The Issue Whether the Agency for Health Care Administration found deficiences at Petitioner's nursing home sufficient to support issuance of a conditional license.
Findings Of Fact Petitioner, Tampa Health Care Center, is a nursing home in Tampa, Florida, licensed by and subject to regulation by the AHCA pursuant to Chapter 400, Florida Statutes. The AHCA conducted a relicensure survey of the Tampa Health Care Center on March 25-28, 1996. During the survey, the agency reviewed twenty-four randomly selected care plans maintained at the Tampa Health Care Center. A care plan is an individualized document which describes how the facility will provide for the needs of a resident. The care plan is the result of a cooperative effort of various health care professionals who may work with the resident. Those providing input for the care plan include the following: nurse, dietician, physical therapist, and mental health and social service professionals. A care plan, along with doctor's orders and treatment sheets, serve as a workable tool in delivering services to a resident. As a result of the March 1996 survey, the AHCA determined that nine of the twenty-four care plans reviewed were deficient. Despite the problems cited in the March 1996 survey, the AHCA made no finding that the well-being of any of the residents was in jeoparady because of the cited deficiencies. Consistent with its practice and policy, the AHCA gave Tampa Health Care Center until April 28, 1996, to correct the care plan deficiencies found in March 1996. The AHCA returned to the facility on May 29, 1996, and conducted a follow-up survey to determine whether previously cited care plan deficiencies had been corrected. During the follow-up survey, the AHCA reviewed fourteen randomly selected care plans. Of the fourteen care plans reviewed, one was found to be deficient. The care plans reviewed during the follow-up survey on May 29, 1996, were not the same care plans reviewed during the March 1996 survey. Based on the May 29, 1996 follow-up survey, the AHCA concluded that the care plan of Resident 5-A had not been reviewed, revised, and updated to address current problems. Furthermore, the AHCA had determined that the care plan included an "unrealistic goal." As a result of its perceived deficiencies with the care plan, the AHCA concluded that Resident 5-A, the resident for whom the care was prepared, did not receive the necessary care and services to attain or maintain her highest practical level of physical functioning. The AHCA initially designated the care plan deficiency as a Class II deficiency. However, pursuant to an informal dispute process, the AHCA changed its classification of the care plan deficiency to a Class III deficiency. The care plan deficiency found by the AHCA involved four areas of concerns relative to Resident 5-A: (1) pressure ulcers, (2) weight, (3) mobility, and (4) perceived eating and swallowing difficulties. Resident 5-A developed a pressure ulcer on or about April 15, 1996. By May 2, 1996, the resident had developed three more pressure ulcers. An evaluation of the pressure ulcers, conducted on May 2, 1996, determined that the ulcers were "unavoidable" due to the medical condition and medical history of the resident. Treatment of the pressure ulcers was addressed and carried out pursuant to doctor's orders, nurse's notes, treatment sheets, and the complete pressure ulcer records of Resident 5-A. Moreover, the care plan of the resident, revised on May 16, 1996, adequately addressed treatment of the resident's pressure ulcers. The AHCA requires that care plans be revised every three months, unless there is a significant change in the resident's condition in the interim. The care plan for Resident 5-A was revised within the three month interval as required by the AHCA. In light of this resident's medical condition and medical history, the occurrence of the pressure ulcers did not represent a significant change requiring a revision of the care plan prior to the scheduled revision date. The AHCA also found that there was a deficiency in the rendering of treatment and care for the resident's pressure ulcers by failing to use a pressure relieving mattress. The undisputed evidence is that the Tampa Health Care Center provided the resident with this device. However, the special mattress was absent during part of the follow-up survey because the resident's bed was being repaired. Apparently the AHCA surveyor was unaware, and facility staff did not notify her, that the bed with the pressure relieving mattress had been replaced the afternoon of May 29, 1996, and prior to the conclusion of the survey. A second concern of the AHCA involved the surveyor's assumption that because the resident was receiving her food in the form of thickened liquids, the resident had difficulty swallowing. Based on this assumption, the AHCA determined that the care plan approach, to have plain water at the resident's bedside, because of her risk for urinary tract infections, was inappropriate and put the resident at risk of choking. Notwithstanding the AHCA's assumption to the contrary, it was undisputed that a speech evaluation of the resident performed on April 23, 1996, concluded that the resident had no difficulty in swallowing. Moreover, the undisputed evidence was that the resident received thickened liquids at her own request. A third area of concern regarding the care plan involved Resident 5-A's mobility and the goals and approach related thereto. From observing Resident 5-A sleeping, the AHCA surveyor concluded that the resident had contractures of the upper extremities which would prevent the resident from moving herself any distance in a wheelchair. Thus, the AHCA determined the care plan had an unrealistic goal in that it stated that the resident would be able to move herself in wheelchair to dayroom for socialization by next review date. The AHCA misread and improperly characterized the statement. First, the statement was not a goal, but an approach to be utilized to assist the Resident 5-A in achieving established goals. The two goals were that: (1) the resident would be able to tolerate being out of bed and in the wheel chair by the next review and (2) the resident would be able to move herself a short distance in the wheelchair. The approach was that staff, not the resident, would wheel the resident to the day room for socialization. Second, contrary to the AHCA conclusion regarding the resident's mobility, unrebutted evidence established that the resident did not have contractures of the hands. Thus, the established goal was realistic in that it was possible for Resident 5-A to manipulate the wheelchair a short distance, although not the distance required to get to the dayroom. Finally, the AHCA noted as a deficiency that the care plan for Resident 5-A failed to include the dietitian's recommendation of May 10, 1996, that the resident be weighed weekly. Tampa Health Care Center's policy in this regard is to weigh residents once a month unless more frequent weights are ordered by the resident's doctor. Weekly weights had not been ordered by Resident 5-A's physician. Also, there appeared to be no need to perform weekly weights since the resident's weight was stable according to federal guidelines recognized by the AHCA and applicable to nursing homes. Furthermore, the AHCA was concerned that the goal on the care plan, that the resident will have no significant weight loss by next review, was not measurable. This concern is unfounded because federal guidelines, applicable to nursing homes, including Tampa Health Care Center, define what constitutes a significant weight loss by a specified percentage. By applying this percentage to Resident 5-A's consecutive monthly weights, a determination can be made as to whether the resident has experienced any significant weight loss. Therefore, the goal, that there will be no significant weight loss, is measurable. The AHCA failed to establish that Resident 5-A did not have a care plan which was reviewed, revised, and updated as appropriate to describe the necessary care and services to attain or maintain her highest practicable level of physical function. No evidence was presented by the AHCA of any alleged violation related to staffing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Agency for Health Care Administration enter a final order issuing a standard rating to the Tampa Health Care Center and rescinding the conditional rating. DONE and ENTERED this 13th day of February, 1997, in Tallahassee, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 13th day of February, 1997. COPIES FURNISHED: Donna H. Stinson, Esquire Broad and Cassel Suite 400 215 South Monroe Street Post Office Drawer 11300 Tallahassee, Florida 32302 Thomas W. Caufman, Esquire Agency for Health Care Administration 7827 North Dale Mabry Highway Tampa, Florida 33614 Sam Power, Agency Clerk Agency for Health Care Administration Suite 3431 Fort Knox, Building Three 2727 Mahan Drive Tallahassee, Florida 32308 Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308 Douglas M. Cook, Director Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308
The Issue Whether Respondent has violated Sections 400.23(4) and 400.141, Florida Statutes (1979), and Rule 100-29.50, Florida Administrative Code, by failing to correct alleged deficiencies in its nursing center; and whether Respondent should he penalized.
