The Issue The issue for determination is whether Respondent committed the offense set forth in the Administrative Complaint and, if so, what action should be taken.
Findings Of Fact At all times material hereto, Healey Center was a 198- bed skilled nursing facility operating at 1200 45th Street, West Palm Beach, Florida, and was licensed under Chapter 400, Florida Statutes. On April 17, 2006, AHCA conducted a complaint survey of Healey Center. AHCA's surveyor was Nina Ashton. At the time of the survey, Healey Center's licensure status was standard. As a result of her survey on April 17, 2007, Ms. Ashton determined that an isolated Class III deficiency had been committed by Healey Center, citing Tag N201, a violation of Section 400.022(1)(l), Florida Statutes, failure to adequately identify residents whose history render them at risk for abusing other residents. Healey Center was given until May 17, 2006, to correct the deficiency. By letter dated May 4, 2006, Healey Center was notified, among other things, that the allegation that Healey Center "failed to properly meet the needs of a resident who acts inappropriately" was confirmed and that Healey Center had to achieve substantial compliance by May 17, 2006. A follow-up survey was conducted on June 12, 2006. By letter dated July 10, 2006, AHCA notified Healey Center, among other things, that the deficiency had been corrected. Subsequently, AHCA determined that the deficiency was an isolated Class II deficiency. By letter dated August 8, 2006, AHCA notified Healey Center, among other things, that its (Healey Center's) license status was being changed to conditional, effective for the period April 17, 2006 through September 30, 2006, attaching the license thereto. Also, by separate letter of the same date, AHCA notified Healey Center, among other things, that its (Healey Center's) license status was being changed to standard, effective for the period June 8, 2006 through September 30, 2006, attaching the license thereto. As a result of AHCA’s determination that an isolated Class II deficiency had been committed, it filed an Administrative Complaint against Healey Center. Ms. Ashton's survey focused on Resident No. 1, involving incidents documented in the Nurses Notes from March 10, 2006 through April 17, 2006. Also, she met with the Director of Nursing (DON), Ingrid Kerindongo, because the administrator of Healey Center was on vacation; with Healey Center's social worker, Jackie Loving; and with the unit manager, Edgar Francois. Further, Ms. Ashton reviewed the medication administration record (MAR). On October 20, 2005, Resident No. 1 was admitted to Healey Center from St. Mary's Medical Center. He was suffering from traumatic brain injury and had a diagnosis of bipolar disorder. He was prescribed medication for his bipolar disorder. Resident No. 1 was homeless and had no family members who were willing or able to take care of him. He had resided in an assisted living facility but the facility refused to re-admit him. Resident No. 1 was placed in an all male unit, Held 3 unit, in a semi-private room. Healey Center has two other units, Held 1 and 2 units, wherein both male and female residents are housed. Healey Center was unable to provide Resident No. 1 with 24-hour male nursing staff but used its best efforts to assign male staff to Resident No. 1. Healey Center employs 35- 40 licensed practical nurses (LPNs) of which one is male and 75- 78 certified nursing assistants (CNAs) of which two are male. On or about March 10, 2006, Resident No. 1's behavior began to escalate. Resident No. 1 was involved in numerous incidents with staff wherein he displayed sexually aggressive behavior -- using sexually inappropriate words, making sexually inappropriate propositions, and inappropriately touching them. One particular incident occurred on March 22, 2006, involving a female on the laundry staff. While placing clothes in the closet, she turned around to find Resident No. 1 too close in proximity to her and blocking the exit door with his wheelchair.2 Resident No. 1 indicated to the staff person that he wanted to touch her hands. The staff person managed to exit the room and reported the incident. Resident No. 1 was counseled not to be so close to the staff, not to talk to the staff, and not to make sexual offers to the staff. Further, Resident No. 1's physician and psychiatrist were notified of his behavior. Approximately a week later, on March 30, 2006, Resident No. 1 was acting in an aggressive and threatening manner towards staff, resulting in law enforcement being contacted. He approached a CNA in his wheelchair and was making biting actions at the CNA, acting as if he were going to bite her. Also, Resident No. 1 was being verbally abusive and sexually aggressive towards another staff member, who notified security, who removed Resident No. 1 from the unit and secured him. Law Enforcement was summoned, and the officers determined that the incident did not constitute a crime but was a matter for Healey Center to address. Resident No. 1's physician was notified, who, the night before, had prescribed Zyprexa to address Resident No. 1's escalated aggressive behavior. Furthermore, on March 30, 2006, the physician ordered Ms. Loving, the social worker, to discharge Resident No. 1 to the 45th Mental Health Center. Ms. Loving discussed the discharge with Resident No. 1, and he refused to go to the Mental Health Center. She contacted the Mental Health Center to come to Healey Center to assess Resident No. 1, but the Mental Health Center refused to do so. Resident No. 1 remained at Healey Center. As to the incidents in which Resident No. 1 was verbally abusive, aggressive, and sexually aggressive towards staff, Ms. Ashton determined that Healey Center had addressed the incidents appropriately and used appropriate interventions, where necessary. Additionally, Resident No. 1 became verbally abusive towards other residents. One particular incident occurred on March 15, 2006 and involved his roommate