Conclusions Having reviewed the Notice of Intent to Deny the renewal license application for a home health agency, attached hereto and incorporated herein (Ex. 1), and other matters of records, the Agency for Health Care Administration ("Agency") finds and concludes as follows: By Order dated August 26, 2008, the Administrative Law Judge closed its files in the above-styled case. Petitioner filed a status report withdrawing the application for renewal oflicense on August 20, 2009, attached hereto and incorporated herein (Ex. 2). The denial of the renewal application for Petitioner home health agency is upheld and the application for license renewal has been withdrawn. Upon consideration of the foregoing, it is ORDERED that the Agency's file is hereby closed. DONE and ORDERED at Tallahassee, Leon County, Florida this ffj day of ,2009. 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 PROCEEDING SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN THIRTY (30) DAYS OF THE RENDITION OF THE ORDER TO BE REVIEWED. Copies furnished to: Monica L. Rodriguez Attorney for Petitioner Dresnick & Rodriguez, P.A. One Datran Center 91 South Dadeland Blvd, Suite 1610 Miami, Florida 33156 (U.S. Mail) Nelson E. Rodney Assistant General Counsel Agency for Health Care Administration 8350 NW 52nd Terrace, Suite #103 Miami, Florida 33166 (Interoffice Mail) Home Care Unit Agency for Health Care Administration' 2727 Mahan Drive, MS #34 Tallahassee, Florida 32308 (Interoffice Mail) Stuart M. Lerner Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (U.S. Mail) Jan Mills Agency for Health Care Administration 2727 Mahan Drive, Bldg #3, MS #3 Tallahassee, Florida 32308 2 (Interoffice Mail) CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy of the foregoing was sent to the above-named addressees by U.S. Mail, or the method designated, on thisLday of s5xpf 009. Richard Shoop. Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Building 3 Tallahassee, Florida 32308-5403 (850) 922-5873 3 CHARLIE CRIST GOVERNOR June 23, 2008 Kelly Marie Damas, Admin istrator- 1 / / ·.:;, '. TEHC LLC '- -...· , .. ' ' 3317NW10thTerrSte404 i' r:;_'.'./fl Fort Lauderdale, Fl 33309 J:.:·:>r 1.< \ ii{;;_ License Number: 204390961 Case#: 2008007748 NefltE't)iKIN1'ENT:·q,oDENY It is the decision of this Agency that the application for renewal licensure as a home health agency, for TEHC, LLC., located at 3317 NW 10th Terrace, Suite 404, Fort Lauderdale, Fl 33309, is DENIED. The basis for this action is pursuant to authority of Section 120.60 Florida Statutes (F.S.) and Section 408.815 (1), (c) and (d), F.S. which states as follows: (1) In addition to the grounds provided in authorizing statutes, grounds that may be used by the agency for denying and revoking a license ... include any of the following actions by a controlling interest: A violation of this part, authorizing statutes, or applicable rules. A demonstrated pattern of deficient performance. The home health agency did not demonstrate compliance with Chapter 400, Part III, F.S. and the state home health agency rules, Chapter 59A-8, Florida Administrative Code (F.A.C.) at the home health agency licensure survey conducted Mr..y 5 through May 8, 2008. The plan of correction due June 7, 2008 as submitted to the Agency's Field Office was not acceptable. Non compliance was found in the following areas: The home health agency failed to ensure the Director of Nursing established and conducted an on-going quality assurance _program that evaluated the effectiveness of all the provided service for consistency with professional standards and anticipated outcomes. (H 224) The pertinent statutes and rules that apply include the following: 59A-8.0095(2) (c), F.A.C. "Director of Nursing: (c) The director of nursing shall establish and conduct an ongoing quality assurance program which assures: 2727 Mahan Drive,MS#34 Tallahassee, Florida 32308 EXHIBIT j Visit AHCA Online at http://ahca.myflo rida.com 'Tehc LLC Page 2 · ·-:June 23;·2008· Case assignment and management is appropriate, adequate, and consistent with the plan of care, medical regimen and patient needs; Nursing and other services provided to the patient are coordinated, appropriate, adequate, and consistent with plans of care; All services and outcomes are completely and legibly documented, dated and signed in the clinical service record; Confidentiality of patient data is maintained; and Findings of the quality assurance program are used to improve services." The home health agency failed to ensure that the Registered Nurse (RN)provide case management for 5 of 17 nursing and therapy patients. This was evidenced by: failure to provide an assessment prior to documenting a start of care comprehensive assessment for one patient; failure to provide supervision for the Licensed Practical Nurse (LPN) in the performance of duties for two patients and failure to assure progress reports were made to the physician for patients receiving nursing services when the patient's condition changed for two patients. The pertinent statutes and rules that apply include the following: 59A-8.0095 (3) (a), F.A.C. "Registered Nurse. A registered nurse shall be currently licensed in the state, pursuant to Chapter 464, F.S., and: Be the case manager in all cases involving nursing or both nursing and therapy care. Be responsible for the clinical record for each patient receiving nursing care; and Assure that progress reports are made to the physician for patients receiving nursing services when the patient's condition changes or there are deviations from the plan of care." The home health agency failed to ensure that the RN retained full responsibility for