Findings Of Fact Respondent Cheshire's Nursing Center, Inc. is licensed to operate southside Nursing Center at 40 Acme Street in Jacksonville, Florida and is under the direction and charge of a licensed administrator, Raymond R. Savage. The nursing home was built in 1965 and has been in operation since that date. It has 119 beds and is usually fully occupied with elderly people. On December 30, 1980 an Administrative Complaint was served on Mr. Savage notifying him that after 30 days from receipt of the complaint Petitioner Department of Health and Rehabilitative Services intended to impose a civil penalty of $2,000 upon the nursing home for alleged violations of the statutes and rules of Florida pertaining to nursing homes. Respondent was cited for the following: Corridor to office windows have wired glass panels in aluminum frames with glass areas exceeding 1,296 square inches; Two doors between kitchen and the dining room do not have any automatic positive latching hardware and the window from the kitchen to the accounting office is wired glass in an aluminum frame exceeding 1,296 square inches; Eight skylights are not boxed in vertically with a one-hour fire rated sheathing and the steel roof structure is unprotected from fire through the plastic panels. The dining room and lobby have six built-in ceiling light fixtures; nurses station #2 has two built-in light fixtures and nurses station #1 has one built-in light fixture; arts and crafts room has two built-in fixtures, all of which compromise the one-hour fire rated ceiling assembly; and Smoke detectors have not been tested and logged in conjunction with the weekly fire alarm system tests. On January 9, 1981 Respondent requested an administrative hearing. At the bearing Petitioner called one witness and offered one exhibit which was entered as evidence. The Administrator, Mr. Savage, testified on behalf of Respondent. An inspector for Petitioner made an on-site inspection of the subject nursing home on September 6, 1979 and filed his report on September 15, 1979. He listed certain deficiencies and classes of deficiencies and designated the date of October 10, 1980 as the date by which the deficiencies must be corrected (Petitioner's Exhibit #1). Inspection on September 24, 1980 showed that tests of the smoke detectors were being made and logged as required and for which Respondent had been cited in violation (d), Page 2 supra, but no changes had been made as to violations (a) , (b) and (c). On both occasions the inspector informed Respondent's administrator of each alleged violation, but Respondent failed to change the structural deficiencies outlined by Petitioner. Respondent admitted that the violations of the Life Safety Code cited by Petitioner in its Administrative Complaint existed and stated that they had existed since the building had been constructed. They were first called to his attention in 1978 but, except for the smoke detectors, he had not rectified the alleged deficiencies and felt they were no danger. He said that if he complied with the subject requirements of the statutes and rules the home would not look as good as it presently does. Mr. Savage noted that he had recently corrected the violation noted in (d) , Page 2 supra. Petitioner acknowledged that reports on tests of the smoke detectors as required by the statutes and rules were being made at the time of hearing. Petitioner submitted a proposed recommended order, which instrument has been considered in the writing of this order. To the extent the proposed findings of fact have not been adopted in or are inconsistent with factual findings in this order, they have been specifically rejected as being irrelevant or not having been supported by the evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that Petitioner Department of Health and Rehabilitative Services assess a penalty against Respondent Cheshire's Nursing Center, Inc., doing business as Southside Nursing Center, of $500 for each of the three (3) violations of Rule 100-29.50, Florida Administrative Code, prohibited and continuing on the date of the formal hearing. DONE and ORDERED this 9th day of July, 1981, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND 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 9th day of July, 1981. COPIES FURNISHED: Leo J. Stellwagen, Esquire Department of HRS 5920 Arlington Expressway Post Office Box 2417-F Jacksonville, Florida 32231 Raymond R. Savage, Administrator Cheshire's Nursing Center, Inc. d/b/a Southside Nursing Center 40 Acme Street at Atlantic Boulevard Jacksonville, Florida 32211 Alvin J. Taylor, Secretary Department of HRS 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue The issue in this case is whether Respondent committed the allegations in the notice of intent to assign a conditional license and, if so, whether Petitioner should have changed the rating of Respondent's license from standard to conditional for the period March 8 through May 30, 2001.
Findings Of Fact Petitioner is the state agency responsible for licensing and regulating nursing homes inside the state. Respondent operates a licensed nursing home at 5405 Babcock Street, Northeast, in Palm Bay, Florida (the "facility"). Petitioner conducted an annual survey of the facility that Petitioner completed on March 8, 2001 (the "March survey"). Petitioner noted the results of the survey on a Health Care Federal Administration form entitled "Statement of Deficiencies and Plan of Correction." The parties refer to the form as the HCFA 2567-L or the "2567". Petitioner conducted a follow-up survey of the facility that Petitioner completed on April 17, 2001 (the "April survey"). The 2567 is the document used to charge nursing homes with deficiencies that violate applicable law. The 2567 identifies each alleged deficiency by reference to a tag number (the "tags"). Each tag on the 2567 includes a narrative description of the allegations against Respondent and cites a provision of the relevant rule or rules in the Florida Administrative Code violated by the alleged deficiency. In order to protect the privacy of nursing home residents, the 2567 and this Recommended Order refer to each resident by a number rather than by the name of the resident. There are five tags at issue in this proceeding. The March survey cites two Class II deficiencies and three Class III deficiencies. The April survey cites repeat violations of three Class III violations. In this case, Section 400.23(8)(b) and (c), Florida Statutes (2000) establishes the deficiency classifications referred to as Classes II and III. All statutory references in this Recommended Order are to Florida Statutes (2000) unless otherwise stated. Section 400.23(8)(b) defines Class II deficiencies as those: . . . which the agency determines have a direct or immediate relationship to the health, safety, or security of the nursing home facility resident. . . . Section 400.23(8)(c) defines Class III deficiencies as those: . . . which the agency determines to have 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. The March survey sets forth allegations against Respondent in Tags F224, F282, F314, F325, and F363. Petitioner classifies Tags F224 and F314 as class II deficiencies and Tags F282, F325, and F363 as class III deficiencies. Tag F224 in the March survey generally alleges that Respondent failed to implement policies and procedures to prevent abuse to a resident by another resident. Tag F314 generally alleges that Respondent failed to provide necessary assessment, treatment, and documentation for pressure sores for one resident. Tag F282 generally alleges that the facility failed to provide care and services in accordance with the plan of care for two residents. Tag F325 generally alleges that the facility failed to ensure that one resident maintained acceptable parameters of nutritional status, including body weight. Tag F363 generally alleges that the facility failed to provide menus that meet the nutritional needs of the residents by not following menus for pureed and dysphagia diets. The April survey sets forth allegations against Respondent in Tags F282, F325, and F363. Petitioner classifies each alleged violation as a Class III deficiency. Tag F282 in the April survey generally alleges that Respondent failed to follow a resident’s plan of care by failing to provide a weighted spoon and plate guard. Tag F325 generally alleges that the facility failed to ensure that a resident maintained acceptable parameters of nutritional status, including body weight. Tag F363 generally alleges that the facility failed to ensure that menus designed to meet the nutritional needs of the residents were prepared in advance and followed. Florida Administrative Code Rule 59A-4.1288 establishes the requirement for nursing home facilities licensed by the State of Florida to adhere to federal rules and regulations as found in Section 483 of the Code of Federal Regulations (CFR). In relevant part, the state rule provides: Nursing homes that participate in Title XVIII or XIX must follow certification rules and