The Issue Whether the Petitioner was properly issued a conditional license on March 24, 1997.
Findings Of Fact Survey Background Rio Pinar (Petitioner) is a 180-bed nursing home in Orlando, Florida, licensed by the Respondent pursuant to Chapter 400, Florida Statutes. Pursuant to its licensing authority the Respondent conducts surveys of nursing homes to determine compliance with statutes and regulatory standards that are established by the state, as well as the federal Medicare and Medicaid programs. On February 13, 1997, the agency conducted an annual re- certification survey of Petitioner. The multi-disciplinary survey team was comprised, in part, of Sharon Hudson, Zola Whitmore, James Lang, and Lisa Privett. The team met with facility staff, then toured the facility to develop a sample of residents on which to conduct an in-depth review. Two of the issues on which the team focused were falls and restorative care by patients. The information was obtained by the team from patient examinations, records' review, and discussions with staff. At the conclusion of the survey inspection, Respondent issues a survey report which sets forth the factual findings made by the surveyors (which are organized as deficiencies by Tag numbers), the applicable federal and state regulations which the surveyors believe have been violated by the facility, and a federal scope and severity rating and state class rating for each tag numbered deficiency. Respondent issues a nursing facility a conditional license anytime it finds a state Class I or II deficiency or anytime it finds a Class III deficiency that is not corrected within the time frame mandated by AHCA. (Section 400.023, Florida Statutes.) In each of the nine annual surveys preceding February 1997, Petitioner received a Superior licensure rating. Falls The nursing home is required to ensure that each patient receives adequate supervision and assistance devices to prevent accidents. An accident is an unexpected, unintended event that can cause bodily injury. It does not include adverse side effects or reactions to drugs. The most common accidents in nursing homes are falls by patients. The facility is expected to provide the supervision necessary to prevent those falls, and each patient must be assessed for being at risk. Tag F324 of the survey report alleges that Petitioner violated 42 CFR s. 483.25(h)(2), which provides that a facility "must ensure that a resident receives adequate supervision and assistive devices to prevent accidents." Respondent's surveyors testified that 11 residents: residents numbered 1, 2, 3, 5, 8, 10, 11, 12, 14, 23, 27, and 30 identified under Tag F324 of the survey report did not receive adequate supervision to prevent accidents because the facility did not timely assess these residents for interventions to prevent falls. They also testified that one of the residents, Resident number 4, did not receive appropriate restorative training that could have prevented a fall suffered by that resident. Finally, Respondent alleged that the number of surveyed residents at Rio Pinar who had fallen was exceptionally high and reflected inappropriate care. Petitioner comprehensively assesses each of its residents for their risk for falls and, where appropriate, provides a preventive care plan for those residents. An assessment is a thought process designed to lead a care-giver to determine the appropriate plan of care for a resident. Each resident is assessed for his or her risk for falls through a variety of assessment mechanisms. Resident 1 fell on November 24, 1996, after having been admitted to the facility on October 28, 1996. No preventable cause of the fall was found. Resident 1 was assessed by Petitioner upon admission for her risk for falls using the MDS assessment and Physical Therapy Assessments. She was determined to be independently ambulatory but cognitively impaired so that there was no care plan to prevent falls that could have been written or implemented for her other than "common sense" nursing. While sitting in a chair in her room, Resident 8 fell asleep, slumped over and hit her head on the windowsill next to her chair. No preventable cause of the fall was found. Resident 8 had been comprehensively assessed for her risk of falls by Petitioner, was determined to be totally dependent upon the facility for assistance in transfers and ambulation, and had a written care plan in place to prevent falls at the time she slumped over and hit her head on the windowsill. The resident was not considered to be at risk for falls while sitting in her chair, and there were no care plan interventions written to address that risk. The use of a helmet would be highly intrusive and is not a viable preventative measure in this case. Resident 14 fell on January 15, 1997. No preventable cause of the fall was found. Prior to her January 15, 1997, fall, Resident 14 had been at Petitioner for four years and had not fallen. However, she had been assessed for her risk for falls and was determined to be independent in her ambulatory skills so that she needed no care plan to prevent falls. There was no evidence submitted by Respondent regarding Resident 30. Resident 5 fell on December 7 and December 17, 1996. Resident 5 had been assessed by Petitioner using the Minimum Data Set (MDS) and Physical Therapy Assessments. Like many of the other cited residents, she was independently ambulatory and had dementia. She had a tendency to wander and thus a specific care plan was in place to address that problem. However, her other conditions did not merit a specific care plan to prevent falls. Resident 5's fall on December 7, 1996, was investigated and no cause was found. However, because the Resident fractured her femur and suffered a decline, the facility re-assessed her and properly deemed her to be at risk for future falls. A care plan to prevent falls was drawn up by the physical therapy department that included providing the Resident with assistance in all transfers and ambulation, putting the side rails up while the Resident was in bed, and providing the Resident with a wheelchair and a walker. Her fall of December 17, 1996, was investigated and no cause was found, nor was there any supervision or assistive device that was lacking. Resident 11 did not fall during this period. Petitioner assessed Resident 11 for her risk for falls and had a care plan in place to address her need for assistance in transfers and ambulation. In addition, she was put on an ambulation program, was given a wheelchair and had a "lap buddy" to use to prevent falls from the wheelchair. Resident 3 fell twice over the course of four months, once on August 5, 1996, and once on November 10, 1996. Resident 3 was assessed by Rio Pinar when she was admitted to the facility and four days prior to her initial fall. Those assessments determined that the Resident was independent in ambulation and transfers and had dementia. Accordingly, there was no written care plan to prevent falls prior to August 5, 1996. After her fall on August 5, the incident was investigated and no preventable cause for the fall was identified. However, the facility prepared a written care plan to prevent falls that essentially emphasized common sense preventative measures because the Resident's assessed conditions did not merit additional supervision or assistive devices. Likewise, the November fall was investigated and no preventable cause was found that merited a change in this Resident's care plan. Resident 2 wore a halo device and was found sitting on her floor on December 4, 1996. The Resident's fall was investigated by nursing but the investigation did not identify any preventable cause that merited a change in the care plan approaches. The Resident had been assessed for falls and a care plan had been in place to prevent falls since November 19, 1996. That plan included physical therapy, a wheelchair and walker, assistance in ambulation, and side rails while in bed. Because the halo device was heavy, the Resident was also instructed to be careful; however, she would frequently ignore those warnings. Resident 10 was found sitting on the floor on January 21, 1997, and slipped on February 1, 1997. No preventable causes were identified for either fall. The first fall was caused by the Resident being startled by another resident in the facility. The second fall occurred because the Resident slipped while wearing shoes with slippery soles. Neither of the falls could have been prevented by Petitioner with interventions that were not already addressed in the Resident's plan of care. The Resident had been assessed for her risk for falls and, even though she was independent in her ambulation, had a care plan in place in September of 1996 to prevent falls. The facility was particularly concerned that the Resident, who was capable of dressing herself, would put on shoes that had slippery soles. Accordingly, the care plan provided that the facility would encourage the Resident to wear shoes with non-slip soles. The facility could do nothing more than encourage the Resident to wear appropriate shoes since the Resident could dress herself and her choices had to be respected by the facility. Resident 27 fell on December 8, 1996. No preventable cause of the fall was identifiable. Resident 27 was assessed upon admission to the facility in November 1996, and was determined to be at high risk for falls. A care plan to address falls was developed for this Resident that included assistance with ambulation, a daily ambulation program and side rails up while the Resident was in bed. Resident 4 fell twice on February 1, 1997. The February 1st fall was investigated by nursing and was determined to have been caused when the Resident attempted to get in bed by herself and missed the bed. The Resident was cognizant enough to know that she should call for assistance when needed so that it was determined that there was no additional supervision or assistive device that could have prevented the fall that was not already in place. This Resident had a care plan in place to prevent falls that was based on common sense preventative measures. The common sense approach was used because the Resident was independent in ambulation. Because of that independence, there was never any recommendation made by physical therapy or nursing that the Resident receive gait or balance programs, and none was given. Resident 23 fell on January 29, 1997. The Resident fell while going to the bathroom. No preventable cause of the fall was determined. This Resident had been assessed for her risk for falls, and her fall on January 29, 1997, was thoroughly investigated. The Resident had been initially assessed as being at risk for falls, but that risk was addressed through physical therapy and restorative ambulation. Respondent suggested that deficient care was given at Rio Pinar to prevent falls because there was an unusually high number of residents at Rio Pinar who experienced falls. Respondent surveyed 30 residents at Rio Pinar and 12 of them -- 40 percent of the sample -- had fallen. However, the sample pool of residents was compiled from the files of residents who had fallen. The sample used by the surveyors -- and the percentage of residents who fell -- was not randomly created but produced a high percentage of residents who had fallen. Petitioner experiences approximately 360 falls per year by its residents. Three hundred and sixty falls a year by its residents is within the average number predicted by one clinical study. Respondent proposed that a facility must provide one- on-one care, 24-hours a day to residents who are at risk for falling if that is the only way to ensure that a resident will not fall. This type of staffing would significantly exceed the staffing requirements set forth in the state regulations and is unreasonable. Petitioner was not cited as being in violation of any minimum staffing requirements. Such a high level of supervision would require a tremendous increase in staff which would, in turn, result in a tremendous cost to the facility and its residents. Petitioner would be required to double its current staff. Providing that level of care is neither feasible nor consistent with generally accepted standards of care. Restorative Care Tag F311 of the survey report alleges that Petitioner violated 42 CFR 483.25(a)(2), which provides that a facility must ensure that "a resident is given appropriate treatment and services to maintain or improve" his or her activities of daily living ("ADLs"). Specifically, Respondent alleged that five residents did not receive restorative ambulation programs, two residents did not receive bowel and bladder programs, and one resident did not receive a restorative feeding program. A resident's ADLs include ambulating, feeding, toileting, grooming and bathing. When a resident's ability to do these activities has declined, the facility will frequently implement a restorative care program to address the decline, or will implement a maintenance program to maintain the resident's status if the resident's decline cannot be improved. At Petitioner Rio Pinar restorative or maintenance programs are developed by one of the therapy departments in the facility after an assessment of the resident's needs by the appropriate therapist. The programs are implemented by the nursing staff based upon instruction from the therapist who developed the program. Programs dealing with ambulation are developed by the Physical Therapist. Programs dealing with feeding are developed by the Occupational Therapist. The bowel and bladder program at Petitioner is developed and implemented by the nursing staff. Most bowel or bladder programs which are implemented for residents in a nursing home are for residents who have suffered irreversible declines in their bowel or bladder functions. In these cases, there is little prospect that they can be restored to independent status. The objectives for those residents are preventing incontinent episodes from occurring, keeping the resident dry and free of skin breakdown, and maintaining the resident's dignity. At Petitioner, the preferred toileting program for incontinent residents is a program that requires a staff member to check on a resident every two hours and toilet the resident if appropriate. An alternative program for residents is a "patterning program" which attempts to determine the resident's bathroom pattern and uses that pattern to schedule when a resident should be toileted. Either of these programs can meet the needs of an incontinent resident, and neither program is a demonstrably better program than the other. Although the program of choice at Petitioner is the two-hour program, Petitioner does attempt to ascertain toileting patterns for residents, and will follow those patterns instead of the two-hour system where the patterns can be ascertained. Respondent alleged that three Certified Nursing Assistants ("CNAs") at Petitioner had not completed a restorative training course offered at the facility and implied that they were inadequately prepared to give restorative care. The training course the CNAs missed was only an in-house refresher course of restorative care techniques which the CNAs had previously been taught during