STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR | HEALTH CARE ADMINISTRATION, Petitioner, AHCA No. 2009008974 vs. MEGA NURSING SERVICES, INC., Respondent. / ADMINISTRATIVE COMPLAINT COMES NOW the Agency for Health Care Administration (hereinafter “Agency”), by and through undersigned counsel, and files this administrative complaint against Mega Nursing Services, Inc. (“Facility” or “Respondent”), pursuant to §§ 120.569 and 120.57, Florida Statutes (2009). NATURE OF THE ACTION l. This is an action to impose an administrative fine in the amount of fifteen thousand five hundred dollars ($15,500.00) based upon the citation of two (2) Class II and two (2) Class III deficiencies. JURISDICTION AND VENUE 2. The Agency has jurisdiction pursuant to §§ 20.42, 120.60 and Chapter 400, Part IU, Florida Statutes (2009). 3, Venue lies pursuant to Rule 28-106.207, Florida Administrative Code. PARTIES 4. The Agency is the regulatory authority responsible for licensing and regulating home health agencies and the enforcement of all applicable state regulations, statutes and rules, Filed June 14, 2010 1:25 PM Division of Administrative Hearings. governing assisted living facilities pursuant to Chapter 400, Part III, Florida Statutes (2009), and Rule 58A-8, Florida Administrative Code. 5. Respondent operates a home health agency located at 5103 San Juan Avenue, Jacksonville, Florida 32210, license number 299991476. Respondent was at all times material hereto a licensed home health agency under the licensing authority of the Agency, and was required to comply with all applicable rules and statutes. COUNT I RESPONDENT AGENCY FAILED TO HAVE PERSONNEL TO ANSWER THE PHONE AND DOOR FOR EIGHT HOURS BETWEEN 7:00 AM AND 6:00 PM Fla. Admin. Code Rule 59A-8.003(10) 6. The Agency re-alleges and incorporates paragraphs one (1) through five (5) as if fully set forth herein. 7. The regulatory provisions of Florida law that are pertinent to this alleged violation read as follows: Rule $94-8.003(10), Florida Administrative Code (10) A home health agency has the following responsibility in terms of hours of operation: (a) The home health agency administrator and director of nursing, or their alternates, must be available to the public for any eight consecutive hours between. 7:00 a.m. and 6:00 p.m., Monday through Friday of each week, excluding legal and religious holidays. Available to the public means being readily available on the premises or by telecommunications. (b) When the ‘administrator and the director of nursing are not on the premises during designated business hours, a staff person must be available to answer the phone and the door and must be able to contact the administrator and the director of nursing by telecommunications. This individual can be a clerical staff person. (c) If an AHCA surveyor arrives on the premises to conduct an unannounced survey and the administrator, the director of nursing, or a person authorized to give access to patient records, are not available on the premises they, or the designated alternate, must be available on the premises within an hour of the arrival of the surveyor. A list of current patients must be provided to the surveyor within two hours of arrival if requested. (d) The home health agency shall have written policies and procedures governing 24 hour availability to licensed professional nursing staff by active patients of the home health agency receiving skilled care. These procedures shall describe an on- call system whereby designated nursing staff will be available to directly communicate with the patient. For agencies which provide only home health aide and homemaker, companion and sitter services and who provide no skilled care, written policies and procedures shall address the availability of a supervisor during hours of patient service. (e) Failure to be available or to respond, as defined in paragraphs (a) through (c) above, will result in a $500 fine, pursuant to Section 400.474(1), F.S. A second incident will be grounds for denial or revocation of the agency license. 8. That on July 15, 2009 the Agency conducted a licensure survey of the Respondent’s facility. 9. Based on observation during the survey and on interviews with the Administrator and Director of Nursing, the agency failed to have a staff person to answer the phone and the door for eight (8) hours between 7:00 AM and 6:00 PM as stipulated in this regulation. Phone calls placed to the Jacksonville office are routinely answered in the Palm Beach Gardens office, and when the DON is making the supervisory visits on the contract clients, the office is unattended and locked during the hours she is gone. 10. | While the survey was being conducted, the Surveyor asked the Administrator to have someone answer the phone while the Director of Nursing (DON) and the Surveyor conducted the survey. Instead the phones were rolled to the Palm Beach Garden office, and the participants commented that this was the procedure they used for all calls. 