regulations found in 42 CFR 483, Requirements for Long Term Care Facilities, September 26, 1991, which is incorporated by reference. (All references to rules are to rules promulgated in the Florida Administrative Code in effect on the date of this Recommended Order). Applicable federal and state laws require Petitioner to assign to the deficiencies alleged in the 2567 a scope and severity rating required by federal regulations. In the March survey, Petitioner assigned a "G" rating to Tags F224 and F314, both of which are Class II deficiencies. A "G" rating means that the alleged deficiency was isolated, caused actual harm to one or more residents, but did not involve substandard quality of care. Petitioner assigned a "D" rating to the three Class III deficiencies alleged in Tags F282, F325, and F363 in the March survey. A "D" rating means that there is no actual harm but there is potential for more than minimal harm without actual jeopardy. Petitioner relies on two grounds for changing Respondent's license rating from standard to conditional. When Petitioner alleges two Class II deficiencies in the 2567, as Petitioner did in the March survey, applicable rules require Petitioner to change the rating of a facility's license. Applicable rules also authorize Petitioner to change a facility's license rating when the facility does not correct Class III deficiencies within the time prescribed by Petitioner. Petitioner alleges that Respondent failed to correct three Class III deficiencies alleged in Tags F282, F325, and F363 in the March survey by the time Petitioner conducted the April survey. Effective March 8, 2001, Petitioner changed the rating of the facility's license from standard to conditional. Effective May 31, 2001, Petitioner changed the rating of the facility's license from conditional to standard. The allegations in Tag F224 in the March survey pertain to two residents in the dementia unit of the facility who are identified individually as Resident 1 and Resident 13. Tag F224 in the March survey alleges that the facility failed to meet the requirements of 42 CFR Section 483.13(c). The federal regulation provides in relevant part: The facility must develop and implement written policies and procedures that prohibit mistreatment, neglect and abuse of residents and misappropriation of resident property. The facility must not use verbal, mental, sexual, or physical abuse, corporal punishment, or involuntary seclusion. The federal regulation is applicable to nursing homes in Florida pursuant to Rule 59A-4.1288. Tag F224 does not allege that the facility failed to develop the written policies required by 42 CFR Section 483.13(c) and Rule 59A-4.1288. Rather, Tag F224 alleges that Respondent failed to implement its policy. Tag F224 alleges that the facility failed to provide care and services to Resident 13 to prevent the resident from sexually intimidating a female resident identified as Resident 1. Tag F224 further alleges that Resident 13 had a past history of abusive and aggressive behavior to other residents but was not reassessed, "care planned," and monitored. The allegations in Tag F224 are based on observations of one of Petitioner's surveyors who participated in the March survey. On March 5, 2001, the surveyor observed Resident 13 in the dementia unit standing over Resident 1. The surveyor did not observe any overt sexual misconduct by Resident 13. Rather, the surveyor concluded that sexual misconduct occurred because she determined that Resident 13 was "invading [the female resident's] space," Resident 1 appeared "very anxious," "nervous," and "uncomfortable", and screamed for 15 minutes for Resident 13 to leave. The surveyor also relied on the history of Resident 13 to conclude that Resident 13 engaged in sexual misconduct on March 5, 2001. Resident 13 had, on two occasions, previously expressed a desire to have sex with female residents in the dementia unit and on other occasions had wandered into the rooms of female residents. Based on the inappropriate sexual statements by Resident 13 prior to March 5, 2001, the surveyor alleged in Tag F224 that Resident 13 engaged in sexual misconduct with Resident 1 on March 5, 2001. The preponderance of evidence does not show that Resident 13 engaged in sexual misconduct on March 5, 2001, by standing in front of Resident 1. Resident 13 did not engage in any overt sexual act or gesture. Resident 13 did not utter any inappropriate sexual comments. Resident 13 suffered from dementia and was elderly. He was mentally incapable of forming the requisite intent to sexually intimidate Resident 1 and was physically incapable of carrying out any such intent. In the absence of any overt sexual misconduct on March 5, 2001, the only evidence to support the allegation of sexual misconduct in F224 is the inference of the surveyor based on the gender difference between Residents 13 and 1 and the past history of inappropriate sexual statements by Resident 13. The inference of the observer does not satisfy the requirement for a preponderance of the evidence. The resident’s physician was qualified as an expert witness without objection. The physician testified that he was aware of Resident 13’s aggressive behavior, including the two occasions on which the resident expressed a desire to have sex with female residents. However, such incidents are typical of demented residents, do not reflect that Resident 13 was going to attack other residents in the dementia unit, and do not require any alteration to the care plan that was already in place. The only evidence that Petitioner provided to the contrary was the non-expert opinion of its surveyor. The non- expert opinion of the surveyor was insufficient to refute the physician’s expert opinion. Resident 13 suffered from severe cognitive impairment and was not physically or mentally capable of premeditating a plan to sexually intimidate Resident 1 and then carry out that plan. Resident 1 was paranoid of men. Her response to the encounter with Resident 13 was precipitated by her paranoia rather than by Resident 13's intent to sexually intimidate Resident 1. Although Resident 13 voiced a desire to have sex with other residents on two occasions during his stay at the facility, he never acted on those statements and was physically and mentally incapable of acting on them. On those two occasions, Respondent monitored Resident 13 closely but the resident did nothing to indicate that he would act on his stated desires or that he even remembered voicing them. Petitioner did not allege that Resident 13 engaged in any behavior on March 5, 2001, other than sexual misconduct. Even if Tag F224 were to have alleged that Resident 13 engaged in abuse other than sexual abuse, the preponderance of the evidence failed to show that Resident 13 engaged in non-sexual abuse. As a threshold matter, the evidence that the incident lasted for 15 minutes is not credible. It is implausible that a surveyor would allow apparent sexual intimidation to continue after she perceived the incident to be sexual intimidation, much less allow Resident 1 to endure such intimidation for 15 minutes. The surveyor testified that she could not locate a certified nursing assistant ("CNA") on the dementia unit when the incident occurred on March 5, 2001. The dementia unit is a locked unit comprised of resident rooms that open at regular intervals along a 60-foot hallway, and an activities room. There were two CNAs on duty at the time. One of those CNAs was in the hallway at the time of the alleged incident. The surveyor did not inform any member of the staff or administration at the facility that the incident had occurred before Petitioner provided Respondent with the allegations in the 2567 at the conclusion of the March survey. Resident 13’s primary behavior problem did not involve physical aggression toward other residents. Rather, the primary behavior problem was Resident 13's tendency to become aggressive with staff when they attempted to provide personal care, especially that care required for the resident's incontinence. Petitioner incorrectly concluded that the inappropriate behavior by Resident 13 indicated that he was a risk to assault or intimidate other residents. Resident 13’s historical experience at the facility did not involve aggression toward other residents. Instead, Resident 13 directed his aggressive behavior to situations with staff who were attempting to provide personal care for him. Irrespective of the proper characterization of Resident 13's behavior on March 5, 2001, the behavior did not occur because of any failure by the facility to assess Resident 13 or to develop and implement appropriate care plans to address the Resident 13's inappropriate behavior. Respondent acknowledged that Resident 13 wandered the hall, wandered into residents’ rooms, occasionally urinated in inappropriate places, and occasionally made inappropriate sexual remarks. However, those behaviors are typical of residents who suffer from dementia, and the inappropriate behavior cannot be eliminated through a care