Conclusions Having reviewed the administrative complaint dated June 12, 2009, and Notice of Intent dated July 9, 2009, attached hereto and incorporated herein (Ex. 1 and 2), and all other matters of record, the Agency for Health Care Administration (“Agency”) has entered into a Settlement Agreement (Ex. 3) with the other party to these proceedings, and being otherwise well- advised in the premises, finds and concludes as follows: 1 Filed November 20, 2009 10:37 AM Division of Administrative Hearings. ORDERED: 1. The attached Settlement Agreement is approved and adopted as part of this Final Order, and the parties are directed to comply with the terms of the Settlement Agreement. 2. The administrative fine against the Respondent in AHCA Case No. 2009001632 is withdrawn. 3. The Respondent's abortion clinic license is cancelled. 4. The initial application seeking laboratory licensure in Case No. 2009007700 is withdrawn. 5. The Respondent's request for formal hearing is dismissed. 6. Each party shall bear its own costs and attorney’s fees. 7. The above-styled cases are hereby closed. DONE and ORDERED this _// day of hover Ake , 2009, in Tallahassee, Leon County, Florida. El . Arnold, Secretary Y t Health Care Administration Thomas Agenc 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. Copies furnished to: Jan Mills Facilities Intake Unit Agency for Health Care Admin. (Interoffice Mail) Thomas M. Hoeler, Esquire | Office of the General Counsel Agency for Health Care Admin. (Interoffice Mail) Laura MacLafferty, Unit Manager Hospital and Outpatient Services Unit Agency for Health Care Admin. (Interoffice Mail) Andrew T. Lavin, Esquire Navon & Lavin, P.A. Emerald Park Office Center 2699 Stirling Road, Suite B-100 Fort Lauderdale, Florida 33312 (U.S. Mail) Karen Rivera, Unit Manager ‘| Laboratory Unit Agency for Health Care Admin. (Interoffice Mail) CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of this Final Order was served on the above-named person(s) and entities by U.S. Mail, or the method designated, on this the /8 day of AGI A , 2009. Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Building #3 Tallahassee, Florida 32308-5403 (850) 922-5873 Certified Mail Receipt (7003 1010 0000 9715 3702) STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, AHCA No.: 2009001632 vs. COMMUNITY HEALTHCARE CENTER OF PENSACOLA, INC., Respondent. ADMINISTRATIVE COMPLAINT COMES NOW the Agency for Health Care Administration (hereinafter “AHCA”), by and through the undersigned counsel, and files this Administrative Complaint. against Community Healthcare Center of Pensacola, Inc. (hereinafter “Community Healthcare Center of Pensacola, Inc.”), pursuant to Section 120.569, and 120.57, Fla. Stat. (2008), alleges: NATURE OF THE ACTION 1. This is an action to impose one (1) administrative fine against Community Healthcare Center of Pensacola, Inc. in the amount of Four Hundred and Thirteen Thousand Dollars ($413.000), based upon one (1) deficiency, pursuant to Section 483.091, Fla. Stat. (2008). EXHIBIT 1. i \ JURISDICTION AND VENUE 2. This Agency has jurisdiction pursuant to 483, Part I and Section 120.569 and 120.57, Fla. Stat. (2008). 3. Venue lies in Escambia County, Pensacola, Florida, pursuant to Section 120.57 Fla. Stat. (2008); Rule 58A-5, Fla. Admin. Code (2008) and Section 28.106.207, Fla. Stat. (2008). PARTIES 4. AHCA, is the regulatory authority responsible for licensure and enforcement of all applicable statutes and rules governing clinical laboratory facilities pursuant to Chapter 483, -Part 1, Fla. Stat. (2008) and Rule 58A-5, Fla. Admin. Code (2008). 5. Community Healthcare Center of Pensacola, Inc. is a for-profit corporation, ABO Group + RH clinical laboratory facility is located at 6770 North Ninth Avenue, Pensacola, Florida 32504. Community Healthcare Center of Pensacola, Inc. is licensed as clinical laboratory facilities license # 800003116; certificate number #60474, effective November 21, 2005 through November 20, 2007. Community Healthcare Center of Pensacola, Inc. was at all times material hereto, licensed facility under the licensing authority of AHCA, and required to comply with all applicable rules, and statutes. COUNTI COMMUNITY HEALTHCARE CENTER OF PENSACOLA, INC. BASED ON RECORD REVIEW, OBSERVATIONS AND INTERVIEW WITH THE FACILITY ADMINISTRATOR ON JANUARY 7, 2009, AT APPROXIMATELY 9:30 A.M., IT WAS DETERMINED THAT THE LABORATORY LICENSE AND HAD CONTINUED TO PERFORM LABORATORY TESTING. STATE TAG L001-CLINICAL LABORATORY LICENSE Section 483.091, Fla. Stat. (2007) CLINICAL LABORATORY LICENSE 6. AHCA re-alleges and incorporates paragraphs (1) through (5) as if fully set forth herein. 7. On or about January 7, 2009, AHCA conducted a biennial survey at the Respondent’s facility. AHCA cited the Respondent based on the findings below, to wit: 8. On or about January 7, 2009, based on record review, observation, and interview with the facility administrator on January 7, 2009, at approximately 9:30 a.m., it was determined that the laboratory had not renewed the State of Florida clinical laboratory license and had continued to perform laboratory testing. 9. Review of state licensure records prior to the survey showed that the facility's laboratory license, number 800003116, had expired on November 20, 2007 and there was no pending application. 10. Review of Rh testing, hematocrit testing records, and pregnancy testing records showed documentation of test results for patient testing that had been performed between November 20, 2007 and January 6, 2009. ll. Observation of the Florida Clinical Laboratory license on display in a frame in the laboratory showed that the license had expired on November 20, 2007. 12. The administrator stated that the laboratory did not have a new state clinical laboratory license and did not realize they had not renewed the Florida license. The administrator stated that the facility had not received the renewal letter prior to the expiration of the license and had not received the "failed to renew" letter from the Agency for Health Care Administration following expiration of the license. Plan of Correction must be completed by February 21, 2009. 13. The regulatory provision of the Florida Statutes and Agency Rules (2008), that are pertinent to this alleged violation read as follows: 483.091 Clinical laboratory license A clinical laboratory may not send a specimen drawn within this state to any clinical laboratory outside the staté for examination unless the out-of-state laboratory has obtained a license from the agency. A new license may be secured for thé new location before the actual change, if the contemplated change complies with this part, part II of chapter 408, and the applicable rules. ek 483.221 Administrative fines.— In determining the penalty to be imposed, the Agency must consider, inter alia, the severity of the violation, actions taken by the licensee to correct the violation, any previous violations by licensee, and the financial benefit to the licensee of committing or continuing the violation. * ko ® 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.— (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. (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. 15. Despite being unlicensed, Respondent continued to conduct laboratory testing and continued to reap the financial benefit of conducting said testing. 16. The violation alleged herein constitutes a deficiency, and warrants a fine of $413,000. 17. The Respondent's history of failing to timely renew its license, coupled with Respondent’s performance of unlicensed clinical laboratory testing resulting in financial gain in the face of Agency notification advising of the expiration of the license and the consequences of unlicensed activity, serve as a basis for the instant action and are, inter alia, a consideration of the Petitioner in determining the penalty sought herein. 18. Unlicensed laboratory testing is testing without Agency oversight and may result in substandard laboratory protocols and results which place the health and welfare of Respondent’s patients in danger. 19. The violation alleged herein constitutes a deficiency, and warrants a fine of $413,000. WHEREFORE, AHCA demands the following relief: 1. Enter factual and legal findings as set forth in the allegations of this administrative complaint. 2. Impose a fine in the amount of $413,000. CLAIM FOR RELIEF WHEREFORE, the Petitioner, State of Florida Agency for Health Care Administration requests the following relief: 1. Make factual and legal findings in favor of the Agency on Count I. 2. Impose upon Community Healthcare Center of Pensacola, Inc. an administrative fine in the amount of $413,000 for the violation cited above. 