Findings Of Fact On July 30, 1981, Petitioner filed an application with the Health Systems Agency of Northeast Florida, Area III, Inc. for a Certificate of Need to construct an enclosure on the fifth floor of the south wing of Petitioner's hospital. The purpose of that enclosure was in contemplation of future available bed space at a time when need for those beds had been documented and approved by the local health system's agency. (Petitioner's Composite Exhibit No. 2) In response to a request for further information which was made by the Executive Director of the local health system's agency, Rudolph Nudo, Director of Engineering for the Petitioner, answered that inquiry in writing by correspondence dated September 24, 1981. (Petitioner's Exhibit No. 3) Through the course of that correspondence Nudo indicated that the temporary use of the fifth floor would be for storage, and the fifth floor would be used in a permanent way for storage and expansion of the hospital's wellness and physical fitness programs should a determination be made in the future that additional beds are not needed in the review area of the local HSA. On November 23, 1981 the local HSA wrote to advise Herbert E. Straughn, Medical Facilities Consultant, Community Medical Facilities for Respondent, that the Northeast Florida Area III Health Systems Agency was recommending the denial of the proposed Certificate of Need. That correspondence had as an attachment the legal notices publicizing the public hearing related to the project, staff briefing memoranda and papers involved in the review process. (Respondent's Exhibits 4 through 4d) On January 27, 1982, Thomas J. Conrad, Administrator, Community Medical Facilities of the Office of Health Planning and Development, Department of Health and Rehabilitative Services, wrote to Charles Vadakin, President-General Manager of Petitioner, to advise Petitioner that the request for a Certificate of Need was being denied. (Petitioner's Exhibit 4) This indication of denial had as an attachment the State agency action report. (Petitioner's Exhibit No. 5) On February 5, 1982, in keeping with Subsection 120.57(1), Florida Statutes, Petitioner requested a formal hearing to consider its entitlement to be granted a Certificate of Need to "shell-in" the fifth floor at its facility. On February 17, 1982, the Division of Administrative Hearings received Respondent's request that the Division conduct the formal hearing. That hearing de novo was held on April 8 and 9, 1982. The evidence presented in the course of the hearing addressed the question of whether the proposal for construction by the applicant meets the criteria established in Section 381.494(6)(c), Florida Statutes and Rule 10- 5.11, Florida Administrative Code, in particular Rule 10-5.11(1),(3),(4),(6) and (12), Florida Administrative Code. (Those other criteria set forth in Rule 10- 5.11, Florida Administrative Code, have satisfactorily been addressed by the application process or are inapplicable in terms of the subject matter of the given criteria.) Evidence presented also dealt with the subject of whether this Certificate of Need could be granted due to extenuating and mitigating circumstances which exist, notwithstanding the applicant's failure to successfully meet the criteria discussed above. Memorial Hospital of Jacksonville is an acute general care hospital with a 309 bed capacity. The hospital is located in Jacksonville, Duval County, Florida. Petitioner has been granted Certificates of Need allowing the construction of an educational floor, perinatal center on a second floor and the third and fourth floors above those. The third and fourth floors would house an additional thirty-four beds, bringing the total bed count in the hospital to 343 beds. The construction is referred to as the south wing and is depicted at a certain point in the construction through Petitioner's Exhibit 1, a photograph of the area of construction. Memorial's present request for a Certificate of Need would allow the construction of an additional floor, or fifth floor, above the, four floors that have been granted. Memorial Hospital provides critical care, to include trauma cases treated in its emergency room and open heart surgery. In addition, there is a cardiac catheterization laboratory and other general cardiac care, an intensive care unit, a perinatal (birthing) center and other hospital services. The fifth floor, if constructed, would not immediately contain additional beds and would be left with interior partition walls and would be used for storage space in the interim period prior to the grant of any further beds to the Petitioner. The construction on the south wing which had been approved has its origins in Certificates of Need which were the topic of separate applications filed in 1979 and 1980. Specifically, in November, 1979, Memorial filed separate applications for its educational floor, first floor, in the amount of $2,991,000.00 and at the same time, an application for a perinatal unit, second floor, in the amount of $4,352,000.00. The applications were granted in 1980 in the amounts requested. At a later date in 1980, Petitioner filed a separate application for three additional stories; floors three, four and five, and for 106 additional beds, all in the cost amount of $10,656,000.00. This request came about at approximately the same time as a request by St. Luke's Hospital in Jacksonville, Florida, to move its hospital operations to an area in the vicinity of Memorial Hospital. Memorial and St. Luke's, together with the local HSA, resolved the problem of the competing certificate requests by entering into a stipulation and agreement in 1981. By the terms of that agreement, Memorial limited its expansion to two floors instead of three, leaving floors three and four intact. It reduced its bed request from 106 to 34 additional new beds to be installed on one of the two additional floors, with the second additional floor receiving 34 beds from another part of the hospital which was not subject to the Certificate of Need. The second set of beds would be gained by the process of converting existing semi-private rooms to private rooms. Petitioner also agreed not to apply for additional beds until at least six months after the perinatal unit and 34 new medical/surgical beds had been opened. St. Luke's reduced its number of obstetric beds by 20 and it agreed that it would not "shell-in" space for additional beds in its proposed facility. The results of the agreement caused the abandonment by Memorial of its fifth floor request and the reduction