The Issue The issue is whether Respondents are guilty of misconduct in the enrollment of various minors into health maintenance organizations and, if so, what penalty should be imposed.
Findings Of Fact At all relevant times, each Respondent has been licensed in Florida as a life, life and health, and health insurance agent. In March 1998, Respondents were employed by Wellcare HMO, a health maintenance organization, to solicit and procure applications for enrollment in its subsidiary, StayWell HMO. There is little dispute between the parties as to the direct evidentiary facts of the cases. Respondent Larotunda has sold multiline insurance for 16 years. Respondent Law has sold predominantly health insurance for 32 years. Respondent Larotunda has sold insurance in Florida since 1989, and Respondent Law has sold insurance in Florida since 1981. The StayWell coverage is a Medicaid supplement characterized by easy enrollment features. Respondent Larotunda sold this insurance from November 3, 1997, through April 1998. Respondent Law sold this insurance from January 26, 1998, through April 1998. At times selling the StayWell insurance together, Respondents would work low-income housing projects. Most of the time, they would sell the StayWell insurance door-to-door. Sometimes, they would park a Winnebago in the neighborhood, play rap music, provide minor entertainment in the form of a clown, set up a nurse at a table to take blood pressure readings, and give away small gifts, such as frisbees, or hotdogs and sodas. StayWell paid for these promotional expenses. In this manner, Respondents submitted roughly 1000 applications monthly. They earned a salary plus a commission. However, probably ninety percent of the applications that they submitted contained erroneous information, resulting in the rejection of the application. Their employment agreements provide for recoupment of commissions if enrollees drop their coverage in the first three months. To sign up dependents, StayWell required the child's first name, last name, and date of birth. Respondents were not required to check some form of identification cards, which would have been impractical for their market. Frequently, children did not bear the same last names as the parents or guardians. In each of the alleged transactions in these cases, the facts are the same: children were enrolled in the StayWell program without the knowledge of their parents. Sometimes the change in coverage cost the parents substantial sums of money, as they had to pay out-of-pocket for expenses their previous coverage had paid. However, in each case, Respondents deny any knowledge concerning these particular applications, having taken so many applications in relatively short periods of time. Respondents freely concede that the adult enrolling a child may have merely been the child's noncustodial uncle or babysitter, but Respondents would have no way of knowing this. Petitioner has failed to prove by clear and convincing evidence that Respondents were in any way culpable for the improper enrollments that took place in these cases.
Recommendation It is RECOMMENDED that the Department of Insurance enter a final order dismissing the Amended Administrative Complaints against both Respondents. DONE AND ENTERED this 7th day of March, 2001, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of March, 2001. COPIES FURNISHED: Honorable Tom Gallagher Department of Insurance State Treasurer/Insurance Commissioner The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0300 Daniel Y. Sumner, General Counsel Department of Insurance The Capitol, Lower Level 26 Tallahassee, Florida 32399-0307 James A. Bossart Department of Insurance 612 Larson Building Tallahassee, Florida 32399-0300 Roy W. Foxall 2222 Second Street Fort Myers, Florida 33901
The Issue The primary issue in this case is whether Petitioner's application for licensure as a home health agency was complete upon Petitioner's submission of additional information to Respondent within 21 days after Respondent had timely notified Petitioner of the need to provide additional information. If Petitioner failed to provide Respondent with information which Respondent timely requested, then Respondent may deny Petitioner's application as incomplete, as it intended to do, provided the information Respondent sought is information Respondent is permitted by law to require. On the other hand, if Petitioner's application was complete, then Petitioner's application is "considered approved," because Respondent failed to grant or deny the application within 60 days after receiving additional information from Petitioner; in that event, a license must be issued to Petitioner, subject to reasonable conditions authorized by law.
Findings Of Fact The Agency for Health Care Administration ("Agency" or "AHCA") is the state agency responsible for regulating home health agencies in Florida. In this capacity, the Agency determines whether to approve applications for licensure as a home health agency, and it has administrative jurisdiction to enforce the laws governing such licensees, including the authority to take disciplinary measures against licensees who violate the applicable statutes and rules. MVP Health, Inc. ("MVP"), is a corporation which, for a time relevant to this case, held a license to operate as a home health agency. On June 11, 2009, MVP filed an application with AHCA seeking to obtain a new home health agency license, notwithstanding that it was already licensed. Prompting this seemingly unusual maneuver was the recent acquisition of 100 percent of the company's equity by an individual named Rey Gomez, who had bought out the other shareholders. About one week after submitting its application to AHCA, MVP voluntarily stopped operating as a home health agency under its then- existing license. Pursuant to Sections 120.60(1) and 408.806(3), Florida Statutes, which will be examined below, the Agency was required to notify MVP, within 30 days after receiving MVP's application for licensure, of any errors, omissions, or requests for additional information. By letter dated July 10, 2009 (the "Omissions Letter"), the Agency timely gave MVP such a notice, which provided, in pertinent part, as follows: Your application for a home health agency license has been reviewed and was found to be incomplete. Applicants for licensure will receive only one omission letter describing the corrections, omissions or revisions needed to complete the application. If the response to the omission letter does not satisfactorily address what is outlined below, the application will be denied. Therefore, pursuant to section 408.806(3)(b), Florida Statutes, no further action can be taken until the following is received: * * * Include a separate list showing all health care entities licensed or registered in the State of Florida that are also owned in whole or in part by each of your controlling interests as required by subsection 400.471(2)(g), F.S. Controlling interests as defined in [section] 408.803, F.S., include the applicant or licensee; a person or entity that serves as an officer of, is on the board of directors[,] or has a 5 percent or greater ownership interest in the management company or other entity, related or unrelated[,] with which the applicant or licensee contracts to manage the provider. The term does not include a voluntary board member. * * * You have listed Rey Gomez as the sole owner of MVP Health Inc. We currently have a licensed home health agency, MVP Health Inc., HHA #29992195, which our records show as being owned by Virginia Duby, Michael Lee, and Priscilla Lee. We cannot process an initial application for licensure from a company for which we currently have an active license if the owners of record on that existing license differ from the owners of record on the new application. A change of ownership application was recently filed for that agency but that application was denied and withdrawn. Since then we have come to understand that this company's ownership was in dispute. Please submit documentation that the legal issues of ownership of this company have been finally resolved. Please eliminate any inconsistencies in the ownership of this company regarding this initial licensure application and HHA #29992195. Please complete #2A Individual and/or Entity Ownership of Licensee on Health Care Licensing Application page 2 of 5 per reporting requirements of Chapter 408, Part II, Florida Statutes. * * * Please send the required information no later than 21 days from the receipt of this letter. If the applicant fails to submit all of the information required in the application within 21 days of being notified by AHCA of the omissions, the application will be denied and the fees shall be forfeited as required in subsection 408.806(3)(b), Florida Statutes. (Boldface and underlining in original.) There were, listed in the Omissions Letter, other items as to which the Agency wanted additional information, but none of these later became the subject of dispute, and thus they require no further mention. Following instructions, MVP filed the requested additional information with AHCA on July 24, 2009, a date which was well within 21 days after MVP's receipt of the Omissions Letter. In its supplemental filing, as it had done previously in its application, MVP identified Mr. Gomez and his wife, Zenaida, as the corporation's only "controlling interests," and represented that neither of them owned any part of any other health care entities. MVP asserted also that Mr. Gomez was its sole shareholder, just as it had done in the application. On August 13, 2009, MVP voluntarily relinquished its then-existing home health agency license. This was done in response to the Agency's assertion, in the Omissions Letter, that the Agency "cannot process an initial application for licensure from a company for which we currently have an active license if the owners of record on that existing license differ from the owners of record on the new application." At the time, Mr. Gomez believed that AHCA soon would issue MVP a new license, whereupon MVP would be authorized to resume operations as a home health agency. The Agency, however, did not soon issue a license to MVP. Instead, by letter dated October 20, 2009, which was captioned, "Notice of Intent to Deem Application Incomplete and Withdrawn From Further Review" (the "Withdrawal Notice"), the Agency informed MVP that its application had been deemed incomplete and would be withdrawn from further consideration.1 The Agency described the "outstanding issues remaining for licensure" as follows: The applicant could not provide proof of ownership of MVP Health Inc. The ownership of this company has been in dispute for over a year. The applicant was asked to provide proof of ownership of the company but did not do so. A call to the Clerk of Courts in Miami revealed that there is an ongoing legal dispute that has not been resolved regarding the ownership of MVP Health Inc. Rey Gomez claims to be the sole