station. The staff person was observed to be standing and feeding the resident who was seated in a reclining chair. The resident's meal tray was placed on the counter of the nurse's station, where the resident could not see her/his food. There was a high level of staff activity and residents walking around the area. Ms. Maloney was the surveyor who recorded this observation. Both Alma Hirsch, Jacaranda Manor's chief administrator, and Carol Heintz, the psychiatric nurse manager, testified that R-4 is fed entirely by means of a gastrointestinal tube and thus could not have been eating breakfast at the nurses' station. At the hearing, Ms. Maloney conceded that she might have misidentified the resident on the Form 2567, but was certain that she saw a particular male resident being fed breakfast at the nurses' station on May 9 and 10. Jacaranda Manor did not contest the fact that residents are often fed at the nurses' station. AHCA cited this incident as a deficiency because feeding the resident at a busy nurses' station does not promote his dignity. Ms. Maloney inquired and learned that the resident could not be fed in his room because it was being painted. She acknowledged that the resident in question was difficult to feed, and so prone to violent outbursts that Jacaranda Manor had removed all the furniture from his room for his safety. Ms. Maloney nonetheless thought that Jacaranda Manor staff should have chosen a quieter, less stimulative environment in which to feed the resident. The ninth surveyor observation on Tag F241 concerned Resident 16, or "R-16," and stated: On 05/10/01, at about 3:30 p.m., [R-16] approached the nurse's station and asked the medication nurse for some coffee. (The resident had his/her own personal jar of instant coffee.) The nurse denied the resident the coffee. The nurse stated that the resident's coffee was being rationed to several times per day. According to the nurse, the resident's coffee consumption was restricted because the resident prefers the coffee extra strong, and the resident exhibits effects from the excessive caffeine, described as "bouncing off the walls." From review of the clinical record, there was no physician's order for a caffeine restriction. According to facility policy, the coffee served to the residents is decaffeinated, the nurse reported. Ms. Maloney recorded this observation. R-16 is the same resident cited in the sixth surveyor observation for wearing open-toed slippers. Jacaranda Manor serves only decaffeinated coffee to all residents. R-16 had a personal, "special" jar of instant decaffeinated coffee that was in fact provided by Ms. Hirsch, at her own expense. R-16 was allowed to believe that his "special" coffee was caffeinated. R-16 was incapable of making his own coffee. His jar of coffee was kept in the medicine room near the nurses' station, and R-16 had to ask a nurse to prepare his coffee. The nurse would go to the kitchen for hot water, then prepare the coffee. R-16 drank coffee all day, every day. There were no medical restrictions on how much coffee he could drink. He carried a large mug, and would ask the nurses to prepare his coffee as many as thirty times a day. R-16 would ask insistently until his coffee was made. If the nurses were not busy, they would make the coffee immediately. If they were in the middle of a procedure, they would ask R-16 to wait until they were finished. Elaine Teller was the nurse referenced in the ninth observation. She was the charge nurse at the time of the incident. Ms. Teller was passing medications and speaking to Ms. Maloney when R-16 approached and demanded his coffee. Ms. Teller told R-16 that she was busy and would get his coffee in a few minutes. Ms. Maloney testified that Ms. Teller's response was "inappropriate," in that it had the potential to embarrass R- 16 in front of the people at the nurses' station. Ms. Maloney believed it would have been more appropriate to take R-16 aside and speak with him. Ms. Teller denied treating R-16 rudely or disrespectfully. She was "firm" with R-16 "because that's what [he] needs." Ms. Teller was close to R-16, such that he referred to her as his "second mom." At the time, Ms. Maloney voiced no concern over Ms. Teller's treatment of R-16. Ms. Teller testified that she had delayed but never "denied" coffee to R-16. She had on occasion lectured R-16 that he drank too much coffee, but never stated that R-16's coffee intake was restricted. Surveyors employ a "Guidance to Surveyors" document for long-term care facilities contained in the "State Operations Manual" promulgated by the federal CMS. The guidelines for Tag F241 state: "Dignity" means that in their interactions with residents, staff carries out activities that assist the resident to maintain and enhance his/her self-esteem and self-worth. For example: Grooming residents as they wish to be groomed (e.g., hair combed and styled, beards shaved/trimmed, nails clean and clipped); Assisting residents to dress in their own clothes appropriate to the time of day and individual preferences; Assisting residents to attend activities of their own choosing; Labeling each resident's clothing in a way that respects his or her dignity; Promoting resident independence and dignity in dining (such as avoidance of day-to-day use of plastic cutlery and paper/plastic dishware, bibs instead of napkins, dining room conducive to pleasant dining, aides not yelling); Respecting resident's private space and property (e.g., not changing radio or television station without resident's permission, knocking on doors and requesting permission to enter, closing doors as requested by the resident, not moving or inspecting resident's personal possessions without permission); Respecting resident's social status, speaking respectfully, listening carefully, treating residents with respect (e.g., addressing the resident with a name of the resident's choice, not excluding residents from conversations or discussing residents in community setting); and Focusing on residents as individuals when they talk to them and addressing residents as individuals when providing care and services. The same document sets forth survey procedures, and emphasizes examining the context of staff's actions: . . . As part of the team's information gathering and decision-making, look at the actions and omissions of staff and the uniqueness of the individual sampled resident and on the needs and preferences of the resident, not on the actions and omissions themselves. The issue of patient dignity was the subject of extensive testimony at the hearing. Ann Sarantos, survey integrity and support manager for AHCA and an expert in long- term care nursing practice, testified that the surveyors understood that residents will remove their shoes and clothing, particularly in a facility with the resident population of Jacaranda Manor. The survey team acknowledged that Jacaranda Manor's population was unique in terms of the number of mentally ill residents. Ms. Sarantos stated that AHCA's central concern was staff's lack of sensitivity. The surveyors repeatedly saw staff making no effort to cover the residents or get them into shoes, even when the surveyors pointed out the problems. Ms. Sarantos stated that AHCA does not set a different dignity standard for patients with psychiatric or organic conditions. She noted that a high percentage of residents in any nursing home will have some form of dementia or behavioral problem, and that the facility must plan its care to manage these problems. She stated that AHCA employs the same survey procedures for all facilities, regardless of the patient population. Patricia Reid Caufman, an expert in social work, opined that the residents are nursing home patients regardless of their diagnoses. When the facility accepts these patients, it does so on the basis that it can meet their needs, including their dignity needs. Susan Acker is the nursing services director of AHCA's health standards and quality unit. She is an expert in long-term care and was the person who made the final decision as to the classification of Jacaranda Manor's deficiencies. Ms. Acker stated that the provision of adequate clothing and footwear is a "fundamental level of compliance." The individuals listed under the Tag F241 deficiencies had portions of their bodies exposed in a way that does not conform to the community standard of a nursing home. The "community standard" for a nursing home includes an expectation that a resident will be dressed in his or her own clothes and assisted in dressing and making appropriate selections, or, if the resident's judgment is impaired, will be provided with selections allowing them to appear in a dignified manner. Ms. Mennella offered the common sense view that, in applying a "community standard," the surveyor should ask herself whether a mentally impaired resident would be embarrassed under normal circumstances. The exposure of these residents demonstrated noncompliance with the requirement that the facility maintain or enhance the self-esteem and dignity of the residents. Ms. Acker acknowledged the right of the residents to select their own clothing or to be undressed within the confines of their rooms. However, the facility must continually provide these residents with encouragement or assistance in dressing. Staff must act if the residents lack the ability to make their own judgments. The issue was not that the facility should deny choice to the residents, but that a therapeutic environment should be established that maintained and enhanced resident dignity. Ms. Acker found that the "key point" in the deficiencies was the proximity of staff to the cited residents. In each instance involving nudity or improper dress in a resident's room, staff was available to pull the privacy curtain or to assist the resident in redressing. The staff person may not have minded the resident's dress, but should have acted to protect the resident's dignity when a stranger walked into or past the room. Staff could have re- established the community standard by clothing the resident or providing the privacy that would protect the resident's dignity, but failed to do so. Ms. Acker characterized these incidents as staff's failure to provide services to the community standard for residents who were unable to exercise their own judgment to maintain their own dignity. Ms. Acker testified that, to change the scope and severity of Tag F241 from E to H, the IDR panel members would have to believe that the situation resulted in a negative outcome that compromised the ability of the resident to maintain or reach the highest practicable physical, mental or psychosocial well-being, as defined in the Resident Assessment Protocol ("RAP"). She concurred with upgrading Tag F241 to a Class II deficiency because there was a direct impact on the residents observed and on those residents who witnessed the failure to deliver adequate care. Carol Heintz, the psychiatric nurse manager and an expert in psychiatric nursing care, opined that Jacaranda Manor is not below community standards in terms of patient dignity. She agreed that "it would be nice" if more than 200 residents with physical and mental health issues wanted to wear appropriate clothing, shoes and socks every day, but for these people "things like that may not be the priority that it is to you or [me]." Clothing issues can be difficult with some residents, because they do not perceive their unorthodox dress or even nudity as an issue. If a resident resists wearing proper clothing or using a privacy curtain, the staff just keeps trying to reinforce proper dress and modesty. Ms. Heintz acknowledged the facility's responsibility to respect the rights of others not to be subjected to the improper dress of residents. However, she also stated that residents' modes of dress have had no adverse impact on them, and that no therapist or any resident's family has ever complained about the facility's methods of dealing with clothing and footwear issues. In light of all the factual and expert testimony, it is found that the IDR panel's decision to upgrade Tag F241 from Class III, with a scope and severity rating of E, to Class II, with a scope and severity rating of H, was supported by the evidence presented, though not as to all nine observations made under Tag F241. The first observation, for R-31, supports the Agency's finding a Class II deficiency. R-31 was sitting on his bed eating breakfast in the nude and was plainly observable from the hallway. Staff persons were present but did nothing to remedy the situation. Granting that it may have been counterproductive to attempt to dress R-31 while he was eating, no evidence was presented to show that pulling the privacy curtain or closing the door would have disturbed R- 31's meal. Even if, as Jacaranda Manor implied, these staff persons may not have been direct care employees, they should have alerted the nursing staff to the situation. The dignity of R-31 and of any other resident who happened to pass his room were directly affected by this incident. The second observation, for R-21, supports the Agency's finding a Class II deficiency. R-21 was seen twice lying in bed wearing uncovered adult briefs. Jacaranda Manor offered no reason why the resident could not be covered or why the view from the hallway could not be obscured. The dignity of R-21 and of any other resident who happened to pass his room were directly affected by this incident. The third observation, for R-8, does not support the Agency's finding a Class II deficiency. The initial rating of this as a Class III deficiency was supported by the evidence. While the bare facts set forth in the observation were concededly accurate, the surveyor focused entirely "on the actions and omissions themselves," and made no effort to assess the "uniqueness of the individual sampled resident" or "the needs and preferences of the resident." The facts established that R-8 was subject to unbuttoning his pants and allowing them to droop. In three days of constant observation, Ms. Mennella witnessed one such brief incident. R-8 was also subject to digging for cigarette butts and tousling his own hair, making it very likely that at some point over a three-day period he could be observed with dirty hands and unkempt hair. R-8 wrote his own name on his shoes, because he was proud of them. Testimony established that staff of Jacaranda Manor conscientiously cared for R-8, but that it was impossible to maintain appropriate appearance for this resident all day, every day. There was no evidence of any impact on this resident's dignity or self-esteem. The fourth observation was of the staff member shouting to a resident to pull up her pants. This observation does not support the Agency's finding a Class II or a Class III deficiency. Had the surveyor made inquiry into the circumstances of the incident, she would have learned that it involved a sudden reaction to a potentially critical situation. The trainee called out to the resident because she couldn't reach the resident in time to keep her pants from falling, which in turn could have caused the resident to fall. Concern for the resident's possible embarrassment cannot be held more important than the resident's physical safety when an emergency arises. The fifth and sixth observations involved residents walking around barefoot, in only socks, or, in the case of R- 16, in slippers. The deficiencies noted for these observations do not support the Agency's finding a Class II or a Class III deficiency. The only harm alleged by the Agency was that the residents' dignity is impaired by their having dirty feet. It is found that Jacaranda Manor was acceding to the wishes of its residents regarding footwear, and that dirty feet or socks are a necessary and essentially harmless incident of choosing not to wear shoes. The seventh observation, of R-32 and an unnamed resident, supports the Agency's finding a Class II deficiency. As to the unnamed resident observed in the courtyard with his brief exposed, the surveyor could not provide enough information to allow Jacaranda Manor to defend itself. The surveyor could not name the resident, the female resident allegedly in the vicinity, or the staff person who allegedly walked past. This portion of the deficiency was unproven. However, the surveyor adequately stated her observation of R- 32, who was seen from the hallway sitting in a chair in his room, wearing only a t-shirt and adult brief. Several staff members walked past the room and did not intervene. Jacaranda Manor offered no reason why the resident could not be covered or why the view from the hallway could not be obscured. The dignity of R-32 and of any other resident who happened to pass his room were directly affected by this incident. The eighth observation, of a resident initially identified as R-4, supports the Agency's finding a Class II deficiency. The surveyor guidelines expressly describe promoting "dignity in dining." While the underlying facts explained why