Conclusions THIS CAUSE comes before the AGENCY FOR HEALTH CARE ADMINISTRATION (“the Agency") on Certificate of Need ("CON") Application No. 10083, which was filed by COMPASSIONATE CARE HOSPICE OF FLORIDA, INC. (“CCH”) and CON Application No.
Conclusions THIS CAUSE came before the State of Florida, Agency for Health Care Administration (“the Agency") for the issuance of a final order. 1. On March 10, 2014, Greystone Hospice of District 6B, LLC, (“Greystone”) requested a formal administrative hearing to contest the preliminary denial of Certificate of Need (“CON”) Application No. 10206, which it submitted to establish a hospice program in the Service District 6B, and to contest the preliminary approval of VITAS Healthcare Corporation of Florida (“VITAS”) CON Application No. 10207, to establish a hospice program in Hospice Service Area 6B. Filed May 15, 2014 4:04 PM Division of Administrative Hearings 2. The request was referred to the Division of Administrative Hearings (“DOAH”) where it was assigned Case No. 14-1369CON. 3. On March 13, 2014, VITAS requested a formal administrative hearing to challenge the co-batched CON Application filed by Greystone to establish a hospice program in Service District 6B, (CON No. 10206), and to support the preliminary approval of its application (CON No. 10207). 4. The request was referred to DOAH where it was assigned Case No. 14-1366CON. 5. On April 4, 2014, DOAH issued an Order of Consolidation. 6. On April 18, 2014, Greystone filed a Notice of Voluntary Dismissal. It is therefore ORDERED: 7. The denial of Greystone’s CON Application No. 10206 is upheld. 8. The approval of VITAS’ CON Application No. 10207 is upheld subject to the conditions noted in the State Agency Action Report. ORDERED in Tallahassee, Florida, on this /4 day of hay 2014. Elizabeth Dudek, Secretary Agency for Hgalth Care Administration
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. Page 2 of 3 CERTIFICATE OF SERVICE I CERTIFY that a true and correct copy of this Final Order was served on the below- named persons by the method designated on this [Soma Ate , 2014. Agency for Health Care Administration 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308 (850) 412-3630 R. Bruce McKibben Administrative Law Judge Division of Administrative Hearings (Electronic Mail) Lorraine M. Novak, Esquire Office of the General Counsel Agency for Health Care Administration (Electronic Mail) Stephen A. Ecenia, Esquire Rutledge, Ecenia and Purnell, P.A. Post Office Box 551 Tallahassee, Florida 32302-0551 Steve@reuphlaw.com (Electronic Mail) R. Terry Rigsby, Esquire Pennington, P.A. Post Office Drawer 10095 Tallahassee, Florida 32302 Trigsby@penningtonlaw.com (Electronic Mail) | James McLemore, Supervisor Certificate of Need Unit Agency for Health Care Administration (Electronic Mail) Page 3 of 3
The Issue The issue for determination is whether either applicant's request for a CON for IRTP beds should be granted. LORTC's allegation that La Amistad plagiarized portions of another PIA facility's CON application was deemed at hearing to be irrelevant. Likewise, it was determined at hearing and in a post- hearing order entered on November 1, 1988, that the sale of La Amistad to UHS of Maitland, Inc. had no material bearing on the La Amistad application under review here. In the parties' prehearing statement filed on September 26, 1988, the following were agreed: Consideration of the applications at issue is governed by the statutory criteria contained in section 381.705, Florida Statutes and Rule 10- 5.011(1)(b)(1)-(4), Florida Administrative Code. These criteria are either satisfied or are inapplicable: Section 381.705(1)(g), (h), (only as to the following clauses: "the effects the project will have on clinical needs of health professional training programs in the service district; the extent to which the services will be accessible to schools for health professions in the service district for training purposes if such services are available in a limited number of facilities"), (j), Florida Statutes (1987) As to LORTC, the parties stipulated that the criteria in Section 381.705(1)(h) as to availability of funds for capital and operating expenditures is satisfied. This is not a stipulation that the application satisfies the financial feasibility criterion contained in Section 381.705(1)(i). Rule 10-5.011(1)(b)(4)(b) , Florida Administrative Code. Each applicant argues that its application, and not that of the other, should be approved. HRS and West Lake both argue that neither application should be approved.
