STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT OF ) HEALTH AND REHABILITATIVE )

SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 80-2034

)

GULF COAST HOME HEALTH )

SERVICES, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings. This hearing was conducted on April 24, 1981, in Courtroom "C", Judicial Building, St.

Petersburg, Florida.

APPEARANCES

For Petitioner: Robert P. Daniti, Esquire

Department of Health and Rehabilitative Services

1317 Winewood Boulevard

Tallahassee, Florida 32301

For Respondent: Howard P. Ross, Esquire

BATTAGLIA, ROSS, HASTINGS, DISCUS and CAMPBELL

980 Tyrone Boulevard Post Office Box 41100

St. Petersburg, Florida 33743 ISSUES

By this action, Petitioner, State of Florida, Department of Health and Rehabilitative Services, attempts to discipline Respondent, Gulf Coast Home Health Services, Inc., pursuant to Chapter 400, Part III, Florida Statutes. The disciplinary action is taken against the Respondent's license to provide "home health services" in Pasco County, Florida, and is premised upon the contention by the Petitioner that the Respondent's office in New Port Richey, Pasco County, Florida, is a "subunit" within the morning of Section 10D-68.02(19), Florida Administrative Code, and further that a "subunit" must obtain a separate license in order to operate in a county other than the county in which the "parent agency" is located, this in keeping the statement found in Section 10D-68.04(2), Florida Administrative Code. More particularly, the Petitioner alleges that the Respondent does not have a license for the New Port Richey office and that the "parent agency" is located in Pinellas County, Florida, and in view of these

circumstances, the Petitioner, by this action, would modify or revoke the Respondent's permission to operate in Pasco County, Florida. 1/

FINDINGS OF FACT

1. In keeping with the terms of Subsection 120.60(6), Florida Statutes, the Petitioner, by certified mail, return receipt requested, notified the Respondent of its intentions to modify or revoke the Respondent's license as a "home health agency." This notification occurred on June 12, 1980. A copy of that notification may be found as Respondent's Exhibit A-30. Through the Notice, the Petitioner alleged that the Respondent was operating a "subunit" in Pasco County, Florida, at a time when the "parent agency" was located in Pinellas County, Florida. Under the circumstances, the Petitioner was out of the persuasion that a separate license for the Pasco County office must be procured and that in fact Gulf Coast did not have the necessary license and had been operating as a "subunit" in violation of Section 10D-68.04(2), Florida Administrative Code. Petitioner afforded Gulf Coast an opportunity pursuant to the Notice to demonstrate that he had complied with all lawful requirements related to the Pasco County operations of the Respondent and to give reason why the State of Florida should not institute administrative proceedings against the Respondent.

   
   

2. On June 20, 1980, through correspondence which may be found as Petitioner's Exhibit VII, Gulf Coast made written explanation concerning its activities in Pasco County, particularly as related to the office in Pasco County and this item of explanation was reviewed by the Department. The explanation was not found to be sufficient and on October 3, 1980, a Notice of Intent to Enter Final Order was filed by the State of Florida and served on the Respondent by certified mail. Although this charging document was framed in terms of a "cease and terminate" claim as stated in the prior footnote, the claim was subsequently amended to be an action for modification or revocation of the Respondent's Pasco County activities in the New Port Richey office. The basis of the claim was to the effect that the Respondent was operating in its New Port Richey office without benefit of license, in violation of Section 10D.68.04(2), Florida Administrative Code, related to the requirement for licensure of "subunits."

   
   

3. On October 20, 1980, Gulf Coast submitted a timely answer and affirmative defenses to the allegations as set forth in the Administrative Complaint. Those affirmative defenses were responded to on October 27, 1980, in a timely fashion, and the matter was forwarded to the State of Florida, Division of Administrative Hearings for consideration in keeping with the terms of Subsection 120.57(1), Florida Statutes.

   
   

4. Following a continuance, the matter was set for final hearing on April 24, 1981, and a hearing de novo was conducted. This Recommended Order is being entered after receipt of the transcript of the record of the hearing and following review of memoranda in argument and a review of the proposed facts, conclusions of law and recommended dispositions filed by counsel for the parties. To the extent that the proposals, conclusions and recommendations are consistent with the findings herein, they have been utilized. To the extent that the proposed findings, conclusions and recommendations are inconsistent with the findings herein, they are hereby rejected.

   
   

   Fact Determinations

5. Gulf Coast Home Health Services, Inc., is a nonprofit corporation in the business of providing "home health care" services in Pinellas, Pasco, Hernando and Hillsborough Counties, State of Florida. To conduct these activities, the Respondent has been licensed by the State of Florida, Department of Health and Rehabilitative Services, in keeping with Chapter 400, Part III, Florida Statutes, requiring the licensure of "home health agencies."

   
   

6. Petitioner, State of Florida, Department of Health and Rehabilitative Services, is an agency of State government which has, among other responsibilities, the licensure and regulation of "home health agencies", to include the Respondent.

