STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, vs. Case No. 2005002809 OP KISSIMMEE, INC., d/b/a ian G"y\- TANDEM HEALTH CARE OF KISSIMMEE, [ 5 7 | [ d | Respondent. / ADMINISTRATIVE COMPLAINT Petitioner, the Florida Agency For Health Care Administration (“AHCA”), through undersigned counsel, files this Administrative Complaint against the above named Respondent (“Respondent”) pursuant to Sections 120.569 and 120.57, Florida Statutes (2004)', and alleges: NATURE OF THE ACTION 1, This is an action to impose an administrative fine in the amount of $6,698 (the “Fine Amount’) against Respondent, per Sections 408.034 and 408.040, Florida Statutes and Florida Administrative Code Rules 59C-1.013 and 59C-1.021. 2. For the calendar year 2004 (the “Calendar Year”), Respondent failed to comply with the Medicaid condition upon its Certificate of Need (“CON”) (Exhibit “A”). ‘AIL Statutes and rules hereinafter cited, unless otherwise noted, are to the 2004 version, which is the controlling year in question. Page 1 of 8 A me mm eo JURISDICTION AND VENUE JURISDICTION AN? oe 3. This tribunal has jurisdiction over Respondent, pursuant to Sections 120.569 and 120.57, Florida Statutes, and also Sections 408.031-408.45, Florida’s “Health Facility and Services Development Act.” 4. Venue is determined by Florida Administrative Code Rule 28-106.207. PARTIES 5. Pursuant to Chapter 408, Florida Statutes, and Chapter 59C-1, Florida Administrative Code, AHCA is the licensing and enforcing authority with regard to community nursing home laws and rules. 6. Respondent is a corporation authorized under the laws of Florida to do business. Respondent operates a community nursing home located at 2511 N. John Young Parkway, Kissimmee, Florida 34741, and is the licensee on the CON issued on September 24, 1996, for the construction of a 120 bed community nursing home with the condition that a minimum of 72% of its 120 bed facility’s total annual patient days shall be provided to Medicaid patients (the “Medicaid Condition”). The certificate number is CON #7765 and a copy is attached to this Complaint as Exhibit “A” COUNT I (Respondent failed to meet Its Medicaid Condition) § 408.040, Fla. Stat. Fla. Admin. Code R. 59C-1.013 Fla. Admin. Code R. 59C-1.021 7. AHCA re-alleges paragraphs 1-6 above. 8. Respondent filed an annual compliance report, which reflected that the facility did not comply with the Medicaid condition for the Calendar Year (Exhibit “B”). Additionally, the Florida Nursing Home Utilization by District and Subdistrict data for the Page2 of 8 ERR amie ea mn Calendar Year indicates that the facility did not comply with the Medicaid condition for said Calendar Year (Exhibit “C”), based on the following findings: required by S The Florida Nursing Home Utilization by District and Subdistrict January 2004-December 2004 data indicates that the facility provided 60.34 percent of the total annual patient days for its facility to Medicaid patients and the facility reports indicated that the facility provided 59.50 percent of the total annual patient days for its facility to Medicaid patients. 9. Respondent failed to comply with the condition set forth in its CON, as ections 408.034 and 408.040, Florida Statutes; and Rule 59C-1.013, Florida Administrative Code which provide in part as follows: 408.040 Conditions and monitoring (1)(a) The agency may issue a certificate 0 expressed by an applicant in the application for a certi certificate of need based on such statements of intent s need. (b) The agency may consider, in addition to the other criteria specified in s. 408.035, a statement of intent by the applicant that a specified percentage of the annual patient days at the facility will be utilized by patients eligible for care under Title XIX of the Social Security Act. Any certificate of need issued to a nursing home in reliance upon an applicant's statements that a specified percentage of annual patient days will be utilized by residents eligible for care under Title XIX of the Social Security Act must include a statement that such certification is a condition of issuance of the certificate of need. The certificate-of-need program shall notify the Medicaid program office and the Department of Elderly Affairs when it imposes conditions as authorized in this