Oo Oo STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, ODYSSEY HEALTHCARE OF MARION COUNTY, LLC D/B/A GENTIVA HOSPICE Respondent. _/ ; oo. Saar ; ADMINISTRAT IVE COMPLAINT PETITIONER, the Florida Agency for Health Cate Administration (the Agency” , through undersigned counsel, files this Administrative Complaint against Odyssey Healthcare of Mation County, LLC D/B/A Gentiva Hospice (“the Respondent’) pursuant to Sections 120.569 and 120.57, Florida Statutes (2012)!, and alleges: Florida Statutes, and Florida Administrative Code Rules 59C-1,013 and 59C-1 021, 2. For the calendar year 2012 (the “calendar year”), Respondent failed to comply with the admissions condition upon its Certificate of Need (“CON”), a copy of which is attached to this complaint as Exhibit A. ‘Unless otherwise noted, all statutes and tules hereinafter cited are to the indicated year’s version of the statute or tule because this is the Controlling year in question, Page 1 of 9 | 6) ©) | JURISDICTION AND VENUE 3. This tribunal has jurisdiction over Respondent, pursuant to Sections 120.560 ; “and: 120.57, Florida Statutes, and also Sections 408.031- 408. 045, Florida’s “Health Facility and | , ‘Sorvices Development Act.” ry Venue is determined by Fi 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 commaunity nursing home laws and rules. 6. Respondent is a limited liability company authorized under the laws of Florida to . do business. Respondent operates a hospice located at 1717 North Clyde Mortis Blvd., Suite 130, © Daytona Beach, Florida 32117, and is the current certificate holder and licensee on tlie CON’ issued on October 7, 2004, for a condition to improve access by providing admissions ‘within three hours of a request for hospice services, The CON number is 9731. A copy of the CON j is attached to this complaint as Exhibit A. COUNTI Respondent failed to comply with the admissions condition Section 408.040, Florida Statutes Florida Administrative Code Rule 59C-1.013 Florida Administrative Code Rule 59C-1,021 7 AHCA re-alleges paragraphs 1-6 above, 8. The Respondent failed to comply with its admissions within three hours of a request for hospice services condition as reported to the Agency in its facility report for the year 2012, a copy of which is attached to this complaint as Exhibit B. Page 2 of 9 6) QO 9, The Respondent failed to comply with the condition set forth in. its CON, as required by Section 408.040, Florida Statutes, and Rule 59C- which provide, in part, as follows: 408,040 Conditions and monitoring - CD (a).-The-agency-may -issue-a-certificate-of-need-- upon statements of intent 6 certificate of need, Any c 1.013, Florida Administratives Code, exemption based on such statements of intent shall be Stated on the face of the certificate of need or inthe exemption approval, (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 certification is a condition of issuance of the certificate of need, The certificate-of- need program shall notify the Medicaid program office and the Department of Elderly Affairs.when it imposes conditions as authori zed in this paragraph in an area in which a community diversion pilot project is implemented, Effective July 1, 2012, the agency may not impose sanctions related to patient day utilization by patients eligible for care under Title XIX of the Social Security Act for nursing ~ homes, (c) A certificate holder or an exemption 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 or an exemption domonstrates good cause why the certificate or exemption’ should be modified, the agency shall reissue the + certificate of need or exemption with such modifications as may be appropriate, The agency shall by rule define the factors constituting good cause for modification, (d) If the holder of a ceitificate of need or an exemption fails to comply with a condition upon which the issuance of the certificate or exemption was predicated, the agency may assess an administrative fine against amount not to exceed $1,000 per failure por day. the certificate holder in an Failure to annually report compliance with any condition upon which the issuance of the certificate or exemption was predicated constitutes noncompliance. In assessing the penalty, the agency shall take into account as mitigation the degree of noncompliance. Proceeds of such penalties shall be deposited in the