   
   

7. The "parent agency" of Gulf Coast is located in St. Petersburg, Pinellas County, Florida. The Respondent has other offices in Clearwater, Pinellas County, Florida; Brooksville, Hernando County, Florida; and New Port Richey, Pasco County, Florida.

   
   

8. The New Port Richey office, which is the primary focus of this inquiry, was opened on June 27, 1975, and an office in that community has been in operation since that time. There has been one move to a larger facility.

   
   

9. Notification to the Petitioner of the existence of the New Port Richey office occurred on June 30, 1975, by correspondence from the Administrator of the Respondent to the Program Coordinator for Home Health Services, Division of Health, Department of Health and Rehabilitation Services. This may be seen through a copy of correspondence which may be found as Respondent's Exhibit A-1. There have been other indications of the existence of this office which have occurred over a period of time beyond the original notification and the instances may be seen in a review of the Respondent's Composite Exhibit A.

   
   

10. Gulf Coast Home Health Services, Inc., received its initial license to operate as "home health agency" from a "parent office" in St. Petersburg, Pinellas County, Florida, on April 14, 1977. For each year subsequent to that time, to include April 1, 1981, through March 31, 1982, the Petitioner has continued to license the Respondent as a "home health agency". The area of responsibility for this "home health agency" has included Pasco County, Florida.

    
    

11. The Respondent has never applied for any form of license for its office in New Port Richey. Consequently, a separate license has not been issued for the benefit of that facility.

    
    

12. The first indication given by the State of Florida, Department of Health and Rehabilitative Services that a license would be required for the New Port Richey office came on June 12, 1980, in the form of the investigation letter referred to in the case history.

    
    

13. The New Port Richey office of the Respondent is located approximately forty (40) miles from the "parent agency" in St. Petersburg, Florida. This distance has remained relatively constant since the inception of the New Port Richey in 1975.

    
    

14. The New Port Richey office covers an area of 3,925 square feet, floor coverage.

    
    

15. It can be seen in examining the graphs found in the Respondent's Composite Exhibit E, that a substantial percentage of the services rendered by

    the Respondent, in terms of home visits, are made by the New Port Richey branch office.

    
    

16. Petitioner's Exhibit III, lists the employees in that office, to include the Associate Director of Nursing, depicted in the table of organization, Petitioner's Exhibit I. By job description, Petitioner's Exhibit III, she has the duty of coordination and administrative responsibility related to personnel in the New Port Richey office, with particular emphasis on nursing services.

    
    

17. Some of the personnel in the New Port Richey staff area as follows: registered nurses, paramedical supervisor, registered nurse supervisor, physical therapist, home health aide, home health aide secretary, field supervisor, office manager, medical records secretary, weekend office supervisor, log clerk, and transcriber, among others. These persons are involved in providing daily "home health care services" from the New Port Richey office and files are maintained in the office related to clients serviced by the office.

    
    

18. The New Port Richey office also provides support services to the Respondent's Brooksville and Clearwater offices, in instances where those other offices are short on staff or supervisory capacities. This arrangement is an addition to supervisors who might be provided from the St. Petersburg office.

    
    

19. The New Port Richey office of the Respondent provides transcription services for patients' progress notes for the benefit of the Brooksville and Clearwater offices, as well as providing those services for the New Port Richey office.

    
    

20. The Petitioner conducts annual surveys on the health care provider by the "home health care agency" and in the course of those surveys, the materials to be surveyed which are gathered from the individual offices, to include New Port Richey, are separated for consideration in the survey process. When the surveys are concluded, the materials related to the survey process are returned to the individual offices of the Respondent, to include New Port Richey. Appearance at the surveys is by the Director of Medical Services, an employee housed in the St. Petersburg office.

    
    

21. The Administrator for Gulf Coast Home Health Services, Inc., in testifying about the responsibility of certain personnel in the New Port Richey office, namely clerical and secretarial positions was of the opinion that those personnel are not involved in the determination of eligibility for service or involved in the billing process for services rendered. Notwithstanding this testimony, the job description of the New Port Richey personnel would indicate the participation of those personnel in the determination of eligibility and in the billing process, and leads to the conclusions that the New Port Richey personnel do have those responsibilities.

    
    

22. Financial service employees of the Respondent who operate from the St. Petersburg office are ultimately responsible for payroll functions, accounts payable functions and billing of medicare and private patients.

    
    

23. The New Port Richey office is not involved in staff education and does not have an Advisory Board and Medical Director assigned solely to that concern. In addition, some supervision for the New Port Richey office is provided from St. Petersburg.

