02-001299 Agency For Health Care Administration vs. Cana Ii Corporation, D/B/A Harbour Health Center At South Port Square Status: Closed Recommended Order on Monday, September 23, 2002.

Summary: Agency failed to establish that nursing home resident`s weight loss was preventable where resident suffered from terminal Alzheimer`s disease and weight loss coincided with upper respiratory infection.

OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) Case No. 02 - 0949

)

HARBOUR HEALTH CENTER, )

)

Respondent. )

_______________________________ )

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) Case No. 02 - 1299

)

CANA II CORPORATION, d/b/a )

HARBOUR HEALTH CENTER AT SOUTH )

PORT SQUARE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in thes e

consolidated cases on June 19, 2002, in Port Charlotte, Florida,

before Lawrence P. Stevenson, a duly - designated Administrative

Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Dennis L. Godfrey, Esquire

Agency fo r Health Care Administration

525 Mirror Lake Drive, North

Room 310 - L

St. Petersburg, Florida 33701

For Respondent: Karen L. Goldsmith, Esquire

Goldsmith, Grout and Lewis, P.A.

2180 North Park Avenue, Suite 100

Post Office Box 2011

Winter Park, Florida 32790 - 2011

STATEMENT OF THE ISSUES

DOAH Case No. 02 - 0949: Whether Respondent's licensure

status should be reduced from standard to conditional.

DOAH Case No. 02 - 1299: Whether Respondent commit ted the

violation alleged in the Administrative Complaint dated

February 19, 2002, and, if so, the penalty that should be

imposed.

PRELIMINARY STATEMENT

By letter dated November 26, 2001, Harbour Health Center

("Harbour Health") was notified by the Agen cy for Health Care

Administration ("AHCA") that its Skilled Nursing Facility

license had been subjected to a rating change from "standard" to

"conditional" as a result of one Class II deficiency found in a

licensure and certification survey completed on Oc tober 25,

2001. Harbour Health timely filed an Election of Rights on

December 17, 2001, disputing the allegations of fact and

contesting the proposed Agency action. On February 19, 2002,

Harbour Health filed an Amended Petition for Formal

Administrative Hearing. On March 6, 2002, AHCA forwarded the

matter to the Division of Administrative Hearings ("DOAH") for

assignment of an Administrative Law Judge and conduct of a

formal hearing. This matter was assigned DOAH Case No. 02 - 0949

and set for hearing on May 3, 2002.

By Administrative Complaint dated February 19, 2002, AHCA

notified Harbour Health of its intent to impose a civil penalty

of $2,500 for the Class II deficiency found in the survey

completed on October 25, 2001. Harbour Health timely filed a

Petition for Formal Administrative Hearing contesting the

proposed Agency action. On April 1, 2002, AHCA forwarded the

matter to DOAH for assignment of an Administrative Law Judge and

conduct of a formal hearing. This matter was assigned DOAH Case

No. 0 2 - 1299. On April 9, 2002, Harbour Health filed a Motion to

Consolidate, which was granted by order dated April 15, 2002.

The consolidated cases were set for hearing on June 19, 2002.

The final hearing took place on that date.

At the formal hearing, AH CA presented the testimony of

Diane Ashworth, a registered nurse ("RN") for the Agency and

expert in nursing practices and procedures, and Lori Riddle, a

public health nutrition consultant for the Agency and expert in

dietetics and nutrition. AHCA's Exhib its 1 through 19 were

accepted into evidence.

Harbour Health offered the testimony of Catherine Rolin, a

licensed practical nurse ("LPN") working as a restorative nurse

at Harbour Health; Diane Ayala, a certified nursing assistant

("CNA") working as a r estorative aide at Harbour Health; Marie

Mulcahy, an RN working at Harbour Health as a unit manager;

Cheryl Cobb - Tollis, an RN and expert in nursing with a specialty

in gerontology; and Deborah Blackburn, a consultant dietician at

Harbour Health and expert in nutrition. By stipulation of the

parties, Harbour Health submitted the deposition testimony of

Michael Brinson, M.D., the attending physician of the resident

whose care was at issue in these proceedings. Harbour Health's

Exhibits 1 through 6 and 9 th rough 16 were accepted into

evidence.

A Transcript of the proceeding was filed at the Division of

Administrative Hearings on August 5, 2002. Both parties timely

filed Proposed Recommended Orders.