the care given and making supervisory visits to the patient's home for 3 of 17 sampled patients as evidenced by failure to provide supervision for the LPN in the performance of duties for two patients; failure to provide supervision for the Home Health Aide (Aide) and failed to prepare a written Aide assignment/instructions for services to be provided to the patient for 3 patients. (H 231) The pertinent statutes and rules that apply include the following: 59A-8.0095 (3) (b), F.A.C., "Registered Nurse. A registered nurse may assign selected portions of patient care to licensed practical nurses and home health aides but always retains the full responsibility for the care given and for making supervisory visits to the patient's home." The home health agency failed to provide supervision for the LPN in the perfonnance of duties for 2 of 17 patients. (H 235) Tebc LLC Page 3 --+---- ----:June-23--;-2008·--------- ·-- --------- --- The pertinent statutes and rules that apply include the following: 59A-8.0095 (4) (a), F.A.C., "Licensed Practical Nurse. A licensed practical nurse shall be currently licensed in the state, pursuant to Chapter 464, F.S., and provide nursing care assigned by and under the direction of a registered nurse who provides on-site supervision as needed, based upon the severity of patients medical condition and the nurse's training and experience. Supervisory visits will be documented in patient files. Provision shall be made in agency policies and procedures for annual evaluation of the LPN's performance of duties by the registered nurse." The home health agency failed to ensure the LPN reported any changes in the patient's condition to the RN and document the changes in the patient's clinical record for 1 of 17 sampled patients. (H 236) The pertinent statutes and rules that apply include the following: 59A-8.0095 (4) (b), F.A.C., "Licensed Practical Nurse A licensed practical nurse shall: Prepare and record clinical notes for the clinical record; Report any changes in the patient's condition to the registered nurse with the reports documented in the clinical record; Provide care to the patient including the administration of treatments and medications; -------and --- , ---------------- , -------------, ------------------ -------------·· Other duties assigned by the registered nurse, pursuant to Chapter 464, F.S." The home health agency failed to ensure that the care provided followed the plan of treatment for 11 of 17 sampled patients. The home health agency also failed to ensure a verbal order obtained by a home health agency nurse was put into writing and signed by the attending physician for 1 of 17 sampled patients. (H 302) The pertinent statutes and rules that apply include the following: Section 400.487 (2) F.S., "When required by the provisions of chapter 464; part I, part III, or part V of chapter 468; or chapter 486, the attending physician, physician assistant, or advanced registered nurse practitioner, acting within his or her respective scope of practice, shall establish treatment orders for a patient who is to receive skilled care. The treatment orders must be signed by the physician, physician assistant, or advanced registered nurse practitioner before a claim for payment for the skilled services is submitted by the home health agency. If the claim is submitted to a managed care organization, the treatment orders must be signed within the time allowed under the provider agreement. The treatment orders shall be reviewed, as frequently as the patient's illness requires, by the physician, physician assistant, or advanced registered nurse practitioner in consultation with the home health agency." 'Tehc LLC Page 4 _June 2},-200&------- ----- Chapter 59A-8.0215(2), F.A.C., "Home health agency staff must follow the physician, physician assistant, or advanced registered nurse practitioner's treatment orders that are contained in the plan of care. If the orders cannot be followed and must be altered in some way, the patient's physician, physician assistant, or advanced registered nurse practitioner must be notified and must approve of the change. Any verbal changes are put in writing and signed and dated with the date of receipt by the nurse or therapist who talked with the physician, physician assistant, or advanced registered nurse practitioner's office." The home health agency failed to ensure 9 of 17 patients were advised of the payment for home health agency services before care was started and were clear about the payor source and any charges required from the patient. (H 304) The pertinent statutes and rules that apply include the following: Section 400.487 (1), F.S., "Services provided by a home health agency must be covered by an agreement between the home health agency and the patient or the patient's legal representative specifying the home health services to be provided, the rates or charges for services paid with private funds, and the sources of payment, which may include Medicare, Medicaid, private insurance, personal funds, or a combination thereof. A home health agency providing skilled care must make an assessment of the patient's needs within 48 hours after the start of services." Chapter 59A-8.020 (2), F.A.C., "At the start of services a home health agency must establish a written agreement between the agency and the patient or client or the patient's or client's legal representative, including the information described in Section 400.487(1), F.S. This written agreement must be signed and dated by a representative of the home health agency and the patient or client or the patient's or client's legal representative. A copy of the agreement must be