STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, AHCA No.: 2009004720 v. Return Receipt Requested: 7008 0500 0002 0764 8230 MACADAMS HOME HEALTH AGENCY, INC. 7008 0500 0002 0764 8247 d/b/a MACADAMS HOME HEALTH AGENCY, INC., Respondent. ADMINISTRATIVE COMPLAINT COMES NOW the Agency for Health Care Administration (“AHCA”), by and through the undersigned counsel, and files this Administrative Complaint against Macadams Home Health Agency, Inc. d/b/a Macadams Home Health Agency, Inc. (hereinafter ‘“Macadams Home Health Agency”), pursuant to Chapter 400, Part IIIT, and Section 120.60, Florida Statutes, (2008), and alleges: NATURE OF THE ACTION 1. This is an action to revoke the license and impose a $5,000 fine, pursuant to Sections 400.476(2), and 400.474 (2) (a), 408.807, and 408.815(1)(c), Florida Statutes (2008), and Chapter 5S9A-8, Florida Administrative Code for the protection of the public health, safety and welfare. Filed August 12, 2009 12:48 PM Division of Administrative Hearings. JURISDICTION AND VENUE 2. This Court has jurisdiction pursuant to Sections 120.569 and 120.57, Florida Statutes, and 28-106, Florida Administrative Code. 3. Venue lies Rule 28-106.207, Florida Administrative Code. PARTIES 4. AHCA is the regulatory authority responsible for licensure and enforcement of all applicable statutes and rules governing home health agencies, pursuant to Chapter 400, Part III, Florida Statutes (2008), Chapter 408, Florida Statutes (2008) and Chapter 59A-8, Florida Administrative Code. 5. Macadams Home Health Agency operates a home health agency located at 350 Camino Gardens Boulevard, Boca Raton, Florida 33432. Macadams Home Health Agency is licensed as a home health agency, license number 299992098, with an expiration date of March 15, 2010. Macadams Home Health Agency was at all times material hereto a licensed facility under the licensing authority of AHCA and was required to comply with all applicable rules and statutes. COUNT I MACADAMS HOME HEALTH AGENCY OPERATED FOR MORE THAN 30 DAYS WITHOUT A DIRECTOR OF NURSING Section 400.476(2) (b), Florida Statutes (2008) (DIRECTOR OF NURSING CHANGE) 6. AHCA re-alleges and incorporates paragraphs (1) through (5) as if fully set forth herein. 7. During the re-licensure survey conducted from 02/17/09 to 02/20/09 and based upon interview and record review, the Home Health Agency operated for more than 30 days without a Director of Nursing. The Director of Nursing's license expired in July 2008 and the Director of Nursing moved to Texas after signing a contract to sell the agency in September 2008. 8. On 02/17/2009 at 9:00 AM, the Surveyor entered the Home Health Agency and asked to speak with the Administrator. The Surveyor was directed to an individual who introduced himself as the Buyer/Manager. The Buyer explained that he had signed a purchase agreement to buy the Home Health Agency on 09/26/2008 but that the actual change of ownership had not yet occurred since they were waiting for approval from AHCA (Agency for Health Care Administration). The Buyer then introduced the Surveyor to the Co-Buyer, the Co-Buyer's Nurse Consultant, an individual identified as the Potential New Director of Nursing (Potential DON), the Functioning Office Manager who was also the Buyer's Spouse, and the Receptionist. 9. When asked, during an interview, on 02/17/2009 at 9:00 AM, if the Administrator was available, the Buyer stated that the Administrator/Director of Nursing was in Texas due to family medical issues. When asked if the Alternate Administrator was available, the Buyer told the Surveyor that the Alternate Administrator was not in the office. The Buyer explained that 3 although the Administrator/DON and the Alternate Administrator were still the current owners of the Home Health Agency and still the official Administrator/DON and Alternate Administrator of record, they had not been involved in running the Home Health Agency since they had signed the contract to sell the Home Health Agency. When asked who was currently running the Home Health Agency, the Buyer stated that he was running the Home Health Agency. 