3. Grant such other relief as the court deems is just and proper. Respondent is notified that it has a right to request an administrative hearing pursuant to Section 120.569, Florida Statutes (2008). Specific options for administrative action are set out in the attached Election of Rights (one page) and explained in the attached Explanation of Rights (one page). All requests for hearing shall be made to the Agency for Health Care Administration, and delivered to the Agency for Health Care Administration, Building 3, MSC #3, 2727 Mahan Drive, Tallahassee, Florida 32308; Michael O. Mathis, Senior Attorney. RESPONDENT IS FURTHER NOTIFED THAT THE FAILURE TO REQUEST A HEARING WITHIN 21 DAYS OF RECEIPT OF THIS COMPLAINT WILL REASULT IN AN ADMISSION OF THE FACTS ALLEGED IN THE COMPLAINT AND THE ENTRY OF A FINAL ORDER BY THE AGENCY. Florida. Michael O. Mathis Fla. Bar. No. 0325570 Counsel of Petitioner, Agency for Health Care Administration . Bldg. 3, MSC #3 2727 Mahan Drive Tallahassee, Florida 32308 (850) 922-5873 (office) (850) 921-0158 (fax) CERTIFICATE OF SERVICE L HEREBY CERTIFY, that a true and correct copy of the foregoing has been served by certified mail on pat day of ark , 2009 to Warren Do Taylor, Administrator, Community Healthcare Center of Pensacola, Inc., 6770 North Ninth Avenue, Pensacola, Florida 32504. Michael O. Mathis, Esq. STATE OF FLORIDA : AGENCY FOR HEALTH CARE ADMINIS: RATION RE: Case Name: COMMUNITY HEALTHCARE CENTER OF PENSACOLA, INC. CASE NO: 2009001632 ELECTION OF RIGHTS This Election of Rights form is attached to a proposed administrative action by the Agency for Health Care Administration (AHCA). The title may be Notice of Intent to Deny, Notice of Intent to Impose a Late Fee, Notice of Intent to Impose a Late Fine, Administrative Complaint, or some other notice of intended action by AHCA. An Election of Rights must be returned by mail or by fax within 21 days of the day you receive the attached Notice of Intent to Deny, Notice of Intent to Impose a Late Fee, Notice of Intent to Impose a Late Fine, Administrative Complaint or any other proposed action by AHCA. If an election of rights with your selected option is not received by AHCA within twenty-one (21) days from the date you received a notice of proposed action by AHCA, you will have given up your right to contest the Agency’s proposed action and a final order will be issued. PLEASE RETURN YOUR ELECTION OF RIGHTS TO: Agency for Health Care Administration Attention: Agency Clerk 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308. Phone: 850-922-5873 Fax: 850-921-0158. PLEASE SELECT ONLY 1 OF THESE 3 OPTIONS OPTION ONE (1) I admit to the allegations of facts and law contained in the Notice of Intent to Deny, the Notice of Intent to Levy a Late Fee, the Notice of Intent to Levy a Late Fine, the Administrative Complaint, or other notice of intended action by AHCA and I waive my right to object or to have a hearing. | understand that by giving up my right to a hearing, a final order will be issued that adopts the proposed agency action and imposes the penalty, fine or action. OPTION TWO (2) I admit to the allegations of facts contained in the Notice of Intent to Deny, the Notice of Intent to Levy a Late Fee, the Notice of Intent to Levy a Late . Fine, the Administrative Complaint, or other proposed action by AHCA, but I wish to be heard at an informal proceeding (pursuant to Section 120.57(2), Florida Statutes) where I may submit testimony and written evidence to the Agency to show that the proposed administrative action is too severe or that the fine should be reduced. OPTION THREE (3)___ I do dispute the allegations of fact contained in the Notice of Intent to Deny, the Notice of Intent to Levy a Late Fee, the Notice of Intent to Levy a Late Fine, the Administrative Complaint, or other proposed action by AHCA, and I request a formal hearing (pursuant to Section 120.57(1), Florida Statutes (2006) before an Administrative Law Judge appointed by the Division of Administrative Hearings. PLEASE NOTE: Choo ; OPTION THREE (3), by itself, i ‘OT sufficient to obtain a formal hearing. You musi file a written petition in order to obt. «a formal hearing before the ‘Division of Administrative Hearings under Section 120.57(1), Florida Statutes. It must be received by the Agency Clerk at the address above within 21 days of receipt of this proposed administrative action. The request for formal hearing must conform to the requirements of Rule 28-106.201, Florida Administrative Code, which requires that it contain: 1. The name and address of each agency affected and each agency’s file or identification number, if known; 2. Your name, address, and telephone number, and the name, address, and telephone number of your representative or lawyer, if any; 3. An explanation of how your substantial interests will be affected by the Agency’s proposed action; 4. A statement of when and how you received notice of the Agency’s proposed action; ; 5. A statement of all disputed issues of material fact. If there are none, you must state that there are none; . 6. A concise statement of the ultimate facts alleged, including the specific facts you contend warrant reversal or modification of the Agency’s proposed action; 7. A statement of the specific rules or statutes you claim require reversal or modification of the Agency’s proposed action; and 8. A statement of the relief you are seeking, stating exactly what action you wish the Agency to take with respect to its proposed action. Mediation under Section 120.573, Florida Statutes, may be available in this matter if the Agency agrees. Facility type: (ALF? nursing home? medical equipment? Other type?) Facility Name: License number: Contact person(or attorney or representative): Name Title Address: ; Street and number City Zip Code Telephone No. ; Fax No. Email Signed: Date: NOTE: If your facility is owned or operated by a business entity (corporation, LLC, etc.) please include a written statement from one of the officers or managers that you are the authorized representative. If you are one of the managers or officers, please state which office you hold. ‘Entity name: Name of office you hold: You, your attorney or representative may reply according Subsection 120.54 Florida Statutes (2006) and Rule 28, Florida Administrative Code or you may use this recommended form. Lee teoF 70d FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION RN on T Better Health Care for all Floridians Oana N July 9, 2009 CERTIFIED MAIL / RETURN RECEIPT REQUESTED WARREN TAYLOR MD COMMUNITY HEALTHCARE CTR OF PENSACOLA INC LICENSE NUMBER: 800003116 6770 NORTH NINTH AVENUE PENSACOLA, FL 32504-7346 CASE #: 2009007700 NOTICE OF INTENT TO DEEM APPLICATION INCOMPLETE AND WITHDRAWN FROM FURTHER REVIEW Your application for license RENEWAL is deemed incomplete and withdrawn from further consideration pursuant to Section 408.806(3)(b), Florida Statutes, which states that “Requested information omitted from an application for licensure, license renewal, or change of ownership, other than an inspection, must be filed with the agency within 21 days after the agency’s request for omitted information or the application shall be deemed incomplete and shall be withdrawn from further consideration and the fees shall be forfeited’’. You were notified by correspondence dated June 05, 2009 to provide further information addressing identified apparent errors or omissions within twenty-one days from the receipt of the Agency’s correspondence. Our records indicate you received this correspondence by certified mail on June 09, 2009. As this requested information was not timely received by the Agency, your application is deemed incomplete and withdrawn from further consideration. The outstanding issues remaining for licensure are: Failure to submit upon written request: e Health Care Licensing Application Addendum with ownership information in Section 2A. EXPLANATION OF RIGHTS Pursuant to Section 120.569, F.S., you have the right to request an administrative hearing. In order to obtain a formal proceeding before the Division of Administrative Hearings under Section 120.57(1), F.S., your request for an administrative hearing must conform to the requirements in Section 28-106.201, Florida Administrative Code (F.A.C), and must state the material facts you dispute. ECTION AND EXPLANATION OF RIGHTS FORMS. Karen Rivera, Manager — . Laboratory Licensure Unit Certified Article Number 7460 3901 9848 4334 8301 SENDERS. RECORD cc: Agency Clerk, Mail Stop 3 Legal Intake Unit, Mail Stop 3 2727 Mahan Drive,MS#32 Tallahassee, Florida 32308 h EXHIBIT STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR DOAH No. 09-3585 HEALTH CARE ADMINISTRATION, Petitioner, vs. AHCA No. 