STATE OF FLORIDA AGENCY FOR HEALTH.CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, . Case No. 2013004406 vs, XTREME MEDICAL CENTER CORP, Respondent. / ADMINISTRATIVE COMPLAINT COMES NOW, Petitioner, Agency for Health Care Administration (hereinafter Agency), by and through the undersigned counsel, and files this Administrative Complaint against Respondent, XTREME MEDICAL CENTER CORP. (hereinafter Respondent), pursuant to Section 120.569, and 120.57, Florida Statutes, (2011), and alleges: NATURE OF THE ACTION . This is an action to revoke the health care clinic license of Respondent, and to impose a fine of $10,000 pursuant to ‘Sections 400.9935, 400.995(1) and 408.831, Florida Statutes (2012), - and Rule 59A-33.008, Florida Administrative Code. PARTIES 1, The Agency is the regulatory authority responsible for issuance of health care clinic licenses and enforcement of all applicable state statutes and rules governing licensure pursuant to Part X, Chapter 400; Part II, Chapter 408, Florida Statutes (2012); and Rule 59A-33, Florida Administrative Code. 2. Respondent holds health care clinic license number HCC9505, and is thereby subject to the jurisdiction of the Agency. Section 400.9935, Florida Statutes (2012), provides, in pertinent part: 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. (b) 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. (f) Ensure compliance with the recordkeeping, office surgery, and adverse incident reporting requirements of chapter 456, the respective practice acts, and rules adopted under this part and part Il 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. (h) Not refer a patient to the clinic if the clinic performs magnetic resonance imaging, static radiographs, computed tomography, or positron emission tomography. The term “refer a patient” means the referral of one or more patients of the medical or clinical director or a member of the medical or clinical director’s group practice to the clinic for magnetic resonance imaging, static radiographs, computed tomography, or positron emission tomography. A medical director who is found to violate this paragraph commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s, 775,084. (i) Ensure that the clinic publishes a schedule of charges for the medical services offered to patients. The schedule must include the prices charged to an uninsured person paying for such services by cash, check, credit card, or debit card. The schedule must be posted in a conspicuous place in the reception area of the urgent care center and must include, but is not limited to, the 50 services most frequently provided by the clinic. The schedule may group services by three price levels, listing services in each price level. The posting must be at least 15 square feet in size. The failure of a clinic to publish and post a schedule of charges as required by this section shall result in a fine of not more than $1,000, per day, until the schedule is published and posted. (2) Any contract to serve as a medical director or a clinic director entered into or renewed by a physician or a licensed health care practitioner in violation of this part is void as contrary to public ' policy. This subsection shall apply to contracts enteréd into or renewed on or after March 1, 2004. Section 408.831, Florida Statutes (2012) provides: 408.831 Denial, suspension, or revocation of a license, registration, certificate, or application — (1) In addition to any other remedies provided by law, the agency may deny each application or suspend or revoke each license, registration, or certificate of entities regulated or licensed by it: (a) Ifthe applicant, licensee, or a licensee subject to this part which shares a common controlling interest with the applicant has failed to pay all outstanding fines, liens, or overpayments assessed by final order of the agency or final order of the Centers for Medicare and Medicaid Services, not subject to further appeal, unless a repayment plan is approved by the agency; or (b) For failure to comply with any repayment plan. (2) In reviewing any application requesting a change of ownership or change of the licensee, registrant, or certificateholder, the transferor shall, prior to agency approval of the change, repay or make arrangements to repay any amounts owed to the agency. Should the transferor fail to repay or make arrangements to repay the amounts owed to the agency, the issuance of a license, registration, or certificate to the transferee shall be delayed until repayment or until arrangements for repayment are made. (3) This section provides standards of enforcement applicable to all entities licensed or regulated by the Agency for Health Care Administration. This section controls over any conflicting provisions of chapters 39, 383, 390, 391, 394, 395, 400, 408, 429, 468, 483, and 765 or rules adopted pursuant to those chapters. Rule 59A-33.008, F.A.C., provides in pertinent part: 59A-33.008 Medical or Clinic Director. (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.