Findings Of Fact La Amistad is a not-for-profit corporation providing a variety of mental health services to children, adolescents and young adults on campuses in Maitland and Winter Park, Florida since 1970. At the time of hearing La Amistad operated 27 licensed IRTP beds at its Maitland campus. At the time of hearing La Amistad had a contract to sell its residential treatment program, including the beds that are the subject of this proceeding, to Universal Health Services, Inc. The contract was entered into after this CON application was filed. LORTC is a wholly owned subsidiary of PIA, Psychiatric Hospitals, Inc. (PIA), which in turn is wholly owned by NME Hospitals, Inc. PIA owns or operates approximately three residential treatment centers (RTCs) and 58 psychiatric hospitals throughout the country, including Laurel Oaks Hospital in Orange County, Florida, an 80-bed licensed hospital providing short term psychiatric and substance abuse services to children and adolescents. HRS is the state agency charged with the responsibility of implementing and enforcing the CON program, pursuant to Section 381.701-381.715, Florida Statutes. The Intervenor, West Lake, is an 80-bed licensed psychiatric hospital in Longwood, Seminole County, Florida. West Lake has allocated 16 beds to its children's program and 24 beds to its adolescent programs. West Lake is licensed for both long and short-term psychiatric beds. THE APPLICATIONS La Amistad's application requests the conversion of 13 existing beds (currently licensed as child caring beds) to licensed IRTP beds, the demolition of several old buildings and the construction of a new building which will contain a total of 16 IRTP beds. The 13 additional beds would bring La Amistad's IRTP total to 40 beds. The total project cost of La Amistad's proposal is $500,000.00 or $38,462.00 per bed. La Amistad's Maitland facility is located in a residential area and is itself designed to be residential in nature, rather than institutional. The patients prepare their own food under the supervision of a dietician and other staff. They also do their own housekeeping. La Amistad is not a "locked unit". A maximum of 16 patients reside in each "house" on the La Amistad campus. The houses are staffed on a 24-hour a day basis. Like other similar facilities, La Amistad utilizes a multi-discipline team approach to treatment. That is, psychiatrists, nurses, social workers and other staff work together. The treatment team meets weekly to discuss the program and treatment of each patient. Family members may visit and stay at the campus on weekends. Families are encouraged to participate in the treatment process. La Amistad has a full-time school on campus with teachers provided by the Orange County School System. The average length of stay for patients is in excess of Il to 12 months. This is consistent with HRS' understanding that 9-14 months is an average length of stay for an intensive residential treatment program. LORTC's application is for CON approval of a 40-bed IRTP located on the grounds of its existing freestanding psychiatric hospital, Laurel Oaks. The facility is currently under construction and will be operated as a residential treatment center if its IRTP CON is denied. LORTC anticipates serving two out of three of the following groups: adolescents who need long-term care, older children (8 years to 13 years) who need long-term care, and chemically dependent adolescents. The projected average length of stay is 120 days, which stay is consistent with that of other PIA residential treatment centers in Florida. The LORTC facility will be "locked". Meals will be prepared at Laurel Oaks Hospital and will be transported in some, as yet undetermined, manner to the separate building. The geographical area in which LORTC will be located is not residential. The capital cost of the 40 bed facility is projected at $3,291,000.00. The funds, provided by the parent company, NME, will be expended, regardless of CON approval. LORTC also uses a multi-discipline team approach to treatment. Each patient's treatment program will consist of psychiatric support services, educational services and family services. Students will attend academic classes four hours a day at the facility. THE APPLICABLE DISTRICT PLAN AND STATE HEALTH PLAN The District Seven Health Plan does not address needs, policies, or priorities for IRTP facilities for children and adolescents. The State Health Plan