their certification training. The course was not required by any state or federal regulation. Furthermore, the CNAs received individualized instruction for restorative care from the Physical Therapy department for each resident for whom restorative care was ordered. Respondent alleged that Resident 1 had an unsteady gait and did not receive any restorative ambulation program for that problem. This was based upon an assessment done when the Resident was admitted to the facility which indicated that the Resident's gait was "wide based." That assessment was interpreted to mean that the Resident was unsteady when she walked. Resident 1 was assessed by the Physical Therapy Department upon her admission to the facility and it was that Department which determined that the Resident had a wide-based gait. A wide-gait is a steady gait. Resident 1 was further assessed to be independent and at her optimal level of ambulation. No restorative ambulation program was needed by or ordered for the Resident. It was alleged that Resident 7 did not receive required restorative ambulation, and that he had family members who were concerned about their ability to ambulate this Resident as a result of the absence of that program. Resident 7's ambulation program was daily ambulation with hand-held assistance from the nursing staff. It was not a restorative program but was designed to maintain the Resident's ambulatory abilities because he was ambulating at his highest capability. Resident 17 was admitted to Petitioner with orders for physical and occupational therapy. She began taking her occupational therapy; however, due to a bad experience she had with physical therapy while in the hospital, she refused to take physical therapy while in the hospital. She also refused to take physical therapy at Petitioner. She was given a psychiatric evaluation which recommended that the physical therapist go by and say "hello" to the Resident to try and help increase the Resident's confidence. Petitioner was required to honor the Resident's choice not to participate in physical therapy. It was alleged that there was no evidence to indicate that the physical therapist acted on the psychiatrist's recommendation. Going by and saying hello to a resident is not part of physical therapy or restorative care. Nonetheless, the physical therapist went by and visited with Resident 17 in an effort to build rapport with her. Because she was not giving physical therapy to this Resident, the physical therapist did not document these visits in her notes. Furthermore, the Resident's restorative needs were being met by the Occupational Therapy department at Petitioner. The Resident was in need of upper body strengthening, and the therapy provided by the Occupational Therapist was addressing that need. The Resident was not deprived of any ADL by her failure to participate in a physical therapy program. Resident 28 had declined, but maintained some ability to feed himself with assistance. He was discharged to a restorative self-feeding program. It was alleged that there was no evidence that the program was ever implemented for this Resident. Resident 28 had only minimal ability to feed himself, and the Occupational Therapist who developed his restorative feeding program was not optimistic that the program could improve the resident because he had declining dementia. The prescribed program was started but had to be discontinued almost immediately. The Resident suffered a significant weight loss, and the nurses were instructed to discontinue the feeding program in that event. Thereafter, the program was not re-started because the Resident suffered a further decline due to his dementia and could not have any of his feeding abilities improved. In the brief time between the implementation of the program and its termination, the Resident's wife attempted to feed the Resident by herself. This act, motivated out of an understandable difficulty in watching her husband struggle to feed himself in the restorative program, was counter-productive to the goal of the program that the Resident learn to feed himself. The wife had been involved in the training instructions for the program and had been reminded frequently of the need for the Resident to feed himself, but she fed him anyway. The Occupational Therapist was not interviewed prior to citing this deficiency. There was no deficiency if the Occupational Therapist determined that the Restorative Program for this Resident should be discontinued. The Occupational Therapist made that determination for this Resident. Resident 27 was discharged from physical therapy to a restorative ambulation program. It was alleged that there was no evidence that the ambulation program was administered in December. However, the program was given for 14 of the 17 days that the Resident was in the facility. Respondent claimed that Residents 19 and 30 suffered declines in bowel and bladder functions and were not further assessed to determine if they could be placed in a retraining program. The Residents were not observed to be wet or otherwise unattended regarding their toileting needs. Both Residents were assessed using the MDS, which contains a comprehensive assessment (including a RAP key) for incontinence. Neither Resident could be restored to continence or independent status. They were both placed on a two-hour toileting program.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Respondent enter its Final Order granting Petitioner's request to change its conditional license rating for the period contemplated by the February 1997 survey. DONE AND ENTERED this 29th day of April, 1998, at Tallahassee, Leon County, Florida. COPIES FURNISHED: R. Davis Thomas, Jr., Esquire Qualified Representative Donna H. Stinson, Esquire Broad and Cassel Post Office Box 11300 DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 1998. Tallahassee, Florida 32302-1300 Thomas W. Caufman, Esquire Agency for Health Care Administration 7827 North Dale Mabry Highway Tampa, Florida 33614 Jerome W. Hoffman, General Counsel Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Sam Power, Agency Clerk Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308
Findings Of Fact The semi-annual census report by DHRS for District. III dated December 1, 1984, (Exhibit 23) indicated a need for 615 additional nursing home beds for the January 1985 review cycle. Although this report cautioned that changes in reporting and pending litigation or appeals could change the count of approved beds, nevertheless, most of the applicants for beds in the January 1985 batching cycle relied on this report as the basis for their applications. At the time this report was submitted, District III was subdivided into seven sub districts, and the need for each sub district was separately listed. Prior to the completion of the review of the applications in the January 1985 batching cycle, some 500 nursing home beds in District III were allocated to applicants in earlier batching cycles whose applications had been denied for lack of need, and who were in the process of appealing those denials. Many of these applications had been updated and those beds were issued by DHRS pursuant to its then-current policy of issuing beds on a first come-first served basis. As a result, only some beds were allocated to those applicants in the January 1985 batching cycle before the pool of available beds was depleted. Furthermore, rule changes became effective before the January 1985 batching cycle applications were reviewed which eliminated sub districts in District III. Largely because of the allocation of beds to applicants in earlier batching cycles, but also due to population based changes in District III, the bed need methodology, using data current at the time of the hearing and computing need to January 1988, shows there will be an excess of 342 nursing home beds in District III in 1988. (Exhibit 33) Eustis Limited Partnership The initial application of Eustis was for 8 additional beds which involved construction costs. The amended application which was considered in this hearing is for three (3) beds with costs allocated only for the equipment and furniture needed to add a bed to three existing rooms. As amended, Eustis' application is very similar to the application of Oakwood Nursing Center who was granted a CON for the addition of three (3) beds without construction costs. At the time Oakwood's CON was granted, DHRS was in the process of granting CONs for 103 beds. At the time Eustis submitted its application, all of the 615 beds initially available had been dispensed and there was no need for additional beds. At this hearing, Eustis produced no evidence to show a need for the three (3) beds for which Eustis applied. The evidence submitted by Eustis primarily showed that by simply adding a bed to three existing rooms, the cost per bed added was far less than would be the cost of constructing new facilities. Inverness Convalescent Center (ICC) ICC proposes to construct and operate a 120-bed nursing home in Citrus County at a cost of $3,400,000. (Exhibit 15) Citrus County has four licensed nursing homes with a total of 430 beds and an average occupancy rate of less than 90% during the last reported six-month period. (Exhibit 17)- During the last quarter of 1985, the occupancy rate in Citrus County nursing homes was the lowest of the planning areas in District III, and in the first quarter of 1986, it was second lowest. ICC contends the need formula doesn't apply to their application because they propose to serve special needs of the elderly, such as institutionalized patients, head trauma patients, etc. However, the only testimony presented indicating a need in Citrus County for such special services came from ICC owners and employees who live in New Jersey. ICC further contends that since there are less than 27 nursing home beds in Citrus County per 1,000 residents over age 65, that an additional nursing home is needed in Citrus County. However, the 27-beds per 1,000 population is but one factor considered in determining need for nursing home beds. In short, ICC presented no evidence to show that need exists in Citrus County for the proposed facility. Beverly Enterprises Beverly's application is for a CON to add 60 beds to an existing 120-bed nursing home in Live Oak, Suwannee County, Florida, at Suwannee Health Care Center. This facility was opened in 1983 and reached full capacity in seven to nine months. There are two nursing homes in Suwannee County; Suwannee Health Care Center, (HCC) and Advent Christian Village, Dowling Park (ACV). The latter is a church owned retirementc ~B community of 550 residents which provides a continuum of care on five levels. Although Advent Christian is not licensed as a life care community, it gives priority of admission to its 107 licensed nursing home beds to residents of the life care community. As a result, there are few vacancies available for persons living outside the retirement community. Advent - Christian has a waiting list of 32 on the active waiting list and ~20 on an inactive waiting list. People on waiting lists are told the wait is from one to five years for admission. Suwannee HCC has an occupancy rate approaching 100% and a waiting list of approximately 50. As a result, the vast majority of Suwannee County residents needing nursing home care are sent to a nursing home outside Suwannee County, usually in Gainesville, some 65 miles from Live Oak. The planning area in which Suwannee County is located, formerly sub district 1 in District III, has five nursing homes with an average occupancy rate for the last three months of 1985 and the first three months of 1986, ranging from 96.91% to 99.75%. During the first three months of 1986, the occupancy rate of three of these nursing homes was greater than 99%' one as 98.7% and the lowest, Advent Christian, was 96.91% (Exhibit 17). The patient mix at Suwannee ACC is over 80% Medicaid and approximately one-third black. The black population is about 30% of the total population in Suwannee County. Suwannee HCC has had several superior ratings (Exhibits 9, 10), takes patients in order on the waiting list regardless of whether they are Medicaid or private pay, and has a very good reputation in the area for service. DHRS personnel who approve Medicaid placement of patients, hospital employees who have the duty of placing patients in nursing homes, nursing home personnel, and private citizens with relatives in nursing homes, all confirmed the critical access problems of Suwannee County residents for local nursing home placement. Live Oak residents, for example, who need placement in a nursing home are usually sent outside Suwannee County, have their names added to waiting lists at nursing homes in Live Oak, and nursing homes closer to Live Oak than the nursing home in which they are placed, and move to the closer nursing home when a vacancy occurs. As a result, most of the vacancies at Suwannee HCC are filled by patients who were, first transferred outside Suwannee County for nursing home placement, and got on the waiting list at Suwannee HCC. There are very few patients from Suwannee County who are initially placed in a Suwannee County nursing home. Southern Medical Associates (SMA) SMA proposes to construct and operate a free standing, 60-bed, skilled nursing home in Palatka, Putnam County, Florida, at a cost of $1,692,400. (Exhibit 19) When SMA's application was submitted the computation of bed need in Suwannee County under the sub district rule in effect when the application was submitted, showed 30 beds needed in Putnam County. This calculation included 36 beds earlier approved but not yet licensed. At the time of this hearing those approved 36 beds had been revoked by reason of not beginning construction in a timely fashion. The medical consultant who reviewed these applications and prepared most of the State Agency Action reports, (Exhibit 30) initially recommended that SMA'S application be granted. The two existing nursing homes in Putnam County have an occupancy rate in excess of 98 percent for the latest reported 3 month period. (Exhibit 17) 85 to 90 percent of these patients are Medicaid patients. The one nursing home in Palatka, Putnam Memorial Nursing Home, is a 65-bed nursing home with an occupancy rate in excess of 99 percent for the past year, and on the date of hearing had 18 people on the waiting list for a bed. The turnover in this nursing home is about 50 percent each year, with most vacancies resulting from the death of a patient. Two HRS employees whose job it is to determine eligibility of residents of Putnam County for Medicaid reimbursement for nursing home care, testified that they very, seldom see a patient go to Putnam Memorial Nursing Home, that over half of the patients they qualify for eligibility are sent out of the county, and of those placed in the county, almost all are placed at Lakewood Nursing Home which is located 18 miles from Palatka. The only hospital in Putnam County discharges 5 to 6 patients per month who need additional nursing care after discharge. Most of these patients are sent to nursing homes in St. Augustine, Florida, a few are sent to Lakewood, but for very few is a bed available in Palatka.
