The Issue The issues under consideration in this case concern an administrative complaint placed by the Petitioner against Respondent accusing him of practicing medicine with an inactive license for the period of January 1, 1988 until on or about October 27, 1988. For this alleged activity Respondent is said to have violated Sections 458.327(1) (a) and 458.331(1)(x), Florida Statutes.
Findings Of Fact Respondent attended the University of Rochester from 1977 to 1990 and received a B.A. in biology and a B.S. in neuro- science. He then received his medical education at Upstate Medical Center in Syracuse, New York, from 1984 until 1985 and graduated as an M.D. He served surgical internship at Geisinger Medical Center, a general surgery internship, in the year 1985. From 1985 until the point of hearing, he had been receiving training as a resident at the University of Florida Department of Orthopedic Surgery. As such, he is employed by the University of Florida. The residency program in the Department of Orthopedics at the University of Florida is approved by the Council on Graduate Medical Education. His duties as a resident physician include assisting the attending physician and making diagnosis and carrying out treatment, as well as prescribing medication. These duties are performed in Shands Teaching Hospital in Gainesville, Florida, and at the Veteran's Administration Hospital in that same community. In the period January and February, 1988, he was at Shands Teaching Hospital in pediatric orthopedic service. He then served four months at the Veteran's Administration Hospital in the general orthopedic rotation. He then returned to Shands Teaching Hospital as part of the adult reconstructive service. At no time while participating in those programs did he undertake other medical employment. On March 4, 1985, Respondent executed a form provided by the Board of Medical Examiners entitled "Registration Application for Unlicensed Physicians." It may be found as Petitioner's Exhibit 3B-1 admitted into evidence. The purpose of this form was to identify his participation as a resident at Shands Teaching Hospital. In response to the questionnaire, Respondent indicated that he did not intend to become licensed in Florida. This form was submitted to the Department of Orthopedic Surgery at the University of Florida and was subsequently forwarded to the Department of Professional Regulation. Notwithstanding the lack of intention on the part of the Respondent to practice medicine in Florida as expressed in his application as executed on March 4, 1985, Respondent applied for and was given an active license to practice medicine issued on November 22, 1985. The medical license is no. ME0047478. He took this step at the instigation of his employer the University of Florida who remitted the necessary fees to obtain that license. On January 16, 1986, Shands Teaching Hospital submitted a list of unlicensed physicians participating in programs within the University of Florida College Medicine as of January 14, 1986 and employed by the University of Florida. This list was sent to Dorothy J. Faircloth, Executive Director of Board of Medical Examiners (Board of Medicine). The attached list included the Respondent's name as being among those persons who were unlicensed physicians working at the University of Florida College of Medicine, Shands Teaching Hospital a that time. A copy of the correspondence of January 16, 1986, is found as Petitioner's exhibit 3-C admitted into evidence and the list itself is Petitioner's exhibit 3-D admitted into evidence. A copy of a list dating from July 1, 1986 describing unlicensed physicians at the University of Florida reflects Respondent's name. However, a line is drawn through his name and other identifying data concerning the Respondent. It is unclear from this record who had drawn that line through the name as reported. A copy of that report may be found as Petitioner's exhibit 3- E admitted into evidence. The list of licensed physicians at the University of Florida as of July 1, 1987, submitted to the Board of Medicine did not reflect the Respondent's name. This can be seen in an examination of Petitioner's exhibit no. 3-G admitted into evidence. Likewise, on January 15, 1988, correspondence was directed to Ms. Dorothy Faircloth, Executive Director of the Board of Medicine, a copy of which is Petitioner's 3-H, admitted into evidence. A list of unlicensed physicians at the University of Florida was attached. That attachment is Petitioner's exhibit no. 3-I, admitted into evidence and it does not show the Respondent's name. That list reflects the circumstance of unlicensed physicians as of January 15, 1988. The Respondent's initial registration as a resident physician on March 4, 1985, was in an effort to comply with the requirements set forth in Section 458.345, Florida Statutes. The submission of the list of the resident physicians and other physicians by the University of Florida, College of Medicine, in the periods as reported above was in an effort to comply with that institution's obligations under Section 458.345, Florida Statutes. In late October or early November, 1987, Respondent received a notice from the Petitioner concerning the renewal of the medical license which had been issued on November 22, 1985. Following the receipt of that notice, he executed the necessary paperwork and submitted it to the accountant at the University of Florida who was responsible for paying Respondent's fees for the medical license as an employee of the University of Florida, School of Medicine, within the Department of Orthopedic Surgery. Respondent took no further action to assure that his license was renewed until late March or early April, 1988. It was at that point that the Respondent was made aware that the replica of his medical license that he kept in his wallet reflected an expiration of that license. He made this discovery when attempting to use that replica as a form of identification. At that juncture he reported to Ms. Jeri Dobbs, an employee of the University of Florida, who indicated that paperwork associated with this license may have been destroyed in a fire at Johnson Hall where certain records of the Department of Orthopedic Surgery were kept. Ms. Dobbs' responsibility in the relevant time period under question, encompassed money matters within the Department of Orthopedics. This included the payment of license fees for residents in the University of Florida Department of Orthopedics. The technique was to request a check from the University of Florida and send that check along with the requisite forms to the Department of Professional Regulation. Sometime in November or early December, 1987, a fire occurred in Johnson Hall at the University of Florida. Within that building were found invoices to be paid or checks requested and they were lost in the fire. In November, 1987, Ms. Dobbs had originally requested a check from the finance and accounting office at Johnson Hall to pay for the re-licensure of certain physicians. The names of those physicians are set forth in Respondent's exhibit no. 3, admitted into evidence. The package of paperwork on license renewal related to the named physicians was lost in the Johnson Hall fire. Respondent's name is not found in that list. Nonetheless, the circumstance that occurred with the physicians listed there may have well have occurred to the Respondent and in his conversation in late March or early April, 1988 with Ms. Dobbs he was impressed with the idea that his paperwork on license renewal may have been destroyed as was the situation with those other physicians. The physicians whose names are listed on Respondent's exhibit no. 3 would have had their medical licenses expire on December 31, 1987, as was the case with Respondent's license. In March, 1988, through efforts of Ms. Dobbs, the licenses of those physicians set forth in Respondent's exhibit no. 3 were renewed upon the payment of a $50 reinstatement or penalty fee as required by Petitioner. There is no indication that those persons as listed in Respondent's exhibit no. 3, were ever subject to disciplinary action for practicing medicine with an inactive license as has been the fate of Respondent in the present case, even though it can be fairly inferred that they had been participating as physicians at the University of Florida in the period