STATE OF FLORIDA fh ? ef AGENCY FOR HEALTH CARE ADMINISTRATION Aug 29° apllinn, : O f. a4 DT An isu oe 4 STATE OF FLORIDA, AGENCY FOR “ARI Me HEALTH CARE ADMINISTRATION, Petitioner, Cage No. 2007006420 Va. THE HEALTH CENTER OF MERRITT ISLAND, INC. Respondent. / nee eel ADMINISTRATIVE COMPLAINT Petitioner, the Florida Agency for Health Care Administration (“AHCA”), through undersigned counsel, files this Administrative Complaint against the above-named Respondent (“Respondent”) pursuant to Sections 120.569 and 120,57, Florida Statutes (2005)', and alleges: NATURE OF THE ACTION 1. This is an.action to impose an administrative fine in ‘the amount of seven thousand six hundred and ten dollars ($7,610) against Respondent, pursuant to Section 408.040, Florida Statutes, and Florida Administrative Code Rules 59C-1.013 and 59C- 1.021, . 2. For the calendar year 2005, Respondent failed to comply witht te Medicaid condition upon its Certificate of Need (“CON”), & copy of which is attached to this complaint as Exhibit A. ‘Unless otherwise noted, all statutes and miles hereinafter cited are to the indicated year’s version of the statute or rule because this is the controlling year in question. 1 EXHIBIT JURISDICTION AND VENUE 3, This tribunal has jurisdiction over Respondent, pursuant to Sections 120.569 and 120.57, Florida Statutes, and also Sections 408.031- 408.045, Florida’s “Health Facility and Services Development Act.” 4, Venue is determined by Florida Administrative Code Rule 28-106.207, PARTIES 5. Pursuant to Chapter 408, Florida Statistes, and Chapter 59C-1, Florida Administrative Code, AHCA is the licensing and epforcing authority with regard to community nursing home laws and rules. 6. Respondent is a corporation authorized under the laws of Florida to do business, Respondent operates a commimity nursing home located at 500 Crockett Boulevard, Morritt Island, Florida 32953 and is the licensee on the CON issued on July 17, 1995, for the addition of 60 community skilled nursing beds to the existing 120-bed Nursing Home, with the condition that a minimum of 47% of its 180-bed facility’s total annual patient days shall be provided to Medicaid patients. The CON number is 7527; a copy of the CON js attached to this complaint as Exhibit A. COUNT I. Respondent failed to meet its Medicaid condition Section 408.040, Florida Statutes Florida Administrative Code Rule 59C-1.013 Florida Administrative Code Rule 59C-1,02) 7. AFICA re-alleges paragraphs 1-6 above. &. Respondent faiJed to comply with its Medicaid condition as reported to the Agency in its Florida Nursing Home Utilization Report for the year 2005, 1 copy of which is attached to this complaint as Exhibit B, and its facility report, a copy of which js attached to this complaint as Exhibit C, 9, Respondent failed to comply with the condition set forth in its CON, as required by Section 408.040, Florida Statutes, and Rule 59C-1.013, Florida Administrative Code, which provide, in part, as follows: 408.040 Conditions and monitoring (1)(a) The agenoy may issuo a certificate of need, or an exemption, predicated upon statements of intent expressed by an applicant in the application for a cartificate of need. Any conditions imposed on.a certificate of need or an exemption based on such statements of intent shall be stated on the face of the certificate of need or in the exemption approval. (b) The agency may consider, in addition fo the other criteria specified in s, 408.035, a statement of intent by the applicant that a specified percentage of the annual patient days at the facility will be utilized by patients eligible for care under Title XIX of the Social Security Act. Any certificate of need issued to a nursing home in reHlance upon an applicant's statements thet a specified percentage of annual patient days will be utilized by residents eligible for care under Title XIX of the