Findings Of Fact Tarsha's Little People, Inc. operates a group home facility for young developmentally disabled people who are moderately to profoundly retarded. The facility located in Tampa, Florida, is licensed by the Department of Health and Rehabilitative Services. In addition to being licensed by HRS, TLP also holds a contract with the Department to provide services to HRS clients for a fee. TLP currently provides residential and developmental services to 13 HRS clients. They live in the group homes, attend local schools as appropriate, and receive additional training in daily living skills at TLP. Because of their retardation the clients at TLP require constant supervision to prevent them from harming each other or themselves. Without assistance many of them cannot take care of simple daily needs such as eating, bathing or dressing. Medication Logs Many of the clients at TLP have potent psychotropic medication such as Haldol and Mellaril prescribed for them. These are powerful mood altering drugs which have serious side-effects. Proper monitoring of dosage administration is vital to the therapeutic use of these drugs as the daily dosage is usually increased until the patient's behavior which is being modified changes. Without adequate administration records the physician prescribing the medication will have distorted information on which to rely when determining the proper dosage necessary to achieve a therapeutic level. As part of its residential service TLP administers medication to its residents. As soon as a dose is given the administration should be entered on a medication log. In numerous instances entries were not made by the TLP staff at the time medicine was given or should have been given. This failure to properly record medication has resulted in inaccurate medication logs with serious discrepancies in the amount of drugs administered to TLP residents. The medication logs at TLP show more medication having been dispensed to each client than was sold for that client by Eagle Drug Company, the sole source of medicine for TLP residents. As an example, for client Michael C. TLP records show 374 one milligram doses of Haldol having been administered, but Eagle Drug Company had filled prescriptions for only 300 one milligram pills for Michael C. Similar errors appear in the records of four other clients. It is reasonable to infer that while the inaccurate medication logs show an adequate administration of medicine to TLP clients, the clients have not actually received the medicine in the amounts prescribed for them. The failure to properly record medication posed a substantial danger to the health and well- being of the five clients whole records were introduced here. Eating Supervision and Tooth Brushing During July 1982 an HRS retardation program supervisor visited TLP for an inspection. She observed three deficiencies at the home. At the evening meal the residents were fed, among other foods, large pieces of ham, but each resident was provided only a spoon with which to eat. They were unable to cut the ham into chewable pieces and therefore had to pick the meat up with their hands and gnaw bite-size pieces off. This procedure presented a danger of choking for the residents and failed to provide them with the opportunity to learn the proper use of knives and forks. After dinner the residents customarily brushed their teeth. During the time the HRS retardation program supervisor was there, after each resident brushed his teeth his brush was taken back by a TLP staff member and placed in a single glass of water for all the residents. One client had gums which bled profusely yet his brush was placed in the common glass. The water colored red from his blood. After brushing each client was given a sip of water from another common glass of water. During the residents' bath time, two staff members accompanied two residents at a time to the bathroom while only one staff member remained to supervise the balance of the residents in the home. This is totally inadequate supervision for 13 or 14 retarded clients. If the HRS program supervisor had not been scheduled to visit TLP that evening the evidence indicates that only one staff member would have been scheduled for duty at bath time. There would have therefore been no one available to supervise the residents while that one staff person was giving baths. There is no direct evidence that the use of a common glass of water for drinking and toothbrushes was a regular practice or was an isolated incident at TLP. The scheduling of inadequate staff for client supervision at bath time was however shown to be a regular practice. Brian B.'s Helmet Brian B., one of TLP's clients, suffered from poor muscular coordination. He frequently fell. He wore a helmet to protect his head when he did fall. In January 1982 a chin strip which held on his helmet broke. Brian B. was prone to chew on the strap and thereby weakened it until it failed. On May 26, 1982 a Department staff member became aware that Brian had fallen and injured his head. As a result of his injuries TLP ordered a new chin strap for his helmet but the strap did not arrive until two and one-half months later. In August 1982 immediately before the new strap arrived Brian again fell and caused a gash in his head which required hospital treatment. It was only after considerable prodding from HRS that the new strap was obtained. The new strap did not however alleviate the problem with the helmet as later that year Brian B. was observed wearing the helmet with the strap knotted rather than properly buckled under his chin. He was removed from TLP. When the helmet was taken off his hair was matted and had a strong stench from not being washed. The failure of TLP to promptly remedy the problem of Brian B.'s helmet strap needlessly exposed him the risk of serious head injury. Kevin B.'s French Leave During his residency at TLP between May 1981 and September 1982 Kevin B. escaped from the facility at least five times. On the occasion of his last escape on September 6, 1982 he was picked up by the Tampa Police approximately 19 blocks from the facility. Despite requests from HRS that a behavior modification program to eliminate his propensity to escape be implemented, no effective program was devised by TLP. The facility's efforts to restrain his wander lust by installing dead bolts and bells on his door were easily frustrated by his escaping through the room window. Because of his retarded mental state it was dangerous for Kevin B. to be loose by himself in the community. After his last escape from TLP he was placed in another facility which was later able to sufficiently restrain him and modify his behavior, but not before a few more escape attempts. Loose Floor Covering On June 22, 1982 TLP was notified by the Department that the floor covering in parts of the facility was not safe due to having been ripped up by the clients. The problem was not fixed until mid-September 1982. Several of TLP's clients have gait difficulty. For them torn up flooring is a significant hazard. TLP had some difficulties securing the replacement covering. This fact accounts for some of the delay in making the repairs but this incident, like that of Brian B.'s helmet, is illustrative of TLP's attitude in not taking the initiative to recognize unsafe situations and then remedy them without waiting for a push from the Department. The incident also demonstrates that there are periods of time when TLP clients were not adequately supervised. In order to rip up the flooring they must have had considerable time alone without a staff member being present. Bites, Scratches and Sores The parties presented conflicting evidence on whether the clients of TLP were subject to more incidents of bites, scratches and other sores than were residents in similar facilities in the Tampa Bay area. Such proof is difficult to quantify. Because TLP clients are not exclusively within the control of TLP all the time, the Department was not able to prove that TLP is responsible either directly or indirectly for the minor injuries sustained and exhibited by TLP clients. When the clients attend school or commute to school by bus they can suffer injury. The Department's proof did not eliminate the possibility or probability that many of the injuries to TLP clients occurred in situations, other than those under the supervision of TLP. I therefore find the Department failed to establish that TLP clients experience a disproportionate number of bites, scratches and sores. Ernie J.'s Medication During September 1982 Ernie J., a client at TLP, was receiving the drug Mellaril under a prescription issued by Dr. Shirley Borkowf. Ernie attended school and required the administration of his Mellaril drug during the school day. As was its custom Ernie's school requested from TLP information indicating what medication he should be given at school and the amount of dosage. TLP responded by telling the school he should receive Benadryl, yet TLP sent to schools his proper medication, Mellaril. The school discovered the discrepancy, sought clarification from TLP, and Ernie suffered no harm because of the error. Post Complaint Improvements Subsequent to the filing of the original Administrative Complaint, TLP has made several improvements to its facility. Three adult staff members are now on duty during the busiest hours of the day, between 4:00 p.m. and midnight. The interior of the facility has been painted, pictures have been hung on the walls, and three tree stumps have been removed from the grounds. In April 1983 TLP sought professional advice for improving its medication logs, and on the basis of that advice has instituted procedures for maintaining significantly better medication records which if followed will comply with the Department's standards.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Health and Rehabilitative Services enter a Final Order revoking the license of Tarsha's Little People. Inc. to operate a group home facility for developmentally disabled people. DONE and RECOMMENDED this 29th day of February, 1984, in Tallahassee, Florida. MICHAEL PEARCE DODSON 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 29th day of February, 1984.
The Issue The issue in these consolidated cases is whether two Petitions for Resolution of Reimbursement Dispute are entitled to be considered on the merits, or whether, instead, they should be dismissed.