January 1, 1988 through latter March, 1988 while their medical license had not been renewed before expiration on December 31, 1987. In conversations between Ms. Dobbs and someone associated with the Petitioner, she expressed her concern at having to pay an additional $50 late fee in the face of the circumstance in which records had been lost in the Johnson Hall fire. In this conversation she was not lead to believe that there would be any problem with the practice of those physicians who were on that list found in Respondent's exhibit no. 3. In her testimony, although Ms. Dobbs acknowledges that Respondent's name is not on the list of physicians whose licenses were reapplied for, she also indicates that she could not say for an absolute fact that these names were the only ones whose information on license renewal was lost. Being of the belief based upon his conversation with Ms. Dobbs that the necessary paperwork for renewal had been destroyed in the Johnson Hall fire, Respondent took the initiative to ascertain the appropriate method to rectify the situation of his license renewal. To this end, at approximately the same time period as the discussion with Ms. Dobbs, he spoke with Ms. Faircloth. He explained the circumstances to Ms. Faircloth of his renewal and specifically the idea in which he was persuaded that his renewal papers had been burned up in the fire at the University of Florida. Her instructions to him were that the paperwork would be forthcoming, to fill it out as quickly as possible and that he should not worry that this sort of thing happened all the time. He was not told by Ms. Faircloth that he should not continue in his duties as a resident physician, given the status of his license renewal. Having not heard from Ms. Faircloth within the week of his initial contact with her, he called her a second time. At that point she said that he should have received the materials. A month after the second contact, another call was made from the Respondent to Ms. Faircloth because he had not received the materials. She indicated that by that time the materials should have been received and therefore she was going to send another set of those forms for him to fill out. A further call was made to Ms. Faircloth and she indicated to the Respondent that the forms had been sent out, and sometime in late June or early July, 1988, information concerning the obtaining of his renewed license began to be received by Respondent. Documents pertaining to the activity of gaining a new license may be found within Petitioner's composite exhibit no. 2 admitted into evidence, in particular those portions 2D through 2J. Throughout this process Respondent cooperated and made timely responses to what was asked of him to effectuate these purposes. Finally, effective October 24, 1988, Respondent obtained his renewed license. Throughout this endeavor neither Ms. Faircloth in conversations with Respondent nor anyone else associated with Petitioner indicated that the Respondent should cease his practice pending the issuance of the renewed license. None of the materials that were forwarded to the Respondent for purposes of license renewal had any admonition against his carrying forward his duties as a resident of the University of Florida pending the resolution of this license problem. After returning the necessary materials to obtain his license, Respondent had not heard from the Department of Professional Regulation, so he checked with Jeri Dobbs and was told that the necessary cash had been remitted for renewal. He called someone within the Petitioner's organization and that person confirmed that the check in furtherance of his license renewal fee had been cashed and that it was probably still in the computer that the license had been printed, but probably had not been sent in the mail. According to Barbara Kemp an employee of Petitioner, who has responsibility for processing requests for license renewal, the detailed requirements set forth in Petitioner's composite exhibit 2 are utilized in the instance wherein the license was not renewed in the ordinary period for renewal. Respondent's situation was perceived in that way. Ms. Kemp refers to this as the reactivation of a license and describes this exhibit as being an indication of the materials necessary to reactivate. As Ms. Kemp explained in her remarks, typically the renewal packet is dispatched 60 days prior to the expiration of the license. That would correspond in this instance to 60 days before December 31, 1987. That circumstance, unlike the situation reflected in Petitioner exhibit no. 2 admitted into evidence, does not contemplate the need to document compliance with certain requirements related to license renewal. In the reactivation mode, that documentation as evidenced by items set forth in Petitioner's exhibit no. 2 would be necessary. According to Ms. Kemp, in the instance where there is a belief that the practitioner has been practicing medicine without the benefit of an active license, a memorandum is sent to those persons within the Petitioner's organization who are responsible for considering administrative complaints. This does not usually occur within the first couple of months beyond the period of license expiration. In this instance, that would correspond to the first couple of months beyond December 31, 1987. The reason for not reporting tardiness in license renewal is due to the fact that Petitioner is busy trying to renew a high number of licenses and the computer takes time to catch up and conclude that activity. This describes the time necessary for data to be entered in the computer system. In this instance, Ms. Kemp complained to the investigatory arm of her organization about the Respondent's possible practice without the benefit of a license and that complaint was made on September 16, 1988.
Recommendation Based upon the findings of fact made and the conclusions of law reached, it is, RECOMMENDED: That a Final Order be entered which dismisses this administrative complaint. DONE and ENTERED this 13th day of February, 1990, in Tallahassee, Florida. CHARLES C. ADAMS, 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 13th day of February, 1990. APPENDIX The following discussion is given concerning the proposed facts of the parties. Petitioner's Facts Paragraphs 1-8 and all of paragraph 9 save the last phrase are subordinate to facts found. The idea of a supposition by the Board of Medicine that Respondent had withdrawn from the residency program and had become licensed is not crucial to the disposition of this case. Paragraphs 10 and 11 are subordinate to facts found. Paragraph 12 is contrary to facts found. Paragraphs 13-17 are subordinate to facts found. Respondents's Facts Paragraphs 1-9 are subordinate to facts found. Paragraph 10 with the exception of the last sentence is subordinate to facts found. The exact whereabouts of the paperwork necessary for renewal was not established with certainty. Paragraphs 11-20 are subordinate to facts found. Copies furnished: Wellington H. Meffert II, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Barbara C. Wingo Associate General Counsel University of Florida 207 Tigert Hall Gainesville, FL 32611 Dorothy Faircloth, Executive Director Department of Professional Regulation, Board of Medicine 1940 North Monroe Street Tallahassee, FL 32399-0792 Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
The Issue Whether or not Respondent should be disciplined for violations charged under Count I of the Administrative Complaint pursuant to Rule 210- 10.005(1)(e)1. F.A.C. and Section 464.018(1)(f) F.S. [for intentionally or negligently failing to file a report or record required by state or federal law] and pursuant to Rule 210-10.005(1)(e)1. and Section 464.018(1)(h) F.S. [for unprofessional conduct including, but not limited to, inaccurate recording, falsifying or altering of patient records]; under Count II pursuant to Rule 210- 10.005(1)(e)12. F.A.C. and Section 464.018(1)(h) F.S. [for unprofessional conduct including, but not limited to, acts of negligence or gross negligence, either by omission or commission]; and under Count III pursuant to Rule 210- (1)(e)15. F.A.C. and Section 464.018(1)(h) F.S. [for unprofessional conduct including, but not limited to, practicing beyond the scope of the licensee's license, educational preparation or nursing experience].