Jacaranda Manor could not feed the resident in his room, they did not explain why the resident was being fed at the busy, noisy nurses' station rather than in the dining room or some other, quieter location. The resident was difficult to feed and subject to violent outbursts, but these facts do not explain the choice of feeding the resident at the nurses' station, leading to the inference that this choice was likely made for the convenience of the nurses. The dignity of this resident was directly affected by this incident. The ninth observation, of R-16, does not support the Agency's finding a Class II or a Class III deficiency. The facts established that Ms. Teller, the nurse in question, had a close relationship with R-16 and could speak somewhat sternly to him without affecting his dignity or self-esteem. Ms. Teller's version of the incident is credited. Requiring R-16 to wait a few minutes for his coffee while Ms. Teller finished passing medications caused the resident no harm whatever. In summary, of the nine observations listed under Tag F241, four supported the Agency's finding of a Class II deficiency; one supported the initial finding of a Class III deficiency; and four supported a finding of neither a Class II or a Class III deficiency. Thus, the Agency's overall finding of a Class II deficiency for Tag F241 is supported by the record evidence. Tag F250 The May 2001 validation survey allegedly found a violation of 42 C.F.R. Section 483.15(g), which states that a facility must "provide medically-related social services to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident," and sets forth the standards for resident social services. This requirement is referenced on Form 2567 as "Tag F250," or the "social services tag." For purposes of the Form 2567, the validation team gave the alleged deficiency on the May 2001 survey a federal scope and severity rating of D for Tag F250. A rating of D indicates that there is an isolated deficiency causing no actual harm to the resident but with potential to cause more than minimal harm. This alleged deficiency was rated Class III, and was not part of the basis for imposing a conditional license on Jacaranda Manor. Its significance is that it was determined to be an uncorrected deficiency in the June 2001 return survey, and thus formed part of the basis for the civil penalty imposed after the return survey. The May 2001 survey found one instance in which Jacaranda Manor allegedly failed to provide medically related social services. The surveyor's observation on Form 2567 concerned R-16, the same resident discussed above in the sixth and ninth observations under Tag F241: [R-16] was admitted to the facility on 09/29/00, and the resident's comprehensive assessment of [10/05/00]2 indicated that the resident had dental caries. The care plan stated that the resident's "teeth will be clean and oral mucosa will be free of signs and symptoms of infection at all times." One of the approaches on the care plan was for the "resident to see the Dentist as needed." The resident revealed that she/he had not seen a dentist since admission and desired dental services. Observation of the resident's teeth and gums, indicated that there was evidence of abnormal oral mucosa. There was no documentation in the resident's clinical record to indicate that the resident had seen the dentist since admission. The nursing management staff person was asked on 05/11/01, if there was any information to show that the resident had seen the dentist. Later that day, the nursing management staff indicated that the resident now has a dental appointment scheduled on 05/23/01. The lack of dental services can lead to dental problems, oral infection, changes in food consistency, and decrease resident's self-esteem. Ms. Maloney observed R-16 and noted that the edge of his gums was black, perhaps indicating periodontal disease. R-16 showed no evidence of pain and was eating normally. Ms. Maloney interviewed R-16, who told her he wanted to see a dentist. On May 11, 2001, Ms. Maloney told the director of nursing that she could find no indication in the record that R-16 had ever seen a dentist, and asked for any information not apparent in the record. Later that day, the director of nursing told Ms. Maloney that R-16 now had a dental appointment scheduled for May 23. Ms. Maloney was left with the understanding that nothing had been done for R-16 up to that time, and that his appointment was made only in response to her inquiry. The evidence established that R-16's dental appointment for May 23 had actually been scheduled by the facility on May 7, prior to the survey. The appointment was scheduled because R-16 had expressed to Ms. Hirsch a desire to have his teeth cleaned and whitened. The only complaint R-16 voiced about his teeth was that they were discolored. The key to Ms. Maloney's finding a deficiency was her impression that the facility did not respond to R-16's request to see a dentist until Ms. Maloney herself inquired and pressed the issue. In fact, the appointment had been made before the AHCA survey team arrived at Jacaranda Manor. The nurse manager to whom Ms. Maloney spoke was apparently unaware the appointment had been made. The evidence does not support the finding of a deficiency under Tag F250. Tag F309 As noted above, the deficiencies alleged under Tag F309 were originally placed under Tag F272. Tag F272 is the Form 2567 reference to violations of 42 C.F.R. Section 483.20(b), which states that a facility "must conduct initially and periodically a comprehensive, accurate, standardized, reproducible assessment of each resident's functional capacity," and sets forth at length the standards that must be observed in performing these comprehensive assessments. Tag F309 references 42 C.F.R. Section 483.25, which states that each resident "must receive and the facility must provide the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with the comprehensive assessment and plan of care," and sets forth at length the standards by which a facility's quality of care is measured. The significance of the change from Tag F272 to Tag F309 is that Tag F272 merely alleges a failure to conduct or update the assessment of the resident. Tag F309 alleges a deficiency in the quality of care provided to the resident, inherently a more serious violation. For purposes of the Form 2567, the validation team gave the alleged deficiencies on the May 2001 survey a federal scope and severity rating of D for Tag F272. A rating of D indicates that there are isolated deficiencies causing no actual harm to the residents but with potential to cause more than minimal harm. The IDR panel recommended upholding the deficiencies as cited by the survey team. However, Ms. Acker believed that the presence of a negative outcome for Resident 7, discussed below, merited changing the tag from F272 to F309 and making it a Class II deficiency with a federal scope and severity rating of G, meaning that there are isolated deficiencies causing actual harm that is less than immediate jeopardy to the health or safety of the residents. The May 2001 survey, as modified by the IDR process, set forth two alleged deficiencies under Tag F309. The first alleged deficiency concerned Resident 7, or "R-7:" [R-7] triggered on the Resident Assessment Protocol (RAP) Summary for behavior. On the 06/02/00 Minimum Data Set (MDS) this resident was coded as having moderate daily pain. Subsequently on the 02/22/01 MDS this resident was coded as having daily pain which was sometimes severe. During the initial tour at 9:30 a.m. on 05/08/01, the resident was described as refusing to get out of bed and refusing showers due to pain. Clinical record review and staff interview revealed there was no documentation of an ongoing evaluation of this resident's pain since 1999. The behavior assessment identified pain and chronic illness but did not reflect the increase in pain or an evaluation of the resident refusing care. R-7 was admitted to Jacaranda Manor on March 23, 1999. She received a comprehensive psychiatric evaluation upon admission. R-7 was a 41-year-old female, bipolar with a history of psychosis, dementia, and manic episodes. She was a hermaphrodite. Her physical illnesses included pickwickian syndrome, a condition characterized by obesity, decreased pulmonary function and somnolence. R-7 also suffered from psoriatic arthritis, a condition that caused her chronic pain and limited her movement. She complained of pain when being moved. When she was in bed and not moving, she did not complain of pain. Jacaranda Manor prepared a formal pain assessment of R-7 upon her admission. She was seen weekly by her attending physician, psychiatrists, and therapists, and was seen several times a day by the nursing staff. All of the medical professionals who saw her entered written notes into her medical record. AHCA's observation accurately notes that R-7's medical record lacks a document formally titled "evaluation" or "assessment" of R-7's pain, but testimony and documentary evidence at the hearing established that R-7's condition, including her pain, was consistently monitored and noted by Jacaranda Manor staff. Franklin May, a senior pharmacist, was the AHCA surveyor who made the observation of R-7. Mr. May interviewed R-7 and the treating nursing staff, and he reviewed the available medical records. Mr. May testified that he had "no problems with the way they were treating this lady." Mr. May's concern was that R-7's pain had apparently increased, and her condition deteriorated, but the facility could provide him with no documentation of a formal assessment or evaluation of her pain subsequent to her admission in 1999. Jacaranda Manor did not dispute Mr. May's contention as to documentation of formal assessments, but contended that medical staff "assessed" R-7 on a daily basis and that their chart notes constituted documentation of those assessments. This contention is credited to the extent that Jacaranda Manor established that nothing was lacking in the actual care provided to R-7, and that staff of Jacaranda Manor possessed a nuanced understanding of R-7's condition and of her somewhat mercurial personality as it affected her complaints of pain. It is not credited to the extent that Jacaranda Manor contends that ongoing, formal assessments of R-7's pain were superfluous. Mr. May's impression was that R-7's refusal to get out of bed and to take showers was a recent phenomenon indicating an increase in pain. In fact, R-7 was mostly bed- bound throughout her stay at Jacaranda Manor, and even before her admission. Her reported pain fluctuated from time to time, as did her amenability to taking her prescribed pain medications. The totality of the evidence established that R- 7's condition was at least stable, if not markedly improved, throughout her stay at Jacaranda Manor. In conclusion, the evidence supported Mr. May's contention that Jacaranda Manor's documentation of the care provided to R-7 was insufficient to permit a surveyor to obtain an accurate picture of her condition and treatment, and therefore supported the initial classification of Tag F272 in that R-7's formal assessment instruments were insufficiently updated. However, the evidence did not support changing the classification to Tag F309, because no actual deficiencies in R-7's care were proven or even alleged prior to Ms. Acker's review of the IDR process. The second alleged deficiency under Tag F309 concerned Resident 25, or "R-25:" [R-25] was admitted on 04/10/01 directly to the secure unit upon admission to the facility. The Resident had a primary diagnosis of Cancer of the lung and paranoid schizophrenia. The Resident was receiving Hospice in another skilled nursing facility in Tampa before he/she was sent to the hospital for violent outburst of behavior. Transfer social services document from the hospital indicate [sic] that resident is to be admitted to Jacaranda Manor with Hospice services. Monthly orders for this resident for April and May, 2001 reflected orders for Hospice. Interview of facility social services' staff, state [sic] that Resident was discontinued from Hospice due to "residents [sic] condition being stable" according to hospice. Contact was conducted with Life Path [the Tampa hospice] who confirm that this resident did meet Hospice criteria and that they do not service the St. Petersburg area and that was the only reason they had to discharge the resident. Hospice staff said that Jacaranda admissions person was told that they were responsible to secure the services of the Hospice covering the St. Petersburg area and they would then share their records with that Hospice. This resident was documented to be ambulatory throughout the secure unit and sociable with staff. Resident had episodes of shortness of breath and occasional use of oxygen. On 05/10/01 the resident developed cardiac arrest and was sent to the hospital by EMS where he/she was pronounced dead. The facility did not meet the needs of this resident for his/her terminal care needs. R-25 was a large, heavy-set 67-year-old male who had been diagnosed with lung cancer, chronic obstructive pulmonary disease ("COPD"), paranoid schizophrenia, and seizure disorder. R-25 had been a resident of a Tampa nursing home until a behavioral outburst caused his admission to the psychiatric unit of Tampa General Hospital for an adjustment of his medications. While in the Tampa nursing home, R-25 had received services from Life Path Hospice, which served patients in Hillsborough County, due to his lung cancer diagnosis. The decision had been made not to treat the cancer, and R-25 had been receiving hospice services for over one year. R-25 was an elopement risk and subject to violent outbursts, such that the Tampa nursing home declined to re- admit him after his hospital admission. Staff of Life Path Hospice knew of Jacaranda Manor's reputation for accepting this kind of difficult resident. Grizier Cruz, a mental health counselor at Life Path, contacted Sharon Laird, Jacaranda Manor's admissions director. Ms. Laird agreed to evaluate R-25 for admission, and Jacaranda Manor admitted R-25 on April 10, 2001. Ms. Laird testified that she initially asked Ms. Cruz whether Life Path would continue to provide services to R-25 at Jacaranda Manor, or whether Life Path would transfer the case to the hospice serving Pinellas County. Ms. Laird testified that Ms. Cruz told her that R-25 was stable and no longer in need of hospice services. Ms. Cruz denied telling anyone at Jacaranda Manor that R-25 was stable and not in need of hospice services. Ms. Cruz stated that she informed Jacaranda Manor that Life Path would be withdrawing services from R-25 because he was leaving Hillsborough County, Life Path's area of coverage. She testified that Jacaranda Manor would have to establish a physician for R-25 at the facility. The physician would have to write an order for hospice, at which time Life Path would make the referral to the Pinellas County hospice that would then come to Jacaranda Manor to evaluate R-25 for its program. When R-25 was admitted, Jacaranda Manor followed its standard assessment and care planning procedures, noting his diagnosis of lung cancer and the need to contact hospice. Linnea Gleason, social services director at Jacaranda Manor, testified that she contacted Life Path twice during the care planning process, and was told both times that R-25 was stable and in no need of hospice. Ms. Gleason's contemporaneous notes in R-25's chart are consistent with her testimony. Dr. Gabriel Decandido was R-25's physician at Jacaranda Manor. His examination revealed that R-25's cancer was apparently slow growing, because he was relatively pain free and did not appear to be at the end stage of life. Dr. Decandido was not surprised to learn that R-25 had lasted over one year on hospice; he was surprised that R-25 had been receiving hospice services at all. Dr. Decandido did not believe that R-25 needed hospice services. R-25 was stable, comfortable, not in pain, happy and smiling. At times, he used oxygen due to his COPD and continued smoking. He kidded with the nurses and went outside to smoke throughout the day. Dr. Decandido noted that R-25's schizophrenia made him a poor patient with whom to discuss death because such discussions could increase his psychosis and paranoia. Given R-25's entire situation, Dr. Decandido thought it best to allow R-25 to live out his life at Jacaranda Manor, walking around, talking to people, eating, drinking, and smoking. Another factor influencing Dr. Decandido's opinion was that x-rays taken of R-25 at Jacaranda Manor did not indicate lung cancer. Dr. Decandido did not dispute the diagnosis of lung cancer, but did dispute that R-25 was a man about to die from lung cancer. His findings from the x-rays were that R-25 suffered from congestive heart failure and possibly pneumonia. Ms. Gleason testified that she and her social services staff visited R-25 three times a week to offer counseling, but