in which Resident No. 1 was upset because his roommate would not turn-off the television. The supervisor was notified and the staff counseled both, Resident No. 1 and his roommate. Afterwards, Resident No. 1 went to sleep in his room. In another incident occurring on March 22, 2006, Resident No. 1 was arguing with another resident in a loud voice and in a threatening manner, using threatening words. The staff talked with Resident No. 1 to determine why he was upset. After determining the reason for Resident No. 1 being upset and calming both residents, the staff counseled Resident No. 1 and the other resident and re-directed them. As to the incidents in which Resident No. 1 was verbally abusive to other residents, and in particular the two incidents previously mentioned, Ms. Ashton determined that Healey Center appropriately addressed the incidents and was effective in resolving them, and that the interventions were effective. Further, Resident No. 1 engaged in inappropriate sexual behavior towards and inappropriate touching of staff. In particular, on April 15, 2006, while answering Resident No. 1's call bell, a CNA found him naked, waiting for her. Also, on April 16, 2006, Resident No. 1 attempted to grab a nurse's buttocks. Furthermore, Resident No. 1 engaged in several incidents involving inappropriate touching of other residents. Two incidents occurred on April 16, 2006, the day before AHCA's survey. One incident involved Resident No. 1 being in another unit, during lunch time, and the staff observing him touching the breast of a female resident, who was ambulating to the dining room, under the pretense of assisting the female resident to the dining room. The supervisor was immediately notified and, upon hearing the notification to the supervisor, Resident No. 1 left the unit. The other incident on April 16, 2006, involved the staff observing Resident No. 1 kissing another resident on the forehead. This incident was also reported. Another incident, involving inappropriate touching of another resident, occurred on April 17, 2007, the day of the survey. Resident No. 1 was observed rubbing the shoulders of another resident, as if massaging the shoulders. The staff advised him not to touch the other residents, and he left. However, he soon returned, rubbing his own shoulders. The staff again advised Resident No. 1 not to touch the other residents at which time he laughed and walked away. This incident was also reported. Resident No. 1 had been refusing to take his medication which was prescribed to control his behavior and included Zyprexa, Seroquel, and Effexor. Numerous entries were made on the MAR indicating his refusal, including March 15, 16, 18, 19, 21, 23, 24 and April 11, 12, 13, and 14, 2006. The evidence did not demonstrate that Resident No. 1's Care Plan was not appropriate, was not appropriately revised and did not contain appropriate interventions or that the interventions were not appropriately implemented by Healey Center. Furthermore, the evidence did not demonstrate that the behavior of Resident No. 1 was not addressed in accordance with his Care Plan. Resident No. 1's physician and psychiatrist were kept informed of all the incidents involving staff and other residents and of Resident No. 1's refusal to take his medication. Resident No. 1's psychiatrist discussed with him his refusal to take medication and, at times, obtained compliance and partial compliance. Resident No. 1's Care Plan contained interventions to obtain his compliance to take medication, and Ms. Ashton found the interventions to be appropriate. The evidence demonstrates that a resident has a right to refuse medication and cannot be compelled to take medication. From April 1 through 6, 2006, Resident No. 1 refused to take his medication. On April 6, 2006, the necessary documentation to Baker Act Resident No. 1 was completed by the doctor, and Resident No. 1 was Baker Acted. On April 11, 2006, Resident No. 1 was returned to Healey Center, and he began to take his medication again. On April 17, 2006, the day of the survey, Resident No. 1 had agreed, after having a discussion with the psychologist, to submit himself for assessment at a psychiatric facility for voluntary admission. On the day of the survey, Ms. Ashton informed Healey Center that it should not accept Resident No. 1 back. She was very concerned that his aggressive and sexually inappropriate behavior had escalated and had moved from being directed at the staff to the residents. Ms. Ashton determined and testified at hearing that Healey Center should have discharged Resident No. 1. Her testimony is found to be credible. She also determined and testified that, when Resident No. 1 was Baker Acted on April 6, 2006, Healey Center should not have re-accepted Resident No. 1 but should have discharged him. Her testimony is again found credible. Ms. Ashton testified that she determined that Healey Center had committed an isolated Class III deficiency. Her supervisor, Maryanne Salerni, has final approval for the classifications of deficiencies. Ms. Salerni agreed and testified at hearing that the violation was an isolated Class III deficiency. As to Healey Center committing an isolated Class III deficiency, the testimony of Ms. Ashton and Ms. Salerni is found to be credible. On May 15, 2006, Resident No. 1 was Baker Acted. On May 16, 2006, Resident No. 1 was discharged to a mental health facility. At hearing, Ms. Ashton testified that the deficiency had been corrected by May 17, 2006, because Resident No. 1 had been discharged from Healey Center on May 16, 2007.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order finding that Health Care District of Palm Beach County, d/b/a Edward J. Healey Rehabilitation and Nursing Center did not commit an isolated Class II deficiency and dismissing the Administrative Complaint. DONE AND ENTERED this 1st day of May 2007, in Tallahassee, Leon County, Florida. S ERROL H. POWELL 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 1st day of May, 2007.