2009001632 COMMUNITY HEALTHCARE CENTER OF PENSACOLA, INC., Respondent. COMMUNITY HEALTHCARE CENTER OF PENSACOLA, INC., Petitioner, vs. AHCA No. 2009007700 STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Respondent. / SETTLEMENT AGREEMENT The State of Florida, Agency for Health Care Administration (“the Agency”), and the licensee/applicant, Community Healthcare Center of Pensacola, Inc. (“the Provider”), pursuant to Section 120.57(4), Florida Statutes, enter into this Settlement Agreement (“Agreement”) and agree as follows: WHEREAS, the Provider is a licensed abortion clinic pursuant to Chapter 408, Part II, Chapter 390, Florida Statutes, and Chapter 59A-9, Florida Administrative Code, and is also an applicant for clinical laboratory licensure pursuant to Chapter 408, Part II, Chapter 483, Part I, Florida Statutes, and Chapter 59A-7, Florida Administrative Code; and WHEREAS, the Agency has jurisdiction by virtue of being the licensiy EXHIBIT Page 1 of 5 authority over the Provider pursuant to the above referenced provisions of law; and WHEREAS, the Agency served an Administrative Complaint dated June 12, 2009, on the Provider; and WHEREAS, the Agency served a Notice of Intent to Deem Application Incomplete and Withdrawn from Further Review (“NOIW”) dated July 9, 2009, on the Provider; and WHEREAS, the parties have agreed that a fair, efficient, and cost effective resolution of this dispute would avoid the expenditure of substantial sums to litigate the dispute; and WHEREAS, the parties have negotiated in good faith and agreed that the best interest of all the parties will be served by a settlement of this proceeding; NOW THEREFORE, in consideration of the mutual promises and recitals herein, the parties intending to be legally bound, agree as follows: 1. All recitals are true and correct, are incorporated into the Agreement and are binding findings of the parties. 2. Upon full execution of this Agreement, the Provider 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 (DOAH) 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. 3. Upon full execution of this Agreement, the Agency agrees to voluntarily dismiss the Administrative Complaint against the Provider with prejudice foregoing the administrative fine sought to be imposed against the Provider in its entirety, and the Provider agrees to: (1) the Page 2 of 5 voluntarily relinquishment of its abortion clinic license (License No. 821) and closure of the abortion clinic effective on or before October 31, 2009, (2) the surrender of the license certificate to the Agency at “Hospital and Outpatient Unit, Agency for Health Care Administration, 2727 Mahan Drive, MS #31, Tallahassee, Florida 32308” immediately upon the discontinuance of the operation of its clinic, (3) the withdrawal of its petition for formal hearing with regard to the pending Administrative Complaint, and (4) the withdrawal of its initial application for clinical laboratory licensure which is the subject of the NOIW. As part of the closure of its clinic, the Provider recognizes that it must comply with all statutes and rules regarding its closure, including but not limited to, Section 408.810 and Section 456.057, Florida Statutes. Until the license is voluntarily relinquished, the Provider recognizes that it must comply with all statutes and rules required by its licensure, including but not limited to, the reporting requirements under Section 390.0112, Florida Statutes, and Rule 59A-9.034, Florida Administrative Code. The Provider agrees to submit a final report for the final month or partial final month of operation, and if unable to do so through the Agency’s on-line system, may do so by United States mail at the above-referenced address. 4. Venue for any action brought to interpret, enforce or challenge the terms of this Agreement and its corresponding Final Order shall lie solely in the Circuit Court of Florida, in and for Leon County, Florida. 5. By executing this Agreement, the Provider does not admit the allegations raised in the Administrative Complaint and NOIW, but recognizes that the Agency continues in good faith to assert these allegations. 6. 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 cases. 7. Each party shall bear its own costs and attorney’s fees. Page 3 of 5 8. This Agreement shall become effective on the date upon which it is fully executed by all parties. 9. The Provider, for itself and any controlling interests, parent corporations, subsidiary corporations, successors, transferees, and any related entities, discharges 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 court, state court or administrative forum, including any claims arising out of this Agreement, by or on behalf of the Provider. 10. This Agreement is binding upon all parties and those identified in the above paragraph of this Agreement. 11. In the event that the Provider was a Medicaid provider at the time of the occurrences alleged in the administrative complaint, this Agreement does not prevent the Agency from seeking Medicaid overpayments related to the subject issues or from imposing any further sanctions pursuant to Rule 59G-9.070, Florida Administrative Code. 12, The undersigned have read and understand this Agreement and have the authority to bind their respective principals to it. The Provider’s representative has the legal capacity to execute the Agreement and has consulted with independent counsel. The Provider understands that counsel for the Agency represents solely the Agency and that counsel for the Agency has not provided any legal advice to, or influenced, the Provider in its decision to enter into the Agreement. 13. This Agreement contains and incorporates the entire understandings of the parties. This Agreement supersedes any prior oral or written agreements between the parties. This Page 4 of 5 Agreement may not be amended or supplemented except in writing. Any attempted assignment of this Agreement shall be void. 14. All parties agree that a facsimile signature suffices for an original signature. The following representatives acknowledge that they are duly authorized to enter into this Agreement. Elizabeth Deputy Se Agency for Health Care Administration Community Healthcare Center of Pensacola 2727 Mahan Drive, Bldg. #1 6770 North Ninth Avenue Tallahassee, Florida 32308 Pensacola, Florida 32504 DATED: Mf 7 2007 DATED: w\ | 04 COoUNAL 0 Grmun Reronice ht or nn : . Andrew T. Lavin, Esquj Office of the General Counsel Navon & Lavin, P.A. Agency for Health Care Administration Emerald Park Office Center 2727 Mahan Drive, Mail Stop #3 2699 Stirling Road, Suite B-100 Fort Lauderdale, Florida 33312 DATED: u/ 19]04 DATED: “4 Thomas M. Hoeler, Senior Attorney Office of the General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florig& 32708 DATED: Page 5 of 5
The Issue Whether Hospice of Southwest Florida, Inc. has standing to initiate a challenge to the issuance of a license to Hospice of Charlotte, Inc.
Findings Of Fact The facts alleged in the petition, which for purposes of this Motion, are taken as true, are as follows: In a March 10, 1994 letter, the President of HOC notified AHCA that the Board of Directors met that day and decided to dissolve HOC, that the only patient receiving services had been transferred to another provider, and that HOC intended to accept no further referrals. On March 15, 1994, AHCA responded by "terminating the license of Hospice of Charlotte effective March 10, 1994." AHCA requested a copy of the minutes of the March 10th board meeting. On March 25, 1994, the President of HOC wrote to AHCA again, this time requesting review of his letter seeking dissolution, "for the purpose of re- opening our case." He said the Board, on March 10th, intended to restructure the operation and, on March 22nd, met again and approved an agreement to work with another home health agency. Referring in his letter to advice given him in a telephone conversation with agency staff, the President sent HOC licenses number 0046 and 00442 to AHCA. The licenses had April 30, 1994 expiration dates. The letter also stated that HOC and its new partner would re-apply for licensure. In May 1994, HOC requested the return of the renewal license fee sent in on March 3, 1994, for a license that was not pursued. In December, 1994, AHCA investigated an allegation that HOC was continuing to operate without a license and concluded by finding the allegation unconfirmed. HOC had no license after March 1994 until January 31, 1995, when AHCA issued License No. 5015-94 to HOC, effective from May 1, 1994 to April 30, 1995. On April 21, 1995, AHCA notified HOC that its license was void ab initio for failure to first obtain a certificate of need (CON). The following facts are taken from public records at DOAH and from documents submitted by HOC as attachments to the Motion In Opposition: On May 16, 1995, HOC filed a Petition For Formal Administrative Hearing challenging AHCA's April 21, 1995 action voiding its license. On June 1, 1995, the First District Court of Appeal issued an Order to Show Cause by June 7, why a petition to review non-final administrative action should not be granted, and required the agency to specifically address the authority of the agency to revoke HOC's license. On June 7, HOC and AHCA entered into a settlement agreement, pursuant to which HOC voluntarily dismissed its actions at DOAH and in the District Court, and AHCA withdrew its letter of April 21, 1995, and issued HOC a license effective May 1, 1995. There is no evidence in the record of HOC's CON status. Whether HOC has or ever had a CON, or was a grandfathered provider is not know.