plan. Facility staff knew to monitor Resident 13 and to re- direct him if he engaged in inappropriate behavior that affected other residents. The chart for Resident 13 is replete with instances of staff consistently implementing those interventions. The care plan for Resident 13 directed staff to approach him calmly, let the resident choose the timing of his care, assess him for pain as a potential cause of agitation, and leave the resident alone and approach him later if the resident became upset during care. All of these interventions were appropriate for the identified behavior problem, and the record is replete with instances of the successful implementation of appropriate interventions. A physician saw Resident 13 and evaluated the resident almost weekly. The physician was aware of and assisted in the evaluation of the resident’s behavior. The physician considered several alternative interventions including the use of anti- anxiety medications to address the resident’s aggressiveness. The physician called in a psychiatric nurse practitioner to evaluate the resident and to recommend medications that might be effective in controlling aggressive episodes. At various times during the course of Resident 13’s stay at the facility, the physician prescribed Seraquil, Risperdal, BuSpar and Ativan for the resident. When aggressive incidents occurred, staff administered these medications with positive effects. Petitioner offered no specific evidence that any intervention used by the facility was not appropriate or that there was another intervention that the facility failed to identify and implement that would have changed any of the inappropriate behavior. Rather, the surveyor concluded that whatever the facility did was inappropriate because Resident 13’s behavioral problems did not subside or disappear while he was at the facility. The surveyor's conclusion fails to adequately understand dementia. The inappropriate behavior displayed by Resident 13 is typical of residents in a dementia unit and cannot be eliminated. Petitioner did not prove that Respondent failed to adequately reassess Resident 13. The resident’s medical record is replete with examples of efforts by the staff to continually re-evaluate the resident and to modify care plan approaches. The facility conducted quarterly re-assessments of the resident. The facility required staff to chart all incidents of inappropriate behavior in the resident’s medical record in an effort to identify any triggering events. The facility provided staff with in-service training for Resident 13 by the resident’s physician. The scope of the training encompassed the care of residents with dementia but focused in particular on the care that was required for Resident 13. The physician wanted to assure that Resident 13 would not become over-medicated and implemented frequent assessments and readjustments of the dosages of the resident's medications. Petitioner offered no evidence that Respondent failed to assess the resident in a timely manner or that any assessment performed by the facility was inappropriate. Petitioner did not allege in the March survey that the incident between Residents 13 and 1 was a result of Respondent's failure to consistently implement Respondent's policy regarding investigations of abuse. Therefore, any evidence relevant to such an allegation at the hearing is irrelevant to the allegations for which Petitioner provided adequate notice in the March survey. A contrary ruling would violate fundamental due process requirements for notice of the charges that substantially affect Respondent's license to operate the facility. Assuming arguendo that Petitioner can prove charges at the hearing that were not included in the allegations in the March survey, Petitioner's surveyor testified at the hearing that the incident she observed on March 5, 2001, occurred because the facility did not implement its policy and procedure regarding investigations of abuse of residents. As evidence of Respondent's failure to implement its policy, the surveyor contended that the facility did not properly investigate another incident described in nursing notes on January 31, 2001, before the March survey. In the January incident, the nursing notes indicated that Resident 13 made sexual advances to other residents. The implication is that the facility would have done something different with the resident had it properly investigated the January incident and would have, in turn, been able to prevent the occurrence of the incident the surveyor observed on March 5, 2001. Respondent maintains an adequate anti-abuse policy. Respondent’s anti-abuse policy requires its designated staff members to investigate and report to abuse agencies, if necessary, any suspected incidence of abuse of its residents. However, the facility did not fail to implement this policy with regard to Resident 13. Abuse is defined in Respondent's policy as the "willful infraction [sic] of injury . . . resulting in physical harm, pain or mental anguish." Due to Resident 13's dementia, he was not capable of willfully inflicting harm on anyone. No facility investigator could reasonably conclude that an incident involving Resident 13 constituted abuse within the meaning of the written policy of the facility. Even if the incident described in the January 31, 2001, nursing notes were relevant to the allegations in the March survey, Petitioner failed to show that the incident which the surveyor observed on March 5, 2001, was the product of any failure by Respondent to implement its policy on January 31, 2001. The facility’s director of nursing adequately investigated the incident described in the nursing notes on January 31, 2001, and determined that Resident 13 made no sexual advances to anyone and did not direct any inappropriate sexual comments to other residents. Rather, the investigation found that Resident 13 made inappropriate sexual comments to a CNA. Staff appropriately monitored Resident 13 after he made that statement to the CNA, and Resident 13 did nothing to act on the statement. The director of nursing notified Resident 13’s physician, and the physician determined there was no need to alter the resident’s care plan. Petitioner failed to show that the deficiency alleged in F224 was a Class II deficiency. Petitioner presented no evidence that the incident the surveyor observed on March 5, 2001, was anything other than an isolated incident or presented a threat of harm to other residents. Tag F314 alleges that Respondent violated 42 CFR Section 483.25(c). The federal regulation requires, in relevant part: Pressure Sores. Based on the comprehensive assessment of a resident, the facility must ensure that— A resident who enters the facility without pressure sores does not develop pressure sores unless the individual’s clinical condition demonstrates that they were unavoidable; and A resident having pressure sores receives necessary treatment and services to promote healing, prevent infection and prevent new sores from developing. The federal regulation is applicable to nursing homes in Florida pursuant to Rule 59A-4.1288. The March survey alleges in Tag F314 that the facility failed to provide required treatment and services to Resident 2. The surveyor determined the facility was out of compliance after she determined that Resident 2 had pressure sores. The surveyor based her findings on her observation of Resident 2 and a review of the records. In the nursing notes of February 22, 2001, the facility noted small open areas to the left thigh, back of scrotum, and buttocks. On March 5, 2001, the resident’s medical record indicated that the resident had two reddened areas on his buttocks. On March 6, 2001, the surveyor observed that the resident had two open areas on his right buttock and two on his scrotum. Petitioner charged in F314 in the March survey that these areas were pressure sores, and that the areas identified on March 6th were those which had been initially identified on February 22, 2001. Petitioner further charged that the facility failed to provide necessary treatment and services because staff failed to notify the resident’s physician and obtain a treatment order to the areas in accordance with the facility's policy relating to pressure sore care. A threshold issue is whether the reddened areas on Resident 2 were pressure sores or were reddened areas that did not satisfy Petitioner's definition of a pressure sore. If the areas were not pressure sores, Petitioner acknowledges that there would be no deficiency and no violation of the facility's pressure sore policy. The guidelines promulgated by Petitioner to guide its surveyors in the interpretation of the standard applicable under Tag F314 define a pressure sore as: . . . ischemic ulceration and/or necrosis of tissues overlying a bony prominence that has been subjected to pressure, friction or sheer. The areas identified on February 22, 2001, were located on Resident 2’s buttocks, scrotum, and thigh. None of those areas were located over any bony prominence within the meaning of Petitioner's