The Issue The issue in these cases is whether Respondent failed to provide appropriate emergency care for a nursing home resident in respiratory distress in violation of 42 Code of Federal Regulation (CFR) Section 483.25 and Florida Administrative Code Rule 59A-4.1288. (All references to rules are to rules promulgated in the Florida Administrative Code in effect as of the date of this Recommended Order.)
Findings Of Fact Petitioner is the state agency responsible for licensing and regulating nursing homes inside the State of Florida. Respondent operates a licensed nursing home at 830 West 29th Street, Orlando, Florida (the facility). Petitioner conducted a complaint survey of the facility on September 14, 2001. The survey cited the facility for a deficiency described in F309, and rated the deficiency with a scope and severity of "G" and Class II, respectively. The deficiency classifications authorized in Subsection 400.23(8) range from Class I through Class IV. Class I deficiencies are not relevant to this case. The statute defines the remaining classifications as follows: A Class II deficiency is a deficiency that the agency determines has compromised the resident's ability to maintain or reach his or her highest practicable physical, mental, and psychosocial well-being, as defined by an accurate and comprehensive resident assessment, plan of care, and provision of services. . . . A Class III deficiency is a deficiency that the agency determines will result in no more than minimal physical, mental or psychosocial discomfort to the resident or has the potential to compromise the resident's ability to maintain or reach his or her highest practicable physical, mental, or psychosocial well-being as defined. . . . A Class IV deficiency is a deficiency that the agency determines has the potential for causing no more than a minor negative impact on the resident. . . . Rule 59A-4.1288 requires nursing home facilities licensed by the state of Florida to adhere to federal regulations found in Section 483 of the Code of Federal Regulations (CFR). In relevant part, Rule 59A-4.1288 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. The "G" rating adopted by Petitioner for the scope and severity rating of the deficiency alleged in F309 is a rating authorized in relevant federal regulations. A "G" rating means that the alleged deficiency was isolated. Applicable state law authorizes Petitioner to change a facility's licensure rating from standard to conditional whenever Petitioner alleges that a Class II deficiency exists. Petitioner alleged in the survey report that a Class II deficiency existed at the facility and assigned a conditional rating to the facility's license. The conditional rating was effective September 14, 2001, and continued until substantial compliance was achieved. When Petitioner proves that a Class II deficiency exists, applicable law authorizes Petitioner to impose a civil money penalty. Petitioner filed an Administrative Complaint against Respondent seeking to impose a fine of $2,500.00 and subsequently filed an Amended Administrative Complaint. The allegations on which both the change in license status to a conditional license and the proposed fine are based are set forth in F309. The deficiency alleged in F309 is set forth on CMS Form 2567, entitled "Statement of Deficiencies and Plan of Correction" (the 2567). The 2567 that Petitioner used to charge Respondent with the deficiency described in F309 involved only one resident. In order to protect this resident's privacy, the 2567, F309, the Transcript, and all pleadings refer to the resident as Resident 1. F309 alleges that the facility failed to satisfy the requirement of 42 C.F.R. Section 483.25. In relevant part, the federal regulation provides: Each resident must receive and the facility must provide the necessary care and services to attain or maintain the highest practicable physical, mental, or psychosocial well-being, in accordance with the comprehensive assessment and plan of care. Use F309 for quality of care deficiencies not covered by 483.25(a)-(m). F309 alleges that the facility failed to satisfy the requirement of 42 CFR Section 483.25 because: Based on interview and record review the facility neglected to provide appropriate emergency care for [Resident 1] in respiratory distress and failure. Petitioner promulgates an officially stated policy in written guidelines entitled the State Operations Manual (the Manual). The Manual states agency policy regarding the interpretation and application of the regulatory standards surveyors must enforce. The facility admitted Resident 1 to the pediatric long-term care unit on November 20, 2000. The admitting diagnosis was cerebral palsy, pneumonia and convulsions, a tracheostomy, and a gastrostomy. Resident 1 could breathe on her own and was being weaned from the trach. She could breathe through her nose at times. She was not on a ventilator but could breathe room air. At all times, Resident 1 was making respiratory effort. Resident 1 was on an apnea monitor. Resident 1 had three stomas. Stomas are the openings for the tracheostomy tube. Her throat structures were very frail. She had received numerous throat reconstructions. She had significant scar tissue and a granuloma at her stoma sites. A granuloma is a tumor-like growth. The granuloma was vascular, and the blood vessels were easily broken. Resident 1 was spastic as a result of her cerebral palsy. On September 7, 2001, at 2:50 a.m., Resident 1's apnea monitor alarm sounded. Staff immediately responded to find that Resident 1 had pulled out her tracheostomy tube and was bleeding profusely. Facility staff called 911 and notified the treating physician and the parents. An ambulance was dispatched to the facility at 2:51 a.m. on September 7, 2001. While awaiting the ambulance, the Registered Nurse on duty (RN) could not detect an apical or radial pulse. The RN did not administer CPR. Rather, the RN established an airway by successfully replacing the tracheostomy tube. Securing a patent airway was the first thing that the RN should have done for Resident 1 under the circumstances. No oxygen can be given without a patent airway. It was difficult for the RN to visualize the trach opening because of the profuse bleeding. The RN was able to tactilely reinsert the tube. Vital signs taken by the RN showed that Resident 1 was alive when EMT personnel arrived on the scene. CPR is not appropriate when vital signs are present. The ambulance and EMT personnel arrived shortly after the RN reinserted the trach tube. At 2:56 a.m., EMT personnel took over the care of Resident 1. EMT personnel worked on Resident 1 for 23 minutes before transporting her to the hospital. Resident 1 died at the hospital at 3:35 a.m., 38 minutes after the EMTs took responsibility for her care. EMT personnel generated EKG strips indicating that Resident 1's heart was beating at some point after they took over. Two sets of x-rays subsequently taken at the hospital substantiate that Resident 1 was alive when EMT personnel took over her care. EMT personnel removed the trach the nurse had inserted and replaced it with an endotracheal tube. Removing the trach eliminated the airway that the RN had established for Resident 1 before EMT personnel arrived. The endotracheal tube was 22 centimeters long and significantly longer and larger than the regular trach tube used for Resident 1. The physician's order for Resident 1 stated that nothing should go past 6 centimeters into Resident 1's trach. It took the EMTs three attempts to get the endotracheal tube placed. The EMTs should have hyperventilated Resident 1 before placing the endotracheal tube. They did not do so. The x-ray taken at 3:42 a.m. in the hospital, shows that the endotracheal tube was improperly positioned in Resident 1's lung. All steps taken by the RN were appropriate for Resident 1 under the circumstances. Petitioner failed to show a nexus between any act or omission by the facility and the harm to Resident 1. The care plan for Resident 1 called for suctioning of her tracheal tube. Care plans are to be followed under normal circumstances. Emergency procedures take precedence in critical situations. Suctioning for Resident 1 was appropriate under normal circumstances when she had a patent airway. If Resident 1 did not have an airway, the first priority is to establish an airway. The RN first established a patent airway for Resident 1. It would have been inappropriate for the RN to suction Resident 1 before establishing an airway because it would have sucked out the air remaining in Resident 1's lungs. Suctioning also could have caused a vasovagal response that could stop the heart and could have caused tissue damage. After the RN opened an airway for Resident 1, the next priority would have been for the RN to check for vital signs. The RN checked Resident 1's vital signs after opening an airway, and the vital signs showed that Resident 1 was alive when EMT personnel arrived on the scene. The presence of vital signs made it inappropriate for either the RN or EMT personnel to administer CPR. CPR is appropriate only in the absence of vital signs. When EMT personnel arrived, they continued the same procedure that the RN had followed. EMT first established an airway by removing the trach tube used by the RN and replaced it with an endotracheal tube. The resident had vital signs after placement of the trach and CPR was inappropriate. F282 relates to failure to implement a care plan. Respondent was not cited under F282. Petitioner stipulated in the Prehearing Stipulation that both the conditional license and fine were based on F309 alone.