11. After rolling the phones to the Palm Beach Gardens office, the DON called three clients that were scheduled for visits and informed them that she would have to reschedule. The DON admitted that when she was out making patient visits, she locks the door and the Palm Beach Gardens office answers the phone. If anyone comes to the Jacksonville office during those times they have to return another time. 12. On July 17, 2009 three calls were made from the Jacksonville office and all of them were answered by the Palm Beach Gardens office even though the DON was in the Jacksonville office during at least one of the calls. The Agency cited Respondent for a deficiency relating to hours of operation in violation of Fla. Adm. Code Rule 59A-8.003(10)3 with a mandatory correction date of August 15, 2009. WHEREFORE, the Agency intends to impose an administrative fine in the amount of one five hundred dollars ($500.00) against the Respondent, pursuant to Fla. Adm. Code Rule 59A- 8.003(10) and Section 400.474(1), Florida Statutes. COUNT I RESPONDENT FAILED TO HAVE A AN ADMINISTRATOR IN ITS JACKSONVILLE OFFICE FROM THE JACKSONVILLE AREA IN VIOLATION OF SECTIONS 400.462(1) and 400.476(1), FLA. STAT. (2009) CLASS 11 DEFICIENCY 13. The Agency re-alleges and incorporates paragraphs one (1) through five (5) as if fully set forth herein. 14. The regulatory provisions of Florida law that are pertinent to this alleged violation read as follows: §400.462(1), Fla. Stat. (2009) (1) "Administrator" means a direct employee, as defined in subsection (9), who is a licensed physician, physician assistant, or registered nurse licensed to practice in this state or an individual having at least 1 year of supervisory or administrative experience in home health care or in a facility licensed under chapter 395, under part II of this chapter, or under part ] of chapter 429. (3) Registered Nurse. (a) A registered nurse shall be currently licensed in the state, pursuant to Chapter 464, FS., §400.476(1), Fla. Stat. (2009) (1) ADMINISTRATOR.-- (a) An administrator may manage only one home health agency, except that an administrator may manage up to five home health agencies if all five home health agencies have identical controlling interests as defined in s. 408.803 and are located within one agency geographic service area or within an immediately contiguous county. If the home health agency is licensed under this chapter and is part of a retirement community that provides multiple levels of care, an employee of the retirement community may administer the home health agency and up to a maximum of four entities licensed under this chapter or chapter 429 which all have identical controlling interests as defined in s. 408.803. An administrator shall designate, in writing, for each licensed entity, a qualified alternate administrator to serve during the administrator's absence. (b) An administrator of a home health agency who is a licensed physician, physician assistant, or registered nurse licensed to practice in this state may also be the director of nursing for a home health agency. An administrator may serve as a director of nursing for up to the number of entities authorized in subsection (2) only if there are 10 or fewer full-time equivalent employees and contracted personnel in each home health agency. 15. ‘On July 15, 2009 the Agency conducted a licensure survey of the Respondent’s facility. 16. Based on observation and on interviews with the Administrator and the Director of Nurses (DON), the Respondent failed to have an Administrator from the Jacksonville area in the Jacksonville office. The person identified as the Administrator in Jacksonville lives in South Florida and is the Alternate Administrator for two agencies in Palm Beach Gardens. 17. An entrance conference was held with the DON in person and via telephone with the Palm Beach Gardens office to reach the Administrator. During the course of the discussion the Administrator was asked how frequently he came to the Jacksonville office and he stated "rarely". After the conference, the DON stated that the Administrator had visited the Jacksonville office about a month earlier and once before during the month of April constituting two visits in six and a half month period for 2009. 