The Issue Whether Respondent's license as a nursing home administrator in the State of Florida should be suspended, revoked, or otherwise disciplined for the alleged violation of Chapter 468, Florida Statutes, as set forth in the Administrative Complaint filed October 10, 1988. The Administrative Complaint charges Respondent with violating Section 468.1755(1)(g), Florida Statutes, because of alleged negligence, incompetence or misconduct in the practice of nursing home administration, and Section 468.1755(1)(m), Florida Statutes, as a result of willfully or repeatedly violating any of the provisions of the law, code or rules of the licensing or supervising authority or agency of the state having jurisdiction of the operation and licensing of nursing homes. The charges are based on the allegation that Respondent was the Administrator in charge of a nursing home in Miami, Florida while also acting in the capacity of Administrator at another facility without having a qualified Assistant Administrator to act in his absence. This case was originally scheduled for hearing on March 26, 1989. That hearing was continued while the parties attempted to finalize a settlement agreement. On April 25, 1989, the Petitioner, Department of Professional Regulation, Board of Nursing Home Administrators entered a Final Order imposing a reprimand on Respondent. Respondent objected to the Final Order and contended that it was not in accordance with the settlement negotiations that took place. A Notice of Appeal was filed in connection with the Final Order. Subsequently, the parties agreed that the appeal should be dismissed and the case was remanded to the Division of Administrative Hearings to conduct a formal administrative hearing. At the hearing, Petitioner called two witnesses: James W. Bavetta, an inspector with the Department of Health and Rehabilitative Services, Office of Licensure and Certification and William Carl Wheatley, Jr., a licensed Nursing Home Administrator in the State of Florida, who was accepted as an expert in the field of nursing home administration. The Petitioner offered three exhibits into evidence all of which were accepted. The Respondent testified on his own behalf and had fourteen exhibits marked, all of which were accepted into evidence except Respondent's Exhibit 2 which was not offered. At the conclusion of the hearing, the parties requested and were granted an opportunity to brief certain legal issues raised during the hearing in order to obtain a ruling on those issues prior to submitting proposed recommended orders. However, the parties subsequently withdrew this request and by Agreed Order dated December 29, 1989, the parties were granted until January 29, 1990 to file their proposed recommended orders. The parties were also granted fifteen days after submission of proposed recommended orders to file a reply memoranda to the legal issues raised in the proposals. Both parties filed proposed recommended orders. In addition, Respondent filed a Memorandum Brief regarding certain legal issues raised. The Petitioner did not file a separate brief on the legal issues. The Petitioner's proposed recommended order was filed on January 30, 1990. By notice filed on February 5, 1990, the Respondent waived any objection to the late filing of Petitioner's Recommended Order. All submittals have been reviewed and considered in the preparation of this Recommended Order. A ruling on each of the parties' proposed findings of fact is included in the Appendix to this Recommended Order. Prior to the hearing, Respondent had filed a Motion to Compel Complete Response to Respondent's Request for Production of Documents. That Motion was related to the purported failure by the Department of Health and Rehabilitative Services to produce documents requested pursuant to subpoena Duces Tecum issued August 16, 1989. The Department of Health and Rehabilitative Services ("HRS") is not a party to this action, but it filed a Response to Motion to Compel indicating that HRS's records were not kept in a manner which would allow the agency to isolate the documents requested without going through every licensure file kept by the agency. HRS offered the Respondent an opportunity to undertake such an investigation. At the commencement of the hearing, the Respondent advised that he was prepared to go forward with the hearing without a ruling on the Motion to Compel. However, counsel for Respondent requested the opportunity to revisit this issue, if necessary, at the conclusion of the hearing. During the hearing, an investigator from HRS testified and produced certain documents relating to Respondent's Florida facility. In addition, the HRS investigator testified regarding certain HRS policies and procedures. Based upon the evidence adduced at the hearing, the Motion to Compel appears moot and Respondent has not addressed this issue in his proposed recommended order. Therefore, the Motion to Compel is denied. At Petitioner's request, official recognition has been taken of Rule 10D- 29.104(6)(c).
Findings Of Fact Based upon the testimony of the witnesses and documentary evidence received at the hearing and the entire record herein, I make the following findings of fact: The Respondent, is a licensed Nursing Home Administrator in the State of Florida, license number NH 0001018. He has been duly licensed in Florida since 1974-1975. At all times material hereto, the Respondent has been the nursing home administrator in charge at Riverside Care Center ("Riverside",) a nursing home located at 899 N.W. 4th Street, Miami Florida. Respondent has never been the designated nursing home administrator for any other facility licensed by or located in Florida. At all times material hereto, Riverside held and continues to hold a superior rating issued by Florida HRS pursuant to Section 400.23, Florida Statutes. At all times material hereto, Respondent has been a licensed nursing home administrator in the State of Kentucky, having been issued license number 420. Respondent has also been a licensed nursing home administrator in the State of Ohio since 1973. Other than the charges in this case, Respondent has never been the subject of disciplinary action or faced administrative charges in any of the states in which he is licensed. At all times material hereto, Respondent has been the licensed nursing home administrator in charge of Garrard Convalescent Home, (`1Garrard") located at 425 Garrard Street, Covington, Kentucky 41011. In December, 1985, as a part of the re-licensure process, Riverside filed DHRS Form 109 with MRS. The information contained on that form disclosed that Respondent served as an Administrator for Garrard which is a superior rated nursing home located in and licensed by the Commonwealth of Kentucky. Prior to July 11, 1986, Riverside designated in writing, Richard Stacey and Riverside's Director of Nursing, as the persons in charge and responsible for the facility in the absence of Respondent from the facility. On July 11, 1986, Richard Stacey, Respondent's brother, was a nursing home administrator licensed by Kentucky. Thus, he had passed the national examination. He had applied for an administrator's license by endorsement in Florida. Such license was issued to Mr. Stacey in 1986, but not until after July 11, 1986. On July 11, 1986, Respondent was in Cincinnati, Ohio, at Riverside's central business office, working on payroll for the facility. Richard Stacey was physically present and in charge of Riverside on that date. However, he was not a licensed administrator in Florida at that time. Betty Ward, a licensed administrator, was physically present and in charge at Garrard. On July 11, 1986, as the result of comments received from the HRS Medicaid Office, Audit Division, in Tallahassee, an MRS representative went to Riverside and determined that Respondent was not present at the facility. During the inspection, Mr. Bavetta, the MRS representative, did not look for nor did he find any evidence that the residents were not being cared for or that their rights were not being protected. As a result of the inspection, the HRS investigator issued a Recommendation for Sanctions against the facility for a purported violation of Florida Administrative Code Rule 10D-29.104(6)(c) and/or 10D-29.104(6)(d). A violation of either of those sections would generally constitute a Class III deficiency pursuant to Section 400.238(4), Florida Statutes. Class III deficiencies do not present a direct or immediate threat to the safety or welfare of the residents. The existence of a Class III deficiency or deficiencies does not automatically establish negligence, incompetence or misconduct on the part of the Administrator of the facility. As a matter of general policy, HRS does not seek administrative sanctions if a Class III deficiency is corrected within the prescribed time. In this case, no time to correct the deficiency was prescribed and HRS sought administrative sanctions against the facility. Within six (6) days of receipt of the notice by Riverside of the alleged violations of Florida Administrative Code Rule 10D-29.104(6), a licensed assistant administrator was hired by Riverside. The decision not to hire a licensed assistant administrator at Riverside prior to July 11, 1986 was based upon the advice of Respondent's attorney that such was not a requirement under Florida law. For the period January 1, 1985 through September 21, 1989, Petitioner has not filed charges against any other licensed nursing home administrator in the State of Florida except Respondent for an alleged violation of Florida Administrative Code Rule 10D-29.104(6)(c) or 10D-29.104(6)(d). Respondent's conduct of nursing home administration at Riverside was in conformity with the standard of practice utilized by a normal, prudent, responsible nursing home administrator in Florida.
Recommendation Based upon the foregoing facts and conclusions of law, it is RECOMMENDED that the Florida Board of Nursing Home Administrators enter a Final Order finding Ralph L. Stacey, Jr., not guilty of violating Section 468.1755(1)(g) and Section 468.1755(1)(m) Florida Statutes, and dismissing all the charges in the Administrative Complaint. DONE and ORDERED this 4th day of April 1990, in Tallahassee, Florida. J. STEVEN MENTON 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 12 day of April 1990. APPENDIX TO RECOMMENDED ORDER CASE NO. 88-6233 Both the Petitioner and the Respondent submitted Proposed Recommended Orders which include proposed findings of fact and conclusions of law. The following rulings are directed towards the findings of fact contained in those proposals. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order were Accepted or Reason for Rejection. 1 Adopted in substance in Findings of Fact Adopted in substance in Findings of Fact 2. Adopted in substance in Findings of Fact 4. Adopted in substance in Findings of Fact 5. Adopted in substance in Findings of Fact 9. Adopted in substance in Findings of Fact 14. Adopted in substance in Findings of Fact 8. The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order were Accepted or Reason for Rejection. 1 Adopted in substance in Findings of Fact 2. Adopted in substance in Findings of Fact 4. 3. Adopted in substance in Findings of Fact 2. 4. Adopted in substance in Findings of Fact 3. 5. Adopted in substance in Findings of Fact 6. 6. Adopted in substance in Findings of Fact 7. 7. Adopted in substance in Findings of Fact 8. 8. Adopted in substance in Findings of Fact 9. Rejected as constituting a conclusion of law rather than a finding of fact. Adopted in substance in Findings of Fact 11. Adopted in substance in Findings of Fact 12. Adopted in substance in Findings of Fact 13. 13. Adopted in substance in Findings of Fact 15. 14. Adopted in substance in Findings of Fact 16. 15. Adopted in substance in Findings of Fact 17. 16. Subordinate to Findings of Fact 14. 17. Subordinate to Findings of Fact 13. 18. Rejected as constituting a conclusion of law rather than a finding of fact. 19. Adopted in substance in Findings of Fact 18. COPIES FURNISHED: Charles F. Tunnicliff Chief Attorney Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Kenneth S. Handmaker, Esquire Middleton & Reutlinger 2500 Brown & Williamson Tower Louisville, Kentucky 40202 Judie Ritter Executive Director 504 Daniel Building 111 East Coastline Drive Jacksonville, Florida 32202 Kenneth E. Easely, Esquire Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
The Issue Which certificate of need (CON) application seeking to establish a new community nursing home in Nursing Home District 3, Subdistrict 4 (Marion County), on balance, best satisfies the statutory and rule criteria for approval: Marion County Development, LLC's CON Application No. 10257; Marion County HRC, LLC's CON Application No. 10258; or CON APP Marion, LLC's CON Application No. 10256?