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent not guilty of the allegations in F309 and the Administrative Complaint, dismissing the Administrative Complaint, and changing Respondent's conditional license to a standard license effective September 4, 2001. DONE AND ENTERED this 6th day of September, 2002, in Tallahassee, Leon County, 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 6th day of September, 2002. COPIES FURNISHED: Michael P. Sasso, Esquire Agency for Health Care Administration 525 Mirror Lake Drive, Room 3106 St. Petersburg, Florida 33701 Karen L. Goldsmith, Esquire Goldsmith, Grout & Lewis, P.A. Post Office Box 2011 2180 Park Avenue, North Suite 100 Winter Park, Florida 32790-2011 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 William Roberts, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building Three, Suite 3431 Tallahassee, Florida 32308 Rhonda M. Medows, M.D., Secretary Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building Three, Suite 3116 Tallahassee, Florida 32308
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
The Issue Whether the Respondent committed the violations alleged in the Administrative Complaint dated May 28, 2000, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department is the state agency charged with regulating nursing home administrators licensed by the Board of Nursing Home Administrators to practice in Florida. Chapters 455 and 468, Florida Statutes (1997). AHCA is the state agency charged with licensing and regulating nursing homes in Florida. Chapter 400, Florida Statutes (1997). Among its duties, AHCA is required to inspect nursing homes every 15 months "to determine compliance by the licensee with statutes, and with rules promulgated under the provisions of those statutes, governing minimum standards of construction, quality and adequacy of care, and rights of residents." Section 400.19(2), Florida Statutes (1997). Recertification surveys are conducted each 9-to-15 months, are unannounced, and are conducted for both federal certification and Florida nursing home rating and licensure purposes. The surveys are conducted by a team of surveyors each of whom must pass an examination entitled the Surveyor's Minimum Qualification Test before being allowed to participate as an independent member of a survey team. At all times material to this proceeding, Ms. DePonte was a Florida-licensed nursing home administrator, having been licensed in Florida for a period in excess of 28 years. Ms. DePonte's license has never been suspended, revoked, or otherwise sanctioned. Ms. DePonte was employed as the Executive Director/Administrator of Darcy Hall of Life Care ("Darcy Hall") in West Palm Beach, Florida, from July 1989 until September 4, 1998. Darcy Hall is a 220-bed nursing home that was built in 1960 as a 160-bed nursing home; 60 beds were added in 1972, making Darcy Hall one of the oldest and largest nursing homes in Palm Beach County, Florida. Darcy Hall received superior ratings from AHCA for six of the nine years Ms. DePonte was the Executive Director/Administrator, and Darcy Hall received a deficiency-free recertification survey in 1996, during Ms. DePonte's tenure. From July 20 through 24, 1998, an unannounced recertification survey was conducted at Darcy Hall. The survey team identified a number of deficiencies, which deficiencies were itemized in the survey report, commonly referred to as a "Form 2567."4 In an action unrelated to the present proceeding, Darcy Hall challenged the results of the survey, and that challenge was resolved through a settlement agreement.5 The following were observed by the surveyors who inspected Darcy Hall during the July 1998 recertification survey: Call lights were "out of reach" of several residents when the rooms in one wing of the facility were inspected in the pre-dawn hours of July 23, 1998. A totally dependent middle-aged person with multiple schlerosis could not use the pneumatic call light she had been given, because it was not in her hand but was close to her arm, where she was unable to reach it. The nurses' station was located too far away from the resident's room for the resident to be heard at the station if she needed help. An elderly female resident was sitting in a wheelchair outside the facility, about one-half hour after lunch. The resident was in the garden area, close to the nurse's station. The resident, who could understand but not express herself, had lost control of her bladder. A totally dependent resident whose nose was draining was sitting in a wheelchair, with the call light, tissues, and water out of reach. An elderly resident was wearing clothing with what appeared to be burn marks from a cigarette on the front. Dust had accumulated on the filter of an oxygen concentrator. Ceiling tiles were missing from several areas in the facility; some of the rooms contained chipped furniture; a baseboard under an air conditioner was loose; a ceiling tile in a bathroom had a brownish stain; and dust had accumulated in the corners of a bathroom. A geri-chair6 had peeling tape and a black-brown stain on the seat, which the surveyor attributed to a resident becoming incontinent at some point. Approximately 50 ants were found in and around an empty juice cup sitting on a bedside table. Two treatment carts were stained with dried liquid and had an accumulation of debris in the crevices. Hand cranks were protruding from the foot of several beds. Prescription medications were found in the bedside table of one resident; zinc oxide was found on the top of the bedside table of another resident; and a bottle of Caladryl was found on top of the bedside table of a third resident. No physician's orders for these medications were found in the residents' clinical records. A cup left sitting on a bedside table in a room whose residents were cognitively impaired contained a white, thick, creamy ointment. A supply room containing pump sets with pins, syringes, tubing, catheter tips, and special nutritional supplements was found unlocked at approximately 9:00 a.m. on July 22, 1998. During a two-hour period one morning, a nurse dispensed medications to residents by opening the medication and putting the medicine in her bare hands before placing it into a cup and handing it to the resident. The temperature in the medication storage refrigerator was six degrees below the minimum acceptable temperature. The staff member washing pots in the facility's three pot sink obtained from the chemical storeroom a gallon jug of what he thought was dish sanitizer; the chemical was actually Sysco Fry and Grill Cleaner. The fry and grill cleaner was used in the sink in place of sanitizer from 9:00 a.m. on July 22, 1998, until approximately 1:00 p.m. that day, when the error was discovered by a surveyor. All of the pots, pans, and cooking and storage wares were re-washed and sanitized. The residents were monitored for 24 hours, and only one resident had intestinal distress, the source of which was undetermined. During the time that all of the pots and pans were being re-washed and sanitized, a cook washed a pot so that she could begin cooking the soup for the evening meal. She failed to sanitize the pot. Cold food on the tray line in the dining room was not maintained at 41 degrees Fahrenheit or below; applesauce was at 51 degrees, pear halves were at 66.2 degrees, whole milk was at 55.5 degrees, chocolate milk was at 42.8 degrees, and cranberry juice was at 55.2 degrees. All