STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 83-1672

)

THE AMBROSIA HOME, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on July 26, 1983, at Clearwater, Florida.

APPEARANCES

For Petitioner: Carol Wind, Esquire

Department of Health and Rehabilitative Services

2255 East Bay Drive Clearwater, Florida 33518

For Respondent: Karen L. Goldsmith, Esquire

Dempsey & Slaughter, P.A. Post Office Box 1980 Orlando, Florida 32802

By Administrative Complaint dated March 7, 1983, the Department of Health and Rehabilitative Services, Petitioner, seeks to assess an administrative fine against The Ambrosia Home, Respondent. As grounds therefor it is alleged Respondent failed to place all trust funds of deceased patients in an interest- bearing account until such time as the trust funds were disbursed pursuant to the provisions of the Florida Probate Code.

At the hearing one witness was called by Petitioner, one witness was called by Respondent, and 13 exhibits were admitted into evidence. There was no dispute regarding the operative facts here involved.

Proposed findings submitted by the parties and not included below were not deemed relevant to the issues.

FINDINGS OF FACT

1. At all times material hereto The Ambrosia Home was a licensed nursing home facility subject to Chapter 400, Florida Statutes, and Chapters 10C-7 and 10D-29, Florida Administrative Code.

2. During the summer of 1982 an auditor from the Medicaid Fraud Control Unit of the Office of the Auditor General conducted an examination of the patient trust fund accounts of The Ambrosia Home. During the course of this audit some 11 instances were found where deceased patients' trust funds had been disbursed by the nursing home without the benefit of probate proceedings. A report of these findings was forwarded to the Department of Health and Rehabilitative Services Office of Licensure and Certification, and the Administrative Complaint dated March 7, 1983, was issued.

   
   

3. Respondent had a policy under which all patients entering the nursing home completed a simple "will" which provided that if funds accruing to them monthly for personal use remained in their accounts after their demise, they directed disbursement of these funds to pay all outstanding debts to The Ambrosia Home and remaining funds be used for funeral expenses or paid directly to their named beneficiaries. The 11 patients whose trust funds were not all placed in an interest-bearing account upon their death had completed such a document designating a beneficiary of these funds. The funds which were allegedly not placed in an interest-bearing account upon the death of the patient were disbursed for funeral expenses or paid to the designated beneficiary.

   
   

4. This policy had been in existence at The Ambrosia Home for a considerable period of time and inspectors from the Office of Licensure and Certification had inspected these trust fund records several times without noting that such disbursements violated the Florida Probate Code.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

   
   

6. Section 400.162, Florida Statutes, provides in pertinent part:

   
   

   (6) In the event of a patient's death, a facility shall place all trust funds of the patient in an interest bearing account until such time as the trust funds are disbursed pursuant to the provisions of the Florida Probate Code.

   
   

7. Respondent contends that Petitioner has the burden of proof in these proceedings and has failed to meet this burden. The first part of Respondent's contention is true. Balino v. Department of Health and Rehabilitative Services,

   348 So.2d 349 (Fla. 1st DCA 1977). However, the evidence was undisputed that Respondent disbursed deceased patients' trust funds without the benefit of a Probate Court order in violation of the above-quoted statutory provision.

   
   

8. Respondent contends that the Office of Licensure and Certification, who issued the administrative complaint, did so on the basis of a report from the Auditor General's office that a violation had occurred and did not conduct an independent investigation to verify this violation. No statutes or rules were alleged to have been violated by Petitioner in executing the administrative complaint. Respondent was given timely notice of the hearing. At the hearing witnesses testified under oath, documents were presented, and Respondent was given the opportunity to cross-examine Petitioner's witness and to present its own evidence, which Respondent did. Accordingly, due process was accorded to

   Respondent and clear and convincing evidence was presented to show Respondent violated Section 400.162(6), Florida Statutes, as alleged.

   
   

9. Respondent also contends that Rule 10C-7.48, Florida Administrative Code, authorizes or condones the nursing home to disburse deceased patients' trust funds in accordance with the patient's designation. Section 10C-7.48, Florida Administrative Code, provides in pertinent part:

   
   

   Upon admission to a nursing home, a Medicaid eligible patient may designate in writing for the record of the nursing home, the disposition of any accumulated personal need funds in the patient trust account in the event of death of patient. Copy of same shall be furnished to the Department in its execution for inclusion in the individual's case record.

   
   

10. While it is true this rule states the patient may advise the nursing home in writing the patient's desires for the disposition of accumulated personal funds upon the death of the patient, this rule does not authorize the nursing home to disburse these funds in violation of Section 400.162(6), Florida Statutes, above-quoted or in violation of the Florida Probate Code.

    
    

11. Finally, Respondent contends Petitioner is estopped to enforce this provision of the statute because the investigators from the Office of Licensure and Certification examined these trust fund accounts on numerous occasions and never reported any deficiency in the handling of the trust funds. As authority for the claim of estoppel Respondent cites Department of Revenue v. Anderson,

    389 So.2d 1034 (Fla. 1st DCA 1980). Respondent failed to note that the Supreme Court of Florida reversed that decision in State Department of Revenue v. Anderson, 403 So.2d 397 (Fla. 1981). Therein the court held that in order to constitute estoppel the following elements must be shown:

    
    

    1. A representation as to a material fact that is contrary to a later asserted position;

    2. reliance on the representation; and

    3. a change in the position detrimental to the party claiming estoppel, caused by the representation and reliance thereon.

    
    

12. Here no evidence was presented that Respondent was told it could disburse deceased patients' trust funds, that Respondent relied on such a representation or that it changed position to its detriment in reliance on these misrepresentations. Since none of these elements of equitable estoppel were shown, estoppel does not exist in this case.

    
    

13. From the foregoing it is concluded that The Ambrosia Home failed to place all trust funds of deceased patients in an interest-bearing account until such time as the trust funds are disbursed pursuant to the provisions of the Florida Probate Code. It is

RECOMMENDED that a Final Order be entered finding Respondent guilty of violating Section 400.162(6), Florida Statutes, and assessing an administrative fine in the amount of two hundred dollars ($200) against The Ambrosia Home.

ENTERED this 17th day of August, 1983, at Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 17th day of August, 1983.

COPIES FURNISHED:

Carol Wind, Esquire Department of Health and Rehabilitative Services 2255 East Bay Drive Clearwater, Florida 33516

Karen L. Goldsmith, Esquire Dempsey & Slaughter, P.A. Post Office Box 1980 Tallahassee, Florida 32301

David H. Pingree, Secretary Department of Health and Rehabilitative Services 1321 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 83-001672

Orders for Case No: 83-001672