Conclusions BRUCE ELLIOT ESQUINALDO, JR., ("Respondent"), and the DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION ("Department"), stipulate and agree to the following Stipulation and to the entry of a Final Order of the Florida Construction Industry Licensing Board ("Board"), incorporating this Stipulation and the agreement in this matter. STIPULATED FACTS 1. At all times material hereto, Respondent was a Certified Pool Contractor in the State of Florida, having been issued license number CP C050527. 2. Respondent was charged by Administrative Complaints filed by the Department and properly served upon Respondent with 21 violations of Chapters 455 and 489, Florida Statutes, and the rules enacted pursuant thereto. True and correct copies of the Administrative Complaints are attached hereto and incorporated by reference as composite Exhibit "A." 3. Respondent neither admits nor denies the allegations of fact contained in the Administrative Complaints attached hereto as composite Exhibit "A." STIPULATED CONCLUSIONS OF LAW 1. Respondent, in his capacity as a licensed Contractor, admits that in such capacity he is subject to the provisions of Chapters 455 and 489, Florida Statutes, and the jurisdiction of the Department and the Board. 2. Respondent admits that the facts set forth in the Administrative Complaints, if proven, constitute violations of Chapter 489, Florida Statutes, as alleged in the Administrative Complaints attached hereto as composite Exhibit "A." STIPULATED DISPOSITION 1. In order to facilitate this settlement, with regard to DBPR case number 97-14575/DOAH case number 9$8-3713/Jovellar, and DBPR case number 98-02110/DOAH case number 99-2655/Quadri, the Department agrees to withdraw its recommendation that a penalty be assessed against the Respondent consistent with the Administrative Law Judge’s Recommended Order, and the Respondent agrees to withdraw his Exceptions to the Recommended Order. 22 2. The following charges contained in the Administrative Complaints, attached hereto as composite Exhibit “A” shall be dismissed: DBPR case number 98-21934/Lopez Count III, and DBPR case number 99-05645/Rodriguez Count I and Count IT. 3. Respondent shall abide by Chapters 455 and 489 Florida Statutes, and the rules promulgated pursuant thereto. 4, Respondent shall pay Fifteen Thousand, Five dollars and Twenty Four cents ($15,005.24) to the Construction Industry Licensing Board. Of said payment, Six Thousand, Four Hundred Fifty dollars ($6,450.00) shall be allocated to the payment of a fine and Eight Thousand, Five Hundred Fifty Five dollars and Twenty Four cents ($8,555.24) shall be allocated to the payment of the Department's costs. Said payment shall be in the form of a cashier's or certified check and shall be made payable to the Florida Construction Industry Licensing Board. Said payment shall be returned to the Department along with this Stipulation for presentation to the Board. The monies paid pending approval of this Stipulation by the Board shall be refunded to Respondent 4£ the Board rejects this Stipulation. 5. Respondent shall submit to the Executive Director of the Florida Construction Industry Licensing Board, proof of having satisfied the Final Judgments obtained by (1) Robert R. Bollard, in the amount of One Thousand, One Hundred Five dollars ($1,105.00), in DBPR case number 99-09009, and (2) Dennis Ryan in the amount of 23 Four Hundred Four dollars and Fifty Two cents ($404.52), in DBPR case number 99-00117. Respondent shall also submit proof to the Executive Director of the Florida Construction Industry Licensing Board, of having also made restitution to Karen and Joseph De Leonardo in the amount of One Hundred Sixty Nine dollars and Sixty cents ($169.60), in DBPR case number 99-08509. Such proof shall be provided within ninety (90) days of the filing of the Final Order in this matter. To assure payment of the Final Judgments and restitution, it is further ordered that all of Respondent's licensure to practice contracting shall be suspended with the imposition of the suspension being stayed for ninety (90) days following the filing of the Final Order in this matter. If the ordered payments and proof of having made said payments are in compliance with the terms set forth above, the suspension imposed shall not take effect. However, should payment, or proof of payment not be timely made, the stay shall be lifted and Respondent's license shall be immediately suspended. Upon payment of the Final Judgments and restitution in full, and proper submittal of proof of making such payments, the suspension imposed shall be lifted. 6. Respondent shall be on probation for three (3) years from the date of filing of the Board's Final Order in this matter. Respondent shall appear before the Probation Committee of the Board at such times as directed by the Executive Director, or as specified in the Final Order entered in this action. In connection with each probation appearance, Respondent shall answer questions under oath 4 24 and shall provide copies of all construction related monthly bank statements, financial statements reflecting a minimum net worth requirement as reflected in Rule 61 G4-15.005(3) (a), F.A.C., permit applications, contracts, and operations questionnaires since the entry of the Final Order in this matter if it is the first probation appearance or since the last probation appearance if it is other than the first probation appearance. In addition, the Respondent shall provide such other information and documentation as is requested by the Department, the Board or the Probation Committee. The Respondent shall forward said documentation to the Board in advance of the probation appearance. As a special condition of probation, the Respondent will, during the probation period, take corrective action and = obtain acknowledgements of satisfaction and/or proof from the applicable building departments, that the following projects and/or permits have been satisfactorily completed: DBPR case number 99-08509/DeLeonardo, DBPR case number 99~-08265/Pacheco, DBPR case number 99-10077/Toro, DBPR case number 99-00117/Ryan, and DBPR case number 99- 05645/Rodriguez. However, the Respondent shall not be required to meet any additional requirements for pool barriers imposed effective October 1, 2000, by Chapter 2000-143, Laws of Florida. Respondent shall initiate such corrective action prior to his first probation appearance. Further, the Respondent shall provide proof to the Board or the Probation Committee that documents the status of the corrective action taken in each of the projects identified above. 