owner, however, there are three previous owners who are involved in the ownership dispute that is ongoing. The Agency cannot issue a license to a corporation where the ownership is not clear. * * * The applicant's accreditation was terminated due to not providing services since June of 2009. The home health agency submitted a change of ownership application which was subsequently withdrawn and the license was voluntarily terminated. The applicant applied for an initial home health license after the original license was voluntarily terminated. In so doing, the applicant needed to secure accreditation within 120 days of receipt of the initial application in the Home Care Unit. That date would have been October 8, 2009. * * * The applicant did not provide a list of all health care entities licensed or registered in the State of Florida that are also owned by each controlling interest. In its Proposed Recommended Order, which was filed after the final hearing in this case, the Agency conceded that because "no evidence was entered to contradict" Mr. Gomez's testimony that "neither he nor MVP Health, Inc. had an ownership interest in any other health care facility," MVP "has met [its] burden and must prevail on this point." The undersigned agrees that, with regard to Item #3 in the foregoing list of alleged deficiencies, MVP's application was complete, as a matter of ultimate fact, no later than July 24, 2009, contrary to AHCA's preliminary determination. No further discussion of this point is required. Regarding Item #1, it is the Agency's position that MVP did not——and indeed could not possibly have——provided "proof" that "the legal issues of ownership of [MVP] have been finally resolved." This contention is based on several undisputed facts (to which the parties stipulated), namely: (1) Several persons brought suit in the circuit court in Miami-Dade County seeking to establish that they own, in the aggregate, 40 percent of MVP's equity, as against Mr. Gomez's claim to be the company's sole shareholder; (2) On October 28, 2009, the trial court entered a judgment in Mr. Gomez's favor in this litigation, determining that he owns 100 percent of MVP's shares; and (3) As of the final hearing in this case, an appeal from that judgment was pending in the Third District Court of Appeal. The Agency argues that the mere existence of the ongoing litigation clouds the issue of MVP's ownership, which in turn necessarily makes MVP unable to "prove" Mr. Gomez's claim of ownership, and that, without such proof, the Agency is precluded from issuing a license. There are two problems with AHCA's contention. First, the mere fact that some persons (who are not parties to, and did not testify in, this proceeding) dispute certain statements in MVP's application, i.e., that (a) Mr. Gomez owns 100 percent of MVP's shares, and (b) Mr. Gomez and his wife are the only two "controlling interests" of the company, is not terribly persuasive evidence that MVP's statements, which were made under oath, are untrue. In this case, Mr. Gomez testified credibly that he is MVP's sole owner, and that he and Mrs. Gomez are the company's officers. Mr. Gomez's testimony in this regard is corroborated by the stipulated fact that a judgment vindicating Mr. Gomez's claim of ownership was rendered in a legal proceeding brought specifically to defeat such claim. On the present record, the undersigned does not hesitate to find, based on a preponderance of the evidence, that the statements in MVP's application regarding its owner and officers were true and complete. Second, however, and more important, the issue in this case is not whether MVP's statements regarding ownership were true and complete, but whether such statements were complete. This is because AHCA did not deny MVP's application on the grounds that Mr. Gomez is not, in fact, the sole shareholder; that MVP made a material misrepresentation in, or omitted a material fact from, its application2; or even that the ongoing litigation is a per se barrier to the issuance of a license (although the Agency seems to believe that this latter proposition is true). Rather, the Agency deemed incomplete MVP's application, and on that basis refused to consider whether the application should be granted or denied "on the merits." To be sure, the effect of AHCA's intended action, if implemented, would be indistinguishable from denial; indeed, such action——the withdrawal of an allegedly incomplete application——properly can be (and sometimes is3) called a denial. But the basis of the action would be materially different from that justifying the denial of a completed application. Simply put, the failure of an applicant to meet the criteria for a license, which results in a denial on the merits, is not, as a logical matter, equal to the failure of an applicant to timely provide requested information (or correct an identified error or omission), which results, as a procedural matter, in a refusal to consider (or to deny) an application consequently deemed to be incomplete. It is one thing, in other words, to say, based on all the necessary information, that a person is ineligible for licensure. It is another thing to say that the person's eligibility cannot and will not be determined because the person has failed to provide all of the necessary information upon which such a determination must be based. Because the Agency has taken the position that MVP failed to submit all of the information that the Agency needed in order to make a decision whether or not to grant MVP's application for licensure, the question in this case is not whether MVP in fact meets the criteria for licensure, but whether MVP timely provided AHCA with all of the information which the Agency requested and was permitted by law to require. The evidence in this case establishes clearly, and the undersigned finds, that MVP timely provided AHCA with all of the legally required information concerning its owner and officers for which it was asked. As will be discussed below, the law neither requires that an applicant provide, nor authorizes the Agency to demand, as a prerequisite to licensure, "proof of [corporate] ownership" in the form of a final judicial determination of such issue where a legal dispute has arisen. To the extent AHCA sought to require such information from MVP, AHCA was not permitted by law to do so, and thus MVP's application cannot be "deemed incomplete" based on MVP's "failure" to provide such proof (which in this instance did not even exist). MVP identified its owner and officers and provided AHCA with identifying information about them in accordance with the applicable law. No more was required of MVP to make its application complete in regard to matter of ownership.4 It is determined as a matter of ultimate fact that, with regard to Item #1 in the Withdrawal Notice, MVP's application was complete as of July 24, 2009, at the latest. Item #2 in the Withdrawal Notice, which raised the issue of accreditation for the first time, requires consideration of additional facts not previously discussed. At the time MVP submitted its application to AHCA, MVP was fully accredited by an appropriate accrediting organization known as The Joint Commission. This accreditation was effective beginning February 3, 2009, and was valid for up to 39 months. MVP's accreditation remained in effect up to, and beyond, the date of AHCA's Withdrawal Notice, wherein the Agency mistakenly stated that MVP's accreditation had been terminated (as of October 20, 2009). In fact, MVP's accreditation remained valid until at least October 27, 2009, on which date The Joint Commission issued a letter to Mr. Gomez that provided as follows: The Joint Commission was notified that MVP Health, Inc. closed effective 6/19/2009 and that your organizations [sic] license was surrendered to the state on 8/13/2009. In order to complete the process of removing the organization, MVP Health, Inc., and all of its services from our records, please return to the Joint Commission the Certificate of Accreditation, since the certificate and all copies remain the property of The Joint Commission. We will update our records accordingly. The parties stipulated that, as of the final hearing in this case, MVP was not accredited by The Joint Commission or any other accrediting organization. As will be discussed below, Section 400.471(2)(h), Florida Statutes, provides unambiguously that a home health agency must maintain accreditation to maintain licensure. Mr. Gomez believes, based on conversations he has had with The Joint Commission, that The Joint Commission would reinstate MVP's accreditation, without the need for MVP to reapply for accreditation, if AHCA were to indicate that MVP will be licensed. While Mr. Gomez's testimony in this regard is not a legally sufficient basis upon which to find that The Joint Commission is, in fact, prepared to reinstate MVP's accreditation, Mr. Gomez's credibly articulated belief nevertheless persuades the undersigned to find that the possibility of such reinstatement exists, should a clear path to MVP's licensure emerge. The posture of this case is such that the question at hand is not whether MVP's application should be denied for failure to maintain accreditation, as the Agency urges; the question is whether MVP's application should be withdrawn from further consideration as incomplete. The answer to that question is clearly no because, as will be seen, the law prohibits an agency from denying an application for licensure for failure to correct an error or omission or to supply additional information unless the agency notified the applicant of the error, omission, or need for additional information within 30 days after receiving the application. In this case, the Agency did not notify MVP that there was any issue regarding MVP's accreditation until long after this statutory deadline had passed. Indeed, MVP was still accredited 30 days after submitting its application, and the company remained accredited for more than three months after that. It is determined as a matter of ultimate fact that, with regard to Item #2 in the Withdrawal Notice, MVP's application was complete as of June 11, 2009. The upshot of the foregoing findings of fact is that, as a matter of ultimate fact, AHCA had received from MVP a completed application for licensure as a home health agency no later than July 24, 2009.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order which, first, acknowledges that MVP's application for licensure as a home health agency is considered approved by the terms of Section 120.60(1), Florida Statutes; and, second, directs the Agency Clerk to issue MVP a conditional license, which shall be subject to MVP's (a) providing satisfactory proof of accreditation upon such reasonable conditions as the Agency may prescribe, and (b) meeting such additional reasonable conditions, if any, as AHCA is authorized by law to impose. DONE AND ENTERED this 22nd day of April, 2010, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of April, 2010.