of the items noted in paragraph 7 were identified in the Form 2567 as Class III deficiencies, except for the deficiencies cited regarding the incontinent resident who was sitting outside in the garden area after lunch and the resident who was wearing clothing with cigarette burns on the front, which were designated Class II deficiencies. A Class II deficiency is one that the agency determines has "a direct or immediate relationship to the health, safety, or security of the nursing home facility residents." Section 400.23(9)(b), Florida Statutes (1997). A Class III deficiency is one that the agency determines has "an indirect or potential relationship to the health, safety, or security of the nursing home facility residents." Section 400.23(9)(b), Florida Statutes (1997). As the Executive Director/Administrator of Darcy Hall, Ms. DePonte was responsible for overseeing all operations of the facility, for hiring and firing employees, and for ensuring compliance with all government regulations. At the time of the survey, Darcy Hall employed a dietician, a dietary technician, and a certified dietary manager on staff, who were responsible for running the dietary department. A trained head of maintenance and environmental services, who supervised several full-time employees, and a head of housekeeping services were on staff. Darcy Hall employed two social workers, who were supervised by a director of social services. Darcy Hall was also staffed with a full complement of trained registered nurses, licensed nurses, and certified nurse assistants, who were supervised by a Director of Nursing and Assistant Director of Nursing. It was Ms. DePonte's practice at Darcy Hall not to use nurses provided on a temporary basis by a registry, and all of the nurses employed at Darcy Hall during her time there were employees of the facility. Darcy Hall had written policies and procedures governing the operation of the facility, which were kept both in Ms. DePonte's office and at each unit on the floor. Darcy Hall employed a full-time in-service training coordinator, and Ms. DePonte arranged for outside consultants to conduct in-service training seminars for the staff. Ms. DePonte also made sure that the staff was apprised of any changes in state law and regulations. In-service training was also scheduled whenever Ms. DePonte became aware of an on-going problem. Ms. DePonte personally monitored the facility regularly. Each morning, the first thing she did was visit each nurses' station to determine the staffing levels for the day. She stopped and spoke with residents and family members in the hall, and she entered some of the residents' rooms. She spoke daily with the professional staff of the dietary department and checked with housekeeping and maintenance to make sure there was adequate staff. She also would let the maintenance department know of any problems she found during her morning rounds and would follow up each day to make sure the problems had been corrected. Each afternoon, around 3:30 p.m. or 4:00 p.m., after the change of shift, Ms. DePonte would again visit each nurses' station to follow-up on any issues that had arisen during the day. In addition to personally monitoring the floor twice each day, Ms. DePonte assigned responsibility for monitoring a particular area of the facility to each department head. The department heads were expected to go through their assigned areas at least twice a day to make sure, among other things, that the residents' needs were being met, that call bells were answered timely, that call bells were within reach of residents, and that bed cranks were underneath the beds. Any maintenance problems were also noted. Any problems observed by the department heads were to be reported. Ms. DePonte's policy was to see that problems were addressed within 24 hours. It was the policy at Darcy Hall to discipline staff members who were observed violating an established policy or procedure in accordance with the three-point disciplinary program in place at Darcy Hall. Ms. DePonte had in place at Darcy Hall policies and procedures implementing the requirement that call lights be accessible to residents. The policy required that call lights be positioned within reach of the residents when they were in bed, and the staff was trained to place the call light in accordance with the policy. In addition, Ms. DePonte had every wheelchair equipped with a bell so that the resident could ring the bell if the resident needed help and the call light was out of reach, and there were call lights in all of the residents' bathrooms. As Ms. DePonte made her rounds, she would check the rooms of certain residents to make sure their call lights were accessible. It is not, however, possible to ensure that call lights are within arm's reach of each resident at all times. Ms. DePonte had in place policies and procedures at Darcy Hall regarding the need for staff to recognize and respect the dignity of its residents. Staff training was on-going, and the staff were continually made aware of the residents' rights. Darcy Hall had in place policies and procedures regarding the placement of hand cranks for the residents' beds that required that the staff put away any bed crank they saw sticking out from a bed. Protruding hand cranks were on-going problems because often residents and/or family members would adjust the beds and fail to remove the cranks and place them under the beds. A cleaning schedule was in place for oxygen concentrators and other equipment used in the facility, and cleaning was to be done on a routine basis. Darcy Hall had an on-going program to replace old and worn materials and equipment. Some of the equipment was stained but this did not mean the equipment was not clean. Pursuant to the policy and procedure in place at Darcy Hall during Ms. DePonte's tenure as administrator, nurses were not allowed to dispense medications by placing the pills into their bare hands prior to giving them to residents. Much of the chipped furniture noted in the Form 2567 was furniture belonging to the residents and not furniture owned by Darcy Hall. Because Darcy Hall is an older facility, much needed to be done to maintain the facility. The number of ceiling tiles that were stained constituted a very small percentage of the total number of ceiling tiles in the facility, and ceiling tiles were missing in some places because a new roof was being installed. The baseboard that was coming apart from the wall was located behind an air conditioning unit that was being repaired at the time of the survey. Replacement of ceiling tiles and baseboards was on-going at Darcy Hall. Darcy Hall had a regular extermination service and, if insects were found in the facility, the exterminator would be called immediately and would take care of the problem. The deficiencies identified in the Form 2567 prepared after the July 1998 recertification survey were corrected by September 1, 1998, the time specified by AHCA in the Form 2567. Ms. DePonte left Darcy Hall on September 4, 1998, to take a job as administrator at another nursing home. The evidence presented by the Department is not sufficient to establish with the requisite degree of certainty that the "deficiencies" at Darcy Hall identified by its witnesses in this proceeding were attributable to the negligence, incompetence, or misconduct of Ms. DePonte.7 The position reiterated by the Department's witnesses is that a nursing home administrator is strictly liable for all deficiencies cited on a Form 2567 and that her license is subject to discipline simply because deficiencies were found. The Department has failed to present evidence to establish with the requisite degree of certainty any lack of competence, misconduct, or act or omission on Ms. DePonte's part that caused the deficiencies. Indeed, the Department did not controvert the evidence presented by Ms. DePonte that there were policies and procedures governing the day-to-day operation of Darcy Hall in place, that in-service training was provided to the staff with respect to the policies and procedures on a regular and an as- needed basis, or that Ms. DePonte and her department heads regularly monitored the performance of the staff and their adherence to the policies and procedures.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Nursing Home Administrators, enter a final order dismissing the Administrative Complaint against Eugenia DePonte. DONE AND ENTERED this 30th day of November, 2000, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 30th day of November, 2000.
