STATE OF FLORIDA . AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, vs. : VERSA No. 2012010800 MD PLUS CLINIC, LLC, Respondent. / ADMINISTRATIVE COMPLAINT COMES NOW the Petitioner, State of Florida, Agency for Health Care Administration (the “Agency”) and files this Administrative Complaint against the Respondent, MD Plus Clinic, LLC (the “Respondent” or “MD Plus”), pursuant to Sections 120.569 and 120.57, Florida Statutes, and alleges as follows: NATURE OF THE ACTION ' This is an action against a health care clinic to revoke the License of the health care clinic, to impose an’ administrative fine in the amount of three thousand dollars ($3,000.00), and to recover the Agency’s costs of investigation, pursuant to Chapter 400, Part X, and Chapter 408, Part II, Florida Statutes. JURISDICTION AND VENUE 1. This tribunal has jurisdiction over the subject matter pursuant to Sections 120.569 and 120.57, Florida Statutes. Page 1 of 15 Filed December 17, 2012 12:34 PM Division of Administrative Hearings rere 2. ‘The Agency has jurisdiction over the Respondent pursuant to Sections 20.42 and 120.60, and Chapters 408, Part II, and 400, Part X, Florida statutes, and Chapter 59A-25, Florida Administrative Code. ) ) 3. Venue lies pursuant to Rule 28-106.207, Florida Administrative Code. PARTIES 4. The Agency is the licensing and regulatory authority ‘that oversees health care clinics in Plorida and enforces the applicable state statutes and rules governing such facilities. Chapts. 408, Part II, and 400, Part X, Fla. Stat.; Chapt. 59A- 33, Fla. Admin. Code. 5. The Respondent holds a health care clinic license , issued by the Agency, number 8939, for business premises located. at 2039 East Edgewood Drive, Suite 110B, Lakeland, Florida 33803. 6. At all times material to the allegations of this administrative complaint, Respondent was required to comply with -all applicable state statutes and rules governing health care clinics. VIOLATIONS 7. On September 20, 2012, the Agency's surveyor conducted a complaint investigation of the Respondent. Page 2 of 15 8. BACKGROUND SCREENING: On September 20, 2012, the Agency’s surveyor reviewed Respondent’s records. The Agency’s surveyor’s review found that the MD Plus Clinic Log of Screened Persons had only two names on it, the owner and the medical director. 8.a. In an interview with MD Plus’s manager on 9/20/12 at approximately 10:35 a.m., the Agency’s surveyor was told that there were an additional five staff members of MD Plus - Employees #1, #2,.#3, #4 and #5.- who provide personal care or services directly to clients or have access to client funds, personal property, or living areas. °8.b. When the Agency’s surveyor reviewed the five staff members’ files, all five were missing documentation of Level II background screening. 8.c. Under § 400.991, Fla. Stat., a health care clinic must comply with the requirements of Part II of Chapter 408, Fla. Stat.: (1) (a) The requirements of part II of chapter 408 apply to the provision of services that require licensure pursuant to this part.and part II of chapter 408 and to entities licensed by or applying for such licensure from the agency pursuant to this part... (S) (a). . (b) The agency shall require level 2 background screening for applicants and personnel as required in s, 408.809(1) (e) pursuant to chapter 435 and. s. 408.809. , 8.d, Section 408.809, Fla. Stat., requires: Page 3 of 15 (1) Level 2 background screening pursuant to chapter 435 must be conducted through the agency on each of the following persons, who are considered employees for the purposes of conducting screening under chapter 435: -(a) The licensee, if an individual. : (b) The administrator or a similarly titled person who is responsible for the day-to-day operation of the provider. . (c) The financial officer or similarly titled _ individual who is responsible for the financial operation of the licensee. or provider. (d}) Any person who is a controlling interest if the agency has reason to believe that such person has been convicted of any offense prohibited by s. 435.04. For each controlling interest who has been convicted of any such offense, the licensee shall submit to the agency a description and explanation of the conviction at the time of license application. (e) Any person, as required by authorizing statutes, seeking employment with.a licensee’or provider who is expected to, or whose responsibilities may require him or her to, provide personal care or services directly to clients or have access to client funds, personal property, or living areas; and any person, as required by authorizing statutes, contracting with a licensee or provider whose responsibilities require him or her to. provide personal care or personal services directly to Clients. Evidence of contractor screening may be retained by the contractor's employer or the licensee. 