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reads "[h]as any license, registration, or permit to practice any regulated profession, occupation, or vocation been revoked, annulled or suspended in this or any other state...upon grounds of fraudulent or dishonest dealing or violations of law, or is any proceeding now pending?"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.
Findings Of Fact Manor Care properly and timely filed with HRS its certificate of need application in July 1985. Hearing Officer's Ex. 2, T. 163. On July 15, 1986, Health Care and Retirement Corporation of America timely filed a petition to intervene alleging that its substantial interests would be affected by this case because it was an earlier batched applicant for the same health services in the same service district. On July 21, 1986, counsel for HRS wrote to counsel for Health Care and Retirement Corporation of America confirming that it is the position of HRS that "non-final CON approval of a subsequent application does not count against a prior application when that prior application proceeds to administrative hearing." Hearing Officer's Ex. 1. No ruling has been made on the petition to intervene due to this letter, and there has been no further request by Health Care and Retirement Corporation of America to have its petition to intervene ruled upon. The petition to intervene therefore remains pending. The only criterion at issue in this case is need. T. 145-6. Criteria 3, 4, 5, 6, 7, 10, 11, 12 and 13 of section 381.494(6)(c)m, Fla. Stat., are not in dispute in this case. Financial feasibility is not in dispute except for the dispute as to need. Criterion 8 is in dispute only with respect to "the availability of alternative uses of such resources for the provision of other health services, and the extent to which the proposed services will be accessible to all residents of the service district." Criterion 9 is in dispute only with respect to whether Manor Care can achieve its projected utilization and Medicare projected utilization. Hearing Officer Ex. 2. Manor Care has sufficient and available health manpower resources, management personnel resources, and capital and operating expenditures for project accomplishment and operation. Hearing Officer Ex. 2. The costs and methods of the Manor Care proposed construction are reasonable, and there are no alternative, less costly, or more effective methods of construction available. Hearing Officer Ex. 2. Manor Care proposes to develop 60 community nursing home beds as a skilled nursing facility. T. 17. Some of the skilled nursing services that it would offer include intravenous therapy, hyperalimentation therapy, nasogastric feeding, gastroscopy feeding, tracheostomy care, and bowel and bladder training. Id. Additionally, the proposed 60 beds would be supported by intermediate nursing services, rehabilitation services, physical therapy, occupational speech therapy, respiratory therapy, recreational therapy, and community programs. Id., Manor Care Ex. 1, p. 2. Manor Care also proposes to offer respite nursing care, which is short-term inpatient nursing care. T. 18. In addition to the 60 community nursing home beds which are the subject of these proceedings, Manor Care proposes to provide an attached 60 bed adult congregate living facility (ACLF). T. 18. An ACLF may be operated without a certificate of need. The ACLF will be in an attached wing of the building. Id. The ACLF wing is intended to provide services for persons not needing skilled nursing care. The 60 community nursing home beds would be used for acutely ill persons in need of skilled nursing care. T. 23. The ACLF would provide assistance in daily activities and one hour a day of personal care, but would not involve nursing care. T. 18, 23. Having the ACLF attached to a nursing home will allow for easier transitions for patients from one level of care to another (ACLF to nursing, and return) and will give ACLF residents access to therapies in the nursing wing. T. 24. An ACLF may also be useful to allow a spouse to be closer to a patient in the nursing wing where the at-home spouse needs assistance with daily activities. T. 80. Manor Care proposes to locate the facility in west Tampa, Florida. T. 26. Manor Care projects a payor mix of 60 percent private pay, 30 percent Medicaid, and 10 percent Medicare. T. 26. The Medicare average in Hillsborough County is 4 percent. T. 27. About one-third of the nursing homes in Hillsborough County do not participate in Medicare, T. 28, and these would not be able to take Medicare patients needing skilled nursing services. Id. District VI has about 58 percent Medicaid beds. Manor Care Ex. 4. Manor Care projects an occupancy of 60 percent on the average in the first year, and 90 percent average in the second year. T. 28. The two nursing facilities that opened in Hillsborough County in 1985 achieved 90 percent occupancy in less than a year. T. 22. Given the findings of need and occupancy levels elsewhere in this