addresses very generally the need for mental health and substance abuse services. Goal 1 seeks to: "Ensure the availability of mental health and substance abuse services to all Florida residents in the least restrictive setting." Goal 2 seeks to: Promote the development of a continuum of high quality, cost effective private sector mental health and substance abuse treatment and preventive services". Goal 3 seeks to: "Develop a complete range of essential public mental health services in each HRS district." (Laurel Oaks Exhibit #20). The applications neither violate nor materially advance these goals. In both instances the beds will exist for the provision of mental health services, with or without the certificate of need. La Amistad's proposal clearly presents a "less restrictive alternative" to the more institutional psychiatric hospital. Laurel Oaks is also an alternative, although more institutional than homelike in character. NEED, INCLUDING THE AVAILABILITY OF LIKE OR ALTERNATIVE SERVICES AND INCREASED ACCESSIBILITY IRTP beds are a statutorily defined class of specialty hospital beds: Intensive residential treatment programs for children and adolescents means a specialty hospital accredited by the Joint Commission on Accreditation of Hospitals which provides 24-hour care and which has the primary functions of diagnosis and treatment of patients under the age of 18 having psychiatric disorders in order to restore such patients to an optimal level of functioning. Section 395.002(8), Florida Statutes. Because an IRTP is a hospital, a certificate of need is required. This alone distinguishes an IRTP from a residential treatment program (RTP). In spite of its name, HRS considers an IRTP as a service that is less intensive than a long or short term psychiatric hospital. Generally, the RTP and IRTP have a longer average length of stay than a psychiatric hospital and provide a more homelike setting. No HRS rule further defines the IRTP, and as evidenced by the La Amistad and LORTC proposals, the projected average length of stays vary widely (120 days for LORTC, versus 12-14 months for La Amistad). Long term psychiatric hospitals have an average length of stay of over 90 days. West Lake has treated adolescents in its psychiatric beds as long as a year, although this has not occurred recently. HRS has no rule methodology for calculating the need for IRTP's. However, HRS considers there is a need for at least one reasonably-sized IRTP in each HRS service district. In HRS district VII there are currently two IRTPs: Devereaux, a 100-bed facility in Melbourne, Brevard County, Florida, licensed on February 26, 1988; and La Amistad, with 27 IRTP beds in Orange County, licensed in August, 1988. Although HRS clearly does not limit its approval to only one IRTP per district, it has a policy of waiting to see what the need and demand are before it authorizes an additional program with a CON. Its deviation from this policy regarding approval of the La Amistad beds was adequately explained as a settlement based on the acknowledgment of a prior administrative error. Utilization of the Devereaux beds was not a consideration in that unique case. HRS also uses as a reasonable non-rule policy the requirement that existing programs be 80 percent occupied before additional programs are authorized. This is modeled after the promulgated rule in effect for long-term psychiatric beds. At the time the applications were considered, La Amistad was not licensed and Devereaux had a less than 50 percent occupancy. Conflicting evidence was presented with regard to the accessibility of both La Amistad's 27 beds and Devereaux' 100 beds. Devereaux is approximately one to two hours from the three counties identified as LORTC's primary service area: Seminole, Osceola and Orange. LORTC argues that families who need to actively participate in the patients' treatment are discouraged by the travel distance. However, Laurel Oak Hospital currently refers patients to its sister facilities in Manatee and Palm Beach counties, which are more distant than Devereaux. No patient origin studies of Devereaux were done and LORTC's expert in health and planning conceded that it takes a while for people to become aware of a new facility and its services, and a new facility can stimulate patient migration. The credible weight of evidence is that a travel time of two hours or less would not significantly influence decisions to use the facility. La