8.e. Rule 59A-33,012(5), Fla. Admin. Code, specifies: . (5) To facilitate a licensure survey, the health care clinic shall have the following material's readily available for review at the time of the survey: (h) Personnel files. (xr) Log of all natural persons required and who have been screened under Level 2 criteria of Chapter 435 and Section 400.991, F.S. 8.f. By not having documentation of background screening of Employees #1, #2, #3, #4 and #5, Respondent engaged ina Page 4 of 15 pattern of violations of Rule 59A-33.002(1)(e), Fla. Admin. Code. : 9, MEDICAL DIRECTOR: Section 400.9905, Fla. Stat., | defines: ) (5) “Medical director” means a physician who is employed or under contract with a clinic and who maintains a full and unencumbered physician license in accordance with chapter 458, chapter 459, chapter 460, 4 or chapter 461, However, if the clinic does not provide services pursuant to the respective physician practices acts listed in this subsection, it may appoint a Florida-licensed health care practitioner who does not provide services pursuant to the respective physician practices acts listed in this subsection to serve as a clinic director who is responsible for the clinic’s activities. A health care practitioner may not serve as the clinic director if the services provided at the clinic are beyond the scope of that practitioner's license, except that a licensee specified in s. 456.053(3) (b) who provides only services authorized pursuant to s. 456.053(3) (b) may serve as clinic director of an entity providing services as specified in s. 456.053(3) (b). te ates vente ‘ 9.a. Rule’ 59A-33.008, Fla. Admin. Code, requires: 59A-33.008 Medical or Clinic Director, . : (1) A licensed health care clinic may not operate or be a maintained without the day-to-day supervision of a single medical or clinic director as defined in Section 400.9905(5), F.S. The health care clinic responsibilities under Sections 400.9935 (1) (a)-(g), F.S., cannot be met without an active, appointed medical or clinic director. Failure of an appointed medical or clinic director to substantially comply with health care clinic responsibilities under Rule 59A~ 33.012, F.A.C., and Sections 400.9935(1) (a)-(g), F.S., shall be grounds for the revocation or suspension of the license and assessment of a fine pursuant to Section 400.995(1), F.S. (2) By statutory definition in Section 400.9905(5), F.S., a medical director is a health care practitioner that holds an active and unencumbered Florida Page 5 of 15 pas pene physician’s license in accordance with Chapters 458 (medical physician), 459 (osteopathic physician), 460 {chiropractic physician) or 461 (podiatric physician), F.S. A suspended or non-renewed license is considered an encumbered license, as is a license that restricts - the License holder from performing health care services ‘in a manner or under supervision different from a license holder without board or Department of Health restrictions. (3) The Agency shall issue.an emergency order suspending the license of any health care clinic operated or maintained without a medical or clinic director as required by the Act and this rule for such period of time as the health care clinic is without a medical or clinic director. ‘The Agency shall assess a civil fine of up to $5,000 for operating or maintaining a health care clinic without a medical or clinic director. Each day of operation following receipt of Agency. notice is considered a separate offense. Operation and maintenance of a health care clinic without a medical or clinic director shall be grounds for revocation of the license in. addition to the assessment of fines pursuant to Section 400.995 (1), F.S. 9.b. Section 400.9935, Fla. Stat., requires: 400.9935 Clinic responsibilities.— (1) Each clinic shall. appoint a medical director or clinic.director who shall agree in writing to accept legal responsibility for the following activities on behalf of the clinic. The medical director or the clinic director shall: (a) Have signs identifying the medical director or clinic director posted in a conspicuous location within the clinic readily visible to all patients. (bo) Ensure that all practitioners providing health care services or supplies to patients maintain a current active and unencumbered Florida license. (c) Review any patient referral contracts or agreements executed by the clinic. (d) Ensure that all health care practitioners at the clinic have active appropriate certification or licensure for the level of care being provided. {e) Serve as the clinic records owner as defined in s. 456.057. (£) Ensure compliance with the recordkeeping, office Page 6 of 15 surgery, and adverse incident reporting requirements of chapter 456, the respective practice acts, and rules adopted under this part and part II of chapter 408. (g) Conduct systematic reviews of clinic billings to ensure that the billings are not fraudulent or unlawful. Upon discovery of an unlawful