Conclusions THIS CAUSE came on for consideration before the Agency for Health Care Administration, which finds and concludes as follows: 1. The Agency issued the above-named Respondent the attached Administrative Complaint. (Ex. 1) 2. The Respondent requested an administrative hearing, but subsequently withdrew the request for hearing. (Ex. 2) Based upon the foregoing, it is ORDERED: 3. The findings of fact and conclusions of law set forth in the Administrative Complaint are adopted and incorporated by reference into this Final Order. 4. The Respondent’s license is REVOKED. 5. 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. 6. In accordance with Florida law, the Respondent is responsible for any refunds that may have to be made to the clients. 7. 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. Filed December 17, 2013 10:36 AM Division of Adnhinistrative Hearings ORDERED at Tallahassee, Florida, on this le day of Meeenher. 2013. Elizabeth Dudek, Secretary Agency for Heglth 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 copy of the foregs cing was furnished to the the peso named. below by electronic mail or the method designated on this {2 ay of > 2013. Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Shaddrick Haston Facilities Intake Unit Assisted Living Unit Manager 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) Donah Heiberg, Field Office Manager Local Field Office Agency for Health Care Administration (Electronic Mail) Shawn McCauley Medicaid Contract Management Agency for Health Care Administration (Electronic Mail) Sharon Jones, Assistant General Counsel Office of the General Counsel Agency for Health Care Administration (Electronic Mail) Thomas J. Walsh IJ, Esquire Clay B. Adkinson, Esquire Presiding Officer Adkinson Law Firm Agency for Health Care Administration Post Office Box 1207 (Electronic Mail) DeFuniak Springs, FL 32435 ee ee (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. 3 (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.
Findings Of Fact Based on all of the evidence, the following findings of fact are determined. At all times relevant hereto, respondent, Eileen F. Rowan, was a licensed respiratory therapist having been issued license number RT 0001346 by petitioner, Department of Professional Regulation, Board of Medicine (Board). She has been licensed by the Board since September 1987 and has been a practicing member of the profession since 1981. When the events herein occurred, respondent was using her license in the State of Florida. She now resides in Gilbertville, Pennsylvania. On July 17, 1990, respondent plead nolo contendere to the charges of unlawfully purchasing a controlled substance, crack cocaine, and possession of drug paraphernalia. Based upon those charges, on February 12, 1991, the Board suspended her license until such time as she established her ability to practice respiratory care with skill and safety. In March 1991, respondent agreed to participate in a recovery program sponsored by the Physicians Recovery Network (PRN), a program for impaired health care professionals. Her physician monitor was Dr. Kenneth W. Thompson, the clinical director of an addictive disease unit at Charter Springs Hospital in Ocala, Florida. She also executed an advocacy contract with PRN wherein she agreed to participate in a twelve-step recovery program, including attending various meetings and submitting to random drug testing. Based on a recommendation by Dr. Thompson in September 1991 that respondent had made "dramatic progress" while participating in the rehabilitation plan, the Board reinstated respondent's license and concurrently placed it on five years' probation with PRN involvement and the implementation of a practice plan. The probation order provided that "respondent shall not consume, inject, or ingest any controlled substances unless prescribed or administered by another practictioner authorized by law to prescribe or dispense controlled substances." The order also provided that respondent "attend AA or NA meetings on a frequency of at least one meeting per week" and "attend Cadeucus meetings on a frequency of not less than one meeting per week." This action was formalized in a Board order entered on October 19, 1991. Shortly thereafter, respondent began employment as a respiratory therapist with Citrus Memorial Hospital (hospital) in Inverness, Florida. Under the terms of her employment, she was required to submit to random drug screening. On March 12, 1992, Dr. Thompson reported to PRN that respondent had been taking prescribed narcotics due to surgery on her hand and had missed several scheduled meetings. He accordingly recommended a PRN reevaluation. A few weeks later, respondent executed an updated PRN advocacy contract containing essentially the same conditions and requirements as were in the original contract. On May 13, 1992, and in compliance with her employment agreement, respondent provided two urinalysis samples for testing. One was collected by her employer, placed in a tamper-evident bag and sent to SmithKline Beecham Clinical Laboratories in Tampa, Florida, for testing. Using a 50 nanogram per milliliter cutoff level, the urine sample tested positive for the presence of marijuana. A subsequent confirmatory test on the same sample yielded positive results for the presence of marijuana. The second urine sample was tested by Doctors & Physicians Laboratory in Leesburg, Florida, and used a higher cutoff level of 100 nanograms per milliliter. It tested negative. Even so, because the first sample tested positive, respondent was dismissed from her position with the hospital. This positive finding also constituted a violation of a condition of the Board's order of October 19, 1991, regarding the prohibition against consumption of controlled substances. Except for the one positive result on May 13, 1992, however, there is no evidence that respondent tested positive on any of the other numerous drug screens during her probationary period. Respondent has challenged the results of the first sample on the grounds the testing may have been in error and an appeals referee for the Florida Department of Labor and Employment Security accepted that argument in favorably ruling on her unemployment compensation claim. However, that ruling is not binding