that R-25 showed no anxiety about his lung cancer and declined services. Elaine Teller was the charge nurse at Jacaranda Manor during R-25's admission. She directly asked R-25 on several occasions whether he wanted hospice. She explained the advantages of hospice care in managing his medications. On each occasion, R-25 declined hospice. Ms. Teller failed to note these declinations in R-25's chart. However, given that there was no physician's order for hospice and that R-25's capacity to consent was questionable at best, Ms. Teller's notations would have been superfluous in any event. Life Path Hospice informed Jacaranda Manor that it would be necessary to obtain the consent of R-25's only known relative, a daughter in Jacksonville, to commence hospice services in the event they were ordered by a physician. Ms. Laird of Jacaranda Manor contacted the daughter by telephone and sent her an admissions package by certified mail. The daughter did not accept delivery of the package. Thus, Jacaranda Manor never received signed admission documents from R-25's family, which would have included advance directives such as hospice. AHCA's contention that "[m]onthly orders for this resident for April and May, 2001 reflected orders for Hospice" is simply a misreading of R-25's record. The notation "hospice" appears under the term "advance directives" on a record document with the title "physicians orders and administration record." Despite its title, this sheet was used by Jacaranda Manor as a medication sheet. A notation of an advance directive for hospice was not a physician's order for hospice. Jacaranda Manor staff was fully aware that a physician's order for hospice would have been indicated by a special sticker on the sheet and by accompanying paperwork. Ms. Gleason explained this procedure to AHCA surveyors, who nonetheless cited these "orders" as deficiencies. R-25 died on May 10, 2001, one month after his admission to Jacaranda Manor. His death was caused by cardiac arrest, unrelated to his lung cancer diagnosis. Jacaranda Manor's version of events involving R-25 is credited. Other residents at the facility receive hospice services, and there is no reason to conclude that the facility would fail to implement a physician's order for hospice services for R-25. The evidence does not support the deficiency cited by AHCA, either under F272 or F309. In summary, the evidence did not support the change of Tag F272 to Tag F309. The evidence did support a Class III deficiency under Tag F272 as to the documentation of Jacaranda Manor's treatment of R-7. II. June 2001 Survey A. Tag F241 The June 2001 survey allegedly found two Class III violations of Tag F241, the "dignity tag," both from observations made on June 19, 2001, at 3:05 p.m. by surveyor Patricia Reid Caufman. The first observation involved Resident 19, or "R-19": [R-19] was lying in bed (mattress) on the floor and receiving one to one supervision from the Certified Nursing Assistant (CNA). The resident was sleeping with the door open and the privacy curtain was not pulled around the resident. The resident faced toward the window with his adult briefs exposed to the hallway. The CNA was sitting on a chair in the hallway observing the resident. The CNA did not attempt to cover the resident to maintain his/her dignity. R-19 was a 60-year-old male with a history of dementia and a propensity for violent outbursts. R-19 had no safety awareness, and had done such things as pull his room air conditioning unit out of the wall and attempt to walk it out into the hallway. He had a great deal of psychomotor agitation, and persistently pulled at things. He was prone to falling into chairs or his bed, pulling down curtains and curtain rods. If approached abruptly, he might strike out. Three or four people could be needed to give him a bath. The medical staff constantly adjusted his medications in an effort to manage his behavior without over-sedating him. R-19 was very resistant to dressing, and could undress himself very quickly. Staff of Jacaranda Manor tried various strategies to keep him dressed, including one-piece outfits, clothing that zipped in the back, and hospital gowns with pajama bottoms, but nothing was entirely successful. Jacaranda Manor had taken steps to ensure his safety. R-19 had been placed in a private room at the back of his hallway to minimize his interactions with other residents. All furnishings had been removed from the room, save for a mattress on the floor. Padding was placed around the mattress to minimize his thrashing. The windowsills were padded, and the air conditioner protected. At the time of the June 2001 survey, R-19 was receiving 24-hour one-on-one care, for his own safety and that of the other residents. When R-19 slept, the CNA assigned to him was instructed to sit in the doorway to his room. A Dutch door was installed to his room. Once R-19 fell asleep, the bottom part of the door could be closed to obscure the view of passersby but still allow the CNA to peek over the top to check on him. Jacaranda Manor conceded the accuracy of Ms. Caufman's observation, but contended there was no alternative plan of care for R-19. The door could not be closed completely, because the resident then could not be observed by the CNA. Placing the CNA on a chair inside the room would defeat the purpose of removing all the furnishings for safety, and would have placed the CNA in jeopardy. The privacy curtain would obscure the CNA's view of the resident. R-19 was easily disturbed. Ms. Redmond, the director of nursing, testified that R-19 "needs to sleep when he wants to, because otherwise he is just up and going all the time." Ms. Redmond believed that any attempt to cover R-19 with a sheet would have awakened him, "and then he would have been up and going again and wouldn't have gotten any rest." Based upon the unique characteristics of this resident, and the extensive steps taken by Jacaranda Manor to ensure R-19's safety with some level of privacy, it is found that the evidence failed to establish that the observation of R-19 constituted a deficiency under Tag F241. Ms. Caufman's second observation under Tag F241 involved Resident 20, or "R-20": [R-20] was observed from the hallway lying in bed with the door open and the privacy curtains not pulled around the resident. The resident was wearing adult briefs and the front half of the resident was exposed. Two staff members passed by the open door and failed to intervene so as to protect resident dignity. R-20 was a male resident suffering from dementia. He would take off his gown or shirt while lying in bed. He was capable of opening and closing his own privacy curtain. Ms. Caufman could not identify the two staff members who passed the open door. Ms. Caufman's handwritten notes state that she observed R-20 uncovered at 3:05 p.m., but that staff had covered him when she next went past the room at 3:09 p.m. She did not explain why her formal statement omitted the fact that the resident was covered no more than four minutes after her observation. Jacaranda Manor offered no explanation as to why the door could not have been closed or the privacy curtain drawn to prevent passersby from seeing R-20 uncovered in his bed. On the other hand, Ms. Caufman's brief description of the incident, her failure to identify the staff members who allegedly ignored R-20, and her omission of a relevant fact render the situation ambiguous. As noted above, staff at Jacaranda Manor do not wear uniforms. Only direct care staff are allowed to approach patients to dress or cover them. Other staff, such as maintenance or cafeteria workers, are directed to be alert to residents' dress and to go get a direct care staff person when they see a problem. Based on Ms. Caufman's narrative and on the fact that the resident was covered within four minutes of her observation, it is as likely as not that the two people she saw pass the room were not direct care staff, and that they alerted the direct care staff, who then covered the resident. It is found that the evidence failed to establish that the observation of R-19 constituted a deficiency under Tag F241. B. Tag F250 The June 2001 survey allegedly found one violation of Tag F250, the "social services tag," involving Resident 14, or "R-14": [R-14] was admitted to the facility on 7/2/98 with diagnoses that include organic brain syndrome, traumatic brain injury and dysphagia. The resident's minimum data set (MDS) of 7/3/00 indicated that the resident had broken, loose teeth and dental caries. The most recent MDS, dated 3/8/01, indicated that the resident had some or all natural teeth and needed daily cleaning. It did not document broken, loose teeth with dental caries. The resident assessment protocol (RAP) for Dental, dated 3/8/01, documented that the resident was missing several teeth, had no dentures and the remaining teeth were discolored, but no gross caries or other problems. The status was documented as no oral hygiene problem, no problem that would benefit from a dental evaluation, but the patient was determined to be at risk for developing an oral/dental problem. The staff was to assist the resident with oral care and monitor for problems. The care plan, dated 3/14/01, documented that the resident had dental caries (in conflict with the RAP assessment) along with missing teeth and the goal was to assist with oral care at least twice daily and obtain a dental consult as needed. A dental evaluation had been done on 8/18/98 (three years prior to the survey), and the evaluation (obtained from the thinned record) revealed that this was an initial oral examination and the resident had several missing teeth, heavy calculus and plaque noted. His teeth were documented as stable with no swelling or fractures noted and the resident was determined not to be a good candidate for routine dental care. During the initial tour with the 7-3 Supervisor, on 6/19/01, at about 9:30 a.m., the resident's teeth were observed. A front tooth was missing and a very large amount of plaque was noted, especially on the lower teeth. The supervisor commented that she observed dental caries. On 6/20/01, at 11:10 a.m., observations of the patient's teeth were made with the director of nursing (DON). The resident was seated in a recliner, sleeping with his mouth wide open. The left front tooth was broken and multiple dark areas in the back teeth were observed. There was a large amount of built up plaque on upper and lower teeth and on the upper and lower gum lines. An unpleasant mouth odor was detected at that time. Review of the social service notes from 7/15/98 through 5/16/01, revealed no documentation that the patient had dental needs. The current record did not contain a recent dental evaluation and the DON stated that she would review the thinned record. The initial dental evaluation, dated 8/18/98 mentioned above, was the only documented dental evaluation provided by the facility for review. Interview with the DON, on 6/20/01, at 1:50 p.m., revealed that the resident had refused dental work as documented on the care plan, dated 2/12/01. The nurses notes did not document that a dental appointment had been made and the resident refused examination. The facility was asked to provide any documentation that the resident had been sent to a dentist and refused care. No other documentation was provided. In addition, the resident was coded as severely cognitively impaired on the MDS of 7/3/00, 2/5/01 and 3/8/01. There was no evaluation of the resident's capacity to provide or deny consent for treatment in the record. The resident's wife was documented as the decision maker on the MDS, but according to the DON she was unable to be contacted for a "long time" and there was no documentation that she had been involved in any decision making. The resident had no other legal representative. On 6/20/01, at 1:50 p.m., the DON stated that a doctor's order had been obtained for a dental appointment and the appointment was made. Lack of appropriate dental care may result in infections and diminish the resident's health status. Patricia Procissi was the surveyor who recorded the observation of R-14. She found a conflict between the July 3, 2000, MDS, which documented broken, loose teeth with dental caries, and the March 8, 2001, MDS, which did not document the tooth problems. However, a RAP prepared on the same date did document dental problems for R-14. Ms. Procissi interpreted the March 8, 2001, RAP as indicating improvement in R-14's condition without any documented dental intervention. She believed that this RAP conflicted with a care plan dated March 14, 2001, that indicated dental caries. In fact, the March 8 RAP stated "no gross caries," which is not necessarily in conflict with a finding that R-14 had some dental caries. Ms. Procissi noted that the director of nursing, Ms. Redmond, had told her that R-14 refused dental care, but Ms. Procissi could find nothing in Jacaranda Manor's records documenting that R-14 had been sent to a dentist and refused care. Ms. Gleason, the social services director, testified that she asked R-14 if he would like to see a dentist, and he had refused dental care. Ms. Gleason testified that she documented this refusal in R-14's care plan, along with a notation that staff should continue to encourage him to accept dental services. Ms. Procissi saw Ms. Gleason's note reflecting R- 14's refusal to see a dentist. However, she believed that this documentation raised the question of why there was no doctor's order that R-14 should be seen by a dentist. She stated that in most cases, there is a doctor's order followed by a nurse's note documenting why the order could not be carried out. Here, there was nothing in the record explaining the circumstances of R-14's refusal. Ms. Procissi also found it "odd" that R-14's refusal was documented in the social services care plan rather than the medical notes. At the hearing, Ms. Gleason and Ms. Hirsch testified as to the general difficulty of obtaining dental services for Medicaid patients. Few dentists are willing to accept adult Medicaid patients. At the time of the survey, Jacaranda Manor had two dentists and an oral surgeon who would see its residents, but even these dentists limited the number of residents they would accept in a given month. If a Medicaid resident needs dental work, the doctor or a nurse will write a note to the social services office, which phones the dentist's office and provides the resident's Medicaid information and the nature of the dental needs. The dentist's office calls back to inform social services whether the resident is eligible under the "medically necessary" criteria for Medicaid reimbursement. If the resident is eligible, social services makes the appointment, arranges transportation for the resident, and accompanies the resident to the appointment, if necessary. Jacaranda Manor also schedules routine appointments several months in advance. R-14 was a 47-year-old cognitively impaired male. He was a Medicaid recipient. R-14 could be verbally and physically abusive when approached. At the time of his admission to Jacaranda Manor, and at all times subsequent, R- was fed exclusively via gastrointestinal tube, meaning that any dental problems would not affect his nutrition. Dr. Stuart Strikowsky, Jacaranda Manor's medical director, opined that R-14 was in no pain or discomfort, had loudly and adamantly stated that he wanted no dental work, and would require complete sedation to undergo a dental evaluation. Dr. Strikowsky believed that a dental examination was medically unnecessary for this resident. Kevin Mulligan, AHCA's Medicaid dental specialist, testified that Medicaid covers only medically necessary dental services, and that a dental examination for a nursing home patient must be requested by the attending physician and the nursing director. Dr. Strikowsky plainly believed that such a request was unnecessary for this resident. It is found that the evidence was at best ambiguous that the observation of R-14 constituted a deficiency under Tag F250. Jacaranda Manor conscientiously monitored and documented R-14's dental condition. R-14's physician believed that a dental examination was medically unnecessary, somewhat mooting Ms. Procissi's concerns regarding the lack of a doctor's order for dental services.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Agency for Health Care Administration enter a final order finding a Class II deficiency for Tag F241, a Class III deficiency for Tag F272, and assigning conditional licensure status to Jacaranda Manor for the time period from May 15, 2001 to February 28, 2002. It is further recommended that the Administrative Complaint be dismissed and no civil penalty assessed against Jacaranda Manor. DONE AND ENTERED this 25th day of July, 2002, in Tallahassee, Leon County, Florida. ___________________________________ LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings 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 this 25th day of July, 2002.
