Conclusions Having reviewed the Administrative Complaint, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency has jurisdiction over the above-named Respondent pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Administrative Complaint and Election of Rights form to the Respondent. (Ex. 1) The Election of Rights form advised of the right to an administrative hearing. 3. The parties have since entered into the attached Settlement Agreement. (Ex. 2) Based upon the foregoing, it is ORDERED: 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 Respondent shall pay the Agency $1,000.00 in administrative fines. If full payment has been made, the cancelled check acts as receipt of payment and no further payment is required. If full payment has not been made, payment is due within 30 days of the Final Order. Overdue amounts are subject to statutory interest and may be referred to collections. A check made payable to the “Agency for Health Care Administration” and containing the AHCA ten-digit case number should be sent to: Office of Finance and Accounting Revenue Management Unit Agency for Health Care Administration 2727 Mahan Drive, MS 14 Tallahassee, Florida 32308 1 Filed September 17, 2012 12:02 PM Division of Administrative Hearings 3. Conditional licensure status is imposed on the Respondent beginning on March 9, 2012, and ending on March 20, 2012. ORDERED at Tallahassee, Florida, on this wi 3 day id often Z , 2012. } i ViDenr fe , EA fing Elizabeth Dudek, Secretary Agency for Health Care Administration
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I CERTIFY that a true and correct, jy ot this Final Order was served on the below-named persons by the method designated on this / ay of , 2012. OOP; A Fe Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Finance & Accounting Facilities Intake Unit Revenue Management Unit (Electronic Mail) (Electronic Mail) Thomas J. Walsh II Anna Small, Esq. Office of the General Counsel Allen Dell Agency for Health Care Administration Counsel for Respondent (Electronic Mail) 202 South Rome Avenue, Suite 100 Tampa, Florida 33606 (U.S. Mail) Lingle F. Bogan Administrative Law Judge Division of Administrative Hearings (Electronic Mail)
The Issue The issue in this case is whether petitioner's application for certification as an independent support coordinator should be approved.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this proceeding, petitioner, John Mark McClanahan, challenges a decision by respondent, Department of Health and Rehabilitative Services (HRS), which denies his request for certification as an independent support coordinator. If his request is approved, petitioner would be authorized to work with eligible developmentally disabled persons who are at risk of institutionalization and assist those persons in obtaining services that are needed to avoid institutionalization. These services are a part of the Home and Community-Based Waiver Services of the Medicaid program. The program is more commonly known as the Medicaid-Waiver program since HRS was required to obtain a waiver from the federal government in order to provide these services. Prior to 1995, organizations could be certified by HRS as independent support coordinators and employ qualified individuals under their certification without those employees having to be certified. Pursuant to recent changes in the federal law, however, which HRS must observe, individuals must now obtain certifications and can no longer work under the umbrella of their employer's certification. A certification is valid for a one year period, and it must be renewed by the holder each year thereafter. In order to receive federal Medicaid funds for services provided by support coordinators, HRS was required to submit a plan to the federal Health Care Financing Administration (HCFA) for its approval. Under the plan, HRS is required to ensure that all providers of support coordinator services meet certain federal "assurances." One such assurance requires that the health and welfare of the recipients of those services will be protected. A failure to adhere to such assurances may jeopardize HRS's right to federal funding. It can be reasonably inferred from the evidence that petitioner is aware of these requirements. Beginning in March 1994, petitioner was employed as an independent support coordinator by Independent Choice Management, Inc. (ICM), a Fort Walton Beach, Florida firm that has held a certification since 1993. Its president is Margo Keeler. In that position, petitioner worked out of his Tallahassee home and provided support coordinator services to approximately thirty-four developmentally disabled clients. As a result of an HRS audit of petitioner's records, and what Keeler perceived to be noted deficiencies in petitioner's performance, petitioner was terminated from his position with ICM effective August 24, 1995. In September 1995, he initiated this proceeding by seeking a certification in his own name. After reviewing petitioner's application, HRS determined that the application should be denied. Its reasons are found in a letter to petitioner dated January 3, 1996, which reads as follows: In response to your letter which we received on December 22, 1995, and in accordance with our letter to you dated November 28, 1995, the decision not to certify you were (sic) based on the following: Your inadequate performance as a support coordinator which necessitated your termination by your previous employer; Monitoring done by this department which reflected numerous non-compliance of standards; Complaints from