Amistad is noted for its treatment of schizophrenics. It sponsors seminars attracting participants from a wide geographical area. It does not, however, limit its beds to patients with that diagnosis. In the past approximately 48 percent of La Amistad's beds (its entire facility, not just the IRTP beds) have been utilized by schizophrenics. This does not alone evidence non-accessibility of its IRTP beds. The statutory definition of an IRTP, cited in paragraph 17, above, is broad enough to include the type of care provided in long-term psychiatric hospitals, such as West Lake. The programs described in the applications of both LORTC and La Amistad are similar to the programs currently operated at West Lake for children and adolescents. The multi-disciplinary team monitors the patient's progress with a goal toward reintegration into the community. The patients attend school and receive a wide variety of therapies, with varying intensity: individual and group counseling, activity and occupational therapy, family therapy, vocational planning, and the like. When the patient is admitted, an evaluation is done to determine an anticipated length of stay. Some require a shorter stay, with more intensive therapy; others are more appropriately treated for a longer period, with less intensity. West Lake's program is not full. There are myriad alternative programs for the treatment of children and adolescents in the tri-county area. Seagrave House, the Charlie Program and Boystown are residential programs for children and adolescents who may have received treatment in a hospital but who are not ready to return home and could progress further in a residential program. Mainstream, a partial hospitalization program, is also available to this age group. A partial hospitalization program provides structured daytime treatment with the same therapies offered in a hospital or full residential program, but the patients are able to return home at night. Other existing facilities and programs available in the service district include Parkside Lodge, the Care Unit, the Center for Drug-free Living, Glenbeigh Hospital and Rainbow. Laurel Oaks has referred patients to Rainbow, a residential treatment program for youths with substance abuse problems. La Amistad presented anecdotal testimony from its clinical and other staff regarding the numbers of patients they could refer to La Amistad if the application were approved. In no instance did these witnesses eliminate the other available programs as appropriate alternatives. Several other witnesses testified on behalf of LORTC regarding the need for additional long-term treatment programs for children and adolescents. It is clear, however, that these individuals from the Orange County Public Defender's office, the Orange County Public Schools and the Seminole County Mental Health Center were descrying the need for services for economically disadvantaged youths and those without insurance. Neither La Amistad nor LORTC propose to materially serve that population. Medicaid funds are not available to licensed speciality hospitals and both La Amistad and LORTC will serve patients referred and paid for by HRS, with or without an IRTP CON. The projected percentage of non-pay patient days in both applications is negligible. Any consideration of alternatives in this case must consider the alternatives of the applicants themselves. In both cases, the beds will be available with or without the CON, and the treatment programs are substantially the same with or without the CON. Denial of these applications will not decrease the potential supply of beds in District VII. Indeed, LORTC candidly argues that it is asking only that HRS assist in enhancing financing access to its beds, that CON approval and subsequent licensure will provide increased access to patients with insurance which will not reimburse non- hospital based care. LORTC, and to a lesser degree, La Amistad, insist that approval will positively impact access for privately insured patients. The weight of evidence does not support that basic contention in this case. PIA's non-hospital RTCs in Palm Beach and Manatee County claim to have a 60-70 percent commercial insurance pay or mix. LORTC projects only 67 percent commercially insured patients after its first year of operation. This does not represent an increase. According to its financial experts La Amistad is not projecting any increase in insurance reimbursement