Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: In November of 1983, HMA filed its application for a Certificate of Need to construct and operate a 60-bed adolescent treatment center in Orlando, Florida. An omissions response was filed by HMA in January of 1984. Thereafter, HRS issued its initial intent to grant the application and PIO requested an administrative hearing. HMA is a privately held corporation which owns or manages twelve or thirteen acute care hospitals in the States of Kentucky, West Virginia, Pennsylvania, Missouri, Texas and Florida, several of which are psychiatric hospitals. The proposed long-term psychiatric treatment facility for adolescents is patterned after a 55-bed program currently operated by HMA in Arlington, Texas. The proposed facility will be a freestanding campus-like setting located on ten to fifteen acres of land in the southern portion of Orlando. The precise site has not yet been selected. The single-story facility will have a total size of approximately 45,000 to 50,000 square feet and will be divided into two separate units which connect into a core area containing various support services, such as offices, a gymnasium, a swimming pool, a media center, and an occupational therapy area. While the location finally selected for the facility will have a bearing on the site costs of the project, the estimated construction costs of approximately 3.1 billion do contain a contingency factor and are reasonable at this stage of the project. Each unit will be served by two interdisciplinary treatment teams headed by a physician or a psychiatrist. Key personnel for the facility, such as department heads and program directors, will most likely be recruited from outside the Orlando area in order to obtain persons with experience in long-term care for adolescents. The treatment program is designed to serve adolescents between the ages of 10 and 19, though the bulk of patients will be middle school and high school individuals between the ages of 13 and 17. While the primary service area will be adolescents in District 7, the remainder of the central Florida region is identified as a secondary service area. A full educational program at the facility is proposed. The concept of the hospital will be to treat the whole person, not just his psychiatric problems, and the treatment program will include and involve family members and other factors which may have a bearing on the adolescent's ability to fit into society. The form of treatment is based upon a "levels" approach -- a form of behavior modification wherein privileges are granted for appropriate behavior and the patient is allowed to move up to the next succeeding level of privileges. It is contemplated that the average length of stay for a patient will be approximately six months -- the average time anticipated for a patient to move from the admission level to the level of discharge. HMA intends to seek accreditation of its proposed facility from the Joint Commission on Accreditation of Hospitals. The total estimated project cost for the proposed facility is $6,307,310.00. Financing is to be obtained either through a local bond issue or by a private lending institution. Based upon an evaluation of HMA's audit reports for the past three years, an expert in bond financing of health care facilities was of the opinion that HMA would be eligible either for a private placement or a bond issue to finance the proposed project. HMA intends to charge patients $325.00 per day, and projects an occupancy rate of 80 percent at the end of its second year of operation. This projection is based upon a lack of similar long-term psychiatric facilities for adolescents in the area, the anticipated, experience at the Arlington, Texas adolescent facility and the anticipated serving of clients from CYF (Children Youth and Families -- a state program which; serves adolescents with psychiatric and mental problems). Although no established indigent care policy is now in existence, HMA estimates that its indigency caseload will be between 3 and 5 percent. It is anticipated that the proposed facility will become a contract provider for CYF for the care and treatment of their clients and that this will comprise 20 percent of HMA's patient population. HRS's Rule 10-5.11(26), Florida Administrative Code, relating to long- term psychiatric beds, does not specify a numerical methodology for quantifying bed need. However, the Graduate Medical Education National Advisory Committee (GMFNAC) methodology for determining the need for these beds is generally accepted among health care planners. The GMENAC study was initially performed in order to assess the need for psychiatrists in the year 1990. It is a "needs- based" methodology, as opposed to a "demand-based" methodology, and attempts to predict the number of patients who will theoretically need a particular service, as opposed to the number who will actually utilize or demand such a service. Particularly with child and adolescent individuals who may need psychiatric hospitalization, there are many reasons why they will not seek or obtain such care. Barriers which prevent individuals from seeking psychiatric care include social stigma, the cost of care, concerns about the effectiveness of care, the availability of services and facilities and other problems within the family. Thus, some form of "demand adjustment" is necessary to compensate for the GMENAC formula's overstatement of the need for beds. The GMENAC formula calculates gross bed need by utilizing the following factors: a specific geographic area's population base for a given age group, a prevalency rate in certain diagnostic categories, an appropriate length of stay and an appropriate occupancy factor. In reaching their conclusions regarding the number of long-term adolescent psychiatric beds needed in District 7, the experts presented by HMA and PIO each utilized the GMENAC formula and each utilized the same prevalency rate for that component of the formula. Each appropriately used a five-year planning horizon. However, each expert reached a different result due to a different opinion as to the appropriate age group to be considered, the appropriate length of stay, the appropriate occupancy factor and the factoring in of a "demand adjustment." In calculating the long-term adolescent psychiatric bed need for District 7 in the year 1989, HMA's expert used a population base of ages 0 to 17, lengths of stay of 150 and 180 days, an occupancy level of 80 percent and an admissions factor of 96 percent. Utilizing those