Findings Of Fact At all times material, Respondent was licensed as a registered nurse in the state of Florida, Board of Nursing license number 84080-2. At all times material, Respondent was employed as a registered nurse/nurse supervisor with North Florida Reception Center (NFRC) Hospital, part of the Florida Department of Corrections. On December 13, 1989, Officer Russell Adler was on duty in 05 dormitory. It was called to Officer Adler's attention and he observed that an inmate, Artis Baker, was crawling around on the floor and was having trouble breathing. At approximately 11:29 p.m. Officer Adler turned over custody of inmate Baker to Officer Willie Hogan for escort to the emergency room. Officer Hogan escorted inmate Baker to the emergency room and went elsewhere while inmate Baker was seen by Respondent, who was the nurse on duty. Shortly thereafter, Respondent returned custody of inmate Baker to Officer Hogan. Officer Hogan testified that the Respondent informed him at that time that he, the Respondent, had given Baker a shot "to calm him down to rest." Hogan escorted inmate Baker back to his dormitory. Officer Adler testified that Hogan told him that Respondent had given Baker "some sleeping medication." However, other witnesses testified that when Respondent was questioned by Dr. Richtine and others after Baker was found dead, Respondent denied that he had medicated Baker. In light of the objective evidence of the autopsy, these contrary so-called "admissions" of Respondent are not sufficient for making a finding of fact that Respondent, did, in fact, administer any drug to Baker. See, Finding of Fact 14. Contrary to NFRC policy, neither inmate Baker's visit to the emergency room nor any medication which may have been administered by Respondent was recorded by Respondent in inmate Baker's patient record. Diane Richtine, M.D., was the on-call physician that night. Contrary to NFRC policy and protocol, Respondent never notified Dr. Richtine that there was an inmate who had presented himself to the emergency room for possible treatment. The foregoing NFRC policies requiring notations in the patient's record and the notification by the on-duty nurse to the on-call physician are contained in a written policy and procedure manual, receipt and reading of which Respondent had acknowledged in writing prior to December 13, 1989, but there was no affirmative proof that these policies or the reports/records required by them are "reports or records required by state or federal law." No statute or Florida Administrative Code rule adopting the Department of Corrections NFRC policy manual was introduced by Petitioner or referenced by any witness. Inmate Baker was returned by Officer Willie Hogan to the dormitory at approximately midnight on December 13, 1989. At 5:55 a.m. on December 14, 1989, Officer Larry Feltner was informed by other inmates that inmate Baker was not responding to the wake-up calls. Officer Feltner checked inmate Baker for a pulse, but was unable to locate one and then called the control room to inform its occupants of the incident. Sergeant Allan Ross and Captain J.D. Wainwright responded. They entered the dormitory and checked inmate Baker for a pulse, and finding none, removed Baker from his bunk and attempted to administer cardiopulmonary resuscitation. The Respondent, David Pearl, then entered the dormitory and while Captain Wainwright and Sergeant Ross were present, checked inmate Baker for life signs and found none. Baker's body was thereafter removed from the dormitory and taken to the NFRC morgue. The Respondent failed to notate inmate Baker's death on his patient records. The first notation of death was made by E. Johnson, R.N., at 8:15 a.m. on December 14, 1989. Patricia K. Bassitt, R.N., was accepted as an expert witness on general nursing practices and record keeping. In her expert opinion, Respondent's failures to notate inmate Baker's visit to the emergency room, to notate his administration of medication to inmate Baker (which administration of medication the expert witness erroneously took to be factually established), and to notate Baker's subsequent death constituted inaccurate keeping of patient records; also in her opinion, Respondent's actions constituted negligent actions and actions below minimum standards of acceptable care. Further, Ms. Bassitt opined that Respondent had acted beyond the scope of good nursing practice, had acted contrary to good nursing practice, and that his actions had been "very lacking." Despite an autopsy performed on inmate Baker, it was not possible to determine the cause of his death. Nothing beyond his regular medications for chronic hypertension was found in his system. No toxic substance, legend drug, or drug which would cause him to sleep was found.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Nursing enter a Final Order finding Respondent not guilty of the portion of Count I of the Administrative Complaint brought pursuant to Rule 210-10.005(1)(e)1. F.A.C. and Section 464.018(1)(f) F.S. [intentionally or negligently failing to file a report or record required by state or federal law], guilty of the portion of Count I brought pursuant to Rule 210-10.005(1)(e)1. F.A.C. and Section 464.018(1)(h) F.S. [for unprofessional conduct, specifically, inaccurate recording of patient records]; guilty of Count II brought pursuant to Rule 210-10.005(1)(e)12. F.A.C. and Section 464.018(1)(h) F.S. [unprofessional conduct, specifically acts of simple negligence]; and not guilty of Count III brought pursuant to Rule 210-10.005(1)(e)15. F.A.C. and Section 464.018(1)(h) F.S. [unprofessional conduct, specifically practicing beyond the scope of the licensee's license, educational preparation or nursing experience], reprimanding Respondent for his actions, and placing his license on probation for two years with the special condition that he successfully complete courses in charting/assessment in addition to other normally required continuing education courses, together with a $250 administrative fine. RECOMMENDED this 27th day of February, 1991, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 27th day of February, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-4408 The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF: 1-5 are accepted. 6-7 are covered in FOF 6 and 10 and the conclusions of law. 8-19 are accepted. 20-22 are accepted as modified to accurately reflect the witness' testimony and to the extent they are not accepted, they are rejected as contrary to the credible record evidence. Respondent's PFOF: None submitted. COPIES FURNISHED: Tracey S. Hartman, Esquire Department of Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 David Pearl 1106 1/2 West Princeton Street Orlando, Florida 32804 Judie Ritter Executive Director 504 Daniel Building 111 East Coastline Drive Jacksonville, FL 32202 Jack McCray, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
Conclusions Having reviewed the Administrative Complaint, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency issued the attached Administrative Complaint to the Respondent to revoke its health care clinic license due to Respondent’s principal being ineligible for licensure or exemption from disqualification from licensure pursuant to Section 435.07, F.S.. (Ex. 1) The Respondent filed a Petition for Formal Hearing and the case was referred to the Division of Administrative Hearings. During the proceedings, the Agency filed a Motion to Relinquish Jurisdiction based upon the lack of any material facts in dispute. In response, the Administrative Law Judge issued an Order to Show Cause to Respondent, followed by an Order Closing File and Relinquishing Jurisdiction stating that the Agency was authorized to enter a Final Order against the Respondent. (Ex. 2) Based upon the foregoing, it is ORDERED: 2. The Administrative Complaint is UPHELD and the Respondent’s health care clinic license is REVOKED. 3. In accordance with Florida law, the Respondent is responsible for retaining and appropriately distributing all client records within the timeframes prescribed in the authorizing statutes and applicable administrative code provisions. The Respondent is advised of Section 408.810, Florida Statutes. 4. In accordance with Florida law, the Respondent is responsible for any refunds that may have to be made to the clients. 5. The Respondent is given notice of Florida law regarding unlicensed activity. The Respondent is advised of Section 408.804 and Section 408.812, Florida Statutes. The Respondent should also consult the applicable authorizing statutes and administrative code provisions. The Respondent is notified that the cancellation of an Agency license may have ramifications potentially affecting accrediting, third party billing including but not limited to the Florida Medicaid program, and private contracts. 1 Filed July 23, 2013 10:20 AM Division of Administrative Hearings ORDERED at Tallahassee, Florida, on this 727 ~day of key , 2013. Elizabeth Dudek, Secretary Agency for Hegith Care Administration NOTICE OF RIGHT TO JUDICIAL REVIEW. 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 this 2 7A of this Final Order_was | was served on the below-named persons by the method designated on this ~ Jad a, » 2013. Richard Shoop, Agency Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Facilities Intake Unit Agency for Health Care Administration (Electronic Mail) Thomas Jones, Unit Manager Health Care Clinic Unit Agency for Health Care Administration (Electronic Mail) Finance & Accounting Revenue Management Unit Agency for Health Care Administration (Electronic Mail) Robert Dickson, Field Office Manager Local Field Office Agency for Health Care Administration (Electronic Mail) Katrina Derico-Harris Medicaid Accounts Receivable Agency for Health Care Administration (Electronic Mail) Warren J. Bird, Senior Attorney Office of the General Counsel Agency for Health Care Administration (Electronic Mail) Shawn McCauley Harry Vassilakis, Registered Agent Medicaid Contract Management All Care Chiropractic & Wellness, Inc. Agency for Health Care Administration 505 Deltona Boulevard, Suite #103 (Electronic Mail) Deltona Florida 32725 (U.S. Mail) E. Gary Early Harry Vassilakis, Unit Manager Administrative Law Judge All Care Chiropractic & Wellness, Inc. Division of Administrative Hearings 807 Beville Road (Electronic Mail) South Daytona, Florida 32119 (U.S. Mail) NOTICE OF FLORIDA LAW 408.804 License required; display.