of bed requests by 72 beds. The new terms are set out in Certificate of Need No. 1488 pertaining to floors three and four. The project costs were left as originally requested, and that monetary amount was granted. The agreement reached between the local HSA, Petitioner and St. Luke's was premised upon extenuating and mitigating circumstances, especially the possibility of the cost of protracted litigation had the parties not come to an agreement. Following the stipulation and agreement with the local HSA and St. Luke's Hospital, the Petitioner filed the present request for Certificate. The general purpose of that project has been discussed before. The rationalization on the subject of consistency of the project with the local Health Systems' plan and the local annual implementation plan was as follows: The proposed enclosure project is consistent with Health Systems' plan and annual implementation plan for 1980, in that it provides a mechanism for assuring available health care resources at the lowest possible cost consistent with quality service delivery. The proposal guarantees no additional beds will be added until approved by the Health Systems Agency and yet safeguards the most effective option of maximizing current capital investment dollars. This project will allow Memorial Hospital to continue to meet the area's acute health care needs for the next ten years. The project contemplates the expenditure of $1,200,000.00 for cost of construction of "shell-in" space. Need for the subject project was discussed in terms of a reference to "Certificate of Need #1488" which is that Certificate relating to floors three and four of the south wing. The Certificate of Need No. 1488 was based upon an application which included a study concluded in August, 1980, which set forth primary and secondary service areas, census tracts and preliminary 1980 Federal census figures for Duval County gathered by the "Research Department, Florida Publishing Company" and a document to the effect that Memorial had a firm market position, and that health care consumerism was emerging and that there was a strong consumer loyalty-to Memorial. The present application was reviewed by the local Health Agency and the Health Needs and Priorities Committee voted to recommend denial of the proposed project; its Executive Committee also recommended denial of the project. During this review cycle, concerns were expressed about the application in view of the 1981 agreement with St. Luke's and the local HSA in which Memorial agreed not to apply for additional beds for at least six months after the 34 beds which had been approved were in operation. While the present application does not violate the terms of that agreement, it does allow for a large portion of the capital expenditure, i.e., that part devoted to the construction of the "shell-in" of the floor to be achieved and thereby allows for a portion of the capital expenditure related to future beds to be approved. With St. Luke's relocation to south Jacksonville, some time in late 1984 or early 1985, and with the addition of Memorial's construction program that has been approved, 323 beds will be added to the south side area of Duval County in the next few years. In the local HSA staff's opinion, which opinion is accurate, from a community planning basis, there will not be a demonstrated community need for additional beds in the south side any sooner than 1985 and it is more likely that there would be no further bed need before 1990. The local HSA is also concerned that the project would set a precedent for future "shell-in" applications. This concern is borne out by interviews conducted through staff members of that HSA which revealed that seven hospital administrators planned major construction projects in the HSA area, and six administrators indicated that they would ask for "shell-in" space if they thought it would be approved. In specific terms, the local HSA recommended disapproval of the project and did so by written findings alluded to before. In summary, those findings indicated: The Health System's Plan did not address expansion projects which do not directly result in an increase in licensed beds or service but the primary purpose of the fifth floor would be for bed spaces. The Health System's Plan called for a regional rate of 4.3 beds per 1,000 population. Excluding Nemour's Children and St. Johns River Hospital, there were approximately 4.1 beds on the south side and beaches area of Jacksonville. When St. Luke's Hospital (289 beds) relocates to the south side and Memorial opens its 34 new beds, the rate will be approximately 5.2 beds per 1,000 population in 1985. In 1990 the estimated rate would be 5.0 beds per 1,000 population. It was HSA's staff's opinion that there will not be a need on a community planning basis to approve more beds for the south side until the 1990s. The local HSA also indicated that Memorial could be more effective in its specialization. Its recommendation in that regard was that after the current construction of four stories had been completed, Memorial could still have the capability to add additional licensed beds within its presently approved structures, even though it would mean reducing the ratio of private beds to semi-private beds. Specifically, it was recommended by the HSA that: Petitioner reconvert the 34 rooms previously used for semi-private back to semi-private --34 beds Modify the 34 private rooms on the third floor of the new building to semi-private, and --34 beds Modify the 34 private rooms on the fourth floor of the new building to semi-private. --34 beds TOTAL 102 beds These observations and findings are correct, except as they relate to modification of rooms on the third and fourth floors of the new construction. The above-stated suggestion by the local HSA related to the modification to semi-private rooms on the third and fourth floors of the south wing would not comport with the design specifications of those beds as now contemplated by Memorial, in that the private rooms contemplated on those floors did not provide sufficient space to be modified into semi-private rooms. Analysis by HRS adopted and confirmed the majority of the analysis by the local Health Planning Agency. HRS also pointed out in its analysis, and the HRS analysis is accurate, that in view of the fact of excess bed capacity in the planning area through 1985, the adding of potential beds would give Petitioner an undue advantage over facilities should the fifth floor be constructed as "shell-in" space. Furthermore, according to Respondent, construction