recommended order, it is reasonable to believe that the projections of occupancy are reasonable and will occur. The projected opening date for the proposed facility is December 1988. T. 29. Petitioner's proposed facility will be consistent with the following criteria contained in the local health plan applicable to Hillsborough County: The local plan ranks Hillsborough County, northwest, as priority 1 among 6 regional priorities. This proposal is consistent with this criterion. T. 30, Manor Care Ex. 1. The local plan provides that applicants should at a minimum serve Medicaid patients in proportion to the representation of elderly poor in the subdistrict. T. 30. The subdistrict of Hillsborough County, northwest, has 18.6 percent persons age 65+ in poverty. Manor Care Ex. 1. The proposed facility is consistent with this criterion. The local plan provides preference to applicants who historically complete projects on time. Manor Care's record on this point is consistent with this criterion. T. 31. See also paragraph 3 above. The local plan requires that existing nursing homes must have been at an average rate of 90 percent occupancy or greater for the six months prior to new beds being approved. Manor Care Ex. 1. The occupancy rate has been over 95 percent since October 1985, T. 31, so this criterion is satisfied. The local plan requires that available alternatives be considered. Manor Care Ex. 1. There are no available alternatives. The local plan requires as a goal that the nursing home be within 30 minutes travel time of 90 percent of the urban residents and 45 minutes travel time of 90 percent of the rural residents. Manor Care Ex. 1. There is unrebutted evidence that this proposal will be consistent with that criterion. T. 32. The local plan requires evaluation of the proposal against the achievement of the applicant of superior quality of care. Manor Care Ex. 1. Quality of care has not been questioned by HRS in this case. See finding of fact 5. Moreover, Manor Care has presented sufficient evidence that it will provide care of good quality. T. 45-9, 59-82. The proposal is consistent with the state health plan since there is a need for the project, and the state health plan goals of consistency with state methodology and accessibility of services, are primarily related to need. T. The services will be accessible to those with need. T. 33. The Department of Health and Rehabilitative Services relies upon rule 10-5.11(21), Florida Administrative Code, to calculate bed need in this case. Hearing Officer Ex. 2, p. 2. All parties have calculated need using Hillsborough County as the proper subdistrict in District IV. Manor Care Ex. 14 accurately summarizes the mathematical method of the rule. Manor Care Ex. 6. The method of calculation relied upon by HRS in this case depends upon application of incipient policy which seeks to implement the decision in the Gulf Court case. T. 154-5. That policy is initially contained in HRS Ex. 2, which is a memorandum from Steven W. Huss, General Counsel, dated March 6, 1986, and adopted as policy by the Administrator of Community Medical Facilities, Office of Health Planning and Development. The memorandum states that the "planning horizon" applicable to all applications for certificates of need shall be projected from the filing deadline of the application, but that "applications shall be evaluated using current or available data for projecting need for the applicable horizon. . . ." HRS Ex. 2. Included in the definition of "current health planning information" is "population." Id. The policies are not rules. T. 159. The Department of Health and Rehabilitative Services put on no evidence to demonstrate the reasonableness of these policies as applied to the Petitioner in this case. T. 160. In the case at bar, HRS proposes to implement the foregoing policy by establishing a "planning horizon" three years from the date that Petitioner's application was date-stamped in, but using "current data," meaning data as of the date of the formal administrative hearing. T. 154. The application was received in July 1985, and thus HRS proposes to establish July 1988 as the planning horizon. T. 163. It also proposes to use population estimates, the number of licensed and approved beds in the subdistrict, and the occupancy levels, from the most recent semiannual community nursing home report as of the date of the formal administrative hearing. T. 163-4. Thus, for "current populations," HRS proposes to use 1986 estimates of 1986 populations. T. 165. Following rule 10-5.11(21) and applying the foregoing incipient policy, the Department calculates a need for 51 community nursing home beds in subdistrict Hillsborough County in the horizon year, July 1988. HRS Ex. 1, T. 154. This calculation is identical to Manor Care Ex. 16. T. 154. The Department proposes to deny Petitioner's application because this calculation does not show at least 60 beds needed. T. 145. 