Findings Of Fact Venice Hospital, a general acute care hospital offering 342 medical/surgical beds and 30 bed's for general psychiatric care, services a population of approximately 110,000 people in Southern Sarasota and Northern Charlotte Counties. Approximately 80% of its patients are covered by Medicare. This figure being higher than average, puts it somewhere in the top 5% of Medicare providers in Florida. The hospital's services are concentrated on geriatric patients and it is developing several programs devoted to that type of patient. It has recently received approval for nursing home development and operates a home health agency. Missing from the geriatric spectrum of services is the hospital based skilled nursing facility, (SNF), which is the subject of this action. Sarasota County currently has four med/surg hospitals, including Petitioner which is the only hospital in the Venice area. Petitioner has a licensed psychiatric unit which operates under separate rules and which is licensed separately but within the hospital cycle. The patients which are treated in that unit are of a different demographic make up than those treated in the med/surg beds and the staff which treats them is different. Petitioner completed a study of the potential need for SNF beds in the hospital which led to the conclusion being drawn by it that this service should be established. Mr. Bebee's review of the applicable rules and statutes indicated to him that the hospital could elect to designate a special care unit within the hospital without even having to go through Certificate of Need, (CON), review. A letter was submitted by the hospital to the Department on February 8, 1990, asking for an exemption from CON review for that project. Because no response to that letter was forthcoming, and because the hospital review cycle was fast coming up, on February 22, 1990, Mr. Bebee submitted a LOI to the Department seeking to convert 42 med/surg beds to a hospital based SNF facility at a cost of $310,000.00. After the LOI was sent, on February 26, 1990, Ms. Gordon-Girvin, on behalf of the Department, responded by letter to Bebee's inquiry letter, indicating the CON review process was a necessary part of the process for Petitioner's facility, but that the LOI and application should be filed in the next nursing home batching cycle by April 30, 1990. Shortly thereafter, by letter dated March 13, 1990, Ms. Gordon-Girvin rejected the LOI which Petitioner had submitted in the hospital cycle since, according to the Department, it was properly "reviewable under the nursing home review cycle rather than the hospital review cycle." Notwithstanding that rejection, and understanding the Department's position as to which cycle was appropriate, on March 26, 1990, Petitioner submitted its CON application for this project, modified to seek only 36 beds. By undated letter, the envelope for which was postmarked April 16, 1990, Ms. Gordon-Girvin declined to accept that application for the same reason she had rejected the LOI. Petitioner has since filed a CON application for the same project in the current nursing home cycle, on a nursing home application form. It did this to keep its options open but considers that action as being without prejudice to the application at issue. Though numerical bed need is not in issue in this proceeding, a brief discussion of general need is pertinent to an understanding of why Petitioner has applied for approval of this project. Petitioner is of the opinion that SNF beds within the hospital setting will provide better care for the patients than could be provided in a nursing home. Many of the patients in issue are receiving intravenous applications of medicines; taking antibiotics; require orthopedic therapy; or are in respiratory distress calling for ventilator or other pulmonary procedures. These patients need a continuing level of nursing care on a 24 hour basis but no longer qualify for a hospital continued length of stay. Petitioner currently has and is taking care of such patients in the facility, but would like to do so in a more organized, systematic manner which could be accomplished in a hospital based SNF. In addition, reimbursement rules dictate that patients no longer needing full hospital care but who remain in the hospital, become, in part, a cost to the hospital because no meaningful reimbursement is received for thatlevel of care. They would qualify for Medicare reimbursement, however, if the unit were designated and certified as a SNF. Medicaid does not recognize these beds as reimbursable because they are in a hospital. Certification for the hospital based SNF would be through the Health Care Financing Administration, (HCFA), and the Medicare program. To secure this certification, the hospital based unit would have to be a distinct part of the facility and not merely consist of beds scattered throughout the facility. Once certified, the unit is not referred to as a nursing home by HCFA or Medicare, but is classified as a hospital based unit. Because Petitioner sees this as a hospital project - a service that the hospital would be providing under its license, it chose to file for the approval in the hospital cycle rather than in the nursing home cycle. Bebee is familiar with the certification process for both hospitals and nursing homes. The latter is a lengthier process and is substantially different from that used for hospitals. In his opinion, it does not give the hospital based applicant the opportunity to properly justify the approval of a hospital based SNF since it deals more with the requirements of a community based facility. The nursing home form is highly structured whereas the hospital form makes it easier to identify and supply the appropriate supporting information for the project applied for. Further, Bebee does not consider the hospital based SNF bed in the same context as a community nursing home bed. The type of patient is not the same nor are the resources required to treat that patient. Petitioner has purchased a CON to construct a 120 bed community nursing home within the Venice area which will have some SNF beds in it. Nonetheless, because of the basic difference between the services, it still plans to pursue the hospital based SNF. A Florida Hospital Association study concluded that SNF in hospitals are different and there is a lack of this type of service in the hospitals throughout the state. This study, dated May, 1989, at Page 5 reads: Conversion of hospital beds to nursing home beds could improve the financial viability of hospitals, reduce purchasers' and consumers' health costs, and improve access to care for patients requiring higher levels of nursing care, [if they are needed and meet quality care requirements]. Bebee also points out that if this project is considered in the nursing home cycle rather than in the hospital cycle, it would result in a hospital competing with nursing homes which are seeking a different type of bed - community versus SNF. Current community nursing home bed need is set at 0. Petitioner's nursing home cycle application was filed under the "not normal circumstances" provision, but there may still be substantial contest. This type of litigation, he believes, adds unreasonably and unnecessarily costs and is a resultant financial burden to the hospital. Mr. Balzano, a health care consultant and Petitioner's other expert, confirmed and amplified the substance of Mr. Bebee's thesis. He compared hospital based SNFs with those in community nursing homes and found notable differences aside from the statutes and rules governing each. Petitioner's current beds are controlled under Chapter 395, Florida Statutes, and Rule 10D- 28, F.A.C. If some were converted to SNF beds under the pending application, they would still fall under the purview of that statute and rule. On the other hand, community nursing home SNF beds would be controlled by the provisions of Chapter 400, Florida Statutes, and Rule 10D-29, F.A.C. There is a substantial difference between them. Other differences are: Patients in hospital based SNF beds generally have greater nursing requirements than those in SNF beds in community nursing homes. Staffing in hospital based SNF is generally higher than in free standing nursing homes. The average stay is shorter in a hospital based SNF. Patients are not there for continuing care but for restorative care. The size of a hospital based SNF unit is generally smaller than that in a free standing unit. Costs are usually greater in a hospital based SNF unit reflecting the greater needs of the patient. Therefore, reimbursement is generally higher. Health services in the different systems are different and a comparative review would be difficult. The questions in the different application forms reflect a different approach and in the nursing home application, relate to residential type care. This is not the case in the hospital form. Costs relating to the use of an existing facility would be cheaper for the hospital based unit when compared with building a new nursing home facility. However, the costs of hospital construction are usually higher than nursing home construction though the quality of construction is generally better. The operating costs for the more complex services provided in a hospital based unit are higher and Petitioner would have trouble competing if reimbursement were based on the classification as a nursing home. Higher staffing levels and higher staffing costs in a hospital based facility would act in disfavor of that facility. The state generally looks with greater favor on projects for Medicaid patients. Hospital based units are not oriented toward that group and would, therefore, not be given the same consideration, as would be a nursing home which catered to Medicaid patients. The type of patient, (residential vs. subacute) has an impact. The hospital based unit provides treatment to the more acutely ill patient. SNF patients who need that higher degree of care would get it better at a hospital based facility which has greater resources to meet patient needs. Mr. Balzano feels it is unfair to compare the two types of properties. The differences in the programs would have an impact on the issue of need when comparative review is done. A SNF in the hospital setting is different but would be compared, if the nursing home cycle were used, against the total pool of community nursing home beds even though the patients are different and their need for services are different. Need methodology looks at historical utilization. Hospital based SNF patients turn over more frequently than do community nursing home patients and the occupancy level is not as high in the hospital based setting. This would bring the average occupancy rate in an area down and could affect the need for community beds across the board. It is also noted that hospital based SNF beds would not be appropriate to house community nursing home patients who could not be accommodated in a nursing home, and vice-versa. SNF patients could normally not be appropriately treated in a community nursing home because of their greater needs. If compared in a batched review, however, they would be considered together without that distinction being made. Since all other hospital services are reviewed under the provisions of Chapter 395 parameters as hospitals, Balzano sees it as inconsistent to review hospital based SNF beds under the nursing home criteria. He can find no statutory or rule provision requiring this. The Department has drafted a proposed rule on the subject but that proposal is presently under challenge. Further, Medicare considers hospital based SNF beds and community nursing home based SNF beds as different entities with the hospital based beds earning a higher reimbursement ceiling due to the increased services and the different type of patient. According to Mr. Balzano, in Florida, hospital based SNF beds account for 1/2 of 1% of all hospital beds. Nationwide the figure is 4%. Balzano feels this is because in Florida there is no criteria to judge need against and therefore these beds are compared to all nursing home beds. He considers this wrong, especially in a state where there is such a high percentage of elderly patients. It is, in his opinion, poor health planning, and when compared against other nursing homes, the hospital based SNF unit will always be at a disadvantage. The testimony of Ms. Sharon Gordon-Girvin, Director of the Department's Office of Community Health Services and Facilities, reveals the Department's rationale in its rejection of the Petitioner's LOI for the instant project and the subsequent return of its application. The application was rejected because there was no underlying LOI for the project. The LOI was initially rejected as having been filed in an inappropriate cycle, (hospital). The Department's policy, calling for applications for all extended care or hospital based skilled nursing facility beds to be filed in a nursing home batching cycle has been in place for an extended period going back before 1984. The Department looks at extended care beds and SNF beds as somewhat equivalent but different. The designation of extended care facility beds initially used by HCFA, (Medicare), in hospital situations is no longer applicable. Now, Medicare recognizes SNF beds in hospitals, but does not distinguish them from other types of hospital based beds. The service is considered the same and the patients must meet identical admissions criteria. The reasons relied upon by the Department, from a health planning standpoint, for reviewing applications for hospital based SNF beds in the nursing home cycle are: Medicare conditions of service and admission criteria are the same, and The State nursing home formula rule projects a need for all nursing home beds, (SNF and ICF) , and does not differentiate between type. Providers compete for the beds, not where they will be used or under what conditions. The mere need for special treatment such as ventilators or intravenous antibiotics is not controlling. If the patient does not need the acute care provided to hospital acute care patients, since a "subacute" status is no longer recognized by the state, it is the Department's position that that patient should be in intermediate care status. This position is incorporated in the Departments proposed rule which is currently under challenge. It had been elucidated, however, in both the 1988 and 1990 editions of HRSM 235-1, relating to Certificates of Need, where at section 9-5 in both editions the text reads: 9-5 Skilled Nursing Unite in Hospitals. Beds in skilled nursing units located in hospitals will be counted in the nursing home bed inventory, even though they retain their licensure as general medical surgical beds. In addition, the Florida State Health Plan for 1989 and for each year since 1984, has counted hospital based SNF beds in the nursing home bed inventory. The parties stipulated to that point. Ms. Gordon-Girvin admits that it is sometimes difficult for