figures, the calculation demonstrates a 1989 need for 158 beds if the average length of stay is 150 days, and 189 beds if the average length of stay is 180 days. If the population base is limited to the 10 to 19 age bracket, the need for long-term psychiatric beds is reduced to between 70 and 90, depending upon the length of stay. From these calculations, HMA's expert concludes that there is a significant unmet need for long-term adolescent psychiatric beds in District 7. This expert recognizes that the numbers derived from the GMENAC formula simply depict a statistical representation or indication of need. In order to derive a more exact number of beds which will actually be utilized in an area, one would wish to consider historical utilization in the area and/or perform community surveys and examine other site-specific needs assessment data. Believing that no similar services or facilities exist in the area, HMA's need expert concluded that there is a need for a 60-bed facility in District 7. In applying the GMENAC methodology, PIO's need expert felt it appropriate to utilize a base population of ages 10 through 17, an average length of stay of 90 days and an occupancy rate of 90 percent. Her calculations resulted in a bed need of 37 for the year 1990. Utilizing a length of stay of 120, 150 and 180 days and a 90 percent occupancy rate, a need of 50, 62 and 75 beds is derived. If an occupancy rate of 80 percent is utilized, as well as a population of ages 10 - 17, the need for beds is 42, 56, 70 and 84, respectively, for a 90, 120, 150 and 180 day average length of stay. The need expert for PIO would adjust each of these bed need numbers by 50 percent in order to account for the barriers which affect the actual demand for such beds. Since the HMA proposed facility intends to provide service only to those patients between the ages of 10 and 19, use of the 0 - 17 population would inflate the need for long-term adolescent psychiatric beds. Likewise, PIO's non-inclusion of 18 and 19 year olds understates the need. PIO's use of a 90-day average length of stay would tend to understate the actual need in light of HMA's proposed treatment program which is intended to last approximately six months. While some demand adjustment is required to properly reflect the barriers which exist to the seeking of long-term adolescent psychiatric care, the rationale of reducing by one-half the number derived from the GMENAC methodology was not sufficiently supported or justified. Even if HMA's calculations were reduced by one-half, a figure of between 79 and 94 beds would be derived. The existence of other long-term adolescent psychiatric beds in District 7 was the subject of conflicting evidence. West Lake Hospital in Longwood, Seminole County, holds a Certificate of Need and a license as a special Psychiatric hospital with 80 long-term beds. However, the Certificate of Need was issued prior to the adoption of Rules 10-5.11(25) and (26), Florida Administrative Code, when anything in excess of 28-days was considered long- term. The West Lake application for a Certificate of Need referred to a four- to-six week length of stay -- or a 28 to 42 day period --for adults, and a ten week, or 70 day length of stay for children and adolescents. In preparing inventories for planning purposes, HRS considers the 40 child and adolescent psychiatric beds at West Lake Hospital to be acute or short-term beds. The West Lake facility is not included in HRS's official inventory of licensed and approved long-term care beds as of October 1, 1984. In fact, the only long-term care beds listed for District 7, in addition to HMA's proposed psychiatric facility, are beds devoted to the treatment of substance abuse. PI0 is the holder of a Certificate of Need to construct and operate a 60-bed short-term adolescent psychiatric hospital in Southwest Orange County, and is currently planning the actual development and construction of the facility. If PIO is not able to reach the census projections contained in its Certificate of Need application, its ability to generate earnings could be adversely impacted. Even a five percent decrease in PIO's census projections would require PIO to either raise its rates or make reductions in direct costs. This could include a decrease in staffing, thus affecting a reduction in the available programs, problems in attracting quality staff and ultimately a reduction in the quality of care offered at the PIO facility. In a batch subsequent to the HMA application, PIO requested the addition of 15 long-term adolescent psychiatric beds and 15 substance abuse beds. When an adolescent psychiatric patient is evaluated for placement in a hospital setting, it is generally not possible to determine how long that patient will require hospitalization. The adolescent psychiatric patient is often very guarded, distrusting both parents and other adults, and it is difficult to obtain full and necessary information from both the patient and the parents. Several weeks of both observation and the gathering of data, such as school records, are necessary in order to access the adolescent patient's degree of disturbance. With respect to treatment programs, there is no sharp medical demarcation between a 60-day period and a 90 day period. Patients in short-term facilities often stay longer than 60 days and patients in long term facilities often stay less than 90 days. The length of stay is very often determined by the parents, in spite of the treatment period prescribed by the physician. The treatment programs in both short-term and long-term psychiatric facilities are very similar, and short- and long-term patients are often treated in the same unit. Staffing for the two types of facilities would be basically the same, with the exception, perhaps, of the educational staff.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that HMA grant HMA's application for a Certificate of Need to construct and operate a 60-bed long-term adolescent psychiatric facility in Orlando, Florida. Respectfully submitted and entered this 9th day of July, 1985, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of July, 1985. COPIES FURNISHED: C. Gary Williams and Michael J. Glazer P. O. Box 391 Tallahassee, Florida 32302 John M. Carlson Assistant General Counsel 1323 Winewood Blvd. Building One, Suite 407 Tallahassee, Florida 32301 Robert S. Cohen O. Box 669 Tallahassee, Florida 32301 David Pingree Secretary Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32301 =================================================================