paragraph in an area in which a community diversion pilot project is implemented. (c) A certificate holder may apply to the agency for a modification of conditions imposed under paragraph (a) or paragraph (b). Jf the holder of a certificate of need dernonstrates good cause why the certificate should be modified, the agency shall reissue the certificate of need with such modifications as may be appropriate. The agency shall by rule define the factors constituting good cause for modification. (d) If the holder of a certificate of need fails to comply with a condition upon which the issuance of the certificate was predicated, the agency may assess an administrative fine against t not to exceed $1,000 per failure per day. In assessing the the certificate holder in an amoun penalty, the agency shall take into account as mitigation the relative Jack of severity of a particular failure. f need predicated upon statements of intent ficate of need. Any conditions imposed on a hall be stated on the face of the certificate of * * * 59C-3.013 Monitoring Procedures (4) Reporting Requirements Subsequent to Licensure or Commencement of Services. All holders of a certificate of need that was issued predicated upon conditions expressed on the face of the certificate of need shall provide annual compliance reports to the agency. The reporting period shall be January 1 through December 31 of each year. The holder of a certificate of need who began operation after January 1 will report from the date operation began through December 31. The compliance report shall be submitted no later than April 1 of the subsequent year. (a) The compliance report will contain information necessary for an assessment of compliance with conditions on the certificate of need, utilizing measures, such as a percentage of patient days, that are consistent with the stated condition. The following information shall be provided in the holder’s annual compliance report: 1. The time period covered by the measures; 2. The measure for assessing compliance with each of the conditions identified and described on the face of the certificate of need; 3. The way in which the conditions were evaluated by applying the measures, 4. The data sources used to generate information about the conditions that were measured; 5. The Page3 of 8 person and position responsible for supplying the compliance report; 6. Any other information necessary for the agency or reasons, with supporting dai conditions set forth on (b) A change in the licensee for a facility or facility or service to continue to meet conditions impose annual condition compliance reports. (c) Conditions imposed on a Ce! 1.019, F.A.C. (5) Violation of Ce be in noncompliance wit Rule 59C-1.021, F.A.C. ation warrants 10. The foregoing viol Amount pursuant to Florida Administrative C 59C-1.021 Penalties. (1) Genera! Provisions. The certificate of need for violation agency shall initiat administrative fines for failure to comply with con specified under Rule 59C-1.013, F.A.C to determine compliance with conditions; ta, why the certificate of need holder was unable to meet the the face of the certificate of need. rtificate of Need Conditions. He h conditions set forth in their certificate of need shall be fined as defined in of paragraphs 408.040(2)(a) and (b), F.S., and 7. If applicable, the reason service does not affect the obligation for that d on a certificate of need and to provide rtificate of need may be modified consistent with Rule 59C- alth care providers found by the agency to imposition of the above-mentioned Fine ode Rule 59C-1.021 which provides in part: trative proceedings for revocation of a or the assessment of ditions placed on a certificate of need as e adminis KOK (3) Penalties for Failure to Comply with Certificate of Need Conditions. The agency shall review the annual compliance report submitted by operate the facilities or services and other pertinent data t ders who are not in complia need conditions. Provi or hospital fined. For community nursing homes Medicare, the first compliance report days following the eighteenth month o is achieved, wh (a) Facilities failing to comply with any condit assessed a fine, not to exceed $1,000 per failure pe: take into account the relative lack of (b) The asse notification of ass an