Findings Of Fact The Department is the state agency with exclusive jurisdiction to resolve reimbursement disputes between health care providers and carriers under section 440.13(7), Florida Statutes (2019),2/ part of the Workers' Compensation Law. Dr. Aponte is a physician. As such, he is a health care provider, as defined in section 440.13(1)(g). Dr. Aponte operates a business called Body Contouring, Inc., at which he provides medical services to patients, including injured workers. Sedgwick Claims Management Services, Indemnity Insurance Company of North America, The Hartford Medical Bill Processing Center, and Twin City Fire Insurance Company are carriers, as defined in section 440.13(1)(c). At issue in both cases are bills submitted by Dr. Aponte to one of the referenced carriers for services provided to injured workers, which were paid, in part, and adjusted by the carrier. In each case, Dr. Aponte was notified of the adjustments to each bill by means of an Explanation of Bill Review (EOBR) from the carrier explaining why his bill was not fully paid. If a health care provider such as Dr. Aponte is dissatisfied with a carrier's adjustment or disallowance of charges on a bill for services to an injured worker, the provider's recourse is to serve a Petition for Resolution of Reimbursement Dispute on the Department within 45 days after the provider receives the EOBR. In both consolidated cases, Dr. Aponte seeks to contest certain carrier adjustments to bills submitted for services he rendered to injured workers. The specific adjustments he seeks to contest are reductions to his charges that were explained in EOBRs as being made pursuant to a contractual arrangement. Each EOBR making this adjustment identified a preferred provider organization (PPO) network--Coventry Pend and Transmit, or Coventry P&T--and each EOBR explained that the PPO reduction was made pursuant to the terms of Dr. Aponte's/Body Contouring, Inc.'s contract with Aetna. Dr. Aponte seeks to contest these PPO reductions because he claims that the contract with Aetna was terminated. The merits of the reimbursement disputes are not at issue, however. The sole issue presented is whether the Department should accept Dr. Aponte's petitions and proceed to resolve the reimbursement disputes presented. Case No. 19-1517 On May 2, 2018, an injured worker had a 15-minute outpatient office visit with Dr. Aponte at Body Contouring, Inc. Dr. Aponte submitted a bill for the 15-minute outpatient office visit to the employer's carrier. The billed amount was $125.00. The bill was adjusted by the carrier for two reasons explained in an EOBR issued on May 11, 2018. The carrier reduced the charge because it exceeded the fee schedule allowance in the Florida Workers Compensation Health Care Provider Reimbursement Manual (Provider Manual). The carrier also reduced the charge by an additional $25.37, based on a written contractual arrangement. The EOBR identified the "PPO Network" as Coventry Pend and Transmit, or Coventry P&T, and the explanatory notes indicated that the Coventry P&T PPO reduction was "in accordance with your Aetna contract." After the two adjustments, Dr. Aponte was paid $54.63. The May 11, 2018, EOBR included the notice required by the Department for carrier EOBR forms. The notice specified that the health care provider may elect to contest the disallowance or adjustment of payment under section 440.13(7), and that such an election must be made by the provider within 45 days of receipt of the EOBR. Dr. Aponte did not timely serve a Petition for Resolution of Reimbursement Dispute on the Department to contest the adjustments in the May 11, 2018, EOBR. Instead, he communicated directly with the carrier. Ultimately, on February 6, 2019, Dr. Aponte resubmitted the same bill to the carrier for the 15-minute outpatient office visit on May 2, 2018, with the same $125.00 charge, and asked the carrier to reconsider. That same day--February 6, 2019--the carrier issued a second EOBR. The EOBR indicated that payment of the resubmitted $125.00 bill was disallowed in its entirety, and gave the following explanation: "billing error: duplicate bill." Dr. Aponte prepared a Petition for Resolution of Reimbursement Dispute on the form required by the Department (incorporated by reference in a rule), and served it on the Department on February 8, 2019. Dr. Aponte's petition asserted that the EOBR he was contesting was received on February 6, 2019, which was the date on which the second EOBR was issued. Dr. Aponte identified a single issue in dispute: whether the carrier improperly adjusted the charge by applying a PPO network reduction of $25.37. Dr. Aponte contended that "there is no contract between Luis Aponte, MD/Body Contouring[,] Inc.[,] and Coventry." However, the PPO network adjustment was not made in the February 6, 2019, EOBR. The adjustment Dr. Aponte wanted to contest was made in the May 11, 2018, EOBR. Dr. Aponte attached both the May 11, 2018, EOBR and the February 6, 2019, EOBR to his petition. He added the following explanation for attaching the two EOBRs: "A petition for resolution of reimbursement dispute was previously submitted to the FL Dept. Financial Services on 07/30/18 initiating this reimbursement dispute." The Department reviewed the petition and attachments to determine if the petition was timely served. Since the 45-day window to serve a petition begins to run upon receipt of the EOBR, the Department has a "computation of time" rule providing alternative ways for a provider to prove the date of EOBR receipt. See Fla. Admin. Code R. 69L-31.008. One way is by showing a date stamp affixed by the provider to the EOBR on the date of receipt. Another way is through a verifiable login process. The third way is to show the postmark date on the envelope in which the EOBR was received, in which case five calendar days is added to the postmark date to allow for mail time. If the provider does not utilize one of these three methods to prove the date of receipt, the Department will use the "default" method in its rule, whereby the EOBR receipt date is deemed to be five calendar days after the date on which the EOBR was issued. Dr. Aponte did not utilize one of the three options in the Department's rule, which are set forth in the form petition, to prove the dates on which he received either EOBR. As noted above, he completed the petition by giving only the date on which he received the second EOBR. The Department applied the default method in its rule to determine the receipt date of the first EOBR, which is the EOBR that made the PPO reduction adjustment sought to be challenged. The Department determined that Petitioner was deemed to have received the first EOBR on May 16, 2018. Accordingly, the deadline for serving a petition to contest the adjustments in the May 11, 2018, EOBR was June 30, 2018, 45 calendar days after May 16, 2018. The Petition for Resolution of Reimbursement Dispute at issue in this case, served on the Department on February 8, 2019, was more than seven months too late.3/ Petitioner offered no evidence or argument to excuse his untimely submittal. Case No. 19-2653 Dr. Aponte provided services to an injured worker at Body Contouring, Inc., on October 10, 2018, and October 31, 2018, for which Dr. Aponte submitted bills to the employer's carrier. Bill for Services on October 10, 2018 On October 10, 2018, Dr. Aponte saw the patient for an outpatient office visit at Body Contouring, Inc., at which Dr. Aponte provided prolonged evaluation and management (E&M). Dr. Aponte's charges submitted to the carrier were $450.00 for the office visit and $220.00 for the prolonged E&M service. An EOBR was issued on November 16, 2018, adjusting both charges for two reasons explained in the EOBR. Both charges were reduced because they exceeded the fee schedule in the Provider Manual. Both charges were further reduced by a total of $79.91 pursuant to a written contractual arrangement. The EOBR explained these adjustments as Coventry P&T PPO reductions "in accordance with your Aetna contract." After the adjustments, Dr. Aponte was paid $260.09. The 45-day deadline to serve a petition on the Department to contest the adjustments explained in the November 16, 2018, EOBR was January 5, 2019 (using the default methodology to determine the EOBR receipt date in the absence of any other evidence). Dr. Aponte did not timely serve a Petition for Resolution of a Reimbursement Dispute on the Department to contest the adjustments in the November 16, 2018, EOBR. Instead, he communicated directly with the carrier and requested a re- evaluation