Conclusions THIS CAUSE comes before the Agency For Health Care Administration (the "Agency") concerning Certificate of Need ("CON") Application No. 10131 filed by The Shores Behavioral Hospital, LLC (hereinafter “The Shores”) to establish a 60-bed adult psychiatric hospital and CON Application No. 10132 The entity is a limited liability company according to the Division of Corporations. Filed March 14, 2012 2:40 PM Division of Administrative Hearings to establish a 12-bed substance abuse program in addition to the 60 adult psychiatric beds pursuant to CON application No. 10131. The Agency preliminarily approved CON Application No. 10131 and preliminarily denied CON Application No. 10132. South Broward Hospital District d/b/a Memorial Regional Hospital (hereinafter “Memorial”) thereafter filed a Petition for Formal Administrative Hearing challenging the Agency’s preliminary approval of CON 10131, which the Agency Clerk forwarded to the Division of Administrative Hearings (“DOAH”). The Shores thereafter filed a Petition for Formal Administrative Hearing to challenge the Agency’s preliminary denial of CON 10132, which the Agency Clerk forwarded to the Division of Administrative Hearings (‘DOAH”). Upon receipt at DOAH, Memorial, CON 10131, was assigned DOAH Case No. 12-0424CON and The Shores, CON 10132, was assigned DOAH Case No. 12-0427CON. On February 16, 2012, the Administrative Law Judge issued an Order of Consolidation consolidating both cases. On February 24, 2012, the Administrative Law Judge issued an Order Closing File and Relinquishing Jurisdiction based on _ the _ parties’ representation they had reached a settlement. . The parties have entered into the attached Settlement Agreement (Exhibit 1). It is therefore ORDERED: 1. The attached Settlement Agreement is approved and adopted as part of this Final Order, and the parties are directed to comply with the terms of the Settlement Agreement. 2. The Agency will approve and issue CON 10131 and CON 10132 with the conditions: a. Approval of CON Application 10131 to establish a Class III specialty hospital with 60 adult psychiatric beds is concurrent with approval of the co-batched CON Application 10132 to establish a 12-bed adult substance abuse program in addition to the 60 adult psychiatric beds in one single hospital facility. b. Concurrent to the licensure and certification of 60 adult inpatient psychiatric beds, 12 adult substance abuse beds and 30 adolescent residential treatment (DCF) beds at The Shores, all 72 hospital beds and 30 adolescent residential beds at Atlantic Shores Hospital will be delicensed. c. The Shores will become a designated Baker Act receiving facility upon licensure and certification. d. The location of the hospital approved pursuant to CONs 10131 and 10132 will not be south of Los Olas Boulevard and The Shores agrees that it will not seek any modification of the CONs to locate the hospital farther south than Davie Boulevard (County Road 736). 3. Each party shall be responsible its own costs and fees. 4. The above-styled cases are hereby closed. DONE and ORDERED this 2. day of Meaich~ , 2012, in Tallahassee, Florida. ELIZABETH DEK, Secretary AGENCY FOR HEALTH CARE ADMINISTRATION
The Issue The issue in the case is whether the allegations of the Administrative Complaint (as limited by the Notice of Limitation of Issues dated June 15, 2004) are correct, and if so, what penalty should be imposed.
Findings Of Fact At all times material to this case, the Respondent was a licensed mental health counselor, holding Florida license number ME 5853. In approximately July 2001, the Respondent began to counsel a five-year-old female, allegedly the victim of sexual abuse by an uncle, the brother of the child's mother. The Respondent believed, based on information provided by the father, that the uncle resided with the child's mother. The child's father had custody of the child, and the mother had some type of visitation rights. In approximately November of 2001, the Respondent began counseling the child's father and his girlfriend for various family-related issues. Towards the end of 2001 or early 2002, the father and his girlfriend married. Although the Respondent testified at the hearing that the couple "seemed to have plenty of money to do certain things," including personal care and entertainment expenses, she apparently believed, based on what she was told by the couple, that they had financial difficulties. The couple resided in a home owned by the child's father. Apparently based solely on the couple's representations, the Respondent believed that the father was in arrears on house payments. One of the issues addressed in counseling was the father's concern that, were he to lose his house, the child would be returned to the mother's custody, where the uncle resided. Also apparently based solely on the couple's representations, the Respondent believed that the couple wanted to purchase a new house and that they needed $7,000 to buy the house. In March of 2002, the Respondent loaned the couple $7,000. The couple repaid within a few weeks a total of $9,000 to the Respondent. At the time of the $7,000 loan, the clients owed to the Respondent a balance of approximately $3,200 in unpaid professional fees related to therapeutic services provided to them by the Respondent. The Petitioner asserts that the $9,000 repaid to the Respondent included interest charges of $2,000. Petitioner's Exhibit number one is a copy of a document dated March 20, 2002, and apparently notarized on March 21, 2002. The document appears to require that the couple repay to the Respondent by not later than May 16, 2002, a principal amount of $7,000 plus $2,000 in "interest" for a total of $9,000. The genesis of the document is unclear. At the hearing, the wife testified that the document memorialized the agreement between the Respondent and the couple. The Respondent testified that she did not require preparation or execution of any loan documentation. The Respondent testified that the funds received from the couple included repayment of the loan plus payment of $2,000 towards the unpaid professional fees. Based on the candor and demeanor of the witnesses at the hearing, the Respondent's testimony as to the basis for the payment of the $2,000 is credited. Subsequent to the loan and repayment transactions, the therapeutic situation deteriorated between the Respondent and the couple, particularly as to the wife, who began to believe that the Respondent was romantically involved with the husband. The therapeutic relationship between the couple and