an applicant to apply for hospital based SNF beds on a nursing home application for, but claims that is as it should be. She asserts that the patients are the same, (disputed), and since, she claims, a hospital cannot provide the same services that a full service nursing home could provide, the applicants should be differentiated on the basis of services rather than patient category to justify the additional cost inherent in the hospital based setting. In short, she believes the current situation is appropriate since it requires the applicant, a hospital, to look more carefully at the terms and conditions of the services to be provided. In so far as this results in health care cost savings, her position is accepted. She also contends that the Florida Hospital Association study relied upon by Petitioner to support its position that hospital based SNF bed applications for distinct units cannot compete fairly against nursing homes in a comparative CON review, is not pertinent here considering it was prepared to examine an excess of hospital bed inventory and possible alternative uses as income sources. Regardless of the purpose of the study, absent a showing that it is unreasonably slanted or biased, its conclusions have not been successfully rebutted. Ms. Gordon-Girvin also contends that the low percentage of hospital based SNF beds as compared to total hospital beds is a positive result of the state's efforts to reduce costly services in favor of less costly alternatives. The Department has the exclusive charter to determine which services are to be reviewed and how the review is to be conducted. Even if the proposed rule formalizing the procedure questioned here is stricken, the policy currently being utilized by the Department would still be valid and appropriate. Psychiatric, substance abuse, and rehabilitation beds in hospital inventories are considered distinct from acute care beds, but are still classified as hospital beds because there are no reasonable alternatives for treatment of those conditions. With regard to those patients using hospital based SNF beds, however, the Department claims there is an alternative, the community nursing home based SNF beds. In further support of the Department's position, Amy M. Jones, the Department's Assistant Secretary for Health Care Facilities and an expert in facility licensing and certification in Florida, pointed our that the Department treats hospital based SNF beds and community nursing home SNF beds the same because: conditions of participation are the same and the Department wants to look at and compare similar activities in the same cycle, and pertinent statutes and rules both provide for comparison of similar beds and similar services. Section 395.003(4), Florida Statutes, defines the various types of hospital beds as psychiatric, rehabilitative, and general medical/surgical acute care beds regardless of how they are used. The HCFA Conditions of Participation call for certification of SNF beds as either a distinct part of another facility or as a free standing facility. The agency regulations, as outlined in The Federal Register for February 2, 1989, outlines the requirement that SNF beds in a hospital be surveyed just as are community nursing home SNF beds. Taken as a whole, it would appear that both federal and state regulatory agencies look at SNF beds, regardless of where located, as an integral part of a nursing home operation as opposed to a hospital operation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered by the Department affirming its rejection of the Petitioner's Letter of Intent and CON application for the conversion of medical/surgical beds to SNF beds filed in the hospital batching cycle. RECOMMENDED this 30th day of August, 1990, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of August, 1990. APPENDIX TO RECOMMENDED ORDER IN CASES NOS. 90-2738 & 90-3575 The following constituted my specific rulings pursuant to S 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: Not a proper Finding of Fact. Accepted and incorporated herein as it relates to Petitioner's filing of the LOI and the CON application. The balance is background information and is not a proper Finding of Fact. 3.-6. Accepted and incorporated herein. Not a proper Finding of Fact but a statement of party position. Accepted and incorporated herein except for first sentence. Accepted and incorporated herein. Accepted. Accepted. &13. Accepted and incorporated herein. 14.&15. Accepted. Accepted and incorporated herein. Accepted and incorporated herein. 18.-21. Accepted. Not a Finding of Fact but merely a restatement of the testimony. Accepted and incorporated herein. Accepted and incorporated herein. &26. Accepted and incorporated herein. Accepted. &29. Not a Finding of Fact but argument and a restatement of testimony. Not a Finding of Fact but argument. Not a Finding of Fact but a comment on the evidence. Accepted. Recitation of the witnesses testimony is accurate, but the conclusion drawn does not necessarily follow. Frequency of use does not necesarily determine the finality of the policy. Not a Finding of Fact but a comment on the evidence. Accepted as a presentation of the contents of the document. Accepted. Accepted as represented. 38.-40. Accepted and incorporated herein. 41. Accepted as a restatement of testimony. 42.&43. Accepted. Accepted. &46. Accepted. Accepted. Accepted. FOR THE RESPONDENT: 1.&2. Accepted and incorporated herein. 3. Accepted. 4.-6. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. COPIES FURNISHED: Richard A. Patterson, Esquire Department of Health and Rehabilitative Services 2727 Mahan Drive - Suite 103 Tallahassee, Florida 32308 Jeffery A. Boone, Esquire Post Office Box 1596 Venice, Florida 34284 Linda K. HarSris General Counsel DHRS 1323 Winewood Blvd. Tallahassee, Florida 32399-0700 Sam Power Agency Clerk DHRS 1323 Winewood Blvd. Tallahassee, Florida 32399-0700
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.
The Issue The ultimate issue, by comparative hearing, is which applicant has submitted an application best meeting the criteria of Section 381.494(6)(c), Florida Statutes and Rule 10-5.11, Florida Administrative Code. STIPULATIONS At the formal hearing, all parties stipulated that, as a matter of law and fact, there are 60 nursing hone beds needed to be allocated to one of the parties in these proceedings; that the criteria in Section 381.494(6)(c)(4), (6), (10), and (11) Florida Statutes were not applicable to this case and that the parties need not demonstrate compliance therewith.
Findings Of Fact The stipulations immediately above are adopted in toto as a finding of fact. (See January 30, 1984 Order herein). It is typically more cost-efficient to add 60 beds to an existing nursing home than to construct a free-standing 60-bed nursing home. In comparing competing projects' costs, total cost per bed (including financing, development, and construction costs) is a more accurate indicator of true financial cost of a project than is cost per square foot. Also, cost per bed is more accurate reflection of what the community must pay for a nursing facility than cost per square foot, since cost per bed takes into account the financing, developing, and construction costs. By comparison, BEVERLY's cost per bed is $19,000, FLC's cost per bed is 21,083 and FLNC's cost per bed is .$18,335. 1/ BEVERLY is a for-profit corporation. By its revised CON application, it proposes a 60-bed addition to its existing 120-bed nursing home, Longwood Health Care Center, located in Seminole County, Florida. BEVERLY has operated the Longwood facility for only 3 years. It is operated under an assumption of lease. Dan Bruns, Director of Acquisitions and Development for BEVERLY, testified that the corporate resolution (B-3) is the authorization for BEVERLY's CON application but that exhibit does not reference the revised 60 bed CON application. Upon the lease terms at Longwood and the corporate resolution, BEVERLY's authority to carry through with a 60 bed addition is suspect. FLC is a six-person investment group which has as yet selected no site and has no firm commitment to a specific site or geographic area within Seminole County for its project. Indeed, the entity which will own the FLC project's physical plant has not yet been created. FLC's revised CON application proposes construction of a 120-bed facility with 60 skilled nursing home beds and 60 beds dedicated for an "adult congregate living facility" (ACLF). ACLFs are exempt from Florida statutory and Florida Administrative Code requirements of qualifying for a CON through Respondent HRS. An effect of this exemption is to make FLC's 60/60 plan generally cost-competitive in light of this order's Fact Paragraph 2, above. 2/ FLC's ACLF portion is designed to comply with all regulations for a skilled nursing facility. FLNC, is a not-for-profit corporation. FLNC is within the health and educational hierarchy of the Seventh Day Adventist faith. Under a recent lease, FLNC is currently operated by Sunbelt Health Care Systems, which operates 26 hospitals and 4 nursing homes, two of which are in Florida. FLNC proposes a 60- bed addition on the same level as its existing 104-bed nursing home in Forest City, Seminole County, Florida. This is to be accomplished by constructing on the north side of the existing nursing home a two story structure with 60 nursing beds on the second floor and the bottom or first floor to be shelled-in space. Shelled-in space in nursing homes is permitted by HRS policy and FLNC proposes this bottom or first floor will be designed to meet all construction and fire codes for a nursing home as well as for an ACLF. Since FLNC's property falts off severely to the north, this proposal constitutes the best and highest use of the property owned by FLNC from an architectural and design point of view. The roofing concept is energy-efficient and the top floor or proposed 60-nursing bed area will be accessible from the existing facility without ever leaving covered or heated space. There will be no significant emergency evacuation problem resulting from this FLNC design and no undue inconvenience to visitors utilizing the parking lot. FLC's and FLNC's proposals have the potential advantage for future "CON competitions" of conversion space if HRS ever allocates more nursing beds to Seminole County in the future. This aspect is immaterial to the issues presented by the present CON applications. BEVERLY is the largest nursing home corporation in the United States and encourages the inference to be drawn that its centralized management has the plus of "corporate giant" purchasing power enabling it to obtain best prices for commodities and to obtain the choicest of staff applicants. FLC asserts similar superiority in national recruitment and hiring practices although upon a much narrower base. Neither of these applicants' assertions was established as a significant variable by competent substantial evidence. FLNC makes no similar assertions. FLC further asserts that it is in an advantageous position with regard to quality of care because it is able to transfer nurses and much of its other staff from facility to facility among its several nursing homes. This assertion has some merit but its financial advantage is offset by FLC's pattern of staffing at a higher level than necessary, the costs of which must eventually be passed on to the patients. As to affirmatively demonstrating superior quality of care, it has limited weight as applied to the facts of this case. BEVERLY's projected total cost for the 60-bed addition is $1,140,000. On a per bed basis, that computes to $19,000 per bed. BEVERLY's total construction cost (including labor, material, contingency, and inflation) is $804,000 but an unknown amount per square foot. By this finding, BEVERLY's premise that its total projected construction cost computes at $50.77 per square foot and the other parties' contention that BEVERLY's cost is $61.84 per square foot are both specifically rejected. 3/ FLC's projected total cost of its facility is $2,300,000. BEVERLY's premise with regard to a contingency fund for FLC was not affirmatively demonstrated, but FLC somewhat arbitrarily allocates 55 percent of its total (or $1,265,000) to the 60-bed nursing home segment. On a per bed basis, this is $21,083 per bed contrary to FLC's assertion of $19,166 per bed. FLC's projected total construction cost of the total proposed facility (nursing wing and ACLF) is $1,488,800, which FLC breaks down as $818,840 or $44.82 per square foot within the nursing home segment/wing. This testimony is, however, somewhat suspect because FLC's architect, Monday, admitted he had not personally prepared these construction costs and because the figure set aside by FLC for land/site acquisition is pure speculation in light of FLC's failure to commit to a specific geographical location. Real property prices and availability are clearly notstatic, known factors, and fluctuations in price have not been adequately accounted for by this FLC estimate. Further, FLC admits its figures on the basis of 55 per cent, are not as accurate as using dollar figures. FLNC's projected total cost for its 60-bed nursing home segment/wing addition is $1,100,113. On a per bed basis, that computes to $18,335 per bed. FLNC's total construction cost is $854,913 or a projected $51.00 per square foot within the new nursing segment/wing addition. FLNC is the only applicant whose projected cost per square foot falls within the HRS' experience concerning average cost per square foot of nursing homes. BEVERLY's premise that FLNC should have allowed a contingency fund for adjustments in design and construction so as to comply with local ordinances, for sewerage connection, for drainage, for retainage walls and for a variety of other purely speculative construction problems which BEVERLY failed to affirmatively demonstrate would inevitably develop from FLNC's existing site or proposed project is specifically rejected. Also rejected hereby is BEVERLY's suggestion that FLNC's method of calculating fixed and moveable equipment costs together somehow camouflages FLNC's construction costs. While that may be the ultimate result of this method in some situations, both HRS regulations and good accounting practices permit fixed equipment to be broken out as either construction or equipment costs. It is not appropriate for the finder of fact to adjust a reasonably allowable calculation of an applicant in the absence of clear evidence rendering such reasonably allowable calculation inappropriate to specific circumstances. BEVERLY provided only an outline of its existing Longwood building on the site. It gives no elevations. (B-13) FLC submitted a schematic drawing (FLC-12) but did not submit a site plan. FLNC submitted both a site plan and a schematic drawing of its existing facility as well as its proposed facility (FLNC-11). Further, FLNC-2 (Table 16) shows FLNC's ancillary areas as adequate and available to that applicant's proposed 60 nursing bed addition. 