STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH )

CARE ADMINISTRATION, )

)

Petitioner, )

)

vs. ) Case No. 98-0414

)

HOLLY HILL CARE CENTER, )

)

Respondent. )

)

RECOMMENDED ORDER

Following notice to all parties, Don W. Davis, Administrative Law Judge with the Division of Administrative Hearings, conducted a formal hearing in the above-styled case on January 21, 1999, in Daytona Beach, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Michael Mathis, Esquire

Agency for Health Care Administration 2727 Mahan Drive, Suite 3431

Fort Knox Building III Tallahassee, Florida 32308-5403

For Respondent: Harry Hartman, President

Holly Hill Care Center 1562 Garden Avenue

Holly Hill, Florida 32117-2145

STATEMENT OF THE ISSUE

Whether Respondent is subject to a civil penalty for alleged violation of Section 400.424(3)(a), Florida Statutes, and Rule 58A-5, Florida Administrative Code, through failure to provide a timely prorated refund following the death of a resident of Respondent’s facility.

PRELIMINARY STATEMENT

By Administrative Complaint dated December 4, 1997, Petitioner’s personnel notified Respondent that a civil penalty would be imposed upon Respondent for lack of compliance with requirements governing prorated refunds.

Respondent disputed allegations of the Administrative Complaint and the matter was forwarded to the Division of Administrative Hearings for conduct of formal proceedings.

At hearing, Petitioner presented the testimony of one witness and one composite exhibit, containing 11 items. Respondent testified in his own behalf and introduced one exhibit.

A transcript of the proceedings was filed with the Division of Administrative Hearings on February 9, 1999. The parties requested and were granted leave to file post-hearing submissions more than

10 days after the filing of the transcript.

A proposed recommended order has been submitted by Petitioner and considered in the preparation of this Recommended Order.

Respondent did not submit a proposed recommended order.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. Petitioner is the agency responsible for the licensing and regulation of assisted living facilities, and, in this case, specifically “Holly Hill Care Center” in Holly Hill, Florida.

2. Holly Hill Care Center is operated by a corporation owned by Harry Hartman, President, and Mr. Hartman’s wife.

3. Pursuant to a complaint, Ernest H. Cartwright, a health care evaluator employed by Petitioner, conducted an investigation on November 20, 1997, of Respondent’s facility. The complaint, alleging that a timely prorated refund had not been made to a beneficiary following death of a resident, was confirmed.

4. Beatrice Raverini moved into Holly Hill Care Center on August 24, 1997, and died on September 1, 1997. Her personal belongings were removed from her room on September 8, 1997.

5. While the policy of the facility is to process refunds on the first day of the month following termination, an error in communication occurred between the onsite administrator and the facility’s bookkeeper who is located off-site. As a consequence, the refund was not mailed on October 1, 1997.

6. A refund check was prepared and mailed on or about November 1, 1997, and deposited by Mrs. Raverini’s beneficiary on November 14, 1997, in Canada. Approximately 53 days elapsed before the refund was made. Section 400.424(3)(a), Florida Statutes, requires that the refund occur within 45 days or less.

7. The refund check processed and mailed by Respondent erroneously refunded 958 dollars instead of 616 dollars. Since the room was not vacated of personal belongings until

   September 8, 1997, the refund should have been calculated from that date instead of the date of September 1, 1997. Respondent refunded 342 dollars in excess of what was owed to the beneficiary.

   CONCLUSIONS OF LAW

8. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, and the parties thereto, pursuant to Subsection 120.57(1), Florida Statutes.

9. Petitioner bears the burden of proving by a preponderance of the evidence that Respondent committed the offense alleged in the Administrative Complaint. Florida Department of Transportation v. J. W. C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).

10. Section 400.424(3)(a), Florida Statutes, reads as follows:

    (3)(a) The contract shall include a refund policy to be implemented at the time of a resident's transfer, discharge, or death. The refund policy shall provide that the resident or responsible party is entitled to

    a prorated refund based on the daily rate for any unused portion of payment beyond the termination date after all charges, including the cost of damages to the residential unit resulting from circumstances other than normal use, have been paid to the licensee.

    For the purpose of this paragraph, the termination date shall be the date the unit is vacated by the resident and cleared of all personal belongings. If the amount of belongings does not preclude renting the unit, the facility may clear the unit and charge the resident or his or her estate for moving and storing the items at a rate equal to the actual cost to the facility, not to exceed 20 percent of the regular rate for the unit, provided that 14 days' advance written notification is given. If the resident's possessions are not claimed within 45 days after notification, the facility may dispose of them. The contract shall also specify any other conditions under which claims will be made against the refund due the resident.

    Except in the case of death or a discharge

    due to medical reasons, the refunds shall be computed in accordance with the notice of relocation requirements specified in the contract. However, a resident may not be required to provide the licensee with more than 30 days' notice of termination. If after a contract is terminated, the facility intends to make a claim against a refund due the resident, the facility shall notify the resident or responsible party in writing of the claim and shall provide said party with a reasonable time period of no less than 14 calendar days to respond. The facility shall provide a refund to the resident or responsible party within 45 days after the transfer, discharge, or death of the resident. The agency shall impose a fine upon a facility that fails to comply with the refund provisions of the paragraph, which fine shall be equal to three times the amount due to the resident. One-half of the fine shall be remitted to the resident or his or her estate, and the other half to the Health Care Trust Fund to be used for the purpose specified in s. 400.418. (Emphasis supplied.)

    
    

11. Note that the above statute not only requires that a refund be made within 45 days, failure to make a timely refund dictates that Petitioner impose a fine equal to three times the amount due to the resident, or beneficiary.

12. In this instance the investigation occurred on

    November 20, 1997, following an excessive refund erroneously made before the start of the investigation (November 1, 1997). It does not appear that Respondent intentionally withheld the refund.

13. Inasmuch as Section 400.424(3)(a), Florida Statutes, requires assessment of a fine in the amount of three times the amount due (616 dollars) or the sum of 1848 dollars, and since Petitioner is required to split the fine with the party entitled

to the refund, it would appear logical that Petitioner credit Respondent with the excessive refund of 342 dollars by deducting that amount from the one half of the fine to be paid to the beneficiary. By following this procedure, Petitioner should assess a total fine of 1506 dollars to be paid by Respondent.

Based on consideration of the facts found and the conclusions of law reached, it is

RECOMMENDED

That a final order be entered finding that Respondent failed to make a timely prorated refund and assessing Respondent a civil penalty in the amount of 1506 dollars.

DONE AND ENTERED this 2nd day of March, 1999, in Tallahassee, Leon County, Florida.

DON W. DAVIS

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 2nd day of March, 1999.

COPIES FURNISHED:

Michael O. Mathis, Esquire Agency of Health

Care Administration

2727 Mahan Drive, Suite 3431 Fort Knox Building 3 Tallahassee, Florida 32308-5403

Harry Hartman, President Holly Hill Care Center 1562 Garden Avenue

Holly Hill, Florida 32117-2145

Sam Power, Agency Clerk Agency for Health

Care Administration

2727 Mahan Drive, Suite 3431 Fort Knox Building 3 Tallahassee, Florida 32308

Paul J. Martin, General Counsel Agency for Health

Care Administration

2727 Mahan Drive, Suite 3431 Fort Knox Building 3 Tallahassee, Florida 32308

Ruben J. King-Shaw, Jr., Director Agency for Health

Care Administration

2727 Mahan Drive, Suite 3116 Fort Knox Building 3 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.

Docket for Case No: 98-000414

Orders for Case No: 98-000414