05-000121 Agency For Health Care Administration vs. Lakeland Manor Health Care Associates, Llc, D/B/A Wedgewood Healthcare Center Status: Closed Recommended Order on Wednesday, June 29, 2005.

Summary: Although the hot water temperature coming out of the sinks in four residents` rooms was 140 degrees, well above the 115-degree maximum, the evidence did not prove the likelihood of serious injury to a resident. Recommend that the complaint be dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) Case No. 05 - 0121

)

LAKELAND MANOR HEALTH CARE )

ASSOCIATES, LLC, d/b/a )

WEDGEWOOD HEALTHCARE CENTER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

before Daniel M. Kilbride, Administrative Law Judge of the

Division of Administrative Hearings , on April 27, 2005, in

Lakeland , Florida .

APPEARANCES

For Petitioner: Kim M. Murray, Esquire

Agency for Health Care Administration

525 Mirror Lake Drive, Suite 330D

St. Petersburg, Florida 3 3701

For Respondent: Donna Holshouser Stinson, Esquire

R. Davis Thomas, Quali fied Representative

Broad and Cassel

Post Office Drawer 11300

Tallahassee, Florida 32 302 - 1300

STATEMENT OF THE ISSUES

Whether Respondent, Lakeland Manor Health Care Associates,

LLC, d/b/a Wedgewood Healthcare Center , committed a Class I

deficiency at the time of a survey conducted on October 29,

2004, so as to justify the issu ance of a " c onditional " license;

and whether to impose an administrative fine of $10,000 under

Section 400.23, Florida Statutes (2004), and an additional fine

of $6,000 under Section 400.19, Florida Statutes (2004).

PRELIMINARY STATEMENT

An Administrative Complaint dated December 22, 2004, w as

filed by Petitioner, Agency for Health Care Administration

("Petitioner") , against Respondent, Lakeland Manor Health Care

Associates, LLC, d/b/a Wedgewood Healthcare Center

("Respondent"), alleging a Class I deficiency , changing its

license rating from "s tandard " to " conditional , " and imposing a

fine against Respondent. Respondent den i ed the allegations and

timely requested a formal hearing. The matter was forwarded to

the Division of Administrative Hearings ("DOAH") for hearing on

January 13, 2005, and discovery ensued. An Amended

Administrative Complaint was approved for filing on January 27,

2005.

At hearing, Petitione r presented the testimony of five

witnesses : Thomas Gill, Health Facility Evaluator II; Leslie

Bower , fire protection specialist; Margaret Messenger,

registered nurse specialist; Karen Allen, registered nurse

specialist; and Kay Sannella, registered nurse specialist and

recognized as an expert in general nursing practices .

Petitioner submitted nine exhibits into evidence. Respondent

presented the testimony of four witnesses : Mark Mulligan,

Respondent's maintenance director; Kelly Riehn, licensed

practic al nurse (LPN) ; Clark Evans, Respondent's administrator;

and Sharon White, certified nursing assistant (C N A) . Respondent

submitted four exhibits into evidence. Respondent's Exhibit 1

is the deposition testimony of an additional witness, Bobbie

Tyler , a C NA .

A Transcript of the hearing was filed with DOAH on May 24,

2005. Following the granting of a motion for extension of time

to file proposed recommended order s, t he parties timely

submitted Proposed Recommended Order s on June 13, 2004. Both

parties' proposals have been given careful consideration in the

preparation of this Recommended Order.

FINDINGS OF FACT

Based upon the evidence presented at the final h ea ring, the

following relevant findings of fact are made:

1. At all time s material hereto, Pe titioner is the state

agency charged with licensing of nursing homes in Florida under

Subsection 400.021(2), Florida Statutes (2004), and the

assignment of a license status pursuant to Subsection 400.23(7),

Florida Statutes (2004). Petitioner is charged w ith evaluating

nursing home facilities to determine their degree of compliance

with established rules as a basis for making the required

licensure assignment.

2. Pursuant to Subsection 400.23(8), Florida Statutes

(2004), Petitioner must classify deficien cies according to the

nature and scope of the deficiency when the criteria established

under Subsection 400.23(2), Florida Statutes (2004), are not

met. The classification of any deficiencies discovered

determines whether the licensure status of a nursing home is

"s tandard " or "c onditional " and the amount of the administrative

fine that may be imposed, if any.