because of licensure as an IRTC. Two trends in insurance reimbursement practices were described at length in this proceeding. First, companies are willing to negotiate an "out-of- contract" reimbursement when a non-covered facility is able to show that its services are more appropriate and in the long term, more cost effective than the covered services for a particular patient. Second, insurance companies are carefully scrutinizing long term treatment reimbursement and are limiting coverage in expensive residential programs. Neither trend weighs in favor of approval of these applications. AVAILABILITY OF RESOURCES Nursing costs in health care institutions usually comprise more than 50 percent of the operating costs. It is the largest single budget item in a hospital or health care facility. Throughout the country and in District VII, there is a shortage of nurses and trained allied health personnel. Although Laurel Oaks Hospital is staffed, maintaining its staff of registered nurses is a day-to-day problem. West Lake also experiences difficulty in maintaining qualified staff. No doubt LORTC, with aggressive recruitment will initially attract the personnel it needs. Financial incentives will have to be provided and West Lake's problems will be exacerbated. The additional costs will be passed on to the consumer, thus perpetuating the upward inflation spiral of health care costs. FINANCIAL FEASIBILITY AND EFFECTS ON COMPETITION La Amistad states it intends to finance $450,000.00 of its $500,000.00 total project cost through bank loans, fund raising efforts and personal commitments from board members. Its pro forma, as corrected and updated at the hearing is reasonable, based upon the facility's actual experience in staffing and filling beds. However, the ability of the applicant itself to complete construction for the replacement beds is questionable in light of an admission at hearing by Walter Muller, M.D., the founder and Medical Director of La Amistad. Dr. Muller conceded that one of the reasons for the sale to Universal Health is to obtain adequate funds for the new building. (transcript pages 271-272). LORTC contends that no capital expenditure is relevant here as the facility is being constructed as a non-hospital RTC. For the transfer to IRTC status no additional expenses will be incurred. Regardless of the validity of that contention, the parties have stipulated that funds are available for capital and operating expenditures. LORTC's pro forma is reasonable based on the extensive experience of its parent company with similar facilities, the RTCs in Manatee County and Palm Beach County, and Laurel Oaks Hospital. That experience has not been tested in an area, where, as here, there are existing unfilled IRTPs. As provided in the discussion of need, above, LORTC cannot dismiss West Lake, Devereaux, La Amistad and other facilities offering similar programs. LORTC did not establish conclusively that it could maintain its projected utilization in the face of the potential draw of those other facilities. PIA has been highly successful in marketing its services in the past. If its success prevails and LORTC proves financially feasible, there is substantial evidence that it will be at the expense of West Lake, Devereaux, and the others. There is no evidence that LORTC or La Amistad evaluated the impact of their proposals on other service providers in the area. OTHER REVIEW CRITERIA, INCLUDING QUALIFY OF CARE Both applicants enjoy a reputation for providing good quality mental health services and there is no substantial evidence that this quality will deteriorate if the applications are approved. No competent evidence was presented regarding the failure of either applicant to meet the remaining relevant criteria.
Findings Of Fact The following is a statement of the facts taken verbatim from the Memorandum of Law in Opposition To Motion For Summary Recommended Order: The following facts are either evident from documents before the hearing officer, the authenticity of which are not disputed, or are contained in the Affidavit of Mr. Fitzgerald. On February 11, 1994, a board of directors meeting was held. The board that met is the governing body of Catholic Health Services, Inc. and also the governing body of Catholic Hospice of Broward, Inc. Fitzgerald Affidavit. On the day the meeting was held, Catholic Health Services, Inc. existed as a corporation. Catholic Hospice of Broward, Inc., however, did