of the bill. The carrier issued a second EOBR on December 31, 2018, disallowing payment of both line item charges on the resubmitted bill. The explanation in the EOBR for disallowing payment was "billing error: line item service previously billed and reimbursement decision previously rendered." Bill for Services on October 31, 2018 On October 31, 2018, Dr. Aponte saw the same injured worker for another outpatient office visit at Body Contouring, Inc., at which the patient received two injections. Dr. Aponte's charges submitted to the carrier were: $300.00 for the office visit; $330.00 for one injection; and $100.00 for the other injection. An EOBR was issued on November 21, 2018, adjusting the office visit charge and disallowing the two injection charges, for reasons explained in the EOBR. The $300.00 office visit charge was reduced because it exceeded the fee schedule allowance in the Provider Manual. The charge was further reduced by $48.16, pursuant to a written contractual arrangement. The EOBR explained the latter reduction as a Coventry P&T PPO reduction, "in accordance with your Aetna contract." The EOBR also explained that both injection charges were disallowed because the documentation did not substantiate that the services billed were rendered. After the adjustments and the disallowances, Dr. Aponte was paid $110.84. The 45-day deadline to serve a petition on the Department to contest the adjustments or disallowances in the November 21, 2018, EOBR was January 10, 2019 (using the default methodology to determine the EOBR receipt date in the absence of any other evidence). Dr. Aponte did not timely serve a petition for resolution of a reimbursement dispute on the Department to contest the adjustments in the November 21, 2018, EOBR. Instead, he communicated directly with the carrier and requested a re- evaluation of the bill. The carrier issued another EOBR on December 27, 2018, disallowing payment of the resubmitted bill for services rendered on October 31, 2018. The reason given for disallowing payment as to each of the three charges on the bill was "billing error: line item service previously billed and reimbursement decision previously rendered."4/ Dr. Aponte prepared a Petition for Resolution of Reimbursement Dispute on the required form, seeking to contest the PPO adjustments made to the bills for services rendered to the same injured employee on October 10 and 31, 2018. He attached only the final re-evaluation EOBRs, issued December 31, 2018 (for the bill for services on October 10, 2018), and December 27, 2018 (for the bill for services on October 31, 2018). Dr. Aponte named the Petitioner as "Luis Aponte/Body Contouring, Inc." The instructions on the form specify that the named Petitioner must be a health care provider as defined in section 440.13(1)(b). Dr. Aponte gave a single date--January 7, 2019--as the EOBR receipt date. However, he did not select the method used to establish the EOBR receipt date, as provided in the form petition. The form instructs that if the EOBR receipt date is not established by one of the specified methods, then the EOBR receipt date will be deemed to be five days from the issue date on the EOBR. Dr. Aponte identified the issue in dispute as the PPO adjustments applied to the bills. However, neither of the re- evaluation EOBRs attached to the petition made any PPO adjustment. Dr. Aponte identified the disputed amount of the PPO adjustments as $162.69. That is the sum of the PPO adjustments made in the November 16, 2018, EOBR ($79.91), the November 21, 2018, EOBR ($48.16), and the December 7, 2018, EOBR ($34.62) (see endnote 4). Dr. Aponte did not attach any of the EOBRs that made the disputed PPO adjustments, but he did attach a letter that he identified and explained as follows: "A copy of the contract termination notice sent to Aetna has been provided."5/ The Department reviewed the petition for completeness. The Department evaluator noted that the attached EOBRs were identified as "Re-evaluation" EOBRs that did not make the disputed PPO adjustments. However, no timeliness determination could be made because the EOBRs that explained the PPO adjustments were not attached. In addition to failing to attach the relevant EOBRs, the petition was found to also be deficient in several other respects. The Department identified all perceived deficiencies in a Notice of Deficiency sent to Dr. Aponte by certified mail. He was instructed to correct all of the deficiencies within ten days after his receipt of the notice. Dr. Aponte timely responded, and cured all perceived deficiencies except one. The Department had found the petition deficient because it named as the petitioner "Luis Aponte/Body Contouring, Inc." However, the instructions on the form petition emphasize that the named petitioner had to be a "health care provider" as defined in section 440.13(1)(g). The Notice of Deficiency required a new form petition curing "Petitioner name and mailing address. This is the provider name, not the business name." The directive is not very clear. It could be interpreted as describing what is in the petition Dr. Aponte submitted ("This is"), instead of describing what should have been in the petition. Dr. Aponte's transmittal letter, listing the documents enclosed to cure the deficiencies, states that he provided a completed petition with the Petitioner's name and address. The transmittal letter was signed, with the following typed on two separate lines below the signature line: "Luis Aponte, MD" and "Body Contouring, Inc." The enclosed petition, however, named the Petitioner in the same manner as in the original petition: "Luis Aponte/Body Contouring, Inc." The undersigned appreciates the Department's concern that a Petition for Resolution of Reimbursement Dispute must be submitted by a "health care provider" meeting the statutory definition. But in this instance, the Department was well aware that the health care provider was Luis Aponte, M.D., as were the carriers involved in reviewing and adjusting his bills, and issuing the EOBRs that Dr. Aponte is seeking to contest. Indeed, the Department's initial decision, set forth in a Reimbursement Dispute Dismissal, names the Petitioner as "Luis Aponte, M.D." The Department's Reimbursement Dispute Dismissal recites that Dr. Aponte failed to provide the curative documentation as required in the Notice of Deficiency. At hearing, the Department, through its evaluator who signed the Reimbursement Dispute Dismissal, testified that the sole deficiency not cured by Dr. Aponte was to name a petitioner that met the definition of a "health care provider." According to the Department, Dr. Aponte needed to add "M.D." after his name on the petition (as he did in the transmittal letter). The Department's evaluator also testified that since she determined that the petition had to be dismissed for failure to cure this deficiency, she did not go on to address the timeliness issue that could not be determined previously without the relevant EOBRs. Had the evaluator determined the deficiencies to be cured, she would have proceeded to assess the relevant EOBRs, which were provided by Dr. Aponte in response to the deficiency notice. She would have determined that the petition was not served on the Department within 45 days of receipt of the EOBRs that explained the contested PPO adjustments, and she would have dismissed the petition as untimely. Based on the Department's evidence and an independent assessment of the facts by which timeliness is determined, the undersigned finds that Dr. Aponte's petition, served on February 8, 2019, was not timely. The 45-day deadlines to serve petitions contesting the PPO adjustments explained in three different EOBRs were: January 5, 2019 (for the November 16, 2018, EOBR); January 10, 2019 (for the November 21, 2018, EOBR); and January 19, 2019 (for the December 7, 2018, EOBR). Dr. Aponte's petition was untimely, and not just by a day or two, but by at least 20 days. He offered no evidence or argument to excuse his untimely submittal.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered in these consolidated cases by the Department of Financial Services, Division of Workers' Compensation, dismissing as untimely the Petitions for Resolution of Reimbursement Dispute submitted by Petitioner, Luis Aponte, M.D. DONE AND ENTERED this 4th day of October, 2019, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of October, 2019.
The Issue Should discipline be imposed against Respondent's license to practice chiropractic medicine for violation of Section 456.072(1)(c), Florida Statutes (2003)?