consumer and providers of other services. The factors noted above would also prevent us from approving certification in other areas of the Developmental Services Home and Community Based Waiver. When a new support coordinator or entity begins working with HRS clients, HRS normally "monitors" that person or entity within the first ninety days. Such a review was made of ICM within the first three months after it was certified. In addition, a monitoring or recertification process of all certified coordinators (and its individual employees) is conducted by HRS each year. This process involves a review of client files, whose main ingredient is a support plan, which details the services to be provided the client. An integral part of the support plan is the cost plan, which contains a budget allocated to each client for the purpose of needed services. HRS undertook an annual recertification audit of ICM's files in early May 1995. As a part of that audit, it also reviewed a random sampling of petitioner's client files. Of the four client files initially examined from petitioner's case load, all had incomplete support plans, that is, they were not completed by the due date. By law, such plans must be completed within 365 days from the date the last plan was completed. Since this was a "major" issue as far as HRS was concerned, it proceeded to review all of petitioner's files. During the more comprehensive audit, HRS discovered that around twenty- five out of thirty-four support plans maintained by petitioner had not been completed on a timely basis. Although petitioner took the position that a support plan for a particular month could be completed by the last day of the month and still be considered timely, this view was contrary to ICM instructions and HRS policy. Also, the audit revealed that out of twelve cost plans missing from ICM's central records, ten were from petitioner's files. Thus, it is fair to say that the majority of problems related to petitioner's client files. A follow-up audit of petitioner's files was conducted by HRS on August 10, 1995, to resolve the issues raised in the earlier audit. Although HRS found the support plans to be current, several cost plans had not been submitted to HRS, and several files had no case notes since April 1995. Case notes should be completed by the end of each month. Besides the above noted deficiencies, HRS also received a complaint from a parent of one of petitioner's clients. The substance of the complaint is hearsay in nature, and thus no findings have been made with respect to its substance. The receipt of the complaint, however, was one more factor in HRS's decision not to certify petitioner. At hearing, petitioner contended that he had difficulty in obtaining information from Keeler regarding how to maintain and complete certain forms. The evidence shows, however, that before beginning his duties with ICM, petitioner was given training in all aspects of recordkeeping. More specifically, he received at least four training sessions in April 1994. He also received at least one refresher course later that year. Besides his training courses, petitioner received a number of memoranda from Keeler throughout the year regarding recordkeeping requirements. For example, on November 30, 1994, Keeler advised petitioner by memorandum of the "importance of completing ISP's (individual support plans) on or before their due date," that "overdue ISP's will no longer be tolerated," and that they must be "completed in a timely manner." Memoranda of similar import were sent by Keeler to petitioner on September 27 and December 4, 1994, and July 10, 1995. Finally, according to Keeler, the two regularly discussed the subject of recordkeeping by telephone. Petitioner disputes the number of times he allegedly spoke with Keeler by telephone, but it is fair to infer that he had sufficient training and backup support to properly maintain his files, and that Keeler was available by telephone to answer any questions he might have. Petitioner further contended that HRS "pressured" Keeler into terminating his services with ICM. In this regard, Keeler was never told by HRS that she must terminate petitioner, but she acknowledges that HRS "alluded" to the fact that it would be "in her best interest" if petitioner was terminated. The real motivation in terminating petitioner, however, was because of the numerous deficiencies found in the audit, most of which were those of petitioner. Because of this, Keeler firmly believed that ICM's certification would be "in jeopardy" if petitioner remained as an employee. Petitioner further contends that certain HRS employees, and especially a management review specialist who conducted the audits and reviewed his application, were biased in some measure against him. However, the evidence does not support this contention. On this issue, the record shows that of some thirty certified support coordinators within HRS District II during the time period when petitioner was employed, at least four were decertified by HRS for deficiencies and a number of others declined to seek renewal of their certifications for various reasons. As to recordkeeping, petitioner conceded that paperwork was his "weak" point, but he contended that HRS should have monitored him more frequently, such as every two months, so that it could provide a continuing source of constructive advice, and give him more opportunity during the year to correct any noted deficiencies. While more audits might have been desirable, due to a lack of resources, and no statutory or rule mandate to perform audits