STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) CASE NO. 96-4105

)

CARE R US, INC., )

d/b/a CARE ARE US, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice, a formal hearing was held by video teleconference in this case on November 13, 1996, at Miami, Florida, before Errol H. Powell, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Jean Claude Dugue, Esquire

Agency for Health Care Administration Manchester Building

8355 Northwest 53rd Street, 1st Floor Miami, Florida 33166

For Respondent: Ms. Arais A. Sanchez, Administrator

Care R Us, Inc.

1800 West 49th Street, Suite 324 R Hialeah, Florida 33012

STATEMENT OF THE ISSUE

The issue for determination is whether Respondent committed the offenses set forth in the administrative complaint and, if so, what action should be taken.

PRELIMINARY STATEMENT

By administrative complaint dated July 12, 1996, the Agency for Health Care Administration (Petitioner) charged Care R Us, Inc., d/b/a Care R us, Inc. (Respondent) with violating Rule 59A- 8.0086(1)d, Florida Administrative Code. Petitioner alleged that all of Respondent’s patients were referred to it by another certified agency, that Respondent was providing staffing for the certified agency, that the management and evaluation of the care of the patients was performed by the certified agency and that the patients’ clinical records were maintained by the certified agency. By letter dated August 1, 1996, Respondent disputed the allegations of fact and requested a formal hearing. On August 28, 1996, this matter was referred to the Division of Administrative Hearings.

At hearing, Petitioner presented the testimony of one witness and entered one exhibit into evidence. Respondent presented the testimony of two witnesses and entered no exhibits into evidence.

No transcript of the hearing was ordered. The parties submitted proposed findings of fact which have been considered in this recommended order.

FINDINGS OF FACT

1. There is an inference and a finding is made that Care R Us, Inc., d/b/a Care R Us (Respondent) is a licensed Home Health Agency.1

2. On December 29, 1995, the Agency for Health Care Administration (Petitioner) conducted a survey of Respondent to evaluate Respondent’s compliance with state regulations.

3. Petitioner’s surveyor requested Respondent to produce the records of its patients (patient records). Respondent complied.

4. None of the patient records showed that Respondent had provided direct service to patients for a period of six consecutive months. If such records are not produced at the time requested, Petitioner assumes that the licensee does not have the records and that the service is not being provided.

5. The survey conducted on December 29, 1995, was Petitioner’s first survey of Respondent.

6. At the time of the survey, Respondent misinterpreted Petitioner’s request and inquiry. As a result, Respondent failed to provide Petitioner with patient records showing that Respondent had provided direct service to two patients for a period of six consecutive months.

7. Approximately two days later, Respondent realized its mistake. The next month, January 1996, Respondent attempted to contact Petitioner’s surveyor on several occasions to make arrangements for the production and review of the patient records for the two patients. Respondent was unsuccessful. Because of patient confidentiality, Respondent could not include the names of the patients in any of the messages left for Petitioner’s

   surveyor. Petitioner’s surveyor did not contact Respondent in response to the messages.

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes.

9. License revocation proceedings are penal in nature. The burden of proof is on Petitioner to establish the truthfulness of the allegations in the administrative complaint by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987); Balino v. Department of Health and Rehabliitative Services, 348 So.2d 349 (Fla. 1st DCA 1977).

10. Section 400.474, Florida Statutes, authorizes Petitioner to take disciplinary action for the violation of its rules and to impose an administrative fine for such violation. Chapter 59A-8, Florida Administrative Code, provides minimum standards for home health agencies.

11. Rule 59A-8.0086, Florida Administrative Code, provides in pertinent part:

    1. The AHCA shall deny any initial or renewal application for license, or impose a fine,

       * * *

       (d) if the applicant fails to provide at least one service directly to patients for a period of six consecutive months.

       
       

12. Petitioner demonstrated that, on the day of its survey, Respondent failed to provide records showing that it provided

direct service to patients for at least six consecutive months. Petitioner’s argument is persuasive that Respondent should have provided the records at the time of the survey. However, even though Respondent had the records, through mistake and misinterpretation, Respondent failed to provide the necessary documentation. Furthermore, within a very short time span subsequent to the survey, Respondent made several attempts to provide the necessary documentation to Petitioner.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Agency for Health Care Administration enter a final order dismissing the administrative complaint.

DONE AND ENTERED this 20th day of March, 1997, in Tallahassee, Florida.

ERROL H. POWELL

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 20th day of March 1997.

ENDNOTE

1/ Petitioner did not enter a licensure certification into evidence. There was no request for admissions filed to provide that Respondent was a licensed Home Health Agency. However, Petitioner’s witness testified that she evaluated Respondent as a Home Health Agency, and Respondent’s witness testified that Respondent had “a license”.

COPIES FURNISHED:

Jean Claude Dugue, Esquire Agency for Health Care

Administration

8355 Northwest 53rd Street Miami, Florida 33166

Anais A. Sanchez, Administrator Care R Us, Inc.

1800 West 49 Street, Suite 324R

Hialeah, Florida 33012

Sam Power, Agency Clerk

Agency for Health Care Administration Fort Knox, Building III, Suite 3431 2727 Mahan Drive

Tallahassee, Florida 32308-5403

Jerome W. Hoffman, General Counsel Agency for Health Care Administration Fort Knox, Building III, Suite 3431 2727 Mahan Drive

Tallahassee, Florida 32308-5403

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 96-004105

Orders for Case No: 96-004105