Findings Of Fact Facts Established by Admission Effective July 1, 1997, Petitioner is the state agency charged with regulating the practice of chiropractic medicine pursuant to Section 20.43, Florida Statutes. Petitioner is the state agency charged with regulating the practice of chiropractic medicine pursuant to Chapters 456 and 460, Florida Statutes. Respondent is and has been at all times material hereto a licensed chiropractic physician in the State of Florida, having been issued license number CH 5396 on October 14, 1986. Respondent's last known address is 9471 Baymeadows Road #108, Jacksonville, Florida 32256-0154. JHCS operated as a medical clinic offering and supplying chiropractic and medical services to patients. Respondent caused or allowed claims to be filed with Medicare and other health care benefit programs claiming reimbursement for the professional component of Magnetic Resonance Imaging tests (MRI). The report generated as a result of the outside radiologist was placed onto JHCS' letterhead to give the appearance that the radiologist was an employee of JHCS and Respondent. Respondent pled guilty to crimes that occurred in the course of Respondent's practice of chiropractic medicine (during his hours of operation). For Diagnostic Ultrasound (DU) and Nerve Conduction Velocity (NCV) billing, Respondent submitted claims for the technical portion of DU or NCV test, which is the performance of the test, even though Respondent did not contribute his professional expertise to the performance of the test. Respondent would submit claims to various health care benefit programs for the technical component of the test. Additional Facts In United States of America v. Mark Schoenborn, United States District Court, Middle District of Florida, Jacksonville Division, Case No. 3:03-cr-315-J-25MMH, Respondent pled guilty to Count 1 of the information, 18 U.S.C. §§ 1347 and 371. The nature of the offense was conspiracy to defraud a health care benefit program. The offense ended September 2002. The judgment in the criminal case held to the following effect: The defendant is sentenced as provided in pages 2 through 5 of this judgment. This sentence is imposed pursuant to the Sentencing Reform Act of 1984, as modified by United States v. Booker. At page 4 of 5 the obligation for restitution is set forth as part of the sentence. A sentence was imposed in the case on February 11, 2005, in which Respondent was placed on probation, for a term of three years. A special condition of supervision was that Respondent participate in the Home Detention Program for a period of six, assumed to be months, and that he perform 100 hours of community service. Respondent was required to pay a $10,000.00 fine and to make $400,000.00 in restitution. The payees in the restitution were: Aetna, Inc., $52,944.00; United Health Group, $38,076.00; DHHS/CMMS, Division of Accounting, $245,609.00; and Blue Cross/Blue Shield of Florida, $63,371.00. Respondent would receive credit for all payments previously made toward any criminal monetary penalties imposed on a joint and several basis with Respondent Charles Doll, United States District Court, Case No. 3:03-cr-314-J-25MMH. Respondent has referred patients for MRIs to provide information about soft tissue in relation to the formation of a disc. In particular, the information about the disc would pertain to a herniated or bulging disc. The information imparted in the MRI results assists in diagnosing a patient, according to Respondent. It is not involved with the treatment of the patient. The initial diagnosis is made without the benefit of an MRI. Respondent refers patients for NCV tests, the results of which may show nerve pressure, according to Respondent. The diagnosis will have been formulated before the referral is made usually. This special test assists in further understanding "things going on with a patient." The results of the test could further assist Respondent in rendering care. Respondent has used DU in his practice. The information provided by those tests is a showing of inflammation in an area. The results help Respondent decide what to do with a patient, as far as additional treatment, and whether there may be the need to make a referral outside his practice or some other choice. In making the referrals that have been described, Respondent believes that he is making that choice as a chiropractic physician. Expert Opinion Michael William Mathesie, D.C., is licensed to practice chiropractic medicine in Florida. He is an expert in the field of chiropractic medicine. Petitioner hired Dr. Mathesie as its consultant in the case, to express an opinion concerning Respondent's practice in view of the allegations in the Administrative Complaint. In Dr. Mathesie's opinion the practice of chiropractic medicine consists of diagnosis and treatment of nerves, muscles, joints, and conditions of the spine and extremities. Diagnosis of a patient would consist of inspection and palpation, range of motion, orthopedic maneuvers, neurological evaluations, X-rays, CT scans, MRIs, neurological diagnostic testing, and other specialized tests, as well as blood laboratory evaluations. Treatment would consist of adjustments to the spine to correct subluxations, or other lesions of the spine causing nerve irritation or impulses or nerve transmission problems. Physical therapy modalities, nutrition, counseling and other non- pharmaceutical and non-neurological procedures are also involved. Dr. Mathesie explained the use of diagnostic testing in the practice of chiropractic medicine. If a patient has a long- standing condition of the spine or extremities, such as nerve pain shooting down the arm or numbness or tingling, a NCV test might be run, but the test may not be used on a regular basis for reasons other than the evaluation of the patient's condition. To do so would skew the diagnostic abilities of the chiropractic physician, according to Dr. Mathesie. Chiropractors are taught diagnostic testing and evaluation in chiropractic school. In his practice Dr. Mathesie bills for his services rendered to the patient in accordance with Section 460.41, Florida Statutes. Jan Allen Fralicker, D.C., was called as an expert to testify in behalf of Respondent Schoenborn. Dr. Fralicker is licensed in Florida to practice chiropractic medicine. In addressing the allegations in the Administrative Complaint directed to Respondent Schoenborn of a violation of Section 456.072(1)(c), Florida Statutes, and equally applicable to Respondent Doll, Dr. Fralicker does not believe that the allegations pertain to the practice of chiropractic medicine. Dr. Fralicker explains that the practice of chiropractic medicine in Florida is the diagnosis and treatment of human elements without the use of drugs or surgery, to include diagnostic testing. The crime to which Respondent Schoenborn pled and Dr. Doll pled, involves fraud in the criminal aspect, according to Dr. Fralicker, for receiving money for services not performed. The criminal activity did not actually involve Respondent's functioning as a chiropractor related to patients being treated. In Dr. Fralicker's opinion ordering the tests involved in the case, as Dr. Fralicker understands it, was the practice of chiropractic medicine, but defrauding a health care benefit program is not related to the practice of chiropractic medicine. Nothing about Dr. Fralicker's understanding of the criminal law matter involved a standard of care issue. Dr. Fralicker separates the criminal activity from the practice of chiropractic medicine. In summary, while ordering diagnostic tests is part of chiropractic medicine, pleading guilty to defrauding a health care program is not, in the view of Dr. Fralicker. What Respondents were engaged in was practicing chiropractic and then separately involving themselves in criminal activity to defraud, i.e. getting paid for something not being done. Dr. Fralicker is familiar, as a chiropractic physician, with submitting billing to be reimbursed for services as a chiropractic physician. He submits requests for reimbursement. The submission of requests for reimbursement is seen by Dr. Fralicker as part of the practice of chiropractic medicine. Dr. Fralicker believes that chiropractors providing a service must meet the standards of what the general population of chiropractors would do in the area where they practice, involving appropriate diagnosis and referral to another professional, if necessary, for additional treatment. He does not believe that the Respondents violated the professional standards. Neither opinion of the experts is persuasive, beyond its value in establishing the nature of the practice of chiropractic medicine in delivering care and billing for the services provided. Dr. Schoenborn Previous Disciplinary History In the case Agency for Health Care Administration, Petitioner v. Mark E. Schoenborn, D.C., Respondent, before the State of Florida, Agency for Health Care Administration, Board of Chiropractic, Case No. 9207885, and related cases, Respondent was charged in Count 1 with a violation of Section 460.413(1)(m), Florida Statutes, formerly Section 460.413(1)(n), Florida Statutes, for failing to maintain written chiropractic patient records that would justify the course of treatment of the patient. In Count II to that Administrative Complaint Respondent was charged with violating Section 460.413(1)(i), Florida Statutes, by failing to perform a statutory or legal obligation of the licensed chiropractic physician in performing, ordering, administering or procuring unnecessary diagnostic testing in violation of Section 766.111, Florida Statutes. In Count III to the Administrative Complaint Respondent was charged with a violation of Section 460.413(1)(r), Florida Statutes, formerly Section 460.413(1)(s), Florida Statutes, by failing to practice chiropractic at the level of skill, care, and treatment which is recognized by a reasonably prudent chiropractic physician as being acceptable under similar conditions and circumstances. In Count IV of the Administrative Complaint Respondent was charged with violating Sections 460.413(1)(b), Florida Statutes, and 460.413(1)(v), Florida Statutes, formerly 460.413(1)(w), Florida Statutes, and Florida Administrative Code Rule 61F2- 5.001(2), formerly Florida Administrative Code Rule 21D-5.0012, by engaging in false deceptive or misleading advertising. The parties entered into a settlement stipulation which was approved by final order, in relation to Case Nos. 9207885 and 9216199, 94- 05484 and 94-11080. Ultimately the stipulation that was approved in a final order entered February 13, 1996, was to the failure to maintain written chiropractic patient records that would justify a course of treatment to the patient, a violation of Section 460.413(1)(m), Florida Statutes, that had been referred to as Section 460.413(1)(n), Florida Statutes. As a consequence Respondent paid $3,000.00 in administrative costs, had to take a course on records keeping, and was required to have his patient records monitored.