economies to be realized by Memorial Hospital can only be recognized as legitimate, if there is a community need for the project. Based upon the analysis conducted by Respondent, the project from a community-wide standpoint, under the terms of Section 381.493, Florida Statutes, there is an excess of 238 hospital beds in Duval County through 1985, and possibly into early 1990. Respondent having in mind the bed need situation, concluded that the proposed project was not consistent with bed need standards at the time of review or in the planning future and that the community need to add "shell-in" bed space did not exist absent a recognized bed need, which would not occur before 1985. All of these comments by HRS are correct accounts. It was also concluded by Respondent that there were alternatives for converting private bedrooms to semi-private rooms, increasing capacity without major construction. This is a true understanding of the circumstances except as it relates to the third and fourth floors in the new construction. Based upon the overall analysis, the project application was denied. The conditions at Memorial Hospital are such that it would benefit from an expansion to add a fifth floor at the south wing. Those benefits pertain to the availability of storage and administrative space. The occupancy rate for patients in the hospital during the last year have averaged approximately 90 percent (Petitioner's Exhibit 16), causing both emergency and planned health care services to be delayed due to overcrowding. Federal, State and HSA guidelines call for 80 percent occupancy of nonfederal, short-term care beds, such as provided by Petitioner. There is a need for administrative office space. At the present time some administrative offices are placed in lobbies and hallways and the files for those offices are located in hallways. Intravenous solutions are stored in hallways at present. Testimony by the hospital engineer established a need of 15,000 square feet of space to accommodate storage problems more comfortably. The application seeks 17,500 square feet of space. The alternatives to the construction of the fifth floor related to future bed need and short and long-term storage space would be to forego the expansion, construct the project at a future date, or construct a new building. Construction at a later date could cost as much as an additional $7,000,000.00, constituted of approximately $813,000.00 in construction cost and $6,000,000.00 in loss of gross revenue. These costs are related to completion of the "shell-in" structure after the initial four floors had been completed and assumes loss of revenue related to beds in the third and fourth floors of the hospital, which floors would have to be closed during the construction of the fifth floor at a subsequent time. Construction costs at the present, as set forth in Petitioner's Exhibit No. 3, at the last sentence of the first page, is estimated to be $.31 per-patient day. There is precedent for granting the "shell-in" space as may be found in Petitioner's Exhibits Nos. 8, 9, and 10, related to projects in the Florida Gulf Health Systems Agency, Inc. area of responsibility. Respectively, those projects refer to Women's Hospital in Tampa, Florida; St. Joseph's Hospital in Tampa, Florida; and L. W. Blake Memorial Hospital in Bradenton, Florida. In the situation of Women's Hospital, Respondent allowed the construction by installation of necessary structural equipment and fixtures needed to establish 34 single occupancy rooms as double occupancy rooms as a hedge against construction costs for any additional beds approved at a future date. St. Joseph's Hospital was allowed to construct two floors in which 45 beds had been requested, but only 36 beds were granted per floor, leaving additional "shell-in" space which would accommodate nine additional beds per floor, for a total of 18 beds. In the situation at Blake Memorial Hospital in Bradenton, Florida, that hospital was allowed to "shell-in" a fifth floor on condition that the structural framework would be completed and that the floor would be left in an unfinished state, that is to say, that the improvements necessary for the utilization of that fifth floor for patient rooms were not allowed to be added. In each instance in which some form of "shell-in" space was granted, the HSA area was overbeded at the time of the grant of certificate. The project is not consistent with the local health systems plan, annual implementation plan, and Florida State Health Systems Plan. (Petitioner's Exhibits 11 through 14 respectively)
The Issue The issues are whether Respondent is guilty of a class I violation, within the meaning of Subsection 400.23(8)(a), Florida Statutes (2003), for the alleged failure to provide either supervision of residents or assistance devices that were adequate to prevent accidents; whether Petitioner should have changed the status of Respondent's license from Standard to Conditional; whether Petitioner should impose a $10,000 administrative fine and a $6,000 survey fee; and whether Petitioner should place Respondent on an accelerated six-month survey cycle.
Findings Of Fact Petitioner is the state agency responsible for licensing and regulating nursing homes in Florida pursuant to Chapter 400, Florida Statutes (2003). Respondent is licensed to operate a nursing home located at 2916 Habana Way, Tampa, Florida (the facility). The facility is a four-story building. The event at issue occurred on the second floor of the facility. The second floor of the facility consists of a single, straight, east-west hallway with adjoining resident rooms, storage closets, a nursing station, a day room, and an elevator. An exit door is located at each end of the hallway. Each exit door leads into a stairwell. A small landing on the stairwell-side of each exit door provides a short, flat surface between the exit door and the first step of the stairwell. An undetermined number of steps lead to a landing in the stairway midway between the second and first floors. Each exit door is equipped with an alarm designed to activate when the door is opened and to de-activate when the door closes. When the door is opened and the alarm activates, staff who hear the alarm should redirect any resident that is near the exit door. On July 7, 2004, Respondent admitted a resident identified in the record as Resident 1 and assigned Resident 1 to the second floor of the facility. Resident 1 was cognitively impaired and had an unsteady gait. Facility staff provided a wheelchair that Resident 1 was able to self-propel. Facility