-- (1) It is unlawful to provide services that require licensure, or operate or maintain a provider that offers or provides services that require licensure, without first obtaining from the agency a license authorizing the provision of such services or the operation or maintenance of such provider. (2) A license must be displayed in a conspicuous place readily visible to clients who enter at the address that appears on the license and is valid only in the hands of the licensee to whom it is issued and may not be sold, assigned, or otherwise transferred, voluntarily or involuntarily. The license is valid only for the licensee, provider, and location for which the license is issued. 408.812 Unlicensed activity. -- (1) A person or entity may not offer or advertise services that require licensure as defined by this part, authorizing statutes, or applicable rules to the public without obtaining a valid license from the agency. A licenseholder may not advertise or hold out to the public that he or she holds a license for other than that for which he or she actually holds the license. (2) The operation or maintenance of an unlicensed provider or the performance of any services that require licensure without proper licensure is a violation of this part and authorizing statutes. Unlicensed activity constitutes harm that materially affects the health, safety, and welfare of clients. The agency or any state attorney may, in addition to other remedies provided in this part, bring an action for an injunction to restrain such violation, or to enjoin the future operation or maintenance of the unlicensed provider or the performance of any services in violation of this part and authorizing statutes, until compliance with this part, authorizing statutes, and agency rules has been demonstrated to the satisfaction of the agency. (3) It is unlawful for any person or entity to own, operate, or maintain an unlicensed provider. If after receiving notification from the agency, such person or entity fails to cease operation and apply for a license under this part and authorizing statutes, the person or entity shall be subject to penalties as prescribed by authorizing statutes and applicable rules. Each day of continued operation is a separate offense. (4) Any person or entity that fails to cease operation after agency notification may be fined $1,000 for each day of noncompliance. (5) When a controlling interest or licensee has an interest in more than one provider and fails to license a provider rendering services that require licensure, the agency may revoke all licenses and impose actions under s. 408.814 and a fine of $1,000 per day, unless otherwise specified by authorizing statutes, against each licensee until such time as the appropriate license is obtained for the unlicensed operation. (6) In addition to granting injunctive relief pursuant to subsection (2), if the agency determines that a person or entity is operating or maintaining a provider without obtaining a license and determines that a condition exists that poses a threat to the health, safety, or welfare of a client of the provider, the person or entity is subject to the same actions and fines imposed against a licensee as specified in this part, authorizing statutes, and agency rules. (7) Any person aware of the operation of an unlicensed provider must report that provider to the agency.
The Issue The issues are whether Respondent failed to maintain emergency medications, in violation of Florida Administrative Code Rule 59A-9.0225(1), and failed to ensure that a defibrillator was available for immediate use, in violation of Florida Administrative Code Rule 59A-9.0225(2). If so, another issue is the penalty that should be imposed.
Findings Of Fact At all material times, Respondent has operated, under the jurisdiction of Petitioner, a licensed abortion clinic facility, bearing license number 899. The facility in question is located in North Miami Beach. At the time of the surveys described below, Respondent also operated another facility in south Miami, but that facility is not involved in this case. All references to "facility" will therefore refer to the North Miami Beach location. On June 8, 2010, one of Petitioner's surveyors conducted a relicensure survey of Respondent's facility. As is typical of such surveys, this survey was unannounced. During the survey, the surveyor discovered three expired medications in the facility: 0.2 mg Isuprel®--expired August 2009, 0.4 mg atropine--expired February 2010, and an unspecified dosage of nalbuphone--expired February 2010. These expired medications were on a shelf in the operating room. During the survey, the surveyor also discovered that the facility did not have a defibrillator. At the conclusion of the survey, the surveyor conducted an exit conference with the sole employee present at the facility. During this conference, the surveyor explained these deficiencies and gave Respondent until July 8, 2010, to correct them. Subsequently, the surveyor prepared a report showing these violations and confirming that the deadline for correcting both deficiencies was July 8, 2010. On April 21, 2011, the surveyor returned, again unannounced, to the facility to conduct a followup survey and again found only one employee present at the facility. During this survey, the surveyor discovered three expired medications in the facility: one 500-ml IV bag of Lactated Ringer's-- expired April 2009, 1 mg atropine--expired November 2010, and 2% lidocaine hydrochloride injection--expired November 2010. The surveyor found these expired medications in a locked storage box on the crash cart, which is the cart used for medical emergencies. During the followup survey, the surveyor also discovered that the facility did not have a defibrillator. On the dates of both surveys, the facility did not have any surgical procedures scheduled. Also, no patients were present at anytime during either survey. During each survey, the surveyor selected five dates at random to determine if the facility had performed any second- trimester abortions, and she found that no such procedures had been performed on any of these dates. For this reason, the surveyor did not cite the facility for any violations that are contingent on the actual performance of second-trimester abortions--such as, the failure to have a registered nurse in the recovery room. Similarly, because no patient was present during the surveys, the surveyor testified that she did not cite the facility for a failure to maintain anaesthesia equipment in the operating room; the surveyor explained that the anaesthesiologist brings his or her own equipment when attending a surgical procedure. The surveyor explained that she cited Respondent for the deficiencies alleged in this case because they are contingent upon licensure only, not licensure and the actual performance of second-trimester abortions. At the time of each survey, regardless of the level of patient activity, the facility was open and capable of supporting the procedures for which it is licensed. Dr. Rosenthal offered an explanation for each of the deficiencies cited in this case. As he testified, the expired medications found during the followup survey were in a locked storage box maintained by a certified registered nurse anesthetist, who had not worked at the facility for several years, but had never returned to retrieve her storage box. However, Dr. Rosenthal's explanation does not account for why the surveyor missed the Lactated Ringer's IV fluid during the original relicensure survey, if, in fact, she did miss this item. (The other two items were not expired at the time of the earlier survey.) Notwithstanding any shortcoming in Dr. Rosenthal's explanation, more importantly, the record fails to establish the absence of current emergency medications and IV fluids at the facility. As noted below, the cited rule requires that the facility contains these items; as long as it does, the cited rule is not violated by the presence of expired medications and fluids at the facility. The presence of such expired items is insufficient, especially when the standard of proof, as noted below, is clear and convincing evidence, to support an inference that adequate, current medications and IV fluids were not also available at the facility. As Dr. Rosenthal testified, at the time of both surveys, Respondent maintained a single defibrillator, which he transferred from one facility to another, depending on which facility was to be the site of surgical procedures on a given day. This explanation is not responsive to the requirement of a defibrillator at each facility.
Recommendation It is RECOMMENDED that the Agency for Health Care Administration enter a final order finding Respondent guilty of failing to maintain a defibrillator and imposing an administrative fine of $500 for this violation and dismissing the charge pertaining to expired medications and IV fluids. DONE AND ENTERED this 10th day of July, 2012, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 10th day of July, 2012. COPIES FURNISHED: Vlad Van Rosenthal A Medical Office for Women Suite 402 909 Northeast 163rd Street Miami, Florida 33160 Nelson E. Rodney, Esquire Agency for Health Care Administration Suite 300 8333 Northwest 53rd Street Miami, Florida 33166 nelson.rodney@ahca.myflorida.com Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Stuart Williams, General Counsel 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
The Issue Whether Petitioner's renewal application for an assisted living facility (ALF) license should be denied based upon Petitioner's failure of the biennial re-licensure survey conducted on June 10 and 11, 2013, and because Petitioner has a controlling interest in another ALF that has an unpaid fine of $5,000.00 from 2012 after its license was revoked.