Findings Of Fact Based upon all the evidence, the following findings of fact are determined: Background Respondent, Morley F. Vail, is a licensed dentist having been issued license number DN 0003030 by petitioner, Department of Professional Regulation (DPR), Board of Dentistry (Board). When the events herein occurred, respondent operated the Atlantic Denture Clinic at 1052 University Boulevard North, Jacksonville, Florida. He now resides at 2471 Sage Court, Middleburg, Florida. Respondent has been practicing dentistry for over thirty years, having been licensed by the state in 1960. Except for this proceeding, there is no evidence that he has ever been the subject of disciplinary action in connection with his license. Respondent rented his office space and equipment from another local dentist, Dr. Holloway, in an "as is" condition. The building in which the space was located was antiquated and, among other things, was in need of roof repairs. In addition, all of the equipment was old but still functional. Although the building had a number of rooms, respondent leased only a portion of the building. This included a room used as a reception area, two small cubicles used as patient examination rooms and a room behind the examination rooms which was used as a laboratory to make dentures. The remainder of the building was not used for dental purposes. However, respondent's office manager used a part of the unleased portion of the building as a storage area for her furniture and other personal items. At this point in respondent's career, his practice was limited to extractions and making dentures. Count I Count I alleges that inspections of respondent's office on March 26, 1992, and April 8, 1992, revealed he failed "to provide and maintain reasonable sanitary facilities and conditions" and that he violated Subsection 466.028(1)(bb), Florida Statutes, by violating Chapter 21G-25, Florida Administrative Code. Although not specifically stated in the complaint, this latter charge is presumably based upon the allegation that "Dr. Vail's Drug Enforcement Agency certificate expired on or about May 31, 1991". On an undisclosed date in March 1992, a City of Jacksonville deputy field inspector for the tax collector's office inspected respondent's office to determine if respondent had a city occupational license for the year 1991-92. Finding that the occupant of the building had no license, the inspector left a notice advising respondent that he needed a license. When no response was promptly received, the inspector returned to respondent's office on March 26, 1992. At that time, respondent paid for a new license. During the course of the visit, the inspector entered the premises and said he was not "impressed" with the conditions of the waiting room because it "wasn't what (he) was used to". Because the inspector desired to ascertain if more than one business was being conducted on the premises, he went to a "back room" and observed uncovered "utensils and pans" and concluded the room was a dental laboratory. Based upon an anonymous complaint, and a "referral" by the City of Jacksonville inspector, on April 8, 1992, a DPR investigator, Charles C. Coats, III, made an unannounced visit to respondent's office. According to Coats, the office had considerable dust, aged equipment, a leaky roof which had caused water damage to the panels of one room and "bleeding" paint from moisture, and a "cluttered" examination room. Photographs of the office taken by Coats have been received in evidence as petitioner's exhibits 2A and 2B. Coats also noted that respondent's Drug Enforcement Agency (DEA) certificate had expired on May 31, 1991, or almost a year earlier. Such a certificate is required from the DEA in order to prescribe controlled substances. After discussing these matters with respondent, Coats advised respondent that he would be required to turn the results of his investigation over to the Board for possible action. Although respondent's office was not a model of cleanliness in March and April 1992, it is found that it was not in such a deplorable condition as to constitute "unreasonable" sanitary facilities and conditions. Count II Count II alleges that from July 1991 through November 1991 respondent "violated Section 466.028(1)(q), Florida Statutes, by prescribing, procuring, dispensing, administering, mixing, or otherwise preparing a legend drug, including any controlled substance, other than in the course of the professional practice of the dentist". This charge stems from respondent's treatment in 1991 of a female patient identified as S. H. S. The facts underlying this charge are extremely confusing since the copy of the patient records offered into evidence is only partially legible, the abbreviations and medical jargon contained in the records were not translated by any witness, the dates in the complaint do not correlate in all respects to the dates in the patient records, many of the prescriptions are not recorded in the records, the testimony of the patient was confusing and contradictory, and most of the prescriptions offered into evidence were in the names of someone other than S. H. S. In addition, a large number of the prescriptions had been telephoned into the pharmacies by unknown persons or did not bear respondent's signature. In judging the credibility of S. H. S.'s version of events, the undersigned has considered the contradictions in her testimony, her inability to recall specific dates and times, and the fact that she has been arrested at least once for fraudulently obtaining drugs. In addition, the patient had a lengthy history of abusing drugs and did not relate this fact to respondent when she requested treatment. She also admitted that during the relevant time period, she used aliases to obtain drugs, and she would telephone various pharmacies, identify herself as respondent's assistant, and then authorize a prescription to be filled under her name or an alias. Finally, when she was arrested in 1992, it can be inferred from her testimony that she quickly volunteered respondent's name to authorities in a less than favorable light in an effort to obtain a lighter sentence. This disclosure led in part to an investigation of respondent by law enforcement authorities. Given these considerations, the undersigned has not accepted her testimony as being credible. Although the complaint alleges that respondent began treating S. H. S. in May 1991, the patient records reflect she first visited his office on April 15, 1991. Among other things, the patient desired to have all of her upper teeth extracted and replaced with a full plate denture. She also presented a complaint about her lower teeth which were causing pain. On the first visit, S. H. S. says respondent did an impression and took x-rays and on the second visit, which was "two or three days" later, he extracted fourteen teeth. However, the records indicate that the teeth were not extracted until her fourth visit, or on May 4, 1991. In any event, the records show that on visits made on April 15 and 20, 1991, the patient was given prescriptions for fifteen and twenty lortab 7.5 tablets, respectively, a schedule III controlled substance. This was presumably in response to a notation in the records that "pt. has pain." The records contrast with the patient's recollection that she received prescriptions for percodan and valium on her first and second visits. However, her recollection is partially confirmed by respondent's acknowledgement that when the teeth were extracted, he gave the patient valium because she was extremely nervous and jittery. The prescription for valium is not noted in the records. Although the patient says she next visited respondent's office in July 1991 when she broke her temporary plate, the records reflect that she returned to respondent's office on May 12, 1991. At that time, the records note that she asked for a refill of a prescription but she was "reminded still had Rx". However, on May 18, 1991, she was apparently given another prescription for eighteen lortab 7.5 tablets. The notes pertaining to the reasons why the prescription was given are not legible. On June 1, 1991, the records indicate S. H. S. "called on phone for Rx" but she was told she "needed to come in for exam." On June 5, 1991, the patient made another office visit. The word "healing" is legible but most of the remaining notes are not. The records do indicate that she was given a prescription for eighteen lortab 7.5 tablets that day. On July 5, 1991, or four weeks later, the patient returned to respondent's office for a visit. On that day, the records note that she was "still in pain" and was given a prescription for eighteen more lortab 7.5 tablets. S. H. S. next visited respondent's office on August 8, 1991, or more than a month later. The notes reflect that the "upper (illegible) healing slowly". She was given another prescription for eighteen lortab 7.5 tablets. There is a subsequent undated notation in the records that "pt. called on phone wanting Rx, pt. told required office visit." The final notation relevant to this complaint was made on December 6, 1991, and stated that "pt. has painful lower teeth, told to get (illegible)." The amended complaint alleges that "from approximately May 1991 through November 1991, Dr. Vail prescribed Lortab 7.5 to patient S. H. S." and "routinely provide(d) (her) access to controlled substances including Lortab 7.5 and Percodan, without the benefit of an evaluation, examination or proper diagnosis and treatment planning." To substantiate these allegations, a large number of prescription forms allegedly written or authorized by respondent were offered into evidence. In addition, S. H. S. attempted to bolster this allegation by stating that beginning in July 1991 she visited respondent's office up to three times a week and telephoned his office the same number of times, for a total of six personal or telephonic contacts per week, all for the purpose of obtaining prescriptions for drugs. As to this assertion, the patient's testimony is rejected as not being credible. Testimony was offered by four Jacksonville pharmacists who filled prescriptions for S. H. S., or an alias, or for a male who had the same last name. Since the undersigned has deemed the prescriptions in the name of someone other than S. H. S. or those written after the dates cited in the complaint to be irrelevant and having no probative value, only seven prescriptions in the name of S. H. S. have been considered. They are dated July 30, 1991 (fourteen lortab 7.5 tablets), August 1, 1991 (sixteen lortab 7.5 tablets), September 24, 1991 (sixteen percodan tablets), September 27, 1991 (eighteen percodan tablets), October 10, 1991 (fifteen percodan tablets), October 10, 1991 (ten lortab 7.5 tablets), and October 14, 1991 (twelve percodan tablets). Of these seven, prescription number 501738 filled on October 14, 1991, for ten lortab 7.5 tablets was apparently telephoned in by an unnamed person and has been disregarded given the testimony of the patient that she would telephone in prescriptions while posing as respondent's assistant. It is noted that none of these six prescriptions are found in the patient records and all were written after respondent's DEA certificate had expired. Controlled substances are classified into five schedules, with Schedule I drugs (e.g., heroin) having no medical value and the greatest abuse potential. Percodan is a Schedule II controlled substance having a high potential for abuse and addiction, and misuse may lead to severe psychological or physical dependence. It is noted that