more frequently than it does, HRS satisfied its audit responsibility by twice monitoring ICM in 1995. In summary, the greater weight of evidence supports a finding that, due to performance deficiencies, petitioner was terminated as a support coordinator by his previous employer, ICM, and an audit of his clients' files reflected "numerous (incidents of) non-compliance (with federally mandated) standards." Since a complete and accurate central record is essential to the health and welfare of the clients, a failure by petitioner to maintain the same adversely affects HRS's ability to ensure that the health and welfare of the recipients of program services will be protected. There is, however, insufficient competent evidence to support the charge that his conduct with clients endangered their health and welfare. Given these findings, the application should be denied.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Health and Rehabilitative Services enter a final order denying petitioner's application for certification as an independent support coordinator. DONE AND ENTERED this 18th day of October, 1996, in Tallahassee, Florida. DONALD R. ALEXANDER 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 18th day of October, 1996. COPIES FURNISHED: Gregory D. Venz, Agency Clerk Department of Health and Rehabilitative Services 1317 Winewood Boulevard, Room 204-X Tallahassee, Florida 32399-0700 John Mark McClanahan 2117 Queenswood Drive Tallahassee, Florida 32303 Richard E. Doran, Esquire Department of Health and Rehabilitative Services 1317 Winewood Boulevard, Room 204 Tallahassee, Florida 32399-0700 Tommy E. Roberts, Jr., Esquire Post Office Box 15884 Tallahassee, Florida 32317
Findings Of Fact Petitioner, The Hope Center, Inc. (Hope Center), is a nonprofit corporation which operates a retardation facility at 666 S.W. 4th Street, Miami, Florida. At all times relevant hereto, petitioner was a participant in the Developmental Services Program (Program) administered by respondent, Department of Health and Rehabilitative Services (HRS). Under this Program, Hope Center provided a full array of living and therapeutic services to HRS retarded clients, including long term residential care services (LTRC) pursuant to a contract executed by Hope Center and HRS. The contract specifies a rate of reimbursement for all services provided by Hope Center. Under the above agreements Hope Center is reimbursed a monthly rate per client for LTRC services provided to retarded clients at its facility. To claim reimbursement, Hope Center must submit a monthly invoice to HRS on HRS Form 3029. It did so during the two fiscal years ended September 30, 1983, and was reimbursed for the amounts reflected on the forms. In 1984, HRS performed an audit of Hope Center's records. This ultimately resulted in the issuance of an audit report on October 17, 1984. The report found that Hope Center had collected fees from its HRS clients for services already paid for by HRS, and had failed to reflect these fees as third party payments on Form 3029. If they had been reported as suggested in the report, Hope Center's reimbursement would have been reduced during the applicable twenty-four month period by $62,631.00. That same date, HRS issued proposed agency action demanding repayment of that amount. The proposed agency action precipitated the instant proceeding. Hope Center, which was once known as Mary Black Knight School, has been operating since 1955 in the Miami area. It began accepting retarded clients long before the State began its assistance program, and when HRS first entered the field in the 1970s, Hope Center willingly accepted HRS clients, some without any reimbursement. Hope Center presently accepts both HRS clients and private pay clients. During the audit period, Hope Center was serving approximately eighty HRS clients. When Hope Center accepted private pay clients exclusively, such clients either paid their own fees or had their expenses covered by donations raised from the general public. In addition, many years ago a parent offered Hope Center's executive director, Judy Holland, a voluntary donation to help defray a part of her child's expenses. Holland called this donation a "tuition" payment, and from then on used either that term or "contribution" to describe any donations received from the families of clients. Over the years a policy evolved whereby, at the end of the enrollment process, Hope Center began requesting donations (or tuition payments) from parents of new clients enrolling at the school. After advising the parents of the cost of care, the parents were then asked to consider the matter, and suggest an amount that they could afford each month. The donations were not mandatory, and the child was always accepted at the school regardless of the parent's decision. No financial statements were taken from the parents, and once a parent pledged to make a monthly donation, the parent was not subject to formal collection procedures or legal action, or the child dismissed, if payments were not made as promised. However, the school acknowledges that it made written requests to the parent if payments lagged and on at least one occasion Holland was urged by her board of directors to obtain some proof of income from the parents, presumably to verify whether the donation suggested by the parents, or lack thereof, was reasonable and justified. When Hope Center began accepting state clients, the practice of receiving "tuition" payments (now "contributions") continued where those parents could afford to do so. Again, they were