STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BAY CONVALESCENT CENTER, )

)

Petitioner, )

)

vs. ) CASE NO. 82-2234

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Panama City, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Robert T. Benton, II, on April 19, 1983. The parties were represented by counsel:

APPEARANCES

For Petitioner: Michael C. Overstreet, Esquire

229 McKenzie Avenue

Panama City, Florida 32401

For Respondent: John Pearce, Esquire

2639 North Monroe Street Tallahassee, Florida 32301

ISSUE

Whether petitioner is entitled to be reimbursed by respondent six hundred twenty dollars and thirty-six cents ($620.36) for intermediate nursing care provided to one John W. Bernard during the period July 1 to July 27, 1983?

FINDINGS OF FACT

1. Some time in 1980 Mr. Bernard entered petitioner's facility for intermediate nursing care, in order to recuperate from amputation of his leg. He made satisfactory progress, and the utilization review committee eventually recommended his transfer to an adult congregate living facility.

   
   

2. On May 11, 1982, respondent's Medicaid Services Unit mailed a notice, received by the petitioner the following day, to the effect that Mr. Bernard would no longer be eligible for intermediate nursing care under the Medicaid program, effective May 22, 1982. Another office within the Department of Health and Rehabilitative Services (HRS), the office from which social workers are deployed (HRS-SRS), also received a copy of the notice. Mr. Bernard who is legally competent, and HRS' payments office also got copies.

3. On or about May 12, 1983, as soon as she saw the notice, Ms. M. L. Croft, petitioners administrator, telephoned HRS' payment office. She did not understand that payment for Mr. Bernard's nursing care would be cut off as a result of the notice.

   
   

4. HRS-SRS got a telephone call from petitioner on June 22, 1982, requesting assistance in relocating Mr. Bernard. Ms. Sue Henderson, the HRS-SRS supervisor, asked Ms. Velma L. Murphy, a social worker in respondent's employ, to handle the matter; and Ms. Murphy visited Bay Convalescent Center and spoke to Mr. Bernard on June 22, 1982, after checking with the Hiland Park Retirement Home, an adult congregate living facility in the same general vicinity, and learning of a vacancy there. Mr. Bernard did not want to make the move, but Ms. Murphy asked him to consider it, and left.

   
   

5. Some time later, Ms. Murphy got word that somebody at petitioner's had called and said that a friend of Mr. Bernard's had asked for a hearing on the change in his status. Ms. Murphy telephoned the nursing home herself and was told the same thing. In fact, however, there never was any appeal of Mr. Bernard's change of care status. On another visit to the nursing home, in July, Ms. Murphy was asked by Ms. Croft to help make arrangements to transfer Mr. Bernard and made plans to effect the move before the end of the month. When she learned, on July 27, 1982, that petitioner was no longer being paid for Mr. Bernard's care, she arranged for his transfer that day to an adult congregate living facility.

   
   

6. On July 26, 1982, Linda Dorman, a public assistance eligibility specialist II in respondent's employ, had come across a copy of Mr. Bernard's change of status notice in the course of processing rate changes for Bay Convalescent Center. From her examination of the statement of institutional services submitted by petitioner, she could see that petitioner was billing for services rendered to Mr. Bernard, so she notified petitioner that no additional moneys would be paid to petitioner by HRS on account of Mr. Bernard; and that payment already made on his account for the period from June 21 to June 30, 1982 had been inadvertant.

   
   

   CONCLUSIONS OF LAW

   
   

7. Although both parties rely on regulatory provisions, the disagreement between these parties is essentially a contract dispute, properly cognizable by the Division of Administrative Hearings to whom HRS referred the petition filed by Bay Contract Center, pursuant to Section 120.57, Florida Statutes (1981). But see Vincent J. Fasano, Inc. v. School Board of Palm Beach County, No. 81- 1712 (Fla. 4th DCA; June 8, 1983), 8 FLW 1593. In Graham Contracting, Inc. v. Department of General Services, 363 So.2d 810 (Fla. 1st DCA 1978), cert. den.