not exist on February 11, 1994; rather the Articles of Incorporation had been prepared and were on the desk of Archbishop McCarthy awaiting his signature. Among the items for the board to decide at that meeting was whether Catholic Hospice of Broward, Inc. should be formed as a Florida corporation to apply for a certificate of need for a new hospice program in Broward County. If the board decided against filing a certificate of need application, it would not be necessary to form this new corporation. The minutes of the board meeting reflect that: Included in the agenda package is a secretary's Certificate indicating that the Board authorizes the filing of the application for CON and authorizes the expenditures necessary in the pursuit and completion of this project and operation of Catholic Hospice of Broward, Inc. Also included is a draft of the Letter of Intent which would need to be filed no later than February 22, 1994, subject to the Archbishop's approval of the Articles of Incorporation. * * * A motion was then made by Fr. Whittaker to approve, pending the Archbishop's signature on the Articles of Incorporation, the filing of a Certificate of Need to establish a hospice in Broward county; seconded by Ralph Lawson, all were in favor. Msgr. Walsh abstained from the vote. Although not expressly reflected in the minutes, this board action was not to be effective until the applicant corporation, Catholic Hospice of Broward, Inc. existed. Fitzgerald Affidavit. The Articles of Incorporation were to be filed immediately upon being signed by the Archbishop. 1/ The February 11, 1994 board minutes were not drafted, or crafted, for purposes of scrutiny under a hot light by AHCA, or perhaps other interest, to support an attempt to defeat the company's certificate of need. Nor were they drafted to address every conceivable argument that could be advanced concerning letter of intent or resolution requirements of the statute or rules. Fitzgerald Affidavit. Following the February 11, 1994 board meeting, Archbishop McCarthy signed the Articles of Incorporation on February 16, 1994.2 The articles were filed at the Secretary of State on February 18, 1994.3 That same day, Brother Paul Johnson, Secretary of the new corporation, signed the Resolution "enacted on February 18, 1994" consistent with the board's direction that the Resolution not be effective until the corporation was formed.4 Subsequently, the letter of intent and Resolution were timely filed on or before February 22, 1994. . . . Catholic Hospice asserts that a second, redundant board meeting, following the filing of the articles of incorporation would have been unnecessary and superfluous. No subsequent action has been taken to ratify the resolution of February 11, 1994. AHCA argues that the resolution is void because the directors had no power to act on February 11, 1994, on behalf of a corporation which did not exist until the articles of incorporation were filed on February 18, 1994. Subsequently, in March 1994, Catholic Hospice filed its application for certificate of need number 7690, which was the subject of its February 22nd letter of intent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the certificate of need application, number 7690, filed by Catholic Hospice, Inc., be denied. DONE AND ENTERED this 2nd day of June, 1995, in Tallahassee, Leon County, Florida. ELEANOR M. HUNTER 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 2nd day of June, 1995. COPIES FURNISHED: Richard Patterson, Esquire Senior Attorney Agency for Health Care Administration 325 John Knox Road, Suite 301 Tallahassee, Florida 32303-4131 Paul H. Amundsen, Esquire AMUNDSEN & MOORE 502 East Park Avenue Tallahassee, Florida 32301 R. S. Power, Agency Clerk Agency for Health Care Administration Atrium Building, Suite 301 325 John Knox Road Tallahassee, Florida 32303 Jerome W. Hoffman General Counsel Agency For Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303