18. Upon review of Respondent’s documents, it was noted that the Administrator is identified in the corporate organizational table as the Administrator for the Jacksonville office and as the Alternate Administrator in two agencies based in Palm Beach County. The Alternate Administrator lives in South Florida and is the Administrator for the same two agencies in Palm Beach Gardens. 19. During the exit interview the Administrator pointed out that all three entities were under the same control. The Administrator was informed that Respondent was ignoring the - geographic requirements. The agencies were not all located within one geographic service area or within an immediately contiguous county. 20. The Agency cited Respondent for a Class II deficiency and with a mandatory . correction date of August 15, 2009. WHEREFORE, the Agency intends to impose an administrative fine in the amount of five thousand dollars ($5,000.00) against the Respondent pursuant to Section 400.23(8)(b), F.S. COUNT It RESPONDENT FAILED TO HAVE A LOCAL ALTERNATE ADMINISTRATOR IN THE JACKSONVILLE OFFICE FROM THE JACSONVILLE AREA AS REQUIRED BY RULE 59A-8.0095(1)(a) , F.A.C. CLASS If DEFICIENCY 21. The Agency re-alleges and incorporates paragraphs one (1) through five (5) as if fully set forth herein. 22. The regulatory provisions of Florida law that are pertinent to this alleged violation read as follows: Rule 59A-8.0095(1)(a), Florida Administrative Code (1) Administrator. (a) The administrator of the agency shall: 1. Meet the criteria as defined in Section 400.462(1), F.S. 2. Designate, in writing a direct employee or an individual covered under a management company contract to manage the home health agency or an employee leasing contract, pursuant to Section 468.520, F.S., that provides the agency with full control over all operational duties and responsibilities to serve as an on-site alternate administrator during absences of the administrator. This person will be available during designated business hours, when the administrator is not available. Available during designated business hours means being readily available on the premises or by telecommunications. During the absence of the administrator, the on-site alternate administrator will have the responsibility and authority for the daily operation of the agency. The alternate administrator must meet qualifications as stated in Section 400.462(1), F.S. (b) If an agency changes administrator or alternate administrator the agency shall notify AHCA Licensed Home Health Programs Unit office in Tallahassee prior to or on the date of the change. Notification shall consist of submission of the person’s name, professional resume, professional license, if applicable, and a copy of the Affidavit of Good Moral Character. The administrator also must submit level 2 screening, pursuant to subsection 59A~-8.004(9), F.A.C., or inform the Licensed Home Health Programs Unit that level 2 screening was previously submitted. 23. On July 15, 2009 the Agency conducted a licensure survey of the Respondent’s facility. 24, Based on observation and on interviews with the Administrator and the Director of Nurses (DON), the Agency failed to have an Alternate Administrator in the Jacksonville office from the Jacksonville area. The person titled as the Alternate Administrator in Jacksonville lives in South Florida and is the Administrator for two agencies in Palm Beach Gardens. 25. An entrance conference was held with the DON in person and via telephone with the Palm Beach Gardens office to reach the Administrator, During the course of the discussion the Administrator was asked how frequently he came to the Jacksonville office and he stated "rarely". After the conference, the DON stated that the Administrator had visited the Jacksonville office about a month earlier and once before during the month of April constituting two visits in six and a half month period for 2009. When the DON was asked how often the Alternate Administrator had been to Jacksonville in 2009, she stated she had not seen the Alternate Administrator since prior to the first of the year 2009. 26. Upon reviewing various documents, it was noted that the Respondent’s Alternate Administrator identified in the corporate organizational table for Respondent’s Jacksonville office lives in South Florida and is the Administrator for the two corporate agencies in Palm Beach Gardens, Florida. 27. During the exit interview the Administrator pointed out that all three entities were under the same control. The Administrator was informed that Respondent was ignoring the geographic requirements. The agencies were not all located within one geographic service area or within an immediately contiguous county. 