STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE ADMINISTRATION,

Petitioner,

vs.

EMBASSY RETIREMENT HOME,

Respondent.

)

)

)

)

)

) Case No. 12-2751MPI

)

)

)

)

)

RECOMMENDED ORDER

A hearing was conducted in this case pursuant to sections

120.569 and 120.57(1), Florida Statutes1/ before Administrative Law Judge Jessica Varn of the Division of Administrative Hearings (DOAH). The hearing was held on December 10, 2012, by video teleconference at sites in Lauderdale Lakes and Tallahassee, Florida.

APPEARANCES

For Petitioner: Jeffries H. Duvall, Esquire

Agency for Health Care Administration Fort Knox Building 3, Mail Stop 3 2727 Mahan Drive, Suite 3431

Tallahassee, Florida 32308

For Respondent: Juliet Ramdeen, pro se

Embassy Retirement Home 6093 Northwest 9th Court Margate, Florida 33063

STATEMENT OF THE ISSUE

Whether Respondent failed to comply with several requirements set forth in the Florida Medicaid Assistive Care Services Coverage and Limitations Handbook, thereby incurring a

$15,000 fine according to Florida Administrative Code Rule 59G-

9.070(7)(e).

PRELIMINARY STATEMENT

By letter dated February 8, 2012, the Agency advised Respondent of its intent to apply sanctions for violations of federal and state laws, including the failure to maintain, for 10 residents, a resident service plan. The Agency also intended to apply a sanction for the failure to maintain a resident health assessment for three residents. Lastly, the Agency intended to apply a sanction for the failure to maintain proper employee files. Specifically, Respondent had failed on one occasion to maintain a physician statement indicating that one employee was free from communicable diseases, had failed to maintain tuberculosis test results for three employees, and had failed to maintain Level II background screening results for four employees. The letter directed Respondent to pay a $15,000 fine for the alleged violations.

Respondent (Embassy) requested a hearing on the Agency's imposition of the sanction. The matter was referred to DOAH on February 8, 2012, for the assignment of an administrative law

judge to conduct a formal hearing and to submit a recommended order to the Agency.

Pursuant to notice, the final hearing was scheduled for November 13, 2012. At the request of the Agency, and without objection from Embassy, the case was continued. The final hearing in this case was conducted on December 10, 2012. At the hearing, the Agency presented the testimony of Gina Selwitz; Agency's Exhibits A-Y were offered and received into evidence without objection. Embassy presented the testimony of Juliet Ramdeen; Respondent's Composite Exhibit A, consisting of 103 pages, was offered and admitted into evidence without objection.

No transcript of the proceedings was filed with DOAH. The parties timely filed Proposed Findings of Fact and Conclusions of Law, which have been considered in the preparation of this

Recommended Order.

FINDINGS OF FACT

1. Embassy is an assisted living facility that provides assistive care services, and was enrolled as a provider in the Florida Medicaid program at all times pertinent to the instant case.

2. AHCA is the state agency charged with the administration of the Medicaid program in Florida. Within AHCA is the Bureau of Medicaid Program Integrity (MPI), whose duty is to ensure the integrity of the Medicaid program by conducting audits of claims

   
   

   and by investigating providers to ensure compliance with all requirements of the Medicaid program.

3. At all relevant times, Embassy has been subject to a Medicaid Provider Agreement. Pursuant to the agreement, Embassy agreed to comply with all federal, state, and local laws, including rules, regulations, and statements of policy applicable to the Medicaid program. Embassy also agreed to comply with AHCA's Medicaid handbooks.

4. The Medicaid Provider Agreement includes the requirement that providers keep, maintain, and make available in a systemic and orderly manner all medical and Medicaid-related records as AHCA requires.

5. On December 6, 2011, AHCA conducted a site visit at Embassy's facility. In a letter dated February 8, 2012, Embassy was notified that a fine of $15,000 was being assessed. The letter read as follows:

   In accordance with Section 409.913, Florida Statutes (F.S.), and Rule 59G-9.070, Florida Administrative Code (F.A.C.), the Agency for Health Care Administration (Agency), shall apply sanctions for violations of federal and state laws, including the failure to maintain a Resident Service Plan for Assistive Care Services within fifteen (15) days of a Resident Health Assessment for Assisted Living Facilities for Medicaid consumers P.A., D.B., D.D., R.E., M.G., F.G., P.N.,

   K.T., E.V., and G.W., the failure to maintain a complete Resident Health Assessment for Assisted Living Facilities for Medicaid consumers D.B., M.G., and F.G., the failure

   
   

   to maintain a physician statement indicating that employee M.J.D. is free of communicable diseases, the failure to maintain current tuberculosis skin test results for employees M.J.D., E.J., and B.R., and failure to maintain current Level II background screening results for employees E.D., M.J.D., J.R., and B.R.

   
   

6. A review of the recipient files revealed that service plans were missing in ten files. Service plans are required for each recipient, and they must be signed or provided within 15 days of the annual health assessment, or within 15 days of an assessment that causes a significant change in the recipient's condition.

7. Embassy admitted at the final hearing that ten recipient files did not contain service plans.

8. The documentation provided also did not contain a Level II Background Screening for four Embassy employees; these screenings must be conducted every five years.

9. Embassy admitted that the required background screenings were conducted on December 16, 2011-- after the site visit, and after they had expired.

10. Lastly, the documentation provided during the site visit did not contain tuberculosis screening results for three employees. Two of those employee files also did not contain the Level II Background Screenings as noted above; one employee file was only missing the tuberculosis screening.