Social Scourlty Act roust include a statement that such cortification ia a condition of issuance of the certificate of need. The certificate-of-need program shall notify the Medicald program office and the Department of Elderly Affairs when it imposes conditions ag authorized in this paragraph in an ares in which a copumunity diversion pilot project is implemented, (c) A certificate holder or an excmption holder may apply to the agency for a modification of conditions imposod under paragraph (a) or paragraph (b), If the holder of a cextificate of need or’ an exemption demonstrates good cause why the certificate or exemption should be modified, the agency shall relsgue the certificate af need or exernption with such modifications as may be appropriate. The agency shall by rule define the factors constituting good cause for modification, (a) If the holder of a certificate of ueed or an exemption falls to comply with a condition upon which tho issuance of the certificate or exemption was predicated, the agency may asaesa an administrative fine against the certificate holder in an amount not to exceed $1,000 per failure per day, Failure to annually report compliance with any condition upon which the issuance of the certificate or exemption, was predicated constitutes noncompliance. In assessing the penalty, the -agency-shall_take.into_account.as_mitigation, the depres of noncompliance, penalties shall be deposited in the Public Medicaid Assistance Trust Fund, aH 59C-1.013 Monitoring Procedures (4) Reporting Requirements Subsequent to Licensure or Commencement of Services, All holders of a certificate of need that was issued predicated upon conditions expressed on the face of the certificate of need shall provide annual compliance reports to the agency, The reporting perlod shall be January 1 through December 31 of each year, The holder of a certificate of nead who began operation after January | will report from, the date operation began through December 31, The compliance zeport shall ‘be submitted no later than April 1 of the subsequent yeor. (a) The complisnce report will contain information necessary for an assessment of compliance with conditions on the oertificate of necd, utilizing measures, such as a percentage of patient days, that are consistent with the stated condition, The following information shall be provided in the holder’s annual compliance report: 1, Tha thme perlod coveted by the measures; 2. The measure for assessing compliance with each of the conditons identified and described on the face of the certificate of need; 3. The way in which the conditions were evaluated by applying the measures; 4, The data sources used to gencrate information about the conditions that’ were measured; 5. The person end position responsible for supplying the compliance teport; 6. Any other information necessary for the agency to determine compliance with conditions; and 7. If applicable, the Teagan, oF reasons, with supporting data, why the certificate of need. holder was unable to meet the conditions set forth on the face of the certificate of need. . a - (b) A change in the licensee for 2 facility or service does not affect the obligation for that facility on service to continue to mest conditions imposed on a cortificate of need and to provide annual -¢ondition compliance reports, . (c) Conditions imposed on a certificate of need way be modified consistent with Rule 59C- 1.015, F.A.C. (5) Violation of Certificate of Need Conditions. Health care providers found by the agenoy to be in noncompliance with conditions set forth in thelr certificate of need shall be fined as defined in Rule 59C-1.021, F.A.C. , 10. The foregoing violation warrants imposition of the above-mentioned. fine amount pursuant to Florida Administrative Code Rule 59C-1.021, which provides, in part: . 