5 25 The Respondent shall forward such proof to the Board in advance of the probation appearance and such proof shall be in a form acceptable to the Probation Committee. The burden shall be solely upon Respondent to remember the requirement for said appearance, and to take the necessary steps in advance of said appearance to contact the Board office and ascertain the specific time, date, and place of said appearance. The Respondent shall not rely on getting notice of said appearance from the Board or Department. Should Respondent violate any condition of this probation, it shall be considered a violation of Section 489.129(i), Florida Statutes, and shall result in further disciplinary action by the Board. Should Respondent's license to practice contracting be suspended or otherwise placed on inactive status, or if Respondent leaves the practice of contracting for thirty (30) days or more, the probation period shall be tolled, and shall resume running at the time Respondent reactivates the license and/or returns to the active practice of contracting, and Respondent shall serve the time remaining in the term of probation. To ensure successful completion of probation, the Respondent's licensure to practice contracting shall be suspended for the three (3) year period of probation, with the suspension stayed for the three (3) year period of probation. The time of the suspension and the stay shall run concurrently with the period of probation, except as provided otherwise in the Final Order. If the Respondent 6 26 successfully completes probation, the suspension shall terminate. If the Respondent fails to comply with the requirements set forth in the Final Order imposed in this case, or fails to make satisfactory appearances as determined by the Board, the stay shall be lifted. Once the stay is lifted, the Respondent shall. remain in suspended status unless and until a further stay is granted by the Board. 7. It is expressly understood that this Stipulation is subject to the approval of the Board and the Department. In this regard, the foregoing paragraphs (and only the foregoing paragraphs of the Stipulated Facts, Stipulated Conclusions of Law and Stipulated Disposition) shall have no force and effect unless a Final Order incorporating the terms of this Stipulation, is entered by the Board. 8. Should this Stipulation be rejected, no statement made in furtherance of this Stipulation by the Respondent may be used as direct evidence against the Respondent in any proceeding. 9. Respondent and the Department fully understand that this Stipulation and subsequent Final Order incorporating same will in no way preclude additional proceedings by the Board and/or the Department against the Respondent for acts or omissions not specifically set forth in the Administrative Complaints attached as composite Exhibit "A" herein. 10. Upon the Board's adoption of this Stipulation, Respondent expressly waives all further procedural steps, and expressly waives all rights to seek judicial review of or to otherwise challenge or 7 27 contest the validity of the Stipulation of Facts, Conclusions of Law, the Stipulated Disposition, and the Final Order of the Board incorporating said Stipulation, or any part thereoz. 11. Upon the Board's adoption of this Stipulation, Respondent waives the right to seek any attorney's fees or costs from the Department in connection with this disciplinary proceeding, and the Department waives the right to seek any additional fees or costs from the Respondent in connection with this disciplinary proceeding. 12. Upon the Board's adoption of this Stipulation, Respondent understands and agrees that this Stipulation constitutes disciplinary action within the meaning of Section 455.227(1)(f) and 489.129, Florida Statutes. 13. This Stipulation is executed by the Respondent for the purpose of avoiding further administrative action with respect to this cause. In this regard, Respondent authorizes the Board to review and examine all investigative file materials concerning Respondent prior to or in conjunction with consideration of the Stipulation. Should this Stipulation not be accepted by the Board, it is agreed that presentation to and consideration of this Stipulation and other documents and matters by the Board shall not unfairly or illegally prejudice the Board or any of its members from further participation, consideration or resolution of these proceedings. Further, if necessary, and in order to facilitate 28 consideration of this Stipulation, the Respondent waives the requirement that the cases referenced above be heard at Final Action by a quorum of the Florida Construction Industry Licensing Board. ASKaay of WA 2000. SIGNED this QUINALDC, JR. STATE OF FLORIDA COUNTY OF Leéors The Forsgoing instrument was acknowledged before me this ag day of te "4 2000, by BRUCE ELLIOT ESQUINALDO, JR. who is ho did take an oath. eae. 67-4Skh- O ; . hit, Shiney B Walker My Commission Expires: * Bak My Commission CC873206 “yma” Expires September 22, 2003 , 2000. DSP/ms ESQUINALDO 9/20/00 s-const.stp 29
Conclusions Having reviewed the Amended Notice of Intent to Deny and Settlement Agreement, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1, The Agency has jurisdiction over the above-named Petitioner pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Amended Notice of Intent to Deny and Election of Rights form to the Petitioner. (Ex. 1) The Election of Rights form advised of the right to an administrative hearing. 3. The parties have since entered into the attached Settlement Agreement. (Ex. 2) Based upon the foregoing, it is ORDERED: 4. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 5. The Petitioner’s license renewal application for assisted living facility licensure is withdrawn. 6. The Agency’s Amended Notice of Intent to Deny is moot and thus is withdrawn. 7. The Petitioner is responsible for any refunds that may be due to any clients. 