    
    

11. The Agency properly imposed sanctions for each of the fifteen violations of Medicaid policy; that is: ten recipient files that did not contain service plans, four employee files that did not contain a Level II background screening and therefore were not maintained properly for inspection, and one employee file that did not contain a tuberculosis screening.

12. There is no evidence establishing that Embassy has been previously charged with, or been determined to have committed, any violation of Medicaid law.

    CONCLUSIONS OF LAW

    
    

13. DOAH has jurisdiction over the parties and subject matter of this proceeding, pursuant to section 120.57(1), Florida Statutes.

14. AHCA seeks to sanction Embassy by imposing administrative fines for alleged violations of Medicaid laws. Accordingly, AHCA must prove the allegations by clear and convincing evidence. Dep't of Banking & Fin., Div. of Secs. &

    Investor Prot. v. Osborne Stern, Inc., 670 So. 2d 932, 935 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292, 294 (Fla. 1987).

15. Regarding the standard of proof, in Slomowitz v.

    
    

    Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983), the court held

    
    

    that:

    
    

    clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must

    
    

    be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking 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 truth of the allegations sought to be established.

    
    

    Id. The Florida Supreme Court later adopted the Slomowitz court's description of clear and convincing evidence. See In re

    Davey, 645 So. 2d 398, 404 (Fla. 1994). The First District Court of Appeal also has followed the Slomowitz test, adding that "[a]lthough this standard of proof may be met where the evidence is in conflict . . . it seems to preclude evidence that is ambiguous." Westinghouse Elec. Corp. v. Shuler Bros., Inc., 590 So. 2d 986, 988 (Fla. 1st DCA 1991), rev. denied, 599 So. 2d 1279 (Fla. 1992)(citation omitted).

16. Section 409.913(9) requires Medicaid providers to retain medical, professional, financial, and business records pertaining to services and goods furnished to a Medicaid recipient and billed to Medicaid. The provider is responsible for furnishing to the Agency, and keeping the Agency informed of the location of, the Medicaid-related records. Florida Administrative Code Rule 59G-9.070(7)(e) provides that the Agency may sanction a provider with a $1,000 fine per claim found to be in violation of the Medicaid rules, if it is a first offense.

17. Section 409.913(15) provides in pertinent part:

    
    

    * * *

    
    

    The agency shall seek a remedy provided by law, including, but not limited to, any remedy provided in subsections (13) and (16) and s. 812.035, if:

    
    

    1. The provider has not furnished or has failed to make available such Medicaid- related records as the agency has found necessary to determine whether Medicaid payments are or were due and the amounts thereof;

       
       

    2. The provider has failed to maintain medical records made at the time of service, or prior to service if prior authorization is required, demonstrating the necessity and appropriateness of the goods or services rendered;

       
       

18. The Provider General Handbook, at 2-55, also requires that providers retain all business records as defined in Florida Administrative Code Rule 59G-1.010(30). This rule, in turn, defines such business records as including patient activity records, as well as personnel records.

19. Additionally, the Provider Agreement requires that the Medicaid provider shall keep, maintain, and make available in a systematic and orderly manner all medical and Medicaid-related records required by AHCA for a period of at least five years.

20. As to Medicaid's requirement of service plans, the Handbook provides, at 2-9, that service plans must be completed within 15 days after the initial health assessment or annual

    
    

    assessment. The service plan must be in writing, and must be based upon information contained in the health assessment.

21. Section 408.809 requires that a Level II background screening be conducted every five years on each employee who provides personal care services to clients such as those living in assisted living facilities.

22. Florida Administrative Code Rule 58A-5.019(2)(a) requires that employees hired by assisted living facilities undergo tuberculosis screening within the first thirty days of employment.

23. Here, the evidence establishes that on the date of AHCA's inspection, Embassy's files did not contain documentation of four employee's Level II Background Screenings, and of another employee's tuberculosis screening. In addition, ten recipient files did not contain the required service plans.

24. The evidence establishes that the violations that are the subject of this proceeding are Respondent's first violations of Florida's Medicaid laws. Florida Administrative Code Rule 59G-9.070(7)(e) imposes a $1,000 fine per violation for a first offense. Here, AHCA established, by clear and convincing evidence, that Embassy committed 15 violations, each subject to a

$1,000 fine.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that pursuant to Florida Administrative Code Rule 59G-9.070(7)(e), Respondent should be fined a total of

$15,000 for 15 violations of Florida's Medicaid laws.

DONE AND ENTERED this 31st day of January, 2013, in Tallahassee, Leon County, Florida.

S

JESSICA E. VARN

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 31st day of January, 2013.

ENDNOTE

1/ Unless otherwise noted, all references in this Recommended Order to Florida Statutes are to Florida Statutes (2012).

COPIES FURNISHED:

William Michael Blocker, II, Esquire Agency for Health Care Administration Fort Knox Building 3, Mail Stop 3 2727 Mahan Drive, Suite 3431

Tallahassee, Florida 32308

Juliet Ramdeen

Embassy Retirement Home 6093 Northwest 9th Court Margate, Florida 33063

Jeffries H. Duvall, Esquire

Agency for Health Care Administration Fort Knox Building 3, Mail Stop 3 2727 Mahan Drive

Tallahassee, Florida 32308

Elizabeth Dudek, Secretary

Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

Stuart Williams, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 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: 12-002751MPI

Orders for Case No: 12-002751MPI