staff assessed Resident 1 to be at risk for falls and developed a care plan. Pursuant to the care plan, staff provided a wheelchair alarm to notify staff in the event Resident 1 attempted to exit the wheelchair without assistance. Resident 1 was a potential risk to wheel herself through the exit doors on the second floor of the facility. However, Resident 1 was not a likely risk to exit the facility through the exit doors because Resident 1 had not previously demonstrated any exit-seeking or elopement behavior. It is undisputed that a likely risk of exit existed only if Resident 1 had previously engaged in exit-seeking behavior. Resident 1 had limited her behavior to wandering from room to room. On July 9, 2004, between 5 and 7 p.m., Resident 1 received her evening meal and a shower from a certified nursing assistant (CNA). The resident's daughter then visited for a brief period of time and left. Between 7:30 and 7:45 p.m., a nurse on duty saw Resident 1 in her wheelchair in the hallway, but Resident 1 was not exit-seeking or otherwise engaged in any unsafe behavior. Sometime between 7:45 and 8:00 p.m. on July 9, 2004, Resident 1 wheeled her chair to the exit door at the east end of the hallway, opened it, and entered the stairwell. Resident 1 fell down an undisclosed number of stairs and landed on the stairway landing between the second and first floor. At approximately 8 p.m. on July 9, 2004, a CNA entered the second floor from the elevator to pass out snacks to residents. The CNA heard the sound of a wheelchair alarm, traced the alarm to the landing in the stairwell, and found Resident 1 with the wheelchair on top of the resident. Resident 1 sustained a laceration of her forehead and suffered head, neck, and back pain. Facility staff transferred Resident 1 to a hospital where she received stitches to close the laceration. Resident 1 did not return to the facility. Respondent notified Petitioner of the incident involving Resident 1, and Petitioner sent a surveyor to investigate the incident on July 16, 2004. Upon completion of the investigation, Petitioner charged Respondent with a violation of 42 CFR Section 483.25(h)(2). The federal standard requires nursing homes to provide "adequate supervision and assistance devices to prevent accidents." The federal standard is made applicable to nursing homes in Florida, including Respondent, pursuant to Florida Administrative Code Rule 59A-4.1288. The parties identified the alleged deficiency in the record as Tag F324 because the survey report identifies the alleged deficiency as Tag F324. Tag F324 alleges that Respondent violated two conjunctive requirements. First, Respondent allegedly failed to provide adequate supervision to prevent accidents. Second, Respondent allegedly failed to provide adequate assistance devices to prevent accidents. It is undisputed that applicable law does not impose absolute or strict liability on Respondent for the accident involving Resident 1. Petitioner has cited no law similar to the "but for" test in tort law to support a finding that Resident 1 could not have suffered injury "but for" the inadequate supervision of residents or inadequate assistance devices. For reasons stated in the Conclusions of Law, Petitioner must show by the applicable standard of proof that the event involving Resident 1 was reasonably foreseeable; that a specific intervention existed involving resident supervision or assistance devices; and that Respondent should have identified the intervention and could have provided the intervention to prevent the accident. The preponderance of evidence does not support a finding that the accident was reasonably foreseeable. It is undisputed that a foreseeable risk of Resident 1 exiting through one of the exit doors existed only if she had previously engaged in exit-seeking. Resident 1 had not previously exhibited any unsafe behaviors, including active exit-seeking. Her behavior had been limited to wandering from room to room. It was not reasonably foreseeable that Resident 1 would attempt to enter an exit door on her own. The evidence does not show whether the alarm on the exit door activated; or, if it did activate, whether staff members did not hear the alarm; or, if any member of the staff heard the alarm, the staff member ignored it or otherwise failed to respond to the alarm. Between 7:30 and 8:00 p.m., CNAs on the second floor routinely put residents to bed. When providing that care, CNAs close the door of each resident's room to assure privacy, thereby making it difficult to hear a door alarm. Between 7:45 and 8:00 p.m., the staff member in the nursing station was away from the station obtaining supplies from another location. A door alarm would be audible to a staff member in the nursing station or in the hallway between rooms. When facility staff conducted a random test of the door alarms during the investigation on July 16, 2004, the door alarms functioned properly, and staff members adequately responded to the alarms. The floor plan of the second floor precluded a staff member in the nursing station from viewing the east exit door without standing in the front of the nursing station at the hallway. The ratio of facility staff to residents on July 9, 2004, satisfied the minimum requirements for nursing homes. It is undisputed that the applicable standard required staff members who were on duty to check on Resident 1 once every two hours. The staff members on duty observed Resident 1 more frequently than every two hours between 6 p.m. and 8 p.m. on July 9, 2004. The preponderance of evidence is inadequate to support a finding that Tag F324 required facility staff to provide Resident 1 with supervision that was more frequent than staff provided on July 9, 2004. Resident 1 had not previously exhibited any exit-seeking behavior, and the incident on July 9, 2004, was not reasonably foreseeable. As Petitioner has stated in previous final orders, the quality of care regulations applicable to nursing homes do not require staff members to constantly monitor residents. See Beverly Enterprises-Florida, Inc. d/b/a Beverly Health and Rehabilitation Center – Rio Pinar v. Agency for Health Care Administration, DOAH Case No.97-2017, Final Order entered June 29, 1998. Petitioner did not provide any factual or legal basis to distinguish this proceeding from the policy that Petitioner has stated in previous final orders. It is undisputed that a hall monitor was a specific staffing intervention that existed and that Respondent could have identified and provided prior to the accident on July 9, 2004. However, a