28. The Agency cited Respondent for a Class II deficiency with a mandatory correction date of August 15, 2009. WHEREFORE, the Agency intends to impose an administrative fine in the amount of five thousand dollars ($5,000.00) against the Respondent pursuant to Section 400.23(8)(b), F.S. COUNT IV RESPONDENT FAILED TO UPDATE ITS EMERGENCY MANAGEMENT PLAN SINCE 2006 IN VIOLATION OF SECTION 400.492, FLORIDA STATUTES (2009) CLASS HI DEFICIENCY 29. The Agency re-alleges and incorporates paragraphs one (1) through five (5) as if fully set forth herein. 30. The regulatory provisions of Florida law that are pertinent to this alleged violation read as follows: § 400.492, Fla. Stat. (2009): Each home health agency shall prepare and maintain a comprehensive emergency management plan that is consistent with the standards adopted by national or state accreditation organizations and consistent with the local special needs plan. The plan shall be updated annually and shall provide for continuing home health services during an emergency that interrupts patient care or services in the patient's home. The plan shall include the means by which the home health agency will continue to provide staff to perform the same type and quantity of services to their patients who evacuate to special needs shelters that were being provided to those patients prior to evacuation. The plan shall describe how the home health agency establishes and maintains an effective response to emergencies and disasters, including: notifying staff when emergency response measures are initiated; providing for communication between staff members, county health departments, and local emergency management agencies, including a backup system; identifying resources necessary to continue essential care or services or referrals to other organizations subject to written agreement; and prioritizing and contacting patients who need continued care or services. (1) Each patient record for patients who are listed in the registry established pursuant to s. 252,355 shall include a description of how care or services will be continued in the event of an emergency or disaster. The home health agency shall discuss the emergency provisions with the patient and the patient's caregivers, including where and how the patient is to evacuate, procedures for notifying the home health agency in the event that the patient evacuates to a location other than the shelter identified in the patient record, and a list of medications and equipment which must either accompany the patient or will be needed by the patient in the event of an evacuation. (2) Each home health agency shall maintain a current prioritized list of patients who need continued services during an emergency. The list shall indicate how services shall be continued in the event of an emergency or disaster for each patient and if the patient is to be transported to a special needs shelter, and shall indicate if the patient is receiving skilled nursing services and the patient's medication and equipment needs. The list shall be furnished to county health departments and to local emergency management agencies, upon request. (3) Home health agencies shall not be required to continue to provide care to patients in emergency situations that are beyond their control and that make it impossible to provide services, such.as when roads are impassable or when patients do not go to the location specified in their patient records. Home health agencies may establish links to local emergency operations centers to determine a mechanism by which to approach specific areas within a disaster area in order for the agency to reach its clients. Home health agencies shall demonstrate a good faith effort to comply with the requirements of this subsection by documenting attempts of staff to follow procedures outlined in the home health agency's comprehensive emergency management plan, and by the patient's record, which support a finding that the provision of continuing care has been attempted for those patients who have been identified as needing care by the home health agency and-registered under s. 252.355, in the event of an emergency or disaster under subsection (1). (4) Notwithstanding the provisions of s. 400.464(2) or any other provision of law to the contrary, a home health agency may provide services in a special needs shelter located in any county. 31. That on July 15, 2009 the Agency conducted a licensure survey of the Respondent’s facility. 32, Based on a review of the existing Emergency Management Plan, and interview with the Director of Nursing, the plan was written and submitted prior to the rule changes in July 2006, and contains the names of key personnel who are no longer with the agency. 