administrative hearing according to a payment sc schedule of payments to the agency within 3 notification of assessment or 21 calendar days a due no later than 6 months of the amount of the assessed fine or 6 months after has been requested. Ifa hedule accepted by the a 11. compliance and the relative lack of s WHEREFORE, AHCA demands the fo L-based skilled nursing units on the status of conditions must be submitted 30 calendar f operation or the first month where a ichever comes first. The schedule of fines is as follows: AHCA, in determining the penalty imposed, consid the health care providers who are licensed and © assess compliance with certificate of ed conditions shall be certified as such by nce with certificate of ne n 85 percent occupancy set forth on the Certificate of Need will be the penalty the agency shall ions + day. In assessing severity of a particular failure. ssed fine shall be paid to the agency within 45 calendar days after written essment by certified mail or within 30 calendar days after final agency action if health care provider desires it may remit payment gency. The health 0 calendar days after the date of receipt of the fier final agency action. The after the health care provider has been notified in writing by the agency care provider must submit the final balance will be final agency action. ered the degree of non- everity of a particular failure. lowing relief (1) enter factual and legal mentioned Fine Amount for the findings as set violation; and (3) impose suc forth in this Count; (2) impose the above- h other relief as this tribunal may find appropriate. Page4 of 8 NOTICE RESPONDENT is hereby notified that it has a right to reqitest ‘aty-ad hearing pursuant to Section 120.569, Florida Statutes. Specific options “for, paministra e action are set out in the attached Election of Rights (one page) and explainedin pitached Explanation of Rights (one page). All requests for hearing shall be made to théSAgéncy for Health Care Administration, and delivered to the Agency for Health Care Administration, 2727 Mahan Dr., Bldg. 3, MS #3, Tallahassee, Florida, 32308; Attention: Agency Clerk. RESPONDENT IS FURTHER NOTIFIED, IF THE REQUEST FOR HEARING IS NOT RECEIVED BY THE AGENCY FOR HEALTH CARE ADMINISTRATION WITHIN TWENTY-ONE (21) DAYS OF RECEIPT OF THIS ADMINISTRATIVE COMPLAINT, A FINAL ORDER WILL BE ENTERED. Submitted this 18" day of April 2005. as” 7 _ © Timothy B>Blibtt, Senior Attorney Fla. Bar No. 210536 Agency for Health Care Administration 2727 Mahan Drive, Bldg. 3, MS #3 Tallahassee, Florida 32308 Phone: (850) 922-5873 Fax: (850) 921-0158 or 4 13-9313 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the original Administrative Complaint, Explanation of Rights form, and Election of Rights forms have been sent by U.S. Certified Mail, Return Receipt Requested (receipt Joo GC cocs 3734 7624 _ ) to Respondent, Attention: Administrator, at the address stated in the above paragraph 6, this 18" day of April 2005. Lonely 2 CLL ett Timothy BNBiliott, Senior Attorney Page5 of 8 EXPLANATION OF RIGHTS Oh s i) UNDER SEC. 120.569, FLORIDA STATUTES eg Py (To be used with the attached Election of Rights form) . ; 4 In response to the allegations set forth in the Administrative Conipta WV sayy | by the Agency for Health Care Administration (“AHCA” or “Agency”), Respondent yes nidke one of the following elections within twenty-one (21) days from the date of receipt of the Administrative Complaint and your Election of Rights in this matter must be received by AHCA within twenty-one (21) days from the date you receive the Administrative Complaint. Please make your election on the attached Election of Rights form and return it fully executed to the address listed on the form. OPTION 1. If Respondent does not dispute the allegations in the Administrative Complaint and Respondent elects to waive the right to be heard, Respondent should select OPTION 1 on the election of rights form. A final order will be entered finding you guilty of the violations charged and imposing the penalty sought in the Complaint. You will be provided a copy of the final order. dispute any material fact alleged in the Administrative Complaint (Respondent admits all the material facts alleged in the Complaint.), Respondent may request an informal