Findings Of Fact Numeric Need Any entity wishing to construct and operate a nursing home in Florida must obtain a CON authorizing the project. Sections 408.035 and 408.039, Florida Statutes (2015),5/ and Florida Administrative Code Rules 59C-1.002, 59C-1.008, 59C- 1.010, 59C-1.030, and 59C-1.036 govern the CON review and approval process. The Agency administers the statutes and rules. The statutes and rules establish factors for determining future “numeric need” for nursing home beds and criteria to consider when approving proposals or comparatively evaluating competing proposals. Rule 59C-1.036 creates a uniform methodology for determining the future numeric need for nursing home beds. Rules 59C-1.036 and 59C-1.008 require the Agency to calculate and publish the numeric need in batching cycles beginning April and October of each year. The need methodology of rule 59C-1.036 establishes a planning horizon and requires that the Agency determine the future need by district or subdistrict. The rule also creates a formula for calculating future need. Broadly described, the calculation is based on the projected district population age 65 through 74 and age 75 and older, giving the age 75 and over population six times more weight. The need formula applies the “estimated current bed rate” for each cohort of licensed facilities in the district or subdistrict to the projected populations to the calculate the gross “numeric need” for nursing home beds. The formula subtracts the licensed and approved beds in each district or subdistrict from the calculated future need to determine the net future numeric need. In 2001, the Florida Legislature imposed a moratorium on approval of new nursing home beds. In 2014, the Legislature lifted the moratorium. The Agency calculated net numeric need for the districts and subdistricts of the State. The Agency published notice of its calculated fixed need pools (the net numeric need) on October 3, 2014, for the July 2017 planning horizon. For Marion County, which is Nursing Home District 3, Subdistrict 4, the Agency projected a need for 140 new nursing home beds. This was the catalyst for the applications involved in this proceeding. The Agency recognized that reviewing and evaluating applications after a nearly 15-year moratorium would be a challenging and important task. All of the proposed projects’ applications satisfy the applicable statutory and review criteria. The Agency determined that the proposal of Marion Development best satisfied the criteria and best served the needs of Marion County residents. Marion County Marion County is located in central Florida. Reasonable estimates put its population over the age of 64 in 2018 at 102,407 and at 105,077 in 2019. This means 35.90 percent of the population will be over 64 in 2017 and 36.50 percent of the population will be over 64 in 2018. Ten nursing homes currently operate in Marion County. Nearly all are located in and around Ocala in the central part of the county. Counting licensed and approved beds, Marion County has 19.3 nursing home beds per 1,000 people in the 65 and older cohort. Marion County nursing homes have an average occupancy level of nearly 90 percent. In addition, the Agency recently approved relocation of 184 nursing home beds from Alachua County to northern Marion County. Although witnesses for Marion Development and Marion HRC quibbled with the other applicants’ utilization projections, the evidence proves that each of the three applicants if properly operating can reasonably expect, with some in-migration which can also be reasonably expected, to reach their projected occupancy levels: Marion HRC – 87 percent in year two; Marion Development – 95 percent in year two; and CON App Marion – 88.25 percent in year two. The evidence includes occupancy of existing facilities, average lengths of stay at existing facilities, discharges of people age 64 and over from area acute care hospitals, and the absence of indications of unfilled beds. The congruity among the applicants’ utilization projections confirms the reasonableness of their individual utilization projections. On Top of the World is a large deed-restricted retirement community located in southwest Marion County. The Agency, implementing an exception to the requirement for calculated need to obtain a CON, recently approved a 120-bed nursing home known as Bridgewater Park to be located in the community. The Villages is a large senior retirement community that extends into southern Marion County, Sumter County, and Lake County. The Club at The Villages is a 60-bed nursing home located at the southern edge of Marion County in The Villages. It focuses on providing short-term rehabilitation services to patients. The Club at The Villages is the only skilled nursing facility currently located in southern Marion County. This area of Marion County has the most rapid growth and densest population of people age 64 and older in Marion County. The Changing Healthcare Business The consensus of the witnesses and the parties is that provision of and payment for healthcare services in the United States is in a period of change and uncertainty. The needs of an aging population, a drive to reduce healthcare costs, a related drive to control costs, and evolving views of the merits of institutions providing healthcare all contribute to the health care business being in flux. Creation of Medicaid Health Management Organizations is one financial change. Another is exploration of a bundled care payment plan. This involves Medicare making a single payment for bundled services from several providers, such as a hospital, doctors, and a nursing home. The Center for Medicare and Medicaid Services will be testing that approach with its Bundled Care Payment Initiative Model 3. Another change is increasing use of nursing homes to provide rehabilitation services for people that would previously have been served by a comprehensive medical rehabilitation facility, but do not need quite that intensity of service. The stay for these patients is shorter than the residential stay historically provided by nursing homes. The cost for the stay is less than would be charged by a comprehensive rehabilitation facility. Each applicant acknowledges this. “Short-term” v. “Long-term” Short-term patients are often discharged from acute care hospitals after joint surgery, stroke treatment, or cardiac treatment. These patients need temporary residential services and medical services during a shorter period of rehabilitation than the typical nursing home stay. These rehabilitation patients are likely to have more frequent and more numerous visitors than other nursing home patients. The patients are unlikely to have chronic, debilitating conditions. Often these patients and their visitors do not want to dine or otherwise mingle with other nursing home patients who have chronic, debilitating conditions. The essence of the consensus testimony about this matter is that the rehabilitation patients plan to leave and do not want to be with patients who are most likely to reside at the nursing home until death. The rehabilitation patients and their visitors also do not want to be close, especially when dining, to the unappealing infirmities that may accompany chronic, debilitating health conditions and extreme old age. CON App Marion and Marion HRC address this issue with designs that segregate dining areas, social areas, and residential quarters. These plans, where a nursing home serves but segregates both types of patients, are called hybrid models. The granted applicant and, by its proposed approval, the Agency approach the issue by dedicating a nursing home solely to the short-term rehabilitation patients. The parties and witnesses talk about short- and long- term nursing home beds. This is not a license category or description codified in statute or rule. “Nursing home bed,” “nursing service,” and “nursing home facility” are defined in sections 400.021(11), (12), and (13), Florida Statutes. Short- term and long-term beds are not defined. Yet the parties, including the Agency, and their witnesses categorized nursing home beds as short-term and long-term. The characterization short-term functions as a proxy for patients receiving rehabilitative services expected to return home within approximately 30 days or less. The characterization long-term serves as a proxy for patients expected to reside in the nursing home for many, many days, often the rest of their days. Short-term and long-term also serve as proxies for payor source and payment amounts for nursing home services and days. Medicare will pay for approximately 20 days of a Medicare patient’s stay in a nursing home. After that time period, if the patient does not have assets or insurance that will pay for the stay, Medicaid usually pays for the stay. Medicare payment is materially greater than Medicaid payment. The Applicants Marion County Development Marion County Development is a development stage company created for purposes of filing the CON application here. It is a wholly-owned subsidiary of Genesis Healthcare (Genesis). Genesis was formed in 1985 and operates approximately 440 skilled nursing facilities in 34 states. Nine of them are in Florida. Genesis acquired its Florida facilities as part of a merger with Sun Healthcare in December 2012. Genesis is committed to expanding its current Florida networks and developing new facilities in Florida. One of its Florida facilities is Oakhurst Center in Marion County. When Genesis acquired Oakhurst, Oakhurst was facing quality of care and operational challenges. Genesis hired a new administrator, new director of nursing, and new nursing unit managers. Since Genesis made these changes, Oakhurst has not received any substandard care deficiencies. Genesis has worked to solve problems and has plans to continue to improve the facility. Oakhurst is a 180-bed nursing home providing services to Medicare (short-term) and Medicaid (long-term) patients. Historically, Oakhurst’s Medicaid utilization has been about 62 percent. When Marion Development opens, Oakhurst will focus on serving long-term patients. Genesis will work with patients, their families, and hospital discharge planners to determine which facility best serves a patient’s needs. Marion Development reasonably expects that many of the short-term patients who would have been served at Oakhurst will choose the rehabilitation-focused facility. This will open up beds at Oakhurst allowing it to serve more long-term patients. Genesis operates short-term and long-term nursing homes. Most Genesis facilities have short-term and long-term services under one roof in hybrid facilities. Like other providers, Genesis has recognized the differing needs of various segments of the nursing home population and the trend toward providing rehabilitation services in nursing homes. In response to this, Genesis has begun developing facilities in select markets focused solely on short-term services. The facility Marion Development proposes is one. For this project, Genesis teamed up with a division of a real estate development company, Titan Development. The division is Titan Senior Living (Titan). Titan Development operates in Florida, Texas, and New Mexico. It focuses exclusively on senior living and healthcare projects. Titan is an established senior care community developer. It is developing projects in Florida. One development is a large senior living campus with independent living, assisted living, and a memory care facility located in southwestern Marion County. Marion Development’s proposed facility is part of this project. Master site development is underway. Genesis is an experienced provider of post-acute senior care services, including subspecialties like dialysis and respiratory care, and clinical programming for cardiac and stroke recovery. Genesis Rehabilitation Services and Genesis Physician Services are companies related to Genesis. Genesis Rehabilitation Services provides art therapy and rehabilitative services to over 1,700 facilities. They include Genesis skilled nursing centers and unaffiliated inpatient and outpatient facilities. The services complement the clinical care provided by physicians and nurses. Genesis Physician Services provides physicians and physician extenders, such as nurses and physicians’ assistants, to nursing homes at Genesis facilities and facilities owned by other providers. These healthcare professionals work in the Genesis facilities and have their offices in them. The company created Genesis Physician Services to oversee and support the medical directors at each facility in order to ensure high quality clinical care and uniform standards. Marion Development recognizes the changes coming in payment for healthcare services. It has committed to participating in tests of the bundled payment system. It offered to and the Agency plans to require a condition that the facility shall participate “in the Center for Medicare and Medicaid Services’ (CMS’s) Bundled Care Payment Initiative Model 3.” Marion HRC Marion HRC is also a development stage company created for purposes of pursuing the Marion County project proposed in its CON application. Samuel B. Kellett is the primary owner of Marion HRC. Mr. Kellett owns several nursing homes in Florida. Those homes contract with Clear Choice, LLC (Clear Choice), for operations. Marion HRC will contract with Clear Choice for management operations. A group of experienced nursing home administrators and health planning professionals formed Clear Choice. Clear Choice's principals and employees have significant experience in the construction, establishment, and operation of nursing homes. Mr. Kellett does also. Mr. Kellett formed SBK Capital. It handles relationships between single-purpose entities that Mr. Kellett owns which operate nursing homes. Mr. Kellett, through his various companies, originally established most of the nursing homes now operated by Clear Choice. Most are in Central Florida. Since 2013, Mr. Kellett has invested millions in renovation and expansion construction for his nursing homes. More renovations are in the works. The expansion projects typically include providing additional space, increasing the number of private rooms, and significantly enhancing gym and rehabilitation areas. The last are intended to and do attract and serve higher numbers of short-term rehabilitation patients. CON App Marion Like the others, CON App Marion is a development stage company created to file and pursue the CON application. Moshe Shiner6/ is the sole owner. Mr. Shiner owns ten nursing homes located in New York, Pennsylvania, and Maryland. He seeks to enter the Florida market. CON App Marion plans to engage Reliant Health Care Services, Inc. (Reliant), to develop and operate its proposed nursing home. Reliant only provides administrative and financial services to nursing homes. CON App Marion also plans to use nursing home consulting and operation companies recommended by Reliant. Reportedly