10. When asked to speak with the Alternate DON, the Buyer stated, during an interview, on 02/17/2009 at 9:00 AM, that the Alternate DON had resigned on short notice in December and that a Replacement Alternate DON had also resigned sometime in January. Upon request, the Buyer was unable to provide the Surveyor with documentation of the date of designation as the Alternate DON for either the Alternate DON or the Replacement Alternate DON. Upon request, the Buyer was unable to provide the Surveyor with documentation of the date of resignation as the Alternate DON for either the Alternate DON or the Replacement Alternate DON. Upon request, the Buyer was unable to provide the Surveyor with documentation that the state had been notified of a change in or the absence of a DON or an Alternate DON. The Buyer confirmed that’ the Home Health Agency did not have an available/involved DON or an Alternate DON and was unable to confirm the date when the Home Health Agency last had an available/involved DON or an Alternate DON. A review of the personnel files for the Alternate DON and the Replacement Alternate DON, conducted on 02/17/2009, 4 failed to reveal any documentation that either individual had ever been appointed to or accepted the position/responsibilities of Alternate DON. 11. The Surveyor then asked the Buyer, during an interview on 02/17/2009 at 9:00 AM, if the Home Health Agency had any current patients. The Buyer told the Surveyor that the Home Health Agency had two active patients who were receiving Insulin injections twice daily by LPN #1 or LPN #2. When asked how many current employees were working for the Home Health Agency, the Buyer named LPN #1, LPN #2 and RN (Registered Nurse) #1. He stated that RN #1 worked per diem. When asked, during an interview, on 02/17/2009 at 9:00 AM, if the Home Health Agency had an RN who was available during all operational hours, the Buyer told the Surveyor that he would call RN #1 and ask her if she was available. When asked how the Home Health Agency handled 24/7 on-call coverage, the Buyer stated that he would ask RN #1 i£ she would be willing to handle on-call coverage 24/7 and become full time "right away" since the other RN who was handling 24/7 coverage had just quit. 12. The Home Health Agency failed to have written delegation from the Director of Nursing for that Home Health Agency when the Director of Nursing is not present. 13. When asked for a list of employees for the past year, including hire dates, disciplines and termination dates, the Functioning Office Manager handed the Surveyor a list of only names and disciplines. The Functioning Office Manager stated, 5 "This is all that I have. I don't know who is active or when they. left. This list is the only thing regarding employees that I can pull up from the former owners' system. This is all that they left us." 14, On 02/17/2009, the Surveyor reviewed the Home Health Agency's policy on Home Health’ Agency Accountability states as follows: The Director of Nursing is responsible for the clinical functions of the office. In the absence of the Director of Nursing a designee is appointed. 15. The Home Health Agency's policy on Management and Administration states as follows: The Home Health Agency has a Director of Nursing. The Director of Nursing takes reasonable steps to assure: the quality and appropriateness of services; the availability of appropriate services on a daily, 24 hour basis; and appropriate staffing in sufficient numbers to assure the carrying out of the Home Health Agency workload in an effective, quality manner. 16. The Home Health Agency's policy on Director of Nursing states as follows: A qualified individual with appropriate clinical training, management skills, and experience is responsible for directing the client, care and services. This responsibility is bestowed upon the Director of Nursing. His or her qualifications are appropriate to the scope of care and services provided by the organization and their educational requirements are verified according to company criteria and any applicable law or regulation. Client care services are organized, 6 directed, and staffed according to the scope of care of services offered. The individual directing client care and services takes steps to: Ensure the consistent availability of all care and services; Coordinates the care and services provided by employees and contracted staff; and has clinical knowledge and experience in the services provided by the company and access to qualified consultation for care and services outside his or her experience. 