Recommendation Based upon the consideration of the facts found and the conclusions of law made, it is RECOMMENDED: That a final order be entered finding a violation of Section 456.072(1)(c), Florida Statutes (2003), and revoking Respondent's license as a chiropractic physician. DONE AND ENTERED this 16th day of March, 2006, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS 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 16th day of March, 2006. COPIES FURNISHED: Ephraim D. Livingston, Esquire William Miller, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Roy Lewis, Esquire 203 Washington Street Jacksonville, Florida 32202 Joe Baker, Jr., Executive Director Board of Chiropractic Medicine Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue Whether Respondent, Allan V. Comrie d/b/a Premier Adult Care; Allan V. Comrie d/b/a First Class Phase II; and Allan V. Comrie d/b/a First Class Adult Family Care (Respondent or Comrie), committed the violations alleged by Petitioner, Agency for Health Care Administration (AHCA or Petitioner), and, if so, what penalty should be imposed.
Findings Of Fact The Parties AHCA is the state agency charged with the responsibility of licensing and regulating Assisted Living Facilities (ALF) and Adult Family Care Homes pursuant to the provisions of chapter 429, Parts I and II, Florida Statutes (2011). All citations to statutes in this case refer to 2011 provisions. At all times material to this case, Respondent held a license to operate an AFCH in Titusville, Florida. That license, number 6905448, is for a facility located at 3717 Chiara Drive. Respondent’s AFCH license permitted him to house and provide meals for no more than five persons unrelated to himself. Titusville Titusville is a city in Brevard County, Florida, located in the northern area of the county, west of the Indian River. Respondent’s AFCH in Titusville has been in operation since 2001. In deciding to open the AFCH, Respondent sought to address an unmet need for an upscale home environment where residents could enjoy a better level of care than he had witnessed in connection with his aunt’s care. Respondent purchased the Titusville property and filled it with interesting décor and activities to encourage residents. Residents at the Titusville home have expressed favorable reports regarding the food, environment, and level of care received at the facility. Residents are routinely taken to doctor appointments or other outings as part of the services offered by Respondent. In marketing the Titusville home, Respondent created an internet website that identified the property, the license number, and other pertinent information. In connection with the operation of the Titusville home, other than the instant case, Respondent has not had a major violation or complaint. By all accounts the Titusville residents are pleased with their care and with the attention shown by Respondent in connection with their needs. Merritt Island At some point in time, Respondent decided to expand his business operation to include a more demanding level of care for residents. Under state law, this level, ALF, requires licensure so that residents requiring more assistance with their daily living activities can be cared for in a home environment governed by rules and regulations the state has established. As the first step in securing ALF licensure, Respondent purchased a home in Merritt Island, Florida, located at 2740 South Courtney Parkway. The home featured many of the same amenities and upscale accommodations provided by the Titusville home. Undoubtedly, Respondent sought to provide services to a market seeking high-end accommodation and care. This property has been referred to in the record as Premier Adult Care. The name suggests Respondent’s intention: first-class care. All of the names identified in the style were used by Respondent in some form of ad, business card, or internet site. After acquiring the Merritt Island home, Respondent took initial steps to secure licensing. Accordingly, inspections and upgrades to the home were completed to assure compliance with regulations. Before licensure, however, an advertisement for the Merritt Island home was placed on Respondent’s website. Additionally, Respondent provided information to the social worker at Cape Canaveral Hospital to become listed as a potential placement facility. The advertisement on Respondent website utilized Respondent’s Titusville license number and implied the Merritt Island home was also licensed. At no time material to this matter was the Merritt Island home licensed as either an AFCH or an ALF. Respondent claims the reference to the Titusville license was a clerical error and an unintentional mistake. This claim is as not persuasive or credible in light of the totality of the evidence presented. Operation By June 2011, when Respondent had not secured licensing for the Merritt Island home, he enlisted the assistance of James Kasperowski to serve as manager or administrator for the Merritt Island facility. Mr. Kasperowski met Respondent in Titusville. Mr. Kasperowski did companion care for a home health care agency and regularly met with a resident at Respondent’s Titusville AFCH. Because he was at the property frequently, Mr. Kasperowski had the opportunity to interact with Respondent. Respondent solicited Mr. Kasperowski’s assistance in operating the Merritt Island home. Although skeptical at first, Mr. Kasperowski agreed to consider the proposition. Initially, Mr. Kasperowski believed the Merritt Island home would be modeled after the Titusville property and that he would be Respondent’s employee to manage the home. The Merritt Island home was south and east of the Titusville AFCH. Travel time between the homes could easily take 40 minutes. At all times material to this case, Mr. Kasperowski maintained a residence in a condominium in Brevard County, Florida. Mr. Kasperowski did not consider Respondent’s Merritt Island home to be his personal residence. After being persuaded by Respondent to take on the Merritt Island project, Mr. Kasperowski met with a fragile lady who was to be the facility’s first resident. This first resident, A.P., was scheduled to be released from the Cape Canaveral Hospital, and needed a placement where she could be cared for as she was unable to attend to her daily living activities. These activities are defined by Florida Statutes as “personal services.” See § 429.02(16), Fla. Stat. The July release from the hospital was the latest in a long line of medical issues that plagued A.P. From January 2011 until April 2011, A.P. had resided in a nursing home recovering from brain surgery. Against doctor’s orders, A.P. left the nursing home to return to her condominium. As she had in the past, A.P. fell in her home and broke both of her shoulders. In late June 2011 or early July 2011, the time of her scheduled release, A.P. was unable to dress, feed, bathe, or medicate herself. The subsequent healing in her shoulders did allow her the use of her arms and she was able to ambulate with a walker. But at all times material to the allegations of this matter, A.P. was restricted to a bed or wheelchair and was completely dependent on others to meet all of her needs. Respondent communicated with A.P.’s caregivers and represented to them that she could be placed in his facility at Merritt Island. Respondent gave the caregivers the impression that the facility was appropriately licensed and well able to meet A.P.’s needs. When the time came for her release from the hospital, Respondent picked A.P. up and took her to the Merritt Island home. Once there, Mr. Kasperowski was left in charge of A.P.’s care. The placement of A.P. at the Merritt Island home occurred in early July 2011. Mr. Kasperowski agreed to take care of A.P. for $350.00 per week to be paid by Respondent. Mr. Kasperowski agreed that additional persons placed at the home would increase his compensation. In contrast, A.P.’s caregivers paid Respondent $4,500.00 per month to care for A.P. Respondent trained Mr. Kasperowski to prepare food and to care for the residents placed in the Merritt Island home, based upon the Titusville home experience. Residents were to receive quality food prepared in the home. Mr. Kasperowski was to eat the same food as residents and to care for residents as he had been trained. Respondent required that Mr. Kasperowski obtain health documentations to assure he did not have tuberculosis or sexually transmitted diseases. Mr. Kasperowski had already completed his CPR, first aid, and other requirements through the home health care agency. All of the documents were provided to Respondent. When A.P. presented at the Merritt Island home, she was provided a hospital bed. She had a rash that had to be medically dressed, she wore adult diapers, she could not feed herself or tend to her toileting needs. Mr. Kasperowski enlisted the help of his mother, Ms. Bachak, to help him with A.P. Since A.P. could not use her shoulders, physical and occupational therapists came to the Merritt Island home to do exercises with her. After a couple days with A.P., Mr. Kasperowski was given a second resident at the Merritt Island home. Respondent introduced J.P. to the home. J.P. was an elderly person in her 80’s. J.P. required assistance with bathing and toileting. Mr. Kasperowski asked his mother to assist J.P. because he knew she might be uncomfortable with a male caregiver doing some of the more personal care. J.P. was bathed by Ms. Bachak and fed by her. A third client came to the Merritt Island home for approximately one week. H.T. was there for a short while because his permanent residence was at Respondent’s Titusville home. Mr. Kasperowski enlisted his mother’s and grandmother’s help at the home during this time. His grandmother agreed to prepare some of the meals. It was difficult to care for A.P. during this time because, in addition to her limited mobility, she suffered from dementia and would yell at night. Her confusion and adjustment to her new surroundings proved demanding for Mr. Kasperowski. The level of care was such that he needed help from his family to attend to the residents’ needs. Because he had to remain on the premises at night, Respondent assigned a bedroom to Mr. Kasperowski. If Mr. Kasperowski