STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, vs. Case No. 2005002828 LIFE CARE CENTERS bn OF AMERICA, INC., d/b/a 0 NS OU 2 LIFE CARE CENTER OF ORLANDO, Respondent. / ADMINISTRATIVE COMPLAINT Petitioner, the Florida Agency For Health Care Administration (“AHCA”), through undersigned counsel, files this Administrative Complaint against Life Care Centers Of America, Inc., d/b/a Life Care Center Of Ocala (“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 $39,502 (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”). ‘al} Statutes and rules hereinafter cited, unless otherwise noted, are to the 2004 version, which is the controlling year in question. Page 1 of 8 JURISDICTION AND VENUE 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 Jaws and rules. 6. Respondent is a corporation authorized under the Jaws of Florida to do business. Respondent operates a community nursing home located at 3211 Rouse Road, Orlando, Florida 32817, and is the licensee on the CON issued on January 11, 2000, for the construction of an additional 60 bed community nursing beds to an existing 60 community nursing bed facility with the condition that a minimum of 62.35% of its 120 bed facility’s total annual patient days shall be provided to Medicaid patients (the “Medicaid Condition”). The certificate number is CON #9204, 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 Calendar Year indicates that the facility did not comply with the Medicaid condition for said Calendar Year (Exhibit “C”), based on the following findings: The Florida Nursing Home Utilization by District and Subdistrict January 2004-December 2004 data indicates that the facility provided 31.19 percent of the total annual patient days for its facility to Medicaid patients and the facility reports indicated that the facility provided 35.36 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 required by Sections 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 of need predicated upon statements of intent expressed by an applicant in the application for a certificate of need. Any conditions imposed on a certificate of need based on such statements of intent shall be stated on the face of the certificate of 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). If the holder of a certificate of need demonstrates 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 the certificate holder in an amount not to exceed $1,000 per failure per day. In assessing the penalty, the agency shall take into account as mitigation the relative lack of severity of a particular failure. “** 59C-1.013 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 to determine compliance with conditions; and 7. If applicable, the reason or reasons, with supporting data, why the certificate of need holder was unable to meet the conditions set forth on the face of the certificate of need. (b) A change in the licensee for a facility or service does not affect the obligation for that facility or service to continue to meet conditions imposed on a certificate of need and to provide annual condition compliance reports. (c) Conditions imposed on a certificate of need may 1.019, F.A.C. (5) Violation of Certificate of Need Conditions. Health care providers found by the agency to be in noncompliance with conditions set forth in their certificate of need shall be fined as defined in Rule 59C-1.021, F.A.C. be modified consistent with Rule 59C- 10. The foregoing violation warrants imposition of the above-mentioned Fine Amount pursuant to Florida Administrative Code Rule 59C-1.021 which provides in part: 59C-1.021 Penalties. (1) General Provisions. The agency shall initiate administrative proceedings for revocation of a certificate of need for violation of paragraphs 408.040(2)(a) and (b), F.S., or the assessment of administrative fines for failure to comply with conditions placed on a certificate of need as specified under Rule 59C-1.013, F.A.C xe (3) Penalties for Failure to Comply with Certificate of Need Conditions. The agency shall review the annual compliance report submitted by the health care providers who are licensed and operate the facilities or services and other pertinent data to assess compliance with certificate of need conditions. Providers who are not in compliance with certificate