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 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 shal! be grounds for revocation of the license in addition to the assessment of fines pursuant to Section 400.995 (1), F.S. (4) Unless otherwise exempted by law, an application for a change in the medical ot clinic director shall be accompanied by a fingerprint card of the new medical or clinic director together with the required processing fee for background screening of that individual. Section 400.995, Florida Statutes (2011), 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. (d) The financial benefit to the clinic of committing or continuing the violation. (2) Each 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. (3) Any action taken to correct a violation shall be documented in writing by the owner, medical director; or clinic director of the clinic and verified through follow up visits by agency personnel. The agency may impose a fine and, in the case of an owner- operated clinic, revoke or deny a clinic’s license when a clinic medical director or clinic director knowingly misrepresents actions taken to correct a violation. (4) Any licensed clinic whose owner, medical director, or clinic director concurrently operates an unlicensed clinic shall be subject to an administrative fine of $5,000 per day. (5) Any clinic whose owner fails to apply for a change-of- ownership license and operates the clinic under the new ownership is subject to a fine of $5,000. (6) During an inspection, the agency shall make a reasonable attempt to discuss each violation with the owner, medical director, or clinic director of the clinic, prior to written notification. 7. On March 15, 2013, the Agency received a letter from Dr. Juliet Lee, advising the Agency that he was no longer the medical director of Respondent effective March 17, 2013. 8. On March 20, 2013, the Agency notified the Respondent by certified mail, delivered March 22, 3013, that the clinic could not operate without a medical director, and requested information regarding the new medical director. The Respondent did not respond to the Agency’s inquiries. 9. On the basis of the foregoing, Respondent operated a health care clinic without the required medical director. 10. The Respondent has violated the administrative rules and statutes set forth herein above by operating without a medical director as required and by failing to provide information required and requested by the Agency. WHEREFORE, the Agency intends to revoke Respondent's health care clinic license, and impose a fine of $10,000, pursuant to Sections 400.995 and 408.831(1)(3), Florida Statutes (2011), and Rule 59A-33.008, F.A.C.. ) CLAIM FOR RELIEF WHEREFORE, the Petitioner, State of Florida, Agency for Health Care Administration, respectfully requests the Court to grant the following relief: A. Enter findings of fact and conclusions of law in favor of the Agency as set forth in the complaint, specifically sustaining the sanctions sought to be imposed hereby. B. Order ‘any other relief deemed appropriate. RESPECTFULLY SUBMITTED this_2“ day. of May, 2013. fer‘Health Care Administration 2727 Mahan Drive, MS-3 Tallahassee, FL 32308. Telephone 850-412-3638 Facsimile 850-921-0158 NOTICE The Respondent is notified that it has the right to request an administrative hearing pursuant to Sections 120.569 and 120.57, Florida Statutes, If the Respondent wants to hire an attorney, it/he/she has the right to be represented by an attorney in this matter. Specific options for administrative action are set out in the attached Election of Rights form. The Respondent is further notified if the Election of Rights form is not received by the Agency for Health Care Administration within twenty-one (21) days of the receipt of this Administrative Complaint, a final order will be entered. : The Election of Rights form shall be made to the Agency for Health Care Administration and delivered to: Agency Clerk, Agency for Health Care Administration, 2727 Mahan Drive, Building 3, Mail Stop 3, Tallahassee, FL 32308; Telephone (850) 922-5873. CERTIFICATE OF SERVICE IT HEREBY CERTIFY that a true and correct copy of the Administrative Complaint and Election of Rights form were served to: Yanelys Fundora, REGISTERED AGENT, XTREME MEDICAL CENTER CORP., 12809 SW 42" Street, Miami, FL 33175 by U.S. Certified Mail, Return Receipt No. 7011 1570 0000 3003 8680 this 2» day of May, 2013. Wai Bird, Esquire Agehoy’for Health Care Administration Copies furnished to: Yanelys Fundora, REGISTERED AGENT Warren J. Bird, Esquire OWNER Assistant General Counsel XTREME MEDICAL CENTER CORP. Office of the General Counsel 12809 Sw 42™4 Street, Miami, FL 33175 Agency for Health Care Administration (US. Certified Mail) 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308 (Interoffice) Thomas Jones Unit Manager Health Care Clinic Unit Agency for Health Care Administration 2727 Mahan Drive MS-53 Tallahassee, FL 32308 Unteroffice) EXHIBIT #3 Statutes & Constitution :View Statutes : Online Sunshine Page 1 of 4 Select Year: The 2012 Florida Statutes Title XXIX Chapter 400 View Entire PUBLIC NURSING HOMES AND RELATED HEALTH CARE Chapter HEALTH FACILITIES 400.9905 _ Definitions.