Public Medicaid Assistance Trust Fund, * 59C-1.013 Monitoring Procedures (3) 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 Janary 1 will report from the date operation began through December 31. The compliance report shall be submitted no tater 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 4 percentage of patient days, that are consistent with the stated condition. The Page 3 of 9 10. QO ~O following information shall be provided in the holder’s annual compliance report: J. The time period covered by the measures; 2. The measure for assessing compliance with each of the conditions identified and described on the face of the certificate of need; 3. The way in which the conditions were evaluated by applying the measures; 4. The data sources used to generate information about the conditions that were measured; 5. The person and position responsible for Supplying the compliance report; 6, Any other information necessary for the agency to determine compliance with conditions; and -7. If applicable, the reason -ov-reasons, with-supporting data,-why-the-certificate-of-need-holder-was-unable-to- - et the conditions set Tort on he Taco of the certificate of need, (b) A change in the licenses for a facility or service does not affect the obligation for that facility or service to continue to meet conditions imposed on a certificate of need and to provide annual condition compliance yeports. ‘ (c) Conditions imposed on a certificate of need may be modified consistent with Rule 59C-1,019, RAC, (4) Violatlon of Certificate of Need Conditions, Health care providers found by the agency to be in noncompliance with conditlons set forth in their certificate of need shall be fined as defined in Rule 59C-1 021, F.A.C, The foregoing violation warrants imposition of the above-mentioned fine amount pursuant to Flotida Administrative Code Rule 59C-1.021, which provides, in part: §9C-1.021 Penalties, (1) General Provisions. The agency shalt initiate administrative proceedings for revocation of a certificate of need for violation of paragraphs 408,040(2)(a) and (b), F.S., or the assessment of administrative fines for failure to comply with conditions placed on a certificate of need as specified under Rule 59C-1,013, RAC kK (3) Penalties for Failure to Comply with Certificate of Need Conditions. ‘The agency shall review the annual compliance report submitted by the health care providers who are licensed and operate the facilities or services and other pertinent data to assoss compliance with certificate of need conditions, Providers who are not in. compliance with certificate of need conditions shall be fined, For community nursing homes or hospital-based skillod nursing units certifled as such by Medicare, the first compliance report on the status of conditions must be submitted 30 calendar days following the eighteenth month of operation or the first month where an 85 percent occupancy is achieved, whichever comes first, The schedule of fines is as follows: (a) Facilitics 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 depree of noncompliance, (b) The assessed fine shall be paid to the agency within 45 calendar days after wiltten 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 teceipt 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. Page 4 of 9 @) YO 11. The Agency, in determining the penalty imposed, considered the degeree of toncompliance, WHEREFORE, the Agency requests that the Agency action be upheld. ‘AGENCY FOR HEALTHCARE ADMINISTRATIOQ | By Réchard? Tosopph Sahtha Richard Joseph Saliba, Esquire Assistant General Counsel Florida Bar No, 0240389 2727 Mahan Drive, Building #3, MS #3 Tallahassee, Florida 32303 (850) 412-3666 Telephone (Direct) (850) 922-6484 Facsimile Richard,Saliba@ahca.myflorida.com NOTICE The Respondent has the right to request a hearing to be conducted in accordance with ‘Sections 120.569 and 120.57, Florida Statutes, and to be represented by counsel or other qualified representative, Specific options for the administrative action ave set out Within 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 shail 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) 412-3630 Page 5 of 9 XY —) CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the original Adminisirative Coniplaint, Expl anation _ . of Rights form, and Election of Rights form have been sent by U.S. Certified Mail, Return "Receipt Requested (receipt # 7T11 1570-0000 3003. 