Findings Of Fact Respondent Edward Grant Markley is and at all material times has been licensed as a real estate broker, Florida license numbers 0268896 and 0530864. The Respondent's most recent licensure was as a broker for Harris Real Estate and Associates, Inc., t/a C-21 Harris Real Estate and Associates, Inc., 6945 103rd Street, Jacksonville, Florida 32210 and Harris Real Estate and Associates, Inc. of Orange Park, 2346 Kingsley Avenue, Orange Park, Florida 32073. From a date uncertain in 1987 to July of 1988, Respondent was the licensed nursing home administrator at Holly Point Manor in Orange Park, Florida. By letter dated August 22, 1988, Respondent was advised that, based upon a complaint, an investigation was being undertaken related to his licensure as administrator of the Holly Point Manor nursing home. The Respondent applied for licensure as a real estate salesman on October 5, 1988. Question 14(a) of the application reads "[h]as any license, registration, or permit to practice any regulated profession, occupation, or vocation been revoked, annulled or suspended in this or any other state...upon grounds of fraudulent or dishonest dealing or violations of law, or is any proceeding now pending?" In response to the question, Respondent wrote "see attached". Petitioner's files contain the application but do not contain the attachment. Respondent did not retain a copy of the attachment. Respondent testified that in the attachment he disclosed the investigation related to his licensure as a nursing home administrator. There is no evidence contradicting his testimony. The Respondent's real estate salesman's license was issued effective December 30, 1988. On July 2, 1991, an Administrative Complaint was filed by the Department of Professional Regulation against the Respondent alleging failure to assure competent nursing management, staffing, and care in the referenced nursing home. Following an informal hearing, which left the matter unresolved, the Department of Professional Regulation, on December 18, 1990, filed an Amended Administrative Complaint specifically alleging that an investigation in July of 1988 revealed medical neglect and inadequate supervision and care of patients in the facility. On January 23, 1991, the Respondent executed a voluntary relinquishment of license. The executed document states that the Respondent entered into the agreement "[t]o avoid the necessity of further administrative proceedings in this case" and that the licensure was relinquished "with the provision that Respondent agrees never again to apply for licensure as a nursing home administrator in the State of Florida." At the time the license was relinquished, Respondent was no longer associated with or employed in the nursing home industry. He does not intend to re-enter the industry, and was therefore amenable to relinquishing his license. On February 18, 1991, the Florida Board of Nursing Home Administrators, Florida Department of Professional Regulation, issued a Final Order in which tie Board found "that all the allegations in the Administrative Complaint are accepted and Respondent may voluntary (sic) relinquish his license. " There is no evidence which indicates that the Respondent failed to cooperate in the nursing home investigation or in the instant matter. There is no evidence that Respondent has been unable or unwilling to appropriately discharge his responsibilities as a real estate salesman or broker.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Professional Regulation, Division of Real Estate, enter a Final Order taking no action against the licensure of Edward Grant Markley as a real estate broker. DONE and ENTERED this 28th day of August, 1991, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 1991.
The Issue The basic issue in this case is whether the Petitioner, Laurence Arthur Baird, is entitled to be licensed by endorsement as a Nursing Home Administrator.
Findings Of Fact On March 3, 1993, the Petitioner, Laurence Arthur Baird, filed his application for licensure by endorsement to sit for the Nursing Home Administrators examination and subsequently to be licensed as a Nursing Home Administrator by the Board of Nursing Home Administrators. The application was complete and was timely filed. The appropriate fee was paid. Mr. Baird holds current active licenses to practice as a Nursing Home Administrator in Georgia and Illinois. Mr. Baird has a high school diploma. In addition, Mr. Baird completed over four semesters at Milliken University. He has also secured additional hours at Jacksonville University, has received CLEP credit in five course areas, and has secured a number of continuing education hours in areas relative to nursing home administration. He has spent over 600 hours in continuing education since his initial licensure. He also passed the GMAT examination which is a prerequisite to admission to many M.B.A. programs. The University of Alabama considered Mr. Baird's undergraduate career, his CLEP scores, his GMAT score, and his life experiences and concluded that Mr. Baird was qualified for graduate studies in its M.B.A. program. Mr. Baird completed 42 hours toward an M.B.A. degree. Mr. Baird has formal education in the following areas: Nursing Home Administration; including planning, organization, operations and services, resource development, supervision of staff, and control and evaluation of facility performance. Personnel Management; including managing people for the specific needs of the long-term care facility, recruitment and selection, orientation, training and development of employees, development of employee appraisal programs, communications, wage and salary administration, union procedures and employee-management relations, discipline and morale. Accounting and Financial Management; including basic accounting, adjustment of accounts, preparation of financial statements, financial management planning, effective use of resources, financial performance evaluation, cost analysis, reimbursement from the United States Department of Health and Human Services under Medicare and Medicaid, and budgeting. Social Gerontology; including biology of aging, psychology of aging, changing social roles of aging, personal adjustment to aging, programs for health improvement and rehabilitation, financial aspects of aging, retirement, independency and dependency of aging persons, societal disengagement, impact of living arrangements and interaction between the needs of the institution and the needs of the patients. Mr. Baird has practiced as a Nursing Home Administrator since 1970. Mr. Baird has attained many years of experience in all of the areas mentioned immediately above. A review of Mr. Baird's work experience includes the following details: In 1970 Mr. Baird participated in and fully completed an AIT program. He then became assistant administrator at a facility in Decatur, Georgia. From 1970 to 1972 he was administrator of a 102-bed facility in Champaign, Illinois. From 1972 to 1977 Mr. Baird was administrator of a 165-bed facility. During that time the company built a second 65-bed facility and Mr. Baird oversaw both. From 1977 to 1988 Mr. Baird was administrator of a 209-bed facility. In 1979 Mr. Baird purchased a 65-bed facility and, until its sale in 1987, oversaw both of them. In 1988, Mr. Baird took the position of Director of Operations at Pruitt Corporation. Initially, he was responsible for the operation of 17 nursing home facilities. He was promoted to Vice President of Operations and, later, to Senior Vice President of Operations. At the time he left Pruitt, he was responsible for 30 facilities. He resigned from Pruitt to move his family to Florida to take a position at Beacon Pointe in Sunrise. During the last five years he was with Pruitt, he acted in the capacity of administrator for at least two years. Mr. Baird has distinguished himself as a Nursing Home Administrator by being nominated for Nursing Home Administrator of the year in 1976 in Georgia and by winning the equivalent award in Alabama in 1984. For five years Mr. Baird served on a board in the State of Alabama which advised the state on nursing home licensure matters. He chaired that board for one year. He also served three years on a Georgia advisory board on Medicaid. Mr. Baird is a member of the American Academy of Nursing Home Administrators. He has been certified as an administrator by that body, after passing a rigorous two-day examination. He served as the regional governor of the American Academy of Nursing Home Administrators. Mr. Baird has successfully completed a national examination which is substantially equivalent to the examination given by the department. Mr. Baird has worked as a fully licensed Nursing Home Administrator for two years within the five year period immediately preceding the application by endorsement. The Board's Order of Denial filed on July 9, 1993, included the following pertinent language: The Board of Nursing Home Administrators reviewed