here, and testimony by Dr. Amos for the testing laboratory established the validity and reliability of the test results. On May 20, 1992, respondent telephoned Dr. Thompson and advised him that she had been terminated from her position at the hospital because she had tested positive for marijuana on a drug screen. Although later denied by respondent, she also admitted to him at that time that she had "occasionally" been using marijuana. Armed with this information, the Board suspended respondent's license on an emergency basis on June 8, 1992, pending the outcome of this proceeding. Expert testimony by Dr. Thompson and Dr. Roger A. Goetz established that as of May 1992, respondent was suffering from chemical dependency and required treatment for that addiction. Therefore, it may be inferred from the evidence that respondent is unable to practice respiratory therapy with reasonable skill and safety to patients by reason of her use of chemicals. There is no evidence of record that respondent's one-time confirmed use of marijuana during the spring of 1992 caused any danger to the public or injury to a patient. Except for the disciplinary order entered in 1991, there has been no other disciplinary action against her license since 1987. Also, there are no complaints from former employers or patients regarding her quality of work during the last eleven years. At the same time, it should be noted that respondent depends upon her license for her livelihood. Indeed, since the emergency suspension of her license, respondent has been unable to secure meaningful work in Florida or Pennsylvania. She now desires to return to Florida and resume her profession. Finally, respondent states that she is now "clean" of drugs and in essense wants a second chance.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board enter a Final Order finding respondent in violation of Subsections 468.365(1)(i) and (x), Florida Statutes, and that her existing probation terms and conditions be extended for an additional year. Subject to such terms and conditions as the Board may deem appropriate, the emergency suspension of respondent's license should be lifted and she be allowed to resume her profession. DONE AND ENTERED this 21st day of October, 1992, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of October, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-4897 Petitioner: 1. Partially accepted in finding of fact 1. 2-3. Partially accepted in finding of fact 2. 4. Partially accepted in finding of fact 3. 5-9. Partially accepted in finding of fact 4. 10. Rejected as being unnecessary. 11-12. Partially accepted in finding of fact 5. 13. Rejected as being unnecessary. 14-16. Partially accepted in finding of fact 6. 17-20. Partially accepted in finding of fact 7. 21. Partially accepted in finding of fact 8. 22-23. Rejected as being unnecessary. 24. Partially accepted in finding of fact 8. 25-35. Partially accepted in finding of fact 7. 36. Partially accepted in finding of fact 8. 37-38. Partially accepted in finding of fact 9. Note - Where a proposed finding of fact has been partially accepted, the remainder has been rejected as being unnecessary, irrelevant, subordinate, or not supported by the more persuasive evidence. COPIES FURNISHED: Dorothy J. Faircloth Executive Director Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0770 Jack L. McRay, Esquire 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Randolph P. Collette, Esquire 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Ms. Eileen F. Rowan 2821 Leidy Road Gilbertville, Pennsylvania 19525
Conclusions Having reviewed the Administrative Complaints and the Notice of Intent to Deny, 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 Provider, Ana Home Care, Inc., pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Administrative Complaints and Election of Rights forms to the Provider. (Ex. 1-A; Ex. 1-B; 1-C; Ex. 1-D; and Ex. 1-E). The Agency issued the attached Notice of Intent to Deny and Election of Rights form (Ex. 1-F). The Election of Rights forms 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: 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 assisted living facility license of Ana Home Care, Inc. is REVOKED. All residents shall be removed within 30 days from the entry of this Final Order. In accordance with Florida law, the Provider is responsible for retaining and appropriately distributing all client records within the timeframes prescribed in the authorizing statutes and applicable administrative code provisions. The Provider is advised of Section 408.810, Florida Statutes. In accordance with Florida law, the Provider is responsible for any refunds that may have to be made to the clients. 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. 3. An administrative fine and survey fee in the total amount of $88,000.00 is imposed against the Provider, Ana Home Care, Inc., but the collection of the fine is STAYED unless the Provider applies for an assisted living facility license at which time the $88,000.00 will become due and owing. ORDERED at Tallahassee, Florida, on this _/ A day of Jane ‘i — , 2012.
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 sob of this Final Order was served on the below-named persons by the method designated on this_/7 “day of (eat Wa , 2012. Richard Shoop, Agency Cler Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Lourdes A. Naranjo, Senior Attorney Facilities Intake Unit Office of the General Counsel (Electronic Mail) Agency for Health Care Administration (Electronic Mail) Finance & Accounting Shaddrick Haston, Unit Manager | Revenue Management Unit Assisted Living Unit (Electronic Mail) Agency for Health Care Administration (Electronic Mail) Katrina Derico-Harris Arlene Mayo Davis, Field Office Manager Medicaid Accounts Receivable Areas 9, 10 and 11 Agency for Health Care Administration Agency for Health Care Administration (Electronic Mail) (Electronic Mail) Shawn McCauley Lawrence E. Besser, Esquire Medicaid Contract Management Samek & Besser Agency for Health Care Administration 1200 Brickell Avenue - Suite 1950 (Electronic Mail) Miami, Florida 33131 (U.S. Mail) John D. C. Newton, IT Administrative Law Judge Division of Administrative Hearings (Electronic 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.