voluntary, and had no bearing on whether a client received treatment. During the audit period in question, such payments were made by the families of nineteen HRS clients and represented approximately 20 percent of Hope Center's operating budget. One such client requested HRS to waive its HRS fee because of financial difficulties caused in part by having to also make a tuition payment to Hope Center. Her appeal was denied on the ground she was not obliged to pay tuition to Hope Center. The parent later voluntarily withdrew her son from Hope Center for both personal and financial reasons. On August 24, 1982, Holland wrote a letter to all parents in an effort to clarify the distinction between social security or supplemental income checks and tuition payments. The letter has been received in evidence as petitioner's exhibit 11. It was prompted because some parents were sending Hope Center their government checks and designating a portion of the check as the tuition payment. The letter pointed out that HRS required the entire social security or supplemental income check to be turned over to HRS. It also advised the parents that because "Hope Center receives no portion of this money, we must insist on payment of your tuition as well. If this will present a hardships a copy of your income tax statement will be required so that an appropriate sliding scale can be determined." Only one such tax return was ever filed by a parent. Hope Center did not credit the tuition payments as an offset to the service payments on Form 3029 since it understood third party benefits to be social security benefits or insurance benefits received by the parents of a client or paid directly to Hope Center as representative payee. In that event, such payments were properly credited on the form. Respondent's instructions on the use of the form were extremely limited. A Hope Center representative attended one HRS meeting where instructions were given, but the definition of third party payments was not discussed. There is no direct evidence of any other HRS meeting concerning this subject. At no time during the audit period was any member of the Hope Center staff specifically instructed regarding the proper definition of third party payments. Although Hope Center prepared the voucher, no payments could be made until the voucher had been signed by the HRS social worker assigned to Hope Center. In addition, at least one other HRS official was required to sign the voucher. In August 1981, the HRS District II Program Supervisor wrote a memorandum explaining HRS policies applicable to all Long Term Care providers, including Hope Center. Attached to this memorandum was an excerpt from an HRS Client Services Manual which explained, inter alia, the difference between tuition payments and contributions. However, due to a mail mix-up, or some other unexplained reason, Hope Center did not receive the documents. On numerous occasions Hope Center requested manuals, but none were received until after the audit period. At the same time, there is evidence establishing that the then District II program manager was frequently inaccessible during that period of time; and would not return telephone calls. Moreover, his staff could not answer vendor questions concerning the Program. This contributed to Hope Center's lack of knowledge as to whether it was properly filling out Form 3029. Finally, there is evidence (petitioner's exhibit 36) indicating that during the audit period the Program itself was being mismanaged by local HRS representatives. On September 12, 1983, the District II HRS program supervisor advised Holland by letter that one of HRS's concerns with the Hope Center program was "the accounting of donations/contributions made by parents and use of said monies." These concerns apparently arose after a quality assurance review of petitioner's facility was made by HRS auditors in April 1983. Prior to that time, HRS had conducted similar monitoring visits on several occasions. On at least one of those visits, the auditors were shown client ledger cards on which the word "tuition" was clearly reflected. Even so, HRS auditors did not pursue the matter, make inquiry about the charges, or advise Hope Center that it was improper. According to the then District II administrator, although the visits were not full scale audits, this lack of action was inappropriate, for the word "tuition" should have prompted further inquiry on the auditors' part. Therefore, petitioner was justified in concluding that because HRS auditors did not question the item, it was recorded in a proper manner. After receiving the September 12 letter, Hope Center immediately called a meeting of parents to explain this apparent change in policy, and stopped billing parents for "tuition" payments effective October 1, 1983. All such subsequent payments received from parents have been characterized as donations. Thereafter, HRS advised Hope Center by letter dated October 14, 1983, that "tuition charges to parents are forbidden under HRS Rules and Regulations," and that "[i]f donations or contributions are asked of parents it must be made on a Voluntary basis and appropriate documentation of such recorded in [the] accounts." That letter represented the first written notice by HRS to Hope Center specifically stating that its treatment of tuition payments was incorrect. Until that time, the evidence supports a finding that Hope Center believed its prior practice of not treating tuition payments as third party benefits on Form 3029 was in accord with HRS regulations. Paragraph 2-2(o.) of HRS Manual 