STATE OF FLORIDA aie | E n } AGENCY FOR HEALTH CARE ADMINISTRATION 97 gyjp ~2 PH ts O7-39e_ | re 45 lit STATE OF FLORIDA, Heal iIVE : AGENCY FOR HEALTH CARE ADMINISTRATION, . Petitioner, VS. a . Case No. 2007006427 of Need (CON?) (Exhibit “A’).: HEALTHSOUTH CORPORATION d/b/a HEALTHSOUTH REHABILITATION HOSPITAL OF MIAMI, Respondent. / ADMINISTRATIVE COMPLAINT Petitioner, the Florida Agency For Health. Care Administration (“AHCA”); through undersigned counsel, files this Administrative Complaint against the above named Respondent . . CRespondent’) 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 $132,1 66 (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 2005 (the “Calendar Year’), Respondent failed to. -comply with the minimum of four point seventy five Percent (4.75%) of the total annual Patient days in "the ‘sixty (60) bed facility shall be provided to Medicaid patients condition upon its Certificate lUnless otherwise noted, all Statutes and rules hereinafter cited are to the indicated year’s version of the statute or rule, because this is the controlling year in question. ‘Page 1 of 10 _ 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 “Health Facility and Setvices 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 a comprehensive medical rehabilitation facility laws and rules. 6. Respondent isa corporation authorized under the laws of Florida to do business. , Respondent operates a comprehensive medical rehabilitation hospital. located at 20601 Old Cutler Road, Miami, Florida 33189, and is the licensee on the CON issued on Ime 14, 2000, to add fifteen (15) beds to the existing forty five (45) bed freestanding comprehensive medical rehabilitation hospital in Miami Dade County with the condition that a minimum of four point seventy five percent (4.75%) of the total annual patient days in the sixty (60) bed facility shall be provided to Medicaid patients. The certificate number is CON #9266, copy attached to this Complaint as Exhibit “A”. . COUNT (Respondent Failed To Meet Its Minimum Medicaid Condition) Section 408.040, Florida Statutes Florida Administrative-Code Rule 59C-1.013 Florida Administrative Code Rule 59C-1.021 7. AHCA tre-alleges paragraphs 1-6 above. " Page 2 of 10 Ey a 8. Respondent filed an annual compliance report, which reflected that the facility did'not comply with. the Minimum Medicaid Condition for the Calendar Year 2005 (Exhibit “B"), based on the following findings: . The facility report indicated that the facility provided three point three percent " (3.03%) ofits total annual patient days to Medicaid and Charity Care 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 (1a) 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. . () ‘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. "Page 3 of 10 () If the holder of a certificate of need fails to comply with a condition upon - which the issuance of the cettificate 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 degree of non-compliance. . , eK 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 riieasure 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 person and position responsible for supplying the compliance report; 6. Any other information necessary for the agericy to determine Page 4 of 10 comphance with conditioris; 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. 6) 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 ona certificate of need and to provide annual condition compliance reports. (c) Conditions imposed on a certificate of need may be modified consistent with : Rule 59C-1.019, FAC. ~ ; : (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. 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 (6), FS., 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, FAC. . ORK | 7 _ @) Penalties for Failure to Comply with Certificate of Need Conditions. The - agency shall review the ‘annual compliance teport submitted by the health care providers who are licensed and operate the facilities or services and other pertinent Page 5 of 10 data to assess compliance with certificate of need conditions. Providers who are not in . compliance with certificate of need conditions shall'be fined. (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 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 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 final 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 by the Respondent. WHEREFORE, AHCA demands the following relief (1) exter 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. Page 6 of 10 | | 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 as of the date indicated on the below Certificate of Service. Gedney thes Senior Attomey_ Fla. Bar No. 0355712": Agency for Health Care Administration 2295 Victoria Avenue, Room 356C Fort Myers, Florida 33901 Phone: (239) 338-3209 ‘Facsimile: (239) 338-2699 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#7006 2760° 0003 7781 4776) to Respondent, Attention: Administrator, at the address stated in the above paragraph 6, and by U.S. Certified Mail, Return Receipt ‘Requested (receipt #7006 2760 0003 7781 4769) to Registered Agent, CT Corporation System, 1200 S. Pine Island Road, Plantation, Florida 33324, this 2444) _ day of June 2007. Mat Daley hy fe Senior Attorney Page 7 of 10 Copies furnished to: Administrator HealthSouth Rehabilitation Hospital of Miami 20601 Old Cutler Road Miami, Florida 33189 Certified U.S. Mail) [Reuisiencd Agent CT Corporation System 1200 S. Pine Island Road _ Plantation, Florida 33324 (Certified U.S. Mail) Mary Daley Jacobs - Senior Attorney . Agency for Health Care Administration 2295 Victoria Avenue, Room 346C Fort Myers, Florida 33901 nteroffice Mail JamesMcLemore . - Health and Facilities Consultant Certificate of Need Agency for Health Care Administration 2727 Mahan Drive, Bldg #1, MS #28 Tallahassee, Florida 32308 (nteroffice Mail) Page 8 of 10 : HEALTHSOU TH, Miami peta Hospi . . iG ve : . cA R . . a . Ehpn aa | _ May16,2006 7 7 ee ECEIVI 7 ° James B. McLemore 7 ; : .. at . / Agency for Health Care Administration ; JUN 02 2006 . 