given to the patient or client and the original must be placed in the patient's or client's file." Chapter 59A-8.020 (3), F.A.C., "The written agreement, as specified in subsection (2) above, shall serve as the home health agency's service provision plan, pursuant to Section 400.491(2), F.S., for clients who receive homemaker and companion services or home health aide services which do not require a physician, physician assistant, or advanced registered nurse practitioner's treatment order. The written agreement for these clients shall be maintained for one year after termination of services." The home health agency failed to demonstrate effective communication between interdisciplinary team members to coordinate services as outlined in the plan of care for 3 of 17 'patients and failed to ensure that 8 of 17 sampled patients received the skilled nursing services in accordance with the physician's VvTitten plan of care. (H 306) The pertinent statutes and rules that apply include the following: 'Tehc LLC Page 5 --·-- June 23, 20-08 ··· - ----- Section 400.487 (6), F.S., "Tl1e skilled care services provided by a home health agency, directly or under contract, must be supervised and coordinated in accordance with the plan of care." The home health agency failed to ensure the registered nurse completed the initial evaluation visit for 1 of 17 patients. The Director of Nursing who signed the initial evaluation visit never made a home visit to the patient. (H 307) The pertinent statutes and rules that apply include the following: 59A-8.008 (1), F.A.C.., "In cases of patients requiring only nursing, or in cases requiring nursing and physical, respiratory, occupational or speech therapy services, or nursing and dietetic and nutrition services, the agency shall provide case management by a licensed registered nurse directly employed by the agency.'' The home health agency failed to provide written notice for tenninating home health services to 1 of 3 sampled patients. There was no written notification regarding the date of termination; reason for termination or a referral to another agency with a plan for continued services prior to the termination. (H 316) The pertinent statutes and rules that apply include the following: Chapter 59A-8.020 (4), F.A.C., "When the agency terminates services for a patient or client needing continuing home health care, as determined by the patient's physician, physician assistant, or advanced registered nurse practitioner, for patients receiving care under a physician, physician assistant, or advanced registered nurse practitioner's treatment order, or as determined by the client or caregiver, for clients receiving care without a physician, physician assistant, or advanced registered nurse practitioner's treatment order, a plan must be developed and a referral made by home health agency staff to another home health agency or service provider prior to termination. The patient or client must be notified in writing of the date of termination, the reason for termination, pursuant to Section 400.491, F.S., and the plan for continued services by the agency or service provider to which the patient or client has been referred, pursuant to Section 400.497(6), F.S. This requirement does not apply to patients paying through personal funds or private insurance who default on their contract through non-payment. The home health agency should provide social work assistance to patients to help them determine their eligibility for assistance from government funded programs if their private funds have been depleted or will be depleted." The home health agency failed to develop a plan of care for 6 of 17 sampled patients that included all of the required items needed to appropriately serve patients including goals to support the physician's treatment orders, level of staff to provide the services to reach the goals, and the frequency of visits to conduct the services by appropriate home health agency staff. (H 320) Tehc LLC Page 6 -June 23, 2008 The pertinent statutes and rules that apply include the following: Section 400.487 (2). f.S., "When required by the provisions of chapter 464; part I, part III, or part V of chapter 468; or chapter 486, the attending physician, physician assistant, or advanced regis1ered nurse practitioner, acting within his or her respective scope of practice, shalJ establish treatment orders for a patient who is to receive skilled care " Chapter 59A-8.0215 (1), F.A.C., "A plan of care shall be established in consultation with the physician, physician assistant, or advanced registered nurse practitioner, pursuant to Section 400.487, F.S., and the home health agency staff who are involved in providing the care and services required to carry out the physician, physician assistant, or advanced registered nurse practitioner's treatment orders. The plan must be jncluded in the clinical record and available for review by all staff involved in providing care to the patient. The plan of care shall contain a list of individualized specific goals for each skilled discipline that provides patient care, with implementation plans addressing the level of staff who will provide care, the frequency of home visits to provide direct care and case management." The home health agency failed to demonstrate evidence that patients were informed in advance about any changes to the plan of care prior to implementation of the changes for 1 of 17 patients. (H 321) The pertinent statutes and rules that apply include the following: Chapter 59A-8.0215 (3), F.A.C., "The patient, caregiver or guardian must be informed by the home health agency personnel that: He has the right to be informed