Mr. Shiner is familiar with Reliant because his brother is the landlord for several facilities that have administrative services agreements with Reliant. Reliant has contracts with 21 nursing homes in Florida and one in Alabama. Reliant plans to engage another consulting company, Premier Clinical Solutions, to provide clinical operations support. The evidence about the anticipated relationships is markedly short on specificity and certainty. Mr. Kestler, the principal for Premier was at first unsure if he had ever met Mr. Shiner. Later in his testimony, Mr. Kestler said that he had a “handshake deal” with Mr. Shiner to provide clinical services for CON App Marion. Premier has never done business with Mr. Shiner before or provided services to any facility that he owns. Mr. Shiner is identified as the person who will decide whether CON App Marion will engage Premier. There is no non- hearsay evidence, and no hearsay evidence that would be admissible over objection, that can support a finding of fact that CON App Marion and Premier will work together.7/ The evidence that the relationship will develop as described is not persuasive. Evidence about Mr. Shiner and his involvement is scant and vague. This lack of convincing evidence about a primary player in the plans of CON App Marion permeates and weakens the persuasiveness of its case. Michael Bokor is the principal of Reliant. Mr. Bokor is an accountant. He has held financial and administrative positions in the skilled nursing industry since 1993. Mr. Bokor proposed and promoted creating a company to seek approval to establish a nursing home in Marion County to Mr. Shiner. In the past five years, Mr. Bokor developed The Villages Health and Rehab Center in Lady Lake, Florida, and Glades West Health and Rehab Center in Miramar, Florida, from preconstruction through operations. The Proposals Marion Development Marion Development proposes a facility constructed, staffed, and operated to serve short-term patients. It will be an application of Genesis’s PowerBack model. Genesis developed PowerBack to serve the increasing demand for short-term beds in facilities focused on rehabilitation and returning patients to their homes. The model is one part of a network or continuum of care ranging from the hospital through the nursing home, perhaps through home healthcare, to independent living. Genesis operates 11 PowerBack models around the country. The facility will be located on three acres of Titan’s 110-acre campus along the southern border of Marion County adjacent to The Villages. Marion Development’s facility will be accessible by golf cart from The Villages. Development of the PowerBack model reflects an industry trend toward specialization and concentration of clinical capabilities. Over 90 percent of PowerBack admissions come directly from hospitals. Hospitals encourage development of PowerBack to serve the short-term, post-acute skilled nursing population that needs more physician involvement, higher staffing levels, and different equipment than found in traditional nursing homes. Because of its focus on short-term services, Marion Development’s facility is unlikely to receive significant Medicaid revenue. Some patients may be Medicaid-eligible. But Medicare will pay for their short stay. Marion Development correctly predicts that almost all of its revenue will come from Medicare, commercial insurance or private pay. These payors all pay more than Medicaid. Marion Development does not anticipate any material revenue from Medicaid. The average length of stay in a PowerBack facility is 16 days. Hospital readmission rates for PowerBack patients are below the national average for nursing homes. The PowerBack model requires different equipment and more intensive staffing than the traditional hybrid nursing home. Consequently, data and experiences from operating PowerBack facilities, even though they are in other states, is more useful and predictive than data and experiences from hybrid nursing homes in Florida. The design of Marion Development’s proposed facility serves the facility’s specific mission. All rooms are private. This is an important design feature that facilitates patients receiving the rehabilitative care they need and assuming their responsibilities in rehabilitation with the support and assistance of their family and friends. The private rooms are also important to achieving the projected second-year occupancy since they eliminate the unused beds that would inevitably result with semi-private rooms from accommodating differences in gender and occasional medical needs for isolation. Marion Development will build a three-story facility. The two upper stories are primarily residential. The ground floor will house a bistro, rehabilitation gym, spa, movie theatre, classrooms, and a pool. There will be one service elevator and two elevators for patients, visitors, and staff. Three elevators enable employees, patients, and visitors to move between floors. Three elevators is an improvement based upon experience with earlier facilities that had two elevators. The planned construction provides adequate fire protection for patients. The rigorous code requirements enforced by the Agency during the construction approval and licensure will ensure that. Marion HRC Marion HRC proposes a 140-bed nursing home to be located in central Marion County, along the State Road 200 corridor. It will be west of most existing Marion County nursing homes, which are clustered around downtown Ocala, the location of two of Marion County’s three hospitals. It will be located between those two and the third hospital, Marion West. Marion HRC’s chief executive has experience in the Marion County Nursing Home market. That experience informed the location selection. Marion HRC proposes a traditional hybrid facility. Eighty-two of the 140 beds will be in private rooms with toilet and shower. Eight of them will be larger suites with a wall separating the sleeping and sitting areas, designed for quick conversion to semi-private rooms. The remaining 58 beds will be in 29 semi-private rooms. Marion HRC’s facility is designed around a central connecting corridor. It will have a bistro for dining, two pools, an “Alter-G” treadmill that allows management of how much weight the patient must bear while exercising, and a gym with rehabilitation equipment. Marion HRC also intends to offer outpatient rehabilitation services. Access to the facilities is designed accordingly. Marion HRC intends to serve Medicaid, Medicare, private insurance, and private pay patients. Medicaid patients will generate approximately 32.4 percent of Marion HRC’s patient days. This indicates that 67.6 percent will be Medicare, i.e., short-term patients. CON App Marion CON App Marion proposes a 120-bed nursing home. It hopes to build its facility in zip code 34491, southeast of Ocala near Marion County’s southern border. Zip code 34491 has the largest number of people age 65 and over of all Marion County zip codes. The surrounding zip codes do not have a similar concentration of people age 65 and over. One-half of CON App Marion’s beds are intended for short-term patients. The other half are for long-term. The rooms are in separate neighborhood pods to separate the two patient populations. The short-term neighborhood has 20 beds in 20 private rooms and 40 beds in 20 semi-private suites. The long-term neighborhood will have 20 beds in 20 private rooms and 40 beds housed in 20 semi-private suites. All patients will share a centrally located spa. Like the other applicants, CON App Marion describes its main dining area as a bistro intended to be attractive to patients and visitors. CON App Marion will offer “anytime dining” that will not limit patients to defined dining hours. Comparisons Applying Statutory and Rule Criteria 62. Sections 408.035 and 408.039 and rules 59C-1.008, 59C- 1.010 and 59C-1.035 establish the review criteria for approval of CON applications for new skilled nursing facilities. A. Section 408.035(1)(a) and Rule 1.036(4) – The need for the proposed health care facilities and health services. The applications respond to publication of a fixed need pool of 140 beds. Presumptively, the beds are needed. Each applicant presented demographic and utilization data to support its proposed location and service mix. The applicants presented evidence and argument relying upon differences in use rates, population growth, and population ages between Marion County, the entire state, and other geographic areas. These factors are accounted for in the formula that generated the projected need the applicants seek to fill. Location-specific information by zip code is more useful. Marion Development’s facility will be located in zip code 34491. It has the greatest population growth and the highest number of patients discharged to skilled nursing facilities of all Marion County zip codes. The 13 zip codes closest to the proposed location generate almost 69 percent of hospital discharges to a skilled nursing facility. The discharged patients are a category likely to need the short-term services that Marion Development plans to provide. Its plans to do so are concrete and complete. Significantly, Marion Development commits to, and the Agency intends to apply, a requirement that Marion Development locate the nursing home where it says it will. The competing applications and their witnesses confirm a growing need for short-term beds to provide rehabilitative services, especially to patients on the lower end of the age 65 and older spectrum. For example, CON App Marion proposes that 50 percent of 120 beds will serve those patients. And Marion HRC indicates that over 67 percent of its revenue will be from short-term patients. Quite significantly, the Agency applying its health care expertise has determined the need for short-term beds is growing and that it is sufficient to support a 120-bed short- term only facility. The rapid fill of The Club Health and Rehabilitation Center at The Villages confirms this judgment. The Club, providing only short-term services, is on its way to achieving a projected 90 percent occupancy within two years of opening. Marion Development’s proposal focuses on serving the needs of short-term patients. Also, its location in Titan’s planned senior development will result in a growing source of nearby patients. The growing population will also need long-term beds. Existing facilities remain available to serve those needs. In addition, the upcoming relocation of 184 beds from Alachua County increases the capacity to serve long-term patients in Marion County. Only 68 nursing home beds are available within ten miles of Marion Development’s proposed facility. With Sumter and Lake Counties’ beds added, there are 749 existing or approved beds. Of course, those beds were approved to serve the needs of those counties’ populations and should not all be relied upon as all being an alternative to a Marion County nursing home in Marion Development’s proposed location. All three of Marion HRC’s possible locations are located within ten miles of 1,648 existing or approved nursing home beds. Section 408.035(1)(b) – The availability, quality of care, accessibility, and extent of utilization of existing health care facilities and health services in the service district of the applicant. There is no persuasive evidence that the quality of care currently available in Marion County is deficient. Utilization is high. That is what generated the projected numeric need. It is thus accounted for. There is no persuasive evidence, other than the high utilization, that nursing home services are not available in the service subdistrict. Existing nursing home beds are reasonably accessible to the population. Population growth just generates a need for more. Of the three proposals, Marion Development presents the most persuasive evidence that it will increase access to nursing home services to a specific area within the subdistrict, by adding short-term beds. The location within the planned senior care development means that Marion Development will also provide access to a future population center of likely patients. C. Section 408.035(1)(c) and Rule 1.036(e) – The ability of the applicant to provide quality of care and the applicant’s record of providing quality of care. Persuasive evidence shows that Marion Development and Marion HRC will provide quality care. They and the entities that they rely upon have a history of providing quality services. Their planned facilities, equipment, and staff are sufficient to serve the patients proposed. The evidence of CON App Marion is not as persuasive. This is in large part due to the uncertainty of the proposed relationships with those who will or may be providing services Marion Development’s planned operator, Genesis, has an established record of providing high quality care to patients and residents at its existing facilities. It would provide high quality care at the proposed facility. Genesis’s regional teams include nurse consultants who monitor quality of care, review survey results and compliance, and provide education and training to nurses and other staff at the Genesis facilities. Marion Development relies upon its use of Genesis to ensure quality of care for the patients. Genesis measures quality of care by a number of metrics, measured in real-time. The metrics include pressure ulcers developed in the facility, falls, antipsychotic medication, urinary tract infections, hospital readmissions, and weight loss. These quality measures are reviewed on a monthly basis for each facility. The resulting data provide an accurate picture of the quality of care a facility is providing. Genesis scores the quality metrics of each facility to provide a benchmark with federal and state standards for evaluating whether a facility needs improvement. If a facility needs improvement, Genesis dedicates people and other resources to work with the facility to implement corrective plans. Genesis clinical teams make numerous visits to each facility to monitor compliance with and effective implementation of these plans. The staff at each Genesis facility ensures quality of care. The staff includes licensed nursing home administrators, directors of nursing, assistant directors of nursing, nurse practice educators, as well as the physicians associated with Genesis Physician Services. The staffing is reflected in Marion Development’s proposal. Quality of care concerns differ for short-term patients. Short-term patients are focused on receiving therapy, identifying co-morbidities, and monitoring medication so they can return to their daily lives. These patients require more registered nurses to treat their post-acute conditions. Long-term patients are focused on custodial care that requires daily nursing assistance. These patients require more certified nursing assistants to treat chronic debilitations and to provide help with tasks they cannot perform themselves. Because nursing homes in Florida have historically