stayed at his condominium overnight, his mother would use the bedroom to assure that residents were never left alone. The master bedroom at the Merritt Island home was always designated for Respondent. He kept the room locked at all times he was not on the property. A fourth resident from Respondent’s Titusville home also stayed overnight at the Merritt Island home on occasion. J.C. lived at the Titusville home, and Mr. Kasperowski remained his companion even after taking on the Merritt Island home. In order for J.C. to spend time with Mr. Kasperowski, Respondent would take him down to Merritt Island and leave him there. In doing so, Mr. Kasperowski could bill the eight hours of companion time per week that he logged with J.C. The Merritt Island home continued in operation unrestricted by state inspection or licensure until a complaint was submitted to AHCA regarding Respondent’s operations. Once AHCA was notified of a claim of unlicensed activity, a caseworker was assigned to review the matter. When AHCA initiates an investigation into allegations of wrongdoing, it conducts a Complaint Inspection Survey (survey) of the property. Surveyors go to the property and seek admittance. Surveys After interviewing individuals and observing as much as was allowed by Respondent, the survey findings concluded the Merritt Island home was being operated as an ALF even though it was unlicensed. Findings of the survey determined residents at the Merritt Island home required and received direct physical assistance with, or supervision of, daily living activities and administration of their medication. Further, all of the persons residing at the home were over 18 years; resided at the facility for some period of time receiving care, food, and shelter at the home; and none were relatives of the owner or administrator of the home. These findings were accurate. On July 13, 2011, when an unannounced visit was made to the Merritt Island home by AHCA staff, a female identified herself as a caregiver at the property. The caregiver advised AHCA at that time that no one was to be admitted into the home. On that date, AHCA issued a Notice of Violation of Unlicensed Activity/Order to Cease and Desist. On July 20, 2011, another unannounced visit was conducted at the Merritt Island home by AHCA surveyors who were accompanied by deputy sheriffs with an inspection warrant. On this date, Mr. Kasperowski allowed the party to enter the premises and claimed he had a lease of the home that permitted him to operate without a license. On this date, residents of the home were observed who required assistance with their daily living activities or personal services. The Bogus Lease Throughout these proceedings Respondent has maintained that although he owned the Merritt Island home, he leased it to Mr. Kasperowski. The terms of the alleged lease required Mr. Kasperowski to pay Respondent $5,000.00 per month. It is found the lease was a fabrication on Respondent’s part. Respondent sought to circumvent the licensure requirements by establishing an exemption. At no time did he relinquish control of the home to Mr. Kasperowski. At no time was Mr. Kasperowski in a financial position to honor the terms of the alleged lease. At no time did Respondent vacate his portion of the premises. Additionally, all monies paid on behalf of the residents at the home were funneled through Respondent. Food and supplies purchased for the residents at the Merritt Island home were paid for by Respondent. Comrie concocted the lease because he knew or should have known that the activities at the Merritt Island home required licensure. Mr. Kasperowski admitted that the alleged lease was a fiction created by Respondent to try to appease authorities. Mr. Kasperowski never officially resided at the Merrit Island home, and could not comply with the terms of the alleged lease. Determination of Unlicensed Activity Based upon the foregoing findings, and the persuasive weight of the credible evidence presented by the parties, it is determined: Respondent owned the Merritt Island home. Respondent allowed residents at the Merritt Island home who required assistance with their daily living activities and who, without substantial support could not live independently. Respondent did not obtain an ALF license for the Merritt Island home. Respondent did not obtain any license for operation of the Merritt Island home, including an AFCH license. Respondent could not license the Merritt Island home as an AFCH because his permanent residence was the Titusville AFCH. Respondent allowed two residents to live at the Merritt Island home on a full-time basis and two other residents to live at the home on a part-time basis. The two who resided part-time were supposed to be permanently housed at the Titusville home. Respondent has enjoyed a good reputation among the residents of his Titusville home; however, none of them were as fragile and vulnerable and required the level of care the residents in Merritt Island did. Despite Respondent’s efforts to provide a quality home environment, his lack of candor and obfuscation of the facts surrounding the Merritt Island home raise a serious question as to Respondent’s trustworthiness.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration impose an administrative fine in the amount of $7,000.00 against Respondent and suspend his license to operate an AFCH for a period not less than six months or until such time as the administrative fine is paid in full. DONE AND ENTERED this 3rd day of October, 2012, in Tallahassee, Leon County, Florida. S J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of October, 2012. COPIES FURNISHED: Geoffrey D. Smith, Esquire Smith and Associates Suite 202 1499 South Harbor Boulevard Melbourne, Florida 32901 Susan Suarez Hurley, Esquire Agency for Health Care Administration Sebring Building, Suite 330G 525 Mirror Lake Drive, North St. Petersburg, Florida 33701 Paul Anthony Dieguez, Esquire Smith and Associates Suite 202 1499 South Harbor Boulevard Melbourne, Florida 32901 Thomas J. Walsh, II, Esquire Agency for Health Care Administration Sebring Building, Suite 330G 525 Mirror Lake Drive, North St. Petersburg, Florida 33701 Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Elizabeth Dudek, Secretary Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 1 Tallahassee, Florida 32308 Stuart Williams, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308
Findings Of Fact Petitioner is a recipient of benefits disbursed by the Respondent and herein challenges the department's practice with the administering of "shelter" payments in the Respondent's Program of Aid to Families With Dependent Children (AFDC). The Petitioner is a mother who presently receives full AFDC shelter assistance payments through this program. In March of 1977 she applied for these benefits and was initially determined to be ineligible. The basis of this ineligibility was the interpretation, by the department, of its rules that shelter payments were available only to recipients who had a payments obligation on the dwelling in which they lived. In other words, the Petitioner was determined to be ineligible for payments because she did not live in the same house for which she had a mortgage obligation. The department construes its rules in its Assistance Payments Manual to restrict shelter payments only to recipients who actually live in the dwelling for which they are obligated to make payments. The Petitioner later moved into the dwelling for which she makes a mortgage payment. At that time she was ruled eligible for payments and received monthly assistance payments. In addition, the Petitioner was granted retroactive sustenance payments from the date of her initial application. The Petitioner alleges that the Assistance Payments Manual promulgated by the department and used by its staff members is an invalid rule in that it fits the definition of a rule in Section 120.52(14), F.S., and has not been formally adopted through rulemaking proceedings as required by Chapter 120, F.S. The department acknowledges that the Assistance Payments Manual has not been adopted as a rule pursuant to Chapter 120, F.S., the Administrative Procedure Act. This case went to final hearing on December 21 , 1977, at Orlando, Florida. The Petitioner did not appear at that proceeding. Testimony was taken from Cheri Beck, a payments supervisor for the Department of Health and Rehabilitative Services. Also, the deposition of Ms. Beck taken on December 19, 1977, was received into evidence. An additional deposition, that of Sylvia McElroy, another employee of the Respondent, was also received. After reviewing the submissions and the testimony received, it is the determination of the undersigned that the Petitioner has not demonstrated that she is substantially affected by the alleged rule and has inadequate standing to maintain this proceeding. The crucial aspect of the Petitioner's circumstance is that although she was initially determined to be ineligible for assistance payments because of the restrictions in the Assistance Payments Manual, she was later granted eligibility and issued retroactive payments. Therefore at the time this matter went to hearing the Petitioner was not adversely affected by any determination of the Respondent based upon the use of their Assistance Payments Manual. The Petitioner has suffered no loss which can be attributed to the alleged rule. Without having adequately demonstrated that she is Substantially affected by the alleged rule, Petitioner is not entitled to a determination of its validity. The First District Court of Appeal considered this identical question in the case of Florida Department of Offender Rehabilitation v. Leroy Jerry, So.2d , (Case No. FF-303, Jan. 10, 1978). In that opinion the court determined that a Prisoner incarcerated in a State institution was not entitled to a determination of the validity of an alleged rule Since he had not demonstrated he had suffered any hardship because of the operation of the rule. In a similar fashion the Petitioner here has had any possible loss of benefits restored to her by the Respondent. She no longer has cause to receive a resolution of this Petition Pursuant to Section 120.56, F.S. It is, therefore, ORDERED: That the Petition is dismissed. Further, since the Petitioner has no standing to receive a determination of her Petition, no ruling is made on the Proposed findings submitted at the final hearing. DONE and ORDERED this 20th day of January, 1978, in Tallahassee, Florida. KENNETH G. OERTEL 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 20th day of January, 1978. COPIES FURNISHED: Charles L. Colbrunn, Esquire Greater Orlando Area Legal Services, Inc. 128 W. Central Boulevard Orlando, Florida 32802 James Mahorner, Esquire Dept. of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 Carroll Webb, Executive Director Administrative Procedure Committee 120 Holland Building Tallahassee, Florida 32304 Ms. Liz Cloud Department of State 403 E. Gaines Street Tallahassee, Florida 32304