FINDINGS OF FACT

Based on the oral and documentary evi dence adduced at the

final hearing, and the entire record in this proceeding, the

following findings of fact are made:

1. AHCA is the state Agency responsible for licensure and

regulation of nursing homes operating in the State of Florida.

Chapter 400, Part II, Florida Statutes.

2. Harbour Health operates a licensed nursing home at

23013 Westchester Boulevard, Port Charlotte, Florida.

3. The standard form used by AHCA to document survey

findings, titled "Statement of Deficiencies and Plan of

Corre ction," is commonly referred to as a "2567" form. The

individual deficiencies are noted on the form by way of

identifying numbers commonly called "Tags." A Tag identifies

the applicable regulatory standard that the surveyors believe

has been violated and provides a summary of the violation,

specific factual allegations that the surveyors believe support

the violation, and two ratings which indicate the severity of

the deficiency.

4. One of the ratings identified in a Tag is a "scope and

severity" rating, which is a letter rating from A to L with A

representing the least severe deficiency and L representing the

most severe. The second rating is a "class" rating, which is a

numerical rating of I, II, or III, with I representing the most

severe deficiency a nd III representing the least severe

deficiency.

5. On October 22 through 25, 2001, AHCA conducted an

annual licensure and certification survey of Harbour Health, to

evaluate the facility's compliance with state and federal

regulations governing the operation of nursing homes.

6. The survey team alleged several deficiencies during the

survey, only one of which is at issue in these proceedings. At

issue is a deficiency identified as Tag F325 (violation of 42

C.F.R. Section 483.25(i)(1), relating to maintenance of

acceptable parameters of nutritional status).

7. The deficiency alleged in the survey was classified as

Class II under the Florida classification system for nursing

homes. A Class II deficiency is "a deficiency that the agency

determines has compromised the resident's ability to maintain or

reach his or her highest practicable physical, mental, and

psychosocial well - being, as defined by an accurate and

comprehensive resident assessment, plan of care, and provision

of services." Section 40 0.23(8)(b), Florida Statutes.

8. The deficiency alleged in the survey was cited at a

federal scope and severity rating of G, meaning that the

deficiency was isolated and caused actual harm that is not

immediate jeopardy.

9. Based on the alleged Class II deficiency in Tag F325,

AHCA imposed a conditional license on Harbour Health, effective

October 25, 2001. The license expiration date was August 31,

2002.

10. The survey allegedly found a violation of 42 C.F.R.

Section 483.25(i)(1), which states:

(i) Nutrition. Based on a resident's

comprehensive assessment, the facility must

ensure that a resident --

(1) Maintains acceptable parameters of

nutritional status, such as body weight and

protein levels, unless the resident's

clinical condition demonstr ates that this is

not possible. . . .

This requirement is referenced on Form 2567 as "Tag F325."

11. The survey found one instance in which Harbour Health

allegedly failed to ensure that a resident maintained acceptable

parameters of nutritional status. The surveyor's observation on

Form 2567 concerned Resident 5, or "R - 5":

Based on observations, record review and

staff interviews, the facility failed to

maintain acceptable parameters of

nutritional status and did not use all

possible interventions, t o prevent an

unplanned, severe weight loss (7.8 percent

in a two month period) for 1 (Resident 5) of

20 active sampled residents.

The findings include:

1. During her lunch on 10/22/01 at

approximately 12:20 P.M., Resident 5 was

observed clinching her teeth together making

it difficult to get food into her mouth.

Resident 5 was observed on 10/23/01 at 12:30

P.M., taking a limited amount of thickened

liquids from her nosey cup, and clinching

her teeth together making feeding her more

difficult. Residen t 5 was observed 5:25

P.M. until 5:55 P.M. on 10/23/01, taking

small sips from the nosey cup and clinching

her teeth together making it very difficult

for the Certified Nursing Assistant (CNA) to

feed her 25 percent of her meal. These

observations were ma de in the assisted

dining room on A - Wing.

2. Record review of Resident 5's chart,

documents 5/1/01 she weighed 127 pounds. On

7/2/01 and again on 7/16/01, her weight was

documented 117 pounds. This is a severe

weight loss of 7.8 percent in a two mont h

period. Review of the resident's care plan

dated 7/18/01, revealed the resident's

nutrition problem was "Res. is on a puree

diet with thickened liquids -- is continuing

to lose weight -- is terminal -- weight is

down 6 pounds for the month -- on weekly

weig ht -- consumes 25 - 50 percent of her

meals -- small portions at lunch -- super

cereal on breakfast tray and Carnation

Instant Breakfast on other trays. Resident

can be combative during meals -- resists any

attempt to assist her with eating -- is very

difficult to feed."