The Issue The issue presented for decision herein is whether or not Petitioner's facility meets the standards and qualifications to be eligible for licensure as an Adult Congregate Living Facility (ACLF).
Findings Of Fact Petitioner is the owner/operator of Old Cutler Retirement Home (Old Cutler) which is located at 19720 Old Cutler Road in Miami, Florida. Old Cutler has been functioning as an ACLF since at least 1981 and has been the subject of citations for violations of the fire and health safety codes which Respondent enforce. (Respondent's Dade County Health Report dated June 9, 1981.) On October 7, 1985, Respondent conducted a survey of Old Cutler and found the following deficiencies: the income and expense records for the facility were not available for review. services delivered for the facility by a third party contractor were not documented and placed in the residents' records. the facility did not have personnel policies and work assignments. the facility failed to provide assurances that (1) at least one staff member was on duty at all times who was certified in an approved first aid course; (2) staff that provided hygiene assistance was properly trained, and (3) staff was free of communicable disease. the facility did not have written job descriptions available for review. the employees were not furnished written policies governing conditions of employment. full bedside rails were observed in one resident's bed room. notations concerning drug disposition of a former resident's medication were not entered into the resident's file. the facility did not have policies and procedures to insure minimal leisure services for residents. the facility did not have procedures for assisting residents in making medical and related health appointments. residents' bedrooms did not have adequate space for hanging clothes. the facility did not have an adequate number of bathrooms for the residents. furniture at the facility was not kept in good repair. the facility smelled of a strong urine odor. the facility grounds were cluttered with debris and garden/construction equipment. the facility did not have a written main- tenance and housekeeping plan. Food Service irregularities (observed on October 7, 1985): the facility did not have food service procedures to provide for resident's nutri- tional care. the employee designated responsible for providing food service failed to demonstrate proper training of food service personnel purchasing sufficient food, (3) food service coordinated with other services, (4) duties were performed in a safe and sanitary manner, and (5) a knowledge of food that meets regular diets. the therapeutic diets did not meet the residents nutritional needs. there was no documentation of standardized recipes. menus were not planned, dated or posted as required. a week's supply of food was not on hand at the facility. food was not served at a safe, palatable temperature, as example, ambrosia fruit salad was kept and served at room temperature. food service was not properly carried out and the service was unsanitary in that spoiled and rotten food was stored in the refrigerator; the sinks and shelves were soiled, greasy and coated with debris; food was improperly thawed with standing hot water; hair restraints were not used; and at least one food service employee was observed smoking while preparing food. Additionally, on October 7, 1985, the laundry area did not provide the required one hour flame separation from the remainder of the facility. Also, the following fire safety irregularities were noted during the October 1985 survey: a manually operated fire alarm system with activating handles at each exit were not provided. smoke detectors powered by the electric current and interconnected to the fire alarm system was not provided. reports were not provided showing that the fire alarm system was tested quarterly. two means of egress are not provided for rooms 1 and 6. twenty-minute fire rated doors are not provided at all residents' doors. a commercial hood vented to the outside with an automatic extinguishing system is not provided. a key operated lock from the inside appears on the door of Room No. 13. there are obstructions in front of egress doors in room 3 and the dining area. the electric source supply to emergency lighting is provided by an extension cord. Petitioner has placed a mobile home immediately alongside the main facility at Old Cutler and the mobile home is situated closer than ten (10) feet from all sides of Old Cutler. The curtains, drapes, interior walls and ceilings of the mobile home do not provide either the requisite flame spread or are not flame proof as required. The mobile home is not equipped with approved smoke detectors in each room and the east/west end exits are either blocked or difficult to egress. Finally, there are no approved steps at the east exit of the mobile home. These conditions have existed in the mobile home since at least April 1981 and Petitioner has failed to take any corrective action to bring the above-noted irregularities into compliance (Respondent Exhibit 5). Respondent sent its staff along with members of the Ombudsman Council to again survey Petitioner's facility on March 9, 1987. As of that date, Petitioner has not shown any intent to correct the numerous deficiencies noted herein. Additionally, Petitioner advised Human Services Program Supervisor Alvin Delaney that she did not intend to bring her facility into compliance. As noted in the Appearances section of this Recommended Order, Petitioner did not appear at the hearing.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: Respondent enter a Final Order denying Petitioner's application for licensure as an Adult Congregate Living Facility and cancel the conditional license which was issued to Petitioner. RECOMMENDED this 2nd day of April 1987, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 2nd day of April 1987.