The Issue The issue is whether Petitioner's application for a license to operate a family day care home should be granted.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: This licensure proceeding involves a request by Petitioner, Yolanda Cheesmon, for a license to operate a family day care home at 1012 Yates Avenue, Blountstown, Florida. On July 2, 1999, Respondent, Department of Children and Family Services (Department), denied the application on the grounds that Petitioner was "previously denied an application to operate a Licensed Day Care Home"; that she had begun "operating at a Day Care Home at 920 Thomas Avenue without being properly registered"; that she had operated for "an unknown period of time" without a telephone, "which is a requirement"; and that she had "requested to become a licensed home and provided [the Department] with false information and a forged letter." The denial of the application prompted Petitioner to request a hearing. The Department regulates three types of day care facilities. In descending order of regulatory oversight, they are a licensed family day care facility, a licensed family day care home, and a registered family day care center. While the first two categories of facilities require annual on-site Department inspections, background screening for all personnel, training, and more extensive paperwork, a registered family day care center involves no Department inspections and only requires that the operator undergo background screening, complete a training course, and provide to the Department certain paperwork, including shot records of the children, in order to secure the registration. On August 19, 1998, Petitioner filed the necessary paperwork to operate a registered family day care center at 1012 Yates Avenue, Blountstown, Florida. She received a registration the same month. In its post-hearing submission, the Department represents that the registration was subsequently "terminated." As noted above, a registered home is the least restrictive type of day care facility, and it only required that Petitioner file an application with the Department, undergo background screening, and provide the Department with certain paperwork. Petitioner was, however, required to conform with certain Department "standards," one of which required that she have a working telephone on the premises of the facility, so that Department personnel could always contact her, if necessary. Whether this requirement is based upon a rule or an informal regulation was not disclosed. In September 1998, a Department licensing counselor, Michelle Barsanti (Barsanti), attempted to contact Petitioner by telephone and learned that the telephone had been disconnected, which violated the unidentified Department requirement. Barsanti then sent a registered letter to Petitioner on October 7, 1998, advising that Petitioner must provide a telephone number. By letter dated October 12, 1998, Petitioner advised Barsanti that after she had received her registration from the Department, she had moved the day care center to 920 Thomas Avenue, Blountstown, Florida, and that she had a new telephone number. This move was made because Petitioner says the Yates property "wasn't properly fixed up and all to pass for the inspection." However, an operator must re-register each time the facility is moved; by operating at the new location without a valid registration, Petitioner contravened a statute which prohibits any person from operating a registered family day care center without a registration. It is fair to infer from the evidence that Petitioner was unaware of this requirement and that the violation was unintentional. On October 23, 1998, Barsanti met with Petitioner to assist her in obtaining a registration for the new location. During that meeting, Barsanti learned that Petitioner now desired to operate a licensed, as opposed to a registered, family day care home at her new address, and that Petitioner leased the property from Judy A. Davis (Davis), an absentee landlord who resided in Riviera Beach, Florida. At some point during this process, Petitioner was also advised that she must close her day care center at 920 Thomas Avenue until she obtained the appropriate license. Rule 65C-20.009(1)(a), Florida Administrative Code, provides that if the operator leases the property on which the facility will be located, "[w]ritten approval from the owner of the property must be secured prior to issuance of the license." Accordingly, Petitioner was required to comply with this requirement since she intended to lease the Davis property. In response to the foregoing requirement, Petitioner provided Barsanti with a letter dated October 7, 1998, purportedly written by Davis, and which stated that Davis "[gave] Yolanda Cheesmon permission to operate a Daycare at my appointed residence." Shortly thereafter, Barsanti received an anonymous letter which caused her to question the authenticity of the Davis letter. After Barsanti contacted Petitioner and requested the address and telephone number of Petitioner's landlord, on October 29, 1998, Petitioner sent Barsanti a letter stating in part as follows: I regret to have to tell you that I lied about the letter. I'm very sorry but I was desperate to go ahead without any delay to be licensed so that I can get the insurance policy that my landlord needs. . . . Please forgive me and I hope this doesn't affect my case in any way. And again, I'm very sorry that I thought I had to lie to you. The foregoing admission confirms the Department's allegation that Petitioner provided the Department "with false information and a forged letter," as charged in the letter of denial. Notwithstanding the foregoing admission, Petitioner pursued her application for a license at the Davis property. The application was preliminarily denied on the ground that Petitioner had provided the Department with a forged document. Petitioner requested a formal hearing, and the matter was assigned Case No. 98-5593. After a formal hearing was conducted on April 22, 1999, Administrative Law Judge Steven F. Dean issued a Recommended Order on June 14, 1999, in which he recommended that Petitioner's application be denied, not on the ground that she had made a false statement as alleged by the Department, but rather because the application was moot by virtue of "the passage of time" since Petitioner had by then moved back to her former residence at 1012 Yates Avenue and desired to operate her facility from that location. In addition, at the conclusion of the evidentiary hearing, Judge Dean advised Petitioner to file a new application for licensure using her most current address. Based on that advice, Petitioner filed the instant application. As noted in Finding of Fact 1, the Department has preliminarily denied the second application on numerous grounds. In a Final Order Reversing Recommended Order and Denying Application for Licensure filed on December 27, 1999, the Department rejected the conclusion that the application was moot and instead denied the application on the ground that Petitioner had failed to "meet all of the Department's requirements for licensure." Therefore, Petitioner has had a prior application denied, as alleged in the Department's letter denying her application. In summary, the foregoing facts establish the Department's contentions that Petitioner operated for a short period of time as a family day care home without an appropriate registration; that she operated without a telephone on the registered premises; that she gave false information to the Department when attempting to secure a license; and that she has had a prior application for licensure denied. At the hearing, Petitioner again apologized for filing a forged document; stated it was based on "bad judgment"; argued that the forged document alone is not a sufficient basis to disqualify her from licensure;, and established that she sincerely desires to engage in the day care business. Petitioner has requested that if the license is denied, that she be allowed to retain her registration previously issued in August 1998.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Children and Family Services enter a final order denying Petitioner's application for a license to operate a family day care center at 1012 Yates Avenue, Blountstown, Florida. DONE AND ENTERED this 26th day of January, 2000, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 26th day of January, 2000. COPIES FURNISHED: Virginia Daire, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John S. Slye, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Yolanda Cheesmon 1012A Yates Avenue Blountstown, Florida 32424 John R. Perry, Esquire Department of Children and Family Services 2639 North Monroe Street, No. 252-A Tallahassee, Florida 32399-2949