of need conditions shall be fined. For community nursing homes or hospital-based skilled nursing units certified as such by Medicare, the first compliance report on the status of conditions must be submitted 30 calendar days following the eighteenth month of operation or the first month where an 85 percent occupancy is achieved, whichever comes first. The schedule of fines is as follows: (a) Facilities failing to comply with any conditions set forth on the Certificate of Need will be assessed a fine, not to exceed $1,000 per failure per day. In assessing the penalty the agency shall take into account the relative lack of severity of a particular failure. (b) The assessed fine shall be paid to the agency within 45 calendar days after written notification of assessment by certified mai) or within 30 calendar days after final agency action if an administrative hearing has been requested. If a health care provider desires it may remit payment according to a payment schedule accepted by the agency. The health care provider must submit the schedule of payments to the agency within 30 calendar days after the date of receipt of the notification of assessment or 21 calendar days after final agency action. The fiaal balance will be due no later than 6 months after the health care provider has been notified in writing by the agency of the amount of the assessed fine or 6 months after final agency action. 11. | AHCA, in determining the penalty imposed, considered the degree of non- compliance and the relative lack of severity of a particular failure. WHEREFORE, AHCA demands the following relief (1) enter factual and legal findings as set forth in this Count; (2) impose the above-mentioned Fine Amount for the violation; and (3) impose such other relief as this tribunal may find appropriate. Page4 of 8 NOTICE RESPONDENT is hereby 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 attached Election of Rights (one page) and explained in the attached Explanation of Rights (one page). All requests for hearing shall be made to the Agency 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. Lake BLE Timothy B>#lliott, 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 413-9313 CERTIFICATE OF SERVICE 1 HEREBY CERTIFY that a copy of the original Administrative Complaint, Explanation of Rights form, and Election of Rights forms have been sent by US. Certified Mail, Return Receipt Requested (receipt 194 "eC CHF 3744 TEIG ) to Respondent, Attention: Administrator, at the address stated in the above paragraph 6, this 18” day of April 2005. ae 6. ctf Timot . Elliott, Senior Attorney Page5 of 8 EXPLANATION OF RIGHTS UNDER SEC. 120.569, FLORIDA STATUTES (To be used with the attached Election of Rights form) In response to the allegations set forth in the Administrative Complaint issued by the Agency for Health Care Administration (“AHCA” or “Agency”), Respondent must make 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. OPTION 2. If Respondent does not 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 3. 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. In order to obtain a formal proceeding before the Division of Administrative Hearings under Section 120.57(1), F.S., Respondent’s request for an administrative hearing must conform to the requirements in Section 28-106.201, Florida Administrative Code (F.A.C), and must state 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 ANCA 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 EXHIBITS (AHCA v. Life Care Center Of Orlando, Case No. 2005002828) EXHIBIT “A” — EXHIBIT “B” — EXHIBIT “C” — (All are copies.) Respondent’s CON #9204 Requiring that a Minimum of 62.35% of its 120 Bed Facility’s Total Annual Patient Days Be Provided to Medicaid Patients. Respondent’s Annual Compliance Report for Year 2004. Florida Nursing Home Utilization Report for Year 2004 Page8 of 8 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. *Condition Modification (2/25/04) NUMBER: 9204 APPLICANT: Life Care Centers of America, Inc. 3001 Keith Street, N.W. Cleveland, Tennessee 37320-3480 Ss ] . PROJECT COST: $3,344,000 ISSUE DATE: anuary 11, 2000 TERMINATION DATE: January 10, 2001 REVISED TERMINATION DATE: eee COUNTY: Orange DISTRICT: 7 SUBDISTRICT: 2 REET TRI ERRATA TTT TRE IA TTT TV RAE Te