the Respondent dissolved acrimoniously within a few months after the loan. At the hearing, the Petitioner presented the expert testimony of Dr. Owen Wunderman, a Florida-licensed mental health counselor, and Dr. Andrew Wenger, a Florida-licensed psychologist. Both testified as to the Florida Statutes and as to ethical standards adopted by the American Counseling Association (ACA) applicable to the fact situation at issue in this proceeding. The Respondent presented the expert testimony Dr. Barbara Herlihy, a professor at the University of New Orleans and a licensed professional counselor in Louisiana and Texas. Dr. Herlihy has been involved with the adoption of the existing ACA standards and has written texts related to the issue of dual relationships in counseling situations. As identified during the hearing, the ACA standards address the issue of dual relationships as follows: Avoid when possible. Counselors are aware of their influential positions with respect to clients and they avoid exploiting the trust and dependency of clients. Counselors make every effort to avoid dual relationships with clients that could impair professional judgment or increase the risk of harm to clients. (Examples of such relationships include, but are not limited to, familial, social, financial, business, or other close personal relationships with clients.) When a dual relationship cannot be avoided, counselors take appropriate professional precautions such as informed consent, consultation, supervision, and documentation to ensure that judgment is not impaired and no exploitation occurs. Both Dr. Wunderman and Dr. Wenger testified that by making the $7,000 loan to her clients, the Respondent entered into a dual relationship (counselor and creditor) with the couple, and that in doing so, the Respondent failed to meet minimum standards of performance in professional activities when measured against generally prevailing peer performance, as well as violated the ACA standards. Dr. Wunderman testified that there was a meaningful risk of non-repayment of the $7,000 loan, given that the clients were several thousand dollars in arrears in paying professional fees, thereby increasing the likelihood that the therapist/creditor would have to take legal action against the clients for repayment, an action likely to impair professional judgment or increase the potential risk of harm to the clients, whether or not legal action was actually initiated. Dr. Herlihy testified that she did not regard the fact situation at issue in this case as a dual relationship because she viewed it as a "one-time" short-term loan and that there was no evidence that the counseling relationship between the parties was harmed. Dr. Herlihy testified that she viewed the situation as a "boundary crossing." Dr. Herlihy acknowledged that short of loaning a client a small sum for cab fare, she was unaware of any mental health counselor making a loan to a client such as occurred in this case. She also acknowledged that she was not familiar with professional performance standards as specifically applied to Florida practitioners. The weight of the evidence establishes that Drs. Wunderman and Wenger are more familiar with the minimum standards of professional performance as measured against generally prevailing peer performance within the State of Florida. The testimony of Dr. Wunderman and Dr. Wenger is credited.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a final order finding the Respondent has violated Subsection 491.009(1)(r), Florida Statutes (2002), and imposing a fine of $1,000, a reprimand, and a one-year period of probation. DONE AND ENTERED this 13th day of January, 2005, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 13th day of January, 2005. COPIES FURNISHED: Ellen M. Simon, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 William N. Swift, Esquire William N. Swift, Attorney at Law 901 Southwest Martin Downs Boulevard Suite 208 Palm City, Florida 34990 Susan Foster, Executive Director Board of Clinical Social Work, Marriage and Family Therapy & Mental Health Counseling Department of Health 4052 Bald Cypress Way, Bin C-08 Tallahassee, Florida 32399-1701 R.S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701 Quincy Page, Acting General Counsel Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701
Conclusions Having reviewed the Amended Notice of Intent to Deny, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency has jurisdiction over the above-named Petitioner pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Amended Notice of Intent to Deny and Election of Rights form to the Petitioner. (Ex. 1) The Election of Rights form advised of the right to an administrative hearing. 3. The parties have since entered into the attached Settlement Agreement. (Ex. 2) Based upon the foregoing, it is ORDERED: 4. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement, which set forth requirements of continued licensure imposed upon the Petitioner. The failure to comply with these requirements may result in licensure revocation or application denial as set forth in the Settlement Agreement. ORDERED at Tallahassee, Florida, on this 24 day of _Dece bey~ , 2012. Filed December 26, 2012 3:20 PM Division of Administrative Hearings
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, 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 of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I CERTIFY that a true and correct pry of this Final Order was served on the below-named persons by the method designated on this 7/ lay of [ech , 2012. Richard Shoop, Agency Ch Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Shaddrick Haston, Unit Manager Facilities Intake Unit Assisted Living Unit (Electronic Mail) Agency for Health Care Administration (Electronic Mail) Suzanne S. Hurley Rafael Gaitan, Esq. Office of the General Counsel Gus Suarez, Esq. Agency for Health Care Administration Counsel for Southern Parks, Inc. (Electronic Mail) 1110 Brickell Avenue, Suite 407. Miami, Florida 33131-3135 (U.S. Mail) | Pat Caufman, Field Office Manager R. Bruce McKibben Area 5/6 Administrative Law Judge Agency for Health Care Administration Division of Administrative Hearings (Electronic Mail) (Electronic Mail) Paul Brown, Health Facility Evaluator Supervisor Area 5/6 Agency for Health Care Administration (Electronic Mail) RICK SCOTT FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION, ELIZABETH DUDEK GOVERNOR Better Health Care for all Floridians INTERIM SECRETARY August 8, 2012 Sanny P. Panningbatan, Administrator Southern Parks, Inc. d/b/a/ Southern Oaks ALF P.O. Box 789 Wauchula, FL 33873 re: Case No.: 2012005197 AMENDED NOTICE OF INTENT TO DENY Dear Ms. Panningbatan: The Agency for Health Care Administration hereby DENIES the application by Southern Parks, Inc. d/b/a Southern Oaks ALF for renewal of its Assisted Living Facility license. The Specific Basis for this determination is a failure by the facility to pay outstanding fines and assessed fees from 2008 in the amount of $154; a failure by the facility to pay an outstanding Medicaid fine in the amount of $6000 in Case #121947000; a failure by the facility to obtain a satisfactory Level 2 background screen for its Chief Financial Officer; and the facility has shown a pattern of deficient practice as indicated in detail below. The applicant failed to meet minimum licensure standards pursuant to Sections 408.809, 408.815(1)(d), 408.831, 429.14(1)(e), 429.14(3), and 429.174, Florida Statutes.’ On June 22, 2010, a complaint investigation was conducted. A widespread Class I deficiency was cited because the facility was found out of compliance with local authorities that oversee building construction codes and water and fire safety standards. The county fire jurisdiction had to issue a cease and desist order to suspend the use of the facility as related to multiple electrical violations; a “boil water” alert had also been put in place and all of the facility’s 49 residents had to be relocated on an emergency basis. A widespread Class II deficiency was also cited for the facility’s failure to maintain a safe and decent living environment and physical plant. The place was filthy throughout, including mattresses in the rooms, dirty floors & walls, bathrooms had mold, toilets were filled with feces and cigarette butts, blinds were broken, cockroaches were everywhere. The facility agreed to an immediate moratorium on admissions until corrections were made and approved by the Agency. On May 18, 2011, a complaint investigation was conducted. Four Class Il deficiencies were cited because the facility had failed to assure that its staff had received training in basic CPR and ' For each citation subsequently noted, the relevant section(s) of the Florida Statutes or Administrative Rule(s) violated, as was provided contemporaneously to the facility in writing, is incorporated herein by reference. SIN Headquarters 2727 Mahan Drive Tallahassee, FL 32308 http:/fahca.myflorida.com Area Office 525 Mirror Lake Drive, N. Sebring Building, #330H St. Peter wr 33701 EXHIBIT 4 First Aid, failed to assure proper training for its staff who worked with mental health residents, failed to assure sufficient staff to provide the necessary supervision, safety and care to the residents, and failed to obtain and keep the required medical examination reports for the residents. A patterned Class II deficiency was also cited for the facility’s failure to assure the required criminal background clearance for employees who were providing personal services. On June 28, 2011, a revisit to the complaint investigation was conducted and the facility had failed to correct the cited deficiencies. The Agency cited four uncorrected Class III deficiencies as it still lacked sufficient staff to provide proper care and supervision; it lacked sufficient qualified staff to care for the mental health residents; it failed to provide minimum staffing hours and it had still not required proper training in CPR and First Aid for the staff providing services. On July 22, 2011, a follow up survey was conducted in regard to the above and three Class III deficiencies were cited. The deficiencies included that the facility was failing to provide care and services appropriate to the needs of the residents, medications were being mishandled, and the physical plant was still filthy with evidence of pest and/or insect droppings. On September 15, 2011, a second revisit to the June 28 complaint investigation was conducted and two uncorrected Class III deficiencies were cited. The facility had still not required the proper training in CPR and First Aid for staff providing personal services and had failed to assure that one staff member trained in CPR and First Aid were available on all shifts. Corrections were not completed until October 27, 2010. On August 4, 2011, a monitoring visit was conducted with “operation spot check.” Twelve Class III deficiencies were cited, including: a) residents’ health assessments indicated that they were inappropriate for assisted living; b) some residents lacked the required health assessments; c) documentation was lacking to show that the residents were receiving proper activities; d) the facility had no elopement policy and had failed to conduct elopement drills as required; e) the facility was assisting a resident with medication when there was no signed physician order for same; f) the facility had failed to put in place the required Do Not Resuscitate (“DNR”) policy; g) staff members were lacking the required training in abuse, neglect, resident rights, emergency procedures and reporting adverse incidents; h) the facility administrator lacked the required nutrition and food service training; i) the facility staff lacked the required training for DNR; j) the facility had failed to obtain the required surety bond before acting as representative payee for residents; j) the facility had failed to maintain a safe living environment with regard to sanitation; and k) the facility had failed to assure that it had contracts with all of its residents. On November 17, 2011, another complaint survey was conducted along with a revisit. Two Class III deficiencies were cited. The medication observation record was found not to match the medication orders for residents on healthcare forms signed by their physicians. The residents had been receiving medications which were not ordered and had been missing medications that their physicians had ordered for them. The deficiencies appeared to be corrected on January 31, 2012, when the Agency conducted three complaint surveys. On March 5, 2012, a complaint survey was conducted in conjunction with a revisit survey and two Class III deficiencies were cited. The facility was failing to fill out the medication observation record appropriately and it was using an outdated form for the heaithcare assessments for the residents. Corrections had been made when the Agency returned on April 26, 2012. The Class I and Class II deficiencies along with an extraordinarily-large number of Class III deficiencies supports the Agency’s denial. EXPLANATION OF RIGHTS