charge, the medical director or clinic director shall take immediate corrective action. If the clinic performs only the technical component of magnetic resonance imaging, static radiographs, computed tomography, or ' positron emission tomography, and provides the professional interpretation of such services, in a fixed facility that is accredited by the Joint Commission on Accreditation of Healthcare Organizations or the Accreditation Association for Ambulatory Health Care, and the American College of Radiology; and if, in the preceding quarter, the percentage of ‘scans performed by that clinic which was billed to all personal injury protection insurance carriers was less -than 15 percent, the chief financial officer of the clinic may, in a written acknowledgment provided to the agency, assume the responsibility for the conduct of the systematic reviews of clinic billings to ensure that the billings are not fraudulent or unlawful. 9.c. Rule 59A-33.012, Fla. Admin. Code, requires: (3). . .. The medical or clinic director must attend the survey entrance conference and be available when the survey is conducted for the surveyor to determine compliance with minimum standards. Other key personnel required include the financial director, a representative of management or ownership and persons responsible for patient records and billing. (5) To facilitate a licensure survey, the health care clinic shall have the following materials readily available for review at the time of the survey: (h) Personnel files. (i) Logs, charts or notes demonstrating day-to-day oversight of health care clinic activities by the medical or clinic director. . (j) Copies of professional licenses issued by the respective boards and the Department of Health under the several practice acts. (k) Any patient referral contracts or agreements of the Page 7 of 15 health care clinic that are in writing and a disclosure to the- surveyor of any such agreements that are not in writing including the names of the parties to the agreement, the date. and the essential terms of agreement. (1) For health care clinics that are in operation at the time of the survey, the surveyor will select a sample of at least five (5) patient medical records from the previous 6 months of operation with at least one Medicaid file, if certified as a Medicaid provider, plus the five (5) billing records that correspond with . the five patient records. (m) Description of means by which the health care clinic conducts a systematic review of billings that ensures billings are not fraudulent or unlawful. .A sample must be reviewed by the medical. director or clinic director at least once every 30 days and a record maintained by the health care clinic for at least three years identifying the records reviewed and when and what action was taken to correct fraudulent or unlawful billings. A log of systematic reviews shall be. kept and maintained in a discrete file at the health care clinic for review on request of the Agency during the retention period. (n) List of services provided or a general descriptor of scope, level and complexity of care for services provided. (o) Current diagnostic and treatment equipment records showing equipment certification when such equipment must have regulatory certification. This requirement is ‘met with presentation of a current maintenance agreement. (p) An organizational flow chart with lines of : authority and names of key individuals and positions. (q) An all-inclusive and up to date listing of original signatures and initials of all persons entering information on billing and patient records, the printed name and medical designation, if any, such as PA, RN, MD, etc. The log shall be kept and concurrently ‘maintained at the health care clinic. Information required by this rule shall be stored and maintained by the health care clinic for a period of 5 years. (xr) Log of all natural persons required and who have been screened under Level 2 criteria of Chapter 435 and Section 400.991, F.S. (8s) Documentation for the past two years or from the date of licensure, whichever is earlier, demonstrating Page 8 of 15 lL... in writing compliance, when, and what action was taken by the medical or clinic director to perform the functions, duties and clinic responsibilities under Sections 400.9935(1) (a)-(g), F.S. Such documentation shall be made available to authorized agency personnel upon request. 10. MEDICAL DIRECTOR’S REFUSAL TO ATTEND THE SURVEY ENTRANCE . CONFERENCE AND BE AVAILABLE WHEN THE SURVEY IS CONDUCTED. MD Plus’s medical director, who was on-site treating patients at the time of the Agency’s survey, refused to attend the survey entrance conference and refused to participate in the survey process. 10.a. During a telephone interview with MD Plus’s attorney on 9/20/12 at approximately 10:00 a.m., the Agéncy’s surveyor was told that the attorney would not allow MD Plus’s medical director to be interviewed by the surveyor or be present for any part of the survey. 