— (1) “Agency” means the Agency for Health Care Administration. (2) “Applicant” means an individual owner, corporation, partnership, firm, business, association, or other entity that owns or controls, directly or indirectly, 5 percent or more of an interest in the clinic and that applies for a clinic license, (3) “Chief financial officer” means an individual who has at least a minimum of a bachelor’s degree from an accredited university in accounting or finance, or a related field, and who is the person responsible for the preparation of a clinic’s billing. (4) “Clinic” means an entity where health care services are provided to individuals and which tenders charges for reimbursement for such services, including a mobile clinic and a portable equipment provider. As used in this part, the term does not include and the licensure requirements of this part do not apply to: (a) ‘Entities licensed or registered by the state under chapter 395; entities licensed or registered by the state and providing only health care services within the scope of services authorized under their respective licenses under ss. 383.30-383.335, chapter 390, chapter 394, chapter 397, this chapter except part X, chapter 429, chapter 463, chapter 465, chapter 466, chapter 478, part | of chapter 483, chapter 484, or chapter 651; end-stage renal disease providers authorized under 42 C.F.R. part 405, subpart U; providers certified under 42 C.F.R. part 485, subpart B or subpart H; or any entity that provides neonatal or pediatric hospital-based health care services or other health care services by licensed practitioners solely within a hospital licensed under chapter 395. (b) Entities that own, directly or indirectly, entities licensed or registered by the state pursuant to chapter 395; entities that own, directly or indirectly, entities licensed or registered by the state and providing only health care services within the scope of services authorized pursuant to their respective licenses under ss. 383.30-383.335, chapter 390, chapter 394, chapter 397, this chapter except part X, : chapter 429, chapter 463, chapter 465, chapter 466, chapter 478, part | of chapter 483, chapter 484, tor chapter 651; end-stage renal disease providers authorized under 42 C.F.R. part 405, subpart U; providers certified under 42 C.F.R. part 485, subpart B or subpart H; or any entity that provides neonatal or pediatric hospital-based health care services by licensed practitioners solely within a hospital licensed under chapter 395. (c) Entities that are owned, directly or indirectly, by an entity licensed or registered by the state pursuant to chapter 395; entities that are owned, directly or indirectly, by an entity licensed or registered by the state and providing only health care services within the scope of services authorized pursuant to their respective licenses under $s. 383,30-383.335, chapter 390, chapter 394, chapter 397, this chapter except part X, chapter 429, chapter 463, chapter 465, chapter 466, chapter 478, part | of http://www.leg.state fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String... 5/22/2013 Statutes & Constitution :View Statutes : Online Sunshine Page 2 of 4 chapter 483, chapter 484, or chapter 651; end-stage renal disease providers authorized under 42 C.F.R. part 405, subpart U; providers certified under 42 C.F.R. part 485, subpart B or subpart H; or any entity that provides neonatal or pediatric hospital-based health care services by licensed practitioners solely within a hospital under chapter 395. (d) Entities that are under common ownership, directly or indirectly, with an entity licensed or registered by the state pursuant to chapter 395; entities that are under common ownership, directly or indirectly, with an entity licensed or registered by the state and providing only health care services within the scope of services authorized pursuant to their respective licenses under ss, 383.30-383.335, chapter 390, chapter 394, chapter 397, this chapter except part X, chapter 429, chapter 463, chapter 465, chapter 466, chapter 478, part | of chapter 483, chapter 484, or chapter 651; end-stage renal disease providers authorized under 42 C.F.R. part 405, subpart U; providers certified under 42 C.F.R. part 485, subpart B or subpart H; or any entity that provides neonatal or pediatric hospital-based health care services by licensed practitioners solely within a hospital licensed under chapter 395. (e) An entity that is exempt from federal taxation under 26 U.S.C. s. 501(c)(3) or (4), an employee stock ownership plan under 26 U.S.C. s. 409 that has a board of trustees at least two-thirds of which are Florida-licensed health care practitioners and provides only physical therapy services under physician orders, any community college or university clinic, and any entity owned or operated by the federal or state government, including agencies, subdivisions, or municipalities thereof. (f) A-sole proprietorship, group practice, partnership, or corporation that provides health care services by physicians covered by s. 627.419, that is directly supervised by one or more of such physicians, and that is wholly owned by one or more of those physicians or by a physician and the spouse, parent, child, or sibling of that physician. (g) Asole proprietorship, group practice, partnership, or corporation that provides health care services by licensed health care practitioners under chapter 457, chapter 458, chapter 459, chapter 460, chapter 461, chapter 462, chapter 463, chapter 466, chapter 467, chapter 480, chapter 484, chapter 486, chapter 490, chapter 491, or part |, part Hl, part X, part XII, or part XIV of chapter 468, or s. 464.012, and that is wholly owned by one or more licensed health care practitioners, or the licensed health care practitioners set forth in this paragraph and the spouse, parent, child, or sibling of a licensed health care