Pursuant to Section 120.569 Florida Statutes, you have the right to request an administrative hearing. In order to obtain a formal proceeding before the Division of Administrative Hearings under Section 120.57(1), Florida Statutes, your request for an administrative hearing must conform to the requirements in Section 28-106.201, Florida Administrative Code and must state the material facts you dispute. SEE ATTACHED ELECTION OF RIGHTS FORM Sincerely, Shh Z— Shaddrick A. Haston, Manager Assisted Living Unit Bureau of Long Term Care Services Copy to: Jan Mills, Office of the General Counsel STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION RE: SOUTHERN PARKS, INC. d/b/a CASE NO.: 2012005197 SOUTHERN OAKS ALF ELECTION OF RIGHTS’ This Election of Rights form is attached to a proposed action by the Agency for Health Care Administration (AHCA). The title may be Notice of Intent to Deny, Notice of Intent to Impose a Late Fee, Notice of Intent to Impose a Late Fine or Administrative Complaint. Your Election of Rights must be returned by mail or by fax within 21 days of the day you receive the attached Notice of Intent to Deny, Notice of Intent to Impose a Late Fee, Notice of Intent to Impose a Late Fine or Administrative Complaint. If your Election of Rights with your selected option is not received by AHCA within twenty- one (21) days from the date you received this notice of proposed action by AHCA, you will have given up your right to contest the Agency’s proposed action and a final order will be issued. (Please use this form unless you, your attorney or your representative prefer to reply according to Chapter120, Florida Statutes (2012) and Rule 28, Florida Administrative Code.) PLEASE RETURN YOUR ELECTION OF RIGHTS TO THIS ADDRESS: Agency for Health Care Administration Attention: Agency Clerk 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308. Phone: 850-412-3630 Fax: 850-921-0158. PLEASE SELECT ONLY 1 OF THESE 3 OPTIONS: OPTION ONE (1) I admit to the allegations of facts and law contained in the Notice of Intent to Impose a Late Fine or Fee, or Administrative Complaint and I waive my right to object and to have a hearing. I understand that by giving up my right to a hearing, a final order will be issued that adopts the proposed agency action and imposes the penalty, fine or action. OPTION TWO (2) I admit to the allegations of facts contained in the Notice of Intent to Impose a Late Fee, the Notice of Intent to Impose a Late Fine, or Administrative Complaint, but I wish to be heard at an informal proceeding (pursuant to Section 120.57(2), Florida Statutes) where I may submit testimony and written evidence to the Agency to show that the proposed administrative action is too severe or that the fine should be reduced. ' Here filed in response to the Agency’s Amended Notice of Intent to Deny OPTION THREE (3)___—s-.s dispute the allegations of fact contained in the Notice of Intent to Impose a Late Fee, the Notice of Intent to Impose a Late Fine, or Administrative Complaint, and I request a formal hearing (pursuant to Subsection 120.57(1), Florida Statutes) before an Administrative Law Judge appointed by the Division of Administrative Hearings. PLEASE NOTE: Choosing OPTION THREE (3), by itself, is NOT sufficient to obtain a formal hearing. You also must file a written petition in order to obtain a formal hearing before the Division of Administrative Hearings under Section 120.57(1), Florida Statutes. It must be received by the Agency Clerk at the address above within 21 days of your receipt of this proposed administrative action. The request for formal hearing must conform to the requirements of Rule 28-106.2015, Florida Administrative Code, which requires that it contain: 1. Your name, address, and telephone number, and the name, address, and telephone number of your representative or lawyer, if any. 2. The file number of the proposed action. 3. A statement of when you received notice of the Agency’s proposed action. 4. A statement of all disputed issues of material fact. If there are none, you must state that there are none. Mediation under Section 120.573, Florida Statutes, may be available in this matter if the Agency agrees. License type: (ALF? nursing home? medical equipment? Other type?) Licensee Name: License number: Contact person: Name Title Address: Street and number City Zip Code Telephone No. Fax No. Email(optional) [hereby certify that I am duly authorized to submit this Notice of Election of Rights to the Agency for Health Care Administration on behalf of the licensee referred to above. Signed: Date: Print Name: Title: Deny/Late fee/fine/AC STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION SOUTHERN PARKS, INC. d/b/a SOUTHERN OAKS ALF, Petitioner, vs. DOAH Case No. 12-2274 AHCA Case No. 2012005197 STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Respondent. / SETTLEMENT AGREEMENT Respondent, the State of Florida, Agency for Health Care Administration (the “Agency”), through its undersigned representatives, and Petitioner, Southern Parks, Inc. d/b/a Southem Oaks ALF (“Petitioner”), pursuant to Section 120.57(4), Florida Statutes, each individually, a “party,” collectively as “parties,” hereby enter into this Settlement Agreement (“Agreement”) and agree as follows: WHEREAS, Petitioner is an assisted living facility licensed pursuant to Chapters 429, Part I and 408, Part II, Florida Statutes, and Chapter 58A-5, Florida Administrative Code; and WHEREAS, the Agency has jurisdiction by virtue of being the regulatory and licensing authority over Petitioner, pursuant to Chapters 429, Part I and 408, Part II, Florida Statutes; and WHEREAS, the Agency served Petitioner with a Notice of Intent to Deny dated May 10, 2012, and an Amended Notice of Intent to Deny dated August 8, 2012, notifying the Petitioner of the Agency’s intent to deny Petitioner’s renewal application for licensure to operate an assisted living facility in the State of Florida; and WHEREAS, Petitioner requested a formal administrative proceeding by selecting Option “3” on the Election of Rights form or by the filing of a Petition; and EXHIBIT 2 WHEREAS, the parties have negotiated and agreed that the best interest of all the parties will be served by a settlement of this proceeding; and NOW THEREFORE, in consideration of the mutual promises and recitals herein, the parties intending to be legally bound, agree as follows: 1. All recitals herein are true and correct and are expressly incorporated herein. 2. Both parties agree that the “whereas” clauses incorporated herein are binding findings of the parties. 