a Schedule II prescription cannot be telephoned in by a physician. Instead, a written prescription must be personally presented by the patient to the pharmacist. Lortab 7.5 is a Schedule III controlled substance and has a potential for abuse. Misuse of the substance may lead to moderate or low physical dependence or high psychological dependence. Finally, valium is a Schedule IV drug having a lower potential for abuse. It may be reasonably inferred from the evidence that the patient required percodan or lortab for a reasonable period of time after having fourteen teeth extracted, given the fact that she was a slow healer. In addition, the patient's lower teeth were in need of treatment, and the records reflect she continued to experience pain until December 1991. Even so, the dispensing of six prescriptions for schedule II or III controlled substances from July 30 until October 14, 1991, constituted a failure to prescribe drugs in the course of his professional practice, especially since the patient exhibited an unhealthy pattern of continually requesting refills. Count III In Count III, respondent is charged with failing "to provide and maintain reasonable sanitary facilities and conditions" during a July 1992 inspection, prescribing a legend drug to an undercover police officer other than in the course of his professional practice, operating a dental office in such a manner as to result in dental treatment below the minimum acceptable standards of performance for the community, and failing to keep written records and medical history justifying the course of treatment of a patient. Improper prescribing of a drug On June 15, 1992, Latoyle A. Levister, a detective with the Jacksonville Sheriff's Office, visited respondent's office in an undercover capacity. Using the name of "Nikki Lewis", and posing as a "go-go dancer just off the plane from Chicago", the detective told respondent that two fillings had just fallen out, she was in pain, and she needed advice as to what treatment was appropriate. This complaint turned out to be true since Levister had just lost fillings from two teeth. After Levister was taken to an examination room, and she gave a brief patient history, respondent examined her mouth with what Levister recalls was a "mirrow-type instrument". He did not take any X-rays. Respondent confirmed the fillings were missing and, according to Levister, suggested as a course of treatment that she either have an extraction, which he could perform, or a root canal, which would have to be performed by another dentist. He also suggested that to ease her pain until she made a decision, she take a prescription drug and offered her one of four drugs, including percodan. He also asked if she was allergic to aspirin. Levister selected percodan and thereafter received a prescription for eighteen percodan tablets and twenty-five ampicillin tablets, the latter being an antibiotic. The prescription for percodan was filled at a nearby drug store. On June 17, 1992, Levister telephoned respondent's office and asked for a refill of her percodan prescription. She was told it could not be done by telephone and she must make an office visit. Accordingly, she visited his office that afternoon. After Levister was seated in the examination room, Dr. Vail entered the room, asked her what she needed, and she responded "percodan". He then had her open her mouth, briefly checked her teeth, and wrote her a prescription for eighteen percodan tablets. Before she left, respondent asked her to advise him if she had any problems. On June 23, 1992, Levister again telephoned respondent's office and asked for a refill of her percodan prescription. She was told she needed to make an office visit. That afternoon, she visited respondent's office but did not see Dr. Vail. Instead, she spoke to his office manager who then went to the laboratory and returned with a prescription for twenty percodan tablets written by Dr. Vail. On June 26, 1992, Levister returned to respondent's office without an appointment. This was because respondent's telephone line had been busy and she was unable to secure an appointment by telephone. After being seated in the examination room, Levister told Dr. Vail that she wanted a refill of the percodan. Respondent reminded her that she had already received three prescriptions and cautioned her that the drug was "highly addictive". After briefly examining her teeth, he again advised her to either have an extraction or a root canal. Again, no X-rays were taken. Levister told respondent that she had difficulty in filling the last prescription, could not afford to have it filled in her own name, and asked if a prescription for percodan could be written in her mother's name, "Nancy Baker", who had dental insurance. Respondent then wrote a prescription for twenty percodan tablets in the name of "Nancy Baker". He readily acknowledges that this was "poor judgment" but his "intention was to provide (Levister) relief from pain, which the patient had complained of on previous visits." By prescribing a Schedule II controlled substance in the name of someone other than a patient, and by prescibing the same drug on June 23, 1992, without actually examining the patient, respondent prescribed a drug other than in the course of his professional practice. Failure to provide sanitary facilities After Levister's undercover work was completed, on July 7, 1992, the Jacksonville Sheriff's Office executed and served on respondent's office a search warrant and subpoena for certain patient records. A DPR investigator accompanied the detectives. Respondent was not present on the premises that day. As a result of his inspection, one detective characterized the premises as "deplorable", "very nasty" and "dirty", and he observed rust and blood on instruments. Levister was also present and observed a suction device in a patient examination room lying on the floor. She also saw dirty (rusted or bloodied) instuments and ants crawling across the counter in one of the rooms. Although she found a back room clogged with "all kinds of junk and furniture" and a refrigerator with mold and mildew, this room was not a part of the dental office but rather was used as a storage area by the office manager. According to the DPR investigator, the office was in a "little bit more deteriorated" condition than in April 1992, and no visible improvements or corrections had been made since his last visit. More specifically, he observed "exposed" dental instruments that appeared to be "corroded or rusted", a used pair of rubber gloves on a countertop and exposed hypodermic needles. When asked to compare the office with others he had inspected, Coats says he inspected only those offices that he suspected might be below standards, and respondent's office "could be worse or better" than others he had seen. He added that the office was "mighty close" to being classified as unsanitary. Petitioner's expert reviewed the photographs taken of respondent's office in April 1992 and heard the testimony given by the detectives and the DPR investigator. Based on the photographs and testimony, he opined that by respondent having "dirty or rusty" instruments throughout the office, and by failing to repair "wet, leaky walls", respondent had maintained his office in an unsanitary condition. This is because moisture and bacteria are easily carried from one room to another by the ventilation system, drills and compressed air from vacuums. Further, dirty or used instruments left unattended have the potential for injuring employees and luring bugs and rodents onto the premises. Accordingly, it is found that the office was maintained in an unsanitary condition during the July 7, 1992, inspection. Operating a dental office below acceptable standards During their inspection of the premises on July 7, 1992, the detectives did not find any patient records for "Nikki Lewis". Indeed, the only records found were file cards, and these were in disarray. By failing to maintain complete patient records and good sanitary conditions, writing a prescription for a ficticious patient, and using what appeared to be substandard materials or equipment, petitioner's expert opined that respondent was operating a dental office in such a manner as to result in dental treatment that is below minimum acceptable standards of performance for the community. This opinion has been accepted by the undersigned. Adequacy of written records Since the detectives could find no records of "Nikki Lewis" during their search of the premises on July 7, 1992, it can be reasonably inferred that none were maintained for this patient. As to patient S. H. S., her records were offered into evidence but are partially illegible. Even so, there are no entries in the records concerning the six prescriptions given to the patient between July 30 and October 14, 1991, nor for the valium prescription which respondent says he gave her in May 1991. As to those seven prescriptions, and the ones given to "Nikki Lewis", it is found that the records did not justify the course of treatment of those patients. Mitigation After the execution of the search warrant, respondent and his office manager were arrested on July 8, 1992. On January 28, 1993, all charges were dropped against them in return for respondent agreeing not to practice dentistry for eighteen months retroactive to his date of arrest and to never prescribe any medication in the future. Accordingly, by the terms of this agreement, respondent cannot practice dentistry until on or about January 8, 1994, and he will never again be able to prescribe "medications." Although not stated on the record, exhibit 17 suggests that respondent's license to practice dentistry was suspended by the Board on the date of his arrest and will remain suspended pending the outcome of this proceeding. Except for these offenses, respondent has never been disciplined by the Board during his lengthy tenure as a dentist. Further, the matter of his competence is not in issue. Respondent has not practiced dentistry since this matter arose, and he has been financially devastated to the extent he was unable to hire counsel to represent him in this proceeding. The practice of dentistry is respondent's only livelihood. In recent years, respondent's practice has been restricted to a limited area (extractions and dentures), and he has focused on serving the lower-income, uninsurable segment of the community, or in respondent's words, "the bottom of the barrel" type of dental patients. He denies he ran a "prescription mill" as alleged in the complaint, and this is partially confirmed by entries in S. H. S.'s records, which show respondent would not give her a prescription on several occasions unless she visited the office, and his twice refusing to write a prescription for "Nikki Lewis" without an office visit. It should also be noted that respondent assisted the Jacksonville Sheriff's Office in having S. H. S. arrested for fraudulently obtaining drugs. As to the unsanitary conditions in his office, respondent pointed out that he used a Pelton autoclave on a daily basis to sterilize all instruments. He also says that Dr. Holloway (the lessor) refused to make any repairs and he (respondent) had insufficient funds to correct any of the building's deficiencies. Further, it may be inferred that financial limitations prevented respondent from upgrading the old equipment leased from Dr. Holloway. As to his failure to obtain a current DEA license, respondent acknowledges that the license had expired through inadvertence, but he instructed his office manager to renew it after the DPR investigator brought this to his attention. For some reason she placed the money order and application in a file drawer and neglected to sent them to the DEA regional office in Miami. While conceding he did not run an "ivory-tower practice", respondent says his clinic was providing a low-cost service to members of the public who could not afford expensive dental treatment. Finally, he recognizes that he may never again be able to practice dentistry on his own, but he does wish to practice in some capacity in the future, perhaps in an institution under another dentist's direct supervision.