2727 Mahah Drive, Mail stop #28 ; . Con/Financial Analysis Office ° _ Tallahassee, Florida 32308 mt : Mail Stop 28 "RB: HEALTHSOUTH Miami Rehabititation Hospital x ’ CON No. 6654. * i Condition: Minimum of 1.5% of total annual patient days for the | ; . entire facility shall be provided to Charity care patients. , | : CON No. 9266 - "Condition: Minimum of 4.75% Medicaid and 10 bed brain & spinal cord injury unit Dear Mr. Melemore: so Pursuant to Subsection 59c-1.013 (4)(d), Florida Administrative Code, this letter represents the Condition Compliance Report for the referenced certificate of need: 1. Time period covered by the measure. January 1, 2005 through December 31, 2005 2. Measure for assessing complian ce of the condition identified and described Actual patient days /‘Total patient days. ~ .. Way in which the conditions were evaluated by applying the measure. Medicaid patient days 304 / 17,387 Total patient days = 1.75 % Charity patient days 223 / 17,387 Total patient days = 1.28 % ; oy ‘Spinal cord and brain injury patient days 3, 980/ 365 days = 10.9 patontsiay . . Actual data sources used to eee the information on the condition to be . measured, The actual data sources used were the Fiscal year ended December 31, 2005 Charity and Medicaid patient logs, These reports correspond with submissions to the State of Florida Agency for Health Care Administration. - 5. The source of the data for the measure. 20601 Old Cutler Road, Miami, FL 33189 (305) 251-3800 The sources of the data were the Fiscal year ended December 31, 2005 patient days by financial class and program. can cremiernnccenamndi 8 6. Ressonableness of the measures and. confidence in measures. : , ‘The3 measure used to calculate compliance with the CON conditions -is the generally. accepted approach to measuring a percentage of patient days attributable to specific payors. We are confident in the data teported because it ties to the Hospital’s billing records and general ledger totals. . - 7, Pérson and position responsible for defining measures and supplying comp liance report. , Myriam Tortes, Controller : Jacqueline Arocho, Chief Executive Officer 8. If applicable, the reason or reasons, with supporting data; why the CON holder was unable to meet the conditions set forth on the face of the CON: , ee Facility has consistently exceeded its CON requirements for Medicaid and Charity days, over the last several years. The 2005 review period included the following situations, that prevented compliance with the requirements: i All patients, regardless of financial class or ability to pay, are considered for admission based _ onan order to determine clinical appropriateness for acute rehabilitation. Asa specialty designated rehabilitation hospital, there are specific clinical criteria for admission (in addition to diagnostic requirements). These clinical criteria include: appropriateness of admission and ability to progress, benefit in/from rehabilitation services, and established disposition upon discharge. In addition to these original restrictions, the facility was required to meet increased 2005 CMS 13 requirements, requiring that an increasing percentage of total admissions, meet a restrictive diagnostic criteria for the facility to continue to qualify as an Inpatient Acute Rehabilitation Hospital. The facility was held to a 50% mandated compliance rate, from January to August 2005, and a higher 60% mandated compliance rate from September to December 2005. The end effect of these restrictions is a ‘regulatory limit on our ability to admit formerly - appropriate rehabilitation patients in the diagnostic categories of orthopedic joint replacement, Cardiac, Axthritis, and other selected diagnostic groups: These restrictions effectively ignore the impact of a referred patient’s poorer than average medical condition and higher than average medical complexity, on their appropriateness for an acute rehabilitation admission. For a given diagnosis, our charity and Medicaid populations have historically had a disproportionatély higher senenicnsiar. so 20601 Old Cutler Road Miami, Florida 33189 (305) 251-3800 Medical complexity and lower medical condition than our other patients, for a given diagnosis, As a result, these regulations have had a disproportionate impact on our . - charity and Medicaid admissions. Our referral tracking strongly suggests that many of "these patients are now being directed towards Sub-acute care sétting, where ‘they are ” receiving a level of care formerly applied to the healthier Patient population, in their diagnostic § group. . Additionally, in FYE 2004 and 2005 the facility saw the direct impact of two major hurricanes (and the indirect impacts of several others), which drove a large number of lower income families from our area. The storms impact on lower income families was heightened due to: 1) the disproportionate levels of damage done to lower income . - housing. 2) The limited resources available to this population, to “weather” the shutdown of local btisinesses and the resultant temporary or permanent loss of their employment. & 3) the limited resources available to this population to rebuild (a larger percentage of lower incorhe housing was uninsured, and even with insurance the average claim payout cari take >12 months) or obtain alternative housing (the housing market experienced an immediate shortage of intact rentals, especially lower income * rentals). This will have a long term impact on the available pool of charity and Medicaid referrals, i in our area. Kepro denials have also contributed to a decline in Medicaid and charity days. There were . denials in 2005 that could have added an estimated 68 additional Medicaid patient days baséd on the average length of stay of our Medicaid population. The facility appeals all Kepro denials but was not successful in overturning all of them. If further information is required, please feel free to me, at (305)259-6390. "Thank you. ho Chief Executive Officer and Authorized Representative of _ CON Holder and Licensee 20601 Old Cutler Road Miami, Florida 33189 (305) 251-3800

Docket for Case No: 07-003563