Findings Of Fact AHCA is the state agency responsible for regulating home health agencies in Florida. In this capacity, AHCA determines whether to approve applications for renewal of licensure as an ALF, and it has administrative jurisdiction to enforce the laws governing such licensees, including the authority to take disciplinary measures against licensees who violate the applicable statutes and rules. Petitioner is a corporation which operates a 62-bed ALF in the Cannon Point neighborhood of Lauderhill, Florida. The ALF has both a standard ALF license and a specialty limited mental health (LMH) license. Petitioner has been owned and operated for approximately 13 years by Susan and William Spaw. Mrs. Spaw serves as president, administrator, and chief financial officer of Petitioner and owns a 51 percent interest in Petitioner. As such, she is "a controlling interest" of Petitioner as defined by section 408.803(7), Florida Statutes. Mrs. Spaw also was a controlling interest of Serenity Gardens, an ALF which had its license revoked by AHCA by Final Order dated March 30, 2012 (Final Order). By the same Final Order, Serenity Gardens also had a $5,000.00 fine imposed against it by AHCA that remained unpaid as of the date of the final hearing in this proceeding. Florida ALF licenses must be renewed every two years. Petitioner filed an application for license renewal with AHCA which was received on March 20, 2013. When Petitioner's application was received by AHCA, it was referred to Jim Alfred (Alfred), senior management analyst in the ALF licensing unit. Alfred reviewed the application to determine whether any items were missing or anything needed to be added or corrected. On April 12, 2013, AHCA issued an Omissions Letter (Omissions Letter) drafted by Alfred to Mrs. Spaw advising that Petitioner's renewal application was determined to be incomplete and specifying the errors and omissions to be addressed within 21 days to deem the application complete. Among other things, the Omissions Letter states that pursuant to section 408.831, if there are any outstanding fines, liens, or overpayments that have been assessed by final order of AHCA against the licensee or a common controlling interest, they must be paid prior to license/registration issuance. The Omissions Letter indicates that AHCA's records show that, in addition to having a controlling ownership interest in Petitioner, Mrs. Shaw also had a controlling ownership interest in Serenity Gardens which had an outstanding fine in Final Order status for the amount of $5,000.00. The Omissions Letter also notified Petitioner that section 429.14(3), Florida Statutes, gives AHCA the authority to deny the renewal application based upon the revocation of license number 10176, which was issued to Serenity Gardens. As part of the ALF license renewal process, AHCA conducts a biennial "survey." The survey is a comprehensive inspection of an ALF facility and its records to determine compliance with applicable statutes and rules. The survey must be completed before the renewal is issued. During the survey, AHCA surveyors observe staff in their interactions with residents and the dispensing of medications. The surveyors also examine the physical plant and review resident records. When Alfred reviewed Petitioner's application, Petitioner's license was "red flagged" in AHCA's computer system because of the revocation of the license for Serenity Gardens and the outstanding $5,000.00 fine. Alfred brought this to the attention of his supervisor, Shaddrick Haston (Haston), AHCA's unit manager for ALFs. Although either the revocation of the license for Serenity Gardens, a facility in which Mrs. Shaw had a controlling interest, or the outstanding $5,000.00 fine would be a sufficient basis for denial of the renewal application, Haston directed Alfred to wait until receipt of the biennial survey results for Petitioner's ALF before moving forward with a possible denial of the renewal application. The biennial re-licensure survey was conducted at Petitioner's facility on June 10 and 11, 2013, by AHCA surveyors Michael Forrester (Forrester) and Nicolas Frias (Frias). At the time of the survey, both Forrester and Frias were experienced surveyors, each with over approximately 100 inspections, including renewal application biennial surveys. Working together, Forrester and Frias determined there were ten deficiencies, commonly cited as "tags," in reference to applicable regulatory standards. Tag A 010 Tag A 010 cited Petitioner with a violation of Florida Administrative Code Rule 58A-5.0181(4) regarding "Continued Residency." This rule requires that the patient must have a face-to-face medical examination by a licensed health care provider at least every three years after the initial assessment, or after a significant change, whichever comes first. The results of the examination must be recorded on AHCA Form 1823 (Form 1823). A resident observation log revealed that on May 7, 2013, a resident was taken by ambulance to the hospital because she was disoriented, stumbling, drooling, and had slurred speech. Petitioner's staff checked her blood sugar and found it very high. The resident also expressed that she wanted to commit suicide. Although the resident was not diagnosed with diabetes at that time, the resident was determined to have high blood sugar which needed to be monitored by home health services. Neither the change in mental status or physical status was documented on a Form 1823 although each qualifies as a "significant change." Tag A 030 Tag A 030 cited Petitioner with a violation of rule 58A-5.0182(6) and section 429.28 regarding "Resident Care-Rights & Facility Procedures." This deficiency was based upon the observation that the ALF had a pet cat that had no documentation of vaccination since 2009. This was considered to be potentially harmful to the residents. This violation was admitted by Petitioner. Tag A 052 Tag A 052 cited Petitioner with violating rule 58A- 5.0185(3) regarding "Medication-Assistance with Self- Administration." Forrester observed staff assisting residents in the self-administration of medications and saw that the required procedures for unlicensed staff were not followed properly with four residents. A staff member was observed assisting one resident with the application of a medication patch on the resident's abdomen. The staff member did not wear gloves, nor did she wash her hands after providing assistance. Two residents received medication without the staff member first reading the label in the presence of the residents. Staff was also observed leaving a resident before the resident took her medication, in violation of the rule. These violations were admitted by Petitioner, but Petitioner attributed these deficiencies to the staff being nervous due to the presence of the surveyors. Tag A 053 Tag A 053 cited Petitioner with violating rule 58A- 5.0185(4) regarding "Medication-Administration." This deficiency was based upon a review of resident records that reflect an unlicensed staff member performed blood glucose testing on a resident. Upon questioning, the surveyors learned that this was not the only time this occurred because Mrs. Spaw and the staff were unaware that a licensed medical professional is required by the rule to perform this type of procedure. Tag A 054 Tag A 054 cited Petitioner with violating rule 58A- 5.0185(5) regarding "Medication – Records." This deficiency was based on the finding that five out of 28 sampled residents' medication observation records (MORs) were not appropriately maintained. Forrester observed a staff member assist resident 18 with two medications. However that resident's MOR revealed that resident 18 should have been provided with three medications. The staff member noted on the MOR that one of the medications, Risperidone, an antipsychotic medication, was not available. After the surveyor questioned why the resident was not receiving the medication, another staff member found the missing medication. Forrester observed a staff member take a package of medications from a filing cabinet and a pill from one of the packages fell on the floor. None of the same pill type was missing from future doses for resident 13. A review of the MOR for resident 13 showed that one capsule by mouth daily was initialed as being given to the resident from June 1 through June 11, 2013. Because one pill was lying on the floor, it is not possible for the resident to have received all of the prior doses. The MOR for resident 16 showed that this resident was to be given one 800mg tablet of ibuprofen three times a day and had in fact received the ibuprofen as ordered from June 1 through June 10, 2013. However, when staff was questioned by the surveyor regarding why no ibuprofen was available for this resident on June 11, the surveyor was told that the physician had discontinued this order in September 2012. According to staff, the pharmacy erroneously printed the order for ibuprofen on the MOR in June. The deficiency was based upon the fact that staff indicated on the resident's MOR for the first ten days of June that they were assisting the resident with this medication when, in fact, no medication was available. A review of the MORs for residents 21 and 22 indicated that unlicensed staff initialed for providing injections. According to staff, the injections were actually provided by licensed health care providers who came to the facility. At some point later, staff wrote "error." Only the individual who actually provides the injection is to initial the MOR. Tag A 056 Tag A 056 cited Petitioner with violating rule 58A- 5.0185(7) regarding "Medication–Labeling and Orders." This deficiency was based, in part, on the finding that Petitioner failed to ensure that medication orders were followed as directed for 12 out of 28 sampled residents. These 12 residents received their 8:00 a.m. medications after 9:00 a.m. on June 11, 2013. According to the facility's pharmacy, the ideal window for providing medications to a resident would be no