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board of Dentistry enter a final order finding respondent guilty of the violations set forth in paragraphs 33 and 34, dismissing the charges in Count I, and suspending respondent's license for one year to be followed by five years' probation under such conditions as the Board deems to be appropriate. DONE AND ENTERED this 10th day of June, 1993, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of June, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-7363 Petitioner: Partially adopted in finding of fact 1. Partially adopted in findings of fact 4 and 5. Partially adopted in finding of fact 5. Partially adopted in finding of fact 23. 5-6. Partially adopted in finding of fact 8. 7. Partially adopted in findings of fact 8-12. 8-10. Partially adopted in finding of fact 13. 11-13. Rejected as not being based on credible testimony. Partially adopted in finding of fact 14. Rejected as not being based on credible testimony. 16-19. Partially adopted in finding of fact 16. Partially adopted in finding of fact 17. Partially adopted in finding of fact 18. Partially adopted in finding of fact 19. Partially adopted in findings of fact 14 and 20. Partially adopted in finding of fact 25. Partially adopted in finding of fact 24. Note - Where a proposed finding has been partially accepted, the remainder has been rejected as being irrelevant, subordinate, not supported by the more credible evidence, a conclusion of law, or unnecessary. COPIES FURNISHED: William Buckhalt, Executive Director Board of Dentistry 1940 North Monroe Street Tallahassee, FL 32399-0750 Jack L. McRay, Esquire 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 Albert Peacock, Esquire 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 Dr. Morley F. Vail 2471 Sage Court Middleburg, FL 32068
Conclusions THIS CAUSE came on for consideration before the Agency for Health Care Administration ("the Agency"), which finds and concludes as follows: The Agency issued the Petitioner ("the Applicant") the attached Notice of Intent to Deem Application Incomplete and Withdrawn from Further Review (Ex. 1). Petitioner requested a formal hearing (Ex. 2). Petitioner withdrew its Petition for formal hearing on January 4, 2010 (Ex. 3). The Agency's Notice oflntent is upheld. The parties shall bear their own costs and attorney's fees. This matter is closed. 010. old, Secretary Ith Care Administration
Other Judicial Opinions A party that is adversely affected by this Final Order is entitled to seek judicial review which shall be instituted by filing one copy of a notice of appeal with the agency clerk of ARCA, and a second copy, 1 Filed January 20, 2010 8:00 AM Division of Administrative Hearings. along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The notice of appeal must be filed within 30 days ofrendition of the order to be reviewed. CERTIFICATE OF SERVICE Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone (850) 922-5873 Jan Mills Facilities Intake Unit Agency for Health Care Administration (Interoffice Mail) Anne Menard, Manager Home Care Unit Agency for Health Care Administration (Interoffice Mail) Carlton Enfinger, II Office of the General Counsel Agency for Health Care Administration (Interoffice Mail) Christopher A. Parrella Law Center at Brickell Bay 2333 Brickell Avenue, Suite A-1 Miami, Florida 33129 (U.S. Mail) 2
The Issue The issue is whether Respondent properly denied Petitioner's application for a change of ownership license to operate an assisted living facility.
Findings Of Fact On or about January 13, 1998, Petitioner filed an application for a change of ownership license to operate an existing six-bed ALF. At that time, the ALF was licensed as Kam Home ALF. By letter dated January 22, 1998, Respondent requested Petitioner to furnish additional information and documentation to complete the application. Respondent's letter dated February 27, 1998, again requested Petitioner to provide certain documentation to complete the application process. On or about June 9, 1998, Respondent issued a provisional license to Petitioner. This license was effective retroactively to February 15, 1998, and prospectively through August 14, 1998. Petitioner was advised that failure to obtain a satisfactory survey could result in a denial of a standard license. Respondent conducted an ALF change of ownership site survey of the subject facility on June 17, 1998. The survey resulted in a finding of thirty-one deficiencies, totaling 37 pages in the official written report. These deficiencies were in the following areas: (a) general licensure standards [A-003]; (b) fiscal standards [A-100, A-108]; (c) facility record standards [A-202, A-203, A-208, A-209, A-210, A-213], resident record standards [A-301, A302, A-307, A-308]; admission criteria standards [A-401, A-404, A-406]; (f) staffing standards [A-504, A-505, A-508, A-511, A-512, A-513]; (g) medication standards [A-602, A-606]; (h) resident care standards [A-703]; (i) nutrition and dietary standards [A-803, A-806, A-809, A-810, A-811]; and (j) physical plant standards [A-1024]. A letter dated June 24, 1998, advised Petitioner that failure to correct all deficiencies by the date of the next visit would result in a recommendation for denial of licensure. On July 24, 1998, Respondent conducted a follow-up site survey at the subject facility. Respondent found that eight of the deficiencies had not been corrected. These eight deficiencies included the following: (a) one of five residents did not have a signed contract with the facility (resident record standards [A-302]); (b) the facility did not have a prepared admission packet for residents or the responsible party (resident record standards [A-308]); (c) two residents did not have a health assessment on-file (admission criteria standards [A-401]); (d) a third resident did not have a health assessment on the current D.O.E.A. Form 1823 (admission criteria standards [A-404]); (e) staff had not received a minimum of two hours of training within the first 30 days of employment (staffing standards [A-504]); (f) all staff members have not received training in personal hygiene care from a nurse before providing such assistance to residents and all staff members had not received a minimum of two hours of training prior to supervising self-administered medications (staffing standards [A-505]); (g) the facility did not document that residents are provided with a minimum of planned activities, available at least five days per week, for a total of not less than 10 hours per week (resident care standards [A-703]); and (h) menus were not dated and planned at least one week in advance for regular and therapeutic diets (nutrition and dietary standards [A-810]). During this follow-up survey, Respondent's evaluator advised Petitioner's administrator that his office would revisit the facility within one month. In a letter dated July 28, 1998, Respondent's office of Health Quality Assurance indicated that it intended to recommend denial of Petitioner's license for failure to correct all deficiencies within the mandated time. The decision to deny Petitioner's application, if taken, was to be a matter of separate correspondence from Respondent's central office. In the meantime, Petitioner was directed to file a correction plan and to indicate the date of correction for each deficiency. Specifically, Petitioner's plan was to include details showing who would correct the deficiencies, when and how they would be corrected, and how they would be monitored for future compliance. Petitioner sent Respondent a letter dated August 6, 1998. The letter referenced an enclosed correction plan for the remaining eight deficiencies.1 Petitioner's administrator testified that she corrected the deficiencies before the facility's provisional license expired on August 14, 1998. This testimony is not persuasive.2 On or about September 10, 1998, Respondent advised Petitioner that its application for a change of ownership license to operate the ALF was denied based on its failure to meet minimum license standards pursuant to Section 400.414, Florida Statutes. On or about September 19, 1998, Petitioner's administrator sent Respondent a letter requesting an administrative hearing to contest the denial of licensure. In response to complaints from Petitioner's residents, Respondent's staff performed a monitoring survey at the subject facility on December 22-23, 1998. The evaluator found six deficiencies. Four of the deficiencies were repeat citations: (a) two residents had no health assessment (admission criteria standards [A-401]); (b) the facility did not post a written work schedule (staffing standards [A-508]); (c) the facility did not offer a variety of foods (nutrition and dietary standards [A-806]); (d) the facility did not follow posted menus or record food substitutions (nutrition and dietary standards [A-810]). Two deficiencies were cited for the first time: one resident's medication administration record was inaccurate (medication standard [A-605]); and (b) the facility did not timely refill one resident's medication (medication standards [A-608]). On December 23, 1998, Respondent placed a moratorium on Petitioner's admissions. The agency imposed the moratorium for two reasons. First, because Respondent had denied Petitioner's application for licensure. Second, the appraisal visit on December 22, 1998, revealed new and repeat deficiencies, demonstrating the facility's continued pattern of non-compliance. Respondent advised Petitioner to correct the deficiencies and to arrange for another appraisal visit by Respondent to verify the corrections.3 On December 29, 1998, Respondent's staff conducted an ALF moratorium monitoring visit. During that visit, the evaluator found the following three repeat violations: (a) staff providing personal hygiene care to residents did not have training to furnish that care (staffing standards [A-505]); the facility did not have at least one staff member with first aid and CPR certification on the premises at all times (staffing standards [A-511]); and (c) staff who supervise the self-administration of medication did not have training to provide that service (medication standards [A-602]). A letter dated January 5, 1999, confirmed the findings of the December 29, 1998, monitoring visit and continued the moratorium on admissions. On January 12, 1999, Respondent's evaluator conducted another monitoring visit at the facility. The evaluator discovered that the facility did not have electricity. The city had turned off the electricity because the bill had not been paid. Following the monitoring visit, Respondent advised Petitioner that the moratorium would continue in effect.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent enter a Final Order denying Petitioner's application for a change of ownership license to operate an assisted living facility. DONE AND ENTERED this 14th day of April, 1999, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of April, 1999.