hearing pursuant to Section 120.57(2), Florida Statutes before the Agency. ‘At the informal hearing, Respondent will be given an opportunity to present both written and oral evidence to reduce the penalty being imposed for the violations set out in the Complaint. For an informal hearing, Respondent should select OPTION 2 on the Election of Rights form. OPTION 2. If Respondent does not OPTION3. If the Respondent disputes the allegations set forth in the Administrative Complaint (you do not admit them) you may request a formal hearing pursuant to Section 120.57(1), Florida Statutes. To obtain a formal hearing, Respondent should select OPTION 3 on the Election of Rights form. eding before the Division of Administrative Hearings under ent’s request for an administrative hearing must conform to 6.201, Florida Administrative Code (F.A.C), and nist state In order to obtain a formal proce Section 120.57(1), F.S., Respond the requirements in Section 28-10 the material facts disputed. IF YOU SELECT OPT. 3, CAREFULLY READ THE FOLLOWING PARAGRAPH: In order to preserve the right to a hearing, Respondent’s Election of Rights in this matter must be RECEIVED by AHCA within 21 days from the date Respondent receives the Administrative Complaint. If the election form with Respondent’s selected option is not received by AHCA within 21 days from the date of Respondent’s receipt of the Administrative Complaint, a final order will be issued finding the deficiencies and/or violations charged and imposing the penalty sought in the Complaint. Page6 of 8 STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION : : RE: Tandem Health Care of Kissimmee nays, ELECTION OF RIGHTS FOR ADMINISTRATIVE HEARING Oss PLEASE SELECT ONLY 1 OF THE 3 OPTIONS (An Explanation of Rights form is attached) OPTION _ONE (1) o Respondent does not dispute the allegations of fact contained in the ‘Administrative Complaint and waives Respondent’s right to object or to be heard. Respondent understands that by waiving Respondent’s rights, a final order will be issued that adopts the Administrative Complaint and imposes the sanctions sought. OPTION TWO (2) c Respondent does not dispute and Respondent admits the allegations of fact in the Administrative Complaint, but Respondent does wish to be afforded an informal proceeding, pursuant to Section 120.57(2), Florida Statutes, at which time Respondent will be permitted to submit oral and/or written evidence to the Agency in mitigation of the penalty imposed. OPTION THREE (3) 0 Respondent does dispute the allegations of fact contained in the Complaint and Respondent requests a formal hearing, pursuant to Section 120.57(1), Florida Statutes, before an Administrative Law Judge appointed by the Division of Administrative Hearings (“DOAH”). If Respondent chooses OPTION (3), in order to obtain a formal proceeding before the DOAH under Section 120.57(1), Florida Statutes, Respondent’s request for a hearing must conform to the requirements in Section 28-106.201, Florida Administrative Code (F.A.C), and must state the material facts you dispute. If you select Option 3, mediation may be available in this case pursuant to Section 120.573, Florida Statutes, if the Agency agrees to it. In order to preserve Respondent’s right to a hearing, Respondent’s Election of Rights in this matter must be received by ABCA within twenty-one (21) days from the date Respondent receives the Administrative Complaint. If the election of rights form with Respondent’s selected option is not received by AHCA within twenty-one (21) days from the date of the Respondent’s f the Administrative Complaint, a final order will be issued finding the deficiencies receipt 0 Ity sought in the Complaint. and/or violations charged and imposing the pena OPTION (2) or THREE (3) above and if Respondent is interested in y, please also mark and check this block, 0 If Respondent has elected either discussing a settlement of this matter with the Agence’ Mediation under Section 120.573, Florida Statutes, is not available in this matter. SEND NO PAYMENT NOW -- REGARDLESS OF THE OPTION SELECTED, PLEASE WAIT UNTIL RESPONDENT RECEIVES A COPY OF A FINAL ORDER FOR INSTRUCTIONS ON PAYMENT OF ANY FINES. (Please sign and fill in your current address.) Respondent (Licensee) Address: License. No. and facility