more than an hour before and an hour after the required medication dosage time as noted on the MORs. The resident is supposed to take the medications at the time intervals given. The timing issue becomes worse when a resident takes a medication more than once a day. The delay of assistance with self-administered medications for sampled residents by staff is not within the recommended pharmacy time intervals for providing medication assistance at dosage times. The facility's failure to provide physician- ordered medication at prescribed dosage times directly affects the well-being of the sampled residents. On June 11, 2013, Mrs. Spaw acknowledged exceeding the recommended time frame for medication distribution and indicated that it might be due to people coming in late. However, the staff individual who was observed distributing medications late stated that she starts the morning medications at 8:00 a.m. Mrs. Spaw indicated during the survey that she thought the medication distribution was beginning at 7:00 a.m. but she is not at the facility at that time.2/ Tag A 056 was also based upon the observation of a resident who did not receive all doses of medication, despite records indicating that all doses had been dispensed when, in fact, one dose was found on the floor. This deficiency was noted under this tag because it represented a failure to follow the doctor's order of prescribing one dosage per day. Tag A 093 Tag A 093 cited Petitioner with violating rule 58A- 5.020(2) regarding "Food Service-Dietary Standards." This deficiency was based upon Petitioner's failure to follow its own prepared menus. This rule requires that menus are to be dated and planned at least one week in advance for both regular and therapeutic diets. Any substitutions are to be noted before or when the meal is served. A three-day supply of nonperishable food, based on the number of weekly meals the facility has contracted with residents to serve, shall be on hand at all times. The surveyors found that the facility was not providing fruit juice despite fruit juice being on the menu, the menus were not showing a substitution, and the facility did not have a stock of fruit juice available. Petitioner provided no explanation or evidence to rebut this deficiency. Tag A 152 Tag A 152 cited Petitioner with violating rule 58A- 5.023(3) regarding "Physical Plant–Safe Living Environment/Other." In accordance with this rule, residents are supposed to be able to decorate their rooms with their own belongings as space permits. This rule also requires that residents are provided with a safe living environment. This deficiency was based upon the observation that a resident's magazine pictures, which he had taped to the wall of his room, were torn down. This left the walls with missing paint, and they were unsightly. A drain cover for a shower was missing in another resident's bathroom leaving an open hole in the floor which could result in injury to the resident. Petitioner did not dispute this deficiency. Tag A 167 Tag A 167 cited Petitioner with violating rule 58A- 5.025(1) regarding "Resident Contracts." Petitioner is required by this rule to maintain resident contracts that have an accurate monthly rental rate. For two of the 28 residents sampled, the surveyors found that one contract had a rate left blank and another had an incorrect rate. Tag AL 241 Tag AL 241 cited Petitioner with violating rule 58A- 5.029(2) regarding "LMH–Records." This rule requires that a facility with a LMH license maintain an up-to-date admission and discharge log identifying all mental health residents. Review of the facility's records showed that Petitioner had only one admission and discharge log which did not identify mental health residents. This rule also requires that each mental health resident shall have a Community Living Support Plan (CLSP) prepared by the facility administrator and the individual's mental health care provider which identified the specific needs of the resident and a plan for how those needs will be met. The CLSP is to be updated annually. A review of resident 1's records showed that Petitioner only had a CLSP that had been last updated in February 2008. Although the resident had an Interim Mental Health Assessment dated February 18, 2013, it did not reference the CLSP or contain any of its mandatory components. The Exit Interview On June 11, 2013, at the completion of the inspection, Forrester and Frias met briefly for an exit interview with Mrs. Spaw, Assistant Administrator Holli Raven (Raven), and Resident Assistant Marcia Gray (Gray). The purpose of the meeting was to provide a summary of the surveyors' findings and to discuss the Petitioner's responses, if any, to the concerns.3/ Forrestor represented at the meeting that he and Frias believed the deficiencies were all Class III violations but that the determination of classifications was subject to review by their supervisor. Statement of Deficiencies On June 20, 2013, Forrestor hand-delivered to Petitioner a copy of Form 3020, the Statement of Deficiencies, which included a detailed summary of the applicable rules violated and facts supporting the finding of deficiencies. The cover letter indicated that two tags, A 054 and A 056, regarding medication records, labeling and orders, were considered Class II deficiencies. As such, AHCA directed Petitioner to comply with a designated corrective action plan within five days. When delivering the Statement of Deficiencies, Forrestor explained to Mrs. Spaw that the medication-related deficiencies were upgraded by his supervisor from Level III to Level II. Forrestor's supervisor was not physically present at the survey but reviewed the results reported by Forrestor and Frias and upgraded the classifications based upon her training and familiarity as a licensed practical nurse with medication issues. The corrective action plan required Petitioner to provide a medication training course, approved by the Department of Elder Affairs, to staff. It also required Petitioner to ensure all unlicensed staff maintains a minimum of two hours of continuing education training on providing assistance with self- administered medication. The plan also directed Petitioner to obtain the consultation of a pharmacist to ensure all staff providing assistance with self-administered medication is following the guidelines of section 429.256 and that such consultation must be no less than three months in length. Petitioner immediately hired a pharmacy consultant and implemented training for staff. The consultant also reviewed the resident's medical records to make sure they were in compliance with applicable rules. However, Petitioner did not notify AHCA of its compliance efforts nor did AHCA conduct a re-inspection to determine whether the plan was being followed. Mrs. Spaw was very surprised to receive the extensive statement of deficiencies. In particular, she was dismayed that the facility was cited with two Class II violations when the surveyors had indicated at the exit interview that the purported deficiencies were Class III violations. According to Mrs. Spaw, she is not aware of any other facility in her vicinity which has received Class II designations for the types of deficiencies for which her facility is cited.4/ Mrs. Spaw and Forrester had no conversation regarding the findings when he hand-delivered the June 20, 2013, correspondence from AHCA. Mrs. Spaw felt that the survey findings reflected a bias or animus against her facility. However, there was absolutely no evidence of this presented at the final hearing. Both Forrester and Frias testified that they had no prior instruction with regard to how to conduct the survey other than when it was scheduled. They also testified that they conducted the survey at Petitioner's facility in the same fashion that they have conducted numerous other re-licensure surveys. Petitioner did not contest the underlying facts which supported the deficiencies. However, Petitioner suggests that these are relatively minor errors which occurred because a staff member was very nervous due to the surveyors being present and following them while dispensing medications. Notably, the staff person who was involved in the majority of the MOR errors and medication delays did not testify. Petitioner also argues that many of the deficiencies cited are based upon the same facts. For example, there are several deficiencies related to the incident of a pill being found on the floor. However, as explained by Forrester, factual observations may be listed repeatedly because they demonstrate different areas of non-compliance with laws or rules. The same incident may be referenced in support of different tag numbers because there are a variety of laws and rules involved. Notice of Intent to Deny After reviewing the results of Petitioner's re- licensure survey, Alfred met with Haston to discuss Petitioner's re-licensure application. Haston reviewed the results and saw there were two Class II and eight Class III violations. Although Haston wanted Petitioner's facility to remain open because he believes Mrs. Spaw "takes care of patients no one else wants" and there is a need for LMH beds in Petitioner's area, Haston decided to deny re-licensure based upon the failed survey, the outstanding fine from Serenity Gardens, and the fact that the license of Serenity Gardens was revoked. AHCA issued a Notice of Intent to Deny on October 2, 2013, and explained that the denial was based upon the failed biennial re-licensure survey, the outstanding fine imposed by Final Order on March 30, 2012, and that the applicant (Mrs. Spaw on behalf of Petitioner) had a controlling interest in Serenity Gardens, a facility which had its license revoked by Final Order.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order upholding the denial of Petitioner's licensure renewal application. DONE AND ENTERED this 23rd day of May, 2014, in Tallahassee, Leon County, Florida. S MARY LI CREASY 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 23rd day of May, 2014.