preponderance of the evidence does not support a finding that Respondent should have identified and provided a hall monitor prior to the accident. The evidence does not show that any of the residents on the second floor, including Resident 1, had previously exhibited any exit-seeking behavior, and the evidence did not support a finding that a hall monitor was required to prevent a reasonably foreseeable event. Petitioner did not show that Petitioner construed Tag F324 to require a hall monitor before the survey on July 16, 2004. Petitioner did not show that it charged Respondent in previous surveys with a deficiency for failure to provide a hall monitor in violation of Tag F324. Petitioner did not show prior inadequate supervision that may have supported a finding of inadequate supervision in this proceeding based on prior similar acts. Rather, the evidence showed that routine supervision in the existing physical floor plan of the second floor without a hall monitor had been effective for more than three years in preventing incidents or injuries in the stairwell. If such supervision were inadequate under Tag F324, notwithstanding the absence of incident or injury, it is reasonable to infer that Petitioner would have stated its agency interpretation of Tag F324 in previous surveys by charging Respondent with such a deficiency. Petitioner did not prove any previous deficiencies or prior similar acts in violation of Tag F324. It is undisputed that a keypad locking system for the exit doors on the second floor was a specific assistance device that Respondent could have provided to prevent the accident on July 9, 2004. However, a preponderance of evidence does not show that Respondent should have identified and provided a keypad system to prevent the accident involving Resident 1. The exit doors on the second floor were unlocked because the applicable fire code prohibited Respondent from locking the exit doors. It is undisputed that door alarms on unlocked exit doors do not prevent accidents, such as the one involving Resident 1, unless facility staff are immediately at hand to redirect an exit-seeking resident rather than inside resident rooms preparing residents for bed. If unlocked exit doors equipped with alarms were inadequate assistance devices under Tag F324, it is reasonable to infer that Petitioner would have stated its interpretation of Tag F324 in previous surveys by charging Respondent with such a deficiency. Petitioner did not prove any such previous deficiencies. The door alarms operated properly when facility staff tested the alarms during the survey. The fire code permitted use of a keypad system that unlocks each exit door on the second floor when a member of the staff enters an appropriate code on the keypad. However, Petitioner did not show that Petitioner interpreted Tag F324 to require a keypad system to prevent accidents prior to the survey conducted on July 16, 2004. If Petitioner had interpreted Tag F324 to require a keypad system prior to the survey, it is reasonable to infer that Petitioner would have cited Respondent in previous surveys for failure to provide adequate assistance devices to prevent accidents. Petitioner did not prove any such previous deficiencies. The preponderance of evidence does not support a finding that Petitioner should have changed Respondent's license rating from standard to conditional from July 16 until August 18, 2004. Prior to the surveyor's departure from the facility on July 16, 2004, Respondent assigned a hall monitor to the hallway to prevent any attempt by a resident to exit the second floor. Respondent provided hall monitors until Respondent subsequently installed a keypad system on the exit doors. Petitioner's surveyor testified that hall monitors were sufficient to comply with the requirements of Tag F324. Tag F324 did not require Respondent to provide a hall monitor between July 9 and 16, 2004. It is undisputed that a foreseeable risk of a resident exiting through one of the exit doors existed only if a resident had previously engaged in active exit-seeking. From July 9 until July 16, 2004, Resident 1 was no longer in the facility, and Petitioner did not prove any other resident in the facility that was actively exit- seeking or otherwise engaged in unsafe behavior between July 9 and 16, 2004. If Petitioner interpreted Tag F324 to require a hall monitor prior to July 16, 2004, it is reasonable to infer that Petitioner would have stated that policy in previous surveys by charging Respondent with a deficiency for failure to provide monitors. The preponderance of evidence does not support a finding that Respondent failed to adequately respond after the incident involving Resident 1. It is undisputed that Respondent's medical care of Resident 1 after the incident was adequate, as was the report to Petitioner. Between July 9 and July 16, 2004, the facility's Director of Nursing twice counseled staff on the 3 to 11 p.m. shift about the incident involving Resident 1 and the need for heightened awareness of the door alarms. On July 10, 2004, the facility administrator tested the staff's response to the alarms, and the response was adequate. During the survey on July 16, 2004, Petitioner's surveyor observed a timely response by staff to an unannounced activation of the door alarm. Respondent installed a keypad system in a timely manner. On July 12, 2004, Respondent scheduled a vendor to visit the facility to provide an estimate of cost for a keypad system. Respondent installed a keypad system after the survey and prior to the administrative hearing. Petitioner did not prove that Respondent was unreasonably slow to install the keypad system. If it were determined that Respondent violated one or more of the requirements in Tag F324, Petitioner did not prove Respondent is guilty of a class I deficiency. In order for a deficiency to be a class I deficiency, Petitioner must show that the deficiency "caused, or is likely to cause, serious injury, harm, impairment or death to a resident receiving care" within the meaning of Subsection 400.23(8)(a), Florida Statutes (2003). In relevant part, the statute requires Petitioner to prove that the alleged deficiency either caused serious harm or is likely to cause such harm. It is undisputed that the alleged deficiency did not cause serious harm to Resident 1. Petitioner's only witness testified that Resident 1 did not sustain serious harm and characterized the injuries to Resident 1 as "minimal." Moreover, Petitioner's witness did not rely on the injuries to Resident 1 to support the class I rating. Petitioner's