17. On 02/17/2009 at 1:05 PM, the Alternate Administrator arrived at the Home Health Agency. The Alternate Administrator informed the Surveyor that the Administrator/DON was his sister and that she had been living in Texas since September. The Alternate Administrator stated that he supposes that technically he is still the Alternate Administrator of record and that his sister is still the Administrator/DON of record but said that since the signing of the purchase agreement in September, the Buyer has been running the day-to-day activities of the Home Health Agency. Upon inquiry, the Alternate Administrator told the Surveyor that the Buyer was not an employee of the Home Health Agency but that he had agreed to start running the Home Health Agency after signing the purchase agreement. When asked about the current status of an available DON, ‘the Alternate Administrator replied, "I don't know what the current DON situation is." When asked if the Home Health Agency had an Alternate DON, the Alternate Administrator replied, "I'll have to ask (the Buyer)." The Alternate Administrator instructed the Surveyor to direct all further questions regarding the operation 7 of the Home Health Agency to the Buyer, the Co-Buyer and the Co- Buyer's Nurse Consultant. 18. The Surveyor then asked the Alternate Administrator and the Buyer, during an interview on 02/17/2009 at 1:05 PM, to describe how the Home Health Agency provides for the availability of a registered nurse to participate in all activities relevant to the professional services furnished, including the development of qualifications and the assignment of personnel. The Buyer informed the Surveyor that the Home Health Agency was having trouble finding nurses. Upon request, both the Buyer and the Alternate Administrator were unable to present the Surveyor with any documentation of employee oversight or education activities for the past 12 months. The Alternate Administrator stated, "I think that we had something but I don't know where it is." 19. On 02/17/2009 at 1:50 PM, the Surveyor spoke with the Administrator/DON via telephone. The Administrator/DON confirmed that she was in Texas. When asked if she was still the Administrator/DON of the Home Health Agency, the Administrator/DON replied, "So I'm learning. Since we've been in the process of selling since last May, I thought that they (the new owners) had taken care of that." The Administrator/DON stated that she had not been acting in the capacity of Administrator/DON since August 2008. She stated that she was not responsible for running the Home Health Agency or supervising nursing services and said, "The new owners have been doing that." When asked about the Home Health Agency's Quality Assurance 8 Program, the Administrator/DON replied, "There was one when I left. I can't speak for right now." When asked if she had been totally removed from the Home Health Agency since August, the Administrator/DON stated, "Yes. They (the new owners) have not been in touch with me nor me with them." 20. A review of the personnel file for the Administrator/ DON was conducted on 02/17/2009. The file includes a Personnel Checklist documenting a hire date of 12/01/2004. The section for termination date is blank. The job title is listed as Administrator/Director of Nursing. The file contains a Job Description, signed by the Administrator/DON for the position of Director of Nursing. The job description for the Director of Nursing states as follows: Job Summary: A direct employee who is responsible for supervising all personnel who provide direct patient care. Job Responsibilities: Meet the criteria as defined in Section 400.462(7), Florida Statutes. Ensure that professional standards of community nursing practice are maintained by all nurses providing care. Maintain and adhere to Home Health Agency procedure and patient care policy manuals. Designate in writing a direct employee or an individual covered under a management company contract to manage the home health Home Health Agency or an employee leasing contract, to serve as on-site alternate director of nursing during absences of the director of nursing. Establish service policies and procedures in compliance with state health statutes and administrative rules which generally 9 conform to recommend Centers for Disease Control (CDC) and Occupational Safety, Health Home Health Agency (OSHA) guidelines for safety and universal precautions and infection control procedures. Employ and evaluate nursing personnel. Coordinate patient care services. 