Findings Of Fact The Agency issued a Notice of Intent to Impose Fine stating the intent to impose an administrative fine in the sum of five thousand dollars ($5,000.00) against the Respondent, Home Is Where The Heart Is, Inc. (hereinafter "Respondent"), a home health agency. The Notice of Intent to Impose Fine charged that Respondent failed to timely submit a quarterly report for the quarter ending June 30, 2009, violating Section 400.474(6)(f), Florida Statutes (2008). Filed February 12, 2010 12:45 PM Division of Adm1inistrative Hearings. The cause was properly referred to the Division of Administrative Hearings for proceedings according to law, See, Section 120.57(1), Florida Statutes (2009). By Orders dated December 24 and 28, 2009, the Division of Administrative Hearings determined that no material issue of fact remained in dispute and relinquished jurisdiction to the Agency for Health Care Administration, copies of which are attached hereto and incorporated herein (Comp. Ex. 2). The facts, as alleged and found, establish that Respondent failed to timely submit a quarterly report for the quarter ending June 30, 2009, violating Section 400.474(6)(f), Florida Statutes (2008). The fine imposed is five thousand dollars ($5,000.00).
Conclusions Having reviewed the Notice of Intent to Impose Fine dated September 17, 2009, attached hereto and incorporated herein (Ex. 1), and all other matters of record, the Agency for Health Care Administration (hereinafter "Agency") finds and concludes as follows:
The Issue This order addresses three cases consolidated for hearing. The first case chronologically is DOAH Case No. 00- 1964, which arises from the pre-licensure inspection initiated as a result of Respondent's application for a certification to provide limited nursing services, and seeks to levy fines for repeated violations originally noted in the biennial inspection of September 10, 1999. The second case chronologically is DOAH Case No. 00-1963, which arises from the re-inspection of the pre-licensure inspection performed on February 21, 2000, and relates to fines for repeated violations of the rules. The third case chronologically is DOAH Case No. 00-1965, which is related to issuance of the Department’s denial of certification to provided limited nursing services; however, it is based upon the same factual predicate as Case No. 00-1963. The issues in each of the cases are as follows: Case No. 00-1964: Should fines be levied against the Respondent as the result of an inspection which (1) was conducted without notice contrary to the letter concerning the inspection from the Department, and (2) in the absence of specific proof that the specific violation was repeated. Case No. 00-1963: Should fines be levied against the Respondent for failure to correct violations identified in an inspection that was not noticed contrary to the information provided to the Respondent, and when the Respondent was not rendering any services to which the violation applied. Case No. 00-1965: Should Respondent be denied a certification to provide limited nursing services based upon the violations discovered in the inspections of January 18, 2000 and February 21, 2000.
Findings Of Fact General Facts The Department is the agency charged with the inspection, regulation, and licensure of adult living facilities. The Respondent is an adult living facility owned and operated by Christal L. Caso. On November 11, 1999, Mr. Robert Cunningham conducted a biennial inspection of Respondent’s adult living facility (ALF). He identified a number of deficiencies that were written up in a detailed inspection report. Mr. Cunningham identified copies of his report which were a part of the Petitioner's Bound Exhibits in Case Nos. 00-1964 and 00-1963. A re-inspection was conducted in December of 1999, and all of the deficiencies noted had been corrected. The Administrative Complaint in Case No. 00-1964 alleges that on January 18, 2000, certain deficiencies found during Mr. Cummingham’s inspection on November 11, 1999, were repeated. His inspection report and its findings will be referenced and discussed in conjunction with the consideration of the report for January 18, 2000; however, there are no issues involved directly with Mr. Cunningham’s inspection or his report in any of the three pending cases. The Respondent applied for an additional certification to provide limited nursing services (LNS) at its facility. This application was duly processed and the Respondent was notified by letter, dated January 13, 2000, from the Department’s Tallahassee office that the facility must notify the Department within 21 days that it was ready for an operational survey (inspection), and that an announced inspection would be scheduled within several weeks. On January 18, 2000, Ms. Eleanor McKinnon, an inspector with the Department, arrived unannounced at the facility to conduct the pre-licensure inspection. Ms. Caso was not present at the facility at the time Ms. McKinnon arrived. When Ms. Caso arrived at the ALF, she advised Ms. McKinnon that she was not prepared and her inspection was inconsistent with the information Caso had received. Ms. McKinnon continued the inspection citing a policy that their inspections were unannounced. The letter Ms. Caso received from the Department’s Tallahassee office was termed, at hearing, inconsistent with agency procedure by personnel attached to the local office. It was clear Ms. Caso received and relied upon the information contained in the letter, and she had no reason to believe that it was not an accurate statement of how inspections would proceed. Ms. McKinnon prepared a detailed inspection report that was identified as an exhibit in all of the bound volumes. She did not have a clear recollection of the specific findings at the time of the hearing. The inspection reports identify specific areas of operations by alphanumeric designators termed "Tags." These tags relate to a specific area of concern in an inspection such as storage of drugs, medical records, or safety. The tags are listed in a separate column on the inspection reports, and specific violations will be identified and discussed in this order by reference to specific tags as they were at hearing. Licensure Inspection, January 18, 2000 Findings of Fact Specific to Case No. 00-1964 Although the Department's letter of January 13, 2000, said that the Respondent should notify the Department when it was ready for inspection, the Department has the right to inspect at any time for compliance with the rules. Regarding Tag A401, the first violation alleged to have been repeated, the inspection report for November states that "Three of five residents did not have a Health Assessment on file." The January inspection report states, "Review of two resident records revealed that one of the two residents had no health assessment on their medical record." Ms. Caso testified regarding individual records. These records she kept at her office at her house off the ALF’s premises. She was willing to retrieve these records; however, the inspector maintained that they were required to be maintained on site. Regarding the second alleged repeated violation, the November inspection report states, "Medications for Resident No. 3 which were discontinued in August were still in the centrally stored medicine closet." The January inspection report stated at Tag A612, "Tour of the medication room on the day of the survey revealed that medications from residents who the administrator said had been gone for over two years were still in the medication closet." This is alleged in the Administrative Complaint to have violated Rule 58A- 5.0182(6)(d), Florida Administrative Code. The Petitioner included in its exhibit a copy of the cited rule. Regarding the third alleged repeated violation, the January report states that over-the-counter medication was maintained in the medicine storage area without the name of the individual for whom it was prescribed being on it. This was alleged to be a violation of Rule 58A-5.0182(6)(f), Florida Administrative Code. A review of the current rules indicates that Rule 58A-5.0182(6)(d) and (f) do not address the substance of the alleged violation, and that the last amendment to the rule occurred in October 17, 1999. This provision had been repealed before the first inspection. Conclusions of Law for Case No. 00-1964 The Division of Administrative Hearings has jurisdiction over the subject matter and parties in this and the other consolidated cases. This case seeks to fine the Respondent for violations allegedly violated in the original inspection of November 11, 1999, and repeated on the inspection of January 18, 2000. The Department can conduct a compliance inspection at any time. However, to consider such an inspection a pre- licensing inspection is contrary to the letter regarding the inspection procedures sent to the Respondent by the Department’s Tallahassee office. I conclude that, although findings may be considered for general enforcement purposes and fines potentially levied for violations, they cannot be considered a pre-licensing inspection. The practical effect of this is that a general violation applicable to an ALF can be cited and considered; however, fines cannot be levied for those matters related to LNS because the Respondent was not licensed or engaged in rendering LNS. In addition, the Respondent is not subject for fines for violation of those portions of the rules applicable only to providing LNS because the Respondent was entitled to request an announced inspection pursuant to the Department’s letter. The Administrative Complaint of Case No. 00-1964 cites Rule 58A-5.0191(3)(a), Florida Administrative Code, as having been violated presumably a reference to Tag A401 relating to admission standards. Specifically, the cited fault related to health assessments. Rule 58A-5.0191(2)(a), Florida Administrative Code, provides as follows: (2) HEALTH ASSESSMENT. Within 60 days prior to the residents admission to a facility but no later than 30 days after admission, the individual shall be examined by a physician or advanced registered nurse practitioner who shall provide the administrator with a medical examination report, or a copy of the report, which addresses the following: The physical and mental status of the resident, including the