Petitioner: AGENCY FOR HEALTH CARE ADMINISTRATION
Respondent: MEGA NURSING SERVICES, INC.
Judges: LAWRENCE P. STEVENSON
Agency: Agency for Health Care Administration
Locations: Jacksonville, Florida
Filed: Jun. 14, 2010
Status: Closed
Settled and/or Dismissed prior to entry of RO/FO on Friday, September 17, 2010.
Latest Update: Dec. 23, 2024
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.
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Ad Ate uiteh, Vf] za 4
KRISTINA L, SCHLIETER, ESQUIRE
ASSISTANT GENERAL COUNSEL
Copy furnished to:
Rob Dickson, FOM
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SENDER: COMPLETE THIS SECTION
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item.4 if Restricted Delivery Is desired.
@ Print your name and. address on the reverse
so that we can return the card to you:
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or on the front if space permits.
1, Article Addressed to:
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COMPLETE THIS SECTION ON DELIVERY
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SENDER: COMPLETE THIS SECTION
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Docket for Case No: 10-003201
Issue Date |
Proceedings |
Sep. 17, 2010 |
Order Relinquishing Jurisdiction and Closing File. CASE CLOSED.
|
Sep. 16, 2010 |
Motion to Relinquish Jurisdiction filed.
|
Sep. 13, 2010 |
Respondent's Response to Agency's First Request for Admissions filed.
|
Sep. 01, 2010 |
Notice of Partial Compliance with Petitioner's Request for Production to Respondent filed.
|
Aug. 31, 2010 |
Order Granting Continuance and Re-scheduling Hearing (hearing set for October 29, 2010; 10:00 a.m.; Jacksonville, FL).
|
Aug. 23, 2010 |
Joint Motion for Continuance filed.
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Aug. 20, 2010 |
Petitioner's Request for Motion Hearing filed.
|
Aug. 19, 2010 |
Respondent's Response in Opposition to Petitioner's Motion to Compel Discovery filed.
|
Jul. 29, 2010 |
Order Denying Motion to Dismiss.
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Jul. 22, 2010 |
Petitioner's Response to Respondent's Motion to Dismiss filed.
|
Jul. 21, 2010 |
Petitioner's Motion to Compel Discovery filed.
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Jul. 21, 2010 |
Motion for Change of Venue filed.
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Jul. 19, 2010 |
Notice of Hearing by Video Teleconference (hearing set for September 3, 2010; 10:00 a.m.; Jacksonville and Tallahassee, FL).
|
Jul. 15, 2010 |
Motion to Dismiss Counts II and III of Petitioner's Administrative Complaint filed.
|
Jun. 21, 2010 |
Joint Response to Initial Order filed.
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Jun. 14, 2010 |
Agency's First Request for Admissions filed.
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Jun. 14, 2010 |
Petitioner's Notice of Service of First Set of Interrogatories filed.
|
Jun. 14, 2010 |
Petitioner's Request for Production to Respondent filed.
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Jun. 14, 2010 |
Initial Order.
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Jun. 14, 2010 |
Notice (of Agency referral) filed.
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Jun. 14, 2010 |
Request for Administrative Hearing filed.
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Jun. 14, 2010 |
Administrative Complaint filed.
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