Conclusions THIS CAUSE comes before the State of Florida, Agency for Health Care Administration, (the "Agency") regarding certificate of need ("CON") application No. 10164 filed by Lakeland Regional Medical Center, Inc. (““LRMC”). 1. LRMC filed this CON application which sought the establishment of a 32-bed comprehensive medical rehabilitation unit within its hospital located in Polk County, Florida, Service District 6. The Agency approved LRMC’s CON application 10164. 2. At the same time, the Agency denied: (a) CON application 10162 filed by HealthSouth Rehabilitation Hospital of Polk County Filed October 21, 2013 3:41 PM Division of Administrative Hearings (“HealthSouth”), which sought the establishment of a 50-bed comprehensive medical rehabilitation unit within its hospital located in Polk County, Florida, Service District 6. (b) CON application 10163 filed by Haines City, HMA, LLC, d/b/a Heart of Florida Regional Medical Center (“Heart of Florida”), which sought the establishment of a 14-bed comprehensive medical rehabilitation unit within its hospital located in Polk County, Florida, Service District 6. (c) CON application 10165 filed by Sebring Hospital Management Associates, LLC, d/b/a Highlands Regional Medical Center (“Highlands”), which sought the establishment of a 7-bed comprehensive medical rehabilitation unit within its hospital located in Highlands County, Florida, Service District 6. 3. HealthSouth, Heart of Florida and Highlands each filed a petition for formal hearing challenging the Agency’s approval of LRMC’s CON application and the denial of their respective CON applications. LRMC filed a petition for formal hearing supporting the approval of its CON application as well as the denial of CON applications filed by HealthSouth, Heart of Florida and Highlands. 4. HealthSouth has since voluntarily dismissed its petition for formal hearing as to both the denial of its CON application and the approval of LRMC’s CON application. 5. Heart of Florida has since filed a partial notice of voluntary dismissal of its petition for formal hearing solely as to the approval of LRMC’s CON application. The challenge of the denial of its CON application remains pending before the Division of Administrative Hearings. 6. Highlands has since filed a partial notice of voluntary dismissal of its petition for formal hearing solely as to the approval of LRMC’s CON application. The challenge of the denial of its CON application remains pending before the Division of Administrative Hearings. 7. Based upon these voluntary dismissals, the Division of Administrative Hearings entered an Order Closing File and Relinquishing Jurisdiction in the above styled matter. IT IS THEREFORE ORDERED: 8. The denial of HealthSouth’s CON application 10162 is UPHELD. 9. The approval of LRMC’s CON application 10164 is UPHELD. ORDERED in Tallahassee, Florida on this_Zf day ot Crepe. .2013. Elizabeth\Qudek, Secretary Agency for'Health Care Administration
Other Judicial Opinions A party who is adversely affected by this final order is entitled to judicial review, which shall be instituted by filing the original notice of appeal with the agency clerk of AHCA, and a copy along with the filing fee 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 proceedings shall be conducted in accordance with the Florida appellate rules. The notice of appeal must be filed within 30 days of the rendition of the order to be reviewed. CERTIFICATE OF SERVICE 1 HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been furnished by U.S. Mail or electronic mail to the persons named below on this /& day of CA Ofer 13. Agency for Health Care Administration 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308 (850) 412-3630 Janice Mills James McLemore, Supervisor Facilities Intake Unit Certificate of Need Unit Agency for Health Care Administration Agency for Health Care Administration (Electronic Mail) (Electronic Mail) R. Bruce McKibben Administrative Law Judge Division of Administrative Hearings (Electronic Mail) Lorraine M. Novak, Esquire Assistant General Counsel Agency for Health Care Administration (Electronic Mail) R. Terry Rigsby, Esquire Pennington, Moore, Wilkinson, Bell & Dunbar, P.A. 215 South Monroe Street, 2" Floor Tallahassee, Florida 32301 Jonathan L. Rue, Esquire Parker, Hudson, Rainer & Dobbs, LLP 285 Peachtree Center Avenue 1500 Marquis Two Tower Atlanta, GA 30303 Counsel for HealthSouth Co-Counsel for LRMC (U.S. Mail) (U.S. Mail) Geoffrey D. Smith, Esquire John D. Hoppe, Esquire Smith & Associates Peterson & Myers, P.A. 2834 Remington Green Circle, Suite 201 Tallahassee, FL 32308 Counsel for Heart of Florida and Highlands (U.S. Mail) 225 East Lemon Street, Suite 300 Lakeland, FL 33802-4628 + Co-Counsel for LRMC (U.S. Mail)
The Issue The issues are whether Respondent is guilty of various deficiencies found during surveys of its adult living facility and, if so, the amount of the administrative fines.