identification of any health-related problems and functional limitations; An evaluation of whether the individual will require supervision or assistance with the activities of daily living; Any nursing or therapy services required by the individual; Any special diet required by the individual; A list of current medications prescribed, and whether the individual will require any assistance with the administration of medication; Whether the individual has signs or symptoms of a communicable disease which is likely to be transmitted to other residents or staff; A statement that in the opinion of the examining physician or ARNP, on the day the examination is conducted, the individual’s needs can be met in an assisted living facility; and The date of the examination, and the name, signature, address, phone number, and license number of the examining physician or ARNP. The medical examination may be conducted by a currently licensed physician or ARNP from another state. The Administrator testified that health assessments were maintained for the residents, but were maintained at her office in her home. The inspector took the position that these assessments had to be maintained on-site; however, there is nothing in the rule upon which to base that conclusion. The rule provides that the physician or advanced registered nurse practitioner will provide the administrator with a copy of the assessment. The inspector did not permit the administrator time to retrieve the assessment for her inspection. In the absence of an inspection of the records, it cannot be determined whether the 30 days' grace period was applicable. I conclude that a health assessment does not have to be kept on site pursuant to Rule 58A-5.0181(2)(b), Florida Administrative Code. The Inspector should have given the Respondent time to retrieve the records. Then a determination could have been made whether the appropriate information was contained in the records. There is no violation and no basis for levying a fine. The alleged violations of Rule 58-5.182(6)(d) and (f), Florida Administrative Code, cannot be a basis for fines or denial of the license because the rule was repealed before the biennial inspection, the pre-licensure inspection, or the re-inspection. Findings of Fact Case Nos. 00-1963 and 00-1965 Ms. McKinnon conducted a re-inspection of the ALF on February 21, 2000. This inspection was the basis for levying fines for alleged repeated violations, and for denying licensure. Therefore, these factual allegations will be discussed together. Ms. McKinnon’s report of inspection is contained in the bound volumes pertaining to Case Nos. 00-1963 and 00-1965. The first tag number is N201, and the Rule alleged to have been violated is Rule 58A-5.031(2)(d), Florida Administrative Code. In the inspection report of January 18, 2000, the inspector made the following observation: "Review of the facility records and interview with the administrator revealed that no log had been prepared for the admission residents to receive limited nursing services." At the time of the inspection, the facility was not licensed to provide limited nursing services. Such services were not being rendered. This log is nothing more than a piece of paper upon which a chronological record of services is kept. This record is not required to be kept until services are rendered under the provisions of the rule. The next tag number of the next violation is N205 on the inspection report of January 18, 2000. Tag N205 alleges violation of Rule 58A-5.0131(2)(ff), Florida administrative Code, because, "Review of the facility records and interview with the administrator revealed that there was no documented information on what services would be provided under limited nursing or who would provide the services." The next tag at issue is N302. It cites a violation of Rule 58A-5.031(2)(a), Florida Administrative Code, and states, Interview with the administrator and review of facility documentation revealed that no provision had been made to have currently licensed nurse in the facility to perform limited nursing services, nor was there a contract with a RN or MD to supervise the services provided. Again, the rule cited in the complaint is wrong. Rule 58A- 5.031(2)(d), provides that the facility must have a contract for nursing services. It was explained at hearing that there was no contract present for a nurse to supervise Ms. Caso, and no contract with Ms. Caso during the first inspection. Ms. Caso testified regarding this. She did not originally believe she was required to have a contract with herself, and, at the time of the second inspection, had a contract drawn with the nurse who was going to be the supervisor; however, the woman was seriously ill and had not been able to sign the contract. At the time of this inspection, the facility was not providing services and could not legally do so until licensed. Tag A401 of the February report cites a violation of Rule 58A-5.0181(3)(a)1, Florida Administrative Code, and states, "Resident No. 5 was admitted on January 31, 1999, and there was no dated health assessment on his record." Conclusions of Law for Case Numbers 00-1963 and 00-1965 Again, the Division of Administrative Hearings has jurisdiction over the parties and the subject matter of the cases. The various tags will be discussed in reverse order. Regarding Tag A401 of the February report citing Respondent for failing to have a dated health assessment for a resident, the proper citation of the rule alleged to have been violated is 58A-5.0181(2), Florida Administrative Code. As stated above, subparagraph (a) of paragraph (2) provides that the physician or advanced registered nurse practitioner shall provide the administrator with a medical examination report no later than 30 days after admission. In this instance, the reports were on-site and were inspected. However, this is not a repeat violation because there is no rule that requires these reports to be maintained on-site (the previously cited violation), and the records were not inspected on the previous visit. Therefore, this was the first time this violation was discovered. Regarding the violation regarding the absence of a signed contract by the supervising nurse (Tag 302), the facility was not licensed to provide LNS, and there were no services being rendered at the time. Therefore, there is no basis for a fine. In so far as this violation relates to the denial of licensure, Rule 58A-5.031(2), Florida Administrative Code, provides: In accordance with rule 58A-5.019, the facility must employ sufficient and qualified staff to meet the needs of residents requiring limited nursing services based on the number of such residents and the type of nursing service to be provided. * * * Facilities licensed to provide limited nursing services must employ or contract with a nurse(s) who shall be available to provide such services as needed by residents. The facility shall maintain documentation of the qualifications of nurses providing limited nursing services in the facility’s personnel files. While the absence of the contract is a reason not to issue a license, under the circumstances in this case, it would have been more appropriate for the inspectors to note the discrepancy, and permit the Respondent to send them a copy of the contract when it was signed. It is not a basis for levying a fine. Regarding the alleged violation for failing to maintain a policy for how services will be rendered (Tag N205), first, there is no Rule 58A-5.0131(2)(ff), Florida Administrative Code, as cited by the Agency. Rule 58A-5.0131, Florida Administrative Code, contains various definitions, none of which relate to the alleged violation cited in the inspection report. A review of Rule 58A-5.031, Florida Administrative Code, which deals with the providing of limited nursing services, starts off by stating that a facility must be licensed before it can provide these services. From the description of the violation cited and the testimony of the witnesses, this apparently relates to the absence of a policy setting forth what services will be provided. There is no requirement in Rule 58A-5.031, Florida Administrative Code, for such a policy. The only provision of this rule remotely related to a requirement for some policy and procedure provides: The facility must ensure that nursing services are conducted and supervised in accordance with Chapter 464, F.S., and the prevailing standard of practice in the nursing community. The rule does not mandate how the facility will ensure this. In sum, there is no rule that requires such a policy be on site. Regarding the alleged violation of Rule 58A- 5.031(2)(d), Florida Administrative Code, by failing to maintain a log of nursing services rendered (Tag N201), there was no requirement to maintain the log in the absence of performing the services.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department dismiss the complaints in Case Nos. 00-1963 and 00-1964. That the Department not license the Respondent with regard to Case No. 00-1965, but permit the Respondent to re- file for the subject license without jeopardy due to any of the inspections which have been the subject of Case Nos. 00- 1963 and 00-1964. DONE AND ENTERED this 9th day of February, 2001, in Tallahassee, Leon County, Florida. ___________________________________ STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of February, 2001. COPIES FURNISHED: Michael O. Mathis, Esquire Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3431 Tallahassee, Florida 32308 Christal L. Caso, Administrator Paradise Manor 2949 Carriage Drive Daytona Beach, Florida 32119 Sam Power, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3431 Tallahassee, Florida 32308 Julie Gallagher, General Counsel Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3431 Tallahassee, Florida 32308 Ruben J. King-Shaw, Jr., Director Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3116 Tallahassee, Florida 32308
The Issue Whether Petitioner was in violation of 42CFR 483.25(l)(1), 42CFR 483.60(d), Rules 59A-4.112(5) and 59A-4.1288, Florida Administrative Code, at the time of its annual survey in July 2000, and, if so, whether those violations were uncorrected at the time of resurvey in September 2000, in order to justify the issuance of a Conditional licensure rating.