8. The Petitioner shall remain responsible for retaining and appropriately distributing client records as prescribed by Florida law. The Petitioner is advised of Section 408.810, Florida Statutes. The Petitioner should also consult the applicable authorizing statutes and administrative code provisions as well as any other statute that may apply to health care practitioners regarding client records. Filed December 6, 2012 3:03 PM Division of Administrative Hearings 9. The Petitioner is given notice of Florida law regarding unlicensed activity. The Petitioner is advised of Section 408.804 and Section 408.812, Florida Statutes. The Petitioner should also consult the applicable authorizing statutes and administrative code provisions. The Petitioner 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. ORDERED at Tallahassee, Florida, on this @ day of ; 2012. Elizabeth Didek, 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. CERTIFICATE OF SERVICE I CERTIFY that a true and correct_cgpy of this Final Order was served on the below-named persons by the method designated on this £ tay of , 2012. Richard Shoop, Agency Cte Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Shaddrick Haston, Unit Manager Facilities Intake Unit Assisted Living Unit (Electronic Mail) Agency for Health Care Administration (Electronic Mail) Finance & Accounting Revenue Management Unit (Electronic Mail) Katrina Derico-Harris Medicaid Accounts Receivable Agency for Health Care Administration (Electronic Mail) Patricia Caufman, Field Office Manager Areas 5 and 6 Agency for Health Care Administration (Electronic Mail) David Selby, Esq. Assistant General Counsel Office of the General Counsel Agency for Health Care Administration (Electronic Mail) Shawn McCauley Medicaid Contract Management Agency for Health Care Administration (Electronic Mail) R. Bruce McKibben Administrative Law Judge Division of Administrative Hearings (Electronic Mail) Amelia Cowles, Co-owner 80" Place 5551 80" Place Pinellas Park, FL 33781 (U.S. Mail) Christina Mesa, Esq. Mesa Law, PA PO Box 10207 Tampa, FL 33679 (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 (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. ae re RICK SCOTT RORDR ASENG! FORFEAIT CARE ADMINS HATS ELIZABETH DUDEK GOVERNOR Better Health Care for all Floridians INTERIM SECRETARY August 29, 2012 Administrator Gene Cowles so" Place P.O, Box 1778 Safety Harbor, FL 34689 RE: DOAH Case # 121-2641 AHCA Case # 2012007214 AMENDED “NOTICE OF INTENT TO DENY” Dear Administrator: It is the decision of the Agency for Health Care Administration (the “Agency”) that your renewal application for an Assisted Living Facility and initial Limited Mental Health specialty license to operate 80° Place be DENIED. This denial is based on the following: Your Standard license was due to expire on 20 May, 2012, and you had applied to renew it plus add a Limited Mental Health specialty license. On 14 February, 2012, the Agency, as required by law, attempted to conduct a biennial survey pursuant to re- licensure. No administrators, staff nor residents were present on that date when the surveyor arrived. , The Agency is required by law to inspect ALFs biennially for licensure renewal. Furthermore, these inspections are required by law to be unannounced. Finally, the Agency is required by law if unable to conduct the inspection to deny the renewal application. : Therefore, the following listed laws, but not limited thereto, require denial of your renewal application: F.S. 408, Part II, to include 408.806 (7) (a), (c)&(d) (re license application process) 408.811 (1) (a)&(b) (re right of inspection) 408.815 (1) (b)& (c) (re denial) * — Headquarters Area Office 2727 Mahan Drive 525 Mirror Lake Or. No., Tallahassee, FL 32308 Suite 330D AHCA.MyFlorida.com St. Petersburg, FL 33701 EXHIBIT 1 F.S. 429, to include 429.14 (1) (h)&(k) (re administrative penalties) 429.17(2) ;429.28(3) (a) (re renewal) , 429.28(3) (a)&(b) (re residents’ rights) 429.34 (re right of entry & inspection) Rule 58A-5.015,F.A.C. (re renewal) * The 3 July, 2012, Notice of Intent to Deny, mistakenly cited F.S. 408.15 (1) (b)&(c); the correct cite (408.815(1) (b)&(c))is listed above. EXPLANATION OF RIGHTS Pursuant to Section 120.569, Florida Statutes (F.S.), you have the right to request an administrative hearing. In order to obtain a formal proceeding before the Division of Administrative Hearing under Section 120.57(1), F.S., your request for an administrative Hearing must conform to the requirement in Section 28-106.201, Florida Administrative Code (F.A.C.), and must state the material facts you dispute. SEE ATTACHED ELECTION OF RIGHTS FORM Sincerely, Shaddrick A. ton, Manager Assisted Living Unit Bureau of Long Term Care Services Copies to: : Jan Mills, General Counsel Office, Tallahassee ‘Christina Mesa, Esq.,P.0.Box 10207, Tampa, FL 33679-0207 Assisted Living Unit, Tallahassee Paul Brown, AHCA, Supervisor, Area 5, St. Petersburg David Selby, AHCA, Assistant General Counsel, St. Petersburg STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION 80" PLACE, Petitioner, : vs. DOAH CASE NO. 12-2641 AHCA NO. 2012007214 STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Respondent. / SETTLEMENT AGREEMENT Petitioner, 80" Place, and Respondent, State of Florida, Agency for Health Care Administration (hereinafter the “Agency”), through its duly authorized representatives, pursuant to Section 120.57(4), Florida Statutes, each individually, a “party,” collectively as “parties,” hereby enter into this Settlement Agreement (“Agreement”) and agree as follows: WHEREAS, Petitioner is an assisted living facility (“ALF”) licensed pursuant to Chapters 408, Part IT and 429, Part I, Florida Statutes, and Chapter 58A-5, Florida _ Administrative Code; and WHEREAS, the Agency has jurisdiction by virtue of being the regulatory and licensing authority over Petitioner, pursuant to Chapters 408, Part i and 429, Part I, Florida Statutes; and WHEREAS, the Agency served Petitioner with a “Notice of Intent to Deny” (“NOI”) received on or about 9 July, 2012, and an “Amended Notice of Intent to Deny” on 6 September, 2012, both notifying Petitioner of the Agency’s intent to deny Petitioner’s license renewal application, and WHEREAS, the parties have negotiated and agreed that the best interest of all the parties will be served by a settlement of this proceeding; and . NOW THEREFORE, in consideration of the mutual promises and recitals herein, the parties intending to be legally bound, agree as follows: EXHIBIT 2 1. All recitals herein are true and correct and are expressly incorporated herein. 2. Both parties agree that the “whereas” clauses incorporated herein are binding findings of the parties. 