Approaches to address the problem included

consult with Registered Dietician as needed

and to monitor labs.

Further review of the care plan included

the problem: "Resident is on psychotropic

meds for dementia with psychosis as

evidenced by . . . increased agitation and

resisting care." Review of the resident's

physician orders reveal the resident began

receiving Risperdal in July 2001 for the

diagnosis of psychosis. The record also

revealed that the resident was given a

terminal status in January 2001.

During an interview at 5:20 P.M. on

10/23/01, regarding Resident 5's evening

meal being delivered after the other 3

residents at her table, the Certified

Nursing Assistant stated, "She don't eat

nothing anyway."

Interview with CDM (Cert ified Dietary

Manager) and Consulting Dietician on

10/23/01 at approximately 4:45 P.M.,

regarding resident's severe weight loss and

limited nutritional intake, revealed that

the Consulting Dietician stated she was

unaware of this resident. The CDM stated

the resident clinches her teeth, refuses

food, and they have tried everything else.

She stated that the resident was terminal

and that the family did not want a tube

feeding placed. The resident was put on

thickened liquids by a speech therapist in

1998 for dysphagia, but there had been no

speech therapy follow - up. They confirmed

that no psychiatric consult was ordered

since the care plan was developed, despite

continued behaviors during feeding.

An interview was conducted with the CDM

joined by th e DON regarding Resident 5's

weight loss and possible interventions on

10/24/01 at 3:05 P.M. It was identified

that no routine snacks were ordered, no

psychiatric follow - up nor speech therapy

follow - up, nor medication adjustments had

been done during May 2001 through July 2001.

The CDM stated that the facility only

acknowledges a 5 percent weight loss at an

interval of 1 month, and 10 percent at a 6

month interval as significant, but would not

look at a 7.5 percent because it would not

trigger on the Mini mum Data Set.

On 10/24/01 at 3:55 P.M., during an

interview with the Unit Manager regarding

Resident 5, she stated there was no

psychiatric or mental health evaluation

ordered, it was only on her care plan.

12. Diane Ashworth was the survey team memb er who recorded

the observation of R - 5. Ms. Ashworth based her findings on her

observations of R - 5, a review of the resident's medical records,

and interviews with Harbour Health staff.

13. R - 5 was a 92 - year - old female who had resided at

Harbour Health since 1998. She suffered from dementia with

psychosis, in particular end - stage Alzheimer's disease. Her

worsening condition caused her physician to request a

neurological consultation in January 2001. The consulting

neurologist diagnosed her condition as terminal. R - 5 was

severely impaired cognitively, and was completely dependent on

Harbor Health staff for all of her care. R - 5 was unable to feed

herself.

14. For over three years, Harbour Health has implemented a

"restorative dining" program for r esidents with eating problems.

In the restorative dining program, the resident is taken to a

quiet area and given one - to - one attention by a CNA during meals.

R - 5 has been in the restorative dining program since its

introduction.

15. During her entire s tay at Harbour Health, R - 5 was very

difficult to feed. She would clench her teeth, cover her mouth

and push away. At times she would take the food into her mouth,

then spit it back into the face of the caregiver. R - 5's medical

condition made it impossib le to reason with her about the

importance of maintaining nutrition.

16. The CNA assigned to R - 5 as her restorative aide would

spend up to two hours feeding one meal to her. The CNA would

attempt to feed R - 5 until her agitation and resistance made it

i mpossible. The CNA would refrigerate the food, then wait for

R - 5 to calm down. Then the CNA would reheat the food and begin

the process again.

17. Because of her Alzheimer's and her difficult behavior

during meals, R - 5 was identified as at risk for weig ht loss and

dehydration. Harbour Health's care plan for R - 5 identified

several strategies for maximizing R - 5's caloric intake, and

called for consultation with the facility's registered dietician

when needed.