of the plan of care; He has the right to participate in the development of the plan of care; and He may have a copy of the plan if requested." The home health agency failed to maintain a clinical record in accordance with accepted professional standards for 12 of 17 patients. (H 350) The pertinent statutes and rules that apply include the following: Section 400.491 (1), F.S,, "The home health agency must maintain for each patient who receives skilled care a clinical record that includes pertinent past and current medical, nursing, social and other therapeutic information, the treatment orders, and other such information as is necessary for the safe and adequate care of the patient. When home health services are terminated, the record must show the date and reason for termination " 'Tehc LLC Page 7 June 23,-2008 The home health agency failed to include all of the required items in the discharged patient clinicai records for 3 of 3 patients. There were no tem1ination summaries as required. (H 356) The pertinent statutes and rules that apply include the following: Chapter 59A-8.022(5), F.A.C., "Clinical records must contain the following: Source ofreferral; Physician, physician assistant, or advanced registered nurse practitioner's verbal orders initiated by the physician, physician assistant, or advanced registered nurse practitioner prior to start of care and signed by the physician, physician assistant, or advanced registered nurse practitioner as required in Section 400.487(2), F.S. Assessment of the patient's needs; Statement of patient or caregiver problems; Statement of patient's and caregiver's ability to provide interim services; Identification sheet for the patient with name, address, telephone number, date of birth, sex, agency case number, caregiver, next of kin or guardian; Plan of care or service provision plan and all subsequent updates and changes; Clinical and service notes, signed and dated by the staff member providing the service which shall include: Initial assessments and progress notes with changes in the person's condition; Services rendered; Observations; Instructions to the patient and caregiver or guardian, including administration of and adverse reactions to medications; (i) Home visits to patients for supervision of staff providing services; G) Reports of case conferences; (k) Reports to physicians, physician assistants, or advanced registered nurse practitioners; (1) Termination summary including the date of first and last visit, the reason for termination of service, an evaluation of established goals at time of tennination, the condition of the patient on discharge and the disposition of the patient." The home health agency failed to submit their comprehensive emergency management plan to the local county health department for review and approval. (H 376) The pertinent statutes and rules that apply include the following: Section 400.497(8) (c), F.S. "Preparation of a comprehensive emergency management plan pursuant to s. 400.492. (c) The plan is subject to review and approval by the county health department. During its review, the county health department shall contact state and local health and medical stakeholders when necessary. The county health department shall complete its review to . Tehc LLC Page 8 - --June 23.1008 ensure that the plan is in accordance with the criteria in the Agency for Health Care Administration rules within 90 days after receipt of the plan and shall approve the plan or advise the home health agency of necessary revisions. If the home health agency fails to submit a plan or fails to submit the requested information or revisions to the county health department within 30 days after vvTitten notification from the county health department, the county health department shall notify the Agency for Health Care Administration. The agency shall notify the home health agency that its failure constitutes a deficiency, subject to a fine of $5,000 per occurrence. If the plan is not submitted, information is not provided, or revisions are not made as requested, the agency may impose the fine." Chapter 59A-8.027 (2), F.A.C., "The plan, once completed, will be forwarded electronically for approval to the contact designated by the Department of Health." Section 400.492, F.S., "Each home health agency shall prepare and maintain a comprehensive emergency management plan that is consistent with the standards adopted by national or state accreditation organizations and consistent with the local special needs plan. The plan shall be updated annually ... " Chapter 59A-8.027(3) and (4), F.S., "The agency shall review its emergency management plan on an annual basis and make any substantive changes. (4) Changes in the telephone numbers of those staff who are coordinating the agency's emergency response must be reported to the agency's county office of Emergency Management and to the local County Health Department. For agencies with multiple counties on their license, the changes must be reported to each County Health Department ap.d each county Emergency Management office. The telephone numbers must include numbers where the coordinating staff can be contacted outside of the agency's regular office hours. All home health agencies must report these changes, whether their plan has been previously reviewed or not, as defined in subsection (2) above." · The home health agency failed to renew the application for a Certificate of Exemption that authorizes the performance of waived laboratory tests. (H 390) The pertinent statutes and rules that apply include the following: Section 483.091,F.S. "Clinical laboratory license.