witness opined during the hearing that the alleged deficiency was a class 1 deficiency because it was likely that another resident would enter the stairwell and suffer serious harm or death. The opinion of Petitioner's witness of the likelihood of serious harm or death is not supported by a preponderance of evidence. A likely risk of a resident exiting through one of the exit doors existed only if a resident had previously engaged in active exit-seeking. The evidence does not show any resident in the facility, other than Resident 1 on July 9, 2004, had demonstrated any exit-seeking behavior to support a finding that it was likely a resident would exit the facility through one of the exit doors. Resident 1, the only resident for which there was any evidence to support the opinion of Petitioner's witness, did not return to the facility after the incident. Respondent installed a hall monitor on July 16, 2004, and it is undisputed that this action was adequate to eliminate the likelihood of a resident exiting the facility. For reasons stated in the previous paragraph and paragraph 28, it was not likely that a resident would exit through the stairwell between July 10 and 16, 2004. If it were determined that a "potential" risk, rather than a likely risk, existed for a resident to exit the facility through the exit doors, a potential risk is inadequate to classify the deficiency as a class I deficiency. A deficiency with a "potential" to compromise a resident's well being is properly classified as a class III deficiency within the meaning of Subsection 400.23(8)(c), Florida Statutes (2003). Any such deficiency was not an uncorrected class III deficiency because the assignment of a hall monitor corrected any potential risk by the time of the survey.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner enter a final order finding Respondent not guilty of the violations charged in the Administrative Complaint; dismissing the proposed fine, fee, and accelerated survey cycle; and replacing the Conditional rating from July 16 through August 28, 2004, with a Standard rating. DONE AND ENTERED this 28th day of February, 2005, in Tallahassee, Leon County, Florida. S 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 28th day of February, 2005. COPIES FURNISHED: Gerald L. Pickett, Esquire Agency for Health Care Administration Sebring Building, Suite 330K 525 Mirror Lake Drive, North St. Petersburg, Florida 33701 Donna Holshouser Stinson, Esquire Broad and Cassel 215 South Monroe Street, Suite 400 Post Office Drawer 11300 Tallahassee, Florida 32302-1300 R. Davis Thomas, Jr. Broad and Cassel 215 South Monroe Street, Suite 400 Post Office Drawer 11300 Tallahassee, Florida 32302-1300 Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration Fort Knox Building, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308
The Issue Whether Respondent engaged in an unlawful employment practice with regard to Petitioner because of Petitioner's asserted disability.
Findings Of Fact At the time of the hearing, Ms. Hays was 36 years of age and was unemployed. During times pertinent she lived in Chattahoochee, Florida. The Hospital in Chattahoochee, Florida, is a large residential mental health facility operated under the auspices of the Department. The Hospital also administratively supports employees of the Agency for Persons with Disabilities. The Hospital is an employer as that term is defined in Subsection 760.02(7), and thus subject to the Florida Civil Rights Act of 1992. Ms. Hays, prior to her employment with the Hospital, worked for various employers in clerical and secretarial positions. She began working at the Hospital in 2000. She was employed in a temporary position in Unit 25 as a Clerk Typist Specialist. After two weeks on the job, she was moved to Unit 14 and worked as a Human Service Worker I. This was also a temporary position. In this latter position, she took care of elderly residents. She bathed them, fed them, and otherwise helped them with their daily needs. She also escorted them to off-campus appointments. She received a "Review and Performance Planning" document signed by her on June 19, 2000, which indicated that she was performing in a satisfactory manner. She was hired in a full-time position as a Human Service Worker I in August 2000 in Unit 31/32. In this position her duties included assisting nurses in the medical unit of the Hospital. A "Review and Performance Planning" document signed by Ms. Hays on January 30, 2001, stated that she achieved standards and included some complimentary remarks. In July 2001, she was moved to Unit 29 as a Human Service Worker I. Unit 29 is also known as the Mentally Retarded Defendant Program (MRDP) or MRDP 29. She received a "Review and Performance Planning" document that she signed on March 29, 2002. She received an overall evaluation of "3.81." A performance rating of "4" means that she consistently met and often exceeded expectations. A "5" is the highest rating one can obtain at the Hospital. Her next rating for the period March 2002 until July 2002, resulted in a grade of "4." During the period July 20, 2002, until March 1, 2003, she did not receive a rating because she was not working at the Hospital during the evaluation period. Nevertheless, Annette Bates, Ms. Hays' supervisor, noted that she was a good worker and an asset to MRDP 29. Ms. Hays was injured on November 27, 2001, while exiting the "big blue bus." She slipped on wet steps, and her lower back and neck impacted the steps. A physician, Dr. K. W. Richardson of Chattahoochee, reported that the injury sustained was a broken tail bone. He noted this in a "First Report of Injury or Illness" dated November 28, 2001. Ultimately the diagnosis was changed to two bulging disks. Pain medication was prescribed, but she never required surgery. Wages paid to her, by the Hospital, $751.63 bi-weekly, terminated on December 4, 2001. Subsequently, she was paid workers' compensation benefits. She was informed she could work, but could not lift more than ten pounds and could not have contact with patients. She was authorized to work only at a desk job. Ms. Hays returned to work at the Hospital on January 18, 2002. She was placed on light duty and assigned to the Medical Records Section at MRDP. She filed documents and did other tasks as assigned. Her supervisor was a Ms. Lawrence. On July 18, 2002, her light-duty status expired and because the Hospital could not accommodate her restrictions, she was sent home and provided workers' compensation benefits. She continued to receive workers' compensation benefits