Findings Of Fact The Petitioner, St. Jude Manor Nursing Home, is a skilled nursing facility within the meaning of Title XIX of the Social Security Act. In the past, and as recently as October 14, 1976, the Petitioner has received permission for a variance in its seven-bed ward which exceeds the number of beds per ward specified by Section 405.1134(e), Code of Federal Regulations (CFR). The most recent permission for variance has been received from the State of Florida, Department of Health and Rehabilitative Services. The terms and conditions of that variance may be found in Petitioner's Exhibit No. 2 admitted into evidence. In particular, that variance was allowed with the proviso that as patients whose needs justified the type of occupancy in excess of the limit were discharged, the seven-bed ward would be reduced to four beds to achieve compliance with the terms of the Code of Federal Regulations. It was further indicated in the statement of permission that the Respondent expected the reduction to be completed by November 30, 1977. The variance of October 14, 1976, came about after an inspection had been performed by the Respondent at the Petitioner's facility. Following that inspection a statement of deficiencies and plan of correction was made and one of the items, which is the sole item in dispute at this time, dealt with the seven-bed-ward. Out of the August 16-18, 1977, inspection performed by the Respondent, a request for waiver was made by the Petitioner that led to the permission found in the October 14, 1976, letter by the Respondent. (The statement of deficiencies and plan of correction which indicates this request may be found as Hearing Officer's Exhibit No. 1 admitted into evidence.) One of the items in support of the request for variance was a letter from Richard J. Wilhelm, M.D., which spoke to the criteria found in Section 405.1134(e), Code of Federal Regulations (CFR), and apparently this explanation and reason for requesting a variance was persuasive, due to the subsequent grant of the variance. (Dr. Wilhelm's letter may be found as Petitioner's Exhibit 3 admitted into evidence for limited purposes as set forth in the transcript of the hearing.) It is not abundantly clear what transpired beyond the suspension date of the variance; however, the action of the parties beyond that time has led to the current hearing. In essence what has occurred is the fact that the Respondent has taken the position that no further variance may be granted beyond the period of the normal attrition of the three extra patients in the seven-bed ward, which patients were in excess of the four patients allowed in any given room under the terms of the aforementioned Code of Federal Regulations. The Respondent has come the conclusion that no further variance may be granted, premised upon its understanding that it is required to operate within the dictates and requirements and interpretations of the Code of Federal Regulations which have been placed by employees within the United States, Department of Health, Education and Welfare. The Respondent has come to this conclusion after receiving a January 30, 1976 communication from John E. Pipes, Director of the Office of Long Term Care Standards Enforcement, Region IV, United States, Department of Health, Education and Welfare, Atlanta, Georgia. A copy of this letter may be found as Respondent's Exhibit No. 1 admitted into evidence. Within the body of that correspondence Mr. Pipes states that Section 405.1134(e), Code of Federal Regulations (CFR), will only allow a variance to last for as long as the needs of the affected patients justify. Subsequent to that correspondence, officials with the Respondent wrote to Mr. Pipes on March 4, 1976, to try to clarify the status of those nursing homes in the state of Florida which had wards with more than four beds per room, and to try to emphasize to Mr. Pipes the potential loss of beds if the opinion of Mr. Pipes was allowed to go forth on the question of not allowing variances after the first attrition of the patients who were housed in the excess beds. (The full details of the March 4, 1976 letter may be found in a copy of that letter which is Respondent's Exhibit No. 3 admitted into evidence. On April 1, 1976, Mr. Pipes responded to the March 4, 1976 letter and refused to change his position on the question of the variance letter. Henceforward, the Respondent has taken the position that Mr. Pipes' opinion of the meaning of Section 405.1134(e), Code of Federal Regulations (CFR), is dispositive of that issue and the Respondent, as the agent for the State of Florida; in the Respondent's opinion, may not use its independent judgment in determining whether a variance may be granted to a facility with more than four beds in a ward. The position taken by the Respondent is contrary both to the language of Section 405.1134(e), Code of Federal Regulations (CFR), and the terms of the State Plan for Medical Assistance, under Title XIX of the Social Security Act, Revision MSA-PI-75-3 August 20, 1974. This conclusion is reached due to the unequivocal statement found within the referenced section of the Code and the written agreement by the State of Florida to take the responsibility for making determinations under the Code of Federal Regulations in matters pertaining to Title XIX of the Social Security Act, without the necessity of the permission of the United States, Department of Health, Education and