EOIN i PROJECT DESCRIPTION: Add 60 beds to the existing 60 beds at Life Care Center of Orlando. The project cori 22,200 GSF of new construction and construction costs of $2,220,000. CONDITIONS: A minimum of 62.35 percent of the 120-bed facility’s total annual patient days shall be Provides ¢ to Medicaid patients. * FORM 1793, APRIL 1993 eee ———- ——--—- a = aaa RE AD SR SR TG DS NCES OTRAS i SDH Ga ROR RGAE CONT TDSC LUIS RIB IF TS OTR OATES as zt is ee . ae 7 : w y a wy = a © = a 3 «Vy» LIQIHXa EXHIBIT “B” R. BRUCE McKIBBEN ATTORNEY AT LAW 1435 €. Piedmont Drive, Suite 214 ¢ Tallahassee, Fl 32308 » 850.942.8585 « 850.942.8524 (Fax) * romlow@earthlink.net March 23, 2005 Mr. James McLemore Health Services & Facilities Consultant Agency for Health Care Administration 2727 Mahan Drive, Building 1 Tallahassee, FL 32308 Re: CON Nos. 7839/9204 Life Care Center of Orlando CON Condition Compliance (2004) Dear James: Please accept this letter and attachment as the formal report by Life Care Center of Orlando concerning its CON Condition Compliance for calendar year 2004. I have been authorized by the owner and licensee of the facility to act as its authorized representative for purposes of filing this report. Per Rule 59C-1.013(4)(a), Florida Administrative Code: The time period covered by this report is January — December, 2004. The measure for assessing compliance with the Medicaid condition is to determine total patient days for the year and divide by the number of Medicaid patient days for the year. The data used was the facility’s internal census tracking information generated on a monthly basis. The compliance report is being submitted by the undersigned under the authority of the facility administrator and licensee of the facility. Requirement for 57% Medicaid Patient Days The facility experienced a total of 13,068 days for Medicaid eligible residents during calendar year 2004. That number equates to a total of over thirty one percent (31.3%) of the total patient days (41,671). See attached census tracking logs. In addition to the Medicaid days actually paid from Medicaid funds, forty-six percent (46%) of the facility’s residents were under the Medicare program. Of that number, a great many were Medicaid eligible even if their care was paid by another program. Furthermore, the facility had 1760 hospice resident days during the calendar year. Based upon the foregoing, it appears Life Care Center of Orlando met its Medicaid CON condition only upon consideration of all potential Medicaid residents receiving care at the facility during this calendar year. Inasmuch as the condition appearing on the face of the CON does not define “Medicaid resident” in any particular fashion, we would submit that all Medicaid-eligible residents are legitimately counted for purposes of CON condition compliance. Please let me know if you have any questions or concerns regarding this report. Thank you again for your assistance and attention to this matter. Feel free to call me directly at the phone number listed above. Sincerely, (- ote _ R. Bruce McKibben, Jr. Enclosure cc: Executive Director, Life Care Center of Orlando (002 31 DAY MONTH January-04 GENSUS TRACKING LOG Lecco FACILITY |tCc-ORLANDO MONTH / YEAR 03/23/2005 10:52 FAX 4072811001 HGAGAMaH AHN rid? bid td { Lltdd 110 108 107 104 105 TOTALS INHOUSE 13 112 110 108 106 107 104 110 114 148 114 115 119 118 147 116 216 120 120 / sls SLRS] R& q = 3 115.00 ADC [4] 003 Lcco 03/23/2005 10:52 FAX 4072811001 CENSUS TRACKING LOG FACILITY {icc-oRLANDO 28 DAY MONTH February-04 MONTH / YEAR INHOUSE TOTALS HOLDS PRIVATE Pay DAY. a 7 £48 120 419 47 415 18 18 46 6 46 6 47 17 “lola oa 4 £ o r 415.07 ADC \gjoo4 Lcco 03/23/2005 10:52 FAX 4072811001 CENSUS TRACKING LOG FACILITY|tcc-ORLANDO 31 DAY MONTH MONTH / YEAR PRIVATE 1S) Q r 4 @oos Lcco 03/23/2005 10:52 FAX 4072811001 CENSUS TRACKING LOG FACILITY[tcc-ORLANDO 30 DAY MONTH: Od MONTH / YEAR z ft s s . = s 2 oO a C4 006 Lecco 03/23/2005 10:53 FAX 4072811001 CENSUS TRACKING LOG FACILITY |: cc-ORLANDO 31 DAY MONTH MONTH / YEAR INHOUSE BED HOLOS TOTALS ; & = 4 409 4108 105 107 108 112 113, x 113 113 118 116 4117 35338 | 007 Leco 53 FAX 4072811001 03/23/2005 10 CENSUS TRACKING LOG FACILITY|[Lcc-ORLANDO 30 DAY MONTH 04 MONTH / YEAR MEDICAID | nosree_| vo OTHER TOTALS HOLDS rf = = = 117 117.53 ADC (2) 008 LCCcO 03/23/2005 10:53 FAX 4072811001 CENSUS TRACKING LOG FACILITY|tcc-oRLANDO 31 DAY MONTH July-04 MONTH / YEAR) © 2 = nt & = o a < Hoos = z s hal = 31 DAY MONTH 114 117 119 118 419 118 119 119 19 CENSUS TRACKING LOG August-04 Lcco FACILITY]. ¢C-ORLAND! MONTH / YEAR 03/23/2005 10:53 FAX 4072811001 fi ny r = ry Cy 119 117 116 417 118 , 3B23. 