- ft ffeme STATE OF FLORIDA 06 JU 20 p ~ AGENCY FOR HEALTH CARE ADMINISTRATION bn Py 4, 3 ADI; jslou 9 Hels nf Or STATE OF FLO RIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, a) (n° Iu U ae vs. Case No. 2006004885 CERTIFIED MAIL # THE HEALTH CENTER OF DAYTONA 7004 1160 0003 3739 1874 BEACH, INC., 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 (2005), and alleges: NATURE OF THE ACTION 1. This is an action to impose an administrative fine in the amount of $1 9,655.00 (the “fine amount”) against Respondent, pursuant to Section 408.040, Florida Statutes, and Florida Administrative Code Rules 59C-1.013 and 59C-1.021. 2. For the calendar year 2005 (the “‘calendar year”), Respondent failed to comply with the Medicaid condition upon its Certificate of Need (“CON”), a copy of which is attached to this complaint as Exhibit A. ‘Unless otherwise noted, all statutes and rules hereinafier cited are to the indicated year’s version of the stattate or rule because this is the controlling year in question. Page 1 of 9 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- 408.045, Florida’s ““Heailth Facility and Services Development Act.” 4. Veraue is determined by Florida Administrative Code Rule 28-106.207. PARTIES 5. Pursuant to Chapier 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 laws of Florida to do business. Respondent op erates a community nursing home located at 550 National Healthcare Drive, Daytona Beach. Florida 32114 and is the licensee on the CON issued on October 14, 2004, for the addition Of 60 community skilled nursing beds to the existing 60-bed Nursing Home, with the Condition that a minimum of 35% of its 120-bed facility’s total annual patient days shall be provided to Medicaid patients. The CON number is 9406; a copy of the CON is attached to this complaint as Exhibit A. COUNTI Respondent failed to meet its Medicaid condition Section 408.040, Florida Statutes Florida Administrative Code Rule 59C-1.013 Florida Administrative Code Rule 59C-1.021 1. AHCA re-alleges paragraphs 1-6 above. 8. Respondent failed to comply with its Medicaid condition as reported to the Agency in its Florida Nursing Home Utilization Report for the year 2005, a copy of which Page 2 of 9 is attached to this Complaint as Exhibit B, and its facility report, a copy of which isatlached to this complaint aS Exhibit C. 9. Respondent failed to comply with the condition set forth inits COIN, as required by Section 408.040, Florida Statutes, and Rule S9C-1.013, Florida Administrative Code, which provide, in part, aS follows: 408.040 Conditions and monitoring (a) The agency may issue a certificate of need, or an exemption, predicated upon statements of intent expressed by an applicant in the application for a certificate of need. Any conditions imposed on & certificate of need or an exemption based on such statements of intent shall be stated on the face of the certificate of need or in the exernption approval. (b) The agency may consider, in addition to the other criteria specified ins. 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 cerlificate of need issued tO 4 nursing home in reliance upon an applicant's statements that a specified percentage of annua] 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 co7MMunity diversion pilot project is implemented. ()A certificate holder or an exemption holder may apply to the agency for a modification of conditions izxzposed under paragraph (a) or paragraph (b). If the holder of acertificate of need or an exemption demonstrates good cause why the certificate or exemption should be rnodified, the agency shall reissue the certificate of need or exemption with such modifications as may be appropriate. The agency shall by rule define the factors constituting good cause for modification. (a) If the holder ofa certificate of need or an exemption fails to comply with a condition upon which the issuance of the certificate or exemption was predicated, the azency May assess an administrative fine against the certificate holder in an amount not to exceed $ 1,000 per failure per day. Failure to annually report compliance with any condition upon which the issuance of the certificate or ©Xemption was predicated constitutes noncompliance. In assessing the Penalty, the agency shall take into account as mitigation the degree of noncompliance. Proceeds of such penalties shall be deposited in the Public Medicaid Assistance Trust Fund. th