9182) 4 Respondent Attonton: Ms. Melis pre etter ate a Kirch, Gentiva, 12900 Foster, Suite 400, Overland Park, KS, 66213 on this 26 day of June 2013. . AGENCY FOR HEALTHCARE ADMINISTRATION : By Réchardé Lesoph ‘Saltha Richard Joseph Saliba, Esquire Assistant General Counsel Florida Bat No, 0240389 2727 Mahan Drive, Building #3, MS #3 Tallahassee, Florida 32303 (850) 412.3666 Telephone (Direct) (850) 922.6484 Facsimile : Richard.Saliba@alica.myflorida,com Page 6 of 9 GO —. 9g EXHIBITS (AHCA v. Odyssey Healthcare of. ‘Marion County, LLC, d/b/a Gentiva Hospice. Case No. 2013006668) ; providing admissions within threo hours of a request for hospice services, EXHIBIT “B”— Respondent's facility report for Year 2012. (All are copies) Page 7 of 9 Q QO STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION RE: Odyssey Healthcare of Marion County, LLC Case No. 2013006668. d/b/a Gentiva Hospice ELECTIONOFRIGHTS This Election of Rights form is attached to a proposed agency 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 may be returned by mail or by facsimile transmission, but must be filed within 21 days of the day you receive the attached 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 21 days of the day you received this proposed agency action by.AHCA, you will have given up your right to contest the 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 (2009), and Chapter 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 Telephone: 850-412-3630 . Facsimile: 850-921-0158 PLEASE SELECT ONLY 1 OF THESE 3 OPTIONS OPTION ONE (1) ‘l-admit to the allegations of facts and law contained in the Notice of Intent to Impose a Late Fee, Notice of Intent to Impose a Late Fine, or Administrative Complaint and I waive my right to object and to have a hearing, | 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 Notice of - Intent to Impose a Late Fee, 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. Page 8 of 9 Q 9 OPTION THREE (3) _I dispute the allegations of fact contained in the Notice of Intent to Impose a Late Fee, Notice of Intent to Impose a Late Fine, or Administrative Complaint, and I request a formal hearing (pursuant to Section 120.57(1), Florida Statutes) before an Administrative Law Judge appointed by the Division of Administrative Heatin gs, PLEASE NOTE: Choosing OPTION THREE (3), by r itself, is. NOT sufficient-to-o%y ain ‘iw 0 ‘ain a formal hearing nder Section 120.57(1), Florida Statutes, It in 21 days of your receipt of this quest for formal heating must conform to the requirements of Rule 28-106.2015, Florida Administrative Code, which requires that it contain: I. 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 aro none, you must state that there are none, : Mediation under Section 120.573, Florida Statutes, may be available in this matter if the A geney agrees, ; ; ' License Type: (ALF? Nursing Home? Medical Equipment? Other Type?) Licensee Name: License Number: Or ——. Contact Person; Name Title - Address: . Number and Street City Zip Code Telephone No. Fax No, E-Mail (optional) I hereby certify that I am duly authorized to submit this Election of Rights to the Agency for Health Care Administration on behalf of the licensee referred to above. . Signed: Date: I ——_.__. Print Name: Title: Page 9 of 9 ICG SENDER: COMPLETE THIS TON COMPLETE HHS SECTION ON DELIVERY GERTIFIED MAIL. RE, a er ance eee APA. Slongtate — eee 7 nestic Mail Only; No insurance. 7 Vo A ae Bee (Comestic X Wyo EP Agent | : E] Addresses wr F B, Ragaven byogpanipd Nama) |G, Dataot Delivery ith yf ALée . ; = Gentiva 1 1, Arilole Addressed to: IF YES, enter delivery address below: a No Suite 400: ; “ teccare g 12900 anadt KS 66213. Attention: Ms. Melissa Kirch enter Overland Park, : Gentiva. 2 ge ’ : . 12900 Roster; Suite.400..” fa Overland Park, KS 66213 . ped Total Postage & Fees L$ ee , . 8. Service Type . a __ Bi Certified Mall (1 Express Matt es C1 Regtetered Hf Return Racolpt for Merchandise ra swaacapener on ©) insured Mall 129 6,0.D. . . a or POBox No, " ° 4, Restricted Dalivery? (Extra Fea) Clig ‘Bates za POLL 1570 000 3003 3182 tothe ttneedn treiee ream sintnrynmstenprema PS Form 3811, February 2004 Ay O Yes Domestic Return Recelpt 102598-02-M-1840 ~

Docket for Case No: 13-002797

Orders for Case No: 13-002797