3. Upon full execution of this Agreement, Petitioner agrees to waive any and all appeals and proceedings to which it may be entitled including, but not limited to, an informal proceeding under Subsection 120.57(2), Florida Statutes, a formal proceeding under Subsection 120.57(1), Florida Statutes, appeals under Section 120.68, Florida Statutes; and declaratory and all writs of relief in any court or quasi-court of competent jurisdiction; and agrees to waive _ compliance with the form of the Final Order (findings of fact and conclusions of law) to which it may be entitled, provided, however, that no agreement herein shall be deemed a waiver by either party of its right to judicial enforcement of this Agreement. 4 Upon full execution of this Agreement, the parties stipulate: a. Petitioner’s request for a hearing in this cause is deemed withdrawn; b. Petitioner’s application for licensure renewal is also deemed withdrawn, and c. This cause shall be deemed dismissed as moot. 5. Venue for any action brought to enforce the terms of this Agreement or the Final Order entered pursuant hereto shall lie in Circuit Court in Leon County, Florida. 6. By executing this Agreement, neither party admits or denies the allegations set forth in the Amended NOI, and the Agency asserts the validity of the allegations raised in the Amended NOI referenced herein. 7. The Agency is not precluded from using the subject events identified in the Amended NOI for any purpose within the jurisdiction of the Agency. Further, Petitioner acknowledges and agrees that this Agreement shall not preclude or estop any other federal, state, or local agency or office from pursuing any cause of action or taking any action, even if based on or arising from, in whole or in part, the facts raised in the Amended NOI. This Agreement does 2 not prohibit the Agency from taking action regarding Petitioner’s Medicaid provider status, ° conditions, requirements or contract. 8. Upon full execution of this Agreement, the Agency shall enter a Final Order adopting and incorporating the terms of this Agreement and closing the above-styled case. 9. Each party shall bear its own costs and attorney’s fees. 10. This Agreement shall become effective on the date upon which it is fully executed by all the parties. 11. Petitioner for itself and for its related or resulting organizations, its successors or transferees, attorneys, heirs, and executors or administrators, does hereby discharge the State of Florida, Agency for Health Care Administration, and its agents, representatives, and attorneys of and from all claims, demands, actions, causes of action, suits, damages, losses, and expenses, of any and every nature whatsoever, arising out of or in any way related to this matter and the Agency’s actions, including, but not limited to, any claims that were or may be asserted in any federal or state court or administrative forum, including any claims arising out of this . Agreement, by or on behalf of Petitioner or related facilities. 12 This Agreement is binding upon all parties herein and those identified in paragraph 1 of this Agreement. 13. In the event that Petitioner was a Medicaid provider at the subject time of the occurrence alleged in the Amended NOI, this Agreement does not prevent the Agency from seeking Medicaid overpayments related to the subject issues or from imposing any sanctions pursuant to Rule 59G-9.070, Florida Administrative Code. 14. The undersigned have read and understand this Agreement and have the authority to bind their respective principals to it. Petitioner has the capacity to execute this Agreement. 15. This Agreement contains and incorporates the entire understandings and agreements of the parties. ar eee a SF ee 16. This Agreement supersedes any prior oral or written agreements between the © parties. , 17, This Agreement may not be amended except in writing. Any attempted assignment of this Agreement shall be void. . 18. —_ All parties agree that faxed and scanned signatures suffice for original signatures, The following representatives hereby acknowledge that they are duly authorized to enter - into this Agreement, consisting of the preceding 18 para, , stina. Mesa, Esq. Florida Bar No, 932388 MESA LAW, PA 2727 Mahan Drive . - PO Box 10207 Tallahassee, Florida 32308 Tampa, FL 33679-0207 Florida Bar no.; 932388 . For Petitioner . DATED: }2 [of L DATED: /0-(2-/2—- tuart F. Williams el Gene Cowles, Co-owner -or- General Counsel Amelia Cowles, Co-owner Agency for Health Cay9 Administration a ; bi ‘2727 Mahan Drive Ayilding #3 55 Place Tallahassee, Flog Pinellas Park, FL 33781 patep: / paren: 0-2-2 Wy A Edwin D. Selby, Assistant Florida Bar No. 262587 Agency for Health Care Administration $25 Mizror Lake Drive, Suite 330H St. Petersburg, FL 3870 DATED: _ /2L7 LO 02, eneral Counsel
Conclusions Having reviewed the Amended Administrative Complaint, the Amended Notice of Intent to Deny Renewal License, the Administrative Complaint, the Agency for Health Care Administration finds ! The Final Order adopts a Settlement Agreement that has applies to parties other than the named Respondent. 2 The Final Order correctly reflects the applicant as the petitioner in the case style for this licensure action. Filed February 18, 2014 10:38 AM Division of Administrative Hearings and concludes as follows: 1. The Agency has jurisdiction over the above-named Provider pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Amended Administrative Complaint, Amended Notice of Intent to Deny Renewal License, Administrative Complaint and Election of Rights forms to Brandia Presha d/b/a Personal Care I]. (Ex. 1) The Election of Rights forms advised of the right to an administrative hearing. The Settlement Agreement also includes the assisted living facility known as Personal Care, also owned by Brandia Presha. The two assisted living facilities will be referred to as “the Provider.” In addition, the Settlement Agreement includes Tamik Presha. 3. The parties and Tamika Presha have entered into the attached Settlement Agreement. (Ex. 2) Based upon the foregoing, it is ORDERED: 1. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 2. The Provider’s assisted living facility licenses to operate Personal Care II, license number 8730, and Personal Care [“I”], license number 4829, are VOLUNTARILY SURRENDERED effective December 14, 2014. The Provider may consent to a Change of Ownership (“CHOW”) application with an unrelated party for either or both of the facilities with an effective date of, or prior to, December 14, 2014. Should there not be a CHOW with an effective date of, or prior to, December 14, 2014, the Provider is responsible for the safe and orderly discharge of the facility residents. 3. The Provider and Tamika Presha shall not apply for any type of license issued by the Agency or obtain any interest in any private entity which holds a license issued by the Agency for a period of 5 years of the date of this Final Order. 4. An administrative fine of $2,000.00 is imposed but STAYED against the Provider. The Agency shall not attempt to collect the fine against the Provider absent a breach of this Settlement Agreement. Should either Brandia Presha or Tamika Presha seek any type of license issued by the Agency within five years of the date of this Final Order, the $2,000.00 shall be immediately due and payable and full payment of the fine shall be a condition precedent for any type of Agency license. If payment is to be made, a check made payable to the “Agency for Health Care Administration” and containing the AHCA ten-digit case number(s) should be sent to: Office of Finance and Accounting Revenue Management Unit Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 14 Tallahassee, Florida 32308 5. Should there not be a CHOW, the Provider is responsible for any refunds that may be due to any clients. 6. Should there not be a CHOW, the Provider shall remain responsible for retaining and appropriately distributing client records as prescribed by Florida law. The Provider is advised of Section 408.810, Florida Statutes. The Provider should also consult the applicable authorizing statutes and administrative code provisions as well as any other statute that may apply to health care practitioners regarding client records. 7. Should there not be a CHOW, the Provider is given notice of Florida law regarding unlicensed activity. The Provider is advised of Section 408.804 and Section 408.812, Florida Statutes. The Provider should also consult the applicable authorizing statutes and administrative code provisions. The Provider 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. ORDERED at Tallahassee, Florida, on this_/7 day of Alauacey , 2014. Elizabeth Duddk, 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 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 correc y of this Final Order was served on the below-named persons by the method designated on this t? ay of feLyruc cys , 2014. Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Facilities Intake Unit (Electronic Mail) Shaddrick Haston, Unit Manager Licensure Unit Agency for Health Care Administration (Electronic Mail) Finance & Accounting Revenue Management Unit (Electronic Mail) Patricia Caufman, 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) Suzanne Suarez Hurley, Esq. Office of the General Counsel Agency for Health Care Administration (Electronic Mail) Shawn McCauley Medicaid Contract Management Agency for Health Care Administration (Electronic Mail) Corinne Porcher, Esquire Smith & Associates 3301 Thomasville Road, Suite 201 Tallahassee, FL. 32308 (U.S. Mail) Lynne Quimby-Pennock Administrative Law Judge Brandia Presha, Owner/Administrator Personal Care & Personal Care II Division of Administrative Hearings 120 8" Avenue West (Electronic Mail) Bradenton, FL 34208 (U.S. Mail) J. D. Parrish Tamika Presha Administrative Law Judge 120 8"" Avenue West Division of Administrative Hearings Bradenton, FL 34208 (Electronic Mail) (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 in this cause concern whether disciplinary action should be taken against the Respondent's license to practice medicine, based upon alleged violations of Section 458.331(1)(b), Florida Statutes. Specifically, the disputed issue concerns whether his license to practice medicine was revoked, suspended or otherwise acted against by the licensing authority of another state.
Findings Of Fact The Respondent is and at all times material hereto, has been licensed as a physician in the State of Florida. He holds licensed number ME0028248 issued by the State of Florida, Board of Medical Examiners. Respondent is also licensed in the State of New York as a medical doctor. The Petitioner is an agency of the State of Florida charged with enforcing the medical practice standards contained in Chapter 458, Florida Statutes and related rules. Pertinent provisions of that chapter and Chapter 455, Florida statutes authorize the Petitioner to make investigations of physician's licenses in the State of Florida and, if probable cause exists to indicate that a physician has engaged in conduct proscribed by Chapter 458, to commence formal proceedings seeking disciplinary action against such physicians. The New York State Department of Education and its Board of Regents is the licensing authority for medical doctors for the State of New York, (Petitioner's Exhibit 3 is evidence.) On August 14, 1986, the Commissioner of Education of the State of New York, on behalf of the State Education Department and its Board of Regents entered an order wherein the Respondent'S license to practice medicine in the State of New York was suspended for one year. That suspension was stayed and the Respondent's license to practice medicine was placed in probationary status with the probation being subject to certain conditions. See Petitioner's Exhibit 3 in evidence. In that order, the Respondent, had been found guilty of professional misconduct by being convicted of committing crimes under the state law of New, York. Specifically, he was convicted of four counts of violations of Public Health Law 12.B(2), by being registered as a medicaid provider and leasing space for the practice of medicine at a dental office, a "shared health facility", the rental fee for which was calculated and paid as a percentage of the defendant's earnings for medical services rendered on the premises. The Respondent was also found guilty of falsely representing that he was certified by the American Board of Internal Medicine when in fact he was not so certified, and by the willful making and filing of a false report, which also constitutes unprofessional conduct within the meaning of the law of the State of New York, specifically 8NYCRR 29.1(b)(6), (1984), cited in Petitioner's Exhibit 3 in evidence.