20. Following essentially the same mathematical formula contained in the rule, but with a single critical difference, the Petitioner calculates net bed need in Hillsborough County in July 1988 as 184 beds. T. 105, Manor Care Ex. The critical difference is that Manor Care Ex. 15 uses a July 1, 1986 estimate of 1985 population in calculating "bed rate" within the mathematical formula of the rule. As stated above, HRS proposes to use the 1986 estimate of the 1986 population. Compare Manor Care Ex. 23 with Manor Care Ex. 15 and HRS Ex. 1. It should be noted that this distinction is not at all clear from an examination of Manor Care Ex. 15, which erroneously refers to the ages 65-74 population of 129,366 as "July 1, 1986," population, and the ages 75+ population of 89,297 as population of "July 1, 1986," also. These populations, however, are actually 1986 estimates of 1985 populations. See Manor Care Ex. 23. Manor Care's expert witness did not clearly make this distinction either, calling these "July 1, 1986," population projections, and referring to a "base period of July 1, 1985," without defining what he meant by "base period." T. 103-4. The difference of 133 beds (184 compared to 51) in the two calculations proposed by the parties is caused by the fact that the so-called "bed rate" in the rule is inversely proportional to the population which is assumed to need the nursing home beds. Rule 10-5.11(21)(b) employs a "bed rate" defined as the number of licensed beds divided by the population ages 65 and older, presumably the primary users of nursing home beds. This so-called "bed rate" is then multiplied against the future population of expected users to obtain a bed need figure. (In effect the rule projects the status quo into the future.) If licensed beds, the numerator of the fraction, remains constant (as it does in the two methods discussed above), but the denominator increases (as it does when HRS uses 1986 populations instead of 1985), then the so-called "bed rate" decreases. This result can be traced mathematically for the two methods. Rule 10-5.11(21)(b) calculates a "bed rate" for the population ages 65-74 (called BA) and 75+ (called BB). The number of licensed beds in the district, 5,617, remains constant in both methods. But in Manor Care Ex. 15, the 1986 estimates of 1985 population are 129,366 for the population ages 65-74, and 80,297 for the population ages 75+. In HRS Ex. 1 (and Manor Care Ex. 16) the 1986 estimate of 1986 population ages 65-74 is 133,730 and population ages 75+ is 93,666. The bed rate using the lower population figures (Manor Care Ex. 15) is 104.596 percent of the bed rate using 1986 estimates of 1986 population. In step 4 of the formula as presented in Manor Care Exs. 15 and 16, the preliminary subdistrict bed allocation (SA) is a result of multiplying the bed rate times the licensed beds. Consequently, the result using 1985 populations is a preliminary subdistrict bed allocation of 3,031. Using 1986 populations, the preliminary subdistrict bed allocation is 2,898. The expected difference is 104.596 percent of 2,898, or 133 beds. Manor Care's expert witness presented an alternative calculation of bed need which used 1986 estimates of 1986 population to derive the bed rates BA and BB, but used 1989 as the planning horizon. T. 110. In this manner, the three-year period specified in the rule commences from the date of the formal administrative hearing. Everything else was the same as HRS Ex. 1. This method results in a subdistrict bed need in Hillsborough County of 162. T. 110, Manor Care Ex. 17. The difference of 111 net beds between the method in HRS Ex. 1 and Manor Care Ex. 17 is the result of the increase of population in the two age groups projected between 1988 and 1989. Although the bed rates in HRS Ex. 1 and Manor Care Ex. 17 are lower than the bed rates in Manor Care Ex. 15, these bed rates are multiplied directly against the projected populations in the horizon year. Rule 10-5.11(27)(b)1, Florida Administrative Code. The increase in projected population in 1989, compared to 1988, results in a need for 111 more beds despite the fact that both methods (HRS Ex. 1 and Manor Care Ex. 17) use the same bed rate. In summary, comparing Manor Care Exs. 15 and 17 and HRS Ex. 1, it must be concluded that the effect in HRS Ex. 1 of using population data as of the time of the formal administrative hearing, but projecting need for a three-year period commencing before the formal administrative hearing, causes a diminution of projected need in all cases where the relevant population is increasing. On the one hand, the increase in populations used to compute bed rate results in a lower rate. On the other hand, the use of a horizon year that is less than the full three years from the date that the bed rate is calculated results in a lower horizon year population, and thus ultimately a lower net bed need. In effect, if the term "planning horizon" means a future date to which need is to be projected, beginning from a base date and using a need rate current as of the base date, then