4/ As stated, BEVERLY did not submit floor or site plans for its existing 120 nursing bed facility. Without such plans, it is difficult to analyze the existing ancillary areas or the proposed room relationships/configuration which will result from construction of the new 60 bed nursing segment/wing. BEVERLY proposes to add 60 beds to the Longwood facility by "repeating" a patient wing. The existing facility currently consists of right and left patient wings branching off from an ancillary area hub. The new 60-bed segment wing is planned to contain 28 semi-private (2 bed) rooms and four private (1 bed) rooms, but since there is no architect's design schematic drawing, blueline, etc., to establish precisely how the rooms will be laid out, to a degree, the configuration must be conjectured on whether a left or right wing is the wing repeated. Because of the lack of a clear architectural plan, there is no resolution of much conflicting evidence offered by BEVERLY's own expert witnesses including total square footage. Also, for its new proposed segment/wing, BEVERLY only submitted a site plan drawing so that particularly wanting is any valid method by which the undersigned may compare BEVERLY's application and proposed plans for its bathroom facilities to be located in the new 60 nursing bed segment/wing proposed for the BEVERLY Longwood facility with bathroom facilities proposed by the other two CON applicants. BEVERLY's architect, Fletcher, testified there will be two central baths in the new wing to serve the private rooms, but even he could not confirm the number of baths in the new wing. Therefore, much information concerning bathroom facilities is missing from BEVERLY's revised application. FLC's nursing home segment will amount to 18,270 square feet of new construction which computes to 305 gross square feet per bed unless the shared ancillary areas are considered. Because ancillary areas must be considered, the foregoing figures are reduced by 5,500 square feet to 12,770 square feet or a low of 212.8 gross square feet per bed in FLC's proposed nursing home segment/wing. FLNC's proposed 60 nursing bed segment/wing will amount to 16,763 square feet, or 279 gross square feet per bed. FLNC's existing ancillary facilities will also adequately and efficiently service the proposed 60 nursing bed segment/wing. One reason for this is that FLNC's existing ancillary facilities space is excessive by current licensure requirements. For instance, modern regulations require only 9 square feet per bed for the dining area. Due to Hill-Burton grant standards requiring 30 square feet when FLNC's existing facility was built, this and all other existing ancillary areas at FLNC were built considerably larger than if the existing facility were being constructed today solely to comply with HRS licensure requirements. FLNC's proposal takes advantage of this situation to reduce construction costs. FLC's floor plan is a "cookie-cutter" concept already successfully applied by this corporate applicant in several locations. In particular, it differs from BEVERLY's plan (or lack of plan) and FLNC's plan because it contemplates allocating four beds instead of two beds per toilet and provides a communal shower layout for the same four beds. FLNC's application plans contemplate 26 semiprivate (2 bed) rooms and eight private (single bed) rooms. Each room, regardless of designation, will have its own toilet. At FLNC, the maximum number of patients obliged to share a toilet or lavatory will be two. All three applicants meet the state minimum requirements of ratio of toilets to beds, but it is axiomatic that the two persons per toilet ratio as apparently proposed by BEVERLY and as definitely proposed by FLNC is a preferable factor in rating quality of care than is the four persons per toilet proposed by FLC. FLC's plan is less desirable for encouraging privacy, dignity, and independence of nursing home patients than are the other two plans. BEVERLY's proposed wing will be 100 per cent financed by a bank letter of credit with an interest rate of 13 percent over 20 years, however, this letter only references BEVERLY's original 120 new-bed CON application and is silent as to its subsequent (revised) 60-bed application. In short, its financing commitment is dependent upon BEVERLY's being named the successful CON applicant. FLC's financing situation involves a combination of equity and bank financing and is not firm. Its investment group will seek a loan for 90 percent of the amount needed from Barnett Bank. Financing is not solidly committed as to loan amount, loan term, or interest rate and is therefore inadequate. Analyses of "creditworthiness" of an applicant and "financial feasibility" pronouncements by a lending institution do not equate with a firm commitment to loan amount, term and interest. FLNC's financing is guaranteed up to $1,300,000 by a letter of commitment from the Florida Conference Association of Seventh Day Adventists at 12 per cent interest for 20 years. The background of FLNC's relationship with this denominational financial "parent" provides an encouraging prognosis for long range as well as immediate success and stability of FLNC's project if it is the successful CON applicant. The projected Medicaid and Medicare utilization figures of all three of the applicants contain elements of speculation. 5/ Moreover, after a facility has been opened for 5 or 6 years there is a greater incentive to seek private pay patients because the reimbursement is higher than Medicaid. However, the actual commitment figures provided by the parties does provide a valid comparison factor. BEVERLY's commitment to Medicare is 2 percent. BEVERLY has not committed and is not prepared to commit a specific percentage of the stipulated 60 beds to Medicaid participation. Although BEVERLY's application projects 33 percent Medicaid in the second year of operation, its Director of Acquisitions and Development, Dan Bruns, could not definitely commit to continue admission of 83 percent Medicaid beds in the 120 + 60-bed configuration using Longwood. FLC has committed 10 percent of the total stipulated 60 beds to Medicare., FLC has committed 52 percent of the stipulated 60 beds to Medicaid participation, but in light of FLC's withdrawal from Medicaid participation at one of its facilities and subsequent transfer of Medicaid patients, FLC's commitment here may be viewed as revocable as well. Although FLNC does not project strong Medicare involvement, FUN will be Medicaid and Medicare certified and has committed 50 per cent (50 percent) of the beds in the total facility [existing beds (104) + proposed beds if it is the successful CON applicant (60) for a total commitment of 164/2 = 84 beds] to Medicaid participation. FLNC intends only to enlarge Medicare beds in its existing 104 bed facility. FLNC intends to seek Veteran's Administration Certification. Moreover, FLNC's existing facility was principally funded with Hill-Burton grant money and FLNC annually repays its original loan through delivery of free service to indigent persons. Among the three applicants, FLNC's Hill-Burton obligation, enforced by financial considerations, demonstrates both a strong (14 years) "track record" of FLNC's accessibility to the medically indigent and traditionally underserved in the community as well as a strong indicator of continued accessibility to this segment of the community. FLNC has the lowest charge rate of all three applicants while spending more dollars on patient care than the respective averages of the other two applicant's facilities and this ratio is significant in assessing and comparing both quality of care and availability to the medically underserved of the Seminole County "community." BEVERLY's existing Longwood facility has been a BEVERLY operation less than three years (since August, 1982) and has had a "standard" rating up through the date of hearing. FLC plans to construct an entirely new facility and so has no current license to review. All of its existing homes have standard ratings. FLNC's existing facility has been operating 14 years and has had a "standard" or equivalent rating except for a three months "conditional" rating before return to "standard". BEVERLY staffs all of its beds for skilled patients and commingles its skilled and intermediate patients. FLC staffs all its beds for skilled patients. Although HRS encourages "higher" staffing, this policy can increase costs to patients. FLNC's plan is to create a discreet intermediate wing which, although licensed for skilled beds, will be primarily used for intermediate level patients. Except as indicated infra geographic location of BEVERLY's Longwood facility and of FLNC within Seminole County is not a significant variable. FLC cannot be compared geographically because it has not yet selected a site. FLC proposes one administrator for the combined ACLF and nursing home. The administrator's salary will be allocated between the ACLF and the nursing home. FLC does not specify the proportion of salary attributable to the ACLF. FLNC has had the same administrator for fourteen years BEVERLY's Longwood facility and FLNC have established monthly in- service training for staff members. All three applicants project in-service training and volunteer activity programs if granted the CON. FLC has demonstrated its other existing nursing homes have the most varietal and aggressive patient activity programs utilizing outside community volunteers This and its in-service programs are part of an internal quality control system labelled "Quest for quality". FLC also embraces the idea of using numerous visiting contract consultants in a variety of disciplines such as psychology and nutrition. FLC nursing homes also are active members of a number of national quality control professional groups. By contract, the Orange County Board of Education uses FLNC's existing nursing home as a laboratory for nurses' aide training for the Apopka High School. Also, FLNC permits use of its existing facility as a laboratory for the geriatric training program of Florida Hospital's Licensed Practical Nurse School. These programs could be extended to include the proposed segment/wing and are symbiotic relationships significantly benefiting the quality of care of nursing home patients as well as the student interns. FUC participates with HRS in a program for those adjudicated to do community service in Seminole County. BEVERLY's recent creation of an assistant to the president slot to oversee quality of patient life is commendable, but located at the highest corporate level, and in another state, this benefit will be somewhat diluted at the point of delivery in Seminole County, Florida. This individual's first responsibility is to the corporate shareholders not to a specific nursing home's patients and staff. As to all three applicants, administrative complaints by themselves are both irrelevant and immaterial to this de novo proceeding. Particularly, complaints are immaterial unless they result in an adjudication. Dismissals and settlements without adjudication or admission of guilt are of no probative value. Moreover, in light of testimony of the HRS licensure representative that there is no nursing home in Florida which has not been cited at least once, deficiency ratings brief in duration in proportion to many years of operation are of little significance or probative value. 6/ BEVERLY and FLC contended that FLNC's affiliation with the Christian religious denomination of Seventh Day Adventists somehow diminishes FLNC's application. This position was not established by direct credible evidence on any of the strategic tangents it took at the formal hearing. Admission data provided for the existing FLNC facility indicates that whether measured by policy and statistics or by admissions, FLNC is not restricted by religious faith or affiliation. By this finding of fact, a convenient "draw" of FLNC from a nearby Seventh Day Adventist retirement center has not been ignored nor has evidence that many of the admissions drawn from this retirement community appear to be "repeaters" at the existing FLNC nursing home been ignored, but this corollary may be attributed to the natural proclivity of the retired and elderly to account for a large percentage of the nursing home beds consumed in any locality, and upon this analysis the 15 per cent to 20 per cent (15-20 percent) draw of FLNC from this source could be as much geographically as religiously induced. Failure to repeat attempts at placement of patients at FLNC color the credibility of the testimony of most witnesses who infer a religious barrier to placement of patients at FLNC. Teresa S. Shaw is Director of Social Services, Florida Hospital, Altamonte. In light of that acute care hospital being Part of the Seventh Day Adventist faith's health and educational hierarchy, somewhat greater weight might be placed on her analysis if she felt religion played a part in FLNC's acceptance or rejection of patients. However, she testified she did not know of FLNC's affiliation. This, together with the actual admissions data provided by FLNC, supports this finding of no religious barrier. Unavailability of beds at FLNC has no probative value for charges of religious discrimination either. 7/ Suggestions that the Seventh Day Adventist dietary restrictions against consumption of animal-protein and caffeine and against tobacco-smoking in its nursing homes somehow reduces the quality of nursing home care at FLNC are rejected as unproved. First, it was never established that smoking benefits quality of care, but in any case, FLNC, like all certified nursing homes, complies with the requirement of providing a smoking area. Second, consumption of caffeine and animal-protein can obviously create numerous health and sanitary problems for those incontinent patients who often comprise a large percentage of any nursing home population. Third, it was never established that caffeine or animal-protein benefits the quality of nursing home care. Moreover testimony of FLNC's administrator clearly indicates that at FLNC patients' diets are established by the attending physician and that patients' families may bring in items not normally served by FLNC if this supplementation is permitted on the diet prescribed by the attending physician. It is the physician, not the nursing home, that has ultimate dietary authority.
Recommendation After considering all submissions of counsel, and upon the foregoing findings of fact and conclusions of law determined after reviewing those submissions, it is, RECOMMENDED: That HRS issue a certificate of need for a 60-bed addition to FLORIDA LIVING NURSING CENTER, INC's Seminole County facility, with total project cost not to exceed $1,100,113.00 and area not to exceed 16,763 square feet and deny the other applications. DONE and ENTERED this 8th day of May, 1985 in Tallahassee, Florida. ELLA JANE P. DAVIS 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 8th day of May, 1985.