Welfare or its officials. The efficacy of this conclusion may be seen by a reading of the portion of Section 405.1134(e), Code of Federal Regulations (CFR), which states: * * * "The Secretary (or in the case of a facility participating as a skilled nursing facility under Title XIX only, the survey agency - See Section 249.33(a)(1)(i) of this title) may permit variations in individual cases where the facility demonstrates in writing that such variations are in accordance with the particular needs of the patients and will not adversely affect their health and safety. Each room is equipped with or is conveniently located near, adequate toilet and bathing facilities. Each room has direct access to a corridor and outside exposure, with the floor at or above grade level. The Petitioner is a facility participating as a skilled nursing facility under Title XIX and the State of Florida, Department of Health and Rehabilitative Services, under the terms of its contract with the United States, Department of Health, Education and Welfare, is the surveying agency, within the meaning of the above referenced provision. Moreover, when this is considered in conjunction with the terms and conditions of that contract, the only reasonable interpretation to be given this matter is that the Respondent not only has the power but has the duty to make determinations on various requests make by those skilled nursing facilities operating under Title XIX only, which are found in the state of Florida. (The after-filed exhibit which is the State Plan for Medical Assistance, under Title XIX of the Social Security Act, Revision MSA-PI- 75-3 August 20, 1974, is hereby made Hearing Officer's Exhibit No. 2 admitted into evidence.) Having resolved this issue in favor of the Petitioner, the question then becomes whether or not the Petitioner has sufficiently demonstrated a right to a variance on the merits of his claim as tendered at the time of the hearing. The principle witness in behalf of the Petitioner who appeared at the hearing for purposes of speaking to the substance of the request was Richard Wilhelm, M.D. Dr. Wilhelm attends the patients in the seven-patient ward and feels that the care that those patients are receiving in the seven-patient ward is equal to the care received by others in the four-patient or less wards. He felt that psychologically the patients in the seven-patient ward are progressing as well as patients in the other rooms and some patients who have been in the seven- patient ward have progressed to the point of being sent to intermediate care or home care. Overall, he is extremely impressed with the care and to cutback the number of beds from seven to four would not help the quality of that care. At present, according to Dr. Wilhelm, none of the original patients who were in the seven-bed ward at the time of the variance being granted in October, 1976, are still in that ward. This is born out by Petitioner's Exhibit No. 6 admitted into evidence, which Is a list of admissions in the seven-patient ward, beginning in August, 1976. through January 11, 1978. C. M. Knight, the Petitioner's administrator, testified at the hearing to the effect that there is more staff participation in the seven-patient ward than in other patient rooms. He also indicated that the patients who were in semiprivate rooms and were subsequently moved to the seven-bed ward have improved. He further stated that patients who had been in the seven-bed ward and been moved to other wards had requested to return to the seven-bed ward. Mr. Knight also expressed some concern that removal of the three beds would hurt the ability of the city of Jacksonville, Florida to respond to the needs for skilled nursing care. He had no particular basis for this conclusion, but it does seem consistent with the fears expressed by Joseph C. Thompson, Acting Chief of the Bureau of Health Facilities, State of Florida, Department of Health and Rehabilitative Services, in his March 4, 1976, correspondence to Mr. Pipes, which is Respondent's Exhibit No. 3. As may be recalled, this letter indicated that at that time 144 beds were feared to be lost by a reduction of beds in the wards with more than four patients. After full consideration of the testimony offered by the Petitioner on the question of a variance, it must be concluded that the variance should be rejected at this time, due to the failure of the Petitioner to sufficiently address the issue of safety, adequate toilet and bathing facilities, and access to the corridor and outside exposure, with floors at or above grade level, as required by Section 405.1134(e), Code of Federal Regulations (CFR). Should these areas of consideration be satisfactorily met, and should the excessive number of patients in the subject ward continue to be in accordance with the particular needs of the patients and not adversely affect their health; then the Respondent acting in its own discretion and not that of the United States Department of Health, Education and Welfare, may grant a variance on the number of patients in the seven-patient ward. Notwithstanding any decision on the request for variance by the Petitioner that may be made in the future, the undersigned is absolutely convinced that the Respondent may not arbitrarily refuse to consider the merits of the variance request based upon its interpretation of the Pipes' correspondence which has been referred to in the course of this Recommended Order.