the method in HRS Ex. 1, which uses a 1986 bed rate projected to a 1988 population, is actually using only a two year "planning horizon." As will be discussed in the conclusions of law, the method used by HRS to calculated bed need is not legally correct because it does not use data current as of the date of the application. The method proposed by the Petitioner using a 1989 planning horizon is not legally correct because the Petitioner cannot apply for beds in that horizon without amending its application and changing to a later batching cycle. The method proposed by the Petitioner in Manor Care Ex. 15 is essentially correct in method. However, it uses the wrong data because it fails to use data for licensed beds and occupancy rates preceding the batching cycle as required by the rule. The correct calculation of need is the calculation found in Manor Care Ex. 15, but substituting the following data in the formula as indicated: LB 5,270 LBD 2,392 AB 824 ABD 488 (approved beds in the subdistrict) OR 0.962 POPA 141,736 POPB 102,242 POPC 129,366 POPD 89,297 LB and LBD are supposed to be as of June 1, 1985, according to the rule. At the conclusion of the hearing and after receipt of post hearing proposed findings it was discovered that the record did not contain these figures. Thus, an order was entered reopening the record for the limited purpose of having the parties submit this data as of June 1, 1985. The parties did so, but the only data in existence was as of May 1, 1985. There is no reason in this record to believe that the figures LB and LBD changed in the 30 days to June 1, 1985, and thus the figures provided are accepted as June 1, 1985, totals for LB and LBD. Further, if LB and LBD are to be derived from the figures from Hearing Officer's Ex. 4, which are May 1, 1986, figures, the number of approved beds for the district (AB) and subdistrict (to be termed ABD in this order) should also be from the exhibit. AB and ABD above thus are from Hearing Officer's Ex. 4. The occupancy rate, however, has been derived from Manor Care Ex. 22 for the reasons stated in finding of fact 32. LB, LBD, AB, ABD, and OR are new figures, and differ from Manor Care Ex. 15. All else in the computation which follows is the same as Manor Care Ex. 15. In this regard, POPA and POPB are 1986 estimates of 1985 populations, and POPC and POPD are 1986 estimates of 1988 populations. Strictly speaking, the rule seems to require 1985 estimates, but, as discussed in the conclusions of law, there seems to be little reason not to use the most recent estimates of these populations, which presumably would be more accurate. Substituting the above figures in the formula found in Manor Care Ex. 15, the following is the proper calculation of net bed need in this case: Step 1: A = (POPA x BA) + (POPB x BB) A = (141,736 x BA) + (102,242 x BB) A = (141, 736 x 0.007923) + (102,242 x 0.047538) Step 2: A BA = = 1123 + 4860 5983 LB (FOPC + (6 x POPD) BA = 5,270 5,270 BA = (129,366 + (6 x 89,297) 0.007923 665,148 Step 3: BB = 6 x BA BB = 6 x 0.007923 BB = 0.047538 Step 4: SA SA SA = = = A x LBD x OR LB 0.90 5983 x 2,392 x 0.962 5,270 0.90 5983 x 0.4538899 x 1.0688889 SA 2903 Step 5: If LB + AB is less than 27 POPE 1,000 and PDB is greater than PBS, than PA 27 x POPE 1,000 If 5,270 + 824 = 0.0278694 is greater than 0.027, 218,663 then the poverty adjustment does not apply. Step 6: Not applicable because 0.0278694 is greater than 0.027 Step 7: LB 5,270 as of June 1, 1985 LBD 2,392 as of June 1, 1985 Step 8: Projections based on 3-year period from July 1, 1985 to July 1, 1988. Step 9: NH = need SA - LB - (0.90 x ABD) NH = need 2903 - 2392 - (0.90 x 488) NH = need 2903 - 2392 - 439 NET NEED 72 beds In January 1983, nursing homes in Hillsborough County were experiencing an occupancy rate of 91 percent on the average. Manor Care Ex. 22. In about July 1983, hospitals began to be affected by the new federal prospective payment system and diagnostic related groups (DRO's). T. 125-6. The federal DRG system of Medicare reimbursement results in flat rate payments for specified numbers of days of hospital care. T. 50. Since the purpose of the system is to lower cost by decreasing the length of hospital stays, the result has been to produce a greater need for skilled nursing centers to care for sicker patients needing higher levels of care. Id., T. 88, 50. This increases the demand for short term skilled nursing placements. T. 88. As a result, there was greater utilization of existing nursing home beds in Hillsborough County, and by August 1983, the occupancy rate went to 96 percent on the average. Manor Care Ex. 22. By November 1983, it was at 97 percent. Id. In 1984, nursing homes in Hillsborough County averaged 97 percent occupancy. Manor Care Ex. 22. In the first two months of 1985, existing nursing homes in Hillsborough County continued to experience a 97 percent occupancy. Manor Care Ex. 22. In March 1985, 120 new nursing home beds in Hillsborough County were opened, and the occupancy