focused on long-term care, their facilities and staffing models are not optimized to deal with the needs and higher acuity levels of patients now being discharged from hospitals who need intensive rehabilitation and are not expected to be long-term residents. The proposed PowerBack approach is well suited to provide quality of care to short-term patients. The Marion Development application proposes extensive physician involvement through Genesis Physician Services. The Marion Development facility will have much more physician involvement than either of the other applicants. It will also offer more care from highly trained nursing staff. Marion Development offered to condition approval of its application on the high level of physician involvement described in its application. It certified: “MCD will condition the project on the provision of on-site physician and/or physician extender services 7 days a week.” The Agency intends to impose that condition. This application condition will result in physicians and physician extenders, like nurses and physicians’ assistants, being on site seven days a week. It is a critical component of Marion Development’s quality of care and linked inextricably to the ability to properly serve the needs of its targeted short-term patients. Marion Development will use Genesis Rehabilitation Services to provide rehabilitation services, including development of its PowerBack gym and support for patients with pulmonary disease. The benefits of Genesis Rehabilitation Services are an important contributor to the facility’s quality of care. Marion Development proposes and adequately budgets for equipment needed to provide the rehabilitation services its patients will need. This equipment includes a specialized pool for aqua-therapy. Marion Development emphasizes the sophistication of this pool and its rehabilitative benefits. The pool is an integral part of Marion Development’s proposal. Recognizing this, Marion Development agreed to condition “the project on the inclusion of a specialized pool for the provision of aqua-therapy.” The Agency intends to impose the condition. Of the intended operators for the three applicants, Marion HRC’s Clear Choice had the highest statistical ratings of quality for its nursing homes as measured by survey results, Medicare Star Ratings, and Gold Seal awards. CON App Marion had the lowest survey scores and a less-than-average record. The persuasive evidence, however, shows that the significance of Medicare Star Ratings is debatable. Marion HRC’s manager has a track record of providing quality of care. Clear Choice provides five clinical oversight managers for its nine facilities. For what limited value star ratings have, five out of Clear Choice’s eight Florida facilities have achieved 5-star ratings from Medicare. The preponderance of the evidence proves there is no basis to think that the quality of care that will be offered by Marion Development or Marion HRC will be anything but adequate or better. The evidence for CON App Marion is less persuasive. Its proposed operator Premier uses off-the-shelf policies and procedures. Some were last revised over a decade ago. Premier also does not track the quality and survey ratings of its facilities. An operator who does not at least track this data is in a poor position to identify, investigate, and remedy potential quality problems. CON App Marion did not prove that it can be relied upon to provide high quality care. This follows from the failure to prove with a sufficient degree of certainty that Premier will provide services, as well as the use of outdated policies and procedures. D. Section 408.035(1)(d) -- The availability of resources, including health personnel, management personnel, and funds for capital and operating expenditures, for project accomplishment and operation. Marion Development’s project costs are slightly higher than those of the other two applicants. This is due to the intense clinical focus of the proposed PowerBack facility and the fact that the proposed project will have all private rooms. The private rooms are a very significant feature of Marion Development’s proposal. Schedule 2 of Marion Development’s CON application is an accurate and reasonable listing of its capital projects. Since the applicant was created solely for this project, the only project listed in Schedule 2 is the proposed nursing home. Schedule 2 includes reasonable capital expenditures for Year 1 and Year 2 of the proposed facility to account for miscellaneous capital items that may be needed once operational. Schedule 3 of Marion Development’s CON application identifies the source of the project’s funds. The $25,753,579 needed for project costs will be provided by Titan and Genesis. Titan will provide $25,253,579, nearly all of the project costs. Of this amount, $7,576,074 will come from cash on hand. Another $17,677,505 will come from non-related company financing. Genesis will provide the remaining $500,000 needed for the project. The funding sources for the proposed project are reasonable. Marion Development has shown that it will be able to provide the funds needed for this project. The proposed ratio of equity to financing is typical for new skilled nursing facilities. A bank statement from Spanish Springs Ventures, LLC, an affiliate of Titan, demonstrates $8,000,000 in cash on hand available for the project. This exceeds the proposed equity contribution. Marion Development’s application included a letter from the Bank of Texas, a commercial lender with a strong relationship with Titan and an established history of financing senior care projects. Titan’s history with the Bank of Texas includes approximately $65,000,000 in senior care projects and over $75,000,000 in other developments. The funds committed to this project and the long- standing relationship with the Bank of Texas provide a reasonable basis to conclude that Titan will be able to provide the proposed $7,576,074 in equity funding for the project and obtain the necessary financing. Genesis has the resources to support the Marion Development facility through Genesis Rehabilitation Services, Genesis Physician Services, and Genesis Respiratory Services. These entities already provide key functions at the other Genesis facilities in Florida. Marion Development’s construction costs are based in part on actual project costs of current skilled nursing facilities in Florida as well as developer input. Its projected costs are also based on a PowerBack building prototype used for other new Genesis projects. The projected site cost on Line 1 of Schedule 1 was developed in conjunction with Titan after determining how much land the project would actually need given the infrastructure already being developed as part of the 110- acre master plan. The purchase price for the land identified in Schedule 1 is accurate, reasonable, and consistent with other Titan projects in the area and includes the cost of improvements for the master site, allocated on a proportional basis. The projected costs factor in the cost of meeting all code requirements for this type of facility, as well as for road and drainage infrastructure. The real estate closing for the site has not occurred because it is unusual for a developer to purchase the land before securing regulatory approval to move forward with the project. There is no question, however, about Titan’s ability to locate the facility within the site already under development. The other applicants fault Marion Development’s application because the land costs were based upon an estimate of three acres and the prototype drawing for a PowerBack facility included in the application is sited on five acres. That prototype facility includes storm water drainage. The location of the proposed facility as part of the master-planned area eliminates the need for storm water drainage and other infrastructure requirements. The proposed site is adequate and the estimated land costs are accurate. Marion Development’s projected staffing for its facility is detailed in Schedule 6A of its CON application. These staffing projections are reasonably based on staffing at existing PowerBack facilities. PowerBack services are clinically intensive and emphasize a high level of nursing care to support the patient. The staffing level will increase as the facility’s census increases. Marion Development projects 101.20 nursing FTEs, the highest of any applicant. For example, it projects 17.43 RN FTEs at the new facility, approximately twice the number of RN FTEs proposed by either of the other applicants. Marion Development’s application also includes more dietary and administration FTEs than any other applicant. Marion Development reasonably plans to contract for physician and therapy services with Genesis Physician Services and Genesis Rehabilitation Services. Taking these services into account, Marion Development projects 175.86 total staff FTEs. Marion Development has the highest commitment of skilled nursing staff (RNs and LPNs) of any applicant. The average annual staffing salary projections in Marion Development’s application are reasonably based on rates from facilities in Hillsborough County, which are slightly higher than Marion County rates. Marion Development’s CON application contains a small accounting error regarding the number of nurse unit manager FTEs. It resulted in an overstatement of labor costs. The projected staffing costs are lower once the error is corrected. The error does not affect the reasonableness of Marion Development’s financial projections or the ability to staff the proposed facility. As found earlier, Marion Development plans to contract with Genesis Rehabilitation Services for therapy services provided patients at the proposed facility. Marion Development’s projected expense for these services is $3,252,526. This expense is reasonable given its relationship with Genesis as well as the types of services to be provided. Marion HRC reasonably projected $21.5 million costs for its nursing home project. It also proved its ability to finance those costs. Marion HRC and its related companies have an established track record of obtaining financing for multi- million dollar renovations and expansions. They also reasonably propose funding for initial operations of the proposed nursing home. Marion HRC demonstrated the availability of cash needed to fund 15 percent of its project’s cost. Marion HRC demonstrated its financial feasibility in the short-term. There is insufficient evidence to that the funds CON App Marion will need for construction and operation will be available. CON App Marion proposes 100 percent financing by Tunic Capital (Tunic). This is unusual in the healthcare business. Tunic is supposed to facilitate obtaining the bulk of the project financing from a financial institution and then provide the remaining needed assets for completion and start-up. There are no documents, such as financial statements or bank statements that establish Tunic’s ability to provide the financial support. Tunic is not a traditional lender. The evidence about Tunic’s makeup, resources, and history was limited and unpersuasive. Tunic’s representative, Zevi Kohn, was uncooperative in his deposition. He refused to answer many basic, relevant questions. Mr. Kohn identified himself as Tunic’s “Senior Vice- President involved in the underwriting process for financing for skilled nursing projects and/or acquisition.” Mr. Kohn would not provide the following basic information relevant to determining Tunic’s ability to provide capital: (1) financial statements; (2) the amount and nature of Tunic’s net assets; (3) the bank or banks that Tunic might facilitate providing CON App Marion a loan; (4) the identity of two recently constructed Florida nursing homes he claimed Tunic funded; (5) the identity of any projects Tunic had funded in Florida; (6) the identity of the person or people who decide to actually fund a project; and (7) the address of Tunic. In addition Mr. Kohn was unaware of Michael Bokor, the primary person responsible for submitting the application and executing its proposed project. The person Tunic relies upon and views as the owner of the CON App Marion proposal is Mr. Shiner. Mr. Bokor also identified Mr. Shiner as the person responsible for obtaining financing. Mr. Shiner, despite his important role in the project, never testified. There is scant persuasive or non-hearsay evidence about him, his experience, his abilities, or his resources. CON App Marion did not provide persuasive evidence of the availability of capital for construction of its facility or initial operations. Section 408.035(1)(e) -- The extent to which the proposed services will enhance access to health care for residents of the service district. This criterion asks whether there is a gap in services within the subdistrict and to what extent an applicant closes that gap by increasing the availability of services. It includes implementation of new projects that will provide services currently unavailable to residents of the subdistrict. Marion Development’s proposal to bring a dedicated short-term acute care facility to Marion County best satisfies this criterion. Marion Development would bring more than new beds and a new facility to Marion County. It brings a facility that will serve what all parties and witnesses agree is a growing need for short-term beds. The proposed facility also provides the rehabilitative services in a less cumbersome and inefficient way. The design and staffing of the other two applicants demonstrate the tensions and difficulties created by trying to serve substantial populations of long-term and short-term patients in the same facility. They result in two dining areas, two common areas, and different traffic flows; in short the result is a facility divided to segregate two patient populations. Eliminating the segregated hybrid facility with a facility that serves one patient population enhances health care access for Marion County residents. It is a reasonable health planning decision, an effort to adapt to changing circumstances. Section 408.035(1)(f) -- The immediate and long-term financial feasibility of the proposal. Marion Development created its staffing model based upon experience at existing PowerBack facilities. This is more reasonable than using traditional hybrid nursing homes in Marion County as models since the treatment models and patient populations are different. Genesis developed Marion Development’s pro forma financial projections in collaboration with financial expert Darryl Wiener. It based projected managed care rates on other Genesis skilled nursing facilities in Florida with high utilizations. This was reasonable. Marion Development projects the proposed facility will capture 11.8 percent market share in year one, followed by 21.9 percent in year two. The projected utilization is reasonable. There is no facility like PowerBack in Marion County. It is reasonable to assume that the proposed