55-7 defines third party benefits as follows: Any payments received or owing to the client, responsible party, or the Department as reimbursement for the cost of services pro- vided by the Department. Such benefits included but are not limited to, commercial insurance, Civilian Health and Medical Pro- gram of the Uniformed Services (CHAMPUS), Medicare, and Medicaid. A personal allowance may not be provided a client from third party benefits. Cash benefits which are specifi- cally designated to meet the current needs of the clients will be treated as third party benefits. A personal allowance not in excess of $40 may be provided to the client from these payments. Cash benefits will be re- ferred to in this manual as benefit payments, to distinguish them from other third party benefits. Cited by the Manual as examples of third party payments are social security retirement, survivors and disability insurance, supplemental security income, veteran's benefits black lung benefits and railroad retirement. At the same time, HRS Manual 160-2 defines a donation in the following manner: A donation is defined as a gift or contribu- tion as to a charitable organization, etc.; i.e., anything given to the facility for which services rendered to a particular client are not contingent upon receipt of the donation. (Emphasis added) According to the same Manuals a fee is distinguished from a donation because "a fee is an amount paid for services rendered to a particular clients" and includes "payment asked or given for professional services, admissions, licenses, tuition, etc." There is also a definition of third-party benefits in both Subsection 402.33(1)(f), Florida Statutes, and Rule 10-6.01(17), Florida Administrative Code. Neither definition is as explicit as those appearing in the Manuals. Based upon the definitions in the Manuals, it is found that the tuition payments fall within the category of a donation, as set forth in HRS Manual 160-2. Moreover, the fact that the donations were called "tuition" payments does not change their character, since the "services rendered to a particular client (were) not contingent upon receipt of the donation." There was a great deal of confusion and misunderstanding on the part of HRS as to how donations or tuition payments, if voluntary, should have been accounted for by Hope Center during the audit period. For example, the District II legal counsel issued an opinion on November 15, 1983, holding that donations were permissible so long as "the care [the] child receives is not dependent on such contributions donation or pledge." This opinion was disseminated to area vendors, including Hope Center. On the other hand, the District 10 internal audit supervisor interpreted the regulations to mean that any voluntary donation must be credited against the service payment unless the donation exceeded the service payment. Conversely, the District 11 developmental services program supervisor was under the impression that if a truly voluntary donation was made by a parent, it did not have to be offset or credited against the service payment on Form 3029. This understanding was also conveyed by the HRS District 11 residential services director. It was also established that not only was there confusion by HRS on the treatment of donations or voluntary payments, there existed similar confusion and misunderstanding by the agency as to the billing and collecting of actual third party benefits (social security payments). This is evidenced by the fact that during the period in question District 11 was under a "corrective action" to rectify its problems in the collection of such fees, and the District had actually sent a bill to the parents of a deceased client. Moreover, the agency designated itself as representative payee for all such checks, but such action resulted in the monies going into the general revenue fund instead of directly to HRS. Finally, there is evidence that HRS frequently sent incorrect bills to parents for monies due the agency. There are around fifty facilities in District 11 that serve retarded clients. At least three or more have received "tuition" payments from parents of clients during the years 1982 and 1983. None offset the tuition against the service payment reimbursement on their Form 3029. According to HRS, it is awaiting the result of this "test" case until deciding whether to seek reimbursement from those vendors. The HRS reimbursement (around $418 per month) for LTRC clients does not cover all expenses incurred by a facility in providing services. This is true even if state funds from other contracted services are included. Indeed, an HRS representative described the state reimbursement as only enough to provide a "bare-bones" type of service. 3/ In the case of Hope Center, the facility provides speech, music and recreational therapy, and professional and parent counseling, in addition to the services to be provided under its state contract. The estimated cost of serving each client runs between $1,600 and $2,200 per month. The donations (or tuition payments) are designed to defray the cost of providing these additional services, and to enhance the quality of care provided the clients.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that petitioner's Form 3029, for the two fiscal years ending September 30, 1983, be approved, and that no liability be assessed against petitioner for tuition payments received during those years. DONE and ORDERED this 29th day of January 1986, in Tallahassee Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 29th day of January 1986.