promulgated definition of a pressure sore. Additionally, the areas identified on February 22nd were healed the next day. Pressure sores do not typically heal overnight. A nurse practitioner examined the areas identified on March 5th and 6th during the survey. The nurse practitioner diagnosed those reddened areas as a rash. Petitioner relies on records that identify the reddened areas on forms that the facility uses for both pressure sores and reddened areas that are not located over a bony prominence. For convenience, the facility uses a single form to identify both reddened areas and pressure sores. Petitioner seeks to rely on the facility forms, including elements of the plan of care on such forms, as though they were admissions by the facility that define pressure sores and then attempt to require the facility to prove the areas are not pressure sores. Petitioner is bound by its own definition of a pressure sore, cannot deviate from that definition, and cannot rely on a different definition as a basis for disciplinary action against the licensee. Petitioner limits the definition of a pressure sore to those ischemic ulcerations and/or necrosis of tissues that overlie a bony prominence. Those ischemic ulcerations and/or necrosis of tissues that do not overlie a bony prominence are not pressure sores within the meaning of the definition adopted by the state agency. The use by the facility of pressure sore treatment forms and the use of the term pressure sore in the medical records does not create a bony prominence where none exists. The preponderance of evidence shows that the reddened areas at issue were not located over a bony prominence. Clearly, there is no bony prominence in the scrotum, thigh, or buttocks where the reddened areas were located on Resident 2. Assuming arguendo that the areas were pressure sores, Respondent provided all treatment and services to the areas necessary to promote their healing. The facility treated the areas identified on February 22, 2001, by cleansing and application of Lantiseptic, a skin protector. The effectiveness of the treatment is reflected by the complete healing of the areas on the next day. Facility staff properly notified the treating physician and treated the areas identified on March 5th with Lantiseptic. A physician’s assistant examined the areas identified in the March survey and confirmed the use of Lantiseptic on the areas. The surveyor found no record of any plan of care for the pressure sores alleged in the March survey. The facility subsequently produced a note by a nurse practitioner dated March 6, 2001, stating that Lantiseptic was applied to a rash on the buttocks and scrotum, a doctor’s order for treatment, and a care plan for pressure sores after the physician’s note of February 23, 2001. The surveyor testified that the additional documents did not alter her testimony that the areas were pressure sores and that the facility failed to provide an adequate plan of care. The testimony of the surveyor does not refute the preponderance of evidence at the hearing. The areas at issue did not overlay a bony prominence. In any event, Petitioner failed to show that the deficiency alleged in F314 in the March survey was a Class II deficiency. Even if the areas were pressure sores and it were determined that the facility failed to provide necessary treatment and services, the evidence does not demonstrate that the problem suffered by Resident 2 was systemic or likely to occur with other residents in the facility. At most, the evidence demonstrates a limited failure to provide care to one resident. Accordingly, Petitioner failed to prove that the identified deficiency presented an immediate threat to other residents in the facility. At the conclusion of Petitioner's case in chief, Respondent moved to dismiss the allegations in Tag F282 on the grounds that Tag F282 in the March and April surveys alleged different deficiencies and therefore were not relevant or material to a change in license that is based on uncorrected deficiencies. After hearing arguments from both parties, the ALJ granted the motion to dismiss with leave for Petitioner to revisit the issue in its PRO if Petitioner could provide legal authority to support its position. Petitioner argues in its PRO that the ALJ erred in granting the motion to dismiss. However, Petitioner does not cite any legal authority to support its argument. Tag F282 in the March and April surveys alleges that the facility failed to provide care and services in accordance with the plan of care for two residents in violation of 42 CFR Section 483.20(k)(ii). The federal regulation provides in relevant part: Comprehensive Care Plans. (3). The services provided or arranged by the facility must— (ii) Be provided by qualified persons in accordance with each resident’s written plan of care. The federal standard is applicable to nursing homes in Florida pursuant to Rule 59A-4.1288. In the March survey, Tag F282 did not allege that Respondent provided services to residents by unqualified staff. Instead, Tag F282 charged that Respondent's staff incorrectly fastened a clip belt in the back of Resident 21 while she was in her wheel chair and failed to toilet her once in accordance with a physician’s order. In addition, Tag F282 alleged that staff did not weigh Resident 3 weekly as required by his care plan. However, a preponderance of the evidence showed that the facility did not miss any required weights after January 13, 2001. In the April survey, Tag F282 did not allege that Respondent failed to correct the deficiencies alleged in the March survey regarding Residents 21 and 3. Nor did Tag F282 allege that Respondent failed to comply with the plan of corrections submitted by Respondent after the March survey. Rather, Tag F282 in the April survey alleged that Respondent failed to provide a plate guard and weighted spoon for Resident 7 in violation of a physician's order. Petitioner argues that the alleged deficiencies in Tag F282 in the March and April surveys, pertaining to Residents 21 and 7, respectively, involved the failure to comply with a physician's order and, therefore, represent uncorrected deficiencies. Even if Petitioner's definition of an "uncorrected deficiency" were accepted, it would not be dispositive of the issue. The evidence showed that the physician who ordered the weighted spoon and plate guard for Resident 7 terminated the order at the conclusion of the April survey. Even if Respondent failed to follow a physician's order for Residents 21 and 3 in the March survey, Respondent did not fail to follow a physician's order for Resident 7 during the April survey. Moreover, the termination of the physician's order evidences a medical determination that the failure to comply with the order did not cause any harm to Resident 7. In any event, the definition of an "uncorrected deficiency" asserted by Petitioner is not persuasive. Notwithstanding the request of the ALJ, Petitioner did not submit any legal authority to support its asserted definition of the phrase "uncorrected deficiency." In the absence of a technical definition established by statute, rule, or judicial precedent, the phrase "uncorrected deficiency" is properly construed in accordance with the plain and ordinary meaning of its terms. The allegations in Tag F282 in the March survey are rooted in a physician’s order that called for a clip belt to be placed around Resident 21 while she was in her wheelchair. The purpose of the order was to guard the safety of Resident 21. The order further directed staff to check the belt every thirty minutes and release it every two hours to toilet the resident. During the March survey, a surveyor observed that staff had placed the clip belt on Resident 21 improperly on one day, and further determined that the resident had not been taken to the toilet. Based upon that information, the surveyor charged that the facility failed to follow the doctor’s order for checking and releasing the belt. The surveyor’s observations established, at most, a single isolated instance of failure to follow the care plan for Resident 21. The surveyor's observations failed to establish a consistent failure to implement the care plan. The alleged deficiency presented no potential for harm to Resident 21. Resident 21 was cognitively alert and could notify staff if she needed to be toileted or needed her belt removed. At the time that the surveyor observed Resident 21, the resident was in a supervised setting with staff readily available to her in the event she needed attention. She was not shown to have experienced any incontinent episode or to have even requested that she be toileted or otherwise released from the belt. Petitioner acknowledges that any failure by staff to remove the resident’s belt during this time presented nothing more than a minimal risk of harm to the resident. Resident 3 was admitted to the facility on January 13, 2001, and had a care plan that called for the resident to be weighed weekly. Between the resident’s admission to the facility and the March