   373 So.2d 457 (Fla. 1979), the petitioner sought "additional money and construction time under its contract," 363 So.2d at 813, with a state agency. The court found "no difficulty . . . with sovereign immunity," 363 So.2d at 813, and held that a contractor with a state agency like petitioner could invoke the Administrative Procedure Act in order to enforce its contract, even though the contract in that case purported to establish another method for settling the contract dispute.

   
   

8. Petitioner relies on various provisions of Rule 10A-4.10, Florida Administrative Code, in contending that HRS' failure to effect Mr. Bernard's relocation until July 27, 1982, renders HRS liable for intermediate nursing care in the interim. Petitioner cites the following:

   (2) Placement Services for Adults begin with a request by the client or by a second party on behalf of the client for assistance and cul- minates with a stabilized placement of the client.

   (8) Nursing home placements will be coordinated with district medical services units or a departmental Utilization Review Team, and assistance payments staff.

   (12) The Department is designated as the responsible State agency for relocation planning for nursing home residents. Aging and Adult Services has the lead responsibility for this service. Relocation means the trans- fer of a client between nursing homes

   or from a nursing home to an alternate placement home or facility.

   1. The objectives for relocation planning will include:

      1. To recognize that the health and well-being of elderly nursing home residents can be adversely affected

         by the relocation;

      2. To minimize the risks inherent in the transfer by providing for pre-

         relocation planning and post-relocation follow-up services;

      3. To protect the client by minimizing trauma and discomfort;

      4. To insure optimum placement is made initially to prevent or eliminate the stress occasioned by additional moves;

      5. To reduce anxiety by preparing the client for the relocation by communications with and involvement of the client and family in the relocation planning. The involvement shall include:

      1. Adequate and timely notice;

      2. Discussions of the options and choices available; and

      3. A written transfer plan which outlines the client's need and the plan designed to meet those needs.

   2. The relocation plan shall not abridge the rights of the client to:

   1. An appropriate placement in an alternative environment in the event a nursing home is closed or a nursing home refuses

      to retain or readmit the client after hospitalization for reasons which are not the fault of the client and when appropriate placements are available

   2. Request discharge or relocation;

   3. Confer with relatives, friends, or others before making a decision to relocate or select an alternate environment;

   4. Accept or reject the home or facility selected subject to the availability of alternative locations;

   5. Receive counseling and supportive services before and after relocation as appropriate for the client's needs;

   6. Retain or waive any rights guaranteed by this section of those defined in Section 10A-4.13.

   Rule 10A-4.10, Florida Administrative Code.

   
   

   Nothing in Rule 10A-4.10, Florida Administrative Code entitles a provider to reimbursement for services of any kind. The rule dictates agency action for the benefit of clients and nowhere creates rights for providers.

   
   

9. Rule 10C-7.48(6)(j), Florida Administrative Code is determinative. This regulation provides:

In the event of a level of care redetermination, any change in the appropriate amount payable

as a result of the redetermination will be effected as soon as possible, but in no case shall an inappropriate payment rate continue for more than a thirty (30) day period following the date of redetermination.

Rule 10C-7.48(6)(j), Florida Administrative Code.

Mr. Bernard's redetermination was effective May 22, 1982, so that the 30 day period following ended June 21, 1982, before the beginning of the July 1-27 period in controversy. HRS is not seeking recoupment of any moneys already paid.

Although petitioner is not entitled to reimbursement at "an inappropriate payment rate," petitioner did provide care for Mr. Bernard for which HRS would have had to pay at an adult congregate living facility.

RECOMMENDATION

It is, accordingly, RECOMMENDED:

That respondent reimburse petitioner for Mr. Bernard's care for 36 days at the rate in force at the time for adult congregate living facilities, less what petitioner has already received on account of care rendered to Mr. Bernard June

22 to June 30, 1982, inclusive.

DONE and ENTERED this 20th day of June, 1983, in Tallahassee, Florida.

ROBERT T. BENTON, II

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 20th day of June, 1983.

COPIES FURNISHED:

Michael C. Overstreet, Esquire

229 McKenzie Avenue

Panama City, Florida 32401

John Pearce, Esquire 2639 North Monroe Street

Tallahassee, Florida 32301

David Pingree, Secretary Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 82-002234

Orders for Case No: 82-002234