33. In July 2006 the regulations for the Emergency Mandgement Plan were changed to reflect that home health agencies would attempt to provide the same services for their clients in special needs shelters that was provided in the home prior to the emergency. Respondent’s plan was submitted on June 12, 2006. 34. No update had been made to the plan and all the key personnel references, duties during the plan activation and such are invalid and outdated. The content of the plan does not reflect the current regulations. 35. The DON, was unaware of the formal written plan or submission requirements. She has been distributing the information and classifying and tracking the patients on admission. 36. The Agency cited Respondent for a Class II deficiency with a mandatory correction date of August 15, 2009. WHEREFORE, the Agency intends to impose an administrative fine in the amount of five thousand dollars ($5,000.00) against the Respondent pursuant to Section 400.23(8)(b), F.S. CLAIM FOR RELIEF WHEREFORE, the State of Florida, Agency for Health Care Administration, respectfully requests that this court: (A) Make factual and legal findings in favor of the Agency on Count I, I, IN and IV; (B) Recommend administrative fines against Respondent in the amount of $15,500.00; (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 an administrative hearing pursuant to Section 120.569, Florida Statutes. Specific options for administrative action are set out in the 10 attached Election of Rights form. All requests for hearing shall be made to the attention of Richard Shoop, Agency Clerk, and Agency for Health Care Administration, 2727 Mahan Drive, MS #3, Tallahassee, Florida 32308, (850) 412-3630. If you want to hire an attomey, 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. oy tt Respectfully submitted this day of May 2010. INA L. SCHLIETER, ESQUIRE ASSISTANT GENERAL COUNSEL Agency for Health Care Administration 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308 Telephone: (850) 412-3667 Facsimile: (850) 921-0158 Kristina.Schlieter@ahca.myflorida.com CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been served by USS. Certified Mail, Return Receipt No. 7004 2890 0000 5526 4529 to: Administrator Alan Lycan, Mega Nursing Services, Inc., 5103 San Juan Avenue, Jacksonville, Florida 32210; by US. Certified Mail, Return Receipt No. 7004 2890 0000 5526 4536 to: Owner Mega Nursing Services, Inc., 7200 S Federal Highway, Hypoluxo, Florida 33462; and by U.S. Certified Mail, Return Receipt No. 7004 2890 0000 5526 4543 to: Registered Agent Alan L. Lycan, 7200 N Military Trail, Suite R, Palm Beach Gardens, Florida 33410 on this ¢//May of May, 2010. \ fy Cpt Ad Ate uiteh, Vf] za 4 KRISTINA L, SCHLIETER, ESQUIRE ASSISTANT GENERAL COUNSEL Copy furnished to: Rob Dickson, FOM COMPLETE THIS SECTION ON DELIVERY r 7} Evin SY Y 3649 ~~ DAgent Allh bs ime Oe ___D) Addressee Calved by ( Printed Name) C. Date of Deilvery A, A Kiveka VO2E SO D. Is delivery address different from item 1? (1 Yes if YES, enter delivery address below: 1 No SENDER: COMPLETE THIS SECTION I Complete items.1, 2, and 3. Also complete item.4 if Restricted Delivery Is desired. @ Print your name and. address on the reverse so that we can return the card to you: @ Attach this card to the back of the mailpiece, or on the front if space permits. 1, Article Addressed to: Aan Lyon, Keg yeas \e 72eK AD. Ai Norge Sy IR ita Palin Beads Gardens 4 SZ SeHQ) 3. Se Type Certified Matt [1 Express Mall O Registered D Return Receipt for Merchandise O insured Malt (3.6.0.0, 4. Restricted Delivery? (Extra Fea) UO Yes 2, Article Number (Transfer from service label) cosstanntaasan ?oo4 e640 oo00 5526 4543 ’ PS Form 3811, August 2001 Domestic Return Recelpt 102595-02-M-1540 COMPLETE THIS SECTION ON DELIVERY ‘B. Received by (Pri tea ay 3 ayn tH D. Is delany nico ato om ttem 1? [I Yes If YES, enter delivery address below: 0] No SENDER: COMPLETE THIS SECTION mM -Complete Items ‘t, 2, and:3. Also complete Item 4 If Restricted Delivery Is‘desired. @ Print yourname.and address on the.reverse so that we can return the card to you. i@ Attach this card to the back of the mallpisce, or on the front if space permits, *{ wn to: W Lx Con , Admin. | en ou Sing, Serves, \O4 San Yen dense Sacksanmlle, FL. S2a10 3. Service Type Orcértified Mall 1 Express Mall C Registered (7 Return Recelpt for Merchandise 1] insured Mail 1. G.0.D. 4. Restricted Delivery? (Extra Fea) » anstor trom service labo) 2004 2890 OOD0 5526 4529 PS Form 381 1, August 2001 Domestio Return Recelpt " 402895-02-M-1640

Docket for Case No: 10-003201