Recommendation It is recommended that the Petitioner's request for variance under Section 405.1134(e), Code of Federal Regulations (CFR) be denied; however, future consideration of variance requests should be made when those requests are tendered and the request should be considered in keeping with the judgment of the Respondent, State of Florida, Department of Health and Rehabilitative Services. DONE and ENTERED this 26th day of May, 1978, In Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: C. M. Knight, Administrator St. Jude Manor Nursing Home 2802 Parental Home Road Jacksonville, Florida 32206 Robert A. Eisenberg, Esquire Department of HRS District IV Counsel Post Office Box 2417F Jacksonville, Florida 32231 Joseph Dowless, Jr., Director Leonard Schaeffer, Esquire Office of Licensure and Certification Suite 1300, 1845 Walnut Department of HRS Philadelphia, Pa. 19103 Post Office Box 210 Jacksonville, Florida 32201
Findings Of Fact Claridge House is a 240 bed nursing home located at 13900 N.E. 3rd Court, Miami, Florida. Approximately 60 percent of its residents are Medicaid patients. Respondent is the state agency responsible under state and federal law for the administration of the Medicaid program in Florida. Petitioner has its principal place of business in Lincolnwood, Illinois. Petitioner is owned by a partnership. All of the partnership interests are owned by Messrs. Bernard Hollander, Jack Rajchenbach, and Joseph Chou. Petitioner owns and operates a number of health care, facilities including Claridge House. Petitioner, Claridge House, and the individual partners are related parties for Medicaid cost reporting purposes. Approximately 77 percent of all nursing homes are operated by independent management companies. Management companies typically provide accounting services, computer processing, payroll processing, and other technical services directly related to patient care. Management companies generally provide a nursing home administrator. Management companies generally charge a management fee of four to seven percent of the net revenues of the nursing home. Claridge House is a large nursing home facility. It is the fourth or fifth largest facility in the state. Use of an independent management company would have cost Claridge House approximately $500,000 to $600,000 annually. Messrs. Hollander and Rajchenbach together have over 40 years experience in the management and operation of long term care facilities. Mr. Rajchenbach has a degree in Social Services and is uniquely qualified to manage the Social Services Department at Claridge House. In addition, Claridge House is a kosher facility. Mr. Rajchenbach has a Rabbinical degree and supervises the kosher food department. Petitioner decided to avoid the expense of an independent management company and manage Claridge House internally. Claridge House employs a full-time nursing home administrator, Mr. Larry Mankoff. Petitioner filed a cost report for Claridge House for the fiscal year ending February 28, 1990. Petitioner did not file a home office cost report for the same period. The cost report for Claridge House claimed expenses for owners' compensation in the amount of $50,000 for Messrs. Hollander and Rajchenbach. No owner's compensation was claimed for Mr. Chou because he is not actively involved in the operation of Claridge House. Petitioner filed a home office cost report for the preceeding year and claimed owners' compensation of $48,000. The owners' compensation claimed for the preceeding year was allowed by Respondent. The cost report was prepared by Lovelace, Roby & Company, Certified Public Accountants, and signed by Mr. Mankoff. Messrs. Hollander and Rajchenbach were actually compensated in an amount substantially in excess of $50,000. After consulting representatives of Lovelace, Roby & Company, Mr. Mankoff, and the individual partners, it was decided that $50,000 accurately represented that portion of the actual owners' compensation attributable to management services for Claridge House. One of the factors considered in determining the amount of compensation was that Respondent allowed $48,000 in owners' compensation on the cost report for the preceding year. Another consideration was the fact that the current year involved a number of unusual events. Most significantly, a freeze on Medicaid reimbursement increases coupled with increased inflation required closer management and cost control for Claridge House. Many of the services performed by Messrs. Hollander and Rajchenbach were similar to services typically performed by independent management companies. The services were also similar to those performed by Messrs. Hollander and Rajchenbach the previous year. The services performed by Messrs. Hollander and Rajchenbach were reasonably related to patient care. They included: computerization of the facility for more efficient operation; purchasing the hardware and software needed for computerization; supervising an individual computer consultant; supervising the Social Services Department; supervising the kosher food department; cash flow management during the Medicaid freeze, including the management of staffing and patterns and other expenses; negotiating lines of credit with existing creditors and banks; preparing the budget and supervising its administration; overseeing maintenance and operations; supervising key employees such as the nursing home administrator; negotiating with labor unions; approving large purchases; handling landlord-tenant matters; reviewing monthly reports; reviewing reports filed with the Health Care Cost Containment Board; setting fiscal policy; reviewing policies on admissions; supervising the redecoration of the building; and supervising and reviewing insurance coverage for the facility and its personnel. Messrs. Hollander and Rajchenbach had daily telephone contact with key personnel at Claridge House and visited the facility once a month for various periods during the year. The services performed by Messrs. Hollander and Rajchenbach provided a necessary function. If those services had not been performed by Messrs. Hollander and Rajchenbach, it would have been necessary to purchase those services elsewhere at a substantially greater cost to the facility. The services performed by Messrs. Hollander and Rajchenbach were not the same services as those performed by the nursing home administrator. The services performed by the owners are similar to those performed by a regional manager for an independent management company. 5/ Both the services of the regional manager and those of the facility administrator are necessary for the efficient operation of a quality nursing home.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order allowing the expenses claimed in the cost report for owners' compensation in the amount of $50,000. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 22nd day of January, 1992. DANIEL MANRY 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 22nd day of January, 1992.
The Issue The issue is whether Petitioner properly reduced the rating of Respondent's nursing home from Standard to Conditional.