3. Surveyors note their findings on a standard prescribed

Center for Medicare and Medicaid Services (CMS) Form 2567,

entitled, "Statement of Defic iencies and Plan of Correction,"

which is commonly referred to as " Form 2567 ." During the survey

of a facility, if violations of regulations are found, the

violations are noted and referred to as "Tags." A tag

identifies the applicable regulatory standar d that the surveyors

believe has been violated , provides a summary of the violation,

and sets forth specific factual allegations that they believe

support the violation. Insofar as relevant to this proceeding,

Form 2567 identifies Tag F323, which is the b asis of

Petitioner's charging document.

4. Respondent is a licensed nursing facility located at

1010 Carpenter's Way, Lakeland, Florida 33809.

5. Based on the state requirements of Subsection s

400.23(7) and (8), Florida Statutes (2004), and pursuant to

Florida Administrative Code Rule 59A - 4.133(16)(d), Petitioner

determined that Respondent failed to comply with state

requirements and under the Florida classification system,

classified the noncompliance as an isolated state Class I

deficiency which requi red immediate corrective action because

Respondent's noncompliance was likely to cause serious injury,

harm, impairment, or death to residents receiving care at

Respondent.

6. Should Respondent be found to have committed the

alleged deficient practice, t he period of the " conditional "

licensure status would extend from October 29, 2004, through

December 7, 2004, the date of Petitioner's follow - up survey in

which the cited violations were found to have been corrected.

7 . On October 26, 2004, through Octob er 29, 2004,

Petitioner conducted an annual health and life safety survey of

Respondent. On the morning of October 26, 2004, Thomas Gill,

Petitioner's surveyor, who was the team leader of the survey

team, toured the 800 hall of Respondent's facility. Gil l was

accompanied during his tour of the 800 hall with one of

Respondent's employees, Kelly Riehn, an LPN.

8 . The survey procedure involved, inter alia , sampling

rooms on the hall to determine if the hot water was felt to be

within accepted temperature r anges. After the hot water in the

lavatories in Rooms 800 through 803 had been turned on for more

than 30 seconds, Gill noted that the skin on his hands turned a

reddish color after holding his hands under the water for one to

two seconds. He believed th e water to be hotter than it should

be. Gill proceeded to check the hot water by hand - inspection in

the remainder of the rooms on the 800 hall. He found that the

other rooms appeared to have hot water within the accepted

range, including the bathing area s. The bathrooms in the

residents' rooms contain only a toilet and sink.

9 . Gill then determined that he needed the maintenance

director to come to the 800 hall to test the water temperatures

with a thermometer. Gill informed Riehn that he needed the

m aintenance director. After some delay, Gill reported his

findings to the survey team. He then located the life safety

surveyor, who conducts an independent survey, and requested that

he locate the facility maintenance director and assist him in

measur ing t he water temperature in the four rooms and throughout

the facility.

10. After some delay in locating Respondent's employee,

Leslie Bower, the life safety surveyor, accompanied the

maintenance director, Mark Mulligan, to the maintenance office

to revie w the blueprints for the facility and then proceeded to

the room where the hot water heater was located to inspect the

water heating devices and system. Bower then observed Mulligan

test the water with a thermometer in three of the resident

rooms. The te mperature of the hot water coming out of the

lavatory faucets in the resident s' rooms registered 140 degrees

Fahrenheit. To check the water temperatures, the water was

allowed to run for 30 to 40 seconds, in order for it to get hot.

Bower informed Gill t hat the hot water in the four affected

rooms registered 140 degrees Fahrenheit.

11. Gill reported his findings to the survey team. The

survey team determined that because the hot water coming out of

the tap was 140 degrees Fahrenheit, there was a likelih ood of

ha r m, injury, or death to residents and action need to be taken

quickly. The survey team did not suggest that any resident was

at risk of receiving extensive burns from immersion in a tub or

placement under a shower. The only allegation of likelih ood of

harm to residents pertain ed to the sinks in Rooms 800 to 803.