--A person may not conduct, maintain, or operate a clinical laboratory in this state, except a laboratory that is exempt under s. 483.031, unless the clinical laboratory has obtained a license from the agency A license is valid only for the person or persons to whom it is issued and may not be sold, assigned, or transferred, voluntarily or involuntarily, and is not valid for any premises other than those for which the license is issued. 483.031 Application of part; exemptions.--This part applies to all clinical laboratories within this state, except: (1) A clinical laboratory operated by the United States Government. (2) A clinical laboratory . Tehc LLC Page 9 · - · June 23;-2008 that performs only waived tests and has received a certificate of exemption from the agency under s. 483.106. (3) A clinical laboratory operated and maintained exclusively for research and teaching purposes that do not involve patient or public health service. 483. l 06 Application for a certificate of exemption.--An application for a cenificate of exemption must be made under oath by the owner or director of a clinical laboratory that performs only waived tests as defined ins. 483.041. A certificate of exemption authorizes a clinical laboratory to perform waived tests. Laboratories maintained on separate premises and operated under the same management may apply for a single certificate of exemption or multiple certificates of exemption ... 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. SEE ATTACHED ELECTION AND EXPLANATION OF RIGHTS FORMS. Anne Menard, Manager Home Care Unit cc: Agency Clerk, Mail Stop 3 Legal Intake Unit, Mail Stop 3 Arlene Mayo-David, AHCA Delray Beach Field Office Manager Track & Confirm Search Resuhs Label/Receipt Number: 7160 3901 9845 4743 6663 Status: Delivered Your item was delivered at 11:36 AM on June 26, 2008 in FORT LAUDERDALE, FL 33309. Track.& Confirm FAQs Enter Label/Receipt Number. Options Track & Confirm by email Get current event information or updates for your item sent to you or others by email. ( /,h,>) fgnns Oov'I Services .Jobs Priv11.c;y Policy Tenns_ofUse • Nation;il_&.Premier Accounts Copyright© 1999-2007 USPS. All Rights Reserved. No FEAR Act EEO Data FOIA http://trkcnfrm l .smi.usps.com/PTSintemetWeb/Inter Labellnquiry .do 7/21/2008 STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION Agency ,i' ., :, In RE: Licensure Renewal Application of Care Admi :i: : TEHC,LLC AHCA No. 2008007748 License No. 204390961 I REQUEST FOR FORMAL HEARING The law firm of Dresnick & Rodriguez, P.A., notices its appearance as counsel for TEHC, LLC, in conjunction with the above-referenced matter. All pleadings, documents, and other communications should be provided to TEHC's counsel at the address below. TEHC disputes the allegations of fact contained in the Notice oflntent to Deny and requests that this pleading be considered a demand for a formal hearing, pursuant to Sections 120.569 and 120.57(1), Florida Statutes, and pursuant to Rule 28-106.2015,. Florida Administrative Code, before an Administrative Law Judge appointed by the Division of Administrative Hearings. In support of this Petition, TEHC states the following: The Petitioner is TEHC, TLC, 3317 NW 10th Terrace. Suite 404. Fort Lauderdale, FL 33309. TEHC's telephone number is 954-351-1895, and the facsimile number is 954-351-1820. TEHC's counsel should be contacted at the address and fax number below. TEHC disputes allegations of fact including, but not limited to, those in paragraphs 1, 6, 7, 8, 9, 11, 12, 15 and 16 of the Notice oflntent to Deny, and requests an Administrative Hearing regarding these allegations. In addition, TEHC disputes that they DRESNICK & RODRIGUEZ, P.A., ONEDATRAN CENTER, SUITE 1610, 9100 SOUTH DADELAND BOULEVARD, MIAMI, F'L 33156-7817 • (305) 670-9800 AHCA No. 2008007748 License No. 204390961 have demonstrated a pattern of deficient performance, and that the plan of correction submitted in June, 2008 was not acceptable. TEHC received the Notice oflntent to Deny on June 26, 2008. The Agency's file number in this case is 2008007748. Respectfully submitted, DRESNICK & RODRIGUEZ, P.A. Attorneys for TEHC, LLC One Datran Center 9100 South Dadeland Blvd, Suite 1610 Miami, FL 33156 Off: (305) 670-9800 Fax: (305) 670-9933 '£' Monica L. Rodriguez) Florida Bar No. 986283 2 DRESNICK & RODRIGUEZ, P.A., ONE DATRAN CENTER, SUITE 1610, 9100 SOUTH DADELAND BOULEVARD, MIAMI, FL 33156-7817 • (305) 670-9800 AHCA No. 2008007748 License No. 204390961 CERTIFICATE OF SERVICE I HEREBY CERTIFY that the original of the foregoing has been furnished by telefax and U.S. Mail on July 16, 2008 to: Nelson Rodney, Assistant General Counsel, Agency for Health Care Administration, 8350 N.W. 52nd Terrace, Suite 103, Miami, FL 33166, with a copy via telefax and U.S. Mail to Richard Shoop, Agency Clerk, 2727 Mahan Drive, Mail Stop # 3, Tallahassee, Florida 32308. '-<:;.., )...f?. .c..,...:_ Monica L. Rodriguez O ') 3 DRESNICK & RODRIGUEZ. P.A., ONEDATRAN CENTER, SUITE 1610, 9100 SOUTH DADELAND BOULEVARD, MIAMI, FL 33156-7817 • (305) 670-9800 08/20/2009 15 51 FAX 305 870 9933 ?RESN ICK & RODRIGUEZ, PA 002/003 STATE OF FLORJDA
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 $5,250. 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 Filed April 17, 2013 10:13 AM Division of Administrative Hearings ORDERED at Tallahassee, Florida, on this |% day of Areal , 2013. , Secretary 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 _copy of this Final Order was served on the below-named persons by the method designated on this /G: of Apex ‘] , 2013. 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) Andrea M. Lang, Senior Attorney Craig Smith, Esq. Office of the General Counsel Attorney for Respondent Agency for Health Care Administration Conficare Home Health Solutions, LLC (Electronic Mail) Hogan Lovells US, LLP 215 South Monroe Street, Suite 602 Tallahassee, Florida 32301 (U.S. Mail) Lynne A. Quimby-Pennock Administrative Law Judge Division of Administrative Hearings (Electronic Mail)