practitioner if one of the owners who is a licensed health care practitioner is supervising the business activities and is legally responsible for the entity’s compliance with all federal and state laws. However, a health care practitioner may not supervise services beyond the scope of the practitioner’s license, except that, for the purposes of this part, a clinic owned by a licensee in s. 456.053(3)(b) which provides only services authorized pursuant to s. 456.053(3)(b) may be supervised by a licensee specified in s. 456.053(3)(b). (h) Clinical facilities affiliated with an accredited medical school at which training is provided for medical students, residents, or fellows. (i) Entities that provide only oncology or radiation therapy services by physicians licensed under chapter 458 or chapter 459 or entities that provide oncology or radiation therapy services by physicians licensed under chapter 458 or chapter 459 which are owned by a corporation whose shares are publicly traded on a recognized stock exchange. (j) Clinical facilities affiliated with a college of chiropractic accredited by the Council on Chiropractic Education at which training is provided for chiropractic students. (k) Entities that provide licensed practitioners to staff emergency departments or to deliver anesthesia services in facilities licensed under chapter 395 and that derive at least 90 percent of their _ http:/Awww.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String... 5/22/2013 Statutes & Constitution : View Statutes : Online Sunshine Page 3 of 4 gross annual revenues from the provision of such services. Entities claiming an exemption from licensure under this paragraph must provide documentation demonstrating compliance. (\) Orthotic or prosthetic clinical facilities that are a publicly traded corporation or that are wholly owned, directly or indirectly, by a publicly traded corporation. As used in this paragraph, a publicly traded corporation is a corporation that issues securities traded on an exchange registered with the United States Securities and Exchange Commission as a national securities exchange. (m) Entities that are owned by a corporation that has $250 million or more in total annual sales of health care services provided by licensed health care practitioners where one or more of the owners is a health care practitioner who is licensed in this state and who is responsible for supervising the business activities of the entity and is legally responsible for the entity’s compliance with state law for purposes of this part. (n) Entities that employ 50 or more licensed health care practitioners licensed under chapter 458 or chapter 459 where the billing for medical services is under a single tax identification number. The application for exemption under this subsection shall contain information that includes: the name, residence, and business address and phone number of the entity that owns the practice; a complete list of the names and contact information of all the officers and directors of the corporation; the name, residence address, business address, and medical license number of each licensed Florida health care practitioner employed by the entity; the corporate tax identification number of the entity seeking an exemption; a listing of health care services to be provided by the entity at the health care clinics owned or operated by the entity and a certified statement prepared by an independent certified public accountant which states that the entity and the health care clinics owned or operated by the entity have not received payment for health care services under personal injury protection insurance coverage. for the preceding year. If the agency determines that an entity which is exempt under this subsection has received payments for medical services under personal injury protection insurance coverage, the agency may deny or revoke the exemption from licensure under this subsection. Notwithstanding this subsection, an entity shall be deemed a clinic and must be licensed under this part in order to receive reimbursement under the Florida Motor Vehicle No-Fault Law, ss. 627.730-627.7405, unless exempted under s. 627.736(5)(h). (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, 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). (6) “Mobile clinic” means a movable or detached self-contained health care unit within or from which direct health care services are provided to individuals and which otherwise meets the definition of a clinic in subsection (4). (7) “Portable equipment provider” means an entity that contracts with or employs persons to provide portable equipment to multiple locations performing treatment or diagnostic testing of http://www. leg.state.fl_us/Statutes/index.cfm?App_mode=Display_Statute&Search_String... 5/22/2013 Statutes &.Constitution :View Statutes : Online Sunshine Page 4 of 4 individuals, that bills third-party payors for those services, and that otherwise meets the definition of a Clinic in subsection (4). History.—s. 4, ch. 2003-411; s. 14, ch. 2004-298; ss. 26, 33, ch. 2004-350; s. 1, ch. 2005-262; s. 7, ch. 2006-1923 s. 71, ch. 2006-197; s. 122, ch. 2007-230; s. 38, ch. 2012-160; s. 2, ch. 2012-197. 1Note.—The word “or” was inserted by the editors. 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Docket for Case No: 13-002079

Orders for Case No: 13-002079