1 2 . Gill informed Respondent's administrator, Clark Evans,

at approximately 2:00 p.m., that the hot water in the four

resident s' rooms was 140 degrees Fahrenheit. Evans immediately

proc eeded to the four rooms ( Rooms 800 through 803) , where he

tested the hot water with his hands in one of the affected

rooms. After approximately 30 seconds, the water became

"uncomfortable , " and he had to remove his hands. Evans then

turned the hot water off under the sink. He instructed Mulligan

to turn off the hot water to the other three sinks, which was

done.

13. The evidence clearly reflects that the hot water

temperature in the sinks of the four rooms was 140 degrees

Fahrenheit on October 24, 2004 , if the water was allowed to run

for 30 to 40 seconds .

1 4 . During the time of Petitioner's survey, Riehn was a

floor nurse on the 700 and 800 halls working the 7:00 a.m. to

3:00 p.m. shift. Riehn presented testimony that she washed her

hands after giving medications to residents who resided in R ooms

800 through 803 prior to Petitioner's tour of the 800 hall. She

typically washes her hands for 45 seconds. Then, she passes

medications out to 30 residents each morning over a period of

"about an hour and a half."

1 5 . Riehn testified that she "sometimes" turn on both the

hot and cold w ater faucets when washing her hands. She did not

recall anything "exceptional" about the water and that it

"seemed normal." Riehn also administered medications at 12:00

noo n and 2:00 p.m. on her unit, however, she presented no

testimony concerning the water temperature at those times.

1 6 . Respondent had a system in place to check water

temperatures on a weekly basis . The maintenance director

checked one room on each hall, selected randomly, and checked

all bathing areas each week. The reports were written in a log

book, though the room number was not written down. Respondent

also had a system for reporting maintenance and safety issues

and kept a log for those purposes, a s well. Staff received

training o n how to report safety issues. There was no record of

any complaints of the water being excessively hot. There were

also no incidents involving hot water in the facility's incident

and accident reporting logs.

1 7 . When told that the water temperature in the four rooms

was 140 degrees Fahrenheit, Evans attempted to determine the

cause of the problem. He and the maintenance director pulled

blueprints of the building and determined that those rooms were

on a separate water heater from the remainder of the hall. This

was an unusual system.

1 8 . As he had experience running a small nursing home ,

where he also had maintenance director duties, Evans , along with

the maintenance director, also inspected the water heater and

trie d to adjust the mixing valve, which mixes hot and cold water

to the appropriate temperature. Instead of resulting in an

adjustment, the temperatures changed inconsistently,

demonstrating that there was a problem with the valve.

1 9 . The circulating pump s that keep the water flowing

through the hot water pipes, which provide hot water to the four

affected rooms, were not working. The hot water pipes were on a

loop system. Because the circulating pumps were not working,

the hot water, once turned off at the sink, would just sit in

the pipes instead of circulating back to the hot water heater.

When the hot water was turned on at the sinks, it could come out

hot or cold depending on how long it had been since the hot

water was last turned off.

20 . A plumb er was called immediately, and the problem was

corrected before the end of the survey.

21 . While there was some hearsay evidence that some staff,

upon questioning by the surveyors, indicated the water in the

affected rooms was overly hot, this evidence wa s not reliable,

as it was not known what questions were asked by the surveyors

or in what context, and some of this hearsay was refuted by

testimony.

2 2 . The greater weight of the evidence was that facility

management had no reason to be aware of a prob lem with the hot

water in those rooms and that as soon as they became aware of

the problem , they responded quickly and thoroughly.

2 3 . Resident No. 27 , who resides in one of the subject

rooms, had dementia, resulting in poor safety awareness ; and as

a con sequence, was at risk for falls. She was in a wheelchair,

but would sometimes attempt to stand. Because of these

concerns, she had a wheelchair alarm and a bed alarm which would

sound if she attempted to get up. Additionally, she was

positioned in her c hair in front of the nurses' station so she

could be monitored. She was closely observed, and this is

reflected in the nursing notes. Staff was required to help

Resident No. 27 ambulate. The resident was sufficiently alert

to know when she had to go to the bathroom and would request

staff assistance. The routine was that staff would take her to

the bathroom, place her on the toilet, get her up, and then turn

on the water to help her wash. C NAs check water temperatures

before wetting a cloth to give to the resident.