and considered your application for licensure by endorsement on May 14, 1993, in Miami, Florida and has determined that said licensure be denied, stating as grounds therefore: Your application and supporting documentation do not evidence that the licensure requirements for Georgia or Illinois are substantially equivalent to those in Florida. In the State of Georgia the rules and regulations governing qualifications for licensure as a Nursing Home Administrator include the following: 393-3-.01 Pre-Examination Requirements. Amended. A person who seeks licensure by examination as a nursing home administrator must show the following: be at least 21 years of age; be of reputable and responsible character; and meet one of the following education and experience requirements: Have earned a master's degree in Nursing Home Administration, in Health Care Administration or in a related health care administration field from an accredited institution of higher learning. If the master's degree did not include an Administrator-In-Training (AIT) program as provided in Rule 393-4-.04, the applicant must either have completed an AIT program as provided in Chapter 393-4 or the applicant must have attained two years of employment working in a nursing facility. Have earned a baccalaureate degree from an accredited institution of higher learning and have completed AIT program as provided in Chapter 393-4; or earned a baccalaureate degree from an accredited institution of higher learning and have attained two years of employment working in a nursing facility. With less than a baccalaureate degree, the applicant must have either: 3 years of college plus 2 years of full time work experience; 2 years of college plus 4 years of full time work experience; 1 year of college plus 6 years of full time work experience; or a High School Diploma or GED certificate plus 8 years of full time work experience; provided that: One year of college means 45 quarter hours or 24 semester hours of course work at an accredited institution of higher learning; and Full time work experience means a minimum of 35 hours per week in a licensed nursing facility. In the State of Illinois the statutory provisions governing qualifications for licensure as a Nursing Home Administrator include the following: 70/8. Qualifications Sec. 8. A person is qualified to receive a license as a nursing home administrator: (a) who is at least 21 years of age, (b) who has not engaged in conduct or behavior determined to be grounds for discipline under this Act, (c) who is in sound physical and mental health, (d) who is a citizen of the United States or lawfully admitted alien, (e) who is a graduate of a college or university deemed reputable and in good standing by the Department, or who has satisfactorily completed a course of instruction approved by the Department containing subjects embracing the laws governing the operation of nursing homes, the protection of the health and safety of patients in nursing homes and the elements of sound nursing home administration, or who presents evidence to the Department of education, training and experience deemed by the Department to be equivalent of either of the above, (f) who passes a written examination conducted by the Department to determine his fitness to receive a license as a nursing home administrator and (g) who pays the required fee. The Illinois Administrative Code includes the following requirements at Section 1310.30(a)(2) regarding the contents of applications for licensure as a Nursing Home Administrator: (a) An applicant for a license as a nursing home administrator shall file an application on forms supplied by the Department . . . together with: (1) *** Certified records of any one of the following: Graduation from an accredited college or university with the minimum of a Baccalaureate Degree; Satisfactory completion of an approved course of instruction in nursing home administration as outlined in Section 1310.40; or Graduation from an accredited college or university with the minimum of an Associate Degree and an Employer's Affidavit certifying to the applicant's qualifying experience as described in Section 1310.50. The types of courses that may be approved for satisfaction of the requirements of Section 1310.30(a)(2)(B), above, are described as follows at Section 1310.40 of the Illinois Administrative Code: The Department, upon the recommendation of the Nursing Home Administrators Licensing Board, shall approve courses of instruction in nursing home administration which include instruction in the following areas: Nursing Home Administration; including planning, organization, operations and services, resource development, supervision of staff, and control and evaluation of facility performance. Personnel Management; including managing people for the specific needs of the long- term care facility, recruitment and selection, orientation, training and development of employees, development of employee appraisal programs, communications, wage and salary administration, union procedures and employee-management relations, discipline and morale. Accounting and Financial Management; including basic accounting, adjustment of accounts, preparation of financial statements, financial management planning, effective use of resources, financial performance evaluation, cost analysis, reimbursement from the United States Department of Health and Human Services under Medicare and Medicaid, and budgeting. Social Gerontology; including biology of aging, psychology of aging, changing social roles of aging, personal adjustment to aging, programs for health improvement and rehabilitation, financial aspects of aging, retirement, independency and dependency of aging persons, societal disengagement, impact of living arrangements and interaction between the needs of the institution of [sic] the needs of the patients. The types of qualifying experience that will satisfy the experience requirements of Section 1310.30(a)(2)(C) are described as follows in Section 1310.50 of the Illinois Administrative Code: Qualifying experience for applicants . . . shall include: One year of full time employment as a nursing home administrator in a licensed nursing home or two years of full time employment as an assistant nursing home administrator in a licensed nursing home with 50 or more beds. Experience as a nursing home administrator or as the assistant nursing home administrator must have been completed within the 36 months immediately preceding date of application. Full time employment as an administrator of a related facility for two years or more. Related facilities include hospitals with long term care beds or other licensed long-term care facilities not having nursing care beds licensed by the Illinois Department of Public Health. Experience as an assistant administrator in such a facility shall not qualify.
Recommendation Based on all of the foregoing, it is RECOMMENDED that the Board of Nursing Home Administrators issue a Final Order in this case concluded that the Petitioner is not entitled to licensure by endorsement as a Nursing Home Administrator. DONE AND ENTERED this 8th day of November 1993 in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 8th day of November 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-4844 The following are the Hearing Officer's specific rulings on all proposed findings of fact submitted by all parties. Proposed findings submitted by Petitioner: Paragraph 1: Accepted. Paragraph 2: Rejected as consisting primarily of subordinate and unnecessary background and procedural details. Paragraph 3: Accepted. Paragraph 4: Accepted in substance with the exception of the portion reading "which gave him more than the requisite number of hours necessary to secure an A.A. Degree." The quoted portion is rejected as irrelevant in the absence of evidence that the Petitioner's courses at Milliken satisfied the subject matter requirements for an Associate of Arts degree. Paragraphs 5 through 12: Accepted in substance with the exception of a few repetitious observations. Proposed findings submitted by Respondent: All of the proposed findings of fact submitted by the Respondent have been accepted in whole or in substantial part. COPIES FURNISHED: Karen L. Goldsmith, Esquire Goldsmith & Grout, P.A. 2709 West Fairbanks Avenue Post Office Box 2011 Winter Park, Florida 32790-2011 Arthur R. Wiedinger, Esquire Assistant Attorney General Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Anna Polk, Executive Director Board of Nursing Home Administrators Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0777 Jack McRay, Acting General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue [Case No. 79-2407] Whether the Department is entitled to reimbursement of certain Medicaid funds previously paid to a nursing home owner in the amount of $118,061.00, based upon a recommendation by the Department and subsequent determination by the U.S. Department of Health, Education and Welfare, under