21. Continued review of the Administrator/DON's personnel file failed to reveal a current Florida Nursing License. It is noted that the verification of licensure in the file documented that the Administrator/DON's License as a Registered Nurse in the State of Florida expired on 07/31/2008. Upon request, the Home Health Agency . was unable to provide the Surveyor with documentation of a current license for the Administrator/DON. 22. On 02/17/2009 at 2:30 PM, the Surveyor met with the Buyer, the Co-Buyer and the Co-Buyer's Nurse Consultant. Upon request, the Buyer, the Co-Buyer and the Co-Buyer's Nurse Consultant were unable to present the Surveyor with any documentation concerning their designation as part of the current governing body or any documentation specifying their role in the Home Health Agency. Upon request, the Buyer, the Co-Buyer and the Co-Buyer's Nurse Consultant were unable to present the Surveyor with any documentation of a functioning DON, a functioning Alternate DON or a registered nurse who was available during operating hours. The Buyer, the Co-Buyer and the Co- Buyer's Nurse Consultant all agreed that the Home Health Agency did not have a functioning system for the oversight of nursing or other services nor a functioning 24/7 on-call system. 10 23. On 02/17/2009 at 2:45 PM, the Co-Buyer's Nurse Consultant handed the Surveyor a paper from the state's computer License verification system documenting that the Administrator/ DON's registered nurse license expired on 07/31/2008. The Co- Buyér's Nurse Consultant informed the Surveyor that she had just checked the state's database and that the Administrator/DON did not have a current license. 24. On 02/17/2009 at 3:35 PM, the Surveyor reviewed the purchase agreement with the Alternate Administrator and the Buyer. Regarding notification to AHCA, the Buyer stated, "No change of ownership information has been submitted to AHCA because we have no contract with JCAHO yet." Upon request, the Alternate Administrator was unable to provide the Surveyor with any documentation designating the Buyer, the Co-Buyer and the Co- Buyer's Nurse Consultant as part of the current governing body or any documentation specifying their role within the Home Health Agency. The Alternate Administrator stated, "I thought that the lawyer was going to do that." The Alternate Administrator agreed that the Buyer was running the Home Health Agency and that the current governing body of record, consisting of the Administrator/DON and the Alternate Administrator, ceased to maintain overall administrative and supervisory responsibility for all services provided once the purchase agreement was signed. 25. On 02/17/2009 at 3:40 PM, the Surveyor asked for the personnel file for RN #1. The Co-Buyer informed the Surveyor that the Home Health Agency had no file for the RN. When asked Il for the RN's phone number to confirm her availability during operational hours and her acceptance of 24/7 on-call coverage, the Co-Buyer informed the Surveyor that after contacting RN #1, she stated that she would not be available during operational hours and would not accept 24/7 on-call coverage. The Co-Buyer said, "She's (RN #1) skeptical of working for the Home Health Agency right now." The Surveyor then asked if the Home Health Agency had any RNs. The Buyer informed the Surveyor that he had found another RN (RN #2) that afternoon who would be willing to be available during operational hours and to accept 24/7 on-call coverage. The Co-Buyer gave the Surveyor a paper from the state's computer License verification system which documented that RN #2 did have an active license as a Registered Nurse in Florida. ‘The Surveyor spoke with RN #2 via telephone on 02/17/2009 at 3:45 PM. RN #2 told the Surveyor, during the interview on 02/17/2009 at 3:45 PM, that she worked per diem for the Home Health’ Agency and that she had just agreed to be available during operational hours and to accept 24/7 coverage. 26. During a follow-up interview with the Alternate Administrator on 12/18/2009 at 1:30 PM, the Alternate Administrator pointed to the Buyer and said, "Pretty much whatever he tells you is how or what it is. I'm not sure what they (the Buyer) did in March and April (of 2008). We (the Administrator/DON and the Alternate Administrator) were winding down. We did nothing." The Alternate Administrator told the Surveyor that he was never involved in the clinical aspects of 12 the Home Health Agency. He said, "(Name of Administrator/DON) did the clinical stuff. I did the business stuff." The Alternate Administrator also told the Surveyor that he would not be available the following day and again directed the Surveyor to direct all further questions regarding the Home Health Agency to the Buyer, the Co-Buyer and the Co-Buyer's Nurse Consultant. 