Findings Of Fact MPP presently provides home health services to residents of Hillsborough and Polk Counties from its offices located in Tampa and Lakeland. Without these certificates of need herein requested MPP is not authorized to provide home health services to Medicare and Medicaid eligible persons. MPP is qualified to provide the proposed services. Walker is a non-profit 122-bed acute care community hospital located in Avon Park, Highlands County, Florida. Walker has provided health care services to residents of Highlands County since 1947. Although Walker does not currently provide home health services in Highlands County, it is fully qualified to provide the proposed services. Home health agencies (HHA) differ significantly from other health care providers chiefly in the fact that they are labor intensive and not capital intensive services. Most home health agencies contract with nurses, therapists, and other personnel to provide the services on an as-needed basis. Once an office is established with the necessary communications and accounting facilities, expansion of the agency is accomplished merely by signing up as many nurses, therapists, etc., as is needed to provide home health services as required. Theoretically, one home health agency could provide all of the services required in a district, subject only to the travel time needed for the in-home provider to reach the patient and the accessibility of the agency office to the hospital or doctor prescribed in the home health treatment. A proposed rule prevents this from occurring by the rule formula which limits the divisor in the formula (number of expected medical care visits per agency per year) to 21,000 expected visits per agency, which is then multiplied by a constant. Thus, if there were only one home health agency in a district and it was providing 65,000 home Medicare visits per year, use of the proposed rule methodology would show a need for additional HHAs. Although both Petitioners challenged DHRS' non-rule policy in determining the need for HHAs in District VI, all of the need calculations they submitted are predicated upon the need methodology as contained in proposed Rule 10-5.11(14), F.A.C., modified by the Petitioners using 1983 use rates and disregarding the "crossover" agencies. No need calculations based on any other methodology were presented. The methodology in the proposed rule provides [N]eed equals the [G]ross number of HHAs to be allocated in the district less the number of [L]icensed and approved HHAs in the district, or N = G - L. "G" is itself expressed by the formula MV x (A+B)/S where: MV = The 1982 statewide mean number of visits per Medicare home health care service user across age groups (31.5) A = The projected district population of persons 65 years or older times the Medicare home health services utilization rate standard for that population group [POPA x .0506]; B = The projected district population of persons less than 65 years of age who are estimated to be disabled times the Florida home health services utilization rate standard for disabled medical beneficiaries [POPB x .01755 x .0297]; S = The number of expected Medicare visits per agency per year. This number is obtained by adding to the base agency size of 9,000 visits per year an additional number of visits equal to the total number of Medicare visits in the projected year, divided by the base agency size, multiplied by a factor denoted as C. C is a standard which is set at 270 for applications timely filed in calendar years 1984 and 1985; 225 for applications timely filed in calendar years 1986 and 1987 and 180 for applications timely filed in calendar year 1988 or beyond. However, if the result of the calculation of S exceeds 21,000 visits projected, S shall be assigned a value of 21,000. The methodology employed in need calculation is based on a number of factors. MV (31.5) is a standard which is based on information obtained from the Health Care Finance Administration (HCFA) for Florida in 1982. If this standard is recomputed using 1983 HCFA data, MV is 33.3. The second, the Medicare home health care utilization rate standard (.0506), is also based on information reported by HCFA for Florida for 1982. The estimate for the proportion of the Florida population which is disabled (.01755) was also derived from the 1982 data for Florida, as was the factor which specifies the home health services utilization standard for disabled Medicare beneficiaries (.0297). The base agency size (9,000 visits annually), which is used in determining "S", the number of expected Medicare visits per agency per year, was developed by the HRS Office of Comprehensive Health Planning, based on a statistical analysis of data related to agency size, relative efficiency in terms of cost, and economies of scale. That analysis revealed that, in the range of about 9,000 visits, the first reasonable economies of scale begin to accrue in the operation of a home health agency. Therefore, this level of service provision was selected as the agency standard. The maximum level "S" can reach (21,000 visits annually) was found to be the point at which the major economies of scale appear to have been achieved. Thus, this level was selected as the maximum for the agency standard. The values as selected for "C" represent 3.0 percent, 2.5 