2 4 . On one occasion, on September 24, 2004, Resident

No . 27 was found in the bathroom by herself. Her bed alarm was

going off, and Riehn , who found her, recorded the incident in

the nursing notes. Though the water was running, there was

ap parently no problem with the temperature. This was the only

known occasion when the resident tried to use the bathroom

without assistance, as she was not allowed to use the bathroom

without assistance. Resident No. 27 had no medical problems

which would affect feeling in her extremities, and she was

capable of feeling pain and reacting to it. She would not leave

her hand in water hot enough to cause pain.

2 5 . Resident No. 29 , who resides in one of the subject

rooms, was more cognitively impaired than Re sident No. 27. She

required staff assistance for all her activities. She was in a

Broda chair, which is a chair positioned to lean back so that a

resident will not fall out. While the chair was mobile,

Resident No. 29 did n ot have the cognitive capabili ty to

negotiate it through doorways to reach the bathroom and had

never been known to do so. Resident No. 29 also did not have

any condition which would cause her to lose feeling in her

extremities or prevent her from withdrawing from pain.

26. Resident No. 29 was not capable of getting herself

into the bathroom. Resident No. 2 9 was under close and careful

supervision, not because of fear of burns, but because she had a

tendency to try to walk and fall. Even if she managed to get

into the bathroom witho ut staff observation, even if she turned

on the hot water, even if the mixing valve was malfunctioning at

that time, even if the water in the pipes was still excessively

hot, and even if the facility had not detected and corrected the

problem by then, she would have to defy pain while holding some

part of her body under the faucet for several seconds. This

occurrence was highly unlikely.

27. There did not appear to be a sufficiently significant

risk of harm to residents for the lead surveyor to notify

fac ility staff when he checked the water temperature on the

initial tour. Instead, he waited to report it at the team

meeting, and the team thought it appropriate to wait for the

maintenance director to return from lunch to check the

temperatures, even thoug h their protocol requires that the

survey staff measure with their own equipment.

2 8. A second - degree burn from water at 140 degrees

Fahrenheit requires immersion for approximately five seconds. A

second - degree burn damages, but does not destroy the top two

layers of skin and heals in ten to 21 days. As it took

approximately 30 to 40 seconds for water in the taps to reach

140 degrees Fahrenheit, a scalding burn would require that a

person run the water for that period of time, and then hold his

hand unde r the water, in spite of pain, for another five

seconds.

2 9 . The problem with the hot water was either of recent

origin or very intermittent, as there were no recorded

difficulties . T he water had been of appropriate temperature

just prior to the survey , and no problems had been discovered in

the weekly random room checks.

30 . Petitioner's position that water coming out of a sink

at 140 degrees Fahrenheit constitutes a likelihood of serious

injury or death to a resident is at odds with other regulations

i t enforces. Petitioner requires that hot foods be maintained

at 140 degrees Fahrenheit for serving, so that a bowl of soup

must be served to a resident at that temperature. It appears

that there would be as much, if not more, chance of a burn from

spilli ng a bowl of soup than from using a sink, where a resident

would have to turn on the water and let it run and then

voluntarily place her hand under the water.

31 . The evidence is not convincing that Respondent kn e w or

should have known that water temperat ures in the lavatories of

four rooms were in excess of 115 degrees Fahrenheit on the day

of the survey.

3 2 . The preponderance of evidence does not support the

assertion that Residents 27 and 29 were in immediate risk of

harm and were likely to be scalded by the hot water.

3 3 . The evidence does not support the likelihood of harm,

injury , or death to those residents from the hot water.

CONCLUSIONS OF LAW

3 4 . The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of t his case

pursuant to Section 120.569 and Subsection 120.57(1), Florida

Statutes (2004).

3 5 . The burden of proof is on Petitioner. See Beverly

Enterprises - Florid a Agency for Health Care Administration , 745

So. 2d 1133 (Fla. 1st DCA 1999). The burden of proof for the

assignment of licensure status is by a preponderance of the

evidence. See 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). The burden of proof to impose an

administrative fine is by clear and convincing evidence.

Department of Banking and Finance v. Osborne Stern & Co ., 670

So. 2d 932 (Fla. 1996) .