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency For Health Care Administration enter a Final Order dismissing the Petition For Administrative Hearing filed by Hospice of Southwest Florida, Inc. DONE AND ENTERED this 1st day of September, 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 1st day of September, 1995. COPIES FURNISHED: Michael O. Mathis, Esquire Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308-5403 J. Robert Griffin, Esquire McFarlain, Wiley, Cassedy & Jones, P.A. 215 South Monroe Street Suite 600 Tallahassee, Florida 32301 Peter A. Lewis, Esquire Goldsmith & Grout, P.A. 307 West Park Avenue Post Office Box 1017 Tallahassee, Florida 32302-1017 R. S. Power, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308-5403 Tom Wallace Assistant Director Agency For Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308-5403
The Issue Whether Petitioner's request that she be reissued a medical technologist license without taking an examination should be approved.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this proceeding, Petitioner, Norma Howell, seeks to have her medical technologist license reactivated after it was rendered "null" by operation of law on June 30, 1996. A Notice of Intent to Deny Application for Licensure was entered by respondent, Board of Clinical Laboratory Personnel (Board), on March 21, 1997. Because Petitioner requested that the Board grant a variance or waiver of the rule requiring her to take an examination in order to be relicensed, the Board reconsidered the matter at its April 3, 1997, meeting. On April 11, 1997, the Board entered its Notice of Intent to Deny Variance or Waiver on the ground Petitioner had not demonstrated that she would suffer a substantial hardship or that the application of the rule would affect her in a manner significantly different from other applicants for licensure. On May 9, 1997, Petitioner filed a request for a hearing in which she contended that the statute relied upon by the Board for denying her request "did not apply to her case" and that the Board "did not comply with the 90-day notification requirement of the statute which it relied upon to nullify her license." Petitioner has been practicing in the field of medical technology for some thirty years and she has practiced in Florida for at least nine years. Until this controversy arose, she held medical technologist supervisor license number JC-0026722. Prior to July 1, 1994, medical technogist licenses were subject to the regulatory authority of the former Department of Health and Rehabilitative Services (HRS). At that time, licenses were issued for two-year periods, and if not renewed, they "automatically" reverted to an inactive status. Section 483.819, Florida Statutes (1993), provided that if a license was inactive for less than one year, it could be reactivated by payment of a late renewal penalty. If the license was inactive for more than one year but less than five, it could be reactivated "upon application" to HRS and proof that the licensee had completed 15 hours of continuing education requirements for each year the license was inactive, but not more than a total of 65 hours. If a license was inactive for more than five years, it was automatically suspended, but one year prior to the date the suspension took effect, HRS was required to give written notice to the licensee. Once suspended, a license could not be reactivated unless a licensee met all "requirements for reinstatement." Among other things, HRS possessed the discretionary authority to require reexamination before reinstatement. Effective July 1, 1994, Section 483.819, Florida Statutes (1993), was repealed, and regulatory authority over medical technologist licensees was transferred from HRS to the Department of Business and Professional Regulation (DBPR). In addition, a new Section 455.271, Florida Statutes (Supp. 1994), was created to provide new requirements relative to the inactive and delinquent status of all professional licenses, including those for medical technologists. Section (5) provided that the "[f]ailure of a licensee to renew before the license expires shall cause the license to become delinquent in the license cycle following expiration." Section (6) provided that: a delinquent status licensee must affirmatively apply with a complete application, as defined by rule of the board, or the department when there is no board, for active or inactive status during the licensure cycle in which a licensee becomes delinquent. Failure by a delinquent status licensee to become active or inactive before the expiration of the current licensure cycle shall render the license null without any further action by the board or the department. (Emphasis added) The same subsection provided that once a license was rendered "null," any subsequent licensure "shall be as a result of applying for and meeting all requirements imposed on an applicant for new licensure." In other words, a licensee would have to retake the examination in order to be relicensed. As a safeguard to automatic cancellation of a delinquent license, however, new Section 455.273 (Supp. 1994), provided that "[a]t least 90 days before the end of a licensure cycle, the Department of Business and Professional Regulation shall . . . [f]orward a notice of pending cancellation of licensure to a delinquent status licensee at the licensee's last known address of record with the department." Against this statutory backdrop, Petitioner's license was due for renewal on June 30, 1994, when her latest biennial cycle ended. Because the license was not renewed, it became delinquent under the terms of Section 455.271(5). Therefore, it was incumbent on Petitioner to seek active or inactive status before the end of the next licensure cycle, or by June 30, 1996, or have her license rendered "null" by operation of law. It is noted that Petitioner was one of approximately 2,000 licensees whose license was not renewed at the end of the June 30, 1994, licensure cycle and thus became delinquent. In January 1992 Petitioner relocated from Florida to Mississippi in order to care for her elderly mother. She continued working as a medical technologist in Mississippi. When her license came up for renewal on June 30, 1994, Petitioner had no need for an active Florida license and therefore did not renew it. She assumed, however, that she could keep it in an inactive, delinquent status for up to five years under the terms of Section 483.819, Florida Statutes (1993). Petitioner acknowledges that she became aware of the new law in general terms, but not in specifics, in June 1995. This occurred when the Board her sent a Notice to Delinquent and Inactive Licensees advising that changes in the law had been made and that "the changes affected the manner in which licensees regulated under Chapter 483, F.S., clinical laboratory personnel, may reactivate a license or request to be placed on inactive status." The notice further provided that if Petitioner "would like to receive an application to reactivate (her) license or to be placed on inactive status," she should fill out a form at the bottom of the Notice and return it to the Board. There was no mention in the Notice that Petitioner's license would become "null" by operation of law if she did not take affirmative action by June 30, 1996. In response to the Notice, on June 16, 1995, Petitioner filed the Notice and form with the Board requesting that she be sent an application to place her license in an inactive status. The Board says that the Notice described in finding of fact 8 was a part of a packet of information attached to a form letter sent to all delinquent status licensees on May 27, 1995. According to a Board representative, the form letter contained an admonition to licensees that unless they reactivated their licenses by