ok ok 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 expressecl on the face of the certificate of need shall provide annual compliance reports to the agency, The reporting period shal] be January 1 through December 31 of each year. The holder of a certificate Of need who began operation after January 1 will Teport from the date operation began through December 31. The compliance TePOTt shall be submitted no later than April 1 of the subsequent year. (a) The compliance report will comtain 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 siaied condition. The following information shal] 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 abowt the conditions that were measured: 5. The person and position responsible for supplying the compliance report: 6. Ary other information necessary for the agency to determine compliance with conditions: and 7, applicable, the reason or reasons, with supporting data, why the certificate of need holder was unable to meet the conditions set forth an tkae 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 comtime to meel conditions imposed on a certificate of need and to provide annual condition cOT21Pliance reports. (c) ConClitions imposed on a certificate of need may be modified consistent with Rule 59C- 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 39C-1-021, FAC. 10. The foregoing violation warrants imposition of the above-mentioned fine amount pursuant to Florida Administrative Code Rule 59C-].021, which provides, in part: 59C-1-021 Penalties. (a) 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 administrativ ©] fines for failure to comply with conditions placed on a certificate of need as specified snder Rule SOC-1.013, F.A.C ae ook G3) penalties for Failure to Comply with Certificate of Need Conditions. The agency shall review the annual] co7Mpliance report submitted by the health care providers who are licensed and operate the facilities or SETVICES 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 DUrsing homes or hospital-based skilled nursing units certified as such by Medicare, the first compliarace Teport on the status of conditions must be submitied 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 fitz€, not to exceed $1,000 per failure per day. In assessing the penalty the agency shall take into account the degree of noncompliance. - (b) The assessed fine shall be paid to the agency within 45 calendar days after written notification of assessment by certified mail 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 t0 4 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 2] calendar days after fina] agency action. The final balance will be due no later than G months after the health care provider has been notified in writing by the agency of the amount of the assessed fine or 6 months afier final agency action. 11. AHCA, i determining the penalty imposed, considered the degree of noncomphance. 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) 1Mpose such other relief as this tribunal] may find appropriate. Page 4 of 9 @ @ NOTICE RESPONSZCENT is hereby notified that it has a right to request an administrative hearing pursuant to Section 120.569, Florida Statutes. Specific options for administrative caring m set out ain the attached Election of Rights (one page) and explained in the attached aa tion of Risghts (one page). All requests for hearing shall be made to the Agency for eth Care Admixustration and delivered to the Agency for Health Care Administration, 2727 Mahan Dr., Bldg- 3, MS #3, Tallahassee, Florida, 32308; Attention: Agency Clerk. RESPONIPENT IS FURTHER NOTIFIED THAT IF THE REQUEST FOR WEARING 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 as Of the date indicated on the below Certificate of Service. ——— Donna La Plante, Semor Attorney Fla. Bar No. 0966193 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 1HEREBY CERTIFY that a copy of the original Administrative Complaint, Explanation of Rights form, and Election of Rights form have been sent by U.S. Certified Mail, Return Receipt Requested (receipt # 7004 1160 0003 3739 1874) to Respondent, Atiention: Administrator, at National Health Center of Daytona Beach, Inc., 550 National Healthcare Drive, Daytona Beach, Florida 32114 on thi CHE of ine 2006. 