until December 2004, when she reached maximum medical improvement. In December 2004, she was contacted by Tracy Wallace and as a result, Ms. Hays met with Margaret Forehand. Ms. Forehand, at that time, was the Hospital's Workers' Compensation Coordinator. She told Ms. Hays that a position was available in MRDP, Unit 29, and invited her to apply for it. Ms. Hays completed a State of Florida Employment Application. She was thereafter employed as a "clerk typist specialist - F/C" at a salary rate of $754.24, which was, on a bi-weekly basis, $39.70 less than she was receiving before her injury. (The designation F/C means forensic corrections.) Ms. Hays' Letter of Acceptance, dated December 7, 2004, and accepted by Ms. Hays on December 7, 2004, informed her that her position was probationary for 12 months. The letter was written on Department stationery, but was signed by David English, Program Operations Administrator, who worked for the Agency for People with Disabilities. He has the ultimate hiring authority for the employees of MRDP. Although termed a "demotion," the lower pay was actually the result of Hospital policy that was applied to all employees who returned from an absence subsequent to being placed on workers' compensation. This job was not preceded by an interview. The person who became her supervisor, Shellie Owens, was not involved in Ms. Hays' hiring process. Ms. Hays' ultimate employer was the Department. Ms. Hays' duties as a "clerk typist specialist- F/C" included filing, typing, and answering and referring calls. She filed ward charts, "thinned charts," and ensured that ward charts and central files were maintained in accordance with Hospital policies, among other tasks. Her duties were set forth in a "Career Service System Position Description." Her section was denoted "MRDP." She was physically able to perform these duties without an accommodation. Her daily work was not in the least affected by any injury or disability. The evidence indicates that both Ms. Hays and Ms. Owens' ultimate employer was the Agency for Persons with Disabilities. Ms. Owens was aware that Ms. Hays had been on workers' compensation for a time. Ms. Owens knew that Ms. Hays could not lift more than ten pounds and was aware that the job did not require lifting more than ten pounds. No evidence was adduced indicating that Ms. Owens perceived Ms. Hays as disabled. Because entries are frequently entered in patients' ward charts, they would grow quite large if not managed. It is necessary for some of the information to permanently remain in ward charts, but a substantial portion may be stored elsewhere. The portions of the charts that are not required to remain in the ward are permanently stored in the Medical Records Office. The process of removing designated matter from the ward charts is called "thinning." Thinning was an important part of Ms. Hays' job. She had to "thin" in accordance with a schedule. Some documents would be left in ward charts for three months, some would be kept if they were only the most recent of a type, and some were kept as long as needed. Some were permanent and, therefore, never removed. It was important also, as part of the process, that Ms. Hays ensure that documents in ward charts were arranged in the proper order. For the rating period December 7, 2004, until March 1, 2005, Ms. Owens evaluated Ms. Hays as a "3." In the written portion of the evaluation, Ms. Owens noted that Ms. Hays had a pleasant personality and was willing to assist others. Ms. Owens' job title is Health Information Specialist Supervisor. In addition to Ms. Hays, during times pertinent, Ms. Owens supervised from three to four other people. On April 19, 2005, approximately six weeks after receiving her evaluation, Ms. Hays was counseled by Ms. Owens. Ms. Owens told her she needed to improve in some areas and that her desk was not tidy. She provided Ms. Hays with a schedule of daily assignments designed to help Ms. Hays improve. Ms. Owens memorialized her discussion with Ms. Hays in a memorandum dated April 19, 2005. In the memorandum, she noted that Ms. Hays had been provided with the MRDP Worksite Orientation Requirement Worksheet on February 25, 2005, and that Ms. Hays understood her duties and acknowledged that by signing it. The memorandum recited that Ms. Hays' work was backed up and that her desk had food and drink on it that could have been spilled on documents which were on the desk. The memorandum also reminded Ms. Hays that she was a probationary employee. Ms. Owens also gave Ms. Hays a "daily schedule" that had an effective date of April 25, 2005. Ms. Hays and Ms. Owens both signed it. The "daily schedule" informed Ms. Hays exactly what she was to do every day of the week. In Ms. Hays' opinion, she followed "every word" of the schedule, and Ms. Owens did not indicate that there was any problem with her work immediately subsequent to the implementation of the "daily schedule." Ms. Owens conducted an audit of the charts maintained by Ms. Hays on May 20, 2005, and reduced the results to writing. The information developed in the audit caused Ms. Owens to conclude that Ms. Hays' work was not improving. Ms. Owens believes that medical records are extremely important and keeping them in good order is a necessity. Her audit found that Ms. Hays was not keeping them in good order. She found her work to be unacceptable. She discussed the matter with Les Smith, the Residential Services Director of Forensic Corrections. He was her immediate supervisor. Ms. Owens then talked to Amy Bryant the Hospital's Employee Relations Counselor with regard to procedures to be followed in terminating an employee. She wanted to comply with procedures. Ultimately a meeting occurred attended by Ms. Owens, Les Smith, David English, and an attorney for the hospital, Amy Tillman. During this process, the decision to offer Ms. Hays the opportunity to resign in lieu of being fired, was finalized. On May 24, 2005, Ms. Hays was ordered by Ms. Owens to report to Mr. Smith's office. Mr. Smith is Ms. Owens' supervisor. When she arrived, she was given the choice of resigning or being fired. If she had not resigned, she would have been fired immediately. Ms. Hays was surprised when she was informed of this choice. She resigned in a handwritten letter dated May 24, 2005. This was her last day of work at the Hospital. As a probationary employee, she had no right to appeal what amounted to a discharge. Bernice King worked at the Hospital with Ms. Hays. She was a Human Service Worker II in MRDP 29. She had an opportunity to observe Ms. Hays' work. Ms. King