June 30, 1996, their licenses would be null and void. However, the actual contents of the letter are not of record. This is because the letter was not identified by Respondent's counsel as an exhibit in the prehearing stipulation; it was not a part of the Board's official file pertaining to Petitioner; opposing counsel had no notice that such a letter existed or would be used as evidence at hearing; and thus it was not received in evidence. Even though the form letter was sent some thirteen months before the licensure cycle ended, the Board takes the position that it constituted the statutory notice of pending cancellation required by Section 455.273(1)(b) to be sent to each delinquent status licensee "at least 90 days before the end of the licensure cycle." Board records do not establish that Petitioner received the form letter, and she denies having received any statutory notice of pending cancellation. Approximately two thousand (out of eighteen thousand) licenses under the Board's jurisdiction became delinquent because they were not renewed by June 30, 1994. While the number that were automatically cancelled on June 30, 1996, by operation of law is not of record, only four licensees, including Petitioner, have asked that their licenses be reinstated because of cancellation. Given this unusual circumstance, it is reasonable to accept Petitioner's testimony that she did not receive a notice of cancellation as required by law. This omission by the Board, while unintentional, constituted a material error in procedure which occasioned serious prejudice to Petitioner. In addition to filing the form on June 16, 1995, Petitioner also sent a letter to the Board on June 23, 1995. The letter stated, in pertinent part, as follows: Please place my Medical Technologist Supervisor's Lic # JC 0026722 on inactive status until further notice. I am presently residing in Mississippi. Enclosed is the required fee of $25.00 plus copies of Continuing Education certificates; 39 hrs. The letter provided her most current address in Mississippi, and it contained a postscript that "[i]f an additional form is necessary please advise." By letter dated June 28, 1995, the Board acknowledged receiving Petitioner's letter and check. In the letter, a Board representative advised petitioner that her "request for inactivation of licensure . . . cannot be processed" because she had sent an incorrect fee and a formal application had to be completed. The letter indicated that an application to reactivate her license was also enclosed. Apparently in response to the June 16, 1995, request for an application form, on July 14, 1995, the Board sent Petitioner another reactivation application. Because Petitioner did not want to reactivate her license, but she only wanted to place her license in an inactive status, she did not complete the application at that time. Again, however, she assumed that her license could remain inactive for up to five years after June 30, 1994, without placing it in jeopardy. Petitioner received no further advice, oral or written, from the Board until after she filed a Reactivation Application with the Board on December 19, 1996, together with a $470.00 fee and proof of 39 hours of continuing education. She did so at that time since she had been offered a job in Florida and intended to relocate to this state. On December 20, 1996, Petitioner and the Board's administrator spoke by telephone regarding Petitioner's application. Among other things, Petitioner was told that her license was null and void by operation of law since she failed to reactivate her license by June 30, 1996. On December 27, 1996, the administrator sent Petitioner a letter in which she reconfirmed this fact, but advised that the matter would be taken up by the Board. Petitioner asked that an exception be made since she lived out-of-state and had never received notice of cancellation. The Board later denied her request. Rule 59O-7.001(2), Florida Administrative Code, prescribes the examination requirements for licensure as a supervisor. The purpose of the underlying statute is to ensure minimum competency of all persons engaging in the profession. Petitioner has satisfied this purpose by having successfully practiced in the field for some thirty years and being certified in five specialties. In addition, during the period of time in which her license was delinquent, she successfully completed all necessary continuing education courses. If the request for a variance or waiver is denied, Petitioner will suffer economic hardship since she will be unable to practice her profession in Florida until she passes an examination. More specifically, she will be unable to accept a pending job offer as a medical technologist supervisor. Unusual circumstances are present here. Of the two thousand licensees in a delinquent status after June 30, 1994, only Petitioner has contended that she failed to receive the statutory notice of cancellation. To her detriment, the license was subsequently cancelled by operation of law. The literal application of the rule requiring an examination would unintentionally penalize Petitioner's good faith efforts to reactivate her license. Because it is presumed that all other licensees in a delinquent status received notice of pending cancellation, Petitioner will be treated in a manner significantly different from the way the rule affects other similarly situated persons seeking licensure. That is to say, any other persons requesting relief from the rule because of automatic cancellation on June 30, 1996, would have been on notice that unless they renewed their license by that date, they would be subject to the terms of the rule. Petitioner had no such notice. Therefore, fairness requires an exception. Petitioner has paid all filing fees and completed all continuing education courses necessary for reactivation. If her request is ultimately denied, she is entitled to a refund of her fees.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board of Clinical Laboratory Personnel enter a final order granting Petitioner's request for a waiver or variance from Rule 59O-7.001(2), Florida Administrative Code, and reinstating her license number JC-0026722. DONE AND ENTERED this 31st day of July, 1997, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675, SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 1997. COPIES FURNISHED: Eric G. Walker, Executive Director Board of Clinical Laboratory Personnel 1940 North Monroe Street Tallahassee, Florida 32399-2200 Lynda L. Goodgame, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Michelle L. Proctor, Esquire 7637 State Road 52 Bayonet Point, Florida 34667 Edwin A. Bayo, Esquire Department of Legal Affairs The Capitol Tallahassee, Florida 32399-1050
The Issue The issue in this case is whether the allegations set forth in the Administrative Complaint filed by Petitioner, Department of Health, Board of Nursing, against Respondent, Zauher Karim, C.N.A., are correct, and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of nursing assistance, pursuant to chapters 20, 456, and 464, Florida Statutes. At all times material to the Administrative Complaint, Respondent was a certified nursing assistant (C.N.A.) in the State of Florida, having been issued Certificate No. CNA 191405. The certificate was issued on June 27, 2009. At all times material to the Administrative Complaint, Respondent did not hold any other medical licenses or certificates issued by the Florida Department of Health. On October 17, 2010, Respondent submitted a Health Care Clinic Establishment (HCCE) application to the Department of Health for Chantilly Health Research (Chantilly Health) located at 12800 Indian Rocks Road, Indian Rocks, Florida 33774. Chantilly Health was also known as Chantilly Health and Wellness. At all times material to the Administrative Complaint, the address of record listed on Respondent’s C.N.A. certificate was the same location as Chantilly Health. Respondent’s current address of record is 12199 Indian Rocks Road, Largo, Florida 33774. In his application for HCCE license, Respondent listed Dr. Dunja Boljesic as the Designated Qualifying Practitioner. Respondent signed the application as the clinic manager. Dr. Boljesic had retired and was no longer physically present at Chantilly Health at the time of the investigation giving rise to the Administrative Complaint. It is unknown whether Dr. Boljesic currently maintains any ownership or financial interest in Chantilly Health. On November 30, 2010, the Florida Department of Health, Division of Medical Quality Assurance, issued the HCCE license to Chantilly Health, License No. 604026. Chantilly Health was also licensed with the City of Largo as a “Clinic