59C-1.021 Penalties. ; (1) General Provisions, The agency shall initiate administrative proceedings for revocation of a certificate of need for violation of paragraphs 408.040(2)(a) and (b), F.S., or the assesament of administrative fines for failure to comply with conditions placed on a certificate of need as specified under Rule 59-1013, FA.C WOOK (3) Penalties for Failure to Comply with Certificuto of Need Conditions. Tho agency shall review the annual compliance report submitted by the health care providers wha are licensed and operate the facilities ot services and other pertinent data to assess compliance with certificate of need conditions, Providers who are not in compliance with, certificate of need conditions shall be fined, For cotamunity nursing homes or hospital-based skilled nursing units certified as such by Medicare, the first compliance report on the status of conditions must be submitted 30 calendar days following tho eighteenth month of operation or the first month where an 85 percent occupancy is achieved, whichever comes first, The schedule of fines is as follows: (a) Facilities failing to comply with any conditions set forth on the Certificate of Need will be asgeased a fine, not to exceed $1,000 per failure per day. In aggessing the penalty the agency shall toke into account the degree of noncomiplimec,” (b) The assessed fine shall be paid to the agency within 45 calendar days after written notification of assessment by certified mail or within 30 calendar days after final agency action if an admitistrative hearing has been requested, If a health care provider desires it may remit payment according to 0 payment schedule accepted by the agency, The health care provider must submit the schedule of payments te the agency within 30 calendar days after the date of receipt of the notification of assessment or 2) calendar days afier final agency action. The final balance will be duc no Jater than 6 months after the health care provider has been notified in writing by the agency of the amount of the assessed fine or 6 months after final agency action. 11. AHCA, in determining the penalty imposed, considered the degree of noncompliance, CLAIM FOR RELIBE WHEREFORE, tho State of Florida, Agency for Health Care Administration, respectfully requests that the Court order the following relief against Respondent: (A) Make factual and legal findings in favor of the Agency on Count J; (B) Recommend an administrative fine against Respondent in the amount of seven thousand six hundred and ten dollars ($1,000) for Count I, pursuant to Section 408.040, Florida Statutes; (C) Assess attorney's fees and costs; and (D) Grant all other general and equitable relief allowed by law. Respondent is notified that it has a right to request au administrative hearing pursuant to § 120.569, Fla. Stat. (2006), Specific options for administrative action are set. outin the attached Election of Rights form, All requests for hearing shall be made to the attention of Richard Shoop, Agency Clerk, Agency for Wealth Care Administration, 2727 Mahan Drive, MS #3, Tallahassee, Florida 32308, , if you want to hire au attorney, you have the right to be represented by an attorney in this matter. RESPONDENT JS FURTHER NOTIFIED THAT THE FAILURE TO REQUEST A HEARING — WITHIN 21 DAYS OF RECEIPT OF THIS COMPLAINT WILL RESULT IN AN ADMISSION OF THE FACTS ALLEGED IN THE COMPLAINT AND THE ENTRY OF A FINAL ORDER BY THE AGENCY. r B . Moore, Esq. Florida Bar # 0768715 Agency for Health Care Administration 2727 Mahan Drive, MS #3 Tallahassee, Florida 32308 (850) 922-5873 CERTIFICATE OF SERVICE LHEREBY CERTIFY thiat a true copy hereof has been sent by U.S. Certified Mail, Retum Receipt No. 7004 2890 0000 5527 1206 to Owner The Health Center of Merritt Island, 500 Crockett Boulevatd, Meritt Island, Florida’3295afon this ['3* Gay of fuly, 2007. Moore, Esquire Gest TMa¥ “ESL OX x seo Sao See Ceah Seta ay EXHIBIT -syuaged