Conclusions Having reviewed the Notice of Intent dated June 10, 2009, attached hereto and incorporated herein (Ex. 1), and all other matters of record, the Agency for Health Care Administration ("the Agency") has entered into a Settlement Agreement (Ex. 2) with the parties to these proceedings, and being otherwise well-advised in the premises, finds and concludes as follows: ORDERED: 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. The Agency's Notice of Intent to Deem Application Incomplete and Withdrawn from Further Review is rescinded. The Petitioner's request for formal administrative proceedings is 1 Filed July 10, 2009 2:23 PM Division of Administrative Hearings. withdrawn. Each party shall bear its own costs and attorney's fees. The above-styled case is hereby closed. DONE and ORDERED this ff_ da of c/a.-J,/ in Tallahassee, Leon County, Florida. , 2009, Secretary alth Care Administration A PARTY WHO IS ADVERSELY AFFECTED B THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW WHICH SHALL BE NSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE A ENCY CLERK OF AHCA, AND A SECOND COPY, ALONG WITH FILING FE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTER OR WHERE A PARTY RESIDES. REVIEW OF PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE N TICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE RDER TO BE REVIEWED. Copies furnished to: Jan Mills Agency for Health Care Admin. 2727 Mahan Drive, Bldg #3, MS #3 Tallahassee, Florida 32308 (Interoffice Mail) Th mas M. Hoeler, Esquire Ag ncy for Health Care Admin. 27 7 Mahan Drive, Bldg. #3, MS # 3 Tallahassee, Florida 32308 (Interoffice Mail) Karen Rivera, Manager Laboratory Licensure Unit Agency for Health Care Administration James P. Early Apex Laboratory 170 Finn Court Farmingdale, NY 117035 2727 Mahan Drive, MS #32 Tallahassee Florida 32308 (U.S. Mail) CERTIFICATE OF SERVICE )3/ , I HEREBY CERTIFY that a true and correct copy of this Final Order was served on the above-named person(s) and entities by U.S. Mail, or the method designated, on this of :C 2009. c Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Building #3 Tallahassee, Florida 32308-5403 (850) 922-5873 CHARLIE CRIST GOVERNOR June 10, 2009 FLORIOb.N38Cf FOR HEIILTH CARE AOMINISlRAllON JJu1CA Better Health Cara for all Floridians HOLLY BENSON SECRETARY RECl IL /RETURN RECEIPT REQUESTED ANTHONY T GAROFALO G \\, :•..,. ,,, .ouNSEL APEX LABORATORY INC 170FINNCT FARMINGDALE, NY 11735 JUN 16 2009 Ag(lm<oY 1 or Health care Administration LICENSE NUMBER: 800022307 CASE #: 2009006594 NOTICE OF INTENT TO DEEM APPLICATION INCOMPLETE AND WITHDRAWN FROM FURTHER REVIEW Your application for license is deemed incomplete and withdrawn from further consideration pursuant to Section 408.806(3)(b), Florida Statutes, which states that "Requested infonnation omitted from an application for licensure, license renewal, or change of ownership, other than an inspection, must be filed with the agency within 21 days after the agency's request for omitted information or the application shall be deemed incomplete and shall be withdrawn from further consideration and the fees shall be forfeited''. You were notified by correspondence dated March 23, 2009 to provide further info1mation addressing identified apparent errors or omissions within twenty-one days from the receipt of the Agency's correspondence. Our records indicate you received this correspondence by certified mail on April 06, 2009. As this requested information was not timely received by the Agency, your application is deemed incomplete and withdrawn from further consideration. The outstanding issues remaining for licensure are: Failure to submit corrections upon request for RENEWAL application: On Page 5 of9 of the Renewal application form 3170-2004, the Owner Name and Federnl Tax ID number do not match current files. Test menu lists panels, not individual tests. Section 2A of the Health Care Licensing Application does not match section 2A of the Health Care Licensing Application Addendum. Affidavit of Compliance with Background Screening Requirements form 3100-0008 for the Laboratory Director. EXPLANATION OF RIGHTS Pursuant to Section 120.569, F.S., 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), F.S., your request for an administrative hearing must confonn to the requirements in Section 28-106.201, Florida Administrative Code (F.A.C), and must state the material facts you dispute. SEE ATTACHED ELECTION AND EXPLANATION OF RIGHTS FORMS. Certified Article Number 7160 3901 11848 3738 2137 I . SENDERS RECORD · 2727 Mahan Drlve,MS#32 Tallahassee, Florida 32308 Visit AHCA onllne at http://ahca. myflorida. co EXHIBIT i l Apex Laboratory Inc Page2 June 10, 2009 Karen Rivera, Manager Laboratory Licensure Unit cc: Agency Clerk, Mail Stop 3 Legal Intake Unit, Mail Stop 3 O:JtJ:IL.l.tJ.L:..10 F,om 8 09210158 Page. 2/8 Dace 6126'20094 2U5PM l"'F-IIOC:.. (.I.I,.; tJ j STATE OF FLORIDA
Findings Of Fact The following facts were stipulated by the parties and required no proof at hearing: Petitioner, University Hospital, Ltd., is a Florida limited partnership and is the licensee of University Hospital and University Pavilion Hospital, both located on North University Drive, Tamarac, Florida. Petitioner Sebastian Hospital, Inc., is a Florida corporation, and is the licensee of Sebastian Hospital and SandyPines Hospital. Both hospitals are located on separate premises. Petitioner Haines City HMA, Inc., is a Florida corporation, and is the licensee of Heart of Florida Hospital, Inc. and Palmview Hospital. Both hospitals are located on separate premises. Petitioners timely filed their respective Petitions to determine the invalidity of the proposed rules at issue. Petitioners would be regulated by the proposed rules and are substantially affected parties with standing to challenge the proposed rules at issue. No proof is necessary to prove the standing of these Petitioners. Prior Rule 59C-1.004(2)(i) (the "License Consolidation Rule") required CON application and approval for license consolidations pursuant to Section 395.003, F.S. It was declared invalid in University Hospital, Ltd., et al. v. AHCA, 16 F.A.L.R. 3312 (final order dated July 22, 1994). [This decision is referenced throughout as University Hospital.] Prior to invalidation of the License Consolidation Rule, six CON applicants sought issuance of a single, or consolidated, license to replace former separate licenses held by the same licensee for facilities located on separate premises. Each of these six prior applicants involved a general acute care hospital and a specialty psychiatric hospital. Those applicants resulted in an issuance of CON numbers 7303, 6954, 7712, 7311, 7167, and 7047. Each of those six applications was ulti- mately approved in the form of a single license. When the single licenses were issued, no restrictions were placed on the licensees regarding eligibility for Medicaid reimbursement. As reflected in the respective SAARS, a significant result of approval of each of these applications was that the formerly separately licensed psychiatric hospital became eligible for Medicaid reimbursement for treatment of Medicaid patients. All of these prior applicants had licenses issued and became eligible for Medicaid. Such Medicaid reimbursement was not available to the separately licensed psychiatric facilities prior to issuance of a single, or consolidated, license. Aside from the rules under challenge, there has been