Findings Of Fact Respondent owns and operates a nursing home in Naples. Petitioner conducts periodic surveys of the nursing home to determine whether the licensee should receive a Superior, Standard, or Conditional license rating. Following a periodic survey, Petitioner determined that three Class II deficiencies existed. A Class II deficiency poses "an immediate threat to the health, safety or security of the residents." Consequently, effective May 13, 1998, Petitioner issued a Conditional license. Immediately preceding this license, Respondent had a Standard license. Effective July 13, 1998, Petitioner issued Respondent a Standard license. This case involves only whether Petitioner properly reduced Respondent's license to Conditional for the two-month period starting May 13, 1998. The survey that started May 13, 1998, extended over three days. There is no charging document in this case. There is a revised survey report, which contains 17 findings under four tags. In its opening statement, Petitioner announced that it was proceeding under three tags: F 224, F 225, and F 353. During the hearing, Petitioner announced that it would offer no evidence under findings 2, 3, and 4 of Tag F 224. Petitioner did not present evidence under findings 1, 2, and 4 of Tag F 225, and Petitioner did not present any evidence under Tag F 353 that was not also under another tag. The tags may refer to citations in a manual of Petitioner. Under each tag noted in the survey report, Petitioner cites the relevant legal provision, a summary of the reasons why the legal requirement is unmet, and detailed findings in numbered paragraphs. Next to each finding, Respondent includes a correction plan. Citing "[42 Code of Federal Regulations Section] 483.13(c)(1)(i)," Tag F 224 in the survey report states: The facility must develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse of residents and misappropriation of resident property. The facility must not use verbal, mental, sexual, or physical abuse, corporal punishment, or involuntary seclusion. Tag F 224 in the survey report alleges that "this requirement" is not met because "the facility did not ensure that each resident received the care and services to prevent neglect for 2 (Residents #1 and #3) of 21 sampled residents and 3 residents interviewed." Paragraph 1 of the findings under Tag F 224 in the survey report alleges that staff were not ambulating Resident Number 1; her care plan and records omitted the recommendation of the physical therapist that staff ambulate Resident Number 1 to meals; and staff failed to timely assist her in requested transfers and thus left her with no choice but to urinate in her bed or chair. Resident Number 1 had undergone surgery for a hip fracture and received physical therapy to improve her balance, transfers, and gait. The physical therapist had discharged Resident Number 1 on April 30, 1998, with instructions to the nursing staff to walk her from her room to the dining room for each of her meals. The physical therapist trained the nursing staff, who were Certified Nursing Assistants, regarding ways to help Resident Number 1 ambulate safely. On two days, a volunteer took Resident Number 1 in a wheelchair from an activity on the second floor to the first- floor dining room for lunch. However, volunteers did not attempt to ambulate residents who had difficulty walking. One or more Certified Nursing Assistants walked Resident Number 1 on the days in question the distance between her room and the dining room. On at least one of the observed days, the Certified Nursing Assistant walked Resident Number 1 from the dining room, where the volunteer had left her, to her room, and then back to the dining room for lunch. Petitioner's nurse surveyor testified that the issue in Tag F 224 is whether Respondent implemented its policies prohibiting the neglect of residents. There is no credible evidence that Respondent neglected Resident Number 1, or that the care provided by staff following her hip surgery in any way contributed to a decline in the health or ability to ambulate of Resident Number 1. To the contrary, although Resident Number 1 could never regain her ability to walk without assistance, she did increase the distance that she could walk with assistance in the six weeks following the survey. There is no evidence of a failure of staff to respond promptly to requests by Resident Number 1 for assistance in toileting. Petitioner has failed to prove that, as to Resident Number 1, Respondent failed to implement its policies prohibiting neglect. Paragraph 2 of the findings under Tag F 224 in the survey report alleges that Resident Number 3 was admitted on March 25, 1998, and was coughing up formula on March 26 at 1:00 a.m. During the afternoon of March 27, Resident Number 3 allegedly had a temperature of 100.8 degrees. The next day, the temperature was allegedly 100.7 degrees. On the afternoon of March 29, Resident Number 3 had a moist, productive cough and a temperature of 102 degrees. A nurse administered Tylenol. Seven hours later, that evening, Resident Number 3 had a temperature of 103.8 degrees, which, after another administration of Tylenol, dropped to 101.9 degrees one hour later and then 99.1 degrees, although he was having trouble breathing. At 1:00 a.m. on March 30, Resident Number 3 allegedly suffered from uneven breathing, at times labored, and, by 6 a.m., his temperature was 101 degrees. Paragraph 2 alleges that staff did not notify the physician of Resident Number 3 of these temperatures and symptoms until 3:00 p.m. on March 30, at which time the physician of Resident Number 3 arrived and examined Resident Number 3; a chest x-ray revealed pneumonia. The facts are as alleged, except that the physician visited Resident Number 3 on the morning of March 30. There is no credible evidence that Respondent's staff cared for Resident Number 3 improperly or should have contacted his physician at an earlier point than the morning of March 30. Petitioner has failed to prove that, as to Resident Number 3, Respondent failed to implement its