24. In summary, the New Port Richey office is subject to the controls and policies established at the St. Petersburg "parent agency" and relies to a certain degree on logistical support from the parent organization; however, in terms of day-to-day decisions and the delivery of "home health service," the New Port Richey office has a substantial degree of autonomy. This fact was recognized by its Administrator in correspondence of October 20, 1978, addressed to Joseph D. Dowless, Jr., Director of Licensure and Certification, Department of Health and Rehabilitative Services, a copy which may be found as Respondent's Exhibit A-18. In that correspondence, the Administrator states that, "our Pasco office is a fully equipped well organized Agency, larger in size then [sic] the majority of agencies in the State. From here we have been able to provide high quality services to our Hernando patients." (This letter was written in response to correspondence from the Department on the subject of establishment of an office in Hernando County.)

    
    

25. The New Port Richey office of the Respondent is a semi-autonomous agency servicing persons in Pasco County at a time when the "parent agency" is located in Pinellas County. As the organization is now constituted, it is capable of sharing administration, supervision and services on a daily basis with the "parent agency".

    
    

    CONCLUSIONS OF LAW

    
    

26. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action in keeping with Chapters 120 and 400, Part III, Florida Statutes.

    
    

27. The Respondent offered as exhibits, its A through F. Ruling was reserved on the admission of those items. Having considered the items, they are admitted.

    
    

28. Section 400.464, Florida Statutes, requires that "agencies" providing "home health services" within the meaning of Chapter 400, Part III, Florida Statutes, shall be licensed. To operate without the benefit of this license is a violation of law according to Section 400.467, Florida Statutes.

    
    

29. Section 400.497, Florida Statutes, is also involved in the license process, in that it allows the Petitioner to enact rules to effectuate the purposes of the "Home Health Services Act". In furtherance of that legislative intent, the Department of Health and Rehabilitative Services has promulgated Chapter 10D-68, Florida Administrative Code.

    
    

30. Within the definitional section of Chapter 10D-68, Florida Administrative Code, there is found Section 10D-68.02(10), Florida Administrative Code, which states:

    
    

    10D-68.02 Definitions. The following terms in the context of this law shall mean:

    * * *

    (19) Subunit - a semi-antonomous agency which serves persons in a county different from the parent agency and/or is incapable of sharing administration, supervision and services on a daily basis with the parent agency.

    An examination of the facts in this case demonstrates that the Respondent's New Port Richey, Florida, office is a "subunit" within the meaning of the aforementioned section, for reason that it is a "semi-autonomous agency" serving persons in Pasco County at a time when the "parent agency" is located in Pinellas County.

    
    

31. There is an inadequate showing on the part of the Petitioner to the effect that the New Port Richey office is incapable of sharing administration, supervision and service with the "parent agency" on a daily basis. That capability does exist.

    
    

32. Having concluded that the New Port Richey office is a "subunit," that office may not be operated without being licensed through a license procedure separate from that of the St. Petersburg, Florida, office. This decision is reached based upon examination of the language of Section 10D-68.02(2), Florida Administrative Code, requiring the licensure of the parent agency's "subunits" which are operated outside of the "parent agency" county.

    
    

33. In arriving at this decision, the determination has been made after considering the case of Department of Health and Rehabilitative Services v. Gulf Coast Home Health Services, Inc., DOAH Case No. 80-223, and the opinion rendered in the District Court of Appeal of Florida, Second District, Case No. 80-1915, involving those parties. An examination of the particulars of that case related to operations in Hernando County, leads to the conclusion that the Petitioner is not entitled to judgment on the basis of res judicata, collateral estoppel and with the understanding that the decision reached herein is in keeping with the principle of stare decisis.

    
    

34. In considering the Respondent's defenses to this action, especially as they pertain to claims of estoppel and waiver directed to the Petitioner, those defenses are found to be without merit.

RECOMMENDATION

Based upon a full consideration of the facts found and conclusions of law reached, it is

RECOMMENDED:

That the Respondent, Gulf Coast Home Health Services, Inc., have its operations being conducted from the New Port Richey, Pasco County, Florida, office suspended, subject to proper licensure of that "subunit."

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 22nd day of June, 1981.

CHARLES C. ADAMS

Hearing Officer

Division of Administrative Hearings Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of June, 1981.

ENDNOTE

1/ The charging document in this instance, which is titled Notice of Intent to Enter Final Order, initially sought to cause the Respondent to "cease and terminate" the Respondent's Pasco County, Florida, operations. This Notice of Intent to Enter Final Order was amended at the point of hearing to become an action as Administrative Complaint seeking modification or revocation of the Respondent's license to operate in Pasco County, Florida. The Respondent, in the course of the final hearing and through the person of its counsel, indicated its willingness to go forward with the hearing under the amended form of Administrative Complaint and the hearing was conducted.

COPIES FURNISHED:

Robert P. Daniti, Esq. Department of Health and Rehabilitative Services 1317 Winewood Boulevard

Tallahassee, Florida 32301

Howard P. Ross, Esq. Battaglia, Ross, Hastings,

Dicus and Campbell Post Office Box 41100

St. Petersburg, Florida 33743

Docket for Case No: 80-002034

Orders for Case No: 80-002034