Findings Of Fact Tampa Health Care Center (Petitioner) is a licensed nursing home in Tampa, Florida. Pursuant to Chapter 400, Florida Statutes, Respondent surveys Petitioner to determine whether it is in compliance with applicable laws and regulations. If there are deficiencies, it determines the level of deficiency. When Respondent conducts a survey of a nursing home, it issues a survey report, commonly called by its form number, a "2567." The particular regulation, and the allegedly deficient practices which constitute a violation of that regulation, are cited in a column on the left side of the paper. After receiving the 2567, the facility is required to develop a plan of correction which is put in the right hand column corresponding to the alleged deficiency. The facility is required to develop this plan regardless of whether it agrees that it is in violation of any regulations, and it is prohibited from being argumentative. Respondent conducted its annual survey of Petitioner, ending July 27, 2000, and issued a 2567 survey report noting certain deficiencies. The deficiencies are designated as tag numbers. Among those noted were Tag F329, which is the shorthand reference to 42 C.F.R. Subsection 483.25 (1)(1), and Tag F431, which incorporates 42 C.F.R. Subsection 483.60(d). Respondent rated these deficiencies as Class III deficiencies. Respondent conducted a follow-up survey on September 5, 2000, and determined that the deficiencies under tags F329 and F431 were uncorrected, and, as a result, issued a Conditional rating to the facility. On December 2000, Respondent conducted another follow- up survey and determined that all deficiencies had been corrected and therefore issued a Standard license to Petitioner effective that date. The 2567 constitutes the charging document for purposes of issuing a Conditional license. No other document was offered to describe the offenses, or deficiencies, which resulted in imposition of the Conditional license. The parties stipulated at the hearing that Tags F329 and F431 were the only ones at issue in this proceeding. In conducting its survey, Respondent uses a document developed by the Health Care Financing Administration (HCFA), called the State Operations Manual. It indicates guidance on how are to interpret regulations. TAG F 329 The 2567 from the July survey asserts, under Tag F 329, that the facility "failed to monitor psychotropic medications for 5 of 5 sampled residents." The regulation states that residents are to be "free from unnecessary drugs," and elaborates that a drug given without adequate monitoring is considered unnecessary. The guidelines establish that monitoring is expected only for residents on psychotropic medications. Therefore, for a violation to occur, there must first be a resident who is receiving psychotropic medications, and secondly, a lack of monitoring of the use of that drug. Respondent alleged and put on evidence that certain residents (numbers 1, 9, 19, and 21) identified in the July survey did not have "behavior monitoring records" in their files. Specific forms are not mandatory, and evidence of monitoring can be documented elsewhere in a resident's clinical record. Monitoring can be documented in nurses' notes, and those notes were not thoroughly reviewed, as Respondent's surveyors only had limited time for the survey. Respondent presented no evidence that Residents 9, 19, or 21 were receiving psychotropic medications. Petitioner presented evidence of numerous systems in place to monitor residents, including those receiving psychotropic medications. Residents are given a complete clinical assessment within 24 hours of admission; there is then a 14-day more thorough observation and assessment process, culminating in the development of care plans which address particular issues and direct staff to care for residents in particular ways. Nurses regularly document issues or concerns in nurses notes; a physician visits the residents at least once a month, which, as all drugs are ordered by the physician, includes review of the resident's medication. If necessary, a psychiatric evaluation is completed. Once a week a transdisciplinary team meets to discuss any residents "at risk," which includes those receiving psychotropic medications. Additionally, a consultant pharmacist reviews all residents' medications once a month. This review is to determine how well the resident is doing on the drug regimen. It includes reviewing nurses' notes, physicians' notes, the medication administration record, the record of dosages taken on an "as needed" basis, and discussions with nursing staff. The pharmacist reviews whether there are medications administered in excessive doses, in excessive duration, without adequate monitoring, without adequate indications for use, or in the presence of adverse consequences. With regard to the September survey, Respondent alleged in the Form 2567 that "Residents numbers 3, 4, 9, 11, and 13 lacked Behavior Monitoring Forms in their records" and that all were on psychotropic medications which required monitoring. Respondent presented the testimony of Barbara Bearden who stated that Residents 3 and 4 were on psychotropic medications, and that there were no behavior monitoring forms. With regard to Resident 4, Respondent asserted that there was no assessment of behaviors in any records after August 14. Bearden acknowledged that both Residents 3 and 4 received reasonable doses, and that there was no reason to believe the level of medication was too high. Respondent's witness also asserted that there was no "AIMS" assessments, no initial assessment, and no indication of the reason for or effectiveness of the medications. These matters were not alleged in the charging document, which only asserted the lack of behavior monitoring forms. During her testimony, Respondent's witness acknowledged that there was no standard to determine how often there should be behavior monitoring. Marie Maisel testified for Respondent regarding Residents 9, 11, and 13. With regard to Resident 9, she testified that the resident received Restoril, a sleeping medication, and also Zoloft, an anti-depressant, and that there was no "systematic behavior monitoring." Sleeping medications do not require behavior monitoring, according to the State Operations Manual, and at deposition, the surveyor indicated that the only medication the resident received was Restoril. Petitioner therefore had no notice of the additional allegation regarding Zoloft and this fact cannot be considered. With regard to Resident 11, Maisel testified that the resident received Risperdal, a psychotropic medication, and that, in her opinion, the behavior monitoring was not adequate. At hearing the surveyor testified that Resident 13 was receiving Haldol and there was no systemic behavior monitoring. However, the witness acknowledged that when her deposition was taken, she did not know why Resident 13 had been cited. Petitioner therefore had no notice of these allegations regarding Resident 13. Petitioner presented evidence, including excerpts from the resident's clinical record, that Resident 3 had been assessed for drug use, and that behaviors were monitored. The resident had been admitted less than three weeks before the September survey, which means that an initial assessment had been performed, as well as the complete 14-day assessment, just prior to survey. Respondent admitted that it would be inappropriate to reduce medication soon after admission. There was a care plan which addressed the resident's use of Risperdal, and another which addressed the resident's ability to function with the activities of daily living. These care plans directed staff to monitor the resident's condition and behavior. Numerous nursing notes documented the resident's condition and behaviors. Resident 3 was not noted in the pharmacist's monthly report, meaning the review revealed no problems with medications. Furthermore, the resident's medications were significantly reduced while in Petitioner's care, and her condition improved dramatically, from being nearly comatose, to being alert and oriented, and needing only limited assistance with mobility. Resident 4 had been admitted just a month before the survey and had also just undergone an extensive assessment process. Her medications were also reduced from those she had been receiving on admission, and nurses notes clearly documented her condition and behaviors throughout the period up to the survey. These notes document not only the monitoring of behaviors, but the reason and need for the medication, as she exhibited combative behaviors. Resident 4 also did not appear on the pharmacist's report. With regard to Resident 9, Petitioner presented evidence that there was a care plan specifically addressing the resident's use of Zoloft, that there were other care plans which addressed behaviors and condition which required that the resident be monitored, and that there was periodic consideration of reductions. Resident 9 did appear on the pharmacist's report, suggesting consideration of a reduction in dosage; thus demonstrating the effectiveness of the system. Resident 11 had a care plan addressing her use of Risperdal, which required monitoring and other interventions. Monthly nursing summaries reflected that she was monitored, as did nursing notes. Generally, nurses notes indicate when there are problems or unusual occurrences, not when everything is routine. Petitioner also presented evidence with regard to Resident 13's use of Haldol, which showed the reason for its use (wandering, verbal abusiveness), numerous efforts to reduce the dosage, review by the pharmacist, a care plan to address its use, which required monitoring, and monthly summaries summarizing her condition and behaviors. Respondent presented sufficient evidence to show that Residents 3, 4, 9, 11, and 13, cited in the September survey, were appropriately monitored and were not receiving unnecessary drugs. TAG F431 Respondent charged in the September 2000 survey that several insulin vials in the medication room were not marked with the date they were opened. The regulation under Tag F431, 42 C.F.R. Subsection 483.60(d), requires that drugs be labeled "in accordance with currently accepted professional principles" and "the expiration date when applicable." The surveyor guidelines indicate that the critical elements of labeling are the name of the drug and its strength. Additionally, the guidelines advise that drugs approved by the Federal Drug Administration (F.D.A.) must have expiration dates on the manufacturer's container. Respondent's witness acknowledged that all insulin had the manufacturer's expiration date. Although there is a chance of contamination after opening a vial of insulin, it was acknowledged that it is customary to have a policy allowing use for six months after opening. Petitioner has a policy of discarding insulin 60 days after opening. While it is customary to write the opening date on the vial, a failure to do so will only reduce the amount of time it can be used, because of other systems in place. The pharmacy which dispenses the insulin puts a dispensing date on it, and the pharmacist reviews, monthly, stored medications. Within every three months, all medications are checked, and if there is no date of opening, the pharmacist looks to the dispensing date. If the vial was dispensed more than 60 days prior, it is given to the nurse for discarding. Instead of being able to be used for six months beyond the date opened, the medication is discarded sixty days, or at most ninety days, after it was dispensed. Writing the date opened on the vial is not an item encompassed by the regulation as explicated in the guidelines. Furthermore, there is no potential for harm, as there are redundant systems in place.
Recommendation Based of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Director of the Agency for Health Care Administration enter a final order revising the July 27 and September 5, 2000, survey reports by deleting the deficiencies described under Tags F329 and F431, and issuing a Standard rating to Respondent to replace the previously issued Conditional rating. DONE AND ENTERED this 22nd day of August, 2001, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of August, 2001. COPIES FURNISHED: Patricia J. Hakes, Esquire Agency for Health Care Administration 525 Mirror Lake Drive, North Room 310J St. Petersburg, Florida 33701 Donna H. Stinson, Esquire Broad and Cassel 215 South Monroe Street, Suite 400 Post Office Drawer 11300 Tallahassee, Florida 32302 Sam Power, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building Three Suite 3431 Tallahassee, Florida 32308 Julie Gallagher, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building Three Suite 3431 Tallahassee, Florida 32308