survey, the facility weighed the resident in accordance with the care plan except for one omission in late February. This one instance of failing to do a weekly weight did not demonstrate a consistent failure to implement the care plan. Petitioner provided no evidence that this single instance of failing to weigh the resident caused the resident harm or presented even the potential for harm to the resident. After the March survey, Respondent submitted a plan of correction to address the alleged deficiencies relating to Tag F282. Applicable law precludes Respondent from arguing the validity of the alleged deficiencies in its plan of correction. In the plan of correction, Respondent indicated that it would focus on restraints and weekly weights to insure that the alleged deficiencies would not re-occur. Petitioner accepted the plan of correction and, in April, did not find that staff at the facility failed to properly apply restraints to residents, failed to do weekly weights for residents, or otherwise failed to implement the plan of correction. Petitioner charged that Respondent violated Tag F282 in April because the facility failed to provide a weighted spoon and plate guard to Resident 7 as required by a physician’s order. It is uncontroverted that the plan of correction adopted to address the March F282 deficiency pertaining to Residents 21 and 3 did not address the deficiency alleged in Tag F282 in the April survey with respect to Resident 7; and would not have prevented the deficiency alleged in the April survey pertaining to Resident 7. Accordingly, the deficiency alleged in Tag F282 in the April survey pertaining to Resident 7, even if true, did not represent an "uncorrected" deficiency. Instead, the deficiency alleged in Tag F282 in the April survey represented a new deficiency. In any event, Petitioner failed to demonstrate that the alleged failure of the facility to comply with any of the orders at issue denied residents any necessary care and treatment, or presented even the possibility that the residents would be harmed. The physician ordered the weighted spoon and plate guard for Resident 7 due to the loss of dexterity in the resident's hand needed to assist him in the consumption of his meals. Even though the plate guard and spoon were not provided to the resident after they were ordered for him, the resident had no trouble with meal consumption. His medical records reflected that he consistently consumed his meals and that he gained almost 20 pounds during the time period that the spoon and plate guard were ordered. The weight gain and food consumption are significant because the facility initially admitted the resident as a hospice resident. The absence of any medical necessity for the physician's order requiring the spoon and plate was confirmed when the facility contacted the doctor during the survey, and the doctor issued an order discontinuing the use of the plate guard and spoon. Tag F325 in the March and April surveys alleges that the facility failed to comply with the requirements of 42 CFR Section 483.25(i)(1). The federal regulation provides, in pertinent part: Nutrition. Based on a resident’s comprehensive assessment, the facility must ensure that a resident-- Maintains acceptable parameters of nutritional status, such as body weight and protein levels, unless the resident’s clinical condition demonstrates that this is not possible. . . . The federal regulation applies to nursing homes in Florida pursuant to Rule 59A-4.1288. Tag F325 alleges in the March survey that Respondent did not maintain acceptable parameters of body weight for Resident 4. Respondent does not dispute this charge. Tag F325 alleges in the April survey that Respondent did not maintain acceptable parameters of body weight for Resident 9. Resident 9 lost approximately 20 pounds between August of 2000 and April 8, 2001. However, Petitioner provided no evidence that the weight the resident lost was "unacceptable" or caused by inadequate nutritional care. Petitioner neither contended nor demonstrated that a 20-pound weight loss over seven or eight months violates any accepted dietary or health standard. Even if such a rate of weight loss were an "unacceptable nutritional parameter," Petitioner provided no evidence that Respondent failed to properly monitor Resident 9's weight, assess his dietary needs, provide the resident with an appropriate diet, or otherwise caused the weight loss. Rather, the resident’s medical records demonstrate on-going assessments of the resident by the dietary staff and numerous interventions to address the resident's weight. Petitioner alleges that Respondent failed to comply with several directives for supporting care for Resident 9. Facility staff had been directed to cue Resident 9 to use a "chin tuck" to address his risk of aspiration due to swallowing difficulties. Staff were directed to cue the resident to cough and tuck his chin anytime the staff determined that the resident's voice sounded wet. During the survey, the surveyor observed three meals in which the staff provided no cues to Resident 9. However, no cues were required of staff if the resident did not have a wet sounding voice, and the surveyor acknowledged that she did not hear the resident cough during any of her meal observations. Even if cues were required to be given to Resident 9 during the meals observed by the surveyor, the surveyor did not demonstrate that the failure to cue the resident had any negative impact either on the resident's ability to eat or on the resident's weight. Rather, the evidence shows that Resident 9 weighed 151.6 pounds on April 8, 2001, and weighed 160.2 pounds on April 20, 2001, the day after Petitioner completed the April survey. Thus, the failure of the staff to cue the resident during the observed meals did not violate a nutritional parameter. The surveyor testified that the facility failed to provide fortified foods to Resident 9 during the April survey in violation of the resident's dietary care plan. The allegations in Tag F325 in the April survey do not include the allegation of inadequate care to which the surveyor testified during the hearing. In the absence of adequate notice in the written allegations, the testimony of the surveyor cannot be used as a basis for any finding of deficiency. Even if the testimony were considered as a basis for a finding of fact, the failure to provide fortified foods did not violate any nutritional requirements. Resident 9's wife provided the resident with "home-cooked" meals to satisfy his food preferences. Petitioner acknowledges that the meals the wife supplied effectively precluded the resident from eating fortified foods provided by the facility. Moreover, Resident 9 gained weight between April 8 and 17, 2001. Tag F363 alleges in the March and April surveys that the facility failed to meet the requirements of 42 CFR Section 483.35(c)(1)-(3). The federal regulation provides in relevant part: (C) menus and nutritional adequacy. Menus must-- Meet the nutritional needs of residents in accordance with the recommended dietary allowances of the Food and Nutrition Board of the national Research Council, National Academy of Sciences; Be prepared in advance; and Be followed. The federal regulation applies to nursing homes in Florida pursuant to Rule 59A-4.1288. Tag F363 alleges that the facility’s menu for March 8, 2001, included cranberry sauce and that the facility did not serve cranberry sauce to 11 residents in the rehabilitation dining room. The surveyor who made this charge did not evaluate the meal actually provided to the residents for its nutritional adequacy. Rather, the surveyor cited the facility because the facility failed to comply with the literal terms of the printed menu. Respondent does not dispute that the facility did not serve cranberry sauce to 11 residents in its rehabilitation dining room on the day in question. The facility’s menu for March 8, 2001, consisted of roast turkey, poultry gravy, cornbread dressing, peas and carrots, mandarin oranges, bread, and cranberry sauce. The menu called for one-half tablespoon of cranberry sauce. The omission was not significant. The dietician did not include the cranberry sauce in calculating the nutritional content of the meal. The cranberry sauce was only a garnish to the plate. The remainder of the food items offered in the meal met all of the requirements for residents’ nutritional needs. Any failure by Respondent to provide the cranberry garnish presented no risk of harm to any resident. Tag F363 alleges in the April survey that Respondent provided a saltine cracker during one meal to a resident who required a pureed diet. Tag F363 also alleges that Respondent gave a bologna sandwich to a resident whose food preferences did not include bologna sandwiches. Petitioner provided no evidence that either of these residents received nutritionally inadequate meals. Petitioner’s apparent concern with the resident who was served the cracker was that she might attempt to eat it and choke on it because she required pureed foods and the cracker