3 6 . The Florida Supreme Court has determined that where

fines are imposed, the burden of proof must be by clear and

convincing evidence, because a fine "deprives the person fined

of substantial rights in property." Id. at 935 . The

requirement of clear and convincing evidence has also been

applied to ac tions which affect reputation and good name. In

Latham v. Florida Commission on Ethics , 694 So. 2d 83 (Fla. 1st

DCA 1997), the c ourt dismissed arguments that the lack of a fine

relieved the Commission of its burden to prove its findings by

clear and convi ncing evidence. In looking "to the nature of the

proceedings and their consequences to determine the degree of

proof required" (citing Osborn Stern ), the c ourt determined that

loss of a good name was equally as severe as a monetary fine.

Id. at 935.

3 7 . The imposition of a "c onditional " license adversely

affects the reputation of a nursing facility with the public,

and , thus, affects its ability to operate. Clearly, the effect

of an adverse survey and the "c onditional " rating emanating

therefrom is pena l in nature and is intended to warn consumers

against doing business with the facility. It would seem that

t he nature of these proceedings , and the consequences from them ,

require Petitioner to prove its case by clear and convincing

evidence . However, th at is not Petitioner's position.

Petitioner holds that the rating of a nursing home, as

"conditional" is a regulatory measure, not a penal sanction, and

the appropriate standard of proof is the preponderance standard.

Agency for Health Care Administratio n v. Washington Manor

Nursing and Rehabilitation , Case No. 00 - 4035 (DOAH May 7, 2001)

(Final Order, September 13, 2001). 1/

38. The parties agree that Petitioner has the burden of

proof. In this case, it is unnecessary to determine the

standard of proof because Petitioner failed to prove the

material allegations under the preponderance standard.

3 9 . Subsection 400.23(7), Florida Statutes (2004), states

in relevant part:

(7) The agency shall, at least every 15

months, evaluate all nursing home faciliti es

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, investigations, and inspections.

The agency shall assign a licensure status

of standard or conditional to each nursing

home.

(a) A standard licensure status means

that a facility has no class I or class II

deficiencies and has corrected all class III

deficiencies within the time established by

the agency.

(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, class II, or

class III deficiencies at the time of the

followup survey, a standard licensure status

may be assigned. . . .

40 . Section 400.23, Florida Statutes (2004), provides for

classification of deficiencies as follows:

(8) The agency shall adopt rules to

provide that, when the criteria established

under subsection (2) are not met, such

deficiencies shall be classified according

to the nature and the scope of the

deficiency. . . . The agency shall indicate

the classificati on on the face of the notice

of deficiencies as follows:

(a) A class I deficiency is a deficiency

that the agency determines presents a

situation in which immediate corrective

action is necessary because the facility's

noncompliance has caused, or is likely to

cause, serious injury, harm, impairment, or

death to a resident receiving care in a

facility. . . .

4 1 . Subsection 400.19(3), Florida Statutes (2004),

provides in pertinent part:

The survey shall be conducted every 6

months for the next 2 - ye ar period if the

facility has been cited for a class I

deficiency, has been cited for two or more

class II deficiencies arising from separate

surveys or investigations within a 60 - day

period, or has had three or more

substantiated complaints within a 6 - mon th

period, each resulting in at least one

class I or class II deficiency. In addition

to any other fees or fines in this part, the

agency shall assess a fine for each facility

that is subject to the 6 - month survey cycle.

The fine for the 2 - year period sh all be

$6,000, one - half to be paid at the

completion of each survey. . . .

4 2 . Florida Administrative Code Rule 59A - 4.133, under

which Petitioner has charged Respondent, is entitled "Plans

Submission and Review and Construction Standards." It sets

forth standards for construction. Subsection (16) sets out

standards for all facilities, as opposed to new facilities or

those being renovated. It states , as follows, in part:

(16) All facilities shall comply with the

following standards:

(a) All opera ble windows shall be

equipped with well fitted insect screens not

less than 16 mesh per inch.

(b) Throw rugs or scatter rugs shall not

be used in the facility. Floor mats are

allowed in the facility.

(c) Interior corridor doors, except for

those sm all closets and janitors’ closets,

shall not swing into corridors.

(d) The temperature of hot water supplied

to resident use lavatories, showers, and

baths shall be between 105 degrees

Fahrenheit and 115 degrees Fahrenheit. . . .