4 Z ae Donna £4 Planie, Senior Attorney Q f EXPLANATION OF RIGHTS oy Lom, UNDER SEC. 120.569, FILORIDA STATUTES <0 a (To be used with the attached Election of Rights form) 40g Pye, Ms . Mel Oy “Po . : OF 0. In respons] to the allegations set forth in the Administrative Complaint Ba eat e Agency for Healtka Care Administration (“AHCA” or “Agency”), Respondent must male ‘ode 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. 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Gregg, Chief Agency for Health Care Administration Certificate of Need Office Fort Knox Executive Center Le. 2727 Mahan Drive, Building Three Gk MAR 29 2006 Tallahassee, Fl. 32308 poe semen PEGE OF 6! e - GREGG, CHEE PIEALT ERR Re: The Health Center of Daytona Beach eae FASHITYy REGULATION NY CON #7299, Condition Compliance Dear Mr. Gregg: Please accept the following report as an assessment of compliance for the referenced Certificate of Need condition, 35 percent of total annual patient days shall be allocated to Medicaid patients, placed on the referenced CON. If you have any additional questions and/or require additional information, please do not hesitate to call 615-217-2324. Sincerely, The Health Center of Daytona Beach, Inc. a Steve A. Strawn Director, Authorized Representative for the License Holder Enclosure THE HEALTH CENTER OF DAYTONA BEACH CERTIFICATE OF NEED #7299 ASSESSMENT OF COMPLIANCE The time period cow ered by the measures; Please see attached typed summary chart (Exhibit A) for the time petiod covered. (Column A) The measure for assessing compliance of the conditions identified and described: The measure for assessing compliance of the condition identified is percent Medicaid of total patient days, The formula is as follows: Medicaid Total Days % Medicaid of Total Patient Days = wwe nw neem n ee nc rune e Total Patient Days Corresponds to Summary Chart Column A= Time Period Covered Column B = Medicaid Total Days Column C =Total Patient Days Column D = % Medicaid of Total Patient Days 27.66% = 6,439 23,278 Conditioned jo be at minimum of 35% Medicaid of Total Patient Days Actual percentage of Medicaid Days to Total Patient Days is 27.66%, which is les tham the required 35%. the referenced CON is therefore in not in compliance with the measure Im the strictest sense, but is in technical compliance with the spirit and inient of the condition. Please see response to Question Nine. The way in which the conditions were evaluated by applying the measures; If the percent Medicaid of Total Patient Days is equal to or greater than the measure for assessing compliance of the condition (see Question 2 for method), then compliancehas been met. Please see attached Exhibit A. Data was taken from @ computer generated sheet (Exhibit B) which are attached hereto, and placed on the attached summary char. Two fine items, with headings Medicaid SNF and Medicaid NF, were totaled together and are found on the separate summary chai (Exhibit A) under the title MEDICAID PATIENT DAYS, per month. The date found under the char tile TOTAL PATIENT DAYS (Exhibit A) can be found under the heading TOTAL DAYS on a monthly basis. The acival data sources used to generate the information on the conditions that were measured; . Please see the attached computer generated data tables (Exhibit 8). Rows titled Medicaicdl SNF, Medicaid NF and TOTAL DAYS have been summarized on a chart by month, and follow the method sfated in Question 2 to report compliance. The source of the data for the measure; The Health Center of Daytona Beach, Inc., lessee and/or management entity of the reflerern ced CON, internal report entitled "Census Summary of Patient Days" prepared by the facility bookkeeper on a Monthly basis as part of a financial report which is patient specific. Data recorded is based On revenue as patients are approved by payor source. Some revenue ray be retroactive. The reasonableness Of the measures and the confidence in the measures; The measure is both reasonable and one which allows confidence in assessing compliaance with the assigned condition. As can be seen from Question two (2), the measure is a straightforward ratio of Medicaid Total Days to Total Patient Days. We are confident thatthis is a- reasonable way to evaluate Percent Medicaid of Total Patient Days. . Checks and balances are that payment is received on the turnaround documents and claim forms. Data is done On 4 case by case basis. Hospital Cost Containment Reports are pepaared off these reports. The report used also maiches our Medicaid and Medicare reports. Therefore we feel the data