no change in pertinent state statutes or rules subsequent to the final order in University Hospital Ltd., v. AHCA 16 F.A.L.R. 3312. After invalidation of the Consolidated License Rule, AHCA's interpretation is that issuance of a single, or consolidated, license for a general acute care hospital and a psychiatric hospital does not result in Medicaid eligibility. Petitioners did not participate in any of the rule workshops conducted on June 22, July 7, and November 2, 1994 or the public hearing held on February 13, 1995. Petitioners did not send in any written comments, questions, or materials, or request an economic impact statement. A holding of the Final Order in University Hospital, was that a Certificate of Need was not required prior to the issuance of a single consol- idated license for multiple premises. University Hospital, 16 F.A.L.R. at 3321. The Agency has no discretion regarding rule- making pursuant to Section 120.535. (Joint Prehearing Stipulation, filed 3/14/95) Approximately eighteen months ago and well before the University Hospital decision, the Agency for Health Care Administration (AHCA) commenced a major rewrite of the hospital license rules that had been promulgated by its predecessor agency, the Department of Health and Rehabilitative Services (HRS). After a series of public workshops, the revisions were noticed in the January 20, 1995, Florida Administrative Weekly. These substantial revisions of rule chapter 59A-3 comprise about fifty pages of the Florida Administrative Weekly. The challenged portions comprise only several paragraphs of the revisions. The challenged portions of the proposed rules are: 59A-3.203 Licensure Procedure. (2) All persons requesting licensure for the operation of a hospital under the provisions of Chapter 395, F.S., shall make application to the Agency, on forms provided, AHCA Form 3130- 8003-January 1995, and AHCA Form 3130-8001-January 1995, and shall receive a regular or provisional license prior to the acceptance of patients for care or treatment. * * * (e) An application for the addition of beds or off-site outpatient facilities to a hospital's license must include: A valid certificate of need or letter of exemption as required by ss. 488.041 - 408.045, F.S., and Approval from the Agency's Office of Plans and Construction. * * * (i) A single license will be issued to a licensee for facilities located on separate premises, upon request of the applicant. The license will specifically state the location of the facilities, their services, and the licensed beds available on each separate premises. Such a license shall also specifically identify the general or specialty classification of hospitals located on separate premises. (6) Each license shall specifically state the name of the licensed operator of the hospital, the class of hospital, and the name and location of the hospital. Any beds in the hospital which are regulated under the certificate of need program, as specified in Chapter 59C-1, F.A.C., shall be listed, including the number of licensed beds by type. The license for hospitals having facilities on more than one premises shall specifically state the location of each facility, their general or specialty classification, their services, and the licensed beds available on each separate premises. * * * Specific Authority 395.003, 395.004, 455.239, F.S. Law Implemented, 395.001, 395.003, 395.004, 395.1005, 408.035, 408.036, 455.239, F.S. History New. (emphasis added) Prior to the decision in the University Hospital case in July 1994, the proposed revisions did not include the requirement that the license for facilities on separate premises identify separately the general or specialty classification of each. That provision was added by the agency because it concluded that when it could no longer require a CON for "consolidated" licenses, then general acute care beds and free-standing psychiatric beds could not be "consolidated" on a single license. It is uncontroverted that the substantial effect of the requirement that each facility retain its prior classification is that a facility classified as a class III (specialty) facility is not eligible for Medicaid reimbursement. The agency agrees that proposed rule is based on, and is compelled by section 395.003(2)(d), F.S., which provides as follows: (d) The Agency shall, at the request of a licensee, issue a single license to a licensee for facilities located on separate premises. Such a license shall specifically state the location of the facilities, the services, and the licensed beds available on each separate premises. If a licensee requests a single license, the licensee shall designate which facility or office is responsible for receipt of information, payment of fees, service of process, and all other activities necessary for the Agency to carry out the provision of this part. (Emphasis supplied). It is immediately obvious from a comparison of the text of the proposed rule and the text of the law implemented that the law does not require that the license state the general or specialty classification for the separate facilities. This distinction was not lost on the agency since it included in its legislative package for the 1995 legislative session a proposed amendment to section 395.003(2)(d), F.S. that would cure the inconsistency by adding the proposed rule language to the statute. (Petitioner's exhibit number 16, p. 25) There is a statute which restricts Medicaid reimbursement for treatment in free-standing psychiatric hospitals. The agency argues that the proposed rules give effect to that statute, section 409.905(5), F.S., which provides, in pertinent part: . . . A licensed hospital maintained primarily for the care and treatment of patients having mental disorders or mental diseases is not eligible to participate in the hospital inpatient portion of the Medicaid program except as provided in federal law. . . . (emphasis supplied). Reliance on Section 409.905(5) is misplaced, however, because it is nowhere cited in the proposed rules as authority or law implemented. Moreover, evidence presented at hearing describes federal policy that when two hospitals are consolidated under one license and have a total capacity that is less than 50 percent psychiatric in nature, the premises are both eligible for Medicaid reimbursement, even though one remains primarily for the treatment of mental disorders. (Petitioners' exhibits number 20-22) The federal policy on Medicaid reimbursement was in effect in 1993, prior to the University Hospital decision and prior to the current version of the proposed rules. Section 409.905(5), F.S. has been in effect since 1991, before the six consolidated licenses referenced in paragraph 1, above, were issued. Section 395.003(2)(d), F.S. has been in effect in its current form at all times material. Nothing in the law has changed to support the agency's contention that, after the University Hospital decision, it can no longer issue a single license with a single license classification for separate premises. No evidence nor specific argument was presented with regard to the alleged invalidity of proposed rule 59A-3.203(2)(e), which on its face relates to the addition of beds or an outpatient facility to a hospital's license. Issues related to that portion of the proposed rule are not the issues invoked in this proceeding with regard to Petitioner's facilities. (See Petitioners' exhibit 26, p. 71, deposition of Tanya Williams)