3. Upon full execution of this Agreement, Petitioner agrees to waive any and all appeals and proceedings to which it may be entitled including, but not limited to, an informal proceeding under § 120.57(2), Florida Statutes, a formal proceeding under § 120.57(1), Florida Statutes, appeals under § 120.68, Florida Statutes; and declaratory and all writs of relief in any court or quasi-court of competent jurisdiction; and agrees to waive compliance with the form of the Final Order (findings of fact and conclusions of law) to which it may be entitled provided that the form of the Final Order remains consistent with the recitals, “whereas” clauses, and terms of this Settlement Agreement; and, further that no agreement herein shall be deemed a waiver by either party of its right to judicial enforcement of this Agreement. 4. Upon full execution of this Agreement, the parties stipulate and agree as follows: a. Petitioner shall contract with and maintain as a consultant Ms. Marlene Hunter, MS CHCRM, commencing September 1, 2012, and extending for two (2) years thereafter. Petitioner shall cause its consultant to review and complete a written quarterly report on a monthly basis regarding the facility’s operations and regulatory compliance. Said quarterly report shall include, but not be limited to: assessments of and actions taken related to medication administration and records, quality of care, risk management activities, staff training activities, and the adoption or amendment of facility policy and procedures. The quarterly report shall be maintained by Petitioner and provided to the Agency upon request. b. The provisions of subparagraph (a) above and the affirmative duties therein, shall continue in full force and effect throughout any renewal of the Petitioner’s license as necessary during the two (2) year period referenced herein. c. Petitioner places itself under a Voluntary Limitation on Admissions effective (retroactive to) August 17, 2012. The Voluntary Limitation on Admissions prohibits Petitioner from admitting any resident which would result in the Facility’s census exceeding forty (40) residents. d. A violation of the Voluntary Limitation on Admissions shall result in administrative sanctions by the Agency just as if for violation of a duly-entered Emergency Immediate Moratorium on Admissions. e. On or after February 17, 2013, the Petitioner may request the Agency’s authorization to discontinue its Voluntary Limitation on Admissions. Any such request shall be supported by documentation, including but not limited to, reports or records of Petitioner’s consultant referenced in subparagraph (a) above, which demonstrate actions undertaken by Petitioner to assure current and future compliance with the regulatory mandates. Upon receipt of any such request, the Agency may take such action as is appropriate and prudent, including but not limited to: a survey of the Facility, a request for further information or direct communication with Petitioner’s consultant. The Agency agrees to review any request in good faith, in a timely manner and not to unreasonably withhold consent. Said review shall be conducted as soon as possible and/or practical for the Agency. Should consent be denied, the Agency shall state in writing the reasons for 5. denial and will provide, if applicable, corrective measures to be taken by Petitioner to receive consent. Petitioner may seek further consent at any time. f. Upon adoption of this Agreement as a Final Order of the Agency, the Agency for Health Care Administration shall issue to Petitioner a renewal license for a facility capacity of sixty (60) residents, valid for a period of two calendar years commencing on May 5, 2012. g. On or after September 1, 2013, the Petitioner may apply to increase its licensed capacity at the Facility as provided by law. Any application to increase the licensed capacity of the Petitioner’s facility filed prior to September 1, 2013, shall be summarily denied based upon the terms of this Agreement and that the Petitioner waives any right to challenge said summarily denied application in any judicial or quasi-judicial forum. The Agency further agrees to review any application, received on or after September 1, 2013, to increase Petitioner’s licensed capacity in good faith and not to unreasonably deny the same other than as provided by law. Should Petitioner’s application be denied, the reasons for the denial shall be set forth in writing or as provided by law. h. Should Petitioner be cited for one Class I, one Class II, or three or more uncorrected Class III deficient practices at any survey over a two-year period from the date of the issuance of the renewal license (i.e., May 5, 2012), Petitioner stipulates that the deficient practice(s) will, if proven, constitute grounds for revocation of the Petitioner’s license (if provided for by law) in addition to additional Agency action pursuant to applicable provisions of law. Venue for any action brought to enforce the terms of this Agreement or the Final Order entered pursuant hereto shall lie in Circuit Court in Leon County, Florida. 6. By executing this Agreement, Petitioner denies the allegations set forth in the Notice of Intent to Deny and the Amended Notice of Intent to Deny, and the Agency asserts the validity of the allegations raised in these Notices of Intent to Deny. No agreement made herein shall preclude the Agency from imposing a penalty against Petitioner for any deficiency/ violation of statute or rule identified in a future survey of Petitioner, which constitutes a “repeat” or “uncorrected” deficiency from surveys identified in the administrative complaint. 7. No agreement made herein shall preclude the Agency ftom using the deficiencies from the surveys identified in the Notice of Intent to Deny in any decision regarding licensure of Petitioner, including, but not limited to, licensure for limited mental health, limited nursing services, extended congregate care, or a demonstrated pattern of deficient performance, as provided for by then existing law. The Agency is not precluded from using the subject events for any purpose within the jurisdiction of the Agency as provided for by law. Further, Petitioner acknowledges that this Agreement shall not preclude or estop any other federal, state, or local agency or office from pursuing any cause of action or taking any action, even if based on or arising from, in whole or in part, the facts raised in the administrative complaint. This agreement does not prohibit the Agency from taking action regarding Petitioner’s Medicaid provider status, conditions, requirements or contract. 