rate average dropped to 92 percent, but by July 1985 the average had climbed again to 95 percent. Id. In October 1985, another 120 beds were opened, and the rate again dropped to 91 percent, but by December 1985, it had increased to 94 percent. Id. The rate has been steady at 94 percent to March 1986, the last month for which there is data in the record. Id. See also Manor Care Ex. 21. It should also be noted that the facility that opened in October 1985 had achieved an occupancy level of 95 percent in six months. T. 129. The occupancy rate for subdistrict Hillsborough County for the period October 1984 through March 1985 was 96.2 percent. This is derived from Manor Care Ex. 22. The exhibit shows that the occupancy rate for the months of October 1984 through February 1985 was 97 percent. In March 1985, the rate dropped to 92 percent. The average of these six figures is 96.2 percent. It should be noted that this occupancy rate was used in findings of fact 26 and 27 instead of the lower occupancy rate found in Hearing Officer Ex. 4. The occupancy rate of 96.2 percent is more credible for several reasons. First, it was presented by a witness who was subject to cross-examination. If there had been a problem with the rate as depicted in Manor Care Ex. 22, the problem might have been exposed in cross examination. Second, it is based on a more detailed (month by month) set of data. Finally, it is consistent with the trend shown by Manor Care Ex. 22. The lower rate contained in Hearing Officer Ex. 4 is out-of- line from this trend, and therefore apparently in error. Persons who most need nursing home services are 65 years or older, and these groups are projected to increase faster than the population ages 0-64 in Hillsborough County to the year 1990. Manor Care Ex. 23. From 1986 to 1990, the total population of Hillsborough County is estimated to grow each year at between 1.7 percent and 2.2 percent compared to the previous year. Manor Care Ex. 23. In the same four years, it is projected that the Hillsborough County age group 75+ will grow on the average at 4.6 percent each year, and the age group 65-74 will grow on the average at 2.7 percent each year. Id. As discussed above, the change in the federal method of reimbursing hospital costs has resulted in sicker patients needing nursing care outside the hospital. Florida sets a higher staffing requirement for skilled nursing care than other nursing facilities. T. 51. Skilled nursing care usually requires more staff, better trained staff capable of coping with multiple health problems, closer monitoring of patients, closer communication with physicians and hospitals, and more supplies. T. 61-2. Skilled nursing is more expensive. Id. A nursing home may elect not to provide skilled nursing because its current staff lacks sufficient training, because of exposure to greater liability, and because skilled nursing care is more difficult. T. 51. Nursing homes that can achieve high occupancy levels without skilled nursing care have less incentive to provide such care. T. 34. Hillsborough County appears to have such high occupancy levels that there may be less incentive for existing nursing homes to provide skilled nursing care. Id. Ten of the nursing homes in Hillsborough County each provide less then 1 percent of their services to Medicare patients. T. 130. Of these, six provide no Medicare services. Id. Thus, about one-half of the nursing homes in Hillsborough County provide no Medicare skilled nursing. Id. The three largest hospitals in Tampa currently have waiting lists for placement of patients needing skilled nursing care. T. 22. These hospitals have trouble placing patients after hospitalization, and demand for nursing home services exceeds availability. Manor Care Ex. 24, p. 7, T. 84. This often results in such patients having to stay longer in the hospital. T. 85. The following skilled nursing services are not adequately available in Hillsborough County: intravenous therapy, hyperalimentation therapy, and tracheostomy care. T. 24-5, 84-6, 89-90. Intravenous therapy involves the injection of fluids directly into a vein. T. 66. This therapy requires close monitoring by trained staff. T. 68. Manor Care proposes to provide intravenous therapy for up to four patients a day. T. 70. A tracheostomy is an opening at the base of the neck into which a tube is inserted to create an open airway. T. 70-1. Patients needing this type of care include neurological traumas, stroke patients, and head trauma victims. T. These patients are usually unstable and the tracheostomy requires close attention, sterility, and suction. T. 71-2. Manor Care proposes to provide tracheostomy care. Manor Care Ex. 1, section III, paragraph 5. Hyperalimentation therapy is either tube feeding through the gastro- intestinal tract, or through a vein. T. 73-4. Until about two years ago, this therapy was not typically provided in a nursing home. T. 74. Patients requiring this therapy are those with problems with excessive