facility will also capture patients less than 65 years who would otherwise not seek treatment in a traditional skilled nursing facility. Marion Development projects occupancy of 49 percent in year one and 95 percent in year two. These projections are reasonable and incorporate a reasonable assumption that some market share from Oakhurst will shift to the proposed facility as Oakhurst phases out its current short-term services. This projection is consistent with Genesis’ experience in developing a network of services in an area and should result in more capacity at Oakhurst for patients needing long-term care. As found earlier, all three applicants project similar occupancy. This congruency combined with the present high utilization of existing facilities, the projected population growth, and inevitable, if limited, in-migration from adjacent counties makes the ability of all three projects, if developed, to reach their projected occupancy levels, if properly operated, not subject to reasonable dispute. Marion Development’s financial projections demonstrate that it proposes to spend a higher percentage of net revenue on patient care and less on non-patient related costs than the other applicants. Schedule 7 of Marion Development’s application demonstrates the long-term feasibility of the proposed facility through projected revenues. The payor mix and projected revenues, as well as the underlying assumptions, are reasonable. Marion Development reasonably used data from other Genesis skilled nursing facilities in Florida and existing PowerBack facilities in other states to project payor mix and Medicare reimbursement rates (known as “RUG” rates) for the proposed facility. For its second year of operation, Marion Development projects 54.4 percent managed care patient days; 43.9 percent Medicare patient days; and 1.8 percent commercial insurance patient days. These projections are reasonable based on Genesis’ experience at existing PowerBack facilities. The other applicants’ criticism of Marion Development’s financial projections for using Hillsborough County reimbursement rates for Medicare patients and the use of prior PowerBack experience instead of Oakhurst experience to project revenue is not persuasive. The criticism fails to recognize the difference in services provided by PowerBack facilities and traditional skilled nursing homes. Oakhurst would be a poor proxy for projecting commercial and managed care revenues. Also, if Oakhurst rates were used to project revenue, that would not render Marion Development’s project infeasible. Furthermore, Marion Development’s Medicare reimbursement rate projections are reasonably based on Hillsborough County rates because the projected staffing expenses are also based on Hillsborough County data. Staffing expenses make up the majority of expenses used to calculate the Medicare reimbursement rates. Adjusting the RUG rates without also adjusting staffing expenses would be inconsistent and unreasonable. Marion Development’s Medicare reimbursement rates are slightly higher than the other applicants’ rates. This minor variance is due to the higher percentage of patients served by Marion Development’s proposed facility who need intensive rehabilitation services. The projected Medicare reimbursement rates are comparable to rates of other skilled nursing facilities in Florida that treat short-terms patients and provide services similar to Marion Development’s proposed facility. The financial projections for Marion Development’s proposed project, which include expenses based on existing PowerBack experience, are reasonable. The proposed project is financially feasible. Section 408.035(1)(g) -- The extent to which the proposal will foster competition that promotes quality and cost- effectiveness. Any of three applicants will add another provider to the market. That will increase the number of competitors with accompanying benefits to quality and cost-effectiveness that may follow from an additional competitor. Marion Development and its short-term model emphasizing rehabilitation adds something new to the market. Marion Development’s entry in the market will provide competition to existing providers’ short-term services. Its model may encourage competition to include specialized design, equipment, and programs for short-term patients. This may promote better quality care at the existing facilities and shorter stays due to the specialized care. Section 408.035(1)(h) -- The costs and methods of the proposed construction, including the costs and methods of energy provision and the availability of alternative, less costly, or more effective methods of construction. The Agency’s Office of Plans and Construction (Plans and Construction) reviewed Schedule 9, Schedule 10, and the architectural plans for all the applications. The CON architectural review only looks for major deficiencies because a much more in-depth review is conducted prior to construction. The review of Plans and Construction concluded that there were no deficiencies in the applications of Marion Development and CON App Marion and that the proposed costs and methods of construction were reasonable. The evidence supports that determination. Plans and Construction determined that the type of construction Marion HRC proposes for its two-story facility is not permitted and would have to be revised. The evidence proved this to be true. Agency review of plans at the CON stage is limited and the detailed and critical review comes during the plan approval and licensing process. The problem with Marion HRC’s construction is not a fatal flaw. All facility plans evolve during the plan approval and licensing process when plans are subjected to closer, more rigorous scrutiny. But this factor weighs against Marion HRC and for the other two applicants. Of those two, Marion Development offers two features exceeding the minimum required that make it superior to CON App Marion. Marion Development provides individual controls for each patient room so patients can control their room temperature. Marion Development’s plans exceed the minimum requirements for backup power generators. The building will have a full power 72-hour generator with the ability to power the building for three days. Marion Development’s also plans to include European showers. These showers make the entire bathroom the shower. This creates more space in the bathroom and provides for greater access to patients for people assisting them. This feature also makes Marion Development’s proposal superior to the other two applicants. I. Section 408.035(1)(i) and Rule 1.030(2) - The applicant’s past and proposed provision of health care services to Medicaid patients and the medically indigent. None of the applicants have a history of providing care to Medicaid patients and the medically indigent. They were all created to file and pursue the applications at issue. This is common. But they do have parent company or affiliated operators whose history may be considered. Genesis, affiliated with Marion Development, has a long history of providing a significant amount of Medicaid services. A large majority of residents treated in Genesis facilities are Medicaid-reimbursed. Genesis facilities in Florida provide a higher percentage of Medicaid than either Clear Choice (Marion HRC) or Reliant (CON App Marion) For fiscal year 2013-2014, Genesis’ payor mix statewide was 65.6 percent Medicaid with a high of 86.5 percent and a low of 58.6 percent. Clear Choice’s Medicaid percentage for the same period was less, 39.21 percent. In 2014, Genesis provided 255,068 Medicaid patient days, more than double the totals for Clear Choice and Reliant. The overall Medicaid average for Genesis in Florida is higher than the statewide average for all providers. Every Genesis facility in the state currently exceeds the Medicaid average for Marion County. Clear Choice facilities in Florida average 38.9 percent Medicaid care with a high of 55.2 percent and a low of 26.2 percent. The amount of Medicaid care provided by Clear Choice in Florida has decreased since 2012 from a high of 44.3 percent in 2012 to its low of 38.9 percent in 2014. In 2014, Clear Choice provided 124,558 Medicaid patient days across its eight facilities compared to Genesis’ 255,068 Medicaid patient days across nine facilities. Reliant also provides a lower level of Medicaid care in Florida than Genesis. Reliant-affiliated facilities in Florida average 60.6 percent Medicaid care with a high of 83.8 percent and a low of 27.5 percent. Clear Choice projects to provide 32.4 percent Medicaid at the proposed facility. Reliant projects it will provide 40-percent Medicaid care at its proposed facility. This is well below its historical percentage, probably due to the number of short-term beds the proposed facility will have. Marion Development, despite the record of Genesis, proposed no Medicaid days. This is a result of its dedication to short-term stays for patients needing rehabilitation services. This is a factor to be weighed but balanced with the Agency’s health planning decision to try something different. Also Genesis operates the Oakhurst facility in Marion County, a 180-bed nursing home. It provides over 62 percent of its patient days to Medicaid patients. That percentage may increase if short-term patients who would have gone to Oakhurst choose Marion Development instead.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Agency for Health Care Administration, render a Final Order, Approving Certificate of Need Application Number 10257 of Marion County Development, LLC, imposing the following five conditions on the CON: The proposed facility shall be located in Marion County on approximately three acres of a 110-acre tract of land adjacent to The Villages located off County Road 42 between Highway 201/35 and Federal Highway 441/27 to be controlled by Titan Senior Living with the facility accessible to The Villages by golf cart. The facility shall include and use a specialized pool for providing aqua-therapy. The operators of the facility shall provide on- site physician and/or physician extender services seven days per week. The facility shall participate in the Center for Medicare and Medicaid Services’ (CMS’s) Bundled Care Payment Initiative Model 3. The facility shall have all private rooms for the patients and residents. Denying Certificate of Need Application Number 10258 of Marion County HRC, LLC. Denying Certificate of Need Application Number 10256 of CON APP Marion, LLC. DONE AND ENTERED this 23rd day of June, 2016, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of June, 2016.
Findings Of Fact Petitioner contracted with Respondent to provide, inter alia, through appropriate subproviders, mental health services in accordance with the provisions of the Baker Act, Chapter 494 Part I, Florida Statutes and rules and regulations promulgated pursuant thereto (Exhibit 3). Respondent subcontracted with Apalachee Community Mental Health Services, Inc. (MHS) to provide, as an independent contractor, or through subagreement with qualified providers, services according to the Mental Health Board Plan; and, in carrying out these services, to comply with federal and state statutes and regulations. In carrying out this contract MHS processed and paid, from funds receivec rem Petitioner, provider services in connection with the Baker Act program. During the period covered by this audit, Dr. Robert G. Head and Dr. Cyril Phillips provided psychiatric care to Baker Act patients for which they were reimbursed by MHS. Most of this care was provided at Goodwood Mental Health Facility, a unit operated by Tallahassee Memorial Regional Medical Center (TMRMC). Both Head and Phillips were designated as mental health providers by Petitioner. Head and Phillips shared office space and a secretary but were not a partnership or organized as a professional association. While conducting the audit, the auditors contacted Dr. Head to audit his racords for the Baker Act patients treated. Dr. Head claimed he had no advance notice of this audit and when he was called by his office at his home while suffering from the flu he refused permission for the auditors to examine his records. The audit was completed without benefit of any of Head's or Phillips' records and the discrepancy in failing to account for third party reimbursements formed the basis for the deficiency here claimed. When Dr. Head was told the auditors had the right to inspect Baker Act patient records, he rescinded his refusal and some four months later his office was visited to check these records. Upon the auditor's arrival no Baker Act patient records for the audit period could be located. The secretary for Head and Phillips had absconded and their accountant found she had embezzled a considerable sum ($75,000 - $100,000) from the office by forging endorsements on checks received and depositing in her or her husband's bank account. Apparently patient records were removed or destroyed to conceal the embezzlement. In any event no such records were produced by the doctors and no effort was made by the doctors to obtain from TMRMC records of those patients treated by them who had insurance to cover part or all of their treatment. Such insurers would be third party payers from whom the provider is required to collect and account to Petitioner for such collections. That the doctors provided the treatment is evidenced by the bills they submitted. The only issue is whether the doctors were also paid by third parties for these services, and if so, how much were they paid that should be returned to Petitioner. Neither Head nor Phillips gave sufficient attention to the paperwork involved with the Baker Act patients but left this up to the secretary. The missing records covered two fiscal years so the inadequate supervision of the office continued over a prolonged period. Respondont suggests that Petitioner's auditors could have reconstructed the doctors' records by comparing the Baker act patients for whom they billed MHS with TMRMC records to show which of those patients costs could have been part reimbursed by third parties. Had that been done it would have shown that a majority of those patients had no "third Party" source of funds. No evidence was submitted that Petitioner has such a duty. Exhibit 3 provides the Board and the provider will retain all financial records, supporting documents, statistical records and any other doctments pertinent to this agreement for a period of three years after submission of final report, if an audit has not been initiated during that period, and the findings have not been resolved at the end of three years, the records shall be retained until the resolution of the audit findings. Exhibit 6 consists of records of seven patients treated by Head or Phillips during the audit period. Of these seven, two had insurance available from which third party payments were available. No audits of providers were made by Respondent during the period covered by the audit.