percent, and 2.0 percent of the base agency size standard (9,000 visits annually). This factor is used to adjust "S" over time, its effect is that of increasing the number of home health agencies, which are projected as needed, gradually over a three-year period. It was selected as a standard based upon HRS' policy to encourage the development of health care markets in an orderly manner and to avoid the disruptive impact of a flood of new service providers immediately. The "C" factor changes over a time, which means that "S" will grow smaller and thus the gross number of agencies will increase. Thus, even MPP's expert witness agrees that the rule is not frozen. Rather, it is dynamic, though conservative, in effect. In fact, the result of the calculations of "G" (gross number of agencies) approximates the current, existing inventory of home health care agencies in Florida. The Local Health Plan for District VI makes no provision for establishing subdivisions within the district. Accordingly, an HHA located in any county in District VI can serve the entire district subject only to geographical limitations. There are 16 HHAs domiciled in District VI and six HHAs domiciled in adjacent districts but licensed to serve a contiguous county in District VI. These so-called crossover agencies presently serve or are licensed to serve Medicare patients in District VI. Counting these crossover agencies and the number of existing agencies, there are 22 licensed and approved HHAs in District VI. Using the proposed rule methodology and applying the estimated population for 1987 (two years from date of hearing) gives a calculated gross need of 19. Under the proposed rule methodology, there is presently a surplus of three HHAs in District VI. Under the proposed rule, these crossover agencies would have to apply for expedited review of an application to establish an office in the county in which they are licensed but not domiciled. Exactly what this review will consist of is subject to some dispute. However, until the proposed rule goes into effect, there is no occasion for these crossover agencies to seek a certificate to do that for which they are currently licensed. If the 1983 data from HCFA, which was the latest usage data available at the time of the hearing, is substituted for the 1982 data prescribed by the proposed methodology, and the overall district need is recomputed, an overall need of 21.63 is arrived at for District VI in 1987. This rounds off to 22 and is the same as the present number of licensed and approved HHAs in District VI. Both Petitioners contend that the six crossover agencies should not be counted in the total number of licensed and approved HHAs in District VI because there is no guarantee they now serve or will ever serve patients in District VI. If these agencies are excluded, there is a clear need under the proposed rule methodology for the three HHAs here being applied for. Under the proposed rule, each of these crossover agencies must apply within a time certain (60 days) following the effective date of the proposed rule for certificates of need to open an office in the county for which they are licensed. These crossover agencies may have grandfather rights to serve Medicare patients in those counties in which they are licensed and, if so, these rights cannot arbitrarily be abrogated. Petitioners especially contest counting the three Gulf Coast Home Health Services corporations as three crossover agencies because each of them is licensed to serve only Hillsborough County in District VI; because they have the same directors, corporate officers and owners; and because all of them would be unlikely to open additional offices in Hillsborough County. Nevertheless, each is a separate and distinct entity with its own corporate identity. As such, each has the same right to serve Medicare patients in Hillsborough County as does Total Professional Care, Inc., another crossover agency so licensed. The services provided by these crossover agencies, insofar as they provided services to Medicare patients in the counties in District VI in which they are licensed, are included in the usage data obtained from HCFA. This usage data, mean number of visits (MV), is a principal factor in the numerator of the methodology formula above discussed. Thus, the district usage includes those services provided by these crossover agencies. No evidence was presented regarding the actual number of visits provided to District VI patients by these crossover agencies. Accordingly, it is inconsistent to accept the proposed rule methodology and exclude the crossover agencies in the count of existing agencies to determine the gross number of HHAs needed. Respondent's contention that these crossover agencies are akin to health care providers who have been issued a CON but are not yet licensed and in operation is not fully concurred with. Those providers issued a CON are counted in the number of authorized and licensed beds before their facilities commence operations those facilities are usually capital intensive rather than labor intensive as are HHAs and a longer delay in commencing operations is required for those types of facilities than for an HHA due simply to the time needed to construct those facilities. In other respects, those approved but not yet licensed facilities are similar to these crossover agencies in that some of these crossover agencies may have grandfather rights to open an office in the county in District VI in which they are presently licensed. In this respect they are like the applicant who has been issued a CON to operate a nursing home but subsequently decides to forego construction because