Conclusions Having reviewed the Administrative Complaint and 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 Provider, Hillcrest Residential ALF, Inc. d/b/a Hillcrest Retirement Residence (“the Provider”), pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Administrative Complaint and Notice of Intent to Deny (Composite Ex. 1) with an Election of Rights form to the provider. The Election of Rights form advised of the right to an administrative hearing. 3. The parties have since entered into the attached Settlement Agreement. (Ex. 2). Based upon the foregoing, it is ORDERED: Filed December 7, 2011 2:51 PM pibision of Administrative Hearings 1. The attached Settlement Agreement is adopted and incorporated by reference into this Final Order. 2. The Provider’s license to operate this assisted living facility (License Number 5389) is UNCONDITIONALLY SURRENDERED. 3. The Agency’s Notice of Intent to Deny is upheld and the Provider’s license renewal application is DENIED. 4, An administrative fine in the amount of $29,500.00 is imposed against the Provider and is STAYED in accordance with the terms of the Settlement Agreement. 5. The Provider is responsible for any refunds that may be due to any clients. 6. The Provider shall remain responsible for retaining and appropriately distributing client records as prescribed by Florida law. The Provider is advised of Section 408.810, Florida Statutes. The Provider should also consult the applicable authorizing statutes and administrative code provisions as well as any other statute that may apply to health care practitioners regarding client records. 7. The Provider is given notice of Florida law regarding unlicensed activity. The Provider is advised of Section 408.804 and Section 408.812, Florida Statutes. The Provider should also consult the applicable authorizing statutes and administrative code provisions. The Provider is notified that the cancellation of an Agency license may have ramifications potentially affecting accrediting, third party billing including but not limited to the Florida Medicaid program, and private contracts. ORDERED at Tallahassee, Florida, on this ? day of Decee bey » 2011. es ded Elizabeth/Dudek, Secr Agency for Health q ary g 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 this Final Order was served on the below-named persons by the method designated on this 7o— tay of » 2011. aN Richard Shoop, Agency Cl Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Copies: Jan Mills Finance & Accounting Facilities Intake Unit Revenue Management Unit (Electronic Mail) (Electronic Mail) Katrina Derico-Harris Shaddrick Haston, Unit Manager Medicaid Accounts Receivable Assisted Living Unit Agency for Health Care Administration Agency for Health Care Administration (nteroffice Mail) (Electronic Mail) Shawn McCauley Patricia Caufman, Field Office Manager Medicaid Contract Management Areas 5 and 6 Agency for Health Care Administration Agency for Health Care Administration (Interoffice Mail) (Electronic Mail) Thomas J. Walsh II, Senior Attorney Monica Strickland, Esquire Office of the General Counsel 402 East 7th Avenue Agency for Health Care Administration Tampa, Florida 33602 (Electronic Mail) (U.S. Mail) Thomas M. Hoeler, Chief Facilities Counsel R. Bruce McKibben Office of the General Counsel Administrative Law Judge Agency for Health Care Administration Division of Administrative Hearings (Electronic Mail) (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.