vomiting, diarrhea, bowel obstructions or cancer, and massive gastro-intestinal surgery. Id. Hypralimentation therapy may be short-term or long-term. Id. The procedure requires great care, caution, and specially trained staff. T. 75. There is a need in Hillsborough County for additional respite care. T. 87. The same admission paperwork is needed for a patient coming for only two days for respite care as for a patient that is to be a long-term patient, T. 54, and this acts as a disincentive to providing such care. There are two adult congregate living facilities in the Tampa community now. T. 89. One is associated with sheltered nursing home beds, and the other is associated with nursing home beds that are partially available to persons not residing in the ACLF. T. 91. Manor HealthCare Corporation has nine nursing centers in Florida. T. All are certified for Medicare. T. 49-50. Medicare has high criteria for skill level, and thus a nursing home that is certified for Medicare is capable of treating patients needing higher nursing skills. T. 50. Manor HealthCare has contracted with three health maintenance organizations to provide skilled nursing care, and is negotiating with four others for the same services. T. 44. These contracts enable the health maintenance organizations to move patients from acute care in a hospital to a lower cost skilled nursing care. T. 45. District VI, which includes Hillsborough County, has a higher poverty level for persons 65 years of age and over than Florida as a whole. T. 117. However, the poverty adjustment does not apply in this case. See finding of fact 28, steps 5 and 6. Subparagraph (b)5 of the rule provides a "poverty adjustment" to allocate at least 27 beds per 1,000 residents 65 years of age or older "in the current year." T. 112. Thus, the adjustment does not project a number of beds into the future. Id. Manor Care demonstrated that it would make a significant difference if this adjustment were based upon the number of residents 65 years of age and older in the horizon year. Applying the rule as currently written, HRS Ex. 1 and Manor Care Ex. 16, which are identical, show net need of 51. Using this same method if the population age 65+ in the horizon year (1988) is used, the net need is 99. T. 111-9, Manor Care Ex. 19. On August 22, 1986, the Department of Health and Rehabilitative Services published notice of intent to amend subparagraph (b)5 of rule 10- 5.11(27) to provide that the poverty adjustment would allocate no less than 27 nursing home beds per 1,000 population 65 years of age or over projected three years into the future. Vol. 12, No. 34, p. 3060, Florida Administrative Weekly. The proposed rule was withdrawn on September 12, 1986. Vol. 12, No. 37, p. 3384, Florida Administrative Weekly, Hearing Officer Ex. 4. HRS has previously approved certificate of need applications for nursing home beds despite lack of numerical need. T. 141-2. Apparently HRS construes rule 10-5.11(21)(b)10 as not constituting an exclusive list of exceptions justifying grant of a certificate of need despite lack of numerical need. T. 142. There is a need for the 60 bed skilled nursing facility as proposed in this formal administrative hearing by the Petitioner. Existing facilities do not fulfill this need, and there are no adequate alternatives.
The Issue At issue in this proceeding is whether respondent committed the offense alleged in the administrative complaint and, if so, what disciplinary action should be taken.
Findings Of Fact Respondent, Adele "Nikki" Leon, holds Florida teaching certificate number 413436, covering the area of emotional disturbances and special learning disabilities. Such certificate is valid through June 30, 1996. At all times material hereto, respondent was employed by the Dade County Public Schools, Palmetto Adult Education Center, as a part-time teacher, and was assigned to teach Adult Basic Education for the Elderly (ABE) at Snapper Creek Nursing Home. Pertinent to this case, respondent's assignment during September and October 1992, included the teaching of an ABE class at Snapper Creek Nursing Home each Tuesday from 3:00 p.m. to 5:00 p.m. According to respondent's attendance reports for that period, twenty-five residents were enrolled in the class. On September 15, 1992, Ivette Morgan, assistant principal of Palmetto Adult Education Center, at the request of Edward Gehret, principal of Palmetto Adult Education Center, visited Snapper Creek Nursing Home to evaluate the adult education program. During the course of that visit, as well as visits on September 22, September 29, and October 20, 1992, Dr. Morgan had an opportunity to observe respondent's Tuesday class. On those occasions, Dr. Morgan noted only four to six residents in the classroom. 