116.87 ADC Lecco 03/23/2005 10:53 FAX 4072811001 CENSUS TRACKING LOG FACILITY[Lcc-orLANDO 30 DAY MONTH eptember-04 MONTH / YEAR ju a 2 i) = z BED HOLDS Qa z 2 i i & b = = slefelelelelets(nlefelnleoln elejele FLE)SEl ESP EPELE(E(2/El Sel eiele/e/eisie/eis|e[n(ele]slobolg ose ee at a a oe ld dd dd dd 116.13 ADC @o11 Lecco 03/23/2005 10:53 FAX 4072811001 CENSUS TRACKING LOG FACILITY [t¢c-oRLANDO 31 DAY MONTH Gctober-04 MONTH / YEAR PRIVATE: INHOUSE TOTALS HOLDS | 119 120 120 120 12 F ‘0 117 118 118 118 198 ats 117.03 ADC 012 Lcco 03/23/2005 10:53 FAX 4072811001 CENSUS TRACKING LOG FACILITY |: cc-ORLANDO 30 DAY MONTH MONTH / YEAR TE MEDICARE INHOUSE TOTALS BED HOLDS PRIVA’ Pay il HH HEE 119 118 116 117 116 410 119 116.57 ADC ig013 Lecco 03/23/2005 10:53 FAX 4072811001 CENSUS TRACKING LOG FACILITY|:cC-ORLANDO 31 DAY MONTH December-04 MONTH / YEAR w a 2 8 x z Ly x x 6 £ HOLDS a & = 118 118 115 114 118 149 148 115 414 413 140 413 114 (3582 ADC EXHIBIT “Cc” Name of Facility Courtyard of Orlando Guardian Care Nursing & Rehabilitation Center Health Center of Windemere, The Health Central Park Hunter's Creek Nursing and Rehab Center Lake Bennett Health and Rehabilitation Center Life Care Center of Orlando Maitland Health Care Center Manor Care Nursing & Rehabilitation Center Mary Lee Depugh Nursing Home Assoc., Inc. Mayflower Healthcare Center Metro West Nursing and Rehab Center Ocoee Health Care Center Palm Garden of Orlando Palms at Maitland, The Parks Healthcare and Rehabilitation Center Quality Health of Orange County Regents Park of Winter Park Rio Pinar Health Care Rosewood Health and Rehabilitation Center Sunbelt Health Care and Subacute Center(inactive 7/27/04) Sunbelt Health Care and Subacute Center / Apopka Sunbelt Healthcare Center of East Ortando Terra Vista Rehabilitation & Health Center Westminster Care of Delaney Park Westminster Care of Orlando Westminster Towers Winter Park Care and Rehab Center Winter Park Towers DISTRICT 7 NURSING HOME UTILIZATION (January 2004 - December 2004 Data) Total Licensed Beds Comm. Shel. JAN- MAR QUARTERLY TOTALS 01/04-12/04 BED DAYS 120 120 120 228 116 120 120 180 138 40 60 120 120 120 39 120 120 120 180 120 102 120 120 115 60 420 120 103 120 120 120 120 228 116 120 120 180 138 40 24 120 120 120 39 120 120 120 180 120 102 120 120 15 60 420 61 103 92 w ececocoococoeseecoceoeeooae oooooocec]g 10926 10920 10920 20748 10556 10920 10920 16380 12558 3640 2184 10920 10920 10920 3549 10920 10920 10920 16380 10920 9282 10920 10920 10465 5460 38220 5551 9373 8372 99 ANNUAL TOTALS JANUARY 1, 2004 - DECEMBER 31, 2004 BED DAYS 43920 43920 43920 83448 42456 43920 43920 65880 50508 14640 8784 43920 43920 43920 14274 43920 43920 43920 65880 43920 37332 43920 43920 42090 21960 153720 22326 37698 33672 PATIENT DAYS 40417 40468 42305 76647 41438 40531 42145 41471 41559 14320 8285 42552 41883 41552 12498 42293 37078 40128 63038 42269 14830 42363 41860 36551 21414 123546 18878 34419 27288 TOTAL M'CAID M'CAID DAYS OCCUP occup 92.02% 92.14% 96.32% 91.85% 97.60% 92.28% 95.96% 62.95% 82.28% 97.81% 94.32% 96.89% 95.36% 94.61% 87.56% 96.30% 84.42% 91.37% 95.69% 96.24% 39.72% 96.45% 95.31% 86.84% 97.51% 80.37% 84.56% 91.30% 81.04% 306377 34435 27388 57519 24576 31935 13146 33679 22887 12231 0 27779 24513 26783 4080 30396 26175 12075 45748 28627 9653 26050 25549 24104 12317 100737 10148 21160 4582 90.00% 85.09% 64.74% 75.04% 59.31% 78.79% 31.19% 81.21% 55.07% 85.41% 0.00% 65.28% 58.53% 64.46% 32.65% 11.87% 10.59% 30.09% 72.57% 67.73% 65.09% 61.49% 61.03% 65.95% 57.52% 81.54% 53.76% 61.48% 16.79% AHCA 4/08/05 USPS - Track & Confirm Page | of } Track & Confirm Track & Confirm Enter label number: Current Status You entered 7004 1160 0003 3739 7616 Your item was delivered at 9:36 am on April 20, 2005 in ORLANDO, FL i 32817. : | Track & Confirm FAQs ( | US. 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Docket for Case No: 05-002453