8. Upon full execution of this Agreement, the Agency shall enter a Final Order adopting and incorporating the terms of this Agreement and closing the above-styled case. 9. Each party shall bear its own costs and attorney’s fees. 10. This Agreement shall become effective on the date upon which it is fully executed by all the parties. 11. Petitioner for itself and for its related or resulting organizations, its successors or transferees, attorneys, heirs, and executors or administrators, does hereby discharge the State of Florida, Agency for Health Care Administration, and its agents, representatives, and attorneys of and from all claims, demands, actions, causes of action, suits, damages, losses, and expenses, of any and every nature whatsoever, arising out of or in any way related to this matter and the Agency’s actions, including, but not limited to, any claims that were or may be asserted in any federal or state court or administrative forum, including any claims arising out of this agreement, by or on behalf of Petitioner or related facilities; provided and limited, however, that Petitioner’s rights to any costs, expenses or attorneys fees arising from or relating to enforcement of this Settlement Agreement shall survive. 12. This Agreement is binding upon all parties herein and those identified in paragraph eleven (11) of this Agreement. 13. In the event that Petitioner was a Medicaid provider at the subject time of the occurrences alleged in the complaint herein, this settlement does not prevent the Agency from secking Medicaid overpayments related to the subject issues or from imposing any sanctions pursuant to Rule 59G-9.070, Florida Administrative Code. 14, Petitioner agrees that if any funds to be paid under this agreement to the Agency are not paid within thirty-one (31) days of entry of the Final Order in this matter, the Agency may deduct the amounts assessed against Petitioner in the Final Order, or any portion thereof, owed by Petitioner to the Agency from any present or future funds owed to Petitioner by the Agency, and that the Agency shall hold a lien against present and future funds owed to Petitioner by the Agency for said amounts until paid. 15. The undersigned have read and understand this Agreement and have the authority to bind their respective principals to it. Petitioner has the capacity to execute this Agreement. 16. This Agreement contains and incorporates the entire understandings and agreements of the parties. 17. This Agreement supersedes any prior oral or written agreements between the parties. 18. This Agreement may not be amended except in writing. Any attempted assignment of this Agreement shall be void. 19. All parties agree that a facsimile signature suffices for an original signature. The following representatives hereby acknowledge that they are duly authorized to enter into this Agreement. epi Agency for Health Care Administration _2727 Mahan Drive Tallahassee, Florida 32308 DATED: _\ vi Stuart F. Williams General Counsel Agency for Health Care Administration 2727 Mahan Drive, Building #3 Tallahassee, Florida 32308-5407 : ie urley, Seni ’ Florida Bar No. 0985775 r Lake Drive, Suite 330H St. Petersburg, Florida 33701 Of G (20) 32. DATED: Florida Bar No. 17987 Gus Suarez, Esq. Florida Bar No. 616613 Counsel for Southern Parks, Inc. ~ 1110 Brickell Avenue? Suite 407 ~~ Miami, Florida 33131-3135 paTep: /°/ 9 /20/2_ Name (printed): Sherry Qanleo Position: i Southern Parks, Inc. DATED: 9-/4-ja@
Findings Of Fact At all times material each of the petitioners was licensed by the Department of Health and Rehabilitative Services in accordance with Chapter 397, Florida Statutes. Each was enrolled as a mental health provider in the Florida Medicaid program under section 409.906(8), Florida Statutes, administered by the Agency for Health Care Administration (Agency). The Agency's handbook describing community mental health Medicaid provider requirements states that to be enrolled in Medicaid a provider must have a current contract for the provision of community mental health services or hold a regular license from the Department of Health and Rehabilitative Services (HRS) as an alcohol or drug abuse treatment and prevention program. The petitioners were licensed but did not have and still do not have contracts with HRS' Alcohol, Drug Abuse and Mental Health program office. In or about April 1995, staff in the agency's Medicaid program office revisited a prior interpretation of the Medicaid statute and determined that an HRS contract was required. After consulting with HRS as to which providers were under contract, the agency sent notices to those, including petitioners, which it deemed were out of compliance. The notification letter provides, in pertinent part: According to s. 409.906(8), Florida Statutes, Medicaid can pay for community mental health services that are provided in a mental health, drug abuse or alcohol abuse center that is licensed, if applicable, and under contract to the Department of Health and Rehabilitative Services (HRS), Alcohol, Drug Abuse and Mental Health (ADM) program office. Since your center does not have a contract with the ADM office, your Medicaid provider number must be cancelled. (Petitioners' exhibit no. 24) The letter was amended later in October to establish a 30-day delay in the termination effective date. As stipulated, the lack of contract is the only basis for termination of the petitioners' provider numbers. The agency does not consider this basis as a "violation" subject to sanction or discipline. Effective December 1995, the agency changed its Medicaid handbook to reflect the requirement of a current HRS contract for the provision of community mental health services.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Agency for Health Care Administration enter its final order revoking the Petitioners' Medicaid provider numbers. DONE and ENTERED this 20th day of June, 1996, in Tallahassee, Florida. MARY CLARK, 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 20th day of June, 1996. COPIES FURNISHED: Gordon Scott, Senior Attorney Agency for Health Care Administration Fort Knox 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308-5403 John M. Knight, Esquire 2804 Remington Green Circle, Suite 4 Tallahassee, Florida 32308 Sam Power, Agency Clerk Agency for Health Care Administration Ft. Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308-5403 Jerome Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308-5403