Recommendation Accordingly, it is therefore RECOMMENDED that a Final Order be entered by the State of Florida, Board of Medical Examiners suspending the Respondent's license for one full year or until such time as the Respondent appears before the Board of Medicine and demonstrates that he is capable of practicing medicine with care, skill and safety to patients including a demonstration that his license to practice medicine in New York is reinstated and is unrestricted, whichever time period is less. DONE AND ENTERED this 3rd day of July, 1989, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF, 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 3rd day of July, 1989. COPIES FURNISHED: Jonathan King, Esquire Department of Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0729 Vijay Sakhuja, M.D. 120 Secor Drive Port Washington, New York 11050 Vijay Sakhuja, M.D. 90-10 Sutphin Boulevard Jamaica, New York 11435 Dorothy Faircloth, Executive Director Board of Medicine Department of Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0729 Kenneth Easley, General Counsel Department of Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0729 ================================================================= DISTRICT COURT OPINION ================================================================= IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA VIJAY SAKHUJA, M.D., NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND Appellant, DISPOSITION THEREOF IF FILED. vs. CASE NO. 89-2296 DOAH CASE NO. 88-4658 DEPARTMENT OF PROFESSIONAL REGULATION, Appellee. / Opinion filed October 10, 1990. Appeal from an Order of the Department of Professional Regulation Walter D. Forehand, of Myers & Forehand, Tallahassee, for appellant. Lisa S. Nelson, Department of Professional Regulation, for appellee. WENTWORTH, J. Appellant seeks review of an administrative order by which appellee Department of Professional Regulation, through its Board of Medicine, suspended appellant's medical license. The duration of this suspension exceeds the penalty which the hearing officer had recommended. Although we find no error with regard to appellant's other contentions, we do find that the Board did not fully and adequately delineate the basis for increasing the recommended penalty. We therefore reverse the order appealed. Appellant was licensed to practice medicine in both Florida and New York, and the current proceeding ensued after disciplinary action was taken by the licensing authority in New York for violations which had occurred in that state. The New York licensing authority acted upon appellant's conviction for violating a public health law which prohibits calculating medical office rental fees on a percentage of earnings, and upon appellant's false reporting and false representation of a medical certification. The proceeding in Florida was based upon this New York action, as appellant was charged with violating section 458.331(1)(b), Florida Statutes, which specifies that disciplinary action may be taken in this state when a license has been "acted against" by the licensing authority of another jurisdiction. After an administrative hearing on this charge the hearing officer recommended that appellant's Florida license be suspended for one year or until such time as he satisfies certain conditions including the reinstatement of his New York license. The Board of Medicine adopted the hearing officer's recommended findings, but increased the penalty so as to suspend appellant's license in Florida for one year and until such time as the various other conditions are satisfied. The order increasing the recommended penalty recites that: Rule 21M-20.001(1)(b), F.A.C., provides for discipline for action taken in another jurisdiction to be the discipline which would have been imposed if the substantive violation had occurred in Florida. Although this explanation identifies a permissible basis for the Board's action, and it does not appear that the hearing officer considered the applicability of the cited rule, the order does not specify the asserted substantive Florida violation had appellant's conduct occurred in this state. While appellant's conduct in New York, as indicated by the substantive violations in that state, might be such as would also constitute substantive violations in Florida, the Board's failure to delineate a particular substantive Florida violation does not fully satisfy the Board's obligation, as mandated by section 120.57(1)(b)10, Florida Statutes, to provide a particularize statement of the reason for increasing the recommended penalty. Appellee concedes that the Board's order is deficient, but contends that it should be afforded the opportunity to enter a more thorough and explicit order on remand. Because the order now being appealed reflects a legally permissible basis for the challenged action, on remand the Board may address the matter with greater particularity should it again decide to increase the recommended penalty. See Van Ore v. Board of Medical Examiners, 489 So.2d 883 (Fla. 5th DCA 1986); see also, Pages v. Department of Professional Regulation, 542 So.2d 456 (Fla. 3d DCA 1989). The order appealed is reversed and the cause remanded. MINER and WOLF, JJ., CONCUR.
The Issue Whether Respondent engaged in an unlawful employment practice with regard to Petitioner because of Petitioner's asserted disability.