10.b. ‘The Agency’s surveyor advised MS Plus’s attorney that the Agency has the right under’ 59A-33.012(3) F.A.C. ‘to require the medical director to be available for the entrance conference and when the survey is conducted. 10.c. In a subsequent interview with MD Plus’s manager on 9/20/12 at approximately 10:10 a.m., MD Plus’s manager confirmed to the Agency’s surveyor that MD Plus’ medical director would not participate in the survey process. Page 9 of 15 ~ 10.d. _By not attending the Agency’s survey entrance conference and by not being available to the Agency’s - surveyor during the Agency’s survey, MD Plus and MD Plus’s medical director violated Rule 59A-33.012 (3), Florida Administrative Code. 11. MEDICAL DIRECTOR’ 8 FAILURE TO REVIEW CLINIC BILLINGS AT LEAST ONCE EVERY THIRTY DAYS. The Agency’s surveyor’s review of Respondent’s records on September 20, 2012, found that the health care clinic failed to ensure that ‘the medical director conducted a monthly record review to ensure that billings are not fraudulent or unlawful. ll.a. During record review of the clinic Monthly Record ‘Review on 9/20/12, the Agency’s surveyor found that the medical director had not. performed a review of clinic billing for August 2012. ll.b. The medical director's last billing review 7 completed was dated July 19, 2012, thus exceeding the 30 day requirement. ll.c. During an interview with MD Plus’s manager on 9/20/12 at approximately 11:35 a.m., the manager admitted that the medical director was behind in reviewing clinic billings of MD Plus. 11.d. During record review for Patient #3, the Agency's surveyor found that billing errors had occurred as it Page 10 of 15 pertained to lab work ordered on 6/14/12 and prepaid by the patient, but never completed. Also, an EKG ordered by the medical director on 7/19/12 was prepaid by the patient and never completed. The medical director had not conducted a review of the closed patient record to assure that refunds were given to patients in a timely manner. 11l.e. In an interview with MD Plus’s Manager on 9/20/12 at approximately 11:45 a.m., MD Plus’s manager confirmed to the Agency’s surveyor that Patient #3 was owed $100.00 due to pre-payment of $50.00 for lab work never done and $50 ' for EKG that was never performed, as ordered by the medical director, MD Plus’s manager further stated that the patient record should have been reviewed for billing errors and the money should have been refunded. 11.£. By not having conducted systematic reviews of clinic billings at least once ever thirty (30) days as required by § 400.9935(1)(g), Fla. Stat., and Rule 59A- 33.012(5) (m), Florida Administrative Code, during the month of August 2012, Respondent’s Medical Director and Respondent engaged in a violation of § 400.9935 (1) (g), Fla. Stat., and Rule 59A-33.012(5) (m), Florida Administrative Code. REQUEST FOR RELIEF 12. The above violations entitle the Agency to seek an Page 11 of 15 ee administrative fine of three thousand dollars ($3,000.00), costs of investigation, and revocation of Respondent’s license as a health care clinic. -13. Section 400.995, Fla. Stat., provides: 400.995 Agency administrative penalties.— (1) In addition to the requirements of part II of chapter 408, the agency may deny the application for a - license renewal, revoke and suspend the license, and impose administrative fines of up to $5,000 per violation for violations of the requirements of this part or rules of the agency. In determining if a penalty is to be imposed and in fixing the amount of the fine, the agency shall consider the following factors: (a) The gravity of the violation, including the probability that death or serious physical or emotional harm to a patient will result or has resulted, the severity of the action or potential harm, and’ the extent to which the provisions of the applicable laws or rules were violated. (b) Actions taken by the owner, medical director, or clinic director to correct violations. ‘(c) Any previous violations, (ad) The financial benefit to the clinic of committing or continuing the violation. (2) Bach day of continuing violation after the date fixed for termination of the violation, as ordered by the agency, constitutes an additional, separate, and distinct violation. 14. Section 400.9915, Fla. Stat., provides: 400.9915 Emergency suspension; costs.— (1) Failure by a clinic to employ a qualified medical director or clinic director constitutes a ground for emergency suspension of the license by the agency pursuant to s. 408.814, (2) In addition to any administrative fines imposed pursuant to this part or part II of chapter 408, the agency may assess a fee equal to the cost of conducting a complaint investigation. 15. Section 408.815, Fla. Stat., provides: Page 12 of 15 408.815 License or application denial; revocation.