18. R - 5 was on a no - sodium - added puree diet , taking

thickened liquids in place of solid food. Because she tended to

consume only 25 to 50 percent of the food offered at meals, the

facility offered her 3,252 calories per day at meals, well in

excess of the 1,677 to 1,960 calories required to mainta in her

usual body weight of 120 to 123 pounds. Staff noted that R - 5

appeared overwhelmed by large portions of food and began

offering her smaller amounts at one time. R - 5 was offered

fortified cereals and potatoes, and supplements such as Health

Shake an d Carnation Instant Breakfast. If R - 5 showed signs of

accepting certain foods, such as eggs, staff would order extra

portions of those foods. Snacks were offered between meals, and

R - 5 was given vitamin C, zinc, and multivitamins with iron to

supplement her nutrition. Staff employed items such as a "Nosey

Cup," a cup designed to permit its being held near the

resident's face without bumping the nose, to ease the feeding

process.

19. Harbour Health's standard practice was to weigh

residents once per month. If the monthly weights indicated a

problem, then Harbour Health would commence weighing the

resident on a weekly basis until the problem was resolved. As

noted by Ms. Ashworth, R - 5 weighed 127 pounds at her monthly

weighing on May 1, 2001. At her next monthly weighing on

June 1, 2001, R - 5 weighed 123 pounds. At the following monthly

weighing on July 2, 2001, R - 5 weighed 117 pounds. Ms. Ashworth

calculated the weight loss from May 1 to July 2, 2001 as 7.8

percent of R - 5's body weight.

20. No ting the weight loss, Harbour Health placed R - 5 on

weekly weights in July 2001. On July 16, 2001, her weight

remained at 117 pounds. On July 23, 2001, her weight had

increased to 123 pounds. On August 1, 2001, R - 5's weight was

125 pounds. Thus, by earl y August R - 5 had regained nearly all

of the weight she had lost between May and July 2001.

21. On July 6, 2001, R - 5's attending physician prescribed

Risperdal, an antipsychotic medication, to calm her severe

agitation and constant movement. Risperdal ca n act as an

appetite stimulant. The administration of Risperdal to R - 5

coincided with her weight gain in July 2001.

22. When the facility became aware of R - 5's weight loss in

July 2001, staff began offering R - 5 food more often, including

more snacks bet ween meals. The attending physician removed the

sodium restriction from R - 5's puree diet. Aside from those

steps, Harbour Health maintained the same nutritional procedures

for R - 5.

23. The agency alleged that Harbour Health was deficient

in not involv ing the consulting dietician when it became aware

of R - 5's weight loss. The agency further alleged that Harbour

Health should have ordered a psychiatric consultation and a

speech therapy consultation. Regular snacks should have been

ordered, and R - 5's me dications should have been adjusted.

24. Harbour Health contended that it was already doing

everything possible to ensure R - 5's nutritional status. The

only alternative to the puree diet would be tube feeding. R - 5's

son, who acted as her guardian, mad e it clear to the facility

that he would not consent to tube feeding.

25. In May 2001, R - 5 suffered from an upper respiratory

infection diagnosed as bronchitis by her attending physician.

On May 14, 2001, the physician ordered the antibiotic Levaquin;

nebulizer treatments with Albuterol and Atrovent, both

bronchodilators; and oral administration of Robitussin. All of

these medications were ordered and administered for a period of

one week.

26. Harbour Health contended that R - 5's respiratory

infection completely explained her weight loss. The evidence

does not entirely support that contention. The medical records

indicate that R - 5's condition was largely resolved by the latter

part of May 2001. R - 5 lost four pounds during the month of

May 2001. Th e majority of R - 5's weight loss occurred during the

month of June 2001, after her bronchitis was treated and

apparently resolved. At most, R - 5's weight loss was only

partially explained by her upper respiratory infection.

27. Dr. Michael Brinson, R - 5's attending physician,

testified that it is expected that an end - stage Alzheimer's

patient will lose weight, because at some point the resident

loses the will to live. In Dr. Brinson's opinion, R - 5 had

reached this point, which explained her refusal to eat. He was

aware of R - 5's weight loss. Given R - 5's clinical condition, the

weight loss did not concern Dr. Brinson, who deemed it

irrelevant to her care and treatment. Even Ms. Ashworth, the

agency RN who performed the survey observation of R - 5, agreed

tha t weight loss can be a symptom of end - stage Alzheimer's.

28. R - 5 had been provided with a speech consultation and

speech therapy in 1998. She was discharged from speech therapy

in March 1998 because it was determined that nothing more could

be done for her.

29. Dr. Brinson testified that a speech therapy

consultation would have been useless in July 2001. Speech

therapy is called for if the resident's refusal to eat is

related to a swallowing problem. R - 5 had no swallowing problem.