Section 1122, Social Security Act, that Federal reimbursement of expenses attributable to the purchase of the nursing home should be withheld due to the Owner's lack of timely notice of intent to acquire the nursing home; [Case No. 80-467] Whether, based on the Section 1122 determination, the Department wrongfully disallowed and withheld payment to the nursing home owner, certain medicaid reimbursement funds in the amount of $101,348.00. Conclusions and Recommendation: Conclusions: Here, each party has the burden of presenting a preponderance of evidence in support of its affirmative claim. Each claim rests on the propriety or impropriety of imposition of Section 1122 penalties against the nursing home. Since the Department failed to present sufficient evidence justifying the imposition of Section 1122 penalties and the nursing home failed to establish the Section 1122 penalties were erroneously imposed, neither party sustained its burden of establishing entitlement to the relief requested. Recommendation: That the Department's Medicaid overpayment claim against the nursing home owner, in the amount of $118,061.00 be DENIED, and the nursing home owner's claim against the Department for $101.348.00 in Medicaid underpayments be DENIED. Background: On April 26, 1979, and May 2, 1979, Petitioner/Respondent, Department of Health and Rehabilitative Services ("Department") notified Respondent/Petitioners, Lakeview Nursing Home, Robert Becht and R. B. Care, Inc., d/b/a Lakeview Manor and d/b/a Intercoastal Nursing Manor ("Owner") that a desk review of the annual cost report for the Lakeview Nursing Home (a/k/a Lakeview Manor) indicated that the nursing home had been overpaid $18,900.00 by the Department's Medicaid Program during the eight months, ending June 30, 1978, and that such overpayment should be returned to the Department. On October 8, 1979, the Department notified the nursing home Owner that, pursuant to a "Notice of Determination Under Section 1122" issued by the U.S. Department of Health, Education and Welfare ("HEW") the Department had recalculated the nursing home's historic per diem rates and determined that the Owner had been overpaid $61,155.00 in Medicaid funds during the period ending June 30, 1978. On November 19, 1979, the nursing home Owner requested a formal hearing, under Section 120.57(1), Florida Statutes, to challenge the validity of the Department's overpayment claim. On November 30, 1979, the Department forwarded the Owner's request for a hearing to the Division of Administrative Hearings. [DOAH Case No. 79-2407] On January 10, 1980, the Department notified the nursing home Owner that an additional $56,906.00 should be repaid to the State of Florida--based upon alleged overpayment to the nursing home during the period ending June 30, 1979. On February 14, 1980, the nursing home Owner filed a Petition with the Department alleging numerous wrongful and negligent Department actions resulting in the withholding and underpayment of Medicaid funds to which the nursing home was entitled, demanding full payment, and requesting a formal Section 120.57 hearing. On March 12, 1980, the Department forwarded the nursing home Owner's Petition to the Division of Administrative Hearings for assignment of a Hearing Officer. [DOAH Case No. 80-467] By Notice of Hearing, dated April 11, 1980, Case No. 80-467 was set for final hearing on May 29, 1980. By agreement of the parties, the two cases were subsequently consolidated for final hearing. At final hearing, the Department called John T. Donaldson, and offered Respondent's Exhibit Nos. 1 through 9, into evidence, each of which was received. The nursing home Owner called as its witnesses, William McCaulley, Leonard Cordes, and Linda Zarecki, and offered Petitioner's Exhibit Nos. 5, (Composite) and 6, each of which was received. At the request of the nursing home, and without objection by the Department, official recognition was taken of Rule 10C-7.48(6)(c), Florida Administrative Code. The nursing home further stipulated that the only allegations which it would pursue in the administrative hearing concerned whether the Department wrongfully withheld from the nursing home certain Medicaid funds to which its was entitled. Neither party submitted post-hearing proposed Findings of Fact or Conclusions of Law.
Findings Of Fact Pursuant to an agreement with HEW, the Department administers the Medicaid Program within Florida which includes allocation and payment of Medicaid funds to nursing homes which provide health care to patients qualifying for Medicaid benefits. (Testimony of Donaldson, Petitioners Exhibit 5; Respondent's Exhibit 9) On November 1, 1977, Robert Becht, on behalf of R. B. Care, Inc. ("Owner") purchased a nursing care facility located at 208 Lakeview Avenue, West Palm Beach, Florida, known as Intercoastal Nursing Manor. No evidence was presented to establish the purchase price paid for the facility. Subsequent to its purchase, the name of the nursing home was changed to Lakeview Manor, although Department correspondence frequently refers to it as Lakeview Nursing Home. (Testimony of Donaldson, McCaulley, Respondent's Exhibits 1, 2, 5, 9 [Composite]) On January 9, 1978, a representative of the Regional Health Care Planning Agency--Health Planning Council, Inc.--advised the Department's Bureau of Community Medical Facilities of an apparent change in ownership of the Intercoastal Nursing Home, noted that the new owner had not "sought, applied for, or received the necessary Certificate of Need for this change of ownership transaction," and asked for Department assistance in determining the present status of the nursing facility. (Testimony of Donaldson, Respondent's Exhibit 1) In response to the Health Planning Council's letter, the Department's Office of Medical Facilities sent a letter to the Nursing Home Owner, dated January 26, 1978. That letter enclosed Department rules which provided that, when certain expenditures have been incurred by a health care facility without prior notice of such expenditure being given to the designated planning agency (Office of Medical Facilities), that agency should notify the health care facility that such obligation was subject to review, that timely notice of the proposed expenditure was not given, and that the Agency proposed to recommend to the Secretary of HEW that the expenditure be disapproved. The nursing home was given 30 days to reply, or file the necessary application for approval of the expenditure (acquisition of the nursing home). The letter closed with the following: "You should understand that we must report the purchase of Intercoastal Nursing Manor to the Department of Health, Education and Welfare on a no timely notice and that it may affect depreciation, interest, and fair returns on the project and reimbursement on the project." (Respondent's Exhibit 2) By letter dated March 22, 1978 (with copy to the nursing home Owner), the Department's Office of Community Medical Facilities subsequently informed the regional office of HEW that notice had been given the nursing home Owner concerning the need to file an application for review of the November 1, 1977, acquisition of and change in ownership of the nursing home, but that it had failed to respond. The recommendation of the Office of Community Medical Facilities was attached to the transmittal letter; however, that recommendation was not offered into evidence by the Department. The letter of transmittal concluded that, because no application for approval was submitted by the nursing home Owner, there was "no indication on the HRA-45 of the amount of capital expended for the acquisition." (Respondent's Exhibit 3) During April, 1978, the Regional Health Administrator of HEW issued a "Notice of Determination under Section 1122--Reimbursement to be Excluded." The Notice was addressed to the nursing home Owner and concluded that reimbursement for expenses related to the capital expenditure (acquisition of the nursing home facility) would be excluded from payment for services provided under the Social Security Act based upon the finding that (1) the expenditure was subject to Section 1122, and (2) Notice of Intent to make the expenditure had not timely been given. By way of explanation, the regional administrator added that reimbursement would be "withheld for an indefinite period" because the State had been unable to make a finding that the expenditure conformed to applicable plans, standards, and criteria due to the failure to submit an application. (Respondent's Exhibit 4) By separate agreements entered into by the Department and the nursing home Owner on November 2, 1977, October 30, 1978, and September 5, 1979 (which enabled the nursing home to participate in Florida's Medicaid Program) the nursing home Owner expressly agreed to comply with state and federal laws and rules applicable to the Medicaid Program. The Owner also agreed that Medicaid cost reporting would be governed by the procedures and methods contained