Findings Of Fact At all times material hereto, Plantation was a licensed nursing home facility and participated in the Medicaid program. A nursing home that receives a superior rating is entitled to incentives based on the Florida Medicaid Reimbursement Plan. Plantation has met all the requirements for a superior rating that are enumerated in Rule lOD-29.128, Florida _Administrative Code. The only reason Plantation was not granted a superior rating was based on the Medicaid Inspection of Care, Team report. (stipulated facts) From August 21 through August 31, 1984, Plantation underwent a routine inspection by the HRS Medicaid Inspection of Care (IOC) Team. The purpose of the inspection was to review the care and treatment of Medicaid recipient patients in accordance with state and federal standards in order for the facility to receive Medicaid payment for those individuals. During the course of the inspection, several deficiencies were found by IOC Team. The deficiencies were summarized in the Medicaid Inspection of Care Team report, entitled Facility Evaluation Summary, prepared by Ms. Tranger. The report listed the deficiencies as follows: Fifteen skilled and two intermediate out of 46 medical records reviewed failed to have medication revalidated by the attending physician within the proper time frame Four of forty-six records reviewed failed to have available documentation that laboratory tests were completed in accordance with doctors' orders and medication regimen, Fourteen skilled and thirteen intermediate out of 46 medical records reviewed failed to have the Plan of Care reviewed within the proper time frame: Ten medical records were not certified within the proper time frames and fifteen medical records were not current for recertification. As to the first deficiency noted, the problem was not that the physician failed to revalidate medication, but that Ms. Tranger did not think that the physician appropriately dated the revalidation. In almost all of the cases, the problem was that Ms. Tranger did not think that the physician had personally entered the date because the date was written with a different color of ink than the doctor's signature or the handwriting appeared to be different. Ms. Tranger did not know whether the dates were written by someone in the physician's office or someone at the nursing home. It is very difficult for a nursing home to get a physician to sign and date orders properly. Plantation had a procedure for securing the doctor's signature and having records dated. When a record was received that was not properly signed and dated, Plantation returned the record to the doctor with a letter or note telling the doctor what needed to be done. When returned by the doctor to Plantation, the record would bear the later date, which caused some records to be out of' compliance with the required time frames. The return to the doctor of records that were not properly dated may also explain why some of he dates were written in a different color ink than the doctor's signature. In those few cases where the dates on the report were not within the proper time frame, the dates were only a few days off. In one case a 34 day period, from July 7, 1984 to August 10, 1984, elapsed before the medication was revalidated. In another case, there were 33 days between the dates. In both cases the medication should have been revalidated every 30 days. The problem with the revalidation dates was strictly a paperwork problem and not one that affected the care of the patients. As stated before, in the majority of the cases the medication was revalidated within the proper time frame. The problem was simply that it appeared that someone other than the doctor had written down the date. The second deficiency was a finding by the surveyors that 4 of the 46 medical records reviewed failed to have available documentation regarding laboratory tests being completed in accordance with doctors' orders. However, Jean Bosang, Administrator of Plantation, reviewed all of the records cited by the IOC Team as the basis for these deficiencies and could only find two instances in which laboratory tests were not performed. HRS did not present any evidence to establish the two other alleged instances. Dr. Lopez reviewed the medical records of the two residents in question and determined that there was no possibility of harm to the patient as a result of failure to perform these tests. One of the two residents is Dr. Lopez' patient, and he normally sees her every day. He stated that the test, an electrolyte examination, was a routine test, that the patient had had no previous problems, and if any problem had developed, she would have had symptoms which would have been observable to the nurses. The tests performed before and after the test that was missed were normal, and the failure to perform the one test had absolutely no effect on the patient. Dr. Lopez was familiar with the other resident upon whom a test was not performed and had reviewed her records. This resident was to have a fasting blood sugar test performed every third month. Although this test was not performed in April of 1984, it was performed timely in every other instance. All tests were normal, and the failure to perform this test did not have any effect on the resident. Had she been suffering from blood sugar problems, there would have been physical signs observable to the nurses. The fourth deficiency listed in the report was a paperwork problem similar to the first deficiency. Patients in a nursing home are classified by level of care and must be recertified from time to time. Certification does not affect the care of the resident. The recertification must be signed and dated by the physician. Again, there was a problem on the recertification because some of the dates were in a different color ink than the physician's signature. Again, the problem was primarily caused by difficulty in getting proper physician documentation. The deficiency did not affect the care of the residents. Mr. Maryanski, who made the decision not to give Plantation a superior rating, testified that of the four deficiencies cited in the IOC report, he believed that only the third deficiency listed, in and of itself, would have precluded a superior rating. An analysis of that deficiency, however, shows that it also was mainly a paperwork deficiency and had no impact on patient care. The third deficiency listed involved a purported failure to have the plans of care reviewed within the proper time frames. Patient care plans are to be reviewed every 60 days for "skilled" patients, those that need the most supervision, and every 90 days for "intermediate" patients, those that need less supervision. A patient's plan of care is a written plan establishing the manner in which each patient will be treated and setting forth certain goals to be reached. A discharge plan is also established, which is basically what the nursing home personnel believe will be the best outcome for the patient if and when he or she leaves the hospital. The patient plan of care is established at a patient care plan meeting. Patient care plan meetings are held by the various disciplines in the nursing home, such as nursing, dietary, social work and activities, to review resident records and discuss any problems with specific residents. The manner in which the problem is to be corrected is determined and then written down on the patient's plan of care record. The evidence revealed that the basis of the deficiency was not a failure to timely establish or review a plan of care, but a failure to timely write down and properly date the plan of care. During the time in question, care plan meetings were held every Wednesday, and all of the disciplines attended the meetings. However, all disciplines did not write their comments on the patients' records at the meeting; some wrote them later. Usually, when they were added later, the comments were dated on the day they were written, rather than on the day the meetings were held. The evidence presented did not show any case in which all disciplines were late in making notes, but revealed only that specific disciplines were tardy. Since all the disciplines attended one meeting, it is apparent that when the date for any discipline was timely, the later dates of other disciplines merely reflected a documentation or paperwork problem. In late 1984 or early 1985, Plantation changed its system to avoid the problem in the future. There appeared to be problems with some of the discharge plans being untimely. The discharge plan is not utilized in the day-to-day care of the resident. Discharge plans at Plantation were kept in two places, and Ms. Tranger recognized that she may have overlooked some plans if they had been written only on the separate discharge sheet. The four deficiencies cited all involved time frames. There are innumerable time frames that must be met by a nursing home. The great majority of the deficiencies involved a failure to properly document. None of the deficiencies affected the care of the patients. Indeed, Ms. Tranger indicated that the patients were all receiving proper nursing care. The decision to give Plantation a standard rating was made by Mr. Maryanski based solely on the IOC report. He relied upon section 400.23,(3) Florida Statutes, which states: "The department shall base its evaluation on the most recent annual inspection report, taking into consideration findings from other official reports, surveys, interviews, investigations and inspections." There are no regulations or written or oral policies implementing this provision. Mr. Maryanski looked solely at the face of the IOC report and did not do any independent investigation. He never visited the nursing home, and he never talked to the on-site surveyors to determine whether the deficiencies cited by the IOC Team were significant. He never saw the underlying documentation which formed the basis of the report. Mr. Maryanski has no background either in nursing or medicine and had no knowledge of purpose the tests that were allegedly not performed. On October 4, 1984, the HRS Office of Licensure and Certification (OLC) conducted the annual survey of the facility. Mr. Maryanski did not determine whether the deficiencies found by the IOC Team had been corrected at the time of the annual survey. An IOC Team surveyor returned on November 21, 1984, and found that all of the deficiencies cited during the IOC inspection had been corrected. A resurvey of the facility was conducted on December 27, 1984, by OLC. All deficiencies noted in OLC's original inspection had been corrected. All nursing home facilities in Florida are rated by HRS as conditional, standard, or superior. In addition to its financial significance, the rating of a facility is important because it affects the facility's reputation in the community and in the industry. The rating for a facility goes into effect on· the day of the follow-up visit of OLC if all deficiencies have been corrected. Therefore, Plantation would have received a superior rating, effective December 27, 1984, had it not been for the IOC report Mr. Maryanski never tried to determine whether the deficiencies in the IOC report had been corrected subsequent to the report being issued. Under rule lOD-29.128, Florida Administrative Code, there are extensive regulatory and statutory requirements which must be met for a facility to be granted a superior rating. Plantation met all of the enumerated requirements, yet it received only a standard rating. Mr. Maryanski based his determination on the IOC report despite the fact that it was outdated and the deficiencies in that report were corrected by November, 1984, prior to the December, 1984, resurvey by the OLC. There was nothing in the annual survey report of the OLC to preclude a superior rating. This is the first time a facility has been denied a superior rating based upon a report other than the annual report.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Plantation Nursing Home be given a superior rating. DONE AND ENTERED this 3rd day of March, 1986, in Tallahassee, Leon County, Florida. DIANE A. GRUBBS, 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 3rd day of March, 1986. COPIES FURNISHED: Jonathan S. Grout, Esquire Post Office Box 1980 Orlando, Florida 32802 Harold Braynon; Esquire District X Legal Counsel, 201 West Broward Boulevard Ft. Lauderdale, Florida 33301 William Page, Jr. Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings On Proposed Findings of Fact Submitted by the Petitioner Accepted in Finding of Fact 1. 2-3. Accepted in Finding of Fact 2. 4. Accepted as set forth in Finding of Fact 21. 5-6. Accepted in Findings of Fact 22-23. 7-9. Accepted in Finding of Fact 24. 10. Rejected as immaterial. 11-12. Accepted in Findings of Fact 24-25. Accepted in Finding of Fact 19. Accepted in Finding of Fact 26. 15-16. Accepted generally in Findings of Fact 20 and 24. 17-19. Accepted generally as set forth in Finding of Fact 26. In Background section. Cumulative. Accepted in Finding of Fact 18. Accepted in Finding of Fact 12. 25-31. Accepted in substance in Findings of Fact 4-7. 32-43. Accepted in substance in Findings of Fact 8-10. 44. Rejected as not supported by the evidence. 45-46. Accepted in Finding of Fact 11. 47. Accepted in Finding of Fact 3. 48-49. Accepted in Finding of Fact 3. 50-57. Accepted in general in Findings of Fact 13-16. 58. Accepted in Finding of Fact 17. Rulings On Proposed Findings of Fact Submitted by the Respondent Accepted in Finding of Fact 1. Accepted generally in Findings of Fact 1, 20, 24. Accepted in Finding of Fact 1. Accepted generally in Finding of Fact 19 and Background. 5-8. Accepted in Finding of Fact 3. Accepted in substance in Finding of Fact 2. Accepted in Finding of Fact 2. Accepted in Finding of Fact 3. Accepted in Finding of Fact 13 except as to time frame for intermediate patients which should be 90 days. Accepted that the documentation showed a gap, but proposed finding rejected in that the evidence did not show that, in fact, the patient was not reviewed with the proper time frame. Accepted, without naming the patients, and explained in Finding of Fact 6.
The Issue The issues under consideration concern the request by Petitioner, Brookwood-Jackson County Convalescent Center (Brookwood) to be granted a certificate of need for dual certification of skilled and immediate care nursing home beds associated with the second review cycle in 1987. See Section 381.494, Florida Statutes (1985) and Rule 10-5.011(1)(k) , Florida Administrative Code.
Findings Of Fact On October 5, 1987 Brookwood filed an application with HRS seeking to expand its facility in Graceville, Jackson County, Florida, one with 120 licensed beds and 30 beds approved effective June 12, 1986, to one with 30 additional beds for a total of 180 beds. Beds being sought in this instance were upon dual certification as skilled and intermediate nursing home beds. The nursing home is located in Subdistrict A to District II which is constituted of Gadsden, Holmes, Jackson and Washington counties. This applicant is associated with Brookwood, Investments, a Georgia corporation qualified to do business and registered in the State of Florida and other states in the southeastern United States. That corporation has as its principal function the development and operation of nursing homes and other forms of residential placement of the elderly. The actual ownership of the applicant nursing home is through a general partnership. Kenneth Gummels is one of two partners who own the facility. The Brookwood group has a number of nursing home facilities which it operates in the southeastern United States. Florida facilities that it operates are found in DeFuniak Springs, Walton County, Florida; Panama City, Bay County, Florida; Chipley, Washington County, Florida; Homestead, Dade County, Florida; Hialeah Gardens, Dade County, Florida, as well as the present applicant's facility. The applicant as to the beds which it now operates, serves Medicare, Medicaid, Veteran Administration, private pay and other third party pay patients. The number of Medicaid patients in the 120 licensed beds is well in excess of 90 percent. The ratio of Medicaid patients with the advent of the 30 approved beds was diminished. As to those beds, 75 percent were attributed to Medicaid. If the 30 beds now sought were approved, the projection is for 87 percent private pay and 13 percent Medicaid for those new beds. The nursing home administration feels that the new beds must be vied for under those ratios in order for it to continue to be able to serve a high number of Medicaid patients, an observation which has not been refuted by the Respondent. Nonetheless, if these beds are approved the percentage of Medicaid patients would be reduced to the neighborhood of 80 percent within the facility which compares to the approximately 81 percent experience of Medicaid beds within the district at present and the approximately 88 percent of Medicaid beds within the subdistrict at present. The cost of the addition of the 30 beds in question would be $495,000. Financial feasibility of this project has been stipulated to by the parties assuming that need is found for the addition of those beds. The basic area within the Florida panhandle wherein the applicant facility may be found, together with other facilities in the Florida panhandle is depicted in a map found at page 101 of Petitioner's Exhibit 1 admitted into evidence. This map also shows that a second licensed nursing home facility is located in Jackson County in Marianna, Florida, known as Marianna Convalescent Center. The applicant facility is directly below the Alabama-Florida border, immediately south of Dothan, Alabama, a metropolitan community. The significance of the relative location of the applicant's facility to Dothan, Alabama concerns the fact that since 1984 roughly 50 percent of its nursing home patients have been from out-of-state, the majority of those out-of-state patients coming from Alabama. Alabama is a state which has had a moratorium on the approval of new nursing home beds for eight years. The proximity of one of that state's relatively high population areas, Dothan, Alabama, has caused its patients to seek nursing home care in other places such as the subject facility. The applicant has encouraged that arrangement by its business practices. Among the services provided by the nursing home facility are physical therapy, physical examination and treatment, dietary services, laundry, medical records, recreational activity programs and, by the use of third party consultants, occupational and social therapy and barber and beauty services, as well as sub-acute care. The facility is adjacent to the Campbellton-Graceville Hospital in Graceville, Florida. The nursing home was developed sometime in 1978 or 1979 with an original complement of 90 beds expanding to 120 beds