Catherine Rolin, t he restorative nurse who supervised R - 5's

feedings, confirmed that there were no indications R - 5 had

difficulty swallowing, or had choked or aspirated during the

time she was losing weight.

30. Dr. Brinson opined that R - 5's terminal diagnosis with

end - stage Alzheimer's disease made a psychiatric consultation of

no value. R - 5's cognitive impairment would have rendered her

unable to participate in any psychiatric examination.

31. Dr. Brinson came to the facility at least once a week.

His Advanced Reg istered Nurse Practitioner ("ARNP"), Vickie

Swank, came to the facility several times a week. Dr. Brinson

would have had to order any psychiatric or speech therapy

consultation, or any laboratory work. Dr. Brinson believed that

none of these was appropri ate for R - 5.

32. The interdisciplinary team overseeing R - 5's care

included the facility's certified dietary manager. The team was

aware of R - 5's weight loss as of July 2, 2001, and decided that

R - 5's status did not trigger a need to consult the register ed

dietician.

33. Deborah Blackburn, a dietician and expert in

nutrition, reviewed R - 5's records and concluded that there was

no need to consult a registered dietician. Ms. Blackburn opined

that the facility was taking all reasonable steps to maintain R -

5's caloric intake and nutritional status. She could not think

of a workable approach that Harbour Health had failed to employ.

34. Aside from the weight loss itself, R - 5 suffered no

skin breakdown or other negative effects.

35. Viewing the evidence in its entirety, it is found that

AHCA failed to prove the elements of Tag F325 by a preponderance

of the evidence. R - 5 lost the weight then quickly gained most

of it back with no dramatic changes in Harbour Health's

approaches to her feeding and overall nutrition. This fact

demonstrates that R - 5's weight loss was caused not by Harbour

Health's failure to provide adequate nutrition, but by a

combination of R - 5's terminal Alzheimer's disease and her upper

respiratory infection. Once Harbour Health became aware of the

weight loss, it reacted appropriately and successfully. The

steps that the agency faulted Harbour Health for failing to

take -- psychiatric consultation, speech therapy consultation,

dietician consultation, and medication adjustments -- were

demo nstrated to be unnecessary in light of R - 5's condition.

CONCLUSIONS OF LAW

36. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this

proceeding pursuant to Sections 120.569 and 120.57(1), Florida

Statu tes.

37. AHCA is authorized to license nursing home facilities

in the State of Florida, and pursuant to Chapter 400, Part II,

Florida Statutes, is required to evaluate nursing home

facilities and assign ratings. Section 400.23(7), Florida

Statutes, requi res AHCA to "at least every 15 months, evaluate

all nursing home facilities and make a determination as to the

degree of compliance." AHCA's evaluation must be based on the

most recent inspection report, taking into consideration

findings from official re ports, surveys, interviews,

investigations, and inspections. AHCA must assign either a

standard or conditional rating to each facility after it surveys

the facility. Section 400.23(7), Florida Statutes.

38. The Agency has the burden to establish the a llegations

that would warrant the imposition of a conditional license.

Beverly Enterprises - Florida v. Agency for Health Care

Administration , 745 So. 2d 1133 (Fla. 1st DCA 1999). AHCA must

show by a preponderance of the evidence that there existed a

basis for imposing a conditional rating on Harbour Health’s

license. Florida Department of Transportation v. J.W.C.

Company, Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981); Balino v.

Department of Health and Rehabilitative Services , 348 So. 2d 349

(Fla. 1st DCA 1977 ).

39. As to the allegations of the Administrative Complaint,

the standard of proof for imposition of an administrative fine

is clear and convincing evidence. Department of Banking and

Finance v. Osborne Stern and Co. , 670 So. 2d 932, 935 (Fla.

1996).

40. Section 400.23, Florida Statutes, provides in

pertinent part:

(7) The agency shall, at least every 15

months, evaluate all nursing home facilities

and make a determination as to the degree of

compliance by each licensee with the

established rules adopted under this part as

a basis for assigning a licensure status to

that facility. The agency shall base its

evaluation on the most recent inspection

report, taking into consideration findings

from other official reports, surveys,

interviews, investig ations, and inspections.

The agency shall assign a licensure status

of standard or conditional to each nursing

home.