of Doctors,” a health food store, and a dietary supplement store. Respondent had three different filings with the Florida Secretary of State, Division of Corporations (Sunbiz): one for a research company, one for “vitamin,” and one for a health and nutrition clinic. On January 27, 2012, Department investigator Michael Smith approached Respondent at Chantilly Health and told him he had been diagnosed with multiple myeloma. In response to Mr. Smith’s questions regarding his feigned illness, Mr. Smith testified that Mr. Karim informed him that he could draw blood from him and utilize an independent laboratory to obtain additional information about a specific type of cancer. The laboratory testing would neither be done by Respondent nor Chantilly Health, and would cost $195. Mr. Karim denies having offered to draw blood from Mr. Smith, but testified he could draw a small sample to send to an independent laboratory for testing. Respondent had a glucose and hemoglobin meter at Chantilly Health which he used to draw small samples of blood to determine iron and glucose levels. He did not perform these tests on Mr. Smith, primarily since Mr. Smith refused to have any actual tests performed upon him by Respondent. Had he drawn blood from Mr. Smith, Respondent would not have received any direct or indirect financial benefit or remuneration from the third-party laboratory. Respondent advised Mr. Smith that multiple myeloma, a form of cancer, is related to an inflammation in the gastro- intestinal tract as well as suffering from “toxicity.” He offered to help Mr. Smith strengthen his immune system, which would have included a liver detoxification. Respondent offered to have a blood test performed, after which he would devise a holistic plan of detoxification for Mr. Smith. Mr. Smith chose not to have any of these services performed or ordered by Respondent since he was acting as an investigator and not an actual potential customer of Chantilly Health. Mr. Smith asked Respondent if he was a doctor. Respondent stated he was a doctor “in nutrition medicine and no pharmaceuticals.” He handed Mr. Smith two business cards. The cards contained the following language: Card one: Chantilly Natural Health Research, Functional Blood Nutrition & Lipid-profile, Cardio Risk APW IN-Ratio, centres of enzyme research, Functional Medicine and Orthomolecular Medicine research, Board Certified Fellow of American Association of Integrative Medicine, Board Certified Am Anti-Aging & Regenerative Med, Board Certified American Alternative Medicine, Reg/Lic: Washington, D.C., West Virginia, DC . . .; WV . . . dr. karim, www.chantillyhealth.com Card two: Chantilly Natural Health Research, Functional Blood Nutrition & Lipid-profile, Cardio Risk APW IN-Ratio, z.karim, centres of enzyme research, Functional Medicine & Orthomolecular Medicine Research, Board Certified & Fellow of American Association of Integrative Medicine, Board Certified, Am Anti-Aging & Regenerative Med, Board certified American Alternative Medicine, Reg/Lic: Washington, D.C., West Virginia, Florida . . . www.chantillyhealth.com www.chantillyhealth.us The cards also displayed a logo that read “American Association of Integrative Medicine, The Medical Society for the 21st Century,” and contained a logo of a staff with two snakes entwined, commonly known as a “caduceus.” Respondent testified he applied for all the board certifications listed on his business cards and that he provided these credentialing associations with documentation of his credentials and transcripts. None of these board certifications are related to a Florida license held by Respondent. In January 2013, Mr. Smith returned to Chantilly Health and observed a certificate on the wall with Respondent’s name and the initials “M.D.” following his name. The initials “M.D.” commonly refer to “medical doctor.” Respondent is not licensed as a medical doctor in Florida. Respondent is not licensed as a naturopathic physician in Florida. Respondent admitted to Mr. Smith that he refers to himself as a doctor on his business cards and on the internet. He says he uses the term “doctor” to mean a doctor of oriental medicine. Respondent is not licensed as an acupuncturist in Florida. Respondent admitted giving information about Vitamin E supplements to Mr. Smith. Respondent admitted having a glucose meter and a hemoglobin meter at Chantilly Health. Respondent admitted performing blood glucose level screenings at Chantilly Health. Respondent testified that he performed hemoglobin tests at Chantilly Health to look at hematocrit iron levels and cholesterol levels. Respondent testified that he advised individuals on whom he performed blood glucose level screenings to “cut down” on their sugar intake. Respondent admitted telling individuals on whom he performed hemoglobin tests to increase their liver intake by once a week. Respondent admitted he should not use the term “doctor” in Florida. Respondent testified that he had never been licensed as a medical doctor in any state. Petitioner submitted into evidence in lieu of live testimony, the deposition transcript of Victor Mendez, C.N.A., who is accepted as an expert in nursing assistance based upon his credentials and experience. He testified as to the standard of care and scope of practice for C.N.A.s. A C.N.A. is restricted to working under the direct supervision of a licensed practical nurse or registered nurse. The job of a C.N.A. is to observe and assist patients. A C.N.A. is not permitted to prescribe any type of supplement or medication when performing his or her duties. A C.N.A. is not permitted to recommend vitamins or supplements even if they are available without a prescription, and may not recommend changes in dietary intake. According to Mr. Mendez, C.N.A.s are not permitted to run diagnostic tests, diagnose patients, evaluate diagnoses, or recommend treatments. Mr. Mendez observed that Chantilly Health was set up much like a medical office with a seating or waiting area, the credentials displayed, Respondent’s attire (personalized surgical scrubs), and the products displayed. Mr. Mendez noted that the type of surgical scrubs worn by Respondent were more akin to those worn by physicians in a health care setting than those worn by non-medical health care staff. Mr. Mendez opined that Respondent telling Mr. Smith he was suffering from “leaky gut” was a diagnosis of an individual’s condition which is clearly outside the scope of practice of a C.N.A. Likewise, Respondent’s offer both to conduct blood tests and create a treatment plan was outside the scope of a C.N.A.’s license. Petitioner also presented the expert testimony of Philip N. Styne, M.D., through a transcript of his deposition taken in lieu of live testimony at the final hearing. Dr. Styne was presented as an expert in the fields of internal medicine and gastroenterology. Dr. Styne has been licensed as a medical doctor in Florida since 1979, and is board certified in internal medicine and gastroenterology. He is also the medical director of Digestive Health Clinical Informatics and Liver Services for Florida Hospital. Based upon Dr. Styne’s credentials and experience, the undersigned accepts him as an expert for purpose of offering opinion testimony in this matter. Dr. Styne provided a description of what characterizes multiple myeloma, the disease feigned by Mr. Smith during his investigation of Respondent. Dr. Styne testified that multiple myeloma is treated by chemotherapy, an allogeneic or autologous blood or bone marrow transplant, or a combination of these. Detoxifying the liver is not an accepted form of medical treatment in his opinion. If a patient presented himself to Dr. Styne suffering from multiple myeloma, he would seek a referral to a board-certified oncologist, an internist who specializes in the treatment of cancer. He would make the referral since multiple myeloma is not particular to his specialty, and because it is usually a lethal disease. On December 30, 2013, Respondent submitted a copy of John Daidone’s registered nursing license to Petitioner along with his request for a hearing before the Board of Nursing. Respondent wrote on the copy of the license that Mr. Daidone had supervised him since February 2003. Respondent has only held a C.N.A. license since June 26, 2009. Mr. Daidone testified on behalf of Petitioner at the hearing. He has been licensed as a registered nurse in Florida since around 1990. After presenting a detailed description of his work experience, Mr. Daidone testified he had never supervised Respondent. Mr. Daidone was originally referred to Respondent when he needed a blood test performed. Respondent pricked Mr. Daidone’s finger to draw blood which he examined under a