in the Medicare Provider Reimbursement Manual (HIM-15). The agreements relieve the nursing home from responsibility in "those instances of overpayment due to Agency [Department] errors in eligibility investigation and determination. . ." (Respondent's Exhibit 9 [Composite]) Section 2422 of HIM-15 describes the requirements concerning approval of capital expenditures imposed by Section 1122 of the Social Security Act. The Manual cautions providers desiring to make or having made expenditures subject to Section 1122 to familiarize themselves with the regulations and direct questions concerning its implementation to the designated planning agency. (Respondent's Exhibit 8) Notwithstanding having been sent repeated notices by the Department and HEW concerning the requirements of Section 1122, the nursing home Owner has not filed an application for approval of the capital expenditure associated with acquisition of the nursing home; neither has it contended that such capital expenditure does not fall within the ambit of Section 1122 and implementing HEW and Department rules. (Testimony of McCaulley, Donaldson) Despite the Department's withholding and disallowal of payment to the nursing home of expenses relating to the acquisition of the facility (due to the federal Section 1122 determination), the nursing home continued to qualify for and participate in the Medicaid Program. The nursing home provided efficient and satisfactory medical care to Medicaid patients during 1978, and 1979, and the Department does not assert otherwise. The three Medicaid participation agreements entered into during 1977, 1978, and 1979, do not directly address or purport to relieve health care facilities from compliance with Department rules and Section 1122. (Testimony of Donaldson, McCaulley, Respondent's Exhibit 9 [Composite]) It is probable that the nursing home received actual notice of the requirement that certain capital expenditures by health care facilities must receive Section 1122 approval. Although the nursing home Owner's secretary since June, 1978, does not recall receiving the HEW Section 1122 Notice, she was not employed by the nursing home during the time the notice was issued, and she admitted that she could not testify that the owner had not received the HEW Notice. Moreover, her testimony did not address the earlier Department correspondence to the Owner concerning the need to obtain State and Federal Section 1122 approval, including the Department's Section 1122 recommendation to HEW. (Testimony of Zarecki, Donaldson, Respondent's Exhibits 2, 3, 4, 5, 6) Between 1977 and 1979, the Department overpaid the nursing home $118,061.00 (which includes the $18,900.00 claimed by the Department in its May 2, 1979, letter) in per diem patient reimbursements which the nursing home was not entitled to under the Section 1122 Notice and Penalty. This overpayment was caused by the Department's failure to exclude that portion of per diem patient reimbursements attributable to the Owner's acquisition of the nursing home property. (Testimony of Donaldson, Respondent's Exhibits 5 and 7) If the Section 1122 penalty was incorrectly recommended by the Department, and imposed by the HEW, the Department has withheld between November 1, 1977, and December 31, 1979, $101,348.00 which is now due and owing to the nursing home Owner. (Testimony of McCaulley, Petitioner's Exhibit 6) Since January 2, 1979, the Owner has no longer owned or operated the nursing home in question. (Testimony of McCaulley, Cordes)
The Issue Whether petitioner is entitled to be reimbursed by respondent six hundred twenty dollars and thirty-six cents ($620.36) for intermediate nursing care provided to one John W. Bernard during the period July 1 to July 27, 1983?
Findings Of Fact Some time in 1980 Mr. Bernard entered petitioner's facility for intermediate nursing care, in order to recuperate from amputation of his leg. He made satisfactory progress, and the utilization review committee eventually recommended his transfer to an adult congregate living facility. On May 11, 1982, respondent's Medicaid Services Unit mailed a notice, received by the petitioner the following day, to the effect that Mr. Bernard would no longer be eligible for intermediate nursing care under the Medicaid program, effective May 22, 1982. Another office within the Department of Health and Rehabilitative Services (HRS), the office from which social workers are deployed (HRS-SRS), also received a copy of the notice. Mr. Bernard who is legally competent, and HRS' payments office also got copies. On or about May 12, 1983, as soon as she saw the notice, Ms. M. L. Croft, petitioners administrator, telephoned HRS' payment office. She did not understand that payment for Mr. Bernard's nursing care would be cut off as a result of the notice. HRS-SRS got a telephone call from petitioner on June 22, 1982, requesting assistance in relocating Mr. Bernard. Ms. Sue Henderson, the HRS-SRS supervisor, asked Ms. Velma L. Murphy, a social worker in respondent's employ, to handle the matter; and Ms. Murphy visited Bay Convalescent Center and spoke to Mr. Bernard on June 22, 1982, after checking with the Hiland Park Retirement Home, an adult congregate living facility in the same general vicinity, and learning of a vacancy there. Mr. Bernard did not want to make the move, but Ms. Murphy asked him to consider it, and left. Some time later, Ms. Murphy got word that somebody at petitioner's had called and said that a friend of Mr. Bernard's had asked for a hearing on the change in his status. Ms. Murphy telephoned the nursing home herself and was told the same thing. In fact, however, there never was any appeal of Mr. Bernard's change of care status. On another visit to the nursing home, in July, Ms. Murphy was asked by Ms. Croft to help make arrangements to transfer Mr. Bernard and made plans to effect the move before the end of the month. When she learned, on July 27, 1982, that petitioner was no longer being paid for Mr. Bernard's care, she arranged for his transfer that day to an adult congregate living facility. On July 26, 1982, Linda Dorman, a public assistance eligibility specialist II in respondent's employ, had come across a copy of Mr. Bernard's change of status notice in the course of processing rate changes for Bay Convalescent Center. From her examination of the statement of institutional services submitted by petitioner, she could see that petitioner was billing for services rendered to Mr. Bernard, so she notified petitioner that no additional moneys would be paid to petitioner by HRS on account of Mr. Bernard; and that payment already made on his account for the period from June 21 to June 30, 1982 had been inadvertant.
Recommendation It is, accordingly, RECOMMENDED: That respondent reimburse petitioner for Mr. Bernard's care for 36 days at the rate in force at the time for adult congregate living facilities, less what petitioner has already received on account of care rendered to Mr. Bernard June 22 to June 30, 1982, inclusive. DONE and ENTERED this 20th day of June, 1983, in Tallahassee, Florida. ROBERT T. BENTON, II 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 20th day of June, 1983. COPIES FURNISHED: Michael C. Overstreet, Esquire 229 McKenzie Avenue Panama City, Florida 32401 John Pearce, Esquire 2639 North Monroe Street Tallahassee, Florida 32301 David Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I make the following relevant factual findings. Petitioner, Stacey Health Care Centers, Inc., is licensed to operate Riverside Care Center, located at 899 Northwest Fourth Street, Miami, Florida, as a nursing home in compliance with Chapter 400, Part I, Florida Statutes, and Chapter 10D-29, Florida Administrative Code. On July 9, 1986, James A. Bavetta, assistant area supervisor, Office of Licensure and Certification, made a visit of Riverside's facility and determined that Ralph Stacey, Jr., the administrator of record, was acting in the capacity of administrator for two facilities, the subject facility and another facility in Kentucky, without having a qualified assistant administrator to act in his absence. (Respondent's Exhibit 1) Ralph L. Stacey Jr., is a licensed nursing home administrator in the States of Ohio, Kentucky and Florida. He has been licensed in Kentucky and Florida since 1974. At the time of Mr. Bavetta's visit and inspection during July, 1986, Ralph Stacey, Jr., was in Cincinnati, Ohio preparing the payroll for Stacey Health Care Centers. During this time period, Ralph Stacey, Jr., served as the administrator for the subject facility, Riverside Care Center, and another facility in Kentucky and did not have a qualified assistant administrator employed to act in his absence. However, once Mr. Bavetta issued his recommendation for sanctions, Petitioner, as part of its plan of correction, has employed a licensed administrator who is presently on staff and serves as Riverside's assistant administrator during the administrator's absence.