Conclusions Having reviewed the Administrative Complaints, the Amended Notice of Intent to Deny (“NOI”) letter, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: The Agency has jurisdiction over the above-named party pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 1. The Agency issued the attached NOI and Election of Rights form (Exhibit 1). The Election of Rights form advised of the right to an administrative hearing. 2. The Agency issued the attached Administrative Complaints and Election of Rights forms. (Exhibits 2-8) The Election of Rights form advised of the right to an administrative hearing. 3. The parties have since entered into the attached Settlement Agreement. (Exhibit 9) Based upon the foregoing, it is ORDERED: 4. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 1 Filed September 9, 2013 4:36 PM Division of Administrative Hearings 5. Sarai Home Care Inc. shall: a. Pay the Agency $6,606.00. b. Retain a consultant who has been an administrator for at least five (5) years and whose facility has not been cited with a Class I, Class II, or three or more uncorrected Class III deficiencies in the last five (5) years. It shall also disclose the identity of the consultant that it has retained within 10 days of the signing of the Settlement Agreement by its administrator. c. Reduce its capacity to fifteen (15) beds. At the time of its licensure renewal, Sarai Home Care can return to its original capacity of 17 beds once the renewal license is granted. d. Not have more than two (2) residents in a bedroom. e. Not be cited with a Class I, Class II, or three of more Class III deficiencies prior to its renewal license being granted. If Sarai Home Care Inc. is cited with a Class I, Class Il, or a Class II] prior to its renewal license being granted, this shall be grounds for revocation of its license if any such citation is not challenged by Sarai Home Care Inc., or if challenged, is upheld after all appeals. 6. This Agreement shall supersede the Notice of Intent to Deny (NOI). If the Agency has not already completed its review of the application, it shall resume its review of the application upon entry of the Final Order adopting this Agreement. Nothing in this Agreement, however, shall prohibit the Agency from denying the application based upon any statute, rule, or regulation, and, if applicable, an unsatisfactory licensure survey. 7. If full payment has been made, the cancelled check acts as receipt of payment and no further payment is required. If full payment has not been made, payment is due within 180 days of the Final Order. Overdue amounts are subject to statutory interest and may be referred to collections. A check made payable to the “Agency for Health Care Administration” and containing the AHCA ten-digit case number should be sent to: Office of Finance and Accounting Revenue Management Unit Agency for Health Care Administration 2727 Mahan Drive, MS 14 Tallahassee, Florida 32308 | ORDERED at Tallahassee, Florida, on this 1 day of Siptbe— , 2013. Elizdbeth Duis Aan Agency for Hea are 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 .capy of this Final Order was served on the below-named persons by the method designated on this 7 is day of < SS elas , 2013. Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Finance & Accounting Facilities Intake Unit Revenue Management Unit (Electronic Mail) (Electronic Mail) Shaddrick Haston, Unit Manager Lourdes A. Naranjo, Senior Attorney Licensure Unit Office of the General Counsel Agency for Health Care Administration Agency for Health Care Administration (Electronic Mail) (Electronic Mail) Arlene Mayo-Davis, Field Office Manager Paul Anthony Dieguez, Esq. Local Field Office Smith and Associates Agency for Health Care Administration 1499 South Harbor City Blvd., Suite 200 (Electronic Mail) Melbourne, Florida 32901 (U.S. Mail) Claude B. Arrington Administrative Law Judge Division of Administrative Hearings (Electronic Mail)
The Issue Whether Vista Manor should have been issued a Conditional license on November 7, 2001, for the alleged failure to provide services and equipment necessary to avoid physical harm to a resident.
Findings Of Fact Petitioner is the state agency responsible for evaluating nursing homes in Florida pursuant to Section 400.23(7), Florida Statutes. Respondent is licensed to operate a skilled nursing facility located at 1550 Jess Parrish Court, Titusville, Florida, pursuant to Chapter 400, Part II, Florida Statutes. Petitioner conducted a survey of the nursing facility on November 7, 2001. In its report, it alleged that there was a violation of “Tag F224,” which is a shorthand reference to 42 Code of Federal Regulations (C.F.R.) Section 483.13(c). This federal standard is made applicable to nursing homes in Florida pursuant to Rule 59A-4.1288, Florida Administrative Code. Petitioner is required to rate the severity of any deficiency identified in a survey with a “class” rating. The surveyor assigned the F224 deficiency a "Class II" rating. A Class II rating means Petitioner believes the deficiency “has compromised the resident’s ability to maintain or reach his or her highest practicable physical, mental and psychosocial well-being, as defined by an accurate and comprehensive resident assessment, plan of care, and provision of services.” Section 400.23(8)(b), Florida Statutes. Based upon the identification of the Class II deficiency, Petitioner changed Respondent’s licensure rating from Standard to Conditional, effective November 7, 2001. The Standard rating was restored effective December 21, 2001. Resident 3 was admitted to Vista Manor on October 18, 2001. He was a large man who weighed 173 