microscope. Respondent advised Mr. Daidone that he was suffering from mycoplasma pneumonia and gave him some supplements to treat his condition. Mycoplasma pneumonia is an infection of the lungs caused by bacteria of a similar name. Respondent gave Mr. Daidone a signed document stating he had the disease and signing it “Z. Karim, N.D.” The abbreviation N.D. stands for naturopathic doctor. Respondent also attached a Chantilly Health business card to the document listing him as an M.D. Mr. Daidone last spoke with Respondent about two months prior to the final hearing, at which time Respondent asked him to say he had supervised Respondent. When testifying, Respondent claimed that Mr. Daidone had signed Respondent’s name on the document with the initials “M.D.” after it. Respondent stated he may have signed a blank piece of paper that Mr. Daidone completed at a later time. Respondent further testified that Mr. Daidone must have picked up a business card from Chantilly Health and photocopied it to the document he created at a later time. Respondent admitted he kept his business cards in the lobby of Chantilly Health in an area accessible to the public. Mr. Daidone could not recall whether he or Respondent typed the letter, or whether it was his handwriting or that of another person appearing on the letter. Mr. Daidone candidly admitted he has problems with his recall and memory. In January 2013, Respondent was issued a Uniform Unlicensed Activity Citation by the Florida Department of Health for practicing medicine in violation of chapters 456 and 458, Florida Statutes. Respondent entered into a Settlement Agreement in that matter in which he neither admitted nor denied the facts alleged in the citation, and paid $4,754.11 (representing a fine of $1,000.00 and costs of $3,754.11) to resolve the citation. Respondent also agreed not to violate any provision of chapter 456 or any Florida statute or rule related to the practice of any health care profession.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Nursing enter a final order: Adopting the Findings of Fact and Conclusions of Law; Finding that Respondent violated section 464.204(1)(b), Florida Statutes, by intentionally violating section 456.072(1)(o) and (m), Florida Statutes, as alleged in the Administrative Complaint; and Revoking Respondent’s certificate to practice as a certified nursing assistant. DONE AND ENTERED this 5th day of December, 2014, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of December, 2014. COPIES FURNISHED: Thomas W. Caufman, Esquire David M. Greene, Esquire Quintairos, Prieto, Wood and Boyer, P.A. 4905 West Laurel Street, Suite 200 Tampa, Florida 33607 (eServed) Yolonda Y. Green, Esquire Ana M. Gargollo-McDonald, Esquire Lauren A. Leikam, Esquire Prosecution Services Unit Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 (eServed) Joe Baker, Jr., Executive Director Board of Nursing Department of Health 4052 Bald Cypress Way, Bin C-02 Tallahassee, Florida 32399 (eServed) Jennifer A. Tschetter, General Counsel Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701 (eServed) Lavigna A. Kirkpatrick, BS, RN, Chair Board of Nursing Department of Health 4052 Bald Cypress Way, Bin C-02 Tallahassee, Florida 32399
The Issue May the Department of Children and Family Services properly terminate Respondent as a Medicaid provider pursuant to its letters of March 6, 1996, and the same letter bearing the date, April 12, 1996? If the Department's termination was unlawful, may Respondent be awarded reinstatement and back "wages?" If the Department's termination was unlawful, may Respondent be awarded attorney's fees?
Findings Of Fact The Motion to Dismiss On March 6, 1996, the Agency served a termination letter upon Respondent Charest. Because that letter was not sent certified mail, the same letter was re-dated April 12, 1996, and served by certified mail. Respondent Charest timely requested formal hearing, pursuant to Chapter 120, Florida Statutes, but there was no request that a formal hearing be conducted within 90 days pursuant to Section 409.335, Florida Statutes. The Preliminary Statement, above, sets out the procedural history of this case before the Division of Administrative Hearings and is incorporated here by reference. The 1996 termination letter(s) provided, in pertinent part, as follows: This letter is to notify you of your termination as a Medicaid provider for a term of three (3) years. This termination also applies to your company, Family Choice Support Services. Since you were suspended effective May 1, 1995, the suspension of three years will run from that date, making you eligible to reapply for certification as of May 1, 1998. This termination is pursuant to §409.913(9)(b), Florida Statutes. Termination is authorized by the fact that you have violated the provisions of §409.13(8) by: Failing to provide Medicaid-related records on a timely basis as required under §409.913(8)(g). Failing to abide by the requirements of state law as required by §409.913(8)(h), in that you violated §409.919(2)(e) by offering Jackie Fagan compensation in return for referring clients to you. Also by submitting false or misleading information in connection with your application to qualify as a support coordinator eligible for Medicaid reimbursement in violation of §409.919(2)(g). Submitting applications and requests for reimbursement containing materially false or incorrect information in violation of §409.913(8)(j) and (k). (emphasis supplied) Paragraph 3 of the termination letters, alleging that Respondent had submitted requests for reimbursement containing materially false or incorrect information in violation of Section 409.913(8)(j) and (k), was orally dismissed by the Agency at the commencement of formal hearing. Respondent Charest previously had requested formal hearing in DOAH Case No. 95-3469. Charges in that case arose from April 24, 1995, and May 23, 1995, suspension letters similar to the March 6, 1996, and April 12, 1996, termination letters in the instant case. At the commencement of that formal hearing, Mr. Charest had moved to dismiss DOAH Case No. 95-3469 because the administrative complaint (the 1995 suspension letters) were based on an unadopted Agency rule. The DOAH Hearing Officer entered a December 15, 1995, Recommended Order which recommended that the Agency grant the Motion to Dismiss. The August 7, 1996, Agency Final Order read, in pertinent part, The department's certification termination letter cites only violation of certain unadopted rules. No other authority . . . is provided . . . . I must, therefore, concur . . . that the termination letter is facially deficient. Accordingly, it is ORDERED that the administrative action against petitioner's provider certification is dismissed. (emphasis supplied) At formal hearing in the instant case, Respondent moved to dismiss the 1996 termination letters. In part, he asserted that the formal hearing of June 11, 1997, was not timely, pursuant to Section 409.335, Florida Statutes.4 Respondent further asserted that the 1996 termination letters were vague because, pursuant to Section 409.913(9)(a), a suspension cannot be for more than one year, and the current charging documents were insufficient to advise him if he were subject to suspension or termination.5 The remaining thrust of Respondent's oral Motion to Dismiss was that due process had not been afforded to him because he had been given inadequate notice of the charges in the March 6, 1996, and April 12, 1996, termination letters because Sections 409.13(8), 409.919(2)(e), and 409.919(2)(g) do not exist. The Agency conceded that its citation to Section 409.13(8) in the second sentence of the 1996 termination letters was in error because the correct citation should have been to Section 409.913(8) Florida Statutes. The Agency also conceded that the termination letters' citation to Section 409.919(2)(e) and 409.919(2)(g) also should have been to 409.920(2)(e) and 409.920(2)(g), respectively. The undersigned orally denied Respondent's motion to dismiss and specifically found that there was clear and adequate pleading within the 1996 termination letters at least as to the statutory citations within numbered paragraphs 1 (Section 409.913(8)(g), Florida Statutes) and numbered paragraph 2 (Section 409.913(8)(h), Florida Statutes), and that under the circumstances of this case, the letter as a whole otherwise gave adequate notice of the charges Respondent would be called upon to defend against. However, the parties were also instructed that the issue of the statutory discrepancy in the 1996 termination letters could be re-visited in the parties' post-hearing proposals. The Merits Respondent began working as a Medicaid provider