was not pureed. The surveyor who observed the resident acknowledged that the resident did not eat the cracker. She also acknowledged that there is a regulatory standard which requires a facility to provide a therapeutic diet to residents who require such a diet, and that a pureed diet is a therapeutic diet. Accordingly, this observation is, at most, a violation of that standard, not Tag F363, and presented nothing more than a minimal chance of harm to the resident. Petitioner failed to show that the resident who did not get the bologna sandwich was deprived of any required nutrition, or that placing a bologna sandwich in front of the resident created any risk of harm to the resident. The surveyor acknowledged that the sandwich did not remain in front of the resident for long and that the facility immediately corrected the situation by providing the resident with an acceptable substitute. Tag F363 also alleges that the facility posted for resident observation the same menu on Monday, April 17, 2001, that the facility posted on Sunday, April 16, 2001. The regulation at issue does not address how or even if menus must be posted in a nursing home. Petitioner failed to explain why posting the same menu on consecutive days would violate any regulation, rule, or statute. Respondent acknowledged that the Sunday menu was not removed on Monday, but demonstrated that different, nutritionally adequate meals were planned and served to residents on each of those days.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Agency for Health Care Administration enter a final order finding that Petitioner failed to show by a preponderance of the evidence that a factual basis existed upon which Petitioner should have issued a Conditional rating to Respondent on March 8, 2001, and revising the March 8 and April 16, 2001, 2567 reports by deleting the deficiencies described under Tags F224, F314, F282, F363 and F325 (April only); and issuing a Standard rating to Respondent to replace the previously issued Conditional rating that was in effect from March 8, 2001, until May 31, 2001. DONE AND ENTERED this 4th day of March, 2002, in Tallahassee, Florida. DANIEL MANRY 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 4th day of March, 2002. COPIES FURNISHED: Dennis L. Godfrey, Esquire Agency for Health Care Administration 525 Mirror Lake Drive, North, Room 310L St. Petersburg, Florida 33701 R. Davis Thomas, Qualified Representative Broad & Cassel 215 South Monroe Street, Suite 400 Tallahassee, Florida 32302 Diane Grubbs, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Suite 3431 Tallahassee, Florida 32308 William Roberts, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive Suite 3431 Tallahassee, Florida 32308
Findings Of Fact On or about January 7, 1981, HCM was issued CON No. 1616, authorizing construction of a 78-bed nursing home facility to be located in Lee County, Florida. HCM has commenced construction of this project on a 120-bed frame. Subsequently, HCM applied to HRS for a CON for an additional 42 nursing home beds to be added to the above-described project. By letter dated April 28, 1983, HRS informed HCM of its intent to deny HCM's application for the additional 42 nursing home beds on the grounds that the proposed project was not consistent with the nursing home bed need methodology contained in Rule 10-5.11(21), Florida Administrative Code. Lee County has been established as a specific subdistrict of HRS District VIII for determination of nursing home bed need. Rule 10-5.11(21)(c), Florida Administrative Code. The record in this cause establishes a percentage of 8.61 of elderly living in poverty in Lee County, as compared to a percentage of 12.70 statewide. There exists a statewide bed need of 27 community nursing home beds per 1,000 population age 65 years and older. Finally, a population of 65,703 is projected for Lee County in 1986. When these factors are combined in accordance with the need methodology formula contained in Rule 10-5.11(21)(b), a need of 1,203 community nursing home beds is established for Lee County in 1986. When this same calculation is made districtwide, using a projected 1986 population for District VIII of 201,392 age 65 and older, a need for 3,686 community nursing home beds results. At the time of final hearing in this cause, there were 748 existing licensed community nursing home beds in Lee County, and an additional 222 such beds which had previously been approved by HRS. When the total of 970 existing and approved beds are subtracted from the 1986 projected bed need in Lee County, a net bed need of 233 beds results for 1986. At the time of final hearing in this cause, there were 3,335 existing licensed community nursing home beds in District VIII, and an additional 1,337 which had been approved. The total of 4,512 existing and approved community nursing home beds in District VIII exceeds the need in District VIII according to the requirements of Rule 10-5.11(21) by 824 beds. Where, as here, the evidence establishes that a subdistrict indicates a need for additional bed capacity, but the district as a whole shows no additional need, Rule 10- 5.11(21)(f)2, Florida Administrative Code, establishes a current utilization threshold of 90 percent or higher in the subdistrict. In this case, the evidence establishes that the appropriate current utilization rate for Lee County is 91.5 percent. In addition, Rule 10-5.11(21)(h)2, Florida Administrative Code, requires a prospective base rate of utilization of 80 percent when the need methodology indicates a subdistrict need and the lack of need in the district as a whole. The evidence in this cause establishes an average Lee County patient census of 684, and 970 currently licensed and approved community nursing home beds which must be factored together with HCM's request for an additional 42 beds. When the formula contained in Rule 10-5.11(21)(g) is applied to this data, the prospective utilization rate is 67.6 percent, which fails to meet the threshold 80 percent requirement contained in Rule 10-5.11(21)(h)2. HCM apparently does not contest the results of the application of the bed need methodology contained in Rule 10-5.11(21), but instead argues that the results of the formulae should not be applied to its application because of the existence of exceptional circumstances in Lee County. In this regard, HCM adduced testimony attempting to establish an historical imbalance between the number of community nursing home beds located in Lee and Sarasota Counties, purportedly necessitating the placement of Lee County residents receiving Medicaid or assistance from the Veterans Administration 70 to 100 miles from their families, or continuing hospitalization of those patients in a more costly acute care facility. It is specifically concluded, that the record in this cause fails to contain any competent, credible evidence to establish that Medicaid and VA recipients in Lee County have been so historically underserved as to merit the granting of the 42 additional nursing home beds requested by HCM. Further, even if this were not the case, HCM has failed to establish that the 222 additional community nursing home beds approved for Lee County will not adequately serve the interests of Medicaid and VA recipients in Lee County in 1986. Rule 10-5.11(21) purports on its face to account for the needs of the elderly over 65 years of age living in poverty, and this record contains no showing that the rule in any way underestimates that need.
The Issue The parties have agreed that the following issues are to be determined: Whether Section 246.215, Florida Statutes, requires Petitioners and similarly situated home health agencies to first obtain a license or authorization from the State Board of Independent Postsecondary Vocational, Technical, Trade, and Business Schools before offering a program of training. Whether Petitioner, Compassionate Care Health Services, Inc., and similarly situated home health agencies are exempt from the licensure requirement in Section 246.215, Florida Statutes, by application of the provision of Section 246.201, Florida Statutes, which states: ny school or business, regulated by the state or approved, certified, or regulated by the Federal Aviation Administration is hereby expressly exempt from ss. 246.201-246.231. . . . Whether Petitioner, Compassionate Care Health Services, Inc., and similarly situated home health agencies are exempt from the licensure requirement in Section 246.215, Florida Statutes, because they are excluded from the definition of "school" in Section 246.203(1), Florida Statutes, by application of the following underlined language within that definition: [S]chools offering only examination preparation courses for which they do not award a diploma as defined in subsection (6) do not fall under the authority granted in ss. 246.201-246.231; nor does a nonprofit class provided and operated entirely by an employer, a group of employers in related business or industry, or a labor union solely for its employees or prospective employees or members.