type: Phone No. PLEASE RETURN YOUR COMPLETED FORM TO: Agency for Health Care Administration, Office of the General Counsel, Attention: Agency Clerk, 2727 Mahan Drive, Building 3, Mail Stop #3, Tallahassee, Florida 32308. Telephone Number: $50-921-8177; FAX 850-921-0158; TDD 1-800-955-8771. Page7 of 8 EE em CORAY 25 PM u: 24 EXHIBITS an iRArive (AHCA v. Tandem Health Care of Kissimmee, Case No. 20050028095 °~ : 1B EXHIBIT “A” — Respondent’s CON #7765 Requiring that a Minimum of 72% of its 120 Bed Facility’s Total Annual Patient Days Be Provided to Medicaid Patients. EXHIBIT “B” —Respondent’s Annual Compliance Report for Year 2004. EXHIBIT “C” — Florida Nursing Home Utilization Report for Year 2004 (All are copies.) Page8 of 8 BCCrO-GO - STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION CERTIFICATE OF NEED Under the provisions of the "Health Facility and Services Development Act" (Sections 408.031-.045, Florida Statutes (Supp 1992), AND Chapter 59C-1, Florida Administrative Code), the Agency for Health Care Administration certifies the need for this project. NUMBER: 7765 APPLICANT: Arbor Health Care Company PROJECT COST: $7,236,493 4100 Shawnee Road, Box 840 ISSUE DATE:__ September 24, 1996 Lima, OH 45802-0840 TERMINATION DATE:_ September 23, 1997 REVISED TERMINATION DATE:_February 17, 1999 COUNTY: Osceola DISTRICT: 7 SUBDISTRICT: 3 PROJECT DESCRIPTION: Construct a new 120 bed community nursing home consisting of 46,788 GSF of new construction and $3,469,083 in construction cost. CONDITIONS: 1. A minimum of 72 percent of its total annual patient days shall be provided to Medicaid patients; 2. Establish an 18 bed subacute care unit with 1 bed dedicated to AIDS patients; 1 bed dedicated to Hospice care patients; and 1 bed dedicated to respite care patients. . FORM 1793, APRIL 1993 is AM VENNOD) z BY Si % Sy ©£-Z LEGAL FORMS® «Ws» LIGIHXS EXHIBIT “B” NMIOORE STEPHENS LOVELACE, PA. CERTIFIED PUBLIC ACCOUNTANTS AND MANAGEMENT CONSULTANTS March 3, 2005 Mr. James McLemore Certificate of Need Office Agency for Health Care Administration Mailstop 28 5 2727 Mahan Drive Con/Finenciel Anaiysis Office Tallahassee, Florida 32308 Mail Stop 28 RE: Condition Compliance Report Tandem Health Care of Kissimmee CON #7765 Dear Mr. McLemore: As the authorized representative for Tandem Health Care of Kissimmee, the following information is provided for the condition compliance report as required by Rule 59C-1 .013(4)(a), Florida Administrative Code. CON 7765 was issued with a condition for 72% of total patient days to Medicaid patients, establish an 18 bed sub-acute care unit, and provide one bed each dedicated to AIDS, hospice and respite care. 1, The time period covered by the measures: The time period covered is January through December 2004. 2. The measure for assessing compliance with each of the conditions identified and described on the face of the certificate of need: The condition calls for 72% of total patient days to Medicaid patients, establish an 18-bed sub-acute care unit and provide one bed each dedicated to AIDS, hospice, and respite care. Therefore, patient days are used to measure compliance for Medicaid. Verification from the facility will be used to measure the compliance for the 18-bed sub-acute unit and whether a bed was provided to serve AIDS, hospice and respite care. 3. The way in which the conditions were evaluated by applying the measures: Based on patient days provided by the facility, Tandem Health Care of Kissimmee had total days of 42,582 and Medicaid days of 25,338. The facility was 69.5% Medicaid. 18167 U.S. Highway 19 North, Suite 650 « Clearwater, Florida 33764-6576 * 927.531.4477 © 727.538.2154 (facsimile) + www.ms-lovelace.com in principal cities throughout North America. An independently owned and operated member of Moore Stephens North America, inc. — members bers in principal cities throughout the world. N tonsa Granhane Newth America Inc ig a member of Moore Steohens Intemational Limited - mem! Mr. James McLemore Agency for Health Care Administration Re: Tandem Health Care of Kissimmee March 3, 2005 Page 2 Based on verification from the administrator, the facility did have an 18-bed sub-acute unit in bed for each AIDS, hospice and respite care was available. There were 1,349 ts for AIDS patients; and the facility