Findings Of Fact At the time of the hearing, Ms. Hays was 36 years of age and was unemployed. During times pertinent she lived in Chattahoochee, Florida. The Hospital in Chattahoochee, Florida, is a large residential mental health facility operated under the auspices of the Department. The Hospital also administratively supports employees of the Agency for Persons with Disabilities. The Hospital is an employer as that term is defined in Subsection 760.02(7), and thus subject to the Florida Civil Rights Act of 1992. Ms. Hays, prior to her employment with the Hospital, worked for various employers in clerical and secretarial positions. She began working at the Hospital in 2000. She was employed in a temporary position in Unit 25 as a Clerk Typist Specialist. After two weeks on the job, she was moved to Unit 14 and worked as a Human Service Worker I. This was also a temporary position. In this latter position, she took care of elderly residents. She bathed them, fed them, and otherwise helped them with their daily needs. She also escorted them to off-campus appointments. She received a "Review and Performance Planning" document signed by her on June 19, 2000, which indicated that she was performing in a satisfactory manner. She was hired in a full-time position as a Human Service Worker I in August 2000 in Unit 31/32. In this position her duties included assisting nurses in the medical unit of the Hospital. A "Review and Performance Planning" document signed by Ms. Hays on January 30, 2001, stated that she achieved standards and included some complimentary remarks. In July 2001, she was moved to Unit 29 as a Human Service Worker I. Unit 29 is also known as the Mentally Retarded Defendant Program (MRDP) or MRDP 29. She received a "Review and Performance Planning" document that she signed on March 29, 2002. She received an overall evaluation of "3.81." A performance rating of "4" means that she consistently met and often exceeded expectations. A "5" is the highest rating one can obtain at the Hospital. Her next rating for the period March 2002 until July 2002, resulted in a grade of "4." During the period July 20, 2002, until March 1, 2003, she did not receive a rating because she was not working at the Hospital during the evaluation period. Nevertheless, Annette Bates, Ms. Hays' supervisor, noted that she was a good worker and an asset to MRDP 29. Ms. Hays was injured on November 27, 2001, while exiting the "big blue bus." She slipped on wet steps, and her lower back and neck impacted the steps. A physician, Dr. K. W. Richardson of Chattahoochee, reported that the injury sustained was a broken tail bone. He noted this in a "First Report of Injury or Illness" dated November 28, 2001. Ultimately the diagnosis was changed to two bulging disks. Pain medication was prescribed, but she never required surgery. Wages paid to her, by the Hospital, $751.63 bi-weekly, terminated on December 4, 2001. Subsequently, she was paid workers' compensation benefits. She was informed she could work, but could not lift more than ten pounds and could not have contact with patients. She was authorized to work only at a desk job. Ms. Hays returned to work at the Hospital on January 18, 2002. She was placed on light duty and assigned to the Medical Records Section at MRDP. She filed documents and did other tasks as assigned. Her supervisor was a Ms. Lawrence. On July 18, 2002, her light-duty status expired and because the Hospital could not accommodate her restrictions, she was sent home and provided workers' compensation benefits. She continued to receive workers' compensation benefits until December 2004, when she reached maximum medical improvement. In December 2004, she was contacted by Tracy Wallace and as a result, Ms. Hays met with Margaret Forehand. Ms. Forehand, at that time, was the Hospital's Workers' Compensation Coordinator. She told Ms. Hays that a position was available in MRDP, Unit 29, and invited her to apply for it. Ms. Hays completed a State of Florida Employment Application. She was thereafter employed as a "clerk typist specialist - F/C" at a salary rate of $754.24, which was, on a bi-weekly basis, $39.70 less than she was receiving before her injury. (The designation F/C means forensic corrections.) Ms. Hays' Letter of Acceptance, dated December 7, 2004, and accepted by Ms. Hays on December 7, 2004, informed her that her position was probationary for 12 months. The letter was written on Department stationery, but was signed by David English, Program Operations Administrator, who worked for the Agency for People with Disabilities. He has the ultimate hiring authority for the employees of MRDP. Although termed a "demotion," the lower pay was actually the result of Hospital policy that was applied to all employees who returned from an absence subsequent to being placed on workers' compensation. This job was not preceded by an interview. The person who became her supervisor, Shellie Owens, was not involved in Ms. Hays' hiring process. Ms. Hays' ultimate employer was the Department. Ms. Hays' duties as a "clerk typist specialist- F/C" included filing, typing, and answering and referring calls. She filed ward charts, "thinned charts," and ensured that ward charts and central files were maintained in accordance with Hospital policies, among other tasks. Her duties were set forth in a "Career Service System Position Description." Her section was denoted "MRDP." She was physically able to perform these duties without an accommodation. Her daily work was not in the least affected by any injury or disability. The evidence indicates that both Ms. Hays and Ms. Owens' ultimate employer was the Agency for Persons with Disabilities. Ms. Owens was aware that Ms. Hays had been on workers' compensation for a time. Ms. Owens knew that Ms. Hays could not lift more than ten pounds and was aware that the job did not require lifting more than ten pounds. No evidence was adduced indicating that Ms. Owens perceived Ms. Hays as disabled. Because entries are frequently entered in patients' ward charts, they would grow quite large if not managed. It is necessary for some of the information to permanently remain in ward charts, but a substantial portion may be stored elsewhere. The portions of the charts that are not required to remain in the ward are permanently stored in the Medical Records Office. The process of removing designated matter from the ward charts is called "thinning." Thinning was an important part of Ms. Hays' job. She had to "thin" in accordance with a schedule. Some documents would be left in ward charts for three months, some would be kept if they were only the most recent of a type, and some were kept as long as needed. Some were permanent and, therefore, never removed. It was important also, as part of the process, that Ms. Hays ensure that documents in ward charts were arranged in the proper order. For the rating period December 7, 2004, until March 1, 2005, Ms. Owens evaluated Ms. Hays as a "3." In the written portion of the evaluation, Ms. Owens noted that Ms. Hays had a pleasant personality and was willing to assist others. Ms. Owens' job title is Health Information Specialist Supervisor. In addition to Ms. Hays, during times pertinent, Ms. Owens supervised from three to four other people. On April 19, 2005, approximately six weeks after receiving her evaluation, Ms. Hays was