4 3 . There is no disp ute that Respondent's hot water

delivery system was designed and constructed to deliver water at

the appropriate temperature to resident use areas. The problem

was th a t a mechanical device failed.

4 4 . Nursing home regulations do not impose strict

liabili ty on nursing homes and cannot be construed as making

nursing homes guarantors of occupant safety under all

circumstances. Those regulations must be construed as only

imposing a duty on nursing homes to make reasonable efforts or

use reasonable care to pr event an undesired event. See

p aragraph 59 of the Recommended Order in Washington Manor ,

supra ; see also § 400.23(1) and (2), Fla. Stat. (2004).

4 5 . Petitioner did not establish at hearing that staff at

Respondent knew of and failed to address the faulty mixing valve

or that it could have been identified and corrected sooner. To

the contrary, Petitioner demonstrated that it had a system in

place to monitor hot water which was consistently implemented,

as well as a system for reporting problems and that s taff was

trained in that system. Thus, Petitioner's charge could only be

sustained if Respondent is held to the acknowledged impossible

standard of preventing hardware from breaking. See Washington

Manor , supra .

4 6 . Furthermore, even if there were a str ict liability

standard, Petitioner did not demonstrate that either Resident

No. 27 or Resident No. 29 was likely to suffer serious injury,

harm, impairment, or death from 140 degree Fahrenheit water in

the sink in the bathroom. 2/ In fact, that outcome app eared to be

decidedly unlikely under the facts demonstrated at hearing. At

most, even with a strict liability standard, the circumstances

proven by Petitioner presented only a remote "potential" for

harm to residents. A deficiency , which only presents a

potential for harm to residents , is a Class III deficiency. See

§ 400.23(8)(c), Fla. Stat. (2004). A Class II deficiency cannot

be the basis for a fine or a "conditional" license , unless it is

not timely corrected by the nursing home. It was undisputed

that Respondent immediately corrected the deficiency asserted by

Petitioner. Thus, even assuming that Petitioner proved its

alleged deficiency, it failed to prove that the deficiency was

severe enough to support any penalties.

4 7 . Regardless of whether P etitioner's burden of proof was

the preponderance of the evidence or clear and convincing,

Petitioner failed to prove that a Class I or II deficiency

existed at Respondent's facility. It was, thus, inappropriate

for Petitioner to issue Respondent a "c ondi tional " rating or to

impose an administrative fine.

RECOMMENDATION

Based on the foregoing Findings of Facts and Conclusions of

Law, it is

RECOMMENDED that Petitioner , Agency for Healthcare

Administration, enter a final order revising the October 24,

20 04, survey report by deleting the deficiencies described under

Tag F324, issuing a " s tandard" rating to Respondent to replace

the previously - issued " c onditional" rating, directing that all

other records maintained by Petitioner that reflect the

deficiency be revised by deleting it , and dismissing the

Administrative Complaint.

DONE AND ENT ERED this 29th day of June , 2005 , in

Tallahassee, Leon County, Florida.

S

DANIEL M. KILBRIDE

Administrative Law Judge

Division of Adminis trative 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 29th day of J une , 2005 .

ENDNOTES

1/ See also "Agency Discipline Proceedings: The Preponderance

of Clear and Convincing Evidence," Fla. Bar Jur. January 1998.

See also an Administrative Law Judge's holding that this

argument was "persuasive" contained in p aragraph 37 of the

Recommended Order in Agency of Healthcare Administration v.

Heritage Healthcare Rehabilitation Center , Case No. 98 - 3091

(DOAH April 6, 1999), adopted in toto by Final Order dated

May 2 0, 1999, and p aragraphs 2 3 to 41 of the Recommended Order

in Washington Manor , supra .

2/ There was never any suggestion that anyone was actually

harmed by hot water.

COPIES FURNISHED :

Donna Holshouser Stinson, Esquire

R. Davis Thomas, Qualified Representative

Broad and Cassel

Post Office Drawer 11300

Tallahass ee, Florida 32302 - 1300

Kim M. Murray, Esquire

Agency for Health Care Administration

525 Mirror Lake Drive, 330D

St. Petersburg, Florida 33701

Richard Shoop, Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive, Mail Station 3

Tallahassee , Florida 32308

William Roberts, 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 from 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.