Findings Of Fact The Petitioner is an elderly lady who is the recipient of benefits pursuant to the "Home Care for the Elderly" program administered by the Respondent pursuant to Section 410.035, Florida Statutes. The subject program is designed to be an alternative to institutionalized care in a nursing home for such elderly, physically disabled citizens as the petitioner, Mrs. Sapp. The program's purpose is to enable such persons to remain in a physically and emotionally wholesome family environment, if at all possible, rather than being forced to reside in a nursing home institution when they are no longer able to care for themselves. In the Petitioner's case, a family member, Mrs. Taylor, is able to provide round-the-clock care for the Petitioner in return for which the Respondent (Department) pays the Petitioner a home care subsidy based upon a flat rate schedule in some way related to the recipient's income (See Exhibit No. 1). The State benefits by such a program since a recipient such as the Petitioner, who qualifies fully for subsidized care in a nursing home, with its substantially greater expense, can be maintained much less expensively at home. On or about July 1, 1980, the petitioner received notice from the Federal social Security Administration that her Supplemental Security Income benefits would be increased due to an increase in the cost of living during the past year. Because of this and because the petitioner had no other "countable income" for the purposes of the Social Security Act benefits, her Supplemental Security Income (551) was raised to $238.00 per month. Upon learning of the increase in the Petitioner's 551 benefits, the Respondent, apparently following the subsidy schedule contained in Exhibit No. 1, reduced the benefits paid to the Petitioner from $96.00 per month to $72.00 per month. The subsidy schedule contained in Exhibit No. 1 makes no allowance for increase in the cost of living, but rather, is apparently based on the "institutional care policy" or based (pursuant to Section 410.035, Florida Statutes) on the minimum payment the recipient would be entitled to for full institutional nursing home care. The State subsidy amounts depicted on Exhibit No. 1 may be within the range of less then 45 percent and more than ten percent of the minimum institutional nursing home care payment pursuant to Section 409.266, Florida Statutes, but there is no showing of the amount of such institutional care benefits. The Respondent described the income received from the federal program and other sources as a dollar-for-dollar "set off" against the income she receives from the home care subsidy program. That contention is not accurate, however, inasmuch as the State subsidy benefit reduction involved herein was not a reduction in the same sum as the subject increase in the federal 551 payment, and additionally, once the State benefits were reduced to the disputed amount of $72.00 per month, then they would remain at $72.00 per month oven if the federal benefits ultimately increased by several hundred dollars. Thus, it is obvious that the federal benefits do not operate as a dollar-per-dollar "set off" against the State benefits normally due. The Respondent's position that the federal benefits are fully countable income in calculating the amount of benefits due in order to provide such a recipient as the Petitioner with her fully allowable income under this Home Nursing Care program, is not an accurate description of the State policy nor the means by which the State benefits are calculated. It is undeterminable how the benefits are calculated or why and in what manner the federal benefits under the SSI program are considered in large part to be "countable income" in determining the Petitioner's financial status and entitlement under the State program. The Respondent apparently arrived at the $24.00 per month reduction in benefits under the Section 410.035 program by applying the Petitioner's new increased income under the federal program to the corresponding chart of State benefits contained in Exhibit No. 1, the origin or derivation of which was not shown. There was no definitive showing of the amount of relevant nursing home care payments which the Petitioner would be entitled to if she were confined in a nursing home, and thus no means to calculate the fractional portion thereof due the Petitioner as a subsidy for home nursing care pursuant to the program under discussion.
Recommendation Having considered the competent, substantial evidence of record, the foregoing Findings of Fact and the Conclusions of Law, it is concluded that competent, substantial evidence has not been presented which will sustain the Respondent's burden of proving adequate justification for its reduction of the Petitioner's Home Care for the Elderly benefits. It is, therefore, RECOMMENDED that the Petitioner continue to receive the benefits in the amount of $96.00 per month which she was receiving prior to the agency action herein involved and that Home Care for the Elderly benefits withheld from her pursuant to the agency's action be restored. DONE and ENTERED this 6th day of November, 1980, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF, 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 November, 1980. COPIES FURNISHED: Mrs. Ada Sapp Route 3, Box 137 Cottondale, Florida 32431 John L. Pearce, Esquire District II Legal Counsel Department of Health and Rehabilitative Services 2639 North Monroe Street Suite 200-A Tallahassee, Florida 32303
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 Whether Respondent, a licensed assisted living facility (ALF), committed the offenses alleged in the Administrative Complaint and, if so, the penalties that should be imposed.
Findings Of Fact Petitioner is a licensing and regulatory agency of the State of Florida charged with the responsibility and duty to regulate ALFs licensed pursuant to Chapter 400, Florida Statutes. At all times pertinent to this proceeding Ms. Rodriguez was an owner and administrator of Respondent, an ALF licensed by Petitioner. Respondent operates in Broward County, Florida. At all times pertinent to this proceeding, ALF administrators were required to receive core training administered by the Florida Department of Elder Affairs. At the time she took the core training, Ms. Rodriguez was not required to pass a final examination. Section 400.452(2), Florida Statutes, provides, in part, that effective July 1, 1997, all persons taking the core training must pass a competency examination to be administered by the Department of Elderly Affairs. 4. Effective April 20, 1998, Rule 58A-5.0191(1)(e), Florida Administrative Code, provides that any ALF administrator who did not attend mandatory periodic training updates must retake core training and must pass the competency examination. In 1998 and 1999, Ms. Rodriguez failed to attend mandatory training updates. On April 11, 2000, Maryanne Clancey conducted a survey of Respondent's facility. Ms. Clancey cited two Class III deficiencies that are pertinent to this proceeding. The first deficiency was Ms. Rodriguez's failure to attend mandatory core training updates. That failure justified the first Class III deficiency cited by Ms. Clancey. The second deficiency was the Respondent's failure to maintain an accurate up-to-date Medication Observation Record (MOR), which is required for each resident of an ALF. Ms. Clancey's determination that Respondent's MOR was inaccurate was based on the records for a resident of the ALF who will be referred to as Resident 1. Resident 1's record reflected that he had received certain prescribed medications at 9:00 a.m. on the morning of April 11, 2000. There was a conflict in the evidence as to whether Resident 1 was available to take his medicine at 9:00 a.m. on April 11, 2000. Ms. Clancey testified that she had been told by staff that Resident 1 was in the hospital that morning. Ms. Rodriguez testified Resident 1 had gone to the hospital during the early morning hours on April 11, 2000, but that Resident 1 had returned from the hospital by 9:00 a.m. that day. There was no other evidence as to whether Resident 1 had or had not taken his prescribed medicine that day. Based on the conflict between equally credible testimony, it cannot be determined that Resident 1 was not at the facility at 9:00 a.m. on April 11, 2000, as alleged by Petitioner, and it cannot be concluded that Resident 1 did not take his or her prescribed medicine that day. The alleged Class III deficiency pertaining to medical records should not be sustained based on the allegation that Resident 1 could not have taken his prescribed medicine as reflected on the MOR. The Class III deficiency pertaining to the medical records did not depend alone on the allegation that Resident 1 could not have taken his prescribed medicine on April 11, 2000. Ms. Clancey also observed that Resident 1's MOR for the month of March 2000 reflected that Resident 1 had received Cyprohepatadine three times a day for the entire month. There was no indication that Resident 1 had been administered Prozac. Ms. Clancey determined from Resident 1's pharmacist that Resident 1's physician had discontinued Cyprohepatadine on March 28 and had ordered Prozac on March 15. Ms. Rodriguez admitted that Resident 1's medical records failed to reflect those changes. The inaccuracies in Resident 1's MOR justified the second Class III deficiency cited by Ms. Clancey. Respondent was ordered to correct both Class III deficiencies by May 10, 2000. George Tokesky is the ALF Program Manager for the Department of Elder Affairs in Broward County, Florida. Ms. Rodriguez contacted Mr. Tokesky after Ms. Clancey's visit to determine what she needed to do about the core training. Mr. Tokesky explained to her that she would have to retake the core training program and pass the competency examination. Ms. Rodriguez took the core training program from June 6 to June 13, 2000, but she failed the competency examination. As of the final hearing, Ms. Rodriguez had not passed the competency examination. On June 27, 2000, Leonard Meerow conducted a follow-up visit at Respondent's facility to determine whether the facility had corrected the Class III deficiencies that Ms. Clancey had cited. The first Class III deficiency cited by Ms. Clancey pertaining to Ms. Rodriguez's core training had not been corrected. Mr. Meerow observed continued Class III deficiencies pertaining to medical records during the follow-up visit. Specifically, MOR records for three residents reflected that each resident had been administered his or her hour of sleep medication. The entries had been made before 4:00 p.m. Ms. Rodriguez admitted that these entries were incorrect. The second Class III deficiency cited by Ms. Clancey pertaining to medical records had not been corrected.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent failed to timely correct two Class III deficiencies. Petitioner should assess an administrative fine against Respondent in the amount of $1,000 per violation. DONE AND ENTERED this 21st day of February, 2001, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 21st day of February, 2001.
Findings Of Fact 1-166. Approved in substance. Approved, but modified to reflect that Hillhaven has not previously constructed and operated a Jewish nursing home in the county. Approved. 169-71. Approved in substance. 172. Approved, except for second sentence which is rejected as unproven. 173-175. Rejected as unproven. 176-180. Approved in substance. 181. Rejected as a comment on the testimony and as unproven. 182-185. Approved in substance. 186. Rejected as unproven. 187-188. Approved in substance. 189-201. Approved. Copies furnished: C. Gary Williams, Esquire Michael J. Glazer, Esquire P. O. 80x 391 Tallahassee; Florida 32302 (904)224-9115 James C. Hauser, Esquire O. Box 1S76 Tallahassee; Florida 32302 (904)222-0720 John Rodriguez, Esquire Bldg. One, Room 407 1323 Winewood Blvd. Tallahassee, Florida 32301 (904)488-2381 Keith A. Seldin, Esquire 1340 U.S. Hwy I, Suite 106 Jupiter, Florida 33469 (305)747-3000 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES HILLHAVEN, INC. d/b/a MENORAH HOUSE-HILLHAVEN, Petitioner, CASE NO. 85-2634 CON NO. 3879 vs. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Respondent. / NORTH RIVIERA BEACH CONVALESCENT CENTER, INC., Petitioner, CASE NO. 85-3320 CON NO. 3881 vs. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Respondent, And HILLHAVEN, INC., d/b/a MENORAH HOUSE-HILLHAVEN, Intervenor. / MANOR CARE OF BOYTON BEACH Petitioner, CASE NO. 86-0903 CON NO. 3877 vs. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Respondent, And HILLHAVEN, INC. d/b/a MENORAH HOUSE-HILLHAVEN, Intervenor. /
Recommendation Based on the foregoing, it is RECOMMENDED: That the application by Hillhaven, Inc. d/b/a Menorah House-Hillhaven for a CON authorizing a 120-bed nursing home in southern Palm Beach County be GRANTED, subject to the following special condition: (a) Beds will be made available to all, without regard to a patient's religion or place of residence. Further, elderly Jewish patients will be admitted without regard to ability to pay; That the application by Manor Care of Boynton Beach for a CON authorizing a 60-bed addition to its existing nursing home in Boynton Beach be GRANTED, subject to the following conditions: The new unit will provide a Jewish living environment; including kosher food and a full range of Jewish religious; cultural, and social activities; and Patients will be admitted without regard to religion or place of residence; and That the application by the North Riviera Beach Convalescent Center, Inc., be DENIED. DONE and ORDERED this 19th day of August, 1986, in Tallahassee, Florida. R. L. CALEEN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of August, 1986.