Findings Of Fact At all times material hereto, Respondent was a licensed operator of a Family Day Care Home located at 2927 Monte Carlo, Orlando, Florida. Licenses to operate a Family Day Care Home are issued by the Department of Health and Rehabilitative Services for periods of one year. Respondent's license was first issued in 1991 and was last renewed on June 21, 1994. It was valid through June 21, 1995. Respondent's Family Day Care Home has been closed voluntarily since July 18, 1994. Respondent submitted an application to renew her license prior to its June 21, 1995 expiration date. Petitioner denied Respondent's license renewal application by letter dated June 21, 1995. Petitioner has not cited Respondent for any code violations in her home at the time of the renewal. At the time of Respondent's application for license renewal, she met all training requirements for an operator of a family day care. In November of 1993, while in the care of Respondent, a child had suffered burns while at Respondent's family day care home. No charges, criminal or administrative, were filed against Respondent and her license was renewed the following year. In mid-June, 1994, Vanecia McCree, a 24-month old child began attending Respondent's day care, along with her brother and sister. On July 18, 1994, the child had been dropped off at Respondent's family day care home by her mother, Michelle McCree, at approximately 10:30- 11:00 a.m. When the mother dropped off the child on July 18, 1994, she informed Respondent that she wanted the child to change from regular diapers to pull-ups. She requested that Respondent to start potty training the child. Respondent told Ms. McCree that the child was not ready for pull-ups yet because she displayed no signs of using the restroom on her own. When Respondent first attempted to have the child use the bathroom on the morning of July 18, 1994, the child appeared "hysterical" and "frantic" and appeared to be in pain. When Respondent asked the child if she was in pain, the child nodded her head in the affirmative. This caused Respondent to be very concerned about the child's condition. Respondent did not call the mother or Department of Health and Rehabilitative Services at that point because she had been informed by the child's grandmother that the child had "knots" in her genital area and that the child had an infection. Respondent had been informed by the child's brother that the child had been taken to the hospital the previous night. The child was under Respondent's constant supervision the entire day. The only time during the day that the child was not constantly in the same room as Respondent was while the child was sleeping. During the time the child was napping, Respondent was out of the room during certain periods, but constantly kept the child in her sight. Throughout the course of the day, the child never fell, never appeared to sustain any injury, and never had an outburst which would indicate she had been injured. At approximately 4:45 p.m., when Respondent took the child to the restroom, she discovered spots of blood in the child's pull-up diaper. Upon noticing the spots of blood in the child's pull-up diaper, Respondent immediately telephone the child's grandmother, Barbara McCree. Respondent telephoned the child's grandmother because the grandmother was the person who arranged for the children to attend her facility. Respondent told Barbara McCree that she had discovered "a little blood" in the child's diaper and that the child should be taken to the hospital. Barbara McCree told Respondent that she would call the child's mother to pick up the child, and requested that Respondent save the pull-up diaper and give it to the mother. The mother arrived at Respondent's family day care home at approximately 5:10 p.m. to pick up her children. Upon her arrival, Ms. McCree did not examine the child to see where the blood in the diaper might be coming from. Respondent was upset but gave the pull-up diaper that contained the spots of blood to the mother upon her arrival. Ms. McCree took the child home prior to examining her. When she checked the child, her diaper was full of blood. Ms. McCree took the child to the hospital where she was examined, and on the following day had stitches to close a laceration in her vaginal area. Because of the nature of the injury, it was elected to take the child to the operating room for examination under anesthesia; however the child had eaten two bags of potato chips and some Coke during the extended stay in the emergency area causing the delay in performing the surgical procedure. There was no significant bleeding at the time of the initial examination on July 18, 1994. The injury was corrected surgically on the following morning. It has not been determined when the injury to the child occurred. After extensive examination of the genital area, the injury appeared to be most consistent with a traumatic injury. Following the completion of the investigation, no criminal charges were filed, nor any administrative action taken against Respondent's license. Petitioner's decision to deny Respondent's license renewal was based upon the Licensing Supervisor's belief that the injury to Venecia McCree occurred while the child was in Respondent's care. Respondent's license renewal application was not denied based on any other reason. There was no medical determination that the injury to the child had occurred while the child was in Respondent's care.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Respondent's application for renewal of her Family Day Care license be GRANTED. DONE and ORDERED this 14th day of August, 1996, in Tallahassee, Florida. DANIEL M. KILBRIDE, 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 14th day of August, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-4036 To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Petitioner did not file proposed findings. Respondent's Proposed Findings of Fact. Accepted in substance: paragraphs 1, 2, 3, 4, 5, 6, 9, 10, 11, 12, 13, 14, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38 (in part), 39 (in part), 40 (in part), 41, 42, and 43. Rejected as irrelevant and immaterial or subsumed: paragraphs 7, 8, 38 (in part), 39 (in part), 40 (in part). COPIES FURNISHED: Laurie A. Lashomb, Esquire Department of Health and Rehabilitative Services District 7 Legal Office 400 West Robinson Street, Suite S-827 Orlando, Florida 32801 Robert J. Crohan, Jr., Esquire Wade Coye and Associates 2511 Edgewater Drive Orlando, Florida 32804 Gregory D. Venz Agency Clerk Department of Health and Rehabilitative Services 1317 Winewood Boulevard, Room 204-X Tallahassee, Florida 32399-0700 Richard Doran General Counsel Department of Health and Rehabilitative Services 1317 Winewood Boulevard, Room 204 Tallahassee, Florida 32399-0700
Findings Of Fact The Department, a state agency, initiated the underlying proceeding when Redi-Care's request for payment as a Medicaid provider was denied on September 19, 1989. Redi-Care was required to seek review of this governmental action through an administrative proceeding on September 28, 1989. Petitioner, Redi-Care Home Services, Inc. is a corporation which has its principal office in this state. At the time the administrative proceeding was initiated, the corporation had less than 25 full-time employees and a net worth of less than two million dollars. The assets of Redi-Care were sold to Lorinda Crowley on July 31, 1990. The shares of corporate stock and the liability were not transferred. Redi-Care authorized its President, Ms. Ingeborg G. Mausch, Ph.D., to proceed with the corporation's attempts to collect the Medicare claims at issue in the underlying proceeding. A Final Order was entered by the Department in the underlying proceeding on October 4, 1991. This order resolved the dispute in Redi-Care's favor. The claim for reimbursement for services rendered as a Medicaid Provider were to be paid upon the resubmission of the claims. The time for seeking judicial review of that order has expired and the order has become final agency action as a matter of law. Redi-Care timely filed its Petition for Attorney's Fees in this proceeding. The Department disputes portions of the application for fees relating to entitlement and to requested amounts of reimbursement for fees and costs. The underlying proceedings were initiated when the Department denied Redi-Care's claims for reimbursement for home health care services rendered to Richard Mow and Claire Jester beginning February 8, 1989. The reason given by the Department for its denial of the claims on September 9, 1989, was that Redi- Care's "Medicaid Provider" number could be used only for services rendered on or after May 4, 1989 because its certification survey was not completed until then. Although the agency's determination of ineligibility for payment due to the lack of certification would be proper in most cases under Rule 10C- 7.044(3)(a), Florida Administrative Code, it is not appropriate in this case. The Department was supposed to complete the requested survey in November 1988. The survey was not actually completed until May 4, 1989 because the Department's representative confused this entity with a similarly named entity located next door in November 1988. When Redi-Care received the documentation from Consultec assigning it a "Medicaid Provider" number in December 1988, the applicant reasonably believed the certification process had been completed and eligibility granted. The Department has been aware of its error in failing to provide the survey since at least April 18, 1989. Yet, no attempt was made to address this error as it related to the pending reimbursement claims beginning on February 8, 1989. Instead, the agency's involvement in the series of events that operated to prevent the proper application processing was ignored and Redi-Care was expected to suffer the consequences of the confusion created by all of the parties. One very reasonable way the Department could have cured its error would have been to submit Redi-Care's application for certification to Consultec on the day it discovered the error. This would have allowed Consultec to process claims from 90 days prior to the application under the Medical Home Health Agency Services Manual in effect at that time. This action was not taken by agency personnel who knew or should have known of this potential solution to the certification and reimbursement issues. The Department's letter advising Redi-Care of the Medicaid Program's decision to deny payment for services provided before May 4, 1989 was unreasonable governmental action. The possible affect of the agency's errors and the unrelated errors of its successive Medicaid agents for the Florida Medicaid Program on Redi-Care's pending claims were never addressed in spite of the Department's awareness of their existence. Redi-Care was required to pursue its claims through administrative proceeding's in order to prevent the denial of the reimbursement request.