policies prohibiting neglect. Citing "[42 Code of Federal Regulations Section] 483.13(c)(1)(ii)," Tag F 225 in the survey report states: The facility must not employ individuals who have been found guilty of abusing, neglecting, or mistreating residents by a court of law; or have had a finding entered into the State nurse aide registry concerning abuse, neglect, mistreatment of residents or misappropriation of their property; and [must] report any knowledge it has of actions by a court of law against an employee, which would indicate unfitness for service as a nurse aide or other facility staff to the State nurse aide registry of licensing authorities. The facility must ensure that all alleged violations involving mistreatment, neglect, or abuse, including injuries of unknown source and misappropriation of resident property[,] are reported immediately to the administrator of the facility and to other officials in accordance with State law through established procedures (including to the State survey and certification agency). The facility must have evidence that all alleged violations are thoroughly investigated, and must prevent further potential abuse while the investigation is in progress. The results of all investigations must be reported to the administrator or his designated representative and to other officials in accordance with State law (including to the State survey and certification agency) within 5 working days of the incident, and if the alleged violation is verified appropriate corrective action must be taken. Tag F 225 in the survey report alleges that "this requirement" is not met because the facility "did not thoroughly investigate injuries of unknown origin for 1 (Resident #14) of 21 residents sampled, 3 residents from group interview, 1 resident observed and 1 resident based on family interview." Paragraph 3 of the findings under Tag F 225 in the survey report alleges that the nurses' notes on Resident Number 14 revealed skin tears of unknown origin on November 17, 1997, and January 19, May 5, and May 10, 1998, and a bruised and swollen great and fourth toes of the right foot on February 11, 1998. The staff allegedly failed to investigate these incidents. Nurses' notes document four skin tears, as alleged, but not the bruised and swollen toes, to which Petitioner produced no admissible evidence. Respondent's policy is for anyone who sees an incident or injury to report it to a nurse, who documents the report, and forwards the information to the Director of Nursing, who is a Registered Nurse. The Director of Nursing investigates the matter and reports her findings to Respondent's Executive Director. The Director of Nursing investigated each incident of a tear of the skin of Resident Number 14. She determined that Resident Number 14 had fragile skin, and her wheelchair sometimes injured her feet. She reasonably concluded each time that there was no indication of abuse or neglect. Petitioner has failed to prove that Respondent did not investigate possible incidents of abuse or neglect concerning Resident Number 14. Citing "[42 Code of Federal Regulations Section] 483.30(a)(1) and (2)," Tag F 353 in the survey report states: The facility must have sufficient nursing staff to provide nursing and related services to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident, as determined by resident assessments and individual plans of care. The facility must provide services by sufficient numbers of each of the following types of personnel on a 24-hour basis to provide nursing care to all residents in accordance with resident care plans: Except when waived under paragraph (c) of this section, licensed nurses; and other nursing personnel. Except when waived under paragraph (c) of this section, the facility must designate a licensed nurse to serve as a charge nurse on each tour of duty. Tag F 353 alleges that "this requirement" is not met because the facility did not provide sufficient nursing staff to meet the needs of the residents. There are three paragraphs of findings under Tag F 353 in the survey report. None identifies a resident by number. Paragraph 1 states that family members witnessed two Certified Nursing Assistants, and presumably no one else, serving 33 residents, whose unmet needs resulted in urination in incontinence for some. Paragraph 1 states that several residents complained that staff do not timely answer call lights due to short-staffing. Paragraph 2 alleges that one resident complained that staff replied to his requests for assistance in getting out of bed by saying that they would "do it when they have the time" and that they "can't be bothered." Paragraph 2 alleges that one resident was not ambulated three times daily to her meal. Paragraph 3 alleges that several residents complained of untimely assistance resulting in incontinence and "rough handling" due to untrained or insufficient staff. At all times, Respondent maintained the minimum required staff at the facility. If this tag is merely a reallegation of the ambulatory issue regarding Resident Number 1, Petitioner has failed to prove a deficiency in her care. If Petitioner intended to raise other issues with this tag, there is no evidence in support of such allegations. Petitioner has failed to prove that Respondent failed to maintain sufficient nursing or other staff.
Recommendation It is RECOMMENDED that the Agency for Health Care Administration reissue the subject license as Standard. DONE AND ENTERED this 6th day of April, 1999, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of April, 1999. COPIES FURNISHED: Karel Baarslag, Senior Attorney Agency for Health Care Administration Post Office Box 60127 Fort Myers, Florida 33901-0127 R. David Thomas, Jr. Qualified Representative Broad and Cassel Post Office Drawer 11300 Tallahassee, Florida 32302-1300 Ruben J. King-Shaw, Jr., Director Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Paul J. Martin, General Counsel Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Sam Power, Agency Clerk Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229