Recommendation Based on the foregoing findings of fact and conclusions of lawn it is RECOMMENDED: The Department of Health and Rehabilitative Services enter a Final Order imposing an administrative fine in the amount of One Thousand Dollars ($1,000.00) upon Stacey Health Care Centers- Inc., d/b/a Riverside Care Center, which amount shall be payable to Respondent within thirty (30) days after entry of Respondent's Final Order. RECOMMENDED this 18th day of September, 1987, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of September, 1987. COPIES FURNISHED: Kenneth S. Handmaker, Esquire MIDDLETON & REUTLINGER 2500 Brown & Williamson Tower Louisville, KY 40202-3410 Leonard T. Helfand, Esquire Office of Licensure and Certification Department of Health and Rehabilitative Services 5190 Northwest 167th Street Miami, Florida 33014 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 R. S. Power, Esquire Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard -Building One, Room 407 Tallahassee, Florida 32399-0700
The Issue Whether the named Respondent is guilty of an unlawful employment practice to wit: race, religion, national origin, and retaliation.
Findings Of Fact Petitioner is a Pakistani citizen, female, and a practicing Muslim. Petitioner came to the United States in July 2003, and was employed by Alachua Nursing and Rehabilitation Center, a nursing home. As a practicing Muslim, Petitioner wore her traditional Pakistani robes to work on Fridays so that she could go to her mosque in her off-duty hours. At some point, Carl Young, a white male American, was hired as administrator of the facility. Petitioner's unrefuted testimony was that, at various times, Mr. Young said to her, "Oh, I hope you're not a terrorist"; "I'll kill you"; and "Shut up." On one occasion, Mr. Young told her about her robes, "You look like a terrorist. You have to stop wearing that." In March 2004, Steve Strawn, whom Petitioner believed to be one of the people buying the nursing home, told Petitioner she should make an application for employment to the purchasing entity or she could not stay employed after May 1, 2004. Petitioner claims Steve Strawn and Shelby Parker, whom Petitioner also believed to be buying the nursing home, took over the nursing home on February 1, 2004, but she had no solid information to corroborate that belief. The after-filed authorization for Ms. Bennett's representation of Respondent in this proceeding shows Ms. Shelby Parker as the "Director" of "The Manor at Gainesville." Petitioner claimed to have made her new employment application before May 1, 2004, but she had no copy of her application to put in evidence, and it is not clear to what corporate entity she applied. On or about March 29, 2004, Petitioner filed an internal grievance against Mr. Young. At Mr. Strawn's instruction, Petitioner was interviewed by third parties concerning her complaint. (See Finding of Fact 11.) On April 6, 2004, Integrity Health Care Systems, Inc., wrote Global Compliance Services concerning its investigation of Petitioner's foregoing allegations against Mr. Young. There is no competent evidence to explain the relationship of either of these entities to the Alachua Nursing and Rehabilitation Center or to The Manor at Gainesville. It appears that Petitioner did not provide the page of this exhibit (P-1), giving a final conclusion of the Integrity Health Care investigators, but most of their report points to Mr. Young's "shut up" incident being the only allegation of Petitioner against Mr. Young corroborated by the investigators. At some point, Mr. Young told Petitioner that there had been a complaint of abuse against her by three patients and he was putting her on leave. The Department of Children and Family Services investigated this complaint and returned a report that no indicators of abuse by Petitioner could be found. Petitioner testified, without refutation, that Mr. Young allowed her to return to work, and when she returned to work, on April 13, 2004, he fired her because she had complained against him to management. Petitioner certainly has not worked at the nursing home since May 1, 2004 and probably not since April 13, 2004. Alachua Nursing and Rehabilitation Center was renamed The Manor at Gainesville, effective May 1, 2004. Ms. Bennett did not know what corporate entity initially appointed Carl Young administrator or what corporate entity he worked for from February to May 2004. She did not know if he had been appointed under a Bankruptcy Court Order. She was unsure whether Mr. Young had worked for The Manor at Gainesville after May 1, 2004. Respondent offered Exhibit R-1, an Allocation Agreement, to which Petitioner objected. The exhibit is clearly hearsay (an out-of-court statement offered for the truth of its contents). It was considered here only pursuant to Section 120.57(1)(c), Florida Statutes, to explain or supplement other evidence. The Allocation Agreement was entered in facilitation of a transfer of property on or about May 1, 2004, between Healthcare Properties, Inc., a Florida S-corporation (Purchaser), The Manor at Gainesville, Inc., a Florida S Corporation (Lessee), and Marshall Preston Sweeney, an individual as court-appointed receiver. It states: Effective as of the Transfer Date, Lessee, at its sole discretion, may hire any or none of the former Nursing Home employees ("Employees") who complete a job application. Neither Purchaser nor Lessee shall be responsible for the Employees' accrued wages, salaries, sick leave, vacation time, and other benefits that have accrued and are due to the Employees as of 11:59 p.m. on the day immediately preceding the Transfer Date. Neither Purchaser nor Lessee shall be responsible for any claims, liabilities, losses, damages, demands, causes of action, suits (whether actual, pending, threatened, or suspected) or liability costs or expenses of any kind relating to any and all Employees and/or employment matters including, without limitation, Employee claims, employment discrimination, harassment, back pay, accrued time off, qui-tam issues, garnishments, and COBRA issues, or any other Employee or employment issues (herein referred to as "Employment Issues") that occurred or accrued prior to the Transfer Date. Neither Purchaser nor Lessee shall have any responsibility for any Employment Issues arising for such Employment Issues occurring on or after the Transfer Date for its own employees. Receiver shall identify all actual, pending, threatened, or suspected Employment Issues in the attached Schedule 2. No pending threatened or suspected employment issues are identified in the document. The document recites that due to failure to meet debts, a foreclosure resulted in the Purchaser tendering the highest and best bid on the Alachua Nursing and Rehabilitation Center nursing home property, and that the Purchaser will take title to the real property, lease the nursing home, and hold the state nursing home license. The Allocation Agreement was signed by Steve Strawn, as President of Healthcare Properties, Inc., Purchaser. Mr. Strawn also signed as President of the Lessee, The Manor at Gainesville, Inc. Marshall Preston Sweeney, the receiver, also signed the Allocation Agreement.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED: that the Florida Commission on Human Relations enter a final order dismissing Petitioner's Charge of Discrimination and Petition for Relief. DONE AND ENTERED this 10th day of May, 2005, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 10th day of May, 2005. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Noreen Abrar 309 Southwest 16th Avenue, No. 157 Gainesville, Florida 32601 Angi R. Hill Kimnie Bennett The Manor At Gainesville, Inc. 1000 Southwest 16th Avenue Gainesville, Florida 32601