of unexpected costs or other reasons. Each would lose its right to operate the health care facility by reason of failure to timely comply with rule requirements. However, until such time as those rights are forfeited they should be counted in determining the number of beds or other health care facilities that are needed in, the district in the year those facilities are programmed to be in operation. Changes in Medicare reimbursement to health care providers, principally hospitals, by the advent of the DRG (Diagnostic Related Group) has led to an increase in demand for the services provided by home health agencies. This is especially true for surgery patients who can be released from a hospital sooner if dressing changes and nursing care can be provided at the patient's home. Under the DRG method of reimbursement, the hospital is paid a Flat fee for Medicare patients for a specific diagnosis and treatment. The sooner the patient can be released from the hospital, the less will be the cost to the hospital for providing treatment. If, for example, the cost for a hospital bed is $400 per day and the DRG for the patient's ailment is $2,000, if the patient is kept in the hospital for five days, the total payment received will exactly cover the cost of the room. If the patient is kept in the hospital more than five days the hospital will lose money, while if he is discharged before the five days the hospital will make a profit Walker's primary contention is that it should be allowed to operate an HHA so it can discharge surgical patients sooner and provide the needed care at the patient's home by persons supervised by the hospital doctors. This would allow Walker to make more profit and thereby have more funds available to take care of indigent patients. Walker presented several witnesses who averred that a hospital-associated HHA provides better care than does a free- standing HHA. All these witnesses are employees of Walker and this self-serving testimony is given little weight. Both the hospital-run HHA and the free-standing HHA will employ part-time workers to provide the home health care prescribed. There is no logical reason to assume the hospital-affiliated HHA will employ better qualified nurses, etc. to provide the home health services needed than will the free-standing HHA. Medicare reimburses hospital-based home health agencies at a higher level than free- standing HHAs. This is an add-on of approximately 13 percent over the reimbursement received by free-standing HHAs. This is based on the cost of providing services which is generally higher for hospital-based HHAs. Walker also raised the issue of availability of occupational therapy, respiratory therapy, and medical-social workers. One of the two agencies operating in Highlands County, Highlands County HHA, does not provide these services. The other, Upjohn, is newly authorized to provide home health services in Highlands County. In other counties in Florida in which Upjohn is authorized to provide home health services it provides a broad range of services to home health patients including occupational therapy, respiratory therapy, and medical, social workers. Respondent's expert witness opined that such services were now available in Highlands County. This opinion was based in part on hearsay evidence that the witness received from an Upjohn representative that such services are provided. No direct testimony was presented that Upjohn did, or did not, provide the services not presently provided by Highlands County HHA. Accordingly, there was no credible evidence to rebut the opinion of HRS witnesses that these services are available in Highlands County. MPP's offices are currently available on a 24-hour per day basis and this will continue if the application is granted. Walker is also available 24 hours per day and access to home health personnel will also be available. MPP has committed to allocate 2 percent of its gross annual visits from each office to Medicare patients. In addition, one totally uncompensated visit will be provided to an indigent for every 20 Medicare visits. MMP presented no evidence that it is currently providing uncompensated services. Walker, which is a church owned and backed non-profit hospital, projects that 7.5 percent of its home health agency visits will be to indigent persons. This mirrors the current hospital-provided services to Medicaid patients. Walker's primary contention, that because hospital- based HHAs provide better care or better supervised care doctors will be more willing to release patients sooner than they.: otherwise would if there is no hospital-based HHA available, is not supported by credible evidence. It is simply not credible that a nurse employed by a hospital-based HHA is more competent, trustworthy, or capable than is the same nurse when employed by free-standing HHA. The chance of losing hospital records when a patient is transferred to a free-standing HHA would appear no greater than when the patient is transferred to a hospital-based released from the hospital whether home health services is thereafter provided or not. In view of the confidentiality of patient records, it would be expected that these records be retained in the hospital files. Absent a rule or policy to provide a methodology to determine need for additional HHAs, new applicants for certificates have a nearly impossible task of proving need if there are existing HHAs which oppose the application. This is so because of the nature of HHAs that they can expand to cover all needs simply by engaging more part-time personnel to provide the home health services needed in the community, county, or even district.