around 1983 or 1984. The Chamber of Commerce of Marianna, Florida had held the certificate of need upon the expectation that grant funds might be available to conclude the project. When that did not materialize, the County Commissioners of Jackson County, Florida sought the assistance of Brookwood Investments and that organization took over the development of the 90 beds. The original certificate holder voluntarily terminated and the Brookwood partnership then took over after receiving a certificate of need for Brookwood-Jackson County Convalescent Center. The nursing home in Marianna, Florida which is located about 16 miles from Graceville has 180 beds having undergone a 60 bed expansion several years ago. Concerning the Brookwood organization's nursing home beds in Florida, the Walton County Convalescent Center was a 100 bed facility that expanded to 120 beds at a later date and has received permission to expand by another 32 beds approved in the same review cycle associated with the present applicant. Gulf Coast Convalescent Center in Panama City, is a 120 bed facility of Brookwood. Brookwood also has the Washington County Convalescent Center in Washington County, in particular in Chipley, Florida which has 180 beds. That facility was expanded by 60 beds as licensed in October, 1987 and those additional beds have been occupied by patients. Brookwood has a 120 bed facility in Homestead and a 180 bed facility in Hialeah Gardens. With the exception of its two South Florida facilities in Homestead and Hialeah Gardens, recent acquisitions under joint ownership, the Brookwood group has earned a superior performance rating in its Florida facilities. No attempt has been made by this applicant to utilize the 30 beds which were approved, effective June 12, 1986. Its management prefers to await the outcome in this dispute before determining its next action concerning the 30 approved beds. The applicant asserted that the 30 beds that had been approved would be quickly occupied based upon experience in nursing home facilities within Subdistrict A to District II following the advent of nursing home bed approval. That surmise is much less valuable than the real life experience and does not lend effective support for the grant of the certificate of need in this instance. The waiting list for the 120 licensed beds in the facility has been reduced to five names. This was done in recognition of the fact that there is very limited patient turnover within the facility. Therefore, to maintain a significant number of people on the waiting list would tend to frustrate the sponsors for those patients and social workers who assist in placement if too many names were carried on the waiting list. At the point in time when the hearing was conducted, the facility was not in a position to accept any patients into its 120 licensed facility. This condition of virtually 100 percent occupancy has been present since about 1984 or 1985. The applicant has transfer agreements with Campbellton-Graceville Hospital and with two hospitals in Dothan, Alabama, they are Flower's Hospital and Southeast Alabama Medical Center. The applicant also has a transfer agreement with the Marianna Community Hospital in Marianna, Florida. The referral arrangements with the Alabama hospitals were made by the applicant in recognition of the proximity of those hospitals to the nursing home facility and the belief in the need to conduct its business, which is the provision of nursing home care, without regard for the patient origin. Early on in its history with the nursing home, Brookwood promised and attempted in some fashion to primarily serve the needs of Jackson County, Florida residents, but the explanation of its more recent activities in this regard does not portray any meaningful distinction between service to the Jackson County residents and to those from other places, especially Alabama. This reflects the concern expressed by Kenneth Gummels, owner and principal with the applicant nursing home, who believes that under federal law the nursing home may not discriminate between citizens in Florida and Alabama when considering placement in the nursing home. In this connection, during 1987 the experience within the applicant nursing home was to the effect that for every patient admitted from Florida five Florida patients were turned away. By contrast, to deal with the idea of priority of placing patients some effort was made by Gummels to explain how priority is still given to Jackson County residents in the placement for nursing home care. Again, in the end analysis, there does not seem to be any meaningful difference in approach and this is evidenced by the fact that the level of out-of-state patients in the facility has remained relatively constant after 1984. If there was some meaningful differentiation in the placement of Florida patients and those from out-of-state, one would expect to see a change in the number of patients from out-of-state reflecting a downward trend. As described, historically the experience which Brookwood has had with the facility occupancy rates is one of high utilization except for brief periods of time when additional beds were added at the facility or in the Marianna Nursing Home. At time of the application the primary service area for the applicant was Jackson County with a secondary service area basically described as a 25 mile radius outside of Graceville extending into Alabama and portions of Washington and Holmes Counties. As stated, at present the occupancy rate is as high as it has ever been, essentially 100 percent, with that percentage only decreasing on those occasions where beds come empty based upon transfers between nursing homes or between the nursing home and a hospital or related to the death of a resident. Those vacancies are filled through the waiting list described or through recommendations of physicians who have a referral association with the facility. The patients who are in the facility at the place of consideration of this application were 50 percent from Florida and 50 percent from out-of-state, of which 56 of the 60 out-of-state patients were formerly from Alabama, with one patient being from Ohio and three others from Georgia. More specifically, related to the history of out-of-state patients coming to reside in the nursing home, in 1984 basically 25 percent patients were from Alabama, moving from there into 1985 at 47 percent of the patient population from Alabama, in 1986 50 percent from Alabama, in 1987 48 percent from Alabama and in 1988 the point of consideration of the case at hearing the figure was 47 percent of Alabama patients, of the 50 percent patients described in the preceding paragraph. Of the patients who are in the facility from Florida, the majority of those are believed to be from Jackson County. Those patients who come to Florida from Alabama, by history of placement, seem to be put in the applicant's facility in Graceville as a first choice because it is closest to the Dothan, Alabama area. The next preference appears to be Chipley and the Brookwood nursing home facility in Chipley, and thence to Bonifay and then to other places in the Florida panhandle, in particular Panama City. In the Brookwood-Washington County facility at Chipley, Florida 35 percent of the patients are from Alabama which tends to correspond to the observation that the Alabama placements as they come into Florida are highest in Graceville and decrease in other places. This is further borne out by the experience in the Brookwood-Walton County facility at DeFuniak Springs, Florida which has an Alabama patient percentage of approximately 10 to 12 percent. When the nursing home facilities in Chipley and Bonifay received 60 additional beds each in October, 1987, they began to experience rapid occupancy in those beds as depicted in the Petitioner's Exhibit 1 at pages 228 through 230. The other facility in Jackson County, namely Jackson County Convalescent Center, within the last six months has shown an occupancy rate in excess of 98 percent, thereby being unavailable to attend the needs of additional Jackson County patients who need placement and other patients within the subdistrict. This same basic circumstance has existed in other facilities within Subdistrict A to District II. When the applicant is unable to place patients in its facility it then attempts placement in Chipley, Bonifay, DeFuniak Springs, and Panama City, Florida, and from there to other places as nearby as possible. The proximity of the patient to family members and friends is important for therapeutic reasons in that the more remote the patient placement from family and friends, the more difficult it is for the family and friends to provide support which is a vital part of the therapy. Consequently, this is a significant issue. Notwithstanding problems in achieving a more desirable placement for some patients who must find space in outlying locales, there was no showing of the inability to place a patient who needed nursing home care. Most of the Alabama referrals are Medicaid referrals. Those patient referrals are treated like any other resident within the nursing home related to that payment class for services. Effectively, they are treated in the same way as patients who have come from locations within Florida to reside in the nursing home. Notwithstanding the management choice to delay its use of the 30 approved beds dating from June 12, 1986, which were challenged and which challenge was resolved in the fall, 1987, those beds may not be ignored in terms of their significance. They must be seen as available for patient placement. The fact that the experience in this service area has been such that beds fill up rapidly following construction does not change this reality. This circumstance becomes more significant when realizing that use of the needs formula for the project at issue reveals a surplus of 19 beds in Subdistrict A to District II for the planning horizon associated with July, 1990. See Rule 10-5.011(1)(k), Florida Administrative Code. The 19 bed surplus takes into account the 30 approved beds just described. Having recognized the inability to demonstrate need by resort to the formula which is found within the rule's provision referenced in the previous paragraph, the applicant sought to demonstrate its entitlement to a certificate through reference to what it calls "special circumstances." Those circumstances are variously described as: Patient wishing to be located in Jackson County. Lack of accessibility to currently approved CON beds. High rate of poverty, Medicaid utilization and occupancy. Jackson County Convalescent Center utilization by out-of- state patients. The applicant in asking for special relief relies upon the recommendation of the Big Bend Health Council, District II in its health plan and the Statewide Health Council remarks, whose suggestions would modify the basis for calculation of need found in the HRS rule with more emphasis being placed on the adjustment for poverty. Those suggestions for health planning are not controlling. The HRS rule takes precedence. Consequently, those suggestions not being available to substitute for the HRS rule, Petitioner is left to demonstrate the "special circumstances" or "exceptional circumstances" in the context of the HRS rule and Section 381.494(6), Florida Statutes (1985). Compliance per se with local and statewide planning ideas is required in the remaining instances where those precepts do not conflict with the HRS rule and statute concerning the need calculations by formula. Turning to the claim for an exception to the rule on need, the first argument is associated with the patient wishing to be located in Jackson County. This would be preferable but is not mandated. On the topic of this second reason for exceptions to the need formula, the matter is not so much a lack of accessibility to currently approved CON beds as it is an argument which is to the effect that there are no beds available be they licensed or approved. This theory is not convincing for reasons to be discussed, infra. Next, there is an extremely high rate of poverty in District II. It has the highest rate of poverty in the state. Moreover Subdistrict A to District II has an even greater degree of poverty and this equates to high Medicaid use and contributes to high occupancy. This coincides with the observation by the Big Bend Health Council when it takes issue with the HRS methodology rule concerning recognition of the significance of poverty within the HRS rule and the belief by the local health council that given the high poverty rates in District II some adjustments should be made to the need formula in the HRS rule. Under its theory, 161 additional beds would be needed at the planning horizon for July 1990 in Subdistrict A. Concerning the attempt by the applicant to make this rationalization its own, the record does not reflect reason to defer to the Big Bend Health Council theory as an exception to the normal poverty adjustment set forth in the HRS rule. When the applicant describes the effects of the out-of-state patients, in particularly those from Alabama in what some have described as in-migration, it argues that Rule 10-5.011(1)(k), Florida Administrative Code makes no allowance for those influences. The applicant chooses to describe these beds, the beds used by out-of-state residents, as unavailable or Inaccessible. This concept of inaccessibility is one which departs from the definition of inaccessibility set forth at Rule 10-5.011(1)(k)2.j., Florida Administrative Code. The specific exception to the requirement for compliance with the numeric need methodology in demonstration of a net need is set forth in that reference, and the proof presented did not show entitlement to the benefits of that exception. That leaves the applicant arguing in favor of recognition of its entitlement to a certificate of need premised upon a theory not specifically announced in that reference. This is the in-migration idea. It ties in the basic idea of poverty but does not depend on rigid adherence to the Big Bend Health Council idea of a substitute element in the HRS needs formula related to poverty. It also promotes the significance of problems which a number of physicians, who testified by deposition in this case, observed when attempting to place patients in the subject nursing home and other nursing homes in the surrounding area. They found high occupancy rates in the present facility and others within Subdistrict A to District II. These problems with placement as described by the physicians can have short term adverse effects on the patient and the family members, but they are not sufficient reason to grant the certification. In considering the formula for deriving need as promulgated by HRS, the proof does not seem to suggest that the nursing home residents themselves who came from out-of-state are excluded from the population census for Florida. On the other hand, unlike the situation in Florida in which the population at large is considered in trying to anticipate future nursing home bed needs, it make no assumptions concerning the Alabama population at large. Ultimately, it becomes a question of whether this unknown factor, given the history of migration of patients from Alabama into Florida and in particular into the subject nursing home, together with other relevant considerations, may properly form the basis for granting the certificate of need to the applicant. It is concluded that there is a fundamental difference in the situation found within this application compared to other planning areas within Florida which do not have to contend with the level of poverty, the proximity to Alabama and the advent of Alabama placements in this nursing home, the high occupancy rates in the subdistrict and the resulting difficulty in placement of patients near their homes. Posed against this troublesome circumstance is the fact that the applicant has failed to use its 30 approved beds or to make a decision for such use, that it had invited and continues to invite the placement of Alabama residents through the referral arrangements with the two Dothan, Alabama hospitals, realizing that such an arrangement tends to exclude opportunities for Florida residents to some extent, and the recognition that patients are being placed; that is patients are not going without nursing home care. The two Alabama hospitals with whom the applicant has referral agreements provide a substantial number of the patients who are admitted. This recount acknowledges what the ownership considers to be their obligation in law and morally to serve the interest of all patients without regard for their home of origin; however, the thrust of the certificate of need licensing process in Florida is to develop the apparatus necessary to service the needs of Florida residents, not Alabama residents. This does not include the necessity of trying to redress the circumstance which appears to exist in Alabama in which the government in that state is unable or unwilling to meet the needs of its citizens. On balance, the applicant has not demonstrated a sufficient reason to depart from the normal requirements of statute and rule, which departure would have as much benefit for Alabama residents as it would for Florida Residents. Contrary to the applicant's assertions it could legitimately de-emphasize its association with Alabama. It has chosen not to and should not be indulged In this choice in an enterprise which is not sufficiently related to the needs of Florida residents to condone the licensure of the beds sought, even when other factors described are taken into account. The applicant has also alluded to a certificate of need request made by Walton County Convalescent Center, a Brookwood facility in District I which sought a certificate of need in the same batch which pertains to the present applicant. The application and the review and comment by HRS may be found within Composite Exhibit 2 by the Petitioner admitted as evidence. Petitioner asserts that the Walton County experience in which 32 beds were granted is so similar to the present case that it would be inappropriate for the agency to act inconsistently in denying the present applicant after having granted a certificate of need to the Walton County applicant. Without making a line-by- line comparison, it suffices to say that in many respects these projects are similar. In other respects they are not. On the whole, it cannot be found that the agency is acting unfairly in denying the present applicant while granting a certificate to the applicant in the Walton County case. The differences are substantial enough to allow the agency to come to the conclusion that the present applicant should be denied and the applicant in Walton County should have its certificate granted. Likewise, no procedural impropriety on the part of HRS in its review function has been shown.