presppayy] 0} paptaord aq meus Appey Suysmu pag ogT arp Jo sdep peRett Tenure yej0} ayp Jo queomd 77, Jo uO YY *SNOLLICNOD aus Lo AMGROTTARTIN “g\s0D LIODSNAstod UT SRO FRCS pile UOFIILASUOD Mau jo ass LEC'ZEx FuTApoAuT amoy Sensmu Ayrmunusoa pag OZT Sunspe ay 0} spaq amoy Siysmu ApmuTAIOI-|9 PPY INOLLaND sad Loafoud iS ieee Ane Bb ROT & Dieu aor Lupnusiasns Z sIOTMisid prhaig :AINNOD LV G NOLLVNOARGLL GHslAga aot or sel SVC NOLLVNIWEEL OgTzg sessauuny, /oroqsadImyAy. = gear LE ATAL WIV BNSSl LOOTT wiZl 7220S SULA COT ‘21 ‘oS eH PueneN, SINVOTIdd¥ ei B EeSL RSAION (o0/az/9) MONED OTRO es BIA UNITAS $505, yoaford smy Jo; peat ory sagnie> nonEAsAMUpy ATED TEay J0y Ouady . any (apap aarenisremnpy eproyg ‘T-6s dey ANY ‘(ze6t ddng) sayaeis EPHOLT ’Gp0'-LE0 80 suoypas) , joy Juswdopaad seatarag pue Amey WIEST, 2 30 suopsraord ayy epuy, _ GAAN dO S.LVOLLLAHO NOLLVALSINONGY SVO BLTVEE WO AQNADV VOMOW AO TLVIS — SLO VOHY MAGE BS — GELET Seee'tS — GERRL YereL bLEbP me6E's9 = ESOS Hog0cos = ELCOE eaze'yE 681 ERS9 §— SPLEL egeo'ag «= SSBbZ eeLB'ED © SZOTE BAER STKE mcees §| GLETZ mos't9 © LOEEZ sQ1WED © GSTTE CGRP OL ITLL egigIk | LZFEL ggceab © L6LET egaces BOSE gLe'so — L6TOP egcea9 D9£0z eaaireo = CERSE SoER TR © SENT 05°09 «= TSTST eEERD © RERZE MGGLS © OSEOE BEES 1BETT REECE | LELOY GP UEL SLsee FTE &LE09 %BEeE 90R0b ETE = SGECE MESSE MESETS ES YG OLR ECOG WITTE YET'S6 lI V6 1868 9GCE'8S 89°26 RET IE HST mbO'TE ble 16 me0n'n6 ELSE LS'SE BOP LE STOR _ F166E ~ £1009 * SOLE pLsar OOS “p6COF OLESE Sorit EEE6E gsscy bESOF geity zee09 rants zo0nF LTI6S OZOUE sete OBRSE 6POGE jngg0 Skva dinoo Sava CIvOM CVI T¥LOL INGLLva dae cogg "Te SHEN $002 T RAVENS STVLGL TYONNY OPOTT © OTT azss azsE ogsel a9S9T aBe9T “OWS = “100 SAVE CAL 86 . 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OU, POS] BEA Se POH Les adeypA stands Aumaymay Lt apegamempysmpep fry 9 ‘ony ‘among Ta aeay Zp ana: quypy pu SoyemE soggy bE . . Apmay pier —1 THs 38 a Hipage cu cepts: follawliig® report ! taé.an’ “pisbelssimelnt:0 0 nm iced Certificate: gt. Nead. cortdition, ieee AT. Liars of of irsing facility: shall be provi ny itonal: ‘duis calla 2A, te THE HEALTH CENTER OF MERRITT ISLAND Up Se CERTIFICATE OF NEED #7527 ASSESSMENT OF COMPLIANCE BO ‘The time period covered by the measures; please see attached typed summary chart (Exhibit A) for jhe time perlad covered. (Column A) The measure for assessing compliance of the conditions identified and described; The measure for assessing compliance of fhe condition identified Is percent Medicaid of fofal patient days, The formula is as follaws: Medicald Tofal Days % Medicaid of Total Patient Days teewererencnannneon Total Patient Days Corresponds fo Summary Chart . Column A = Time Petiod Covered Column B = Medicaid Total Days Column C = Total Patient Days Column D = % Medicaid of Total Patient Days AL41%= 24,482 57,121 Conditioned to be at minimum of 47% Medicaid of Total Patient Days Actual percentage of Medicald Days to Total Patient Days is 41.41%, which Is less than the required 47%. The referenced CON is therefore In not in compliance with the measure In the sitictest sense, but we belleve the project Is in technical compliance with the spirit and Intent of the condition, Please see response to Question Nine. The way In which the condiilons were evaluated by applying the measures; If the percent Medicaid of Total Patient Days fs equal fo or grecter than the measute for assessing compliance of the condition (see Question 2 for method), then compliance has been _ met, Please see altached Exhibit A. Data was taken from a computer generated sheet (Exhibit B) which are altached hereto, and placed on the aftached summaty chart. Two lIne items, with headings Medicaid SNF and Medicaid NF, were totaled together and are found on the separate summary chart (Exhibit A} under the tifle MEDICAID PATIENT DAYS, per month, The data found