4/ Dr. Morgan reported her observations regarding class attendance to Dr. Gehret who, at the time, had been involved with enrollment and attendance review for, inter alia, Snapper Creek Nursing Home. Based on that review, Dr. Gehret observed that respondent had routinely marked all twenty-five residents in her class as "present," which did not square with Dr. Morgan's observations. On October 22, 1992, Dr. Gehret met with respondent to review the discrepancies he perceived in her attendance report procedures. At that time, it was the School Board's policy to mark residents "present" for an ABE class if they appeared at any time during the class period, no matter how briefly; but if they never appeared, to mark them as "absent." 5/ Respondent advised Dr. Gehret that she was of a different perception, and understood that nursing home residents enrolled in an ABE class were not to be marked as "absent" but, rather as "present," whether attending or not, so long as they were still in the facility. Notwithstanding, following the meeting, respondent agreed to conform her attendance procedure to the policy Dr. Gehret outlined. Regarding the discrepancies in respondent's attendance reports, when measured against the School Board's policy, the proof demonstrates that for the attendance reporting periods of September 14-27, September 28-October 11, and October 12-25, 1992, respondent completed and signed the attendance report for her Tuesday class on which she marked as "present" nursing home residents Helen Ambler and Gertrude Monge. Ms. Ambler and Ms. Monge were not, however "present" during such periods since they had died September 2, 1992, and June 15, 1992, respectively. The proof further demonstrated that for the same reporting periods, respondent had marked as "present" nursing home residents Agaton Bolanio, Nazario Lopez, and Martin Ruiz. Mr. Bolanio, Mr. Lopez and Mr. Ruiz were not, however, "present" during such periods since they had been discharged from the nursing home on June 19, 1992, July 20, 1992, and May 14, 1992, respectively. Finally, based on Dr. Morgan's observations of respondent's Tuesday class on September 15, September 22, September 29, and October 20, 1992, wherein she observed no more than four to six residents in attendance, it is reasonable to conclude that a significant number of residents who were marked as "present," other than the residents heretofore mentioned, were likewise not "present" on those dates. Which residents and why they were not present was not, however, established of record. 6/ Regarding the ABE program and the preparation of enrollment and attendance reports at Snapper Creek Nursing Home, the proof demonstrates that the ABE program was under the direction of the nursing home activities director who, without the participation of the instructors, prepared the enrollment for each class. 7/ Accordingly, respondent would not necessarily have known the residents assigned to her class, and reasonably assumed that the list of residents she received from the activities director contained current residents of the nursing home. Likewise, respondent relied on the activities director to advise her when residents died, were discharged or were otherwise no longer able or interested in attending before removing them from the roll; however, such information was rarely provided by the activities director. Finally, absent advice to the contrary from the activities director, respondent did not consider a resident's failure to attend on a given day an absence, as in the traditional classroom setting, and routinely marked them "present." Such practice in the ABE program was reflective of the voluntary nature of the program, as opposed to compulsory attendence in the traditional school setting, and the unavailability of information, except from the activities director, as to the reason a resident did not attend. Notably, residents frequently did not attend because, inter alia, nurses aides failed to bring them to class or they were too ill to attend, as opposed to not wanting to attend the course any longer. That such was the procedure at Snapper Creek Nursing Home, and perhaps other adult education centers in Dade County, finds other support in the record apart from respondent's testimony. For example, another instructor, Evelyn Foster, during the times in question, carried Francies Lambrou as "present" on her attendance record until July 27, 1992, although she was discharged July 2, 1992; and carried Maria Diaz, Carmen Morela, and Lorenzo Legundo as "present" until at least October 9, 1992, although Ms. Diaz and Ms. Morela were discharged September 5, 1992, and Mr. Segundo was discharged September 24, 1992. Moreover, Dr. Morgan found it necessary, at sometime between September 15 and October 26, 1992, to give the activities director specific instructions on how attendance was to be recorded, and Dr. Gehret found it necessary to conduct a "rollbook workshop" at Snapper Creek Nursing Home for all instructors, as well as agreeing to urge the nurses aides to bring the residents who desired to attend to class. [Petitioner's exhibit 1, pages 17 and 21, and respondent's exhibit 12.] Finally, there is of record a memorandum of July 8, 1993, almost one year after the