was only able to ey were not tracked in the census information. place and a Hospice days, but there were no reques' confirm 14 Respite care days because th 4. The data sources used to generate information about the conditions that were measured: Patient day data is compiled by the facility. A census report for calendar year 2004 was run. 5. The person and position responsible for supplying the compliance report: Ms. Kathleen M. Urbanovic, Director of Reimbursement at Tandem Health Care, Inc. 6. Any other information necessary for the agency to determine compliance with conditions: Tandem Health Care of Kissimmee did not meet the Medicaid utilization condition on CON #7765. However, this facility is in Osceola County, which is part of the Medicaid diversion program and has reduced Medicaid demand in their service area since the condition was accepted. On behalf of the provider, I request that administrative sanctions be withheld for this condition. r reasons, with supporting data, why the certificate of need holder 7. If applicable, the reason o ditions set forth on the face of the certificate of need: was unable to meet the con nce indicates that Tandem As described above in response to section 6, supporting evide dicaid condition. Health Care of Kissimmee is functionally compliant with their Me ns committed to its mission of serving the Tandem Health Care of Kissimmee remal ble to care for themselves (i.e. low income community, especially those who are not a Medicaid recipients. Should you have any questions, please feel free to contact me at the letterhead number. Sincerely, Steven R. Jones, CPA srj/kep H:\t\Tan58169\2004\CON reporting\2004 Kiss CON Comp Report.doc Certified Mail/Return Receipt: 1/11/2004 14:41 FAX IgguazsuuZ w w = = ” O< ¥§ we bf yl gy fee 25 oa Pa rT | 3 HEC [2] sobacwse/ Rua a Z fod a b P sort SH} 6 - Sy = FLOOR PLAN DISTRICT 7 NURSING HOME UTILIZATION (January 2004 - December 2004 Data) BED DAYS QUARTERLY TOTALS 01/04-12/04 Licensed Beds ‘Total Comm. Shel. JUL- OCT- SEP DEC LD. Name of Facility Subdistrict 3 Osceola County 546 Avante at St. Cloud Oj 11921 11921 12052 503 Donegan Rehabilitation and Health Center(inactive 8/19/04 0} 10920 109204 11040 =—-11040 355 Kissimmee Good Samaritan Health Care Center 170 170 0} 15470 = 15470 15640 15640 783 = Oaks of Kissimmee 59 59 0 5369 5428 5428 1050 Osceola Health Care Center 120 120 0} =10920 11040 = 11040. 1105 Paims at Park Place, The 120 120 0 10920 11040 11040 1143 Plantation Bay Rehabilitation Center 120 120 0) 10920 11040-11040 914 Southern Oaks Health Care Center 120 120 0} 10920 11040 =11040 y $257 Tandem Health Care of Kissimmee 120 120 0} 10920 11040 = 11040 i SUBDISTRIETS TOTA Subdistrict 4 Seminole County 445 Florida Living Nursing Center 202-202 O} «18382-18382 648 — Healthcare & Rehab of Sanford 114 M4 Ol 10374 = 10374 991 Island Lake Center 120 120 Oo} 10920 =—10920 1267 Lake Mary Health and Rehabilitation Center 120 120 0} 10920 $13 Lakeview Nursing Center, Inc. (CLOSED 7/27/01) 0 0 0 479 Life Care Center of Altamonte Springs 240 240 0} 21840 21840 772 Longwood Health Care Center 120 120 0} 10920 10920 524 Lutheran Haven Nursing Home 42 42 0 3822 3822 1107 Tandem Health Care at West Altamonte 116 116 0} 10556 = 10556 1129 Tuskawilla Nursing and Rehab Center 98 98 0 8918 8918 918 Village On The Green 60 0 60 100 DAYS 87840 43920 15372 42456 35868 BED PATIENT TOTAL M'CAID M'CAID DAYS OCCUP DAYS OCCUP ANNUAL TOTALS JANUARY 1, 2004 - DECEMBER 31, 2004 92.77% 27060 60.84% 45.60% 14777 73.78% 76.92% 29535 61.71% 97.87% 17890 84.65% 95.10% 25649 61.41% 95.41% 26253 62.65% 95.79% 24357 = 57.89% 84.21% 29428 79.57% 97.45% 25827 60.34% 96.44% 48713 68.32% 92.02% 28579 74.44% 92.66% 20950 51.48% 97.57% 26170 61.07% 90.48% 49970 62.87% 92.03% 27730 68.60% 91.92% 5566 39.39% 97.15% 21474 52.07%! 95.91% 17672 = 51.37% AHCA 4/08/05 «J» LIQIHXY, USPS - Track & Confirm Page | of 1 Track & Confirm Current Status Track & G@nfirm You entered 7004 1160 0003 3739 7609 Your item was delivered at 10:07 am on April 20, 2005 in KISSIMMEE, FL 34741. 4 Be = Cres | Track fam FAQs ( Zs x, rc! ml a m TO a ; Postage | $ ADrumistmeanve map contact us government services Gg Cente co Compu '9-2002 USPS. 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Docket for Case No: 05-001927