under the chart title TOTAL PATIENT DAYS (Exhibit A) can be found under the heading TOTAL DAYS on a monthly basis. The actual data sources used to generate the Information an the conditions that were measured, Please see the attached computer generated data fables (Exhibit B). Rows lilled Medicaid SNF, Medicald NF and TOTAL DAYS have been summarized on a chart by month, and follow the majhod stated in Questlon 2 fa report compliance. The source of the data for the measure; The Health Genter of Merritt Island, Inc., lessee and/er management entity of the referenced CON, internal report’ entitled "Census Summary of Patient Days” prepared by the factlily bookkeeper on a monthly basis as part of a financial report which is patient specific. Data - recorded Is beised on revenue as paitents are approved by payor source. Some revenue may be retroactive, : The reasonableness of the measures and the confidence in tha measures; The measure is both reasonable and one which allows confidence in assessing compliance with the assigned condition, As can be seen from Question twa (2), the measure Is a stralghiforward ratio of Medicaid Tatal Days qo Total Patient Days. We are confident that this is a reasonable way to evaluate Percent Medicaid of Total Patient Days. Checks and balances are that payment ts received-on the jurnaround documents and clalm forms. Dafa is done on a case by case basis. Hospital Cost Containment Reports are prepared off these reports. The report used also matches our Medicaid and Medicare reports. Therefore, we feel the data is reasonable dnd accurate and one in which the confidence level Is extremely high. ; The person and position responsible for defining the measures dnd supplying the compliance report; Steven A. Strawn, Director for The Health Center of Mettift Island, Inc., and the Authorized Representative for the referenced license and Cettificate of Need holder, Any other Information necessary to determine compliance with conditions; and, None It applicable, the recison of reasons, with supporting data, why the certificate of néed holder was undble to mest the conditions set forth on the face of the certificate of need. “The Héalth Center of Menttt Island- does-not-diseriminate..cgainstpatlents on any grounds Including and not limited to payor source. The center warks closely with the area hospitals and physicians to accommodate all referrals they may have. Because of our high census we frequently do not have bed availabllity for patients regardless of payor source. However, we do work with area discharges planneis to assist hem when they have patients to place regardless of our vacancies. Please note that according to the latest Florida Nursing Home Utilization by Disitict and Subdistrict, July 2004 to June 2005, p.101, the occupancy rate in District/Subdistrict 7/1 was 92.28%, and our center occupancy rate was 72.15%. Based on Ilcensecl community beds of 2,629 and the average census of 72.28%, an average of 2,424 beds were occupied on any given day. Consequently, that means that 203 beds were also unoccupied in (Brevard Caunty} the Subdistrict during the same period of time on any given day. Thus, for calendar year 2005, access fo nursing home beds did not appear to be an Issue In this Subeisirict, Ag the cgency states In Its publication eniltled Florida Nursing Hame Bed Need Projections by District and Subdistrict, 10/07/05, “The Legisiature finds that the continued growih in the Medlacid budget for nursing home care hag consiralned the ability of the state to meet the needs of its elderly residents through the use of less restrictive and less insittutlonal methods of long-term care. It Is therefore the Intent of the Leglstature to limit the Increase In Medicald nursing home expenditures in order to provide funds to Invest in long-term care that Is cornmunity-based and provides supportive services In o manner that is both more cast- atfective and more In keeping with the Wshes of the elderly residents of this state."