Findings Of Fact Pursuant to a license issued by Petitioner, Respondent owns and operates New Horizon, an assisted living facility in Punta Gorda. The license is a standard license. Violeta Sebastian is the owner and president of Respondent and the administrator of the facility. On July 8, 1998, Petitioner conducted a survey of New Horizon. Petitioner's investigator found several residents sitting in the day room when he arrived at the facility between 9:00 a.m. and 9:30 a.m. Resident Number 3, who is very elderly, remained seated in an over-stuffed chair all morning. When staff helped her to the dining room at around 11:30 a.m., the investigator asked to see her buttocks area and found a Stage 2 pressure sore on the coccyx area. Resident Number 3, who was wearing adult briefs, had also urinated on herself at some earlier point in time. Resident Number 3 required the assistance of two staffpersons to get her to stand; she was unable to assist in this process. She also required the assistance of both staffpersons to walk, and she required complete assistance to change her briefs. The records concerning Resident Number 3 revealed nothing about the existence or treatment of a pressure sore or that staff had notified the resident's physician. An aide knew of the pressure sore for three days, but had not informed the administrator nor commenced treatment. The records also revealed that she was admitted to New Horizon on August 28, 1997, and her health assessment was conducted on September 29, 1997, which was 32 days after admission. A Stage 1 pressure sore is a reddened area. A Stage 2 pressure sore is a reddened area with a blister. A Stage 3 pressure sore occurs when the affected area is open to the muscle. A Stage 4 pressure sore is when the affected area is open to the muscle, bone, and tendon. Stage 2 pressure sores are susceptible to infection and may cause a loss of fluids, including protein, around the wound site. The pressure sore on this female resident was about two centimeters wide. As a result of these findings concerning Resident Number 3, Petitioner cited Respondent for Tags A 006, A 401, A 407, A 409, and A 700. Another investigator asked for the most current Radon test. The last Radon test, which the facility passed, was November 16, 1992, which meant that the facility had not been tested in almost five years and eight months. As a result of these findings, Petitioner cited Respondent for Tag A 202. The investigator checked the training records for two of four staffpersons and determined that two employees had not received the two hours' required training in resident behavior and handling abuse, neglect, and exploitation. The administrator thought that they had received the required training, but was unable to produce documentation of training. As a result of these findings, Petitioner cited Respondent for Tag A 504. The investigator checked the training records for four staffpersons and determined that they had not received the required training in assisting residents in the activities of daily living. The administrator said that this was an oversight and would be corrected. As a result of these findings, Petitioner cited Respondent for Tag A 505. The investigator could not determine who was in charge of medications. However, the administrator and one part-time employee were in charge of medications. As a result of these findings, Petitioner cited Respondent for Tag A 602. The investigator found a bottle of milk of magnesia in an unlocked refrigerator and a bag of medications in an unlocked kitchen drawer. As a result of these findings, Petitioner cited Respondent for Tag A 607. The investigator testified as to restraints of a resident found by another investigator in a 1996 survey and found by her in a 1998 complaint investigation. However, her testimony concerning the incident of which she had personal knowledge was vague and provides an insufficient basis on which to fine Respondent. As a result of these findings, Petitioner cited Respondent for Tag A 709. The investigator examined a ledger maintained by Respondent for one resident who was receiving certain federal benefits in the form of a monthly $35 check. Respondent's records do not document that it supplies the resident quarterly with a copy of this accounting, and staff and the administrator admitted to not supplying quarterly statements to the resident. As a result of these findings, Petitioner cited Respondent for Tag A 102. Petitioner did not produce admissible evidence to show that any violations were repeat violations.
Recommendation It is RECOMMENDED that the Agency for Health Care Administration enter a final order imposing an administrative fine against New Horizon's Adult Living, Inc., in the amount of $3000. DONE AND ENTERED this 6th day of April, 1999, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of April, 1999. COPIES FURNISHED: Ruben J. King-Shaw, Jr., Director Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Paul J. Martin, General Counsel Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Sam Power, Agency Clerk Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Karel Baarslag, Senior Attorney Agency for Health Care Administration State Regional Service Center 2295 Victoria Avenue Fort Myers, Florida 33901 Violeta D. Sebastian Qualified Representative New Horizon's Adult Living Facility 1391 Capricorn Boulevard Punta Gorda, Florida 33983