— (1) In addition to the grounds provided in authorizing statutes, grounds that may be used by the agency for denying and revoking a license or change of ownership application include any of the following actions by a controlling interest: (a) (c) A violation of this part, authorizing statutes, or applicable rules, (d) A demonstrated pattern of deficient performance. 16. Rule 59A~33.008(1), Fla. Admin. Code, provides: (1) A licensed health care clinic may not operate or be maintained without the day-to-day supervision of a single medical or clinic director as defined in Section 400.9905(5), F.S. The health care clinic responsibilities under Sections 400.9935(1) (a)-(g), F.S8., cannot be met without an active, appointed medical or clinic director. Failure of an appointed medical or clinic director to substantially comply with health care clinic responsibilities under Rule 59A- 33.012, F.A.C., and Sections 400.9935(1) (a)-(g), F.S., shall be grounds for the revocation or suspension of the license and assessment of a fine pursuant to Section 400.995(1), F.S. 17. Hach of the violations set forth in paragraphs 8, 10 and 11 are individually grounds for the imposition of an administrative fine, as set forth in § 400,995, Fla. Stat. 18, The violations set forth in paragraph 8 are a pattern of violations which is a ground for license revocation pursuant to § 408.815, Fla. Stat. 19. Taken together the violations set forth in paragraphs 8,10 and 11 demonstrate a pattern of violations sufficient to warrant license revocation. 20. Taken together the violations set forth in paragraphs Page 13 of 15 8, 10 and 11 demonstrate the failure of Respondent’s appointed medical director to substantially comply with health care clinic responsibilities under Rule 59A~33.012, Fla. Admin. Code, and Sections 400.9935(1) (a)~(g), Fla.Stat., and are grounds for the revocation or suspension of the license and assessment of a fine pursuant to Section 400.995(1), F.S. WHEREFORE, the State of Florida’s, Agency for Health Care Administration, requests that this tribunal revoke the license of Respondent; impose an administrative fine against the Respondent, a health care clinic, in the amount of three thousand dollars ($3,000.00); and impose a fee equal to the cost of conducting a complaint investigation. NOTICE OF RIGHTS Respondent is notified that it has a right to request an administrative hearing pursuant to Section 120.569, Florida Statutes. Respondent has the right to retain, and be represented by an attorney in this matter. Specific options for administrative action are set out in the attached Election of Rights. All requests for hearing shall be made to the Agency for Health Care Administration, and delivered to Agency Clerk, Agency for Health Care Administration, 2727 Mahan Drive, Bldg #3, MS #3, Tallahassee, FL 32308; whose telephone number is (850) 412-3630. RESPONDENT IS FURTHER NOTIFIED ‘THAT THE FAILURE TO REQUEST A HEARING WITHIN 21 DAYS OF RECEIPT OF THIS COMPLAINT WILL RESULT IN AN ADMISSION OF THE FACTS ALLEGED IN THE COMPLAINT AND THE ENTRY OF A FINAL ORDER BY THE AGENCY. Page 14 of 15 wy CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been served by U.S. Certified Mail, Return Receipt No. 7012 1010 0000 5357 3450 to Victor Thiagaraj Selvaraj, 2039 East Edgewood Drive, Suite 110B, Lakeland,. FL 33803 and by U.S. Mail to Robert F. Cohen, CPA, Registered Agent, 2918 Busch Lake Blvd., Tampa, FL 33614, on October Copies furnished to: Pat Caufman, FOM I es H, Harris, Esq. » Bax. No. 817775 Assistant General Counsel Agency for Health Care Administration 525 Mirror Lake Drive, 330D St. Petersburg, FL 33701 Office: 727-552-1944 Facsimile: 727-552-1440 james. harris@ahca.myflorida.com Page 15 of 15 ) STATE OF FLORIDA } AGENCY FOR HEALTH CARE ADMINISTRATION RE: MD Plus Clinic, LLC . CASE NO, 2012010800 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. 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: 850-412-3630 Fax: 850-921-0158. LE, ELECT Y 1 OF THESE 3 OPTI OPTION ONE (1) I admit to the allegations of facts and law contained in the Notice of Intent to Impose a Late Fine or Fee, or 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)____—L admit to the allegations of facts contained in the Notice of Intent to Impose a Late Fee, tle Notice of Intent to Impose a Late Fine, or 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 Notice of Intent to Impose a Late Fee, the Notice of Intent to Impose a Late Fine, or Administrative Complaint, and 1 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 ouys 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 ae Title Address: Street and number City Zip Code Telephone No. Fax No. Email(optional) I hereby 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 SE Victor Thing af 2039 East Edgewood Drive il j, Suite 1105" yo Lakeland, EL 33803 Ol2 1020 00n0 5357 3450 elOM ON DELIVERY

Docket for Case No: 12-004023