used the charts maintained by Ms. Hays, and she found them to be in good order. Danielle Rene Shaw worked at the Hospital with Ms. Hays. She was a Human Service Worker II in MRDP 29. She had an opportunity to observe Ms. Hays' work. Ms. Shaw used the charts maintained by Ms. Hays, and she found them to be in good order. She thought Ms. Hays was a hard worker. Mark Flodin, M.D., worked as a physician in MRDP 29 when Ms. Hays was working there, and he had an opportunity to observe her performance. He noted that she was a hard worker and had a professional attitude. He said she maintained the ward charts in an orderly fashion. He was surprised when she was terminated. Ms. Hays' position was filled by Ms. Ryan Smith, who came to the Hospital from another state agency. She was paid at the rate of $828.17 bi-weekly. Ms. Hays applied for over a hundred jobs with the State of Florida using the state's website, MyFlorida.com. She also sought employment with 15 private employees. She was interviewed twice, but received no job offers. She was never offered an interview at the Hospital. She received unemployment compensation for about six months after she left the Hospital. Subsequent to her departure from the Hospital, and her inability to secure other employment, she had to have her depression medicine, Zoloft, increased, but she still feels depressed and worthless. She is also taking Chlonzpam, an anti- anxiety drug, and Wellbutrin. Ms. Hays' mother works at the Hospital, as a licensed practical nurse, and her husband was once employed there also. Her father is retired from employment at the Hospital, and her grandmother and grandfather worked there.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations dismiss the Petition of Alicia Hays. DONE AND ENTERED this 25th day of July, 2007, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 25th day of July, 2007. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Carolyn Dudley, Assistant Staff Director Department of Children and Family Services 1317 Winewood Boulevard Building 1, Room 101F Tallahassee, Florida 32399-0700 Sharon L. Ray, Esquire Agency for Persons with Disabilities 3700 Williams Drive Marianna, Florida 32446 Erika E. Bush, Esquire Marie A. Mattox, P.A. 310 East Bradford Road Tallahassee, Florida 32303 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether petitioner abandoned her position and is deemed to have resigned from the Career Service under the facts and circumstances of this case.
Findings Of Fact The petitioner was first employed by the State of Florida with the Department of Health and Rehabilitative Services on May 2, 1980. At the time, the petitioner owned her own accounting firm. However because she intended to remain in State employment for a minimum of ten years and did not want to jeopardize her position with HRS, she closed out her accounting firm transferring her clients to another member of Florida State Accounting Association. On October 28, 1985, petitioner became ill with acute bronchitis. She did not return to work until November 8, 1985. During that period of time, she was on authorized leave. On Saturday, November 23, the petitioner had a relapse. After calling her doctor, petitioner resumed taking the medication that had previously been prescribed and stayed in bed. On November 25, 1985, Angela Gary, a co-worker, went by Petitioner's home to give her a ride to work. Petitioner informed Ms. Gary that she would not be going to work that day. Petitioner did not explain to Ms. Gary that she was ill and did not ask Ms. Gary to take any message to the petitioner's supervisor, Ms. Matson, or to the District Fiscal Officer, Mr. Fisher, who was in charge of the entire accounting section. 1/ Mr. Fisher was aware that Ms. Gary was to provide a ride for petitioner on November 25, 1985. Therefore when petitioner did not report to work, Mr. Fisher asked Ms. Gary if she had remembered to go by petitioner's house. Ms. Gary told Mr. Fisher that she had remembered to go by the house but that petitioner said that she wasn't going to work. On Tuesday, November 26, Ms. Gary again went by petitioner's home to drive her to work. At that time, petitioner told Ms. Gary that she wouldn't be going to work and that Ms. Gary did not have to come by her house on Wednesday unless the petitioner called her. Because petitioner did not feel capable of returning to work on Wednesday, she did not call Ms. Gary. Therefore, Ms. Gary did not go by petitioner's house on Wednesday November 27, 1985. At no time during the three day period that she was absent from work did the petitioner telephone her supervisor to inform her of the situation. Prior to this three-day period, petitioner had been absent on several occasions and had always called her supervisor to inform the supervisor that she would be unable to report to work. She was quite familiar with the procedure that she needed to follow. Petitioner had received a copy of the HRS Employee Handbook, HRSP 60-1, which includes procedures to be followed to obtain authorized leave. The procedure for sick leave includes the following: As soon as possible on the first day of absence, it is your responsibility to notify your supervisor that the absence is due to illness....Your supervisor should also be given an estimate of the length of the absence. Medical certification may be required. Further, within the accounting section, the employees had been specifically advised that they had to speak directly to their immediate supervisor when calling in sick. Although petitioner was aware of the sick leave procedure, she did not attempt to call her supervisor at any time during the three-day period she was absent. Her only reason for not calling was that the medication she was taking made her "woozy" and that she slept most of the time. There was no evidence to suggest that petitioner was incapacitated to the degree that she was unable to call her supervisor. 1O. November 27-28 were holidays. On December 2; 1985, the following Monday, petitioner called her supervisor in the morning to inform the supervisor that she would be late to work. At that time, petitioner was informed that she was no longer employed.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered sustaining the action of the Department of Health and Rehabilitative Services in deeming Virginia I. Lee to have abandoned her position and resigned from the Career Service. DONE and ENTERED this 29th day of April, 1986, in Tallahassee Florida. DIANE A. GRUBBS 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 29th day of April, 1986.