27. On the morning of 02/19/2009, the Buyer presented the Surveyor with a document entitled Consent to Action by the Shareholders (name of Home Health Agency) and a copy of a letter to AHCA. The Consent to Action, dated 02/19/2009, states as follows: Whereas the Board of Directors desire the appoint (name of Buyer) as Chief Executive Officer, (name of Co-Buyer) as Chief Financial Officer, (name of Co-Buyer) as Administrator, and (name of Co-Buyer's Nurse Consultant) as Director of Nursing of the Company. Now, therefore: Be it further resolved that, effective immediately, (name of Co-Buyer's Nurse Consultant) is appointed Director of Nursing until her death, resignation, or removal by the Board of Director or Shareholders according to the By-Laws of the Company. 28. The letter to AHCA, dated 02/18/2009, states as follows: This letter is to appoint (name of Co-Buyer's Nurse Consultant) as the new Director of Nursing to our Home Health Home Health Agency. This will be effective immediately. Resume and RN verification will be attached to this letter. 13 29. Based on the foregoing, Macadams Home Health Agency violated Sections 400.476(2)(b), and 400.474(2) (a), and 408.807 Florida Statutes (2008), which carries, in this case, a $5,000.00 fine and a revocation of license. PRAYER FOR RELIEF WHEREFORE, the Petitioner, State of Florida Agency for Health Care Administration requests the following relief: A. Make factual and legal findings in favor of the Agency on Count I. B. Revoke the Respondent’s license and impose a $5,000.00 fine, pursuant to Sections 408.474(2) (a), and 408.815(1) (c), Florida Statutes (2008). Cc. Grant such other relief as this Court deems is just and proper. Respondent is notified that it has a right to request an administrative hearing pursuant to Sections 120.569 and 120.57, Florida Statutes (2008). Specific options for administrative action are set out in the attached Election of Rights Form. 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 Drive, Mail Stop #3, WYallahassee, Florida 32308, attention Agency Clerk, telephone (850) 922-5873. RESPONDENT IS FURTHER NOTIFIED THAT THE FAILURE TO RECEIVE A REQUEST FOR A HEARING WITHIN 21 DAYS OF RECEIPT OF THIS COMPLAINT 14 WILL RESULT IN AN ADMISSION OF THE FACTS ALLEGED IN THE COMPLAINT AND THE ENTRY OF A FINAL ORDER BY THE AGENCY. IF YOU WANT TO HIRE AN ATTORNEY, YOU HAVE THE RIGHT TO BE REPRESENTED BY AN ATTORNEY IN THIS MATTER. Nels EB. Rodney Assistant General Céunsel Agency for Health Care Administration 8350 N. W. 52°¢ Terrace Suite 103 Miami, Florida 33166 Copies furnished to: Field Office Manager Agency for Health Care Administration 5150 Linton Boulevard, Suite 500 Delray Beach, Florida 33484 (Inter-office mail) Home Care Unit Program Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308 (Interoffice Mail) CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. Certified Mail, Return Receipt Requested to Desiree Mc Bean, Administrator, Macadams Home Health Agency, Inc. 350 Camino Gardens Boulevard, Boca Raton, Florida 33432, and to David E. Marko, Esquire, Registered 15 ' Agent, 3001 SW Third Avenue, Miami, Florida 33129, on SB NG (40- ey 16 STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION RE: MacAdams Home Health Agency, Inc. d/b/a CASE NO: 2009004720 MacAdams Home Health Agency, Inc. ELECTION OF RIGHTS This Election of Rights form is attached to a proposed action by the Agency for Health Care Administration (AHCA). The title may be Notice of Intent to Impose a Late Fee, Notice of Intent to Impose a Late Fine or Administrative Complaint. Your Election of Rights must be returned by mail or by fax within 21 days of the day you receive the attached Administrative Complaint. If your Election of Rights with your selected option is not received by AHCA within twenty- one (21) days from the date you received this notice of proposed action by AHCA, you will have given up your right to contest the Agency’s proposed action and a final order will be issued. (Please use this form unless you, your attorney or your representative