Findings Of Fact The parties stipulated that they desired a determination of the issues set forth in the Statement of the Issues to three sets of factual scenarios: Set A, Set B, and Set C. Each set of the factual scenarios has additional facts or presumptions which are common to that set. The facts set forth in paragraphs 2-8 below, are common to all the factual scenarios. Compassionate Care Health Services, Inc., (Compassionate Care) is a Florida corporation, whose principal place of business is located at 1600 Sarno Road, Suite 214, Melbourne, Florida 32935. Compassionate Care holds a license, issued pursuant to Chapter 400, Part IV, Florida Statutes, as a "home health agency," as defined in Section 400.462(4), Florida Statutes. The home health services provided by Compassionate Care include, but are not limited to, "home health aide" services. Compassionate Care offers a program of training which teaches the knowledge and skills needed for an individual to meet the qualifications and training requirements to be employed as a home health aide in accordance with the rules adopted by the Agency for Health Care Administration (AHCA), pursuant to Section 400.497(2), Florida Statutes. Compassionate Care selects individuals for enrollment in its training program from among those who apply. Compassionate Care charges and receives a monetary fee from each individual enrolled in the training program. Compassionate Care provides to each individual who completes the training program a transcript reflecting the individual's performance within the training program. The parties stipulated that for the purposes of Set A of the factual scenarios that it is presumed that the training program meets all requirements to be a "nonprofit class" within the meaning of Section 246.203(1), Florida Statutes. Further, the parties stipulated that at or prior to the time of enrollment in the training program and payment of the fee, each trainee is hired by Compassionate Care with a designated status of employee- trainee. Set A is divided into three factual scenarios: A-1, A- 2, and A-3. Factual scenario A-1 consists of the common facts set forth in paragraphs 2-9, supra, and the facts set forth in paragraphs 12-14, below. Prior to being hired as an employee-trainee, the applicant is determined by Compassionate Care to have passed the statutory background check. Upon being hired as an employee-trainee, the employee trainee receives a salary and benefits which comply with at least the minimum requirements under applicable labor laws. At the time an applicant is hired as an employee- trainee, there is established as an express term and condition of employment that if the employee-trainee successfully completes the training program, the employee-trainee will be reassigned to the employment status of home health aide and will have the same employment security and will receive assignments, salary, and benefits which are the same for all other home health aides employed by Compassionate Care, subject only to pay classifications and seniority rules that apply equally to all home health aides employed by Compassionate Care. Factual scenario A-2 is the same as factual scenario A-1, except the background check is not done until the employee- trainee has successfully completed the training program; and the terms and conditions of employment under which the employee- trainee will be reassigned to a home health aide position includes passing the statutory background check as well as successfully completing the training program. Factual scenario A-3 is the same as factual scenario A-1 except that the employee-trainee status is nominal, in that the employee-trainee receives no salary or benefits until reassigned to a home health aide position. The parties stipulated that for the purposes of Set B it is presumed that the training program meets all requirements to be a "nonprofit class" within the meaning of Section 246.203(1), Florida Statutes. Further for the purposes of Set B, the parties stipulated that no trainee has any employment status with Compassionate Care prior to or during the training program. Set B is divided into four factual scenarios: B-1, B-2, B-3, and B-4. Factual scenario B-1 consists of the facts set forth in paragraphs 2-8 and 17, supra, and the facts set forth in paragraphs 20 and 21, below. As a part of the written enrollment agreement or as a separate writing at or prior to the time of enrollment, Compassionate Care covenants that it will offer employment with Compassionate Care as a home health aide to each trainee who successfully completes the training program and passes the statutory background check. Each trainee who successfully completes the training program and who passes the statutory background check is, in fact, offered employment with Compassionate Care as a home health aide with rights to assignments, salary, and benefits which are the same for all other home health aides employed by Compassionate Care, subject only to pay classifications and seniority rules that apply equally to all home health aides employed by Compassionate Care. Factual scenario B-2 is the same as factual scenario B-1, except Compassionate Care offers employment as a home health aide to some, but not all, trainees who successfully complete the training program and pass the statutory background check. Compassionate Care asserts that its decision to not offer employment to all of the trainees who successfully complete the training program and pass the statutory background check is based on business circumstances which result in a need for fewer home health aides than had been anticipated or a determination that the trainees who are not offered employment are unsuitable because of personality, or temperament, or personal circumstances of the trainee other than specific instances of serious misconduct. Factual scenario B-3 consists of the facts set forth in paragraphs 2-8 and 17, supra, and the facts set forth in paragraphs 24 and 25, below. At or prior to the time of enrollment, each trainee is told in writing that "employment opportunities are available" to those who successfully complete the training program and pass the statutory background check and each trainee is given the opportunity to complete an employment application. Each trainee who successfully completes the training program, passes the statutory background check, and has completed an employment application, in fact, is offered employment with Compassionate Care as a home health aide. Factual scenario B-4 is the same as B-3, except that Compassionate Care offers employment as a home health aide to some, but not all, of the trainees who successfully complete the training program, pass the statutory background check, and complete an employment application. The parties stipulated that for the purposes of Set C, it is presumed that each trainee would be an "employee" or "prospective employee" within the meaning of Section 240.203(1), Florida Statutes. Further, the parties stipulated that the activities of the training program take place in Compassionate Care's principal place of business at 1600 Sarno Road, Suite 214, Melbourne, Florida. Set C is divided into four factual scenarios: C-1, C-2, C-3 , and C-4. Factual scenario C-1 consists of the facts set forth in paragraphs 2-8 and 27, supra, and the facts set forth in paragraphs 30 and 31, below. The activities of the training program take place during the normal business day while Compassionate Care is otherwise engaging in the business of being a licensed home health agency. The amount of the fee paid to Compassionate Care by trainees is calculated as the sum of the following factors: the actual cost to Compassionate Care of the books, workbooks, disposable medical supplies, and paper supplies provided to each trainee; each trainee's pro rata share of the salaries of training program instructors and of medical equipment rented exclusively for purposes or the training program; each trainee's pro rata share, based on hourly salary rate and hours spent teaching. Factual scenario C-2 is the same as C-1 except that additional cost factors are included in computing the amount of the fee paid by trainees. The additional factors include a portion of Compassionate Care's costs for rent and utilities. Factual scenario C-3 is the same as C-2, except that the training activities take place after the close of normal business hours of Compassionate Care's place of business at 1600 Sarno Road, Suite 214, Melbourne, Florida. Factual scenario C-4 is the same as C-2, except that the amount of the fee paid by the trainees represents a profit for Compassionate Care because it exceeds the sum of the cost factors addressed in factual scenarios C-1 and C-2.