and support coordinator during February 1993. On June 20, 1993, Respondent signed a Florida Medicaid Provider Enrollment Application for certification as a Medicaid provider and was certified. On this application, Respondent answered "yes" to the question, "Have you or any principal owner in your business ever been convicted of a crime, plead nolo contendere to a crime or entered into a pretrial intervention program?" Respondent was certified, despite his affirmative answer, which related to a pre-1993 assault charge based on a dispute with a neighbor. No further Agency action ensued. Annual re-applications and re-certifications of provider status were anticipated, but due to creation of the Agency's new Geographic Service District 13, in order to comply with increased screening by the abuse-prevention registry, and because of missing paperwork for 1994, the Agency asked Respondent to apply for re-certification in December 1994. On December 13, 1994, Respondent signed a new Florida Medicaid Provider Enrollment Application for recertification. At that time, he answered "No," to the question, "Have you or any principal owner in your business ever been convicted of a crime, plead nolo contendere to a crime or entered into a pre-trial intervention program?" The Agency did not pursue the discrepancy between Respondent's June 20, 1993, and December 13, 1994, applications. However, a 1995 "screening," pursuant to Chapter 415, Florida Statutes, alerted Agency Medicaid personnel to the problem. When requested, Respondent provided the Agency with a 1993 "Disposition of Charges" on a domestic violence charge against him. That document is not in evidence, but apparently, it did not show that any pre-trial intervention had taken place and suggested that the case was dismissed. The Agency did not pursue the matter. At formal hearing, official recognition was taken of an "Announcement Of No Information" entered December 8, 1993, in State of Florida v. Charest, Marion County Court Case No. 93- 9765MM. Therein, the State Attorney in and for Marion County announced that the case would not be prosecuted on the basis that the defendant, (the Respondent herein) participated in, and successfully completed the Salvation Army Probation Pre-Trial Intervention Deferred Prosecution Domestic Violence Program. Respondent maintained that he had never received a copy of the Announcement of No Information and that no one had adequately informed him that the December 1993 domestic violence charges against him were not simply dismissed. However, he also admitted that he had been required to go to at least one session of counseling as a result of a 1993 domestic violence case and that this had occurred since he had filled out his original June 20, 1993, application. Considering Respondent's testimony concerning his work experience with the Department of Corrections and his 20 years as a mental health counselor, the undersigned does not find credible Respondent's protestations that he did not know that he had been involved in December 1993 in a pre-trial intervention program for domestic violence. Therefore, it is found that Respondent knowingly submitted false or misleading information on an application to the Medicaid Program for the purpose of being accepted as a Medicaid provider. Due to the vulnerability of the mentally challenged clients served by support coordinators, a charge of domestic violence and entry into a pre-trial intervention program are material to Respondent's fitness as a provider of services for the Agency's clients and should have been disclosed. Support plans are necessary to determine what services are appropriately reimbursable by Medicaid. The Agency experienced an ongoing problem in that most of its providers filed their "support plans" late, pursuant to Section 409.313(8)(g), Florida Statutes. Respondent's company submitted untimely reports in a greater degree than any other similar provider. Respondent was only one of two principals in his company. The Agency requested a Corrective Action Plan from Respondent, due April 1, 1994. Respondent's company continued to have chronically late plans after April 1, 1994. Respondent was cautioned on several occasions about the importance of timely submission of support plans, more particularly in a January 31, 1995, letter. Despite Respondent's hiring someone to assist him, five of eight reports attributable to him were still late just prior to his termination. Jackie Fagan is a staff member of the Key Learning Center operated by the Citrus County Association for Retarded Citizens. She was employed in that capacity in 1994 and 1995. Over several months in the latter part of 1994, Respondent negotiated with Ms. Fagan, trying to hire her for his company as a support coordinator. Ultimately, Respondent's increased salary offers did not entice Ms. Fagan to leave her 20- year employment with Key Learning Center. Part of the negotiations seem to have included Respondent's offer of a "bounty" to Ms. Fagan for each client who transferred to Respondent's company, when and if Ms. Fagan changed employments. There is no concensus on whether this would have been ethical. Even after she finally turned down Respondent, Ms. Fagan also understood Respondent to be offering her a bounty for any client she was able to sway to change to his company. Ms. Fagan clearly remembered that Respondent told her he would have to pay her off the premises of Key Training Center for this type of service. Susan Jaynes, who was Ms. Fagan's secretary, overheard Respondent say that if Ms. Fagan recommended clients to him, he "would make it worth her while." Originally, the Agency had required Respondent to bill Medicaid in quarter-hour increments, but at the time of Respondent's "bounty" conversations with Ms. Fagan after she had turned down his offer of employment, Medicaid paid support coordinators $147.00 per month for each client signed up with the support coordinator. Each support coordinator would have 30 to 35 clients at any one time. There was not a complete overlap of services between the type of services provided by Key Learning Center and Family Choice Support Services. However, where there was an overlap, the effect of Ms. Fagan proselytizing for Respondent would have been to persuade vulnerable mentally challenged clients and/or their supportive family members to change support coordinators for purely economic gain to Ms. Fagan and Respondent. It was contrary to Key Learning Center's ethical policy. Ms. Fagan also considered this type of persuasion ethically wrong. She reported it. Respondent established that if Key Learning Center employees simply handed out his advertising flyers, there would be no legal or ethical offense, although it was also shown that it was more common for him to mail his flyers directly to potential clients living in family homes. Respondent testified, without refutation or corroboration, that upon learning of his attempts to hire Ms. Fagan, the director of Key Learning Center had not permitted him to come on its premises to pick up and deliver mutual clients and had threatened Respondent that if he hired Ms. Fagan away, the director would see that Respondent lost all his own clients. Assuming, but not finding, that such a threat was actually made, it was never demonstrated that the director of Key Learning Center could carry out this alleged threat or that he ever approached or influenced the Agency to file charges against Respondent. The Agency suspended Respondent's certification on May 1, 1995, and the prosecution of DOAH Case No. 95-3469 then took the route described above in Finding of Fact 6. The Agency never restored Respondent's certification pending resolution of Respondent's first request for formal hearing in DOAH Case No. 95-3469. Respondent has been effectively decertified since May 1, 1995. He has been unable to draw on Medicaid funds pursuant to his certification since May 1, 1995. The 1996 termination letters in the instant case preceded exhaustion of any one year suspension under the 1995 suspension letters and also preceded the August 7, 1996, Final Order in the prior case. Even if de-certification had been frozen pending Section 120.57(1) proceedings, any certification existing on May 1, 1995, would have expired at the latest one year from its grant, pursuant to Respondent's December 13, 1994 application.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Children and Family Services enter a Final Order ratifying its termination of Respondent's certification as a Medicaid individual support coordinator provider, retroactive to May 1, 1995. DONE AND ENTERED this 30th day of September, 1997, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 1997.