(p.3, AHCA FL Nursing Home Utilization, July 2004 ~ June 2005), Lastly, this facility fs located in ¢ County which Is part of the Siute of Florida, Department of Elder Affairs, Long-Term Care Community Diversion Program. “The objective is to provide frail elderly with safe, appropriate community based care altematives In lleu of nursing home placement af a cost less than Medicaid nursing home care.” (Department of Elder Affairs website) The CARES unit at the Department of Elderly Affair determines the Individuals that meet the criterla to receive services. This program by fis very nature, fs designed to reduce the number of admissions and therefore, patlent days that nursing centers might have previously provided. Please see alfached documentation about the Long-Term Care Community Diversion Program In summary, patient admissions are based on need and not payor source. Given that fact and the clear Legislative directive to reduce reliance on nursing homes dnd support community based services, it would seem the current state of census utilzation would seer encouraging fo the agency, Furthermore, the Inabllity ta serve Medicaid patients In the nursing home setting due to lack of demand allows Madicald budget dollars to be Used in a fashion more in concert with current Legislative direction. 0 If the agency requires any addtional Information or support as to why the center has not met Its condition, please do not hesitate to contact The Health Center of Merttt Island, Inc. os we woue be glad to provide any backup ovallable to document our operations and compliance efforts. January February March April May June July August September October November December TOTAL THE HEALTH CENTER OF MERRITT ISLAND FISCAL YEAR 12/37/05 % OF MEDICAID TOTAL MEDICAID PATIENTDAYS PATIENT DAYS PATIENT DAYS 2,104 5,020 41.85 1,898 4,710 40.30 2,104 5,208 40,34 2,009 5,110 30.32 2,189 5,249 44,70 2,115 4,721 44.80 2,028 4,764 42,46 2,005 4,876 44.13 1,874 4,909 38.17 2,034 4,749 42,77 2,027 4,830 41.97 42.38 Tees SLE acor aver 3S5tF S06 SLED ysLy eTeoe TELY 6rzS orls SEEs1 Bags nt ons SING TELOL Tess ers ser ees asta tas #18 SBY assz PLt ai FOS Tate vey Lee ate HER ortes [9 ) tet 1 {BET ) (tz > lee y (re > (zo y Gz ) itt > (4r Jerayfaa razswe: = (ove 1 ibs 1 (sa ) (os } 1ees ) (ep ) [05 ) (es > [ese 1 {a ) (3 1 493 1 (oe 1 tre > @L 1 [ts } sabzeyas* > get ST 8 &1 cet a L & sé st BF ras as BT ET aL pyoyfox suayte” wae so 33 . 35 iis te 35 EA Bae ar Te SL Pez aa "ee. as BUDTSS FE a as set ast Tht GST SST ust BLL 8LT ‘at pet 855 egnsue, = ag — oot aet par oBT pet Dat oat bey GET aer Bet iad TEqLs LT at Lt Lt LU Lt Lt LL cad “at wt GE n° a a Q o . a "oD a a et o a _ re £51 tst eat cat rst £9 cst EST cst £9T cor. 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Docket for Case No: 07-003939

Issue Date	Proceedings
Dec. 03, 2007	Final Order filed.
Nov. 01, 2007	Order Closing File. CASE CLOSED.
Oct. 30, 2007	Motion to Remand Case to the Agency for Health Care Administration filed.
Sep. 17, 2007	Order of Pre-hearing Instructions.
Sep. 17, 2007	Notice of Hearing (hearing set for January 4, 2008; 9:00 a.m.; Merritt Island, FL).
Sep. 05, 2007	Joint Response to Initial Order filed.
Aug. 29, 2007	Initial Order.
Aug. 28, 2007	Petition for Evidentiary Hearing filed.
Aug. 28, 2007	Order of Dismissal without Prejudice Pursuant to Section 120.569(2)(c), Florida Statutes, to Allow for Amendment and Resubmission of Petition filed.
Aug. 28, 2007	Letter to M. Bittman from R. Shoop regarding receipt of Petition for Hearing filed.
Aug. 28, 2007	Modification of Condition on Certificate of Need filed.
Aug. 28, 2007	Administrative Complaint filed.
Aug. 28, 2007	Amended Request for Evidentiary Hearing filed.
Aug. 28, 2007	Notice (of Agency referral) filed.