* * *

(b) A conditional licensure status means

that a facility, due to the presence of one

or more class I or class II deficiencies, or

class III deficiencies not corrected within

the time established by the agency, is not

in substantial compliance at the time of the

survey with criteria established under this

part or with rules adopted by the agency.

If the facility has no class I, cl ass II, or

class III deficiencies at the time of the

followup survey, a standard licensure status

may be assigned.

41. Section 400.23(8)(b), Florida Statutes, defines a

Class II deficiency as:

a deficiency that the agency determines has

compromised the resident's ability to

maintain or reach his or her highest

practicable physical, mental, and

psychosocial well - being, as defined by an

accurate and comprehensive resident

assessment, plan of care, and provision of

services. A class II deficiency is subjec t

to a civil penalty of $2,500 for an isolated

deficiency, $5,000 for a patterned

deficiency, and $7,500 for a widespread

deficiency. The fine amount shall be

doubled for each deficiency if the facility

was previously cited for one or more class I

or clas s II deficiencies during the last

annual inspection or any inspection or

complaint investigation since the last

annual inspection. A fine shall be levied

notwithstanding the correction of the

deficiency.

42. The October 2001 survey of Harbour Health in cluded one

deficiency identified as Tag F325 (violation of 42 C.F.R.

Section 483.25(i)(1), relating to maintenance of acceptable

parameters of nutritional status). This deficiency was

identified as Class II and thus subjected the facility to

conditional l icensure. Because the deficiency was isolated, the

agency seeks to impose a $2,500 fine.

43. The preponderance of the evidence failed to establish

that the cited deficiency occurred. The evidence presented at

hearing failed to establish that the reside nt's weight loss was

not fully addressed by the facility. The agency's criticisms

focused purely on the resident's weight loss, without taking

into account her individual circumstances. Such considerations

as ordering a psychiatric consultation simply ma de no sense for

a resident suffering end - stage Alzheimer's disease. Further,

the resident quickly regained the lost weight with only minimal

changes in the nutritional approaches employed by the facility,

leading to the logical conclusion that her weig ht loss was not

caused by Harbour Health's care.

44. The burden of proof on AHCA as to the phase of the

proceeding involving the Administrative Complaint was to

demonstrate the truthfulness of the allegations in the complaint

by clear and convincing evi dence. Osborne Stern ; Ferris v.

Turlington , 510 So. 2d 292 (Fla. 1987).

45. The "clear and convincing" standard requires:

[T]hat the evidence must be found to be

credible; the facts to which the witnesses

testify must be distinctly remembered; the

test imony must be precise and explicit and

the witnesses must be lacking in confusion

as to the facts in issue. The evidence must

be of such weight that it produces in the

mind of the trier of fact a firm belief or

conviction, without hesitancy, as to the

tru th of the allegations sought to be

established.

Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

46. Given the conclusion that the Agency failed to

establish the deficiency alleged in the October 2001 survey by a

preponderance of the eviden ce, it must follow that the more

exacting standard of clear and convincing evidence has not been

met.

RECOMMENDATION

Upon the foregoing Findings of Fact and Conclusions of Law,

it is recommended that the Agency for Health Care Administration

enter a final order dismissing the Administrative Complaint in

DOAH Case No. 02 - 1299, and rescinding the notice of intent to

assign conditional licensure status to Harbour Health Center in

DOAH Case No. 02 - 0949 and reinstating the facility's standard

licensure status.

DONE AND ENTERED this 23rd day of September, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

LAWRENCE P. STEVENSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tall ahassee, 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 23rd day of September, 2002.

COPIES FURNISHED:

Ursula Eikman, Esquire

Agen cy for Health Care Administration

2727 Mahan Drive

Tallahassee, Florida 32308

Dennis L. Godfrey, Esquire

Agency for Health Care Administration

525 Mirror Lake Drive, North

Room 310L

St. Petersburg, Florida 33701

Karen L. Goldsmith, Esquire

Goldsmith, G rout & Lewis, P.A.

2180 North Park Avenue, Suite 100

Post Office Box 2011

Winter Park, Florida 32790 - 2011

Lealand McCharen, Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

Valinda Clark Christ ian, Acting General Counsel

Agency for Health Care Administration

2727 Mahan Drive

Fort Knox Building, Suite 3431

Tallahassee, Florida 32308

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days fro m the date of this recommended order. Any exceptions

to this recommended order should be filed with the agency that

will issue the final order in this case.