pounds. He was paralyzed from his waist down and had little or no feeling in his lower extremities as a result of radiation treatments he received for colon cancer. He had scoliosis, or a twisted spine, that required surgical placement of a rod into his spine. He suffered from contractures of his knees and bilateral foot drop, a condition which resulted in his foot being flexed so that his toes pointed toward the floor. He also suffered from osteoporosis and osteopenia, degenerative conditions of his bones that causes them to be extremely fragile. Resident 3 was unable to walk but was able to sit in a motorized cart and drive himself about the facility. Because of his size and immobility, Resident 3 required the assistance of two staff members and use of a lifting device commonly called a Marissa lift for transfers from his bed to his cart and vice versa. To successfully facilitate a transfer using the lift, staff would place the resident on a cloth sling, attach the sling to the lift at three different points on the sling, raise the resident in the sling from his cart or his bed, pivot the lifting device, and lower him to the desired surface. Staff successfully completed daily lift transfers of the resident during the first two and a half weeks of his stay at Vista Manor. On the evening of November 1, 2001, Resident 3 requested staff to transfer him from his cart to his bed. Two certified nursing assistants (CNAs) went into Resident 3’s room to assist the resident in that transfer. They moved the lift into place and stationed themselves on either side of the resident. At that time, Resident 3 was seated halfway out of his chair but was being held by the CNA standing on his right side. When the other CNA began to secure the sling on the left side of the resident to the lift, the resident slipped out of the seat of his cart and fell to the floor. After the incident, staff immediately tended to Resident 3. In their initial assessment, it appeared that he had not sustained any injuries. The following day, Resident 3 was sent to the hospital where he was diagnosed with non-displaced fractures to both of his femurs. Sometime between November 1 and November 7, 2001, Petitioner received a complaint regarding the incident and sent a surveyor to investigate it. The surveyor first went to the hospital where she reviewed medical records, interviewed caregivers and interviewed the resident. She then went to the nursing home where she reviewed several resident files and interviewed staff while she was in the facility. The surveyor also obtained written statements from the two CNAs who were involved in the transfer of Resident 3 and a written statement from a nurse who came into the room immediately after Resident 3 slipped on the floor. Based upon her investigation, she concluded that the CNAs could have prevented Resident 3 from falling, and their failure to do so constituted neglect of the resident. It does not appear that Resident 3 can accurately recount past events, in light of the implausible sequence of events he described. Therefore, Resident 3's statement to the surveyor that the CNAs neglected him is not credible. Even if credible, the resident's statement is hearsay that was not corroborated by any other evidence. The decision as to whether a resident is properly positioned to begin a transfer rests ultimately in the judgment of the caregiver. If the caregiver believes that the resident is balanced in his seat or that the transfer can be safely completed, it is appropriate to begin a transfer. Nothing in the CNAs’ statements indicates or suggests that either CNA believed that it was unsafe to transfer the resident. Respondent demonstrated that the CNAs attempted to transfer Resident 3 appropriately in light of the conditions they faced when they approached him. Resident 3’s lower body paralysis, his curved spine, his contractures of his knees and his bilateral foot drop made it impossible for him to be perfectly positioned in the seat of his cart. Both his physical limitations and his size prevented the CNAs from pushing him back in his seat. The CNAs used a technique that was consistent with their training and the resident’s care plan. Prior to attempting the transfer, they stationed themselves on either side of the resident. One CNA held him while the other attempted to hook up the sling. This technique would have allowed them to secure the resident even if he was unbalanced, and would have further allowed them to lessen the impact of a fall if he slid out of the chair. Because they used proper transfer techniques with Resident 3, there is no basis upon which to find that the CNAs’ decision to continue with the transfer of Resident 3 in the position they found him was neglect or even poor judgment. Unfortunately, the incident and the attendant injury occurred in spite of staff’s compliance with accepted standards of care
Recommendation It is, therefore, RECOMMENDED that the Director enter a final order revising the November 7, 2001, survey report by deleting the deficiency described under Tag F224, and issue a Standard rating to Respondent's facility. DONE AND ENTERED this 2nd day of October, 2002, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of October, 2002. COPIES FURNISHED: Eileen O'Hara Garcia, Esquire Agency for Health Care Administration 525 Mirror Lake Drive, North Sebring Building, Room 310J St. Petersburg, Florida 33701 R. Davis Thomas, Jr. Broad & Cassel 215 South Monroe Street, Suite 400 Post Office Box 11300 Tallahassee, Florida 32302-1300 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Valda Clark Christian Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308