is reasonable and accurate and one in which the confidence level is extremely high. The person and position responsible for defining the measures and supplying the compliance report; Steven A. Strawn, Direcior for The Health Center of Dayiona Beach, Inc., and the Authorized Representative for the referenced license and Certificate of Need holder. Any other information Necessary to determine compliance with conditions; and, None If applicable, the reason or reasons, with supporting data, why the certificate of need holder was unable to meet the conditions set forih on ihe face of the certificate of need. The Health Center of Daytona Beach does not discriminate against patients on any goounds including and not limited to payor source. The center works closely withthe area hospitals and physicians to accommodate all referrals hey may have. Because of our high censusancdl our limited number of beds (60) with 13 additional beds added 3/14/03, we frequently do not have bed availability for patients regardless of payor source. However, we do work wih area discharges planners jo assist them when they hove patients to place regardless of our vacancies. The center has a higher than average Medicare and managed care census due to the faci that it was the only Blue Cross provider on the eastside of the county, and stillis only one of several options currently available. Our center had over 44.8% of our patients being reimbursed by Medicare and managed care in 2005. Our facility is also the only five star clinically based center in the eastern par of the county. In addition, the center ako offers patients both in and out patient rehab services, which is very attractive to patients and tarnilies seeking a nursing home bed. Because the majority of our patients come from hospitals, and the majority of thos¢ admissions are Medicare patients, and given the fact that center must treat Medicare as the primary payor source according to state Jaw, the center really has little control of admissio™5- In addition, the center average length of stay is such that patients can be discharged to less costly levels of care, before billing Medicaid. Please note that according to the latest Florida’ Nursing Home Utilization by District and Subdistrict, July 2004 to June 20085, p.73, the occupanc ¥ rate in District/Sub district. 4/4 was 87.95% compared to our centers 89.52% occupancy rate. Based on licensed community beds of 3,394 and the average census of 87.95%, an average of 2,985 beds were occupied on any given day. Consequently, that means that 409 beds were also unoccupied in the subdistrict during the same period of inne on any given day. Clearly, for calendar year 2005, access to nursing home beds was notan issue for this subdistrict. 117 addition, the east Volusia occupancy rates, in which the centerls located, has an even lower occupancy rate average than the Subdistrict. Please keep in mind that in addition to the hospital closing its skilled units within the last several reporting periods, Mariner Health Care of peland and Holiday Care Center (inactive) closed in 2002 representing 240 beds. In addition, Emory L. Bennett Memorial Veterans NH of Florida, a 120 bed facility for veterans has been excluded from the referenced numbers. As the agency states in its publication entitled Florida Nursing Home Bed Need Projections by District and Subdistrict, 10/07/05, “The. Legislature finds that the continued growth in the Medicaid budget for nursing home care has constrained the ability of the state fo meet the needs of its elderly residents through the use of less restrictive and less institutional methocis of long-term care. it is therefore the intent of the Legislature to limit the increase In Medicaid nursing home expenditures in order fo provide funds to invest in long-term care that is community-based and provides supportive services in a manner that is both more cost- effective and more In keeping with the wishes of the elderly residents of this state."