prefer to reply according to Chapter120, Florida Statutes (2006) and Rule 28, Florida Administrative Code.) PLEASE RETURN YOUR ELECTION OF RIGHTS TO THIS ADDRESS: Agency for Health Care Administration Attention: Agency Clerk 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308. Phone: 850-922-5873 Fax: 850-921-0158. PLEASE SELECT ONLY 1 OF THESE 3 OPTIONS OPTION ONE (1) I admit to the allegations of facts and law contained in the Administrative Complaint and I waive my right to object and to have a hearing. I understand that by giving up my right to a hearing, a final order will be issued that adopts the proposed agency action and imposes the penalty, fine or action. OPTION TWO (2) I admit to the allegations of facts contained in the Administrative Complaint, but I wish to be heard at an informal proceeding (pursuant to Section 120.57(2), Florida Statutes) where I may submit testimony and written evidence to the Agency to show that the proposed administrative action is too severe or that the fine should be reduced. OPTION THREE (3) I dispute the allegations of fact contained in the Administrative Complaint, and I request a formal hearing (pursuant to Subsection 120.57(1), Florida Statutes) before an Administrative Law Judge appointed by the Division of Administrative Hearings. PLEASE NOTE: Choosing OPTION THREE (3), by itself, is NOT sufficient to obtain a formal hearing. You also must file a written petition in order to obtain a formal hearing before the Division of Administrative Hearings under Section 120.57(1), Florida Statutes. It must be received by the Agency Clerk at the address above within 21 days of your receipt of this proposed administrative action. The request for formal hearing must conform to the requirements of Rule 28- 106.2015, Florida Administrative Code, which requires that it contain: 1, Your name, address, and telephone number, and the name, address, and telephone number of your representative or lawyer, if any. 2. The file number of the proposed action. 3. A statement of when you received notice of the Agency’s proposed action. 4. A statement of all disputed issues of material fact. If there are none, you must state that there are none. Mediation under Section 120.573, Florida Statutes, may be available in this matter if the Agency agrees. License type: (ALF? nursing home? medical equipment? Other type?) Licensee Name: License number: Contact person: Name Title Address: Street and number City Zip Code Telephone No. Fax No. Email(optional) Thereby certify that I am duly authorized to submit this Notice of Election of Rights to the Agency for Health Care Administration on behalf of the licensee referred to above. Signed: Date: Print Name: Title: Late fee/fine/AC SENDER: COMPLETE THIS SECTION COMPLETE THIS SECTION ON DELIVERY ® Complete items 1, 2, and 3, Also complete item 4 If Restricted Delivery Is desired. @ Print your name and address on the reverse so that we can return the card to you. . ® Attach this card to the back of the mailplece, or on the front if space permits. 1 Agent 47 addtessee D, ts delivery address different from item 1? C1 Yes 1. Article Addressed to: If YES, enter delivery ‘address below: [ No fi seixew Me Brea Peon! Crkpette Aborre'e- “Yonlth. Qgeeey a Oo Ck EGIL, cbeces Ly Bowe Nalin, FL 3S HID 3. Service Typo [-Cériitied Mall 1 Express Mall C1 Reglstered [Return Recelpt for Merchandiso C1 Insured Mail = G.0.D. 4, Restricted Delivery? (Extra Fea) (Transfer trom service labelysweresenan 2, Article Number 7008 0500 ooo2 o7By4 4230 102595-02-M-1540 | PS Form 3811, February 2004 Domestic Return Recelpt SENDER: COMPLETE THIS SECTION COMPLETE THIS SECTION ON DELIVERY @ Complete items 1, 2, and 3. Also complete A. Signature item 4 If Restricted Delivery Is desired, ® Print your name and address on the reverse so that we can return the card to you. § Attach thls card to the back of the mailpiece, or on the front if space permits, 1. Article Addressed to: rn David E, Myarhe, Cag : e006 SW 3 vet Ate C Agent Cl Addressee B VY alved by ( Pr Coe ee eat D, IsAgliVery address differ mitam 1? CO) Yes Selo RAP! No ress Mall B 3 fe (fa. a T Reglstered leturn Recelpt for Merchandise C1 Insured Mail 1 G.0.D. 4, Restricted Dellvery? (Extra Fea) O Yes "2, Article Number 7008 (Transfer from service label) en SOD D002 O76 a Ben? PS Form 3811, February 2004 Domestic Return Recelpt 102595-02-M-1540

Docket for Case No: 09-004279