counseled by Ms. Owens. Ms. Owens told her she needed to improve in some areas and that her desk was not tidy. She provided Ms. Hays with a schedule of daily assignments designed to help Ms. Hays improve. Ms. Owens memorialized her discussion with Ms. Hays in a memorandum dated April 19, 2005. In the memorandum, she noted that Ms. Hays had been provided with the MRDP Worksite Orientation Requirement Worksheet on February 25, 2005, and that Ms. Hays understood her duties and acknowledged that by signing it. The memorandum recited that Ms. Hays' work was backed up and that her desk had food and drink on it that could have been spilled on documents which were on the desk. The memorandum also reminded Ms. Hays that she was a probationary employee. Ms. Owens also gave Ms. Hays a "daily schedule" that had an effective date of April 25, 2005. Ms. Hays and Ms. Owens both signed it. The "daily schedule" informed Ms. Hays exactly what she was to do every day of the week. In Ms. Hays' opinion, she followed "every word" of the schedule, and Ms. Owens did not indicate that there was any problem with her work immediately subsequent to the implementation of the "daily schedule." Ms. Owens conducted an audit of the charts maintained by Ms. Hays on May 20, 2005, and reduced the results to writing. The information developed in the audit caused Ms. Owens to conclude that Ms. Hays' work was not improving. Ms. Owens believes that medical records are extremely important and keeping them in good order is a necessity. Her audit found that Ms. Hays was not keeping them in good order. She found her work to be unacceptable. She discussed the matter with Les Smith, the Residential Services Director of Forensic Corrections. He was her immediate supervisor. Ms. Owens then talked to Amy Bryant the Hospital's Employee Relations Counselor with regard to procedures to be followed in terminating an employee. She wanted to comply with procedures. Ultimately a meeting occurred attended by Ms. Owens, Les Smith, David English, and an attorney for the hospital, Amy Tillman. During this process, the decision to offer Ms. Hays the opportunity to resign in lieu of being fired, was finalized. On May 24, 2005, Ms. Hays was ordered by Ms. Owens to report to Mr. Smith's office. Mr. Smith is Ms. Owens' supervisor. When she arrived, she was given the choice of resigning or being fired. If she had not resigned, she would have been fired immediately. Ms. Hays was surprised when she was informed of this choice. She resigned in a handwritten letter dated May 24, 2005. This was her last day of work at the Hospital. As a probationary employee, she had no right to appeal what amounted to a discharge. Bernice King worked at the Hospital with Ms. Hays. She was a Human Service Worker II in MRDP 29. She had an opportunity to observe Ms. Hays' work. Ms. King used the charts maintained by Ms. Hays, and she found them to be in good order. Danielle Rene Shaw worked at the Hospital with Ms. Hays. She was a Human Service Worker II in MRDP 29. She had an opportunity to observe Ms. Hays' work. Ms. Shaw used the charts maintained by Ms. Hays, and she found them to be in good order. She thought Ms. Hays was a hard worker. Mark Flodin, M.D., worked as a physician in MRDP 29 when Ms. Hays was working there, and he had an opportunity to observe her performance. He noted that she was a hard worker and had a professional attitude. He said she maintained the ward charts in an orderly fashion. He was surprised when she was terminated. Ms. Hays' position was filled by Ms. Ryan Smith, who came to the Hospital from another state agency. She was paid at the rate of $828.17 bi-weekly. Ms. Hays applied for over a hundred jobs with the State of Florida using the state's website, MyFlorida.com. She also sought employment with 15 private employees. She was interviewed twice, but received no job offers. She was never offered an interview at the Hospital. She received unemployment compensation for about six months after she left the Hospital. Subsequent to her departure from the Hospital, and her inability to secure other employment, she had to have her depression medicine, Zoloft, increased, but she still feels depressed and worthless. She is also taking Chlonzpam, an anti- anxiety drug, and Wellbutrin. Ms. Hays' mother works at the Hospital, as a licensed practical nurse, and her husband was once employed there also. Her father is retired from employment at the Hospital, and her grandmother and grandfather worked there.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations dismiss the Petition of Alicia Hays. DONE AND ENTERED this 25th day of July, 2007, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 25th day of July, 2007. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Carolyn Dudley, Assistant Staff Director Department of Children and Family Services 1317 Winewood Boulevard Building 1, Room 101F Tallahassee, Florida 32399-0700 Sharon L. Ray, Esquire Agency for Persons with Disabilities 3700 Williams Drive Marianna, Florida 32446 Erika E. Bush, Esquire Marie A. Mattox, P.A. 310 East Bradford Road Tallahassee, Florida 32303 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
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 has jurisdiction over the above-named Respondent pursuant to Chapter 408, Part Il, Florida Statutes, and Chapter 400, Part X, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Administrative Complaint and Election of Rights form to the Respondent. (Ex. 1) The parties have since entered into the attached Settlement Agreement, (Ex. 2). Based upon the foregoing, it is ORDERED: 1. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 2. The facility’s Certificate of Exemption is deemed surrendered and is cancelled and of no further effect. 3. Each party shall bear its own costs and attorney’s fees. Any requests for administrative hearings are dismissed and the above-styled case is closed. 4, 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. 5. In accordance with Florida law, the Respondent is responsible for any refunds that may have to be made to the clients. Filed December 24, 2014 3:11 PM Division of Administrative Hearings 6. 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. ORDERED at Tallahassee, Florida, on this 25” day of htaewnboer , 2014. , Secretary th 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 correct of this Final Order was served on the below-named persons by the method designated on this eis of , 2014. Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Thomas Jones, Unit Manager Facilities Intake Unit Licensure Unit Agency for Health Care Administration Agency for Health Care Administration (Electronic Mail) (Electronic Mail) Katrina Derico-Harris Medicaid Accounts Receivable Agency for Health Care Administration (Electronic Mail) Shawn McCauley Medicaid Contract Management Agency for Health Care Administration (Electronic Mail) Arlene Mayo-Davis, Field Office Manager Local Field Office Agency for Health Care Administration (Electronic Mail) Daniel A. Johnson, Senior Attorney Office of the General Counsel Agency for Health Care Administration (Electronic Mail) Division of Administrative Hearings (Electronic Mail) Dagmar Llaudy, Esquire Law Office of Dagmar Llaudy, P.A. 814 Ponce De Leon Blvd, Suite 513 Coral Gables, Florida 33134 (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.