events at issue in this case, from Connie Gilbert, District Director, Division of Adult Education, Dade County Schools, to all adult education center principals, which suggests continued confusion in attendance procedures for off- campus classes and that the practice at Snapper Creek Nursing Home was not an isolated occurance. That memorandum provided, in part, as follows: SUBJECT: ATTENDANCE PROCEDURES Off-campus visitations have revealed problems and confusion about attendance procedures. Please inform all teachers of the following procedures: Students must be present in a teacher's class and participate in the class activities in order for the teacher to mark this student present in that class. * * * Please make sure that off-campus teachers understand that students present "someplace in the facility" can not be considered present in a particular class. Students must be physically present in a class in order to be marked present in that class. Given the proof, it must be concluded that respondent's failure to record attendance in accordance with school board policy was, more likely than not, a consequence of a misunderstanding of, or ignorance of, that policy. In this regard, it is observed that no state policy for recording ABE attendance was established of record, and no proof that any policy established by the school board had been reduced to writing or imparted to respondent, or any other adult education instructor, prior to the events giving rise to the issues in this case. Accordingly, it follows that there was no compelling proof that respondent, by completing the attendance reports in the manner she did, had any intent to deceive the school board.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered dismissing the administrative compliant. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 18th day of May 1995. WILLIAM J. KENDRICK 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 18th day of May 1995.
The Issue Whether a $1,500 administrative fine should be levied against respondent on grounds that it failed to timely correct four Class III violations of nursing home standards.
Findings Of Fact On August 25-26, 1980, the Department inspected Richey Manor, a licensed nursing home located at 505 Indiana Avenue, New Port Richey, Florida. Various deficiencies were identified and discussed with the nursing home staff. Thereafter, on October 24, 1980, the Department sent Richey Manor a written citation which listed the deficiencies noted in August, classified them, and set dates by which they were required to be corrected. The deficiencies pertinent to this proceeding were: (1) funds of deceased patients were not deposited in an interest-bearing account, (2) the nurse call system in patient Room 14 was inoperable, (3) the dry wall ceiling in the south entrance corridor was damaged, and (4) specific `products and disinfectants required by Richey Manor's approved infection control policies were unavailable. 2/ The citation identified these as Class III deficiencies. The first three were required to be corrected by September 25, 1980, the fourth by October 25, 1980. (Testimony of Fullerton; P- 2.) Class III deficiencies are those violations which have an indirect or potential relationship to the health, safety, or security of the nursing home patients. Three of the deficiencies fulfill these conditions: a workable nurse call system and infection control program have an obvious potential relationship to the health of the patients; vermin may gain access through the hole in the dry wall and have similar adverse effects. However, as now conceded by the Departments the failure to deposit funds of deceased patients into an interest- bearing account does not indirectly or potentially relate to the health, safety, or security of patients. (Testimony of Fullerton.) Richey Manor timely corrected or attempted to correct three of the four deficiencies noted. During August, 1980, it hired Tampa Sound Company to repair the nurse call system; two visits were required and the repairs were satisfactorily completed by November. An infection control committee was formed to revise and update the infection control policies. By November, 1980, the policies had been revised; supplies and equipment necessary for their implementation were then available. During August, 1980, the hole in the ceiling: at the entry way was repaired; however, the repair was inadequate. By January 12, 1981, the hole in the ceiling had reopened. The fourth deficiency remained uncorrected: no action was taken by Richey Manor to place funds of deceased patients in an interest-bearing account. (Testimony of McGlawn, Fullerton; P-1, R-1, R-2.)
Recommendation That the Department impose a total fine of $500 against Richey Manor for the two violations which were not adequately and timely corrected. DONE AND RECOMMENDED this 10th day of December, 1981, in Tallahassee, Florida. R. L. CALEEN, JR. 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 10th day of December, 1981.