(p.3, AHCA FL Nursing Home Utilization, July 2004 - June 2005). In summary, patient admissions are based on need and not payor source. Given that fact and the clear Legislative directive to reduce reliance on nursing homes and suppor community based services, it would seem the current state of census utilization would seem encouraging to the agency. If access to a nursing home bed was truly an issue, you would not expect to see two centers or 240 beds closing within the last several years in Volusia County. Furthermore, the inability to serve Medicaid patients in the nursing home setting due to lack of demand allows Medicaid budget dollars to be used in a fashion more in concer with current legislative direction. Lastly, this facility is located in a County which is part of the State of Florida, Department of Elcier Affairs, Long-Term care Community Diversion Program. “The objective isto provide frail elderly with safe, appropriate community based care alternatives in lieu of nursing home placement at a cost less than Medicaid nursing home care.” (Department of Elder Affairs website) The CARES unit at the Department of Elderly Affair determines the individuals that meet the criteria’ to receive services. This program by its very nature, is designed to reduce the number of admissions and therefore, patient days that nursing centers might have previously provided. Please see attached documentation about the Long-Term Care Community Diversion Frogram. Ifthe agency requires any additional information or support as to why the cénter has not met its condition, please d° not hesitate to contact The Health Center of Daytona Beach, Inc.as we would be glad to provide any backup available to document our operations and compliance efforts. —o I} ‘THE HEALTH CENTER OF DAYTONA BEACH FISCAL YEAR 12/31/05 % OF MEDICAID TOTAL MEDICAID MONTH PATIENT DAYS — PATIENT DAYS PATIENT DAYS sanuery 559 2,081 26.86 February 523 1,815 28,82 March 548 °41,911 28.68 April 486 1,902 25.55 May 528 1,854 28.48 June 456 1,828 24.95 July 614 1,876 27.40 August 536 2,055 26.08 September 565 1,880 30,05 October — 610 2,049 29.77 November 554 2,01 4 27,55 560 2,016 27.78 December ; TOTAL 6,439 23,278 27.66 BLZEZ aba “se EL i dad eh EL -AON 6bOz zOz@eT o @ 6bae 20eLT Otg BaLb a a 656 OTSB sa 06s a ov 98 abe oO a 0 Li Qo Zz g0E BaRE [4] {8 y (be (Of =) (oez t ge TE Ooze B93 EL a eL $-390 © qqUOW 6 ) (az) E . sf Lz] EL Q ek § -das 3281 TéETT 0 0 9L8T T6ETT eTs faoe [*) L £16 6245 68 TEE a ob 69 PRS o 0 a ras a z 4az BzaT as (eT) (ur (82) (86T Ss bz TE Btz eg EL a EL S$ -Ime = yquOW 3 (BE ) L Cram a9 EL a eh § -AeH eu6T 20es u u zu6L cues gue £29T 0 L bes vaee va sat tr 6z OI Loe 0 0 0 et z@ 0 Sez sye (SE } (e0T 5 a Sb aot Ez) EL a EL § -2dy yauon : £ ar 13 ft oO fe § -1eW 3 ~qad OSE fe E SaAvd Wiud OdN dng hyaed yOUPIstY AN preotpay ANS PTeotpay W J2eg alvotpay a2e) pabeury @leDTIL aotdsoy aouRI SUT BY) pTea Aprueg Da you) predazg ayeataa isaaines quawdeg tgasuag pu: \PIOu/ow reqsuers, ] sabireyosta PToy/om suznqay suoytss tupy tansuap Say TeaoL aan Ans iqaag Aq Aypoudeo pow -uep YDRBq euOZAUG JO 1BQUTD YILHSLL BLL LuBZy tayuaD 1 VOHV rasta OGLE "ST: HORE NEG AOS'LS 99PPZ WST'LG ISSth o0REP : AETOR LEZST %R9°9R EBERLE o06iz bore, Orolt |0 0zI OZL S4UD papuayxg asuL9 1 spuL[poo yy LLU ALF9L B19Pl SOLE SO06E — Q06IZ a0rs tee (lle ed IAN ANWID ASIAN, —_Zyy M6BL9 E0CPI %ESSG ~260Z O06IZ oops” vie i" 08 09 isuq saqtag Asia, yy HORSE GhLO ~ “BCTE ESBBI — oDvRS ore ren ne TI yoveg worked jo sven, EGY YOURS PSZ6l %I9'IG SOIEE Scio oles OZLbI 0 vot O91 JajuaQ uoHETIqeysy pur Tussin ysasosgpry Lge Io EbPBL = EEG 1000 ~—a0REF oogol” BOl6 06 66 asnoy Aoudoy py YEE’ 6568 “YETVE 6 h9OT 0061z oovs OpoTL ju ray 0Z1 qaqu9D yeyoy pur Susi oBung poy SLUE ws SSSEZ LOG «BLL IY = REP ovgol an 09 JOUDD MONENURYDY Sout sy ML PHONE — yyy 6L9 SOORZ WEG PBITP oOREr f sa Ovoll jo Oct vz1 JoUSD quYySY puu Tursmpy Ay15 vuUC MSO €lS9e %OSRO goRES cee: ogo! 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Docket for Case No: 06-002645

Issue Date	Proceedings
Aug. 28, 2006	Order Closing File. CASE CLOSED.
Aug. 24, 2006	Joint Motion to Remand filed.
Aug. 03, 2006	Order of Pre-hearing Instructions.
Aug. 03, 2006	Notice of Hearing (hearing set for October 17, 2006; 9:30 a.m.; Daytona Beach, FL).
Jul. 25, 2006	Joint Response to Initial Order filed.
Jul. 21, 2006	Initial Order.
Jul. 20, 2006	Administrative Complaint filed.
Jul. 20, 2006	Request for Formal Administrative Hearing filed.
Jul. 20, 2006	Order of Dismissal Without Prejudice Pursuant to Section 120.54 and 120.569, Florida Statutes and Rules 28-106.111 and 28-106.201, Florida Administrative Code to Allow for Amendment and Resubmission of Petition filed.
Jul. 20, 2006	Motion for More Definite Statement and Amended Request for Formal Administrative Hearing filed.
Jul. 20, 2006	Notice (of Agency referral) filed.